38. The learned Counsel further argues: The directive principles, including the one contained in Article 38, do not cover the exercise of each and every legislative power relatable to the Seventh Schedule of the Constitution. Besides, the directive principles being themselves fundamental in the governance of the country, no amendment of the Constitution to achieve the ends specified in the directive principles can ever alter the basic structure of the Constitution. of the unamended Article 31C is valid -in reference to laws relatable to Article 39(b) and (c) no dichotomy can be made between laws rein table to these provisions on the one hand and laws relatable to other directive principles. A value Judgment is not permissible to the Court in this area.

39. It is finally urged by the learned Additional Solicitor General that judicial review is not totally excluded by the amended Article 31C because it will still be open to the Court to consider:

(i) whether the impugned law has 'direct and reasonable nexus' with any of the directive principles;

(ii) whether the provisions encroaching on fundamental rights are integrally connected with and essential for effectuating the directive principles or are at least ancillary thereto;

(iii) whether the fundamental right encroached upon is an essential feature of the basic structure of the Constitution; and

(iv) if so, whether the encroachment, in effect, abrogates that fundamental right.

40. Besides these contentions Mr. R. K. Garg his filed a written brief on behalf of tin- Indian Federation of Working Journalists, opposing the contentions of Mr. Palkhivala. So nave the learned Advocates-General of the State of Karnataka and Uttar Pradesh, Mr. Aruneshwar Gupta has filed a brief on behalf of the State of Rajasthan supporting the submissions of Mr. Palkhivala. So has the State of Rajasthan. The Advocates-General of Maharashtra, Kerala, West Bengal and Orissa appeared through their respective advocates.

41. Both the Attorney General and the Additional Solicitor General have raised a preliminary objection to the consideration of the question raised by the petitioners as regards the validity of Sections 4 and 55 of the 42nd Amendment. It is contended by them that the issue formulated for consideration of the court; "whether the provisions of the Forty-second Amendment of the Constitution which deprived the Fundamental Rights of their Supremacy and, inter alia, made them subordinate to the directive principles of State Policy are ultra vires the amending power of Parliament?" is too wide and academic. It is urged that since it is the settled practice of the court not to decide academic questions and since property rights claimed by the petitioners under Articles 19(1)(f) and 31 do not survive after the 44th Amendment, the court should not entertain any argument on the points raised by the petitioners.

42. In support of this submission reliance is placed by the learned Counsel on the decisions of the American Supreme Court in Commonwealth of Massachusetts v. Andrew W. Mellon (1922) 87 L ed 1078, 1084; George Ashwander v. Tennesee Valley Authority (1935) 80 L ed 688, 711 and on Weavers Constitutional Law, 1946 Ed pp. 68, 69 and American Jurisprudence, 2nd. Vol. 16, pp. 299-301. Reliance is also placed on certain decisions of this Court to which it is unnecessary to refer because the Attorney-General and the Additional Solicitor General are right that it is the settled practice of this Court not to decide academic questions, The American authorities on which the learned Counsel rely take the view that the constitutionality of a statute will not be considered and determined by the courts as a hypothetical question, because constitutional questions are not to be dealt with abstractly or in the manner of an academic discussion. In other words, the courts do not anticipate constitutional issues so as to assume in advance that a certain law may be passed in pursuance of a certain constitutional amendment which may of tend against the provisions of the Constitution. Similarly, our court has consistently taken the view that we will not formulate a rule of constitutional law broader than is required by the precise fails to which it is to he applied. It is only when the rights of persons arc directly involved that relief is granted by this Court.

43. But, we find it difficult to uphold the preliminary objection because, the question raised by the petitioners us regards the constitutionality of Sections 4 and 55 of the 42nd Amendment is not an academic or a hypothetical question. The 42nd Amendment is there for any one to see and by its Sections 4 and 55 Amendments have been made to Articles 31C and 368 of the Constitution. An order has been passed against the petitioners under Section 18A of the Industries (Development and He-Rotation) Act, 1951. by which the petitioners are aggrieved,

44. Besides there are two other relevant considerations which must be taken into account while dealing with the preliminary objection. There Ls no constitutional or statutory inhibition against the decision of questions before they actually arise for consideration. In view of the importance of the question raised and in view of the fact that the question has been raised in many a petition, it is expedient in the interest of Justice to settle the true position, Secondly, what we are dealing with is not an ordinary law which may or may not be passed so that it could be .said that our jurisdiction is being invoked on the hypothetical consideration that a law may be passed in future which will injure the rights of the petitioners. We are dealing with a constitutional amendment which has been brought into opera-:ion and which, of its own force, permits lie violation of certain freedoms through lows passed for certain purposes. We therefore, overrule the preliminary objection and proceed to determine the point raised by the petitioners.

