Kesavananda Bharati Sripadagalvaru and Ors Vs. State of Kerala and Anr

CASE NO.:
Writ Petition (civil)  135 of 1970
PETITIONER:
Kesavananda Bharati Sripadagalvaru and Ors
RESPONDENT:
State of Kerala and Anr
DATE OF JUDGMENT: 24/04/1973
BENCH:
S.M. Sikri & A.N. Grover & A.N. Ray & D.G. Palekar & H.R. Khanna & J.M. Shelat & K.K. Mathew & K.S. Hegde & M.H. Beg & P. Jaganmohan Reddy & S.N. Dwivedi & Y.V.Chandrachud
JUDGMENT:
JUDGMENT
W.P.(C)    135   OF   1970    
Appellants: His Holiness Kesavananda Bharati Sripadagalvaru and Ors.
Vs.
Respondent: State of Kerala and Anr.
Decided On: 24.04.1973
Hon'ble Judges:  
S.M. Sikri, C.J., A.N. Grover, A.N. Ray, D.G. Palekar, H.R. Khanna, J.M. Shelat, K.K.
Mathew, K.S. Hegde M.H. Beg, P. Jaganmohan Reddy, S.N. Dwivedi and Y.V.
Chandrachud, JJ.
JUDGMENT
S.M. Sikri, C.J.
1. I propose to divide my judgment into eight parts. Part I will deal with Introduction;
Part II with interpretation of Golakhnath case; Part III with the interpretation of the
original Article 368, as it existed prior to its amendment; Part IV with the validity of the
Constitution (Twenty-fourth Amendment) Act; Part V with the validity of Section 2 of
the Constitution (Twenty-fifth Amendment) Act; Part VI with the validity of Section 3 of
the Constitution (Twenty-fifth Amendment) Act; Part VII with Constitution (Twenty-
ninth Amendment) Act; and Part VIII with conclusions.
PART I-Introduction
2. All the six writ petitions involve common questions as to the validity of the Twenty-
fourth, Twenty-fifth and Twenty-ninth Amendments of the Constitution. I may give a few
facts in Writ petition No. 135 of 1970 to show how the question arises in this petition.
Writ Petition No. 135 of 1970 was filed by the petitioner on March 21, 1970 under
Article 32 of the Constitution for enforcement of his fundamental rights under Articles
25, 26, 14, 19(1)(f) and 31 of the Constitution. He prayed that the provisions of the
Kerala Land Reforms Act, 1963 (Act 1 of 1964) as amended by the Kerala Land Reforms
(Amendment) Act 1969 (Act 35 of 1969) be declared unConstitutional, ultra vires and
void. He further prayed for an appropriate writ or order to issue during the pendency of
the petition. This Court issued rule nisi on March 25, 1970.
3. During the pendency of the writ petition, the Kerala Land Reforms (Amendment) Act
1971 (Kerala Act No. 25 of 1971) was passed which received the assent of the President
on August 7, 1971. The petitioner filed an application for permission to urge additional
grounds and to impugn the Constitutional validity of the Kerala Land Reforms
(Amendment) Act 1971 (Kerala Act No. 25 of 1971).
4. In the meantime, the Supreme Court by its judgment dated April 26, 1971 in
Kunjukutty Sahib v. State of Kerala [1972] S.C.C. 364 (Civil Appeals Nos. 143, 203-242,
274 & 309 of 1971). Judgment dated April 26, 1971 upheld the majority judgment of the
Kerala High Court in V.N. Narayanan Nair v. State of Kerala A.I.R. 1971 Kerala 98
whereby certain, sections of the Act were struck down.
5. The Constitution (Twenty-fifth Amendment) Act came into force on November 5,
1971, the Constitution (Twenty-fifth Amendment) Act came into force on April 20, 1972
and the Constitution (Twenty-ninth Amendment) Act came into force on June 9, 1972.
The effect of the Twenty-ninth Amendment of the Constitution was that it inserted the
following Acts in the Ninth Schedule to the Constitution:
65. The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of
1969).
66. The Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of
1971).
6. The petitioner then moved an application for urging additional grounds and for
amendment of the writ petition in order to challenge the above Constitutional
amendments.
7. The Court allowed the application for urging additional grounds and for amendment of
the writ petition on August 10, 1972 and issued notices to the Advocates-General to
appear before this Court and take such part in the proceedings as they may be advised.
8. When the case was placed before the Constitutional bench, it referred this case to a
larger bench to determine the validity of the impugned Constitutional amendments.
9. Similar orders were passed in the other writ petitions.
10. The larger bench was accordingly constituted. It was then felt that it would be
necessary to decide whether I.C. Golak Nath v. State of Punjab [1967] 2 S.C.R. 762 was
rightly decided or not. However, as I see it, the question whether Golak Nath's [1967] 2
S.C.R. 762 case was rightly decided or not does not matter because the real issue is
different and of much greater importance, the issue being : what is the extent of the
amending power conferred by Article 368 of the Constitution, apart from Article 13(2),
on Parliament ?
