05 October 1951
Supreme Court


Case number: Writ Petition (Civil) 166 of 1951






DATE OF JUDGMENT: 05/10/1951


CITATION:  1951 AIR  458            1952 SCR   89  CITATOR INFO :  F          1952 SC 252  (1,30)  RF         1954 SC 257  (4)  R          1959 SC 395  (28)  E&D        1959 SC 512  (4)  F          1965 SC 845  (20,21,23,24,25,27,33,35,38,39  R          1965 SC1636  (25)  O          1967 SC1643  (12,14,23,27,43,44,56,59,61,63  RF         1973 SC1461  (16,20,27,30,32,38,39,44,46,88  RF         1975 SC1193  (17)  RF         1975 SC2299  (649)  RF         1980 SC1789  (96)  RF         1980 SC2056  (61)  RF         1980 SC2097  (6)  D          1981 SC 271  (19,33,42,43)  RF         1986 SC1272  (78)  RF         1986 SC1571  (34)  RF         1987 SC1140  (3)

ACT:     Constitution  (First  Amendment) Act, 1951,  Arts.  31A, 31B-Validity--Constitution   of India,  1950, Arts.   13(2), 368,  379,  392--Provisional   Parliament--Power  to   amend Constitution-  Constitution (Removal of Difficulties)  Order No. 2 of 1950--Validity --Amendment of  Constitution--Proce- dure--Bill  amended  by  Legislature--Amendment   curtailing fundamental   rights--Amendment affecting land--Validity  of Amending Act.

HEADNOTE:     The Constitution (First Amendment) Act, 1951, which  has inserted, inter alia, Arts. 31A and 3lB in the  Constitution of India is not ultra vires or unconstitutional.     The provisional Parliament is competent to exercise  the power of amending the Constitution under Art. 368. The  fact that  the said article refers to the two Houses of the  Par- liament and the President separately and not to the  Parlia- ment, does not lead to the inference that the body which  is invested with the power to amend is not the Parliament but a different body consisting of the two Houses.



   The words "all the powers conferred by the provisions of this  Constitution on Parliament" in Art. 379 are  not  con- fined to such powers as could be exercised by the provision- al  Parliament consisting of a single chamber, but are  wide enough  to include the power to amend the Constitution  con- ferred by Art. 368.     The  Constitution (Removal of Difficulties) Order No.  2 made  by  the  President on the 26th  January,  1950,  which purports  to adapt  Art. 368 by omitting "either  House  of" and "in each House" and substituting "Parliament" for  "that House" is not          12 90 beyond  the powers conferred on him by Art. 39:1  and  ultra vires.  There  is nothing in Art. 392 to  suggest  that  the President should wait, before adapting a particular article, till the occasion actually arose for the provisional Parlia- ment to exercise the power conferred by the article.     The  view that Art. 368 is a complete code in itself  in respect of the procedure provided by it and does not contem- plate any amendment of a Bill for amendment of the Constitu- tion  after it has been introduced, and that if the Bill  is amended during its passage through the House, the  amendment Act  cannot be said to have been passed in  conformity  with the  procedure prescribed by Art. 368 and would be  invalid, is erroneous.     Although  "law"  must ordinarily include  constitutional law there is a clear demarcation between ordinary law  which is  made in the exercise of legislative power and  constitu- tional  law,  which is made in the exercise  of  constituent power.   In the context of Art. 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 the exercise of constituent power with  the  result that  Art. 13(2) does not affect amendments made under  Art. 368.     Articles 31A and 3lB inserted in the Constitution by the Constitution   (First Amendment) Act, 1951, do  not  curtail the  powers of the High Court under Art. 226 to issue  writs for  enforcement of any of the rights conferred by Part  III or of the Supreme Court under Arts. 132 and 136 to entertain appeals from orders issuing or refusing such writs; but they only  exclude from the purview of Part III ’certain  classes of cases.  These articles therefore do not require ratifica- tion under cl. (b) of the proviso to Art. 368.     Articles 31A and 31B are not invalid on the ground  that they  relate to land which is a matter covered by the  State List (item 18 of List II) as these articles are  essentially amendments   of the Constitution, and Parliament  alone  has the power to enact them.