45. The main' controversy in these petitions centers round the question whether the directive principles of State policy contained in Port IV can have primacy over the fundamental rights conferred by Part III of the Constitution. That is the heart of the matter. Every Other consideration and all other contentions are in the nature of by-products of that central theme of the case. The competing claims of parts 111 and IV constitute the pivotal point of l the case because. Article 31C as amended by Section 4 of the 42nd Amendment provides in terms that a law giving effect to any directive principle cannot In- challenged as void tin the ground that it violates the rights conferred by Article II or Article 19. The 42nd Amendment by its Section 4 thus subordinates the fundamental rights conferred by Articles 14 and 19 to the directive principles,

46. The question of questions is whether in view of the majority decision in Kesavananda Bharati it is permissible to the Parliament to so amend the Constitution as to give a position of precedence- to directive principle's over the- fundamental rights. The ,answer to this question must necessarily depend upon whether Articles 14 and 19, which must now give way to laws passed in order to effectuate the policy of the State towards securing all or any of the principles of Directive Policy, arc essential features of the basic structure of the Constitution, It is only if the rights conferred by these two articles are not a part of the basic structure of the Constitution that they ran be allowed to be abrogated by a constitutional amendment. If they are a part of the basic structure, they cannot be obliterated out of existence in relation to -\ category of laws described in Article 310 or, for the matter of that, in relation to laws of any description whatsoever, passed in order to achieve any object or policy whatsoever. This will serve to bring nut the point that a total emasculation of the essential features of the Constitution is. by the ratio in Kesavaiumda Bharati, not permissible to the Parliament.

47. There is no doubt that though the courts have always attached very great importance to the preservation of human liberties, no less importance has been attached to some of the Directive Principles of State Policy enunciated in Part IV. In the words of Granville Austin, (The Indian Constitution: Comer Stone of a Nation, p. 50) the Indian Constitution is first and foremost -a social document and the majority of its provisions are aimed at furthering the goats of social revolution by establishing the conditions necessary for its achievement. Therefore, the importance of Directive Principles in the scheme of our Constitution cannot ever be over-emphasized. Those principles project the high ideal which the Constitution aims to achieve. In fact Directive principles of State policy are fundamental in the governance of the country and the Attorney General is right that there is no sphere of public life where delay can defeat justice with more telling effect than the one in which the common man seeks the realisation of his aspirations. The promise of a better tomorrow must be fulfilled to-day, day after tomorrow it runs the risk of being conveniently forgotten. Indeed, so many tomorrows have come and gone without a leaf turning that today there is a lurking danger that people will work out their destiny through the Compelled cult of their own "dirty hands". Words bandied about in marbled halls say much but fail to achieve as much.

48. But there is another competing constitutional interest which occupies an equally important place in that scheme. That interest is reflected in the provisions of Part III which confer fundamental rights, some on citizens as Articles 15, 16 and 19 do and some on all persons alike as Articles 14, 20, 21 and 22 do. As Granville Austin says:

The core of the commitment to the social revolution lies in Parts III and IV.. These are the conscience of the Constitution.

49. It is needless to cite decisions which have extolled and upheld the personal freedoms -- their majesty, and in certain circumstances, their inviolability. It may however be profitable to see how the American Supreme Court, dealing with a broadly comparable Constitution, has approached the claim for those freedoms.

50. In Barbara Elfbrandt v. Imogena Russell (1966) 16 L ed 2d 321, 326 the U, S. Supreme Court was considering the constitutionality of an Arizona Statute requiring State employees to take a loyal ty oath. Justice Douglas, speaking for the majority, observed while striking down the provision that:

Legitimate legislative goals 'cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved'.... 'The objectionable quality of ... over-breadth" depends upon the existence of a statute "susceptible of sweeping and improper application.... These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions.

51. In United States v. Harbet Guest (1966) 16 L ed 2d 239, 249 though the right to travel freely throughout the territory of the United States of America does not find an explicit mention in the American Constitution, it was held that the right to travel from one State to another occupied a position fundamental to the concept of the Federal Union and the reason why the right was not expressly mentioned in the American Constitution, though it was mentioned in the Articles of Confederation, was that "a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created".

52. This position was reiterated in Winfield Dunn v. James F. Blnmstrin (1972) 31 L ed 2d 274, 276. It was held therein that freedom to travel throughout the United States was a basic right under the Constitution and that the right was an unconditional personal right whose exercise may not be conditioned. Therefore, any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, was unconstitutional.

53. In New York Times Co. v. United States (1971) 29 L ed 2d 822 the United States Government sought an injunction against the publication, by the New York Times, of the classified study entitled "History of U. S. Decision-Making Process on Viet Nam Policy". It was held by a majority of six Judges that any system of prior restraints of expression comes to the United States Supreme Court bearing a heavy presumption against its constitutional validity, and a party who seeks to have such a restraint upheld thus carries a heavy burden of showing justification for the imposition of such a restraint.

54. In National Association for the Advancement of Colored People v. State of Alabama (1958) 2 L ed 2d 1488, 1499 a unanimous court while dealing with an attempt to oust the National Association of Coloured People from the State of Alabama held:

In the domain of these indispensable liberties, whether of -speech, press, or association, the decisions of this Court recognize that abridgement of such rights, even though unintended, may inevitably follow from varied forms of governmental action.