11. The respondents claim that Parliament can abrogate fundamental rights such as
freedom of speech and expression, freedom to form associations or unions, and freedom
of religion. They claim that democracy can even be replaced and one-party rule
established. Indeed, short of repeal of the Constitution, any form of Government with no
freedom to the citizens can be set up by Parliament by exercising its powers under Article
368.
12. On the side of the petitioners it is urged that the power of Parliament is much more
limited. The petitioners say that the Constitution gave the Indian citizen freedoms which
were to subsist for ever and the Constitution was drafted to free the nation from any
future tyranny of the representatives of the people. It is this freedom from tyranny which,
according to the petitioners, has been taken away by the impugned Article 31C which has
been inserted by the Twenty-fifth Amendment. If Article 31C is valid, they say, hereafter
Parliament and State Legislatures and not the Constitution, will determine how much
freedom is good for the citizens.
13. These cases raise grave issues. But however grave the issues may be, the answer must
depend on the interpretation of the words in Article 368, read in accordance with the
principles of interpretation which are applied to the interpretation of a Constitution given
by the people to themselves.
14. I must interpret Article 368 in the setting of our Constitution, in the background of
our history and in the light of our aspirations and hopes, and other relevant
circumstances. No other Constitution in the world is like ours. No other Constitution
combines under its wings such diverse peoples, numbering now more than 550 millions,
with different languages and religions and in different stages of economic development,
into one nation, and no other nation is faced with such vast socio-economic problems.
15. I need hardly observe that I am not interpreting an ordinary statute, but a Constitution
which apart from setting up a machinery for government, has a noble and grand vision.
The vision was put in words in the Preamble and carried out in part by conferring
fundamental rights on the people. The vision was directed to be further carried out by the
application of directive principles.
PART II-Interpretation of Golak Nath's Case.
16. Before proceeding with the main task, it is necessary to ask : what was decided in I.C.
Golak Nath v. State of Punjab [1967] 2 S.C.R. 762 ? In order to properly appreciate that
case, it is necessary first to have a look at Sri Sankari Prasad Singh Deo v. Union of India
and State of Bihar [1952] S.C.R. 89 and Sajjan Singh v. State of Rajasthan [1965] 1
S.C.R. 933.
17. The Constitution (First Amendment) Act, 1951, which inserted inter alia Articles 31A
and 31B in the Constitution was the subject matter of decision in Sankari Prasad's [1952]
S.C.R. 89 case. The main arguments relevant to the present case which were advanced in
support of the petition before this Court were summarised by Patanjali Sastri, J. as he
then was, 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 designated body and, therefore, the provisional Parliament was not
competent to exercise that power under Article 379.
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 several particulars during its passage through the
House, the Amendment Act cannot be said to have been passed in
conformity 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).
 X X X
18. As stated in the head note, this Court held:
The provisional Parliament is competent to exercise the power of
amending the Constitution under Article 368. The fact that the said article
refers to the two Houses of the Parliament and the President separately and
not to the Parliament, 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 Article 379 are not confined to such powers as could be
exercised by the provisional Parliament consisting of a single chamber,
but are wide enough to include the power to amend the Constitution
conferred by Article 368.
19. I may mention that Mr. Seervai contends that the conclusion just mentioned was
wrong and that the body that amends the Constitution under Article 368 is not
Parliament.
20. The Court further held:
The view that Article 368 is a complete code in itself in respect of the
procedure provided by it and does not contemplate any amendment of a
Bill for amendment of the Constitution 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 Article 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 Constitutional law, which is made in the exercise of
constituent power. 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 the exercise of
constituent power with the result that Article 13(2) does not affect
amendments made under Article 368.
21. Although the decision in Sankari Prasad's [1952] S.C.R. 89 case was not challenged
in Sajjan Singh's [1965] 1 S.C.R. 933 case, Gajendragadkar, C.J. thought it fit to give
reasons for expressing full concurrence with that decision.
22. The only contention before the Court was that "since it appears that the powers
prescribed by Article 226 are likely to be affected by the intended amendment of the
provisions contained in Part III, the bill introduced for the purpose of making such an
amendment, must attract the proviso, and as the impugned Act has admittedly not gone
through the procedure prescribed by the proviso, it is invalid". According to
Gajendragadkar, C.J. "that raised the question about the construction of the provisions
contained in Article 368 and the relation between the substantive part of Article 368 with
its proviso.
23. The Chief Justice came to the conclusion that "as a matter of construction, there is no
escape from the conclusion that Article 368 provides for the amendment of the provisions
contained in Part III without imposing on Parliament an obligation to adopt the procedure
prescribed by the proviso.
24. The learned Chief Justice thought that the power to amend in the context was a very
wide power and it could not be controlled' by the literal dictionary meaning of the word
"amend". He expressed his agreement with the reasoning of Patanjali Sastri, J. regarding
the applicability of Article 13(2) to Constitution Amendment Acts passed under Article
368. He further held that when Article 368 confers on Parliament the right to amend the
Constitution, it can be exercised over all the provisions of the Constitution. He thought
that "if the Constitution-makers had intended that any future amendment of the
provisions in regard to fundamental rights should be subject to Article 13(2), they would
have taken the precaution of making a clear provision in that behalf.
