30 October 1964
Supreme Court


Case number: Writ Petition (Civil) 31 of 1964






DATE OF JUDGMENT: 30/10/1964


CITATION:  1965 AIR  845            1965 SCR  (1) 933  CITATOR INFO :  R          1965 SC1636  (25)  O          1967 SC1643  (12,14,23,43,44,59,61,65,75,87  RF         1972 SC 425  (7,14)  RF         1973 SC1461  (9TO16,38,88,107,633,658,929,9  R          1975 SC1193  (17)  RF         1975 SC2299  (649)  R          1980 SC 674  (8)  RF         1980 SC 845  (55,61)  RF         1980 SC1789  (96)  R          1981 SC 271  (33,42)  RF         1983 SC1125  (7)  RF         1987 SC1140  (3)  RF         1989 SC1933  (24)  RF         1990 SC1106  (9)

ACT: Constitution (Seventeenth Amendment) Act, 1964-Validity of.

HEADNOTE: In  1951,  several  State legislative  measures  passed  for giving effect to a policy of agrarian reform faced a serious challenge  in  the  Courts.  In order to  assist  the  State Legislatures to give effect to the policy, Arts. 31A and 31B were   added  to  the  Constitution  by   the   Constitution (First.Amendment) Act, 1951.  Article 31B provided that none of  the  Acts  specified  in  the  Ninth  Schedule  to   the Constitution  shall  be deemed to be void or  ever  to  have become  void.  In 1.955, by the Constitution- (Fourth  Amend ment)  Act,  Art. 31A was  amended.   Notwithstanding  those amendments  some legislative measures adopted  by  different States  for  giving effect to the  policy  were  effectively challenged.  In order to save the validity of those Acts  as well  as of other Acts which were likely to be struck  down, Parliament enacted the Constitution (Seventeenth Amendment), Act  1964, by which Art. 31A was again amended and 44  Acts, were  added to the Ninth Schedule.  The petitioners  in  the Writ  Petitions  in  Supreme Court,  and  interveners,  were persons  affected  by  one or other  of  those  Acts.   They contended  that none of the Act by which they were  affected



could   be  saved  because  the  Constitution   (Seventeenth Amendment)  Act was constitutionally invalid.  It was  urged that : (i) Since the powers prescribed by Art. 226, which is in Chapter V, Part VI of the Constitution, were likely to be affected  by  Seventeenth Amendment, the  special  procedure laid down in the proviso to Art. 368, namely’ requiring  the ratification  by not less half the number of States,  should be  followed; (ii) The decision in Sri Sankari Prasad  Singh Deo v. Union of India and State of Bihar, [1952] S.C.R.  89, which  negatived  such a contention when  dealing  with  the First   Amendment,   should  be  reconsidered;   (iii)   The Seventeenth  Amendment  Act  was a  legislative  measure  in respect of land and since Parliament had no right to make  a law  in respect of land, the Act was invalid and (iv)  Since the  Act  purported  to  set aside  decisions  of  Court  of competent jurisdiction, it was unconstitutional. HELD  (by P. B. Gajendragadkar C. J., Wanchoo, and  Raghubar Dayal  JJ.) : (i) The main part of Art. 368 and its  proviso must  on a reasonable construction be harmonised  with  each other  in the sense that the scope and effect of  either  of them should not be allowed to be unduly reduced or enlarged. Such  a  construction  requires that  if  amendment  of  the fundamental  rights is to make a substantial inroad  on  the High  Court’s  powers  under  Art.  226,  it  would   become necessary to consider whether the proviso to Art. 368  would cover such a case.  If the effect is indirect, incidental or otherwise  of  an insignificant order the  proviso  may  not apply.   In  dealing With such a question, the  test  to  be adopted  is to find the pith and substance of  the  impugned Act.    So  tested  it  is  clear  that   the   Constitution (Seventeenth  Amendment) Act amends the  fundamental  rights solely  with  the  object  of  removing  obstacles  in   the fulfilment of a socioeconomic policy.  Its effect 934 on  Art.  226  is incidental  and  insignificant.   The  Act therefore  falls under the substantive part of Art. 368  and does not attract the proviso. [940 D-E; 941 B-E; 944 D-F] (ii) On the contentions urged there was no justification for reconsidering Shankari Prasad case. [947 G-H] Though  the Constitution is an organic document intended  to serve  as a guide to the solution of changing  problems  the Court  should be reluctant to accede to the suggestion  that its earlier decisions should be lightheartedly reviewed  and departed  from.   In  such  a  case the  test  is  :  Is  it absolutely  and essential that the question already  decided should be reopened.  The answer to the question would depend on  the  nature  of the infirmity  alleged  in  the  earlier decision,  its  import on public good and the  validity  and compelling character of the considerations urged in  support of the contrary view.  It is therefore relevant and material to  note that if the argument urged by the petitioners  were to prevail, it would lead to the inevitable consequence that the  amendments  of  1951 and 1955 and  a  large  number  of decisions dealing with the validity of the Acts in the Ninth Schedule  would be exposed to serious jeopardy.  [948  E--H; 949 A-B] (iii)     Parliament  in enacting the impugned Act  was  not making  any  provision of land-Legislation  but  was  merely validating  land-Legislation  already passed  by  the  State Legislatures in that behalf. [945 C] (iv) The  power conferred by Art. 368 on Parliament  can  be exercised  both  prospectively and retrospectively.   It  is open to Parliament to validate laws which have been declared invalid by courts. [945 E-F] (v)  The power conferred by Art. 368, includes the power  to



take away the fundamental rights guaranteed by Part III.  In the  context  of the constitution it includes the  power  of modification,  or  changing  the  provisions,  or  even   an amendment  which makes the said provisions  inapplicable  in certain cases.  The power to amend is a very wide power  and cannot  be controlled by the literal dictionary  meaning  of the   word  "amend".   The  expression  "amendment  of   the Constitution"  plainly and unambiguously means amendment  of all  the provisions of the Constitution.  The words used  in the proviso unambiguously indicate that the substantive part of  the  Article  applies  to  all  the  provisions  of  the Constitution. [946 F; 947 A-B; 951 B] The  word "law" in Art. 13(2) does not include a law  passed by  Parliament by virtue of its constituent power  to  amend the  Constitution. if the Constitution-makers  had  intended that  any  future amendment of the provisions in  regard  to fundamental  rights  should be subject to Art.  13(2),  they would have taken the precaution of making a clear  provision in  that behalf.  It would not be reasonable to  proceed  on the  basis  that  the fundamental rights in  Part  III  were intended to be finally and immutably settled and  determined once  for  all  and  were beyond the  reach  of  any  future amendment.   The Constitution-makers must  have  anticipated that  in dealing With the socioeconomic problems  which  the legislatures  may  have  to  face from  time  to  time,  the concepts   of   public   interest   and   other    important considerations  may  change  and  expand,  and  so,  it   is legitimate to assume that the Constitution-makers knew  that Parliament  should be competent to make amendments in  those rights so as to meet the challenge of the problems which may arise.  The fundamental rights guaranteed by Part III  could not  have been intended to be eternal, inviolate and  beyond the  reach of Art. 368 for, even if the powers to amend  the fundamental’rights   were  not  included  in  the   Article, Parliament  ran by a suitable amendment of the Article  take those powers. [951 F-H; 954 F-H; 955 E-G] Article  226 which confers on High Court the power to  issue writs  falls  under the proviso to Art. 368, while  Art.  32 which is itself a guaranteed fundamental right and enables a citizen to move the Supreme Court to 935 issue  writs,  fall  under the main  part  of  the  section. Parliament  may  consider  whether  the  anamoly  which   is apparent  in the different modes prescribed by Art. 368  for amending  Arts.  226  and 32  respectively,  should  not  be remedied  by including Part III itself in the proviso.  [956 E-G] Sri Sankari Prasad Singh Deo v. Union of India and State  of Bihar, [1952] S.C.R. 89, followed. A.   K. Gopalan v. State of Madras, [1950] S.C.R. 88 and  In re: The Delhi Laws Act, [1951] S.C.R. 747, referred to. (vi) It  is  not  reasonable  to  suggest  that,  since  the impugned Act amends only Arts. 31A and 31B and adds  several Acts to the Ninth Schedule it does not amend the  provisions of  Part  III but makes an independent  provision,  and  so, comes  within  the  scope of the proviso to  Art.  368.   If Parliament  thought that instead of adopting the  cumbersome process  of amending each relevant Article in Part  III,  it would  be  more appropriate to add Arts. 31A and  31B,  then what  Parliament did in 1951 has afforded a valid basis  for further amendments in 1955 and in 1964. [946 B-E] (vii)     The  fact that the Acts have been included in  the Ninth  Schedule with a view to making them valid, does  not- mean  that the Legislatures which passed the Acts have  lost their  competence  to  repeal or amend  them.   Also,  if  a



legislature  amends  any  provision of  any  such  Act,  the amended provision would not receive the protection of Art. 3 1B  and  its validity will be liable to be examined  on  the merits. [956 A-C] Per  Hidayatullah and Mudholkar JJ.  Quaere (i) Whether  the word "law" in Art. 13(2) of the Constitution excludes an Act of Parliament amending the Constitution. [959 E-F; 968 G] (ii) Whether  it  is  competent to Parliament  to  make  any amendment at all to Part III of the Constitution. [961  F-G; 968 G] Per  Mudholkar J. An amendment made by resort to  the  first part of Art. 368 could be struck down upon a ground such  as taking  away the jurisdiction of High Courts under Art.  226 or of the Supreme Court under Art. 136 or that the effect of the   amendment   is  to   curtail   substantially,   though indirectly,  the jurisdiction of the High Courts under  Art. 226  or the Supreme Court under Art. 136, and  recourse  had not  been  had  to the proviso to Art.  368.   The  question whether  the amendment was a colorable exercise of power  by Parliament  may be relevant for consideration in the  latter kind of case. [969 D-F] The  attack  on the Seventeenth Amendment Act was  based  on grounds  most  of  which were the same as  those  urged  and rejected in the earlier case of Sankari Prasad Singh Deo  v. Union of India and State of Bihar, [1952] S.C.R. 89, and  on some grounds which are unsubstantial.  No case has therefore been  made  out by the petitioners either for  the  reconsi- deration   of  that  decision  or  for  striking  down   the Seventeenth Amendment. [963 FG] The following matters however were not considered in Sankari Prasad’s case and merit consideration :- (i)  Where  Legislation  deals  with  the  amendment  of   a provision  of  the  Constitution, does it cease  to  be  law within the meaning of Art. 13(2) merely because it has to be passed by a special majority ? [964 B-C] (ii) Where  a  challenge  is made before the  Court  on  the ground  that  no amendment to the Constitution had  in  fact been  made  or  on  the  ground that  it  was  not  a  valid amendment, would it not be the duty of the Court and  within its  power to examine the question and to pronounce upon  it since  this is precisely what a Court is competent to do  in regard to any other law? [964 F] 936 (iii)     Is  the  statement in A. K. Gopalan  v.  State  of Madras, [1950] S.C.R. 88 that the fundamental rights are the minimum  rights  reserved by the people to  themselves,  and therefore unalterable, inconsistent with the statement in In re  Delhi Laws Act, 1912 [1951] S.C.R. 747, that  Parliament has plenary powers of legislation ? [965 D-E] (iv) Whether  making a change in the basic features  of  the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution,  and if it is the latter, would it be within the purview of  Art. 368 ? [966 H, 967 A] (v)  Upon the assumption that Parliament can amend Part  III of  the  Constitution and was therefore competent  to  enact Arts.  31A  and  31B, as also to  amend  the  definition  of "estate",  can Parliament validate a State law dealing  with land ? [968 H, 969 A] (vi) Could  Parliament  go  to the extent it  went  when  it enacted  the First Amendment and the Ninth Schedule and  now when  it  added  44  more agrarian laws  to  it  ?  Or,  was Parliament  incompetent to go, beyond enacting Art.  31A  in 1950, and now, beyond amending the definition of "Estate"  ? [969 B-C]