55. In Frank Palko v. State of Connecticut (1937) 82 L ed 288, 293 Justice Cardozo delivering the opinion of the Court in regard to the right to freedom of thought and speech observed:

Of that freedom one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom.

56. In Jesse Cantwell v. State of Connecticut (1939) 84 L ed 1213, 1221 Justice Roberts who delivered the opinion of the Court observed:

In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy. The essential characteristic of these liberties is, that under their shield many types of life, character, opinion and belief can develop unmolested and unobstructed. Nowhere is this shield more necessary than in our own country for a people composed of many races and of many creeds. There are limits to the exercise of these liberties. The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the states appropriately may punish.

57. In Arthur Terminiello v. City of Chicago (1949) 93 L ed 1131, 1134 Justice Douglas delivering the majority opinion of the Court, while dealing with the importance of the right to free speech, observed:

The vitality of civil and political institutions in our society depends on free discussion. aS Chief Justice Hughes wrote in De Jonge v. Oregon (1936) 299 US 353, 365 : 81 L ed 278, 284 : 57 S Ct 255, it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programmes is therefore one of the chief distinctions that sets us apart from totalitarian regimes.

Accordingly a function of free speach under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is of ten provocative and challenging, It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute (Chaplinsky v. New Hampshire (1941) 315 US 568 pp 571, 572 : 85 L ed 1034, 1035 : 62 S Ct 766), is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. See Bridges v. California (1941) 314 US 252, 262 : 86 L ed 192, 202 : 62 S Ct 190 : 159 ALR 1346 Craig v. Harney (1946) 331 US 367, 373 : 91 L ed 1546, 1550 : 67 S Ct 1249. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.

58. The history of India's struggle for independence and the debates of the Constituent Assembly show how deeply our people value their personal liberties and how those liberties are regarded as an indispensable and integral part of our Constitution. It is significant that though Parts III and IV appear in the Constitution as two distinct fasciculus of articles, the leaders of our independence movement drew no distinction between the two kinds of State's obligations -- negative and positive.

"Both types of rights had developed as a common demand, products of the national and social revolutions, of their almost inseparable intertwining, and of the character of Indian politics itself. The Indian Constitution: Cornerstone of a Nation by Granville Austin, p.

52." The demand for inalienable rights traces its origin in India to the 19th Century and flowered into the formation of the Indian National Congress in 1885. Indians demanded equality with their British rulers on the theory that the rights of the subjects cannot in a democracy be inferior to those of the rulers. Out of that demand grew the plants of equality and free speech. Those and other basic rights found their expression in Article 16 of the Constitution of India Bill, 1895. A series of Congress resolutions reiterated that demand between 1917 and 1919. The emergence of Mahatma Gandhi on the political scene gave to the freedom movement a new dimension: it ceased to be merely anti-British; it became a movement for the acquisition of rights of liberty for the Indian Community. Mrs. Besant's Commonwealth of India Bill, 1925 and the Madras Congress resolution of 1928 provided a striking continuity for that movement. The Motilal Nehru Committee appointed by the Madras Congress resolution said at pp. 89-90:

It is obvious that our first care should be to have our Fundamental Rights guaranteed in a manner which will not permit their withdrawal under any circumstances .... Another reason why great importance attaches to a Declaration of Rights is the unfortunate existence of communal differences in the country. Certain safeguards are necessary to create and establish a sense of security among those who look upon each other with distrust and suspicion. We could not better secure the full enjoyment of religious and communal rights to all communities than by including them among the basic principles of the Constitution.

India represents a mosaic of humanity consisting of diverse religious, linguistic and caste groups. The rationale behind the insistence on fundamental rights has not yet lost its relevance, alas or not. The Congress Session of Karachi adopted in 1931 the Resolution on Fundamental Rights as well as on Economic and Social change. The Sapru Report of 1945 said that the fundamental rights should serve as a "standing warning" to all concerned that:

What the Constitution demands and expects is perfect equality between one section of the community and another in the matter of political and civic rights, equality of liberty and security in the enjoyment of the freedom of religion, worship, and the pursuit of the ordinary applications of life.

59. The Indian nation marched to freedom in this background. The Constituent Assembly resolved to enshrine the fundamental rights in the written text of the Constitution. The interlinked goals of personal liberty and economic freedom then came to be incorporated in two separate parts, nevertheless parts of an integral, indivisible scheme which was carefully and thoughtfully nursed over half a century. The seeds sown in the 19th Century saw their fruition in 1950 under the leadership of Jawaharlal Nehru and Dr. Ambedkar. To destory the guarantees given by Part III in order purportedly to achieve the goals of Part IV is plainly to subvert the Constitution by destroying^ its basic structure.

