822. A distinction arises between the provisions of a Constitution which are described as Constitutional law and provisions of a statute dealing with a statute which is treated to have Constitutional aspects. An example of the latter type is a statute which provides for the judicature. Mr. Seervai rightly said that the two distinct senses of Constitutional law are mixed up in the contention of Mr. Palkhivala. In the first sense, Constitutional law is applicable to a provision of the Constitution, and in the second sense, to a law enacted under the Constitution dealing with certain classes of subject matter. Laws of the second class fluctuate. An amendment of the Constitution becomes a part of the Constitution itself. Mr. Seervail rightly contended that in order to show that law in Article 13(2) includes amendment of the Constitution it is also necessary to show that the expression "laws in force" in Article 13(1) includes Constitution amendment or the Constitution itself It is impossible to accept the submission that the word "law" in Article 13(2) includes the Constitution. The Constitution itself cannot include the Constitution. It is the Constitution which continues the laws in force. Therefore, law in Article 13 is law other than the Constitution and a fortiori it is other than amendment to the Constitution.

823. In non-British territory on the Constitution coming into force the Constitution of Princely States lost its character as Constitutional law in the strict sense. It is in that strict sense that Wanchoo, J. rightly said in Golak Nath case that on our Constitution coming into existence no other Constitutional law survived. Article 393 of our Constitution says that the Constitution may be called the "Constitution of India". The Preamble recites that the People in the Constituent Assembly gave this Constitution meaning thereby the Constitution of India. Therefore, the people gave themselves no other Constitution. All other laws whatever their previous status as strict Constitutional law became subordinate laws subject to the provisions of our Constitution and this position is clear from the language of Article 372.

824. In a broad sense law may include the Constitution and the law enacted by the legislature. There is however a clear demarcation between ordinary law in exercise of legislative power and Constitutional law which is made in exercise of constituent power. Therefore, a power to amend the Constitution is different from the power to amend ordinary law. It was said by Mr. Palkhivala that legislative power is power to make law and constituent power is the power to make or amend Constitutional law and since law in its ordinary sense, includes Constitutional law the legislative power is the genus of which the constituent power is the species. The difference between legislative and constituent power in a flexible or uncontrolled Constitution is conceptual depending upon the subject matter. A Dog Act in England is prima facie made in exercise of legislative power. The Bill of Rights was made in the exercise of constituent power as modifying the existing Constitutional arrangement But this conceptual difference does not produce different legal consequences, since the provisions of a Dog Act inconsistent with the earlier provisions of the Bill of Rights would repeal those provisions pro tanto. In a rigid or controlled Constitution the distinction between legislative power and constituent power is not only conceptual but material and vital in introducing legal consequences. In a controlled Constitution it is not correct to say that legislative power is the genus of which constituent power is the species. The question immediately arises as to what the differentia is which distinguishes that species from other species of the same genus. It would be correct to say that the law making power is the genus of which legislative power and constituent power are the species. The differentia is found in the different procedure prescribed for the exercise of constituent power as distinguished from that prescribed for making ordinary laws. The distinction between legislative power and constituent power is vital in a rigid or controlled Constitution, because it is that distinction which brings in the doctrine that a law ultra vires the Constitution is void, since the Constitution is the touchstone of validity and that no provision of the Constitution can be ultra vires.

825. The legislatures constituted under our Constitution have the power to enact laws on the topics indicated in Lists I to III in the Seventh Schedule or embodied specifically in certain provisions of the Constitution. The power to enact laws carries with it the power to amend or repeal them. But these powers of legislatures do not include any power to amend the Constitution, because it is the Constituent Assembly which enacted the Constitution and the status given by Article 368 to Parliament and the State legislatures, is the status of a Constituent Assembly. The distinction between the power to amend the Constitution and the ordinary power to enact laws is fundamental to all federal Constitution. When Parliament is engaged in the amending process it is not legislating. It is exercising a particular power which is sui generis bestowed upon it by the amending clause in the Constitution. Thus an amendment of the Constitution under Article 368 is constituent law and not law within the meaning of Article 13(2) and law as defined in Article 13(3)(a).