JUDGMENT:                  ORIGINAL  JURISDICTION  :  Petitions  under Art.  32 of the Constitution (Petitions Nos. 166,287,317  to 319,  371,372,  374 to 389, 392 to 395, 418, 481 to  485  of 1951). The facts which led to these petitions are stated  in the judgment.     Arguments  were heard on the l2th, l4th, l1th, 18th  and 19th of September.     P.R.  Das  (B.  Sen, with him) for  the  petitioners  in Petitions Nos. 37 l, 372, 382,383, 388 and 392. Article  368 of  the Constitution is a complete code in itself.  It  does not contemplate any amendments to the Bill



91 after its introduction.  The Bill must be passed and assent- ed  to  by the President as it was  introduced  without  any amendment. As the Constitution Amendment Bill was amended in several respects during its passage through the  Parliament, the  Constitution  (First Amendment) Act was not  passed  in conformity  with the procedure laid down in article 368  and is  therefore  invalid. When the  Parliament  exercises  its ordinary legislative powers it has power to amend the  Bills under articles 107. 108, 109(3) & (4).  It has no such power when  it seeks to amend the Constitution itself  as  article 368  does not give any such power: of The Parliament Act  of 1911 (of England).  The Article 368 vests the power to amend the  Constitution not in the Parliament but in  a  different body,  viz., a two-thirds majority of the two Houses of  the Parliament.   In  article  368, the  word  Parliament  which occurs  in other articles is purposely avoided. There  is  a distinction between ordinary legislative power and power  to amend  the  Constitution. This distinction  is  observed  in America  and the power to amend the Constitution  is  vested there  also  in  a different body. Vide  Willis,  page  875, Coolly  Vol.  1.  page 4, Orfield, page  146.   Article  379 speaks  of  the  power of the provisional  Parliament  as  a legislative body. The powers under article 368 cannot be and was not intended to be exercised by the provisional  Parlia- ment  under  article 379. As it consists only  of  a  Single Chamber the adaptations made in article 368 by the Constitu- tion (Removal of Difficulties) Order No. 2 are ultra  vires. Article 392 gives power to the President to remove only such difficulties as arise in the working of the Constitution. It cannot be used to remove difficulties in the way of amending the  Constitution that have been deliberately introduced  by the  Constitution.  No difficulty could have  been  possibly experienced  in the working of the Constitution on the  very day the Constitution came into force. The Constitution could legally be amended only by the Parliament consisting of  two Houses  constituted under clause 2 of Part V. In any  event, the impugned Act is void under article 13 (2) as  contraven- ing the provisions relating to 92 fundamental  rights  guaranteed  by Part III.  ’  Law  ’  in article  13  (2) evidently includes all laws passed  by  the Parliament  and must include laws passed under  article  368 amending  the   Constitution: Constituent  Assembly Debates, Vol. IX No. 37, pp. 1644, 1645, 1661, 1665.     S.M. Bose (M. L. Chaturvedi, with him)for the petitioner in Petition No. 375.  The word "only" in article 368  refers to  all  that follows and article 368 does  not  contemplate amendment  of  a Bill after it has  been   introduced.   The President’s  Order is ultra rites his powers  Under  article 392.   There  is  no difficulty in working article  368  and there could be no occasion for the President to adapt 368 in the exercise of his powers under article 392.     S.  Chaudhuri   (M.  L. Chaturvedi, with  him)  for  the petitioner in Petition No. 368 adopted the arguments of P.R. Das and S.M. Bose.     S.K. Dhar (Nanakchand and M.L. Chaturvedi, with him) for the petitioner in Petition No- 387. Article 379 on which the provisional Parliament’s jurisdiction to amend the Constitu- tion  is  based  not only empowers the  said  Parliament  to exercise the powers of the Parliament but also imposes  upon it  the obligation to perform all the duties  enjoined  upon the Parliament by the Constitution. Hence Parliament  cannot seek  to  abridge  the rights of property  of  the  citizens guaranteed  by Part III. As the present Act contravenes  the



