The struggle for freedom is largely transferred from the plane of political to that of economic rights. Men become less interested in the abstract fragment of political power an individual can secure than in the use of massed pressure of the groups to which they belong to secure an increasing share of the social product.... So long as there is inequality, it is argued, there cannot be liberty. The historic inevitability of this evolution was seen a century ago by dc Tocqueville. It is interesting to compare this insistence that the democratization of political power mean equality and that its absence would be regarded by the masses as oppression with the argument of Lord Acton that liberty and equality are antitheses. To the latter liberty was essentially an autocratic ideal; democracy destroyed individuality, which was the very pith of liberty, by seeking identity of conditions. The modern emphasis is rather toward the principle that material equality is growing inescapable and that the affirmation of personality must be effective upon an immaterial plane. (see Vol. IX, p. 445).

1530. I may also refer to another passage on page 99 of Grammar of Politics by Harold Laski:

The State, therefore, which seeks to survive must continually transform itself to the demands of men who have an equal claim upon that common welfare which is its ideal purpose to promote.

We are concerned here, not with the defence of anarchy, but with the conditions of its avoidance. Men must learn to subordinate their self- interest to the common welfare. The privileges of some must give way before the rights of all. Indeed, it may be urged that the interest of the few is in fact the attainment of those rights, since in no other environment is stability to be assured.

1531. A modern state has to usher in and deal with large schemes having social and economic content. It has to undertake the challenging task of what has been called social engineering, the essential aim of which is the eradication of the poverty, uplift of the downtrodden, the raising of the standards of the vast mass of people and the narrowing of the gulf between the rich and the poor. As occasions arise quite often when the individual rights clash with the larger interests of the society, the state acquires the power to subordinate the individual rights to the larger interests of society as a step towards social justice. As observed by Roscoe Pound on page 434 of Volume I of Jurisprudence under the heading "Limitations on the Use of Property":

Today the law is imposing social limitations-limitations regarded as involved in social life. It is endeavouring to delimit the individual interest better with respect to social interests and to confine the legal right or liberty or privilege to the bounds of the interest so delimited. To quote the words of Friedmann in Legal Theory:

But modern democracy looks upon the right to property as one

conditioned by social responsibility by the needs of society, by the 'balancing of interests' which looms so large in modern jurisprudence, and not as preordained and untouchable private right. (Fifth Edition, p. 406). 1532. With a view to bring about economic regeneration, the state devises various methods and puts into operation certain socio-economic measures. Some of the methods devised and measures put into operation may impinge upon the property rights of individuals. The courts may sometimes be sceptical about the wisdom behind those methods and measures, but that would be an altogether extraneous consideration in determining the validity of those methods and measures. We need not dilate further upon this aspect because we are only concerned with the impact of the Preamble. In this respect I find that although it gives a prominent place to securing the objective of social, economic and political justice to the citizens, there is nothing in it which gives primacy to claims of individual right to property over the claims of social, economic and political justice. There is, as a matter of fact, no clause or indication in the Preamble which stands in the way of abridgement of right to property for securing social, economic and political justice. Indeed, the dignity of the individual upon which also the Preamble has laid stress, can only be assured by securing the objective of social, economic and political justice. 1533. Reference has been made on behalf of the petitioners to the Nehru Report in order to show that in the pre-independence days, it was one of the objectives of nationalist leaders to have some kind of charter of human rights. This circumstance, in my opinion has not much material bearing on the point of controversy before us. Our Constitution- makers did incorporate in Part III of the Constitution certain-rights and designated them as fundamental rights. In addition to that, the Constitution-makers put in Part IV of the Constitution certain Directive Principles. Although those Directive Principles were not to be enforceable by any court, Article 37 declared that those principles were nevertheless fundamental in the governance of the country and it should be the duty of the State to apply those principles in making laws. The Directive Principles embody a commitment which was imposed by the Constitution-makers on the State to bring about economic and social regeneration of the teeming millions who are steeped in poverty, ignorance and social backwardness. They incorporate a pledge to the coming generations of what the State would strive to usher in. No occasion has arisen for the amendment of the Directive Principles. Attempt have, however, been made from time to time to amend the fundamental rights in Part III. The question with which we are concerned is whether there is power of amendment under Article 368 so as to take away or abridge the fundamental rights. This question would necessarily have to depend upon the language of Article 368 as well as upon the width and scope of the power of amendment under Article 368 and the consideration of the Nehru Report in this context would be not helpful. If the language of Article 368 warrants a wide power of amendment as may include the power to take away or abridge fundamental rights, the said power cannot be held to be non- existent nor can its ambit be restricted by reference to Nehru Report. The extent to which historical material can be called in aid has been laid down in Maxwell on Interpretation of Statutes on page 47-48 as under:

In the interpretation of statutes, the interpreter may call to his aid all those external or historical facts which are necessary for comprehension of the subject-matter, and may also consider whether a statute was intended to alter the law or to leave it exactly where it stood before. But although we can have in mind the circumstances when the Act was passed and the mischief which then existed so far as these are common knowledge...we can only use these matters as an aid to the construction of the words which Parliament has used. We cannot encroach on its legislative function by reading in some limitation which we may think was probably intended but which cannot be inferred from the words of the Act.

The above observations hold equally good when we are construing the provisions of a Constitution. Keeping them in view we can get no material assistance in support of the petitioners contention from the Nehru Report.

1534. Apart from what has been stated above, we find that both before the dawn of independence as well as during the course of debates of the Constituent Assembly stress was laid by the leaders of the nation upon the necessity of bringing about economic regeneration and thus ensuring social and economic justice. The Congress Resolution of 1929 on social and economic changes stated that "the great poverty and misery of the Indian people are due, not only to foreign exploitation in India but also to the economic structure of society, which the alien rulers support so that their exploitation may continue. In order therefore to remove this poverty and misery and to ameliorate the condition of the Indian masses, it is essential to make revolutionary changes in the present economic and social structure of society and to remove the gross inequalities". The resolution passed by the Congress in 1931 recited that in order to end the exploitation of the masses, political freedom must include real economic freedom of the starving millions. The Objectives Resolution which was moved by Pt. Nehru in the Constituent Assembly on December 13, 1946 and was subsequently passed by the Constituent Assembly mentioned that there would be guaranteed to all the 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". It would, therefore, appear that even in the Objectives Resolution the first position was given to justice, social, economic and political. Pt. Nehru in the course of one of his speeches, said:

The service of India means the service of the millions who suffer. It means the ending of poverty and ignorance and disease and inequality of opportunity. The ambition of the greatest man of our generation has been to wipe every tear from every eye. That may be beyond us, but as long as there are tears and suffering, so long our work will not be over. Granville Austin in his book "Extracts from the Indian Constitution : Cornerstone of a Nation" after quoting the above words of Pt. Nehru has stated:

Two revolutions, the national and the social, had been running parallel in India since the end of the First World War. With independence, the national revolution would be completed, but the social revolution must go on. Freedom was not an end in itself, only 'a means to an end', Nehru had said, 'that end being the raising of the people...to higher levels and hence the general advancement of humanity'.

The first task of this Assembly (Nehru told the members) is to free India through a new Constitution, to feed the starving people, and to clothe the naked masses, and to give every Indian the fullest opportunity to develop himself according to his capacity.

K. Santhanam, a prominent southern member of the Assembly and editor of a major newspaper, described the situation in terms of three revolutions. The political revolution would end, he wrote, with independence. The social revolution meant 'to get (India) out of the medievalism based on birth, religion, custom, and community and reconstruct her social structure on modern foundations of law, individual merit, and secular education'. The third revolution was an economic one : The transition from primitive rural economy to scientific and planned agriculture and industry'. Radhakrishnan (now President of India) believed India must have a 'socio- economic revolution' designed not only to bring about 'the real satisfaction of the fundamental needs of the common man', but to go much deeper and bring about 'a fundamental change in the structure of Indian society'. On the achievement of this great social change depended India's survival. 'If we cannot solve this problem soon, 'Nehru warned the Assembly, 'all our paper Constitutions will become useless and purposeless.... * * * * *

'The choice for India, 'wrote Santhanam,'...is between rapid evolution and violent revolution...because the Indian masses cannot and will not wait for a long time to obtain the satisfaction of their minimum needs.' * * * * *

What was of greatest importance to most Assembly members, however, was not that socialism be embodied in the Constitution, but that a democratic Constitution and with a socialist bias be framed so as to allow the nation in the future to become as socialist as its citizens desired or its needs demanded. Being, in general, imbued with the goals, the

humanitarian bases, and some of the techniques of social democratic thought, such was the type of Constitution that Constituent Assembly members created.