60. Fundamental rights occupy a unique place in the lives of civilized societies and have been variously described in our Judgments as "transcendental", "inalienable and "primordial." For us, it has been said in Kesavananda Bharati (1973) Supp SCR 1 (p. 991) : AIR 1978 SC 1461. they constitute the ark of the Constitution.

61. The significance of the perception that Parts HI and IV together constitute the core of commitment to social revolution and they, together, are the conscience of the Constitution is to be traced to a deep understanding of the scheme of the Indian Constitution. Granville Austin's observation brings out the true position that Parts III and IV are like two wheels of a chariot, one no less important than the other. You snap one and the other will lose its efficacy. They are like a twin formula for achieving the social revolution, which is the ideal which the visionary founders of the Constitution set before themselves. In other words, the Indian Constitution is founded on the bedrock of the balance between Parts III and IV. To give absolute primacy to one over the other is to disturb the harmony of the Constitution. This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution.

62. This is not mere semantics. The edifice of our Constitution is built upon the concepts crystallised in the Preamble. We resolved to constitute ourselves into a Socialist State which carried with ft the obligation to secure to our people justice--social, economic and political. We. therefore, put part IV into our Constitution containing directive principles of State policy which specify the socialistic goal to be achieved. We promised to our people a democratic polity which carries with it the obligation of securing to the people liberty of thought expression, belief, faith and worship; equality of status and of opportunity and the assurance that the dignity of the individual will at all costs be preserved. We, therefore, put Part III in our Constitution conferring those rights on the people. Those rights are not an end in themselves but are the means to an end, The end is specified in Part IV. Therefore, the rights conferred by Part III are subject to reasonable restrictions and the Constitution provides that enforcement of some of them may, in .stated uncommon circumstances, be suspended. But just as the rights conferred by Part III would be without a radar and a compass if they were not geared to an ideal, in the same manner the attainment of the ideals set out in Part IV would become a pretence or tyranny if the price to be paid for achieving that ideal is human freedoms. One of the faiths of our founding fathers was the purity of means. Indeed, under our law. even a dacoit who has committed a murder cannot be put to death in the exercise of right of self-defence after he has made good his escape. So great is the insistence of civilised laws on the purity of means. The goals set out in Part IV have, therefore, to be achieved without the abrogation of the means provided for by Part III. It is in this sense that Parts ill and IV together constitute the core of our Constitution and combine to Form its conscience. Anything that destroys the balance between the two parts will ipso facto destroy an essential element of the basic structure of our Constitution.

63. It is in this light that the validity of the amended Article 31C has to be examined. Article 13(2) says that the State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention of that Clause shall to the extent of the contravention be void Article 31C begins with a non obstante Clause by putting Article 13 out of harm's way. It provides for a certain consequence notwithstanding anything contained in Article 13. It then denudes Articles 14 and 19 of their functional utility by providing that the rights conferred by these Articles will be no barrier against passing laws for giving effect to the principles laid down in Part IV. On any reasonable interpretation, there can be no doubt that by the amendment introduced by Section 4 of the 42nd Amendment, Articles 14 and 19 stand abrogated at least in regard to the category of laws described in Article 31C. The startling consequence which the amendment has produced is that even if a law it in total defiance of the mandate of Article 13 read with Articles 14 and 19, its validity will not be open to question so long as its object is to secure a directive principle of State Policy. We are disposed to accept the submission of the learned Solicitor General, considering the two charts of cases submitted by him, that it is possible to conceive of laws which will not attract Article 31C since they may not bear direct and reasonable nexus with the provisions of Part IV. But, that, in our opinion, is beside the point. A large majority of laws, the bulk of them, can at any rate be easily justified as having been passed for the purpose of giving effect to the policy of the State towaids securing some principle or the other laid down in Part IV. In respect of all such laws, which will cover an extensive gamut of the relevant legislative activity, the protection of Articles 14 and 19 will stand wholly withdrawn. It is then no answer to say, while determining whether the basic structure of the Constitution is altered, that at least some laws will fall outside the scope of Article 31C.

64. We have to decide the matter he-fore us not by metaphysical subtlety, nor as a matter of semantics, but by a broad and liberal approach. We must not miss the wood for the trees. A total deprivation of fundamental rights, even in a limited area, can amount to abrogation of a fundamental right just as partial deprivation in every area can. An author, who writes exclusively on foreign matters, shall have been totally deprived of the right of free speech and expression if he is prohibited from writing on foreign matters. The fact therefore that some laws may fall outside the scope of Article 31C is no answer to the contention that the withdrawal of protection of Articles 14 and 19 from a large number of laws destroys the basic structure of the Constitution.