provisions of Part III, it is void under article 13 (2).  In any  event, the new articles 31A and 3lB curtail the  powers of  the  Supreme Court under articles 32, 132  and  136  and those of the High Court under article 226, and as such, they required  ratification  under clause (b) of the  proviso  to article 368 and not having been ratified, they are void  and unconstitutional.  They are also ultra vires as they  relate to land, a subject matter covered by List II  (see item  18) over  which  the State Legislatures  have  exclusive  power. Parliament  cannot make a law validating a law which it  had no power to enact. 93     N.P. Asthana (K. B. Asthana, with him) for the petition- ers  in Petitions Nos. 481 to 484.  Article 338 s, does  not confer  power  on any body to amend  the  constitution.   It simply  lays down the procedure to be followed for  amending the  Constitution.   In this view u   article 379  does  not come into operation at all. Under article 392 the  President himself  can alter the Constitution but he cannot  authorise the provisional Parliament to do so.     S.P. Sinha (Nanak Chand, with him) for the petitioner in Petition  No. 485. Article 13(2) is very wide in  its  scope and  it invalidates all laws past, present and future  which seek  to curtail the rights conferred by Part II 1. It  does not exempt laws passed under article 368 from its operation.     N.C.  Chatterjee (with V.N. Swami for the petitioner  in PetitiOn  No. 287 and with Abdul Razzak Khan for  the  peti- tioner  in  Petition  No. 318).  Article 368  must  be  read subject to article 13(2).  Articles 31A and 31IB are  legis- lative in character and were enacted in the exercise of  the law-making  power of the Parliament and not in the  exercise of any power to amend the Constitution and Parliament has no power to validate the laws as it had no power to enact them.     N.R.  Raghavachari   (V.  N. Swami, with  him)  for  the petitioner in Petition No. 166.  The fundamental rights  are supreme  and article 13 (2) is a complete bar to any  amend- ment of the rights cenferred by Part III.     N.S..  Bindra  (Kahan Chand Chopra, with  him)  for  the petitioner in Petition No. 319.     M.L.  Chaturvedi for the petitioners in  Petitions  Nos. 374,376, 377, 379, 380, 381,384, 385, 386, 389, 393, 394 and 395. Bishan  Singh for the petitioner in Petition No. 418.  Abdul Razzak Khan and P. 5. Safeer for the petitioner in  Petition No. a17.     M.C.  Setalvad,  Attorney-General for India  (with  G.N. Joshi)  for the Union of India, and (with Lal Narain  Singh, G  N. Joshi, A. Kuppuswami and 94 G. Durgabai) for the State  of Bihar.  The donee     of  the power  under article 368  is Parliament. and The process  of the  passage of the Bill indicated  in the said  article  is the same as that of ordinary  legislative Bills.  The  arti- cle  does not mean that the powers under article 368 are  to be  exercised by a fluctuating body of varying majority  and not  by  Parliament.  If the constituent authority  and  the legislative authority are two different entities the  saving clauses  in  articles 2,3, 4 and 240, will  be  meaningless. Under  article 379 provisional Parliament can  exercise  all the powers of Parliament;  hence Provisional Parliament  can act  under  article  368. "All the powers"  in  article  379 include  power  to amend the Constitution and  there  is  no reason  to restrict the import of these words  by  excluding amendment  of the Constitution from their ambit.  The  words "perform  all  the  duties" in that article do  not  in  any



manner  cut down the power of Parliament under  article  379 because   article 13 (2) does not impose any duty. There  is no conflict between exercising all the powers under  article 379  and  the prohibition in article 13  (2).  No  technical meaning should be given to the word "difficulty" in  article 392 (1). The adaptation of article 368 is really an  adapta- tion for the removal of difficulties.  The adaptation is not of a permanent character.  This shows that the adaptation is not an amendment and even if it is an amendment, it is so by way of adaptation.  Article 13 (2) prohibits "laws"   incon- sistent  with fundamental rights. It cannot  affect  article 368  since the word "law" in article 13 (2) refers to  ordi- nary  legislative  enactments and not  constitution  making. The argument that the Bill to amend the Constitution  should be passed as introduced, without amendments, is  fallacious. It  cannot be said that the Bill referred to in article  368 has  to be dealt with under a procedure different from  that laid down for ordinary Bills in articles 107 and 108.  Arti- cles  31-A  and 31B are not legislative in  character.   The said  articles do not affect the scope of articles  226  and 32, for the power of the Court under the said two articles 95 remains unaltered. What has been done is to alter the content of fundamental rights.    P.L.  Banerjee, Advocate-General of Uttar Pradesh (U.  K. Misra and Gopalji Mehrotra, with him) for the State of Uttar Pradesh  adopted the arguments of the  un.  Attorney-General and added that articles 31-A and 31-B st do not  necessarily stand or fall together; even if 31-B goes, 31-A will remain.     T.L.  Shevde, Advocate-General of Madhya Pradesh (T.  P. Naik, with him)for the  State of Madhya Pradesh adopted  the arguments  of the Attorney General.  The Provisional Parlia- ment  is competent to do all that the future Parliament  can do.   The  adaptation  under article 392 does  not  seek  to amend article 368.     P.R. Dots, S.M. Bose S. Chaudhuri, N.C. Chatterjee, S.K. Dhar and S.P. Sinha replied.   1951.  October 5. The Judgment of the Court was  delivered by     PATANJALI  SASTRI J.--These petitions, which  have  been heard  together,  raise  the common   question  whether  the Constitution (First Amendment) Act, 1951, which was recently passed by the present provisional Parliament and purports to insert, inter alia, articles 31A and 3lB in the Constitution Of India is ultra vires and unconstitutional.     What led to that enactment is a matter of common  knowl- edge.   The political party now in power, commanding  as  it does  a majority of votes in the several State  legislatures as  well as in Parliament, carried out certain  measures  of agrarian  reform in Bihar, Uttar Pradesh and Madhya  Pradesh by enacting legislation which may compendiously be  referred to  as Zemindary Abolition Acts. Certain zemindars,  feeling themselves aggrieved, attacked the validity of those Acts in courts      of law on the ground that they  contravened  the fundamental  rights  conferred on them by Part  III  of  the Constitution.   The  High Court at Patna held that  the  Act passed in Bihar was unconstitutional while the 96 High  Courts at Allahabad and Nagpur upheld the validity  of the  corresponding legislation in Uttar Pradesh and,  Madhya Pradesh  respectively.   Appeals from  those  decisions  are pending  in  this Court.  Petitions filed in this  Court  by some  other zemindars seeking the determination of the  same question  are "also pending.  At this stage, the Union  Gov- ernment,  with a view to put an end to all  this  litigation