25. He seemed to be in agreement with the following observations of Kania, C.J. in A.K.
Gopalan v. The State of Madras [1950] S.C.R. 88 at p. 100:
the inclusion of Article 13(1) and (2) in the Constitution appears to be a
matter of abundant caution. Even in their absence if any of the
fundamental rights was infringed by any legislative enactment, the Court
has always the power to declare the enactment, to the extent it transgresses
the limits, invalid.
26. He was of the view that even though the relevant provisions of Part III can be justly
described as the very foundation and the cornerstone of the democratic way of life
ushered in this country by the Constitution, it cannot be said that the fundamental rights
guaranteed to the citizens are eternal and inviolate in the sense that they can never be
abridged or amended.
27. According to him, it was legitimate to assume that the Constitution-makers visualised
that Parliament would be competent to make amendments in these rights so as to meet the
challenge of the problems which may arise in the course of socio-economic progress and
development of the country.
28. Hidayatullah, J., as he then was, agreed with the Chief Justice that the 17th
Amendment was valid even though the procedure laid down in the proviso to Article 368
had not been followed. But he expressed his difficulty in accepting the part of the
reasoning in Sankari Prasad's [1952] S.C.R. 89 case.
29. He observed as follows:
It is true that there is no complete definition of the word "law"' in the
article but it is significant that the definition does not seek to exclude
Constitutional amendments which it would have been easy to indicate in
the definition by adding "but shall not include an amendment of the
Constitution".
30. He further observed:
The meaning of Article 13 thus depends on the sense in which the word
"law" in Article 13(2) is to be understood. If an amendment can be said to
fall within the term "law", the Fundamental Rights become "eternal and
inviolate" to borrow the language of the Japanese Constitution. Article 13
is then on par with Article 5 of the American Federal Constitution in its
immutable prohibition as long as it stands.
31. According to him "Our Preamble is more akin in nature to the American Declaration
of Independence (July 4, 1776) then to the preamble to the Constittuion of the United
States. It does not make any grant of power but it gives a direction and purpose to the
Constitution which is reflected in Parts III and IV. Is it to be imagined that a two-thirds
majority of the two Houses at any time is all that is necessary to alter it without even
consulting the States ? It is not even included in the proviso to Article 368 and it is
difficult to think that as it has not the protection of the proviso it must be within the main
part of Article 368.
32. He further observed:
I would require stronger reason than those given in Sankari Prasad's case
to make me accept the view that Fundamental Rights were not really
fundamental but were intended to be within the powers of amendment in
common with the other parts of the Constitution and without the
concurrence of the States.
33. He held:
What Article 368 does is to lay down the manner of amendment and the
necessary conditions for the effectiveness of the amendment....
The Constitution gives so many assurances in Part III that it would be
difficult to think that they were the play-things of a special majority. To
hold this would mean prima facie that the most solemn parts of our
Constitution stand on the same footing as any other provision and even on
a less firm ground than one on which the articles mentioned in the proviso
stand.
34. Mudholkar, J. although agreeing that the writ petition should be dismissed, raised
various doubts and he said that he was reserving his opinion on the question whether
Sankari Prasad's case was rightly decided. He thought:
The language of Article 368 is plain enough to show that the action of
Parliament in amending the Constitution is a legislative act like one in
exercise of its normal legislative power. The only difference in respect of
an amendment of the Constitution is that the Bill amending the
Constitution has to be passed by a special majority (here I have in mind
only those amedments which do not attract the proviso to Article 368).
The result of a legislative action of a legislature cannot be other than 'law'
and, therefore, it seems to me that the fact that the legislation deals with
the amendment of a provision of the Constitution would not make its
result any the less a 'law'.
35. He observed:
It is true that the Constitution does not directly prohibit the amendment of
Part III. But it would indeed be strange that rights which are considered to
be fundamental and which include one which is guaranteed by the
Constitution (vide Article 32) should be more easily capable of being
abridged or restricted than any of the matters referred to in the proviso to
Article 368 some of which are perhaps less vital than fundamental rights.
It is possible, as suggested by my learned brother, that Article 368 merely
lays down the procedure to be followed for amending the Constitution and
does not confer a power to amend the Constitution which, I think, has to
be ascertained from the provision sought to be amended or other relevant
provisions or the preamble.
36. Later, he observed:
Above all, it formulated a solemn and dignified preamble which appears to
be an epitome of the basic features of the Constitution. Can it not be said
that these are indica of the intention of the Constituent Assembly to give a
permanency to the basic features of the Constitution ?
37. He posed a further question by observing:
It is also a matter for consideration whether making a change in a basic
feature of the Constitution can be regarded merely as an amendment or
would it be, in effect, rewriting a part of the Constitution; and if the latter,
would it be within the purview of Article 368 ?
38. He then stressed the prime importance of the preamble:
The Constitution indicates three modes of amendments and assuming that
the provisions of Article 368 confer power on Parliament to amend the
Constitution, it will still have to be considered whether as long as the
preamble stands unamended, that power can be exercised with respect to
any of the basic features of the Constitution.
