1171. The learned Attorney-General further submits, relying again on the decisions of the American Courts that revision and amendment have been held as synonymous terms and that if you give the power to amend the amending power, the amending power will become very wide. It is also his contention, relying on Strong on "Modern Political Constitutions" that the amending provisions re-create the Constituent Assembly, provide some elements to be 'unaltered, and since our Constitution-makers who were aware of this position in the United States have used the same words, they must be intended to use that word as giving the widest power, and since there are no express limitations, no restriction on that power can be read into it by implication. A reference to the provision relating to amendment either in the United States or in the States' Constitutions where people have a vital part in the amending process in my view inapt and inapplicable to the interpretation of our Constitution where the people have been designedly excluded. I say this, because we have been referred to the attempts made in the Constituent Assembly to involve people of this country in the amendment of the Constitution, but such attempts did not succeed. Brajeshwar Prasad had actually proposed an amendment to make the amending provision similar to the one in Australia Constitution and had said, "What is possible in Australia is possible here. If the people in Australia are competent and advanced to adopt this method of amendment, certainly we, who are as competent as the Australians, if not more, are entitled to adopt the same. I do not want to associate the State Legislatures in the process of amending the Consitution." He also said that, "If you want to abolish landlordism, you cannot afford to look for the consent of the landlords, and similarly, if you want to abolish capitalism, you cannot afford to look for the consent of the capitalists". (C.A.D., Vol. IX, p. 1646). This amendment, however, was negatived. (C.A.D., Vol. IX, p. 1665).

1172. A reference was also made in this connection to draft Article 305 as indicating that the word 'amendment' would mean repeal or whittling down. Even assuming that that Article had been incorporated in the Constitution, what does the word `amendment' in that context imply ? First, draft Article 305 starts with the non-obstante clause, "Notwithstanding anything contained in Article 304" (present Article 368), and, secondly, the provisions relating to the reservation of seats for the minorities "shall not be amended during a period of ten years from the commencement of this Constitution and shall cease to have effect on the expiration of that period unless continued in operation by an amendment of the Constitution". This clause instead of throwing any light on the width of the power of amendment shows that it is completely restricted in that nothing can be done to affect that provision for ten years which limitation with the non-obstante clause excludes Article 304 altogether during that period. If after that period it is to be extended that Article can be amended but this does not mean that it can be repealed, for it is only concerned with either extension of the period or change in the terms or conditions under which the reservation would continue to apply.

1173. It was contended that the word 'amendment' in Article 368 must be construed as meaning change for the better, improvement, etc. In Golaknath's case a similar contention was rejected by some of the learned Judges. Subba Rao, C.J., (speaking for 5 Judges) did not express any view though he said that the argument that Parliament cannot destroy the structure of the Constitution but it can modify the provisions thereof within the framework of the original instrument for its better effectuation, has considerable force, but they were relieved of the necessity to express their opinion as the question raised can be answered on a narrower basis. He observed that : "This question may arise for consideration only if Parliament seeks to destroy the structure of the Constitution embodied in the provisions other than in Part III of the Constitution. We do not, therefore, propose to express our opinion in that regard" (pp. 804-805). 1174. Hidayatullah, J., at p. 862 said:

I do not take the narrow view of the word 'amendment' as including only minor changes within the general framework. By an amendment new matter may be added, old matter removed or altered.

Wanchoo, J., (speaking for himself and two other Judges), observed at p. 834: To say that 'amendment' in law only means a change which results in improvement would make amendments impossible, for what is

improvement of an existing law is a matter of opinion and what, for example, the legislature may consider an improvement may not be so considered by others. It is, therefore, in our opinion impossible to introduce in the concept of amendment as used in Article 368 any idea of improvement as to details of the Constitution. The word 'amendment' used in Article 368 must, therefore, be given its full meaning as used in law and that means that by amendment an existing Constitution or law can be changed, and this change can take the form either of addition to the existing provisions, or alteration of existing provisions and their substitution by others or deletion of certain provisions altogether. 1175. After noting that the word "amend" in the VI Schedule, paragraph 21, where it was preceded by words "by way of addition, variance or repeal" and more or less similar expressions in other Articles of the Constitution, he observed, "it is very difficult to say why this was done. But the fact that no such words appear in Article 368 does not in our mind make any difference, for the meaning of the word 'amendment' in a law is clearly as indicated above by us and the presence or absence of explanatory words of the nature indicated above do not in our opinion, make any difference". Bachawat J., at pp. 915-916, says:

Article 368 indicates that the term 'amend' means 'change'. The proviso is expressed to apply to amendments which seek to make any 'change' in certain articles. The main part of Article 368 thus gives the power to amend or to make changes in the Constitution. A change is not necessarily an improvement Normally the change is made with the object of making an improvement, but the experiment may fail to achieve the purpose. Even the plain dictionary meaning of the word 'amend' does not support the contention that an amendment must take an improvement, see Oxford English Dictionary, where the word 'amend' is defined thus : "4. To make professed improvements (in a measure before Parliament) formally to alter in detail though practically it may be to alter its principle so as to thwart it". The 1st, 4th, 16th and 17th Amendment Acts made changes in Part III of the Constitution. All the changes are authorised by Article 368". Ramaswami, J., has not specifically dealt with the meaning of the word 'amendment'. 1176. It is obvious from these observations that the attempt to restrict the meaning of the word 'amendment' to 'improvement' has been rejected by five of the learned Judges in Golaknath's case.

1177. The learned Attorney-General, however, in the written summary of his arguments, said "The majority of the learned Judges in Golaknath's case rejected the arguments that the expression amendment of of a Constitution has a narrow meaning. Thus the petitioner seeks to have the majority judgment overruled on this point". (Page 30, Para 9). This statement does not seem to be accurate, unless he has linked the rejection of the argument regarding the existence of implied limitations as recognising that the word amendment has a wide meaning. That implied limitations and the width of the meaning of word amendment were two different concepts admits of no doubt, because the former flows from the implications of the provisions of the Constitution whether general or specific, while the latter deals with scope and the ambit of the word amendment itself. If the power is wide, even implied limitations can also be abrogated, but it has nothing to do with the existence of the implied limitations. On the other hand, Hidayatullah, J. though he dealt with the narrowness or otherwise of the meaning of the word 'amendment' did not deal with the existence or non-existence of implied limitations under our Constitution. Bachawat, J., at pp. 915 and 916 also did not think it necessary to pronounce on implied limitations and like Wanchoo, J., has separately considered these two concepts (see pages 833-834, 835-836). These instances illustrate what I have said above. Even on this basis there would not be a majority of Judges who have held that there are no implied limitations.

1178. The learned Advocate-General for Maharashtra submits that when a person proposes an amendment and he is asked whether it is intended to be an improvement, the answer will always be 'Yes'; because he cannot very well say that it was not intended to be an improvement; that the meaning of the word 'amendment' in several Dictionaries which relate the word 'amendment' with 'improvement' is euphemistic. This is the reason why the word 'amendment' according to him is used in the earlier sense in common parlance, in public speeches, textbooks or articles by learned writers, which is far from saying that an amendment must be only a change for effecting an improvement. 1179. Bachawat, J., earlier at p. 915 in Golaknath's case referred to the decision Livermore v. E.C. Waite, (102) Cal. 113-25 L.R.A. 312 in support of the submission that an amendment must be an improvement of the Constitution. The following abservations in Livermore's case were cited by him:

On the other hand, the significance of the term 'amendment' implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.

With respect to this passage, Bachawat, J., observed:

Now an attack on the eighteenth amendment of the U.S. Constitiution based on this passage was brushed aside by the U.S. Supreme Court in the decision in the National Prohibition case (Rhode Island v. Palmer, 253 US 350; 64 L. ed. 947, 960, 978). The decision totally negatived the contention that an amendment must be confined in its scope to an alteration or improvement of that which is already contained in the Constitution and cannot change its basic structure, include new grants of power to the Federal Government nor relinquish in the State those which already have been granted to it. (See Cooley on Constitutional Law, Chapter III, Article V, pp. 46 & 47).

1180. I find from the reference to the National Prohibition case and the pages of that report given by Bachawat, J., namely, 64 L. ed. 947, 960 and 978, that no observations to that effect have been made at page 978 by Mr. Justice Van Devanter. In that case the Supreme Court was considering an appeal from a District Court which had rejected the contention that 18th Amendment was not valid on the ground that, "The definition of the word 'amendment' include additions as well as corrections of matters already treated and there is nothing in its immediate context (Article V) which suggests that it was used in a restricted sense". The decree of the Court below was affirmed in the National Prohibition case. (Rhode Island v. Palmer). 64 L. ed. 946 At p. 960 the briefs filed by the Attorney- General of Rhode Island and others did, however, refer to the passage cited by Bachawat, JJ., in Livermore v. Waite. But none of the Judges in the National Prohibition case either referred to the passage in Livermore's case nor did they deal with the scope of the power of amendment and, therefore, it cannot either be said that the submission was brushed aside, nor can it be said that the National Prohibition case totally negatived that contention. It may be the opinion of Cooley in his Book on "Constitutional Law" that the passage in Livermore's case cited by Bachawat, J., did not support the proposition therein stated. But all arguments in that case against the amendment could not be taken to be negatived, if they were not necessary for the decision. What arguments were brushed aside, no one can say with any amount of definiteness. If the judgment of the Supreme Court in National Prohibition case is read with the judgment of the District Court whose decree was affirmed, it may be taken to have laid down that the word amendment would include addition of a provision to the Constitution and beyond this nothing more can be inferred from this judgment.

1181. The argument of the learned Advocate-General is that the words "amendment of this Constitution" in sub-para (2) of para 7 and sub-para (2) of para (21) of the respective Schedules refers to the words used in sub-para (1) of sub-para 7 and 21 of the Schedules, and, therefore, the words "amendment of this Constitution" must be read to mean that it is an amendment by way of addition, variation or repeal. It was noticed that in Golaknath's case while Wanchoo, J., could not fathom the reason why the expression 'by way of addition, variation or repeal' was used in Schedule V para 7 and Schedule VI, Para 21, he none the less thought the presence or absence of the explanatory words made no difference to the meaning of the word 'amendment'. In other words, according to the learned Advocate-General, the word 'amendment' in Article 368 is synonymous with the expression 'amend by way of addition, variation or repeal' so that the Twenty-Fourth Amendment according to this view, and probably to conform with it, used the clarificatory words and means even after this amendment the same meaning as the word 'amendment' had before Article 368 was amended. What an amendment can do has also been stated, by Wanchoo J., namely, that the existing Constitution can be changed and this change can take the form either of addition to the existing provisions or alteration of the existing provisions and their substitution by others or deletion of certain provisions altogether. Though all this can be done, he said, it may be open to doubt whether the power of amendment contained in Article 368 goes to the extent of completely abrogating the present Constitution and substituting it by an entirely new one . 1182. It is also not disputed by the learned Attorney-General, the learned Solicitor- General and the learned Advocate-General for Maharashtra that an amendment of the Constitution dose not extend to abrogation of the Constitution, and on the contention of the learned Advocate-General, abrogation means repeal, both words being synonymous, and that the Constitution cannot be substituted by a new Constitution. 1183. In further explaining his submission the learned Attorney-General said that the amending power in Article 368 as it stood before the Twenty-fourth Amendment and as it stands now has always been, and continues to be, a constituent power, that is to say, the power to deconstitute or re-constitute the Constitution or any part of it. Such power extends to the addition to or variation of any part of the Constitution. But the amending power does not mean that the Constitution at any point of time would be so amended by way of addition, variation or repeal as to leave a vacuum in the governance of the country. According to him that is the whole object and necessity of the amending power in a Constitution so that the Constitution continues, and a constituent power, unless it is expressly limited in the Constitution itself, can by its very nature have no limits, because if any such limit is assumed although not expressed in the Constitution, the whole object and purpose of the amending power will be nullified.

1184. If amendment does not mean abrogation or repeal as submitted in the note of the Advocate-General, dated February 23, 1973 in which he said, "that repeal and abrogation mean the same thing since "repeal" has 'abrogation' as one of its meaning and 'abrogation' has 'repeal' as one of its meanings", a question arises, where, is the line to be drawn ? 1185. The learned Attorney-General said that Article 368, Clause (e) of the proviso by giving a power to amend the amending power, has conferred a wider power of amendment but that does not imply that the power of amendment had a limited meaning in the unamended article; that the word 'amendment' has only one meaning and it is a wide power and in Article 368 there is a recreation of the Constituent Assembly. If this submission is correct, how can it not extend to abrogation of the Constitution or substituting it by another?

1186. To this question the answer of the Attorney-General was that Clause (e) of the proviso was added by way of abundant caution to meet a similar criticism which was directed against Article V of the U.S. Constitution. According to Advocate-General for Maharashtra, Clause (e) of the proviso was inserted to meet the assumption of Chief Justice in the Irish case of The State (Ryan and Ors.) v. Lennon and Ors. (1935) Irish Reports 170 that if amending provision could have been amended, then no limitation can be read. Hon'ble the Chief Justice has dealt with this aspect in full and I do not, therefore, propose to refer to it except to say that the analogy is inapplicable to the interpretation of Article 368.

1187. Apart from the power of amendment not extending to the abrogation of the Constitution, it will appear on the submission of respondents, the Union of India and the State of Kerala, that the office of the President cannot be abolished without the concurrence of at least half the States even though Articles 52 and 53 are not included in the proviso to Article 368. The very fact that Article 54 and Article 55 are included in the proviso, it would, according to the learned Solicitor-General imply that the office of the President cannot be abolished without the concurrence of the States. Wanchoo, J., in Golaknath's case dealt with a similar contention at p. 844. Though he thought that the supposition was impossible, and I entirely agree with him that it is not likely, yet in such a case, "it would be right to hold that Article 52 could not be altered by Parliament to abolish the office of President...it will require ratification". Nor do I think having regard to the basic structure of the Constitution is it possible to abolish the office of the President by resort to Article 368 and as assent is necessary, no President true to his oath to protect and defend the Constitution, will efface himself. It would, therefore, appear from this specific instance that an implied limitation is read into Article 368 by reason of the proviso entrenching Article 54. The learned Advocate-General says even Article 53 which vests the executive power of the Union in the President by Sub-clause (2), vests the Supreme Command of the Defence Forces of the Union in the President, would also necessitate an amendment similar to Article 52 by ratification by the states. Yet another instance is, that art implied power to amend is found in Article 368. When the form and manner is complied with, the Constitution stands amended, from which provision as well as the fact that Article 368 is in a separate Part entitled 'amendment of the Constitution', the above conclusion was reached. The petitioner's counsel naturally asks that if The Queen v. Burah (1877-78) J.C. 179 is read as an authority as contended on behalf of Kerala State against the existence of powers which are not conferred by affirmative words and against the existence of limitations, this proposition clearly negatives the respondents' other submission that the source of the amending power must be impliedly found in Article 368 although such a power is not to be found affirmatively conferred. 1188. Though there are naturally some limitations to be found in every organic instrument, as there are bound to be limitations in any institution or any other set up brought into existence by human agencies, and though my Lord the Chief Justice has gone into this aspect fully, it is in my view not necessary to consider in this case the question of the existence or non-existence of implied or inherent limitations, because if the amending power is wide and plenary, those limitations can be overriden as indeed the non-obstante clause in the amended Clause (1) of Article 368 was intended to subserve that end. What has to be considered is whether the word 'amendment' is wide enough to confer a plenitude of power including the power to repeal or abrogate. 1189. The learned Advocate-General has further submitted that there is intrinsic evidence in the Constitution itself that the word 'amendment' in Article 368 means 'amend by way of addition, variation or repeal', because if that were not so, sub-para (2) of para 7 of Schedule V would not have taken out the law made under sub-para (1) empowering Parliament to "amend by way of addition, variation or repeal" any of the provisions of the Schedule from the operation of Article 368. The same meaning should also be given to para 21 of Schedule VI. The learned Attorney-General has referred to several articles in which the word 'amendment' has been used, as also to several others in which that word or its variation has been used in continuation with other words. But these expressions do not show that the word 'amendment' is narrow or limited. In every case where an amendment has been made in the Constitution, he says, something has been added, something substituted, something repealed and re-enacted and certain parts omitted. The Constitution (First Amendment) Act is given as an instance of this, nor according to him does anything turn on the fact that Section 291 of the Government of India Act, 1935, was amended just about a few weeks before Article 368 was finalised, and in which the word 'amendment' was substituted for the words 'amend by way of addition, variation or repeal'. According to him what this Court must consider is that since Article 368 arranges to recreate the Constituent Assembly and exercise the same power as the Constituent Assembly, it should be read in a wide sense.

1190. If the power of amendment is limitless and Parliament can do all that the petitioners contend it can do under Article 368, the respondents say it should not be assumed that power will be abused, but on the other hand the presumption is that it will be exercised wisely and reasonably, and the only assurance against any abuse is the restraint exercised by the people on the legislative organs. But the recognition of the truism that power corrupts and absolute power corrupts absolutely has been the wisdom that made practical men of experience in not only drawing up a written Constitution limiting powers of the legislative organs but in securing to all citizens certain basic rights against the State. If the faith in the rulers is so great and the faith in the people to curb excessive exercise of power or abuse of it is so potent, then one needs no elaborate Constitution, because all that is required is to make Parliament omni-potent and omni- sovereign. But this the framers did not do and hence the question will be whether by an amendment under Article 368, can Parliament effect a metamorphosis of power by making itself the supreme sovereign. I do not suppose that the framers were unaware of the examples which must be fresh in their minds that once power is wrested which does not legitimately belong to a limited legislature, the efforts to dislodge it must only be by a painful process of struggle, bloodshed and attrition-what in common parlance would be a revolution. No one suggests this will be done, but no one should be complacent, that this will not be possible, for if there is power it can achieve even a destructive end. It is against abuse of power that a Constitutional structure of power relationship with checks and balances is devised and safeguards provided for whether expressly or by necessary implication. And the question is whether there are any such in our Constitution, and if so, whether they can be damaged or destroyed by an amending power?