826. The procedure that Bill for amendment of the Constitution has to be introduced in either House of Parliament and passed by both Houses does not alter the status of Parliament to amend the Constitution as a Constituent Assembly and does not assimilate it to that of the Union legislature. At this stage it may be stated that in Shankari Prasad case it was said that law in general sense may include the Constitution and the procedure of amendment is assimilated to ordinary legislative procedure. Assimilation of procedure does not make both the procedure same. Nor are the two separate powers to be lost sight of. The Constituent Assembly which has summoned on 19 December, 1946 to frame a Constitution was also invested after independence with legislative power. It framed the Constitution as the Constituent Assembly. It enacted ordinary laws as legislature. Under Article V of the American Constitution the Congress functions not as a legislature but as a Constituent Assembly. In Australia when a Bill for amendment has to be passed by Commonwealth Parliament and then has to be submitted to the verdict of the electorate the process is not ordinary legislative process of the Commonwealth Parliament. In our Constitution when the amendment falls within the proviso to Article 368 it requires that the amendment must be ratified by at least one half of the State legislatures and the process is radically different from ordinary legislative procedure. The Union legislature acting under Chapter II of Part V has no connection with the State legislatures. Therefore, when amendment is affected under the proviso to Article 368 Parliament does not act as a Union legislature. The feature that in the passage of the bill for amendment of the Constitution the House of Parliament has to adopt the procedure for ordinary legislation has little bearing. If the intention of the framers of the Constitution was to leave to the Union legislature the power to effect amendments of the Constitution it would have been sufficient to insert a provision in Chapter II of Part V in that behalf without enacting a separate part and inserting a provision therein for amendment of the Constitution.

827. Under Clause (e) of Article 368 the Article itself can be amended. Therefore, an amendment of Article 368 providing that provisions in Part III can be amended will be Constitutional. If it was intended by Article 13(2) to exclude Part III altogether from the operation of Article 368 Clause (e) would not have been enacted. The Constituent Assembly thus enacted Article 368 so that the power to amend should not be too rigid nor too flexible. Clause (s) of Article 368 requires an amendment to be ratified by not less than half the number of States. The title of Part XX and the opening words of Article 368 show that a provision is being made for "amendment of this Constitution" which in its ordinary sense means every part of the Constitution. This would include Article 368 itself. There is no limitation imposed upon or deception made to the amendments which can be made. It is not permissible to add to Article 368 words of limitation which are not there.

828. The initiative for an amendment of the Constitution is with Parliament and not with the States. A bill for amendment is to be introduced in either House of Parliament. Again, a bill must be passed by each House by not less than two thirds of the members present and voting, the requisite quorum in each House being a majority of its total membership. In cases coming under the proviso the amendment must be ratified by the legislatures of not less than half the number of States. Ordinary legislative process is very different; A bill initiating a law may be passed by majority of members present and voting at a sitting of each House and at a joint sitting of House, the quorum for the meeting of either House being one tenth of the total members of the House.

829. The legislative procedure is prescribed in Articles 107 to 111 read with Article 100. Article 100 states "save as otherwise provided in the Constitution all questions at any sitting of either House or joint sitting shall be determined by a majority of votes of the members present and voting". Though Article 368 falls into two parts of the Article is one integral whole as is clear from the words "the amendment shall also require to be ratified". The first part of Article 368 requires that a bill must be passed in each House (1) by majority of the total membership of that House and (2) by a majority of not less than two thirds of the members of that House present and voting. These provisions rule out a joint sitting of either House under Article 108 to resolve the disagreement between the two Houses. Again the majority required to pass a bill in each House is not a majority of members of that House present and voting as in Article 100 but a majority of the total membership of each House and a majority of not less than two thirds of the members of that House present and voting. These provisions are not only important safeguards when amending the Constitution, but also distinguishing features of Constituent power as opposed to legislative power. Under the first part of unamended Article 368 when a bill is passed by requisite majority of each House the bill must be presented for the President's assent.

830. Parliament's power to enact laws is not dependent on State legislature, nor can it be frustrated by a majority of State legislatures. The provisions in the proviso to Article 368 for ratification by the legislatures of the State constitute a radical departure from the ordinary legislative process of Parliament, State legislative process of ratification cannot possibly be equated with ordinary legislative process. If the bill is not ratified the bill fails. If it is ratified it is to be presented to the President for his assent. If the President assents the procedure prescribed by Article 368 gomes to an end and the consequence prescribed comes into operation that the Constitution shall stand amended in accordance with the bill. But the result is not law, but a part of the Constitution and no court can pronounce any part of the Constitution to be invalid.