JUDGMENT: ORIGINAL  JURISDICTION: Writ Petitions Nos. 31, 50, 52,  54, 81 and 82 of 1964. Petitions under Art. 32 of the Constitution of India for the enforcement of Fundamental Rights. R.   Gopalakrishnan,  for the petitioners (in W.P.  Nos.  31 and 52 of     1964). G.   C.  Kasliwal, Advocate-General, State of Rajasthan,  K. K. Jain  (for W.. P. No. 31 of 1964 only) and R.  N.  Sachthey, for the respondent (in W. P. Nos. 31 and 52 of 1964). C.   K. Daphtary, Attorney-General and R. H. Dhebar, for the Union of India. M.   C.  Setalvad,  J.  B.  Dadachanji,  O.  C.  Mathur  and Ravinder Narain, for intervener No. 1. G.   S. Pathak, J. B.  Dadachanji, O. C. Mathur and Ravinder Narain, for intervener No. 2. Dipak  Dutta Chaudhuri and A. K.  Nag, for  the  petitioners (in W.    P. No. 50 of 1964). B.   K. Khanna and R. N. Sachthey, for the respondent (in W.   P. No. 50 1964). S.   K.  Mehta, K. L. Mehta, for the petitioners (in  W.  P. No. 54 of 1964). B.   K. Khanna and R. N. Sachthey, for respondents Nos.1  to 3 (in     W. P. No. 54 of 1964). R.   V. S. Mani, for the petitioners (in W. P. Nos. 81 and 82 of 1964). 937 C.   K. Daphtary, Attorney-General, B. Sen and R. H. Dhebar, for respondent No. 1 (W.  P. No. 81 of 1964). C.   K. Daphtary, Attorney-General, R. K. P. Shankardass and R.   H.  Dhebar,  for respondent No. 1 (in W. P. No.  82  of 1964). N.   Krishnaswamy Reddy, Advocate-General, State of Madras, A.   Ranganadham Chetty and A. V. Rangam, for respondent No. 2 (in W. P. Nos. 81 and 82 1964). K.   S. Chawla and R. V. S. Mani, for intervener No. 3. The  Judgment of P. B. GAJENDRAGADKAR C.J., K. , N.  WANCHOO and RAGHUBAR DAYAL JJ. was delivered by GAJENDRAGADKAR  C.J. M.  HIDAYATULLAH and J. R. MUDHOLKAR JJ. delivered  separate judgments. Gajendragadkar C.J. These six writ petitions which have been filed  under Art. 32 of the Constitution, seek to  challenge the validity of the Constitution (17th Amendment) Act, 1964. The petitioners are affected by one or the other of the Acts added  to  the 9th Schedule by the impugned Act,  and  their contention  is that the impugned Act being  constitutionally invalid, the validity of the Acts by which they are affected cannot  be  saved.   Some other parties  who  are  similarly affected  by  other Acts added to the 9th  Schedule  by  the impugned  Act, have intervened at the hearing of these  writ petit  ions,  and  they  have  joined  the  petitioners   in contending  that  the impugned Act is invalid.   The  points raised  in  the present proceedings  have  been  elaborately argued  before  us by Mr. Setalvad and Mr.  Pathak  for  the interveners and Mr. Mani for the petitioners.  We have  also heard the Attorney General in reply. The  impugned  Act consists of three  sections.   The  first section gives its short title.  Section 2(i) adds a  proviso to  cl.  (1) of Art. 31A after the existing  proviso.   This proviso reads thus



             "Provided further that where any law makes any               provision for the acquisition by the State  of               any  estate  and  where  any  land   comprised               therein is held by a person under his personal               cultivation,  it shall not be lawful  for  the               State  to acquire any portion of such land  as               is within the ceiling limit applicable to  him               under  any law for the time being in force  or               any building or structure standing thereon  or               appurtenant  thereto, unless the law  relating               to  the acquisition of such land, building  or               structure,    provides    for    payment    of               compensation at a rate which shall not be less               than the market value thereof".               938               Section 2 (ii) substitutes the following  sub-               clause  for  sub-cl. (a) of cl.  (2)  of  Art.               31A:-               "(a)   the  expression  "estate"   shall,   in               relation  to  any local area,  have  the  same               meaning  as  that  expression  or  its   local               equivalent has in the existing law relating to               land  tenures in force in that area and  shall               also include-               (i)   any  jagir,  inam  or  muafi  or   other               similar grant and in the States of Madras  and               Kerala, any janmam, right;               (ii)  any land held under ryotwari settlement;               (iii) any  land  held or let for  purposes  of               agriculture or for purposes ancillary thereto,               including  waste land, forest land,  land  for               pasture  or  sites  of  buildings  and   other               structures  occupied by cultivators  of  land,               agricultural labourers and village artisans". Section  3 amends the 9th Schedule by adding 44  entries  to it.  That is the, nature of the provisions contained in  the impugned Amendment Act. In  dealing  with  the question about the  validity  of  the impugned  Act,  it is necessary to consider  the  scope  and effect  of  the  provisions contained in  Art.  368  of  the Constitution, because a large part of the controversy in the present  writ  petitions  turns upon  the  decision  of  the question  as to what the true scope and effect of  Art.  368 is.  Let us read Art. 368 :               "368.   An amendment of this Constitution  may               be  initiated  only by the introduction  of  a               Bill  for  the  purpose  in  either  House  of               Parliament,  and  when the Bill is  passed  in               each   House  by  a  majority  of  the   total               membership of that House and by a majority  of               not  less  than two-thirds of the  members  of               that  House  present and voting, it  shall  be               presented to the President for his assent  and               upon such assent being given to the Bill,  the               Constitution shall stand amended in accordance               with the terms of the Bill :               Provided that if such amendment seeks to  make               any change in-               (a)   Article  54,  Article  55,  Article  73,               Article 162 or Article 241, or               (b)   Chapter IV of Part V, Chapter V of  Part               VI, or Chapter 1 of Part XI, or               939               (c)   any   of  the  Lists  in   the   Seventh               Schedule, or



             (d)   the   representation   of   States    in               Parliament, or               (e)   the provisions of this Article,               the   amendment  shall  also  require  to   be               ratified by the Legislatures of not less  than               one-half of the States by resolutions to  that               effect passed by those Legislatures before the               Bill  making provision for such  amendment  is               presented to the President for assent". It would, thus, appear that the broad scheme of Art. 368  is that  if Parliament proposes to amend any provision  of  the Constitution  not  enshrined in the proviso,  the  procedure prescribed  by  the  main  part of the  Article  has  to  be followed.  The Bill introduced for the purpose of making the amendment  in question, has to be passed in each House by  a majority  of  the total membership of that House  and  by  a majority of not less than two-thirds of the members of  that House present and voting.  This requirement postulates  that a  bill  seeking  to amend the relevant  provisions  of  the Constitution should receive substantial support from members of both the Houses.  That is why a two-fold requirement  has been prescribed in that behalf.  After the bill is passed as aforesaid,  it has to be presented to the President for  his assent and when he gives his assent, the Constitution  shall stand  amended  in accordance with the terms  of  the  bill. That  is  the  position in regard to the  amendment  of  the provisions of the Constitution to which the proviso does not apply. If Parliament intends to amend any of the provisions of  the Constitution which are covered by clauses (a) to (e) of  the proviso,  there  is a further requirement which  has  to  be satisfied before the bill car. be presented to the President for  his assent.  Such a bill is required to be ratified  by the Legislatures of not less than one-half of the States  by Resolutions to that effect passed by them.  In other  words, in  respect  of  the Articles covered by  the  proviso,  the further  safeguard  prescribed by the proviso  is  that  the intended  amendment  should  receive  the  approval  of  the Legislatures of not less than one-half of the States.   That means  that  at least half of the  States  constituting  the Union  of  India should by a majority vote, approve  of  the proposed amendment. It is obvious that the fundamental rights enshrined in  Part III  are not included in the proviso, and so, if  Parliament intends to amend any of the provisions contained in Articles 12 to 35 which are included in Part III, it is not necessary to  take  recourse  to  the  proviso  and  to  satisfy   the additional requirements prescribed by it. 940 Thus  far, there is no difficulty.  But in  considering  the scope  of  Art. 368, it is necessary to remember  that  Art. 226,  which  is  included in Chapter V of  Part  VI  of  the Constitution, is one of the constitutional provisions  which fall under cl. (b) of the proviso; and so, it is clear  that if  Parliament intends to amend the provisions of Art.  226, the  bill proposing to make such an amendment must  satisfy, the  requirements of the proviso.  The question which  calls for  our decision is : what would be the  requirement  about making an amendment in a constitutional provision  contained in  Part  III,  if as a result of the  said  amendment,  the powers  conferred  on  the High Courts under  Art.  226  are likely  to be affected ? The petitioners contend that  since it appears that the powers prescribed by Art. 226 are likely to  be affected by the intended amendment of the  provisions contained in Part III the bill introduced for the purpose of



making  such an amendment, must attract the proviso, and  as the  impugned  Act  has  admittedly  not  gone  through  the procedure prescribed by the proviso, it is invalid; and that raises the question about the construction of the provisions contained   in  Art.  368  and  the  relation  between   the substantive part of Art. 368 with its proviso. In  our  opinion,  the  two parts of  Art.  368  must  on  a reasonable construction be harmonised with each other in the sense that the scope and effect of either of them should not be  allowed to be unduly reduced or enlarged.  It  is  urged that  any amendment of the fundamental rights  contained  in Part  III  would inevitably affect the powers  of  the  High Court,  prescribed  by  Art.  226, and  as  such,  the  bill proposing the said amendment cannot fall under the  proviso; otherwise  the very object of not including Part  III  under the proviso would be defeated.  When the Constitution-makers did  not  include Part III under the proviso,  it  would  be reasonable  to  assume  that they took  the  view  that  the amendment  of  the provisions contained in Part  III  was  a matter  which should be dealt with by Parliament  under  the substantive  provisions  of  Art.  368  and  not  under  the proviso.    It  has  no  doubt  been  suggested   that   the Constitution-makers  perhaps did not anticipate  that  there would  be  many occasions to amend  the  fundamental  rights guaranteed  by Part M. However that may be, as a  matter  of construction,  there is no escape from the  conclusion  that Art.  368  provides  for the  amendment  of  the  provisions contained  in  Part III without imposing  on  Parliament  an obligation to adopt the procedure prescribed by the proviso. It  is  true  that  as a result  of  the  amendment  of  the fundamental   rights,  the  area  over  which   the   powers prescribed  by  Art. 226 would operate may be  reduced,  but apparently, the ,Constitution-makers took the view that  the diminution in the area 941 over  which the High Courts’ powers under Art. 226  operate, would not necessarily take the case under the proviso. On  the other hand, if the substantive part of Art.  368  is very liberally and generously construed and it is held  that even  substantial  modification of  the  fundamental  rights which may make a very serious and substantial inroad on  the powers of the High Courts under Art. 226 can be made without invoking the proviso, it may deprive cl. (b) of the  proviso of  its substance.  In other words, in construing  both  the parts  of  Art.  368, the rule  of  harmonious  construction requires  that  if  the direct effect of  the  amendment  of fundamental  rights is to make a substantial inroad  on  the High  Courts’ powers under Art. 226, it would become  neces- sary to consider whether the proviso would cover such a case or  not.   If  the  effect of  the  amendment  made  in  the fundamental  rights  on  the  powers  of  the  High   Courts prescribed  by  Art.  226, is indirect,  incidental,  or  is otherwise  of  an insignificant order, it may  be  that  the proviso  will not apply.  The proviso would apply where  the amendment in question seeks to make any change, inter  alia, in Art. 226. and the question in such a case would be : does the  amendment  seek to make a change in the  provisions  of Art.  226 ?  The answer to this question would  depend  upon the effect of the amendment made in the fundamental rights. In dealing with constitutional questions of this  character, courts generally adopt a test which is described as the pith and  substance  test.  In Attorney-General  for  Ontario  v. Reciprocal  Insurers  and others(1), the Privy  Council  was called  upon  to  consider the validity  of  the  Reciprocal Insurance  Act,  1922 (12 & 13 Geo. 5, Ont., c. 62)  and  s.



