http://JUDIS.NIC.INSUPREME COURT OF INDIA Page 1 of 157 PETITIONER:I. C. GOLAKNATH & ORS.Vs.RESPONDENT:STATE OF PUNJAB & ANRS.(With Connected Petitions)DATE OF JUDGMENT:27/02/1967BENCH:RAO, K. SUBBA (CJ)BENCH:RAO, K. SUBBA (CJ)WANCHOO, K.N.HIDAYATULLAH, M.SHAH, J.C.SIKRI, S.M.BACHAWAT, R.S.RAMASWAMI, V.SHELAT, J.M.BHARGAVA, VISHISHTHAMITTER, G.K.VAIDYIALINGAM, C.A.CITATION: 1967 AIR 16431967 SCR(2) 762 CITATOR INFO : RF 1967 SC1776(7) F1968 SC1395(7) RF 1970 SC 898(61) RF 1972 SC 425(7,16,21) D1972 SC 963(27) O1973 SC1461(10,15,16,17,25,30,32,37,50,51 RF 1975 SC2299(251,325,522,576,577,649) F1976 SC 490(196) RF 1976 SC1207(283,285,397,548) R1977 SC1027(42) R1978 SC68(89,101,233,261) D1978 SC 489(9) E&R1978 SC 597(19) RF 1979 SC1550(9) RF 1980 SC1762(5) RF 1980 SC1789(86) RF 1981 SC 271(33,42) RF 1981 SC 431(10) R1984 SC 326(8) O1984 SC 684(65) RF 1987 SC1140(3) R1987 SC1986(29) F1991 SC 101(131) RF 1991 SC1676(66,71)ACT: Constitution of India, Arts. 13(2), 368, 245, 248, Schedule7,List1.Entry 97-PowertoamendConstitutionwhereresides-Whether resides in Art. 368 or in residuary power ofParliamentunderArt.248read withEntry97List1-FundamentalRights in Part III whether can beamendedandabridged by the procedure in Art. 368-Law under Art.13(2)Whether Includes constitutional amendments-Scheme ofConsitutionFundamentalrightswhetherintendedto bepermanentandunamendable-Amendmentwhetherexerciseofhttp://JUDIS.NIC.INSUPREME COURT OF INDIA Page 2 of 157 sovereign power-Amendment whether a political matter outsidethe purview of courts.Constitution SeventeenthAmendment Act,, 1964-Whetherinvalid for contravention of Art. 13(2).Prospectiveoverruling, doctrine of-Vastagrarianchangesunder constitutional amendments-Necessity of preserving pastwhile protecting future decisis.Punjab Security of Land Tenures Act, 1953 (Act 10 of1953)-MysoreLand Reforms Act (Act 10 of 1962) as amended byAct14of1965-Actscontraveningfundamentalrights-Whethervalid.HEADNOTE:Thevalidityof the Punjab Security of LandTenuresAct,1953(Act10 of 1953) and of the Mysore LandReformsAct(Act 10 of 1962) as amended by Act 14 of 1965 was challengedby the petitioners under Art. 32 of the Constitution.SincetheseActswereincludedinthe9thScheduletotheConstitutionbythe Constitution(Seventeenth)AmendmentAct,1964, the validity of the said Amendment Act wasalsochallenged. In this connection it was urgedthatSankariPrasadscasein which the validityoftheconstitution(First)AmendmentAct,1951 had beenupheldandSajjanSinghscaseinwhich the validityoftheConstitution(Seventeenth)Amendment Act, 1964, had been upheld bythisCourt,hadbeen wrongly decided.ItwascontendedthatParliament had no powertoamend fundamentalrightsinPart III of the Constitution.HELD: PerSubbaRao,C.J.,Shah,Sikri,Shelat andVaidialingam, JJ. (Hidayatullah,J.Concurring):Fundamental Rights cannot be abridged or taken away by theamendingprocedurein Ail. 368 oftheConstitution. Anamendment to the Constitution is law within the meaning ofArt.13(2)andis therefore subject to PartIIIoftheConstitution. Sri Sankari Prasad Singh Deo v. Union of IndiaJUDGMENT:Rajasthan,[1965] 1 S.C.R. 933, reversed.Per Subba,Rao,C.J., Shah, Sikri, Shelat and Vaidialingam, JJ.(i)Fundamental rights are the primordial rightsnecessaryforthedevelopment of human personality. Theyaretherights which enable a763manto chalk out his own life in the manner he likesbest.Our Constitution, in addition to the well-knownfundamentalrights,alsoincluded the rights of minoritiesandotherbackward communities in such rights. [789 E]Thefundamental rights are given a transcendentalpositionunderourConstitution and are kept beyondthereachofParliament. Atthesame time Parts IIIandIVoftheConstitution constituted an integrated scheme forming a selfcontained code.The scheme is made so elastic that alltheDirectivePrinciplesofState Policycanreasonablybeenforcedwithouttaking away or-abridging thefundamentalrights.While recognisingthe immutability ofthefundamental rights, subjectto social control theConstitutionitselfprovidesfor thesuspensionorthemodification of fundamental rights underspecificcircumstances, as in Arts. 33, 34 and 35.Thenon-obstanteclause with which the last article opens makes it clear thatall the other provisions of the Constitution are subjecttothisprovision. Article 32 makes the righttomovetheSupreme Court by appropriate proceedings for the enforcementoftherights conferred by the saidPartsafundamentalhttp://JUDIS.NIC.INSUPREME COURT OF INDIA Page 3 of 157 right.Even during grave emergencies Art. 358 only suspendsArt.19and all other rights areuntouchedexceptthosespecifically suspended by the President under Art. 359. [789H; 790 D] The Constitution has given a place of permanence to thefundamental freedoms.Ingivingto themselves theConstitutionthepeoplehavereserved thefundamentalfreedomsto themselves.Art. 13 merely in-corporatesthatreservation. The Article is however not the source oftheprotectionof fundamental rights but the expression ofthereservation. Theimportance attached tothefundamentalfreedomsissotranscendatal that abillenactedbyaunanimousvoteofallthemembersofbothHousesisineffective to derogate from its guaranteed exercise.It isnotwhat Parliament regards at a given moment asconduciveto the public benefit but what Part III declarer. protected,which determines the ambit of the freedom. The incapacity ofParliamenttherefore in exercise of its amendingpowertomodify, restrict, or imposefundamentalfreedoms inPartIII arises from the scheme of theConstitution andthenature of the freedoms. [792 D-F]A. K. Gopalan v. State of Madras, [1950] S.C.R.88,Stateof Madras v. Smt. ChampakamDorairajan,(1951)S.C.R.525,PanditM.S. M. Sharma v. ShriSriKrishnaSinha,[1959]Supp.1 S.C.R. 806 and Ujjam Bai v. State ofUttarPradesh, [1963] 1 S.C.R. 778, referred to.Ifitistheduty ofParliamenttoenforcedirectiveprinciplesit is equally its duty to enforcethemwithoutinfringing the fundamentalrights. The verdict ofParliamentonthe scope of the law ofsocialcontroloffundamental rights is not final but justiciable.If it werenotso, the whole scheme of the Constitutionwouldbreak.[815 H; 816 A-B] ,(ii)Article368 in terms only prescribes various stepsinthematter of amendment.The article assumes the powertoamendfound else where.The completion oftheproceduralsteps cannot be said to culminate in the power to amendforifthatwas so the Constitution makers couldhavestatedthatinthe Constitution.Nor can thepowerbeimpliedeitherfromArt. 368 or from the natureofthearticlessought to be amended; the doctrine of necessaryimplicationcannotbe invoked if there is an express provision. Thereisno necessity to imply any such power asParliamenthasthe plenary power to make any law including the law to amendtheConstitutionsubjecttothelimitationslaiddowntherein [793 E-G](iii)The power of Parliament to amend theConstitutionis derived from Arts. 245, 246 and 248 read with item 97inList I. The residuary764power of Parliament can certainly take in the power to amendthe Constitution. [794 A-D]Thoughalawmade under Art. 245 issubjecttotheprovisions of the Constitution it would be wrong to say thateverylaw of amendment made under it wouldnecessarilybeinconsistentwiththe articles sought to beamended. Itcannot reasonably be said that a law amending an articleisinconsistentwithit.The limitation in Art.245isinrespect of the power to make a law and not of the content ofthe law made within the scope of its power. [794 E-F]An order by the President under Art. 392 cannot attractArt368as the amendment contemplated by the latterprovisionscanbeinitiatedonly by the introduction ofabillinParliament. It cannot therefore be said that if thepowerof amendment is held to be a legislative power the Presidenthttp://JUDIS.NIC.INSUPREME COURT OF INDIA Page 4 of 157 acting under Art. 392 can amend the Constitution in terms ofArt. 368. [794 G-H](iv) The Constituent Assembly, it so minded, could certainlyhave conferred an express legislative power on Parliament toamendtheConstitution byordinarylegislativeprocess.Thereis,therefore,noinherentinconsistencybetweenlegislativeprocess and the amending one.Whetherinthefield of a constitutional law or statutory law amendment canbe brought about only by law. [794 C-D]Article13(2),for the purpose of that Article,givesaninclusivedefinitionof law.It doesnotPrimafacieexcludeconstitutionallaw.The processunderArt.368itself closely resemble the legislative process.Article368isnota complete codeinrespectoftheprocedure of amendment.The details of procedure in respectofotherbills have to be followed so far aspossibleinrespect of a Bill under Art. 368 also, The rules made by theHouseof the People providing procedure for amendmentslaydownaprocedure similar to that of other billswiththeadditionofcertain special provisions.Ifamendmentisintendedto be Something other than law theconstitutionalinsistenceon the said legislative process isunnecessary.Theimpositionof further conditions is onlyasafeguardagainst the hasty action or a protection to the states butdoesnot change the legislative character of theamendment[795 G 796 C]Article 3 of the Constitution permits changes in Statesandtheir boundaries by a legislative process under Arts. 4and169amendments in the Solution are made by law butbyafictionare deemed not to be amendments for the purposeofArt. 368.This shows that amendment is law and that but forthefiction it would be an amendment within the meaningofArt, 368. [796 C-F]Thereforeamendments either under Art. 368 orunderotherArticles areonlymadebyParliament following thelegislativeprocess and are law for the purposeofArt.13(2). [798 C]Mccawleyv.Theking, [1920]A.C.,691andTheBriberyCommissionerv.Pedrick Ransinghe, [1964] 2W.L.R.1301,referred to.(v)One need not cavil at the description of amending powerasa sovereign power for it is sovereign onlyviithinthescopeof the power conferred by aparticularConstitutionwhichmayexpresslylimit thepowerofamendmentbothsubstantiveandprocedural.If cannot thereforebesaidthat amending power can have no limitations being a sovere4ppower. [804]Theargument that the amending processinvolvespoliticalquestions and is therefore outside.the scope of judicial re-view cannot also be aeCePted- It may be.Parliament seekstoamendthe Constitution for political reasons but thecourtin denying that power will not be deciding765a politicalquestion;itwillonlybeholding thatParliament has no power to armed Particular articles oftheConstitution for any purpose whatsoever, be it politicalorotherwise. [804 E-G](vi) If power to abridge the fundamental rights is denied toParliamentrevolutionisnotanecessaryresult. Theexistenceofanall comprehensivepowercannotpreventrevolution if there is chaos in the country brought about bymisruleor abuse of power.Such considerations are outofplace in construing the provisions of the Constitution byaCourt of law. [816 B-C](vii) While-ordinarily@Court willbereluctanttohttp://JUDIS.NIC.INSUPREME COURT OF INDIA Page 5 of 157 reverseitspreviousdecisionsit isitsdutyintheconstitutional field to correct itself as early as possible,forotherwisethefutureprogressofthecountryandhappinessof the people will be at stake.As it wasclearthat the decision in Sankari Prasads case was wrong, it waspre-eminentlyatypicalcasewherethisCourt shouldoverruleit.The longer it held the field the greaterthescopefor erosion of fundamental rights.Asitcontainedtheseedsof destruction of the cherishedrightsofthepeople,thesoonerit was overruled thebetterforthecountry. [816 G-H]TheSuperintendentand Legal RemembrancerStaleofWestBengalv.The Corporation at Calcutta, [1967] 2 S.C.R.,170relied on.