831. The exercise of the power of ratification by the State legislatures is constituent power and not ordinary law making power. It cannot be said that Article 368 confers constituent power under its proviso but not under the main part. If the procedure has been followed the invalidity of an amendment cannot arise.

832. The provisions in Articles 4, 169, paragraph 7(2) of the Fifth Schedule and paragraph 21(2) of the Sixth Schedule were referred to for the purpose of showing that the word "law" is used in those provisions relating to amendments to the Constitution. It is, therefore, said that similar result will follow in the case of all amendments. These four provisions confer on Parliament limited power of amendment. There are two features common to all these provisions. First, they confer on Parliament a power to make a law which inter alia provides for the specific class of amendments. Second, each of these provisions states that "no such law as aforesaid shall be deemed to be an amendment of the Constitution for the purpose of Article 368". The power to amend under any of these four provisions is a specific power for specific amendments and not a legislative power contained in the Legislative List or Residuary Legislative List.

833. The amendment under Article 4 follows a law providing for the formation of new States and alteration of areas, boundaries and names of existing States. It is obligatory on Parliament to make amendment of Schedules 1 and 4 and it is necessary to make amendments which are supplemental, incidental and consequential. In making such a law in so far as it affects the State but not Union territory a special procedure has to be followed.

834. Under Article 169 which provides for the abolition or creation of a State legislative Council Parliament has power to make a necessary law on a resolution being passed by the State Legislative Assembly for such abolition or creation by a majority of the membership of the Assembly and by majority of not less than two thirds of the members present and voting. It Parliament makes such a law that law must make the necessary amendments to the Constitution.

835. Schedules 5 and 6 provide for the administration of the Scheduled and Tribal areas which are governed by Part X and not by Part XI by which the Union and States are governed. The Scheduleds provide a mode of governance of those areas which is radically different from the Government of the States and the Union. Part X of the Constitution unlike Part XI is not "subject to the provisions of this Constitution". Paragraph 7 of Schedule 5 and paragraph 21 of Schedule 6 confer on Parliament a power to amend the schedules by law but no special procedure is prescribed for making such a law.

836. No question relating to those four provisions, however arises in the present case. In Article 368 the word "law" is not based at all. These four provisions for amendment deal with matters in respect of which it was considered desirable not to impose requirements of Article 368, and, therefore, it became necessary expressly to provide that such amendments shall not be deemed to be amendments of the Constitution for the purpose of Article 368. These four provisions indicate the distinction between the constituent power and the legislative power. If the power of amendment was located in the residuary Entry No. 97 in the Union List it would not have been necessary to grant that power of amendment again in these four provisions. These four provisions indicate that the Constitution makers intended to confer on Parliament power to make amendments in the provisions of the Constitution and having provided for a particular procedure to be followed in respect of matters covered by those four provisions it conferred a general power on Parliament to make an amendment to the other Articles after complying with the requirements of Article 368.

837. The majority view in Golak Nath case said that Parliament could call a Constituent Assembly either directly under the residuary power or pass a law under the Residuary Entry to call a Constituent Assembly for amendment of fundamental rights. Of the two views forming the majority one view did not express any opinion as to whether such a Constituent Assembly could take away or abridge fundamental rights but the other view expressed the opinion that such a Constituent Assembly could abridge fundamental rights. The majority view in Golak Nath case was that Parliament is a constituted body and not a constituent body and a constituted body cannot abridge or take away fundamental rights. The majority view indicates that a constituent power was required to amend the fundamental rights.

838. The majority view has totally ignored the aspect that constituent power is located in Article 368, and, therefore, amendment under the Article is not a law within the meaning of Article 13(2). If Parliament is a constituted body as was said by the majority view in Golak Nath case it would be difficult to hold that such a body could bring about a Constituent Assembly. The well-known principle that what cannot be done directly cannot be achieved indirectly will establish the basic infirmity in that majority view. If fundamental rights can be abridged by Parliament calling a Constituent Assembly under the Residuary Entry such Constituent Assembly will be a body different from Parliament and will frame its own rules of business and Article 368 cannot have any application. That will have a strange and startling result.

