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PETITIONER: MINERVA MILLS LTD. & ORS.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT31/07/1980

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) BHAGWATI, P.N. GUPTA, A.C. UNTWALIA, N.L. KAILASAM, P.S.

CITATION:  1980 AIR 1789            1981 SCR  (1) 206  1980 SCC  (3) 625  CITATOR INFO :  E&R        1981 SC 271  (16,36,57,65,67)  MV         1982 SC1325  (11)  R          1983 SC 130  (34)  N O        1983 SC 239  (9,10,11,13,14)  R          1984 SC 326  (17,18,19,57)  F          1984 SC 374  (3,16,17)  RF         1986 SC1205  (5)  RF         1986 SC1466  (13)  E&R        1987 SC 386  (2,12,15,16,17)  R          1989 SC 653  (11)  R          1989 SC1933  (7)  R          1990 SC 123  (11)  RF         1991 SC 101  (31,68,227,259,272)

ACT:      Constitution  of  India  Forty  Second  Amendment  Act, Sections 4  and  55-Whether  the  Sections  are  beyond  the amending power  of the  Parliament under  Article 368 of the Constitution  and   therefore  void-Whether   the  Directive Principles of  State policy  contained in  Part  IV  of  the Constitution can  have primacy  over the  fundamental rights conferred by  Part 111  of the  Constitution-Constitution of India Articles 14, 19, 31C, 38 and 368.

HEADNOTE:      Minerva Mills  Ltd. is  a limited  company  dealing  in textiles.  On   August  20,   1970  the  Central  Government appointed a  committee under  section IS  of the  Industries (Development Regulation)  Act,  1951  to  make  a  full  and complete investigation  of the  affairs of the Minerva Mills Ltd as  it was  of the  opinion that  there had  been or was likely to  be substantial  fall in the volume of production. The said  Committee submitted  its  report  to  the  Central Government in  January 1971,  on  the  basis  of  which  the Central Government  passed an  order dated  October 19, 1971 under section  18A of the 1951 Act, authorising the National Textile Corporation Ltd., to take over the management of the Mills on  the ground that its affairs are being managed in a manner  highly   detrimental  to   public   interest.   This

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undertaking was  nationalised and  taken over by the Central Government  under   the  provisions   of  the  Sick  Textile Undertakings (Nationalisation)  Act, 1974.  The  petitioners challenged the constitutional validity of certain provisions of the Sick Textile Undertakings (Nationalisation) Act, 1974 and   of   the   order   dated   October   19,   1971,   the constitutionality  of   the   Constitution   (Thirty   Ninth Amendment) Act  which inserted  the impugned Nationalisation Act as  Entry 105 in the Ninth Schedule to the Constitution, the validity  of Article 31B of the Constitution and finally the  constitutionality   of  sections   4  and   55  of  the Constitution (Forty Second Amendment) Act, 1976 on the ratio of the  majority judgment  in  Kesavananda  Bharati’s  case, namely, though by Article 368 of the Constitution Parliament is given  the power  to amend  the Constitution,  that power cannot be  exercised so  as to  damage the basic features of the Constitution or so as to destroy its basic structure.      Opining that  sections 4  and 55  of  the  Constitution (Forty  Second  Amendment)  Act  are  void  and  beyond  the amending power of the Parliament, the Court by majority (Per Chandrachud. C.J.,  on behalf  of himself,  A.  Gupta.  N.L. Untwalia & P.S. Kailasam, JJ.) ^      HELD: (1)  The newly introduced clause S of Article 368 transgresses  the  limitations  on  the  amending  power  of Parliament and  is hence unconstitutional. It demolishes the very pillars  on which  the preamble rests by empowering the Parliament to  exercise its  constituent power  without  any "limitation whatever".  No constituent power can conceivably go higher  than the  sky-high power conferred by clause (5), for  it   even  empowers   the  Parliament  to  "repeal  the provisions  of  this  Constitution",  that  is  to  say,  to abrogate the democracy. 207 and  substitute  for  it  a  totally  antithetical  form  of Government. That  can most  effectively be achieved, without calling a  democracy by any other name, by a total denial of social, economic  and political  justice to  the people,  by emasculating liberty  of thought,  expression, belief, faith and worship  and by  abjuring commitment  to the magnificent ideal of  a society of equals. The power to destroy is not a power to amend. [240C-E]      Since the Constitution had conferred a limited amending power on  the Parliament,  the Parliament  cannot under  the exercise of  that limited power enlarge that very power into an absolute  power. Indeed,  a limited amending power is one of the  basic features of Indian Constitution and therefore, the limitations  on that power cannot be destroyed. In other words, Parliament  cannot, under  Article  368,  expand  its amending power  so as  to acquire  for itself  the right  to repeal or  abrogate the Constitution or to destroy its basic and essential  features. The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one. [240E- G]      Smt. Indira  Nehru Gandhi  v. Raj  Narain, [1976] 2 SCR 347, followed.      (2) The  newly introduced  clause (4) of Article 368 is equally unconstitutional  and void  because clauses  (4) and (5) are  inter-linked. While  clause (5)  purports to remove all limitations  on the  amending power, clause (4) deprives the courts  of their power to call in question any amendment of the Constitution. [241E-F]      Indian Constitution  is founded  on a  nice balance  of power among  the  three  wings  of  the  State  namely,  the Executive, the  Legislature and  the Judiciary.  It  is  the

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function of  the Judges,  may their  duty, to pronounce upon the validity of laws. If courts are totally deprived of that power, the fundamental rights conferred upon the people will become a  mere adornment because rights without remedies are as writ in water. A controlled Constitution will then become uncontrolled. Clause (4) of Article 368 totally deprives the citizens of  one of the most valuable modes of redress which is guaranteed  by Article 32. The conferment of the right to destroy the  identity of  the Constitution  coupled with the provision that  no court  of law  shall pronounce  upon  the validity of  such  destruction  is  a  transparent  case  of transgression of  the limitations  on  the  amending  power. [241H, 242A]      If a  constitutional amendment  cannot be pronounced to be invalid  even if  it destroys  the basic structure of the Constitution, a law passed in pursuance of such an amendment will be  beyond the  pale of judicial review because it will receive the protection of the constitutional amendment which the courts  will be  powerless to strike down. Article 13 of Constitution will  then become  a dead  letter because  even ordinary laws  will escape the scrutiny of the courts on the ground  that   they  are   passed  on   the  strength  of  a constitutional amendment  which is  not open  to  challenge. [242A-C]      (3) Though  it is  the settled  practice of the Supreme Court not  to decide  academic questions  and the  Court has consistently taken  the view  that it  will not  formulate a rule of  constitutional law  broader than is required by the precise facts  to which it is to be applied, it is difficult to uphold  the preliminary objection to the consideration of the question  raised  by  the  petitioners  as  regards  the validity of sections 4 and 55 of the Forty-second Amendment. In the  instant case,  the question  raised as  regards  the constitutionality of  sections 4  and 55 of the Forty Second Amendment is  not an  academic or  a hypothetical  question. Further an  order has  been passed  against the  petitioners under  section   18A  of  the  Industries  (Development  and Regulation)  Act,   1951,  by   which  the  petitioners  are aggrieved. [248C, E-G] 208      Besides,  there   is  no  constitutional  or  statutory inhibition against  the decision  of questions  before  they actually arise  for consideration.  Here,  in  view  of  the importance of  the question  raised and  in view of the fact that the  question has been raised in many a petition, it is expedient in  the interest  of Justice  to settle  the  true position. Secondly, what the court is dealing with is not an ordinary law which may or may not be passed so that it could be said  that the  court’s jurisdiction  is being invoked on the hypothetical  consideration that  a law may be passed in future which will injure the rights of the petitioners. What the court  is dealing  with is  a  constitutional  amendment which has  been brought into operation and which, of its own force, permits  the violation  of certain  freedoms  through laws passed for certain purposes. [248G, 249A-B]      Commonwealth of  Massachusetts v.  Andrew W. Mellon, 67 Lawyers’ Edition,  1078, 1084; George Ashwander v. Tennessee Valley Authority, 80 Lawyers’ Edition, 688, 711, quoted with approval.      (4) The  answer to  the question whether in view of the majority decision  in Kesavananda  Bharati it is permissible to the  Parliament to so amend the Constitution as to give a position of  precedence to  directive  principles  over  the fundamental rights,  must necessarily  depend  upon  whether Articles 14  and 19,  which must now give way to laws passed

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in order  to effectuate  the policy  of  the  State  towards securing all  or any  of the principles of Directive Policy, are  essential  features  of  the  basic  structure  of  the Constitution. It  is only  if the  rights conferred by these two articles  are not  a part  of the basic structure of the Constitution that  they can  be allowed to be abrogated by a constitutional amendment.  If they  are a  part of the basic structure, they  cannot be  obliterated. out of existence in relation tn  a category of laws described in Article 31C or, for  the  matter  of  that,  in  relation  to  laws  of  any description whatsoever,  passed  in  order  to  achieve  any object or  policy whatsoever.  This will  serve to bring out the  point  that  a  total  emasculation  of  the  essential features  of   the  Constitution   is,  by   the  ratio   in Keshavananda Bharati,  not permissible  to  the  Parliament. [249E-H]      (5) The  importance  of  Directive  Principles  in  the scheme of  our Constitution  cannot ever be over-emphasized. Those  principles   project  the   high  ideal   which   the Constitution aims  to achieve.  In fact Directive Principles of State Policy are fundamental in governance of the country and there is no sphere of public life where delay can defeat justice with  more telling  effect than the one in which the common man  seeks the realisation of his aspirations. But to destroy  the   guarantees  given   by  Part   III  in  order purportedly to  achieve the  goals of  Part IV is plainly to subvert the  Constitution by destroying its basic structure. Fundamental rights  occupy a  unique place  in the lives. of civilized societies  and have  been variously  described  as "transcendental", "inalienable" and "primordial" and as said in Kesavananda  Bharati  they  constitute  the  ark  of  the Constitution. [250B-C, 254H, 255A]      The significance  of the  perception that Parts III and IV together  constitute the  core of  commitment  to  social revolution and  they, together,  are the  conscience of  the Constitution is  to be traced to a deep understanding of the scheme of the Indian Constitution. Parts III and IV are like two wheels  of a  chariot, one  no less  important than  the other. Snap  one and  the other will lose its efficacy. They are like  a twin formula for achieving the social revolution which is  the ideal  which the  visionary  founders  of  the Constitution set 209 before themselves.  In other  words, the Indian Constitution is founded  on the bed-rock of the balance between Parts III and IV. To give absolute primacy to one over the other is to disturb the  harmony of  the Constitution.  This harmony and balance between  fundamental rights and directive principles is an  essential feature  of  the  basic  structure  of  the Constitution. [255B-D]      The edifice  of Indian  Constitution is  built upon the concepts crystallized  in the  Preamble. Having  resolved to constitute ourselves  into a  Socialist State  which carried with it  the obligation  to secure  to our  people  justice- social, economic  and political,  Part IV  has been put into our Constitution  containing directive  principles of  State Policy which  specify the  socialistic goal  to be achieved. Having promised the people a democratic polity which carries with it  the obligation of securing to the people liberty of thought, expression,  belief, faith and worship, equality of status and of opportunity and the assurance that the dignity of the  individual will  at all costs be preserved, Part III has been put in our Constitution, conferring those rights on the people.  Those rights  are not  an end in themselves but are the  means to  an end.  The end is specified in Part IV.

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Therefore, the  rights conferred  by Part III are subject to reasonable restrictions  and the  Constitution provides that enforcement  of   some  of  them  may,  in  stated  uncommon circumstances,  be   suspended.  But   just  as  the  rights conferred by Part III would be without a radar and a compass if they  were not geared to an ideal, in the same manner the attainment of  the ideals  set out in Part IV would become a pretence for  tyranny if  tho price to be paid for achieving that ideal  is human  freedoms. One  of the  faiths  of  our founding fathers  was the purity of means. The goals set out in Part  IV have,  therefore, to  be  achieved  without  the abrogation of  the means  provided for by Part III. It is in this sense  that Parts  III and  IV together  constitute the core of our Constitution and combine to form its conscience. Anything that  destroys the  balance between  the two  parts will ipso  facto destroy  an essential  element of the basic structure of our Constitution. [253D-H, 256A-B]      (5A) on  any reasonable interpretation, there can be no doubt that  by the  amendment introduced by section 4 of the Forty Second  Amendment, Articles  14 and 19 stand abrogated at least  in regard  to the  category of  laws described  in Article 31C.  The startling  consequence which the amendment has produced  is that  even if a law is in total defiance of the mandate  of Article 13 read with Articles 14 and 19, its validity will  not be open to question so long as its object is to secure a directive principle of State Policy. [256D-E]      (6) No  doubt, it is possible to conceive of laws which will not attract Article 31C, since they may not bear direct and  reasonable  nexus  with  the  provisions  of  Part  IV. However, a  large majority of laws, the bulk of them, can at any rate  be easily  justified as having been passed for the purpose of  giving effect to the policy of the State towards securing some  principle or  the other laid down in Part IV. In respect  of all  such laws, which will cover an extensive gamut of  the relevant  legislative activity, the protection of Articles  14 and  19 will  stand wholly  withdrawn. It is then no  answer to  say, while determining whether the basic structure of the Constitution is altered, that at least some laws will fall outside the scope of Article 31C. [256E-H]      (7) A  total deprivation of fundamental rights, even in a limited  area, can  amount to  abrogation of a fundamental right just  as partial  deprivation in  every area  can. The fact, therefore that some laws may fall outside the scope of Article  31C  is  no  answer  to  the  contention  that  the withdrawal of  protection of Articles 14 and 19 from a large number  of   laws  destroys   the  basic  structure  of  the Constitution. [256H, 257A-B] 210      (8) Article  38 provides that the State shall strive to promote the welfare of the people by securing and protecting as effectively  as it  may a  social order in which justice, social,  economic   and  political,  shall  inform  all  the institutions of  the national  life. It  is not correct that all the  Directive Principles  of State  Policy contained in Part  TV  eventually  verge  upon  Article  38.  Article  38 undoubtedly  contains  a  broad  guideline,  but  the  other Directive Principles  are  not  mere  illustrations  of  the principle contained  in Article  38. Secondly, if it be true that no  law passed  for the purpose of giving effect to the Directive principle  in Article 38 can damage or destroy the basic structure  of the Constitution, there was no necessity and  more   so  the   justification,  for   providing  by  a Constitutional amendment  that no  law which  is passed  for giving effect  to the  policy of  the State towards securing any principle  laid down  in Part  IV shall  be deemed to be

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void on  the ground  that it  is inconsistent  with or takes away or abridges the rights conferred by Articles 14 and 19. [257C-F]      The object  and purpose of the amendment of Article 31C is really  to save  laws which cannot be saved under Article 19(2) to  (6). Laws which fall under those provisions are in the nature  of reasonable  restrictions on  the  fundamental rights in  public interest and therefore they abridge but do not abrogate the fundamental rights. It was in order to deal with laws  which do  not get the protection of Article 19(2) to (6)  that  Article  31C  was  amended  to  say  that  the provisions of  Article 19,  inter alia cannot be invoked for voiding the  laws of  the description  mentioned in  Article 31C. [257F-G]      (9) Articles  14 and  19 do  not  confer  any  fanciful rights. They  confer rights  which are  elementary  for  the proper and  effective functioning  of a  democracy They  are universally so  regarded, as  is evident  from the Universal Declaration of  Human Rights.  If Articles 14 and 19 are put out of  operation in  regard to  the bulk  of laws which the legislatures are  empowered  to  pass  Article  32  will  be drained of its life-blood. [257G-H, 258A]      Section 4  of the  Forty Second Amendment found an easy way to  circumvent Article  32(4) by withdrawing totally the protection of  Articles 14  and 19  in respect  of  a  large category of  laws, so  that there  will be  no violation  to complain of  in regard  to which redress can be sought under Article 32. The power to take away the protection of Article 14 is  the power  to discriminate  without a valid basis for classification. By  a long  series of  decisions the Supreme Court has held that Article 14 forbids class legislation but it  does   not  forbid   classification.  The   purpose   of withdrawing the  protection of  Article 14,  therefore,  can only be  to acquire  the power  to enact  class legislation. Then again,  regional chauvinism  will have  a field  day if Article 19(1)(d)  is not available to the citizens. Already, there are disturbing trends on a part of the Indian horizon. Those trends will receive strength and encouragement if laws can be  passed with  immunity, preventing  the citizens from exercising  their   right  to  move  freely  throughout  the territory of  India. The nature and quality of the amendment introduced by  section 4  of the  Forty Second Amendment is, therefore, such  that it  virtually tears  away the heart of basic fundamental freedoms. [258B-E]      Article 31C  speaks of laws giving effect to the policy of the  "State". Article 12 which governs the interpretation of Article  31C provides  that the  word "State" in Part III includes the  Government and  Parliament of  India  and  the Government and the Legislature of each of the States and all local or other 211 authorities within  the territory  of  India  or  under  the control of  the Government of India. Wide as the language of Article 31C  is, the  definition  of  the  word  "State"  in Article 12  gives to  Article 31C an operation of the widest amplitude. Even  if a State Legislature passes a law for the purpose of  giving effect to the policy by a local authority towards securing  a directive  principle, the law will enjoy immunity from  the provisions  of Articles  14 and  19.  The State Legislatures  are  thus  given  an  almost  unfettered discretion to  deprive the  people of their civil liberties. [258E-G]      (10) The  principles enunciated  in Part IV are not the proclaimed monopoly of democracies alone. They are common to all polities,  democratic or  authoritarian. Every  State is

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goal-oriented and  claims to strive for securing the welfare of its  people. The  distinction between the different forms of  Government  consists  in  that  a  real  democracy  will endeavour to  achieve its  objectives through the discipline of fundamental  freedoms like those conferred by Articles 14 and 19. Those are the most elementary freedoms without which a free democracy is impossible and which must, therefore, be preserved at  all costs.  If the discipline of Article 14 is withdrawn and if immunity from the operation of that article is conferred,  not only on laws passed by the Parliament but on laws passed by the State Legislatures also, the political pressures exercised by numerically large groups can tear the country asunder by leaving it to the legislature to pick and choose favoured areas and favourite classes for preferential treatment. [259A-D]      (11) The device of reading down the provisions of a law for the purpose of saving it from a constitutional challenge is  not   to  be   resorted  to   in  order   to  save   the susceptibilities of  the law makers, nor indeed to imagine a law of  one’s liking to have been passed. Article 31C cannot be read  down so  as  to  save  it  from  the  challenge  of unconstitutionality because  to do  so will  involve a gross distortion of  the principle  of reading down depriving that doctrine of  its only  or true rationale when words of width are used inadvertently one must at least take the Parliament at its word when, especially, it undertakes a constitutional amendment. [259E-G]      If the  Parliament has  manifested a clear intention to exercise an  unlimited power,  it is  impermissible to  read down the  amplitude of  that power so as to make it limited. The principle  of reading  down cannot be invoked or applied in opposition  to the clear intention of the legislature. In the history  of the  constitutional law,  no  constitutional amendment has ever been read down to mean the exact opposite of what  it says  and intends. In fact, reading down Article 31C so  as to  make it  conform to the ratio of the majority decision in  Kesavananda Bharati  is to  destroy the  avowed purpose of  Article 31C  as indicated  by the  very  heading "Saving of  certain laws"  under which Articles 31A, 31B and 31C are  grouped. Since  the amendment  to Article  31C  was unquestionably  made   with  a   view  to   empowering   the legislatures to  pass laws  of a particular description even if those  laws violate the discipline of Articles 14 and 19, it is  impossible to  hold that  the court should still save Article 31C  from the  challenge of  unconstitutionality  by reading into  that Article words which destroy the rationale of that  Article and an intendment which is plainly contrary to its proclaimed purpose. [259H, 280A-C]      (12) Reading  the existence  of an  extensive  judicial review into  Article 31C  is really to permit the distortion of the  very purpose  of that Article. It provides expressly that no  law of  a particular description shall be deemed to be void on the ground that it violates Article 14 or Article 19. It would be sheer 212 adventurism of a most extraordinary nature to undertake such a kind of judicial enquiry. [260F-G]      (13) In the very nature of things it is difficult for a court to  determine whether a particular law gives effect to a particular  policy. Whether  a law  is adequate  enough to give effect  to the  policy of  the State towards securing a directive principle  is always  a debatable question and the courts cannot  set aside  the law as invalid merely because, in their  opinion, tho  law is  not adequate  enough to give effect to  a certain  policy. The  power to enquire into the

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question whether  there is  a direct  and  reasonable  nexus between the  provisions of  a law  and a Directive Principle cannot confer  upon the  Courts the power to sit in Judgment over the  policy itself of the State. At the highest, courts can,  under  Article  31C,  satisfy  themselves  as  to  the identity of the law in the sense whether it bears direct and reasonable nexus with a Directive Principle. If the court is satisfied as  to the existence of such nexus, the inevitable consequence provided for by Article 31C must follow. Indeed, if there  is one  topic  on  which  all  the  13  Judges  in Kesavananda Bharti  were agreed,  it is  this: that the only question open to judicial review under tho unamended Article 31C was  whether there  is a  direct and  reasonable  nexus. between the  impugned law  and tho  provisions  of  Articles 39(b) and  (c). Reasonableness  is evidently  regarding  the nexus and  not regarding  the law. The. attempt therefore to drape Article  31C into  a democratic  outfit under which an extensive judicial  review would  be permissible  must fail. [260H, 261A-E]      (14) The  avowed purpose  of clauses  (4)  and  (5)  of Article 368  is to confer power upon the Parliament to amend the  Constitution   without   any   "limitation   whatever". Provisions of  this nature  cannot be  saved by reading into them  words  and  intendment  of  a  diametrically  opposite meaning and content. [261F-G]      (15)  Article   31A(1)  can   be  looked   upon  as   a contemporaneous practical  exposition of  the intendment  of the Constitution,  but the  same cannot  be said  of Article 31C. Besides  there is  a significant qualitative difference between the two Articles. Article 31A, the validity of which has been  recognised over  the years, excludes the challenge under Articles  14 and  19 in regard to a specified category of laws.  If by  a constitutional amendment, the application of Articles  14 and  19 is withdrawn from a defined field of legislative  activity,   which  is   reasonable  in   public interest, the basic framework of the constitution may remain unimpaired. If the protection of those articles is withdrawn in respect  of an  uncatalogued variety of laws, fundamental freedoms will  become a  ’parchment in  a glass  case’ to be viewed as a matter of historical curiosity [262A-C]      (16) There  is no  merit in  the contention  that since Art. 31A  was also  upheld on  the ground  of state decisis. Art. 31C  can be upheld on the same ground. The five matters which are  specified in  Article 31A  are of  such  quality, nature, content  and character  that at  least a  debate can reasonably arise whether abrogation of fundamental rights in respect of  those matters  will damage  or destroy the basic structure of  the Constitution.  Article 31C  does not  deal with specific subjects. The directive principles are couched in broad  and’ general terms for the simple reason that they specify the  goals to  be achieved.  The principle  of state decisis  cannot   be  treated   as  a   fruitful  source  of perpetuating curtailment  of human  freedoms. No  court  has upheld the  validity of  Article 31A  on the  ground that it does not  violate the  basic structure  of the Constitution. There is  no decision  on the  validity of Article 31A which can be  looked upon  as a measuring rod of the extent of the amending power. To 213 hark  back   to  Article   31A  every   time  that   a   new constitutional amendment  is challenged  is the surest means of ensuring  a drastic  erosion of  the  Fundamental  Rights conferred by  Part III.  Such  a  process  will  insidiously undermine the efficacy of the ratio of the majority judgment in Kesavananda  Bharati regarding  the inviolability  of the

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basic structure.  That ratio  requires that  the validity of each new  constitutional amendment must be judged on its own merits. [262C-G]      (17) It is not correct to say that when Article 31A was upheld on the ground of state decisis, what was upheld was a constitutional device  by which  a class of subject-oriented laws was  considered to be valid. The simple ground on which Article  31A   was  upheld,   apart  from   the  ground   of contemporaneous practical  exposition, was that its validity was accepted  and recognised  over the years and, therefore, it was  not permissible  to challenge its constitutionality. The principle  of stare  decisis does not imply the approval of the  device. Or  mechanism  which  is  employed  for  the purpose of  framing a  legal  or  constitutional  provision. [262G-H, 263A-B]      (18)  Under   clauses  (2)   to  (6)   of  Article  19, restrictions can  be imposed only if they are reasonable and then again,  they can be imposed in the interest of a stated class of  subjects only.  It is  for the  courts  to  decide whether restrictions  are reasonable and whether they are in the interest  of the  particular subject.  Apart from  other basic dissimilarities,  Article 31C  takes away the power of judicial  review  to  an  extent  which  destroys  even  the semblance of  a comparison  between its provisions and those of clauses  (2) to  (6)  of  Article  19.  Human  ingenuity, limitless though  it may be, has yet not devised a system by which the  liberty of  the people  can be  protected  except through the intervention of courts of law. [263B-D]      Three Articles  of the  Indian  Constitution  and  only three stand  between the heaven of freedom into which Tagore wanted his  country to  awake and  the abyss of unrestrained power. They  are Articles  14, 19  and 21.  Article 31C  has removed two  sides of  that golden triangle which affords to the people  of this  country an  assurance that  the promise held forth  by the Preamble will be performed by ushering an egalitarian  era   through  the  discipline  of  fundamental rights, that  is, without  emasculation  of  the  rights  to liberty and  equality which  alone  can  help  preserve  the dignity of the individual. [263D-E]      Per Bhagwati, J. (concurring)      (1) Since  the question in regard to the constitutional validity of  the amendment made in Article 31C did not arise in the  writ petitions  and the  counter-affidavits, it  was wholly academic  and superfluous  to decide  it. Once  it is conceded that  Articles 31A,  31B and  the unamended Article 31C are  constitutionally valid it became wholly unnecessary to rely  on the  unamended Article  31  in  support  of  the validity of Sick Textiles Undertaking (Nationalisation) Act, 1974 because  Article 31B  would, in any event, save it from invalidation on  the ground  of infraction  of  any  of  the fundamental rights. [268F-H]      (2) Now  either the  Nationalisation Act was really and truly a  law for  giving effect  to the Directive Principles set out  in Article  39 clause (b) as declared in section 39 of the  Act or  it was  not such  a law  and the legislative declaration contained  in section 39 was a colourable device If it was the 214 former then the unamended Article 31C would be sufficient to protect the Nationalisation Act from attack on the ground of violation of  Articles  14,  19  and  31  and  it  would  be unnecessary to involve the amended Article 31C and if it was the latter,  then neither  the  unamended  nor  the  amended Article 31C  would have  any  application.  Thus  in  either event, the  amended Article  31C would  have no relevance at

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all in  adjudicating upon the constitutional validity of the Nationalisation Act. In these circumstances, the court could not be  called upon  to examine the constitutionality of the amendment made in Article 31C. [269B-E]      Dattatraya  Govind  Mahajan  v  State  of  Maharashtra, [1977] 2 SCR 790, followed.      (3) Clause  (4) of  Article 368  of the Constitution is unconstitutional and void as damaging the basic structure of the Constitution. [288E]      The words  "on any ground" in clause (4) of Article 368 are of  the widest  amplitude and they would obviously cover even a  ground that  the procedure  prescribed in clause (2) and its  proviso has  not been  followed. The result is that even if  an amendment is purported to have been made without complying with  the procedure  prescribed in  sub-clause (2) including its proviso, and is therefore unconstitutional, it would still be immune from challenge. [284F-F]      As per  Kesavananda Bharati’s case any amendment of the Constitution  which   did  not   conform  to  the  procedure prescribed  by   sub-clause  (2)  and  its  proviso  was  no amendment at  all and a court would declare it invalid. Thus if an amendment was passed by a simple majority in the House of the  People and  the Council  of States and the President assented to the amendment, it would, in law, be no amendment at all  because the  requirement of  clause (2)  is that  it should be  passed by  a  majority  of  each  of  the  Houses separately and  by not  less than  two-third of  the Members present and  voting. But  if clause  (4) was  valid it would become difficult  to  challenge  the  validity  of  such  an amendment and  it would prevail though made in defiance of a mandatory constitutional  requirement. Clause  (2) including its proviso  would be  rendered completely  superfluous  and meaningless and its prescription would become merely a paper requirement.   Moreover,    apart   from    nullifying   the requirements of  clause (2)  and its proviso, clause (4) has also the  effect  of  rendering  an  amendment  immune  from challenge even if it damages or destroys the basic structure of the  Constitution and is, therefore, outside the amending power of  Parliament. So  long  as  clause  (4)  stands,  an amendment of  the Constitution,  though unconstitutional and void as  transgressing the  limitation on the amending power of Parliament  as laid  down in  Kesavananda Bharati’s case, would be  unchallengeable in a court of law. The consequence of this  exclusion of  the power of judicial review would be that,  in  effect  and  substance,  the  limitation  on  the amending power  of Parliament  would, from a practical point of view,  become non-existent  and it would not be incorrect to say,  for covertly  and indirectly  by the  exclusion  of judicial review the amending power of Parliament would stand enlarged  contrary   to  the   decision  of  this  Court  in Kesavananda Bharati’s  case. This would, undoubtedly, damage the basic  structure of  the Constitution  because there are two essential features of the basic structure which would be violated,  namely,   the  limited   amending  power  of  the Parliament and  the power  of judicial review with a view to examining whether  any authority  under the Constitution has exceeded the limits of its powers. [284F-H, 285A-D]      Our Constitution  is a  controlled  constitution  which confers  powers  on  the  various  authorities  created  and recognised by it and defines the limits of those 215 powers. The  Constitution is  suprema lex, the paramount law of the  land and  there is  no authority,  no department  or branch  of   the  State   which  is   above  or  beyond  the Constitution or  has powers  unfettered and  unrestricted by

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the Constitution.  The Constitution  has devised a structure of power  relationship which  checks and balances and limits are  placed   on  the   powers   of   every   authority   of instrumentality under  the Constitution.  Every organ of the State, be  it  the  Executive  or  the  Legislature  or  the Judiciary, derives  its authority  from the Constitution and it  has   to  act  within  the  limits  of  such  authority. Parliament too  is a creature of the Constitution and it can only  have  such  powers  as  are  given  to  it  under  the Constitution. It  has no  inherent power of amendment of the Constitution  and   being  an   authority  created   by  the Constitution, it  cannot have  such inherent  power but  the power of  amendment is conferred upon it by the Constitution and it  is a limited power which is so conferred. Parliament cannot in  exercise of  this power so amend the Constitution as to  alter its  basic structure or to change its identity. Now, if  by constitutional amendment, Parliament was granted unlimited power  of amendment,  it  would  cease  to  be  an authority under  the Constitution,  but would become supreme over it  because it  would have  power to  alter the  entire Constitution including  its basic  structure and even to put an end  to it  by totally  changing its identity. Therefore, the limited  amending  power  of  Parliament  is  itself  an essential feature  of the  Constitution, a part of its basic structure,  for  if  the  limited  power  of  amendment  was enlarged into an unlimited power the entire character of the Constitution would be changed. It must follow as a necessary corollary that  any  amendment  of  the  Constitution  which seeks, directly or indirectly, to enlarge the amending power of  Parliament   by  freeing   it  from  the  limitation  of unamendability of  the basic structure would be violative of the basic structure and, hence, outside the amendatory power of Parliament. [285E-H, 286A-C]      It is  a fundamental principle of our Constitution that every  organ   of  the  State,  every  authority  under  the Constitution derives  its powers  from the  Constitution and has to  act within  the limits of such power. The three main departments  of  the  State  amongst  which  the  powers  of Government are  divided are:  the Executive, the Legislature and the  Judiciary. Under our Constitution there is no rigid separation of  powers  but  there  is  a  broad  demarcation though, having  regard to the complex nature of governmental functions, certain  degree of overlapping is inevitable. The Constitution has  created an  independent machinery, namely, the judiciary  which is  vested with  the power  of judicial review to determine the legality of executive action and the validity of  legislation passed  by the Legislature. It is a solemn duty  of the judiciary under the Constitution to keep the different organs of the State, such as the Executive and the Legislature,  within the  limits of  the power conferred upon them by the Constitution. This power of judicial review is conferred  on the judiciary by Articles 32 and 226 of the Constitution. [286D, E, 287B-C].      It is  a cardinal principle of our Constitution that no one, howsoever highly placed and no authority however lofty, can claim  to be  the sole  judge of  its  power  under  the Constitution or  whether its actions are within the confines of such  power laid  down by the Constitution. The judiciary is the  interpreter of the Constitution and the judiciary is assigned the  delicate task  to determine  what is the power conferred on  each  branch  of  Government,  whether  it  is limited, and  if so,  what are  the limits  and whether  any action of  that branch  transgresses such  limits. It is for the judiciary  to uphold  the constitutional  values and  to enforce the  constitutional limitations. That is the essence

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of the  rule of  law, which  inter alia  requires that  "the exercise of powers by 216 the  Government   whether  it  be  the  legislature  or  the executive or  any other  authority, be  conditioned  by  the Constitution and  the law". The power of the judicial review is an integral part of our constitutional system and without it, there  will be no Government of Laws and the rule of law would become  a teasing illusion and a promise of unreality. If there is one feature of our Constitution which, more than any other,  is basic  and fundamental  to the maintenance of democracy and  the rule  of law, it is the power of judicial review  and  it  is  unquestionably  a  part  of  the  basic structure   of    the   Constitution.   However,   effective alternative   institutional   mechanism   arrangements   for judicial review  cannot  be  made  by  Parliament.  Judicial review is  a vital  principle of  our  Constitution  and  it cannot be abrogated without affecting the basic structure of the Constitution.  If by  a  constitutional  amendment,  the power of  judicial review  is taken  away and it is provided that the  validity of  any law made by the legislature shall not be  liable to  be called in question on any ground, even if  it   is  outside   the  legislative  competence  of  the legislature or  is violative  of any  fundamental rights, it would be  nothing short  of subversion  of the Constitution, for  it   would  make  a  mockery  of  the  distribution  of legislative powers  between the  Union and  the  States  and render the  fundamental rights  meaningless and  futile.  So also if  a constitutional  amendment is  made which  has the effect of  taking away  the power  of  judicial  review  and providing that  no amendment  made in the Constitution shall be liable  to be  questioned on  any ground,  even  if  such amendment  is   violative  of   the  basic   structure  and, therefore, outside  the amendatory  power of  Parliament, it would be  making Parliament sole judge of the constitutional validity of  what it  has done and that would, in effect and substance, nullify  the limitation  on the amending power of Parliament  and   effect  the   basic  constructure  of  the Constitution. [287F-H, 288A-E]      (4) Clause  (5) of  Article 368  of the Constitution is unconstitutional and void. [289E-F]      After the  decisions of  Kesavananda Bharati’s case and Smt. Indira Gandhi’s case there was no doubt at all that the amendatory power  of Parliament  was limited  and it was not competent to  Parliament to alter the basic structure of the Constitution and clause (5) could not remove the doubt which did not  exist. What  clause (5)  really sought to do was to remove the  limitation on  the amending  power of Parliament and correct  it from  a limited power into an unlimited one. This was  clearly and  indubitably a  futile exercise on the part of the Parliament. [288G-H, 289A]      The Constitution  has conferred only a limited amending power on Parliament, so that it cannot damage or destroy the basic  structure  of  the  Constitution  and  Parliament  by exercise of  that limited  amending power  convert that very power into  an absolute  and unlimited  power.  If  it  were permissible to  Parliament to  enlarge the  limited amending power conferred upon it into an absolute power of amendment, then it  was  meaningless  to  place  a  limitation  on  the original power  of amendment.  Parliament having  a  limited power of  amendment cannot  get rid  of  the  limitation  of exercising that  very power  and convert it into an absolute power. Clause  (5) of Article 368 which sought to remove the limitation on  the amending power of Parliament by making it absolute,  therefore,  is  outside  the  amending  power  of

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Parliament.  However,   clause  (5)   seeks  to   convert  a controlled Constitution into an uncontrolled one by removing the limitation  on the amending power of Parliament which is itself an  essential feature  of the Constitution and it is, therefore, violative of the basic structure. [289B-E] 217 Per contra:      (5)  Section   4  of   the  Constitution  (Forty-second Amendment) Act,  1976 making  amendments in  Article 31C and giving primacy  to  Directive  Principles  over  Fundamental Rights, in case of conflict between them, does not damage or destroy the  basic structure  of  the  Constitution  and  is within  the  amending  power  of  Parliament  and  therefore amended Article 31C is constitutional and valid. [342E-F].      (i) It  is not  correct to  say that Fundamental Rights alone are  based on  Human Rights while Directive Principles fall in  some category  other than Human Rights. Fundamental Rights and  Directive Principles  cannot be  fitted  in  two distinct and  strictly defined  categories. Broadly  stated, Fundamental Rights  represent civil  and  political  rights, while  Directive   Principles  embody  social  and  economic rights. Both  are clearly  part of  broad spectrum  of human rights. Even,  the universal  Declaration  of  Human  Rights adopted by  the General  Assembly of  the United  Nations on 10th December,  1948 contains  not  only  rights  protecting individual freedom  (Articles 1  to 21)  but also social and economic rights intended to ensure socio-economic justice to every one  (Articles 22  to 29). The two other International Covenants adopted by the General Assembly for securing human rights, namely,  the International  Covenant  on  Civil  and Political Rights and the International Covenant on Economic, Social and  Cultural Rights are also to the same effect. The socio-economic rights  embodied in  the Directive Principles are as  much a  part of  human  rights  as  the  Fundamental Rights.  Together,  they  are  intended  to  carry  out  the objectives set  out in  the preamble of the Constitution and to establish  an  egalitarian  social  order  informed  with political, social  and economic justice and ensuring dignity of the  individual not  only to a few privileged persons but to the  entire people of the country including the have-nots and the handicapped, the lowliest and the lost. [320C-H]      Kesavananda Bharati  v. State  of Kerala,  [1973] Supp. SCR, referred to.      (ii)  Although   Fundamental   Rights   and   Directive Principles appear  in the Constitution as distinct entities, there was  no such  demarcation made between them during the period prior  to the  framing of  the Constitution. From the point of view of importance and significance, no distinction was drawn  between justiciable and non-justiciable rights by the Fathers  of the  Constitution and  both were  treated as forming part  of the  rubric of Fundamental Rights, the only difference being  that whereas  the Fundamental  Rights were enforceable in  Courts of  Law, the  Directive Principles of social policy were not to be enforceable. [321A-B, 322C-D]      (iii) To  limit the  potential of Fundamental Rights on the  ground   that  they  are  merely  negative  obligations requiring the  State to  abstain  as  distinct  from  taking positive action is impermissible. [323D-C]      No doubt,  it is  said that the Fundamental Rights deal with negative  obligations of  the State  not to encroach on individual freedom,  while the  Directive principles  impose positive obligations  on the  State to  take certain kind of actions. Though  the  latter  part  may  be  true  that  the Directive Principles  require positive action to be taken by the State,  it is  not wholly  correct that  the Fundamental

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Rights impose  only negative obligations on the State. There are a  few Fundamental  Rights which  have also  a  positive content,  with   the  result  that  new  dimensions  of  the Fundamental Rights  are being opened up by the Supreme Court and the entire jurisprudence of Fundamental Rights is in a 218 stage of  resurgent evaluation.  Moreover, there  are  three Articles, namely,  Article 15(2),  Article 17 and Article 23 within the category of Fundamental Rights which are designed to protect  the  individual  against  the  action  of  other private citizens  and seem to impose positive obligations on the State  to ensure this protection to the individual. [322 F-H, 323 A-B].      Hussainara Khatoon v. State of Bihar, [1979] 3 SCR 160; Madhav Hayawadanrao Hoskot v. State of Maharashtra, [1979] 1 SCR 192  and Sunil Batra etc. v. Delhi Administration & Ors. etc., [1979] 1 SCR 392, followed.      (iv)   The    only   distinguishing   feature   between Fundamental Rights  and Directive Principles of State Policy is that  whereas the  former are made enforceable in a Court of Law the latter are not. They are not justiciable be cause the social  and economic rights and other matters dealt with in  the  Directive  Principles  are  by  their  very  nature incapable  of   judicial  enforcement   and  moreover,   the implementation of  many of those rights would depend on the. state  of   economic  development   in  the   country,   the availability. Of  necessary finances  and  the  government’s assessment of  priority of objectives and values. But merely because the  Directive Principles  are  non-justiciable,  it does not  follow that  they are  in any  way subservient  or inferior to the Fundamental Rights. [323 B-C, E-F].      (v) The  Indian Constitution  is first  and foremost  a social document.  The majority  of its provisions are either directly aimed at furthering the goals cf the socio-economic revolution  or   attempt  to   foster  this   revolution  by establishing the  conditions necessary  for its achievement. The Fundamental  Rights are  no doubt important and valuable in a  democracy, but  there can be no real democracy without social and  economic justice to the common man and to create socio-economic conditions  in which  there can be social and economic justice  to everyone, is the theme of the Directive Principles. It is the Directive Principles which nourish the roots of  a democracy, provide strength and vigour to it and attempt to make it a real participatory democracy which does not remain  merely a  political democracy but also becomes a social  and   economic  democracy  with  Fundamental  Rights available to  all irrespective  of their  power, position or wealth. The  dynamic provisions  of the Directive Principles fertilise the  static provisions  of the Fundamental Rights. The  object   of  the   Fundamental  Rights  is  to  protect individual  liberty,   but  individual   liberty  cannot  be considered in isolation from the socio-economic structure in which it  is to  operate. There is a real connection between individual liberty  and the shape and form of the social and economic structure  of the  society.  There  cannot  be  any individual liberty at all for the large masses of people who are suffering  from want  and privation  and who are cheated out of  their individual rights by the exploitative economic system. Their individual liberty would come in conflict with the liberty  of the  socially and economically more powerful class and  in the  process get  mutilated or  destroyed. The real controversies  in  the  present  day  society  are  not between power  and freedom  but between  one form of liberty and another.  Under the present socio-economic system, it is the liberty of the few which is in conflict with the liberty