(viii)TheConstitution(SeventeenthAmendment) Act,1964,inasmuchas it takes awayorabridgesfundamentalrights was beyond the amending power of Parliament and voidbecauseof contravention of Art. 13(2).But havingregardtothehistoryofthisandearlieramendmenttotheConstitution,theireffectonthesocialandeconomicaffairs of the country and the chaotic situation that may bebroughtabout by the sudden withdrawl at this stage oftheamendments from the Constitution it was undesirable togiveretroactivity of this decision.The present was therefore afit case fortheapplicationof the doctrine of"prospective.overruling,evolvedby thecourtsintheUnited States of America. [805 E; 807 E, G; 808 C-D]GreatNorthern Railway v. Sunburst Oil & Ref. Co.(1932)287U.S.358:77 L. Ed. 360, ChicotCountyDrainagev.Baxter State Bank, (1940) 308 U.S. 371, Griffin v. Illionis,(1956)351 U.S. 12, Wolf v. Colorado, 338 U.S. 25 : 193L.Ed.872, Mapp v. Ohio, 367 U.S. 643 : 6 L. Ed.(2ndEdn.)1081andLinkletterv. Walker,(1965)381U.S.618,referred to.(ix),The doctrine of "prospective overruling" is amoderndoctrine suitable for a fast moving society.It does not doaway with the doctrine of state decision but confines ittopasttransactions.While in Strict theory it maybesaidthatthedoctrine involves the making oflaw,*hatthecourtreally does is to declare the law but refuse togiveretroactivitytoit.It is reallyapragmaticsolutionreconcilingthe two conflicting doctrines, namely,thatacourtfinds the law and that it does make law It findslawbutrestricts its operation to the future.It enablesthecourt to bring about a smooth transition by correcting,itserrors without disturbing the impact of those errors on pasttransactions.By the application of this doctrine thepastmay be preserved and the future protected. [913 A-C; 814E-F]Our Constitutiondoesnotexpresslyofby necessaryimplicationspeakagainstthedoctrineof prospectiveoverruling. Articles 32, 141 and 142 aredesignedlymadecomprehensive to enable the Supreme Court to declare law andto give such directions or pass such orders as are necessarytodo complete justice.The expression declared inArt.141iswiderthan the words foundormade. Thelawdeclaredby the Supreme Court is the law of theland..Ifso, there is no acceptable reason why7 66theCourt, in declaring the law in supersession of thelawdeclared by it earlier, could not restrict the operationofthe law as declared to the future and save thetransactionswhetherstatutoryor otherwise that were affectedonthebasis of the earlier law. [813 F-H]AsthisCourt for the first time has been calledupontohttp://JUDIS.NIC.INSUPREME COURT OF INDIA Page 6 of 157 applythedoctrine evolved in adifferentcountryunderdifferent circumstances, it would like to move warily in thebeginningand would lay down the followingpropositions:(1)The doctrine of prospective overruling canbeinvokedonlyin matters arising under our Constitution; (2) itcanbeappliedonly by highest court of the country,ie.theSupremeCourt as it has the constitutional jurisdictiontodeclarelaw binding on all the Courts as it has India;(3)the scope of the retrospective operation of the law declaredbythe supreme Court superseding its earlierdecisionsisleft to its discretion to be moulded in accordance with- thejustice of the cause or matter before it. [814 C-D]Applyingthedoctrineof prospectiveoverrulinginthecircumstancesof the present case the Courtdeclaredthatthis decisionwouldnotaffectthevalidityof theConstitution(SeventeenthAmendment) Act1964,orotheramendmentsto the Constitution taking away orabridgethefundamentalrights. It further declaredthatinfutureParliamentwillhaveno power to amend PartIIIofAbeConstitutionso as to take away or abridge thefundamentalrights. [814 F-G](x)Asaccordingto the above decisiontheConstitution(SeventeenthAmendment) Act held the field the validityofthetwo impugned Acts, namely the Punjab SecurityofLandTennures Act, 10 of 1953 and the Mysore Land Reforms Act, 10of1962,asamendedby Act 14 of1965,could,notbequestioned on the ground that they offended Art 13, 14 or 31of the Constitution. [815 E](xi) Onthe findings the following, questions did notfallto be considered :(a) Whether in the exercise of the powerofamendmentthefundamental structureoftheConstitution may be changed or evendestroyedorwhether the power is restricted tomakingmodificationwithintheframeworkof theoriginalinstrumentforitsbettereffectuation ?(b) Whethertheamendmentoffundamentalrights is covered by the proviso to Art. 368 ?(c) To what extent can the provisions of dieConstitution other than fundamental rightsbeamended ?(d) Towhat extent can Part III beamendedotherwise thin by taking away or abridging thefundamental rights ?(e) Whether theimpugnedActcould besustained under theprovisions of theConstitution without the aid of Arts. 31Aand31B of the Schedule.ObiterIfnecessityto abridge thefundamentalrightsdoes arise the residuary powerof Parliament may bereliedupon to call for a constituent bly formakinganewConstitutionorradicallychanging it. TherecentActprovidingfor a poll in Goa, Daman and Diu was aninstanceofanalogusexerciseofsuchresiduarypowerby theParliament, [816 E-F]Per Hidayatullah.J. : (i) The scope of the amendingpowerunder the COnstitution is not to be determined by takinganapriori view of the767omnicompetence of Art. 368.When there is conflictbetweenthat Article and Art. 13(2) juridical hermeneuticsrequirestheCourt to interpret them by combining them andnotbydestroyingonewith the aid of the other.NopartinaConstitution issuperiortoanotherpartunless thehttp://JUDIS.NIC.INSUPREME COURT OF INDIA Page 7 of 157 Constitution-itselfsaysso and there is noaccessionofstrength to any provision. by calling it a code.It is, thecontext of the legal provisions that illustrates the meaningofthe different parts so that among them and betweenthemthere should be correspondence and harmony. [857 H-858C](ii) Itiswrongto think of theFundamentalRightsaswithinParliaments giving or taking.They are securedtothe people by Arts. 12, 13, 32, 136, 141,,144 and 226. TheHigh Courts and finally this Court have been made the Judgesof whether any lagislative or executive action onthepartof the State,consideredascomprehensively as ispossible,offends the Fundamental Rights and Art.13(2)declaresthatlegislation which so offends istobedeemed to be void.The general words of art. 368 cannotbetakentomean that by calling an Act an AmendmentoftheConstitution Act a majority of total strengths and a2/3rdsmajority of the members presnt and voting in each Housemayremove not only any of the Fundamental Rights but thewholeChapter giving them. [860 A-D; 867 FF](iii) In Britainthereisnodistinction betweenconstitutional law and ordinary law as to the procedureoftheirenactment.In our Constitution too in spiteoftheclaim that Art. 368 is a Code Arts. 4, 11 and 169 showthatthe amendment of the Constitution can be by the ordinary lawmakingprocedure. By this method one ofthelegislativelimbsin a State can be removed or created.Thisdestroysatone stroke the claim that Art. 368 is a codeand.alsothat any special method of amendment of the Constitutionisfundamentally necessary. [861 E-G]The only difference between constitutional law andordinarylaw can, be said to arise from the fact thatconstitutionallawsaregenerallyamend-able under aprocesswhichinvaryingdegrees, is more difficult or elaborate.Thismaygive a distinct character to the law of theConstitutionbutitdoes not serve to distinguish it from the other lawsofthe land for the purpose of Art. 13(2).The Articleitselfdoesnot exclude constitutional law which couldhavebeeneasilydone had the constitution makers. so intended.[862B; 866 B]Anamendmentto the Constitution is not madeunderpowerderived from Arts. 245 or 248 of the Constitution read withentry97 of List 1. The power of amendment is suigeneris.[900 E](iv) A narrowviewneednotbetakenof the wordamendment..By an amendment new matter may beadded,oldmatterremovedoraltered.ThepowerofamendingtheConstitutionishowevernotintendedtobeused forexperiments or as an escape, from restrictions against undueState action enacted in the Constitution itself.Nor is thepowerofamendment available for thepurposeofremoingexpressor implied restrictions against the State. [862F;863 B-C]Coleman v. Milter, 307 U.S. 443 (83 L. Ed. 1385), LutherV.Borden,, 7 How. 1(12 L. Ed. 58) and Baker v. Carr, 369U.S.186 (7 L. Ed. 2d., 633), referred to.TheState is no doubt supreme but in the supremacyofitspowersitmay create impediments on itsownsovereignty.Thereis nothing to prevent the State from placingcertainmattersoutside the amending procedure.When thishappenstheordinaryprocedureofamendmentceasesto apply.Amendment can then only be by a freshly constituted body..768Toattemptto do this otherwise is toattemptrevolutionwhichistoalter the will of the peopleinanillegalmanner. Courts can interfere to nullify therevolutionaryhttp://JUDIS.NIC.INSUPREME COURT OF INDIA Page 8 of 157 changebecause there is an infraction of exitinglegality.Democracymay be lost if there is no liberty basedonlawand lawbasedonequality. Theprotection of thefundamentalrights is necessary so that we may not walkinfear of democracy itself. [863 G; 864 A-C; 865 A-D](v)InArt.13(2) the restriction is againsttheState.Thereisa difference between the State anditsagenciessuchasGovernment,Parliament, theLegislatureoftheStates,andthe local and otherauthorities. TheStatemeansmore than any of these or all of themputtogether.Bymakingthe State subject to FundamentalRightsitisclearly stated in Art. 13(2) that any of the agencies actingalone or all the agencies acting together are not abovetheFundamental Rights.Therefore when the- House of the PeopleortheCouncilofStatesintroducesaBillfor theabridgementoftheFundamentalRights,itignorestheinjunctionagainst it and even if the two HousespasstheBill the injunction is next operative against thePresidentsincetheexpression Government of IndiaintheGeneralClausesActmeansthePresidentofIndia. Thus theinjunctionin Art. 13(2) is against the whole force oftheState actingeitherinitsexecutiveor legislativecapacity. [866 E-H](vi) Itis wrong to invoke the Directive Principlesasifthereissome antinomy between themandtheFundamentalRights. TheDirective Principles lay down theroutesofStateactionbut such action must avoidtherestrictionsstatedin the Fundamental Rights.It cannotbeconceivedthatin following the Directive Principles theFundamentalRights can be ignored. [867 G, 868 B](vii) OurConstitution has given a guaranteed righttothepersons whose fundamental rights are affectedtomovetheCourt. The guarantee is worthless if therightsarecapableof being taken away.This makesourConstitutionuniqueand the American or other foreign precedentscannotbe of much assistance. [875 H]Hollingsworthv. Virginia, 3 Dall. 378, Leserv.Garnett,258U.S.130, Dillon v. Gloss, 256 U.S. 368 andTexasv.White, 7 Wall, 700, referred to.Itisnot that Fundamental Rights are not subjecttoanychange ormodification. TheConstitution