839. In the scheme of the Constitution containing Article 368 a Constituent Assembly will be called extra Constitutional means and not one under the Constitution. A Constitution can be amended only in accordance with the process laid down in the Constitution. No other method is Constitutionally possible than that indicated in the provision for amendment of the Constitution. Once the Constitution has vested the power to amend in the bodies mentioned therein that is the only body for amending the Constitution. The people who gave the Constitution have expressed how it is to be changed.

840. The distinction between constituent and legislative power is brought out by the feature in a rigid Constitution that the amendment is by a different procedure than that by which ordinary laws may be altered. The amending power is, therefore, said to be a re- creation of the Constituent Assembly every time Parliament amends re-creation in accordance with Article 368.

841. The two decisions in McCawley v. The King 1920 A.C. 691 and The Bribery Commissioner v. Pedrick Ranasinghe 1965 A.C. 172 on which the majority view in Golak Nath case relied to hold that amendment to the Constitution is an ordinary legislative process do not support that conclusion. The difference between flexible or uncontrolled and rigid or controlled Constitutions in regard to amendment is that there may be special methods of amendment in rigid or controlled Constitution. In a rigid Constitution amendment is not by exercise of ordinary legislative power. The power to amend is, therefore, described in a rigid Constitution as constituent power because of the nature of the power. In a flexible Constitution the procedure for amendment is the same as that of making ordinary law. A Constitution being uncontrolled the distinction between legislative and constituent powers gets obliterated because any law repugnant to the Constitution pro tanto repeals a Constitution as was held in McCawley case. Dicey in his Law of the Constitution (10th Ed.) illustrates the view by his opinion that if the Dentists Act said anything contrary to the Bill of Rights which can be described as Constitutional document the Dentists Act would prevail. In a flexible or unwritten Constitution the word Constitutional law is imprecise as it is used in respect of subject matter of law, e.g. a law dealing with the legislature. In a rigid or written Constitution whatever is in the Constitution would be the law of the Constitution.

842. In McCawley case the validity of the appointment of McCawley as a Judge of the Supreme Court of Queensland was challenged as void on the allegation that Section 6 Sub-section (6) of the Industrial Arbitration Act of 1916 was contrary to the provisions of the Constitution of Queensland 1867. The Industrial Arbitration Act of 1916 by Section 6 Sub-section (6) authorised the Governor to appoint any Judge of the Court of Industrial Arbitration to be a Judge of the Supreme Court of Queensland and provided that a Judge so appointed shall have the jurisdiction of both offices and shall hold office as a Judge of the Supreme Court during good behaviour. The sub-section further provided that Judge of the Court of Industrial Arbitration shall hold office for seven years. The Governor in Council by commission reciting Section 6 Sub-section (6) appointed McCawley who was a Judge and the President of the Court of Industrial Arbitration to be a Judge of the Supreme Court during good behaviour. By Sections 15 and 16 of the Constitution of 1867 the period during which Judges of the Supreme Court were to hold office was during good behaviour. The contention was that the appointment of McCawley under the Industrial Arbitration Act 1916 for a limited period of seven years was invalid since the Act was inconsistent with the Constitution Act 1867 and further that the Act of 1916 could not repeal or modify the provisions of the Constitution Act.

843. The Privy Council held that the Legislature of Queensland had power both under the Colonial Laws Validity Act 1865 Section 5 and apart therefrom under Clauses 2 and 22 of the Order-in-Council of 1859, Section 7 of the Act 18 & 19 Vict. c. 54 and Sections 2 and 9 of the Constitution Act of 1867 to authorise the appointment of a Judge of the Supreme Court for a limited period. Section 7 of the Act 18 & 19 Vict. c. 54 intended an order in Council to make provision for the government of the Colony and for the establishment of a legislature. The Order-in-Council 1859 by Clause 2 gave full power to the legislature of the Colony to make further provision in that behalf. The Order-in- Council of 1859 by Clause 22 gave the legislature full power and authority from time to time to make laws altering or repealing all or any of the provisions of this Order in the same manner as any other laws for the good Government of the colony.