65. It was repeatedly impressed upon us, especially by the Attorney General, that Article 38 of the Constitution is the king-pin of the directive principles and no law passed in order to give effect to the principle contained therein can ever damage or destroy the basic structure of the Constitution, That Article provides that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. We are unable to agree that all the Directive Principles of State Policy contained in Part IV eventually verge upon Article 38. Article 38 undoubtedly contains a broad guideline, but the other directive principles are not mere illustrations of the principle contained in Article 38. Secondly, if it be true that no law passed for the purpose of giving effect to the directive principle contained in Article 38 can damage or destroy the basic structure of the Constitution, what was the necessity, and more so the justification, for providing by a constitutional amendment that no law which is passed for giving effect to the policy of the State towards securing any principle laid down in Part IV shall be deemed to be void on the ground that it Is inconsistent with or takes away or bridges the rights conferred by Articles 14 and 19 ? The object and purpose of the amendment of Article 31C is really to save laws which cannot be saved under Article 19(2) to (6). Laws which fall under those provisions are in the nature of reasonable restrictions on the fundamental rights in public interest and therefore they abridge but do not abrogate the fundamental rights. It was in order to deal with laws which do not get the protection of Article 19(2) to (6) that Article 31C was amended to say that the provisions of Article 19, inter alia, cannot be invoked for voiding the laws of the description mentioned in Article 31C.

66. Articles 14 and 19 do not confer any fanciful rights. They confer rights which are elementary for the proper and effective functioning of a democracy. They are universally so regarded, as is evident from the Universal Declaration of Human Rights. Many countries in the civilised world have parted with their sovereignty in the hope and belief that their citizens will enjoy human freedoms. And they preferred to be bound by the decisions and decrees of foreign tribunals on matters concerning human freedoms. It Articles 14 and 19 are put out of operation in regard to the bulk of laws which the legislatures are empowered to pass, Article 32 will be drained of its life-blood. Article 32(4) provides that the right guaranteed by Article 32 shall not be suspended except as otherwise provided for by the Constitution. Section 4 of the 42nd Amendment found an easy way to circumvent Article 32(4) by withdrawing totally the protection of Articles 14 and 19 in respect of a large category of laws, so that there will be no violation to complain of in regard to which redress can be sought under Article

32. The power to take away the protection of Article 14 is the power to discriminate without a valid basis for classification. By a long series of decisions this Court has held that Article 14 forbids class legislation but it does not forbid classification. The purpose of withdrawing the protection of Article 14, therefore, can only be to acquire the power to enact class legislation. Then again, regional chauvinism will have a field day if Article 19(1)(d) is not available to the citizens. Already, there are disturbing trends on a part of the Indian horizon. Those trends will receive strength and encouragement if laws can be passed with immunity, preventing the citizens from exercising their right to move freely throughout the territory of India. The nature and quality of the amendment introduced by Section 4 of the 42nd Amendment is therefore such that it virtually tears away the heart of basic fundamental freedoms.

67. Article 31C speaks of laws giving effect to the policy of the "State". Article 12 which governs the interpretation of Article 31C provides that the word "State" in Part III includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Wide as the language of Article 31C is, the definition of the word "State" in Article 12 gives to Article 31C an operation of the widest amplitude. Even if a State Legislature passes a law for the purpose of giving effect to the policy by a local authority towards securing a directive principle, the law will enjoy immunity from the provisions of Articles 14 and 19. The State Legislatures are thus given an almost unfettered discretion to deprive the people of their civil liberties.

68. The learned Attorney General argues that the State is under an obligation to take steps for promoting the welfare of the people by bringing about a social order in which social, economic and political justice shall inform all the institutions of the national life. He says that the deprivation of some or the fundamental rights for the purpose of achieving this goal cannot possibly amount to a destruction of the basic structure of the Constitution. We are unable to accept this contention. The principles enunciated in Part IV are not the proclaimed monopoly of democracies alone. They are common to all polities, democratic or authoritarian. Every State is goal-oriented and claims to strive for securing the welfare of its people. The distinction between the different forms of Government consists in that a real democracy will endeavour to achieve its objectives through the discipline of fundamental freedoms like those conferred by Articles 14 and 19. Those are the most elementary freedoms without which a free democracy is impossible and which must therefore be preserved at all costs. Besides, as observed by Brandies, J., the need to protect liberty is the greatest when Government's purposes are beneficent. If the discipline of Article 14 is withdrawn and if immunity from the operation of that article is conferred, not only on laws passed by the Parliament but on laws passed by the State Legislatures also, the political pressures exercised by numerically large groups can tear the country asunder by leaving it to the legislature to pick and choose favoured areas and favourite classes for preferential treatment.

69. The learned Attorney General and the learned Solicitor General strongly impressed upon us that Article 31C should be read down so as to save it from the challenge of unconstitutionality. It was urged that it would be legitimate to read into that Article the intendment that only such laws would be immunised from the challenge under Articles 14 and 19 as do not damage or destroy the basic structure of the Constitution. The principle of reading down the provisions of a law for the purpose of saving it from a constitutional challenge is well-known. But we find it impossible to accept the contention of the learned Counsel in this behalf because, to do so will involve a gross distortion of the principle of reading down, depriving that doctrine of its only or true rationale when words of width are used inadvertently. The device of reading down is not to be resorted to in order to save the susceptibilities of the law makers, nor indeed to imagine a law of one's liking to have been passed. One must at least take the Parliament at its word when, especially, it undertakes a constitutional amendment.