permits acurtailmentoftheexercise of mostoftheFundamentalRightsbystatingthe limitsofthatcurtailment. Itpermits theFundamentalRightstobecontrolled butprohibits their erasure. [878 B](viii)Parliamenttoday is not the constituentbodyastheconstituent assembly was but a constituted bodywhichmustbeartrue allegiance to the Constitutionasbylawestablished.TochangetheFundamentalPartof theindividualslibertyisa usurpationoftheconstituentfunctions because they have been placed outside the scope ofthe power of the constituted Parliament. [870 B-D]OurConstitution like some others has kept certainmattersoutside the amendatoryprocessso that the theirrepresentatives.In Art. 35 obstante clause.TheyexcludeArticle under the proviso.It is therefore a great error tothinkof Art. 368 as a code or as omnicompetent. [901C-E;902 A-B]769Garnishee case, 46 C.L.R. 155, referred to.Article368cannot directly be amendedbyParliamenttoconfer power on itself over the fundamental rights, It wouldbe against Art. 13(2).Parliament cannot do indirectly whatit cannot do directly. [878 H](ix) If it is desired to abridge the Fundamental Rightsthehttp://JUDIS.NIC.INSUPREME COURT OF INDIA Page 9 of 157 legalmethodis that the State mustreproducethepowerwhich it has chosen to put under restraint.Parliament mustamend Art. 368 to convoke another constituent assembly, passalaw under item 97 of the List 1 of Schedule 7 tocallaconstituent assembly, and then that assembly may be abletoabridgeortake away the fundamentalrights. Anyothermethod must be regarded as revolutionary. [878 D-E; 879 B](x)The variousamendmentsthathavebeen made byParliament inArts.15,16and19didnot abridgefundamental rights and were therefore valid. [879 C, 883 B](xi) OurConstitutionaccepted the theorythatRightofPropertyisa fundamental right though perhaps itwasanerrortodo so if socialisation was desired. Ittreatedproperty rights as inviolable except through law forpublicgoodand on payment of compensation.Howeverthevariousamendmentshave significantly changed the position. Asaresultofthem,except forlandwithintheprescribedceiling,all other land can be acquired orrightsthereinextinguished ormodifiedwithoutcompensationand nochallenge to the law can be made under Arts. 14, 19 or 31 ofthe Constitution. [887 B; 888 B-C; 896 F-G]Asthere is apprehension that the erosion of therighttopropertymay be practised against other fundamentalrightsitis necessary to call a halt.An attempt toabridgeortakeawayFundamental Rights by aconstitutedParliamenteven through an amendment of the Constitution can I declaredvoid. This Court has the power and the jurisdiction todoso.The opposite view expressed in Sajjan Singhs casewaswrong.. [898 B-C](xii) TheFirst, Fourth and Seventh amendmentsoftheConstitution,cannotnowbe challengedbecauseoflongacquiescence. Itis good sense and sound policyforthecourts to decline to take up an amendment forconsiderationafteraconsiderablelapseoftimewhenitwas notchallengedbefore or was sustained on anearlieroccasionafter challenge. [893 O, H 1902 D-E]Lesserv. Garnett, 258 U.S. 130 (1922), referred to.(xiii)In the Seventeenth Amendment, the extension of thedefinition of estate to include ryotwari andagriculturallands is an inroad into the Fundamental Rights but it cannotbe questioned in view, of the existence of Art. 3 1A(1)(a)whose validity cannot now be challenged.The new definitionof estate introduced by the amendment is beyond the reach ofthe Courts not because it is not law but because it is "law"and fills within that word in Art. 31(1) (2) (2A) and Art. 31-A(1). [899 C-G]The third section of the Act is however invalid.It adds 44StateActsto the ninth schedule.The Scheduleisbeingusedtogive advance protectionto-legislationwhichisknownorapprehendedtoderogate,fromthe FundamentalRights. Thepower under Art. 368 was notmeanttogiveprotection to State statute-, which offend the Constitution.Theintent here is to silence the courts and nottoamendthe Constitution. [900 A-D]770(xiv) Thetwo impugned Acts namely the PunjabSecurityofLand Tenures Act, 1953 and the Mysore Land ReformsAct,1962 as amended are valid under the Constitution not becausetheyareincluded in Schedule 9 oftheConstitutionbutbecause they are protected by Art. 3 1-A and the Presidentsassent. [902 G-H]PerWanchoo, Bachawat, Ramaswami, Bhargava and Mitter,JJ.(dissenting):Article368 carries the power toamendallpartsof the Constitution including the fundamentalrightsinPart III of the Constitution. An amendment is notlawhttp://JUDIS.NIC.INSUPREME COURT OF INDIA Page 10 of 157 forthepurpose of Art. 13(2) and cannot betestedunderthat Article.SriSankariPrasadSingh Deo v. UnionofIndia,[1952]S.C.R.89 and Sajjan Singh v. State of Rajasthan, [1965]1S.C.R. 933, reaffirmed.PerWanchoo, Bhargava and Mitter, JJ.-(i) TheConstitutionprovides a separatepartheadedAmendment of theConstitution and Art. 368 is the only article in that Part.There can therefore, be no doubt that the power to amend theConstitutionmust be contained in Art. 368.Iftherewasany doubt in the matter it is resolved by the words, namely,"the Constitution shall stand amended in accordance with thetermsofthe bill".These words can onlymeanthatthepoweristheretoamend,theConstitutionafter theprocedure has been followed. [826 A-D](ii) While there is a whole part devoted to the amendment oftheConstitutionthereisnospecificmentionoftheamendment of the Constitution in Art. 248 or in any entry ofList1. It would in the circumstances be moreappropriatetoreadthe power in Art. 368 than in Art. 248readwithitem 97 of List I. [826 H-827 A]Theoriginalintention of the Constitution makerswastogiveresiduarypower to the States.Themerefactthatduringthe passage of the Constitution bytheConstituentAssemblyresiduarypower was finally vested intheUnionwould not therefore mean that it includes the power to amendtheConstitution.Moreover residuary power cannot beusedtochange the fundamental law of theConstitutionbecauseall legislation is under Art. 245 "subject to the provisionsof this Constitution". [827 B, H]Mereaccident of similarity of procedure providedinArt.368tothatprovidedforordinarylegislation cannotobliterate the basic difference between constitutionallawandordinary law.It is the quality and nature of whatisdoneunderArt.368andnotitssimilaritytootherprocedurethat should be stressed.What emerges aftertheprocedure in Art. 368 has been followed is not ordinarylawbut fundamental law. [829 D; 830 C-D](iii) Theprocedureunderthe provisotoArt. IIIcannotapply to a bill to amend the Constitution.IfthePresidentrefused to, give his assent to such a bill-,theproposedamendment falls.In this respect at any ratetheprocedure underArt.368differsfrom,the ordinarylegislative process. [831 B-E](iv) Theword law has been avoided apparently withgreatcarein Art.368. What emerges after the procedure hasbeenfollowed is not an Act but the Constitution standsamended.After that the courts can only see whether the procedureinArt. 368 was followed.If it has been followed there isnoquestion of testing the amendment of the Constitution On theavailof fundamental rights or in any other way asinthecase of ordinary legislation. [832 A-G]771(v)Tosaythat amendment in law onlymeansachangewhich results in improvement would make amendment impossiblefor what is improvement is a matter of opinion. [834 B]Itmaybeopen to doubt whether thepowerofamendmentcontainedinArt.368 goes to theextentofcompletelyabrogating the present Constitution and substituting I it byanentirely new one.But short of that the power toamendincludes the power to add any provision to theConstitutionto alter any provision and substitute any other provision inits place or to delete any provision. [834 F-G]The seventeenth amendment is merely in exercise of the powerof amendment as indicated above and cannot be struck down onhttp://JUDIS.NIC.INSUPREME COURT OF INDIA Page 11 of 157 thegroundthatit goes beyondthepowerconferredbyParliament to amend the Constitution by Art. 368. [834 H](vi) There is no express limitation on power of amendment inArt. 368 and no limitation can or should be implied therein.If the Constitution makers intended certain basic provisionsinthe Constitution, and Part III in particular, to benotamendablethereis no reason why it was not sostatedinArt. 3 68.The acceptance of the principle that them isanimplied bartoamendmentofbasicfeatures of theConstitutionwould lead to the position that anyamendmenttoanyarticlewould be liable tochallengebeforethecourtsonthe ground that it amounted toamendmentofabasicfeature.Constituent power like that in Art 368canonlybesubjecttoexpress limitationssofarasthesubstance of the amendments is concerned. [835 A; 836 D, G](vii) For interpreting Art. 369 it is not permissible toread thespeechesmadeintheConstituent Assembly.Historicalfacts namely what was accepted or whatwasnotaccepted or what was avoided in the Constituent Assembly canbe looked into; but in connection with Art. 368 no helpcanbe got from the historical material available. [838 C]Administrator General, of Bengal v. Prem Lal Mullick, (1895)XXII I.A- 107, Baxter v. Commissioner of Taxation, (1907)4C.I.R. 1087, A. K. Gopalan v. State of Madras [1950]S.C.R.88 and The Automobile Transport (Rajasthan) Ltd. v. State ofRajasthan, [1963] 1 S.C.R. 491, referred to.(viii)Thepreamble to the Constitution cannotprohibitor control in any way or impose any implied restrictionsorlimitations on the power to amend the Constitution containedin Aft. 368. [838 H]In re the Berubari Union and Exchange of Enclaves, [1960]3S.C.R. 250, referred to.(ix) The word law in Art. 13(1) does not include. anylawin the nature of a constitutional.provision for no suchlawremained in view of Art. 395 which provided that "the IndianIndependenceAct,1947 and the GovernmentofIndiaAct,1935, together with all enactments amending or supplementingthelatterAct, but not including the AbolitionofPrivyCouncil Jurisdiction Act, 1949, are hereby repealed. Thereis no reason why if the word law in Art. 13(1) relating topast laws does not include any constitutional provision the-wordlawincl.(2) would take inanamountoftheConstitution for it would be reasonable to read the wordinthe same sense in both the clauses. [839 D-F]Article13 (2) when it talks of the State makinganylaw,refers to the law made under the provisions contained in Ch.1of Part XI of the Constitution beginning withArt.245.It can have no reference to the772Constituentpower of amendment under Art. 368.Foritissomewhatcontradictory that in Art. 368 powershouldhavebeengiventoamend anyprovisionoftheConstitutionwithout any limitations but indirectly that power shouldbelimited by using words of doubtful import in Art. 13(25.[841C]ThepowerconferredbythewordsofArt.368 beingunfettered,inconsistencybetween.thatpowerand theprovisioninArt.13(2) must beavoided. Thereforeinkeeping with the unfettered power in Art. 368 the word lawinArt. 13(2) must be read as meaning law passed undertheordinary legislativepowerandnot a constitutionalamendment. Thewords in Art. 13(2) are notspecificandclear enough to be regarded as an express limitation on Art.368. [842 G-H](x)Merelybecause there was some indirect effect onArt.http://JUDIS.NIC.INSUPREME COURT OF INDIA Page 12 of 157 226itwas not necessary thattheSeventeenthAmendmentshouldhavebeen ratified under the proviso toArt.368.Art. 245 had not also been directly affected by the said Actandnoratification %-as required on thisgroundeither.