1191. The petitioner's counsel, learned Advocate-General and the learned Attorney- General have furnished us with the extracts from various Dictionaries, and the learned Attorney-General has further referred us to a large number of Constitutions in which the word 'amendment' or words used for amending the Constitution have been employed, to show that there is no difference or distinction between these words and the word 'amendment'. In all these Constitutions, subject to which I said of the inappropriateness of comparing other world Constitutions made for different people with their differing social, political and economic outlook, the words used are either 'amendment' or a combination of that word with others or a totally different word. In some of the Constitutions given in the compilations made available to us where the word 'amendment' alone is used, the exercise of the power of amendment was inextricably linked with the ratification by the people in whom the sovereignty rests, either by referendum or by convention or by the Legislatures. The Constitutions of other countries which have been referred to specifically by the learned Attorney-General are of Liberia, Trinidad & Tobago, Somalia, Jordan, Kuwait, Lebanon, Vietnam Democratic Republic, Belgium, Costa Rica, Cuba and Nicaragua. I have examined the relevant provisions of these Constitutions regarding the amendatory process. These Constitutions have used different words than the words used in our Constitution. When the word 'amendment' or 'amend' is used, it has been invariably used with the words 'alter', or 'repeal', or 'revise', or 'variation, addition or repeal', or 'modification', or 'suspension', or 'addition', or 'deleting', or 'partially amend', or 'general amendment', or 'specific, partial or complete', or 'wholly or partially amend', or by a combinetion of one or more of these expressions. In one of the Constitutions, namely, Trinidad & Tabago, the word 'alteration.' was defined to include 'amendment, modification or modification or that provision, the suspension or repeal of that provision and the making of a different provision in lieu of the provision'. 1192. In some of the other Constitutions not referred to by the learned Attorney-General where the amending process is not referable to the voters by referendum or to be ratified in a convention with the word 'amend', the words 'alter', 'add', 'supplement', 'repeal' or similar words have been used to indicate the plenitude of power of amendment. Section 29(4) of the Ceylon Constitutional Order, 1946, which Was the subject-matter of decisions in Liyanage v. The Queen (1967) 1 A.C. 259 and The Bribery Commissioner v. Rana Singh (1964) 2 W.L.R. 1301 cases, and had been debated in this Court by counsel on either side, provides that in the exercise of its powers under the section "Parliament may amend or repeal any of the provisions of this Order, or of any other Order". But this sub-section entrenches by Sub-section (2) certain matters from being amended because as the Privy Council observed that "They represented a solemn "balance of rights between the citizens of Ceylon". In the Constitution of Finland the words used are adoption,, amendment, or abrogation of a fundamental law. The Irish Constitution, 1937, provided by Article 46(1) that any provision of the Constitution may be amended, whether by way of variation, addition, or repeal in the manner provided by the Article, and the Constitution of Malaya has defined the word in Clause (6) of Article 159 that 'amendment' includes addition and repeal. Even the Constitution of the Islamic Republic of Pakistan has used the words amended or repealed. The Constitution of the Union of South Africa has used the words repeal or alter and the Constitution of the United States of Brazil has an entrenched provision in Clause (6) of Article 217 that the Bills tending to abolish the Federation and the Republic shall not be admitted to consideration. 1193. These references not only do not show that the word 'amendment' has been used by itself to denote the plenitude of power but on the other hand show that these prescribe a procedure in which the people have been associated or a Constituent Assembly has to be called or fresh elections are required to be held to consider the amendments. In some of these Constitutions there was also difference made between total and partial amendments and where the word 'alteration' has been used, it has been defined as to what is included therein. No assistance can, therefore, be derived from the Constitutions either referred to by the Attorney-General or by the ones to which I have referred, and if at all, they only show that the word 'amendment' has not, as contended, unambiguous, precise or wide connotation.

1194. It is said that the words "amend by way of addition, variation or repeal" by reference to Clause (2) of Para 7 and Para 21 of the Fifth and Sixth Schedule respectively, mean the same as amendment, and consequently Article 368 empowers the repeal of any provision of the Constitution. If the word "repeal" means abrogation, then an amendment under Article 368 can even abrogate any provision of the Constitution, short of abrogating the entire Constitution and substituting a new one. In my view, the phrase "by way of" call it a padding, call it explanatory, is idiomatic and difficult to render into exact pharseology. An idiom is an accepted phrase, construction or expression contrary to the usual pattern of the language or having a meaning different from the literal. As the Words & Phrases-Permanent Edition, Vol. 5, p. 1111, would show that "by way of" may be taken to mean "as for the purpose of", "in character of", "as being" and was so intended to be construed in an Act providing that certain companies should pay an annual tax for the use of the State, "by way of" a licence for their corporate franchise. The illustration given should show that in fact the payment of a licence fee is not a tax, but it is so considered to be by way of tax. In my view, therefore, the substitution of the word "amendment" by the expression "amend by way of addition, variation or repeal" makes no difference as it bears the same meaning as the word "amendment". 1195. In its ordinary meaning the word "amend" as given in Shorter Oxford Dictionary is to make alterations. In some of the Dictionaries it is given as meaning "to alter, modify, rephrase, or add to or subtract from". Judicial and Statutory Definitions of Words and Phrases, Second Series, Vol. I-the word "amend" has been treated as synonymous with correct, reform and rectify. It is also stated that "amendment" of a statute implies its survival and not destruction. The word "amend" in legal phraseology, does not generally mean the same thing as "repeal", because there is a distinction between a "repeal" but it does not follow that "amendments of statute may not often be accomplished by repeals of some of its parts" and though "amendment may not directly amount to repeal, it may have such a consequential effect". Crawford in his book on "The Construction of Statutes" 1940, pp. 170-171 which is quite often referred to and used in this Court, states that "a law is amended when it is in whole or in part permitted to remain and something is added to, or taken from it, or it is in some way changed or altered in order to make it more complete, or perfect or effective. It should be noticed, however, that an amendment is not the same as a repeal, although it may operate as a repeal to a certain degree. A repeal is the abrogation or destruction of a law by a legislative act. Hence we may see that it is the effect of the Legislative act which determines its character". The first part of this definition may be compared with the meaning indicated by Wanchoo, J. in Golaknath's case at p. 833 to which a reference has already been made.

1196. Both the learned Advocate for the petitioner and the learned Attorney-General have referred to the decisions of the State Courts of the United States for the meaning of the word 'amend' in support of their respective contentions, but these decisions which are rendered in the context of the Constitutions of the respective States in America where ratification by the people is a condition for amending the Constitution do not carry the matter any further. Even in these cases the word 'Amendment' has been used in the contradistinction with the word 'revision'. Words and Phrases, Permanent Edition, Vol. 37 says, "The term 'repeal' is synonymous with abolish, rescind and annul. An amendment has been distinguished from alteration or change. It is said that an amendment keeps alive while a 'repeal' destroys." See State ex rel. Strutx v. Baker 299 N.W. 574, 578, N.D. 153. It is, therefore, apparent from the meaning of the word 'amendment' that it does not include 'repeal' or 'abrogation' nor is it the same as revision. I would now refer to certain provisions of the Constitution where the words "amend" or "repeal" have been used to indicate that the ambit of the power of amendment does not extend to repeal. A repeal of a provision of a law is different from the repeal of the law itself. The Constitution itself has made a distinction between the amendment of the law and repeal of the law. This becomes clear if we refer to Article 372(2) in which power has been given to the President by order to make such adaptations and modifications of any law whether by way of repeal or amendment, as may be necessary or expedient, to bring it in conformity with the provisions of the Constitution. See also Article 372(2)(b). Clause (2) of Article 252 provides that any Act passed by Parliament in respect of two or more States may be amended, or repealed by an act of Parliament. In this clause the word 'repeal' is used in contradistinction to 'amendment' as clearly implying that amendment does not include repeal of the Act itself. Even in Article 372(1), this distinction is brought out where a law in force immediately before the commencement of the Constitution was to continue in force until "altered or repealed or amended" by a competent authority. Similarly in Article 35(b) also any law in force immediately before the commencement of the Constitution in the territory with respect to any of the matters specified therein 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. See proviso to Clause (2) of Article 254 and Clause (5) of Article 350. It may also be noticed that before the repeal of Article 243, Clause (2) thereof provided that the President may make regulations for the peace and good government of territories in Part D of the First Schedule and any regulation so made may repeal or, amend any law made by Parliament or any existing law. It will, therefore, be observed that even where power has been given to a competent legislature or any other competent authority over a law in force to continue by virtue of the above referred; provisions, the framers have used the word 'repeal' of a law in contradistinction to the word 'amend' of a law. It may be contended with some force that where the framers intended to give full and plenary powers to competent legislatures to deal with laws in force, they were meticulous enough to use two distinct words. If the word 'amend' or 'amendment' in its generic connotation meant 'repeal' then this word would not have been used in contradistinction with the word amendment or amend in some articles, and only the word 'amend' or 'amendment' in others. In so far as the laws in force are concerned, it would appear that the intention was not to add to them, though the word 'alter' could imply also a variation. Nonetheless it is apparent that the word 'amendment' as used in Article 368 does not connote a plenitude of power. This is also clear from Sub-section (2) of Section 6 of the Indian Independence Act, 1947 which, as already seen, even in the context of the power to be possessed by the Constituent Assembly, uses the word 'repeal' or 'amend' to indicate the plentitude of the power of abrogation and repeal. Sections 32, 37, 74, 82 and 107(2) of the Government of India Act also use the word 'amendment' in the sense of change and not repeal of the law. On the other hand, Sections 106(2) of Government of India Act and Article 372(1) use the word 'repeal'. In the former, power is given to repeal a law, and in the latter it was provided that notwithstanding the repeal of enactments referred to in Article 395 to which included the Indian Independenet Act, etc., all the laws in force and also be replaced in the sense that they could be abrogated. Further in Clauses (3) and (4) of Article 109, the Council of State is empowered to make amendments in money bill which the House of the People may or may not accept and if it does not, it will be passed without any such amendment. The Council of States, cannot reject the bill altogether but can only make a change therein.

1197. The argument that if wide construction is given to the word 'amendment' all fundamental rights can be taken away by the requisite majority, whereas much less significant matters require the concurrence of not less than one-half of the States under the proviso is based on the misconception that unlike in the United States where there is a dual citizenship-one as a citizen of United States and the other as a citizen of the particular State in the Union, we have only one citizenship and that is as a citizen of India and it is Parliament and Parliament alone which can legislate in respect of that right. No State has the legislative power to affect that right, and, therefore, have not been given a power of ratification where the fundamental rights are sought to be amended under Article 368. This aspect is not, however, determinative of the extent of the power of amendment under Article 368. The word 'amendment' read with the other provisions indicates that it is used in the sense of empowering a change in contradistinction to destruction which a repeal or abrogation would imply. Article 368 empowers only a change in the Constitution as is evident from the proviso which requires that where the provisions specified in Clauses (a) to (e) have to be amended they have to be ratified by the resolution of not less than one-half of the Legislatures of the States. This proviso furnishes a key to the meaning of the word 'amendment', that they can be changed without destroying them just in the same way as the entire Constitution cannot be abrogated and a new Constitution substituted therefor. In this view, I agree with My Lord the Chief Justice, for the reasons given by him, that the amplitude of the power of amendment in Article 368 cannot be enlarged by amending the amending power under proviso (e) to Article 368.

1198. What follows from this conclusion is the next question to be considered. It is submitted that an amendment should not alter the basic structure of the Constitution or be repugnant to the objectives set out in the Preamble and cannot be exercised to make the Constitution unidentifiable by altering its basic concept governing the democratic way of life accepted by the people of this country. If the entire Constitution cannot be abrogated, can all the provisions of the Constitution leaving the Preamble, or one article, or a few articles of the original Constitution be repealed and in their place other provisions replaced, whereby the entire structure of the Constitution, the power relationship inter se three Departments, the federal character of the State and the rights of the citizens vis-a- vis the State, are abrogated and new institutions, power relationships and the fundamental features substituted therefor? In my view, such an attempt would equally amount to abrogation of the Constitution, because any such exercise of the power will merely leave the husk and will amount to the substitution of an entirely new Constitution, which it is not denied, cannot be done under Article 368.

1199. The Preamble to the Constitution which our founding fathers have, after the Constitution was framed, finally settled to conform to the ideals and aspirations of the people embodied in that instrument, have in ringing tone declared the purposes and objectives which the Constitution was intended to subserve. How far the Preamble can be resorted to for interpreting the Constitution has been the subject of debate. It was contended that it is not a part of the Constitution, and as we have been shown, that this concept had found approval of this Court in In Re: Berubari Union & Exchange of Enclaves, but the Court did not appear to have noticed that it was adopted by the Constituent Assembly as part of the Constitution. The observations of Gajendragadkar, C.J., must be understood in the context of his assumption that the Preamble is not a part of the Constitution. After referring to Story that the Preamble is "a key to open the mind of the makers" and a passage from Willoughby that it has never been regarded as source of any substantive power, etc., the learned Chief Justice concluded thus : What is true about the powers is equally true about the prohibitions and limitations. Besides, it is not easy to accept the assumption that the first part of the preamble postulates a very serious limitation on one of the very important attributes of sovereignty itself. As we will point out later, it is universally recognised that one of the attributes of sovereignty is the power to cede parts of national territory, if necessary. At the highest it may perhaps be arguable that if the terms used in any of the articles in the Constitution are ambiguous or are capable of two meanings, in

interpreting them some assistance may be sought in the objectives enshrined in the preamble. Therefore, Mr. Chatterjee is not right in contending that the preamble imports any limitation on the exercise of what is generally regarded as a necessary and essential attribute of sovereignty.

It may be pointed out that the passage from Story and Willoughby cited therein have not been fully extracted. For a proper appreciation of the views of these authors it is necessary to examine the relevant passages in, full. Story says, "It is an admitted maxim...that the preamble of a statute is a key to open the mind of the makers as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute...the will and intention of the legislature is to be regarded and followed. It is properly resorted to, where doubts or ambiguities arise upon the words of the enacting part for if they are clear and unambiguous, there seems little room for interpretation, except in cases leading to an obvious absurdity, or to a direct overthrow of the intention expressed in the preamble. There does not seem any reason why, in a fundamental law or Constitution of government, an equal attention should not be given to the intention of the framers, as stated in the preamble.... The preamble can never be resorted to, to enlarge the powers confided to the general government, or any of its departments. It cannot confer any power per se; it can never amount, by implication, to an enlargement of any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the Constitution. Its true office is to expound the nature, and extent, and application of the powers actually conferred by the Constitution, and not substantively to create them.... We have the strongest assurances, that this preamble was not adopted as a mere formulary but as a solemn promulgation of a fundamental fact, vital to the character and operations of the government". (Story, Constitution of the United States, Vol. I, pp. 443-446).

1200. It is clear from the above views of Story that: (a) the preamble is a key to open the mind of the makers as to the mischiefs, which are to be remedied; (b) that it is properly resorted to, where doubts or ambiguities arise upon the words of the enacting part; (c) even where the words are clear and unambiguous, it can be used to prevent an obvious absurdity or to a direct overthrow of the intention expressed in the preamble, and it would be much more so, if they were ambiguous; (d) there is no reason why, in a fundamental law or Constitution of government, an equal attention should not be given to the intention of the framers, as stated in the preamble; (e) the preamble can never be resorted to, to enlarge the powers expressly given, nor to substantively create any power or to imply a power which is otherwise withdrawn from the Constitution; (f) its true function is to expound the nature, extent, and application of the powers actually conferred by the Constitution.

1201. The passage extracted from Willoughby no doubt shows that the Preamble may not be resorted to as a source of Federal Authority but in dealing with its value and use the learned author has stated thus:

Special significance has at various times been attached to several of the expressions employed in the Preamble to the Constitution. These expressions are:

1. The use of the phrase "We, the People of the United

States", as indicating the legislative source of the

Constitution.

2. The denomination of the instrument as a "Constitution".

2. The description of the federation entered into as "a more

perfect Union.

3. The enumeration of "the common defence" and "general

welfare" among the objects which the new Government is

established to promote" (Willoughby, Vol. I, p. 62).

4. These American authors, therefore, recognise the use of the Preamble to ascertain the essential concepts underlying the Constitution.

1202. The English cases show that the preamble can be resorted to as a means to discover the legislative intent of which one may be cited. In the Attorney-General v. Prince Earnest Augustus of Hanover, (1957) A.C. 436 the House of Lords considered the question whether and to what extent Preamble of a statute can be relied upon to construe the enacting part of the statute. Viscount Simond (with whom Lord Tucker agreed), observed at p. 461 : "For Words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive to be my right and duty to examine every word of a statute in its context, and I use 'context' in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state or the law, other statutes in Pari muteria, and mischief which I can, by those and other legitimate means, discern the statute was intended to remedy". Referring to the observations in Powell v. Kempton Park Racecourse Co. Ltd., (1899) A.C. 143 that 'the preamble cannot be made use of to control the enactments themselves where they are expressed in clear and unambiguous terms', Viscount Simond said at p. 463: "it is often difficult to say that any terms are clear and unambiguous until they have been studied in their context. That is not to say that the warning is to be disregarded against creating or imagining an ambiguity in order to bring in the aid of the preamble. It only means that the elementary rule must be observed that no one should profess to understand any part of a statute or of any other document before he had read the whole of it Until he has done so he is not entitled to say that it or any part of it is clear and unambiguous.... I would suggest that it is better stated by saying that the context of the preamble is not to influence the meaning otherwise ascribable to the enacting part unless there is a compelling reason for it And I do not propose to define that expression except negatively by saying...that it is not to be found merely in the fact that the enacting words go further than the preamble has indicated. Still less can the preamble affect the meaning of the enacting words when its own meaning is in doubt