70. Mr Palkhivala read out to us an extract from the speech of the then Law Minister who, while speaking on the amendment to Article 31C, said that the amendment was being introduced because the government did not want the let and hindrance" of the fundamental rights. If the Parliament has manifested a clear intention to exercise an unlimited power, it is impermissible to read down the amplitude of that power so as to make it limited. The principle of reading down cannot be invoked or applied in opposition to the clear intention of the legislature. We suppose that in the history of the constitutional law, no constitutional amendment has ever been read down to mean the exact opposite of what it says and intends. In fact, to accept the argument that we should read down Article 31C, so as to make it conform to the ratio of the majority decision in Kesavananda Bharati AIR 1978 SC 1461 is to destroy the avowed purpose of Article 31C as indicated by the very heading "Saving of certain laws under which Articles 31A, 31B and 31C are grouped. Since the amendment to Article 31C was unquestionably made with a view to empowering the legislatures to pass laws of a particular description even if those laws violate the discipline of Articles 14 and 19, it seems to us impossible to hold that we should still save Article 31C from the challenge of unconstitutionality by reading into that Article words which destroy the rationale of that Article and an intendment which is plainly contrary to its proclaimed purpose.

71. A part of the same argument was pressed upon us by the learned Additional Solicitor General who contended that it would still be open to the Courts under Article 31C to decide four questions: i) Does the law secure any or the directive principles of the State policy? (ii) Is it necessary to encroach upon fundamental rights in order to secure the object of the directive principles? (iii) What is the extent of such encroachment, if any? and (iv) Does that encroachment violate the basic structure of the Constitution?

72. This argument is open to the same criticism to which the argument of the learned Attorney General is open and which we have just disposed of , Reading the existence of an extensive judicial review into Article 31C is really to permit the distortion of the very purpose of that article. It provides expressly that no law of a particular description shall be deemed to be void on the ground that it violates Article 14 or Article 19. It would be sheer adventurism of a most extraordinary nature to undertake the kind of judicial enquiry which, according to the learned Additional Solicitor General, the courts are free to undertake.

73. We must also mention, what is perhaps not fully realised, that Article 31C speaks of laws giving effect to the "Policy of the State", "towards securing all or any of the principles laid down in Part IV." In the very nature of things ft is difficult for a court to determine whether a particular law gives effect to a particular policy. Whether a law is adequate enough to give effect to the policy of the State towards securing a directive principle is always a debatable question and the courts cannot set aside the law as invalid merely because, in their opinion, the law is not adequate enough to give effect to a certain policy. In fact, though the clear internment of Article 31C is to shut out all Judicial review, the argument of the learned Additional Solicitor General calls for a doubly or trebly extensive judicial review than is even normally permissible to the courts. Be it be remembered that the power to enquire into the question whether there is a direct and reasonable nexus between the provisions of a law and a directive principle cannot confer upon the courts the power to sit in judgment over the policy itself of the State. At the highest, courts can, under Article 31C, satisfy themselves as to the identity of the law in the sense whether it bears direct and reasonable nexus with a directive principle. If the court is satisfied as to the existence of such nexus, the inevitable consequence provided for by Article 31C must follow. Indeed, if there is one topic on which all the 13 Judges in Kesavananda Bharati were agreed, it is this: that the only question open to judicial review under the un-amended Article 31C was whether there is a direct and reasonable nexus between the impugned law and the provisions of Article 38(b) and (c). Reasonableness is evidently regarding the nexus and not regarding the law. Ft is therefore impossible to accept the contention that it is open to the courts to undertake the kind of enquiry suggested by the Additional Solicitor General. The attempt therefore to drape Article 31C into a democratic outfit under which an extensive judicial review would be permissible must tail.

74. We should have mentioned that a similar argument was advanced in regard to the amendment effected by Section 56 of the 42nd Amendment to Article 368, by the addition of Clauses (4) and (5) therein. It was urged that we should so construe the word "amendment" in Clause (4) and the word "amend" in Clause (5) as to comprehend only such amendments as do not destroy the basic structure of the Constitution. That argument provides a striking illustration of the limitations of the doctrine of reading down. The avowed purpose of Clauses (4) and (5) of Article 368 is to confer power upon the Parliament to amend the Constitution without any "limitation whatever". Provisions of this nature cannot be saved by reading into them words and intendment of a diametrically opposite meaning and content.