and  to  remedy what they considered to be  certain  defects brought to light in the working of the Constitution, brought forward  a  bill  to amend the  Constitution,  which,  after undergoing amendments in various particulars, was passed  by the:  requisite majority as the Constitution  (First  Amend- ment)  Act, 1951, (hereinafter referred to as the  Amendment Act).  Swiftly reacting to this move of the Government,  the zemindars  have brought the present petitions under  article 32 of the Constitution impugning the Amendment Act itself as unconstitutional and void.     The main arguments advanced in support of the  petitions may be summarised as follows:     First,  the power of amending the Constitution  provided for under article 368 was conferred not on Parliament but on the  two  Houses  of Parliament as a  designated  body  and, therefore,  the provisional Parliament was not competent  to exercise that power under article 379.     Secondly,  assuming  that  the power  was  conferred  on Parliament, it did not devolve on the provisional Parliament by  virtue of article 379 as the words "All the powers  con- ferred by the provisions of this Constitution on Parliament" could  refer  only to such powers as are  capable  of  being exercised  by  the provisional Parliament  consisting  of  a single chamber. The power conferred by article 368 calls for the  co-operative  action of two Houses  of  Parliament  and could  be appropriately exercised only by the Parliament  to be duly constituted under Ch. 2 of Part V.     Thirdly,  the  Constitution  (Removal  of  Difficulties) Order No. 2 made by the President on 26th January 97 1950,  in  so  far as it purports to adapt  article  368  by omitting  "either House of" and "in each House" and  substi- tuting  "Parliament" for" that House", is beyond the  powers conferred  on  him  by article 392,  as  "any  difficulties" sought  to be removed by adaptation under that article  must be  difficulties in the actual working of  the  Constitution during  the transitional period whose removal  is  necessary for  carrying  on the Government. No such  difficulty  could possibly  have  been  experienced on the very  date  of  the commencement of the Constitution.     Fourthly, in any case article 368 is a complete code  in itself and does not provide -for any amendment being made in the bill after it has been introduced in the House. The bill in the present case having been admittedly amended in sever- al  particulars  during its passage through the  House,  the Amendment Act cannot be said to have been passed in conform- ity with the procedure prescribed in article 368.     Fifthly, 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  article  13 (2).     And  lastly, as the newly inserted articles 31A and  3lB seek  to make changes in articles 132 and 136 in Chapter  IV of  Part  V and article 226 in Chapter V of  Part  VI,  they require  ratification  under clause (b) of  the  proviso  to article 368, and not having been so ratified, they are  void and  unconstitutional.  They are also ultra  vires  as  they relate  to  matters enumerated in List II, with  respect  to which  the  State legislatures and not Parliament  have  the power to make laws.     Before  dealing with these points it will be  convenient to  set out here the material portions of articles 368,  379 and  392, on the true construction of which these  arguments have largely turned.     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         13 98 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     (a) articles 54, 55, 78,162 or 241, or     (b)  Chapter  IV  of Part V, Chapter V of  Part  VI,  or Chapter I of Part XI, or     (c) any of the Lists in the Seventh Schedule, or     (d)  the representation of States in Parliament,  or  (e) the  provisions  of this article, the amendment  shall  also require to be ratified by the Legislatures of not less  than one-half  of  the States specified in Parts A and B  of  the First Schedule by resolutions to that effect passed by those Legislatures  before  the  Bill making  provision  for  such amendment is presented to the President for assent.   379.  (1) Until both Houses of Parliament have  been  duly constituted  and  summoned. to meet for  the  first  session under  the provisions of this Constitution, the  body  func- tioning as the Constituent Assembly of the Dominion of India immediately  ’before the commencement of this’  Constitution shall  be the provisional Parliament and shall exercise  all the  powers  and  perform all the duties  conferred  by  the provisions of this Constitution on Parliament.     392. (1) The President may, for the purpose of  removing any difficulties, particularly in relation to the transition from the provisions of the Government of India Act, 1935, to the  provisions of this Constitution, by order  direct  that this Constitution shall, during such period as may be speci- fied in the order, have effect subject to such  adaptations, whether by way of modification, addition or omission, as  he may deem to be necessary or expedient: 99     Provided  that  no such order shall be  made  after  the first  meeting of Parliament duly constituted under  Chapter II of Part V. *                 *                       *                *     On the ’first point, it was submitted that whenever  the Constitution  sought to confer a power upon  Parliament,  it specifically  mentioned  "Parliament"  as the  done  of  the power, as in articles 2, 3, 33, 34 and numerous other  arti- cles, but it deliberately avoided the use of that expression in  article  368. Realising that the  Constitution,  as  the fundamental  law  of the country, should not  be  liable  to frequent changes according to the whim of party  majorities, the framers placed special difficulties in the way of amend- ing  the  Constitution and it was a part of that  scheme  to confer  the  power  of amendment on a body  other  than  the ordinary legislature, as was done by article 5 of the Ameri- can  Federal Constitution. We are unable to take that  view. Various methods of constitutional amendment have been adopt- ed  in  written constitutions, such as by referendum,  by  a special  convention, by legislation under a  special  proce- dure, and so on.  But, which of these methods the framers of the  Indian  Constitution have adopted must  be  ascertained from  the  relevant provisions of  the  Constitution  itself without any leaning based on a priori grounds or the analogy of other constitutions in favour of one method in preference