508c which had been added to the Criminal Code of Canada  by ss.  7 & 8 Geo. 5, c. 29 Dom.  Mr. Justice Duff,  who  spoke for the Privy Council, observed that in an enquiry like  the one with which the Privy Council was concerned in that case, "it has been formally laid down in judgments of this  Board, that in such an inquiry the Courts must ascertain the  ’true nature and character’ of the enactment : Citizens’ Insurance Co. v. Parsons(1); its ’pith and substance’ : Union Colliery Co.   v.   Bryden(3);  and  it  is  the   result   of   this investigation,  not  the form alone, which the  statute  may have  assumed under the hand of the draughtsman,  that  will determine within which of the categories of subject  matters mentioned  in ss. 91 and 92 the legislation falls;  and  for this  purpose  the legislation must be ’scrutinised  in  its entirety’ "Great West Saddlery Co. v. The King" (4).  It  is not (1)  [1924] A.C. 328. (2)  [1881] 7 App.  Cas 96. (3)  [1899] A.C. 580. (4)  [1921] 2 A.C. 91, 117. 942  necessary  to  multiply  authorities  in  support  of   the proposition that in considering  the constitutional validity of  the impugned Act, it would be relevant to  inquire  what the  pith and substance of the impugned Act is.  This  legal position can be taken to be established by the decisions  of this   Court  which  have  consistently  adopted  the   view expressed by Justice Duff, to which we have just referred.  What  then is the pith and substance of the impugned Act  ? For answering this question, it would be necessary to recall very briefly the history of Articles 31A and 31B.   Articles 31A  and  3  1  B  were  added  to  the  Constitution   with retrospective  effect  by S. 4 of  the  Constitution  (First Amendment)  Act, 1951.  It is a matter of general  knowledge that it became necessary to add these two provisions in  the Constitution,  because  it  was  realised  that  legislative measures adopted by certain States for giving effect to  the policy of agrarian reform which was accepted by the party in power, had to face a serious challenge in the courts of  law on  the ground that they contravened the fundamental  rights guaranteed to the citizens by Part III.  These measures  had been passed in Bihar, Uttar Pradesh and Madhya Pradesh,  and their validity was impeached in the High Courts in the  said three  States.   The  High  Court of  Patna  held  that  the relevant Bihar legislation was unconstitutional, whilst  the High  Courts at Allahabad and Nagpur upheld the validity  of the  corresponding  legislative  measures  passed  in  Uttar Pradesh  and Madhya Pradesh respectively. [See Kameshwar  v. State of Bihar(1) and Surya Pal v. U. P. Government(1).  The parties  aggrieved by these respective decisions  had  filed appeals  by special leave before the Supreme Court.  At  the same  time,  petitions had also been  preferred  before  the Supreme  Court  under Art. 32 by  certain  other  zamindars, seeking  the  determination of the same issues.  It  was  at this stage that Parliament thought it necessary to avoid the delay  which  would necessarily have been  involved  in  the final  decision of the disputes pending before  the  Supreme Court,  and  introduced  the  relevant  amendments  in   the Constitution  by adding Articles 31A and 31B.  ’Mat was  the first  step  taken by Parliament to assist  the  process  of legislation  to bring about agrarian reform  by  introducing Articles 31A and 31B.  The second step in the same direction was taken by  Parlia- ment  in  1955  by amending Art.  31A  by  the  Constitution (Fourth Amendment) Act, 1955.  The object of this  amendment



was  to widen the scope of agrarian reform and to confer  on the  legislative  measures adopted in that  behalf  immunity from a possible attack (1) A.I.R. 1951 Pat. 91. (2) A.I.R. 1951 AU. 674. 943  that  they contravened the fundamental rights of  citizens. In  other  words, this amendment protected  the  legislative measures  in respect of certain other items of agrarian  and social  welfare legislation, which affected the  proprietary rights  of  certain  citizens.   That  is  how  the   second amendment  was  made by Parliament.  At the  time  when  the first  amendment was made, Art. 31B expressly provided  that none  of  the  Acts and Regulations  specified  in  the  9th Schedule, nor any of the provisions thereof, shall be deemed to  be void or ever to have become void on the  ground  that they were inconsistent with or took away or abridged any  of the  rights  conferred  by  Part  III,  and  it  added  that notwithstanding  any judgment, decree or order of any  Court or  tribunal  to  the contrary, each of the  said  Acts  and Regulations  shall  subject to the power  of  any  competent legislature to repeal or amend, continue in force.  At  this time, 19 Acts were listed in Schedule 9, and they were  thus effectively validated.  One more Act was added to this  list by  the  Amendment Act of 1955, so that as a result  of  the second amendment, the Schedule contained 20 Acts which  were validated.  It  appears that notwithstanding these amendments,  certain other  legislative measures adopted by different States  for the  purpose of giving effect to the agrarian policy of  the party in power, were effectively challenged.  For  instance, in  Karimbil Kunhikoman v. State of Kerala(1), the  validity of  the  Kerala  Agrarian Relations Act (IV,  of  1961)  was challenged  by writ petitions filed under Art. 32, and as  a result of the majority decision of this Court, the whole Act was  struck down.  This decision was pronounced on  December 5, 1961.  In A. P. Krishnaswami Naidu, etc. v. The State of Madras (2 the  constitutionality of the Madras Land Reforms  (Fixation of  Ceiling on Land) Act (No. 58 of 1961) was put in  issue, and  by  the decision of this Court pronounced on  March  9, 1964,  it was declared that the whole Act was  invalid.   It appears  that the Rajasthan Tenancy Act HI of 1955  and  the Maharashtra Agricultural Lands (Ceiling and Holdings) Act 27 of  1961  have  been  similarly  declared  invalid,  and  in consequence,  Parliament  thought  it necessary  to  make  a further amendment in Art. 31B so as to save the validity  of these  Acts which had been struck down and of other  similar Acts  which  were likely to be struck down,  if  challenged. With that object in view, the impugned Act hasenpfeffer  s.3 by  which   44 Acts have been added to Schedule  9.  If  the impugned Act is held to be valid and the amendment made (1)  [1962] Supp. 1 S.C.R. 829. (2) [1964]7 S.C.R. 82 944  in  the  Schedule is found to be effective, these  44  Acts would have to be treated as valid.  Thus,  it would be seen that the genesis of the  amendments made by Parliament in 1951 by adding Articles 31A and 31B to the   Constitution,   clearly  is  to   assist   the   State Legislatures in this country to give effect to the  economic policy in which the party in power passionately believes  to bring  about  much needed agrarian reform.  It is  with  the same object that the second amendment was made by Parliament in  1955,  and  as  we  have  just  indicated,  the   object



underlying  the amendment made by the impugned Act  is  also the  same.   Parliament desires that agrarian  reform  in  a broad  and  comprehensive sense must be  introduced  in  the interests  of  a very large section of Indian  citizens  who live   in  villages  and  whose  financial   prospects   are integrally   connected  with  the  pursuit  of   progressive agrarian  policy.  Thus, if the pith and substance  test  is applied to the amendment made by the impugned Act, it  would be  clear  that Parliament is seeking to  amend  fundamental rights  solely  with  the object of  removing  any  possible obstacle  in the fulfilment of the socioeconomic  policy  in which  the  party  in power believes.  If that  be  so,  the effect  of  the amendment on the area over  which  the  High Courts’ powers prescribed by Art. 226 operate, is incidental and  in  the  present  case  can  be  described  as  of   an insignificant  order.  The impugned Act does not purport  to change the provisions of Art. 226 and it cannot be said even to have that effect directly or in any appreciable  measure. That is why we think that the argument that the impugned Act falls under the proviso, cannot be sustained.  It is an  Act the  object  of which is to amend the relevant  Articles  in Part III which confer fundamental rights on citizens and  as such  it  falls under the substantive part of Art.  368  and does  not attract the provisions of cl. (b) of the  proviso. If  the  effect  of the amendment made  in  the  fundamental rights on Art. 226 is direct and not incidental and is of  a very significant order, different considerations may perhaps arise.   But  in the present case, there is no  occasion  to entertain  or weigh the said considerations.  Therefore  the main   contention   raised  by  the  petitioners   and   the interveners against the validity of the impugned Act must be rejected.  Then,  it is urged that the true purpose and object of  the impugned  Act  is  to  legislate,in  respect  of  land,  and legislation in respect of land falls within the jurisdiction of  the State Legislatures under Entry 18 of List  II.   The argument is that since the State Legislatures alone can make laws in respect of land, Parliament had no right to pass the impugned Act.  This argument is 945  based  on the assumption that the impugned Act purports  to be,  and in fact is, a piece of land legislation.  The  same argument  is placed before us in another form.  It is  urged that the scheme of Articles 245 and 246 of the  Constitution clearly shows that Parliament has no right to make a law  in respect of land, and since the impugned Act is a legislative measure in relation to land, it is invalid.  This  argument, in  our  opinion,  is misconceived.  In  dealing  with  this argument,  again, the pith and substance test  is  relevant. What the impugned Act purports to do is not to make any land legislation  but  to protect and  validate  the  legislative measures  in  respect  of agrarian  reforms  passed  by  the different State Legislatures in the country by granting them immunity from attack based on the plea that they  contravene fundamental  rights.  Parliament, in enacting  the  impugned Act, was not making any provisions of land legislation.   It was  merely validating land legislations already  passed  by the State Legislatures in that behalf.  It is also urged that inasmuch as the impugned Act purports in  substance  to  set  aside the  decisions  of  courts  of competent  jurisdiction by which some of the Acts  added  to the  Ninth Schedule have been declared to be invalid, it  is unconstitutional.  We see no substance in this argument.  It is  hardly necessary to emphasize that legislative power  to make  laws in respect of areas entrusted to the  legislative