[843 G-H; 846 C](xi) The laws added to the Ninth Schedule by the SeventeenthAmendment Acthadalreadybeenpassedbythe StateLegislaturesand it was their constitutional infirmity,ifany, which was being cured by the device adopted in Art. 31Breadwith the Ninth Schedule, the amendment beingonlyofthe relevant provisions of Part III which were compendiouslyput in one place in Art. 31B.Parliament could alone doitunder Art.368andtherewasnonecessityfor anyratification under the proviso, for amendment of Part HIisnot entrenched in the proviso. [847 E]In curing the infirmity of the said laws Parliament wasnotencroachingontheexclusive legislativepowersoftheStatesbecauseonly Partiament could cardtheinfirmity.For the same reason the fact that the laws in questionwereState laws did. not makeratificationobligatory.. [847 G]A limited meaning cannot be given to Art, 368 because of thepossibility of abuse of the power.The check is not inthecourtsbut in the people who plect membersofParliament.[848 F]Thepowerofamendment containedinawrittenfederalconstitutionisasafety valve which toalargeextentprovides for stable growth and makes violent revolution moreorlessunnecessary.The fact that inthelastsixteenyears a large number of amendments , could be made andhavebeenmadeis due to the accident that one partyhasbeenreturnedby electors in sufficient strength to beabletocommandSpecial majorities which are required in Art.368,notonly at the Centre but in all the States.But thatisno ground for limiting the clear words of Art. 368. [850C-D, E](xii)Thoughthe period for which Sankari Prasads casehasstoodunchallengedisnot long, theeffectswhichhavefollowedon the passing of State laws on the faith ofthatdecision,are so overwhelming that the decision shouldnotbe disturbed otherwise chaos will follow.This is thefittestpossiblecasein whichtheprincipleofstaredecisis should be applied [851 G]Keshav Mills: Company,LtdVCommissionerof Income-tax,[1965] 2 S.C.R. 908, referred to.(xii)Thedoctrineofprospectiveoverrulingcannot beaccepted in thiscountry.The doctrine accepted hereisthat courts declare law andthat a declaration made byacourt is the law of the land and takes effect773fromthedatethelaw cameintoforce. Itwouldbeundesirableto give up that doctrine and supersede itwiththe doctrine of prospective overruling.[852,D-F]Moreover a law contravening Art. 13(2) is void ab initioasheldbythis Court in Deep Chands case andMahendraLalJainiscase. Inthefaceofthesedecisionsitisimpowible to apply the doctrine of prospective overruling toordinarylaws.If constitutional law is to betreatedasordinarylaw the same principle applies.If however itisnottreatedaslaw under Art. 13(2) thenthereisnonecessity of applyingtheprinciple of prospectiveoverrulingforin that case the amendment underArt.368doesnot have to be tested under Art. 13(2). [852 G-H;853B]Deep Chand v. St ate of Uttar Pradesh, [1959] Supp. 2 S.C.R.8 and Mahendra, Lal Jaini v. State of Uttar Pradesh,[1963]http://JUDIS.NIC.INSUPREME COURT OF INDIA Page 13 of 157 Supp.1 S.C.R. 912, referred to.PerBachawatJ.-(i) Article 368 notonlyprescribestheprocedurebutalso gives the power ofamendment. Itisbecausethe power to amend is given by the article thatbyfollowingitsprocedure the Constitutionstandsamended.Theproviso is enacted on the assumption thattheseveralarticles mentioned in it are amendable; but for theprovisotheywould have been amendable under the main part. Thereis no other provision in the Constitution under whichthesearticles can be amended. [904 D]Articles4, 169, Fifth Schedule Part D andSixthSchedulePara 21 empower the Parliament to make amendments to certainparts of the Constitution by law, and by, expressprovisionsuchlaw is deemed not to be amendment for thepurposeofArt.368.All other provisions of the Constitution canbeamendedbyrecourse to Art. 368 only. Nootherarticleconfers the power of amending the Constitution. [904E-F](ii) Thepower to amend the Constitution cannot be saidtoreside in Art. 248 and List 1, item 97 because ifamendmentcould be made by ordinary legislative process Art. 368 wouldbe meaningless.Under the residual power the Parliament hasnocompetenceto make any law with respect toanymatterenumeratedinLists II and III of the7thSchedule,butunderArt.368evenLists 11 andIIIcanbeamended.Moreover a law passed by residual power is passed byvirtueofArt.245 and must be subject to the provisionsoftheConstitution so thatitcannot derogate from theConstitution or amend it.Such a law would be void. [905 C-P](iii) Article368gives the powerofamendingthisConstitution. This Constitution means every partoftheConstitutionincluding Part ITT and Art. 13(2).ThusArt.13(2)isalsowithin the reachoftheamendingpower.Insteadofcontrolling Art. 368 it is controlledbythatArticle. [906 C-D; H](iv) Thecontention that a constitutionalamendmentunderArt.368is a law within the meaning of Art.13mustberejected.The distinction between the Constitution andlawis so fundamental that the Constitution is not regarded as alaworalegislative act.TheConstitutionmean-,theConstitutionas amended.An amendment madeinconformitywith Art. 368 is a part of the Constitution and islikewisenotlaw.Save as expressly provided in Arts. 4, 169FifthSchedule Part D and Sixth Schedule para 21 no law canamendtheConstitution and a law which purports to makesuchanamendmentisvoid.It is for this reasonthatArt.368avoids all reference to law making by the Parliament.There3 Sup.CI./67-4774are.alsomaterial differences betweentheordinarylawmakingprocedure and the procedure under the Article.[907B-F; 908 D-H]Ifaconstitutional amendment creating anewfundamentalrights and incorporating it in Part III were a law, it wouldnotbe open to the Parliament by a subsequent amendmenttoabrogatethenew fundamental right for suchanamendmentwouldberepugnantto Part 111.Buttheconclusionisabsurd for the body which enacted the right can surelytakeit away by the same process. [909 E]Marburyv.Madison, (1803) 1 Cranch 137 :2L.Ed.60andRiley v. Carter, 88 A.L.R. 1008, referred to.(v)There is no conflict between Arts. 13(2) and 368. Thetwo articles operate in different fields, the former inthefield oflaw,thelatterinthatof constitutionalamendment. [910 B]http://JUDIS.NIC.INSUPREME COURT OF INDIA Page 14 of 157 (vi) Thenon-obstante clause in Art. 35 does not showthatthe article is not amendable.The non-obstante clause is tobe found also in, Arts. 258(1). 364, 369, 370 and 371A. Noonehassuggested that these articles arenotamendable.[910 D](vii) Thewords fundamental used in regard torightsinPart III and the word guaranteed in Art. 32 do notmeanthat the said rights cannot be amended.The constitution isneverat rest; it changes with the progress oftime. Thescaleofvalues in Parts III and IV isnotimmortalandtheseParts being parts of the Constitution are notimmunefrom amendment under Art. 368. [910 F-G]The impugned amendments to be Constitution were made to meetthesituationscreated by decisions of this Courtandtocarryout urgent agrarian reforms.If it is held thattherights,conferred by Part III cannot be abridgedortakenawaybyconstitutional amendments,alltheseamendmentswouldbe invalid.The Constitution makers couldnothaveintendedthat the rights conferred by Part III couldnotbealtered for giving effect to the policy ofPart. IV.Norwas it intended that defects in Part III couldnotbecured or that possible errors in judicial interpretations ofPart III couldnotberectified by constitutionalamendments. [913 D-E](viii)Itcannot be said that the people in exerciseoftheirsovereignpower have placed thefundamentalrightsbeyondthe reach of the amending power.The peopleactingthroughtheConstituent Assembly reservedforthemselvescertainrights and liberties and ordained thattheyshaltnot be curtailed by ordinary legislation.But the people bythe same Constitution also authorised the Parliament to makeamendments to the Constitution.In exercise of the amendingpower the Parliament has ample authority to, abridge or takeaway the fundamental rights under Part III [915 B-C]Merely because of possibility of abuse, the power cannotbedenied. [916 H]Webbv. Outrim, [1907] A.C. 81 and amalgamatedSocietyofEngineers. The Adelaide Steamship Company Limited &Ors.28 C.L.R. 129, referred to.(ix) Themain part of Art. 368 gives the power to amendormake changesintheConstitution. Achangeis notnecessarilyanimprovement.Normally the changeismadewith the object of making an improvement but theexperimentmay fail to achieve the purpose. [916 A]Livermorev.E. G. Waite, 102 Cal. 113-25 L.R.A.312andNational Prohibition case. 253 U.S. 350, referred to. 77 5(x)Thebest exposition of the Constitution is thatwhichit has received from contemporaneous judicial decisionsandenactments. No one in Parliament doubtedthepropositionthatfundamentalrights could be amended, whentheFirstAmendment Actof1951waspassed. The concept ofamendabilitywas upheld in S. Krishnan & Ors. v.StateofMadras [1951] S.C.R. 621 decided in 1951,in SankariPrasaddecided in 1952 and Sajjan Singh decided in 1964. [918 C-D](xi) There is no provision in the Constitution for calling aconventionforitsrevisionorfarsubmissionofanyproposal for amendment to the referendum. [918 G](xii) The impugned amendments affected Arts. 226 and 245onlyindirectly and did not require ratification undertheproviso to Art. 168. [919 D-H]In validatingtheimpugnedlawsParliament was notencroaching on-.the State List.It was only validatingthesaid laws and such constitutional validating was withinitscompetence. [920 C-E]http://JUDIS.NIC.INSUPREME COURT OF INDIA Page 15 of 157 (xiii)The abolition of Zamindari was a necessary reform.Itis the First Constitution Amendment Act thatmadethisreformpossible.,Nolegalargumentcanrestore theoutmodedfeudal Zamindari system.What has been donecannotbe undone.The battle for the put is lost. [921 B-C]If the First Fourth, Sixteenth & Seventeenth Amendments Actsarevoidthey do not legally exist fromtheirinception.Theycannotbe,validfrom1951to1967andinvalidthereafter. Tosay that they were valid in thepastandWill be invalid in the future is to amendthe.Constitution.Sucha naked power of amendment is not given to theJudgesand therefore the doctrine of prospective overrulingcannotbe, adopted. [921 D-E]Itisnotpossibleto saythattheFirstandFourthAmendmentsthough originally valid have now beenvalidatedby acquiescence.If they infringe Art. 13(2) they were voidfrom their inception.If these ammendments are validated byacquiescence the Seventeenth Amendment is equally validated.[921 F; 922 B](xv) Thecontentionthat Dr. Ambedkar did notregardthefundamentalrightsas amendable is notsupportedbythespeeches in the Constituent Assembly. [922 C-D]Per Ramaswami J.