75. The learned Attorney General then contends that Article 31C should be upheld for the same reasons for which Article 31A(1) was upheld. Article 31A(1) was considered as a contemporaneous practical exposition of the Constitution since it was inserted by the very First Amendment which was passed in 1951 by the same body of persons who were members of the Constituent Assembly. We can understand that Article 31A can be looked upon as a contemporaneous practical exposition of the intendment of the Constitution, but the same cannot be said of Article 31C. Besides, there is a significant qualitative difference between the two Articles. Article 31A, the validity of which has been recognised over the years, excludes the challenge under Articles 14 and 10 in regard to a specified category of laws. If by a constitutional amendment, the application of Articles 14 and 19 is withdrawn from a defined field of legislative activity, which is reasonably in public interest, the basic framework of the Constitution may remain unimpaired. But if the protection of those articles is withdrawn in respect of a nuncatalogued variety of laws, fundamental freedoms will become a 'parchment in a glass case' to be viewed as a matter of historical curiosity.

76. An attempt was made to equate the provisions of Article 31C with those of Article 31A in order to lend plausibility to the contention that since Article 31A was also upheld on the ground of stare decisis, Article 31C can be upheld on the name ground. We see no merit in this contention. In the first place, as we have indicated above, the five matters which are specified in Article 31A are of such quality, nature, content and character that at least a debate can reasonably arise whether abrogation of fundamental rights in respect of those matters will damage or destroy the basic structure of the Constitution. Article 31C does not deal with specific subjects. The directive principles are couched in broad and general terms for the simple reason that they specify the goals to be achieved. Secondly, the principle of stare decisis cannot be treated as a fruitful source of perpetuating curtailment of human freedoms. No court has upheld the validity of Article 31A on the ground that it does not violate the basic structure of the Constitution". There is no decision on the validity of Article 31A which can be looked upon as a measuring rod of the extent of the amending power. To hark back to Article 31A every time that a new constitutional amendment is challenged is the surest means of ensuring a drastic erosion of the fundamental rights conferred by Part HI. Such a process will insidiously undermine the efficacy of the ratio of the majority judgment in Kesavananda Bharati regarding the inviolability of the basic structure. That ratio requires that the validity of each new constitutional amendment must be judged on its own merits.

87. I may also at this stage refer to an argument advanced before us on the basis of certain observations in the judgment of Khanna. J. that he regarded fundamental rights as" not forming part of the basic structure, of the Constitution and therefore, according to him, they could be abrogated or taken away by Parliament by an amendment made under Article 368. If this argument were correct, the majority holding in Kesavananda Bharati's case would have to be taken to be that the fundamental rightt could be abrogated or destroyed in exercise of the power of amendment, because Ray, J. Palekar, J., Mathew, J., Beg, L, Dwivedi, I. and Chandrachud, J. took the view mat the power of amendment being unlimited, it was competent to Parliament in exercise of this power to abrogate or emasculate the Fundamental Rights and adding the view of Khanna. J., there would be 7 Judges as against 6 in holding that the Fundamental Rights could be abrogated or taken away by Parliament by a constitutional amendment. But we do not think that this submission urged on behalf of the respondents is well founded. It is undoubtedly true that there are certain observations in the Judgment of Khanna, J. at the bottom of page 688 of the Report which seem to suggest that according to the learned Judge, the fundamental rights could be abridged or taken away by an amendment under Article 368. For example, he says:

No serious objection is taken to repeal, addition or alteration of provisions of the Constitution other than those in Part III under the power of amendment conferred by Article 368. The same approach in my opinion should hold good when w deal with amendment relating to Fundamental Rights contained in Part III of the Constitution. It would he impermissible to differentiate between the scope and width of the power of amendment when it deals with Fundamental Rights and the scope and width of that power when it deals with provisions out concerned with Fundamental Rights.