844. Section 5 of the Colonial Laws Validity Act gave the legislature full power to alter the Constitution.

845. Section 2 of the Constitution Act of 1867 gave the legislature power to make laws for the peace, welfare and good government of the Colony. Section 9 of the Constitution required a two thirds majority of the legislative Council and Legislative Assembly as a condition precedent of the validity of legislation altering the Constitution of the Legislative Council. Section 6 Sub-section (6) which authorised an appointment as a Judge of the Supreme Court only during the period during which the person appointed was a Judge of the Court of Industrial Arbitration was found to be valid legislation. It was found that the Constitution of Queensland was a flexiable as distinct from rigid Constitution. Power to alter the Constitution by ordinary law was also said to exist both in virtue of the Colonial Laws Validity Act, 1865 Section 5 and independently of that Act in virtue of Clause 22 of the Order in Council 1859 and Sections 2 and 9 of the Constitution Act of 1867.

846. The decision in McCawlay case shows that unless there is a special procedure prescribed for amending any part of the Constitution the Constitution is uncontrolled and can be amended by the manner prescribed for enacting an ordinary law and therefore a subsequent law inconsistent with the Constitution would pro tanto repeal the Constitution. The decision also established that a Constitution largely or generally uncontrolled may contain one or more provisions which prescribe a different procedure for amending the provisions of the Constitution. If this is prescribed the procedure for amendment must be strictly followed.

847. The legislature of Queensland was found to be master of its own household except in so far as its powers were restricted in special cases. No such restriction was established in the case before the Privy Council. The legislature had plenary power there. The legislature was not required to follow any particular procedure or to comply with any specified conditions before it made any law inconsistent with any of the provisions of Constitutional document.

848. The contention of the respondent in McCawley case was that the Constitution of Queensland was controlled and that it could not be altered merely by enacting legislation inconsistent with its Articles but that it could be altered by an Act which in plain and unmistakable intention of the legislature to alter consequently gave effect to that intention by operative provisions. The Judicial Committee thought this Constitution would amount to a Constitution which was neither controlled nor uncontrolled. It was not controlled because the future generation could by a merely formal Act correct it at pleasure. It was said to be not uncontrolled because the framers prescribed to their successors a particular mode by which they are allowed to effect Constitutional changes. Section 22 of the Order in Council conferred power and authority in legislature from time to time to make laws altering or repealing all or any of the provisions of the Order in Council in the same manner as any other laws for the good government of the country. The Constitution Act of 1867 was contended to enact certain fundamental organic provisions of such a nature as to render the Constitution controlled. It was found impossible to point to any document or instruction giving or imposing on the Constitution of Queensland such a quality. The decision in McCawley case related to uncontrolled Constitution which gave the legislature full power to make laws except on one subject and, therefore, a law made by the legislature under such a Constitution could pro tanto conflict with and repeal the Constitution. That is not our Constitution.

849. In Ranasinghe case the validity of the appointment of Bribery Tribunal was challenged. The Supreme Court of Ceylon took the view that the Bribery Tribunal was not appointed by the Judicial Service Commission in accordance with the provisions of Section 55 of the Ceylon Constitution Order in Council. It was, therefore, not lawfully appointed. It was common ground that the appointment of the Bribery Tribunal was not in accordance with Section 55 of the Ceylon Constitution Order in Council, 1946. Section 55 vested in the Judicial Service Commissioner the appointment, dismissal and disciplinary control of Judicial Officers, viz., Judges of lesser rank. The removal of Judges of the Supreme Court could be by the Governor General on an address of the Senate and the House of Representatives.

850. Section 29 of the Ceylon (Constitution) Order in Council provided in Sub-sections (1), (2), (3) and (4) as follows:

29(1) Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island. (2) No such law shall-(a) prohibit or restrict the free exercise of any religion;

(3) Any law made in contravention of Sub-section (2) of this section shall, to the extent of such contravention, be void.

(4) In the exercise of its powers under this section Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in Council in its application to the Island:

Provided that no Bill for the amendment or repeal of any of the provisions of this Order shall be presented for the Royal Assent unless it has endorsed on it a certificate under the hand of the Speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than two-thirds of the whole number of Members of the House (including those not present).