To illustrate my point, as long as the words 'sovereign democratic
republic' are there, could the Constitution be amended so as to depart from
the democratic form of Government or its republic character? If that
cannot be done, then, as long as the words "Justice, social, economic and
political etc.," are there could any of the rights enumerated in Articles 14
to 19, 21, 25, 31 and 32 be taken away ? If they cannot, it will be for
consideration whether they can be modified.
It has been said, no doubt, that the preamble is not a part of our
Constitution. But, I think, that if upon a comparison of the preamble with
the broad features of the Constitution it would appear that the preamble is
an epitome of those features or, to put it differently if these features are an
amplification or concretisation of the concepts set out in the preamble it
may have to be considered whether the preamble is not a part of the
Constitution. While considering this question it would be of relevance to
bear in mind that the preamble is not of the common run such as is to be
found in an Act of a legislature. It has the stamp of deep deliberation and
is marked by precision. Would this not suggest that the framers of the
Constitution attached special significance to it?
39. Coming now to Golak Nath's case, the petitioner had challenged the validity of the
Constitution (Seventeenth Amendment) Act, 1964 which included in the Ninth Schedule,
among other acts, the Punjab Security of Land Tenures Act, 1953 (Act 10 of 1953), and
the Mysore Land Reforms Act (Act 10 of 1962) as amended by Act 14 of 1965.
40. It was urged before the Court that Sankari Prasad's [1952] S.C.R. 89 case in which
the validity of the Constitution (First Amendment) Act, 1951 and Sajjan Singh's [1965] 1
S.C.R. 933 case in which the validity of the Constitution (Seventeenth Amendment) Act
was in question had been wrongly decided by this Court.
41. Subba Rao, C.J. speaking for himself and 4 other judges summarised the conclusions
at page 815 as follows:
The aforesaid discussion leads to the following results:
(1) The power of the Parliament to amend the Constitution
is derived from Articles 245, 246 and 248 of the
Constitution and not from Article 368 thereof which only
deals with procedure. Amendment is a legislative process.
(2) Amendment is 'law' within the meaning of Article 13 of
the Constitution and, therefore, if it takes away or abridges
the rights conferred by Part III thereof, it is void.
(3) The Constitution (First Amendment) Act, 1951,
Constitution (Fourth Amendment) Act, 1955, and the
Constitution (Seventeenth Amendment) Act, 1964, abridge
the scope of the fundamental rights. But, on the basis of
earlier decisions of this Court, they were valid.
(4) On the application of the doctrine of 'prospective over-
ruling', as explained by us earlier, our decision will have
only prospective operation and, therefore, the said
amendments will continue to be valid.
(5) We declare that the Parliament will have no power from
the date of this decision to amend any of the provisions of
Part III of the Constitution so as to take away or abridge the
fundamental rights enshrined therein.
(6) As the Constitution (Seventeenth Amendment) Act
holds the field, the validity of the two impugned Acts,
namely, the Punjab Security of Land Tenures Act X of
1953, and the Mysore Land Reforms Act X of 1962, as
amended by Act XIV of 1965, cannot be questioned on the
ground that they offend Articles 13, 14 or 31 of the
Constitution.
42. It must be borne in mind that these conclusions were given in the light of the
Constitution as it stood then i.e. while Article 13(2) subsisted in the Constitution. It was
then not necessary to decide the ambit of Article 368 with respect to the powers of
Parliament to amend Article 13(2) or to amend Article 368 itself. It is these points that
have now to be decided.
43. It may further be observed that the Chief Justice refused to express an opinion on the
contention that, in exercise of the power of amendment, Parliament cannot destroy the
fundamental structure of the Constitution but can only modify the provision thereof
within the framework of the original instrument for its better effectuation.
44. As will be seen later, the first conclusion above, does not survive for discussion any
longer because it is rightly admitted on behalf of the petitioners that the Constitution
(Twenty Fourth Amendment) Act, 1971, in so far as it transfers power to amend the
Constitution from the residuary entry (Entry 97 List 1) or Article 248 of the Constitution
to Article 368, is valid; in other words Article 368 of the Constitution as now amended by
the Twenty Fourth Amendment deals not only with the procedure for amendment but also
confers express power on Parliament to amend the Constitution.
45. I will also not discuss the merits of the second conclusion as the same result follows
in this case even if it be assumed in favour of the respondents that an amendment of the
Constitution is not law within Article 13(2) of the Constitution.
46. Hidayatullah, J. as he then was, came to the following conclusions at page 902:
(i) that the Fundamental Rights are outside the amendatory process if the
amendment seeks to abridge or take away any of the rights;
(ii) that Sankari Prasad's case (and Sajjan Singh's case which followed it)
conceded the power of amendment over Part III of the Constitution on an
erroneous view of Articles 13(2) and 368.
(iii) that the First, Fourth and Seventh Amendments being part of the
Constitution by acquiescence for a long time, cannot now be challenged
and they contain authority for the seventeenth Amendment;
(iv) that this Court having now laid down that Fundamental Rights cannot
be abridged or taken away by the exercise of amendatory process in
Article 368, any further inroad into these rights as they exist today will be
illegal and unConstitutional unless it complies with Part III in general and
Article 13(2) in particular;
(v) that for abridging or taking away Fundamental Rights, a Constituent
body will have to be convoked; and
(vi) that the two impugned Acts, namely, the Punjab Security of Land
Tenures Act, 1,953 (X of 1953) and the Mysore Land Reforms Act, 1961
(X of 1962) as amended by Act XIV of 1965 are valid under the
Constitution not because they are included in Schedule 9 of the
Constitution but because they are protected by Article 31-A, and the
President's assent.