(i) In a written Constitution theamendmentof the Constitution is a substantive constituent actwhich,ismadein the exercise of the sovereign powerthroughapredesigned procedure unconnected with ordinary legislation.Theamendingpower in Art. 368 is hencesuigenerisandcannotbecompared to the law making powerofParliamentpursuant to Art. 246 read with Lists II and Ill.It followsthat the expression law in Art. 13(2) cannot beconstruedasincludinganamendment of theConstitutionwhichisachieved byParliamentinexerciseofits sovereignconstituentpower but must mean law made byParliamentinits legislative capacity under Art. 246 read with I ListIandIII of the 7th Schedule.It is also clear on thesameline of reasoning that law in Art. 13(2) cannot be construedsoasto include "law made by Parliament underArts.4,169, 392, 5th Schedule Part 1 and 6th Schedule para 21.Theamending power of Parliament exercised under theseArticlesstands on the same pedestal as the constitutional amend mentmade under Art. 368 so far as Art. 13(2) is concerned.[930H 931 E](ii) ThelanguageofArt. 368 isperfectlygeneralandempowersParliament to amend the Constitutionwithoutanyexception whatsoever.776The use of the word fundamental to describe the rightsinPartIII and the word guaranteed in Art. 32cannotliftthe fundamental rights above the Constitution itself [931 F,H](iii) Itis unreasonable to suggest that what Art.368providesisonlythemechanicsoftheprocedure foramendment and not the power to amend.The significantfactthata separate part has been devoted intheConstitutionfor"amendment of the constitution" and there isonlyoneArticleinthatPart shows that both thepowerandtheprocedure to amend are enacted in Art. 368.Again the words"the Constitution shall stand amended in accordance with thetermsoftheBill" in Art. 368clearlycontemplateandprovide for the power to amend after the requisite procedurehas been followed. [932 C-E](iv) Thepowerofconstitutionalamendmentcannotfallwithin Arts. 246 and 248 read with item 97 of List I becauseit is illogical and a contradiction in terms to say that theamendingpower can be exercised "subject to theprovisionshttp://JUDIS.NIC.INSUPREME COURT OF INDIA Page 16 of 157 of the Constitution" as the power under these articlesmustbe. [933 B](v) There is no room for an implication in theconstructionofArt. 368.IftheConstitution makerswantedcertainbasicfeatures to be unamendable they would havesaidso.[933 G-H]State of West Bengal v. Union of India, [1964] 1 S.C.R.371and In re The Berubari Union and Exchange of Enclaves [1960]3 S.C.R. 250, referred to.Theconceptsofliberty andequalityarechanginganddynamicand hence the notion of permanency orimmutabilitycannotbe attached to any of the fundamentalrights. Theadjustmentbetweenfreedomandcompulsion,betweentherightsof individuals and the social interestandwelfaremustnecessarilybeamatterforchangingneeds andconditions.The proper approach is therefore tolookuponthefundamental rights of the individual as conditionedbysocial responsibility, by the necessities of the society, bythebalancingofinterests and notaspre-ordainedanduntouchable private rights. [934 E-935 C](vi) Itmustnot be forgotten that neither therightsinArt. 31 nor those in Art. 19 are absolute.The purposes forwhich fundamentalrightscanberegulatedwhich arespecified in cls. (2) to (6) could not have been assumedbytheConstitutionmakersto bestaticandincapableofexpansion. Itcannotbe assumedthattheConstitutionmakersintendedtoforge apoliticalstrait-jacketforgenerationstocome.Today at a time whenabsolutesarediscredited,it must not be too readily assumed thattherearebasicfeatures of the Constitution whichshackletheamendingpower and which take precedence overthegeneralwelfareofnationand the need foragrarianandsocialreform. [936 B-937 C](vii) In construing Art. 368 it is essential to rememberthenatureandsubjectmatter ofthatArticleandtointerpret it subjectae materies.The power of amendmentisinpointof quality an adjunct of sovereignty.Itisintruththeexercise of the highest sovereign powerintheState. if the amending power is an adjunct of sovereignty itdoes not admit of any limitations. [937 D](viii)Ifthe fundamental rights are unamendable andifArt. 368 does not include any such power it follows that theamendmentof, say, Art. 31 by insertions of Arts.31Aand31Bcanonlybemade by aviolentrevolution. Itisdoubtfulif the proceedings of a newConstituentAssemblythat may be called will have any legal validity for if the777Constitution provides its own method of amendment, any othermethod will be unconstitutional and void. [490 A-B]GeorgeS.Hawkev.Harvey C. Smith,64L.Ed.871andFeigenspan v.Bodine, 264 Fed. 186, referred to.(ix) It is not permissible in the first place to assume thatin a matter of constitutional amendment there will beabuseofpower and then utilise it as a test for finding outthescope of the amending power.In the last analysis politicalmachineryand artificial limitations will notprotectthepeople from themselves. [941 F-G]State of West Bengal v. Union of India, [1964] 1 S.C.R.371andAmerican Federation of Labour v. American Sash&DoorCo. 335 U.S. 538, referred to.(x)What the impugned Act purports to do is not to make anyand legislation but to protect and validate thelegislativemeasurepassed by different State legislatures. Thiswaswithin the legislative competence of Parliament. [942 F]Leser v. Garnett, 258 U.S. 130, National ProhibitionCases.http://JUDIS.NIC.INSUPREME COURT OF INDIA Page 17 of 157 253U.S.350 and United States v. Sprague, 282U.S.716,referred to.Articles226and 245. were not directlyaffectedbytheimpugnedActand therefore no ratificationbytheStateLegislatures was necessary. [942 D-H; 945 D]A. K.Gopalan v. State of Madras, [1950] S.C.R.88,RamSingh& Ors. v.State of Delhi & Anr., [1951] S.C.R.451,ExpressNewspapers(Pvt.) Ltd. v. Union ofIndia,[1959]S.C.R. 12, Atiabari Tea Co. Ltd. v. State of Assam, [1961] 1S.C.R.809andNareshShridharMirajkarv.State ofMaharashtra [1966] 3 S.C.R. 744, referred to.(xi) EvenontheassumptionthattheimpugnedActisunconstitutionaltheprinciple of staredecisismustbeappliedtothepresentcase and thepleamadebythepetitioners for reconsideration of Sankari Prasads case andSajjan Singhs case must be rejected. [948 D-E]Onthe landings it was not necessary to express anopiniononthe doctrine of prospective overrulingoflegislation.[948 G-H]&ORIGINAL JURISDICTION: Writ Petition No. 153 of 1966. (UnderArticle32 of the Constitution of India for enforcementofthe Fundamental Rights)AndWrit Petition No. 202 of 1966.(Under Article 32 of the Constitution of India forenforce-ment of the Fundamental Rights)AndWrit Petition No. 205 of 1966.(Under Article32oftheConstitutionofIndia forenforcement of the Fundamental Rights)778In Writ Petition No. 153 of 1966.R. V. S.Mani,S. K, Mehta and K. L.Mehta,forthepetitioners.Niren,De, Additional Solicitor-Generalof India,andR. N. Sachthey, for the Respondents.Niren De, Additional Solicitor-General of India,G.Rajagopal,and R. H. Dhebar,for Intervener Ng. 1.S. D.Banerjee,Advocate-General for the StateofWestBengal,B. Sen and P. K. Bose,for Intervener No.2.Lal Narain Sinha, Advocate-General for the State of Bihar,BajrangSaha, M. M. Gajadhar, K. M. K. Nair, D. P. Singh,M.K.Ramamurthi, R. K. Garg, S. C.. AgarwalaandG.D.Gupta, for Intervener No. 3.MohanKumaramangalam.,Advocate-General for theStateofMadras, B.Ramamurthi and A. V. Rangam, for Intervener No.V. D. Mahajan and R. H. Dhebar, for Intervener No., 5.K. L.Mishra,Advocate-General for theStateofUttarPradesh, and O. P. Rana, for Intervener No., 6.V. A.SeyidMuhamad, Advocate-General for theStateofKerala,B.R. L. Iyengar, A. G. Pudissery, forIntervenerNo. 7.Naunit Lal, for Intervener No. 8.K. B. Mehta, for Intervener No. 9.P. RamReddy and T. V. R. Tatachari, forIntervenerNo.10.M. C.Stealvad,B. R. L. Iyengar and R. H.Dhebar,forInter-vener No. 11.R. Thiagarajan, for Intervener No. 12.D. N. Mukherjee, for Interveners Nos. 13 and 19 to 21.http://JUDIS.NIC.INSUPREME COURT OF INDIA Page 18 of 157 E. Udayairatnam, S. S. Dalal and D.D. Sharma, for Inter-veners Nos. 14 and 15.R. K Garg, D.. P. Singh, M. K. Ramamurthi, S. C. Agarwala,G. D. Gupta and K. M. K. Nairfor Intervener No. 16.K.Parasaran and K. R. Chaudhuri, for Intervener No. 17.BasudevPrasad,K.Parasaran andK.R.Chaudhuri,forIntervener No. 18.Basudev-Prasad,K. Rajendra Chaudhuri, K. R. ChaudhuriandS. N. Prasad, for Interveners Nos. 22 to 24.779in Writ Petition No. 202 of 1966.M.K.Nambyar,K. B. Jinaraja Hegde,N.A.,Subramaniam,Bhuvanesh Kumari, O. C. Mathur, J. B. Dadachanji andRavin-der Narain, for the Petitioner.H. R.Gokhale,B. P.. G. K. Achar, K. H. Dhebar,R.N.Sachthey and S. P. Nayyar, for Respondent No. 1.Niren De, Additional Solicitor-General, N. S. Bindra andR. N. Sachthey, for Respondent No. 2.A.K. Sen, F. S. Nariman, M. L. Bhakte, S. I.Thakere,J.B.Dadachanji, O. C. Mathur and Ravinder Narain, for IntervenerNo. 1.N. A.Palkhiwala,F.S. Nariman, M. L.Bhakte,D.M.Popat,0.P.Malhotra, J. B. Dadachanji, O. C.MathurandRavinder Narain, for Intervener No. 2.D. M., Parulekar B. Dutta, J. B.Dadachanji, O. C. Mathurand Ravinder Narain, for Intervener No. 3.In Writ Petition No. 205 of 1966.M. K.Nambyar, K. B. Jinaraja Hegde, N.A.Subramaniam,Bhuvanesh Kumari, O. C. Mathur, J. B. Dadachanji andRavin-der Narain, for the Petitioner.H. R. Gokhale, B. R. G. K. Achar, R. H. Dhebar and S. P.Nayyar, for Respondent No. 1.S. G.Patwardhan,D.M.Parulekar,B.Dutta,S.K.Dhelika,1. B.Dadachanji, O. C. Mathur and RavinderNarain,forthe Intervener.TheJudgmentOf SUBBA RAO, C.J., SHAH, SIKRI,SHELATandVAIDIALINGAM, JJ. was delivered by SUBBA RAO, C.I. Accordingto this Judgment-(i) the power to amend the Constitutionisnotto be found in Art. 368 but in Arts. 245, 246and248readwith Entry 97 of List 1; (ii) the amending powercan.notbe used to abridge or take away the fundamentalrightsguaranteedinPart III of the Constitution;(iii)alawamendingtheConstitution is "Law" within themeaningofArt.13(2)and(iv). the First,FourthandSeventeenthAmendmentsthoughthey abridgedfundamentalrightswerevalid in the past on the basis of earlier decisions ofthisCourtandcontinueto be valid for thefuture. Ontheapplication of the doctrine of "prospective over-ruling", asenunciatedinthe judgment, the decisionwillhaveonlyprospectiveoperation and Parliament will have no powertoabridge or take away Fundamental Rights from the date of thejudgment.TheJudgmentofWANCHOO, BHARGAVAandMITTER,JJ.wasdelivered by WANCHOO, J. According to this Judgment (i) the780powerof amending the Constitution resides in Art. 368andnot in Arts. 245, 246 and 248, read with EntrY 97 of List 1;(ii)there,arenorestrictionsonthepoweriftheprocedurein Art. 368 is followed and all the Parts oftheConstitutionincluding Part III, can be amended,(iii)anamendmentoftheConstitution is not"law"underArt.13(2);and(iv) the doctrine of"prospectiveoverruling"cannot be applied in India.http://JUDIS.NIC.INSUPREME COURT OF INDIA Page 19 of 157 HIDAYATULLAH, J. delivered a separate judgment agreeing withSUBBARAo,CJ. on the following two points: (i)thatthepower to amend the Constitution cannot be used to abridge ortakeaway fundamental rights; and (ii) that a lawamendingthe Constitution is "law" under Art. 13 (2).He agrees WithWANCHOO, J. that the power to amend does not reside in Arts.245 and 248 read wish Entry 97 of List 1.Art.368, according to him, is sui generisandproceduralandtheprocedure when correctly followed, resultsinanamendment.He does not rely on the doctrine of "prospectiveoverruling". Asregardsthe First,FourthandSeventhAmendments, these having long enured and been acquiesced in,hedoes not treat the question of their validityasbeingbeforehim.As regards the Seventeenth Amendment hefindssufficient support for it in the Constitution as amendedbythe First, Fourth and Seventh Amendments and holds thatthenewdefinitionof "estate", introduced bytheAmendment,thoughit is "law" under Art. 13 (2) and is an inroadintofundamentalrights,isbeyond thereachofthecourtsbecause it falls within the word "law" in Arts. 31 (1), (2),2Aand31A(1). He, however, declares section3oftheSeventeenthAmendment Act ultra vires the amendingprocessas an illegitimate exercise of the amending power.