to  another.  We accordingly turn to the provisions  dealing with constitutional amendments.     Now,  the  Constitution provides for  three  classes  of amendments  of  its provisions.  First, those  that  can  be effected  by a bare majority such as that required  for  the passing of any ordinary law. The amendments contemplated  in articles 4, 169 and 240 fall within this class, and they are specifically  excluded  from  the purview  of  article  368. Secondly,  those that Can be effected by a special  majority as  laid down in article 368. All constitutional  amendments other than those referred to above come within this category and  must be effected by a majority of the total  membership of each 100 House  as well as by a majority of not less than two  thirds of  the  members  of that House present and  a  voting;  and thirdly,  those  that require, in addition to   the  special majority   above-mentioned,  ratification  by    resolutions passed by not less than one-half of the States  specified in Parts A and B of ’the First Schedule.  This class  comprises amendments  which seek to make any change in the  provisions referred to in the proviso to article 368.  It will be  seen that the power of effecting the first class of amendments is explicitly  conferred on "Parliament", that is to  say,  the two  Houses  of Parliament and the President  (article  79). This  would lead one to suppose, in the absence of  a  clear indication to the contrary, that the power of effecting  the other  two classes of amendments has also been conferred  on the same body, namely, Parliament, for, the requirement of a different  majority,  which  is merely  procedural,  can  by itself be no reason for entrusting the power to a  different body.   An examination of the language used in  article  368 confirms that view.   In the first place, it is provided that the amendment must be initiated by the introduction of a "bill in either’ House of  Parliament", a familiar feature of parliamentary  proce- dure (of. article 107(1) which says "A bill may originate in either House of Parliament"). Then, the bill must be "passed in  each House"-just what Parliament does when it is  called upon  to exercise its normal legislative  function  [article 107(2)]; and finally, the bill thus passed must be "present- ed  to the President"’ for his "assent", again a  parliamen- tary  process through which every bill must pass  before  it can reach the statute-book (article 111). We thus find  that each  of  the component units of Parliament is to  play  its allotted part in bringing about an amendment to the  Consti- tution.  We have already seen that Parliament effects amend- ments  of the first class mentioned above by  going  through the  same three-fold procedure but with a  simple  majority. The  fact  that  a different majority in the  same  body  is required for 101 effecting  the  second and third  categories  of  amendments cannot make the amending agency a different body.  There  is no force, therefore, in the suggestion that Parliament would have been referred to specifically if that body was intended to  exercise the power. Having mentioned each House of  Par- liament  and the President separately and assigned  to  each its  appropriate  part  in  bringing  about   constitutional changes,  the makers of the Constitution presumably did  not think it necessary to refer to the collective designation of the three units.     Apart  from  the intrinsic indications  in  article  368 referred  to above, a convincing argument is to be found  in articles  2,  3, 4, 169 and 240. As  already  stated,  under