47. I am not giving his reasons for these conclusions here because they will be examined
when dealing with the arguments addressed to us on various points.
48. Wanchoo, J. as he then was, also speaking on behalf of 2 other Judges held that
Sankari Prasad's [1952] S.C.R. 89 case was correctly decided and the majority in Sajjan
Singh's [1965] 1 S.C.R. 933 case was correct in following that decision.
49. Bachawat, J. held:
(1) Article 368 not only prescribes the procedure but also gives the power
of amendment;
(2) Article 368 gives the power of amending each and every provision of
the Constitution and as Article 13(2) is a part of the Constitution it is
within the reach of the amending power;
(3) Article 368 is not controlled by Article 13(2) and the prohibitory
injunction in Article 13(2) is not attracted against the amending power;
(4) Constitutional amendment under Article 368 is not a law within the
meaning of Article 13(2);
(5) The scale of value embodied in Parts III and IV is not immortal. Parts
III and IV being parts of the Constitution are not immune from
amendment under Article 368. Constition-makers could not have intended
that the rights conferred by Part III could not be altered by giving effect to
the policies of Part IV.
(6) The Preamble cannot control the unambiguous language of the articles
of the Constitution.
50. Regarding the amendment of the basic features of the Constitution, he observed:
Counsel said that they could not give an exhaustive catalogue of the basic
features, but sovereignty, the republican form of government, the federal
structure and the fundamental rights were some of the features. The
Seventeenth Amendment has not derogated from the sovereignty, the
republican form of government and the federal structure, and the question
whether they can be touched by amendment does not arise for decision.
For the purposes of these cases, it is sufficient to say that the fundamental
rights are within the reach of the amending power.
51. Ramaswami, J., held:
(1) The amending power under Article 368 is sui generis;
(2) "Law" in Article 13(2) cannot be construed so as to include "Law"
made by Parliament under Articles 4, 169, 392, 5th Schedule Part D and
6th Schedule Para 21.
(3) The expression "fundamental rights" does not lift the fundamental
rights above the Constitution itself;
(4) Both the power to amend and the procedure to amend are enacted in
Article 368.
(5) There were no implied limitations on the amending power and all
articles of the Constitution were amendable either under the proviso of
Article 368 or under the main part of the article.
(6) The Federal structure is not an essential part of our Constitution.
(7) The power of amendment is in point of quality an adjunct of
sovereignty. If so, it does not admit of any limitations.
52. In brief 6 Judges held that in view of Article 13(2) Fundamental Rights could not be
abridged or taken away. Five Judges held that Article 13(2) was inapplicable to Acts
amending the Constitution.
PART III-Interpretation of Article 368
53. Let me now proceed to interpret Article 368. Article 368, as originally enacted, read
as follows:
An amendment of this Constitution may be initiated only by the
introduction of a Bill for the purpose in either House of Parliament, and
when the Bill is passed in each House by a majority of the total
membership of that House and by a majority of not less than two-thirds of
the members of that House present and voting, it shall be presented to the
President for his assent and upon such assent being given to the Bill, the
Constitution shall stand amended in accordance with the terms of the Bill:
Provided that if such amendment seeks to make any change in-
(a) Article 54, Article 55, Article 73, Article 162 or Article
241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter
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.
54. It will be noticed that Article 368 is contained in a separate part and the heading is
"Amendment of the Constitution", but the marginal note reads "Procedure for amendment
of the Constitution".
55. The expression "amendment of the Constitution" is not defined or expanded in any
manner, although in other parts of the Constitution, the word "Amend" or "Amendment"
has, as will be pointed out later, been expanded. In some parts they have clearly a narrow
meaning.. The proviso throws some light on the problem. First, it uses the expression "if
such amendment seeks to make any change in"; it does not add the words "change of ", or
omit "in", and say "seeks to change" instead of the expression "seeks to make any change
in".
56. The articles which are included in the proviso may be now considered. Part V,
Chapter I, deals with "the Executive". Article 52, provides that there shall be a President
of India, and Article 53 vests the executive power of the Union in the President and
provides how it shall be exercised. These two articles are not mentioned in the proviso to
Article 368 but Articles 54 and 55 are mentioned.
57. Article 54 provides:
54. The President shall be elected by the members of an electoral college
consisting of-
(a) the elected members of both Houses of Parliament; and
(b) the elected members of the Legislative Assemblies of
the States.
58. Article 55 prescribes the manner of election of the President.
59. Why were Articles 52 and 53 not mentioned in the proviso to Article 368 if the
intention was that the States would have a say as to the federal structure of the country?
One of the inferences that can be drawn is that the Constitution-makers never
contemplated, or imagined that Article 52 will be altered and there shall not be a
President of India. In other words they did not contemplate a monarchy being set up in
India or there being no President.