[BACHAWATand RAMASWAMI, JJ. deliveredseparatejudgmentsconcurring with WANCHOO, J.]Subbarao, C.J.Thesethreewritpetitionsraise theimportantquestionofthe validityoftheConstitution(Seventeenth Amendment) Act, 1964.WritPetition No. 153 of 1966, is filed by thepetitionersthereinagainsttheState ofPunjabandtheFinancialCommissioner, Punjab.The petitioners are the son, daughterand granddaughters of one Henry Golak Nath, who died on July30,1953.The Financial Commissioner, in revisionagainsttheordermade by the AdditionalCommissioner,JullundurDivision,held by an order dated January 22, 1962thatanareaof 418 standard acres and 9-1/4 units wassurplusinthehandsof the petitioners under the provisionsofthePunjab Security of Land Tenures Act X of 1953, read withs.10-Bthereof.The petitioners, alleging that therelevantprovisions of the said Act where under the said area was781declared surplus were void on the ground that they infringedtheirrights under cls. (f) and (g) of Art. 19 and Art.14ofthe Constitution, filed a writ in this Court underArt.32 of the Constitution for a direction that the Constitution(First Amendment) Act 1951, Constitution (FourthAmendment)Act,1955, Constitution (Seventeenth Amendment) Act,1964,insofarastheyaffected theirfundamentalrightswereunconstitutional and inoperative and for a direction that s.10-Bofthe said Act X of 1953 was voidasviolativeofArts. 14 and 19 (1) (f) and (g) of the Constitution.WritPetitionsNos.202 and 203 of1966werefiledbydifferent petitioners under Art. 32 of the Constitutionforadeclaration that the Mysore Land Reforms Act (Act10of1962) as amended by Act 14 of 1965, which fixed ceilingsonlandholdings and conferred ownership of surpluslandsontenantsinfringed Arts. 14, 19 and 31 oftheConstitutionand, therefore, was unconstitutional and void.The States of Punjab and Mysore, inter alia, contendedthatthe said Acts were saved from attack on the ground that theyinfringedthefundamentalrights ofthepetitionersbyreasonofthe Constitution(SeventeenthAmendment)Act,1964,which, by amending Art. 31-A of the Constitutionandincluding the said two Arts in the 9th Schedule thereto, hadplaced them beyond attack.http://JUDIS.NIC.INSUPREME COURT OF INDIA Page 20 of 157 In Writ Petition No. 153 of 1966, 7 parties intervened. InWritPetitionNo. 202 of 1966 onepartyintervened. Inaddition,inthe first petition, notice was giventotheAdvocatesGeneralofvariousStates. A11thelearnedcounselappearingfor the parties, theAdvocatesGeneralappearingforthe States and the learned counselfortheinterveners have,placedtheir respective viewpointsexhaustively before us.We are indebted to all of themfortheirthoroughpreparationand clearexpositionofthedifficultquestionsof law that were raisedinthesaidpetitions.Atthe outset it would be convenient to placebrieflytherespectivecontentionsunderdifferent heads:(1)TheConstitution is intended to be permanent and, therefore,itcannotbeamendedin a way which wouldinjure,maimordestroy its indestructiblecharacter.(2) The word"amendment"implies such an addition or changewithinthelines oftheoriginalinstrumentaswilleffect animprovement or better carry out the purpose for which it wasframedanditcannot be so construedastoenabletheParliamenttodestroythepermanentcharacterof theConstitution.(3) The fundamental rights are a part ofthebasic structure of the Constitution and, therefore, the saidpower can be exercised only to preserve rather thandestroythe essence of those rights. (4) The limits on the powertoamend are implied in Art. 368, for the782expression "amend"hasalimitedmeaning. The widephraseo-logyusedin the Constitution inotherArticles,such as "repeal" and "re-enact" indicates that art. 368 onlyenables a modification of the Articles within theframeworkoftheConstitutionand a destruction ofthem.(5)Thedebates in the Constituent Assembly, particularly the speechofMr. Jawahar Lal Nehru, the first PA= Minister ofIndia,and the reply of Dr. Ambedkar, who piloted the Bill discloseclearly that it was never the intention of the makers of theConstitution by putting in Art. 368 to enable the Parliamenttorepeal the fundamental rights, thecircumstancesunderwhichthe amendment moved by Mr. H. V. Kamath, oneofthemembers of Constituent Assembly, was withdrawn and Art.368wasfinally adopted, support the contention thatamendmentofPart II, is outside the scope of Art. 368. (6) PartIIIoftheConstitutionis aself-containedCode.anditsprovisionsareelasticenoughtomeetall reasonablerequirements of changing situations. (7) The power toamendissought to be derived from three sources, namely, (i)byimplicationunder Art. 368 itself; The proceduretoamendculminating in the amendment of the Constitution necessarilyimpliesthat power, (ii) the power and ,the limitsofthepowertoamend are implied in the Articlessoughttobeamended, and (iii) Art. 368 only lays down the proceduretoamend, but the power to amend is only the legislativepowerconferred on the Parliament under Arts. 245, 246 and 248ofthe Constitution. (8) The definition of "law" in Art.13(2)of the Constitution includes every branch of law, statutory,constitutional, etc., and therefore, the power to amendinwhicheverbranch it may be classified, if it takes awayorabridgesfundamental rights would be voidthereunder.(9)The impugned amendment detracts from the jurisdiction of theHighCourt under Art. 226 of the Constitution and alsothelegislativepowersof the States andthereforeitfallswithin the scope of the proviso to Art. 368.Thesaid summary, though not exhaustive, broadly givesthevariousnuancesof the contentions raised bythelearnedcounsel,who question the validity of the17thAmendment.http://JUDIS.NIC.INSUPREME COURT OF INDIA Page 21 of 157 Wehavenot noticed the other argumentsofMr.Nambiar,whichare peculiar to the Writ Petition No. 153 of 1966asthosequestions do not arise for decision, in theviewweare taking on the common questions.Onbehalf of the Union and the States the followingpointswerepressed: (1) A Constitutional amendment ismadeinexercise of the sovereign power and not legislative power ofParliamentand,.therefore, it partakesthequalityandcharacter oftheConstitutionitself.(2) The realdistinction is between a rigid and a flexibleConstitution.Thedistinctionis based upon the expresslimitsoftheamending power. (3) The provisions of Art.783368-axeclearand unequivocal and thereisno-scopeforinvokingimpliedlimitations on thatpower:furtherthedoctrineof impliedpower has been rejected by theAmericancourts and jurists. (4) The object of the amending clause inaflexibleConsetitution is to enabletheParliamenttoamendthe Constitution in order to express the will ofthepeopleaccordingto the changing course of eventsandifamendingpoweris restricted by impliedlimitations,theConstitutionitselfmightbedestroyedby revolution.Indeed,itisa safety valve andanalternativeforaviolentchange by revolution. (5) There- are nobasicandnon-basicfeatures of the Constitution; everythingintheConstitution is basic and it can be amended in order to helpthe future growth and progress of the country. (6)Debates.intheConstituentAssembly cannotberelieduponforconstruing Art. 368 of the Constitution and even if-they canbe,thereis nothing in the debates toprove,positivelythatfundamental rights were excluded fromamendment.(7)Most of the amendments are made out of politicalnecessity:theyinvolve, questions, such. as, how to exercisepower,,how to make the lot of the citizens better and the like and,therefore,not being judicial questions, theyareoutsidethecourts jurisdiction. (8) The language of Art.368isclear,categorical, imperative and universal, on theotherhand,thelanguageofArt. 13(2) issuchastoadmitqualifications or limitations and, therefore, the Court mustconstruethemin such a manner as that ArticlecouldnotcontrolArt.368. (9) In order toenforcetheDirectivePrinciplesthe Constitution was amended from timetotimeandthegreat fabric of the Indian Unionhasbeenbuiltsince1950onthe basis that theConstitutioncouldbeamendedand,therefore, any reversal of,thepreviousIdecisions would introduce economic chaos in our countryandthat, therefore, theburdenisvery heavy uponthepetitioners to establish that the fundamental rightscannotbe amended under Art. 368 of the Constitution. (10) Art. 31-Aand the 9th Schedule do not affect the power of theHighCourt under Art. 226 or the legislative power of theStatesthough theareaoftheiroperationislimited and,therefore, they do not fall within the scope of theprovisoto Art. 3 68.The aforesaid contentions only represent a brief summaryofelaborate arguments, advanced by learned counsel.Weshalldealinappropriate context with the otherpointsmootedbefore US.Itwillbe convenient to readthematerialprovisions of theConstitution at. thisstage.Article 13(1)(2) TheState shall not make any lawwhichtakes away or abridges the rightsconferredby this part and any lawmadeincontraventionof this clause shall,toythehttp://JUDIS.NIC.INSUPREME COURT OF INDIA Page 22 of 157 extent of the contravention, be void.784(3) Inthisarticle,unlessthecontextotherwise requires,-(a) "law"includesanyOrdinance,order,bye-law, rule regulation, notification, customor usage having in the territory of Indiatheforce of law.Article 31-A(1),Notwithstanding anythingcontained in article 13, no law providing for,(a) theacquisitionby theStateofanyestateorofanyrightsthereinor theextinguishmentormodification ofanysuchrights,shall be deemed to be void on the groundthatitisinconsistent with, ortakesawayorabridgesanyoftherightsconferred byarticle 14, article 19 or article 31.