these articles power is given to  "Parliament" to make  laws by  a bare majority to amend certain parts of the  Constitu- tion;  but  in each case it is laid down that  no  such  law should be deemed to be an amendment of the Constitution "for the purpose of article 368."  It would be quite unnecessary, and  indeed  inappropriate, to exclude these laws  from  the operation of article 368, which  requires a. special majori- ty,  if the power to amend under the latter article was  not also given to Parliament.     Somewhat closely allied to the point discussed above  is the  objection based on the bill in the present case  having been passed in an amended form, and not as originally intro- duced.   It  is  not correct to say that article  368  is  a "complete code" in respect of the procedure provided by  it. There  are  gaps in the procedure as to how and  after  what notice a bill is to be introduced, how it is to be passed by each House and how the President’s assent is to be obtained. Evidently,  the rules made by each House under  article  118 for regulating its procedure and the conduct of its business were  intended, so far as may be, to be  applicable.   There was some discussion at the. Bar as to whether the process of amending the Constitution was a legislative process.   Peti- tioners’ counsel insisted that it was not, and that,  there- fore, the "legislative procedure" prescribed in article 107, which specifically 102 provides  for a bill being passed with amendments,  was  not applicable  to  a bill for amending the  Constitution  under article 368.  The argument was further supported by pointing out  that if amendment of such a bill were  permissible,  it must be open to either House to propose and pass amendments, and  in case the two Houses failed to agree, the  whole  ma- chinery of article 368 would be thrown out of gear, for  the joint  sitting of both Houses passing the bill by  a  simple majority provided for in article 108 in the case of ordinary bills would be inapplicable in view of the special  majority required in article 368.  The argument proceeds on a miscon- ception.  Assuming that amendment of the Constitution is not legislation  even  where it is carried out by  the  ordinary legislature by passing a bill introduced for the purpose and that articles 107 to 111 cannot in terms apply when  Parlia- ment  is dealing with a bill under article 368, there is  no obvious  reason  why Parliament should not  adopt,  on  such occasions,  its own normal procedure, so far as that  proce- dure  can be followed consistently with  statutory  require- ments.   Repelling  the contention that a  Local  Government Board conducting a statutory enquiry should have been guided by  the  procedure of a court of justice, Lord  Haldane  ob- served in Local Government Board v. Arlidge(1):     "Its (the Board’s) character is that of an  organisation with executive functions.  In this it resembles other  great departments  of the State. When, therefore,  Parliament  en- trusts it with judicial duties, Parliament must be taken, in the  absence  of any declaration to the  contrary,  to  have intended  to  follow the procedure which is its own  and  is necessary  if  it is to be capable of doing its  work  effi- ciently."     These  observations have application here.  Having  pro- vided for the constitution of a Parliament and prescribed  a certain procedure for the conduct of’ its ordinary  legisla- tive business to be supplemented by rules made by each House (article 118), the makers of the Constitution must be  taken to have intended (1) [1915] A.C. 120. 103



Parliament  to  follow that procedure, so far as it  may  be applicable,  consistently  with the  express  provisions  of article 368, when they entrusted to it the power of amending the Constitution,.     The  argument  that a power entrusted  to  a  Parliament consisting two Houses cannot be exercised under article  379 by  the provisional Parliament sitting as a  single  chamber overlooks  the  scheme of the constitutional  provisions  in regard to  Parliament.  These provisions  envisage a Parlia- ment of two Houses functioning under the Constitution framed as they have been on that basis. But the framers were  well’ aware  that such a Parliament could not be constituted  till after the first elections were held under the  Constitution. It thus became necessary to make provision for the  carrying on,  in the meantime, of the work entrusted  to   Parliament under   the  Constitution. Accordingly, it was  provided  in article 379 that the Constituent Assembly should function as the  provisional Parliament during the transitional’  period and  exercise  all  the powers and perform  all  the  duties conferred  by  the Constitution on Parliament.  Article  379 should be viewed and interpreted in the wider perspective of this scheme and not in its isolated relation to article  368 alone.  The  petitioners’  argument that  the  reference  in article 368 to "two Houses" makes that provision  inapplica- ble to the provisional Parliament would equally apply to all the  provisions of the Constitution in regard to  Parliamen- tary  action and, if accepted, would rob article 379 of  its very  purpose and meaning. It was precisely to obviate  such an  argument  and to remove the difficulty on  which  it  is rounded  and other difficulties of a like nature in  working the  Constitution  during the transitional period  that  the framers  of the Constitution made the further  provision  in article  392 conferring a general power on the President  to adapt the provisions of the’ Constitution by suitably  modi- fying  their  terms. This brings us to the  construction  of article 392.     It will be seen that the purpose for which an adaptation may be made under that article is widely 104 expressed.  It may be made for the purpose of removing  "any difficulties".   The particularisation of one class of diffi- culties  which follows is illustrative and cannot  have  the effect of circumscribing the scope of the preceding  general words.   It  has  been urged, however,  that  the  condition precedent to the exercise of powers under article 392 is the existence  of  difficulties to be removed, that is  to  say, difficulties  actually  experienced in the  working  of  the Constitution  whose removal would be necessary for  carrying on  the Government, such as for instance,  the  difficulties connected  with  applying articles 112, 113,  etc.,  in  the transitional period.  But, the argument proceeds,  constitu- tional amendments cannot be said to be necessary during that period.   Besides, amendment of the Constitution is  a  very serious thing, and hence, by providing that both Houses must deliberate and agree to the amendment proposed and pass  the bill  by a special majority, the Constitution has  purposely placed  difficulties in the way of amending its  provisions. It  would be fantastic to suppose that,  after  deliberately creating those difficulties, it has empowered the  President to  remove them by a stroke of his pen.  We see no force  in this line of argument. It is true enough to say that  diffi- culties must exist before they can be removed by adaptation, but  they  can exist before an occasion  for  their  removal actually  arises. As already stated, difficulties are  bound to  arise in applying provisions, which, by their terms  are