1203. On this aspect Lord Normand said at pp. 467468: "when there is a preamble it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is therefore clearly permissible to have recourse to it as an aid to construing the enacting provision. The preamble is not, however, of the same weight as an aid to construction of a section of the Act as are other relevant enacting words to be found elsewhere in the Act or even in related Acts.... It is only when it conveys a clear and definite meaning in comparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail...it is the court's business in any case of some difficulty, after informing itself of...the legal and factual context including the preamble, to consider in the light of this knowledge whether the enacting words admit of both the rival constructions put forward.... If they admit of only one construction that construction will receive effect even if it is inconsistent with the preamble, but if the enacting words are capable of either of the constructions offered by the parties, the construction which fits the preamble may be preferred." Lord Somervell said at p. 474, that, "The word 'unambiguous' must mean unambiguous in their context". Lord Thring, one of the great draftsmen of England in his book on "Practical Legislation", Chapter IV, pp. 92-93, made this pertinent observation as to preambles. He said, "a preamble may also be used to limit the scope of certain expressions in the Act, and sometimes a preamble is inserted for political reasons when the object of an Act is popular, and admits of being stated in a telling sentence or sentences." In Sajjan Singh's case at p. 968, Mudholkar, J., while taking note of the contention that it has been said that the preamble is not a part of the Constitution observed: "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?" With great respect, I agree with the view expressed by him. 1204. These observations of the House of Lords, of the learned writers and of the Judges referred to above clearly point to the fact that the preamble will furnish a guide to the construction of the statute where the words are ambiguous, or even where the words are unambiguous to aid a construction which will not lead to an absurdity. Where the preamble conveys a clear and definite meaning, it would prevail over the enacting words which are relatively obscure or indefinite or if the words are capable of more than one construction, the construction which fits the preamble may be preferred. 1205. In In Re: Berubari Union & Exchange of Enclaves case the Court failed to refer to and consider the view of Story that the preamble can be resorted to, to expound the nature, the extent and the application of the powers or that the preamble can be resorted to, to prevent obvious absurdity or to a direct overthrow of the intention expressed therein. It may also be observed that the Court in that case did categorically say that the first part of the preamble is not a serious limitation. If the Court had taken a definite view that the preamble was not a source of limitation, the observation that, "it is not easy to accept the assumption that the first part of the preamble postulates a very serious limitation on one of the very important attributes of sovereignty" (emphasis supplied) was not necessary, because it implies that certain parts of the Preamble can be established to be a source of serious limitation if such exists. In any case though the advisory opinion is entitled to the greatest respect, it is not binding when any concrete issue arise for determination, particularly when the width of the power of amendment had not fallen for consideration in that case, nor was it in fact considered at all. 1206. I will now consider the question which has been streneously contended, namely, that there are no essential features, that every feature in the Constitution is essential, and if this were not so, the amending power under the Constitution will apply only to non- essential features which it would be difficult to envisage was the only purpose of the framers in inscribing Article 368 and that, therefore, there is no warrant for such a concept to be read into the Constitution. The argument at first flush is attractive, but if we were to ask ourselves the question whether the Constitution has any structure or is structureless or is a "jelly fish" to use an epithet of the learned Advocate for the petitioner, the answer would resolve our doubt. If the Constitution is considered as a mechanism, or call it an organism or a piece of Constitutional engineering, whichever it is, it must have a structure, or a composition or a base or foundation. What it is can only be ascertained, if we examine the provisions which the Hon'ble Chief Justice has done in great detail after which he has instanced the features which constitute the basic structure. I do not intend to cover the same field once again. There is nothing vague or unascertainable in the preamble and if what is stated therein is subject to this criticism it would be equally true of what is stated in Article 39(b) and (c) as these are also objectives fundamental in the governance of the country which the State is enjoined to achieve for the amelieration and happiness of its people. The elements of the basic structure are indicated in the preamble and translated in the various provisions of the Constitution. The edifice of our Constitution is built upon and stands on several props, remove any of them, the Constitution collapses. These are: (1) Sovereign Democratic Republic; (2) Justice, social, economic and political; (3) Liberty of thought, expression, belief, faith and worship; (4) Equality of status and of opportunity. Each one of these is important and collectively they assure a way of life to the people of India which the Constitution guarantees. To withdraw any of the above elements the structure will not survive and it will not be the same Constitution, or this Constitution nor can it maintain its identity, if something quite different is substituted in its place, which the sovereign will of the people alone can do. There can be a Democratic Republic in the sense that people may be given the right to vote for one party or only one candidate either affirmatively or negatively, and are not given the choice to choose another opposed to it or him. Such a republic is not what has been assured to our people and is unthinkable by any one foresworn to uphold, defend, protect, or preserve or work the Constitution. A democratic republic that is envisaged is the one based on a representative system in which people holding opposing view to one another can be candidates and invite the electorate to vote for them. If this is the system which is the foundation of a democratic republic, it is unthinkable that it can exist without elements (2) to (4) above either collectively or separately. What is democracy without social, economic and political justice, or what value will it have, where its citizens have no liberty of thought, belief, faith or worship or where there is no equality of status and of opportunity? What then are the essential features or the basic elements comprising the structure of our Constitution need not be considered in detail as these will fall for consideration in any concrete case where they are said to have been abrogated and made non-existent. The fact that a complete list of these essential elements constituting the basic structure are not enumerated, is no ground for denying that these exist. Are all the elements which make a law void and unConstitutional ever required to be concatenated for the recognition of the validity or invalidity of laws judged on the anvil of the Constitution? A sovereign democratic republic, Parliamentary democracy, the three organs of the State, certainly in my view constitute the basic structure. But do the fundamental rights in Part III and Directive Principles in Part IV constitute the essential element of the basic structure of our Constitution in that the Constitution will be the Constitution without them ? In other words, if Parts III and IV or either of them are totally abrogated, can it be said that the structure of the Constitution as an organic instrument establishing sovereign democratic republic as envisaged in the preamble remains the same? In the sense as I understand the sovereign democratic republic, it cannot: without either fundamental rights or directive principles, what can such a government be if it does not ensure political, economic, or social justice?

1122. Whereas Article 13(3)(a) has sepcifically included within the definition of 'law', custom or usage having in the territory of India the force of law, and even though it has not specifically mentioned an amendment made under Article 368 or a law made by Parliament or a Legislature it would certainly include a law made by the latter organs by reason of the legislative provisions of the Constitution referred to above. Having regard to the importance of the amending power, whether it is considered as a constituent power or as a constituted power, the omission to include it specifically would, it is contended, indicate that it was not in the contemplation of the framers of the Constitution to extend the embargo in Article 13(2) to an amendment under Article 368. To my mind what is difficult to envisage is that while the framers included minor legislative acts of the State within the definition of 'law' in Article 13(3), they did not think of including an amendment of the Constitution therein, even though attempts were made towards that end till the final stages of its passage through the Constituent Assembly. It is contended that the answer to this could be that the framers did not include specifically a law made by the Legislature in that definition, and as such all laws whether legislative or amendments of the Constitution would come within its purview. This argument loses its significance in view of the fact that the enumeration of laws like rule, bye-law, regulation and notification which have their source and existence in the legislative law clearly indicate the inclusion of a law made by Parliament or a Legislature of a State. It is not that the framers did not consider meticulously any objections to or defects in the definitions as I will show when dealing with the various stages of the consideration of the draft article. 1123. It may be necessary first to examine whether in the context of the inclusive definition of 'law', and not forgetting that an amendment under Article 368 could also be termed 'law', the prohibition that the State cannot take away or abridge the rights conferred under any of the provisions of Part III is confined to those categories of law to which I have specifically referred, namely, to the law made by Parliament or a Legislature of the State and to those indicated in Article 13(3)(a). The law referred to in Article 14, Clauses (3) and (5) of Article 16, Article 17, Clauses (2) to (6) of Article 19, Article 20, Article 21, Clauses (4) and (7) of Article 22, Clause (1) of Article 23, Clause (2) of Article 25, Article 31, Clause (3) of Article 32, Articles 33, 34 and Clause (a) of Article 35, is, in my view, a law which the Parliament or a Legislature of the State or both, as the case may be, is required to make for giving force to the rights or is permitted to make to restrict the rights conferred by Part III. In other words, the permissible limits are indicated therein. Further under Article 15 the words 'special provision' and in Clause (4) of Article 16 the making of any provision by the State, and Clause (2) of Article 23 imposing of a compulsory service by the State for public purposes, or preventing the State from doing or permitting it to take certain actions under Article 28, Clause (2) of Article 29 and Clause (2) of Article 30 can either be by an ordinary legislative law or by an order or notification issued by the Government which may or may not be under any law but may be in the exercise of a purely executive power of the Government of India or the Government of a State having the force of law.

1124. Even where reasonable restrictions are permitted as in Clauses (2) to (6) of Article 19 or where restrictions or abrogation of the totality of fundamental rights contained in Part III have been permitted in respect of members of the armed forces or the forces charged with the maintenance of public order under Article 33, or where it is sought to indemnify persons in the service of the Union or a State or any other person, it is the Parliament that has been empowered to make a law in that re-regard. Article 35, it may be noticed, begins with a non obstante clause, "Notwithstanding anything in this Constitution - (a) Parliament shall have, and the Legislature of a State shall not have, power to make laws...." This non obstante clause has the effect of conferring the power of legislation in respect of matters mentioned therein to Parliament exclusively which it would not have otherwise had, because some of the powers were exercisable by the State Legislatures. Hidyatullah, J., however, thought that the opening words in Article 35 were more than the non obstante clause and excluded Article 368 - a conclusion based on comparison of that Article with Article 105-A of the Australian Constitution in respect of which New South Wales v. The Commonwealth 36 C.L.R. 155 had held that it was an exception to Section 128 (See Golaknath's case at p. 902). Wynes, however, did not agree with this view of the High Court of Australia: See Legislative, Executive and Judicial powers in Australia, pp. 695-698. With this view, Hidayatullah, J., did not agree. In my view it is unsafe to rely on cases which arise under other Constitutions. Apart from this, Article 35 is not in pari materia with Article 105-A of the Australian Constitution which deals with the binding nature of the financial agreement made thereunder. The analogy is, therefore, inapplicable, nor is there anything in the subject-matter of Article 35 to safeguard it from being amended under Article 368. On the other hand, this article empowers Parliament to give effect to fundamental rights and gives no indication to delimit the power of amendment under Article 368.

1125. It is true that the Constitution itself has provided the limitations that can be imposed on the fundamental rights guaranteed in Part III, but those limitations can only be effected by ordinary law as opposed to Constitutional law and nor imposing those limitations an amendment of the Constitution is not needed. Once a right is conferred on the citizen, to what extent the right can be restricted, or where a State is prohibited from acting in any particular manner to what extent it is permitted, is to be regulated only by an ordinary law. If so, the bar against exceeding the permissible limits must prima facie be against the State making such a law. In the circumstances, could it be said that the framers of the Constitution contemplated the inhibition in Article 13(2) to operate on any thing other than ordinary law ? To limit the extent and ambit of the power under Article 368 in which there is no reference to a law, by including within the ambit of the definition of 'law' in Article 13(3)(a) for purposes of Article 13(2), an amendment effected under Article 368, is to restrict the power of amendment by a strained construction or to impute to the framers of the Constitution a lack of respect to the amending power by making the bar of Article 13(2) applicable to it by mere implication, when in respect of minor instruments they were careful enough to include them in the definition of 'law'.

1126. While this is so, a consideration of the conspectus of various rights in Part III when read with Article 13(2) would, in my view, prohibit the taking away or abridging of those rights by a law made by the Legislature namely the Parliament, Legislature of a State, or by executive action. This conclusion of mine will be substantiated if Article 13(2) is read along with each of the Articles in Part III, in so far as any of them contain the word 'law' which indeed it can be so read. The object of incorporating Article 13(2) was to avoid its repetition in each of the Articles conferring fundamental rights. Only one instance of this may be given in support of my conclusion. Clauses (2) to (6) of Article 19 which are limitations on the freedoms in Article 19(1)(a) to (g) respectively are couched in similar terms, and if I were to take one of these clauses for illustrating the point, it would amply demonstrate that the framers used the word 'law' in both Article 13(2) and Clauses (2) to (6) of Article 19 only in the sense of an ordinary law. Sub-clause (a) of Clause (1) of Article 19 and Clause (2) of that Article, if so read with Article 13(2) of the Constitution as it stood on January 26, 1950, may be redrafted as under:

19(1). All citizens shall have the right-

(a) to freedom of speech and expression;

...

(2) The State shall not make any law which takes away or abridges the rights conferred by this article and any law made in contravention of this clause shall, to the extent of the contravention, be void:

Provided that nothing in Sub-clause (a) of Clause (1) shall

affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to

libel, slander, defamation, contempt of court or any matter

which offends against decency or morality or which

undermines the security of, tends to overthrow, the State.

Clause (2) in the above draft incorporates the entire Clause (2) of Article 79 except that instead of Part III the word 'article' has been used, and Clause (2) of Article 19 has been incorporated as a proviso.

1127. In the alternative, if Clauses (2) to (6) of Article 19 are read as a proviso to Article 13(2), they would appear as follows:

The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void:

Provided nothing in Sub-clause (a) of Clause (1) of Article 19 shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against the decency or morality or which undermines the security of, tends to overthrow, the State.

In each of the Clauses (3) to (6) of Article 19 the expression 'any existing law in so far as it imposes or prevents the State from making any law imposing' has been uniformly used, and if these clauses are read as provisos just in the same way as Clause (2) of Article 19 has been read in either of the manner indicated above, the word 'law' in all these clauses as well as in Clause (2) of Article 13 would be the same and must have the same meaning. Similarly, Article 16(3) and (5) and Article 22(3) may also be so read. In reading the above articles or any other article in Part III with Article 13(2) it appears to me that the words `law', 'in accordance with law', or 'authority of law' clearly indicate that 'law' in Article 13(2) is that which may be made by the ordinary legislative organs. I shall also show, when I examine the various stages through which the corresponding draft article which became Article 13(2), passed through the Drafting Committee and the Constituent Assembly, that the proviso to Article 8 would lead to a similar conclusion. 1128. Though the word 'State' has a wider meaning and may include Parliament or Parliament and the State Legislature acting together when to effect an amendment under Article 368, in the context of the restrictions or limitations that may be imposed by law on certain specified grounds mentioned in any of the provisions of Part III, particularly those referred to above, could only be a law made by the Legislature otherwise than by amendment of the Constitution, or to impose any restriction or limitation within the permissible limits on the fundamental rights under any of the provisions of Part III, an amendment of the Constitution is not necessary and hence could not have been so intended. It is also submitted that the definition of the word 'State' in Article 12 read with Article 13(2) would prohibit the agencies of the State jointly and separately from effecting an amendment, the same being a law, from abridging or taking away any of the rights conferred by Part III or in amending Article 13(2) itself. In this connection Hidayatullah, J., in Golaknath's case at p. 865 - read the definition of the word 'State' in Article 12 as connoting, "the sum total of all the agencies which are also individually mentioned in Article 12", and hence, "by the definition all the parts severally are also included in the prohibition". In other words, he has taken the definition to mean and connote that all the agencies acting together, namely, the Parliament and the Legislatures, and if the two Houses of Parliament under Article 368(1) or the two Houses of Parliament and the Legislatures acting together under the proviso, can effect an amendment that amendment would be a law made by the State within the meaning of Article 13(2). At p. 866 this is what he said: "If the State wields more power than the functionaries there must be a difference between the State and its agencies such as Government, Parliament, the Legislatures of the States and the local and other authorities. Obviously, the State means more than any of these or all of them put together. By making the State subject to Fundamental Rights it is clearly stated in Article 13(2) that any of the agencies acting alone or all the agencies acting together are not above the Fundamental Rights. Therefore, when the House of the people or the Council of States introduces a Bill for the abridgement of the Fundamental rights, it ignores the injunction against it and even if the two Houses pass the Bill the injunction is next operative against the President since the expression "Government of India" in the General Clauses Act means the President of India. This is equally true of ordinary laws and laws seeking to amend the Constitution". He drew support from Article 325 of the Constitution of Nicargua in which specifically it was stated that, "That agencies of the Government, jointly or separately, are forbidden to suspend the Constitution or to restrict the rights granted by it, "except in the cases provided therein". In our Constitution he observed, "the agencies of the State are controlled jointly and separately and the prohibition is against the whole force of the State acting either in its executive or legislative capacity". With great respect this argument is based on an assumption which is not warranted by the definition of the word 'State' in Article 12. Nor is it in my view permissible to draw support from a provision of another Constitution which is differently worded. The assumption that 'State' would mean all the agencies of the Government jointly or separately when the agencies of the State have been separately enumerated, is not justified. The prohibition in Article 13(2) would be against each of them acting separately. There is no question of Parliament or the State Legislatures or Parliament or either local authorities or other authorities acting together or any one of these acting in combination. Nor under the Constitution can such combination of authorities acting together make a law. The State as Hidayatullah, J., envisages, because of the inclusive definition, means "more than any of them or all of them put together" which in my view is a State in the political sense and not in a legal sense. Under Article 51 of the Directive Principles, it is enjoined that the State shall endeavour to promote international peace and security; or maintain just and honourable relations between nations, etc., which in the context, can only mean Government or Parliament of India. Item 10 of List I of the Seventh Schedule read with Article 246 vests the power of legislation in respect of "foreign affairs, all matters which bring the Union into relation with the foreign countries" in those agencies. The words 'unless the context otherwise requires', in my view, refer to those agencies acting separately. If drawing an inference from other Constitutions is permissible in interpreting a definition, and I have said that it is not, a reference to Article 9 in the Burmese Constitution would show that the definition, of the State is not an inclusive definition, but it defines the State as meaning the several organs referred therein. I do not, therefore, think that reasoning would indicate that Article 13(2) puts an embargo on an amendment made under Article 368, nor does it warrant the making of a distinction between the State and the Government in order to hold that these organs cannot acting together make an amendment affecting rights in Part III.

1129. Another reason for arriving at this conclusion is that if amendment to the Constitution is a 'law', the Constitution as such would also be a law. But the framers of the Constitution distinguished the 'Constitution' from 'law' or 'laws', by making evident their intention by using the word 'law' in contradistinction to the 'Constitution' indicating thereby that the word 'law' wherever referred to, means only an ordinary legislative law, while the 'Constitution' as something distinct from it. In Article 60 the President, and in Article 159 the Governor, is required to take oath when assuming office, to preserve, protect and defend the Constitution and the law. Under Article 61 the President can only be impeached for the violation of the Constitution. While specifying the extent of the executive power in Sub-clauses (a) and (b) of Clause (1) of Article 73 it is provided by the proviso that the power referred to in Sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws. Here the words 'law' and 'laws' are definitely referable to the law made by Parliament and the Legislature of the State. The oath that a Minister of the Union is to take under Article 75(1) is set out in Schedule III, that he will do right to all manner of people in accordance with the Constitution and the law. Judges of the Supreme Court and the High Court are required to uphold the Constitution and the laws : see Articles 124(6) and 219 each read with Schedule III. It is provided in Article 76(2) that the Attorney-General is required to discharge the function conferred on him by or under this Constitution or any other law for the time being in force. Again in Article 148(5) dealing with the conditions of service of persons serving in the Indian Audit and Accounts Department, etc., they are made subject to the provisions of this Constitution and of any law made by Parliament. Even though the framers referred to the Constitution as by law established in some of the provisions, they have, when dealing distinctly with the Constitution and the law or laws, specified them as referable to the legislative law. The Constitution, however, was not so described except where it is intended to be emphasised that it had the force of law as envisaged by the words 'as by law established'.