60. Another article which has been included in the proviso to Article 368 is Article 73
which deals with the extent of executive powers of the Union. As far as the Vice-
President is concerned, the States have been given no say whether there shall be a Vice-
President or not; about the method of his election, etc. But what is remarkable is that
when we come to Part VI of the Constitution, which deals with the "States", the only
provision which is mentioned in the proviso to Article 368 is Article 162 which deals
with the extent of executive power of States. The appointment of a Governor, conditions
of service of a Governor, and the Constitution and functions of the Council of Ministers,
and other provisions regarding the Ministers and the conduct of government business are
not mentioned at all in the proviso to Article 368. Another article which is mentioned in
Clause (a) of the proviso to Article 368 is Article 241 which originally dealt with High
Courts for States in Part C of the First Schedule.
61. Chapter IV of Part V of the Constitution which deals with the Union Judiciary, and
Chapter V of Part VI which deals with the High Courts in the State are included in the
proviso to Article 368 but it is extra-ordinary that Chapter VI of Part VI which deals with
subordinate Judiciary is not mentioned in Clause (b). Chapter I of Part XI is included and
this deals with the Legislative Relations between the Union and the States, but Chapter II
of Part XI which deals with Administrative Relations between the Union and the States,
and various other matters in which the States would be interested are not included.
Provisions relating to services under the State and Trade and Commerce are also not
included in the proviso.
62. This analysis of the provisions contained in Clauses (a) and (b) of the proviso to
Article 368 shows that the reason for including certain articles and excluding certain
other from the proviso was not that all articles dealing with the federal structure or the
status of the States had been selected for inclusion in the proviso.
63. Clause (c) of the proviso mentions the Lists in the Seventh Schedule, Clause (d)
mentions the representation of States in Parliament, and Clause (e) the provisions of
Article 368 itself. The provisions of Sub-clauses (c), (d) and (e) can rightly be said to
involve the federal structure and the rights of the States.
64. What again is remarkable is that the fundamental rights are not included in the
proviso at all. Were not the States interested in the fundamental rights of their people ?
The omission may perhaps be understandable because of the express provision of Article
13(2) which provided that States shall not make any law which takes away or abridges
the rights conferred by Part III and any law made in contravention of this clause shall to
the extent of the contravention be void, assuming for the present that Article 13(2)
operates on Constitutional amendments.
65. In construing the expression "amendment of this Constitution I must look at the
whole scheme of the Constitution. It is not right to construe words in vacuum and then
insert the meaning into an article. Lord Greene observed in Bidie v. General Accident,
Fire and Life Assurance Corporation [1948] 2 All E.R. 995, 998:
The first thing one has to do, I venture to think, in construing words in a
section of an Act of Parliament is not to take those words in vacuo, so to
speak, and attribute to them what is sometimes called their natural or
ordinary meaning. Few words in the English language have a natural or
ordinary meaning in the sense that they must be so read that their meaning
is entirely independent of their context. The method of construing statutes
that I prefer is not to take particular words and attribute to them a sort of
prima facie meaning which you may have to displace or modify. It is to
read the statute as a whole and ask oneself the question: "In this state, in
this context, relating to this subject-matter, what is the true meaning of
that word ?
66. I respectfully adopt the reasoning of Lord Greene in construing the expression "the
amendment of the Constitution.
67. Lord Greene is not alone in this approach. In Bourne v. Norwich Crematorium [1967]
2 All E.R. 576, 578 it is observed:
English words derive colour from those which surround them. Sentences
are not mere collections of words to be taken out of the sentence defined
separately by reference to the "dictionary or decided cases, and then put
back again into the sentence with the meaning which you have assigned to
them as separate words, so as to give the sentence or phrase a meaning
which as a sentence or phrase it cannot bear without distortion of the
English language.
68. Holmes, J. in Towne v. Eigner 245 U.S. 418; 425 : 62 L. ed. 372; 376 had the same
thought. He observed:
A word is not crystal, transparent and unchanged; it is the skin of living
thought and may vary greatly in colour and content according to the
circumstances and the time in which it is used.
69. What Holmes J. said is particularly true of the word "Amendment" or "Amend".
70. I may also refer to the observation of Gwyer C.J. and Lord Wright:
A grant of the power in general terms, standing by itself, would no doubt
be construed in the wider sense; but it may be qualified by other express
provisions in the same enactment, by the implications of the context, and
even by the considerations arising out of what appears to be the general
scheme of the Act". (Per Gwyer C.J.-The Central Provinces and Berar Act,
1939 F.C.R. 18 at 42.)
The question, then, is one of construction and in the ultimate resort must
be determined upon tht actual words used, read not in vacuo but as
occurring in a single complex instrument, in which one part may throw
light on another. The Constitution has been described as the federal
compact, and the construction must hold a balance between all its parts".
(Per Lord Wright-James v. Commonwealth of Australia 1936 A.C. 578 at
613).