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of the  many. The Directive Principles, therefore, impose an obligation on the State to take positive action for creating socio-economic  conditions   in  which   there  will  be  an egalitarian social order with social and economic justice to all so that individual liberty will become a cherished value and the dignity of the individual a living reality, not only for a  few privileged  persons but  for the entire people of the 219 country. Thus,  the Directive  Principles enjoy  a very high place in  the constitutional  scheme and  it is  only in the framework of  the socio-economic  structure envisaged in the Directive  Principles   that  the   Fundamental  Rights  are intended to  operate, for  it is  only then  they can become meaningful and  significant for the millions of our poor and deprived people,  who do  not have even the bare necessities of life and who are living below the poverty level. [323F-G, 324C-H, 325A-B].      (vi) Article  37 of  the Constitution  is an Article of crucial  importance  unlike  the  Irish  Constitution  which provided   the   inspiration   for   introducing   Directive Principles in  our Constitution.  Article 37  says that  the Directive Principles  shall not be enforceable by any court, makes the Directive Principles fundamental in the governance of the  country and  enacts that it shall be the duty of the State to  apply the Directive Principles in making laws. The changes made  by the  framers of  the Constitution are vital and  they   have  the  effect  of  bringing  about  a  total transformation   or   metamorphosis   of   this   provision, fundamentally altering  the significance  and efficacy.  The Directive Principle  are not excluded from the cognizance of the court,  as under the Irish Constitution; they are merely made non-enforceable  by a  court of law. Merely because the Directive Principles  are not enforceable in a court of law, it does  not mean that they are of subordinate importance to any part  of the  Constitution or  that they  cannot  create obligations or duties binding on the State. The crucial test which has  to be applied is whether the Directive Principles impose any  obligations or  duties on the State, if they do, the State  would be  bound by  a constitutional  mandate  to carry  out  such  obligations  or  duties,  even  though  no corresponding right  is created  in any  one  which  can  be enforced in  a court  of law. On this question Article 37 is emphatic and  make the  point in  no uncertain  terms  There could not  have been  more explicit  language  used  by  the Constitution makers to make the Directive Principles binding on the  State and  there can  be no  doubt that the State is under a  constitutional obligation to carry out this mandate contained in  Article 37.  In fact,  non-compliance with the Directive Principles  would be  unconstitutional on the part of the  State and  it would  not only constitute a breach of faith  with  the  people  who  imposed  this  constitutional obligation on  the State  but it  would also  render a vital part of  the Constitution  meaningless and  futile. For  the purpose of  the Directive  Principles, the  "State" has  the same, meaning  as given  to it  under  Article  13  for  the purpose of  the Fundamental Rights. This would mean that the same State  which is  injuncted from  taking any  action  in infringement  of  the  Fundamental  Rights  is  told  in  no uncertain terms that it must regard the Directive Principles as fundamental  in the  governance of  the  country  and  is positively mandated to apply them in making laws. This gives rise to a paradoxical situation and its implications are far reaching. The  State is  on the  one hand  prohibited by the constitutional injunction  in Article 13 from making any law

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or taking  any executive  action which  would  infringe  any Fundamental Right and at the same time it is directed by the constitutional mandate  in Article 37 to apply the Directive Principles in the governance of the country and to make laws for giving  effect to  the Directive  Principles.  Both  are constitutional obligations  of the  State.  When  the  State makes a  law for  giving effect to a Directive Principle, it is carrying out a constitutional obligation under Article 37 and if  it were to be said that the State cannot make such a law because it comes into conflict with a Fundamental Right, it can only be on the basis that Fundamental Rights stand on a  higher   pedestal  and  have  precedence  over  Directive Principles. But it is not correct to say that under 220 our constitutional scheme Fundamental Rights are superior to Directive Principles or that Directive Principles must yield to Fundamental  Rights. Both are in fact equally fundamental and the  courts have,  therefore, tried to harmonise them by importing the  Directive Principles  in the  construction of the Fundamental  Rights. For  the purpose of determining the reasonableness of  the restriction  imposed  on  Fundamental Rights the  court may  legitimately take  into  account  the Directive Principles  and where executive action is taken or legislation enacted  for the  purpose of  giving effect to a Directive Principle,  the restriction  imposed by  it  on  a Fundamental Right  may be  presumed to be reasonable. [325C, E-H, 326A-D, 327H, 328A-H, 329A-B].      State of  Bihar v.  Kameshwar Singh,  [1952]  SCR  889; Pathumma v.  State of Kerala, [1978] 2 SCR 537; M/s. Kasturi Lal Lakshmi  Reddy etc.  v. The  State of  Jammu & Kashmir & Anr., [1980] 3 SCR p. 1338, applied.      State of Madras v. Champkam Dorairajan, [1951] SCR 529. dissented from.      In Re  Kerala Education  Bill, [1959] SCR 995, Referred to.      (vii) If  a law  is enacted  for the  purpose of giving effect to a Directive Principle and it imposes a restriction on a  Fundamental Right,  it would  be difficult  to condemn such restriction  as unreasonable or not in public interest. So also  where a  law is  enacted for  giving  effect  to  a Directive Principle  in furtherance  of  the  constitutional goal of  social and  economic justice it may conflict with a formalistic and doctrinaire view of equality before the law, but it  would almost  always conform  to  the  principle  of equality  before   the  law   in  its  total  magnitude  and dimension, because  the equality  clause in the Constitution does not  speak of  mere formal  equality before the law but embodies the  concept of real and substantive equality which strikes at  inequalities arising  on account  of vast social and economic  differentials and is consequently an essential ingredient of  social  and  economic  justice.  The  dynamic principle of egalitarianism fertilises the concept of social and economic  justice; it  is one  of its essential elements and there  can be  no real social and economic justice where there  is   a  breach  of  the  egalitarian  principle.  If, therefore, there  is a  law enacted by the legislature which is really  and genuinely  for giving  effect to  a Directive Principle with  a view  to  promoting  social  and  economic justice,  such   law  does  not  violate  the  principle  of egalitarianism and  is  in  accord  with  the  principle  of equality before  the law as understood not in its strict and formalistic  sense,   but  in   its  dynamic   and  activist magnitude. In  the circumstances,  the Court  would  not  be unjustified in  making the  presumption that  a law  enacted really and  genuinely  for  giving  effect  to  a  Directive

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Principle in furtherance of the cause of social and economic justice, would  not infringe  any  Fundamental  Right  under Article 14  or 19.  This being the correct interpretation of the constitutional  provisions, the amended Article 31C does no  more   than  codify  the  existing  position  under  the constitutional scheme by providing immunity to a law enacted really and  genuinely  for  giving  effect  to  a  Directive Principle, so  that  needlessly  futile  and  time-consuming controversy whether such law contravenes Article 14 or 19 is eliminated.  The   amended  Article   31C  cannot   in   the circumstances  be   regarded  as   violative  of  the  basic structure of the Constitution. [329F-H, 330A-F].      (viia) A  law enacted  really and  genuinely for giving effect  to  a  Directive  Principle,  in  discharge  of  the constitutional obligation  laid down  upon the  State  under Article 37,  would not  be invalid,  because it  infringes a fundamental right.  If the  Court takes  the view that it is invalid,  it  would  be  placing  Fundamental  Rights  above Directive Principles, a position not supported at all by 221 the history of their enactment as also by the constitutional scheme. The  two A constitutional obligations, one in regard to Fundamental  Rights and  the other in regard to Directive Principles, are  of equal strength and merit and there is no reason why,  in case of conflict, the former should be given precedence over  the latter.  Whether or  not  a  particular mandate of the Constitution is justiciable has no bearing at all on its importance and significance and justiciability by itself can  never be a ground for placing one constitutional mandate on  a higher  pedestal than the other. The effect of giving greater  weightage to  the constitutional  mandate in regard to  Fundamental  Rights  would  be  to  relegate  the Directive Principles  to a secondary position and emasculate the constitutional  command that  the  Directive  Principles shall be fundamental in the governance of the country and it shall be the duty of the State to apply them in making laws. It would  amount to  refusal to  give effect  to  the  words fundamental  in   the  governance  of  the  country"  and  a constitutional  command  which  has  been  declared  by  the Constitution  to  be  fundamental  would  be  rendered  non- fundamental. The  result would be that a positive mandate of the constitution commanding the State to make a law would be defeated by  a negative  constitutional  obligation  not  to encroach upon  a Fundamental  Right and  the law made by the legislature pursuant  to a  positive constitutional  command would be  delegitimised and  declared unconstitutional. This plainly would  be  contrary  to  the  constitutional  scheme because the Constitution does not accord higher place to the constitutional obligation  in regard  to Fundamental  Rights over the  constitutional obligation  in regard  to Directive Principles and  does not  say that the implementation of the Directive Principles  shall only  be within  the permissible limits laid  down in  the  Chapter  on  Fundamental  Rights. [330A, 331A-F].      Karimbil Kunhikoman  v. State  of Kerala,  [1962] I SCR 319 (supra) referred to.      (viii) It  is not correct to say that consequent to the amendment of  Article 31C  the Constitution  is now  made to stand ’on  its head  and not  on its  legs.’  Prior  to  the amendments, Fundamental  Rights had  a superior  or a higher position  in   the  constitutional   scheme  than  Directive Principles and  there is  accordingly no  question at all of any  subversion  of  the  constitutional  structure  by  the amendment. There  can be  no doubt that the intention of the Constitution makers  was that  the Fundamental Rights should

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operate  within  the  socioeconomic  structure  or  a  wider continuum envisaged  by the  Directive Principle,  for  then only would  the Fundamental Rights become exercisable by all and a  proper balance and harmony between Fundamental Rights and Directive  Principles secured.  The Constitution makers, therefore, never  contemplated that  a conflict  would arise between  the   constitutional  obligation   in   regard   to Fundamental Rights  and the constitutional mandate in regard to Directive  Principles.  But  if  a  conflict  does  arise between  these   two  constitutional   mandates   of   equal fundamental  character,   since  the  Constitution  did  not provide any  answer and  perhaps for  the reason that such a situation was  not anticipated, the problem had to be solved by Parliament  and some  modus operandi had to be evolved in order to  eliminate the  possibility of  conflict  howsoever remote it might be. [331G-H, 332A-D].      Parliament  took   the  view  that  the  constitutional obligation in  regard to  Directive Principles  should  have precedence over  the constitutional  obligation in regard to the Fundamental  Rights  in  Articles  14  and  19,  because Fundamental  Rights   though  precious   and  valuable   for maintaining the  democratic way  of life, have absolutely no meaning for the poor, down trodden and economically 222 backward classes  of people who unfortunately constitute the bulk of  the people  of India  and the  only  way  in  which Fundamental Rights  can be  made meaningful  for them  is by implementing the  Directive Principles,  for  the  Directive Principles are  intended to  bring  about  a  socio-economic revolution and  to create  a new  socio-economic order where there will  be social and economic justice for all and every one, not  only a  fortunate few  but the teeming millions of India, would be able to participate in the fruits of freedom and  development   and  exercise   the  Fundamental  Rights. Parliament, therefore,  amended Article  31C with  a view to providing that  in case  of  conflict  Directive  Principles shall  have   precedence  over  the  Fundamental  Rights  in Articles 14  and 19  and the latter shall yield place to the former. The positive constitutional command to make laws for giving effect to the Directive Principles shall prevail over the negative  constitutional obligation  not to  encroach on the Fundamental  Rights embodied  in  Articles  14  and  19. [333C-F].      Parliament made the amendment in Article 31C because it realised that  "if the  State fails  to create conditions in which the  fundamental freedoms could be enjoyed by all, the freedom of  the few will be at the mercy of the man and then all freedoms  will vanish"  and  "in  order,  therefore,  to preserve their  freedom, the privileged few must part with a portion of it." Therefore, it cannot at all be said that the basic structure  af the  Constitution is  affected when  for evolving a  modus vivandi  for resolving  a possible  remote conflict between  two  constitutional  mandates  of  equally fundamental  character,   Parliament  decides   by  way   of amendment of  Article 31C  that in case of such conflict the constitutional mandate  in regard  to  Directive  Principles shall prevail  over the  constitutional mandate in regard to the  Fundamental  Rights  under  Articles  14  and  19.  The amendment  in  Article  31C  far  from  damaging  the  basic structure of the Constitution strengthens and re-enforces it by giving  fundamental  importance  to  the  rights  of  the members of  the community  as against  the rights  of a  few individuals and furthering the objective of the Constitution to build  an egalitarian  social order  where there  will be social and economic justice for all, every one including the

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low visibility areas of humanity in the country will be able to exercise  Fundamental  Rights  and  the  dignity  of  the individual and  the worth  of the  human  person  which  are cherished  values  will  not  remain  merely  the  exclusive privileges of a few but become a living reality for the many [334H, 335A-D].      (ix) The  principle of  egalitarianism is  an essential element of social and economic justice and, therefore, where a law  is enacted for giving effect to a Directive Principle with a  view to  promoting social  and economic  justice, it would not run counter to the egalitarian principle and would not therefore  be violative  of the basic structure, even if it infringes  equality before  the law  in  its  narrow  and formalistic sense.  No law which is really and genuinely for giving effect  to a  Directive Principle can be inconsistent with the  egalitarian principle and therefore the protection granted  to   it  under  the  amended  Article  31C  against violation of  Article 14  cannot have the effect of damaging the basic structure. Therefore, there is no violation of the basic structure involved in the amendment of Article 31C. In fact, one  it is accepted that the unamended Article 31C was constitutionally valid,  it could  only be on the basis that it did  not damage  or destroy  the basic  structure of  the Constitution, it cannot be said that the amended Article 31C is violative of the basic structure. If the exclusion of the Fundamental Rights  embodied in  Articles 14 and 19 could be legitimately  made   for  giving  effect  to  the  Directive Principles set  out in  clauses (b)  and (e)  of Article  39 without affecting the basic structure. these 223 Fundamental Rights  cannot be  excluded for giving effect to the  other   Directive  Principles.  If  the  constitutional obligation in  regard to the Directive Principles set out in clauses (b)  and (c) of Article 39 could be given precedence over  the   constitutional  obligation   in  regard  to  the Fundamental Rights  under Articles  14 and  19, there  is no reason in  principles why such precedence cannot be given to the  constitutional   obligation  in  regard  to  the  other Directive Principles  which stand  on the  same footing.  It would be incongruous to hold tho amended Article 31C invalid when the  unamended Article 31C has been held to be valid by the majority  decision in  Kesavananda Bharati’s  and by the order, in  Waman Rao’s  case, dated  9th May, 1980. [335E-H, 336A-C].      (x) It  is clear  from  the  language  of  the  amended Article 31C  that the  law which is protected from challenge under Articles  14 and 19 is law giving effect to the policy of the  State towards  securing  or  any  of  the  Directive Principles. Whenever,  therefore, any  protection is claimed for a law under the amended Article 31C, it is necessary for the Court  to examine  whether the  law has been enacted for giving effect  to the  policy of  the State towards securing any one  or more  of the Directive Principles and it is only if the  court is  so  satisfied  as  a  result  of  judicial scrutiny that  the court  would accord the protection of the amended Article  31C to such law. Now it is undoubtedly true that the  words used  in the amended Article are "law giving effect to  the policy  of the  State" but  the policy of the State which  is contemplated  there is  the  policy  towards securing one  or more  of the Directive Principles it is the constitutional  obligation   of  the  State  to  secure  the Directive Principles  and that is the policy which the State is required  to adopt and when a law is enacted in pursuance of this  policy of implementing the Directive Principles and it seeks  to give  effect to a Directive Principle, it would

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both from  the point  of grammar and language, be correct to say that  it is  made for giving effect to the policy of the State towards  securing such  Directive Principle. The words "law giving  effect to  the policy  of the State" are not so wide but in the context and collocation in which they occur, they are  intended to  refer only  to a  law enacted for the purpose of  implementing or  giving effect to one or more of the Directive Principles. [337A-F].      (xi) The Court before which protection for a particular law  is   claimed  under  the  amended  Article  31C  would, therefore, have  to examine  whether such law is enacted for giving effect  to a  Directive Principle,  for genuinely  it would have  the protection  of the  amended Article  31C.  A claim that  a particular law is enacted for giving effect to Directive Principles  put forward by the State would have no meaning or  value; it  is the  court  which  would  have  to determine the  question. Again  it is  not enough that there may be  some connection between a provision of the law and a Directive Principle.  The connection  has to  be between the law and  the Directive Principle and it must G be a real and substantial connection. To determine whether a law satisfies this test,  the court  would have  to examine  the pith  and substance, the  true nature and character of the law as also its design  and the subject matter dealt with by it together with its object and scope. If on such examination, the court finds that  the dominant object of the law is to give effect to the  Directive Principle,  it would  accord protection to the law  under the  amended Article  31C. But  if the  court finds that the law though passed seemingly for giving effect to a Directive Principle, is, in pith and substance, one for accomplishing an  unauthorised purpose-unauthorised  in  the sense of  not being  covered by any Directive Principle such law would  not have  the protection  of the  amended Article 31C. The amended Article 31C does not give protection to 224 a law  which has  merely some  remote or  tenuous connection with a Directive. Principle. What is necessary is that there must be  a real  and substantial connection and the dominant object of  the law  must be  to give effect to the Directive Principle, and  that is  a matter which the court would have to decide  before any claim for protection under the amended Article 31C can be allowed. [337F-H, 338A-B, F-G].      The words  used in  the amended  Article 31C  are: "law giving effect  to the  policy of  the State towards securing all or any of the principles laid down in Part IV" and these words on a plain natural construction do not include all the provisions of  law but  only those  which give effect to the Directive Principle. Therefore, it is not every provision of a statute  which has  been enacted with the dominant’ object of giving  effect to  a Directive Principle that is entitled to protection but only those provisions of the statute which are basically and essentially necessary for giving effect to the Directive  Principles are  protected under  the  amended Article 31C.  If there  are  any  other  provisions  in  the statute which  do not  fall within this category, they would not be  entitled to protection and their validity would have to be  judged by  reference to  Articles 14  and 19.  Where, therefore, protection  is claimed  in respect  of a  statute under the amended Article 31C, the court would have first to determine whether  there is  real and substantial connection between  the   law  and   a  Directive   Principle  and  the predominant object  of the  law is  to give  effect to  such Directive Principle and if the answer to this question is in the affirmative, the court would then have to consider which are the  provisions of  the law  basically  and  essentially

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necessary for  giving effect  to the Directive Principle and give protection  of the  amended Article  31C only  to those provisions. The question whether any particular provision of the law  is basically  and essentially  necessary for giving effect to  the Directive Principle, would depend, to a large extent, on  how closely  and integrally  such  provision  is connected  with   the  implementation   of   the   Directive Principle. If the court finds that a particular provision is subsidiary or  incidental or  not essentially and integrally connected with the implementation of the Directive Principle or is  of such  a nature that though seemingly a part of the general design  of the  main provisions  of the statute, the dominant object  is to  achieve an  unauthorised purpose, it would not  enjoy the  protection of  amended Article 31C and would be  liable to be struck down as invalid if it violates Article 14 or 19. [338-G-H, 339A, D-H, 340A-D]      Akadasi Padhan  v. State  of Orissa, [1963] 2 Supp. SCR 691; Rashbihari  Panda etc. v. State of orissa, [1969] 3 SCR 374; M/s.  Vrailal Manilal  & Co.  & ors. v. State of Madhya Pradesh &  Ors., [1970]  1 SCR 400 and R. C. Cooper v. Union of India, [1970] 3 SCR 530, followed.      (xii) If the Court finds that even in a statute enacted for giving  effect to  a Directive  Principle,  there  is  a provision which  is not essentially and integrally connected with the  implementation of  the Directive  Principle or the dominant object  of which  is  to  achieve  an  unauthorised purpose it  would be  outside the  protection of the amended Article 31C and would have to meet the challenge of Articles 14 and 19. [340F-H]      (xiii) Articles  39 to  51 contain Directive Principles referring to certain specific objectives and in order that a law should  be for  giving effect  to one of those Directive Principles, there would be a real and substantial connection between the  law and  the specific objective set out in such Directive Principle.  Obviously, the  objectives set  out in these Directive Principles being specific and limited, every law made  by a  legislature in  the country  cannot possibly have a real and substantial connection with one or the other of these specific 225 objectives. It  is only a limited number of laws which would have a  real A  and substantial  connection with  one or the other  of   the  specific   objectives  contained  in  these Directive Principles  and any  and every  law would not come within this category. [341A-C].      (xiv) Article  38 is  a general  article which stresses the obligation  of the  State to establish a social order in which justice-social,  economic and  political-shall  inform all the  institutions of national life. It no doubt talks of the duty  of the  State to promote the welfare of the people and there can be no doubt that standing by itself this might cover a  fairly wide  area but  the objective set out in the Article is  not merely  promotion  of  the  welfare  of  the people? but  there is a further requirement that the welfare of the  people is  to be  promoted by  the State, not in any manner it  likes, not  according to  its whim and fancy, but for securing  and protecting  a particular  type  of  social order and  that social  order should be such as would ensure social, economic  and political  justice  for  all.  Social, economic and  political justice  is the objective set out in the Directive  Principle  in  Article  38  and  it  is  this objective which is made fundamental in the governance of the country and  which the  State is laid under an obligation to realise. This  Directive Principle  forms the  base on which the entire  structure of  the Directive Principles is reared

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and social,  economic and political justice is the signature tune  of  the  other  Directive  Principles.  The  Directive Principles set out in the subsequent Articles following upon Article 38  merely particularise  and  set  out  facets  and aspects of  the ideal  of  social,  economic  and  political justice articulated in Article 38. [341C-G].      (xv) The concept of social and economic justice may not be very  easy of definition but its broad contours are to be found in  some of  the provisions  of the Fundamental Rights and in  the Directive  Principles and  whenever  a  question arises whether  a legislation is for giving effect to social and  economic   justice,  it  is  with  reference  to  these provisions that  the question  would have  to be determined. There is nothing so vague or indefinite about the concept of social  or   economic  justice   that  almost  any  kind  of legislation could  be justified  under it. Moreover, where a claim for  protection is made in respect of a legislation on the ground  that it  is  enacted  for  giving  effect  to  a Directive Principle,  the Directive Principle to which it is claimed to  be related  would not  ordinarily be the general Directive Principle  set out in Article 38, but could be one of  the   specific  Directive  Principles  set  out  in  the succeeding Articles  because these  latter particularise the concept of  social  and  economic  justice  referred  to  in Article 38.  Therefore, it is not correct to say that if the amendment in  Article 31C were held valid, it would have the effect of  protecting every  possible legislation  under the sun and that would in effect and substance wipe out Articles 14 and  19 from the Constitution. This is a tall and extreme argument,  not   justified  in   the   provisions   of   the Constitution. [341H, 342A-D]. HELD further (concurring with the majority):      6. Clause  (a) of Article 31A is constitutionally valid even on the application of the basic structure test. [290D].      Where any  law  is  enacted  for  giving  effect  to  a Directive  Principle   with  the   view  to  furthering  the constitutional goal  of social  and economic  justice, there would be  no violation  of the  basic structure,  even if it infringes formal equality before the law under Article 14 or any fundamental  right under Article 19. Here, clause (a) of Article 31A  protects a  law of  agrarian  reform  which  is clearly in  the context  of  the  socio-economic  conditions prevailing in 226 India, a  basic requirement  of social  and economic justice and 15 covered by the Directive Principals set out in clause (b) and  (c) of  Article 39  and it  cannot be  regarded  as violating the  basic structure  of the  Constitution. On the contrary, agrarian  reforms leading  to social  and economic justice to  the ..  rural population  is an  objective which strengthens the  basic structure of the Constitution. [290B- D].      Even on  the basis  of the  doctrine of stare decisions the whole of Article 31A is constitutionally valid. The view that Article  31A is  constitutionally valid has been fallen in atleast  three decisions  of the  Supreme Court,  namely, Shankri Prasad’s  case, Sajjan  Singh’s case and Golaknath’s case and  it has hold the field for over 28 years and on the faith of  its correctness  millions of acres of agricultural land have changed hands and now agrarian relations have come into being  transferring  the  entire  rural  economy.  Even though the  constitutional . validity of Article 31A was not tested  in   these  decisions  by  reference  to  the  basic structure doctrine,  the court  would not  be  justified  in allowing the  earlier decisions  to be  reconsidered and the

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question of  constitutional  validity  of  Article  31A  re- opened.  These   decisions  have  given  a  quietus  to  the constitutional challenge against the validity of Article 31A and this  quietus should not now be allowed to be disturbed. [290E, 292D, 294G-H 295A].      Shankri Prasad  v. Union  of India,  [19621 2  SCR  89; Sajjan Singh  v. State  of Rajasthan, [1965] I SCR 933; I.C. Golaknath v. Union of India, [1967] 2 SCR 762; Ambika Prasad Mishra v.  State of  U.P. and  Ors., [1980]  3 SCR  .  1159. followed      It is no doubt true that the Supreme Court has power to review its  earlier decisions  or even  depart from them and the doctrine  of stare  decisions  cannot  be  permitted  to perpetuate erroneous decisions of the court to the detriment of  the   general  welfare  of  the  public.  Certainty  and continuity  are   essential  ingredients  of  rule  of  law. Certainty and  applicability of  law would  be  considerably eroded and suffer a serious set back if the highest court in the land  were ready  to overrule  the views expressed by it in! earlier  decisions even  though that  view has  held the field for  a number  of  years.  It  is  obvious  that  when constitutional problems are brought before the Supreme Court for its decision, complete and difficult questions are bound to arise  and since  the decision  of many of such questions may depend  upon choice  between competing values, two views may be  possible depending  upon the  value judgment  or the choice of values made by the individual judge. Therefore. if one  view   has  been   taken  by  the  court  after  mature deliberation the fact that another Bench is inclined to take another view  would not  justify the  court in reconsidering the earlier  decision and  overrule it. The law laid down by the Supreme  Court is  binding on  all  the  courts  in  the country and  numerous questions  all over  the  country  are decided in  accordance with  the view  taken by  the Supreme Court. Many people arrange their affairs and large number of transactions also take place on the faith of the correctness of the  decision given by the Supreme Court. It would create uncertainty, unstability and confusion if the law propounded by the  Supreme Court  on the  face of  which numerous cases have been  decided and many transactions have taken place is held to  be not the correct law after a number of years. The doctrine of stare decisions is evolved from the maxim "stare decisions et  non  quita  movere"  meaning  "adhere  to  the decision and  not unsettle things which are established" and it is  a useful  doctrine intended  to bring about certainty and uniformity  in  the  law.  But  the  doctrine  of  stare decisions cannot be regarded as a rigid 227 and inevitable doctrine which must be applied at the cost of justice There  may be cases where it may be necessary to rid the doctrine of its petrifying rigidity. The court may in an appropriate case  overrule a  previous decision taken by it, but that  should be done only for substantial and compelling reasons. The power of review must be exercised with due care and caution and only for advancing the public well-being and not merely  because it may appear that the previous decision was based  on an erroneous view of the law. It is only where the perpetuation of the earlier decision would be productive of mischief  or inconvenience  or would  have the  effect of deflecting the  nation from the course which has been set by the Constitution-makers  or "where  national crisis of great moment to  the life,  liberty and safety of this country and its millions  are at  stake or  the basic  direction of  the nation itself  is in  peril of  a shake  up", that the court would be justified in reconsidering its earlier decision and

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departing from  it. It  is  fundamental  that  the  nation’s constitution should  not be  kept in constant uncertainty by judicial review  every now  and then,  because otherwise  it would paralyse  by perennial  suspense all  legislative  and administrative action  on vital issues. The court should not indulge in judicial stabilisation of State action and a view which has  been accepted  for a  long period  of time  in  a series of  decisions and  on tho  faith of which millions of people have  acted and  a large  number of transactions have been effected  should not  be  disturbed.  [292G-H,  293A-H, 294A-D].      Ambika Prasad  Mishra v. State of U.P. and Anr., [1980] 3 SCR p. 1159. followed.      (7) Article 31B was conceived together with Article 31A as part  of the  same design  adopted to  give protection to legislation  providing  for  acquisition  of  an  estate  or extinguishment or  modification of  any rights in an estate. [295E-F].      The Ninth  Schedule of  Article 31B was not intended to include laws  other  than  those  covered  by  Article  31A. Articles 31A  and 31B  were thus  intended to serve the same purpose of  protecting  the  legislation  falling  within  a certain category.  It was a double barreled protection which was intended to be provided to this category of legislation, since it was designed to carry out agrarian reform which was so essential  for bringing  about a revolution in the socio- economic structure of the country: [295F, H, 296A]      Since all  the earlier  constitutional amendments  were held valid  on the  basis of  unlimited  amending  power  of Parliament recognised  in Shankri  Prasad’s case  and Sajjan Singh’s case and were accepted as valid in Golakhnath’s case and the  Twenty Ninth  Amendment Act  was also held valid in Kesavananda Bharati’s case, though not on the application of the basic structure test and these constitutional amendments have been  recognised as  valid over  a number  of years and moreover, the  statutes intended to be protected by them are all falling  within Article  31A with the possible exception of only  four Acts,  it would not be justified in re-opening the question  of validity  of these constitutional amendment and hence these amendments are valid. [297F-H].      But  all   constitutional  amendments  made  after  the decision in  Kesavananda Bharati’s  case would  have  to  be decided by  reference to  the basic  structure doctrine, for Parliament would  then have no excuse for saying that it did not known  the limitation  on its amending power. Now out of the statutes  which are  or may in future be included in the Ninth Schedule  by subsequent  constitutional amendments, if there are any which fall within a category covered 228 by  Article  31A  or  31C,  they  would  be  protected  from challenge under  Articles 14  and 19  and it  would  not  be necessary to  consider whether their inclusion. in the Ninth Schedule is  constitutionally valid,  except in  those  rare cases where  protection may  be  claimed  for  them  against violation of  any other.  fundamental rights.  This question would primarily arise only in regard to statutes not covered by Article  31A or  31C and  in case  of such  statutes, the Court would  have to  consider  whether  the  constitutional amendments including  such statutes  in the  Ninth  Schedule violate the  basic structure of the Constitution in granting them immunity  from challenge  of the fundamental rights. It is possible  that in  a given  case even an abridgement of a fundamental  right   may  involve  violation  of  the  basic structure. It  would all  depend on the nature of the nature of the  fundamental right,  the  extent  and  depth  of  the

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infringement, the purpose for which the infringement is made and its  impact on the basic values of the Constitution. For example, right  to life  and personal  liberty enshrined  in Article 21,  stands on  an altogether different footing from other fundamental  rights.  If  this  fundamental  right  is violated by  any legislation, it may be difficult to sustain a constitutional  amendment  which  seeks  to  protect  such legislation against  challenge under  Article  21.  So  also where a  legislation which  has nothing  to do with agrarian reform or  any Directive  Principles infringes  the equality clause contained  in Article  14  and  such  legislation  is sought to  be protected  by a  constitutional  amendment  by including it  in the  Ninth Schedule,  it may be possible to contend that  such constitutional  amendment is violative of the egalitarian  principle which  forms part  of  the  basic structure.  However,   other  situations   may  arise  where infarction of a fundamental right by a statute, is sought to be  constitutionally   protected  might   effect  the  basic structure of  the Constitution.  In every  case,  therefore, where a  constitutional  amendment  includes  a  statute  or statutes in the. Ninth Schedule, its constitutional validity would have  to be  considered by  E. reference  to the basic structured doctrine  and such constitutional amendment would be liable  to be  declared invalid to the extent to which it damages or  destroys the basic structure of the Constitution by according  protection against violation of any particular fundamental right. [297H, 298C-H, 299A-B].      (8) Even  on principle, the first part of the unamended Article 31C  is constitutionally  valid. In view of the fact that the first part of the unamended Article 31C was held to be  constitutionally  valid  by  the  majority  decision  in Keshavananda   Bharati’s   case,   the   question   of   its constitutional validity  cannot be  again  reopened.  It  is true, that  the ratio  decidendi of  Keshavananda  Bharati’s case was  that the  amending power  of Parliament is limited and Parliament cannot in exercise of the power m f amendment alter the  basic  structure  of  the  Constitution  and  the validity of  every constitutional  amendment has, therefore, to be  judged by  applying the test whether or not it alters the basic  structure of  the Constitution  and this test was not  applied   by  the  six  learned  Judges,  though  their conclusion regarding  constitutionality of the first part of the unamended  Article 31C  is valid.  Irrespective  of  the reasons which weighed with each one of the Judges who upheld the validity of the first part of the unamended Article 31C, the reasons for reaching the said conclusion would certainly have a  bearing on  the determination of the ratio decidendi of the  case and  the ratio  decidendi  would  certainly  be important  for  the  decision  of  future  cases  where  the validity of  the first  part or the unamended Article 31C is concerned, it  was  in  so  many  terms  determined  by  the majority decision  in Keshavananda  Bharati’s case, and that decision binds. [300E-H, 301A-D, 302C] 229      What the  first part  of the unamended Article 31C does is merely  to abridge  the fundamental rights in Articles 14 and 19  by excluding the applicability to legislation giving effect  to   the  policy  towards  securing  the  principles specified in  clauses (b)  and (c)  of Article 39. The first part of  the unamended  Article 31C is basically of the same genre as  Article 31A with only this difference that whereas Article 31A  protects laws relating to certain subjects, the first part  of the  unamended Article  31C deals  with  laws having  certain   objectives.  There   is   no   qualitative difference between  Article 31A  and the  first part  of the

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unamended Article 31C in so far as the exclusion of Articles 14 and  19 is concerned. The fact that the provisions to the first  part   of  the   unamended  Article   31C  are   more comprehensive and  have greater  width compared  to those of Article 31A  does not  make any  difference in principle. If Article 31A is constitutionally valid, the first part of the unamended Article cannot be held to be unconstitutional. The first part  of the unamended Article 31C, in fact, stands on a more  secure footing because it accords protection against infraction of  Articles 14 and 19 to legislation enacted for giving effect to the Directive Principles set out in clauses (b) and  (c) of Article 39. The legislature in enacting such legislation acts  upon the  constitutional mandate contained in Article  37 according  to which  the Directive Principles are fundamental  in the  governance of the country and it is the duty  of the  State to  apply those principles in making laws. It  is  for  the  purpose  of  giving  effect  to  the Directive Principles  set out  in clauses  (b)  and  (c)  of Article 39  in discharge  of the  constitutional  obligation laid upon the State under Article 37 that fundamental rights in Articles  14  and  19  are  allowed  to  be  abridged.  A constitutional amendment, therefore, making such a provision cannot be  condemned as  violative of the basic structure of the Constitution. [301E-H, 302A-C].      (9) Even  if the  Constitution (Fortieth Amendment Act, 1976  is  unconstitutional  and  void  and  the  Maharashtra Agricultural Lands  (Lowering of  Ceiling on  Holdings)  and (Amendment) Act,  1972 (Act  11 of  1975), the . Maharashtra Agricultural Lands  (Lowering of  Ceiling on  Holdings)  and (Amendment)  Act,   1975,  (Act   XLVII  of  1945)  and  the Maharashtra Lands (Ceiling on holdings) Amendment Act, 1975, (Act II of 1976) have not been validly included in the Ninth Schedule so  as to  earn the protection of Article 31B, they are still  saved from invalidation by Article 31A and so far as the  Constitution (Forty  Second Amendment) Act, 1976, is concerned, it is outside the constituent power of Parliament in so  far as  it seeks  to include  clauses (4)  and (S) in Article 368. [302C-D, G-H].      It is  clear on  a plain  natural construction  of  its language  that  under  the  proviso  to  Article  83(2)  the duration of  the Lok Sabha could be extended only during the operation of  a proclamation of emergency and if, therefore, no  proclamation  of  emergency  was  in  operation  at  the relevant time,  the House  of People (Extension of Duration) Act, 1976  would be  outside the  competence  of  Parliament under the  proviso to  Article 83(2).  Again the language of Article 352  (1) makes  it clear that the President can take action under  this clause  only if he satisfies that a grave emergency exists  whereby the  security of India or any part of the  territory thereof  is threatened,  whether by war or external   aggression    or   internal    disturbance.   The satisfaction of the President "that a grave emergency exists whereby the security of India.. is threatened whether by war or  external   aggression  or  internal  disturbance"  is  a condition precedent  which  must  be  fulfilled  before  the President can  issue a proclamation under Article 352 clause (1).  When   this  condition  precedent  is  satisfied,  the President may exercise the power under clause (1) of Article 352   and   issue   a   proclamation   of   emergency.   The constitutional implications of a 230 declaration of  emergency. under  Article 352 clause (1) are vast and  they are provided in Articles 83(2), 250, 353, 358 and  359.  The  emergency  being  an  exceptional  situation arising out  of a  national crisis certain wide and sweeping

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powers have  been conferred  on the  Central Government  and Parliament with  a view  to combat the situation and restore normal conditions.  One such  power is that given by Article 83(2) which  provides that while a proclamation of emergency is in  operation, Parliament  may by law extend its duration for a  period not  exceeding one  year at  a  time.  Further several drastic  consequences ensue  upon the  making  of  a declaration of  emergency. The  issue of  a proclamation  of emergency  makes  serious  inroads  into  the  principle  of federalism and emasculates the operation and efficacy of the Fundamental Rights.  The power of declaring an emergency is, therefore, a  power fraught  with grave  consequences and it has the  effect of  disturbing the  entire  power  structure under the Constitution. But it is a necessary power given to the Central  Government with  a view to arming it adequately to meet  an exceptional  situation arising  out of threat to the security  of the  country on  account of war or external aggression or internal disturbance or imminent danger of any such calamity.  It is,  therefore, a  power which  has to be exercised with  the greatest  care and  caution  and  utmost responsibility [303A-B-306E-H, 307E-G].      (10) There  is no  bar to  the judicial  review of  the validity of  a  proclamation  of  emergency  issued  by  the President under Article 352 clause (1). [308B-C].      If a  question brought  before the  court is  purely  a political question  not involving determination of any legal or constitutional  right or  obligation, the court would not entertain  it,  since  the  court  is  concerned  only  with adjudication of legal rights and liabilities. Merely because a question  has a political colour the court cannot fold its hands in  despair and  declare "judicial hands off". So long as  the   question  is   whether  an   authority  under  the Constitution has  acted within  the limits  of its  power or exceeded it,  it can  certainly be  decided  by  the  court. Indeed it  would be  its constitutional obligation to do so. The court  is the  ultimate interpreter  of the Constitution and when  there is manifestly unauthorised exercise of power under the  Constitution, it  is the  duty of  the  court  to intervene. In  fact, to  this Court  as  much  as  to  other Branches of  Government is  committed the  conservation  and furtherance of constitutional values. The Court’s task is to identify those values in the constitutional plan and to work them into  life in the cases that reach the Court. "Tact and wise restraint ought to temper any power but courage and the acceptance of  responsibility have  their  place  too’.  The Court  cannot  and  should  not  shirk  this  responsibility because  it   has  sworn  the  oath  of  allegiance  to  the Constitution and  is also  accountable to the people of this country. It  would not, therefore, be right for the Court to decline to  examine whether  in a  given case  there is  any constitutional violation involved in the President issuing a proclamation of  emergency under  clause (1) of Article 352. [308D, F, 309A-C].      The constitutional  jurisdiction of this Court does not extend further  than saying  whether the limits on the power conferred by  the Constitution  on the  President have  been observed or  there is transgression of such limits. The only limit on the power of the President under Article 352 clause (1) is  that the  President should be satisfied that a grave emergency exists  whereby the  security of India or any part thereof is  threatened whether by war or external aggression or internal  disturbance. The  satisfaction of the President is a  subjective one  and cannot  be decided by reference to any  objective  tests.  It  is  deliberately  and  advisedly subjective because the matter in respect’ to

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231 which he  is to  be satisfied  is of  such a nature that its decision must necessarily be left to the Executive Branch of Government. There  may be  a wide  range of situations which may arise  and their political implications and consequences may have  to . be evaluated in order to decide whether there is a  situation of grave emergency by reason of the security of  the   country  being   threatened  by  war  or  external aggression or  internal disturbance.  It would  largely be a political judgment based on assessment of diverse and varied factors, fast  changing situations,  potential  consequences and a  host of other imponderables. It cannot, therefore, by its very nature, be a fit subject matter for adjudication by judicial methods  and materials  and hence it is left to the subjective satisfaction  of the  Central Government which is best in  a position  to decide  it. The Court cannot go into the question  of correctness  or adequacy  of the  facts and circumstances on  which  the  satisfaction  of  the  Central Government is  based. That would ba a dangerous exercise for the Court,  both because  it is  not a  fit  instrument  for determining a  question of  this land  and also  because the Court would. thereby usurp the function of the executive and in doing  so enter  the "political  thicket" which  it  must avoid if  it is  to retain  its legitimacy  with the people. But, if  the satisfaction is mala fide or is based on wholly extraneous and  irrelevant  ground,  the  Court  would  have jurisdiction to  examine it because in that case there would be no  satisfaction of the President in regard to the matter on which  he is required to be satisfied The satisfaction of the President  is a  condition precedent  to the exercise of power under  Article 352  clause (1)  and if it can be shown that there  is no  satisfaction of the President at all, the exercise of  the power  would be  constitutionally  invalid. [309C-H, 310A-B].      It is  true that  by reason of clause (5)(a) of Article 352, the  satisfaction of  the President  is made  final and conclusive and  cannot be  assailed on  any ground, but, the power of judicial review is a part of the basic structure of the Constitution and hence this provision debarring judicial review would  be open  to attack  on the  ground that  it is unconstitutional and  void as  damaging  or  destroying  the basic structure.  This attack against constitutionality can, however, be  averted by  reading the  provision to mean that the immunity  from challenge  granted by  it does  not apply whore the challenge is not that the satisfaction is improper or unjustified  but that there is no satisfaction at all. In such a  case it  is not  the satisfaction  arrived at by the President which  is challenged  but  the  existence  of  the satisfaction itself.  Where, therefore,  the satisfaction is absurd or  perverse or  mala  fide  or  based  on  a  wholly extraneous and irrelevant ground it would be no satisfaction at all  and it  would be  liable to  be challenged  before a court notwithstanding  clause  (5)(a)  of  Article  352.  No doubt, in most cases it would be difficult if not impossible to challenge the exercise of’ power under Article 352 clause (1) even  on this  limited  ground  because  the  facts  and circumstances on  which the  satisfaction is based would not be known,  but where  it is  possible the  existence of  the satisfaction can  always be challenged on the ground that it is mala  fide or  based on a wholly extraneous or irrelevant ground. [310C-F].      Gormallion v.  Lightfoot, [1960]  364 US 339; Backer v. Carr, [1962] 369 US 186, quoted with approval.      State of Rajasthan v. Union of India, [1977] 3 SCC 592, followed.