1130. If this view is correct, and I venture to suggest that it is, a question would arise as to whether Article 13(2) is really redundant, and should the Court so construe it as to impute to the framers an intention to incorporate something which has no purpose. The Court, it is well established, should not ordinarily construe any provision as redundant and, therefore, must give effect to every provision of a Statute or law. In support of this line of reasoning it is contended that in so far as Article 13(1) is concerned, 'a law in force' has been defined in Article 13(3)(b), but by virtue of Article 372(1) and Explanation I therein the same result would be achieved and any pre-Constitution Constitutional law which acquires the force of law by virtue of that Article is "subject to the other provisions" of the Constitution and consequently to the provisions in Part III. Similarly any law made after the Constitution came into force would be void to the extent of its repugnancy with any of the provisions of the Constitution including those in Part III because of the doctrine of ultra vires. If so, it is argued, there was no purpose in enacting Article 13(2). On the other hand, the petitioner's learned advocate submits that Article 13(2) has a purpose, in that among the laws in force there would be saved some laws of a Constitutional nature which were in force in the erstwhile princely States or even under the Government of India Act, 1935 where the Governor-General had made orders of that nature. As it was pointed out to the Constituent Assembly by Sardar Vallabhbhai Patel on the 29th April, 1947 that such may be the position, Article 13(1), it is said, has been incorporated in Part III, and for the same reason in order to protect fundamental rights which were basic human freedoms from being taken away or abridged even by an amendment of the Constitution, that Article has been incorporated. A reference to the latter would show that what Sardar Vallabhbhai Patel said was that they had not sufficient time to examine in detail the effect of Clause (2) of the draft article on the mass of existing legislation and that clause was, therefore, subject to examination of its effect on the existing laws which will be done before the Constitution is finally drafted and the clause finally adopted. There is nothing in the proceedings or debates to indicate that certain Constitutional laws were intended to be saved or that that law was to include an amendment of the Constitution, nor is the contention that Article 13(1) was specially designed to save pre-existing Constitutional laws notwithstanding that the Government of India Act and the Indian Independence Act were repealed by Article 395. If there be in force any Constitutional laws other than those repealed these are by Article 372(1) given the same force as any of the ordinary legislative law subject to the other provisions of the Constitution and such laws continue to be in force only until altered, repealed or amended by a competent legislature or other competent authority. There is no indication whatever that these laws were accorded a status similar to any of the provisions of the Constitution, nor could they co-exist with them in the sense that they can only be dealt with by an amendment under Article 368. Kania, C.J. in A.K. Gopalan's case had no doubt pointed out that, the inclusion of Article 13(1) & (2) appear to be. "a matter of abundant caution", and that, "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". Hidayatullah, J., as he then was, in Sajjan Singh's case at p. 961 - commenting on the above passage of Kania, C.J., pointed out that, The observation is not clear in its meaning. There was undoubtedly a great purpose which this article achieves. It is probable that far from belittling the importance of Article 13 the learned Chief Justice meant rather to emphasise the importance and the commanding position of Fundamental Rights in that even without Article 13 they would have the same effect on other laws. To hold that Article 13 framed merely by way of abundant caution, and serves no additional or intrinsic function of its own, might, by analogy persuade us to say the same of Article 32(1) because this Court would do its duty under Article 32(2) even in the absence of the guarantee. No one can deny that Article 13(2) has a purpose and that purpose, as Hidayatullah, J., pointed out, was meant rather to emphasise the importance and the commanding position of Fundamental Rights, because having regard to the history of the agitation for a Bill of Rights being inscribed in a Constitution, to which I have adverted earlier, and the great hope that was inspired in the people of this country that there are some fundamental basic rights which are guaranteed to them and which cannot be subject to the vagaries of the legislatures, the State was enjoined not to take away or abridge those rights. Rights in Part III were intended to be made self- contained with the right of redress guaranteed to them by Article 32 - unlike in the United States where the judiciary had to invoke and evolve the doctrine of judicial review over the years. Mere general declarations of rights were without enforceability. As experience showed such general rights were found ineffective to check the growing power of the modern State, our framers examined judicial review of fundamental rights in various Constitutions and provided in our Constitution an effective remedy against encroachment of these rights. Article 32(2) provided for a direct approach to the Supreme Court in cases where fundamental rights are infringed, which without that provision would only come before it by way of an appeal under Article 133 or by special leave under Article 136 from a decision of the High Court rendered under Article 226. It is this purpose that Article 13(2) read with Article 12 emphasises. The framers of our Constitution conscious of the pitfalls and difficulties that were confronted by the varying exercise of judicial review in America wanted to ensure that the doctrine of void and relatively void-a typically American concept - should find no place in our Constitution. If as stated in Golaknath's case by the leading majority judgment and by Hidayatullah, J., that fundamental rights were not to be subject to an amending process, it is inconceivable that our framers who gave such meticulous care in inscribing those rights in the Constitution, as is evident from the proceedings in the Constituent Assembly, should not have specifically entrenched them against chat process. I am aware of the contrary argument that if they wanted that the amending process in Article 368 should not be fettered by Article 13(2) they would have expressly provided for it either in Article 368 or in Article 13(2) as indeed attempts were made to that effect by moving suitable amendments which, later, at the concluding stages of the final Draft Constitution, as we shall presently see, were either withdrawn, not pressed or negatived. But this is neither here nor there, as indeed if the framers took the view that the embargo in Article 13(2) is only against legislative law, they may have felt that there was no need for any words of limitation which will make it inapplicable to Article 368.

1131. Before I refer to the proceedings of the Constiuent Assembly, I must first consider the question whether the Constituent Assembly Debates can be looked into by the Court for construing those provisions. The Advocate-General of Maharashtra says until the decision of this Court in H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur and Ors. v. Union of India (1971) 3 S.C.R. 9-commonly known as Privy Purses case- debates and proceedings were held not to be admissible. Nonetheless counsel on either side made copious reference to them. In dealing with the interpretation of ordinary legislation, the widely held view is that while it is not permissible to refer to the debates as an aid to construction, the various stages through which the draft passed, the amendments proposed to it either to add or or delete any part of it, the purpose for which the attempt was made and the reason for its rejection may throw light on the intention of the framers or draftsmen. The speeches in the legislatures are said to afford no guide because members who speak in favour or against a particular provision or amendment only indicate their understanding of the provision which would not be admissible as an aid for construing the provision. The members speak and express views which differ from one another, and there is no way of ascertaining what views are held by those who do not speak. It is, therefore, difficult to get a resultant of the views in a debate except for the ultimate result that a particular provision or its amendment has been adopted or rejected, and in any case none of these can be looked into as an aid to construction except that the legislative history of the provision can be referred to for finding out the mischief sought to be remedied or the purpose for which it is enacted, if they are relevant. But in Travancore Cochin and Ors. v. Bombay Co. (1952) S.C.R. 113, the Golaknath's case, the Privy Purses case and Union of India v. H.S. Dhillon (1972) 3 S.C.R. 33 there are dicta it is drafted by people who wanted it to be a national instrument to against referring to the speeches in the Constituent Assembly and in the last mentioned case they were referred to as supporting the conclusion already arrived at. In Golaknath's case as well as Privy Purses case the speeches were referred to though it was said not for interpreting a provision but for either examining the transcendental character of Fundamental rights or for the circumstances which necessitated the giving of guarantees to the rulers. For whatever purpose speeches in the Constituent Assembly were looked at though it was always claimed that these are not admissible except when the meaning was ambiguous or where the meaning was clear for further support of the conclusion arrived at. In either case they were looked into. Speaking for myself, why should we not look into them boldly for ascertaining what was the intention of our framers and how they translated that intention ? What is the rationale for treating them as forbidden or forbidding material. The Court in a Constitutional matter, where the intent of the framers of the Constitution as embodied in the written document is to be ascertained, should look into the proceedings, the relevant data including any speech which may throw light on ascertaining it. It can reject them as unhelpful, if they throw no light or throw only dim light in which nothing can be discerned. Unlike a statute, a Constitution is a working instrument of Government, it is drafted by people who wanted it to be a national instrument to subserve successive generations. The Assembly constituted Committees of able men of high calibre, learning and wide experience, and it had an able adviser, Shri B.N. Rau to assist it. A memorandum was prepared by Shri B.N. Rau which was circulated to the public of every shade of opinion, to professonal bodies, to legislators, to public bodies and a host of others and was given the widest publicity. When criticism, comments and suggestions were received, a draft was prepared in the light of these which was submitted to the Constituent Assembly, and introduced with a speech by the sponsor Dr. Ambedkar. The Assembly thereupon constituted three Committees: (1) Union Powers Committee; (2) Provincial Powers Committee; and (3) Committee on the Fundamental Rights and Minorities Committee. The deliberations and the recommendations of these Committees, the proceedings of the Drafting Committee, and the speech of Dr. Ambedkar introducing the draft so prepared along with the report of these Committees are all valuable material. The objectives of the Assembly, the manner on which they met any criticism, the resultant decisions taken thereon, amendments proposed, speeches in favour or against them and their ultimate adoption or rejection will be helpful in throwing light on the particular matter in issue. In proceedings of a legislature on an ordinary draft bill, as I said earlier, there may be a partisan and heated debate, which often times may not throw any light on the issues which come before the Court but the proceedings in a Constituent Assembly have no such partisan nuances and their only concern is to give the nation a working instrument with its basic structure and human values sufficiently balanced and stable enough to allow an interplay of fortes which will subserve the needs of future generations. The highest Court created under it and charged with the duty of understanding and expounding it, should not, if it has to catch the objectives of the framers, deny itself the benefit of the guidance derivable from the records of the proceedings and the deliberations of the Assembly. Be that as it may, all I intend to do for the present is to examine the stages through which the draft passed and whether and that attempts were made to introduce words or expressions or delete any that were already there and for what purpose. If these proceedings are examined from this point of view, do they throw any light on or support the view taken by me ?

1132. The various stages of the Constituent Assembly proceedings, while considering the draft Articles 8 and 304 corresponding to Articles 13 and 368 respectively, would show that attempts were made to introduce amendments to both these articles to clarify that the embargo in Article 13(2) does not apply to an amendment made under Article 368. First, Shri K. Santhanam, one of the members of the Constituent Assembly moved an amendment on April 29, 1947 to Clause (2) of the draft submitted to the Constituent Assembly along with the Interim Report on Fundamental Rights. This amendment was that for the words "nor shall the Union or any unit make any law taking away or abridging any such right", the following be substituted:

Nor shall any such right be taken away or abridged except by an amendment of the Constitution.

1133. The sponsor explained "that if the clause stands as it is even by an amendment of the Constitution we shall not be able to change any of these rights if found unsatisfactory. In some Constitutions they have provided that some Parts of the Constitution may be changed by future Constitutional amendments and other Parts may not be changed. In order to avoid any such doubts, I have moved this amendment and I hope it will be accepted." This amendment was accepted by Sardar Vallabhbhai Patel and adopted by the Constituent Assembly. Clause (2), after it was so amended, was as follows: All existing laws, notifications, regulations, customs or usages in force within the territories of the Union inconsistent with the rights guaranteed under this Part of the Constitution shall stand abrogated to the extent of such inconsistency. Nor shall any such right be taken away or abridged except by an amendment of the Constitution.

Even as the clause stood originally in the draft, it was only the 'Union' or any 'unit' that was prohibited from making a law taking away or abridging any such right. At that stage there was nothing to show that a provision for amendment of the Constitution was either drafted or was before the Constituent Assembly for consideration. But otherwise also, it was not a case of the 'Union' or 'Union' and `the unit' being prevented from making a law. In order to justify the submission that all the organs of the State including the 'Union' or the `Union' and the 'Unit' were prevented from effecting an amendment of the Constitution, the only indication is that the law which was prohibited from taking away or abridging fundamental rights was the law of the 'Union' or any 'unit'. The amendment of Shri Santhanam was incorporated by the draftsmen in the Supplementary Report on Fundamental Rights which was presented to the Constituent Assembly on August 25, 1947, but subsequently this amendment of Shri K. Santhanam incorporated in the draft Article was deleted by the Drafting Committee. After the Draft Constitution was submitted to the President of the Constituent Assembly on February 21, 1948, and was given wide circulation, there appears to have been some criticism with respect to what had then become draft Article 8(2), which was in the following terms: The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void:

Provided that nothing in this clause shall prevent the State

from making any law for the removal of any inequality,

disparity, disadvantage or discrimination arising out of any

existing law.

The note relating to the addition of the proviso is stated thus: The proviso has been added in order to enable the State to make laws removing any existing discrimination. Such laws will necessarily be discriminatory in a sense, because they will operate only against those who hitherto enjoyed an undue advantage. It is obvious that laws of this character should not be prohibited.

The Constitutional Adviser's note to the Drafting Committee showed that a critic had pointed out that "Clause (2) of Article 8 may be held as a bar to the amendment of the provisions of the Constitution relating to the fundamental rights by a law passed under draft Article 304, and it should, therefore, be made clear that there is no restriction on the power of Parliament to amend such provisions under Article 304." The comment of the Constitutional Adviser to this objection was that "Clause (2) of Article 8 does not "override the provisions of Article 304 of the Constitution. The expression "law" used in the said clause is intended to mean "ordinary legislation". However, to remove any possible doubt, the following amendment may be made in Article 8: 'In the proviso to Clause (2) of Article 8, after the words "nothing in this clause shall" the words "affect the provisions of Article 304 of this Constitution or" be inserted'."

The Drafting Committee does not appear to have accepted this suggestion, because the proviso remained as previously drafted, until it was deleted as a result of Amendment No. 252 which was standing in the name of Mehboob Ali Beg. On November 25, 1948, Pandit Lakshmi Kanta Maitra in moving this Amendment said - "The purpose of this amendment is self-evident, and as I have been strictly enjoined not to make any speech I simply move this amendment." This amendment was adopted on November 29, 1948, and the proviso was deleted. (See C.A.D. Vol. VII, pp. 611 & 645). 1133. How meticulously this article was considered, can be seen from the proceedings on the objection of Naziruddin Ahmed that the words "custom or usage" in the definition of 'law' in Article 8(3)(a) (corresponding to Article 13(3)(a) would apply to Article 8(2), but the State does not make a 'usage or custom'. Dr. Ambedkar pointed out that that will apply to Article 8(1) which deals with 'laws in force', but Naziruddin Ahmed insisted that it does not, and that he was no wiser after the explanation given by Dr. Ambedkar that the definition of law is distributive. Dr. Ambedkar then said that the amendment of Naziruddin Ahmed creates some difficulty which it is necessary to clear up and ultimately to avoid any difficulty he moved an amendment to Clause (3) of Article 8 to read "unless the context otherwise requires" which governed Clauses (a) and (b). This was adopted. (See C.A.D. Vol. VII, p. 644). It was after this that the proviso was deleted. 1134. It would appear from the proviso before it was deleted, if read with Clause (2) of draft Article 8, as also the note showing the pupose for which it was incorporated, that the law referred to therein was a legislative law. It could not by any stretch of the language be construed as including an amendment under draft Article 304, because the proviso was making the restriction in Clause (2) of Article 8 inapplicable to the State from making any law for the removal of any inequality, disparity, disadvantage or discrimination arising out of any existing law. If the 'State' and the 'law' have to be given a particular meaning in the proviso the same meaning has to be given to them in Clause (2) and since the proviso clearly envisages a legislative law it furnishes the key to the interpretation of the word 'law' in Clause (2) of draft Article 8 that it is also a legislative law that is therein referred.

1135. To Article 304 also amendments were moved-one of them, Amendment No. 157 was in the name of Shri K. Santhanam, but he said he was not moving it. (See C.A.D. Vol. IX, p. 1643). Both the Attorney-General as well as the Advocate-General of Maharashtra said that they were not able to find out what these amendments were. But even assuming that this Amendment was designed to make the embargo under Article 13(2) applicable to Article 368, no inference can be derived therefrom. On the other hand an attempt was made by Dr. Deshmukh to entrench Fundamental Rights. He moved Amendment No. 212 to insert the following Article 304-A after 304: 304-A. Notwithstanding anything contained in this Constitution to the contrary, no amendment which is calculated to infringe or restrict or diminish the scope of any individual right, any rights of a person or persons with respect to property or otherwise shall be permissible under this Constitution and any amendment which is or is likely to have such an effect shall be void and ultra vires of any Legislature.

This amendment after Dr. Ambedkar's speech regarding the scope of the amendment under Article 304 was, by leave, withdrawn. (See C.A.D. Vol. IX p. 1665). 1136. Earlier when the Drafting Committee was considering the objectives, there was a proposal by Shri K. Santhanam, Mr. Ananthasayanam Ayyangar, Mr. T.T. Krishnamachari and Shrimati G. Durgabai that parts III, IV, IX and XVI be added in the proviso to Article 304, but it was pointed out by the Constitutional Adviser that that amendment involved a question of policy. The Drafting Committee did not adopt this amendment. If this amendment had been accepted, the amendment of the fundamental rights could be effected by the procedure prescribed for amendment which would be by two-thirds majority of each of the Houses of Parliament as well as by ratification by resolutions of not less than half the State Legislatures. Even this attempt does not give any indication that fundamental rights in Part III could not be amended under Article 368 or that 'law' in Article 13(2) is not the ordinary legislative law, but would include an amendment under Article 368. An attempt was made to show that on September 17, 1949, Dr. Ambedkar while speaking on draft Article 304 had said that Part III was not amendable. While adverting to the fact that they had divided the articles into three categories, he pointed out that the first) category was amendable by a bare majority, and as to the second category he had said: "If future Parliament wishes to amend any particular article which is not mentioned in Part III or Article 304, all that was necessary for them is to have two-thirds majority." The third category for the purposes of amendment he explained required two-thirds majority plus ratification. It is submitted on behalf of the first respondent that what was stated about Part III being excepted from the second category was a mistake and that he must be thinking that, alonfi with Article 304, Part III was also included in the third category. The Advocate-General of Nagaland said Part III was a mistake for third category. Instead of third category, he either said or is reported to have said, Part III. Whether it is a correct reading of his speech or not, it is not relevant, for in interpreting a provision the words used, the context in which it was used, the purpose which it intended to subserve in the scheme of the Constitution, will alone have to be considered. For the same reasoning the fact that none of the members who were also members of the Provisional Parliament ever entertained a doubt as to the non- amendability of Part III when the Constitution (First Amendment) Bill was debated and later enacted as an Act is not relevant.

1137. In the view I take on the construction of Article 13 read with the other provisions of Part III, Article 13(2) does not place an embargo on Article 368 for amending any of the right in Part III, and it is, therefore, not necessary to go into the question whether the leading majority judgment is right in finding the power of amendment in the residuary entry 97 of List I of Schedule VII, nor is it called for, having regard to the majority decision that the power of amendment is to be found in Article 368 itself. Whether the power is implied, what is the width and whether Parliament can enlarge that power may have to be considered, but that Article 368 contains the power and the procedure of amendment can admit of little doubt, as was held by the majority in Golaknath's case by five judges and Hidayatullah, J., it may, also be noticed that the leading majority judgment did not express any view as to whether under the proviso to Article 368, by amending that article itself, fundamental nights could be amended. (See Subba Rao, C.J., at p. 805).

1138. The question then arises, whether the Twenty-Fourth Amendment is valid, and if it is valid, whether Article 368 as amended is subject to any limitation, and if so, what ? The objects and reasons of the Twenty-Fourth Amendment Bill set out the purpose for which it was enacted and the mischief it sought to remedy. It is stated in Para 2 thereof thus:

The Bill seeks to amend Article 368 suitably for the purpose and makes it clear that Article 368 provides for amendment of the Constitution as well as procedure therefor. The Bill further provides that when a Constitution Amendment Bill passed by both Houses of Parliament is presented to the President for his assent, he should give his assent thereto. The Bill also seeks to amend Article 13 of the Constitution to make it inapplicable to any amendment of the Constitution under Article 368.

1139. What in fact the amendment effected will become clear, if the relevant provisions of Article 368, both before and after the amendment was made, are read in juxtaposition along with a new Sub-clause (4) added to Article 13.

Before the Amendment After the Amendment Procedure 368. An amendment of this Power of 368.(1) Notwithstanding for amendment Constitution may be initiated only Parliament anything in this of the by the

introduction of a Bill to amend Constitution Parliament Constitution. for the purpose in either House the may in exercise of its of

Parliament, and when Constitution constituent power amend the Bill is passed in each House and procedure by way of addition, by a majority of the total therefor. variation or repeal any membership of the House provision of this and by a majority of not less Constitution in accordance than two-thirds of the members with the procedure laid of that House present and voting down in this article. it shall be presented to the President for his assent and upon such assent being given to (2) An Amendment of the bill, the Constitution shall this Constitution may be stand amended in accordance initiated only by the with the terms of the Bill. introduction of a Bill for the purpose in Provided that if such amendment either House of Parliament, seeks to make any change in- and when the Bill is passed in each House by a ... majority of the total membership of that House and the amendment shall also require by a majority of not less to be ratified by the

Legislatures than two-thirds of the of not less than one-half members of that House of the States by resolutions to present and voting, it that effect passed by those shall be presented to Legislatures before the Bill the President who shall making provision for such give his assent to the amendment is presented to Bill and thereupon the the President for assent. Constitution shall stand amended in accordance with the terms of the Bill : Provided that if such amendment seeks to make any change in- ... the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by

resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent. (3) Nothing in Article 13 shall apply to any amendment made under this article. 13(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368.