71. In the Constitution the word "amendment" or "amend" has been used in various
places to mean different things. In some articles, the word "amendment" in the context
has a wide meaning and in another context it has a narrow meaning. In Article 107, which
deals with legislative procedure, Clause (2) provides that "subject to the provisions of
Articles 108 and 109, a Bill shall not be deemed to have been passed by the House of
Parliament unless it has been agreed to by both Houses, either without amendment or
with such amendments only as are agreed to by both Houses." It is quite clear that the
word "amendment" in this article has a narrow meaning. Similarly, in Article 111 of the
Constitution, whereby the President is enabled to send a message requesting the Houses
to consider the desirability of introducing amendments, the "amendments" has a narrow
meaning.
72. The opening of Article 4(1) reads:
4(1) Any law referred to in Article 2 or Article 3 shall contain such
provisions for the amendment of the First Schedule and the Fourth
Schedule as may be necessary to give effect to the provisions of the law....
Here the word "amendment" has a narrower meaning. "Law" under Articles 3 and 4 must
"conform to the democratic pattern envisaged by the Constitution; and the power which
the Parliament may exercise...is not the power to over-ride the Constitutional scheme. No
state can, therefore, be formed, admitted or set up by law under Article 4 by the
Parliament which has no effective legislative, executive and judicial organs". (Per Shah
J.-Mangal Singh v. Union of India [1967] 2 S.C.R. 109 at 112.
(Emphasis supplied)
73. Article 169(2) reads:
Any law referred to in Clause (1) shall contain such provisions for the
amendment of this Constitution as may be necessary to give effect to the
provisions of the law and may also contain such supplemental, incidental
and consequential provisions as Parliament may deem necessary.
Here also the word "amendment" has a narrow meaning.
74. Para 7 of Part D, Fifth Schedule, which deals with amendment of the schedule, reads:
7. Amendment of the Schedule.-(1) Parliament may from time to time by
law amend by way of addition, variation or repeal any of the provisions of
this Schedule and, when the Schedule is so amended, any reference to this
Schedule in this Constitution shall be construed as a reference to such
schedule as so amended.
Here the word "amend" has been expanded by using the expression "by way of addition,
variation or repeal", but even here, it seems to me, the amendments will have to be in line
with the whole Constitution. Similarly, under para 21 of the Sixth Schedule,. which
repeats the phraseology of para 7 of the Fifth Schedule, it seems to me, the amendments
will have to be in line with the Constitution.
75. I may mention that in the case of the amendments which may be made in exercise of
the powers under Article 4, Article 169, para 7 of the Fifth Schedule, and para 21 of the
Sixth Schedule, it has been expressly stated in these provisions that they shall not be
deemed to be amendments of the Constitution for the purposes of Article 368.
76. It is also important to note that the Constituent Assembly which adopted Article 368
on September 17, 1949, had earlier on August 18, 1949, substituted the following section
in place of the old Section 291 in the Government of India Act, 1935:
291. Power of the Governor-General to amend certain provisions of the
Act and orders made thereunder-
(1) The Governor-General may at any time by order make
such amendments as he considers necessary whether by
way of addition, modification or repeal, in the provisions of
this Act or of any order made thereunder in relation to any
Provincial Legislature with respect to any of the following
matters, that is to say-
(a) the composition of the Chamber or
Chambers of the Legislature;
(b) the delimitation of territorial
constituencies for the purpose of elections
under this Act.
* * * * *
Here, the word "amendment" has been expanded. It may be that there really is no
expansion because every amendment may involve addition, variation or repeal of part of
a provision.
77. According to Mr. Seervai, the power of amendment given by Article 4, read with
Articles 2 and 3, Article 169, Fifth Schedule and Sixth Schedule, is a limited power
limited to certain provisions of the Constitution, while the power under Article 368 is not
limited. It is true every provision is prima facie amendable under Article 368 but this
does not solve the problem before us.
78. I may mention that an attempt was made to expand the word "amend" in Article 368
by proposing an amendment that "by way of variation, addition, or repeal" be added but
the amendment was rejected.
79. Again, in Article 196(2), the word "amendment" has been used in a limited sense.
Article 196(2) reads:
196(2). Subject to the provisions of Articles 197 and 198, a Bill shall not
be deemed to have been passed by the Houses of the Legislature of a State
having a Legislative Council unless it has been agreed to by both Houses,
either without amendment or with such amendments only as are agreed to
by both Houses.
80. Similar meaning may be given to the word "amendment" in Article 197(2), which
reads:
197(2). If after a Bill has been so passed for the second time by the
Legislative Assembly and transmitted to the Legislative Council-
(a) the Bill is rejected by the Council; or
(b) more than one month elapses from the date on which
the Bill is laid before the Council without the Bill being
passed by it; or
(c) the Bill is passed by the Council with amendments to
which the Legislative Assembly does not agree,
(c) the Bill is passed by the Legislative Assembly does not
agree, the Bill shall be deemed to have been passed by the
Houses of the Legislature of the State in the form in which
it was passed by the Legislative Assembly for the second
time with such amendments, if any, as have been made or
suggested by the Legislative Council and agreed to by the
Legislative Assembly.
81. Under Article 200 the Governor is enabled to suggest the desirability of introducing
any such amendments as he may recommend in his message. Here again "amendment"
has clearly a limited meaning.