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    Gulam Sarwant  v. Union  of India,  [1967] 2  SCR  271; Bhutnath Mato  v. State  of West  Bengal, [1974]  1 SCC 645, explained. 232      (11) on  a plain  natural interpreation of the language of sub-clauses  (a) to (c) of clause (2) that so long as the proclamation  of   emergency  is   not  revoked  by  another proclamation under  sub-clause (2)(a),  it would continue to be in  operation irrespective  of change  of  circumstances. [312C].       Lakhan  Pal v.  Union of  India, [1966] Supp. SCR 209, applied.      It is  true that  the power to revoke a proclamation of emergency is vested only in the Central Government and it is possible that the Central Government may abuse this power by refusing to  revoke a  Proclamation of Emergency even though the circumstances  justifying the issue of Proclamation have ceased to  exist and  thus prolong  baselessly the  state of emergency obliterating  the Fundamental  Rights and this may encourage totalitarian  trend.  But  the  primary  and  real safeguard of the citizen against such abuse of power lies in "the  good  sense  of  the  people  and  in  the  system  of representative and responsible Government" which is provided in the  Constitution. Additionally,  it may  be possible for the citizen  in a given case to move the court for issuing a writ of  mandamus for revoking Proclamation of Emergency, if he is  able to  show by  placing clear  and cogent  material before the  court that  there is no justification at all for the continuance  of the  Proclamation of Emergency. But this would be  a very heavy onus because it would be entirely for the Executive Government to be satisfied whether a situation has arisen  where  the  Proclamation  of  Emergency  can  be revoked. There  would be so many facts and circumstances and such diverse  considerations to be taken into account by the Executive Government  before it  can be satisfied that there is no  longer any  grave Emergency  whereby the  security of India  is  threatened  by  war  or  external  aggression  or internal disturbance.  This is not a matter which is fit for judicial determination  and the  court would  not  interfere with the  satisfaction of  the Executive  Government in this regard unless  it is  clear on  the material  on record that there is  absolutely no justification for the continuance of the Proclamation  of Emergency and the Proclamation is being continued mala  fide or  for a collateral purpose. The court may in  such a case, if satisfied, beyond doubt grant a writ of mandamus  directing the  Central Government to revoke the Proclamation of  Emergency.  But  until  that  is  done  the Proclamation of Emergency would continue in operation and it cannot  be   said  that   though  not   revoked  by  another Proclamation it  has still  ceased to  be in  force. In  the present  case,   it  was   common  ground   that  the  first Proclamation of  Emergency issued  on 3rd December, 1971 was not revoked  by another  Proclamation under clause (2)(a) of Article 352 until 21st March, 1977 and hence at the material lime when  the House  of People (Extension of Duration) Act, 1976, was  passed the first Proclamation of Emergency was in operation. [312F-H, 313A-F.].      If the first Proclamation of Emergency was in operation at the  relevant time it would be sufficient compliance with the requirement  of the  proviso to clause (2) of Article 83 and it  would be  unnecessary to consider whether the second Proclamation  of   Emergency  was   validly  issued  by  the President. [313E-F].      (12) The  House of  People (Extension of Duration) Act, 1976, was enacted under the proviso to clause (2) of Article

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83 for  the purpose  of extending  the duration  of the  Lok Sabha and  it was  a condition  precedent to the exercise of this power by Parliament that there should be a Proclamation of Emergency  in operation  at the  date when  the  Act  was enacted. The  words "while  the  Proclamation  of  Emergency issued on the 3rd day of December, 1971 233 and on  the 25th  day of  June, 1975  are both in operation" were  introduced   ,  merely   by  way  of  recital  of  the satisfaction of  the condition  precedent for justifying the exercise of  the power  under the  proviso to  clause (2) of Article 83  and  they  were  not  intended  to  lay  down  a condition for the operation of section 2 of the Act. Section 2 clearly  and in so many terms extended the duration of the Lok Sabha  for a  period of  one year  and extension was not made dependent  on both the Proclamations of Emergency being in operation at the date of the enactment of the Act. It was for a  definite period  of one  year that  the extension was effected and  it was  not co-extensive with the operation of both the  Proclamations of  Emergency. The  extension for  a period of one year was made once for all by the enactment of section 2  and the  reference to  both the  Proclamations of Emergency being  in operation  was merely for the purpose of indicating that both the Proclamations of Emergency being in operation, Parliament  had competence to make the extension. It was,  therefore, not at all necessary for the efficacy of the extension  that  both  the  Proclamations  of  Emergency should be  in operation at the date of enactment of the Act. Even if  one Proclamation  of Emergency  was in operation at the material  date it  would be  sufficient to  attract  the power of  Parliament under  the proviso to Article 83 clause (2) to  enact the  Act extending  the duration  of  the  Lok Sabha. No doubt, Parliament proceeded on the assumption that both the  Proclamations of  Emergency were  in force  at the relevant date  and they  invested Parliament  with power  to enact the  Act. but even if this legislative assumption were unfounded it  would not  make any difference to the validity of the  exercise of  the power  so long  as  there  was  one Proclamation of  Emergency  in  operation  which  authorised Parliament to extend the duration of the Lok Sabha under the proviso to  clause (2)  of Article  83. It  is true that the proviso to  section 2  enacted that if both or either of the Proclamations of Emergency cease or ceases to operate before the expiration  of the  extended period of one year, the Lok Sabha shall  continue until  six months  after the ceaser of operation of  the said  Proclamations or  Proclamation,  not going beyond the period of one year, but the opening part of this proviso  can have  application only  in relation  to  a Proclamation of Emergency which was in operation at the date of enactment of the Act. If such a Proclamation of Emergency which was  in operation  at  the  material  date  ceased  to operate before  the expiration of the extended period of one year, then  the term  of the Lok Sabha would not immediately come to  an end,  but it would continue for a further period of six  months but  not so  to exceed the extended period of one year. This provision obviously could have no application in relation  to the  second Proclamation  of Emergency if it was  void   when  issued.   In  such   a  case,  the  second Proclamation not  being valid  at all  at the  date of issue would not  be in  operation at all and it would not cease to operate after the date of. enactment of the Act. The proviso would in  that event have to be read as relating only to the first Proclamation  of Emergency, and since the Proclamation of Emergency  continued until  it was revoked on 21st March, 1977, the duration of the Lok Sabha was validly extended for

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a period  of one  year from 18th March, 1976 and hence there was a  validly constituted  Lok Sabha  on the dates when the Constitution  (Fortieth   Amendment)  Act,   1976  and   the Constitution  (Forty-second   Amendment)  Act,  1976,  were. passed by Parliament. (314G-H, 315A-H, 316A-C].      (In view  of the  settled practice of the Supreme Court not to  say any more than is necessary to get a safe resting place for  the  decision,  His  Lordship  did  not  consider whether the  second Proclamation  of Emergency  was  validly issued.) 234

JUDGMENT:      ORIGINAL JURISDICTION:  WRIT PETITION  Nos. 356-361  OF 1977.            (Under Article 32 of the Constitution)      N. A. Palkhiwala, J. B. Dadachanji, Ravinder Narain, O. C. Mathur, H. P. Raina, S. Swarup, K. 1. John, Talat Ansari, Mrs. A.  K. Verma,  S. Thakora, Shri Narain, Robinson, F. S. Nariman, A.  N. Haksar, J. S. Singh and Manzal Kumar for the Petitioners      L. N.  Sinha, Att.  Genl., K.  K. Venugopal, Addl. Sol. Genl., R. N. Sachthey, Grish Chandra, S. Markendaya, Miss A. Subhashini and P. P. Singh for RR. 1 & 4.      T.V.S.  Narasimhachari,   M.  S.   Ganesh  and  Kailash Vasudeva for RR 2 & 3.      L.  N.  Sinha,  Att.  Genl.,  Miss  A.  Subhashini  for Attorney General of India.      M. N.  Shroff for  the Advocates  General for  State of Maharashtra      M. M.  Ahdul Khader  and K. R. Nambiar for the Advocate General for Kerala State.      N. Nettar  for  the  Advocates  General  for  state  of Karnataka State.      Pranat Kumar  Chatterjee, G.  S. Chatterjee  and P.  K. Chatterjee for State of West Bengal.      B. M.  Patnaik Advt. Genl. and R. K. Mehta for State of Orissa.      S. L.  Garg, Adv.  Genl and  S. K. Gambhir for State of Madhya Pradesh.      R.  K.   Rastogi,  Adv.   Genl,  Badridas   Sharma  and Aruneshwar Gupta for State of Rajasthan.      M. V. Goswami and O. P. Rana for State of U.P.      P. H.  Parekh for  the interveners,  M/s, Domestic Cast Pvt. Ltd.  and ors.  Gocul Gas  Pvt. Ltd. and ors. and Parel Investment Pvt. Ltd. and Ors.      M. N.  Phadke and  N.  M.  Ghatate  for  the  Applicant interveners M/s. Waman Rao and Ors.      R.  K.  Garg  and  V.  1.  Francis  for  The  Applicant Intervener Shyam Narain Tewari.      Chinta Subba Rao Applicant intervener in person.      M. C.  Bhandare and  M. N.  Shroff applicant intervener for State of Maharashtra. 235      Capt. Virendra Kumar applicant intervener in person. A      N. S.  Grewal, B. P. Maheshwari and Suresh Sethi for G. S. Grewal applicant intervener.      H. K.  Puri. for the intervener M/s Shree Sitaram Sugar Co. Ltd.      The following Judgments were delivered: B      CHANDRACHUD, C.  J.-In Keshavananda  Bharati this Court held by  a majority that though by Article 368 Parliament is given the power to amend the Constitution. that power cannot

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be exercised  so as  to damage  the basic  features  of  the Constitution or  so as  to destroy  its basic structure. The question for  consideration in this group of petitions under article 32  is whether sections 4 and 55 of the Constitution (42nd Amendment)  Act, 1976  transgress that  limitation, on the amending power.      Petitioner No.  1 which  is a  limited company  owned a textile undertaking  called Minerva  Mills situated  in  the State of  Karnataka. This  undertaking was  nationalised and taken over by the Central Government under the provisions of the Sick  Textile Undertakings  (Nationalisation) Act, 1974. Petitioners 2  to 6  are shareholders  of Petitioner  No. 1, some of  whom are  also unsecured creditors and some secured creditors.      Respondent 1 is the Union of India. Respondent 2 is the National Textile  Corporation Limited  in which  the textile undertaking of  Minerva  Mills  comes  to  be  vested  under section 3(2)  of the Nationalisation Act of 1974. Respondent 3 is a subsidiary of the 2nd respondent.      On August  20, 1970, the Central Government appointed a Committee under  section 15  of the  Industries (Development and Regulation  Act,  1951  to  make  a  full  and  complete investigation of  the affairs  of the Minerva Mills Ltd., as it was  of the  opinion that there had been or was likely to be substantial  fall in  the volume  of production. The said Committee submitted  its report to the Central Government in January 1971,  on the  basis of which the Central Government passed an  order dated October 19, 1971 under section 18A of the Act  of 1951,  authorising Respondent 2 to take over the management of  the Minerva Mills Ltd. On the ground that its affairs were being managed in a manner highly detrimental to public interest. 236      By  these  petitions,  the  petitioners  challenge  the constitutional validity  of certain  provisions of  the Sick Textile Undertakings  (NationaLisation) Act and of the order dated October 19, 1971. We are not concerned with the merits of that  challenge at  this stage  the  petitioners  further challenge the  constitutionality of  the Constitution  (39th Amendment) Act  which inserted  the impugned Nationalisation Act as  Entry 105  is the  9th Schedule to the Constitution. That raises a question regarding the validity of article 31B of the Constitution with which we propose to deal in another batch of  petitions. Finally,  the petitioners challenge the constitutionality Of  sections 4  and 55 of the Constitution (42nd Amendment)  Act, 1976, and it is this contention alone with which we propose to deal in these petitions.      The challenge  to the  validity of  section 4 and SS of the 42nd  Amendment rests  on  the  ratio  of  the  majority judgment in Kesavanand Bharati (Supra). The several opinions rendered in  that case  have  been  discussed  and  analysed threadbare in  texts and  judgments too numerous to mention. All the  same, we  cannot avoid making a brief resume of the majority judgments  since the petitioners must stand or fall by them.  Those judgments,  on the  point now in issue, were delivered by  Sikri, CJ.,  Shelat and  Grover JJ., Hegde and Mukherjea JJ., Jaganmohan Reddy J. and Khanna J.      Sikri, CJ., held that the fundamental importance of the freedom of  the individual has to be preserved for all times to come  and that  it could  not be amended out of existence According to  the learned  Chief Justice, fundamental rights conferred  by   Part  III  of  the  Constitution  cannot  be abrogated, though  a reasonable  abridgement of those rights could be  effected in public interest. There is a limitation on the power of amendment by necessary implication which was

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apparent from  a reading  of  the  preamble  and  therefore, according to  the  learned  Chief  Justice,  the  expression "amendment of  this Constitution"  in Article  368 means any addition  or   change  in  any  of  the  provisions  of  the Constitution within the broad contours of the preamble, made in  order   to  carry   out  the  basic  objectives  of  the Constitution.   Accordingly,    every   provision   of   the Constitution  was  open  to  amendment  provided  the  basic foundation or  structure of the Constitution was not damaged or destroyed.      Shelat and  Grover, JJ.  held that  the preamble to the Constitution contains  the clue  to the  fundamentals of the Constitution. According to the learned Judges, Parts III and IV  of   the  Constitution  which  respectively  embody  the fundamental rights and the directive principles 237 have to be balanced and harmonised. This balance and harmony A between  two integral  parts of  the Constitution  forms a basic element  of the  Constitution which cannot be altered. The word ’amendment’ occurring in Article 368 must therefore be construed in such a manner as to reserve the power of the Parliament to  amend the  constitution, but  not  so  as  to result in  damaging or destroying the structure and identity of the Constitution. There was thus an implied limitation in the  amending   power  which   precluded   Parliament   from abrogating or  changing the  identity of the Constitution or any of its basic features.      Hegde and  Mukherjea, JJ. held that the Constitution of India which  is essentially a social rather than a political document, is  founded on a social philosophy and as such has two main  features: basic  and  circumstantial.  The!  basic constituent  remained   constant,  the   circumstantial  was subject to  change. According  to the  learned  Judges,  the broad contours  of the  basic elements  and the  fundamental features of  the Constitution are delineated in the preamble and the  Parliament has  no power  to abrogate or emasculate those basic  elements or  fundamental features. The building of a welfare State, the learned Judges said, is the ultimate goal of  every Government  but that  does not  mean that  in order to  build a  welfare state,  human  freedoms  have  to suffer  a  total  destruction.  Applying  these  tests,  the learned Judges invalidated Article 31C even in its unamended form.      Jaganmohan Reddy,  J., held  that the  word ’amendment’ was used  in the  sense of  permitting a  change, in contra- distinction, to  destruction, which the repeal or abrogation brings about. Therefore, the width of the power of amendment could not be enlarged by amending the amending power itself. The learned  Judge held  that the  essential elements of the basic structure  of the  Constitution are  reflected in  its preamble and  that some  of the  important features  of  the Constitution are justice, freedom of expression and equality of status  and opportunity.  The word  ’amendment’ could not possibly embrace  the right to abrogate the pivotal features and the fundamental freedoms and therefore, that part of the basic structure could not be damaged or destroyed. According to the learned Judge, the provisions of Article 31C. as they stood then,  conferring power  on Parliament  and the  State Legislatures  to   enact  laws  for  giving  effect  to  the principles specified  in clauses  (b) and (c) of Article 39, altogether abrogated  the right given by Article 14 and were for that reason unconstitutional. In conclusion, the learned Judge held  that though  the power of amendment was wide. it did  not   comprehend  the  power  to  totally  abrogate  or emasculate or  damage any  of the  fundamental rights or the

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essential  elements   on  the   basic   structure   of   the Constitution or to 238 destroy the  identity of  the Constitution. Subject to these limitations, Parliament had the right to amend any and every provision of the Constitution.      Khanna, J.  broadly agreed  with the aforesaid views of the six  learned Judges  and held  that the word ’amendment’ postulated that  the Constitution  must survive without loss of its  identity, which  meant that  the basic  structure or framework of  the Constitution must survive any amendment of the Constitution.  According to  the learned Judge. although it was  permissible to  the Parliament.  in exercise  of its amending  power,  to  effect  changes  so  as  to  meet  the requirements of  changing conditions  it was not permissible to touch  the foundation or to alter the basic institutional pattern.   Therefore,    the   words   "amendment   of   the Constitution", in   spite of the width of their sweep and in spite of  their amplitude,  could not  have  the  effect  of empowering the  Parliament to  destroy or abrogate the basic structure or framework of the Constitution.      The summary  of the  various judgments  in  Kesavananda Bharati (Supra)  was signed  by nine  out  of  the  thirteen Judges. Paragraph  2  of  the  summary  reads  to  say  that according to  the majority,  "Article 368  does  not  enable Parliament to  alter the basic structure or framework of the Constitution". Whether  or not  the summary  is a legitimate part of  the judgment,  or is per incuriam for the scholarly reasons cited by authors, it is undeniable that it correctly reflects the majority view.      The question which we have to determine on the basis of the  majority  view  in  Keshavaananda  Bharati  (Supra)  is whether the  amendments introduced  by sections  4 and 55 of the Constitution (42nd Amendment) Act, 1976 damage the basic structure of the Constitution by destroying any of its basic features or essential elements.      Section 4 of the 42nd Amendment, which was brought into force with  effect from  January 3, 1977 amended Article 31C of the  Constitution by  substituting the  words and figures "all or  any of the principles laid down in Part IV" for the Words and figures "the principles specified in clause (b) or clause (c)  of Article  39". Article  31C. as amended by the 42nd Amendment Act reads thus:           "31C.  Notwithstanding   anything   contained   in      article 13.  no law  giving effect to the policy of the      State towards  securing all  or any  of the  principles      laid down  in Part IV shall be deemed to be void on the      ground that it is inconsistent with, or takes 239      away or abridges any of the rights conferred by article      14, A article 19 or article 31; and no law containing a      declaration that it is for giving effect to such policy      shall be  called in question in any court on the ground      that it does not give effect to such policy:           Provided that  where  such  law  is  made  by  the      Legislature of  a State, the provisions of this article      shall not  apply thereto  unless such  law, having been      reserved for  the consideration  of the  President, has      received his assent."           Section  55   of  the  Constitution  (Forty-second Amendment) Act, 1976, which was also brought into force with effect from  January 3,  1977 inserted  sub-sections (4) and (5) in Article 368 which read thus:           "(4) No  amendment of this Constitution (including      the provisions  of Part III) made or purporting to have

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    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".      We  will   first  take   up   for   consideration   the comparatively easier question as regards the validity of the amendments made  by section  55 of  the 42nd  Amendment.  It introduces two new clauses in Article 368, namely, clauses 4 and S.  Clause S  speaks for itself and is self explanatory. Its avowed  purpose is the "removal of doubts" but after the decision of this Court in Kesavananda Bharati (Supra), there could be no doubt as regards the existence of limitations on the Parliament’s  power to  amend the  Constitution. In  the context of  the constitutional  history of  Article 368, the true object  of the  declaration contained in Article 368 is the removal  of those limitations. Clause S confers upon the Parliament  a   vast  and   undefined  power  to  amend  the Constitution, even,  so as to distort it out of recognition. The theme  song  of  the  majority  decision  in  Keshvanand Bharati (Supra)  is: ’Amend  as  you  may  even  the  solemn document which  the founding  fathers have committed to your care, for  you know  best the needs of your generation. But, the Constitution  is a  precious  heritage;  therefore,  you cannot destroy  its identity’.  The majority conceded to the Parliament the right to make alterations in the Constitution so long as they are within its basic framework. And 240 what fears can that judgment raise or misgivings generate if it only  means this and no more: The Preamble assures to the people of  India a polity whose basic structure is described therein as  a Sovereign  Democratic Republic; Parliament may make  any   amendments  to  the  Constitution  as  it  deems expedient so  long as  they do not damage or destroy India’s sovereignty  and   its  democratic,   republican  character. Democracy is  not an empty dream. It is a meaningful concept whose essential  attributes  are  recited  in  the  preamble itself: Justice,  social, economic and political; Liberty of thought, expression, belief, faith and worship, and Equality of status  and opportunity. Its aim, again as set out in the preamble, is to promote among the people an abiding sense of ’Fraternity assuring  the dignity  of the individual and the unity of  the Nation’.  The newly  introduced  clause  S  of Article  368  demolishes  the  very  pillars  on  which  the preamble rests  by empowering the Parliament to exercise its constituent power  without  any  "limitation  whatever".  No constituent power  can conceivably  go higher  than the sky- high power conferred by clause (S), for it even empowers the Parliament to  "repeal the provisions of this Constitution", that is to say, to abrogate the democracy and substitute for it a  totally antithetical form of Government. That can most effectively be  achieved, without calling a democracy by any other name,  by a  total  denial  of  social,  economic  and political justice  to the people, by emasculating liberty of thought,  expression,  belief,  faith  and  worship  and  by abjuring commitment to the magnificent ideal of a society of equals. The power to destroy is not a power to amend.      Since the Constitution had conferred a limited amending power on  the Parliament,  the Parliament  cannot under  the exercise of  that limited power enlarge that very power into an absolute  power. Indeed,  a limited amending power is one

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of the basic features of our Constitution and therefore, the limitations on  that power  cannot be  destroyed.  In  other words, Parliament  cannot, under  Article  368,  expand  its amending power  so as  to acquire  for itself  the right  to repeal or  abrogate the Constitution or to destroy its basic and essential  features. The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one.      The very  42nd Amendment which introduced clauses 4 and 5 in Article 368 made amendments to the preamble to which no exception can be taken. Those amendments are not only within the framework  of the Constitution but they give vitality to its philosophy  they  afford  strength  and  succor  to  its foundation. By the aforesaid amendments, what was originally described as  a ’Sovereign  Democratic  Republic’  became  a "Sovereign Socialist Secular 241 Democratic Republic"  and  the  resolution  to  promote  the ‘unity of the Nation’ was elevated into a promise to promote the "unity  and integrity  of the  Nation". These amendments furnish the  most eloquent example of how the amending power can  be   exercised  consistently  with  the  creed  of  the Constitution. They  offer  promise  of  more,  they  do  not scuttle a precious heritage.      In Smt.  Indira Nehru  Gandhi v. Raj Narain, Khanna, J. struck down  clause 4  of Article  329A of  the Constitution which abolished  the forum  for adjucating  upon  a  dispute relating to  the validity of an election, on the ground that the  particular   Article  which   was     introduced  by  a constitutional amendment  violated the principle of free and fair elections  which is an essential postulate of democracy and which,  in its turn, is a part of the basic structure of the Constitution. Mathew, J. also struck down the Article on the  ground   that  it  damaged  the  essential  feature  of democracy. One  of us.  Chandrachud.  J.  reached  the  same conclusion by  holding that  the provisions  of the  Article were an outright negation of the right of equality conferred by Article  14, a  right which,  more than  any other,  is a basic postulate of the Constitution. Thus whereas amendments made to  the preamble by the 42nd Amendment itself afford an illustration of  the scope  of the  amending power, the case last referred  to affords an illustration of the limitations on the amending power.      Since, for  the reasons  above mentioned,  clause 5  of Article 368  , transgresses  the limitations on the amending power, it must be held to be unconstitutional.      The newly  introduced clause  4  of  Article  368  must suffer the same fate as clause 5 because the two clauses are inter-linked. Clause 5 purports to remove all limitations on the amending  power while  clause 4  deprives the  courts of their power  to  call  in  question  any  amendment  of  the Constitution. Our  Constitution is founded on a nice balance of power  among the  three wings  of the  State, namely  the Executive, the  Legislature and  the Judiciary.  It  is  the function of  the Judges,  nay their  duty, to pronounce upon the validity of laws. If courts are totally deprived of that power, the fundamental rights conferred upon the people will become a  mere adornment because rights without remedies are as writ in water. A controlled Constitution will then become uncontrolled. Clause (4) of Article 368 totally deprives the citizens of  one of the most valuable modes of redress which is guaranteed  by Article 32. The conferment of the right to destroy the  identity of  the Constitution  coupled with the provision that no court of law 242

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shall pronounce  upon the validity of such destruction seems to us a transparent case of transgression of the limitations on the amending power.      If a  constitutional amendment  cannot be pronounced to be invalid  even if  it destroys  the basic structure of the Constitution, a law passed in pursuance of such an amendment will be  beyond the  pale of judicial review because it will receive the protection of the constitutional amendment which the courts  will be  powerless to strike down. Article 13 of the Constitution will then become a dead letter because even ordinary laws  will escape the scrutiny of the courts on the ground  that   they  are   passed  on   the  strength  of  a constitutional amendment which is not open to challenge.      Clause 4 of Article 368 is in one sense an appendage of Clause 5,  though we do not like to describe it as a logical consequence of  Clause 5. If it be true, as stated in clause 5, that  the Parliament  has unlimited  power to  amend  the Constitution, courts can have no jurisdiction to strike down any constitutional  amendment as unconstitutional. Clause 4, therefore, says  nothing more  or less  than what  clause  5 postulates. If  clause 5 is beyond the amending power of the Parliament, clause  4 must  be equally beyond that power and must be struck down as such.      The next  question which we have to consider is whether the amendment  made by  section 4  of the  42nd Amendment to Article 31C of the Constitution is valid. Mr. Palkhiwala did not challenge the validity of the unamended Article 31C, and indeed that  would not  be done.  The unamended  Article 31C forms the  subject matter of separate proceeding and we have indicated therein  that it  is constitutionally valid to the extent  to  which  it  was  upheld  in  Keshvananda  Bharati (Supra).      By the  amendment introduced  by section  4 of the 42nd Amendment, provision  is made  in Article 31C saying that no law giving  effect  to  the  policy  of  the  State  towards securing "all or any of the principles laid down in Part IV" shall be  deemed to  be  void  on  the  ground  that  it  is inconsistent with  or takes  away or  a bridges  any of  the rights conferred by Article 14, Article 19 or Article 31. It is manifest that the scope of laws which fall within Article 31C has been expanded vastly by the amendment. Whereas under the original   Article  31C, the challenge was excluded only in respect  of laws giving effect to the policy of the State towards securing  "the principles specified in clause (b) or clause (c) of Article 39" under the amendment. 243 all laws  giving effect  to the  policy of the State towards securing "all or any of the principles laid down in Part IV" are saved  from a constitutional challenge under Articles 14 and 19. (The reference to Article 31 was deleted by the 44th Amendment as  a consequence of the abolition of the right to property  as   a  fundamental   right).  The   question  for consideration in  the light  of  this  position  is  whether section 4  of the  42nd Amendment has brought about a result which is  basically and fundamentally different from the one arising under   the unamended article. If the amendment does not bring  about any such result, its validity shall have to be upheld for the same reasons for which the validity of the unamended article was upheld.      The argument  of Mr.  Palkhivala, who appears on behalf of the  petitioners, runs thus : The amendment introduced by section 4 of the 42nd Amendment destroys the harmony between Parts  III   and  IV  of  the  Constitution  by  making  the fundamental rights  conferred by Part III subservient to the directive principles  of State  Policy set out in Part IV of

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the   Constitution.    The   Constitution-makers   did   not contemplate  a   disharmony   or   imbalance   between   the fundamental rights  and the  directive principles and indeed they were  both meant  to supplement  each other.  The basic structure of  the Constitution  tests on the foundation that while the  directive principles  are the  mandatory ends  of government,  those   ends  can   be  achieved  only  through permissible means  which are  set out  in Part  III  of  the constitution. In  other words, the mandatory ends set out in Part IV can be achieved not through totalitarian methods but only through those which are consistent with the fundamental rights conferred  by Part  III. If Article 31C as amended by the 42nd  Amendment is  allowed to  stand, it will confer an unrestricted licence  on the  legislature and the executive, both at  the Centre  and in the States. to destroy democracy and  establish  an  authoritarian  regime.  All  legislative action and every governmental action purports to be related, directly or indirectly, to some directive principle of State policy. The protection of the amended article will therefore be available  to every  legislative action  under  the  sun. Article 31C  abrogates the  right to  equality guaranteed by Article 14,  which is  the very  foundation of  a republican form of  government and  is by itself a basic feature of the Constitution.      The  learned   counsel  further   argues  that   it  is impossible to envisage that a destruction of the fundamental freedoms guaranteed  by Part  III is necessary for achieving the object  of some  of the  directive principles like equal justice and  free legal  aid, organising  village panchayat, providing living  wages for  workers  and  just  and  humane conditions of work. free and compulsory education for 244 children, organisation  of agriculture and animal husbandry, an  protection  of  environment  and  wild  life.  What  the Constituent Assembly  had rejected  by creating a harmonious balance between Parts III and IV is brought back by the 42nd Amendment.      Finally, it  is urged  that the  Constitution had  made provision  for  the  suspension  of  the  right  to  enforce fundamental rights  when an  emergency is  proclaimed by the President. Under  the  basic  scheme  of  the  Constitution, fundamental rights  were to lose their supremacy only during the  period   that  the  proclamation  of  emergency  is  in operation. Section  4 of  the 42nd  Amendment has robbed the fundamental  rights   of  their   supremacy  and  made  them subordinate to  the directive  principles of State policy as if there  were a  permanent emergency  in  operation.  While Article 359  suspends the  enforcement of fundamental rights during the  Emergency, Article  31C virtually abrogates them in normal  times. Thus,  apart from  destroying one,  of the basic features  of the  Constitution,  namely,  the  harmony between Parts  III and  IV, section  4 of the 42nd Amendment denies to  the people  the blessings of a free democracy and lays the  foundation for  the creation  of an  authoritarian State.      These contentions  were stoutly resisted by the learned Attorney  General   thus:  Securing  the  implementation  of directive principles by the elimination of obstructive legal procedures cannot  ever be  said to  destroy or  damage  the basic features  of the  Constitution. Further, laws made for securing the  objectives of  Part IV would necessarily be in public interest  and will  fall within  Article 19(5) of the Constitution, in  so far  as clauses  (d) and (e) of Article 19(1) are  concerned. They would therefore be several in any case. The  history of  the  Constitution.  particularly  the

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incorporation of  Articles 31(4)  and 31(6)  and the various amendments made  by Articles  31A,  31B  and  the  unamended Article 31C,  which were all upheld by this Court, establish the width  OB the  amending power  under  Article  368.  The impugned amendment  therefore manifestly  falls  within  the sweep of the amending Power.      The learned  Attorney general  further  argues:  A  law which fulfils  the directive  of Article  38 is incapable of abrogating fundamental  freedoms or  of damaging  the  basic structure of  the Constitution  in as much as that structure itself is  founded on  the  principle  of  justice,  social, economic  and   political.  Article  38,  which  contains  a directive principle, provides that the State shall strive to promote the welfare of the people by securing and protecting as effectively  as it  may a  social order in which justice. social.  economic   and  political   shall  inform  all  the institutions of the national life. A law which complies- 245 with Article  38 cannot conceivably abrogate the fundamental freedoms   except certain  economic rights and that too, for the purpose  of minimising  inequalities. A  law which  will abrogate fundamental freedoms will either bring about social injustice or  economic injustice  or political injustice. It will thereby  contravene  Article  38  rather  than  falling within it and will for that reason be outside the protection of Article  31C. In  any event,  each and every violation of Article  14  or  Article.  19  does  not  damage  the  basic structure of the  Constitution.      The learned  Additional Solicitor General has submitted a carefully  prepared chart  of 11  decisions of  this Court ranging from  Anvar Ali  Sarkar to Haji Kader Kutty in order to show  the possible impact of amended Article 31C on cases where this  Court had held provisions of certain statutes to be violative  of Article  14. He  urged on  the basis of his tabulated analysis  that there  can be  many cases which are not relatable to directive principles and will not therefore be saved by the amended article. Those cases are reported in Anwar Ali  Sarkar (Supra), Lachmandas Ahuja, Habib Muhammad, Moopil Nair,  Jialal, Hazi  Abdul Shakur,  Devi Das, Osmania University, New  Manek Chowk, Anandji Haridas and Haji Kader Kutty (Supra).  He has  also submitted  a chart  of 13 cases involving laws relatable to directive principle in which the fundamental rights  were abridged  but not  abrogated. Since abridgement of  fundamental rights  in  public  interest  is permissible as  it does not damage the basic structure, laws similar to  those involved  in the 13 cases will not have to seek  the   protection  of   the  amended   article.   These illustrative  cases   are:  Ram  Prasad  Sahi,  Rao  Manohar Singhji,  Kunhikaman. 246 Orissa Cement,  Krishnaswami  Naidu,  Mukanchand,  Nallaraja Reddy, Jallan  Trading Co.,  Kamrup, Mizo  District Council, Balammal, Rashbehari Pande and R. C. Cooper.      The  argument   of  the  learned  Additional  Solicitor General  proceeds   thus:  For   extracting  the   ratio  of Keshvananda Bharati  (Supra). One  must proceed on the basis that there  were as  many cases  as there  were declarations sought for  by the  petitioners  therein.  The  majority  in regard to  Article 368  is different  from the  majority  in regard to  the decision  in  respect  of  Article  31C.  The binding ratio  in regard to Article 368 as well as the ratio resulting in  upholding the  validity   of the first part of the Article  31C will both sustain the validity of section 4 of the  42nd Amendment. In regard to fundamental rights, the ratio of  the judgments  of 12  out of  13 Judges, i.e., all

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excepting Jagamohan Reddy J., will empower amendment of each one of  the articles  in part  III, so  long as  there is no total abrogation  of the fundamental rights which constitute essential  features   of  the   basic   structure   of   the Constitution. Abrogation  of fundamental rights which do not constitute essential  features of  the  basic  structure  or abridgement of  fundamental  rights  which  constitute  such essential features  is  within  the  permissible  limits  of amendment. The  unamended Article  31C having been upheld by the majority  in Kesavanada  Bharti both  on the  ground  of stare  decisis   and  on   the  ground  of  ’contemporaneous practical exposition’  the amended  Article 31C must be held to be  valid, especially  since it  is not  brought about  a qualitative change  in comparison with the provisions of the unamended article.  A harmonious  and orderly development of constitutional  law   would   require   that   the   phrases ’inconsistent with’  or ’take  away’ which occur in Articles 31A, 31B  and 31C  should be read down to mean ’restrict’ or ’abridge’ and  not ’abrogate’. If two constructions of those expressions  were  reasonably  possible,  the  Court  should accept   that    construction   which   would   render   the constitutional amendment valid. 247      The  learned  counsel  further  argues:  The  directive principles,   including the  one contained in Article 38, do not cover  the exercise  of each and every legislative power relatable to  the  Seventh  Schedule  of  the  Constitution. Besides,   the   directive   principles   being   themselves fundamental in  the governance  of the country, no amendment of the  Constitution to  achieve the  ends specified  in the directive principles  can ever  alter the basic structure of the Constitution.  If the  unamended Article 31C is valid in reference to  laws relatable  to Articles  39(b) and (c), no dichotomy can  be  made  between  laws  relatable  to  those provisions on  the one  hand and  laws  relatable  to  other directive principles. A value judgment is not permissible to the Court in this area.      It is finally urged by the learned Additional Solicitor General that  judicial review is not totally excluded by the amended Article  31C because  it will  still be  open to the Court to consider:      (i)     whether  the   impugned  law  has  ’direct  and           reasonable  nexus’   with  any  of  the  directive           principles.      (ii) whether  the provisions encroaching on fundamental           rights are integrally connected with and essential           for effectuating  the directive  principles or are           at least ancillary thereto;       (iii) whether the fundamental right encroached upon is           an essential feature of the basic structure of the           Constitution; and      (iv)  if  so,  whether  the  encroachment,  in  effect,           abrogates that fundamental right.      Besides these  contentions Mr.  R. K.  Garg has filed a written brief  on behalf of the Indian Federation of Working Journalists, opposing  the contentions of Mr. Palkhivala. So have the learned Advocates General of the State of Karnataka and Uttar Pradesh. Mr. Aruneshwar Gupta has filed a brief on behalf of  the State of Rajasthan supporting the submissions of Mr.  Palkhivala. So  has  the  State  of  Rajasthan.  The Advocates-General of  Maharashtra, Kerala,  West Bengal  and Orissa appeared through their respective advocates.      Both the  Attorney General and the Additional Solicitor General  have   raised  a   preliminary  objection   to  the consideration of  the question  raised by the petitioners as

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regards the  validity of  Sections 4  and  55  of  the  42nd Amendment. It is contended by them that the issue formulated for consideration  of the  court; "whether the provisions of the  Forty-Second   Amendment  of   the  Constitution  which deprived the  Fundamental Rights  of  their  Supremacy  and, inter  alia,   made  them   subordinate  to   the  directive principles of State Policy are 248 ultra vires  the amending  power of Parliament?" is too wide and academic.  It is  urged that  since it  is  the  settled practice of  the court  not to decide academic questions and since property rights claimed by the petitioners under Arts. 19(1)(f) and 31 do not survive after the 44th Amendment, the court should not entertain any argument on the points raised by the petitioners.      In support of this submission reliance is placed by the learned counsel  on the  decisions of  the American  Supreme Court in Commonwealth of Massachussetts v. Andrew W. Mellon. George  Ashwander  v.  Tennesee  Valley  Authority,  and  on Weaver’s  Constitutional  Law,  1946  Edition  and  American Jurisprudence. Reliance  is also placed on certain decisions of this  court to  which it  is unnecessary to refer because the Attorney-General  and the  Additional Solicitor  General are right  that it is the settled practice of this Court not to decide  academic questions.  The American  authorities on which the  learned counsel  rely  take  the  view  that  the constitutionality of  a statute  will not  be considered and determined by the courts as a hypothetical question, because constitutional questions are not to be dealt with abstractly or in  the manner of an academic discussion. In other words, the courts  do not anticipate constitutional issues so as to assume in  advance that  a certain  law  may  be  passed  in pursuance of  a certain  constitutional amendment  which may offend  against   the  provisions   of   the   Constitution. Similarly, our Court has consistently taken the view that we will not formulate a rule of constitutional law broader than is required  by the  precise facts  to which  it  is  to  be applied. It  is only when the rights of persons are directly involved that relief is granted by this Court.      But, we  find it  difficult to  uphold the  preliminary objection because, the question raised by the petitioners as regards the  constitutionality of  sections 4  and 55 of the 42nd  Amendment   is  not  an  academic  or  a  hypothetical question. The 42nd Amendment is there for any one to see and by its  sections 4  and 55  amendments  have  been  made  to Articles 31C  and 368 of the Constitution. An order has been passed against  the petitioners  under section  18A  of  the Industries (Development  and Regulation) Act, 1951, by which the petitioners  are aggrieved.  Besides there are two other relevant considerations  which must  be taken  into  account while dealing  with the  preliminary objection.  There is no constitutional or statutory inhibition against the decision 249 of questions  before they  actually arise for consideration. In view of the importance of the question raised and in view of the  fact that  the question  has been  raised in  many a petition, it  is expedient  in the  interest of  Justice  to settle the true position. Secondly, what we are dealing with is not  an ordinary  law which  may or  may not be passed so that it could be said that our jurisdiction is being invoked on the  hypothetical consideration  that a law may be passed in future  which will  injure the rights of the petitioners. We are  dealing with  a constitutional  amendment which  has been brought  into operation  and which,  of its  own force, permits the  violation  of  certain  freedoms  through  laws

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passed for  certain purposes.  We, therefore,  overrule  the preliminary objection  and proceed  to determine  the  point raised by the petitioners.      The main  controversy in  these petitions centres round the question  whether  the  directive  principles  of  State policy contained  in  Art  IV  can  have  primacy  over  the fundamental  rights   conferred   by   Part   III   of   the Constitution. That  is the  heart of the matter. Every other consideration and all other contentions are in the nature of by-products of that central theme of the case. The competing claims of  parts III  and IV constitute the pivotal point of the case because, Article 31C as amended by section 4 of the 42nd Amendment provides in terms that a law giving effect to any directive  principle cannot be challenged as void on the ground that  it violates  the rights conferred by Article 14 or Article  19. The  42nd Amendment  by its  section 4  thus subordinates the fundamental rights conferred by Articles 14 and 19 to the directive principles.      The question  of questions  is whether  in view  of the majority decision  in Kesavananda  Bharati it is permissible to the  Parliament to so amend the Constitution as to give a position of  precedence to  directive  principles  over  the fundamental  rights.   The  answer  to  this  question  must necessarily depend  upon whether  Articles 14  and 19  which must now  give way to laws passed in order to effectuate the policy of  the State  towards securing  all or  any  of  the principles of directive Policy are essential features of the basic structure  of the  Constitution. It  is  only  if  the rights conferred by these two articles are not a part of the basic structure.  Of  the  Constitution  that  they  can  be allowed to  be abrogated  by a  constitutional amendment. If they are  a part  of the  basic  structure  they  cannot  be obliterated out  of existence  in relation  to a category of laws described in Article 31C or, for the matter of that, in relation to  laws of  any description  whatsoever, passed in order to  achieve any object or policy whatsoever. This will serve to  bring out  the point  that a total emasculation of the essential  features of the Constitution is, by the ratio in Kesavananda Bharati, not permissible to the Parliament. 250      There is  no doubt  that though  the courts have always attached very  great importance to the preservation of human liberties, no  less importance  has been attached to some of the Directive  Principles of State Policy enunciated in Part IV.  In   the  words   of  Granville  Austin,.  (The  Indian Constitution: Corner  Stone of  a Nation,  p. 50) the Indian Constitution is first and foremost a social document and the majority of its provisions are aimed at furthering the goals of  social   revolution  by   establishing  the   conditions necessary for  its achievement.  Therefore the importance of Directive Principles  in  the  scheme  of  our  Constitution cannot ever be over-emphasized. Those principles project the high ideal  which the  Constitution aims to achieve. In fact Directive Principles  of State policy are fundamental in the governance of  the country and the Attorney General is right that there  is no  sphere of  public life  where  delay  can defeat justice  with more  telling effect  than the  one  in which  the   common  man   seeks  the   realisation  of  his aspirations. The  promise of  a  better  to-morrow  must  be fulfilled to-day;  day after  to-morrow it  runs the risk of being conveniently  forgotten. Indeed so many tomorrows have come and  gone without  a leaf turning that today there is a lurking danger  that people  will  work  out  their  destiny through the compelled cult of their own "dirty hands". Words bandied about  in marbled halls say much but fail to achieve

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as much.      But there  is another competing constitutional interest which occupies  an equally  important place  in that scheme. That interest  is reflected  in the  provisions of  Part III which confer fundamental rights some on citizens as Articles 15, 16  and 19 do and some on. all persons alike as Articles 14, 20, 21 and 22 do. As Granville Austin says: "The core of the commitment  to the  social revolution  lies in Parts III and IV.. These are the conscience of the Constitution.      It is  needless to  cite decisions  which have extolled and upheld  the personal  freedoms  their  majesty,  and  in certain circumstances,  their inviolability.  It may however be profitable to see how the American Supreme Court, dealing with a  broadly comparable  Constitution, has approached the claim for those freedoms.      In Barbara  Elfbrandt v.  Imogene  Russell  the  U.  S. Supreme Court  was considering  the constitutionality  of an Arizona Statute  requiring State employees to take a loyalty oath. Justice  Douglas speaking  for the  majority, observed while  striking   down  the   provision  that:   "Legitimate Legislative goals  ’cannot be  pursued by means that broadly stifle fundamental personal liberties when the end can 251 be more  narrowly  achieved’..  "The  objectionable  quality of....... overbreadth"  depends  upon  the  existence  of  a statute "susceptible  of sweeping and improper application.. These freedoms  are  delicate  and  vulnerable  as  well  as supremely precious  in our  society. The threat of sanctions may deter  their exercise  almost as  potently as the actual application of sanctions".      In United  States v.  Herbet Guest, though the right to travel freely  throughout the territory of the United States of America does not find an explicit mention in the American Constitution, it  was held that the right to travel from one State to  another occupied  a position  fundamental  to  the concept of  the Federal  Union and  the reason why the right was not  expressly mentioned  in the  American  Constitution though it  was mentioned  in the  Articles of Confideration, was that  "a right  so elementary  was  conceived  from  the beginning to  be a  necessary concomitant  of  the  stronger Union the Constitution created".      This position  was reiterated in Winfield Dunn v. James F. Blumstein.  It was  held therein  that freedom  to travel throughout the  United States  was a  basic right  under the Constitution  and   that  the  right  was  an  unconditional personal  right  whose  exercise  may  not  be  conditioned. Therefore, any  classification which  serves to penalize the exercise of  that right,  unless shown  to be  necessary  to promote   a    compelling   governmental    interest,    was unconstitutional.      In New  York Times  Company v. United States the United States  Government   sought  an   injunction   against   the publication, by  the New York Times, of the classified study entitled "History  of U.  S. Decision-Making Process on Viet Nam Policy".  It was  held by  a majority of six Judges that any system  of prior  restraints of  expression comes to the United States  Supreme Court  bearing  a  heavy  presumption against its  constitutional validity, and a party. who seeks to have  such a restraint upheld thus carries a heavy burden of showing  justification  for  the  imposition  of  such  a restraint.      In National Association for the Advancement of Coloured People  v. State of Alabama, a unanimous court while dealing with an attempt to oust the National Association of Coloured People from the State of Alabama held:

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         "In the  domain of  these indispensable liberties,      whether of speech, press, or association, the decisions      of  this  Court  recognise  that  abridgement  of  such      rights, even though unintended, may 252      inevitably follow  from varied  forms  of  governmental      action".      In Frank Palko v. State of Connecticut. Justice Cardozo delivering the  opinion of  the Court in regard to the right to freedom of thought and speech observed           "Of that  freedom one  may  say  that  it  is  the      matrix, the  indispensable condition,  of nearly  every      other form of freedom".      In Jesse  Cantwell v.  State  of  Connecticut,  Justice Roberts who delivered the opinion of the Court observed:           "In the  realm of  religious faith, and in that of      political belief,  sharp  differences  arise.  In  both      fields the tenets of one man may seem the rankest error      to his  neighbour. To  persuade others to his own point      of view,  the pleader, as we know, at times, resorts to      exaggeration, to  vilification of  men who have been or      are, prominent  in church  or state,  and even to false      statement. But  the people of this nation have ordained      in  the  light  of  history,  that,  in  spite  of  the      probability of  excesses and  abuses,  these  liberties      are, in the long view, essential to enlightened opinion      and right  conduct on  the part  of the  citizens of  a      democracy.  The   essential  characteristic   of  these      liberties is,  that under  their shield  many types  of      life,  character,   opinion  and   belief  can  develop      unmolested and  unobstructed, Nowhere  is  this  shield      more necessary  than in  our own  country for  a people      composed of  many races  and of  many creeds. There are      limits to  the exercise  of these liberties. The danger      in these  times from  the coercive  activities of those      who in  the delusion  of racial  or  religious  conceit      would incite  violence and  breaches of  the  peace  in      order to  deprive others  of their  equal right  to the      exercise of  their liberties,  is emphasized  by events      familiar to  all. These  and  other  transgressions  of      those limits the states appropriately may punish".      In Arthur  Terminiello  v.  City  of  Chicago,  Justice Douglas delivering  the majority opinion of the Court, while dealing with  the importance  of the  right to  free speech, observed:           "The vitality  of civil and political institutions      in our  society depends  on free  discussion. As  Chief      Justice Hughes  wrote in De Jonge v. Oregon, it is only      through free debate and free 253      exchange of ideas that government remains responsive to      the    will  of  the  people  and  peaceful  change  is      effected, The  right to  speak freely  and  to  promote      diversity of  ideas and  programmes is therefore one of      the  chief   distinctions  that   sets  us  apart  from      totalitarian regimes.           Accordingly a  function of  free speech  under our      system of  government is  to  invite  dispute.  It  may      indeed best  serve its  high purpose  when it induces a      condition of  unrest,  creates    dissatisfaction  with      conditions as  they are, or even stirs people to anger.      Speech is  often provocative  and challenging.  It  may      strike  at   prejudices  and  preconceptions  and  have      profound  unsettling   effects  as   it   presses   for      acceptance of  an idea. That  is why freedom of speech,

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    though not  absolute (Chaplinsky v. New Hampshire),  is      nevertheless protected against censorship or punishment      unless shown  likely to,  produce a  clear and  present      danger of  a serious  substantive evil  that rises  far      above public  inconvenience, annoyance,  or unrest. See      Bridges v.  California; Craig  v. Horney.  There is  no      room under  our Constitution  for  a  more  restrictive      view. For the alternative would lead to standardization      of ideas  either by  legislatures, courts,  or dominant      political or community groups."      The history  of India’s  struggle for  independence and the debates  of the Constituent Assembly show how deeply our people  value   their  personal   liberties  and  how  those liberties are regarded as an indispensable and integral part of our Constitution. It is significant that though Parts III and IV appear in the Constitution as two distinct fasciculus of articles,  the leaders  of our independence movement drew no distinction between the two kinds of State’s obligations- negative and  positive. "Both  types of rights had developed as a  common demand,  products of  the national  and  social revolutions, of  their almost  inseparable intertwining, and of the character of Indian politics - itself(4)". The demand for inalienable  rights traces  its origin  in  India to the 19th Century  and flowered  into the formation of the Indian National Congress  in 1885.  Indians demanded  equality with their British  rulers on  the theory  that the rights of the subjects cannot  in a  democracy be inferior to those of the rulers. Out  of that demand  grew the plants of equality and free speech.  Those  and  other  basic  rights  found  their expression in Article 16 of The Constitution of 254 India  Bill,   1895.  A   series  of   Congress  resolutions reiterated that  demand between 1917 and 1919. The emergence of Mahatma  Gandhi; on  the  political  scene  gave  to  the freedom movement  a new  dimension: it  ceased to  be merely anti-British it  became a  movement for  the acquisition  of rights of  liberty for  the Indian  Community. Mrs.  Besan’t Commonwealth of  India Bill,  1925 and  the Madras  Congress resolution of  1928 provided  a striking continuity for that movement. The  Motilal Nehru  Committee  appointed  by  the. Madras Congress resolution said at pp. 89-90:           "It is  obvious that  our first  care should be to      have our  Fundamental Rights  guaranteed  in  a  manner      which  will  not  permit  their  withdrawal  under  any      circumstances.. Another  reason  why  great  importance      attaches to  a Declaration of Rights is the unfortunate      existence  of  communal  differences  in  the  country.      Certain  safeguards   are  necessary   to  create   and      establish a sense of security among those who look upon      each other  with distrust  and suspicion.  We could not      better secure  the  full  enjoyment  of  religious  and      communal rights  to all  communities than  by including      them among the basic principles of the Constitution." India represents  a mosaic of humanity consisting of diverse religious linguistic  and caste groups. The rationale behind the insistence  on fundamental  rights has  not yet lost its relevance, alas  or not,  The Congress  session  of  Karachi adopted in 1931 the Resolution on Fundamental Rights as well as on  Economic and  Social change. The Sapru Report of 1945 said that the fundamental rights should serve as a "standing warning" to all concerned that:           "what the  Constitution  demands  and  expects  is      perfect. equality  between one section of the Community      and another in the matter of political and civic rights      equality of  liberty and  security in  the enjoyment of

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    the freedom of religion, worship and the pursuit of the      ordinary applications of life". (p. 260).      The  Indian   nation  marched   to  freedom   in   this background. The  Constituent Assembly  resolved to  enshrine the  fundamental   rights  in   the  written   text  of  the Constitution. The  interlinked goals of personal liberty and economic  freedom  then  came  to  be  incorporated  in  two separate  parts,   nevertheless  parts   of   an   integral, indivisible scheme  which  was  carefully  and  thoughtfully nursed over  half a  century. The  seeds sown  in  the  19th Century saw  their fruition  in 1950 under the leadership of Jawaharlal Nehru and Dr. Ambedkar. To destroy the guarantees given by  Part III in order purportedly to achieve the goals of Part  IV  is  plainly  to  subvert  the  Constitution  by destroying its basic structure. 255      Fundamental rights  occupy a  unique place in the lives of civilized  societies and have been variously described in our  Judgments   as  "transcendental",   "inalienable"   and "primordial". For us, it has been said in Kesavananda Bharti (p. 991), they constitute the ark of the constitution.      The significance  of the  perception that Parts III and IV together  constitute the  core of  commitment  to  social revolution and  they, together,  are the  conscience of  the Constitution is  to be traced to a deep understanding of the scheme  of   the  Indian  Constitution.  Granville  Austin’s observation brings  out the true position that Parts III and IV are  like two  wheels of a chariot, one no less important than the  other. You  snap one  and the  other will lose its efficacy. They  are like  a twin  formula for  achieving the social revolution,  which is  the ideal  which the visionary founders of the Constitution set before themselves. In other words, the Indian Constitution is founded on the bed-rock of the balance  between Parts  III and  IV.  To  give  absolute primacy to  one over  the other is to disturb the harmony of the  Constitution.   This  harmony   and   balance   between fundamental rights  and directive principles is an essential feature of the basic structure of the Constitution.      This  is   not  mere  semantics.  The  edifice  of  our Constitution is  built upon the concepts crystallised in the Preamble.  We   resolved  to  constitute  ourselves  into  a Socialist State  which carried  with it  the  obligation  to secure to our people justice-social, economic and political. We, therefore,  put part IV into our Constitution containing directive principles  of  State  policy  which  specify  the socialistic goal to be achieved. We promised to our people a democratic polity  which carries  with it  the obligation of securing to  the  people  liberty  of  thought,  expression, belief,  faith  and  worship;  equality  of  status  and  of opportunity and  the  assurance  that  the  dignity  of  the individual will  at all  costs be  preserved. We, therefore, put Part, III in our Constitution conferring those rights on the people.  Those rights  are not  an end in themselves but are the  means to  an end.  The end is specified in Part IV. Therefore, the  rights conferred  by Art  III are subject to reasonable restrictions  and the  Constitution provides that enforcement  of   some  of  them  may,  in  stated  uncommon circumstances,  be   suspended.  But   just  as  the  rights conferred by Part III would be without a radar and a compass if they  were not geared to an ideal, in the same manner the attainment of  the ideals  set out in Part IV would become a pretence for  tyranny if  the price to be paid for achieving that ideal  is human  freedoms. One  of the  faiths  of  our founding fathers  was the purity of means. Indeed, under our law, even  a dacoit who has committed a murder cannot be put

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to death 256 in the  exercise of  right of self-defence after he has made good his  escape. So  great is  the insistence  of civilised laws on  the purity  of means.  The goals set out in Part IV have, therefore,  to be  achieved without  the abrogation of the means provided for by Part III. It is in this sense that Parts III  and  IV  together  constitute  the  core  of  our Constitution and  combine to  form its  conscience. Anything that destroys  the balance  between the  two parts will ipso facto destroy an essential element of the basic structure of our Constitution.      It is  in this  light that the validity of the. amended Article 31C  has to be examined. Article 13(2) says that the State shall  not make  any law  which takes away or abridges the rights  conferred by  Part  Ill  and  any  law  made  in contravention of  that clause  shall to  the extent  of  the contravention be  void.  Article  31C  begins  with  a  non- obstante clause  by putting Article 13 out of harm’s way. It provides for  a certain consequence notwithstanding anything contained in  Article 13. It then denudes Articles 14 and 19 of their  functional utility  by providing  that the  rights conferred by  these Articles  will  be  no  barrier  against passing laws  for giving  effect to the principles laid down in Part  IV. On  any reasonable interpretation, there can be no doubt  that by  the amendment  introduced by section 4 of the 42nd  Amendment, Articles  14 and  19 stand abrogated at least in regard to the category of laws described in Article 31C. The  startling  consequence  which  the  amendment  has produced is  that even  if a law is in total defiance of the mandate of  Article 13  read with  Articles 14  and 19,  its validity will  not be open to question so long as its object is to  secure a  directive principle of state Policy. We are disposed to  accept, the submission of the learned Solicitor General, considering  the two  charts of  cases submitted by him, that  it is possible to conceive of laws which will not attract Article  31C since  they may  not  bear  direct  and reasonable nexus  with the provisions of Part IV. But, that, in our  opinion, is  beside the  point. A  large majority of laws, the  bulk of them, can at any rate be easily justified as having  been passed  for the  purpose of giving effect to the policy  of the  State towards securing some principle or the other laid down in Part IV. In respect of all such laws, which  will   cover  an  extensive  gamut  of  the  relevant legislative activity,  the protection  of Articles 15 and 19 will stand  wholly withdrawn.  It is  then no answer to say, while  determining   whether  the  basic  structure  of  the Constitution is  altered, that at least. some laws will fall outside the scope of Article 31C.      We  have   to  decide  the  matter  before  us  not  by metaphysical subtlety,  nor as a matter of semantics, but by a broad  and liberal approach. We must not miss the wood for the trees. A total 257 deprivation of  fundamental rights,  even in a limited area, can amount  to abrogation  of a  fundamental right  just  as partial deprivation in every area can. An author, who writes exclusively on  foreign matters,  shall  have  been  totally deprived of the right of free speech and expression if he is prohibited  from   writing  on  foreign  matters.  The  fact therefore that  some laws  may fall.  Outside the  scope  of Article  31C  is  no  answer  to  the  contention  that  the withdrawal of  protection of Articles 14 and 19 from a large number  of   laws  destroys   the  basic  structure  of  the Constitution.

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    It was  repeatedly impressed upon us, especially by the Attorney General, that Article 38 of the Constitution is the king-pin of  the directive  principles and  no law passed in order to  give effect to the principle contained therein can ever  damage   or  destroy   the  basic   structure  of  the Constitution. That  Article provides  that the  State  shall strive to  promote the welfare of the people by securing and protecting as  effectively as it may a social order in which justice, social,  economic and  political, shall  inform all the institutions  of the  national life.  We are  unable  to agree that  all the  directive Principles  of  State  Policy contained in  part IV  eventually  verge  upon  Article  38. Article 38  undoubtedly contains  a broad guideline, but the other directive principles are not mere illustrations of the principle contained  in Article  38. Secondly, if it be true that no  law passed  for the purpose of giving effect to the directive principle  contained in  Article 38  can damage or destroy the  basic structure  of the  Constitution, what was the necessity,  and more so the justification. for providing by a  constitutional amendment  that no  law which is passed for giving  effect  to  the  policy  of  the  State  towards securing any  principle laid down in Part IV shall be deemed to be  void on  the ground  that it  is inconsistent with or takes away  or abridges  the rights conferred by Articles 14 and 19  ? The object and purpose of the amendment of Article 31C is  really to  save laws  which cannot  be  saved  under Article 19(2) to (6). Laws which fall under those provisions are  in   the  nature  of  reasonable  restrictions  on  the fundamental rights  in public  interest and  therefore  they abridge but do not abrogate the fundamental rights It was in order to  deal with  laws which do not get the protection of Article 19(2) to (6) that Article 31 was amended to say that the provisions  of Article 19, inter alia, cannot be invoked for voiding the laws of the description mentioned in Article 31C.      Articles 14  and 19  do not confer any fanciful rights. They confer  rights which  are elementary for the proper and effective functioning  of a  democracy. They are universally so regarded, as is evident from the universal Declaration of Human Rights.  Many countries  in the  civilised world  have parted with their sovereignty in the hope and belief 258 that their  citizens will  enjoy human  freedoms.  And  they preferred to  be bound  by  the  decisions  and  decrees  of foreign tribunals  on matters  concerning human freedoms. If Articles 14 and 19 are put out of operation in regard to the bulk of  laws which  the legislatures are empowered to pass, Article 32  will be drained of its life-blood. Article 32(4) provides that  the right. guaranteed by Article 32 shall not be  suspended  except  as  otherwise  provided  for  by  the Constitution. Section  4 of the 42nd Amendment found an easy way to  circumvent Article  32(4) by withdrawing totally the protection of  Articles 14  and 19  in respect  of  a  large category of  laws, so  that there  will be  no violation  to complain of  in regard  to which redress can be sought under Article 32. The power to take away the protection of Article 14 is  the power  to discriminate  without a valid basis for classification. By a long series of decisions this Court had held that  Article 14  forbids class legislation but it does not forbid  classification. The  purpose of  withdrawing the protection of  Article 14, therefore, can only be to acquire the power  to enact  class legislation. Then again, regional chauvinism will  have a field day if Article 19(1)(d) is not available to  the citizens.  Already, there  are  disturbing trends on  a part  of the  Indian horizon. Those trends will

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receive strength  and encouragement  if laws  can be  passed with immunity, preventing the citizens from exercising their right to  move freely throughout the territory of India. The nature and  quality of the amendment introduced by section 4 of the  42nd Amendment  is therefore  such that it virtually tears away the heart of basic fundamental freedoms.      Article 31C  speaks of laws giving effect to the policy of the  "State". Article 12 which governs the interpretation of Article  3 LC  provides that the word "State" in Part III includes the  Government and  Parliament of  India  and  the Government and the Legislature of each of the States and all local or  other authorities within the territory of India or under the  control of  the Government  of India. Wide as the language of  Article 31C  is, the  definition  of  the  word "State" in  Article 12  gives to Article 31C an operation of the widest  amplitude. Even  if a State Legislature passes a law for  the purpose  of giving  effect to  the policy  by a local authority  towards securing a directive principle, the law will  enjoy immunity  from the provisions of Articles 14 and 19.  The State  Legislatures are  thus given  an  almost unfettered discretion  to deprive  the people of their civil liberties.      The learned  Attorney General  argues that the State is under an  obligation to take steps for promoting the welfare of the  people by  bringing about  a social  order in  which social, economic  and political justice shall inform all the institutions  of   the  national  life.  He  says  that  the deprivation of  some  of  the  fundamental  rights  for  the purpose 259 of  achieving   this  goal   cannot  possibly  amount  to  a destruction of  the  basic structure of the Constitution. We are  unable   to  accept  this  contention.  The  principles enunciated in  Part IV  are not  the proclaimed  monopoly of democracies  alone.   They  are   common  to  all  polities, democratic or  authoritarian. Every  State is  goal-oriented and claims to strive for securing the welfare of its people. The distinction  between the  different forms  of Government consists in  that a real democracy will endeavour to achieve its  objectives   through  the   discipline  of  fundamental freedoms like  those conferred  by Articles 14 and 19. Those are the  most  elementary  freedoms  without  which  a  free democracy  is   impossible  and   which  must  therefore  be preserved at  all Costs.  Besides, as  observed by Brandies, J., the  need  to  protect  liberty  is  the  greatest  when Government’s purposes  are beneficent.  If the discipline of Article 14  is withdrawn  and if immunity from the operation of that article is conferred, not only on laws passed by the Parliament but  on laws  passed by  the  State  Legislatures also, the political pressures exercised by numerically large groups can  tear the  country asunder  by leaving  it to the legislature to  pick and choose favoured areas and favourite classes for preferential treatment.      The learned  Attorney General and the learned Solicitor General strongly  impressed upon  us that Article 31C should be read  down so  as  to  save  it  from  the  challenge  of unconstitutionality.  It   was  urged   that  it   would  be legitimate to  read into  that Article  the intendment  that only such  laws would  be immunised from the challenge under Articles 14  and 19  as do  not damage  or destroy the basic structure of the Constitution. The principle of reading down the provisions  of a law for the purpose of saving it from a constitutional challenge  is  well-known.  But  we  find  it impossible to  accept the  contention of the learned counsel in this  behalf because,  to do  so  will  involve  a  gross

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distortion of  the principle of reading down, depriving that doctrine of  its only  or true rationale when words of width are used inadvertently. The device of reading down is not to be resorted  to in order to save the susceptibilities of the law makers,  nor indeed  to imagine a law of one’s liking to have been  passed. One  must at least take the Parliament at its word  when, especially,  it undertakes  a constitutional amendment.      Mr. Palkhivala  read out  to us  an  extract  from  the speech of  the then  Law Minister who, while speaking on the amendment to Article 31 C, said that the amendment was being introduced because  the government did not want the "let and hindrance" of  the fundamental rights. If the Parliament has manifested a clear intention to exercise an unlimited power, it is impermissible to read down the amplitude of 260 that power  so as  to make  it  limited.  The  principle  of reading down  cannot be  invoked or applied in opposition to the clear  intention of  the legislature. We suppose that in the history  of the  constitutional law,  no  constitutional amendment has ever been read down to mean the exact opposite of what it says and intends. In fact, to accept the argument that we  should read  down Article  31C, so  as to  make  it conform to  the ratio  of the majority decision in Kesavanda Bharti, is  to destroy the avowed purposes of Article 31C as indicated by the very heading "Saving of certain laws" under which Articles  31A, 31B  and 31C  are  grouped.  Since  the amendment to Article 31C was unquestionably made with a view to empowering  the legislatures to pass laws of a particular description even  if those  laws violate  the discipline  of Articles 14  and 19,  it seems to us impossible to hold that we should  still save  Article 31C  from  the  challenge  of unconstitutionality by reading into that Article words which destroy the  rationale of  that Article  and  an  intendment which is plainly contrary to its proclaimed purpose.      A part  of the same argument was pressed upon us by the learned Additional  Solicitor General  who contended that it would still  be open  to the  Courts under  Article  31C  to decide four  questions: (1)  Does the  law secure any of the directive  principles  of  the  Stats  policy?  (ii)  Is  it necessary to  encroach upon  fundamental rights  in order to secure the object of the directive principles? (iii) what is the extent  of such encroachment, if any? and (iv) Does that encroachment   violate    the   basic   structure   of   the Constitution?      This argument  is open  to the  same criticism to which the argument  of the  learned Attorney  General is  open and which we  have just disposed of. Reading the existence of an extensive judicial  review into  Article 31C  is  really  to permit the  distortion of  the very purpose of that article. It  provides   expressly  that   no  law   of  a  particular description shall be deemed to be void on the ground that it violate  Article  14  or  Article  19.  It  would  be  sheer adventurism of  a most extraordinary nature to undertake the kind of  judicial enquiry  which, according  to the  learned Additional  Solicitor   General,  the  courts  are  free  to undertake.      We  must  also  mention,  what  is  perhaps  not  fully realised, that  Article 31C  speaks of laws giving effect to the "Policy  of the  State", "towards securing all or any of the principles laid down in Part IV."’ In the very nature of things it  is difficult  for a  court to determine whether a particular law  gives effect to a particular policy. Whether a law is adequate enough to give effect to the policy of the State towards  securing a  directives principle  is always a

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debatable question 261 and the  courts cannot  set aside  the law as invalid merely because, in their opinion, the law is not adequate enough to give effect  to a  certain policy. In fact, though the clear intendment of  Article 31C  is  to  shut  out  all  judicial review, the  argument of  the learned  Additional  Solicitor General calls  for a  doubly or  trebly  extensive  judicial review than  is even  normally permissible to the courts. Be it be remembered that the power to enquire into the question whether there  is a  direct and  B. reasonable nexus between the provisions  of a  law and  a directive  principle cannot confer upon the courts the power to sit in judgment over the policy itself  of the  State. At  the highest,  courts  can, under Article  31C, satisfy themselves as to the identity of the law  in the sense whether it bears direct and reasonable nexus with  a directive principle. If the court is satisfied as  to   the  existence   of  such   nexus,  the  inevitable consequence provided for by Article 31C must follow. Indeed, if there  is one  topic  on  which  all  the  13  Judges  in Kesavananda Bharati  were agreed,  it is this: that the only question open to judicial review under the unamended Article 31 was  whether there  is  a  direct  and  reasonable  nexus between the impugned law and the provisions of Article 39(b) and (c). Reasonableness is evidently regarding the nexus and not regarding  the law. It is therefore impossible to accept the contention  that it  is open  to the courts to undertake the kind  of enquiry  suggested by  the Additional Solicitor General. The  attempt therefore  to drape Article 31C into a democratic outfit  under which  an extensive judicial review would be permissible must fail.      We should  have mentioned  that a  similar argument was advanced in  regard to  the amendment effected by section 55 of the  42nd Amendment  to Article  368, by  the addition of clauses (4)  and (5) therein. It was urged that we should so construe the  word "amendment"  in clause  (4) and  the word "amend" in clause 5 as to comprehend only such amendments as do not destroy the basic structure of thy Constitution. That argument provides a striking illustration of the limitations of the  doctrine of  reading down.  The avowed  purpose.  Of clauses (4)  and (5)  of Article 368 is to confer power upon the  Parliament   to  amend  the  Constitution  without  any "limitation whatever".  Provisions of  this nature cannot be saved by  reading  into  them  words  and  intendment  of  a diametrically opposite meaning and content.      The learned Attorney General then contends that Article 31C should  be upheld for the same reasons for which Article 31A(1) was  upheld. Article  31A (1)  was  considered  as  a contemporaneous practical  exposition  of  the  Constitution since it  was inserted by the very First Amendment which was passed in  1951 by the same body of persons who were members of the Constituent Assembly. We can understand: 262 that Article  31A can  be looked  upon as  a contemporaneous Practical exposition  of the intendment of the Constitution, but the  same cannot  be said of Article 31C. Besides, there is a  significant qualitative  difference  between  the  two Articles. Article  31A,  the  validity  of  which  has  been recognised over  the  years  excludes  the  challenge  under Articles 14  and 19  in regard  to a  specified category  of laws. If  by a  constitutional amendment, the application of Articles 14  and 19  is withdrawn  from a  defined field  of legislative  activity,   which  is   reasonably  in   public interest, the basic framework of the constitution may remain unimpaired. But  if the  protection  of  those  articles  is

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withdrawn in  respect of  an uncatalogued  variety of  laws, fundamental freedoms  will become  a ’parchment  in a  glass case’ to be viewed as a matter of historical curiosity.      An attempt was made to equate the provisions of Article 31 with  those of  Article 31A in order to lend plausibility to the  contention that since Article 31A was also upheld on the ground  of stare decisis Article 31 can be upheld on the same ground.  We see  no merit  in this  contention. In  the first place,  as we  have indicated  above. the five matters which are  specified in  Article 31A  are of  such  quality, nature, content  and character  that at  least a  debate can reasonably arise whether abrogation of fundamental rights in respect of  those matters  will damage  or destroy the basic structure of  the Constitution.  Article 31C  does not  deal with specific subjects. The directive principles are couched in broad  and general  terms for the simple reason that they specify the goals to be achieved. Secondly, the principle of stare decisis  cannot be  treated as  a fruitful  source  of perpetuating curtailment  of human  freedoms. No  court  has upheld the  validity of  Article 31A  on the  ground that it does not  violate the  basic structure  of the Constitution. There is  no decision  on the  validity of Article 31A which can be  looked upon  as a measuring rod of the extent of the amending power.  To hark back to Article 31A every time that a new  constitutional amendment  is challenged is the surest means of  ensuring a  drastic  erosion  of  the  fundamental rights  conferred   by  Part   III.  Such   a  process  will insidiously undermine  the efficacy  of  the  ratio  of  the majority  judgment  in  Kesavananda  Bharati  regarding  the inviolability of  the basic  structure. That  ratio requires that the  validity of each new constitutional amendment must be judged on its own merits.      Nor indeed  are we  impressed by  a limb  of  the  same argument that  when Article  31A was upheld on the ground of stare decisis,  what was  upheld was a constitutional device by which  a class of subject-oriented laws was considered to be valid. The simple ground on which Article 31A was upheld, apart  from   the  ground   of   contemporaneous   practical exposition,  was   that  its   validity  was   accepted  and recognised  over  the  years  and,  therefore,  it  was  not permissible 263 to challenge  its constitutionality.  The principle of stare decisis does  not  imply  the  approval  of  the  device  or mechanism which  is employed  for the  purpose of  framing a legal or constitutional provision.      It was  finally urged  by the  learned Attorney General that if  we uphold  the challenge to the validity of Article 31C, the  validity or  clauses (2) to (6) of Article 19 will be gravely  imperilled because  those clauses will also then be liable  to  be  struck  down  as  abrogating  the  rights conferred by Article 19(1) which are an essential feature or the Constitution.  We are  unable to accept this contention. Under clauses  (2) to (6) of Article 19, restrictions can be imposed only if they are reasonable and then again, they can be imposed  in the  interest of  a stated  class of subjects only. It  is for  the courts  to decide whether restrictions are reasonable  and whether  they are in the interest of the particular subject.  Apart from other basic dissimilarities, Article 31C  takes away  the power  of judicial review to an extent which  destroys even  the semblance  of a  comparison between its  provisions and  those of  clauses (2) to (6) of Article 19. Human ingenuity, limitless though it may be, has yet not  devised a system by which the liberty of the people can be  protected except  through the intervention of courts

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of law.      Three Articles  of our  Constitution, and  only  three, stand between the heaven of freedom into which Tagore wanted his country  to awake  and the  abyss of unrestrained power. They are Articles 14, 19 and 21. Article 31C has removed two sides of that golden triangle which affords to the people of this country an assurance that the promise held forth by the preamble will  be performed  by ushering  an egalitarian era through the  discipline  of  fundamental  rights,  that  is. without emasculation  of the  rights to liberty and equality which alone can help preserve the dignity of the individual.      These then  are our  reasons for  the  order  which  we passed on May 9, 1980 to the following effect:           "Section 4  of the Constitution 42nd Amendment Act      is beyond  the amending  power of the Parliament and is      void since  it damages  the basic or essential features      of the Constitution and destroys its basic structure by      a total exclusion of challenge to any law on the ground      that it is inconsistent with, or takes away or abridges      any of the rights conferred by Article 14 or Article 19      of the Constitution, if the law is for giving effect to      the policy  of the State towards securing all or any of      the  principles   laid  down   in  Part   IV   of   the      Constitution."           "Section 55 of the Constitution 42nd Amendment Act      is beyond  the amending  power of the Parliament and is      void since  it removes  all limitations on the power of      the Parliament to 264      amend the  Constitution and  confers power  upon it  to      amend the  Constitution so  as to damage or destroy its      basic or essential features or its basic structure."      There will be no order as to costs.      BHAGWATI, J.  (His  Lordship’s  Judgment  is  a  common judgment for  Waman Rao’s  case and Minerva Mill’s case. The petitioners in  Writ Petitions  Nos. 656  to  660  of  1977- Wamanrao &  others  etc,  v.  The  Union  of  India  &  ors. (hereinafter referred  to  as  Wamanrao’s  case)  and  other allied petitions have challenged the constitutional validity of the  Maharashtra Agricultural Lands (Ceiling on Holdings) Act 1961  (herein after referred to as the principal Act) as amended by  the Maharashtra  Agricultural Lands (Lowering of Ceiling on  Holdings and  (Amendment Act  1972  (hereinafter referred  to   as  Act  21  of  1975)  and  the  Maharashtra Agricultural Lands  (Lowering of  Ceiling on  Holdings)  and (Amendment) Act  1975 (hereinafter  referred to as Act 47 of 1975) and  the Maharashtra  Agricultural Lands  (Ceiling  on Holdings) Amendment Act 1975 (hereinafter referred to as Act 2 of  1976) on the ground that the amended provisions of the Act are  violative of  Articles 14,  19(1)(f), 31 and 31A of the  Constitution.  We  shall  hereafter  for  the  sake  of convenience refer  to the  principal Act  as duly amended by the subsequent  Acts 21 of 1975, 47 of 1975 and 2 of 1976 as "the impugned  legislation". It  is not  necessary  for  the purpose of  this opinion  to set out the relevant provisions of the  impugned legislation  but it  is sufficient to state that  it  imposed  a  maximum  ceiling  on  the  holding  of agricultural land  in the  State of Maharashtra and provided for acquisition  of land  held in  excess of the ceiling and for the  distribution of  such excess  land to  landless and other persons  with a  view to  securing the distribution of agricultural land  in a manner which would best subserve the common  good   of  the   people.  The  impugned  legislation recognised two  units for  the purpose of ceiling on holding of agricultural land. One was person which by its definition

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in section 2, sub-section (2) included a family and ’family’ by virtue  of section  2, sub-section  (11) included a Hindu Undivided Family  and in  the case of other persons, a group or unit  the members  of which by custom or usage, are joint in-estate or  possession or  residence  and  the  other  was ’family unit’  which according  to its definition in section 2(11A) read  with section  4, meant  a person and his spouse and their  minor sons  and  minor  unmarried  daughters  The impugned legislation  created an  artificial  concept  of  a ’family unit’  for  the  purpose  of  applicability  of  the ceiling and  provided that  all lands held by each member of the family  unit whether  jointly  or  separately  shall  be aggregated together  and by  a fiction  of law  deemed to be held by  the family unit. There were also certain provisions in the  impugned legislation  which prohibited transfers and acquisitions 265 of agricultural  land with a view to effectuating the social policy  and  economic  mission  of  the  law.  The  impugned legislation  also   contained  provisions   prescribing  the machinery for  implementation of its substantive provisions. Now  plainly   and  unquestionably   this  was  a  piece  of legislation relating  to agrarian  reform and  was immunised against challenge  under Articles  14,  19  and  31  by  the protective cloak  of Article  31A but  even so,  by  way  of abundant caution,  it was  given  additional  protection  of Article  31B   by  including   the  Principal  Act  and  the subsequent amending  Acts in  the  9th  Schedule:  vide  the Constitution  (Seventeenth   Amendment)  Act  1964  and  the Constitution (Fortieth  Amendment) Act,  1976.  The  drastic effect of  the impugned legislation was to deprive many land holders of  large areas  of agricultural lands held by them. Some of  them, therefore.  preferred writ  petitions in  the High   Court   of   Bombay   at   Nagpur   challenging   the constitutional validity  of the  impugned legislation and on the challenge  being  negatived  by  the  High  Court,  they preferred  appeals   in  this  Court.  The  only  contention advanced on  behalf of  the land  holders in  support of the appeals was  that the  impugned legislation  in so far as it introduced an  artificial concept  of a  ’family  unit’  and fixed ceiling  on holding  of land  by such  family unit was violative of  the second  proviso to  cl. (1) of Article 31A and was not saved from invalidation by the protective armour of  Article  31B.  This  contention  was  negatived  by  the Constitution  Bench  and  it  was  held  that  the  impugned legislation did  not, by creating an artificial concept of a family unit  and fixing  ceiling on  holding of land by such family unit,  conflict with the second proviso to clause (1) of Article  31A and  even if it did contravene that proviso, it was  protected by  Article 31B since the principal Act as well as  the subsequent  amending Acts  were included in the 9th Schedules  vide Dattatraya  Govind Mahajan  v. State  of Maharashtra. Now  at the  time when  this hatch of cases was argued before  the Court, the emergency was in operation and hence it was not possible for the land-holders to raise many of the  contentions which  they could  otherwise have raised and, therefore,  as soon  as the  emergency was revoked, the landholders filed review petitions in this Court against the decision  in  Dattatraya  Govind  Mahajan’s  case  and  also preferred direct  writ petitions  in this  Court challenging once again  the  constitutional  validity  of  the  impugned legislation. Now,  concededly, Article 31A provided complete immunity to  the impugned  legislation against  violation of Articles 14,  19 and  31 and  Article 31B  read with he 9th Schedule protected the impugned legislation not only against

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violation of Articles 14, 19 and 31 but 266 also against  infraction of the second proviso to Clause (1) of Article  31A. Moreover,  the impugned  legislation  being manifestly one for giving effect to the Directive Principles contained in  Article 39  clauses (b)  and (c),  it was also protected  against   invalidation  by   Article   31C.   The petitioners could  not  therefore  successfully  assail  the constitutional validity  of the  impugned legislation unless they first  pierced the  protective armour  of Articles 31A, 31B and 31C. The petitioners sought to get Articles 31A, 31B and 31C  out of  the way  by contending  that they  offended against the  basic structure  of the  Constitution and were. therefore, outside the constituent power of Parliament under Article  368   and  hence  unconstitutional  and  void.  The argument of  the petitioners  was that  these constitutional amendments in  the shape  of Articles 31A, 31B and 31C being invalid, the  impugned legislation  was required to meet the challenge of Articles 14, 19(1)(f), 31 and 31A and tested on the  touchstone  of  these  constitutional  guarantees.  the impugned legislation  was  null  and  void.  The  first  and principal question which, therefore, arose for consideration in these  cases was  whether Articles  31A, 31B  and 31C are ultra vires  and void  as damaging  or destroying  the basic structure of the Constitution. We may point out here that we were  concerned  in  these  cases  with  the  constitutional validity of  Article 31C  as it stood prior to its amendment by the  Constitution  (Forty-Second  Amendment)  Act,  1976. because it  was the unamended Article 31C which was in force at the  dates when.  the amending  Acts were  passed by  the legislature amending  the principal  Act. These  cases  were heard at  great length  with arguments  ranging over a large areas and  lasting for  over  five  weeks  and  we  reserved judgment on  8th March  ]979. Unfortunately. we could not be ready with  our judgment and hence on 9th May 1980 being the last working  day of the Court before the summer vacation we made an  order expressing our conclusion but stating that we would give  our reasons  later. By  this order  we held that Article 31A  does not  damage any  of the basic or essential features of  the Constitution  or its basic structure and is therefore valid  and constitutional and so is Article 31C as it stood  prior to  its amendment by the Constitution (Forty Second  Amendment)   Act,  1976  valid  to  the  extent  its constitutionality was  upheld in Kesavananda Bharati’s case. So far  as Article 31B is concerned, we said that Article 31 as originally  introduced was  valid and  so  also  are  all subsequent amendments including various Acts and Regulations in the  9th Schedule from time to time upto 24th April, 1973 when Kesavananda  Bharati’s case  was decided.  We  did  not express any  final opinion on the constitutional validity of the amendments  made in  the 9th  Schedule on  or after 24th April 1973 but we made it clear that, these amendments would be open to 267 challenge on the ground that they or any one or more of them damage the  basic or  essential features of the Constitution or its  basic structure.  and  are  therefore.  Outside  the constituent power  of Parliament. This was The order made by us on  9th May.  1980 and  for reasons which I shall mention presently. I  propose to set out in this Judgment my reasons for subscribing to this order.      So  far   as  Minerva  Mills  Case  is  concerned,  the challenge of  the petitioners was directed primarily against an order dated 19th October, 1971 by which the Government of India, in  exercise of the power conferred under Sec. 18A of

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the  Industries  (Development  and  Regulation)  Act,  1951, authorised  the   taking  over  of  the  management  of  the industrial undertaking  of the  petitioners by  the National Textile Corporation  under  the  Sick  Textile  Undertakings (Nationalisation) Act  1974 (hereinafter  referred to as the Nationalisation  Act)   by  which   the  entire   Industrial undertaking  and  the  right,  title  and  interest  of  the petitioners in  it stood  transferred to  and vested  in the Central  Government  on  the  appointed  date.  We  are  not concerned for  the purpose  of the  present opinion with the challenge against  the validity  of  the  Order  dated  19th October, 1971, for the question which has been argued before us   arises   only   out   of   the   attack   against   the constitutionality   of    the   Nationalisation   Act.   The petitioners challenged  the constitutional  validity of  the Nationalisation Act  inter alia  on the ground of infraction of Articles  14, 19(1)(f)  and (g)  and 31  Clause (2),  but since the  Nationalisation Act  has been included in the 9th Schedule by  the Constitution  (Thirty-ninth Amendment) Act, 1975, the petitioners also attacked the constitutionality of the Constitution  (Thirty-ninth Amendment) Act, 1975, for it is only  if they  could get the Nationalisation Act out from the protective  wing of  Article 31B by persuading the Court to strike  down the  Constitution (Thirty-  ninth Amendment) Act, 1975,  that they  could proceed  with  their  challenge against the  constitutional validity  of the Nationalisation Act Now clauses (4) and (5) which were introduced in Article 368  by   section  55   of  the  Constitution  (Forty-second Amendment) Act,  1976 and which were in force at the date of the filing  of the writ petitions provided that no amendment of the  Constitution made  or purported  to have  been  made whether before  or after  the commencement  of that  section shall be  called in  question in any Court on any ground and barred judicial  review of  the validity of a constitutional amendment (obviously,  if these  two  clauses  were  validly included in  Article 368, they would stand in the way of the petitioners challenging  the constitutional  validity of the Constitution  (Thirty-ninth   Amendment)  -Act,   1975.  The petitioners were,  therefore, compelled  to go  further  and impugn the  constitutional validity  of section  55  of  the Constitution 268 (Forty-second Amendment)  Act, 1976. This much challenge, as shall presently  point out,  would have  been sufficient  to clear  the   path  for  the  petitioners  in  assailing  the constitutional validity  of the Nationalisation Act, but the petitioners, not  resting content  with  what  was  strictly necessary, proceeded  also to  challenge section  4  of  the Constitution  (Forty-second   Amendment)  Act,   1976  which amended Article 31C. There were several grounds on which the constitutional validity  of the  Constitution  (Forty-second Amendment) Act,  1976 was impugned in the writ petitions and I shall  refer to  them  when  I  deal  with  the  arguments advanced on  behalf of  the parties. Suffice it to state for the present,  and this  is extremely important to point out. that when  the writ petitions reached hearing before us, Mr. Palkhiwala, learned  counsel  appearing  on  behalf  of  the petitioners  requested   the  Court   to  examine  only  one question, namely, whether the amendments made in Article 31C and Article  368 by  section 4  and SS  of the  Constitution (Forty-second Amendment)  Act, 1976  were constitutional and valid and  submitted that if these constitutional amendments were held  invalid, then  the  other  contentions  might  be examined by  the Court  at a  later date. He conceded before us, in  the course  of the  arguments, that he was accepting

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the constitutional  validity of  Articles 31A,  31B and  the unamended Article  31C and  his  only  contention  vis-a-vis Article 31C  was that  it was  the amendment made in Article 31C which had the effect of damaging or destroying the basic structure  of  the  Constitution  and  that  amendment  was, therefore, beyond  the constituent  power of Parliament. The learned Attorney  General on  behalf of  the Union  of India opposed this  plea of  Mr. Palkhiwala  and urged  by way  of preliminary  objection   that   though   the   question   of constitutional validity  of clauses  (4) and  (S) of Article 368 introduced  by way  of amendment  by section  SS of  the Constitution (Forty-second  Amendment Act,  1976 undoubtedly arose before the Court and it was necessary for the Court to pronounce upon  it, the  other question  in  regard  to  the constitutional validity of the amendment made in Article 31C did not  arise  on  the  writ  petitions  and  the  counter- affidavits and  it was  wholly academic  and superfluous  to decide it.  This preliminary objection raised by the learned Attorney General was in my opinion well founded and deserved to be  sustained. Once  Mr. Palkhiwala  conceded that he was not  challenging   the  constitutionality  of  Article  31A, Article 31B  and the  unamended Article 31C and was prepared to accept  them as  constitutionally valid, it became wholly unnecessary to rely on the amended Article 31C in support of the validity of the Nationalisation Act, because Article 31B would, in any event, save it from invalidation on the ground of infraction  of any of the Fundamental Rights. In fact, if we look  at the counter-affidavit filed by Mr. T. S. Sahani, Deputy Secretary, Government of 269 India in  reply to  the writ  petitions,  we  find  that  no reliance has  been placed on behalf of the Government on the amended Article  31C. The  case of the Union of India is and that is  supported by  the legislative declaration contained in section  39 of the Nationalisation Act, that this Act was enacted for giving effect to the policy of the State towards securing the  principles specified  in clause (b) of Article 39 of  the Constitution.  Neither the  Union of India in its counter- affidavit  nor the  learned Attorney General in the course of  his  arguments  relied  on  any  other  Directive Principle except  that contained  in Article  39 clause (b). Mr. Palkhiwala  also did  not make any attempt to relate the Nationalisation Act  to any  other  Directive  Principle  of State Policy.  Now either the Nationalisation Act was really and truly a law for giving effect to the Directive Principle set out  in Article  39 clause (b) as declared in section 39 or it  was not  such a  law and  the legislative declaration contained in  section 39  was a colourable device. If it was the  former,   then  the  unamended  Article  31C  would  be sufficient to protect the Nationalisation Act from attack on the ground  of violation  of Articles  14, 19  and 31 and it would be  unnecessary o  invoke the amended Article 31C and if it  was the  latter, then  neither the  unamended nor the amended Article  31C would  have any  application. Thus,  in either  event,   the  amended  Article  31C  would  have  no relevance at  all in  adjudicating upon  the  constitutional validity of  the Nationalisation Act. It is difficult to see how, in  these circumstances, the Court could be called upon to examine  the constitutionality  of the  amendment made in Article  31C:   that  question   just  did   not  arise  for consideration and  it was  wholly unnecessary  to decide it. Mr. Palkhiwala  could reach the battle front for challenging the constitutional  validity of  the Nationalisation  Act as soon as  he cleared the road blocks created by the unamended Article 31C  and the  Constitution (Thirty-ninth  Amendment)