1049. Again in Kariappar case 1968 A.C. 717 the Judicial Committee considered a Ceylon Act which was inconsistent with the Ceylon Constitution. The Act imposed civic disabilities for 7 years on person to whom the Act applied and provided for the vacation of the scat as a Member of Parliament. The words amend or repeal in Section 29(4) of the Ceylon Constitution were read by the Judicial Committee to cover an amendment or repeal by inconsistent act. The plain words amend or repeal did not admit ambiguity. 1050. To introduce into our Constitution the doctrine of implied and inherent limitations on the meaning of the word "amendment" by upholding the power to amend the essential features but not the core on the theory that only people can change by referendum is to rewrite the Constitution. The decisions in Ranasinghe case 1965 A.C. 172 and Kariappar case 1968 A.C. 717 are authorities for two propositions. First, that in the exercise of the pouter of amendment a controlled Constitution can be converted into an uncontrolled one. Second, the word "amendment" means alteration. In Ibralebbe case 1964 A.C. 900 the Judicial Committee said that if the Ceylon legislature abrogated the appeal to the Privy Council it would be an amendment of its judicial structure. 1051. The decision in Mangal Singh v. Union of India (1967) 2 S.C.R. 109 has been relied on by Mr. Palkhivala in support of the proposition that the power of amendment is subject to implied limitation. Article 4 of the Constitution which was interpreted in Mangal Singh case has to be read with Articles 2 and 3. Article 4 contains a limited power of amendment, limited to amend Schedules 1 and 4 as may be necessary to give effect to a law mentioned in Articles 2 and 3 and of making supplemental, incidental and consequential provisions. Shah, J. in Mangal Singh case said that power with which Parliament is invested by Articles 2 and 3 is a power to admit, establish or form new States or to admit, establish or admit new States which conform to the democratic pattern envisaged by the Constitution and is not a power to override the Constitutional scheme. It is manifest that when a new State is created in accordance with Articles 2 and 3 the amendment under Article 4 will be followed up as necessary to give effect to the same. Such an amendment does not override the Constitutional scheme. It is an amending power of a limited nature and is supplemental, incidental or consequential to the admission, establishment or formation of a State as contemplated by the Constitution. This decision does not say that there are implied limitations to the amending power. 1052. The petitioner challenges the legality and the validity of the Constitution (25th) Amendment Act.

1053. The Constitution (25th) Amendment Act has first amended Article 31(2), second added Article 31 (2B) and third introduced Article 31C. Article 31(2) is amended in two respects. First, it substituted the word "amount" for the word "compensation" for property acquired or requisitioned. Second, it is provided that the acquisition or requisition law shall not be called in question on the ground that whole or any part of the amount is to be given otherwise than in cash. Article 31 (2B) has been inserted to the effect that nothing in Sub-clause (f) of Clause (1) of Article 19 shall effect any such law as is referred to in Clause (2).

1054. Article 31C states that notwithstanding anything contained in Article 13 no law giving effect to the policy of the State towards securing the principles specified in Clause (b) or Clause (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Article 14 or Article 19 or Article 31 and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy. It is provided that where such law is made by the legislature of a State the provisions of this Article shall not apply thereto unless such law having been reserved for the consideration of the President has received his assent. 1055. The basic controversy is really regarding the right to property and the acquisition of property by the State. The Constitution of India was intended to achieve political liberty on the one hand and economic and social, liberty on the other for all citizens of India. The Directive Principles in the Constitution are also fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. That is Article 37. It can be achieved by making changes in the economic and social structure of the society.

1056. The resolutions of the Congress in 1929, 1931, 1945 and the objective resolution of 22 January, 1947 and the resolution of All-India Congress Working Committee in 1947 are not only a remembrance of things past. In 1929 the Congress resolution was that it was essential to make revolutionary changes in the economic and social structure of the society and to remove the gross inequalities. It was also resolved that political freedom must include the economic freedom of the starving millions. In such economic and social programme the State is to own or control the key industries and services, mineral resources, railways, waterways, shipping and other means of public transport. In 1945 the Working Committee said that the concentration of wealth and power in the hands of individuals and groups was to be prevented. Social control of the mineral resources and of the principal methods of production and distribution in land, industry and in other departments of national activity would be necessary to develop the country into cooperative commonwealth. In the case of industries which in their nature must be run on a large scale and on centralised basis, it was felt that they should belong to the community and they should be so organised that the workers become not only co-sharers in the profits but also increasingly associated with the management and administration of the industry. Land and all other means of production as well as distribution and exchange must belong to and be regulated by the community in its own interest. The framers of the Constitution wanted a social structure which would avoid the acquisitive economy of private capitalism and the regimentation of a totalitarian State. 1057. In this background the Constitution was created with the object of effecting social revolution. The core of the commitment to the social revolution lies in Part III and Part IV of the Constitution. They are described to be "conscience of the Constitution". The object of Part III was to "liberate the power of man equally for distribution to the common good". The State would have to bear the responsibility for the welfare of citizens. The Directive Principles are a declaration of economic independence so that our country men would have economic as well as political control of the country. 1058. The centre of the fundamental rights is said by Mr. Palkhivala to be Articles 14, 19 and 31. It is right to property. But the Directive Principles are also fundamental. They can be effective if they are to prevail over fundamental rights of a few in order to subserve the common good and not to allow economic system to result to the common detriment. It is the duty of the State to promote common good. If the motives for co-operating with others consist in the mere desire to promote their private good they would be treating their fellowmen as means only and not also an end. The notion of common good was needed to explain away the difference between the principles of reasonable self love and benevolence. The distribution of material resources is to subserve the common good. The ownership and control of the material resources is to subserve common good. The economic system is to work in such a manner that there is no concentration of wealth to the common detriment. Again, the economic system is to work in such a manner that the means of production are not used to the common detriment.

1059. The declaration of human rights on which Mr. Palkhivala relied for the unamendability of fundamental rights is rightly said by the Attorney General to be no impediment to the power of amendment nor to support the petitioner's contention regarding the inviolability of the right to property. For the purpose of promoting the general welfare in a democratic State the Directive Principles were said by the Attorney General to be fundamental in achieving rights of men and economic and social rights for human dignity. Every citizen asserts enjoyment for fundamental rights under the Constitution. It becomes the corresponding duty of every citizen to give effect to fundamental rights of all citizens, dignity of all citizens, by allowing the State to achieve the Directive Principles. The duty of the State is not limited to the protection of individual interest but extends to acts for the achievement of the general welfare in all cases where it can safely act and the only limitations on the governmental actions are dictated by the experience of the needs of time. A fundamental right may be regarded as fundamental by one generation. It may be considered to be inconvenient limitation upon legislative power by another generation. Popular sovereignty means that the interest which prevails must be the interest of the mass of men. If rights are built upon property those who have no property will have no rights. That is why the State has to balance interest of the individual with the interest of the society. Industrial democracy is the necessary complement to polticial democracy. The State has to serve its members by organising an avenue of consumption. This can be done by socialisation of those elements in the common welfare which are integral to the well being of the community. 1060. The petitioner's challenge to the amendment on Article 31(2) is as follows. The right to property is one of the essential features of the Constitution. It is the hand maid to various other fundamental rights. The right to freedom of the Press under Article 19(1)(a) is meaningless if the publisher could be deprived of his printing plant and the building in which it is housed without compensation. The fundamental right under Article 19(1)(c) to form trade unions will be denuded of its true content if the property of a trade union could be acquired by the State without compensation. The right to practise any profession or carry on any occupation, trade or business under Article 19(1)(g) will be the right to do forced labour for the State if the net savings from the fruits of a citizen's personal exertion are liable to be acquired by the State without compensation. The freedom of religion in Article 26 will lose a great deal of its efficacy if the institutions maintained by a community for its religious and charitable purposes could be acquired without compensation. The implication of the proviso to Article 31(2) is that the State may fix such an amount for acquisition of the property as may abridge or abrogate any of the other fundamental rights. Exercise of fundamental rights would be affected by the deprivation of property without compensation in the legal sense and the only exception to this power of the State is the case of educational institution dealt with in the proviso. Article 31(2) as a result of the Constitution (25th) Amendment Act will empower the State to fix an amount on a basis which need not be disclosed even to the members of the legislature and which may have no relation to the property sought to be acquired. The amount is not to satisfy any of the principles of compensation. It need not be paid in cash and it will yet not be considered to be a ground of challenge to the validity of law. Article 31(2) has nothing to do with estate, zamindaries, land reforms or agrarian reforms which are specifically dealt with by Article 31A.

1061. The right to acquire, hold and dispose of property under Article 19(1)(f) is subject under Article 19(5) to reasonable restrictions in the interests of the general public If Article 19(5) permits such reasonable restrictions it is said by the petitioner that the only object of making Article 19(1)(f) inapplicable by Article 31(2B) is to enable acquisition and requisition laws to contain restrictions or provisions which are unreasonable and not in the public interest. Reliance was placed by Mr. Palkhivala on the Bank Nationalisation case (1970) 3 S.C.R. 530 and the observations at p. 577 that if Article 19(1)(f) applied to acquisition or requisition, law which permitted a property to be taken without the owner being heard where the rules of natural justice would require the owner to be heard, would be void as offending Article 19(1)(f). Extracting that observation it is said that the amount fixed without giving him a hearing or amending the Land Acquisition Act to provide that any man's land or house can be acquired without notice to the owner to show cause or to prove what amount should be fairly paid to him for the property acquired will damage the essence or core of fundamental right to property.

1062. After the substitution of the neutral expression "amount" for "compensation" in Article 31(2) by the Constitution (25th) Amendment Act the Article still binds the legislature to provide for the giving to the owner a sum of money either in cash or otherwise. The legislature may either lay down principles for the determination of the amount or may itself fix the amount. Before the amendment the interpretation of Article 31(2) was that the law was bound to provide for the payment of compensation in the sense of equivalent in value of the property acquired. This was the interpretation given in the Bank Nationalisation case even after the Constitution 24th Amendment Act, which said that the adequacy of compensation could not be challenged. The Constitution 25th Amendment Act states that the law no longer need provide for the giving of equivalent in value of the acquired property. The quantum of the amount if directly fixed by the law and the principles for its quantification are matters for legislative judgment. Specification of principles means laying down general guiding rules applicable to all persons or transactions covered thereby. In fixing the amount the legislature will act on the general nature of the legislative power. The principle may be specified. The principle which may be acted upon by the legislature in fixing the amount may include considerations of social justice as against the equivalent in value of the property acquired. Considerations of social justice will include the relevant Directive Principles particularly in Article 39(b) and (c). These principles are to subserve the common good and to prevent common detriment. The question of adequacy has been excluded from Article 31(2) by the Constitution Fourth Amendment Act. It cannot be said that the legislature would be under the necessity of providing a standard to measure an adequacy with reference to fixing the amount. The Constitution does not allow judicial review of a law on the ground of adequacy of the amount and the manner as to how such amount is to be given otherwise than in cash.

1063. If the word "compensation" as it stood prior to the amendment of Article 31(2) must mean equivalent value in cash it is said by the Solicitor General that the concentration of wealth will remain unchanged and justice social, economic, and political amplified in Articles 39, 41, 42, 43, 45, 46 and 47 will be thwarted. The fulfilment of the Directive Principles is in a sense more fundamental than the mere right to property. Re- adjustment in the social order may not be practicable in a smooth manner unless the Directive Principles are effectively implemented. The emergence of a new social order is a challenge to present day civilisation. If nations wanted independence and supremacy in the latter half of the 19th century and the first half of the 20th century individual dignity, individual freedom, individual status in a well organised and well planned society are opening the frontiers since the mid-century. In this background the 25th Amendment protects the law in one respect, namely, that amount payable to the owner is no longer to be measured by the standard of equivalent in value of the acquired property. The quantum cannot be a matter for judicial review. Ever since the Fourth Amendment the adequacy of compensation is excluded by the Constitution. The reason is that the Constitution declares in clear terms that adequacy is not justiciable and therefore, it cannot be made justiciable in an indirect manner by holding that the same subject matter which is expressly barred is contained implicitly in some other provision and is, therefore, open to examination.

1064. Just as principles which were irrelevant to compensation were invalid prior to the Constitution 25th Amendment it was said that if any principles are adopted which are irrelevant to the concept of amount as a legal concept or as having a norm the law would be invalid because the amount would be purely at the will or at the discretion of the State. Therefore, it was said that when the law fixes the amount it might indicate the principles on which the amount had been arrived at or the Court might enquire into on which the amount had been fixed. Any contrary view according to the petitioner would mean that under Article 31(2) state would have authority to specify principles which could be arbitrary or specify the amount which could be arbitrary.

1065. It was also said that as a result of the proviso to Article 31(2) after the 25th Amendment the law providing for compulsory acquisition of property of an educational institution established by a minority referred to in Article 31(1) the State was to ensure that the amount fixed or determined was such as would not restrict or abrogate the right guaranteed under that clause. The amount would have to be higher than the amount which would be sufficient not to damage the essence of that right. But under Article 31(2) after the 25th Amendment where the proviso did not apply it was said that the core or essence of the fundamental rights would be damaged or destroyed. 1066. The word "amount" in Article 31(2) after the 25th Amendment is to be read in the entire collocation of words. No law shall be called in question in any Court on the ground that the amount so fixed or determined is inadequate or the whole or part of it or any part of such amount is given in cash. In Article 31(2) the use of the word "amount" in conjunction with payment in cash shows that a sum of money is being spoken of. Amount is a sum meaning a quantity or amount of money, or, in other words, amount means a sum of money.

1067. Article 31(2) prior to as well as after the 25th Amendment indicates two alternatives to the legislatures either to specify the principles for determination of the amount or to fix the amount or "compensation" prior to the amendment. In fixing the amount or compensation the legislature is not required to set out in the law the principles on which compensation had been fixed in the unamended clause or the amount is fixed in the amended clause.

1068. Article 19(1)(f) provides that all citizens shall have the right to hold, acquire or dispose of property whereas Article 31(2) deals with law by which the property is acquired. Such law acquiring property directly extinguishes the right to hold or dispose of property acquired. Article 19(1)(f) is excluded from Article 31(2) in order to make Article 31(2) self contained. The right to hold property cannot coexist with the right of the State to acquire property. That is why Article 31(2) is to be read with Article 31A, 31B and 31C, all the Articles being under the heading "Right to Property". 1069. It has been held by this Court in F.N. Rana case (1964) 5 S.C.R. 294 that Land Acquisition Act does not give the right of quasi-judicial procedure or the requirements of natural justice as Section 5A of that Act has been held to be administrative. It has also been held by this Court that a Requisition Act which did not give a right of representation before an order for requisition was made did not violate Article 19(1)(f). (See S.N. Nandi v. State of West Bengal A.I.R. 1971 SC 961).

1070. The other part of the 25th Amendment which is challenged by the petitioner is Article 31C. Article 31C is said by Mr. Palkhivala to destroy several essential features of the Constitution for these reasons. First, there is a distinction between cases where the fundamental rights are amended and laws which would have been void before the 25th Amendment are permitted to be validly passed and cases where the fundamental rights remain unamended but the laws which are void as offending those rights are validated by a legal fiction that they shall not be deemed to be void. The law is in the first case Constitutional in reality whereas in the second case the law is unConstitutional in reality but is deemed by a fiction of law not to be void with the result that laws which violate the Constitution are validated and there is a repudiation of the Constitution. If Article 31C is valid it would be permissible to Parliament to amend the Constitution so as to declare all laws to be valid which are passed by Parliament or State legislatures in excess of legislative competence or which violate basic human rights enshrined in Part III or the freedom of inter-State Trade in Article 301. Article 31C gives a blank charter to Parliament and the State legislatures to defy the Constitution or damage or destroy the supremacy of the Constitution. Secondly, Article 31C subordinates fundamental rights to Directive Principles. The right to enforce fundamental rights is guaranteed under Article

32. The Directive Principles are not enforceable by reason of Article 37. Yet it is said that while giving effect to Directive Principles fundamental rights are abrogated. Thirdly, whereas an amendment of a single fundamental right would require a majority of at least two-thirds of the members of Parliament present and voting, a law within Article 31C which overrides and violates several fundamental rights can be passed by a simple majority. Fourthly, every fundamental right is an essential feature of the Constitution and Article 31C purports to take away a large number of those fundamental rights. Fifthly, the Court is precluded from considering whether law under Article 31C is such that it can possibly secure Directive Principles in question. Sixthly, no State legislature can amend the fundamental rights or any other part of the Constitution but Article 31C empowers the State legislaure to pass laws which virtually involve repeal of the fundamental rights. Power of amending the Constitution is delegated to State legislatures. 1071. Finally, it is said that the fundamental rights under Article 14, 19 and 31 which are sought to be superseded by Article 31C are necessary to make meaningful specific rights of the minorities which are guaranteed by Articles 25 to 30. The proviso to Article 31(2) shows that in the case of acquisition of property of an educational institution established by a minority an amount fixed should be such as not to restrict or abrogate the right of the minorities under Article 31. It is, therefore, said that the implication is that if property is acquired in cases other than those of minorities an amount can be fixed which restricts or abrogates any of the fundamental rights. Again, it is said that if a law violates the right of the minority under Articles 25 to 30 such a law would be no law. Therefore, deprivation of property under such law would violate Article 31(1). But the 25th Amendment by Article 31C abrogates Article 31(1) and minorities can be deprived of their properties held privately or upon public, charitable or religious trusts by law which violates Articles 25 to 30.

1072. The pre-eminent feature of Article 31C is that it protects only law. Therefore, any question of violation of Article 31(1) does not arise. Law referred to in Article 31C must be made either by Parliament or by the State legislature, according to the legislative procedure for enacting a law. There are several Articles in the Constitution where the expression "law" with reference to the authority to make law has been used. These are Articles 17, 19(2) to (6), 21, 22, 23(1), 26, 31, 33, 34 and 35. These Articles indicate that the expression "law" there means law made by the legislature in accordance with its ordinary legislative procedure. The expression "law" does not include within itself ordinance, order, bye-law; rule, regulation, notification, custom or usage having the force of law nor an amendment of the Constitution in accordance with the procedure prescribed in Article 368. In Article 13 the term "law" has been used in a wide sense. For this a definition was given in Article 13(3) to include certain other categories. The definition in Article 13(3) is expressly limited for Article 13. Law in Article 31C must have the same meaning as it has in other Articles generally, namely, a statute passed by the legislature. 1073. It is true that such law may need details to be filled up by other agencies but the essential elements of Article 31C must be supplied directly by that enactment. A question arose with reference to Article 254 as to whether a clause of the Sugar Control Order 1955 made under the Essential Commodities Act had the effect of repealing the corresponding Uttar Pradesh State Law. This Court held that the power of repeal was vested in Parliament and Parliament alone could exercise it by enacting an appropriate provision in that regard. Parliament could not delegate the power of repeal to any executive authority. (See Ch. Tika Ramji and Ors. Etc. v. The State of Uttar Pradesh and Ors. 1956 S.C.R. 393).