jurisdiction   of  different  legislative  bodies,  can   be exercised  both  prospectively  and  retrospectively.    The constituent  power conferred by Art. 368 on  the  Parliament can    also    be   exercised   both    prospectively    and retrospectively.   On several occasions, legislatures  think it necessary to validate laws which have been declared to be invalid by Courts of competent jurisdiction and in so doing, they have necessarily to provide for the intended validation to take effect notwithstanding any judgment, decree or order passed by a court of competent jurisdiction to the contrary. Therefore,  it would be idle to contend fiat by  making  the amendment   retrospective,  the  impugned  Act  has   become constitutionally invalid.  It  has also been contended before us that in deciding  the question  as  to whether the impugned Act  falls  under  the proviso, we should take into account the operative words  in the proviso.  The proviso takes in cases where the amendment sought  to  be made by the relevant bill seeks to  make  any change  in any of the Articles specified in clauses  (a)  to (e)  of the proviso, and it is urged that on a fair  reading of  clauses (b) and (c), it would follow that  the  impugned Act  purports  to do nothing else but to seek to  amend  the provisions contained in Art. 226.  It is not 946  easy  to  appreciate  the  strength  or  validity  of  this argument.   This argument is really based on the  assumption that the legislative mechanism adopted by the Parliament  in passing  the  impugned Act introduces this  infirmity.   The argument  obviously assumes that it would have been open  to Parliament  to  make appropriate changes  in  the  different Articles  of  Part III, such as Articles 14 and 19,  and  if such a course had been adopted, the impugned Act would  have been  constitutionally valid.  But inasmuch as the  impugned Act  purports to amend only Arts. 31A and 31B and  seeks  to add  several Acts to the Ninth Schedule, it does  not  amend any  of  the  provisions  in Part  III,  but  is  making  an independent  provision, and that, it is said, must take  the case within the scope of the proviso.  It is clear that what the impugned Act purports to do is to amend Art. 3 1 A,  and Article 3 1 A itself is included in Part III.  If Parliament thought  that instead of adopting the cumbersome process  of amending each relevant Article in Part III, it would be more appropriate  to  add Articles 3 1 A and 3 1 B, and  on  that basis, it passed the material provisions of the Constitution (First Amendment) Act, it would not be reasonable to suggest that  this method brings the amendment within  the  proviso. What the Parliament did in 1951, has afforded a valid  basis for  further  amendments made in 1955 and now in  1964.   It would  be  clear that though the arguments which  have  been urged before us in the present proceedings have been put  in different  forms, basically. they involve the  consideration of the main question whether the’ impugned Act falls  within the  scope  of the proviso or not; and the  answer  to  this question, in our opinion, has to be against the  petitioners by the application of the doctrine of pith and substance.  Then,  it  is  urged  that the power  to  amend,  which  is conferred  by Art. 368, does not include the power  to  take away  the  fundamental rights guaranteed by Part  III.   The contention is that the result of the material provisions  of the  impugned  Act  is to take away  a  citizen’s  right  to challenge  the  validity  of the Acts  added  to  the  Ninth Schedule,  and that means that in respect of the said  Acts, the  relevant fundamental rights of the citizens  are  taken away.   We  do  not think there is  any  substance  in  this argument. it is true that the dictionary meaning of the word



-"amend"  is  to  ,correct a fault or  reform;  but  in  the context,  reliance on the dictionary meaning of the word  is singularly  inappropriate. because what Art. 368  authorises to  be  done  is  the amendment of  the  provisions  of  the Constitution.  It is well-known that the amendment of a  law may in a proper case include the deletion of any one or more of the provisions of the law and substitution in their 947  place  of new provisions.  Similarly, an amendment  of  the Constitution  which  is  the subject  matter  of  the  power conferred by Art. 368, may include modification or change of the  provisions  or even an amendment which makes  the  said provisions  inapplicable  in certain cases.   The  power  to amend  in the context is a very wide power and it cannot  be controlled  by  the literal dictionary meaning of  the  word "amend".  The question about the validity of the Constitution  (First Amendment)  Act  has been considered by this  Court  in  Sri Sankari  Prasad  Singh Deo v. Union of India  and  State  of Bihar(1).  In that case, the validity of the said  Amendment Act  was challenged on several grounds.  One of the  grounds was  that the newly inserted Articles 31A and 31B sought  to make changes in Articles 132 and 136 in Chapter IV of Part V and Art. 226 in Chapter V of Part VI ’and so, they  required ratification under cl. (b) of the proviso to Art. 368.  This contention was rejected by this Court.  Patanjali Sastri J., as he then was, who spoke for the unanimous Court,  observed that the said Articles "did not either in terms or in effect seek to make any change in Art. 226 or in Articles  132  and 136",  and he added that it was not correct to say that  the powers of the High Courts under Art. 226 to issue writs  for the enforcement of any of the rights conferred by Part HI or of  this  Court  under Articles 132  and  136  to  entertain appeals from orders, issuing or refusing to issue such writs were in any way affected.  In the opinion of the Court, the_ said powers remained just the same as they were before; only a certain class of cases had been excluded from the  purview of  Part Ill.  The fact that the courts could  not  exercise their powers in respect of the said class of cases, did  not show that the powers of the courts were curtailed in any way or  to  any extent.  It only meant that certain area  of  in which  the said powers could have been exercised,  had  been withdrawn.  Similarly, the argument that the amendments were invalid  because they related to legislation in  respect  of land,  was  also rejected on the ground  that  the  impugned Articles  31A  and 31B were essentially  amendments  of  the Constitution which Parliament alone had the power to make.  It  would  thus appear that in substance the  points  urged before us in the present proceedings are really concluded by the decision of this Court in Sankari Prasad’s case(1).   It was,  however,  urged  before us during the  course  of  the hearing  of these writ petitions that we  should  reconsider the  matter  and  review our  earlier  decision  in  Sankari Prasad’s case.  It is true that the Con- (1) [1952] S.C.R. 89. Supp.1/65- 948  stitution  does not place any restriction on our powers  to review our earlier decisions or even to depart from them and there  can  be  no doubt that in  matters  relating  to  the decision  of constitutional points which have a  significant impact  on the fundamental rights of citizens, we  would  be prepared to review our earlier decisions in the interest  of public good.  The doctrine of stare decisis may not strictly apply  in this context and no one can dispute  the  position



that the said doctrine should not be pemiitted to perpetuate erroneous  decisions pronounced by this Court to the  detri- ment of general welfare.  Even so, the normal principle that judgments pronounced by this Court would be final, cannot be ignored  and  unless  considerations of  a  substantial  and compelling  character make it necessary to do so, we  should be slow to doubt ,,the correctness of previous decisions  or to depart from them.  It  is  universally recognised that in regard  to  a  large number  of constitutional problems which are brought  before this Court for its decision, complex and difficult questions arise and on many of such questions, two views are possible. Therefore,  if one View has been taken by this  Court  after mature deliberation, the fact that another Bench is inclined to  take  a  different view may not  justify  the  Court  in reconsidering the earlier decision or in departing from  it. The  problem of construing constitutional provisions  cannot be   reasonably   solved  merely  by  adopting   a   literal construction  of the words used in the relevant  provisions. The  Constitution is an organic document and it is  intended to  serve  as a guide to the solution of  changing  problems which  the  Court  may  have to  face  from  time  to  time. Naturally,  in a progressive and dynamic society  the  shape and  appearance of these problems are bound to  change  with the  inevitable consequence that the relevant words used  in the   Constitution  may  also  chance  their   meaning   and significance.   That is what makes the task of dealing  with constitutional  problems dynamic rather than  static.   Even so,  the  Court  should  be  reluctant  to  accede  to   the suggestion   that   its   earlier   ,decisions   should   be lightheartedly  reviewed and departed from.’ In such a  case the  test  should  be  :  is  it  absolutely  necessary  and essential  that the question already decided should  be  re- opened  ?  The answer to this question would depend  on  the nature of the infirmity alleged in the earlier decision, its impact  on  public  good, and the  validity  and  compelling character  of  the considerations urged in  support  of  the -contrary view.  If the said decision has been followed in a large number of cases, that again is a factor ,which must be taken into account. In  the  present  case,  if  the  arguments  urged  by   the petitioners 949  were   to  prevail,  it  would  lead  to   the   inevitable consequence  that  the amendments made in  the  Constitution both in 1951 and 1955 would be rendered invalid and a  large number  of decisions dealing with the validity of  the  Acts included in the Ninth Schedule which have been pronounced by different High Courts ever since the decision of this  Court in  Sankari  Prasad’s(1) case was declared,  would  also  be exposed to serious jeopardy.  These are consideration, which are  both  relevant and material in dealing  with  the  plea urged   by  the  petitioners  before  us  in   the   present proceedings  that  Sankari  Prasad’s  case  should  be   re- considered.   In  view of the said plea,  however,  we  have deliberately   chosen  to  deal  with  the  merits  of   the contentions before referring to the decision itself.  In our opinion, the plea made by the petitioners for  reconsidering Sankari  Prasad’s  case is wholly unjustified  and  must  be rejected.  In  this  connection,  we would like to  refer  to  another aspect  of  the matter.  As we have already  indicated,  the principal  point  which has been urged before  us  in  these proceedings  is,  that the impugned Act is invalid  for  the reason  that before presenting it to the President  for  his



assent, the procedure prescribed by the proviso to Art.  368 has  not  been followed, though the Act was one  which  fell within the scope of the proviso.  In other words, it was not disputed  before  us that Art. 368  empowers  Parliament  to amend  any  provision  of the  Constitution,  including  the provisions in respect of the fundamental rights enshrined in Part  M.  The  main  contention was  that  in  amending  the relevant  provisions  of  the  Constitution,  the  procedure prescribed by the proviso should have been followed.  But it appears that in Sankari Prasad’s case, another argument  was urged  before this Court in challenging the validity of  the Constitution  (First  Amendment)  Act,  and  since  we   are expressing our concurrence with the said decisions, we think it is necessary to refer to the said argument and deal  with it, even though this aspect of the matter has not been urged before us in the present proceedings.  In  Sankari Prasad’s case, it was contended that though  It may be open to Parliament to amend the provisions in respect of  the  fundamental  rights  contained  in  Part  III,  the amendment,  if made In that behalf, would have to be  tested in  the light of the provisions contained in Art.  13(2)  of the  Constitution.  The argument was that the law  to  which Art. 13(2) applies, would include a law passed by Parliament by   virtue   of  its  constituent  power  to   amend’   the Constitution, and so, its validity will have to be tested by Art.  13(2)  itself.  It will be recalled  that  Art.  13(2) prohibits (1)  [1952] S.C.R. 89. 950  the State from making any law which, takes away or abridges the rights conferred by Part III, and provides that any  law made in contravention of clause (2) shall, to the extent  of the  contravention, be void.  In other words, it  was  urged before  this  Court  in Sankari  Prasad’s(1)  case  that  in considering the question as to the validity of the  relevant provisions  of  the Constitution (First Amendment)  Act,  it would  be open to the party challenging the validity of  the said  Act  to  urge  that in so far  as  the  Amendment  Act abridges  or  takes  away  the  fundamental  rights  of  the citizens, it is void.  This argument was, however,  rejected by this Court on the ground that the word "law" used in Art. 13  "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  with the result. that Art. 13 (2) does not affect amendments made under Art. 368".  It is significant that Patanjali Sastri J. as he then  was, who  spoke  for  the  Court,  described  as  attractive  the argument   about  the  applicability  of  Art.  13  (2)   to Constitution Amendment Acts passed under Art. 368,  examined it  closely, and ultimately rejected it.  It was noticed  in the judgment that certain constitutions make certain  rights "eternal  and  inviolate",  and  by  way  of   illustration, reference  was made to Art. 11 of the Japanese  Constitution and  Art.  5 of the American.Federal Constitution.   It  was also  noticed that the word "law" in its literal sense,  may include  constitutional  law, but it was  pointed  out  that "there is a clear demarcation between ordinary law, which is made  in exercise of legislative power,  and  constitutional law  which is made in exercise of constituent  power".   The scheme  of the relevant provisions of the  Constitution  was then  examined,  and  ultimately,  the  Court  reached   the conclusion  that though both Articles 13 and 368 are  widely phrased,  the harmonious rule of construction requires  that the  word  "law" in Art. 13 should be taken to  exclude  law