Every certificate of the Speaker under this sub-section shall be conclusive for all purposes and shall not be questioned in any court of law.

851. The Judicial Committee found that there was a conflict between Section 55 of the Ceylon Constitution Order and Section 41 of the Bribery Amendment Act. The Privy Council found that Section 29(4) of the order was attracted but the requirements of Section 29(4) had not been complied with and, therefore, the appointment of the Bribery Tribunal was invalid. The certificate of the Speaker under the proviso to Section 29(4) of the Ceylon Constitution Order was an essential part of the legislative process. There was no such certificate in the case of the legislation under which the appointment of the impugned Tribunal was made. The Judicial Committee said that a legislature has no power to ignore the conditions of law making that are imposed by the regulating instrument. This restriction exists independently of the question whether the legislature is sovereign as the legislature of Ceylon or whether the Constitution is uncontrolled as happened in McCawley case with regard to the Constitution of Queensland.

852. The Judicial Committee said "A Constitution can, indeed, be altered or amended by the legislature, if the regulating instrument so provides and if the terms of those provisions are complied with; and the alteration or amendment may include the change or abolition of these provisions. But the proposition which is not acceptable is that a legislature, once established, has some inherent power derived from the mere fact of its establishment to make a valid law by the resolution of a bare majority which its own constituent instrument has said shall not be valid law unless made by a different type of majority or by a different legislative process".

853. It was contended that just as the legislature of the Colony of Queensland had power by mere majority vote to pass an Act that was inconsistent with the provisions of the existing Constitution of that Colony as to the tenure of Judicial Office so the legislature of Ceylon had no less a power to depart from the requirements of a section such as Section 55 of the Ceylon Constitution, notwithstanding the wording of Sections 18 and 29(4). Section 18 in effect says that a legislation can be passed by a majority of votes subject to the provisions in Section 29(4) of the Constitution. The Judicial Committee said that in McCawley case the legislature had full power to make laws by a majority except upon one subject that was not in question and the legislation was held to be valid because it was treated as pro tanto an alternation of the Constitution which was neither fundamental in the sense of being beyond change nor so constituted as to require any special process to pass a law upon the topic dealt with. The word "fundamental" in the sense of "being beyond change" refers to express limitations as to power or manner and form of change. These words do not mean as Mr. Palkhivala contended that there are fundamental features of the Constitution which cannot be amended.

854. The legislature purported to pass a law which being in conflict with Section 55 of the Order in Council must be treated if it is to be valid, as an implied alteration of the Constitutional provisions about the appointment of judicial officers. Such alterations could only be made by laws which complied with the special legislative procedure laid down in Section 29(4). The provisions in Section 29(4) were found not to confer on the Ceylon legislature the general power to legislature so as to amend the Constitution by ordinary majority resolution which the Queensland legislature was found to have under Section 2 of the Queensland Constitution Act

855. Ranasinghe case shows that Parliament which by its own Act imposed procedural conditions upon the legislative process is no more limited or non-sovereign than a legislature which has such conditions imposed on it by the Constitutional instrument. A Constitutional instrument which places procedural restraints upon the forms of law making places the legislature under a compulsion to obey them. In McCawley case it was said that the Colonial Legislature with plenary powers could treat the Constitutional document which defined its powers as if it were a Dog Act This proposition as a result of Ranasinghe case is narrowed to the extent that where provisions for procedural special majority are laid down in the Constitutional document they cannot be treated as a provision in the Dog Act might be.

856. These decisions indicate the distinction between procedural and substantive limitations on the legislative process. In Ranasinghe case the issue was one of personal liberty in the sense that the respondent claimed the right not to be imprisoned except by a valid law. No question was raised about the right of religion protected by Sections 29(2) and (3) of the Ceylon Constitution. It was also not the respondent's case there that any provision was unamendable. It would be unusual for the Privy Council to say by way of an obiter dictum that a provision was not amendable contrary to the respondent's submission. Though the Privy Council did not use the words "legislative and constituent" in distinguishing ordinary law from law amending the Constitution, the Privy Council in referring to the Ceylon Constitution instrument showed that the familiar distinction is the basis of the judgment.