(2) (a)the expression "estate"shall,inrelationtoany local area,havethesamemeaningasthatexpressionorits-localequivalent has in the existing law relating tolandtenure in force in that areaandshallalso include,(ii)any land held under ryotwari settlement,(iii) anylandheld or let forpurposesofagriculture or for purposesancillarythereto......Article 31-D. Withoutprejudiceto thegeneralityoftheprovisionscontainedinarticle 31-A, none of the Acts and Regulationsspecified in the Ninth Schedule nor any of theprovisions thereof shall be deemed to be void,oreverto have become void, onthegroundthatsuchAct, Regulationorprovisionisinconsistentwith, or takes away orabridgesany of the rights conferred by, any provisionsof thisPart,andnotwithstanding anyjudgmentdecreeororder ofanycourtortribunaltothe contrary, each ofthesaidActsandRegulations shall, subjecttothepowerof any competent Legislature torepealor amend it, continue in force.Inthe Ninth Schedule to the Constitution theMysoreLandReformsAct, 1961, (Mysore Act 10 of 1962) isincludedasitem51 and the Punjab Security of Land TenuresAct,1953(PunjabAct10of1953) is includedasitem54. Thedefinitionof "estate" was amended and theNinthSchedulewasamended by including therein the said two ActsbytheConstitution (Seventeenth Amendment) Act, 1964.785The result of the said amendments is that both the said Actsdealing- withestates,withintheir wide definitionintroduced by the Constitution (Seventeenth Amendment)Act,1964, having been included in the Ninth Schedule, are placedbeyondany attack on the ground that theirprovisionsareinconsistent with or take away or abridge any of therightsconferredbyPart III of the Constitution.Itiscommoncasethat if the Constitution (Seventeenth Amendment)Act,1964, was constitutionally valid, the said Acts could not beimpugned on any of the said grounds.Thequestion of the amendability of the fundamentalrightswasconsideredbythis Court earlierintwodecisions,namely,Sri Sankari Prasad Singh Deo v. Union of IndiaandState of Bihar(1) and in Sajjan Singh v. State ofRajasthanhttp://JUDIS.NIC.INSUPREME COURT OF INDIA Page 23 of 157 (2)In the former the validity of the Constitution (First Amend-ment) Act, 1951, which inserted, inter alia, Arts. 31-Aand31-Bin the Constitution, was questioned. ThatamendmentwasmadeunderArt.368oftheConstitutionby theProvisional Parliament.This Court held that Parliament hadpower to amend Part III of the Constitution.The Court cametothatconclusion on two grounds, namely,(1)theword"law" in Art. 13(2) was one made in exercise oflegislativepowerandnotconstitutionallawmadeinexerciseofconstituentpower; and (ii) there were two articles(Arts.13(2)and368)eachof whichwaswidelyphrasedand,therefore, harmonious construction required that oneshouldbeso read as to be controlled and qualified by theother,andhavingregard to the circumstancesmentionedinthejudgmentArt.13must be read subjecttoArt.368. Acarefulperusal of the judgment indicates thatthewholedecision turned upon an assumption that the expression "law"in Art 13(2) does not include constitutional law and on thatassumptionan attempt was made to harmonise Article 13(2)and 368 of the Constitution.The decision in Sajjan Singhs case(2) was given in the con-textofthe question of the validity oftheConstitution(SeventeenthAmendment) Act, 1964.Two questions aroseinthatcase:(1)WhethertheamendmentActinsofar itpurportedto take away or abridge the rightsconferredbyPart III of the Constitution fell within the prohibitionofArt. 13(2) and (2) Whether Articles 31-A and 31-B soughttomake changes in Arts. 132, 136 or 226 or in any of the listsinthe Seventh Schedule and therefore therequirementsoftheproviso to Article 368 had to be satisfied. BoththeChief Justice and Mudholkar, J. made it clear that the firstcontentionwasnot raised before the Court. Thelearnedcounsel appearingforboththepartiesaccepted thecorrectnessof the decision in Sankari Prasads case(1)inthat(1) [1952] S.C.R. 89,105.(2) [1965] 1 S.C.R. 933, 946, 950, 959, 961, 963.786regard.Yet Gajendragadkar, C.J. speaking for themajority,agreedwith the reasons given in Sankari Prasadscase(1)onthe first question and Hidayatullah andMudholkar,JJ.expressed their dissent from the-said view.But all of themagreed, though for different reasons on the second question.Gajendragadkar,C.J.speakingforhimself,WanchooandRaghubarDayal, JJ. rejected the contention thatArt.368didnotconferpoweron Parliamenttotake.awaythefundamental rights guaranteed by Part III. When a suggestionwasmade that the decision in the aforesaid case shouldbereconsidered and reviewed, the learned Chief Justicethoughheconcededthatinacase-whereadecisionhadasignificantimpact on the fundamental rightsofcitizens,theCourt would be inclined to review its earlierdecisionintheinterestsofthe public good,hedidnotfindconsiderations of substantial and compelling character to dosointhat case.But after: referringtothereasoninggiven in Sankari Prasads case(1) the; learned Chief Justiceobserved"In our opinion , the expression "amendment ofthe,Constitution" plainly andunambiguouslymeansamendment of all the provisions oftheConstitution."Referring,to Art. 13 (2), he restated thesamereasoningfound in, the earlier decision and added that if it wastheintentionof the Constitution-makers tosave,fundamentalhttp://JUDIS.NIC.INSUPREME COURT OF INDIA Page 24 of 157 rights from the amending,process they should have takentheprecaution of making A-. clear provision in that regard.Inshort,the majority, speaking throughGajendragadkar,C.Lagreedthatno case had been made, out forreviewingtheearlier decision and practically accepted the reasonsgivenin the-earlier decision.Hidyatullah J. speakingforhimself, observed"ButImakeit clear thatImustnotbeunderstood to have subscribed to the view thatthe word "law" in Art. 13(2) does notcontrolconstitutional amendments.,Ireserve myopinionon that case for I apprehend thatitdependsonhowwideisthe"law"inthatArticle."Aftergivinghis reasonsfordoubtingthecorrectness of the reasoning given inSankariPrasads case(1), the learned Judgeconcludedthus :"Iwould require stronger reasons thanthosegivenin Sankari Prasads case(1) to makemeacceptthe view that Fundamental Rightswerenot really fundamental but were intended to bewithin the powers of amendment in commonwiththeotherpartsoftheConstitution andwithout the concurrence of the States."(1) [1952] S.C.R. 89.787The. learned Judge continued"The Constitution gives so many assurancesinPartIII that it would be difficult tothinkthattheywere the playthings ofaspecialmajority."Mudholkar, J. was positive that the result of alegislativeactionof a legislature could not be other than "law"and,therefore,itseemedtohimthatthefactthat thelegislationdealt with the amendment of a provision oftheConstitution would not make, its results anytheless a law".Hefurtherpointedout that Art. 368didnotsaythatwhenever Parliament made an amendment to the Constitution itassumedadifferent capacity from thatofaconstituentbody. Healso brought out other defects inthelineofreasoningadoptedin Sankari Prasads case(1). Itwill,therefore,beseen-that the correctness of thedecisioninSankariPrasadscase(1)was notquestionedin SajjanSinghscase(2) Though it was not questioned, three ofthelearnedJudges agreed with the view expressed therein,buttwolearned Judges were inclined to take a differentview.But,as that question was not raised, theminorityagreedwiththeconclusion,arrived at by themajorityonthequestion whether the Seventeenth Amendment Act was,coveredbytheproviso.to Art. 368oftheConstitution. Theconflict between the majority and the minority in SajjansSinghs case(1) falls to be resolved in this case.The saidconflict and, the great importance of the question raised isthejustificationfor-..theConstitutionofthelargerBench., The decision in Sankri Prasads case(1) wasassumedto be correct in subsequent decisions of this Court.See S.Krishnanv. State of Madras(1), The State- of WestBengalv. Anwar AllSarkar(1)andBashesharNath v. TheCommissionerofIncome-tax, Delhi andRajasthan(5). Butnothingturnsupon that fact, as thecorrectnessofthederision was not questioned-. in those cases.A correct appreciation of the scope and the place offunda-mentalrights in our Constitution will give itstherightperspective for solving the problem presented before us, Itshttp://JUDIS.NIC.INSUPREME COURT OF INDIA Page 25 of 157 scopecannot be appreciated unless we have a conspectusofthe Constitution, its objects. and its machinery toachievethoseobject.The objective sought- to be achieved bytheConstitution is declared in sonorous terms. in itspreamblewhich reads"WethepeopleofIndiahaving solemnlyresolved to constitute India into a Sovereign,Democratic, Republic and to secure to allitscitizens justice.liberty.equality. andfraternity-.(1)[1952] S.C.R. 89(3)[1951] S.C.R. 621 at page 652.(2)[1965] 1 S.C.R.933.(4) [1952] S.C.R. 284, 366.(5) [1959] Supp.1 S.C.R. 528,563.788Itcontains in a nutshell, its ideals and itsaspirations.Thepreambleisnota platitude butthe,modeofitsrealisationisworked out in detail intheConstitution.TheConstitution brings into existencedifferentconstitutionalentities, namely, the Union, the StatesandtheUnion Territories.It creates three majorinstrumentsofpower,namely, the Legislature, the ExecutiveandtheJudiciary. It demarcates their jurisdictionminutelyandexpectsthemto exercise their respectivepowerswithoutoverstepping their limits.They should function withinthespheres allotted to them.Some powers overlap and somearesupersededduring emergencies.The mode ofresolutionofconflicts and conditionsforsupersession are alsoprescribed.In short, the scope of the power and the-mannerof its exercise are regulated by law.No authoritycreatedundertheConstitutionis supreme;theConstitutionissupreme; and all the authorities function under thesupremelaw of the land.The rule of law under the Constitution hasaglorious content.It embodies the. modem concept oflawevolved over the centuries.It empowers the Legislatures tomakelaws in respect of matters enumerated in the3Listsannexedto Schedule VII.In Part IV oftheConstitution,the Directive Principles of State Policy are laid down. Itenjoinsit to bring about a social order in whichjustice,social. economicandpolitical-shallinform all theinstitutions of national life.It directs it to work for anegalitariansocietywherethere isnoconcentrationofwealth,wherethereisplenty,wherethereis equalopportunity for all, to education, to work, tolivelihood.andwhere there is social justice.But, havingregardtothepasthistory of our country, it couldnotimplicitlybelieve the representatives of the people, foruncontrolledand unrestricted power might lead to an authoritarian State.It,therefore,preserves the naturalrightsagainsttheStateencroachment and constitutes the higher judiciaryoftheStateasthesentinel of thesaidrightsandthebalancingwheelbetweentherights,subjecttosocialcontrol. Inshort,the fundamentalrights,subjecttosocialcontrol, have been incorporated in the rule oflaw.Thatisbrought about by an interesting process. Intheimplementationof the Directive Principles,ParliamentortheLegislature of a State makes laws in respect ofmatterormatters allotted to it.But the higher Judiciaryteststheirvalidity on certain objective criteria,namely,(i)whethertheappropriate Legislaturehasthelegislativecompetencytomakethe law; (ii)whetherthesaidlawinfringesany of the fundamental rights; (iii) evenifitInfringementthefreedomsunderArt.19,whether theinfringementonlyamounts to "reasonablerestriction"onhttp://JUDIS.NIC.INSUPREME COURT OF INDIA Page 26 of 157 suchrightsin"publicinterest."Bythisprocessofscrutiny, the court maintains the validity of only such lawsas keep a just balance between freedoms and socialcontrol.Theduty of reconciling fundamental rights in Art.19andthe laws of social control is cast upon the courts789and the touchstone or the standard is contained in thesaidtwo expressions.The standard is an elastic one; itvarieswithtime, space and condition.What isreasonableundercertain circumstancesmaynotbesounder differentcircumstances. Theconstitutional philosophyoflawisreflectedinParts-1111 and IV of theConstitution. Theruleof law under the Constitution serves the needs ofthepeople without undulyinfringingtheir rights.Itrecognizes the social reality and tries to adjust itselftoitfrom-time,totime avoidingtheauthoritarianpat@.EKeryinstitution or political party thatfunctionsundertheConstitution must accept it; otherwise it has noplaceunder the Constitution.Now, what are the fundamental rights ? They are embodiedinPart