1074. Article 31C is inextricably bound up with Article 39(b) and (c) because the purpose and the phraseology in both the Articles are essentially identifical. The legislative efforts to implement Directive Principles in Article 39 (b) and (c) were set in motion in some States to achieve reforms in land law. Articles 31A and 31B were introduced by the Constitution First Amendment Act 1951. The main reason for introducing Articles 31A and 31B was to exclude the operation of Part III as a whole from those provisions. The true relationship between Directive Principles in Part IV and the fundamental rights in Part III became clear. It was realised that though the liberty of individual was valuable it should not operate as an insurmountable barrier against the achievement of Directive Principles. In Sajjan Singh case (1965) 1 S.C.R. 933 it was said that "the rights of society are made paramount and they are placed above those of the individual". In the Bihar Land Reforms case 1952 S.C.R. 889 it was said that "a fresh outlook which placed the general `interest of the community above the interest of the individuals, pervades over Constitution".

1075. Law contemplated in Article 31C will operate on the ownership and control of the material resources of the community to be distributed as best to subserve the common good. The operation of the economic system should not result in concentration of wealth. Means of production should not be used to the common detriment. The ownership and control of the material resources of the community can be achieved by nationalisation and planned economy. The operation of the economic system will mean imposition of control on the production, supply and distributions of products of key industries and essential commodities. There can be laws within Schedule 7 List III Entries No. 42, 43; List I Entry No. 52 to 54 and List II Entries No. 23, 24, 26 and 27. 1076. The provisions in Article 31C that no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy was questioned by the petitioner to exclude judicial review and, therefore, to be illegal. Article 31C was in the second place said to enable the State legislatures to make discriminatory laws destructive of the integrity of India. Thirdly, Article 31C was said to delegate the amending power to State legislatures or Parliament in its ordinary legislative capacity.

1077. The declaration mentioned in Article 31C is for giving effect to the policy of the State towards securing the principles in Article 39 (b) or (c). Such a declaration in a law shall not be called in question on the ground that it does not give effect to such policy. The laws which receive protection under Article 31C are laws for securing the Directive Principles of Articles 39(b) and (c). The nexus or connection between the law and the objectives set out in Article 39(b) and (c) is a condition precedent for the applicability of Article 31C. On behalf of the Union and the State it was not contended that whether there was such nexus or not was not justiciable. The real reason for making the declaration free from question in a Court of law on the ground that it does not give effect to such policy is to leave legislative policy and wisdom to the legislature. The legislative measure might not according to some views give effect to Directive Principles. Therefore, legislatures are left in charge of formulating their policy and giving effect to it through legislation. It is the assessment and judgment of such measures which is sought to be excluded from judicial review by the declaration.

1078. In order to decide whether a statute is within Article 31C the court may examine the nature and the character of legislation and the matter dealt with as to whether there is any nexus or the law to the principles mentioned in Article 39(b) and (c). If it appears that there no nexus between the legislation and the objectives and principles mentioned in Article 39(b) and (c) the legislation will not be within the protective umbrella. The Court can tear the veil to decide the real nature of the statute if the facts and circumstances warrant such a course.

1079. The reason for excepting Articles 14, 19 and 31 from Article 31C is the same as in Article 31A. The Solicitor General rightly said that the fear of discrimination is allayed by three safeguards. The first and the foremost safeguard is the good sense of the legislature and the innate good sense of the community. The second safeguard is the President's assent. The third safeguard is that in appropriate cases it can be found as to whether there is any nexus between law and Directive Principles sought to be achieved. There is no better safeguard than the character of the citizen, the character of the legislature, the faith of the people in the representatives and the responsibility of the representatives to the nation. No sense of irresponsibility can be ascribed or attributed to the representatives of the people. The exclusion of Article 14 is to evolve new principles of equality in the light of Directive Principles. The exclusion of Article 19 is on the footing that laws which are to give effect to Directive Principles will constitute reasonable restrictions on the individual's liberty. The exclusion of Article 31(2) is to introduce the consideration of social justice in the matter of acquisition. Directive Principles are not limited to agrarian reforms. Directive Principles are necessary for the uplift and growth of industry in the country.

1080. Article 31(4) and 31(6) speak of certain class of laws not being called in question on the ground of contravention of Article 31(2). Article 31A relates to law of the class mentioned therein not to be void on the ground that it is inconsistent with or takes away or abridges any of the fundamental rights conferred by Articles 14, 19 and 31. Article 15(4) states that nothing in Article 15 or in Article 29(2) shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Article 31(5)(b)(ii) states that nothing in Article 31(2) shall affect the provisions of any law which the State may make for the promotion of public health. Article 33 speaks of law with regard to members of the Armed Forces charged with the maintenance of public order, so as to ensure the proper discharge of their duties and the maintenance of discipline among them and for that purpose the operation of some fundamental right in Part III is modified.

1081. The Solicitor General rightly said that similarly Article 31C creates a legislative field with reference to the object of legislation. It is similar to laws contemplated in Article 15(4), Article 31(5)(b)(ii) and Article 33. Each of these Articles carves out an exception to some Article or Articles conferring fundamental rights. The field carved out by the various Articles are of different dimensions. The entire process of exception of the legislative field from the operation of some of the Articles relating to fundamental rights is the mandate of the Constitution. It is wrong to say that the Constitution delegates power of amendment to Parliament or the States. As a result of the 25th Amendment the existing legislative field is freed from the fetters of some provisions of Part III of our Constitution on the legislative power.

1082. Article 31C substantially operates in the same manner in the industrial sphere as Article 31A operates in the agrarian sphere. The problems are similar in nature though of different magnitude. The Constitutional method adopted to solve the problem is similar. The Solicitor General is correct in summing up Article 31C as an application of the principles underlying Articles 31(4) and 31(6) and Article 31A to the sphere of industry. 1083. A class of legislation can be identified and the legislative field can be carved out from the operation of fundamental rights or some of those can be excluded by a provision of the Constitution. Articles 31(4) and 31(6) identify the laws with reference to the period during which they were made. Article 31(4) relates to a bill pending at the commencement of the Constitution in the legislature of a State to have been passed by such legislature and to have received the assent of the President to be not called in question on the ground that it contravenes Article 31(2). Article 31(6) relates to law of the State enacted not more than 18 months from the commencement of the Constitution to he submitted to the President for his certification and upon certification by the President not to be called in question on the ground of contravention of Article 31(2). Articles 31(2) and 31A identify the legislative field with reference to the subject matter of law. Articles 15(4) and 33 and Article 31(5)(b)(ii) identify laws with reference to the objective of the legislature. The exceptions to some part or some Articles of Part III of the Constitution is created by the Constitution and any law which is made pursuant to such power conferred by the Constitution does not amend the operation or application of these Articles in Part III of the Constitution. The crux of the matter is that modification or exception regarding the application of some of the Articles in Part III is achieved by the mandate of the Constitution and not by the law which is to be made by Parliament or State under Article 31C. Therefore, there is no delegation of amending powers. There is no amendment of any Constitutional provision by such law.

1084. The Constitution First Amendment Act 1951 introduced Articles 31A and 31B and Schedule 9 which are to be read together. Article 31A excluded a challenge under the whole of Part III for the laws of the kind mentioned in that Article. Article 31B restrospectively validated laws mentioned in Schedule 9 from challenge under Part III and also on the ground that they violated Section 299 of the Government of India Act, 1935. It may be stated here that Parliament which passed the Constitution First Amendment Act 1951 was the Constituent Assembly functioning as a legislature, till elections were held and a Parliament as provided for under the Constitution could be formed. Articles 31A and 31B carried out the intention of the framers of the Constitution as stated in Articles 31(4) and 31(6) that land legislation or agrarian reform was to be enforced and fundamental rights were not to be allowed to stand in the way of implementing the Directive Principles of State Policy contained in Article 39. The fundamental right conferred under Article 31(2) was subordinated to Article 39(b) and (c) in order to protect laws referred to in Article 31(4) and 31(6). When that object failed and the law was struck down under Article 14, Parliament gave effect to the policy underlying Articles 31(4) and 31(6) by excluding a challenge under every Article in Part III. In the Bihar Land Reforms case this Court said that the purpose behind the Bihar Land Reform Act was to bring about a reform of the land distribution system in Bihar for the general benefit of the community and the legislature was the best judge of what was good for the community and it was not possible for this Court to say that there was no public purpose behind the acquisition contemplated in the statute. 1085. This Court in State of West Bengal v. Bela Banerjee 1954 S.C.R. 558 held that the word "compensation" means just equivalent or full indemnity for the property expropriated. In Dwarkadas Srinivas v. Sholapur Spg & Wvg. Co. Ltd. 1954 S.C.R. 674 this Court struck down the law for taking over the management of Sholapur Mills on the ground that it amounted to acquisition and since no compensation was provided for, the law was held to be void. The Constitution Fourth Amendment Act 1955 came to remedy the implementation of essential welfare legislation. One of the measures in the Fourth Amendment Act was the amendment of Article 31 by making adequacy of compensation non-justiciable and the other was to amend Article 31A. The formula which had been used in Articles 31(4) and 31(6) to exclude the contravention of Article 31(2) was adopted with regard to adequacy of compensation. As a result of the amendment of Article 31A new categories were added to the Article and new Acts were added to the Ninth Schedule. The 17th Amendment Act made changes in Article 31A(1) and the proviso and amended Schedule 9 by inserting new Acts therein.

1086. The successive amendments of the Constitution merely carried out the principle embodied in Article 31 Clauses (4) and (6) that legislation designed to secure the public good and to implement the Directives under Article 39(b) and (c) should have priority over individual rights and that therefore fundamental rights were to fee subordinate to Directive or State Policy.

1087. Article 31(2) as it originally stood spoke of compensation for acquisition or requisition of property. The meaning given to compensation by the Court was full market value. There was no scope for giving effect to the word "compensation". There was no flexibility of social interest in Article 31(2). Every concept of social interest became irrelevant by the scope of Article 13(2). It is this mischief which was sought to be remedied by the 25th Amendment. If Directive Principles are to inter-play with Part III legislation will have to give expression to such law. Parts III and IV of the Constitution touch each other and modify. They are not parallel to each other. Different legislation will bring in different social principles. These will not be permissible without social content operating in a flexible manner. That is why in the 25th Amendment Article 31(2) is amended to eliminate the concept of market value for property which is acquired or requisitioned.

951. Mr. Seervai rightly contended that there is no foundation for the analogy that just as Judges test reasonableness in law, similarly the judicial mind will find out the essential features on the test of, reasonableness. Reasonableness in law is treated as an objective criterion because reason inheres in man as rational being. The citizen whose rights are affected applies reason and when he assails a law he possesses a standard by which he can persuade the Court that the law is unreasonable. The legislature which makes a law has the standard of reasonableness and has the further qualification to apply the standard because of familiarity with the needs, desires and the wants of the people whom the legislature represents. As regards the Judge not only does he share the reasonableness of the reasonable man but his trained mind enables him to see certain aspects clearly. The process of judicial review of legislation as laid down by Courts is that the Court will start with the presumption that laws enacted are reasonable. The objective standard is reasonableness. That is why in the law of contract reasonable price is to be ascertained by the Courts. In the law of torts the Courts find out what reasonable care is. In the law of property reasonable conduct is found out by the Courts to avoid evil consequences. Reasonableness is to be judged with reference to the right which is restricted when Article 19 is considered.

952. The American Courts evolved a test of reasonableness by the doctrine of substantive due process which means not that the law is unreasonable but that on political, social and economic grounds the majority of Judges consider that the law ought not be permitted to be made. The crucial point is that in contradistinction to the American Constitution where rights are couched in wide general terms leaving it to the Courts to evolve necessary limitations our Constitution limited it by precise words of limitation as for example in Articles 19 and 21. In Article 21 the Constitution-makers substituted "procedure established by law" for the words "due process of law". The reason for the change was that the procedure established by law was specific. The framers of the Constitution negatived the vague undefinite reasonableness of laws on political, social and economic grounds. In Gopalan case due process was rejected, by clearly limiting the rights acquired and by eliminating the indefinite due process. The Constitution makers freed judicial review of subjective determination. Due process as a test of invalidity of law was deliberately withheld or denied. Courts are not concerned with the wisdom or policy of legislation. The Courts are equally not concerned with the wisdom and policy of amendments to the Constitution.

953. Reliance was placed by Mr. Palkhivala on Ridge v. Baldwin 1964 A.C. 40 where it is said that opinions that natural justice is so vague as to be practically meaningless, are tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist. In the same case it was said that the idea of negligence is equally insusceptible or exact definition, but what a reasonable man would regard as fair procedure in particular circumstances and what he would regard as negligence in particular circumstances are equally capable of serving as tests in law. Extracting those observations it was said by Mr. Palkhivala that though the border-line between essential features and non-essential features could not be stated or it was not possible to specify exhautively the amendment which could be invalid on that principle yet there was no reason why the principle of inherent and implied limitations to amend our Constitution should not be accepted. Inherent and implied limitations cannot originate in an oracle when the Constitution does not contain any express prohibition against amending any provision. When Article 368 speaks of changes in the provisions of the Constitution as are set out in Clauses (a) to (d) of the proviso it is manifest that the makers of the Constitution expressed their intention with unerring accuracy that features which can broadly be described as federal features, and from that point of view "Essential features" could be amended. In the face of these express provisions it is impossible to hold that the Constitution does not contemplate an amendment of the so called essential features of the Constitution. The proviso confers that power with relation to the judiciary, the executive and the legislature, none of which could be said to be inessential. Indeed it is difficult to imagine that the Constitution contained any provision which was inessential. It need be hardly said that amendment not only means alteration, addition or repeal of provision but also deletion of some part, partial repeal and addition of a new part.

954. It was said that if our Parliamentary system was changed to a Presidential system it would be amending the core of our Constitution. But such a change is permissible under Article 368. Whether the people would adopt such an amendment is a different matter and does not fall for consideration here. The core of the federal form of Government in our country is greater power in the Union Parliament than States for preserving the integrity of the country. There can be changes by having a confederation or by conferring greater power on the Centre. Those contentions about unamendability of essential features do not take into consideration that the extent and character of any change in the provisions of the Constitution is to be determined by legislatures as amending bodies under Article 368 and as representatives of the people in a democracy and it is not the function of the Courts to make any such determination.

955. Mr. Palkhivala contends that the Constitution 24th Amendment Act is unConstitutional because Parliament cannot exceed the alleged implied and inherent limitations on the amending power as it stood before the 24th Amendment. The 24th Amendment has substituted the marginal note "Power of Parliament to amend the Constitution and procedure therefor" for the original note "procedure for amendment of the Constitution". This change is due to the fact that according to the leading majority judgment in Golak Nath case the unamended Article dealt only with the procedure for amendment and that the power of amendment was in the residuary power of legislation. The 24th Amendment has declared that the power to amend the Constitution is in Article

368. That was the view of this Court in earlier decisions. That was the minority view in Golak Nath case. By amendment that view has become the Constitutional mandate.

956. The other change as a result of the 24th Amendment is that "Parliament may in the exercise of its constituent power amend" in place of words "amendment of this Constitution may be initiated". The reasons for this change are to give effect to the decisions of this Court in Shankari Prasad case which in considering the validity of the First Amendment recognised and affirmed the vital distinction between constituent power and legislative power and decided that the word "law" in Article 13(2) applied to the exercise of legislative power and did not apply to an amendment of the Constitution. In Sajjan Singh case the same distinction was upheld by the majority of this Court. In Golak Nath case the majority and the concurring judgment denied the distinction between legislative and constituent power and held that Article 13(2) applied to an amendment of the Constitution under Article 368 because there was no distinction between legislative and constituent power. As a consequence the leading majority judgment in Golak Nath case held that Parliament could not amend fundamental rights. The dissenting judgments in Golak Nath case upheld the vital distinction between legislative and constituent powers and held that the decision in Shankari Prasad case and the majority decision in Sajjan Singh case were correct and that Parliament had power to amend the fundamental rights since an amendment of the Constitution was not law within the meaning of Article 13(2). These features give the reason why the expression "Parliament may in the exercise of constituent power" was introduced by the 24th Amendment. Parliament took notice of two conflicting views and the unamended Article 368. Parliament took notice of the preponderating judicial opinion in favour of the view that Article 368 contained the power of amendment and that power was a constituent power. Wanchoo, J. held that the power under Article 368 is constituent power to change the fundamental law, that is to say the Constitution. The constituent power under the Constitution belonged to Parliament because the Constitution gave it. The Amendment made explicit what the judgment in Shankari Prasad case and the majority judgment in Sajjan Singh case and the dissenting judgment in Golak Nath case said, namely that Parliament has the constituent power to amend the Constitution.

957. The unamended Article used the words "An amendment of this Constitution". The 24th Amendment used the words "Parliament may...amend by way of addition, variation or repeal any provision of this Constitution". This has been done because the leading majority judgment in Golak Nath case expressed the view that there is considerable force in the argument that the expression "amendment" in Article 368 has a positive and negative content in exercise of which Parliament cannot destroy the structure of the Constitution but it can only modify the provisions thereof within the framework of the original instrument for its better effect. This observation in Golak Nath case raised a doubt as to the meaning of the word "amendment". The 24th Amendment has expressly clarified that doubt.

958. The leading majority judgment and the concurring judgment in Golak Nath case both held that the fundamental rights could not be amended by Parliament. The leading majority judgment with reference to the meaning of the word "amendment" and without deciding the matter observed that there was great force in the argument that certain fundamental features e.g. the concept of federalism, the institutions of the President and the Parliamentary executive could not be abolished by amendment. Shankari Prasad case, Sajjan Singh case and the dissenting minority judgment in Golak Nath case took the view that every provision of the Constitution could be amended in exercise of constituent power. As a necessary corollary, the 24th Amendment excludes the operation of Article 13 by amending Article 13 by a new Sub-article (4) that nothing in Article 13 shall apply to any amendment of this Constitution under Article 368. The amendment of Article 13 by an insertion of Sub-article (4) is also reinforced by the opening words introduced in Article 368 by the 24th Amendment, viz., notwithstanding anything contained in this Constitution, which would certainly exclude Article 13.

959. The Constitution 24th Amendment Act raises three aspects. First, does the word "amend" include abrogation or repeal of the whole Constitution? Does amendment mean that there is some feature of the Constitution which cannot be changed. Secondly, what light does the proviso to Article 368 throw on the nature of the amending power and on the doctrine of inherent and implied limitations on the amending power that essential features of the Constitution cannot be damaged or destroyed. Thirdly, does Clause (e) of the proviso to Article 368 enable Parliament and the requisite majority of the States to increase the power of amendment that was conferred by Article 368.

960. Article 368 in the unamended form contained power as well as self executing procedure which if followed by the prescribed authorities would result in an amendment of the Constitution. Both the Attorney General and Mr. Seervai rightly said that the words "Constitution shall stand amended" in Article 368 will exclude a simple repeal that is without substituting anything in place of the repealed Constitution. If the Constitution were totally repealed and a vacuum was created it could not be said that the Constitution stands amended. The Constitution means the mode in which a State is constituted or organised specially as to the location of sovereign power. The Constitution also means the system or body of fundamental principles according to which the nation, State and body politic is constituted and governed. In the case of a written Constitution the Constitution is more fundamental than any particular law and contains a principle with which all legislation must be in harmony. Therefore, an amendment of the Constitution is an amendment of something which provides a system according to which a State or nation is governed. An amendment of the Constitution is to make fundamental changes in the Constitution. Fundamental or basic principles can be changed. There can be radical change in the Constitution like introducing a Presidential system of government for a cabinet system or a unitary system for a federal system. But such amendment would in its wake bring all consequential changes for the smooth working of the new system.