made in exercise of the constituent power.  In  our  opinion, this conclusion is right, and as  we  are expressing our full concurrence with the decision in Sankari Prasad’s(1)  case, we think it is necessary to indicate  our reasons  for  agreeing with the conclusion of the  Court  on this  point, even though the coffectness of this  conclusion has  not  been  questioned  before  us  in  the  course   of arguments.   If we had felt a real difficulty  in  accepting this  part  of  the  conclusion,  we  would  have  seriously considered the question as to whether the matter should  not be  referred to a larger Bench for a further examination  of the problem. (1)  [1952] S.CR. 89. 951 The first point which falls to be considered on this  aspect of the matter is the construction of Art. 368 itself.   Part XX  which  contains  only Art. 368 is described  as  a  Part dealing with the Amendment of the Constitution; and Art. 368 which   prescribes  the  procedure  for  amendment  of   the Constitution,  begins  by saying that an amendment  of  this Constitution may be initiated in the manner there indicated. In   our   opinion,  the  expression   "amendment   of   the Constitution  plainly and unambiguously means  amendment  of all the provisions of the Constitution.  It would, we think, be  unreasonable to suggest that what Art. 368  provides  is only  the  mechanics  of the procedure  to  be  followed  in amending   the   Constitution   without   indicating   which provisions  of  the Constitution can be  amended  and  which cannot.  Such a restrictive construction of the  substantive part  of Art. 368 would be clearly untenable.  Besides,  the words  used in the proviso unambiguously indicate  that  the substantive   part  of  the  article  applies  to  all   the provisions of the Constitution.  It is on that basic assump- tion  that  the proviso prescribes a specific  procedure  in respect  of  the  amendment of  the  articles  mentioned  in clauses   (a)  to  (e)  thereof.   Therefore,  we  feel   no hesitation  in  holding  that  when  Art.  368  confers   on Parliament the right to amend the Constitution the power  in question  can  be exercised over all the provisions  of  the Constitution.  How the power should be exercised, has to  be determined  by reference to the question as to  whether  the proposed amendment falls under the substantive part of  Art. 368, or attracts the provisions of the proviso.  It  is true that Art. 13(2) refers to any law  in  general, and  literally construed, the word "law" may take in  a  law made  in  exercise  of the constituent  power  conferred  on Parliament;  but having regard to the fact that a  specific, unqualified and unambiguous power to amend the  Constitution is conferred on Parliament, it would be unreasonable to hold that  the  word "law" in Art. 13 (2) takes  in  Constitution Amendment Acts passed under Art. 368.  If the  Constitution- makers  had  intended  that  any  future  amendment  of  the provisions in regard to fundamental rights should be subject to  Art.  13 (2), they would have taken  the  precaution  of making a clear provision in that behalf.  Besides, it  seems to  us,  very unlikely that while conferring  the  power  on Parliament  to amend the Constitution, it was the  intention of the Constitutionmakers to exclude from that comprehensive power fundamental rights altogether.  There is no doubt that if  the  word  "law" used in Art. 13(2) includes  a  law  in relation to the amendment of the 952  Constitution,  fundamental rights can never be abridged  or taken  away, because as soon as it is shown that the  effect of  the  amendment is to take away  or  abridge  fundamental



rights, that portion of the law would be void under Art.  13 (2).   We have no doubt that such a position could not  have been intended by the Constitution-makers when they  included Art. 368 in the Constitution.  In construing the word  "law" occurring in Art. 13(2), it may be relevant to bear in  mind that,  in  the words of Kania C.J. in A. K. Gopalan  v.  The State of Madras(1), "the inclusion of article 13 (1) and (2) in  the  Constitution  appears to be a  matter  of  abundant caution.   Even in their absence, if any of the  fundamental rights was infringed by any legislative enactment, the Court has always the power to declare the enactment, to the extent it transgresses the limits, invalid".  The  importance and significance of the fundamental  rights must  obviously  be  recognised  and  in  that  sense,   the guarantee   to  the  citizens  contained  in  the   relevant provisions of Part III, can justly be described as the  very foundation and the comer-stone of the democratic way of life ushered in this country by the Constitution.  But can it  be said that the fundamental rights guaranteed to the  citizens are  eternal and inviolate in the sense that they can  never be  abridged or amended?  It is true that in the case of  A. K.  Gopalan(1) Patanjali Sastri, as he then  was,  expressed the  view  that "there can be no doubt that  the  people  of India have, in exercise of their sovereign will as expressed in the Preamble, adopted the democratic ideal which  assures to  the  citizen  the dignity of the  individual  and  other cherished human values as a means to the full evolution  and expression  of  his personality, and in  delegating  to  the legislature,   the   executive   and   the   judiciary   the irrespective   powers  in  the  Constitution.  reserved   to themselves   certain   fundamental  rights,   so-called,   I apprehend, because they have been retained by the people and made  paramount to the delegated powers, as in the  American model" (p. 198).  This hypothesis may, prima facie, tend  to show that the right to amend these fundamental rights vested not  in Parliament, but in the people of  India  themselves. But  it is significant that when the same learned Judge  had occasion to consider this question more elaborately in In re The  Delhi  Laws  Act, 1912, (1) etc.  he  has  emphatically expressed the view that it is established beyond doubt  that the  Indian  Legislature,  when  acting  within  the  limits circumscribing  its legislative power, has and was  intended to have (1) [1950] S.C.R. 88, at p. 100.  (2) [1951] S.C.R. 747, at pp. 883-84. 953  plenary  of legislation as large and of the same nature  as those of the British Parliament itself and no constitutional limitation  on  the  delegation of legislative  power  to  a subordinate unit is to be found in the Indian Councils  Act, 1861,  or  the  Government  of  India  Act,  1935,  or   the Constitution of 1950.  The suggestion that the legislatures, including the Parliament, are the delegate of the people  of India in whom sovereignty vests, was rejected by the learned Judge  when  he  observed that  "the  maxim  ’delegates  ten protest  delegate’ is not part of the Constitutional law  of India  and has no more force than a political precept to  be acted  upon  by  legislatures  in  the  discharge  of  their function  of making laws, and the courts cannot strike  down an  Act  of Parliament as  unconstitutional  merely  because Parliament  decides in a particular instance to entrust  its legislative  power to another in whom it has confidence  or, in other words, to exercise such power through its appointed instrumentality,  however repugnant such entrustment may  be to  the  democratic  process.   What  may  be  regarded,  as



politically undesirable is constitutionally competent".   It would  thus  appear  that  so far  as  our  Constitution  is concerned,  it  would  not  be possible  to  deal  with  the question  about  the  powers  of  Parliament  to  amend  the Constitution  under Art. 368 on any theoretical  concept  of political  science that sovereignty vests in the people  and the  be  statures  are merely the delegate  of  the  people. Whether  or  not  Parliament  has the  power  to  amend  the Constitution  must  depend solely Upon the  question  as  to whether  the  said  power  is included  in  Art.  368.   The question   about  the  reasonableness,  or   expediency   or desirability of the amendments in question from a  political point of view would be irrelevant in construing the words of Art. 3 6 8.  Incidentally,  we  may  also refer to  the  fact  that  the Constitutionmakers had taken the precaution to indicate that some  amendments should not be treated as amendments of  the Constitution  for  the  purpose  of  Art.  368.   Take,  for instance  Art. 4(2) which deals with law made by  virtue  of Art.  4(1).   Art. 4(2) provides that no such law  shall  be deemed  to  be  an amendment of  the  Constitution  for  the purposes of Art. 368.  Similarly, Art. 169(3) provides  that any  law  in  respect  of  the  amendment  of  the  existing legislative  apparatus  by  the  abolition  or  creation  of Legislative  Councils in State-,; shall not be deemed to  be an  amendment of the Constitution for the purposes  of  Art. 368.   In  other words, laws falling within the  purview  of Articles  4(2) and 169(3) need not be passed subject to  the restrictions  imposed by ’Art. 368, even though.  in  effect they may amount to the amendment of the relevant  provisions of the Constitution.  If the Constitution-makers took the 954  precaution of making this specific provision to exclude the applicability of Art. 368 to certain amendments, it would be reasonable  to assume that they would have made  a  specific provision  if they had intended that the fundamental  rights guaranteed by Part HI should be completely outside the scope of Art. 368.  Apart  from  the fact that the words used in Art.  368  are clear  and  unambiguous in support of the view that  we  are taking, on principle also it appears unreasonable to suggest that   the  Constitution-makers  wanted  to   provide   that fundamental  rights  guaranteed by the  Constitution  should never  be  touched  by way of amendment.   It  must  not  be forgotten  that the fundamental rights guaranteed,  by  Art. 19,  for  instance,  are not absolute; the  scheme  of  this article   itself  indicates  that  the  fundamental   rights guaranteed  by subclauses (a) to (g) of clause (1),  can  be validly  regulated in the light of the provisions  contained in clauses (2) to (6) of Art. 19.  In other words, the broad scheme of Art. 19 is two-fold; the fundamental rights of the citizens  are  of paramount importance, but  even  the  said fundamental  rights can be regulated to serve the  interests of  the  general public or other objects  mentioned  respec- tively  in  clauses  (2) to (6), and  that  means  that  for specified  purposes  indicated in these  clauses,  even  the paramountcy  of  fundamental  rights has to  yield  to  some regulation  as  contemplated  by the said  clauses.   It  is hardly  necessary to emphasise that the purposes  for  which fundamental  rights can be regulated which are specified  in clauses  (2)  to  (6), could not have been  assumed  by  the Constitution-makers to be static and incapable of expansion. The  Constitution-makers  must  have  anticipated  that   in dealing  with socioeconomic problems which the  legislatures may  have to face from time to time, the concepts of  public