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Act,  1975  bringing  the  Nationalisation  Act  within  the protective wing  of Article 31B and it was not necessary for him to put the amendment in Article 31C out of the way as it did not  block his  challenge against  the validity  of  the Nationalisation Act.  I am,  therefore, of the view that the entire argument  of Mr.  Palkhiwala raising  the question of constitutionality  of  the  amendment  in  Article  31C  was academic and  the Court  could have very well declined to be drawn into it, but since the Court did, at the invitation of Mr. Palkhiwala, embark upon this academic exercise and spent considerable time over it, and the issues raised are also of the gravest  significance to  the future  of the  nation,  I think, I  will be  failing in my duty if I do not proceed to examine this question on merits.      I may  point out  at this  stage (that the arguments on this question were spread over a period of about three weeks and considerable 270 learning and  scholarship  were  brought  to  bear  on  this question  on  both  sides.  The  hearing  of  the  arguments commenced on 22nd October 1979 and it ended on 16th November 1979. I  hoped after  the completion  of  the  arguments  on questions of  such momentous  significance, there would be a ’free  and   frank  exchange  of  thoughts’  in  a  judicial conference either  before or  after the  draft judgment  was circulated by  my Lord  the Chief Justice and I would either be able  to share  the views of my colleagues or if that was not possible,  atleast try to persuade them to agree with my point of view. But, I find myself in the same predicament in which  the   learned  Chief   Justice   found   himself   in Keshavananda Bharti  v. State  of Kerala.  The learned Chief Justice started  his judgment  in that  case by observing "I wanted to  avoid writing  a separate  judgment of my own but such a  choice seems no longer open. We sat in full strength of 13  to hear  the case  and I  hoped that after a free and frank exchange  of thoughts,  I would  be able  to share the views of  someone or  the other of my esteemed brothers, but we were  over-taken by  adventitious circumstances," namely, so much  time was  taken up  by  counsel  to  explain  their respective points  of view that very little time was left to the Judges  "after the  conclusion  of  the  arguments,  for exchange of  draft judgments".  Here also, I am compelled by similar circumstances, though not adventitious, to hand down a separate  opinion without  having had  an  opportunity  to discuss with  my colleagues  the reasons  which weighed with them  in   striking   down   the   impugned   constitutional amendments.  Some   how   or   other,   perhaps   owing   to extraordinary pressure  of work  with which  this  Court  is over-burdened. no judicial conference or discussion was held nor was  any draft  judgment circulated which could form the basis of  discussion, though.  as  pointed  out  above,  the hearing of  the arguments  concluded as  far  back  as  16th November, 1979.  It was only on 8th May, 1980, just two days before the  closing of  the Court  for the  summer vacation, that I was informed by the learned Chief Justice that he and the other  three learned  Judges, who  had heard  this  case along with  me, had  decided. to pass an order declaring the impugned constitutional  amendments ultra  vires and void on the ground  that they  violated the  basic features  of  the Constitution and  that the  reasons for  this order would be given by them later. I found it difficult to persuade myself to adopt  this procedure, because there had been no judicial conference or  discussion amongst  the  Judges  where  there could be  free and frank exchange of views nor was any draft judgment circulated  and hence I did not have the benefit of

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knowing the  reasons why  the learned  Chief Justice and the other three learned judges were 271 inclined to  strike down  the constitutional  amendments. If there had  been a  judicial conference  or discussion or the draft judgment  setting out  the  reasons  for  holding  the impugned constitutional  amendments Ultra vires and void had been circulated,  it would  have been  possible for me, as a result of full and frank discussion or after considering the reasons given  in the  draft judgment,  either to agree with the view  taken by  my Lord  the Chief Justice and the other three learned  judges or  if I was not inclined so to agree, then persuade them to change their view and agree with mine. That is  the essence  of judicial collectivism. It is, to my mind, essential  that a  judgment of  a Court  should be the result of  collective deliberation  of the  judges composing the Court  and it  would, in  my humble  opinion, not  be in consequence with  collective decision making, if one or more of the  judges constituting  the Bench  proceed to  say that they will  express their  individual opinion, ignoring their colleagues and  without discussing the reasons with them and even without  circulating their  draft judgment  so that the colleagues have  no  opportunity  of  participating  in  the collective decision-making  process. This  would introduce a chaotic situation in the judicial process and it would be an unhealthy precedent which this Court as the highest Court in the land  -as a model judicial institution which is expected to set  the tone  for the  entire judiciary  in the country- should not  encourage Moreover, I felt that it was not right to  pronounce   an  order  striking  down  a  constitutional amendment without  giving a reasoned judgment. Ordinarily, a case can  be disposed of only by a reasoned judgment and the order must  follow  upon  the  judgment.  lt  is  true  that sometimes where the case involves the liberty of the citizen or the execution of a death sentence or where the time taken in preparing a reasoned judgment might pre-judicially affect the winning party, this Court, does, in the larger interests of justice,  pronounce an  order and give reasons later, but these  are  exceptional  cases  where  the  requirements  of justice  induces  the  Court  to  depart  from  the  legally sanctioned course.  But, there  the court had in fact waited for about 5 1/2 months after the conclusion of the arguments and there  was clearly  no urgency  which required  that  an order should  be made  though reasons  were not  ready,  the delay of  about 22  months in making the order was not going to injure  the interests  of any  party, since the order was not going  to dispose  of the  writ petition and many issues would still  remain to  be decided which could be dealt only after the  summer vacation.  Thus there  would have  been no prejudice to  the interests of justice if the order had been made on he re-opening of the Court after the summer vacation supported by  a reasoned  judgment. These  were the  reasons which compelled  me to  make my  order dated  9th May,  1980 declining to  pass an  unreasoned order  pronouncing on  the validity of the impugned constitutional 272 amendments and  stating that I would "prefer to pass a final order in  this case  when I  deliver my  reasoned judgment". This    order     unfortunately    led    to    considerable misunderstanding of my position and that is the reason why I have thought  it necessary to explain briefly why I acted in the manner I did.      There is also one other predicament from which I suffer in the  preparation of  this opinion. It is obvious that the decision of  the questions  arising in  Wamanrao’s  case  is

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closely and  integrally connected  with the  decision of the questions in Minerva Mill’s case and therefore, logically as also from  the point  of view  of aesthetics  and  practical pragmatics, there  should be  one opinion  dealing with  the questions in  both the  cases.  But,  unfortunately  Minerva Mill’s case  was heard  by a  Bench of five judges different from the  Bench which heard Wamanrao’s case. Wamanrao’s case was heard  by  a  Bench  consisting  of  the  learned  Chief Justice, myself, Krishna Iyer, J., Tulzapurkar, J. and A. P. Sen, J.  while Krishna  Iyer, J.,  Tulzapurkar, J. and A. P. Sen, J.  were not  members of  the  Bench  which  heard  the Minerva Mill’s case. Since two different Benches heard these cases, there  would ordinarily  have to be two opinions, one in each  case. I. however, propose to write a single opinion dealing with the questions arising in both cases, since that is the only way in which I think I can present an integrated argument in  support of my view, without becoming unduly and unnecessarily repetitive.      The principal question that arises for consideration in these two  cases is  whether Article  31A, Article  31B read with the  9th Schedule  as amended  from time  to  time  and particularly by  the  Constitution  (Seventeenth  Amendment) Act, 1964  and the  Constitution (Fortieth  Amendment)  Act, 1976, Article  31C as it stood prior to its amendment by the Constitution (Forty-second  Amendment)  Act,  1976  and  the amended Article 31C are constitutionally valid; do they fall within the  scope of  the amending power of Parliament under Article 368.  The determination  of this question depends on the answer  to the  larger question  as lo whether there are any limits on the amending power of Parliament under Article 368 and  if so,  what are  the limits. This question came up for consideration before a Bench of 13 Judges of this Court- the largest  Bench that  ever sat-and  after a hearing which lasted for 68 days-the longest hearing that ever took place- eleven  judgments  were  delivered  which  are  reported  in Keshavananda Bharti  v. State of Kerala (supra). The earlier decision of  this Court in l.C. Golaknath & Ors. v. State of Punjab where,  by  a  majority  of  six  against  five,  the fundamental 273 rights were  held to  be  unamendable  by  Parliament  under Article 368,  was over-ruled  as a result of the decision in Keshavananda Bharti’s  case. But,  six out  of the  thirteen learned Judges  (Sikri, C.  J. Shelat,  Grover, Hegde, Reddy and  Mukharjea,   JJ.  accepted   the  contention   of   the petitioners that though Article 368 conferred power to amend the Constitution, there were inherent or implied limitations on the  power of amendment and therefore Article 368 did not confer power  on Parliament  to amend the Constitution so as to destroy  or emasculate the essential or basic elements or features  of   the  Constitution.  The  fundamental  rights, according to  the view  taken by  these six  learned Judges, constituted basic  or essential features of the Constitution and they  could not  be, therefore, abrogated or emasculated in the  exercise of  the amending power conferred by Article 368, though a reasonable abridgment of those rights could be effected  in  the  public  interest.  Khanna,  J.  found  it difficult in  the face  of the clear words of Article 368 to exclude  from   their   operation   Articles   relating   to fundamental rights and he held that "the word ’amendment’ in Article  368   must  carry  the  same  meaning  whether  the amendment relates  to taking  away or  abridging Fundamental rights in Part II of the Constitution or whether it pertains to  some   other  provision   outside  Part   III   of   the Constitution." But proceeding to consider the meaning of the

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word ’amendment’,  the learned  Judge held that the power to amend  does   not  include   the  power   to  abrogate   the Constitution, that  the word ’amendment’ postulates that the existing Constitution must survive without loss of identity, that it  must be  retained though  in an  amended from.  and therefore. the power of amendment does not include the power to destroy  or abrogate  the basic structure or framework of the Constitution.  The remaining  six Judges  took the  view that there  were no  limitations of any kind on the power of amendment, though  three of  them seemed  willing to foresee the limitation  that the  entire Constitution  could not  be abrogated, leaving  behind a  State without  a Constitution. Now some  scholars have  expressed the  view that  from  the welter of confusion created by eleven judgments running over a thousand  pages, it  is not  possible to extract any ratio decidendi which  could be said to be the law declared by the Supreme Court.  It is  no doubt true that the six judges led by Sikri. C.J., have read a limitation on the amending power of Parliament  under Article 368 and so has Khanna, J., have employed the  formulations "basic  features" and  "essential elements" while  Khanna. J.  has  employed  the  formulation "basic structure  and framework"  to indicate  what in  each view is  immune from the amendatory process and it is argued that "basic  features" and  "essential elements"  cannot  be regarded as synonymous with "basic structure and framework". 274 These scholars  have sought  to draw  support for their view from the  following observation of Khanna, J. at page 706 of the Report:           "It is  then argued  on behalf  of the petitioners      that essential  features of  the Constitution cannot be      changed as  a  result  of  amendment.  So  far  as  the      expression  "essential   features"  means   the   basic      structure or  framework of  the  Constitution.  I  have      already dealt with the question as to whether the power      to amend  the Constitution  would include within itself      the power to change the basic structure or framework of      the Constitution.  Apart from  that, all  provisions of      the Constitution  are subject to amendatory process and      cannot claim  exemption  from  that  process  by  being      described essential features." Whatever be  the justification for this view on merits, I do not think  that this observation can be read as meaning that in the opinion of Khanna, J. "basic structure or frame work" as contemplated  by him  was different from "basic features" or "essential  elements" spoken  of by the other six learned judges. It was in the context of an argument urged on behalf of the  petitioners that  the "essential  features"  of  the Constitution cannot  be changed  that this  observation  was made  by  Khanna,  J.  clarifying  that  if  the  "essential features" meant  the "basic  structure or  framework" of the Constitution, the  argument  of  the  petitioners  would  be acceptable, but  if the  "essential features"  did not  form part of  the "basic structure or framework’’ and went beyond it, then  they would  not  be  immune  from  the  amendatory process. But  it does  appear from this observation that The six Judges  led by Sikri C.J. On the one hand and Khanna, J. On the  other were  not completely  ad idem  as regards  the precise scope  of the  limitation on the amendatory power of Parliament. This  might have raised a serious argument as to whether there,  any ratio decidendi at all can be culled out from the  judgments in  this case in so far as the scope and ambit of  the amendatory power of Parliament is concerned. A debatable question  would have  arisen  whether  "basic  and essential features"  can be equated with "basic structure or

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framework" of  the Constitution  and if they cannot be, then can the  narrower of  these two  formulations  be  taken  to represent the  common ratio.  But it  is  not  necessary  to examine this  rather  difficult  and  troublesome  question, because l  find that  in Smt. Indira Gandhi vs. Raj Narain a Bench of  five Judges  of this  Court accepted  the majority view in  Keshavanand Bharti’s  case to  be that the amending power conferred  under Article 368, though wide in its sweep and reaching  every provision  of the Constitution, does not enable Parliament to alter the basic structure or framework 275 of the  Constitution. Since  this is  how the  judgments  in Keshavananda Bharti’s case have been read and a common ratio extracted by  a ’Bench  of five  Judges of this Court, it is binding upon  me and  hence I  must proceed  to  decide  the questions arising  in  these  cases  in  the  light  of  the principle emerging  from the  majority decision that Article 368 does  not confer  power on Parliament to alter the basic structure or framework of the Constitution. I may mention in the passing  that the summary of the judgments given by nine out of  the  thirteen  Judges  after  the  delivery  of  the judgments also  states the majority view to be that "Article 368 does  not enable Parliament to alter the basic structure or framework  of the  Constitution." of  course, in  my view this summary  signed by  nine Judges  has no legal effect at all and  cannot be  regarded as  law declared by the Supreme Court under  Article 141. It is difficult to appreciate what jurisdiction or  power these  nine  Judges  had  to  give  a summary setting out the legal effect of the eleven judgments delivered in  the case.  Once the  judgments were delivered, these nine  Judges as also the remaining four became functus officio and thereafter they had no authority to cull out the ratio of  the judgments  or  to  state  what,  on  a  proper analysis of  the judgments,  was the  view of  the majority. What was  the law laid down was to be found in the judgments and that task would have to be performed by the Court before whom the  question would  arise as  to what  is the law laid down in  Keshavananda Bharti’s  case. The  Court would  then hear the  arguments and dissect the judgments as was done in Smt. Indira Gandhi’s case (supra) and then decide as to what is the  true ratio  emerging from  the  judgments  which  is binding upon  the Court as law laid down under Art. 141. But here it  seems that  nine judges set out in the summary what according to  them was the majority view without hearing any arguments. This  was a rather unusual exercise, though well- intentioned. But  quite apart  from  the  validity  of  this exercise embarked  upon by  the nine  judges, it is a little difficult to  understand how  a proper  and accurate summary could be  prepared by these judges when there was not enough time, after the conclusion of the arguments, for an exchange of draft  judgments amongst  the Judges and many of them did not even  have the  benefit of  knowing fully  the views  of others. I  may, therefore,  make it  clear  that  I  am  not relying on  the statement  of the majority view contained in The  Summary   given  at   the  end   of  the  judgments  in Keshavananda Bharti’s case, but I am proceeding on the basis of the  view taken  in Smt.  Indira Gandhi’s case as regards the ratio  of the majority decision in Keshavananda Bharti’s case.      I may  also at this stage refer to an argument advanced before its  on the  basis of  certain  observations  in  the judgment of Khanna, J. 276 that he  regarded fundamental  rights as not forming part of the basic  structure  of  the  Constitution  and  therefore,

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according to  him, they  could be abrogated or takes away by Parliament by  an amendment  made under Article 368. If this argument were  correct, the  majority holding  in Keshavanda Bharti’s case  would  have  to  be  taken  to  be  that  the fundamental  rights  could  be  abrogated  or  destroyed  in exercise  of  the  power  of  amendment.  because  Ray,  J., Palekar,  J.,   Mathew,  J.,   Beg,  J.,   Dwivedi,  J.  and Chandrachud, J.  took the  view that  the power of amendment being unlimited,  it was competent to Parliament in exercise of this  power to  abrogate or  emasculate  the  Fundamental Rights and  adding the  view of Khanna, J., there would be 7 Judges as  against 6  in holding that the Fundamental Rights could  be  abrogated  or  taken  away  by  Parliament  by  a constitutionally amendment.  But we  do not  think that this submission urged  or  behalf  of  the  respondents  is  well founded. It  is undoubtedly  true. that  there  are  certain observations in  the judgment of Khanna, J. at the bottom of page  688  of  the  Report  which  seem  into  suggest  that according to the learned Judge, the fundamental rights could be abridged or taken away by an amendment under Article 368. For example,  he says:  "No serious  objection is  taken  to repeal,  addition   or  alteration   of  provisions  of  the Constitution other than those in Part III under the power of amendment conferred  by Article 368. The same approach in my opinion  should  hold  good  when  we  deal  with  amendment relating to  Fundamental Rights contained in Part III of the Constitution. It  would be  impermissible  to  differentiate between the  scope and  width of the power of amendment when it deals  with Fundamental Rights and the scope and width of that power  when it deals with provisions not concerned with Fundamental Rights."  Then again  at page 707 of the Report, the learned  Judge rejects  the argument  that the  core and essence of a Fundamental Right is immune from the amendatory process. These  observations might  at first blush appear to support  the   view  that,  according  to  Khanna,  J.,  the amendatory power  under Article 368 was sufficiently wide to comprehend not  only addition or alternation but also repeal of a  Fundamental Right  resulting in  its total abrogation. But if we look art the judgment of Khanna, J. as a whole, we do not  think this  view can  be sustained. It is clear that these observations  were made  by the  learned Judge  with a view to  explaining the  scope and  width of  the  power  of amendment under Article 368. The learned Judge held that the amendatory power  of Parliament  was wide  enough  to  reach every  provision   of   the   Constitution   including   the Fundamental Rights  in Part  Ill of  the  Constitution.  but while so holding, he proceeded to make it clear that despite all this  width the  amendatory  power  was  subject  to  an overriding limitation. 277 namely, that  it could  not be  exercised so as to alter the basic  structure  or  framework  of  the  Constitution.  The learned Judge  stated in  so many  words at  page 688 of the Report that  though "the  power of  amendment is plenary and would include  within itself,  the power  to add,  alter  or repeal the  various articles  including  those  relating  lo fundamental rights", it is "subject to the retention, or the basic structure  or framework of the Constitution." The same reservation was  repeated by  the learned Judge in cl. (vii) of the  summary of  his conclusions  given at the end of his judgment. It  will, therefore,  be seen  that  according  to Khanna, J.  the power  of  amendment  can  be  exercised  by Parliament so as even to abrogate or take away a fundamental right, so  long as  it does not alter the basic structure or framework  of   the  Constitution.  But  if  the  effect  of

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abrogating or taking away such fundamental right is to alter or  affect   the  basic   structure  or   framework  of  the Constitution, the  amendment would  be void as being outside the amending  power of  Parliament. It is precisely for this reason that  the learned Judge proceeded to consider whether the right  to property  could be  said to  appertain to  the basic structure  or framework  of the  Constitution. If  the view of  Khanna, J.  where that  no fundamental  right forms part of the basic structure or framework of the Constitution and it  can therefore be abrogated or taken away in exercise of the  amendatory power  under Article  368, it was totally unnecessary for  the learned  Judge to  consider whether the right to  property could  be said  to appertain to the basic structure or  framework of  the Constitution.  The very fact that Khanna,  J. proceeded  to consider  this question shows beyond doubt  that he  did not  hold that fundamental rights were not  a part  of the  basic structure.  The only limited conclusion reached by him was that the right to property did not form  part of  the basic  structure, but  so far  as the other  fundamental   rights  were  concerned,  he  left  the question open.  Therefore, it  was that  he  took  pains  to clarify in his judgment in Smt. Indira Gandhi’s case (supra) that what  he laid  down in  Keshavananda Bharati’s case was "that no  Article of  the Constitution  is immune  from  the amendatory process  because of  the fact  that it relates to fundamental right  and is  contained  in  Part  III  of  the Constitution", and  that he  did not  hold in That case that "fundamental rights are not a part of the basic structure of the Constitution".  Now if  this be  so, it  is difficult to understand how  he could hold the Constitution (Twenty-ninth Amendment) Act,  1972  unconditionally  valid.  Consistently with his  view, he  should have  held that  the Constitution (Twenty-ninth Amendment) Act 1972 would be valid only if the protection afforded by it to the Kerala Acts included in the 9th Schedule was not violative of the basic structure or 278 framework  of  the  Constitution.  But  merely  because  the learned Judge  wrongly held  the Constitution  (Twenty-ninth Amendment) Act, 1972 to be unconditionally valid and did not uphold its  validity subject  to the  scrutiny of the Kerala Acts added  in the  9th Schedule,  it cannot  follow that he regarded the  fundamental rights  as not forming part of the basic  structure   of  the  Constitution.  If  the  law  was correctly laid  down by  him, it did not become incorrect by being wrongly applied. It is not customary to quote from the writing of a living author, but departing from that practice which, I  believe, is  no  longer  strictly  adhered  to  or followed, I  may point out that what I have said above finds support from  the comment  made by  Mr. Seervai  in the  3rd Volume of  his book on Constitutional Law, where the learned author says: "The conflict between Khanna, J.’s views on the amending power  and on  the unconditional  validity  of  the Twenty Ninth  Amendment is  resolved by  saying that he laid down  the   scope  of  the  amending  power  correctly.  but misapplied that  law in  holding Article  31B and Schedule 9 unconditionally  valid."   l  entirely   agree   with   this perceptive remark of the learned author.      The true  ratio emerging  from the majority decision in Keshavananda Bharati’s case being that the Parliament cannot in the  exercise of  its amendatory  power under Article 368 alter the  basic structure or framework of the Constitution. I must  proceed to consider whether Article 31A, Article 31B read with 9th Schedule, Article 31C as it stood prior to its amendment and  the amended  Article 31C are violative of the basic structure  or framework  of the  Constitution, for  if

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they are,  they would be unconstitutional and void. Now what are the  features or  elements which  constitute  the  basic structure of  framework of  the Constitution  or  which.  if damaged or  destroyed, would  rob the  Constitution  of  its identity  so   that  it  would  cease  to  be  the  existing Constitution but  would become a different Constitution. The majority decision  in Keshavananda  Bharati’s case  no doubt evolved the  doctrine of basic structure or framework but it did not  lay down  that any particular named features of the Constitution  formed   part  of   its  basic   structure  or framework.  Sikri,   C.J.   mentioned   supremacy   of   the Constitution, republican  and democratic form of government. secular character  of the Constitution, separation of powers among the  legislature executive  and judiciary,  federalism and dignity  and freedom  of  the  individual  as  essential features of  the Constitution.  Shelat and Grover, JJ. added to the  list two  other features;  justice- social, economic and political  and unity  and integrity of the nation. Hegde and Mukherjee,  JJ. added  sovereignty of  India as  a basic feature  of   the  Constitution.   Reddy,  J.  thought  that sovereign 279 democratic republic, parliamentary form of democracy and the three organs  of the State formed the basic structure of the Constitution, Khanna, J. held that basic structure indicated the broad  contours and  outlines or  the  Constitution  and since the  right to  property was a matter of detail, it was not a  part of  that structure. But he appeared to be of the view that  the democratic  form of  government. the  secular character of  the State  and judicial  review formed part of the basic  structure. It  is obvious  that these were merely illustrations of  what each of the six learned Judges led by Sikri. C.J.  thought to  be the  essential features  of  the Constitution and  they were  not intended  to be exhaustive. Shelat and Grover, JJ. Hegde and Mukherjea JJ. and Reddy, J. in fact said in their judgments that their list of essential features which  form the basic structure of the Constitution was illustrative  or incomplete.  This  enumeration  of  the essential features  by the  six learned Judges had obviously no binding  authority: first.  because the  Judges were  not required  to   decide  as   to  what  features  or  elements constituted  the   basic  structure   or  framework  of  the Constitution and  what each  of them said in this connection was in  the nature  of obiter and could have only persuasive value; secondly,  because the  enumeration was merely by way of illustration  and thirdly,  because the  opinion  of  six Judges that  certain specified  features formed  part of the basic structure  of the  Constitution did  not represent the majority opinion  and hence  could not  be regarded  as  law declared by  this Court  under Article  141.  Therefore,  in every case  where  the  question  arises  as  to  whether  a particular feature  of the  Constitution is  a part  of  its basic structure,  it  would  have  to  be  determined  on  a consideration of  various factors  such as  the place of the particular feature  in the  scheme of  the Constitution, its object and  purpose and the consequence of its denial on the integrity of the Constitution as a fundamental instrument of country’s governance.  Vide the observations of Chandrachud, J. (as he then was) in Smt. Indira Gandhi’s case at page 658 of the Report.      This exercise of determining whether certain particular features  formed   part  of   the  basic  structure  of  the Constitution had  to be  undertaken by  this Court  in  Smt. Indira Gandhi’s case (supra) which came up for consideration within a  short period  of four  years after the delivery of

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the   Judgments    in   Keshvananda   Bharti’s   case.   The constitutional amendment  which was  challenged in that case was the  Constitution (Thirty-ninth  Amendment)  Act.  1975, which introduced  Article 329A  and the  argument  was  that clause (4)  of this newly added article was constitutionally invalid on  the ground  that it violated the basic structure or  framework   of  the  Constitution.  This  challenge  was unanimously upheld  by a  Constitution Bench which consisted of 280 the Chief Justice and four senior most Judges of this Court. It is not necessary for our purpose to analyse the judgments given by  the five  Judges in  this case  as they  deal with various matters  which are  not relevant  to  the  questions which arise before us. But it may be pointed out that two of the learned Judges, namely, Khanna and Mathew, JJ. held that democracy was an essential feature forming part of the basic structure and  struck down clause (4) of Article 329A on the ground that  it damaged  the  democratic  structure  of  the Constitution. Chandrachud,  J. (as he then was) emphatically asserted that,  in his  opinion, there were four unamendable features which  formed part  of the basic structure, namely, "(i) India is a sovereign democratic republic; (ii) Equality of status  and opportunity  shall  be  secured  to  all  its citizens; (iii)  The State shall have no religion of its own and all  persons shall  be equally  entitled to  freedom  of conscience and  the right  freely to  process, practise  and propagate religion  and (iv) The nation shall be governed by a government  of laws, not of men." These, according to him, were "the  pillars of  our  constitutional  philosophy,  the pillars,  therefore,   of  the   basic  structure   of   the Constitution." He  then proceeded to hold that clause (4) of Article 329A  was "an  outright negation  of  the  right  of equality conferred  by Article  14, a  right which more than any other  is a  basic postulate of our Constitution" and on that account  declared it  to be  unconstitutional and void, Mathew, J.  however, expressed  his dissent  from  the  view taken by  Chandrachud, J.  as regards  the right of equality conferred by  Article 14  being an  essential feature of the Constitution and stated inter alia the following reason:           "The majority  in Bharati’s case did not hold that      Article 14  pertains to  the  basic  structure  of  the      Constitution. The  Majority upheld  the validity of the      first part  of Article  31C; this  would  show  that  a      constitutional amendment  which takes  away or abridges      the right  to challenge the validity of an ordinary law      for violating  the fundamental right under that Article      would not  destroy or  damage the  basic structure. The      only logical  basis  for  supporting  the  validity  of      Article 31A, 31B and the first part of 31C is that Art.      14 is not a basic structure." I shall  have occasion  to  discuss  later  the  concept  of equality under the Constitution and whether it forms part of the basic  structure. But,  one  position  of  a  basic  and fundamental nature I may make clear at this stage, and there I agree  with Mathew,  J., that whether a particular feature forms part  of the  basic structure  has necessarily  to  be determined on  the basis  of the  specific provisions of the Constitution. To  quote the  words of  Mathew,  J.  in  Smt. Indira Gandhi’s  case (supra)  "To be  a basic  structure it must be a terrestrial concept having its 281 habitat within  the four  corners of the Constitution." What Constitutes basic structure is not like "a twinkling star up above  the  Constitution."  "It  does  not  consist  of  any

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abstract ideals  to be  found outside  the provisions of the Constitution.  The,   Preamble  no  doubt  enumerates  great concepts’  embodying  the  ideological  aspirations  of  the people but  these  concepts  are  particularised  and  their essential features  delineated in  the various provisions of the Constitution.  It is  these specific  provisions in  the body  of  the  Constitution  which  determine  the  type  or democracy which the founders of that instrument established; the quality  and nature  of justice,  political, social  and economic which they aimed to realise, the content of liberty of thought  and expression  which they  entrenched  in  that document  and  the  scope  of  equality  of  status  and  of opportunity which  they  enshrined  in  it.  These  specific provisions enacted  in the  Constitution alone can determine the basic  structure of  the  Constitution.  These  specific provisions, either  separately or  in combination. determine the content  of the  great concepts set out in the Preamble. It is  impossible to  spin out any concrete concept of basic structure out  of the  gossamer  concepts  set  out  in  the Preamble. ’The  specific provisions  of the constitution are the  stuff   from  which  the  basic  structure  has  to  be woven.(’)"      Now, in  Wamanrao’s case  the  broad  argument  of  Mr. Phadke on  behalf of the petitioners founded on the doctrine of basic structure was, and this argument was supported by a large number  of  other  counsel  appearing  in  the  allied petitions, that the fundamental rights enshrined in Articles 14  and   19  form  part  of  the  basic  structure  of  the Constitution and  therefore Article  31A, Article  31B  read with 9th Schedule and the unamended Article 31C in so far as they exclude  the applicability  of Articles  14 and  19  to certain kinds  of legislation  emasculate those  fundamental rights  and  thereby  damage  the  basic  structure  of  the Constitution and they must accordingly be held to be outside the amending  power of Parliament and hence unconstitutional and void.  I have  not made any reference here to Article 31 and treated  the argument  of Mr. Phadke as confined only to Articles 14 and 19, because, though Article 31 was very much in the  Constitution when  the arguments  in Wamanrao’s case were  heard,   it  has  subsequently  been  deleted  by  the Constitution  (Forty-Fourth   Amendment)   Act,   1978   and reference to  it has  also been omitted in Articles 31A, 31B and  31C   and  we   are  therefore   concerned   with   the constitutional validity  of these Articles only in so far as they grant  immunity against  challenge  on  the  ground  of infraction of  Articles 14  and 19.  Mr. Phadke on behalf of the petitioners also challenged 282 the constitutional  validity of  the Constitution  (Fortieth Amendment). Act. 1976 which included the amending Acts 21 of 1975, 41  of 1975  and 2 of 1976 in the 9th Schedule. On the ground that  the Lok  Sabha was not in existence at the date when it  was enacted.  But obviously. in view of clauses (4) and (5)  introduced in  Article 368  by section  55 , of the Constitution (Forty-second  Amendment) Act, 1976, it was not possible for  Mr. Phadke  on behalf  of the  petitioners  to assail the  constitutional validity  of Article 31A, Article 31B  read   with  the   9th  Schedule   as  amended  by  the Constitution  (Fortieth   Amendment)  Act.   1976  and   the unamended Article  31C. since  these two  clauses of Article 368 barred  challenge to  the validity  of a  constitutional amendment on  any ground  whatsoever and declared that there shall be  no limitation whatever on the constituent power of Parliament to amend by way of addition. variation or repeal, any provision  of  the  Constitution.  He  therefore.  as  a

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preliminary   step    in   his   argument   challenged   the constitutional validity  of clauses  (4) and  (S) of Article 368 on  the ground  that these  clauses  damaged  the  basic structure of  the Constitution and were outside the amending power of  Parliament. The  argument  of  Mr.  Palkhiwala  on behalf of  the petitioners  in the Minerva Mills’ case was a little different.  He too  attacked the vires of clauses (4) and (5)  of Article  368 since  they barred at the threshold any challenge  against the  constitutional validity  of  the amendment made  in Article  31C, but  so far as Article 31A, Article 31B and the unamended Article 31C were concerned, he did not  dispute their  validity and,  as pointed  out by me earlier, he conceded and in fact gave cogent reasons showing that they  were constitutionally  valid. His only attack was against the validity of the amendment made in Article 31C by section 4  of the  Constitution (Forty-second Amendment Act. ]976 and  he contended  that this  amendment, by  making the Directive Principles  supreme over  the fundamental  rights. damaged  or   destroyed   the   basic   structure   of   the Constitution. He  urged that  the  basic  structure  of  the Constitution  rests   on  the   foundation  that  while  the Directive Principles  are the  mandatory ends of government, those ends  have to be achieved only through the permissible means set  out in the Chapter on fundamental rights and this balance and  harmony between  the fundamental rights and the directive Principles  was  destroyed  by  the  amendment  in Article 31C  by making the fundamental rights subservient to the Directive  Principles  and  in  consequence,  the  basic structure of  the Constitution was emasculated. A passionate plea was  made by  Mr.  Palkhiwala  with  deep  emotion  and feeling that if Article 31C as amended was allowed to stand, it would  be an  open licence  to the  legislature  and  the executive, both  at the Centre and in the States, to destroy democracy and  establish an  authoritarian  or  totalitarian regime, since almost every legislation could be related, 283 directly or  indirectly, to  some  Directive  Principle  and would thus  be able  to earn  immunity from the challenge of Articles 14  and 19  and the fundamental rights enshrined in these two  Articles would be rendered meaningless and futile and  would   become  mere   rope  of  sand.  Mr.  Palkhiwala vehemently urged that Justice, liberty and equality were the three pillars  of the Constitution and they were embodied in Articles 14  and 19  and therefore  if the  supremacy of the fundamental rights enshrined in these Articles was destroyed and they  were made subservient to the directive Principles, it would result in the personality of the Constitution being changed  beyond   recognition  and  such  a  change  in  the personality  would   be  outside   the  amending   power  of Parliament.  Mr.  Palkhiwala  likened  the  situation  to  a permanent state  of emergency  and pointed  out  by  way  of contrast that  whereas under  an emergency the people may be precluded from  enforcing  their  fundamental  rights  under Articles 14  and 19  for the duration of the emergency, here the  people   were  prevented  from  moving  the  court  for enforcement of these fundamental rights for all time to come even without any emergency where a law was passed purporting to give  effect to  any of  the  Directive  Principles.  The amendment  in   Article  31C  was  thus,  according  to  Mr. Palkhiwala, outside the amending power of Parliament and was liable to be struck down as unconstitutional and void.      Logically I  must first  consider the challenge against the constitutional  validity of  clauses (4) and (5) of Art. 368, because  it is  only if  they can be put out of the way that Mr.  Phadke and Mr. Palkhiwala can proceed further with

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their respective  challenges against  the  validity  of  the other constitutional provisions impugned by them. Both these clauses were  inserted in  Article 368  by section 55 of the Constitution (Forty-second Amendment), Act, 1976 with a view to  overcoming  the  effect  of  the  majority  decision  in Keshavananda Bharati’s  case. Clause  (4)  enacted  that  no amendment of  the Constitution  "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" while clause (5), which begins with the words "For  the removal  of doubts",  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." The question  is   whether  these  two  clauses  transgress  the limitations on  the amending  power of  Parliament  and  are therefore void.  I will  first  take  up  for  consideration clause (4)  which seeks to throw a cloak of protection on an amendment made or purporting to have been made in the 284 Constitution and  makes it unchallengeable on any ground. It is rather  curious in its wording and betrays lack of proper care and  attention in drafting. It protects every amendment made or  purporting to  have been  made "whether  before  or after the  commencement of  section S  of  the  Constitution (Forty-second Amendment  Act. 1976."  But would an amendment made by  any other section of the Constitution (Forty second Amendment) Act,  1976 such  as section  (4). which  would be neither before nor after the commencement of section 55, but simultaneous  with   it.  be   covered  by  this  protective provision? This  is purely  a problem  of  verbal  semantics which arises  because of  slovenliness in  drafting that  is becoming rather  common these  days and  I need not dwell on it, for  there are  more important questions which arise out of the  challenge to  the constitutional  validity of clause (4) and  they require  serious consideration. I will proceed on the  basis that  the protection  sought to  be  given  by clause (4)  extends to  every amendment  whatsoever and that the  parenthetical   words  "whether  before  or  after  the commencement of section SS of the Constitution (Forty-second Amendment) Act,  1976" were  introduced  merely  by  way  of abundant  caution  with  a  view  to  indicating  that  this protection was  intended to  cover even  amendments made  or purporting to  have been  made before  the enactment  of the constitution (Forty-second  Amendment) Act. 1976. Now even a cursory look  at the language of clause (4) is sufficient to demonstrate  that   this  is  a  case  of  zeal  overrunning discretion. Clause  (4) provides  that no  amendment to  the Constitution made  or purporting  to have  been  made  under Article 368  shall be called in question in any court on any ground.  The  words  ’on  any  ground’  are  of  the  widest amplitude and  they would obviously cover even a ground that the procedure  prescribed in  clause (2) and its proviso has not been  followed. The  result is that even if an amendment is purported  to have  been made  without complying with the procedure  prescribed   in  sub-clause   (2)  including  its proviso, and  is therefore  unconstitutional. it would still be immune  from challenge.  It was  undisputed common ground both at  the Bar and on the Bench, in Keshavananda Bharati’s case that  any amendment  of the  Constitution which did not conform to  the procedure  prescribed by  sub-clause (2) and its proviso  was no  amendment at  all  and  a  court  would declare it  invalid. Thus  if an  amendment were passed by a simple majority  in the  House of the People and the Council

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of States  and the  President assented  to the amendment, it would in  law be no amendment at all because the requirement of clause  (2) is  that it should be passed by a majority of each of  the two Houses separately and by not less than two- thirds of  the members present and voting. But if clause (4) were valid,  it would  become  difficult  to  challenge  the validity of  such an  amendment and  it would prevail though made in defiance of a 285 mandatory constitutional  requirement. Clause  (2) including its proviso  A would  be rendered completely superfluous and meaningless and its prescription would become merely a paper requirement. Moreover, apart from nullifying the requirement of clause  (2) and  its proviso,  clause (4)  has  also  the effect of  rendering an amendment immune from challenge even if it  damages  or  destroys  the  basic  structure  of  the Constitution and  is therefore outside the amending power of Parliament. So  long as  clause (4)  stands, an amendment of the  Constitution   though  unconstitutional   and  void  as transgressing  the  limitation  on  the  amending  power  of Parliament as  laid down  in  Keshavananda  Bharati’s  case, would be  unchallengeable in a court of law. The consequence of this  exclusion of  the power of judicial review would be that,  in  effect  and  substance,  the  limitation  on  the amending power of Parliament would from a practical point of view, become  non-existent and  it would not be incorrect to say that,  covertly and  indirectly,  by  the  exclusion  of judicial review,  the amending  power  of  Parliament  would stand enlarged  contrary to  the decision  of this  Court in Keshavananda Bharati’s  case. This  would undoubtedly damage the basic  structure of  the Constitution, because there are two essential features of the basic structure which would be violated, namely,  the limited  amending power of Parliament and the  power of  judicial review  with a view to examining whether any  authority under  the Constitution  has exceeded the limits  of its  powers. I  shall immediately  proceed to state the  reasons why  I think that these two features form part of the basic structure of the Constitution.      It is  clear from the majority decision in Keshavananda Bharati’s  case   that  our  Constitution  is  a  controlled Constitution which confers powers on the various authorities created and recognised by it and defines the limits of those powers. The  Constitution is  supreme lex, the paramount law of the  land and  there is  no authority,  no department  or branch  of   the  State,   which  is  above  or  beyond  the Constitution or  has powers  unfettered and  unrestricted by the Constitution.  The Constitution  has devised a structure of power  relationship with  checks and  balances and limits are  placed   on  the   powers   of   every   authority   or instrumentality under  the Constitution.  Every organ of the State, be  it  the  executive  or  the  legislature  or  the judiciary, derives  its authority  from the Constitution and it  has   to  act  within  the  limits  of  such  authority. Parliament too, is a creature of the Constitution and it can only  have  such  powers  as  are  given  to  it  under  the Constitution. It  has no  inherent power of amendment of the Constitution  and   being  an   authority  created   by  the Constitution, it  cannot have  such inherent  power, but the power of  amendment is conferred upon it by the Constitution and it  is a limited power which is so conferred. Parliament cannot in exercise of this power so 286 amend the Constitution as to alter its basic structure or to change its  identity. Now,  if by  constitutional amendment, Parliament were  granted unlimited  power of  amendment,  it

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would cease  to be  an authority under the Constitution, but would become supreme over it, because it would have power to alter the  entire Constitution including its basic structure and even  to put  an end  to  it  by  totally  changing  its identity.  It  will  therefore  be  seen  that  the  limited amending power  of Parliament is itself an essential feature of the  Constitution, a  part of its basic structure, for if the  limited  power  of  amendment  were  enlarged  into  an unlimited power,  the entire  character of  the Constitution would be  changed. It  must follow  as a necessary corollary that any amendment of the Constitution which seeks, directly or indirectly,  to enlarge  the amending power of Parliament by freeing  it from  the limitation of unamendability of the basic structure  would be  violative of  the basic structure and hence outside the amendatory power of Parliament.      It is  a fundamental  principle of  our  constitutional scheme, and  I  have  pointed  this  out  in  the  preceding paragraph, that  every organ  of the  State, every authority under  the   Constitution.  derives   its  power   from  the Constitution and has to act within the limits of such power. But then  the question  arises as  to which  authority  must decide what  are the limits on the power conferred upon each organ or  instrumentality of  the  State  and  whether  such limits are  transgressed or  exceeded. Now  there are  three main departments  of the  State amongst  which the powers of Government are  divided; the  Executive, the Legislature and the Judiciary.  Under our  Constitution  we  have  no  rigid separation of powers as in the United States of America, but there is  a broad  demarcation, though, having regard to the complex nature  of governmental functions, certain degree of overlapping  is   inevitable.  The  reason  for  this  broad separation of powers is that "the concentration of powers in any one  organ may"  t(t quote  the words of Chandrachud, J. (as he  then was)  in Smt.  Indira Gandhi’s case (supra) "by upsetting  that  fine  balance  between  the  three  organs, destroy the  fundamental premises of a democratic Government to which  were pledged."  Take for example, a case where the executive which  is in  charge of administration acts to the prejudice of  a citizen and a question arises as to what are the powers  of the  executive and  whether the executive has acted within  the scope  of  its  powers.  Such  a  question obviously cannot  be left to the executive to decide and for two very  good reasons.  First, the decision of the question would depend upon the interpretation of the Constitution and the laws  and this would pre-eminently be a matter fit to be decided by  the judiciary, because it is the judiciary which alone would  be possessed  of expertise  in this  field  and secondly, the constitutional 287 and legal  protection afforded  to the  citizen would become illusory. A  if it  were left  to the executive to determine the legality  of its  own action. So also if the legislature makes a  law and  a dispute arises whether in making the law the  legislature   has  acted   outside  the   area  of  its legislative competence  or  the  law  is  violative  of  the fundamental  rights  or  of  any  other  provisions  of  the Constitution, its  resolution cannot,  for the same reasons, be, left  to  the  determination  of  the  legislature.  The Constitution  has,   therefore,   created   an   independent machinery for  resolving these disputes and this independent machinery is the judiciary which is vested with the power of judicial review  to  determine  the  legality  of  executive action  and  the  validity  of  legislation  passed  by  the legislature. It  is the  solemn duty  of the judiciary under the Constitution  to keep  the different organs of the State