961. However radical the change the amendment must provide for the mode in which the State is constituted or organised. The question which was often put by Mr. Palkhivala drawing a panorama of a totalitarian State in place of the existing Constitution can be simply answered by saying that the words "The Constitution shall stand amended" indicate that the Constitution of India is being referred to. The power of amendment is unlimited so long as the result is an amended Constitution, that is to say, an organic instrument which provides for the making interpretation and implementation of law.

962. The theory of unamendability of so called essential features is unmeritorious in the face of express provisions in Article 368 particularly in Clauses (a) to (d) of the proviso. Clauses (a) to (d) relate to 66 Articles dealing with some of the most important features of the Constitution. Those Articles relate to the judiciary, the legislature and the executive. The legislative relations between the Union and the States and the distribution of legislative power between them are all within the ambit of amendment.

963. The question which was raised by Mr. Palkhivala as to whether under proviso (e) to the unamended Article 368 the power of amendment could be increased is answered in the affirmative. The reasons broadly stated are three.

964. First, under Article 368 proviso (e) any limitation on the power of amendment alleged to be found in any other Article of the Constitution can be removed. The full magnitude of the power of amendment which would have existed but for the limitation could be restored and the power of amendment increase. In Golak Nath case the majority view was that Article 13(2) operated as a limitation on the power of amendment. The 24th Amendment took note of that decision and removed all doubts by amending Article 13(2) and providing a new Sub-article (4) there and also by amending Article 368 to the effect that Article 13(2) shall not apply to any amendment of the Constitution. If the express limitation which had been judicially held to constitute a bar to the amendment of fundamental rights could be removed by amending Article 368 under Clause (e) to the proviso any other alleged implied limitation can be similarly removed.

965. Secondly, judicial decisions show that by amending the Article conferring the power of amendment a greater power to amend the Constitution can be obtained than was conferred by the original Article. In Ryan case 1935 Irish Report 170 all the learned Judges excepting the Chief Justice held that by first amending Section 50 of the Irish Constitution which conferred the power of amendment subject to certain restrictions thereon so as to remove the restrictions contained in that section, the Irish Parliament effectively increased its power in the sense that an amendment could be made which those express restrictions would have prohibited. Again in Ranasinghe case 1965 A.C. 172 it was said that a legislature has no power to ignore the conditions of law making that are imposed by the instrument which regulates its power. This restriction created by the instrument exists independently of the question whether the legislature is sovereign or whether the Constitution is uncontrolled. The Judicial Committee held that "such 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 those very provision". Thus a controlled Constitution can be converted into an uncontrolled Constitution vastly increasing the power of amendment.

966. Thirdly, the power to amend the amending Article must include the power to add, alter or repeal any part of that Article and there is no reason why the addition cannot confer a power of amendment which the authorities named in Article 368 did not possess. By the exercise of the amending power provision can be made which can increase the powers of Parliament or increase the powers of the States. Again, by amendment future amendments can be made more difficult. The picture drawn by Mr. Palkhivala that a future amendment would be rendered impossible either by absolutely forbidding amendment or by prescribing an impractically large majority does not present any legal impediment to such an amendment. The safeguard against such action is external. The contingency of any such amendment being proposed and accepted is extremely remote because such an amendment might sow the seeds of revolution which would be the only way to bring about the change in the Constitution. The Solicitor General rightly said that the effect of the amendment is that "it shall stand amended in accordance with the terms of the Bill". The product is not required to be "this Constitution". It will not be identically the old Constitution. It will be a changed or amended Constitution and its resemblance will depend on the extent of the change. More rigid process like referendum or initiative or greater majority or ratification by a larger number of States might be introduced by amendment.

967. It is important to note that proviso (e) to Article 368, namely, the power to amend Article 368 is unlike perhaps some Constitutions which were before the Constituent Assembly when our Constitution was framed. Neither the American nor the Australian Constitution provided for any power to amend the amending provision itself. The Attorney General rightly contended that this forcefully expresses a clear and deliberate intention of the Constituent Assembly that apart from providing for a less rigid amending formula the Constituent Assembly took care to avoid the controversy in America as to whether express limitation on Article V of the American Constitution itself regarding equal suffrage of the States in the Senate could be amended or the controversy in Australia as to whether Section 128 of the Australian Constitution itself could be amended as there was no express limitation on such amendment. The Constituent Assembly provided in Clause (e) to Article 368 express and specific power of amendment of Article 368 itself.

968. The amplitude of the amending power in our Constitution stands in bold relief in comparison with Article V of the American Constitution, Section 128 of the Australian Constitution and Section 50 of the Irish Constitution none of which confers such a power. Dr. Wynes in his Legislative Powers in Australia 4th Ed. p. 505 expresses the view that though Section 128 is negative in form but the power of amendment extends to alteration "of this Constitution" and this power is implied by its terms. Dr. Wynes also states that by the consent of the States the last part of Section 128 could be amended. This is only to illustrate as to how other Constitutions are understood by jurists in their countries. Our Article 368 contains no express limitation on the power of amendment. The provision of Clause (e) in the proviso to Article 368 is not limited to federal features.

969. The words "amendment of this Constitution" in Section 50 of the Irish Constitution which formed the subject of decision in Ryan case 1935 Irish Report 170 were read by Kennedy, C.J. in his dissenting view to mean that if power to amend Section 50 itself was intended to be given the framers of the Constitution would have said so. Mr. Palkhivala relied on this dissenting view. Other learned Judges who formed the majority held that the words "amendment of this Constitution" conferred power to amend that Section 50 as well. If no intention to amend that section itself is expressed there is nothing which can be implied was the dissent. Therefore, it would follow even according to the dissent that no implied limitations on the power of amendment can be read in Section 50 if an express power of amendment has been conferred by the Constitution.

970. Mr. Palkhivala contended that the people reserved the power to themselves to amend the essential features of the Constitution and if any such amendment were to be made it should be referred to the people by referendum. It was said that the Constitution makers did not intend that essential features should be damaged or destroyed even by the people, and therefore, the Constitution did not provide for referendum. The other contention on behalf of the petitioner was that referendum was not provided for because it might have been difficult to have the Constitution accepted on those terms. The second view would not eliminate the introduction of referendum as a method of amendment. If a referendum were introduced by an amendment people would have complete power to deal with essential features. The other question would be as to whether the Preamble and the fundamental rights would be a limitation on the power of the people. On behalf of the petitioner it was said that it was not necessary to decide the questions. Both the Attorney General and Mr. Seervai correctly said that the submissions made on behalf of the petitioner indicated that if essential features could be amended by the people the very fact that the Constituent Assembly did not include referendum as one of the methods of amendment and that the Constitution makers excluded no part of the Constitution from amendment established that the amendment of a written Constitution can be legally done only by the method prescribed by the Constitution. If the method of referendum be adopted for purpose of amendment as suggested by Mr. Palkhivala that would be extra Constitutional or revolutionary. The amending body to amend the Constitution represents the will of the people.

971. Therefore, as long as Article 368 may be amended under proviso (e) any amendment of the Constitution by recourse to referendum would be revolutionary. Mr. Palkhivala on behalf of the petitioner did not rely on the majority decision in Golak Nath case that the fundamental rights could be abridged or taken away only by convening a Constituent Assembly, but based his argument on a theory of legal sovereignty of the people. The Constitution is binding on all the organs of government as well as on the people. The Attorney General rightly submitted that the concept of popular sovereignty is well settled in parliamentary democracy and it means that the people express their will through their representatives elected by them at the general election as the amending body prescribed by the Constitution.

972. Are fundamental rights unamendable? Mr. Palkhivala contended that apart from Article 13(2) fundamental rights are based on Universal Declaration of Human Rights and are natural rights, and, therefore, they are outside the scope of amendment. In Golak Nath case the majority view declined to pronounce any opinion on alleged essential features other than fundamental rights. The concurring view was that fundamental rights were unamendable because they were fundamental. Wanchoo, J. for himself and two other learned Judges and Ramaswami, J. rightly rejected the theory of implied limitations. The three reasons given by Wanchoo, J. are these. First, the doctrine of essential and non-essential features would introduce uncertainty. Secondly, constituent power of amendment does not admit of any impediment of implied restrictions. Thirdly, because there is no express limitation there can be no implied limitation.

973. Mr. Seervai correctly contended that there is intrinsic evidence in the provisions of Part III itself that our Constitution does not adopt the theory that fundamental rights are natural rights or moral rights which every human being is at all times to have simply because of the fact that as opposed to other things he is rational and moral. The language of Article 13(2) shows that these rights are conferred by the people of India under the Constitution and they are such rights as the people thought fit to be in the organised society or State which they were creating. These rights did not belong to the people of India before 26 January 1950 and would not have been claimed by them. Article 19 embodies valuable rights. Rights under Article 19 are limited only to citizens. Foreigners are human beings but they are not given fundamental rights because these rights are conferred only on citizens as citizens.

974. Article 33 enacts that Parliament may by law modify rights conferred by Part III in their application to Armed Forces. Parliament may restrict or abrogate any of the rights conferred by Part III so as to ensure the proper discharge of the duties of the Armed Forces and the maintenance of discipline among them. Therefore, Article 33 shows that citizens can be denied some of these rights. If these are natural rights these cannot be abrogated. Article 34 shows that Parliament may by law indemnify any person in respect of any act done by him in connection with the maintenance or restoration of order in any area where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area. Article 34 again shows restriction on rights conferred by Part III while martial law is in force in any area. The dominant concept is social good. Where there is no restraint the society fails.

975. Articles 352 and 358 also illustrate as to how while the proclamation of emergency is in operation provisions of Article 19 are suspended during emergency. The framers of the Constitution emphasised the social content of those rights. The basic concept of fundamental right is therefore a social one and it has a social function. These rights are conferred by the Constitution. The nature of restriction on fundamental rights shows that there is nothing natural about those rights. The restrictions contemplated under Article 19(2) with regard to freedom of speech are essential partis of a well organised developed society. One must not look at location of power but one should see how it acts. The restrictions contemplated in Article 19 are basically social and political. Friendly relations with foreign states illustrate the political aspect of restrictions. There are similar restrictions on right to move freely. The protection of Scheduled Tribes is also reasonable in the interest of society. This Court in Basheshar Nath v. C.I.T. Delhi (1959) Supp. 1. S.C.R. 528 said that there are no natural rights under our Constitution and natural rights played no part in the formulation of the provisions therein.

976. Articles 25 and 26 by their opening words show that the right to the freedom of religion is subject to the paramount interest of society and there is no part of the right however important to devotee which cannot and in many cases have not been denied in civilised society.

977. Subba Rao, C.J. in Golak Nath case equated fundamental rights with natural rights or promodial rights. The concurring majority view in Golak Nath case, however, said that there is no natural right in property and natural rights embrace the activity outside the status of citizen. Fundamental rights as both the Attorney General and Mr. Seervai rightly contended are given by the Constitution, and, therefore, they can be abridged or taken away by the people themselves acting as an organised society in a State by the representatives of the people by means of the amending process laid down in the Constitution itself. There are many Articles in Part III of our Constitution which cannot in any event be equated with any fundamental right in the sense of natural right. To illustrate Article 17 deals with abolition of untouchability. Article 18 speaks of abolition of titles. Article 20 deals with protection in respect of conviction for offences. Article 23 refers to prohibition of traffic in human beings and forced labour. Article 24 deals with prohibition of employment of children in factories, etc. Article 27 speaks of freedom as to liability for taxes levied for promotion of any particular religion. Article 28 contemplates freedom as to attendance at religious instruction or religious worship in certain educational institutions. Article 29 deals with protection of interests of minorities. Article 31(2) prior to the Constitution 25th Amendment Act spoke of payment of just equivalent for acquisition or requisition of property. Article 31(4) deals with legislation pending at the commencement of the Constitution. Articles 31(5) and (6) save certain types of laws. Article 31A saves laws providing for acquisition of estates etc. Article 32 confers right to move the Supreme Court.

978. The Constitution is the higher law and it attains a form which makes possible the attribution to it of an entirely new set of validity, the validity of a statute emanating from the sovereign people. Invested with statutory form and implemented by judicial review higher law becomes juristically the most fruitful for people. There is no higher law above the Constitution.

979. Mr. Palkhivala relied on an Article by Conrad on Limitation of Amendment Procedure and the Constitutional Power. The writer refers to the West German Provincial Constitution which has expressly excluded basic rights from amendment. If that is so the question of basic rights being unamendable on the basis of higher law or natural law does not arise. The conclusion of the writer is that whereas the American courts did not consider declaring a Constitutional norm void because of a conflict with higher law the German Jurisprudence broadened the concept of judicial review by recourse to natural law. The post-war Constitution of West Germany distinguished between superior and inferior Constitutional norms in so far as certain norms are not subject to amendment whereas others are.

980. The Attorney General relied on Friedmann Legal Theory 5th Ed. on pp. 350 seq. to show that there was a revival of natural law theory in contemporary German Legal Philosophy. This theory of natural law springs from the reaction against the excess of the Nazi regime. The view of Friedmann is that natural law may disguise to pose itself the conflict between the values which is a problem of constant and painful adjustment between competing interests, purposes and policies. This conflict is resolved by ethical or political evolution which finds place in legislative policies and also on the impact of changing ideas on the growth of law.

981. Fundamental rights are social rights conferred by the Constitution. There is no law above the Constitution. The Constitution does not recognise any type of law as natural law. Natural rights are summed up under the formula which became common during the Puritan Revolution namely life, liberty and property.

982. The theory of evolution of positive norms by supra-positive law as distinguished from superior positive law had important consequences in the post-war revival of natural law in some countries particularly Germany. Most of the German Constitutions from the early 19th Century to the Nazi Regime did not provide for judicial review. Under the Weimar regime, the legislature reigned supreme and legal positivism was brought to an extreme. The re-action after World War II was characterised by decreases of legislative power matched by an increase of judicial power. It is in this context that Conrad's writing on which Mr. Palkhivala relied is to be understood. The entire suggestion is that norms could not only be judged by a superior law namely Constitutional law but by natural law to broaden the scope of judicial review. The acceptance of the doctrine of judicial review has been considered as a progress in Constitutional theory made between Declaration of Independence and the Federal Convention at Philadelphia.

983. On the one hand there is a school of extreme natural law philosophers who claim that a natural order establishes that private capitalism is good and socialism is bad. On the other hand, the more extreme versions of totalitarian legal philosophy deny the basic value of the human personality as such. Outside these extremes, there is a far greater degree of common aspirations. The basic autonomy and dignity of human personality is the moral foundation of the teaching of modern natural law philosophers, like Maritain. It is in this context that our fundamental rights and Directive Principles are to be read as having in the ultimate analysis a common good. The Directive Principles do not constitute a set of subsidiary principles to fundamental rights of individuals. The Directive Principles embody the set of social principles to shape fundamental rights to grant a freer scope to the large scale welfare activities of the State. Therefore, it will be wrong to equate fundamental rights as natural, inalienable, primodial rights which are beyond the reach of the amendment of the Constitution. It is in this context that this Court in Basheshar Nath v. C.I.T. Delhi (1959) Supp. 1 S.C.R. 528 said that the doctrine of natural rights is nothing but a foundation of shifting sand.

984. Mr. Seervai rightly said that if the power of amendment of the Constitution is co- extensive with the power of the judiciary to invalidate laws, the democratic process and the co-ordinate nature of the great departments of the State are maintained. The democratic process is maintained because the will of the people to secure the necessary power to enact laws by amendment of the Constitution is not defeated. The democratic process is also respected because when the judiciary strikes down a law on the ground of lack of power, or on the ground of violating a limitation on power, it is the duty of the legislature to accept that position, but if it is desired to pass the same law by acquiring the necessary power, an amendment validly enacted enables the legislatures to do so and the democratic will to prevail. This process harmonises with the theory of our Constitution that the three great departments of the State, the legislature, the judiciary and the executive are co-ordinate and that none is superior to the other. The normal interaction of enactment of law by the legislation, of interpretation by the courts, and of the amendment of the Constitution by the legislature, go on as they were intended to go on.

985. If the power of amendment does not contain any limitation and if this power is denied by reading into the Constitution inherent limitations to extinguish the validity of all amendments on the principles of essential features of the Constitution which are undefined and untermed, the courts will have to lay down a new Constitution.

986. It is said that the frame of the Government cannot be changed or abrogated by amendment of the Constitution. There is before us no aspect of abrogation of the form of Government of the changes apprehended by the petitioners like the abrogation of the judiciary or extending the life of Parliament.

987. The problems of the times and the solutions of those problems are considered at the time of framing the Constitution. But those who frame the Constitution also know that new and unforseen problems may emerge, that problems once considered important may lose their importance, because priorities have changed; that solutions to problems once considered right and inevitable are shown to be wrong or to require considerable modification; that judicial interpretation may rob certain provisions of their intended effect; that public opinion may shift from one philosophy of government to another. Changes in the Constitution are thus actuated by a sense of duty to the people to help them get what they want out of life. There is no destiny of man in whose service some men can rightfully control others; there are only the desires and performances and ambitions that men actually have. The duty to maximise happiness means that it is easier to give people what they want than to make them want what you can easily give. The framers of the Constitution did not put any limitation on the amending power because the end of a Constitution is the safety, the greatness and well being of the people. Changes in the Constitution serve these great ends and carry out the real purposes of the Constitution.

988. The way in which the doctrine of inherent and implied limitations was invoked by Mr. Palkhivala in interpreting the Constitution was that the test of power under the Constitution must be to ascertain the worst that can be done in exercise of such power. Mr. Palkhivala submitted that if unbridled power of amendment were allowed the basic features of our Constitution, namely, the republican and/or democratic form of government and fundamental Tights could be destroyed and India could be converted into a totalitarian dictatorship. The Court was invited to take into account the consequences of the kind described. Mr. Palkhivala suggested that a wide power of amendment would lead to borrow his words to the liquidation of our Constitution.

989. The Attorney General rightly said that the unambiguous meaning of amendment could not be destroyed to nurse the theory of implied limitations. He also said that the live distinction between power and exercise of power is subject to popular will and popular control. The theory of implied and inherent limitation was a repudiation of democratic process. The Attorney General and Mr. Seervai also rightly said that the approach of the petitioner to the power of amendment contained in Article 368 of the Constitution ignores the fact that the object of the Constitution is to provide for departments of States like the judiciary, the legislature and the executive for the governance of a country. Apart from the essential functions of defence against external aggression and of maintenance of internal order a modern State is organised to secure the welfare of the people. Parliament and State legislatures are elected on adult universal suffrage. The country is governed by the Cabinet system of Government with ministries responsible to the Houses of Parliament and to the Legislative Assemblies.