interest  and other important considerations which  are  the basis of clauses (2) to (6), may change and may even expand; and  so, it is legitimate to assume that  the  Constitution- makers  know  that Parliament should be  competent  to  make amendments  in these rights so as to meet the  challenge  of the problems which may arise in the course of spcio-economic progress  and  development of the country.  That is  why  we think that even on principle, it would not be reasonable  to proceed  on the basis that the fundamental rights  enshrined in  Part  III  were intended to  be  finally  and  immutably settled  and  determined once for all and  were  beyond  the reach of any future amendment.  Let  us illustrate this point by reference to some  of  the provisions  of the Constitution (First Amendment) Act,  1951 itself.   By this Act, Articles 15, 19 and 31 were  amended. One has merely to 955  recall  the purpose for which it became necessary to  amend Articles  15  and  19  to be  satisfied  that  the  changing character  of  the problems posed by the words used  in  the respective  articles  could not have  been  effectively  met unless  amendment in the relevant provisions  was  effected; and  yet,  if the argument that the fundamental  rights  are beyond the reach of Art. 368 were valid, an these amendments would be constitutionally impermissible.  That, we think  is not  the  true  purport and effect of  Art.  368.   We  are, therefore, satisfied that this Court was right in  rejecting the said argument in the case of Sankari Prasad(1).  This question can be considered from another point of view. The argument that the fundamental rights guaranteed by  Part in are eternal, inviolate, and beyond the reach of Art. 368, is  based on two assumptions.  The first assumption is  that on a fair and reasonable construction of Art. 368, the power to  amend  the  fundamental  rights cannot  be  held  to  be included   within  the  constituent  powers   conferred   on Parliament by the said Article.  We have already held that a fair  and  reasonable  construction of  Art.  368  does  not justify  this assumption.  The other assumption  which  this argument  makes, and must of necessity make, is that if  the power  to  amend the fundamental rights is not  included  in Art. 368 as it stands, it cannot ever be included within its purview;  because  unless it is assumed  that  the  relevant power  can  never  be  included in Art.  368,  it  would  be unrealistic  to  propound the theory  that  the  fundamental rights  are eternal, inviolate, and not within the reach  of any  subsequent constitutional amendment.  It is clear  that Art. 368 itself can be amended by Parliament, though cl. (e) of  the proviso requires that before amending Art. 368,  the safeguards prescribed by the proviso must be satisfied.   In other  words,  even if the powers to amend  the  fundamental rights  were not included in Art. 368, Parliament can, by  a suitable  amendment of Art. 368, take those  powers.   Thus, the  second  assumption underlying the  argument  about  the immutable  character of the fundamental rights is  also  not well founded.  There  is one more point to which we would like  to  refer. In  the  case of Sankari Prasad(1) this Court  has  observed that the question whether the latter part of Art. 31B is too widely  expressed, was not argued before it, and so, it  did not  express  any  opinion  upon  it.   This  question  has, however,  been  argued before us, and so, we would  like  to make it clear that the effect of the last clause in Art. 31B is to leave it open to the respective legislatures to repeal (1)  [1952] S.C.R. 89. 956



or  amend  the Acts which have been included in  the  Ninth Schedule.  In other words, the fact that the said Acts  have been included in the Ninth Schedule with a view to make them valid, does not mean that the legislatures in question which passed  the said Acts have lost their competence  to  repeal them or to amend them.  That is one consequence of the  said provision.    The  other  inevitable  quince  of  the   said provision  is  that  if  a legislature  amends  any  of  the provisions  contained in any of the said Acts,  the  amended provision  would not receive the protection of Art. 31B  and its validity may be liable to be examined on the merits.  Before  we part with this matter, we would like to  observe that  Parliament  may  consider  whether  it  would  not  be expedient  and reasonable to include the provisions of  Part III  in  the  proviso  to  Art. 368.   It  is  not  easy  to appreciate  why the Constitution-makers did not include  the said  provisions in the proviso when Art. 368  was  adopted. In  In re : the Berubari Union and Exchange of  Enclaves(1), this  Court had pointed out that amendment of Art. 1 of  the Constitution consequent upon the cession of any part of  the territory  of India in favour of a foreign State,  does  not attract the safeguard prescribed by the proviso to Art. 368, because  neither Art.  1 nor Art. 3 is included in the  list of  entrenched provisions of the Constitution enumerated  in the  proviso; and it was observed that it was not  for  this Court  to  enquire  or  consider whether  it  would  not  be appropriate  to  include  the said two  articles  under  the proviso, and that it was a matter for Parliament to consider and decide.  Similarly, it seems somewhat anomalous that any amendment  of  the provisions contained in Art.  226  should fall  under  the proviso but, not an amendment of  Art.  32. Article  226  confers  on High Courts  the  power  to  issue certain  writs, while Art. 32, which itself is a  guaranteed fundamental right, enables a citizen to move this Court  for similar writs.  Parliament may consider whether the  anomaly which is apparent in the different modes prescribed by  Art. 368  for amending Articles 226 and 32  respectively,  should not be remedied by including Part HI itself in the  proviso. If  that  is  done, difficult questions as  to  whether  the amendment made in the provisions of Part III  substantially, directly and materially affects the jurisdiction and  powers of the High Courts under Art. 226 may be easily avoided.  In   the  result,  we  hold  that  the  impugned   Act   is constitutionality  valid.  The petitions, accordingly,  fail and are dismissed.  There will be no order as to costs. (1)  [1960] 3 S.C.R. 250.                             957  Hidayatullah  J.  I have had the privilege of  reading  the judgment  just  delivered by my lord the Chief  Justice.   I agree,  with  him that there is no force in  the  contention that the 17th Amendment required for its valid enactment the special  procedure, laid down in the proviso to  Art.,  368. It  would, of course, have, been necessary if the  amendment had  sought to make a change in Art. 226.  This  eventuality cannot  be  said  to  have  arisen.   Article  226   remains unchanged after the amendment.  The proviso comes into  play only  when the article is directly changed or its  ambit  as such is sought to be changed.  What the 17th amendment  does is to enlarge the meaning of the word ’estate’ in Art.  31-A and’  to  give protection to some Acts passed by  the  State Legislatures  by including them in the Ninth Schedule  under the  shield  of  Art. 31 B.  These  Acts  promoted  agrarian reform and but for the inclusion in the Ninth Schedule  they might be assailed by the provisions of Articles 14, 19 or 31 of  the  Constitution.   Some  of  the  Acts  were  in  fact



successfully assailed but the amendment makes them effective and invulnerable to the three articles notwithstanding  Art. 13  of  the Constitution.  In Sri Sankari  Prasad’s(1)  case when  the Constitution (First Amendment) Act was passed  and Articles 3 I-A and 31-B and Ninth Schedule were  introduced, the effect of that amendment on Art. 226 was considered  and it was held that the Amendment had not the effect visualised by  the proviso to Art. 368. The reasoning in that  case  on this point applies mutatis mutandis to the 17th Amendment. I find, however, some difficulty in accepting a part of  the reasoning in Sankari Prasad’s case and my purpose in writing a  separate  judgment is to say that I  decide  the  present cases  without, the assistance of that reasoning.   I  shall briefly  indicate  what  that reasoning is and  why  I  have doubts.   In Sankari Prasad’s case it was contended that  by Art.  13(2)  the  Fundamental  Rights in  Part  III  of  the Constitution  were  put  beyond the reach of  Art.  368  and outside  the power of amendment conferred on  Parliament  by Art.  368.  This argument was considered  "attractive’,  but was  rejected because of certain "important  considerations" which it was held pointed "to the opposite conclusion".  Two reasons  alone appear to have weighed with this Court.   The first is that as constitutional law is distinguishable  from other  municipal laws and as there is no "clear  indication" to  be  found that the Fundamental Rights are  "immune  from constitutional   amendment",  only  the  invasion   of   the Fundamental Rights by laws other than constitutional laws (1)  [1952] S.C.R. 89.                             958 must be the subject of the prohibition in Art. 13 (2).  Art. 13 may to be quoted at this stage :               "13.  Laws inconsistent with or in  derogation               of the fundamental rights.               (1)   All  laws in force in the  territory  of               India  immediately before the commencement  of               this  Constitution,  in  so far  as  they  are               inconsistent with the provisions of this Part,               shall, to the extent of such inconsistency, be               void.               (2)   The  State shall not make any law  which               takes away or abridges the rights conferred by               this Part and any law made in contravention of               this  clause  shall,  to  the  extent  of  the               contravention, be void.               (3)   In  this  article,  unless  the  context               otherwise requires,-               (a)   "law"  includes  any  Ordinance,  order,               bye-law,   rule,   regulation,   notification,               custom  or  usage having in the  territory  of               India the force of law;               (b) It is true that there is no complete definition of the  word "law"  in  the  article  but  it  is  significant  that  the definition   does   not  seek  to   exclude   constitutional amendments which it would have been easy to indicate in  the definition by adding "but shall not include an amendment  of the  Constitution".   The  meaning  is  also  sought  to  be enlarged not curtailed.  The meaning of Art. 13 thus depends on the sense in which the word "law" in Art. 13(2) is to  be understood.  If an amendment can be said to fall within  the term  "law",  the  Fundamental Rights  become  "eternal  and inviolate"   to   borrow  the  language  of   the   Japanese Constitution.  Article 13 is then on par with Art. 5 of  the American  Federal Constitution in its immutable  prohibition as- long as it stands.  But the restricted meaning given  to



the word "law" prevents this to be held.  There is a  priori reasoning without consideration of the text of the  articles in  Part M. The Articles use the language of permanency.   I am of opinion that there are indications in the Constitution which  needed to be considered and I shall mention  some  of them later as illustrations. The  next reason was that Art. 368 was  "perfectly  general" and  allowed  amendment of "the  Constitution,  without  any exception  whatsoever"  and therefore Art. 13  (2)  did  not cover a constitutional ;amendment.  It was observed in  this connection that if it was con- 959  sidered  necessary  to  save  Fundamental  Rights  a  clear proviso  in  Art.  368 would have  conveyed  this  intention without any doubt.  To my mind the easiest and most  obvious way  was  to  say that the word "law" in  Art.  13  did  not include  an amendment of the Constitution.  It  was  finally concluded as follows :-                            "In  short,  we  have  here   two               articles each of which is widely phrased,  but               conflicts  in  its operation with  the  other.               Harmonious  construction  requires  that   one               should be read as controlled and qualified  by               the    other.     Having   regard    to    the               considerations  adverted to above, we  are  of               opinion  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,  with the result that article 1. 3  (2)               does not affect amendments made under  article               368." At  the hearing reliance was not placed on Art. 13  (2)  but emphasis  was laid on the amendment of Art. 226.  Mr. R.  V. S.  Mani  did,  however,  refer to  the  provision  for  the suspension  of  Fundamental Rights as  showing  that  unless suspended in an emergency, Part III must stand unchanged and he referred to Art. 32(4).  For the disposal of these  cases I  indicate my view that on, the arguments before us I  must hold that as decided in Sankari Prasad’s(1) case Art. 226 is not sought to be changed by the 17th Amendment.  But I  make it  clear that I must not be understood’ to have  subscribed to  the  view  that the word "law" in Art.  13(2)  does  not control constitutional amendments.  I reserve my opinion  on that  case  for I apprehend that it depends on how  wide  is the  word  "law" in that Article.  The prohibition  in  that article may have to be read in the light of declarations  in the  various  articles in Part III to find  out  the  proper meaning.   Though I do not express a final opinion I give  a few examples.  Take for instance Art. 32.  It reads :               "32.  Remedies for enforcement of rights.               (1)   The  right to move the Supreme Court  by               appropriate proceedings for the enforcement of               the   rights   conferred  by  this   Part   is               guaranteed.               (2)   The  Supreme Court shall have  power  to                             issue  directions  or orders or  writs  in  the               nature    of    habeas    corpus,    mandamus,               prohibition,  quo  warranto  and   certiorari,               whichever may be appropriate, for the--               (1) [1952] S.C.R. 89.               960               enforcement of any of the rights conferred  by