1535. Dealing with the Directive Principles, Granville Austin writes: In the Directive Principles, however, one finds an even clearer statement of the social revolution. They aim at making the Indian masses free in the positive sense, free from the passivity engendered by centuries of coercion by society and by nature, free from the abject physical conditions that had prevented them from fulfilling their best selves.

* * * * *

By establishing these positive obligations of the state, the members of the Constituent Assembly made it the responsibility of future Indian governments to find a middle way between individual liberty and the public good, between preserving the property and the privilege of the few and bestowing benefits on the many in order to liberate 'the powers of all men equally for contributions to the common good'.

* * * * *

The Directive Principles were a declaration of economic independence, a declaration that the privilege of the colonial era had ended, that the Indian people (through the democratic institutions of the Constitution) had assumed economic as well as political control of the country, and that Indian capitalists should not inherit the empire of British colonialists. 1536. Pt. Nehru, in the course of his speech in support of the Constitution (First Amendment) Bill, said:

And as I said on the last occasion the real difficulty we have to face is a conflict between the dynamic ideas contained in the Directive Principles of Policy and the static position of certain things that are called 'fundamental' whether they relate to property or whether they relate to something else. Both are important undoubtedly. How are you to get over them ? A Constitution which is unchanging and static, it does not matter how good it is, how perfect it is, is a Constitution that has past its use. 1537. Again in the course of his speech in support of the Constitution (Fourth Amendment) Bill, Pt. Nehru said:

But, I say, that if that is correct, there is an inherent contradiction in the Constitution between the fundamental rights and the Directive Principles of State Policy. Therefore, again, it is up to this Parliament to remove that contradiction and make the fundamental rights subserve the Directive Principles of State Policy.

1538. It cannot, therefore, be said that the stress in the impugned amendments to the Constitution upon changing the economic structure by narrowing the gap between the rich and the poor is a recent phenomenon. On the contrary, the above material shows that this has been the objective of the national leaders since before the dawn of independence, and was one of the underlying reasons for the First and Fourth Amendments of the Constitution. The material further indicates that the approach adopted was that there should be no reluctance to abridge or regulate the fundamental right to property if it was felt necessary to do so for changing the economic structure and to attain the objectives contained in the Directive Principles.

2044. It is also stressed that the second part of Section 3 arms the legislatures with the absolute power of sheltering laws which violate Articles 14, 19 and 31 and have no relation to the principles specified in Article 39(b) and (c).

2045. The second part prohibits any court from inquirying whether the law protected by Article 31C has relevancy to Article 39(b) and (c) if it contains a declaration that it gives effect to the policy specified in that provision. Howsoever shocking it may seem, it is not an innovation. You will find several articles having a close resemblance to it. Article 77(2) provides that the validity of an order or instrument which is authenticated as provided therein 'shall not be called in question on the ground that it is not an order or instrument made or executed by the President'. A similar provision is made in Article 166(2) in relation to the Governor. Article 103(1) provides that if any question arises as to whether a member of either House of Parliament has become subject to any of the qualifications mentioned in Article 102(1), the question shall be decided by the President and 'his decision shall be final.' A similar provision is to be found in Article 192(1) as regards the members of the State Legislature with respect rto the decision of the Governor, Article 311(2) gives a right of licaring to an employee sought to be dismissed or removed or reduced in rank. Clause (b) of the proviso to the article enacts that where the appointing authority'is satisfied that for some reason it is not reasonably practicable to hold such inquiry, the pre-requisite of hearing may be dispensed with. Clause (3) of Article 311 then enacts that if a question arises whether it is reasonably practicable to hold an inquiry, 'the decision thereon of the authority...shall be final'. Article 329(a) enacts that notwithstanding anything in the Constitution the validity of any law relating to the delimitation of constituencies or allotment of seats to such constituencies made or purporting to be made under Article 327 or Article 328 shall not be called in question in any court. Like these articles, the second part of Section 3 excludes judicial review to a limited extent.