III of the Constitution and they may be classified thus:(i) right to equality, (ii) right to freedom,(iii)rightagainst exploitation, (iv) right to freedom of religion, (v)cultural and educational rights, (vi) right to property, and(vii) right to constitutional remedies.They are the rightsofthe people preserved by our Constitution. "Fundamentalrights" are the modern name for what have been traditionallyknownas "natural rights".As one author puts:"theyaremoral rights which every human being everywhere at all timesought tohavesimybecauseofthefact that incontradistinctionwith ot moral." They aretheprimordialment of human personality. man to chalk out his own lifeinisrational and ry for the developrights which enable ahelikes best.Our Constitution, in addition to the well-knownfundamental rights,alsoincludedtherightsof theminorities, untouchables and other backward communities,insuch rights.After having declaredthe fundamental rights, ourConstitution says that all laws in force in the territory ofIndia immediately before the commencement of theConstitution, insofar as they are inconsistent with the saidrights, are, to the extent of such inconsistency, void.TheConstitutionalsoenjoins the State not tomakeanylawwhichtakes away or abridges the said rightsanddeclaressuch laws, to the extent of such inconsistency, to bevoid.Aswehavestated earlier, the onlylimitationc)nthefreedomenshrinedin Art. 19 of the Constitutionisthatimposed by a valid law rating as a reasonable restriction inthe interests of the public.Itwill,therefore, be seen thatfundamentalrightsaregiven transcendental position under ourConstitutionandarekept beyond the reach of Parliament.At the sametimeParts 1111 and V constituted an integrated scheme formingaself-contained code.The scheme is made so elastic thatall theDirectivePrinciplesofStatePolicy canreasonably be enforced without taking-up.Cl/67-5790away or abridging the fundamental rights.While recognizingtheimmutability of fundamental rights, subjecttosocialcontrol, theConstitutionalitselfprovides for thesuspensionor the modification of fundamental rightsunderspecificcircumstances,forinstance,Art.33empowersParliamenttomodify the rights conferred by PartIIIintheirapplication to the members of the armed forces,Art.http://JUDIS.NIC.INSUPREME COURT OF INDIA Page 27 of 157 34 enables it to impose restrictions on the rights conferredby the said parts while martial law is in force in anarea,Art. 35 confers the power on it to make laws with respect toany of the matters which under clause (3) of Art. 16, Clause(3) of Art. 32, Art. 33 and Art. 34maybe provided for by law.The non-obstante clause withwhichthelast article opens makesit clear thatalltheotherprovisionsof the Constitution are subjecttothisprovision. Article 32 makes the right to move theSupremeCourt, by appropriate proceedings for the enforcement of therights conferred by the said Parts a guaranteed right.Evenduring graveemergenciesArt.358onlysuspends theprovisions of Art. 19; and Art. 359 enables the President byordertodeclaretheright to moveanycourtfortheenforcementof such of the rights conferred by Part IIIasmaybe mentioned in that order to be suspended; that istosay,evenduringemergency, onlyArt.19issuspendedtemporarily and all other rights are untouched exceptthosespecifically suspended by the President.In the Book "Indian Constitution-Corerstone of a Nation"byGranville Austin, the scope origin and the object offunda-mentalrightshave been graphically stated. Thereinthelearned author says :"........the core of the commitmenttothesocial revolution lies in Parts III and IV, intheFundamental Rights and fit theDirectivePrinciplesofState Policy.Thesearetheconscience of the Constitution."Advertingto the necessity forincorporatingfundamentalrightsinaConstitution,thelearned author saysThat a declaration of rights had assumedsuchimportancewasnot surprising; Indiawasalandof communities, ofminorities,racial,religious, linguistic, social and caste. ForIndiato become a state these minoritieshadto agree to be governed both at the centre andintheprovinces byfellowIndian-members,perhaps,ofanother minority-andnotbyamediatorythird power, the British.Onbothpsychologicalandpolitical,rounds.,therefore-,thedemandforwritten rightrightswouldprovidetangible safeguards,against oppression-proved overwhelming.791Motilal Nehru, who presided over the Committee called for bythe Madras Congress resolution, in May, 1928 observed in hisreport :"Itis obvious that our first care shouldbeto have our Fundamental Rights guaranteed in amanner which will not permit theirwithdrawalunderany circumstances ....Anotherreasonwhy great importance attached to a DeclarationofRights-is the unfortunateexistenceofcommunal differences in the country. Certainsafeguards arenecessaryto create andestablish a sense of security among thosewholook uponeachotherwithdistrust andsuspicion. We could dot, bettersecurethefullenjoymentofreligiousand communalrightsto all communities thanbyincludingthem amongthebasicprinciplesof theConstitution."Pandit Jawaharlal Nehru, on April 30, 1947inproposingforthe adoptionoftheInterimhttp://JUDIS.NIC.INSUPREME COURT OF INDIA Page 28 of 157 Report on Fundamental Rights, said thus :"Afundamental right should belookedupon,notfrom the point of view of anyparticulardifficultyofthe moment, butassomethingthatyouwanttomakepermanentin theConstitution. Theothermattershouldbelooked upon-however important it mightbe-notfromthis permanent and fundamental pointofview,butfrom the more temporarypointofview."Pandit Jawaharlal Nehru, who was Prime Minister at that timeand. who must have had an effective voice in the framingofthe Constitution, made this distinction betweenfundamentalrights and other provisions of the Constitution, namely, theformerwerepermanent and the latter wereamendable. OnSeptember 18, 1949 Dr. Ambedkar in speaking on the amendmentproposed by Mr. Kamath to Art. 304 of the Draft Constitutioncorresponding tothepresentArt.368,namely, "Anyprovisionof this Constitution may be amended,whetherbyway of variation, addition or repeal, in the manner providedin this article", said thus"Now,whatisitwe do?WedividethearticlesoftheConstitutionunder threecategories. Thefirst category istheonewhich consistsof-articleswhichcan beamended by Parliament by a bare majority.Thesecondsetof articlesarearticleswhichrequiretwo-thirds majority.IfthefutureParliamentwishestoamendanyparticulararticle which is not mentioned in Part IIIorarticle 304, all that is necessary for them istohave two-thirds majority.Thentheycanamend it."792Therefore,inDr. Ambedkars view thefundamentalrightsweresoimportant that they could not beamendedinthemanner provided by Art. 304 of the Draft Constitution, whichcorresponds to the present Art. 368.We have referred to the speeches of Pandit JawaharlalNehruand Dr. Ambedkar not with a view to interpret the provisionsofArt. 368, which we propose to do on its ownterms,butonlytonotice the transcendental character giventothefundamental rights by two of the important architects of theConstitution.ThisCourt also noticed the paramountcy of thefundamentalrights in many decisions.In A. K. Gopalan v. State of Mad-ras(1) they are described as "paramount, in State of Madrasv. Smt.Champakam Dorairajan(2) as "sacrosanct", inPanditM.S.M. Sharma v. Shri Sri KrishnaSinha(s)as"rightsreservedbythe people, in Smt.Vijam Baiv.StateofUttarPradesh(1)as "inalienableandinviolable",andinothercases as "transcendental".Theminoritiesregardedthemasthe bedrock of their political existenceandthemajorityconsideredthem as a guarantee for theirwayoflife.This, however, does not mean that the problem isoneofmeredialectics. The Constitution hasgivenbyitsschemea place of permanence to thefundamentalfreedoms.Ingiving to themselves the Constitution, thepeoplehavereserved the fundamental freedoms to themselves.Article 13merelyincorporatesthatreservation. ThatArticleishowevernotthe source of theprotectionoffundamentalrights buttheexpressionofthe reservation.Theimportanceattachedtothefundamentalfreedomsissotranscendentalthat a bill enacted by a unanimousvoteofallthe members of both the Houses is ineffective todero-http://JUDIS.NIC.INSUPREME COURT OF INDIA Page 29 of 157 gatefromitsguaranteed exercise.It isnotwhattheParliamentregardsat a given moment as conducivetothepublic benefit, but what Part III declares protected,whichdetermines the ambit of the freedom.The incapacity oftheParliamenttherefore in exercise of its amendingpowertomodify, restrict or impair fundamental freedoms in PartIIIarises from the scheme of the Constitution and the nature ofthe freedoms.Briefly stated, the, Constitution declares certain rights asfundamentallawsinfringingthesaidrightsofsocialcontrol infringing the said power on Parliament and the themin specified circumstances; if the decisions in San Prasadscase(1)andSajjan Singhs case(1) laid downthecorrectlaw,it enables the same Parliament to abrogatethemwithonestroke,providedtheparty inpowersinglyorincombination with other parties commands the neces-(1)[1950] S.C.R. 88 198.(3)[1959] Supp.1 S.C.R. 806.(5)[1952] S.C.P. 89,105.(2)[1951] S.C.R, 525.(4)[1963] 1 S.C.R. 778.(6)[1965] S. C. R. 933.793sarymajority.While articles of lesssignificancewouldrequireconsent of the majority of the States,fundamentalrights can. be dropped without such consent.While a singlefundamentalright cannot be abridged or taken awaybytheentire Parliament unanimously voting to that effect, atwo-thirdsmajoritycando awaywithallthefundamentalrights.The entire super structure built with precision andhighidealsmaycrumbleatonefalsestep. Such aconclusion would attribute unreasonableness to the makers ofthe Constitution, for, in that event they would bespeakingintwo voices.Such an intention cannot beattributedtothe makers of the Constitution unless the provisions oftheConstitution compel us to do so.Withthisbackgroundletusproceedtoconsider theprovisionsofArt.368,vis-a-visArt.13(2)of theConstitution.The first question is whether amendment of theConstitutionunderArt. 368 is "law" within the meaning ofArt.13(2).The marginal note to Art. 368 describes that article asoneprescribingtheprocedure for amendment.Thearticleinterms only prescribes various procedural steps in the matterof amendment: it shall be initiated by the introduction of abillin either House of Parliament; it shall bepassedbythe prescribed majority in both the Houses; it shall then bepresentedtothe President for his assent; anduponsuchassenttheConstitution shall stand amended.Thearticleassumes the power to amend found else and says that it shallbeexercised in the manner laid down therein. Theargumentthatthe completion of the procedural AM culminates intheexerciseof the power to amend may be subtle butdoesnotcarryconviction. Ifthatwastheintentionof theprovisions, nothing prevented the makers of the Constitutionfromstatingthat the Constitution may be amendedinthemanner suggested.Indeed, whenever the Constitutionsoughttoconferaspecial power to amend onanyauthorityitexpressly said so : (See Arts. 4 and 392).Thealternativecontention that the said power shall be implied eitherfromArt.368or from the nature of the articles soughttobeamendedcannot be accepted, for the simple reason thatthedoctrine of neces