             this, Part.               (3)   Without   prejudice   to   the    powers               conferred on the Supreme Court by clauses  (1)               and  (2),  Parliament may by law  empower  any               other  court  to  exercise  within  the  local               limits  of its jurisdiction all or any of  the               powers exercisable by the Supreme Court  under               clause (2).               (4)   The  right  guaranteed by  this  article               shall  not  be suspended except  as  otherwise               provided for by the Constitution." It is prima facie at least, reasonable to think that if cls. (1)  and  (4)  of  this Article were  included  in  Part  XX (Amendment  of  the Constitution) that would have  made  the guarantee  absolute against any amendment.  It is  a  matter for  consideration  whether this guarantee is any  the  less because  the article.is in another Part ?  The first  clause assures  a  guaranteed remedy.  That  guarantee  is  equally against legislative and executive actions.  Part III is  fun of  declarations of what the legislature can do and what  it cannot do.  The guarantee covers all those actions which are not  open  to the legislature and the executive.  If  it  be held  that  the  guarantee  is  inviolable  would  not   the guarantee of the remedy make the rights ’equally protected ? Another provision, namely, the Preamble of the  Constitution is  equally  vital  to our body politic.  In  In  re  :  The Berubart  Union and Exchange of Enclaves(1) it is held  that although  the  preamble  is  the key  to  the  mind  of  the Constitution-makers,   it   does  not  form  part   of   the Constitution.   Perhaps, in one sense, it does not  but,  in another sense, it does.  Our preamble is more akin in nature to  the American Declaration of Independence (July 4,  1776) than  to  the  preamble to the Constitution  of  the  United States.  It does not make any grant of power but it gives  a direction and purpose to the Constitution which is reflected in Parts III and IV.  Is it to be imagined that a two-thirds majority  of  the  two Houses at any time  is  all  that  is necessary  to alter it without even consulting the States  ? It  is not even included in the, proviso to Art. 368 and  it is  difficult to think that as it has not the protection  of the proviso it must be within the main part of Art. 368. Again,  Art. 13 (1) rendered void the laws in force  in  the territory  of India which conflicted with Part III.  Can  it be said that Art. 13 may be repealed retrospectively and all those statutes (1)  [1960] 3 S.C.R. 250. 961 brought  back to life ? Because of successive amendments  we have seen many faces of Art. 31-A.  It is for  consideration whether Art. 13 was not intended to streamline all  existing and  future laws to the basic requirements of Part 111.   Or is  the  door  left open for reversing  the  policy  of  our Constitution from time to time by legislating with a  bigger majority   at   any   given  time  not   directly   but   by constitutional  amendments ? It is possible to justify  such amendments  with  the aid of the provisos in Art.  19  which permit  the making of laws restricting the freedoms but  not by ignoring Art. 13 and relying solely on Art. 368. I am aware that in A. K. Gopalan v. State of Madras(1) Kania C.J. said               the inclusion of article 13(1) and (2) in  the               Constitution  appears to be a matter of  abun-               dant  caution.  Even in their absence, if  any               of the fundamental rights was infringed by any               legislative  enactment, the Court  has  always



             the  power  to declare the enactment,  to  the               extent it transgresses the limits invalid." The observation is not clear in its meaning.  There was  un- doubtedly  a great purpose which this article achieves.   It is probable that far from belittling the importance of  Art. 13  the learned Chief Justice meant rather to emphasize  the importance and the commanding position of Fundamental Rights in that even without Art. 13 they would have the same effect on other laws.  To hold that Art. 13 is framed merely by way of  abundant caution, and serves no additional or  intrinsic function  of its own, might, by analogy persuade us  to  say the  same of Art. 32 ( 1 ) because this Court would  do  its duty under Art. 32(2) even in the absence of the guarantee. I would require stronger reasons than those given in Sankari Prasad’s   (2)  case  to  make  me  accept  the  view   that Fundamental  Rights  were not really  fundamental  but  were intended to be within the powers of amendment in common with the  other  parts  of  the  Constitution  and  without   the concurrence  of  the States.  No doubt Art.  19  by  clauses numbered 2 to 6 allows a curtailment of rights in the public interest.   This shows that Part III is not static.   It  as change  and progress but at the same time it  preserves  the individual  rights.  There is hardly any measure  of  reform which  cannot  be introduced reasonably,  the  guarantee  of individual  liberty  notwithstanding.   Even  the   agrarian reforms  could have been partly carried out without  Article 31 -A and 31-B but they would have cost (1) [1950] S.CR. 88 at p. 100.      (2) [1954] S.C.R. 89. 962 more  to  the public exchequer.  The rights of  society  are made  paramount  and  they are placed  above  those  of  the individual.   This is as it should be.  But restricting  the Fundamental  Rights by resort to cls. 2 to 6 of Art.  19  is one  thing and removing the rights from the Constitution  or debilitating them by an amendment is quite another.  This is the  implication of Sankari Prasad’s case.  It is true  that such things would never be, but one is concerned to know  if such a doing would be possible.  It  may  be  said  that the words of  Art.  368  are  quite explicit.   Art.  368  does not give  power  to  amend  "any provision"  of the Constitution.  At least the article  does not   say   so.   Analysed  by  the   accepted   canons   of interpretation  it  is found to lay down the manner  of  the amendment of "this Constitution" but by "this  Constitution" it does not mean each individual article wherever found  and whatever  its language and spirit.  The Constitution  itself indicates in some places a contrary intention expressly (See Articles 4, 169 and the former Art. 240) and in some  others by implication (See Art. 1 1).  What Art. 368 does is to lay down  the manner of amendment and the  necessary  conditions for  the  effectiveness  of  the  amendment.   The  contrast between the opening part and the proviso does not show  that what is outside the proviso is necessarily within the powers of amendment.  The proviso merely puts outside the exclusive Power of Parliament to amend those provisions ’on which  our federal  structure  rests.   It makes it  incumbent  that  a majority of the States should also agree.  The proviso  also preserves the structure of the higher judiciary so vital  to a written Constitution and to a Democracy such as ours’  But the article no where says that the preamble and every single article  of  the Constitution can be amended  by  two-thirds majority despite any permanency in the language and  despite any historical fact or sentiment. The  Constitution gives so many assurances in Part III  that it  would  be  difficult to think that they  were  the  play



things of a special majority.  To hold this would mean prima facie  that the most solemn parts of our Constitution  stand on  the  same footing as any other provision and even  on  a less firm ground than one on which the articles mentioned in the  proviso  stand.  The anamoly that Art.  226  should  be somewhat  protected  but  not Art. 32 must  give  us  pause. Article  32 does not erect a shield against private  conduct but  against state conduct including the  legislatures  (See Art.  12).   Can  the legislature take away  this  shield  ? Perhaps  by adopting a literal construction of Art. 368  one can say that.  But I am not inclined to play a  grammarian’s role.   As at present advised I can only say that the  power to make amendments ought not                             963 ordinarily   to   be  a  means  of  escape   from   absolute constitutional restrictions. For these reasons though I agree with the order proposed,  I would  not like to be understood to have expressed  a  final opinion on the aspect of the case outlined above. Mudholkar J. I have seen the judgments of my Lord the  Chief Justice and my brother Hidayatullah J. and I agree that the, Writ Petitions should be dismissed. Of  the various contentions raised in Sankari  Prasad  Singh De&  v.  Union of India and State of Bihar(1) in  which  the Constitution  (First  Amendment) Act,  1951  was  challenged before this Court only two would be relevant in the  context of the Constitution (Seventeenth Amendment) Act, 1964.  They are : (a) whether the Amendment Act in so far as it purports to take away or abridge the rights conferred by Part III  of the Constitution falls within the prohibition of Art.  13(2) and  (b) whether Arts. 31A and 31B seek to make  changes  in Arts. 132, 136 or 226 or in any of the Lists in the  Seventh Schedule and, therefore, the requirements of the proviso  to Art.  368 had to be satisfied.  Both these contentions  were negatived by this Court.  The first contention has not  been raised  in  the arguments before us and the  attack  on  the Seventeenth  Amendment  Act  was based only  on  the  second contention.  Most of the grounds which learned counsel urged before us were the same as those urged in the earlier  case. Some additional arguments were also urged before us but,  as my  Lord  the  Chief  Justice  has  pointed  out,  they  are unsubstantial.   An  attempt was made by Mr.  Mani,  learned counsel  for the petitioners, to persuade us  to  reconsider the  decision in the earlier case with regard to the  second contention.   As, however, no case was made out by  him  for reconsideration of that decision we intimated to him that we do not. propose to reconsider it. Since  my Lord the Chief Justice in his judgment  has  dealt with  the first contention also and expressed the view  that the previous decision is right I think it necessary to  say, partly   for  the  reasonsstated  by  my   learned   brother Hidayatullah  J. and partly for some other reasons,  that  I would reserve my opinion on this question and that I do  not regard  what  this Court has held in that case as  the  last word. It  seems to me that in taking the view that the word  "law" occurring  in  Art.  13 (2) of  the  Constitution  does  not include an amend- (1) [1952] S.C.R. 89. L2Sup./65-18 964 ment  to the Constitution this Court has not borne  in  mind some  important considerations which would be  relevant  for the  purpose.  The language of Art. 368 is plain  enough  to show   that  the  action  of  Parliament  in  amending   the



Constitution  is a legislative act like one in  exercise  of its normal legislative power, The only difference in respect of  an  amendment  of  the Constitution  is  that  the  Bill amending  the  Constitution has to be passed  by  a  special majority (here I have in mind only those amendments which do not  attract  the  proviso to Art. 368).  The  result  of  a legislative  action  of a legislature cannot be  other  than ’law’ and, therefore, it seems to me that the fact that  the legislation  deals with the amendment of a provision of  the Constitution  would  not  make its result ,any  the  less  a ’law’.   Article  3 6 8 does not say  that  when  Parliament makes  an  amendment  to  the  Constitution  it  assumes   a different   capacity,  that  of  a  constituent  body.    As suggested  by my learned brother Hidayatullah J. it is  open to  doubt whether this Article confers any such  power  upon Parliament.  But even assuming that it does, it can only  be regarded as an additional legislative power. Then  again while the Constitution as originally framed  can -only  be interpreted by a court of law and the validity  of no  provision therein can be challenged the same  cannot  be said of an amendment to the Constitution.  For an  amendment to be treated as a part of the Constitution it must in  fact and in law have become a part of the Constitution.   Whether it has become a part of the Constitution- is thus a question open  to judicial review.  It is obvious that  an  amendment must  comply with the requirements of the  Constitution  and should  not  transgress  any  of  its  provisions.    Where, therefore,  a  challenge  is made before the  Court  on  the ground  that  no amendment had in fact been made or  on  the ground  that it was ’not a valid amendment it will  be  both the duty of the Court as well as be and within its power  to examine  the  question and to pronounce upon  it.   This  is precisely  what a Court is competent to do in regard to  any other law, the validity of which is impugned ’before it. Neither of these matters appears to have been considered  in Sankari  Prasad’s  case(") and I think that  they  do  merit consideration. My Lord the Chief Justice has observed that though in A.  K. Gopalan v. The State of Madras (2) Patanjali Sastri J.,  (as he  then  ’was) has said that fundamental rights  are  those rights  which the people have reserved for  themselves  that learned Judge has emphati- (1) [1952] S.C.R. 89. (2) [1950] S.C.R. St. 965 cally  stated  in  In re The Delhi Laws  Act,  1912(1)  that Parliament,  acting  within the limits  of  its  legislative power, has plenary powers of legislation which are as  large and  which  are of the same nature as those of  the  British Parliament  and rejected the suggestion that, Parliament  is the.  delegate of the people in whom the sovereignty  rests. But does it follow that the learned Judge has departed  from his earlier view ? No reference was made by him in.  Sankari Prasad’s case (2) to his observations though they needed  to be  explained.   In  the  Delhi  Laws  Act  case(1)  he  has undoubtedly  said that Parliament enjoys plenary  powers  of legislation.    That  Parliament  has  plenary   powers   of legislation   within   the  circumscribed  limits   of   its legislative  power and cannot be regarded as a  delegate  of the  people c while exercising its legislative powers  is  a well  accepted  position. The fact,  however,  remains  that unlike  the  British Parliament our Parliament,  like  every other  organ  of  the State, can function  only  within  the limits  of the powers which the Constitution  has  conferred upon it.  This would also be so when, in the exercise of its