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such as  the executive and the legislature within the limits of the  power conferred  upon them by the Constitution. This power of  judicial review  is conferred  on the judiciary by Articles 32  anc! 226  of the  Constitution. Speaking  about draft Article 25, corresponding to present Article 32 of the Constitution, Dr.  Ambedkar, the  principal architect of our Constitution,  said  in  the  Constituent  Assembly  on  9th December, 1948:           "If I  was asked to name any particular article in      this Constitution  as  the  most  important-an  article      without which  this Constitution  would be  a nullity-I      could not  refer to  any other article except this one.      It is  the very  soul of  the Constitution and the very      heart of  it and  I am glad that the House has realised      its importance". (CAD debates, Vol. VII, p, 953) It is  a cardinal  principle of our Constitution that no one howsoever highly  placed and  no authority however lofty can claim  to   be  the  sole  judge  of  its  power  under  the Constitution or whether its action is within the confines of such power  laid down  by the Constitution. The judiciary is the interpreter  of the Constitution and to the judiciary is assigned the  delicate task  to determine  what is the power conferred on  each  branch  of  Government,  whether  it  is limited, and  if so,  what are  the limits  and whether  any action of  that branch  transgresses such  limits. It is for the judiciary  to uphold  the constitutional  values and  to enforce the  constitutional limitations. That is the essence of the  rule of  law, which  inter alia  requires that  "the exercise of  powers by  the Government  whether  it  be  the legislature or  the executive  or any  other  authority,  be conditioned by  the Constitution  and the law". The power of judicial review  is an  integral part  of our constitutional system and  without it,  there will be no Government of laws and the  rule of  law would  become a teasing illusion and a promise of  unreality. I am of the view that if there is one feature of our 288 Constitution which,  more  than  any  other,  is  basic  and fundamental to  the maintenance of democracy and the rule of law,  it   is  the  power  of  judicial  review  and  it  is unquestionably, to  my mind,  part of the basic structure of the Constitution. Of course, when I say this I should not be taken  to   suggest  that   however  effective   alternative institutional mechanisms or arrangements for judicial review cannot be  made by  Parliament. But what I wish to emphasise is  that  judicial  review  is  a  vital  principle  of  our Constitution and  it cannot  be abrogated  without affecting the  basic   structure  of   the  Constitution.   If  by   a Constitutional amendment,  the power  of judicial  review is taken away  and it  is provided that the validity of any law made by  the Legislature shall not be liable to be called in question  on   any  ground,   even  if  it  is  outside  the legislative competence of the legislature or is violative of any fundamental  rights, it  would be  nothing short of sub- version of  the Constitution, for it would make a mockery of the distribution of legislative powers between the Union and the States and render the fundamental rights meaningless and futile. So also if a. constitutional amendment is made which has the  effect of  taking away the power of judicial review and providing  that no  amendment made  in the  Constitution shall be liable to be questioned on any ground, even if such amendment  is   violative  of   the  basic  structure.  and, therefore, outside  the amendatory  power of  Parliament, it would be  making Parliament sole judge of the constitutional validity of  what it  has done and that would. in effect and

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substance, nullify  the limitation  on the amending power of Parliament  and   affect  the   basic   structure   of   the Constitution.  The   conclusion  must  therefore  inevitably follow that  clause (4)  of Article 368 is unconstitutional. and  void   as  damaging   the  basic   structure   of   the Constitution.      That takes us to clause (S) of Article 368. This clause opens with  the  words  "For  the  removal  of  doubts"  and proceeds to  declare  that  there  shall  be  no  limitation whatever on  the amending  power of Parliament under Article 368. It  is difficult  to appreciate  the.  meaning  of  the opening words  "For  the  removal  of  doubts"  because  the majority decision  in Keshavananda  Bharati’s  case  clearly laid down  and left no doubt that the basic structure of the Constitution was  outside the  competence of  the  mandatory power of Parliament and in Smt. Indira Gandhi’s case all the Judges unanimously accepted theory of the basic structure as a theory  by which  the validity  of the  amendment impugned before them,  namely, Article  329A(4)  was  to  be  judged. Therefore, after  the decisions  in  Keshavananda  Bharati’s case and  Smt. Indira  Gandhi’s case,  there was no doubt at all that the amendatory. power of Parliament was limited and it was  not competent  to  Parliament  to  alter  the  basic structure of the Constitution 289 and clause  (5) could  not remove  the doubt  which did  not exist. What  A clause  (S) really sought to do was to remove the limitation  on the  amending  power  of  Parliament  and convert it  from a limited power into an unlimited one. This was clearly and indubitably a futile exercise on the part of Parliament. I  fail to  see how  Parliament which has only a limited power  of amendment and which cannot alter the basic structure of  the  Constitution  can  expand  its  power  of amendment so as to confer upon itself the power of repeal or abrogate the  Constitution or to damage or destroy its basic structure. That  would clearly  be in  excess of the limited amending power possessed by Parliament. The Constitution has conferred only  a limited  amending power  on Parliament  so that it  cannot damage or destroy the basic structure of the Constitution and  Parliament  cannot  by  exercise  of  that limited amending  power convert  that  very  power  into  an absolute and  unlimited power.  If it  were  permissible  to Parliament to  enlarge the  limited amending power conferred upon it  into an  absolute power  of amendment,  then it was meaningless to  place a  limitation on the original power of amendment. It  is difficult  to  appreciate  how  Parliament having a  limited power  of amendment  can get  rid  of  the limitation by exercising that very power and convert it into an absolute power. Clause (S) of Article 368 which sought to remove the limitation on the amending power of Parliament by making it absolute must therefore be held to be outside the- amending power  of Parliament.  There is also another ground on which  the validity  of this  clause can  be successfully assailed.  This   clause  seeks   to  convert  a  controlled Constitution  into  an  uncontrolled  one  by  removing  the limitation on  the amending  power of  Parliament which,  as pointed out  above, is  itself an  essential feature  of the Constitution and  it is  therefore violative  of  the  basic structure would  in the  circumstances hold  clause  (5)  of Article 368 to be unconstitutional and void.      With clauses (4) and (S) of Article 368 out of the way, I must  now proceed  to examine  the challenge  against  the constitutional validity  of Article  31A, Article  31B  read with the  9th Schedule and the unamended Article 31C. So far as Article  31A is concerned, Mr. Phadke appearing on behalf

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of the petitioners contended that, tested by the doctrine of basic structure,  Art. 31A  was unconstitutional  and  void, since it  had the effect of abrogating Articles 14 and 19 in reference  to  legislation  falling  within  the  categories specified in  the various clauses of that Article. He argued that the  Fundamental Rights enshrined in Articles 14 and 19 were part of the basic structure of the Constitution and any constitutional amendment  which had the effect of abrogating or  damaging   these  Fundamental  Rights  was  outside  the amendatory power of Parliament. While considering this 290 argument, I  may make it clear that I am concerned here only with constitutional  validity of  clause (a)  of Article 31A since the  protection of  Article 31A  has been  claimed  in respect of  Maharashtra Land  Ceiling Acts only under clause (a) of  that Article  and I need not enter upon a discussion of the  constitutional validity  of clauses  (b) to  (e)  of Article 31A.  I do not think that the argument of Mr. Phadke challenging the  constitutional validity  of clause  (a)  of Article 31A  is well-founded. I shall have occasion to point out in  a later  part of this judgment that where any law is enacted for  giving effect  to a  Directive Principle with a view to  furthering the  constitutional goal  of social  and economic justice,  there would  be no violation of the basic structure, even  if it  infringes formal equality before the law under Art. 14 or any Fundamental Right under Article 19. Here clause  (a) of  Article 31A  protects a law of agrarian reform which  is clearly.  in  the  context  of  the  socio- economic conditions prevailing in India, a basic requirement of social  and  economic  justice  and  is  covered  by  the Directive Principles  set out  in clauses  (b)  and  (c)  of Article 39 and it is difficult to see how it can possibly be regarded  1)   as  violating  the  basic  structure  of  the Constitution. On  the contrary,  agrarian reform  leading to social and  economic justice  to the  rural population is an objective which  strengthens  the  basic  structure  of  the Constitution. Clause  (a) of  Article 31A  must therefore be held to be constitutionally valid even on the application of the basic structure test.      But, apart  from this  reasoning on  principle which in our opinion  clearly sustains the constitutional validity of clause (a)  of Article  31A. we think that even on the basis of the doctrine of stare decisions, the whole of Article 31A must be upheld as constitutionally valid. The question as to the constitutional  validity of  Article 31  A first came up for consideration  before this  Court in  Shankari Prasad v. Union of  India.  There  was  a  direct  challenge  levelled against the constitutionality of Article 31A in this case on various  grounds  and  this  challenge  was  rejected  by  a Constitution Bench  of this  Court. The  principal ground on which the  challenge was  based was that if a constitutional amendment takes  away or  abridges any  of  the  Fundamental Rights conferred  by Part  III of  the Constitution it would fall within  the prohibition  of  Article  13(2)  and  would therefore be void. Patanjali Shastri, J., speaking on behalf of the  Court, did not accept this contention and taking the view that  in the context of Article 13, ’law’ must be taken to mean  rules or  regulations made  in exercise of ordinary legislative power  and not  amendments to  the  constitution made in exercise of constituent power, be held that 291 Article 13(2)  does not  affect  constitutional  amendments. This view  in regard to the interpretation of the word ’law’ in Article 13(2) has now been affirmed by this Court sitting as a  full Court of 13 Judges in Keshavananda Bharati’s case

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and  it   is  no  longer  possible  to  argue  the  contrary proposition.  It   is  true   that  in,   this   case,   the constitutional validity  of Article  31A was not assailed on the ground  of in  fraction of  the basic feature since that was a doctrine which came to be evolved only in Keshavananda Bharati’s case,  but the  fact remains  that whatever be the arguments advanced  or omitted  to be  advanced. Article 31A was held  to be constitutionally valid by this Court. Nearly 13 years  after this decision was given in Shankari Prasad’s case, a  strong plea  was made  before this  Court in Sajjan Singh v.  State of  Rajasthan that  Shankari  Prasad’s  case should be  reconsidered, but  after a detailed discussion of the various arguments involved in the case, the Constitution Bench of  this Court  expressed concurrence  with  the  view expressed in  Shankari Prasad’s  case  and  in  the  result, upheld the  constitutional validity  of Article  31A, though the question  which arose  for consideration  was  a  little different and  did not  directly involve  the constitutional validity  of   Article  31A.  Thereafter,  came  the  famous decision of  this Court  in Golak  Nath’s case  where a full Court of  11 Judges.  while holding  that  the  Constitution (First Amendment  Act  exceeded  the  constituent  power  or Parliament, still  categorically declared  on, the  basis of the doctrine prospective overruling that the said amendment, and a  few other  like amendments  subsequently made, should not be  disturbed and  must be  held to be valid. The result was that even the decision in Golak Nath’s case accepted the constitutional validity  of Article  31A. The  view taken in Golak  Nath’s   case  as   regards  the  amending  power  of Parliament was reversed in Keshavananda Bharati’s case where the entire  question as  to the  nature and  extent  of  the constituent power  of Parliament  to amend  the Constitution was discussed  in all its dimensions and aspects uninhibited by any  previous  decisions,  but  the  only  constitutional amendments which  were directly challenged in that case were the  Twenty-fourth   and   Twenty-fifth   and   Twenty-ninth Amendments. The  constitutional validity of Art. 31A was not put in  issue in Keshavananda Bharati’s case and the learned Judges who  decided  that  case  were  not  called  upon  to pronounce on  it and  it cannot  therefore be said that this Court uphold the vires of Article 31A in that Case. It is no doubt true  that Khanna,  J. held Article 31A to be valid on the principle  of stare  decisis. but  that was only for the purpose of upholding the validity of Article 31C. 292 because he  took the  view that  Article 31C  was merely  an extension of  the principle accepted in Article 31A and "the ground which sustained the validity of clause (1) of Article 31A, would equally sustain the validity of the first part of Article 31C".  So far  as  the  other  learned  Judges  were concerned, they did not express any view specifically on the constitutional validity  of Article  31A, since that was not in issue before them. Ray, J., Palekar, J., Mathew, J., Beg, J., Dwiwedi,  J. and Chandrachud, J., held Article 31C to be valid  and  if  that  view  be  correct,  Article  31A  must fortiorari be  held to  be valid  But it  must be  said that there is  no decision of the Court in Keshavananda Bharati’s case  holding   Art.  31A  as  constitutionally  valid,  and logically, therefore,  it should  be open to the petitioners in the  present case  to contend  that. tested  by the basic structure doctrine,  Article 31A  is constitutional. We have already pointed  out that  on merits  this argument  has  no substance and  even on an application of the basic structure doctrine. Article 31A cannot be condemned as invalid. But in any event,  I do not think that it would be proper to reopen

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the question of constitutional validity of Article 31A which has already  been decided  and silenced  by the decisions of this Court  in Shankari  Prasad’s case,  Sajjan Singh’s case and Golak  Nath’s case.  Now for  over 28  years, since  the decision in  Shankari Prasad’s  case Article  31A  has  been recognised as valid and on this view, laws of several States relating to  agrarian reform  have been held to be valid and as pointed  out by Khanna, J. in Keshavananda Bharati’s case "millions of  acres of  land have changed hands and millions of new  titles in  agricultural lands have been created". If the question  of validity  of Article  31A were reopened and the  earlier   decisions   upholding   its   validity   were reconsidered in  the light  of the basic structure doctrine, these various  agrarian reform laws which have brought about a near  socio-economic revolution  in the  agrarian,  sector might be  exposed . to jeopardy and that might put the clock back by  settling at  naught  all  changes  that  have  been brought about  in agrarian  relationship during  these years and create chaos in the lives of millions of people who have benefitted by  these laws.  It is  no doubt  true that  this Court has  power to  review its  earlier decisions  or  even depart from them and the doctrine of stare decisis cannot be permitted to perpetuate erroneous decisions of this Court to the detriment of the general welfare of the public. There is indeed a  school of thought which believes with Cardozo that "the precedents  have turned  upon us and they are engulfing and annihilating  us, engulfing  and annihilating  the  very devotees that worshipped at their shrine" and that the Court should not  be troubled  unduly if it has to break away from precedents in  order to  modify old  rules and if need be to fashion new  ones to meet the challenges and problems thrown upon 293 by a dynamic society. But at the same time, it must be borne in A  mind  that  certainty  and  continuity  are  essential ingredients of  rule of  law. Certainty  in applicability of law would  be considerably  eroded and suffer a serious set- back if  the highest  court in  the  land  were  readily  to overrule the  view expressed by it in earlier decisions even though that  view has  held the field for a number of years. It is  obvious that when constitutional problems are brought before this  Court for  its decision,  complex and difficult questions are  bound to arise and since the decision on many of such  questions may  depend upon choice between competing values, two  views. may be possible depending upon the value judgment or  the choice  of values  made by  the  individual Judge. Therefore,  if one  view has  been taken by the Court after mature  deliberation, the  fact that  another Bench is inclined to take another view would not justify the Court in reconsidering the  earlier decision  and overruling  it. The law laid  down by this Court is binding on all Courts in the country and  numerous cases all over the country are decided in accordance with the view taken by this Court. Many people arrange their  affairs and large number of transactions also take place  on the  faith of the correctness of the decision given  by   this  Court.   It  would   create   uncertainty, instability and  confusion if  the law  propounded  by  this Court on the faith of which numerous cases have been decided and many transactions have taken place is held to be not the correct law  after a  number of years. The doctrine of stare decisis has  evolved from  the maxim  "stare decisis  et non quita movere"  meaning "adhere  to the  decision and  do not unsettle things  which are  established", and it is a useful doctrine intended to bring about certainty and uniformity in the law. But when I say this, let me make it clear that I do

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not regard  the doctrine  of stare  decisis as  a rigid  and inevitable doctrine  which must  be applied  at the  cost of justice. There may be cases where it may be necessary to rid the doctrine  of its petrifying rigidity. "Stare decisis" as pointed out  by Brandeis  "is always  a desideratum, even in these constitutional  cases, but  in them,  it  is  never  a command". The  Court may  in an  appropriate case overrule a previous decision  taken by it, but that should be done only for substantial  and compelling reasons. The power of review must be-  exercised with  due care  and caution and only for advancing the public well-being and not 294 merely because  it may appear that the previous decision was based on  an erroneous view of the law. It is only where the perpetuation of  the earlier decision would be productive of mischief or  inconvenience  or  would  have  the  effect  of deflecting the  nation from the course which has been set by the Constitution makers or to use the words of Krishna Iyer, J. in  Ambika Prasad  Misra v.  State of  U.P. & Ors. "where national crisis  of great  momenta to  the life, liberty and safety of  this country and its millions are at stake or the basic direction of the nation itself is in peril of a shake- up" that  the Court  would be justified in reconsidering its earlier decision  and departing  from it.  It is fundamental that  the  nation’s  Constitution  should  not  be  kept  in constant uncertainty  by judicial review every now and then, because otherwise  it would  paralyse by  perennial suspense all legislative  and administrative  action on vital issues. The Court  should not  indulge in  judicial stabilisation of State action  and a  view which has been accepted for a long period of  time in a series of decisions and on the faith of which millions  of people  have acted  and a large number of transactions have  been effected,  should not  be disturbed. Let us not forget the words of Justice Roberts of the United States Supreme  Court-words which  are equally applicable to the decision making process in this Court:           "The reason  for my  concern is  that the  instant      decision, overruling  that announced  about nine  years      ago, tends to bring adjudications of this tribunal into      the same days as a restricted rail road ticket good for      this day  and train only.. It is regrettable that in an      era  marked  by  doubt  and  confusion,  an  era  whose      greatest need  is steadfastness of thought and purpose,      this Court  which has  been  looked  to  as  exhibiting      consistency in  adjudication, and  a  steadiness  which      would hold  the balance  even in  the face of temporary      ebbs and flows of opinion, should now itself become the      breeder of fresh doubt and confusion in the public mind      as to the stability of out institutions." Here the view that Article 31A is constitutionally valid has been taken in atleast three decisions of this Court, namely, Shankari Prasad’s case, Sajjan Singh’s case and Golak Nath’s case and  it has held the field for over 28 years and on the faith of  its correctness, millions of acres of agricultural land have changed hands and new agrarian relations have come into being,  transforming the  entire  rural  economy.  Even though the  constitutional validity  of Article  31A was not tested  in   these  decisions  by  reference  to  the  basic structure doctrine,  I do  not  think  the  Court  would  be justified in allowing the earlier decisions to be 295 reconsidered and  the question of constitutional validity of Article 31A  A  re-opened.  These  decisions  have  given  a quietus to the constitutional challenge against the validity of Article 31A and this quietus should not now be allowed to

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be disturbed.  I may  point that this view which I am taking is supported  by the decision of this Court in Ambika Prasad Misra v. State of U.P. and ors. (supra).      I may now turn to consider the constitutional challenge against the  validity of  Article  31B  read  with  the  9th Schedule. This  Article was  introduced in  the Constitution alongwith Article  31A by the Constitution (First Amendment) Act, 1951. Article 31A as originally introduced was confined only  to   legislation  for  acquisition  of  an  estate  or extinguishment or  modification of  any rights  in an estate and it saved such legislation from attack under Articles 14, 19 and 31. Now once legislation falling within this category was protected  by Art.  31A, it  was not  necessary to enact another saving  provision in  regard to  the  same  kind  of legislation. But, presumably, having regard to the fact that the constitutional  law was  still in the stage of evolution and it  was not  clear whether  a law, invalid when enacted, could  be   revived  without  being  re-enacted.  Parliament thought that  Article 31A,  even if retrospectively enacted. may  not   be  sufficient   to  ensure  the  validity  of  a legislation which was already declared void by the courts as in Kameshwar  Singh’s  case,  and  therefore  considered  it advisable to  have a  further provision  in Article  31B  to specifically   by-pass    judgments   striking   down   such legislation. That seems to be the reason why Article 31B was enacted  and   statutes  falling  within  Article  31A  were included in  the 9th  Schedule. Article  31B  was  conceived together with Article 31A as part of the same design adopted to give  protection to legislation providing for acquisition of an estate or extinguishment or modification of any rights in an  estate. The  9th Schedule  of l?  Article 31B was not intended to include laws other than those covered by Article 31A. That  becomes  clear  from  the  speeches  of  the  Law Minister and the Prime Minister during the discussion on the Constitution  (First  Amendment)  Act,  1951.  Dr.  Ambedkar admitted of  the 9th  Schedule that  prima facie  "it is  an unusual procedure"  but he went on to add that "all the laws that have  been saved  by this   Schedule are laws that fall under Article  31." Jawaharlal  Nehru also  told Parliament: "It is  not with  any great satisfaction or pleasure that we have produced  this long  Schedule. We do not wish to add to it for  two reasons.  One is that the Schedule consists of a particular type  of  legislation,  generally  speaking,  and another type  should not  come in..  " (emphasis  supplied). Articles 31A and 296 31B  were  thus  intended  to  serve  the  same  purpose  of protecting legislation falling within a certain category. It was a  double barelled  protection which  was intended to be provided to  this category  of  legislation,  since  it  was designed to carry out agrarian reform which was so essential for  bringing  about  a  revolution  in  the  socio-economic structure  of   the  country.   This  was  followed  by  the Constitution (Fourth  Amendment)  Act,  1956  by  which  the categories of legislation covered by Article 31A were sought to be  expanded by  adding certain  new clauses after clause (a). Originally,  in the  draft bill  in addition  to  these clauses, there was one more clause, namely, clause (d) which sought to  give  protection  to  a  law  providing  for  the acquisition or  requisitioning of any immovable property for the rehabilitation  of displaced persons and, as a corollary to the  proposed amendment  of Art.  31A, it was proposed in Clause (S)  of the  Bill to add in the 9th Schedule two more State Acts and four Central Acts which fell within the scope of clauses  (d) and (f) of the revised Article 31A. Vide cl.

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(4) of  the Statement  of objects  and Reasons-The two State Acts which  were proposed to be included in the 9th Schedule were the Bihar Displaced Persons Rehabilitation (Acquisition of Land) Act. 1950 and the United Provinces Land Acquisition (Rehabilitation of Refugees) Act, 1948. The West Bengal Land Development and Planning Act, 1948, which was struck down by this Court in State of West Bengal v. Bela Banerjee, and the invalidity of  which really  started the  entire exercise of the Constitution  (Fourth Amendment) Act. 1955, was however, left-out of  the 9th  Schedule in  the draft Bill because it included certain  purposes of acquisition which fell outside the proposed  clause (d)  of Article  31A.  But,  while  the Constitution (Fourth Amendment) Act, 1955 was being debated, an ordinance  was issued  by the  Governor  of  West  Bengal omitting with  retrospective effect  all the  items  in  the definition of  "public purpose"  except  the  settlement  of displaced persons  who had  migrated into  the State of West Bengal, with  the result that the West Bengal Act as amended by the  ordinance came  within the  category of  legislation specified in the proposed clause (d) of Art. 31A. In view of this amendment,  the West Bengal Act was included in the 9th Schedule by  way of  amendment of  the  draft  Bill.  It  is significant  to  note  that  similar  Orissa  Statute  which provided for  acquisition of  land for purposes going beyond the proposed  clause (d)  of Article  31A and  which was not amended in  the same  manner as the West Bengal Act, was not included in  the 9th  Schedule. A  Central Act,  namely, the Resettlement of  Displaced Persons  (Land Acquisition)  Act, 1948 fell  within the proposed clause (d) of Art. 31A and it was therefore included in the 297 9th Schedule  in the  draft Bill.  The link between Articles 31A and  A 31B  was thus  maintained in  the draft Bill, but when the  draft Bill  went before  the Joint  Committee. the proposed clause  (d) of  Article 31A  was  deleted  and  the Bihar, U.P. and West Bengal Acts as also the above-mentioned Central Act  which were originally intended to be within the scope and  ambit of  Article 31A,  became unrelated  to that Article. Even  so, barring  these four  Acts, all  the other statutes included in the 9th Schedule fell within one or the other clause  of the  amended Art.  31A. Subsequent  to this amendment. several  other  statutes  dealing  with  agrarian reform were included in the 9th Schedule by the Constitution (Seventeenth Amendment)  Act, 1964  and no  complaint can be made in  regard to such addition, because all these statutes partook of  the character of agrarian reform legislation and were covered  by clause  (a) Of  Article 31A  in view of the extended definition  of "estate"  substituted  by  the  same amending Act.  The validity of the Constitution (Seventeenth Amendment) Act,  1964 was  challenged before  this Court  in Golak Nath’s case (supra) and though the Court by a majority of six  against five  took the  view that  Parliament has no power to  amend any  fundamental right,  it held  that  this decision would  not affect  the validity of the Constitution (Seventeenth  Amendment)   Act,  1964   and  other   earlier amendments to  the  Constitution  and  thus  recognised  the validity of  the  various  constitutional  amendments  which included statutes in the 9th Schedule from time to time upto that  date.   Then  came   the  Constitution  (Twenty  Ninth Amendment) Act,  1972 by  which two  Kerala agrarian  reform statutes were  included in the 9th Schedule. The validity of the  Twenty   Ninth  Amendment   Act   was   challenged   in Keshavananda Bharati’s case, but by a majority consisting of Khanna. J.  and the  six learned Judges led by Ray. C.J., it was held  to be  valid. Since all the earlier constitutional

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amendments  were  held  valid  on  the  basis  of  unlimited amending power of Parliament recognised in Shankari Prasad’s case and  Sajjan Singh’s  case and were accepted as valid in Golak Nath’s  case and  the Twenty  Ninth Amendment  Act was also held  valid in  Keshavananda Bharati’s case. though not on the  application of  the basic  structure test, and these constitutional amendments have been recognised as valid over a number  of years and moreover, the statutes intended to be protected by  them are  all falling  within Article 31A with the possible  exception of only four Acts referred to above, I do  not think,  we would  be justified  in re-opening  the question of  validity of these constitutional amendments and hence we  hold them  to be  valid. But,  all  constitutional amendments made after the decision in Keshavananda Bharati’s case would  have to  be tested  by reference  to  the  basic structure doctrine, for Parliament would then have no excuse for saying that it did not know the limitation 298 on its  amending power.  It may  be pointed out that quite a large number  of statutes  have been  included  in  the  9th Schedule by  the subsequent  constitutional  amendments  and strangely enough,  we find  for the first time that statutes have been  included which  have no  connection at  all  with Article 31A or 31C and this device of Article 3113 which was originally adopted only as a means of giving a more definite and assured  protection  to  legislation  already  protected under  Article  31A,  has  been  utilised  for  the  totally different  purpose   of  excluding   the  applicability   of Fundamental Rights  to  all  kinds  of  statute  which  have nothing to  do with agrarian reform or Directive Principles. This is  rather a  disturbing phenomenon.  Now  out  of  the statutes which  are or  may in future be included in the 9th Schedule by  subsequent constitutional  amendments. if there are any  which fall within a category covered by Article 31A or  31C,  they  would  be  protected  from  challenge  under Articles 14 and 19 and it would not be necessary to consider whether  their   inclusion  in   the  9th   Schedule  J’  is constitutionally valid,  except in  those rare  cases  where protection may  be claimed for them against violation of any other fundamental]  rights. This  question  would  primarily arise only  in regard to statutes not covered by Article 31A or 31C  and in case of such statutes the Court would have to consider whether  the  constitutional  amendments  including such  statutes   in  the  9th  Schedule  violate  the  basic structure of the Constitution in granting them immunity from challenge of  the fundamental rights. It is possible that in a given case, even an abridgement of a fundamental right may involve violation  of the  basic  structure.  It  would  all depend on  the nature  of the  fundamental right, the extent and depth  of the  infringement, the  purpose for  which the infringement is  made and  its impact on the basic values of the Constitution.  Take  for  example,  right  to  life  and personal liberty  enshrined in Article 21. This stands on an altogether different  footing from other fundamental rights. I do  not wish  to express  any definite  opinion, but I may point out  that if this fundamental right is violated by any legislation. it may be difficult to sustain a constitutional amendment which  seeks to  protect such  legislation against challenge under  Art. 21.  So also where a legislation which has nothing  to do  with agrarian  reform or  any  Directive Principles  infringes   the  equality  clause  contained  in Article 14 and such legislation is sought to be protected by a constitutional  amendment  by  including  it  in  the  9th Schedule,  it   may  be   possible  to   contend  that  such constitutional amendment  is violative  of  the  egalitarian

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principle which  forms par of the basic structure. But these are only  examples which I am giving by way of illustration. for other situations may arise where infraction. 299 of a  fundamental right  by  a  statute,  if  sought  to  be constitutionally  A   protected,  might   affect  the  basic structure of  the Constitution.  In every  case,  therefore, where a  constitutional  amendment  includes  a  statute  or statutes in  the 9th  Schedule, its  constitutional validity would have  to be  considered  by  reference  to  the  basic structure doctrine  and such  constitutional amendment would be liable  to be  declared invalid to the extent to which it damages or  destroys the basic structure of the Constitution by according  protection against violation of any particular fundamental right.      I will  now turn  to consider the challenge against the constitutional validity  of the  unamended  Art.  31C.  This article  was   introduced  in   the  Constitution   by   the Constitution  (Twenty-fifth  Amendment)  Act,  1971  and  it provided in  its first  part that  "Notwithstanding anything contained in  Art. 13, no law giving effect to the policy of the state  towards securing  the principles specified in Cl. (b) or  (c) of  Art. 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 Art. 14, Art. 19 or Art. 31".  It is  not necessary to reproduce here the second part of  the unamended  Art. 31C  because that  was declared unconstitutional by  the majority  decision in  Keshavananda Bharti’s case  and must  consequently be treated as non-est. The  argument  of  Mr.  Phadke  against  the  constitutional validity of  the unamended  Art. 31C was the same as in case of Art.  31A, namely,  that it  emasculated the  fundamental rights in Articles 14 and 19 and was, therefore, destructive of  the   basic  structure  of  the  Constitution.  I  shall presently examine  this argument  on merits  and demonstrate that it  is unsustainable,  but before  I do so, I may point out at  the outset  that it  is wholly unnecessary to embark upon a  discussion of  the merits  of this argument, because the first  part of  the unamended  Art. 31C  was held  to be constitutionally  valid   by  the   majority   decision   in Keshavananda Bharti’s  case and  that decision being binding upon as,  it is  not open  to Mr.  Phadke to  reagitate this question. Out of the thirteen Judges who sat on the Bench in Keshavananda  Bharti’s  case,  Ray,  J.,  as  he  then  was, Palekar, J.,  Dwivedi, J.,  Khanna, J., Mathew. J., Beg, J., and Chandrachud,  J., (as he then was took the view that the first part  of the  unamended Art.  31C was constitutionally valid, because the amending power of parliament was absolute and unlimited.  Khanna, J.  did not  subscribe to the theory that Parliament had an absolute and unlimited right to amend the  Constitution  and  his  view  was  that  the  power  of amendment  conferred  on  Parliament  was  a  limited  power restricting Parliament  from so amending the Constitution as to alter  its basic structure, but even on the basis of this limited power,  he upheld the constitutional validity of the first part  of the  unamended Article  31C. There  were thus seven 300 out of  thirteen Judges  who held that the first part of the unamended Art.  31C was  constitutionally valid,  though the reasons which prevailed with Khanna, J. for taking this view were different from those which prevailed with the other six learned Judges.  The issue  as  regards  the  constitutional validity of  the first  part of the unamended Art. 31C which directly  arose  for  consideration  before  the  Court  was

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accordingly answered in favour of the Government and the law laid down  by the  majority decision was that the first part of the  unamended Art.  31C was constitutional and valid and this declaration  of the  law must be regarded as binding on the  court  in  the  present  writ  petitions.  Mr.  Phadke, however, disputed  the correctness  of this  proposition and contended that  what was binding on the court was merely the ratio decidendi  of Keshavananda  Bharati’s case and not the conclusion that  the first part of the unamended Article 31C was valid.  The ratio  decidendi  of  Keshavananda  Bharti’s case, according to Mr. Phadke, was that the amendatory power of Parliament  is limited  and. it cannot be exercised so as to alter  the basic structure of the Constitution and it was this ratio  decidendi which was binding upon us and which we must apply  for the purpose of determining whether the first part of  the  unamended  Article  31C  was  constitutionally valid. It is no doubt true, conceded Mr. Phadke that the six learned Judges  headed by  Ray, J. (as he then was) held the first  part   of   the   unamended   Article   31C   to   be constitutionally valid  but  that  was  on  the  basis  that Parliament had  absolute and unrestricted power to amend the Constitution, which  basis was,  according to  the  majority decision, incorrect.  lt was  impossible to  say, argued Mr. Phadke, what would have been the decision of the six learned Judges headed by Ray, J. (as he then was if they had applied the correct test and examined the constitutional validity of the first  part of the unamended Article 31C by reference to the yardstick  of the  limited power of amendment, and their conclusion upholding  the validity  of the first part of the unamended Article  31C by  applying the wrong test could not therefore be  said to  be binding  . On  the  Court  in  the present writ  petitions. This  argument of Mr. Phadke is, in my opinion, not well founded and cannot be accepted. I agree with Mr.  Phadke that  the ratio  decidendi of  Keshavananda Bharati’s case  was that the amending power of Parliament is limited and,  Parliament cannot  in exercise of the power of amendment alter  the basic structure of the Constitution and the validity of every constitutional amendment has therefore to be  judged by  applying the test whether or not it alters the basic  structure of  the constitution  and this test was not applied  by the six learned Judges headed by Ray, J. (as he 301 then was),  but there  my agreement ends and I cannot accept further   argument of  Mr. Phadke  that for this reason, the conclusion reached by the six learned Judges and Khanna, J., as regards  the constitutionality  of the  first part of the unamended Article  31C has no validity. The issue before the court in  Keshavananda Bharti’s  case was  whether the first part of the unamended Article 31C was constitutionally valid and this issue was answered in favour of the Government by a majority of seven against six. It is not material as to what were the  reasons which  weighed with each one of the Judges who upheld  the validity  of the first part of the unamended Article 31C.  The reasons for reaching this conclusion would certainly have  a bearing  on the determination of the ratio decidendi  of   the  case  and  the  ratio  decidendi  would certainly be  important for  the decision  of  future  cases where the  validity of  some other  constitutional amendment may come  to be  challenged, but  so far  as the question of validity of  the first  part of the unamended Article 31C is concerned, it  was  in  so  many  terms  determined  by  the majority decision  in Keshavananda  Bharati’s case  and that decision must  be held  binding upon  us. Mr.  Phadke cannot therefore be  allowed to  reopen this  question and  I  must

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refuse to entertain the challenge against the Constitutional validity of the unamended Art. 31C preferred by Mr. Phadke.      But even  if it  were open to Mr. Phadke to dispute the decision in  Keshavananda  Bharti’s  case  and  to  raise  a challenge against  the constitutional  validity of the first part of  the unamended  Article 31C,  I  do  not  think  the challenge can  succeed. What the first pari of the unamended Article 31C does is merely to abridge the Fundamental Rights in Articles  14 and  19 by  excluding their applicability to legislation giving effect to the policy towards securing the principles specified  in clauses  (b) and (c) of Article 39. The first  part of the unamended Article 31C is basically of the same genre as Article 31A with only this difference that whereas  Article  31A  protects  laws  relating  to  certain subjects, the  first part of the unamended Article 31C deals with laws having certain objectives. There is no qualitative difference between  Article 31A  and the  first part  of the unamended Article 31C in so far as the exclusion of Articles 14 and  19 is concerned. The fact that the provisions to the first  part   of  the   unamended  Article   31C  are   more comprehensive and  have greater  width compared  to those of Article 31A  does not  make any  difference in principle. If Article  31A   is  constitutionally   valid,  it  is  indeed difficult to see how the first part of the unamended Article 31C can  be held-to  be unconstitutional.  It may be pointed out that the first part of the unamended Article 31C in fact stands  on   a  more   secure  footing  because  it  accords protection against  infraction of  Articles  14  and  19  to legislation enacted  for  giving  effect  to  the  Directive Principles set out in clauses (b) and (c) of Article 39. 302      The legislature  in enacting such legislation acts upon the constitutional mandate contained in Article 37 according to which  the Directive  Principles are  fundamental in  the governance of the country and it is the duty of the State to apply those principles in making laws. lt is for the purpose of giving  effect to  the Directive  Principles set  out  in clause  (b)   and  (c)  of  Art.  39  in  discharge  of  the constitutional obligation  laid upon the State under Article 37 that  Fundamental Rights,  in  Articles  14  and  19  are allowed  to   be  abridged   and  I   fail  to   see  how  a constitutional amendment  making such  a  provision  can  be condemned  as  violative  of  the  basic  structure  of  the Constitution. Therefore  even on first principle, I would be inclined to  hold that  the  first  part  of  the  unamended Article 31C is constitutionally valid.      That takes  us to  the next ground of challenge against the constitutional  validity of  the Constitution  (Fortieth Amendment) Act,  1956 in  so far as it included the amending Acts 21  of 1975,  47 of  1975 and  2 of  1976  in  the  9th Schedule and  the Constitution (Forty-second Amendment) Act, 1976 in  so far  as it  introduced cls.  (4) and (5) in Art. 368. The  petitioners contended under this head of challenge that the  Constitution (Fortieth  Amendment) Act,  1976  was passed  by  the  Lok  Sabha  on  2nd  April,  1976  and  the Constitution Forty-Second  Amendment) Act,  1976 sometime in November, 1976,  but on  these dates  the Lok  Sabha was not validly in  existence because  it automatically dissolved on 18th March,  1976 on  the expiration of its term of 5 years. It is  no doubt  true that the House of People (Extension of Duration) Act,  1976 was  enacted by  Parliament  under  the Proviso to  Art. 83(2)  extending the  duration of  the  Lok Sabha for  a period  of one  year, but  the argument  of the petitioners was  that this  Act was  ultra vires  and  void, because the  duration of,  the Lok  Sabha could  be extended

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under the proviso to Art. 83(2) only during the operation of a Proclamation of an Emergency and, in the submission of the petitioners, there  was  no  Proclamation  of  Emergency  in operation at the time when the House of People (Extension of Duration) Act,  1976 was passed. It may be conceded straight away  that,   strictly  speaking,   it  is  superfluous  and unnecessary to  consider this  argument because, even if the Constitution   (Fortieth    Amendment)    Act,    1976    is unconstitutional and  void and the Amending Acts 21 of 1975, 47 of  1975 and  2 of 1976 have not been validly included in the 9th  Schedule so  as to earn the protection of Art. 318, they  are   still  as   pointed  out   earlier,  saved  from invalidation by  Art. 31A  and so  far as  the  Constitution Forty-second Amendment)  Act,  1976  is  concerned,  I  have already held  that it  is outside  the constituent  power of Parliament in  so far as it seeks to include clauses (4) and (5) in Art. 368. But since a 303 long argument  was addressed  to us  seriously pressing this ground of   challenge, I do not think I would be unjustified in dealing briefly with it.      It is  clear on  a plain  natural construction  of  its language that  under the Proviso to Art. 83(2), the duration of the Lok Sabha could be extended only during the operation of  a  Proclamation  of  Emergency  and  if,  therefore,  no Proclamation of  Emergency was  in operation at the relevant time, the  House of People (Extension of Duration) Act, 1976 would be  outside the  competence of  Parliament  under  the Proviso to  Art. 83(2).  The question which thus requires to be  considered  is  whether  there  was  a  Proclamation  of Emergency was  in operation  at the  date when  the House of People (Extension  of Duration  Act, 1976  was enacted.  The learned Solicitor  General appearing  on behalf of the Union of India  contended that  not one  but two  Proclamations of Emergency were  in operation  at  the  material  date..  One Proclamation issued  by the  President on 3rd December, 1971 and the other Proclamation issued on 25th June, 1976. By the first Proclamation,  the President in exercise of the powers conferred under  cl. (1)  of Art.  352 declared that a grave emergency  existed   whereby  the   security  of  India  was threatened by  external aggression.  This  Proclamation  was approved by  Resolutions of both the Houses of Parliament of 4th December,  1971 as  contemplated under  cl. 2(c) of Art. 352 and  it continued  in operation  until 21st  March, 1977 when  it  was  revoked  by  a  Proclamation  issued  by  the President  under   clause  2(a)   of  Art.  352.  The  first Proclamation of  Emergency was thus in operation at the date when the  House of  People Extension  of Duration) Act, 1976 was  enacted  by  Parliament.  The  second  Proclamation  of Emergency was issued by the President under Art. 352 cl. (1) and by  this Proclamation,  the President  declared  that  a grave emergency  existed whereby  the security  of India was threatened by  internal disturbance.  This Proclamation  was also in  operation at  the date of enactment of the House of People (Extension  of Duration)  Act, 1976  since it was not revoked by  another Proclamation  issued under  cl. 2(a)  of Art.  35  until  21st  March,  1977.  The  argument  of  the petitioners however, was that, though the first Proclamation of Emergency  was validly issued by the President on account of external  aggression committed by Pakistan against India, the circumstances  changed soon thereafter and the emergency which justified  the issue  of the  Proclamation  ceased  to exist and  consequently the  continuance of the Proclamation was malafide  and colourable  and  hence  the  Proclamation, though not  revoked until 21st March, 1972, ceased in law to

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continue in  force and  could not be said to be in operation at the material date, namely, 16th February, 1976. So far as the second  Proclamation  of  Emergency  is  concerned,  the petitioners contended that it was illegal and void on 304 three grounds,  namely;   whilst the  first Proclamation  of Emergency was  in operation,  it was  not competent  to  the President under  Art.  352.  clause  (1)  to  issue  another Proclamation of  Emergency; (2)  the second  Proclamation of Emergency was  issued by  the President on the advice of the Prime Minister  and since this advice was given by the Prime Minister without  consulting the Council of Ministers, which alone  was   competent  under   the  Government   of   India (Transaction of  Business  Rules,  1961  to  deal  with  the question of issue of a Proclamation of Emergency, the second Proclamation of  Emergency could  not be  said to  have been validly issued  by the  President; and  (3)  there  was  not threat to  the security  of India  on  account  of  internal disturbance, which could justify the issue of a Proclamation of Emergency and the second Proclamation was issued, not for a legitimate  purpose sanctioned  by clause  (1) of Art. 352 but with  a view to perpetuating the Prime Minister in power and it  was clearly  malafide and for collateral purpose and hence outside  the power  of the  President under  Art.  352 cl.(1). The  petitioners had  to attack the validity of both the Proclamations  of Emergency,  the continuance of one and the issuance of another, because even if one Proclamation of Emergency was in operation at the relevant time, it would be sufficient to  invest Parliament  with power  to  enact  the House  of   People  (Extension   of  Duration)   Act,  1976. Obviously, therefore, if the first Proclamation of Emergency was found  to continue in operation at the date of enactment of the House of People (Extension of Duration) Act, 1976, it would  be   unnecessary  to   consider  whether  the  second Proclamation  of   Emergency  was   validly  issued  by  the President. I  will  accordingly  first  proceed  to  examine whether  the  first  Proclamation  of  Emergency  which  was validly issued  by the  President ceased  to be  in force by reason of  the alleged  change in  circumstances and was not operative at  the relevant time. It is only if this question is answered  in favour  of the  petitioners  that  it  would become necessary to consider the question of validity of the second proclamation of Emergency.      I think  it is  necessary to emphasize even at the cost of repetition  that it  was not  the case of the petitioners that the  first Proclamation  of emergency  when issued, was invalid. It  is a  historical fact  which cannot be disputed that Pakistan  committed aggression  against  India  on  3rd December, 1971  and a  grave threat to the security of India arose on  account of this external aggression. The President was, therefore,  clearly  justified  in  issuing  the  first Proclamation of  Emergency under  cl. (1)  of Art.  352. The petitioners, however, contended that the circumstances which warranted the  issue of  the first Proclamation of Emergency ceased to  exist and  put forward  various facts such as the termination of  hostilities with  Pakistan on 16th December, 1971, the  signing of  the Simla Pact on 2nd June, 1972, the resumption of postal and 305 telecommunication  links  on  4th  November,  1974  and  the conclusion  of trade agreement between India and Pakistan on 24th November,  1974 as  also several statements made by the Prime Minister and other Ministers from time to time to show that the  threat to  the security  of India  on  account  of external aggression  ceased long  before 1975  and there was