82. In Article 35(b) the words used are:
Any law in force immediately before the commencement of this
Constitution...subject to the terms thereof and to any adaptations and
modifications that may be made therein under Article 372, continue in
force until altered or repealed or amended by Parliament.
83. Here, all the three words are used giving a comprehensive meaning. Reliance is not
placed by the draftsman only on the word "amend".
84. Similar language is used in Article 372 whereby existing laws continue to be in force
until "altered or repealed or amended' by a competent Legislature or other competent
authority.
85. In the original Article 243(2), in conferring power on the President to make
regulations for the peace and good government of the territories in part D of the First
Schedule, it is stated that "any regulation so made may repeal or amend any law made by
Parliament." Here, the two words together give the widest power to make regulations
inconsistent with any law made by Parliament
86. In Article 252 again, the two words are joined together to give a wider power. Clause
(2) of Article 252 reads:
252(2). Any Act so passed by Parliament may be amended or repealed by
an Act of Parliament passed or adopted in like manner but shall not, as
respects any State to which it applies, be amended or repealed by an Act
of the Legislature of that State.
87. In the proviso to Article 254, which deals with the inconsistency between laws made
by Parliament and laws made by the Legislatures of States, it is stated:
Provided that nothing in this clause shall prevent Parliament from enacting
at any time any law with respect to the same matter including a law adding
to, amending, varying or repealing the law so made by the Legislature of
the State;
88. In Article 320(5), "all regulations made under the proviso to Clause (3)" can be
modified "whether by way of repeal or amendment" as both Houses of Parliament or the
House or both Houses of the Legislature of the States may make during the session in
which they are so laid.
89. I have referred to the variation in the language of the various articles dealing with the'
question of amendment or repeal in detail because our Constitution was drafted very
carefully and I must presume that every word was chosen carefully and should have its
proper meaning. I may rely for this principle on the following observations of the United
States Supreme Court in Holmes v. Jennison (10) L. ed. 579; 594 and quoted with
approval in William v. United States (77) L. ed. 1372; 1380:
In expounding the Constitution of the United States, every word must have
its due force, and appropriate meaning: for it is evident from the whole
instrument, that no word was unnecessarily used, or needlessly added....
90. Reference was made to Section 6(2) of the Indian Independence Act, 1947, in which
the last three lines read:
...and the powers of the Legislature of each Dominion include the power
to repeal or amend any such Act, order, rule or regulation in so far as it is
part of the law of the Dominion.
Here, the comprehensive expression "repeal or amend" gives power to have a completely
new Act different from an existing act of Parliament.
91. So, there is no doubt from a perusal of these provisions that different words have been
used to meet different demands. In view of the great variation of the phrases used all
through the Constitution it follows that the word "amendment" must derive its colour
from Article 368 and the rest of the provisions of the Constitution. There is no doubt that
it is not intended that the whole Constitution could be repealed. This much is conceded
by the learned Counsel for the respondents.
92. Therefore, in order to appreciate the real content of the expression "amendment of
this Constitution", in Article 368 I must look at the whole structure of the Constitution.
The Constitution opens with a preamble which reads:
WE THE PEOPLE OF INDIA, having solemnly resolved to constitute
India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure to
all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all;
FRATERNITY assuring the dignity of the individual and the unity of the
Nation;
IN OUR CONSTITUENT ASSEMBLY this Twenty-sixth day of
November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO
OURSELVES THIS CONSTITUTION.
93. This Preamble, and indeed the Constitution, was drafted in the light and direction of
the Objective Resolutions adopted on January 22, 1947, which runs as follows:
(1) THIS CONSTITUENT ASSEMBLY declares its firm and solemn
resolve to proclaim India as an Independent Sovereign Republic and to
draw up for her future governance a Consti-
(2) wherein the territories that now comprise British India, the territories
that now form the Indian States, and such other parts of India as are
outside British India and the States, as well as such other territories as are
willing to be constituted into the Independent Sovereign India, shall be a
Union of them all; and
(3) wherein the said territories, whether with their present boundaries or
with such others as may be determined by the Constituent Assembly and
thereafter according to the law of the Constitution, shall possess and retain
the status of autonomous units, together with residuary powers, and
exercise all powers and functions of government and administration, save
and except such powers and functions as are vested in of assigned to the
Union, or as are inherent or implied in the Union or resulting therefrom;
and
(4) wherein all power and authority of the Sovereign Independent India, its
constituent parts and organs of government, are derived from the people;
and
(5) wherein shall be guaranteed and secured to all people of India justice,
social, economic and political; equality of status, of opportunity, and
before the law; freedom of thought, expression, belief, faith, worship,
vocation, association and action, subject to law and public morality; and
(6) wherein adequate safeguards shall be provided for minorities backward
and tribal areas, and depressed and other backward classes; and
(7) whereby shall be maintained the integrity of the territory of the
Republic and its sovereign rights on land, sea, and air according to justice
and the law of civilized nations, and
(8) this ancient land attains its rightful and honoured place in the world
and makes its full and willing contribution to the promotion of world
peace and the welfare of mankind.
94. While moving the resolution for acceptance of the Objectives Resolution, Pandit
Jawaharlal