legislative power, it makes an amendment to the Constitution or  to any of its provisions.  It would,  therefore,  appear that the earlier observation of Patanjali Sastri J.,  cannot be  regarded  as inconsistent with what he has said  in  the Delhi  Laws Act case(1).  At any rate, this is an aspect  of the    matter   which   requires   further    consideration, particularly because the same learned Judge has not adverted to  those observations in Sankari Prasad’s case (2).  It  is true that by virtue of S. 8 of the Indian Independence  Act, 1947  it was upon the Constituent Assembly which framed  the Constitution   and  not  upon  the  people   of   India-that sovereignty  devolved  after the withdrawal of  the  British power.  But both the "Objectives Resolution" adopted by  the Constituent Assembly on January 22, 1947 and the Preamble to the  Constitution show that this sovereign body  framed  the Constitution  in  the  name of the people of  India  and  by virtue   of   the  powers  derived  from   them.    In   the circumstances  it  would  have  to  be  considered   whether Patanjali  Sastri  J.,  was not right  in  saying  that  the fundamental  rights are the minimum rights reserved  by  the people to themselves and they are, therefore, unalterable. It is true that the Constitution does not directly  prohibit the  amendment of Part III.  But it would indeed be  strange that rights which are considered to be fundamental and which include  one which is guaranteed by the  Constitution  (vide Art. 32) should be more easily capable of being abridged  or restricted  than  any  of the matters  referred  to  in  the proviso to Art. 368 some of which (1) [1951] S.C.R. 747. (2) [1952] S.C.R. 89. 966 are  perhaps  less  vital than fundamental  rights.   It  is possible, as suggested by my learned brother, that Art.  368 merely  lays down the procedure to be followed for  amending the  Constitution and does not confer a power to  amend  the Constitution which, I think, has to be ascertained from  the provision sought to be amended or other relevant  provisions or  the preamble.  The argument that if  fundamental  rights are  regarded  as unchangeable it  will  hamper  legislation which  the changing needs of a dynamic society may call  for in future is weighty enough and merits consideration.  It is possible that there may be an answer.  The rights enumerated in  Art. 19(1) can be subjected to  reasonable  restrictions under  cls. (2) to (6) of Art. 19 and the other  fundamental rights-or  at least many of them- can perhaps be adapted  to meet  the  needs of a changing society with the aid  of  the directive  principles.  For, Art. 37, the second Article  in Part  IV  which deals with ’Directive Principles  of  States Policy’,  imposes  a  duty  on  the  State  to  apply  those directive  principles in making laws.  These principles  are also  fundamental in the governance of the country  and  the provisions   of  Part  III  of  the  Constitution  must   be interpreted  harmoniously  with those principles.   This  is also an aspect of the matter which requires consideration. We  may  also have to bear in mind the fact that ours  is  a written  Constitution.  The Constituent Assembly  which  was the  repository  of sovereignty could well  have  created  a sovereign  Parliament on the British model.  But instead  it enacted  a  written Constitution, created  three  organs  of State,  made the union executive responsible  to  Parliament and the State executives to the State legislatures;  erected a  federal  structure  and  distributed  legislative   power between  Parliament and the State  legislatures;  recognised certain  rights  as  fundamental  and  provided  for   their enforcement;   prescribed  forms  of  oaths  of  office   or



affirmations  which require those who subscribe to  them  to owe true allegiance to the Constitution and further  require the  members  of  the  Union Judiciary  and  of  the  higher judiciary in the States, to uphold the Constitution.   Above all,  it  formulated a solemn and dignified  preamble  which appears  to  be  an epitome of the  basic  features  of  the Constitution.  Can it not be said that these are indicate of the  intention  of  the  Constituent  Assembly  to  give   a permanency to the basic features of the Constitution ? It  is  also  a matter for consideration  whether  making  a change  in  a  basic  feature of  the  Constitution  can  be regarded  merely as an amendment or would it be, in  effect, rewriting a part of the 967 Constitution;  and  if the latter, would it  be  within  the purview of Art. 368 ? The Constitution has enjoined on every member of  Parliament before  entering upon his office to take an oath or make  an affirmation  to the effect that he will bear true faith  and allegiance  to  the Constitution.  On the other  hand  under Art.  368  a  procedure  is  prescribed  for  amending   the Constitution.   If  upon a literal  interpretation  of  this provision  an  amendment even of the basic features  of  the Constitution  would  be possible it will be a  question  for consideration as to how to harmonise the duty of  allegiance to  the Constitution with the power to make an amendment  to it.   Could  the  two be harmonised by  excluding  from  the procedure  for amendment, alteration of a basic  feature  of the  Constitution ? It would be of interest to mention  that the  Supreme  Court of Pakistan has, in  Mr.  Fazlul  Quader Chowdhry  v. Mr. Mohd.  Abdul Haque(1) held  that  franchise and  form  of  government  are  fundamental  features  of  a Constitution  and the power conferred upon the President  by the Constitution of Pakistan to remove difficulties does not extend  to making an alteration in a fundamental feature  of the  Constitution.   For  striking down the  action  of  the President  under, what he calls  ’sub-constitutional  power’ Cornelius C.J., relied on the Judges’ oath of office.  After quoting  the following passage from Cooley’s  Constitutional Limitations:               "For  the constitution of the State is  higher               in authority than any law, direction, or order               made by anybody or any officer assuming to act               under  it,  since such body  or  officer  must               exercise  a delegated authority, and one  that               must   necessarily  be  subservient   to   the               instrument  by which the delegation  is  made.               In  any case of conflict the  fundamental  law               must  govern, and the act in conflict with  it               must be treated as of no legal validity."               the learned Chief Justice observed               "To decide upon the question of constitutional               validity in relation to an act of a  statutory               authority,   how-highso-ever,   is   a    duty               devolving ordinarily upon the superior  Courts               by virtue of their office, and in the  absence               of  any  bar either express or  implied  which               stands in the way of that duty being performed               in respect of the Order here in question it is               a responsibility which cannot be avoided." (p.               506) (1)  1963 P.L.D. 486. 968 The  observations and the passage from Cooley,  quoted  here for  convenience support what I have said earlier  regarding



the  power of the Courts to pronounce upon the  validity  of amendments to the Constitution. The  Constitution  indicates three modes of  amendments  and assuming  that  the provisions of Art. 368 confer  power  on Parliament to amend the Constitution, it will still have  to be  considered  whether  as  long  as  the  preamble  stands unmended, that power can be exercised with respect to any of the basic features of the Constitution. To  illustrate  my point, as long as  the  words  ’sovereign democratic  republic’ are there, could the  Constitution  be amended  so  as  to  depart  from  the  democratic  form  of Government  or  its republic character ? If that  cannot  be done,  then, as long as the words "Justice, social  economic and  political  etc.,"  are there could any  of  the  rights enumerated  in Arts. 14, to 19, 21, 25, 31 and 32  be  taken away ? If they cannot, it will be for consideration  whether they can be modified. It has been said, no doubt, that the preamble is not a  part of  our  Constitution.   But,  I  think,  that  if  upon   a comparison  of the preamble with the broad features  of  the Constitution it would appear that the preamble is an epitome of  those  features  or,  to put  it  differently  if  these features  are  an  amplification or  concretisation  of  the concepts  set  out  in  the  preamble  it  may  have  to  be considered  whether  the  preamble  is not  a  part  of  the Constitution.   While considering this question it would  be of relevance to bear in mind that the preamble is not of the common  run  such  as  is  to  be  found  in  an  Act  of  a legislature.   It has the stamp of deep deliberation and  is marked  by  precision.   Would this  not  suggest  that  the framers of the Constitution attached special significance to it ? In  view of these considerations and those mentioned  by  my learned brother Hidayatullah J. I feel reluctant to  express a definite opinion on the question whether the word ’law’ in Art.  13  (2)  of  the  Constitution  excludes  an  Act   of Parliament amending the Constitution and also whether it  is competent to Parliament to make any amendment at all to Part III of the Constitution. In so far as the second contention is concerned I  generally agree with what my Lord the Chief Justice has said but would only like to add this : Upon the assumption that  Parliament can  amend Part III of the Constitution and was,  therefore, competent  to enact therein Articles 31A and 31B as also  to amend the definition of ’estate’, the question still remains whether it could validate a State 969 law dealing with land.  I take it that only that legislature has  power  to validate a law which has the power  to  enact that  law.   Since the agrarian laws included in  the  Ninth Schedule  and sought to be protected by Art. 31B  could  not have  been enacted by Parliament, would it be right  to  say that  Parliament could validate them ? If  Parliament  could amend  Part III it could, indeed, remove the  impediment  in the  way of the State.  Legislatures by enacting Art.  3  1A and amending the definition of ’estate.  But could it go  to the  extent it went when it enacted the First Amendment  Act and  the Ninth Schedule and has now added 44  more  agrarian laws  to  it  ?  Or was it incompetent to it  to  go  beyond enacting  Art.  31A  in 1950 and  now  beyond  amending  the definition  of  estate ? This, however, does not  appear  to have  been  considered in Sankari Prasad’s case(1)  nor  was such an argument advanced before us in this case.  I am only mentioning this to make It clear that even in so far as  the second  contention  is concerned I base my decision  on  the



narrow ground that upon the arguments advanced before us  no case  has  been made out for striking down  the  Seventeenth Amendment. As indicated in the judgment of my Lord the Chief Justice an amendment made by resort to the first part of Art. 368 could be  struck  down  upon  a ground such  as  taking  away  the jurisdiction  of the High Courts under Art. 226 or  of  this Court   under   Art.  13  6  without  complying   with   the requirements  of the proviso.  To this I would like  to  add that   if  the  effect  of  an  amendment  is   to   curtail substantially,  though indirectly, the jurisdiction of  High Courts  under  AA. 226 or of this Court under Art.  136  and recourse  has  not been had to the proviso to Art.  368  the question  whether the amendment was a colorable exercise  of power by Parliament will be relevant for consideration. Before  I part with this case I wish to make it  clear  that what I have said in this judgment is not an expression of my final opinion but only an expression of certain doubts which have   assailed  me  regarding  a  question   of   paramount importance to the citizens of our country : to know  whether the  basic features of the Constitution under which we  live and to which we owe allegiance are to endure for  all  time-or  at least for  the  foreseeable  future-or whether the yard no more enduring  than the implemental  and subordinate provisions of the Constitution. Petitions dismissed. (1) [1952] S.C.R. 89. 970