857. The Privy Council is dealing with Section 29 took note of the special heading under which Section 29 appears in the Constitution. That special heading is "legislative power and procedure". The opening words of Section 29 are that subject to the provisions of this order Parliament shall have powers to make laws. These are similar to the opening words in Article 245 of our Constitution. Section 18 of the Ceylon Constitution prescribes the ordinary legislative procedure for making laws by a bare majority unless otherwise provided for by the Constitution, which is to be found in Section 29(4) of the Ceylon Constitution. Our Constitution in Article 100 makes an identical provision for ordinary legislative procedure. Section 29(2) confers rights of freedom of religion and Section 29(3) states that no laws shall be made prohibiting or restricting such freedom. Part III of our Constitution contains among other fundamental rights, rights to freedom of religion. Section 29(3) expressly makes laws in contravention of Section 29(2) void to the extent of contravention. Article 13(2) of our Constitution expressly makes law which takes away or abridges fundamental rights void to the extent of the contravention. Section 29(4) of the Ceylon Constitution dealing with the amendment of the Constitution does not expressly make void a law amending the Constitution.

858. It follows from McCawley case and Ranasinghe case that a legislature has no power to ignore the conditions of law making imposed upon it which regulate its power to make law. The Ceylon legislature had no general power to legislate so as to amend its general power by ordinary majority resolution such as Queensland legislature was found to have under Section 2 of the Queensland Constitution. Peace, order and good government in Section 29(1) of the Ceylon Constitution is not the same as amendment contemplated in Section 29(4) of the Ceylon Constitution. In Ranasinghe case the Judicial Committee referred to the social compact. The compact is this. The inhabitants of Ceylon accepted the Ceylon Constitution on the footing that the various rights conferred, liabilities imposed and duties prescribed under the law cannot be altered in the ordinary course of legislation by a bare majority. But if all these were to be changed then such a change could only be made under the strongest safeguard of the amending process which in the case of Ceylon was not less than two-third of the absolute membership. These rights are the solemn compact. These valuable rights are conferred on the people. Under ordinary law by ordinary majority they cannot be taken away.

859. The absence of an express provision in Section 29(4) of the Ceylon Constitution that an amendment of the Constitution in contravention of the terms of that sub-section shall be void need not support the conclusion that such an amendment was valid. Section 29(1) of the Ceylon Constitution is expressed to be "subject to the provisions of this Order" and any power under Section 29(4) is expressly subject to the proviso there. The Privy Council held that the opening words of Section 29 introduced into the Constitution of Ceylon the necessarily implied doctrine of ultra vires. The proposition will apply directly to the same opening words of our Article 245. The Privy Council accepted the distinction made in McCawlay case between controlled and uncontrolled Constitutions by emphasising the observation in McCawley case with reference to Section 9 of the Queensland Constitution. The description of Section 29(2) of the Ceylon Constitution as an entrenched provision means that it can be amended but only by special procedure in Section 29(4). That is the meaning of the word "entrenched". This meaning alone is consistent with the clear language of the amending power and also with the decision. Section 29(4) does not limit the sovereignty of the Ceylon legislature because the legislature can always pass the amendment after getting two-thirds majority and the certificate.

860. Counsel for the respondent in Ranasinghe case stated that there was no limitation except the procedure and even that limitation could be removed by amendment complying with Sub-section (4). The Privy Council affirmed that position. There is nothing to prevent by appropriate amendment a deletion of Section 29(4) of the Ceylon Constitution which would then empower Parliament to achieve the power to amend by an ordinary majority. Section 29(1) is not legislative power alone but a composite power when read along with Section 29(4) in the context of the Ceylon Constitution. It includes both legislative and constituent power. Sub-sections (2) and (3) of Section 29 are not the grant of power but limitation on power. Its terms show that limitation is at any rate on the legislative power of enacting laws contrary to Sub-sections (2) and (3) of Section 29. If Section 29(1) is a composite legislative and constituent power and Sub-section (2) and (3) are a restraint on legislative power the constituent power under Sub-section (4) remains unaffected. The sequiter is that Section 29(4) is consistent only with the view that so far as amendment of Sub-sections (2) and (3) is concerned amendment is permited and there is no limitation on constituent power under Section 29(4). The Privy Council took the widest view of the amending power. In fact the narrower view was not argued.