applicable to a Parliament of two Houses. to the provisional Parliament sitting as a single chamber. Those  difficulties, arising  as  they  do out of the  inappropriateness  of  the language  of those provisions as applied to the  provisional Parliament, have to be removed by modifying that language to fit in with the situation created by article 379.  There  is nothing in that article to suggest that the President should wait, before adapting a particular article, till an occasion actually  arose for the provisional Parliament  to  exercise the  power  conferred  by that article.  Nor  is  there  any question  here of the President removing by  his  adaptation any of the difficulties which the Constitution 105 has  deliberately  placed in the way of its  amendment.  The adaptation  leaves  the requirement of  a  special  majority untouched.  The passing of an amendment bill by both  Houses is  no more a special requirement of such a bill than it  is of any ordinary law made by Parliament.  We are,  therefore, of opinion that the adaptation of article 368 by the  Presi- dent was well within the powers conferred on him by  article 892 and is valid and constitutional.     A more plausible argument was advanced in support of the contention that the Amendment Act, in so far as it  purports to take away or abridge any of the fundamental rights, falls within the prohibition of article 13(2) which provides  that "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." The argument was  put  thus:  "The State"  includes Parliament (article 12)and "law"  must  in- clude  a  constitutional amendment.  It was  the  deliberate intention  of the framers of the Constitution, who  realized the  sanctity  of the fundamental rights conferred  by  Part III,  to  make  them immune from interference  not  only  by ordinary laws passed by the legislatures in the country  but also from constitutional amendments.  It is not uncommon  to find  in  written constitutions a declaration  that  certain fundamental rights conferred on the people should be  "eter- nal  and inviolate" as for instance article 11 of the  Japa- nese Constitution. Article 5 of the American Federal Consti- tution  provides that no amendment shall be  made  depriving any State without its consent "of its equal suffrage in  the Senate."  The  framers of the Indian  Constitution  had  the American and the Japanese models before them, and they  must be  taken to have prohibited even constitutional  amendments in  derogation  of fundamental rights by  using  aptly  wide language in article 13 (2). The argument is attractive,  but there are other important considerations which point to  the opposite conclusion.      14 106     Although  "law" must ordinarily  include  constitutional law,  there  is a clear demarcation  between  ordinary  law, which is made in exercise of legislative power, and  consti- tutional  law,  which  is made in  exercise  of  constituent power.  Dicey defines constitutional law as  including  "all rules  which directly or indirectly affect the  distribution or the exercise of the sovereign power in the State."  It is thus  mainly concerned with the creation of the three  great organs of the State, the executive, the legislature and  the judiciary, the distribution of governmental power among them and  the definition of their mutual relation. No  doubt  our constitution-makers,  following  the American  model,   have incorporated certain fundamental rights in Part III and made them immune from interference by laws made by the State.  We