990. In a democracy the determination of the right policies to be pursued can only be determined by a majority vote cast at election and then by a majority of the elected representatives in the legislature. Democracy proceeds on the faith in the capacity to elect their representatives, and faith in the representatives to represent the people. The argument that the Constitution of India could be subverted or destroyed might have hortative appeal but it is not supportable by the actual experience in our country or in any country. The two basic postulates in democracy are faith in human reason and faith in Human nature. There is no higher faith than faith in democratic process. Democracy on adult suffrage is a great experiment in our country. The roots of our democracy are in the country and faith in the common man. That is how Mr. Seervai said that between 1951 when this Court recognised in Sankari Prasad case unlimited power of amendment till Golak Nath decision in 1967 the normal democratic process in our country functioned as provided by the Constitution.

991. The principle underlying the theory of taking consequences into account is best expressed in Vacher & Sons v. London Society of Compositors 1913 A.C. 107, where it was said that if any particular construction in construing the words of a statute was susceptible to more than one meaning, it was legitimate to consider the consequences which would result from any particular construction. The reason is that there are many things which the legislation is presumed not to have intended to bring about and therefore a construction which would not lead to any of these things should be preferred to one which would lead to one or more of them.

992. The doctrine of consequences has no application in construing a grant of power conferred by a Constitution. In considering a grant of power the largest meaning should be given to the words at the power in order to effectuate it fully. The two exceptions to this rule are these. First, in order to reconcile powers exclusively conferred on different legislatures, a narrower meaning can be given to one of the powers in order that both may operate as fully as is possible. (See C.P. & Berar case 1938 F.C.R. 18 and Province of Madras v. Governor General 72 I.A. 93). Second, technical terms must be given their technical meaning even though it is narrower than the ordinary or popular meaning. The State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd. 1959 S.C.R. 379. In our Constitution powers are divided between federation and the States. An attempt must be made to find the power in some entry or other because it must be assumed that no power was intended to be left out.

993. The theory of consequences is misconstrued if it is taken to mean that considerations of policy, wisdom and social or economic policies are included in the theory of consequences. In Vacher case it was said that the judicial tribunal, has nothing to do with the policy of any Act and the only duty of the Court is to expound the language of the Act in accordance with the settled rules of construction. In Attorney General for Ontario v. Attorney General for Dominions 1912 A.C. 571 the Privy Council refused to read an implication in the Constitution of Canada that there was no power to refer a matter for the advisory opinion of the highest Court because advisory opinions were prejudicial to the correct administration of justice and were embarrassing to Judges themselves who pronounced them, for humanly speaking it would be difficult for them to hear a case on merits if they have already expressed an opinion. The Privy Council rejected this argument and said that so far as it was a matter of wisdom and policy it was for the determination of Parliament. In Bank of Toronto v. Lambe (1887) 12 A.C. 575 the Privy Council was invited to hold that the legislature of a province could not levy a tax on capital stock of the Bank, for that power might be exercised to destroy the Bank altogether. The Privy Council observed that if on a true construction of Section 92 of the British North America Act the power fell within the section, it would be wrong to deny its existence because by some possibility it might be abused.

994. The absurdity of the test of the worst that can be done in exercise of power is demonstrated by the judgment of Chief Justice Taft in Gross-man 69 L.Ed. 527 where it was said that if those who were in separate control of each of the three branches of Government were bent upon defeating the action of the other, normal operations of Government would come to a halt and could be paralysed. Normal operations of the Government assume that all three branches must co-operate if Government is to go on. Where the meaning is plain the Court must give effect to it even if it considers that such a meaning would produce unreasonable result. In the Bihar Land Reforms case 1952 S.C.R. 889 Mahajan, J. said that agrarian laws enacted by the legislature and protected by Articles 31(3) and (4) provided compensation which might appear to the Court unjust and inequitable. But the Court gave effect to Articles 31(3) and (4) because the results were intended and the remedy for the injustice lay with the legislature and not with the Court. The construction to avoid absurdity must be used with great caution.

995. In Grundt case 1948 Ch. 145 it was said in choosing between two possible meanings of ambiguouos words, the absurdity or the nonabsurdity of one conclusion as compared with another might be of assistance and in any event was not to be applied as to result in twisting the language into a meaning which it could not bear.

996. The Attorney General rightly submitted that if power is conferred which is in clear and unambiguous language and does not admit of more than one construction there can be no scope for narrowing the clear meaning and width of the power by considering the consequences of the exercise of the power and by so reading down the power. The question is not what may be supposed to be intended but what has been said. See Ross v. Illison 1930 A.C. 1. The Supreme Court in Damselle Howard v. Illinois Central Rail Road Co. 207 U.S. 463 said that you cannot destroy in order to save or save in order to destroy. The real import is that a new law cannot be made by construction. The question is one of intention. A meaning cannot be different which it cannot reasonably bear or will be inconsistent with the intention. The very basis of Parliamentary democracy is that the exercise of power is always subject to the popular will and popular control. The petitioner's theory of implied and inherent limitations is a repudiation of this democratic process. The underlying theory of democratic government is "the right of a majority to embody their opinion in law subject to the limitations imposed by the Constitution", per Holmes, J. in Lochner v. New York 198 U.S. 45. In our Constitution Article 368 contains no express limitation on the amendment of any provision of the Constitution.

997. Mr. Palkhivala relied on the amending provisions in the Constitution of America, Canada, Australia, Ireland and Ceylon and also decisions on the power of amendment in those countries in support of his submissions that a restricted meaning should be attributed to the word "amendment" and implied and inherent limitations should be read into the meaning and power of amendment.

998. Mr. Palkhivala also relied on the opinion of Cooley in a Treatise on the Constitutional Limitations at pages 36-37 that "a written Constitution is in every instance a limitation upon the powers of government in the hands of agents; for there never was a written republican Constitution which delegated to functionaries all the latent powers which lie dormant in every nation, and are boundless in extern, and incapable of definition". This view of Cooley is not relevant to the amending power in Article V of the American Constitution. This view relates to the legislative power that a written Constitution is a limitation upon the powers of the Government, namely, the legislature, the executive and the judiciary.

999. The other views of Cooley in Constitutional Limitations at pages 341-343, 345-348, 351-354 are these. First except where the Constitution has imposed limitations upon the legislative power it must be considered as practically absolute, whether it operates according to natural justice or not in any particular case. Second, in the absence of Constitutional restraint the legislative department of a State Government has exclusive and ample power and its utterance is the public policy of the State upon that subject, and the Courts are without power to read into the Constitution a restraint of the legislature with respect thereto. Third, if the Courts are not at liberty to declare statutes void because of their apparent injustice of impolicy, neither can they do so because they appear to the minds of the Judges to violate fundamental principles of republican Government, unless it shall be found that those principles are placed beyond legislative encroachment by the Constitution. The principles of republican government are not a set of inflexible rules, vital and active in the Constitution, though unexpressed, but they are subject to variation and modification from motives of policy and public necessity. Fourth, the Courts are not at liberty to declare an act void, because in their opinion it is opposed to a spirit supposed to pervade the Constitution, but not expressed in words.

1000. Mr. Palkhivala relied on the views of George Skinner published in 18 Michigan Law Review (1919-1920) pages 21-225 to build the theory of implied and inherent limitations. The views extracted are these. The power given by the Constitution cannot be construed to authorise a destruction of other powers in the same instrument. The essential form and character of the Government, being determined by the location and distribution of power, cannot be changed, only the exercise of governmental functions can be regulated. A somewhat different view of Skinner in the same Law Review is that it is not likely that the Supreme Court would put any limitations upon the power of Congress to propose amendments and in construing the Fifth Article it would be unwilling to say Congress had proposed an amendment which it did not deem necessary. The discretion is left entirely with Congress.

900. The flexible Constitution is one under which every law of every description can be legally changed with the same case and in the same manner by one and the same body. Laws in a flexible Constitution are called Constitutional because they refer to subjects supposed to affect the fundamenal institutions of the State, and not because they are legally more sacred or difficult to change than other laws.

901. A rigid Constitution is one under which certain laws generally known as Constitutional or fundamental laws cannot be changed in the same manner as ordinary laws. The rigidity of the Constitution consists in the absence of any right of the legislatures when acting in its ordinary capacity to modify or repeal definite laws termed Constitutional or fundamental. In a rigid Constitution the term "Constitution" means a particular enactment belonging to the Articles of the Constitution which cannot be legally changed with the same ease and in the same manner as ordinary laws.

902. The special machinery for Constitutional amendment is the limitation of the power of the legislature by greater law than by the law of the ordinary legislation. The Constituent Assembly knowing that it will disperse and leave the actual business of legislation to another body, attempts to bring into the Constitution that it promulgates as many guides to future action as possible. It attempts to arrange for the "recreation of a constituent assembly" whenever such matters are in future to be considered, even though that assembly be nothing more than the ordinary legislature acting under certain restrictions. There may be some elements of the Constitution which the constituent assembly wants to remain unalterable. These elements are to be distinguished from the rest. The Fifth Clause in the United States Constitution is that no State without its own consent shall be deprived of its equal suffrage in the Senate. The Attorney General rightly sard that just as there are no implied limitation in flexible Constitutions similarly there are no implied limitations in a rigid Constitution. The difference is only in the method of amendment. Amendment can be made by ordinary legislature under certain restrictions, or by people through referendum or by majority of all the units of a federal State or by a special convention.

903 In a rigid Constitution the legislatures by reason of their well matured long and deliberately formed opinion represent the will of the undoubted majority. But even such will can be thwarted in the amendment of the organic law by the will of the minority. In case where the requisite majority is not obtained by the minority thwarting an amendment, there is just as much danger to the State from revolution and violence as there is from what is said to be the caprice of the majority. The safeguards against radical changes' thus represent a better way and a natural way of securing deliberation, maturity and clear consciousness of purpose without antagonising the actual source of power in the democratic state.

904. The term "amendment" connotes a definite and formal process of Constitutional change. The force of tradition and custom and the judicial interpretation may all affect the organic structure of the State. These processes of change are the evolution of Constitution.

905. The background in which Article 368 was enacted by the Constituent Assembly has an important aspect on the meaning and scope of the power of amendment.

906. On 12 November, 1946 Sir B.N. Rau Constitutional Adviser prepared a brochure containing Constitution of the British Commonwealth Countries and the Constitutions of other countries. Different countries having different modes of amendments were referred to. In the same volume the fundamental rights under 13 heads were extracted from 13 selected countries like U.S.A., Switzerland, Germany, Russia, Ireland, Canada, Australia. Two features follow from that list. First, there is no absolute standard as to what constitutes fundamental right. There is no such thing as agreed fundamental rights of the world. Second, fundamental rights which are accepted in our Constitution are not superior to fundamental rights in other Constitutions nor can it be said that the fundamental rights are superior to Directive Principles in our Constitution.

907. On 17 March, 1947 a questionnaire was circulated under the subject as to what provisions should be made regarding the amendment of the Constitution. The draft clause of amendment to the Constitution prepared by the Constitutional Adviser at that time indicates that an amendment may be initiated in either House of the Union Parliament and when the proposed amendment is passed in each House by a majority of not less than two thirds of the total number of members of that House and is ratified by the legislatures of not less than two thirds of the units of the Union, excluding the Chief Commissioners' Provinces, it shall be presented to the President for his assent; and upon such assent being given the amendment shall come into operation. There were two explanations to that clause.

908. On 29 April, 1947 Shri Santhanam's amendment to the draft clause was accepted. The amendment was "that this clause also if necessary may be amended in the same way as any other clause in the Constitution". In June, 1947 the drafting of the amending clause started. Originally it was Numbered 232. Eventually, Articles 304 and 305 came into existence in place of draft Article 232. The first draft of the amendment clause was given by Sir B.N. Rau in March, 1947. By June, 1947 and thereafter he recommended the procedure favoured by Sir Alladi Krishnaswami Ayyar and Sir Gopalswami Ayyangar, namely, passage by two thirds majority in Parliament and ratification by like majority of Provincial legislatures. On 21 February, 1948 the draft Constitution was ready. Draft Articles 304 and 305 related to amendment Article 305 provided for reservation of seats for minorities for ten years unless continued in operation by an amendment of the Constitution.

909. The following features emerge. First, the Constituent Assembly made no distinction between essential and non-essential features. Secondly, no one in the Constituent Assembly said that fundamental rights could not be amended. The framers of the Constitution did not have any debate on that. Thirdly, even in the First Constitution Amendment debate no one doubted change or amendment of fundamental rights. At no stage it appeared that fundamental rights are absolute. While a Constitution should be made sound and basic it should be flexible and for a period it should be possible to make necessary changes with relative facility.

910. Certain amendments to Article 304 were proposed. One proposed amendment No. 118 was that amendment was to be passed in two Houses by a clear majority of the total membership of each House. Another proposed amendment No. 210 was that for a period of three years from the commencement of the Constitution, any amendment certified by the President to be not one of substance might be made by a simple majority. This also' stated that it would include any formal amendment recommended by a majority of the Judges of the Supreme Court on the ground of removing difficulties in the administration of the Constitution or for the purpose of carrying out the Constitution in public interest. The third proposed amendment No. 212 was that no amendment which is calculated to infringe or restrict or diminish the scope of any individual rights, any rights of a person or persons with respect to property or otherwise, shall be permissible and any amendment which is or is likely to have such an effect shall be void and ultra vires of any legislature. It is noteworthy that this amendment was withdrawn. See Constituent Assembly Debates Vol. IX p. 1665.

911. In the first category the framers devised amendment by Parliament by a simple majority. These are Articles 2 and 4 which deal with States. As far as creation or re- Constitution of States is concerned, it is left to Parliament to achieve that by a simple majority. Again, draft Article 148A which eventually became Article 169 dealing with Upper Chambers in the States gave Parliament power to abolish the Upper Chambers or to create new Second Chambers. Schedules 5 and 6 were left to be amended by Parliament by simple majority. The second category of amendment requires two thirds majority. It is in that connection that the statement of Dr. Ambedkar "If the future Parliament wishes to amend any particular Article which is not mentioned in Part III or Article 304 all that is necessary for them is to have the two thirds majority then they can amend it" was invoked by Mr. Palkhivala to support his submission that Part III was unamendable. That is totally misreading the speech. The speech shows that some Articles would be amendable by bare majority, others would require two thirds majority and the third category would require two thirds majority plus ratification by the States.

912. Proceedings in the Constituent Assembly show that the whole Constitution was taken in broad prospective and the amendments fell under three categories providing for simple majority, or two thirds; majority or two thirds majority and ratification by the States. These different procedures were laid down to avoid rigidity.

913. The Constitution First Amendment Act which added Article 15 (4), substituted words in Articles 19(2) and Article 19(6), inserted Article 31A indicates interesting features. The two criticisms at that time were as to what was the hurry and secondly that the Government was trying to take more power to itself. The answers are that a Constitution which is responsive to the people's will and their ideas and which can be varied here and there, will command respect and people will not fight against change. Otherwise, if people feel that it is unchangeable and cannot be touched, the only tiling to be done by those who wish to change it is to try to break it. That is a dangerous thing and a bad thing.

914. In this background there is no doubt about the meaning and scope of Article 368. The Attorney General rightly said that if there be any doubt contemporaneous practical exposition of the Constitution is too strong and obstinate to be shaken or controlled. In Mopherson v. Blacker 146 U.S. 1 it is said that where plain and clear words occur there is no difficulty but where there is doubt and ambiguity contemporaneous and practical exposition is a great weight. In The Automobile Transport (Rajasthan) Ltd. v. The State of Rajasthan and Ors. (1963) 1 S.C.R. 491 this Court took notice of the feature that Constitution makers had deep knowledge of Constitutions and Constitutional problems of other countries.

915. Mr. Seervai relying on British Coal Corporation v. King (1935) A.C. 500 submitted that in interpreting a constituent or organic statute that construction most beneficial to the widest possible amplitude of powers must be adopted. A strict construction applicable to penal or taxing statute will be subversive of the real intention of Parliament if applied to an Act passed to ensure peace, order and good government. Largest meaning is given to the allocated specific power. If there are no limitations on the power it is the whole power. Grant of power of amendment cannot be cut down except by express or implied limitations. The conclusion is that the meaning of the word amendment is wide and not restricted.

916. The contention of Mr. Palkhivala on behalf of the petitioner is that under Article 368 as it stood prior to the amendment there were implied and inherent limitations on the power of amendment. It was said that the word "amendment" would preclude the power to alter or destroy the essential features and the basic elements and the fundamental principles of the Constitution. This contention was amplified as follows. The Constitution is given by the people unto themselves. The power to decide upon amendment is given to the 5 year Parliament which is a creature of the Constitution. Article 368 does not start with the non-obstante clause. Article 368 uses the word "amendment" simpliciter. Less significant amendment powers in others parts of the Constitution use the words "add, alter, repeal or vary" in addition to the word "amendment", as will appear in Articles 31B, 25(b), 252(2), 372, 372A(2), paragraph 7 Schedule 5, paragraph 21 Schedule 6. Article 368 talks of an amendment of this Constitution and does not extend the amending power to "all or any of the provisions of this Constitution". On a wide construction of the word "amendment" all fundamental rights can be taken away by the requisite majority whereas much less significant matters require the concurrence of at least half the States under the proviso to that Article.

917. The basic human freedom are all of the most fundamental importance to all the States and all the citizens. Article 32 is no less important to the citizens of States than Article 226. The Preamble is not a part or provision of the Constitution. Therefore, the Preamble cannot be amended under Article 368. The nature and the contents of the Preamble are such that it is incapable of being amended. If the Preamble is unalterable it necessarily follows that those features of the Constitution which are necessary to give effect to the Preamble are unalterable. Fundamental rights are intended to give effect to the Preamble. They cannot, therefore, be abridged or taken away. The provisions of Article 368 themselves can be amended under that very Article. If the word "amendment" is read in the widest sense Parliament will have the power to get rid of the requisite majority required by Article 368 and make any Constitutional amendments possible by bare majority, Parliament can provide that hereafter the Constitution shall be unamendable. Parliament can reduce India to a status which is neither sovereign nor democratic nor republic and where the basic human rights are conspicuous by their absence.

918. Mr. Palkhivala submits that the principle of inherent or implied limitations on power to amend the controlled Constitution stems from three basic features. First, the ultimate legal sovereignty resides in the people. Second, Parliament is only a creature of the Constitution. Third, power to amend the Constitution or destroy the essential features of the Constitution is an application of ultimate legal sovereignty.

919. Mr. Palkhivala enumerated 12 essential features. These were as follows : (1) The supremacy of the Constitution. (2) The sovereignty of India. (3) The integrity of the country. (4) The democratic way of life. (5) The republican form of Government. (6) The guarantee of basic human rights elaborated in Part III of the Constitution. (7) A secular State. (8) A free and independent judiciary. (9) The dual structure of the Union and the States. (10) The balance between the legislature, the executive and the judiciary. (11) a Parliamentary form of Government as distinct from the presidential form of Government. (12) Article 368 can be amended but cannot be amended to empower Parliament to alter or destroy any of the essential features of the Constitution, make Che Constitution literally or practically unamendable, make it generally amendable by a bare majority in Parliament, confer the power of amendment either expressly or in effect on the State Legislatures and delete the proviso and deprive the States of the power of ratification which is today available to them in certain broad areas.

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.