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absolutely  no  justification  whatsoever  to  continue  the Proclamation and  hence the  continuance of the Proclamation was mala-fide and in colourable exercise of power and it was liable to be declared as unconstitutional and void. I do not think this contention of the petitioners can be sustained on a proper  interpretation of the provisions of Art. 352. This Article  originally  consisted  of  three  clauses,  but  by section 5 of the Constitution (Thirty-eighth Amendment) Act, 1975. clauses  (4) and  (5) were  added in  this Article and thereafter, by  a further  amendment made  by sec. 48 of the Constitution  Forty-second  Amendments  Act,  1976,  another clause (2A)  was introduced after cl. (2). The whole of this Article is  not relevant for our purpose but I shall set out only the material provisions thereof which have a bearing on the controversy between the parties;           352(1): "If  the President  is  satisfied  that  a      grave emergency  exists hereby the Security of India or      of any  part of  the territory  thereof is  threatened,      whether by  war  or  external  aggression  or  internal      disturbance,  he   may,   by   Proclamation,   make   a      declaration to  that effect (in respect of the whole of      India or  cf such  part of the territory thereof as may      be specified in the Proclamation;           (2) A Proclamation issued under cl. (1)-           (a) may  be revoked  (or varied)  by a  subsequent      Proclamation;           (b) shall be laid before each House of Parliament;           (c) shall  cease to  operate at  the expiration of      two months  unless before the expiration of that period      it has  been approved  by resolutions of both Houses of      Parliament.      ......................................................      ......................................................      (2A)..................................................      ......................................................           (3) A Proclamation of Emergency declaring that the      security of  India or  of any  part  of  the  territory      thereof is  threatened by war or by external aggression      or by  internal disturbance  may  be  made  before  the      actual occurrence  of war  or of any such aggression or      disturbance if the President is satisfied the there is 306      imminent danger thereof.           (4) The  power conferred  on the President by this      article shall  include the  power  to  issue  different      Proclamations  on   different  grounds,  being  war  or      external aggression or internal disturbance or imminent      danger  of  war  or  external  aggression  or  internal      disturbance whether  or not  there  is  a  Proclamation      already issued  by the President under cl. (1) and such      Proclamation is in operation.      (5) Notwithstanding anything in this Constitution:-           (a) the satisfaction of the President mentioned in      clauses (1)  and (3)  shall be final and conclusive and      shall not be questioned in any Court on any ground;           (b) subject  to the provisions of cl. (2), neither      the Supreme  Court  nor  any  other  court  shall  have      jurisdiction to  entertain any question, on any ground,      regarding the validity of-                (i) a declaration made by Proclamation by the           President to the effect stated in clause (1); or                (ii)  the   continued   operation   of   such           Proclamation." Now it  is obvious  on a  plain natural  construction of the language of  cl. (1) of Art. 352 that the President can take

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action under  this clause  only if  he is  satisfied that  a grave emergency  exists whereby the security of India or any part of  the territory thereof is threatened, whether by war or  external   aggression  or   internal  disturbance.   The satisfaction of the President "that a grave emergency exists whereby the  security of  India... is  threatened whether by war or  external aggression  or internal  disturbance" is  a condition precedent  which  must  be  fulfilled  before  the President can  issue a  Proclamation under Art. 352 cl. (1). When this  condition precedent  is satisfied,  the President may exercise the power under cl. (1) of Art. 352 and issue a Proclamation of  Emergency. The  constitutional implications of a  declaration of  emergency under  Art. 352  cl. (1) are vast and they are provided in Articles 83(2), 250, 353, 354, 358 and  359. The  emergency being  an exceptional situation arising out  of a  national crisis certain wide and sweeping powers have  been conferred  on the  Central Government  and Parliament with  a view  to combat the situation and restore normal conditions.  One such  power is that given by Art. 83 (2), which  provides that  while a Proclamation of Emergency is in  operation, Parliament  may by law extend its duration for a period not exceeding, one year at a time. Then another power conferred  is that  under Art.  250 which  says  that, while  a   Proclamation  of   Emergency  is   in  operation, Parliament shall have the power to make laws for the 307 whole or  any part of the territory of India with respect to any of  the matters enumerated in the State List. The effect of this  provision is  that the  federal structure  based on separation of  powers is  put out  of action  for  the  time being. Another  power of a similar kind is given by Art. 353 which provides  that during  the time when a Proclamation of Emergency is  in force,  the executive  powers of  the Union shall extend  to the giving of directions to any State as to the manner  in which  the executive  power thereof  is to be exercised. This  provision also  derogates from  the federal principle which forms the basis of the Constitution. Then we come to  Art. 354  which confers  power  on  the  President, during the  operation of  a Proclamation  of  Emergency,  to direct that  provisions relating to distribution of revenues under Arts.  268 to  270 shall  have effect  subject to such modifications  or  exceptions  as  he  thinks  fit.  Another drastic consequence of the Proclamation of Emergency is that provided in  Article 358 which suspends the operation of the Fundamental  Rights   guaranteed  under   Art.  19  while  a Proclamation of  Emergency is  in operation. Art. 359 cl (1) em  powers   the  President   during  the   operation  of  a Proclamation of  Emergency to  make an  order suspending the enforcement of  any of  the Fundamental  Rights conferred by Part III  and cl. (A) introduced by the Constitution (Thirty Eighth Amendment)  Act, 1975 suspends the operation of those Fundamental  Rights   of  which  the  enforcement  has  been suspended by  the President  by an  order made  under clause (1). These are the drastic consequences which ensue upon the making of  a  declaration  of  emergency.  The  issue  of  a Proclamation of  Emergency makes  serious inroads  into  the principle of  federalism and  emasculates the  operation and efficacy of  the Fundamental  Rights. The power of declaring an  emergency  is  therefore  a  power  fraught  with  grave consequences and  it has the effect of disturbing the entire power  structure   under  the  Constitution.  But  it  is  a necessary power  given to the Central Government with a view to arming  it adequately  to meet  an exceptional  situation arising out  of threat  to the  security of  the country  on account  of   war  or   external  aggression   or   internal

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disturbance or  imminent danger  of any such calamity. It is therefore a  power  which  has  to  be  exercised  with  the greatest care and caution and utmost responsibility.      It will  be convenient  at this  stage to  consider the question as  to whether  and if so to what extent, the Court can  review  the  constitutionality  of  a  Proclamation  of Emergency issued  under Article  352 cl. (1). There were two objections put  forward on behalf of the respondents against the competence  of the  Court to  examine  the  question  of validity of  a Proclamation  of Emergency. One objection was that the  question whether  a grave emergency exists whereby the security  of India  or any part thereof is threatened by war or external aggression 308 or internal  disturbance is essentially a political question entrusted by  the Constitution to the Union Executive and on that account, it is not justiciable before the court. It was urged that  having regard  to the  political nature  of  the problem, it  was not  amenable to judicial determination and hence the  court must  refrain from  inquiring into  it. The other objection  was that  in any event by reason of clauses (4 and  5) of  Article 352, the Court had no jurisdiction to question the  satisfaction of  the President  leading to the issue of  a Proclamation  of Emergency  or to  entertain any question regarding  the  validity  of  the  Proclamation  of Emergency or  its continued operation. Both these objections are in my view unfounded and they do not bar judicial review of the validity of a Proclamation of Emergency issued by the President under  Article 352  cl. (1). My reasons for saying so are as follows:      It is  axiomatic that  if a question brought before the court  is   purely  a   political  question   not  involving determination  of  any  legal  or  constitutional  right  or obligation, the  court would  not entertain  it,  since  the court is  concerned only  with adjudication  of legal rights and  liabilities.  But  merely  because  a  question  has  a political complexion,  that by  itself is  no ground why the court should  shrink from  performing  its  duty  under  the Constitution,  if  it  raises  an  issue  of  constitutional determination. There  are a large number of decisions in the United  States  where  the  Supreme  Court  has  entertained actions having  a political  complexion because  they raised constitutional issue.  Vide Gomallion v. Lightfoot and Baker v. Carr.  The controversy  before the court may be political in character,  but so long as it involves determination of a constitutional  question,   the  court   cannot  decline  to entertain it.  This is  also the view taken by Gupta, J. and myself in  State of  Rajasthan v.  Union of India. I pointed out in  my judgment  in that  case and  I still stand by it, that merely  because a  question has a political colour, the court cannot fold its hands in despair and declare "Judicial hands off".  So long as the question is whether an authority under the  Constitution has  acted within  the limits of its power or  exceeded it,  it can  certainly be  decided by the court. Indeed  it would  be its constitutional obligation to do  so.   I  have  said  before  I  repeat  again  that  the Constitution is  suprema lex  the paramount law of the land, and there  is no department or branch of government above or beyond it. Every organ of government, be it the executive or the legislature or the judiciary, derives its authority from the Constitution  and it has to act within the limits of its authority and whether it has done so or not is for the Court to decide. The Court is H 309 the ultimate  interpreter of the Constitution and when there

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is manifestly  unauthorised  exercise  of  power  under  the Constitution, it  is the duty of the Court to intervene. Let it not  be forgotten, that to this Court as much as to other branches of  government, is  committed the  conservation and furtherance of  constitutional values.  ’the Court’s task is to identify  those values  in the constitutional plan and to work them into life in the cases that reach the court. "Tact and wise restraint ought to temper any power but courage and the acceptance  of responsibility have their place too." The Court cannot  and  should  not  shirk  this  responsibility, because  it   has  sworn  the  oath  of  allegiance  to  the Constitution and  is also  accountable to the people of this country. It  would not  therefore, be right for the Court to decline to  examine whether  in a  given case  there is  any constitutional violation involved in the President issuing a Proclamation of Emergency under cl. ( I) of Article 352.      But when  I say  this, I  must make  It clear  that the constitutional jurisdiction  of this  Court does  not extend further  than   saying  whether  the  limits  on  the  power conferred by  the Constitution  on the  President have  been observed or  there is transgression of such limits. Here the only limit  on the  power of  the President under Article 35 cl. (1)  is that  the President  should be  satisfied that a grave emergency  exists whereby the security of India or any part thereof  is  threatened  whether  by  war  or  external aggression or  internal disturbance. The satisfaction of the President is  a subjective,  one and  cannot be  decided  by reference to  any objective  tests. It  is deliberately  and advisedly subjective  because the matter in respect to which he is  to be satisfied is of such a nature that its decision must  necessarily   be  left  to  the  Executive  branch  of Government. There  may be  a wide  range of situations which may arise  and their political implications and consequences may have to be evaluated in order to decide whether there is a situation  of grave emergency by reason of the security of the country  being threatened  by war or external aggression or internal  disturbance. It  is not a decision which can be based on  what the  Supreme Court  of the  United States has described  as   "judiciably  discoverable   and   manageable standards". It  would largely  be a political judgment based on assessment  of diverse  and varied factors, fast-changing situations. potential  consequences  and  a  host  of  other imponderables. It cannot therefore, by its very nature, be a fit subject  matter for adjudication by judicial methods and materials  and   hence  it   is  left   to  the   subjective satisfaction of  the Central  Government which  is best in a position to decide it. The court cannot go into the question of correctness or adequacy of the facts and circumstances on which the  satisfaction of  the Central Government is based. That would  be a  dangerous exercise  for  the  Court,  both because it  is  not  a  fit  instrument  for  determining  a question of  this kind  and also  because  the  court  would thereby usurp 310 the function  of the  executive and  in doing  so, enter the "political thicket"  which it must avoid, if it is to retain its legitimacy  with the  people. But  one thing  is certain that if  the satisfaction is mala fide or is based on wholly extraneous and  irrelevant grounds,  the  court  would  have jurisdiction to examine it, because in that case there would be no  satisfaction of the President in regard to the matter on which he is required to be satisfied. The satisfaction of the President  is a  condition precedent  to the exercise of power under  Art. 352  cl. (1)  and if  it can be shown that there is  no satisfaction  of  the  President  at  all,  the

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exercise of  the power would be constitutionally invalid. It is true  that by reason of clause (5)(a) of Article 352, the satisfaction of  the President is made final and conclusive, arid cannot  be assailed  on any  ground, but,  as  I  shall presently point  out, the power of judicial review is a part of the  basic structure  of the  Constitution and hence this provision debarring  judicial review would be open to attack on the  ground that  it  is  unconstitutional  and  void  as damaging or  destroying the  basic  structure.  This  attack against  constitutionality   can,  however,  be  averted  by reading the  provision to  mean and  that is  how I think it must be  read that the immunity from challenge granted by it does  not   apply  where  the  challenge  is  not  that  the satisfaction is improper or unjustified but that there is no satisfaction  at  all.  In  such  a  case,  it  is  not  the satisfaction arrived at by the President which is challenged but  the   existence  of   the  satisfaction  itself.  Where therefore the   satisfaction  is absurd  or perverse or mala fide or  based on a wholly extraneous and irrelevant ground, it would be no satisfaction at all and it would be liable to be challenged  before a court, notwithstanding clause (5)(a) of Article 352. It must, of course, be conceded that in most cases it  would be difficult if not impossible, to challenge the exercise  of power  under Article 352 clause (1) even on this limited  ground, because the facts and circumstances on which the  satisfaction is  based would  not be  known,  but where it  is possible, the existence cf the satisfaction can always be  challenged on  the ground that it is mala fide or based on a wholly extraneous or irrelevant ground.      It is  true that  so far  there is  no decision of this court taking the view that the validity of a Proclamation of Emergency can  be examined  by the court though within these narrow limits. But merely because there has been no occasion for  this   Court  to   pronounce   on   the   question   of justiciability of  a Proclamation  of Emergency no inference can be drawn that a Proclamation of Emergency is immune from judicial  scrutiny.   The  question   whether   or   not   a Proclamation  of Emergency can be judicially reviewed on the ground that  it is  mala fide  or an  abuse of  power of the President did  arise before  this Court  in Gulam  Sarwai v. Union of India. but the court declined to 311 express any  opinion on  this question since no material was placed before   the Court making out a case of mala fides or abuse of  power. Undoubtedly,  in the subsequent decision of this Court  in Bhutnath  Mato v.  State of West Bengal there are one  or two  observations which might seem to suggest at first  blush  that  a  Proclamation  of  Emergency  being  a political matter  is "de  hors our  ken", but  if one  looks closely at the judgment of Krishna Iyer, J. in that case, it will  be   apparent  that  he  does  not  lay  down  that  a Proclamation  of   Emergency  cannot   be  reviewed  by  the judiciary even  on a limited ground and leaves that question open  and   rejects  the   contention  of   the   petitioner challenging the  continuance of Emergency only on the ground that "the onus of establishing the continuation of Emergency and absence  of  any  ground  whatever  for  the  subjective satisfaction of  the President,  heavy as  it is, has hardly been discharged,  "and consequently  it would be an academic exercise in  constitutional law to pronounce on the question of judicial  reviewability of  a Proclamation  of Emergency. There is  thus no  decision of  this court  holding  that  a Proclamation of  Emergency is  beyond the judicial ken and I am not fettered by any such decision compelling me to take a view different  from the  one which  I have expounded in the

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preceding paragraph  of this  opinion. In fact, the judgment of Gupta,  J. and  myself in  State of Rajasthan v. Union of India (supra)  completely supports  me  in  the  view  I  am taking. A  Proclamation of Emergency is undoubtedly amenable to judicial  review though  on the  limited ground  that  no satisfaction as  required by  Article 352  was arrived at by the President  in law or that the satisfaction was absurd or perverse  or   mala  fide  or  based  on  an  extraneous  or irrelevant ground.      Now the  question arises  whether the  continuance of a Proclamation  of   Emergency  valid   when  issued   can  be challenged  before   the  court   on  the  ground  that  the circumstances which  necessitated or  justified its issuance have ceased to exist. Can the court be asked to declare that the Proclamation  of Emergency has ceased to exist and is no longer in  force or  does the Proclamation continue to be in force until  it is  revoked by  another  Proclamation  under clause 2(a)  of Article  352. The  answer to  this  question depends on  the interpretation of clause (2) of Article 352. That clause  says in  sub-clause (a)  that a Proclamation of Emergency issued  under clause  (1)  may  be  revoked  by  a subsequent  Proclamation.  Sub-clause  (b)  of  that  clause requires that  a Proclamation  issued under clause (1) shall be laid before each House of Parliament and under sub-clause (c) such  a Proclamation ceases to operate at the expiration of two months, unless it has been approved by both Houses of Parliament before the expiration of two 312 months. It  is clear from this provision that a Proclamation of Emergency  validly issued under clause (1) would continue to operate at least for a period of two months and if before the expiration  of that  period, it  has  been  approved  by resolutions of  both Houses of Parliament, it would continue to operate further even beyond the period of two months, and the only  way in  which it  can be  brought to  an end is by revoking it  by another  Proclamation  issued  under  clause 2(a). There  is no  other way  in  which  it  can  cease  to operate. Neither  Article 352  nor any  other Article of the Constitution  contains   any   provision   saying   that   a Proclamation of  Emergency validly  issued under  clause (1) shall  cease   to  operate  as  soon  as  the  circumstances warranting  its  issuance  have  ceased  to  exist.  It  is, therefore, clear  on a  plain natural  interpretation of the language of sub-clauses (a) to (c) of clause (2 that so long as the  Proclamation of  Emergency is not revoked by another Proclamation under  sub-clause (2) (a), it would continue to be in  operation irrespective of change of circumstances. It may be pointed out that this interpretation of the provision of clause (2) of Article 352 is supported by the decision of this Court  in Lakhan  Pal v.  Union of  India where dealing with a  similar contention urged on behalf of the petitioner that the  continuance of the emergency which was declared on 26th October,  1962 was  a fraud  on the  Constitution. this Court speaking  through Sarkar,  C. J. pointed out that "the only way  a proclamation  ceases to have effect is by one of the events  mentioned in  this clause" and since neither had happened, the Proclamation must be held to have continued in operation. The  petitioner urged  in that  case  that  armed aggression which  justified the issue of the Proclamation of Emergency had  come to  an end  and the  continuance of  the Proclamation was  therefore unjustified. But this contention was negatived  on the  ground that  the Proclamation  having been approved  by the  two Houses  of  Parliament  within  a period of two months of its issuance, it could cease to have effect only  if revoked by another Proclamation and that not

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having happened,  the Proclamation continued to be in force. It is  true that  the power  to  revoke  a  Proclamation  of Emergency is vested only in the Central Government and it is possible that the Central Government may abuse this power by refusing to  revoke a  Proclamation of Emergency even though the circumstances  justifying the issue of Proclamation have ceased to  exist and  thus prolong  baselessly the  state of emergency obliterating  the Fundamental  Rights and this may encourage a  totalitarian trend.  But the  Primary and  real safeguard of the citizen against such abuse of power lies in "the  good  sense  of  the  people  and  in  the  system  of representative and responsible Government" which is provided in the  Constitution. Additionally,  it may  be possible for the citizen in a given case to move 313 the court  for issuing  a writ  of mandamus for revoking the Proclamation of  Emergency if  he is able to show by placing clear and  cogent material before the court that there is no justification at all for the continuance of the Proclamation of Emergency. But this would be a very heavy onus because it would  be  entirely  for  the  executive  Government  to  be satisfied  whether   a  situation   has  arisen   where  the Proclamation of  Emergency can be revoked. There would be so many facts and circumstances and such diverse considerations to be  taken into account by the executive Government before it can  be satisfied  that there  is  no  longer  any  grave emergency whereby the security of India is threatened by war or external aggression or internal disturbance. ’this is not a  matter  which  is  a  fit  subject  matter  for  judicial determination and  the court  would not  interfere with  the satisfaction of  the executive  Government  in  this  regard unless it  is clear  on the material on record that there is absolutely no  justification  for  the  continuance  of  the Proclamation of  Emergency and  the  Proclamation  is  being continued mala  fide or  for a collateral purpose. The court may in  such a case, if satisfied beyond doubt, grant a writ of mandamus  directing the  Central Government to revoke the Proclamation of  Emergency. But  until  that  is  done,  the Proclamation of Emergency would continue in operation and it cannot  be   said  that,   though  not  revoked  by  another Proclamation, it  has still  ceased to be in force. Here, in the present  case  it  was  common  ground  that  the  first Proclamation of  Emergency issued  on 3rd  December 1971 was not revoked  by another  Proclamation under  clause 2(a)  of Article 352  until 21st March 1977 and hence at the material time when  the House  of People (Extension of Duration) Act, 1976 was  passed, the first Proclamation of Emergency was in operation.      Now if  the first  Proclamation  of  Emergency  was  in operation at  the relevant  time,  it  would  be  sufficient compliance with the requirement of the proviso to clause (2) of Article  83 and  it  would  be  unnecessary  to  consider whether the  second Proclamation  of Emergency  was  validly issued by the President. But, contended the petitioners, the House of  People (Extension  of Duration)  Act,  1976  on  a proper  interpretation   of   section   2   postulated   the operational existence of both the Proclamations of Emergency and if  either of  them was not in existence at the material date, the  Act would  be inoperative  and would not have the effect of  extending the  duration of  the Lok Sabha. It was therefore not  enough for  the respondents to establish that the first  Proclamation of Emergency was in operation at the relevant date, but it was further necessary to show that the second Proclamation  of Emergency  was also in operation and hence it  was  necessary  to  consider  whether  the  second

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Proclamation  of   Emergency  was   validly  issued  by  the President. The respondents sought to answer this contention 314 of the  petitioners by  saying that on a proper construction of the  language of  section  2,  it  was  not  a  condition precedent  to   the  operation.   of  the  House  of  People (Extension of Duration Act, 1976 that both the Proclamations of Emergency should be in operation at the date when the Act was enacted.  The House  of People  (Extension of  Duration) Act, 1976  no doubt  referred to  both the  Proclamations of Emergency being  in operation  but that was merely, said the respondents, by way of recital and it was immaterial whether this recital  was correct  or in correct, because so long as it could  be objectively established that on Proclamation of Emergency at  least was in operation, the requirement of the proviso to  Article 83 clause (2) would be satisfied and the Act would  be within  the competence of Parliament to enact. These rival contentions raised a question of construction of section 2  of the  House of  People (Extension  of Duration) Act, 1976.  It is  a simple question which does not admit of much doubt  or debate  and a  plain grammatical  reading  of section 2 is sufficient to answer it. It would be convenient to reproduce  section 2  which co-incidentally happens to be the only operative section of the Act:           "Sec. 2:  The period  of  five  years  (being  the      period for  which the  House of  the People  may, under      clause (2)  of Article 83 of the Constitution, continue      from the  date appointed  for  its  first  meeting)  in      relation to  the present  House of  the  People  shall,      while the  Proclamations of Emergency issued on the 3rd      day of  December, 1971  and on  the 25th  day of  June,      1975, are  both in, operation, be extended for a period      of one year:           Provided that  if  both  or  either  of  the  said      Proclamations cease  or ceases  to operate  before  the      expiration of  the said period of one year, the present      House of  the People shall, unless previously dissolved      under clause  (2) of  Article 83  of the Constitution,.      continue until six months after the cesser of operation      OF the  said  Proclamations  or  Proclamation  but  not      beyond the said period of one year." While interpreting  the language  of  this  section,  it  is necessary  to   bear  in  mind  that  the  House  of  People (Extension of  Duration) Act,  1976 was  enacted  under  the proviso to  clause (2)  of Article  83 for  the  purpose  of extending the  duration of  the  Lok  Sabha  and  it  was  a condition  precedent  to  the  exercise  of  this  power  by Parliament that  there should be a Proclamation of Emergency in operation  at the  date when  the Act  was  enacted.  Now according to  Parliament there  were  two  Proclamations  of Emergency which  were in operation at the material date, one issued on  3rd December 1971 and the other on 25th June 1975 and the  condition precedent  for the  exercise of the power under the  proviso to  cl. (2)  of Article  83 to  enact the House of People (Extension 315 of Duration) Act, 1976 was satisfied. It was, from the point of view of legislative drafting, not necessary to recite the fulfillment of  this condition  precedent, but the draftsman of the  Act, it  seems, thought  it advisable  to  insert  a recital that  this condition precedent was satisfied and he, therefore, introduced  the words "while the Proclamations of Emergency issued on the 3rd day of December, 1971 and on the 25th day  of June,  1975 are  both in  operation" before the operative part  in sec.  2 of  the  Act.  These  words  were

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introduced merely  by way  of recital of the satisfaction of the condition  precedent for  justifying the exercise of the power under the proviso to clause (2) of Article 83 and they were not  intended to lay down a condition for the operation of sec. 2 of the Act. Section 2 clearly and in so many terms extended the  duration of  the Lok Sabha for a period of one year and  this extension  was not made dependent on both the Proclamations of Emergency being in operation at the date of the enactment  of the  Act. It  was for a definite period of one year  that the extension was effected and it was not co- extensive with  the operation  of both  the Proclamations of Emergency. The  extension for  a period of one year was made once and  for all  by the  enactment of  section 2  and  the reference to  both the  Proclamations of  Emergency being in operation was merely for the purpose of indicating that both the  Proclamations   of  Emergency   being   in   operation. Parliament had  competence to  make the  extension.  It  was therefore not  at all  necessary for  the  efficacy  of  the extension that both the Proclamations of Emergency should be in operation  at the  date of  enactment of the Act. Even if one Proclamation  of  Emergency  was  in  operation  at  the material date,  it would  be sufficient to attract the power of Parliament  under the  proviso to  Art. 83  clause (2) to enact the  Act extending  the duration  of the Lok Sabha. Of course, it  must be  concerned that  Parliament proceeded on the assumption that both the Proclamations of Emergency were in force  at the  relevant date and they invested Parliament with power  to enact  the Act,  but even if this legislative assumption were  unfounded, it would not make any difference to the  validity of  the exercise  of the  power, so long as there was  one Proclamation  of Emergency in operation which authorised Parliament  to extend  the duration  of  the  Lok Sabha wader  the proviso  to clause (2) of Article 83. It is true that  the proviso  to sec.  2 enacted  that if  both or either of  the Proclamations of Emergency cease or ceases to operate before  the expiration of the extended period of one year, the  Lok Sabha  shall continue  until six months after the  cesser  of  operation  of  the  said  Proclamations  or Proclamation, not  going beyond  the period of one year, but the opening  part of  this proviso can have application only in relation  to a  Proclamation of  Emergency which  was  in operation at  the date  of enactment  of the  Act. If such a Proclamation of Emergency which was in operation at the 316 material date ceased to operate before the expiration of the extended period  of one year, then the term of the Lok Sabha would not  immediately come to an end, but it would continue for a  further period of six months but not so to exceed the extended period  of one year. This provision obviously could have no  application in  relation to the second Proclamation of emergency if it was void when issued. In such a case, the second Proclamation  not being  valid at  all at the date of issue would  not be  in operation  at all  and it  could not cease to operate after the date of enactment of the Act. The proviso would in that event have to be read as relating only to the  first Proclamation  of  Emergency,  and  since  that Proclamation of  Emergency continued until it was revoked on 21st March, 1977, the duration of the Lok Sabha  was validly extended for  a period of one year from 18th March, 1976 and hence there was a validly constituted Lok Sabha on the dates when the Constitution (Fortieth Amendment) Act, 1976 and the Constitution (Forty-second  Amendment) Act, 1976 were passed by Parliament.  On this  view it  is not at all necessary to consider whether  the second  Proclamation of  Emergency was validly issued  by the President. It is the settled practice

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of this  Court not  to say  more than  is necessary to get a safe resting  place for the decision and I do not think that any useful  purpose will  be served by examining the various grounds of  challenge urged  against  the  validity  of  the second Proclamation  of Emergency, particularly since clause (3) has  been introduced  in Art.  352 by  the  Constitution (Forty-Fourth  Amendment)   Act,  1978   requiring  that   a Proclamation  of  Emergency  shall  not  be  issued  by  the President  unless   the  decision   of  the   Union  Cabinet recommending  the   issue  of  such  Proclamation  has  been communicated to him in writing and clause (9) of Article 352 introduced by  the  Constitution  (Thirty-eighth  Amendment) Act. 1975  and renumbered  by the Constitution (Forty-Fourth Amendment)  Act,   1978  empowers  the  President  to  issue different  Proclamations  on  different  grounds.  I  would, therefore. reject  the challenge against the validity of the Constitution  (Fortieth   Amendment)  Act,   1976  and   the Constitution (Forty-second Amendment) Act, 1976 based on the ground that  on the  dates when  these Constitution Amending Acts  were  enacted,  the  Lok  Sabha  was  not  validly  in existence.      That  takes   me   to   the   challenge   against   the constitutional validity of the amendment made in Article 31. by section  4 of  the Constitution  (Forty-second Amendment) Act, 1976.  This amendment substitutes the words "all or any of the  principles laid  down in Part IV" for the words "the principles specified  in clause (b) or clause (c) of Article 39"     and  so   amended;   Article   31C   provides   that "Notwithstanding anything  contained in  Article 13,  no law giving effect  to the  policy of  the State towards securing all or any of the principles laid dow.. in Part IV shall 317 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". The amended Article 31C gives primacy to  Directive Principles  over Fundamental Rights in case of  conflict between  them and  the question is whether this amendment  is in  any  way  destructive  of  the  basic structure of  the  Constitution.  To  answer  this  question satisfactorily, it  is necessary  to appreciate  the  inter- relationship  between   Fundamental  Rights   and  Directive Principles and for this purpose it would be  useful to trace briefly the  history of their enactment in the Constitution. The genesis  of Fundamental  Rights and Directive Principles is to  be found  in the freedom struggle which the people of India waged  against the British rule under the aegis of the Indian National  Congress led  by Mahatma Gandhi, Jawaharlal Nehru and  other national    leaders.  These  great  leaders realised the  supreme importance  of the political and civil rights of  the individual.  because  they  knew  from  their experience of  the repression under the British rule as also from the  recent events  of history  including the two World Wars that  these rights  are absolutely  essential  for  the dignity of man and development of his full personality. But, at the  same time, they were painfully conscious that in the socio-economic conditions  that prevailed  in  the  country. only an  infinitesimal fraction  of the people would be able to enjoy  these  civil  and  political  rights.  There  were millions of  people in  the  country  who  were  steeped  in poverty and  destitution  and  for  them,  these  civil  and political rights had no meaning. It was realised that to the large majority  of people who are living an almost sub-human existence in  conditions of object poverty and for whom life is one  long unbroken story of want and destitution, notions of individual  freedom and liberty, though representing some

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of the most cherished values of free society, would sound as empty words  bandied about  only in the drawing rooms of the rich and  well-to-do and  the only solution for making these rights meaningful  to  them  was  to  re-make  the  material conditions and  usher in  a new  social order  where  socio- economic justice will inform all institutions of public life so that  the pre-conditions of fundamental liberties for all may be  secured. It  was necessary  to create socio-economic conditions in  which every  citizen of  the country would be able to  exercise civil and politically rights and they will not remain  the  preserve  of  only  a  fortunate  few.  The national leaders, therefore, laid the greatest stress on the necessity of  bringing about socio-economic regeneration and ensuring social  and economic  justice. Mahatma  Gandhi, the father of the nation, said in his inimitable style in words, full of poignancy:           "Economic equality  is  the  master  key  to  non-      violent   independence.   A   non-violent   system   of      Government is an impossibility so long as the wide gulf      between the rich and the hungry 318      millions persists.  The contrast between the palaces of      New  Delhi   and  the  miserable  hovels  of  the  poor      labouring class  cannot last one day in a free India in      which the poor will enjoy the same power as the rich in      the  land.   A  violent  and  bloody  revolution  is  a      certainty one day, unless there is voluntary abdication      of riches  and the  power that  riches give and sharing      them for common good". Jawaharlal Nehru also said in the course of his presidential address to the Lahore Congress Session of 1929:           "The  philosophy   of  socialism   has   gradually      permeated the  entire structure  of  the  society,  the      world over  and almost the only point in dispute is the      phase and  methods of  advance to its full realisation.      India will  have to go that way too if she seeks to end      her poverty  and inequality,  though she may evolve her      own methods  and may  adapt the  ideal to the genius of      her race. Then  again,   emphasizing  the   intimate  and  inseverable connection between  political independence  and  social  and economic freedom, he said:           "If an indigenous Government took the place of the      foreign Government  and kept  all the  vested interests      intact, this  would not  be even  the shadow of freedom      .......................................................      .................... India’s immediate goal can only be      considered in  terms of  the ending of the exploitation      of her  people. Politically,  it must mean independence      and cession of the British connection, economically and      socially, it  must mean the ending of all special class      privileges and vested interests." The Congress  Resolution of  1929 also  emphasized the  same theme of socio-economic reconstruction when it declared:           "The great poverty and misery of the Indian people      are due, not only to foreign exploitation in India, but      also to  the economic  structure of  society, which the      alien rulers  support so  that their  exploitation  may      continue. In order therefore to remove this poverty and      misery and  to ameliorate  the condition  of the Indian      masses, it  is essential  to make revolutionary changes      in the present economic and social structure of society      and to remove the gross inequalities."      The Resolution passed by the Congress in 1931 proceeded to declare  that in order to end the exploitation of masses,

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political freedom  must include  social and economic freedom of the  starving mil  lions. The Congress Election Manifesto of 1945  also reiterated  the same  thesis when it said that "the most vital and urgent of India’s 319 problems is how to remove the curse of poverty and raise the standard     of  masses"   and  for   that  purpose   it  is "necessary...........................   to    prevent    the concentration  of   wealth  and   power  in   the  hands  of individuals and  groups  and  to  prevent  vested  interests inimical to  society from  "growing". This  was  the  socio- economic  philosophy  which  inspired  the  framers  of  the Constitution to  believe that  the guarantee  of  individual freedom was  no  doubt  necessary  to  be  included  in  the Constitution, but  it was  also essential to make provisions for restructuring  the  socio-economic  order  and  ensuring social  and   economic  justice  to  the  people.  This  was emphasized  by   Jawaharlal  Nehru  when,  speaking  on  the resolution regarding  the aims  and  objectives  before  the Constituent Assembly, he said:           "The first  task of this Assembly is to free India      through a new Constitution, to feed the starving people      and clothe  the naked  masses  and  give  every  Indian      fullest opportunity to develop himself according to his      capacity. In fact,  as  pointed  out  by  K.  Santhanan,  a  prominent southern member  of the  Constituent  Assembly,  there  were three revolutions running parallel in India since the end of the first World War. The political revolution came to an end on 15th  August, 1947  when  India  became  independent  but clearly political freedom cannot be an end in itself. it can only be  a means  to an  end, "that end being" as eloquently ex-  pressed   by  Jawaharlal  Nehru  "the  raising  of  the people,................. to  higher  levels  and  hence  the general advancement of humanity." It was therefore necessary to carry  forward and  accomplish the  social  and  economic revolutions. The  social revolution  was meant  to get India "out of the mediavalism based on birth, religion, custom and community and  reconstruct her  social structure  on  modern foundations of law, individual merit and secular education," while the  economic revolution  was intended  to bring about "transition from  primitive rural  economy to scientific and planned agriculture and industry." Dr. Radhakrishnan who was a member  of the  Constituent Assembly  and who later became the President  of India also emphasised that India must have a socio-economic revolution designed not only to bring about the real satisfaction of the fundamental needs of the common man hut  to go  much deeper  and bring  about "a fundamental change in  the structure  of Indian society." It was clearly realised by  the framers  of the  Constitution that  on  the achievement  of   this  great  social  and  economic  change depended the  survival of  India. "If  we cannot  solve this problem  soon",  Jawaharlal  Nehru  warned  the  Constituent Assembly "all  our paper  Constitutions will  become useless and purposeless."  The objectives  Resolution which  set out the and 320 objectives before  the Constituent  Assembly in  framing the Constitution  and   which  was  passed  by  the  Constituent Assembly in  January 1947  before embarking  upon the actual task  of   Constitution  making,  therefore,  expressed  the resolve of  the Constituent Assembly to frame a constitution "wherein shall  be guaranteed  and secured to all the people of India  justice, social,  economic and political, equality of status  and of  opportunity before  the law;  freedom  of

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thought,  expression,   belief,  faith,  worship,  vocation, association and  action subject  to law  and public morality and  wherein  adequate  safeguards  shall  be  provided  for minority, backward  and trial  areas and depressed and other backward classes." These objectives were incorporated by the Constitution makers  in the Preamble of the Constitution and they were  a sought  to be  secured by  enacting Fundamental Rights in Part III and Directive Principles in Part IV.      It is  not  possible  to  fit  Fundamental  Rights  and Directive Principles  in two  distinct and  strictly defined categories, but  it may  be  stated broadly that Fundamental Rights represent  civil and political rights while Directive Principles embody  social  and  economic  rights.  Both  are clearly part  of the  broad spectrum  of human rights. If we look at the Universal Declaration of Human Rights adopted by the General  Assembly of the United Nations on 18th December 1948. we  find that  it contains  not only rights protecting individual freedom  (See Articles  1 to  21) but also social and  economic   rights  intended  to  ensure  socio-economic justice to every one (See Articles 22 to 29). There are also two International  Covenants adopted by the General Assembly for securing human rights, one is the International Covenant on  Civil   and  Political  Rights  and  the  other  is  the International Covenant  on  Economic,  Social  and  Cultural Rights. Both are international instruments relating to human rights.  It   is  therefore   not  correct  to  t  say  that Fundamental Rights  alone are  based on  human rights  while Directive Principles  fall in some category other than human rights. The  socio-economic rights embodied in the Directive Principles are  as much  a  part  of  human  rights  as  the Fundamental Rights.  Hegde and  Mukherjea, JJ.  were. to  my mind, right in saying in Keshavananda Bharati’s case at page 312 of  the Report  that "the  Directive Principles  and the Fundamental Rights  mainly proceed  on the  basis  of  human Rights." Together,  they  are  intended  to  carry  out  the objectives set  out in  the Preamble of the Constitution and to establish  an  egalitarian  social  order  informed  with political, social  and  economic  justice  and  II  ensuring dignity of  the individual  not only  to  a  few  privileged persons but  to the  entire people  of the country including the have-nots  and the  handicapped, the  lowliest  and  the lost, 321      Now it is interesting to note that although Fundamental Rights and  Directive Principles  appear in the Constitution as distinct  entities, there  was no  such demarcation  made between them  during the  period prior to the framing of the Constitution. If  we may quote the words of Granville Austin in his book; "Both types of rights had developed as a common demand, products  of the national and social revolutions, of their almost  inseparable intertwining. and of the character of Indian  politics itself".  They were  both placed  on the same  pedestal  and  treated  as  falling  within  the  same category compendiously  described as  "Fundamental  Rights". The Sapru  Committee in its Constitutional Proposals made in 1945, recommended that the declaration of Fundamental Rights in its  wider sense  was absolutely  necessary and envisaged these rights  as falling in two classes; one justiciable and the other  non-justiciable-the former  being enforceable  in Courts of  law and  the latter,  not. The Committee however, felt difficulty  in dividing  the  Fundamental  Rights  into these two classes and. left the whole issue to be settled by the  Constitution-making  body  with  the  observation  that though  the   task  was   difficult,  it  was  by  no  means impossible. This  suggestion of  the Sapru Committee perhaps

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drew its  inspiration from  the Irish  Constitution of 1937, which  made  a  distinction  between  justiciable  and  non- justiciable rights  and designated the former as Fundamental Rights and  the latter  as Directive  Principles  of  Social Policy. Dr.  Lauter-pacht also  made a  similar  distinction between  justiciable   and  non-justiciable  rights  in  his "International Bill  of the  Rights of Men". The substantial provisions of this Bill were in two parts; Part I dealt with personal or  individual rights  enforceable in Courts of Law while Part  II set  out social and economic rights incapable of or  unsuitable for  such enforcement.  Sir B. N. Rau, who was the  Constitutional Adviser  to the Government of India, was considerably  impressed by  these ideas and he suggested that the best way of giving effect to the objectives set out in the  objectives Resolution was to split-up the objectives into Fundamental  Rights and Fundamental Principles of State Policy, the former relating to personal and political rights enforceable in  Courts of  Law and  the latter  relating  to social  and  economic  rights  and  other  matters,  not  so enforceable and  proposed that  the Chapter  on  Fundamental Rights may  be split- up into two parts; Part A dealing with the latter  kind of  rights under  the heading  "Fundamental Principles of  Social Policy"  and  Part  dealing  with  the former  under   the  heading   "Fundamental   Rights".   The Fundamental Rights  Sub-Committee also recommended that "the list of  fundamental rights should be prepared in two parts, the  first   part  consisting   of  rights   enforceable  by appropriate legal  process  and  the  second  consisting  of Directive Principles  of Social Policy". A week later, while moving for  consideration, the Interim Report of Fundamental Rights, Sardar Vallabhbhai Patel said: 322           "This is a preliminary report or an interim report      because the  Committee when it sat down to consider the      question of  fixing  the  fundamental  rights  and  its      incorporation  into   the  Constitution.  came  to  the      conclusion  that   the  Fundamental  Rights  should  be      divided into  two parts-the  first part justiciable and      the other non-justiciable." This position  was reiterated  by Sardar  Vallabhbhai  Patel when he said while presenting the Supplementary Report:           "There were two parts of the Report; one contained      Fundamental Rights which were justiciable and the other      part of the Report referred to Fundamental Rights which      were not justiciable but were directives.. " It will,  therefore, be  seen that from the point of view of importance and significance no distinction was drawn between justiciable and non-justiciable rights and both were treated as forming  part of  the rubric  of Fundamental  Rights, the only difference  being that  whereas the  former were  to be enforceable in  Courts of  Law, the latter were not to be so enforceable.  This  proposal  of  dividing  the  fundamental rights into  two parts,  one part  justiciable and the other non-justiciable, was  however not  easy of adoption, because it was  a difficult  task to  decide  in  which  category  a particular  fundamental   right  should   be  included.  The difficulty may  be illustrated  by pointing  out that at one time the  right to  primary education  was included  in  the draft list  of Fundamental Rights, while the equality clause figured in  the draft  list  of  Fundamental  Principles  of Social Policy.  But ultimately a division of the Fundamental Rights  into  justiciable  and  non-justiciable  rights  was agreed-upon by  the Constituent Assembly and the former were designated  as   "Fundamental  Rights"  and  the  latter  as "Directive Principles  of State  Policy". It  has  sometimes