find it, however,difficult, in the absence of a clear  indi- cation  to the contrary, to suppose that they also  intended to make those rights immune from  constitutional  amendment. We  are  inclined to think that they must have had  in  mind what  is of more frequent occurrence, that is,  invasion  of the rights of the subjects by the legislative and the execu- tive organs of the State by means of laws and rules made  in exercise of their legislative power and not the  abridgement or  nullification of such rights by alterations of the  Con- stitution itself in exercise of sovereign constituent power. That power, though it has been entrusted to Parliament,  has been  so  hedged about with restrictions that  its  exercise must be difficult and rare. On the other hand, the terms  of article 36a are perfectly general and empower Parliament  to amend the Constitution, without any exception whatever.  Had it  been  intended to save the fundamental rights  from  the operation  of that provision, it would have  been  perfectly easy  to  make that intention clear by adding a  proviso  to that  effect.  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 107 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.     It only remains to deal with the objections particularly directed  against the newly inserted articles 31A and  :3lB. One of these objections is based on the absence of ratifica- tion  under  article 368.  It was said  that,  before  these articles were inserted by the Amending Act, the High  Courts had the power under article 226 of the Constitution to issue appropriate  writs  declaring the Zemindari  Abolition  Acts unconstitutional  as  contravening fundamental  rights,  and this  Court could entertain appeals from the orders  of  the High  Courts under article 132 or article 136.  As a  matter of  fact,  some High Courts had. exercised such  powers  and this  Court  had  entertained appeals.   The  new  articles, however,  deprive the High Courts as well as this  Court  of the  power of declaring the said Acts unconstitutional,  and thereby seek to make changes in Ch. 4 of Part V and Ch. 5 of Part VI. It was therefore submitted that the newly  inserted articles required ratification under the proviso to  article 368.  The argument proceeds on a misconception. These  arti- cles so far as they are material here, run thus :--     31A.  Saving  of laws providing for acquisition  of  es- tates,  etc.--(1) Notwithstanding anything in the  foregoing provisions  of this part, no law providing for the  acquisi- tion by the State of any estate or of any rights therein  or for  the extinguishment or modification of any  such  rights shall  be deemed to be void on the ground that it is  incon- sistent  with, or takes away or abridges any of  the  rights conferred by, any provisions of this Part :-- *         *                  *                 *    31B.  Validation of certain Acts and  Regulations.Without prejudice  to the generality of the provisions contained  in article :31A, none of the Acts and Regulations specified  in the Ninth Schedule nor any of the 108 provisions  thereof shall be deemed to be void, or  ever  to



have become void, on the ground that such Act, Regulation or provision  is inconsistent with, or takes away  or  abridges any of the rights conferred by, any provisions of this Part, and  notwithstanding  any judgment, decree or order  of  any court  or tribunal to  the contrary, each of the  said  Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.      It  will be seen that these articles do not  either  in terms or in effect seek to make any change in article 226 or in  articles 132 and 136.  Article 31A aims at  saving  laws providing  for the compulsory acquisition by the State of  a certain  kind of property from the operation of  article  13 read with other relevant articles in Part III, while article 3lB purports to validate certain specified Acts  and-Regula- tions already passed, which, but for such a provision, would be  liable to be impugned under article 13.  It is not  cor- rect to say that the powers of the High Court under  article 226 to issue writs "for the enforcement of any of the rights conferred  by Part III" or of this Court under articles  132 and 136 to entertain appeals from orders issuing or refusing such  writs are in any way affected.  They remain  just  the same  as they were before: only a certain class of case  has been  excluded  from the purview of Part II/and  the  courts could  no  longer interfere, not because their  powers  were curtailed in any manner or to any extent, but because  there would  be  no occasion hereafter for the exercise  of  their power in such cases.      The  other  objection that it was beyond the  power  of Parliament  to enact the new articles is equally  untenable. It  was said that they related tO land which was covered  by item  18  of List II of the Seventh Schedule  and  that  the State  legislatures  alone had the power to  legislate  with respect  to  that matter. The answer is that,  as  has  been stated, articles a IA and 3lB really seek to save a  certain class of laws and certain specified laws already passed from the  combined operation of article 13 read with other  rele- vant 109 articles of Part III. The new articles being thus essential- ly amendments of the Constitution, Parliament alone had  the power  of enacting them. That the laws thus saved relate  to matters  covered by List II does not in any way  affect  the position.  It was said that Parliament could not validate  a law  which it had no power to enact. The  proposition  holds good  where the validity of the impugned provision turns  on whether  the  subject-matter  falls within  or  without  the jurisdiction  of  the legislature which passed it.   But  to make a law which contravenes the constitution  constitution- ally  valid is a matter of constitutional amendment, and  as such it falls within the exclusive power of Parliament.  The question  whether  the  latter part of article  31B  is  too widely expressed was not argued before us and we express  no opinion upon it. The petitions fail and are dismissed with costs.                                     Petitions dismissed.     Agent  for the Petitioners in Petitions Nos.  871,  372, 382, 383, 388 and 392: I. N. Shroff.     Agent for the Petitioners in Petitions Nos. 287, 374  to 381 393, 394, 395: Rajinder Narain.       Agent for the Petitioners in Petitions Nos. 387, 418,  481 to 485, 384, 385, 386 and 389: S.S.  Sukla.  Agent for the  Petitioners in Petition No. 166: M.S.K. Sastri.     Agent for the Petitioners in Petition Nos. 817 and  319: R.S. Narula.



   Agent  for the Petitioner  in Petition No.  318:  Ganpat Rai.     Agent for the respondents: P. A. Mehta.    15 110