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been said  that the  Fundamental Rights  deal with  negative obligations of  the State  not  to  encroach  on  individual freedom, while  the  Directive  Principles  impose  positive obligations on  the State  to take  certain kind  of action. But, I  find it  difficult to  subscribe to this proposition because, though  the  latter  part  may  be  true  that  the Directive Principles  require positive action to be taken by the State,  it  is  not  wholly  correct  to  say  that  the Fundamental Rights  impose only  negative obligations on the State. There  are a few fundamental rights which have also a positive content and that has been. to some extent, unfolded by the  recent decisions of this Court in Hussainara Khatton v. State  of Bihar,  Madhav Hayawadanrao  Hoskot v. State of Maharashtra and  Sunil Batra  etc. v. Delhi Administration & Ors. etc.. There are new dimensions of 323 the Fundamental  Rights which  are being  opened-up by  this Court and  the entire jurisprudence of Fundamental Rights is in a stage of resurgent evolution. Moreover, there are three Articles, namely, Art. 15(2), Art. 17 and Art. 23 within the category of Fundamental Rights which are designed to protect the individual  against the action of other private citizens and seem  to impose  positive obligations  on the  State  to ensure this  protection to  the  individual.  I  would  not, therefore, limit  the potential of the Fundamental Rights by subscribing to  the theory  that they  are  merely  negative obligations requiring  the State to abstain as distinct from taking positive  action. The only distinguishing feature, to my mind, between Fundamental Rights and Directive Principles is that  whereas the  former are  enforceable in  a Court of Law, the  latter, are  not.  And  the  reason  for  this  is obvious; it  has been  expressed succinctly  by the Planning Commission in the following words:           "The non-justiciability  clause only provides that      the infant  State shall  not be immediately called upon      to account  for not fulfilling the new obligations laid      upon it. A State just awakened to freedom with its many      pre-occupations  might  be  crushed  under  the  burden      unless it  was free  to decide the order, the time, the      place and the mode of fulfilling them." The social  and economic rights and other matters dealt with in  the  Directive  Principles  are  by  their  very  nature incapable  of   judicial  enforcement   and  moreover,   the implementation of  many of  those rights would depend on the state  of   economic  development   in  the   country,   the availability of  necessary  finances  and  the  Government’s assessment of  priority of objectives and values and that is why they  are made  non-justiciable. But  merely because the Directive Principles are non-justiciable, it does not follow that they  are in  any way  subservient or  inferior to  the Fundamental Rights. The Indian  Constitution is  first  and  foremost  a  social document. The majority of its provisions are either directly aimed  at   furthering  the   goals  of  the  socio-economic revolution  or   attempt  to   foster  this   revolution  by establishing the  conditions necessary  for its achievement. Yet despite the permeation of the entire Constitution by the aim of national renascence, says Granville Austin, "the core of the  commitment to the social revolution lies ........... in the  Fundamental Rights  and the  Directive Principles of State Policy."  These are the conscience of the Constitution and, according to Granville Austin, "they are designed to be the Chief instruments in bringing 324 about the great reforms of the socio-economic revolution and

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realising the  constitutional goals  of social, economic and political  justice   for   all.   The   Fundamental   Rights undoubtedly provide  for  political  justice  by  conferring various  freedoms   on  the  individual,  and  also  make  a significant contribution  to the  fostering  of  the  social revolution by  aiming at a society which will be egalitarian in texture  and where  the rights of minority groups will be protected. But  it is  in the  Directive Principles  that we find the clearest statement of the socioeconomic revolution. The Directive  Principles aim  at making  the Indian  masses free  in   the  positive  sense,  free  from  the  passivity engendered by  centuries  of  coercion  by  society  and  by nature, free  from the  object physical  conditions that had prevented  them  from  fulfilling  their  best  salves.  The Fundamental Rights  are no doubt important and valuable in a democracy. but there can be no real democracy without social and economic  justice to the common man and to create socio- economic  conditions  in  which  there  can  be  social  and economic justice to every one, is the theme of the Directive Principles. It is the Directive Principles which nourish the roots of  our democracy,  provide strength  and vigour to it and attempt  to make it a real participatory democracy which does not  remain  merely  a  political  democracy  but  also becomes  social  and  economic  democracy  with  Fundamental Rights  available   to  all  irrespective  of  their  power, position or  wealth. The dynamic provisions of the Directive Principles  fertilise   the   static   provisions   of   the Fundamental Rights.  The object of the Fundamental Rights is to protect individual liberty, but can individual liberty be considered in isolation from the socio-economic structure in which it  is to  operate. There is a real connection between individual liberty  and the shape and form of the social and economic  structure   of  the  society.  Can  there  be  any individual liberty at all for the large masses of people who are suffering  from want  and privation  and who are cheated out of  their individual rights by the exploitative economic system ? Would their individual liberty not come in conflict with the  liberty of  the  socially  and  economically  more powerful  class   and  in  the  process,  get  mutilated  or destroyed ?  It is  axiomatic that the real controversies in the present  day society  are not  between power and freedom but between  one form  of liberty  and  another.  Under  the present socio-economic  system, it is the liberty of the few which is  in conflict  with the  liberty of  the  many.  The Directive Principles  therefore, impose an obligation on the State to take positive action 325 for creating  socio-economic conditions  in which there will be an  egalitarian social  order with  social  and  economic justice to  all, so  that individual  liberty will  become a cherished value  and the  dignity of the individual a living reality, not  only for  a few privileged persons but for the entire people  of the country. It will thus be seen that the Directive  Principles   enjoy  a  very  high  place  in  the constitutional scheme and it is only in the framework of the socio-economic  structure   envisaged   in   the   Directive Principles that  the  Fundamental  Rights  are  intended  to operate, for  it is only then they can become meaningful and significant for the millions of our poor and deprived people who do  not have  even the  bare necessities of life and who are living below the poverty level.      The Directive  Principles are set out in Part IV of the Constitution and  this Part starts with Article 37 which, to my mind,  is an Article of crucial importance. It says: "The provisions contained  in this  Part shall not be enforceable

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

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"Directive Principles of State Policy" that:           "Whether  or  not  a  particular  mandate  of  the      Constitution is enforceable by court, has no bearing on      the  importance   of  that  mandate.  The  Constitution      contains many  important  mandates  which  may  not  be      enforceable by  the courts  of law.  That does not mean      that those  Articles  must  render  subsidiary  to  the      Chapter on  Fundamental Rights ...... it would be wrong      to say  that those  positive  mandates",  that  is  the      positive   mandates    contained   in   the   Directive      Principles,  "are   of  lesser  significance  than  the      mandates under Part III." Hegde, J.  in fact  pointed out  at  another  place  in  his Lectures that:           "Unfortunately an  impression has gained ground in      the organs  of the  State not  excluding judiciary that      because the Directive Principles set out in Part IV are      expressly made by Article 37 non-enforceable by courts,      these directives are mere pious hopes 327      not deserving  immediate attention.  I emphasize  again      that no Part of the Constitution is more important that      Part IV  To ignore  Part IV is to ignore the sustenance      provided for in the Constitution, the hopes held out to      the  nation   and  the   very  ideals   on  which   our      Constitution is built up." (Emphasis supplied). I wholly endorse this view set forth by Hegde, J and express my full concurrence with it.      I may  also point out that simply because the Directive Principles do  not create  rights enforceable  in a court of law, it  does  not  follow  that  they  do  not  create  any obligations on  the State.  We are  so much  Obsessed by the Hohfeldian Classification  that we  tend to think of rights, Liberties, powers  and privileges as being invariably linked with the  corresponding concept of duty, no right, liability and  immunity.   We  find   it  difficult   to  conceive  of obligations or  duties which  do  not  create  corresponding rights in  others.  But  the  Hohfeldian  concept  does  not provide a  satisfactory  analysis  in  all  kinds  of  jural relation ships and breaks down in some cases where it is not possible to  say that the duty in one creates an enforceable right in  another. There  may be  a rule  which  imposes  an obligation on  an individual or authority and yet it may not be enforceable in a court of law and therefore not give rise to a  corresponding enforceable right in another person. But it would  still be a legal rule because it prescribes a norm or con  duct to be followed by such individual or authority. The law  may provide  a mechanism  for enforcement  of  this obligation, but  the existence  of the  obligation does  not depend upon  the creation  of such mechanism. The obligation exists  prior   to  and  independent  of  the  mechanism  of enforcement. A rule imposing an obligation or duty would not therefore cease  to be  a rule  of law  because there  is no regular judicial  or quasi-judicial machinery to enforce its command. Such  a rule  would exist  despite of  any  problem relating to  its enforcement.  Otherwise the  conventions of the Constitution  and even  rules of International Law would no longer  be liable  to be  regarded as  rules of law. This view is  clearly supported by the opinion of Professor A. L. Goodhart who, while commenting upon this point, says:           "I have  always argued  that  if  a  principle  is      recognised as,  binding on the legislature, then it can      be correctly described as a legal rule even if there is      no court that can enforce it. Thus most of Dicey’s book      on the  British Constitution  is concerned with certain

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    general  principles   which  Parliament  recognises  as      binding on it."      It is  therefore. to  my mind,  clear beyond doubt that merely because  the Directive Principles are not enforceable in a  court of law, it does not mean that they cannot create obligations or duties binding on the 328 State. The  crucial test  which has to be applied is whether the Directive Principles impose any obligations or duties on the State;  if they  do, the  State  would  be  bound  by  a constitutional  mandate  to  carryout  such  obligations  or duties, even though no corresponding right is created in any one which can be enforced in a court of law.      Now on  this question  Article 37 is emphatic and makes the point  in no uncertain terms. It says that the Directive Principles are  "nevertheless fundamental  in the governance of the  country and  it shall  be the  duty of  the State to apply these principles in making laws." There could not have been more  explicit language used by the Constitution makers to make  the Directive  Principles binding  on the State and there  can   be  no   doubt  that   the  State  is  under  a constitutional  obligation   to  carry   out  this   mandate contained in  Article 37.  In fact,  non-compliance with the Directive Principles  would be  unconstitutional on the part of the  State and  it would  not only constitute a breach of faith  with  the  people  who  imposed  this  constitutional obligation on  the State  but it  would also  render a vital part of  the Constitution  meaningless and futile. Now it is significant to  note that  for the  purpose of the Directive Principles, the  "State" has the same meaning as given to it under Article  13 for the purpose of the Fundamental Rights. This would  mean that the same State which is injuncted from taking any  action in infringement of the Fundamental Rights is told  in no  uncertain terms  that  it  must  regard  the Directive Principles as fundamental in the governance of the country and  is positively  mandated to apply them in making laws. This  gives rise  to a  paradoxical situation  and its implications are for reaching. The State is on the one hand, prohibited by  the constitutional  injunction in  Article 13 from making  any law  or taking  any executive  action which would infringe any Fundamental Right and at the same time it is directed  by the  constitutional mandate in Article 37 to apply the  Directive Principles  in the  governance  of  the country and  to make laws for giving effect to the Directive Principles. Both are constitutional obligations of the State and the  question is, as to which must prevail when there is a conflict  between the  two. When the State makes a law for giving effect to a Directive Principle, it is carrying out a constitutional obligation under Article 37 and if it were to be said  that the  State cannot  make such  a law because it comes into conflict with a Fundamental Right, it can only be on the  basis that  Fundamental Rights  stand  on  a  higher pedestal and have precedence over Directive Principles. But, as we  have pointed out above, it is not correct to say that under our  constitutional  scheme,  Fundamental  Rights  are superior  to   Directive  Principles   or   that   Directive Principles must  yield to  Fundamental Rights.  Both are  in fact equally  fundamental and  the courts  have therefore in recent times tried to 329 harmonise them  by importing the Directive Principles in the construction of  the Fundamental  Rights. It  has been  laid down in  recent decisions of this Court that for the purpose of determining the reasonableness of the restriction imposed on Fundamental  Rights, the Court may legitimately take into

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account the  Directive Principles and where executive action is taken  or legislation  enacted for  the purpose of giving effect to  a Directive Principle, the restriction imposed by it on  a Fundamental Right may be presumed to be reasonable. I do  not propose  to burden  this opinion with reference to all  the  decided  cases  where  this  principles  has  been followed by  the Court, but I may refer only to one decision which, I  believe, is  the  latest  on  the  point,  namely, Pathumma v.  State of Kerala, where Fazal Ali, J. summarised the law  in the following words: "one of the tests laid down by this  Court is  that in judging the reasonableness of the restrictions imposed by clause (5) of Art. 19, the Court has to bear  in mind  the Directive Principles of State Policy". So also in the State of Bihar v. Kameshwar Singh, this Court relied upon  the Directive Principle contained in Art. 39 in arriving at  its decision  that the  purpose for  which  the Bihar Zamindary  Abolition legislation had been passed was a public purpose.  The principle  accepted by  this Court  was that if  a purpose  is  one  falling  within  the  Directive Principles, it  would definitely be a public purpose. It may also be  pointed out that in a recent decision given by this Court in  M/s Kasturi Lal Lakshmi Reddy etc. v. The State of Jammu &  Kashmir &  Anr, has  been held that every executive action of  the Government,  whether in  pursuance of  law or otherwise, must  be  reasonable  and  informed  with  public interest   and    the   yardstick   for   determining   both reasonableness and  public interest  is to  be found  in the Directive Principle  and therefore,  if any executive action is taken  by the Government for giving effect to a Directive Principle, it  would prima facie be reasonable and in public interest. It  will, therefore,  be seen  that if  a  law  is enacted for  the purpose  of giving  effect to  a  Directive Principle and  it imposes  a restriction  on  a  Fundamental Right, it  would be difficult to condemn such restriction as unreasonable or  not in public interest. So also where a law is enacted  for giving  effect to  a Directive  Principle in furtherance  of   the  constitutional  goal  of  social  and economic justice  it may  conflict with  a  formalistic  and doctrinaire view  of equality  before the  law, but it would almost always  conform to  the principle  of equality before the law  in its  total magnitude  and dimension, because the equality clause  in the  Constitution does not speak of more formal equality  before the  law but embodies the concept of real and 330 substantive equality  which strikes  at inequalities arising on account  of vast social and economic differentials and is consequently an  essential ingredient of social and economic justice. The  dynamic principle of egalitarianism fertilises the concept of social and economic justice; it is one of its essential elements  and there  can be  no  real  social  and economic justice  where there is a breach of the egalitarian principle. If,  therefore, there  is a  law enacted  by  the legislature which  is really and genuinely for giving effect to a Directive Principle with a view to promoting social and economic justice. it would be difficult to say that such law violates the  principle of  egalitarianism  and  is  not  in accord with  the principle  of equality  before the  law  as understood not  in its  strict and formalistic sense, but in its dynamic  and activist  magnitude. In  the circumstances, the Court would not be unjustified in making the presumption that a law enacted really and genuinely for giving effect to a Directive  Principle in furtherance of the cause of social and economic  justice, would  not infringe  any  Fundamental Right under  Article 14  or 19.  Mr. C. H. Alexandrowick, an

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eminent jurist,  in fact,  says:  "Legislation  implementing Part IV  must be  regarded as permitted restrictions on Part III". Dr.  Ambedkar, one  of the  chief  architects  of  the Constitution, also  made it  clear while  intervening during the discussion  on the Constitution (First Amendment Bill in the Lok  Sabha on 18th May 1951 that in his view "So" far as the doctrine  of implied powers is concerned, there is ample authority  in   the  Constitution  itself,  namely,  in  the Directive  Principles   to   permit   Parliament   to   make legislation, although it will not be specifically covered by the provisions contained in the Part on Fundamental Rights". If this  be the correct interpretation of the constitutional provisions, as  I think  it is, the amended Article 31C does no  more   than  codify  the  existing  position  under  the constitutional scheme by providing immunity to a law enacted really and  genuinely  for  giving  effect  to  a  Directive Principle, so  that  needlessly  futile  and  time-consuming controversy whether such law contravenes Article 14 or 19 is eliminated.  The   amended  Article   31C  cannot   in   the circumstances  be   regarded  as   violative  of  the  basic structure of the Constitution.      But I  may in  the  alternative,  for  the  purpose  of argument. assume  that there may be a few cases where it may be found  by the  court. perhaps on a narrow and doctrinaire view of  the scope  and applicability of a Fundamental Right as in  Karimbil Kunhikoman  v. State  of Kerala  where a law awarding compensation  at a  lower rate to holders of larger blocks of  land and  at higher  rate to  holders of  smaller blocks of land was struck down by this Court as violative of the equality clause, that a law enacted really and genuinely for giving effect to a Directive Principle is violative of a Fundamental Right  under Article  14 or 19. Would such a law enacted in discharge of the. 331 constitutional obligation  laid upon the State under Article 37 be invalid, because it infringes a Fundamental Right ? If the court takes the view that it is invalid, would it not be placing Fundamental  Rights above  Directive  Principles,  a position not  supported at  all  by  the  history  of  their enactment as  also  by  the  constitutional  scheme  already discussed by  me. The two constitutional obligations, one in regard to  Fundamental Rights  and the  other in  regard  to Directive Principles,  are of  equal strength  and merit and there is  no reason  why, in  case or  conflict. the  former should be  given precedence  over the latter. I have already pointed out  that whether or not a particular mandate of the Constitution is  justiciable has  no bearing  at all  on its importance and significance and justiciability by itself can never be  a ground for placing one constitutional mandate on a higher  pedestal than  the other.  The  effect  of  giving greater weightage to the constitutional mandate in regard to Fundamental  Rights  would  be  to  relegate  the  Directive Principles  to  a  secondary  position  and  emasculate  the constitutional command  that the  Directive Principles shall be fundamental in the governance of the country and it shall be the  duty of  the State  to apply them in making laws. It would  amount  to  refusal  to  give  effect  to  the  words "fundamental  in  the  governance  of  the  country"  and  a constitutional  command  which  has  been  declared  by  the Constitution  to   be  fundamental  would  be  rendered  not fundamental. The  result would be that a positive mandate of the Constitution commanding the State to make a law would be defeated; by  a negative  constitutional obligation  not  to encroach upon  a Fundamental  Right and  the law made by the legislature pursuant  to a  positive constitutional  command

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would be  delegitimised and  declared unconstitutional. This plainly would  be  contrary  to  the  constitutional  scheme because, as already pointed out by me, the Constitution does not accord  a higher  place to the constitutional obligation in regard  to  Fundamental  Rights  over  the  contractional obligation in  regard to  Directive Principles  and does not say that  the implementation  of  the  Directive  Principles shall only be within the permissible limits laid down in the Chapter on  Fundamental  Rights.  The  main  thrust  of  the argument of  Mr.  Palkhiwala  was  that  by  reason  of  the amendment of  Article 31C,  the harmony  and balance between Fundamental Rights  and Directive  Principle  are  disturbed because  Fundamental   Rights  which   had.  prior   to  the amendment, precedence  over Directive Principles are now, as a result  of the  amendment, made  subservient to  Directive Principles.  Mr.   Palkhiwala  picturesquely  described  the position emerging  as a  result of  the amendment  by saying that the  Constitution is  now made  to stand  on  its  head instead of  its legs.  But in  my view the entire premise on which this argument of Mr. Palkhiwala is based is fallacious because it  is not  correct  to  say,  and  I  have  in  the preceding portions 332 of this  opinion, given  cogent reasons  for this view, that prior to the amendments Fundamental Rights had a superior or higher position  in the constitutional scheme than Directive Principles and  there is  accordingly no  question at all of any  subversion  of  the  constitutional  structure  by  the amendment. There  can be  no doubt that the intention of the Constitution makers  was that  the Fundamental Rights should operate within  the  socio-economic  structure  or  a  wider continuum envisaged  by the  Directive Principles,  for then only would  the Fundamental Rights become exercisable by all and a  proper balance and harmony between Fundamental Rights and Directive  Principles secured.  The Constitution  makers therefore never  contemplated that  a conflict  would  arise between  the   constitutional  obligation   in   regard   to Fundamental Rights  and the constitutional mandate in regard to Directive  Principles.  But  if  a  conflict  does  arise between  these   two  constitutional   mandates   of   equal fundamental character  how is  the conflict to be resolved ? The Constitution  did not  provide any answer because such a situation was not anticipated by the Constitution makers and this problem  had therefore  to be  solved by Parliament and some modus  operandi had to be evolved in order to eliminate the possibility  of conflict  howsoever remote  it might be. The way  was shown in no uncertain terms by Jawaharlal Nehru when he said in the Lok Sabha in the course of discussion on the Constitution (First Amendment) Bill:           "The  Directive   Principles   of   State   Policy      represent a  dynamic move  towards a certain objective.      The Fundamental  Rights represent  something static, to      preserve certain  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.           The dynamic  movement towards  a certain objective      necessarily means certain changes taking place: that is      the essence  of movement.  Now it  may be  that in  the      process   of    dynamic   movement   certain   existing      relationships are altered, varied or affected. In fact,      they are  meant to  affect those  settled relationships      and yet if you come back to the Fundamental Rights they      are meant  to preserve, not indirectly, certain settled      relationships. There  is a  certain conflict in the two

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    approaches, not inherently. because that was not meant,      I am  quite sure.  But there  is that slight difficulty      and naturally  when the  courts of  the  land  have  to      consider these  matters they have to lay stress more on      the  Fundamental   Rights   than   on   the   Directive      Principles. The result is that the whole purpose behind      the Constitution,  which was  meant  to  be  a  dynamic      Constitution leading to a certain goal step 333      by step,  is somewhat  hampered  and  hindered  by  the      static element  A being  emphasized a  little more than      the dynamic  element......... . If in the protection of      individual liberty you protect also individual or group      inequality, then  you  come  into  conflict  with  that      Directive Principle  which wants, according to your own      Constitution. a  gradual advance,  or let  us put it in      another way,  not so  gradual but  more rapid  advance,      whenever possible  to a State where ..  . there is less      and less  inequality and more and more equality. If any      kind of  an appeal to individual liberty and freedom is      construed to  mean as  an appeal to the continuation of      the   existing    inequality,   then   you   get   into      difficulties. Then you become static, unprogressive and      cannot change  and you  cannot realize  the ideal of an      egalitarian society which I hope most of us aim at" Parliament took  the view that the constitutional obligation in regard  to Directive  Principles should  have  precedence over  the   constitutional  obligation   in  regard  to  the Fundamental  Rights   in  Articles   14  and   19,   because Fundamental  Rights   though  precious   and  valuable   for maintaining the  democratic way  of life, have absolutely no meaning for the poor, down trodden and economically backward classes of  people who  unfortunately constitute the bull of the people  of India  and the  only way in which Fundamental Rights can  be made  meaningful for  them is by implementing the Directive  Principles, for  the Directive Principles are intended to  bring about  a socio-economic revolution and to create a new socio-economic order where there will be social and economic  justice for  all and  every one,  not  only  a fortunate few  but the  teeming millions  of India, would be able to participate in the fruits of freedom and development and exercise  the Fundamental  Rights. Parliament  therefore amended Article 31C with a view to providing that in case of conflict Directive Principles shall have precedence over the Fundamental Rights  in Articles  14 and  19 and  the  latter shall yield place to the former. The positive constitutional command to  make laws  for giving  effect to  the  Directive Principles shall  prevail over  the negative  constitutional obligation  not   to  encroach  on  the  Fundamental  Rights embodied in  Articles 14  and 19.  Parliament in making this amendment was  moved  by  the  noble  philosophy  eloquently expressed in  highly in spiring and evocative words. full of passion and  feeling. by Chandrachud, J. (as he then was) in his judgment  in Keshavananda  Bharati’s case at page 991 of the Report 1 may quote here what Chandrachud, J. (as he then was) said  on that,  occasion, for it sets out admirably the philosophy  which   inspired  Parliament   in  enacting  the amendment in Article 31C The learned Judge said:           "I have  stated in the earlier part of my judgment      that the  Constitution accords  a  place  of  pride  to      Fundamental Rights and 334      a place  of permanence  to the  Directive Principles. I      stand  by  what  I  have  said.  The  Preamble  of  our      Constitution recites  that the  aim of the Constitution

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    is to  constitute India  into  a  Sovereign  Democratic      Republic and  to secure to "all its citizens", Justice-      Social, economic  and political-liberty  and  equality.      Fundamental Rights  which are  conferred and guaranteed      by Part  III of the Constitution undoubtedly constitute      the ark  of the  Constitution and  without them a man’s      reach will  not exceed  his grasp.  But  it  cannot  be      overstressed that,  the Directive  Principles of  State      Policy  are   fundamental  in  the  governance  of  the      country. What  is fundamental  in the governance of the      country cannot  surely be less significant than what is      fundamental in  the life  of an individual. That one is      justiciable and  the other  not may  show the intrinsic      difficulties in  making the  latter enforceable through      legal processes  but that  distinction does not bear on      their relative  importance. An  equal right  of men and      women to  an adequate means of livelihood; the right to      obtain humane  conditions of  work  ensuring  a  decent      standard of  life and  full enjoyment  of leisure,  and      raising the  level of  health  and  nutrition  are  not      matters for  compliance with  the Writ of a Court. As I      look at  the provisions  of Parts IIl and IV, I feel no      doubt That  the basic  object of conferring freedoms on      individuals is  the ultimate  achievement of the ideals      set out  in Part  IV. A circumspect use of the freedoms      guaranteed by  Part III is bound to subserve the common      good  but  voluntary  submission  to  restraints  is  a      philosopher’s dream.  Therefore, article  37 enjoys the      State to apply the Directive Principles in making laws.      The freedom  of a few have them to be abridged in order      to ensure  the freedom of all. It is in this sense that      Parts,  III  and  IV,  as  said  by  Granville  Austin,      together   constitute    "the   conscience    of    the      constitution". The  Nation stands  today at  the cross-      roads of history and exchanging the time honoured place      of the  phrase, may I say that the Directive Principles      of State  Policy should  not be  permitted to become "a      mere rope  of sand."  If  the  State  fails  to  create      conditions in  which the  Fundamental freedoms could be      enjoyed by  all, the  freedom of the few will be at the      mercy of the many and then all freedoms will vanish. In      order,  therefore,   to  preserve  their  freedom,  the      privileged few must part with a portion of it." This is  precisely  what  Parliament  achieved  by  amending Article 3lC.  Parliament made  the amendment  in Article 31C because it  realised that  "if the  State  fails  to  create conditions  in  which  the  fundamental  freedoms  could  be enjoyed by all, the freedom of the few will be at 335 the mercy  of then  manly and then all freedoms will vanish" and "in   order,  therefore, to  preserve their freedom, the privileged few  must part  with a  portion of it." I find it difficult to  understand how  it can at all be said that the basic structure  of the  Constitution its  affected when for evolving a  modus vivandi.  for resolving  a possible remote conflict between  two  constitutional  mandates  of  equally fundamental  character,   Parliament  decides   by  way   of amendment of  Article 31C that in case of such conflict, the constitutional mandate  in regard  to  Directive  Principles shall prevail  over the  constitutional mandate in regard to the  Fundamental  Rights  under  Articles  14  and  19.  The amendment  in  Article  31C  far  from  damaging  the  basic structure of  the Constitution strengthens and reenforces it by giving  fundamental  importance  to  the  rights  of  the members of  the community  as against  the rights  of a  few

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individuals and furthering the objective of the Constitution to build  an egalitarian  social order  where there  will be social and  economic justice for all, every on including the low visibility areas of humanity in the country will be able to exercise  Fundamental  Rights  and  the  dignity  of  the individual and  the worth  of the  human  person  which  are cherished  values  will  not  remain  merely  the  exclusive privileges of a few but become a living really for the many. Additionally, this  question may  also  be  looked  at  from another point  of view  so far  as  the  protection  against violation, of  Article 14  is concerned.  The  principle  of egalitarianism, as I said before, is an essential element of social and  economic justice  and, therefore, where a law is enacted for,  giving effect  to a Directive Principle with a view to  promoting social and economic justice, it would not run counter  to the  egalitarian  principle  and  would  not therefore be  violative of  the basic  structure, even if it infringes  equality   before  the  law  in  its  narrow  and formalistic sense.  No law which is really and genuinely for giving effect  to a  Directive Principle can be inconsistent with the  egalitarian principle and therefore the protection granted  to   it  under  the  amended  Article  31C  against violation of  Article 14  cannot have the effect of damaging the  basic  structure.  I  do  not  therefore  see  how  any violation  of   the  basic  structure  is  involved  in  the amendment of  Article 31C.  In  fact.  Once  we  accept  the proposition  laid   down  by   the  majority   decision   in Keshavananda Bharati’s  case that  the unamended Article 31C was constitutionally  valid, it  could only  be on the basis that it did not damage or destroy the basic structure of the Constitution and  moreover in  the order made in Waman Rao’s case on  9th May,  1980 this  Court expressly  held that the unamended Article  31C "does  not damage any of the basic or essential  features   of  the   Constitution  or  its  basic structure," and if that be so, it is difficult to appreciate how the amended 336 Article 31C  can be  said  to  be  violative  of  the  basic structure. If  the  exclusion  of  the  Fundamental  Rights. embodied in  Articles 14  and 19  could be legitimately made for giving  effect to  the Directive  Principles set  out in clauses (b)  and (c)  of Article  39 without  affecting  the basic. structure. I fail to see why these Fundamental Rights cannot be  excluded for giving effect to the other Directive Principles. If  the constitutional  obligation in  regard to the Directive  Principles set  out in clauses (b) and (c) of Article 39 could be given precedence over the constitutional obligation  in   regard  to  the  Fundamental  Rights  under Articles 14 and 19, there is no reason in principle why such precedence cannot  be given to the constitutional obligation in regard.  to the other Directive Principles which stand on the same  footing. It  would, to  my mind, be incongruous to hold the  amended Article  31C invalid  when  the  unamended Articles 31C  has been  held to  be valid  by  the  majority decision in  Keshavananda Bharati’s  case and  by the  order made on 9th May, 1980 in Waman Rao’s case.      Mr. Palkhiwala  on behalf  of the  petitioners  however contended that  there was a vital difference between Article 31C as  it stood  prior to  its amendment  and  the  amended Article 31C,  in as  much as under the unamended Article 31C only certain  categories of  laws, namely, those enacted for the purpose of giving effect to the Directive Principles set out in  clauses (b)  and (c)  of Article  39 were  protected against challenge  under  Articles  14  and  19,  while  the position under  the amended Article 31C was that practically

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every law  would be  immune from  such challenge  because it would be  referable to  one Directive Principle or the other and the  result would  be that  the  Fundamental  Rights  in Articles 14  and 19  would become meaningless and futile and would, for  all practical  purposes, be  dead letter  in the Constitution. The  effect of giving immunity to laws enacted for the  purpose of  giving effect to any one or more of the Directive Principles  would, according to Mr. Palkhiwala, be in reality and substance to wipe out Articles 14 and 19 from the Constitution  and that  would affect the basic structure of the  Constitution. Mr. Palkhiwala also urge that the laws which were  protected by  the amended Article 31 C were laws for giving  effect  to  the  policy  of  the  State  towards securing any  one or  more of  the Directive  Principles and every law  would be   comprehended  within this  description since it  would not  be competent to the court to enter into questions of policy and determine whether the policy adopted in a  particular law  is calculated  to secure any Directive Principle as claimed by the State. The use of the words "law giving  effect  to  the  policy  of  the  State",  said  Mr. Palkhiwala,  introduced  considerable  uncertainty  in  the, yardstick with  which to  decide whether  a  particular  law falls within the description in the 337 amended Article  31C and widened the scope and applicability of the  A amended  Article so as to include almost every law claimed by  the State  to all  within such description. This argument was  presented by  Mr. Palkhiwala  with great force and persuasiveness  but it  does not  appeal to  me  and  I. cannot. accept  it. It  is clear  from the  Language of  the amended Article  31C that  the law  which is  protected from challenge under  Articles 14  and 19 is law giving effect to the policy  of the State towards securing all or any of this Directive Principles. Whenever, therefore, any protection is claimed for  a law  under the  amended Article  31C,  it  is necessary for the court to examine whether this law has been enacted for giving effect to the policy of the State towards securing any  one or more of the Directive Principles and ii is only if the court is so satisfied as a result of judicial scrutiny, that the court would accord the protection of, the amended Article  31C to such law. Now it is undoubtedly true that the  words used  in the amended Article are "law giving effect to  the policy  of the  Stale", but the policy of the State which  is contemplated  there is  the  policy  towards securing one  or more of the Directive Principles. It is the constitutional  obligation   of  the  State  to  secure  the Directive Principles  and that is the policy which the State is required  to adopt and when a law is enacted in pursuance of this  policy on implementing the Directive Principles and it seeks  to give effect to a Directive Principle, it would, both from;  the point  of view  of grammar  and language, be correct to  say that  it is  made for  giving effect  to the policy  of   the  State   towards  securing  such  Directive Principle. The words "law giving effect to the policy of the State" are not sc. wide as Mr. Palkhiwala would have it, but in the context and collocation in which they occur, they are intended to  refer only  to a law enacted for the purpose on implementing  or  giving  effect  to  one  or  more  of  the Directive Principles. The Court before which, protection for a particular  law is  claimed under  the amended Article 31C would therefore  have to examine whether such law is enacted for giving effect to a Directive Principle, for then only it would have  the protection  of the  amended Article 31C. Now the question  is what  should be  the  test  or  determining whether a  law is  enacted for  giving effect to a Directive

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Principle. One  thing is  clear that  a claim to that effect put forward  by the State would have no meaning or value; it is the  court which  would have  to determine  the question. Again it  is not  enough that  there may  be some connection between a  provision of  the law  and a Directive Principle. The concoction  has to  be between the law and the Directive Principle  and   it  must  be  a  real  HE  and  substantial connection. To  determine whether a law satisfies this test, the court  would have to examine the pith and substance, the true 338 nature and  character of  the law as also its design and the subject matter dealt with by it together with its object and scope. If  on such  examination, the  court finds  that  the dominant object  of  the  law  is  to  give  effect  to  the Directive Principle,  it would  accord protection to the law under the  amended Article  31C. But if the court finds that the law  though passed  seemingly for  giving  effect  to  a Directive Principle,  is, in  pith and  substance.  One  for accomplishing an  unauthorised purpose  unauthorised in  the sense of  not being covered by any Directive Principle, such law would  not have  the protection  of the  amended Article 31C. To  take  the  illustration  given  by  Khanna,  J.  in Keshavananda Bharati’s  case’ at  page 745 of the Report, "a law might be made that as the old residents in the State are economically backward  and those who have not resided in the State for  more than  three  generations  have  an  affluent business in the Stale or have acquired property in the State they shall be deprived of their business and property with a view to vest the same in the old residents of the State." It may be  possible,  after  performing  what  I  may  call  an archaeological  operation,   to  discover  some  remote  the tenuous connection  between  such  law  and  some  Directive Principle, but  the dominant object of such law would be, as pointed out  by Mr  H. M. Seeravi at Page 1559 of the second Volume of  his book  on "Constitutional  Law of  India",  to implement "the  policy of  the State to discriminate against citizens who  hail from  another State,  and in  a practical sense, to  drive them  out of it", and such law would not be protected by the amended Article 31C. Many such examples can be given  but I  do not  wish to  unnecessarily burden  this opinion. The  point I  wish to emphasize is that the amended Article 31  does not  give protection  to a  law  which  has merely some  remote or  tenuous connection  with a Directive Principle. What  is necessary  is that  there must be a real and substantial  connection and  the dominant  object of the law must  be to  give effect to the Directive Principle, and that is a matter which the court would have to decide before any claim  for protection  under the amended Article 31C can be allowed.      There is  also one  other aspect  which requires  to be considered before protection can be given to a law under the amended Article 31C. Even where the dominant object of a law is to given effect to a Directive Principle. it is not every provision af  the law which is entitled to claim protection. The words  used in  the amended Article 31C are: "Law giving effect to  the policy  of the  State towards securing all or any of the principles laid down in Part IV" and these words, on a  plain natural  construction. do  not include  all  the provisions on  the law  but only  those which give effect to the Directive 339 Principle.  But  the  question  is  how  to  identify  these provisions giving effect to the Directive Principle in order to accord to them the protection of the amended Article 31C.

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The answer  to this question is analogically provided by the decision of this Court in Akadasi Padhan v. State of Orissa. There  the   question  was   as  to  what  was  the  precise connotation of  the  expression  la  relating  to"  a  State monopoly which occurs in Article 19(6). This Court held that "a law  relating to" a State monopoly cannot include all the provisions contained in such law but it must be construed to mean, "the  law relating  to the  monopoly in its absolutely essential features"  and it  is only those provisions of the law "which  are  basically  and  essentially  necessary  for creating the  State monopoly" which are protected by Article 19(6).  This  view  was  reiterated  in  several  subsequent decisions of  this Court which include inter alia Rashbihari Pande etc. v. State of Orissa, Vrajla Manilal & Co. & ors v. State of  Madhya Pradesh  & Ors and R. C. Cooper v. Union of India. I  would adopt  the same approach in the construction of Article  31C and hold that it is not every provision of a statute which , has been enacted with the dominant object of giving effect  to a Directive Principle, that it entitled to protection. but  only those  provisions of the statute which are basically and essentially necessary for giving effect to the. Directive  Principles are  protected under  the amended Article 31C.  If there  are  any  other  provisions  in  the statute which  do not  fall within this category, they would not be  entitled to protection and their validity would have to be  judged   reference to  Articles  14  and  19.  Where, therefore, protection  is claimed  in respect  of a  statute under the amended Article 31C, the court would have first to determine whether  there is  real and substantial connection between  the   law  and   a  Directive   Principle  and  the predominant object  of the  law is  to give  effect to  such Directive Principle and if the answer to this question is in the affirmative, the court would then have to consider which are the  provisions of  the law  basically  and  essentially necessary for  giving effect  to the Directive Principle and give protection  of the  amended Article  31C only  to those provisions. The question whether any particular provision of the law  is basically  and essentially  necessary for giving effect to  the Directive Principle. would depend, to a large extent, on  how closely  and integrally  such  provision  is connected  with   the  implementation   on   the   Directive Principle. If the court finds That a particular provision is subsidiary 340 or incidental  or not  essentially and  integrally connected with the  implementation of the Directive Principle or is of such a  nature that,  though seemingly a part of the general design of  the main  provisions of the statute, its dominant object is  to achieve  an unauthorised purpose, it would not enjoy the protection of the amended Article 31C and would be liable to be struck down as invalid if it violates.  Article 14 or 19      These  considerations  which  I  have  discussed  above completely answer  some of  the difficulties  raised by  Mr. Palkhiwala. He  said that  if the  amended Article  31C were held to  be valid,  even provision,  like Section  23(e) and 24(1)(a) of  the Bombay  Prohibition Act,  1949 C which were struck down in State of Bombay v. F. N. Balsari as violating freedom of  speech guaranteed  under Article 19(1)(a), would have to be held to be valid. I do not think that freedom and democracy in  this  country  would  be  imperilled  if  such provisions were  held valid. In fact, after the amendment of Article 19(2)  by the  Constitution  (First  Amendment  Act, 1951, it  is highly arguable that both such provisions would fall within  the protection  of Article  19(2) and  would be

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valid. And  even otherwise,  it is  difficult to see how any violation of  the basic structure is involved if a provision of  a   law  prohibiting   a  person   from  commending  any intoxicant, the  consumption or use of which is forbidden by the  law  (except  under  a  licence  issued  by  the  State Government)  is  protected  against  infraction  of  Article 19(1)(a). The  position would  perhaps  be  different  if  a provision is  introduced in  the Prohibition Act saying that no  one  shall  speak  against  the  prohibition  policy  or propagate for the repeal of the Prohibition Act or plead for removal of  Article 47  from the Directive Principle. Such a provision may  not and  perhaps would not be entitled to the protection of  the amended Article 31C, even though it finds a place  in the Prohibition Act, because its dominant object would not  be to  give effect  to the Directive Principle in Article 47  but to  stifle freedom of speech in respect of a particular matter  and it  may run  the risk of being struck down as  violative of  Article 19(1)(a).  If the Court finds that even  in a  statute enacted  for  giving  effect  to  a Directive Principle,  there is  a  provision  which  is  not essentially and integrally connected with the implementation of the  Directive Principle  or the dominant object of which is to  achieve an  unauthorised purpose, it would be outside the protection  of the amended Article 31C and would have to meet the challenge of Articles 14 and 19.      Lastly, I  must consider the argument of Mr. Palkhiwala that almost any and every law would be within the protection of the 341 amended Article  31C because  it would  be referable to some Directive Principle  or  the  other.  I  think  this  is  an argument of  despair. Articles  39 to  51 contain  Directive Principles referring  to certain  specific objectives and in order that a law should be for giving effect to one of those Directive Principles.  there would  have to  be a  real  and substantial connection  between the  law  and  the  specific objective set  out in  such Directive  Principle. Obviously, the objectives  set out  in these Directive Principles being specific and limited, every law made by a legislature in the country  cannot   possibly  have   a  real  and  substantial connection  with   one  or   the  other  of  these  specific objectives. It  is only a limited number of laws which would have a real and substantial connection with one or the other of  specific   objectives  contained   in  these   Directive Principles and  any and every law would not come within this category. Mr.  Palkhiwala then  contended that in any event, the Directive  Principle contained  in Article  38 was  very wide and  it  would  cover  almost  any  law  enacted  by  a legislature. This  contention  is  also  not  well  founded. Article  38   is  a   general  article  which  stresses  the obligation of the State to establish a social order in which justice-social, economic  and political shall inform all the institutions of national life. It no doubt talks of the duty of the  State to promote the welfare of the people and there can be  no doubt  that standing by itself this might cover a fairly wide  area but it may be noted that the objective set out in the Article is not merely promotion of the welfare of the people,  but there  is a  further requirement  that  the welfare of the people is to be promoted by the State, not in any manner  it likes,  not according  to its whim and fancy, but for  securing and protecting a particular type of social order and  that social  order should be such as would ensure social, economic  and political  justice  for  all.  Social, economic and  political justice  is the objective set out in the Directive  Principle  in  Article  38  and  it  is  this

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objective which is made fundamental in the governance of the country and  which the  State is laid under an obligation to realise. This  Directive Principle  forms the  base on which the entire  structure of  the Directive Principles is reared and social,  economic and political justice is the signature tune  of  the  other  Directive  Principles.  The  Directive Principles set out in the subsequent Articles following upon Article 38  merely particularise  and  set  out  facets  and aspects of  the ideal  of  social,  economic  and  political justice  articulated   in  Article   38.  Mr.   Palkhiwala’s complaint was  not directed  against the  use of  the  words ’political justice’  in Article  38 but  his contention  was that the  concept of social and economic justice referred to in that  Article was  so wide  that almost  any  legislation could come within it. I do not agree. The concept 342 of social  and economic  Justice may  not be  very  easy  of definition but its broad contours are to be found in some of the  provisions   of  the  Fundamental  Rights  and  in  the Directive Principles  and whenever a question arises whether a legislation  is for  giving effect  to social and economic justice, it  is with  reference to these provisions that the question would  have to  be determined.  There is nothing so vague or  indefinite about the concept of social or economic justice  that  almost  any  kind  of  legislation  could  be justified under  it. Moreover,  where a claim for protection is made in respect of a legislation on the ground that it is enacted for  giving effect  to a  Directive  Principle,  the Directive Principle  to which  it is  claimed to  be related would not  ordinarily be the general Directive Principle set out in  Article  38,  but  would  be  one  of  the  specific Directive Principles  set out  in the  succeeding  Articles, because as  I said  before, these  latter particularise  the concept of  social  and  economic  justice  referred  to  in Article 38.  I cannot therefore subscribe to the proposition that if  the Amendment  in Article  31C were  held valid, it would  have   the  effect   of  protecting   every  possible legislation under  the sun  and that  would  in  effect  and substance  wipe   out  Articles   14  and   19   from,   the Constitution. This  is a tall and extreme argument for which I  find   no  justification   in  the   provisions  of   the Constitution.      I  would   therefore  declare   Section   55   of   the Constitution  (Forty   second  Amendment)  Act,  1976  which inserted  sub-sections   (4)  and  (5)  in  Article  368  as unconstitutional and  void on the ground that it damages the basic structure  of the  Constitution and  goes  beyond  the amending power of Parliament. But so far as Section 4 of the Constitution   (Forty-second   Amendment)   Act,   1976   is concerned. I  hold that, on the interpretation placed on the amended Article 31C by me, it does not damage or destroy the basic structure  of  the  Constitution  and  is  within  the amending power  of Parliament  and I would therefore declare the amended Article 31C to be constitutional and valid.      I have  also given  my reasons  in  this  judgment  for subscribing to  the order  dated 9th May, 1980 made in Waman Rao’s case and this judgment ill so far as it sets out those reasons will  be formally  pronounced by me when Waman Rao’s case is set down on board for judgment. S.R. 343