Then again at page 707 of the Report, the learned fudge rejects the argument that the core and essence of a Fundamental Hight is immune from the amendatory process. These observations might at first blush appear to support the view that, according to Khanna. J., the amendatory power under Article 368 was sufficiently wide to comprehend not only addition or alteration but also repeal of a Fundamental Right resulting in its total abrogation. But if we look at the judgment of Khanna, J. as a whole, we do not think this argument can be sustained. It is clear that these observations were made by the learned Judge with a view to explaining the scope and width of the power of amendment under Article 38. The learned Judge held that the amendatory power of Parliament was wide enough to reach every provision of the Constitution including the Fundamental Rights in Part III of the Constitution, but while so holding, he proceeded to make it dear that despite all this width, the amendatory power was subject to an overriding limitation, namely, that it could not be exercised so as to alter the basic structure or framework of the Constitution. The learned Judge stated in so many words at page 688 of the Report that though "the power of amendment is plenary and would include within itself, the power to add, alter or repeal the various articles including those 'relating to fundamental rights", it is "subject to the retention of the basic structure or framework of the Constitution." The same reservation was repeated by the learned Judge in Clause (vii) of the summary of his conclusions given at the end of his judgment. It will, therefore, be seen mat according to Khanna, J. the power of amendment can be exercised by Parliament so as even to abrogate or take away a fundamental right, so long as it does not alter the basic structure or framework of the Constitution. But if the effect of abrogating or taking away such fundamental right is to alter or affect the basic structure or frame-work of the Constitution, the amendment would be void as being outside the amending power of Parliament. It is precisely for this reason that the learned Judge proceeded to consider whether the right to property could be said to appertain to the basic structure or framework of the Constitution. If the view of Khanna, J, were that no fundamental right forms part of the basic structure or framework of the Constitution and it can therefore be abrogated or taken away in exercise of the amendatory power under Article 368, it was totally unnecessary for the learned Judge to consider whether the right. to property could be said to appertain to the basic structure or framework of the Constitution. The very fact that Khanna, J. proceeded to consider this question shows beyond doubt that he did not hold that fundamental rights were not a part of the basic structure. The only limited conclusion reached by him was that the right to property did not form part of the basic structure, but so far as the other fundamental rights were concerned, he left the question open. Therefore, it was that he took pains to clarify in his judgment in Smt. Indira Gandhi's case (supra) that what he laid down in Kesavananda Bharati's case was "that no Article of the Constitution is immune from the amendatory process because of the fact that it relates to fundamental tight and Is contained in Part III of the Constitution," and that he did not hold in that case that "fundamental rights are not a part of the basic structure of the Constitution". Now if this be so, it is difficult to understand how he could hold the Constitution (Twenty-ninth Amendment) Act, 1972 unconditionally valid. Consistently with his view, he should have held that the Constitution (Twenty-ninth Amendment) Act, 1972 would be valid only if the protection afforded by it to the Kerala Acts included in the 9th Schedule was not violative of the basic structure or framework of the Constitution, But merely because the learned Judge wrongly held the Constitution (Twenty-ninth Amendment) Act, 1972 to be unconditionally valid and did not uphold its validity subject to the scrutiny of the Kerala Acts added in the 9th Schedule, it cannot follow that he regarded the fundamental rights as not forming part of the basic structure of the Constitution, If the law was correctly laid down by him, it did not become incorrect by being wrongly applied. It is not customary to quote from the writing of a living author, but departing from that practice which, I believe, is no longer strictly adhered to or followed, I may point out that what 1 have said above finds support from the comment made by Mr. Seervai in the 3rd Volume of his book on Constitutional Law, where the learned author says:

The conflict between Khanna, J.'s views on the amending power and on the unconditional validity of the Twenty-ninth Amendment is resolved by saying that he laid down the scope of the amending power correctly, but misapplied that law in holding Article 31B and Schedule 9 unconditionally valid.

I entirely agree with this perceptive remark of the learned author.

88. The true ratio emerging from the majority decision in Kesavananda Bharati's case being that the Parliament tan-not in the exercise of its amendatory power under Article 368 alter the basic structure or framework of the Constitution, I must proceed to consider whether Article 31A, Article 31B read with 9th Schedule, Article 31C as it stood prior to its amendment and the amended Article 31C are violative of the basic structure or framework of the Constitution, for if they are. they would be unconstitutional and void. Now what are the features or elements which constitute the basic structure or framework of the Constitution or which, if damaged or destroyed, would rob the Constitution of its identity so that it would cease to be the existing Constitution but would become a different Constitution. The majority decision in Kesavananda Bharati's case no doubt evolved the doctrine of basic structure or framework but it did not lay down that any particular named features of the Constitution formed part of its basic structure or framework. Sikri, C. J. mentioned supremacy of the Constitution, republican and democratic form of Government, secular character of the Constitution, separation of powers among the legislators, executive and judiciary, federalism and dignity and freedom of the individual as essential features of the Constitution, Shelat and Grover. JJ. added to the list two other features; justice --social, economic and political and unity and integrity of the Nation. Hegde and Mukherjea, JT. added sovereignty of India as a basic feature of the Constitution. Reddy, J, thought that sovereign democratic republic, parliamentary torm of democracy and the three organs of the State formed the basic structure of the Constitution. Khanna, J. held that basic structure indicated the broad contours and outlines of the Constitution and since the right to property was a matter of detail, it was not a part of that structure. But he appeared to be of the view that the democratic form of government, the secular character of the State and judicial review formed part of the basic structure. It is obvious that these were merely illustrations of what each of the six learned Judges led by Sikri, C. J. thought to be the essential features of the Constitution and they were not intended to be exhaustive. Shelat and Grover, JJ. Hedge and Mukherjea, JJ. and Reddy, J. in fact said in their judgments that their list of essential features which form the basic structure of the Constitution was illustrative or incomplete. This enumeration of the essential features by the six learned Judges had obviously no binding authority; first, because the Judges were not required to decide as to what features or elements constituted the basic structure or framework of the Constitution and what each of them said in this connection was in the nature of obiter and could have only persuasive value; secondly, because the enumeration was merely by way of illustration and thirdly, because the opinion of six Judges that certain specified features formed part of the , basic structure of the Constitution did not represent the majority opinion and hence could not be regarded as law declared by this Court under Article 141. Therefore, in every case where the question arises as to whether a particular feature of the Constitution is a part of its basic structure, it would have to be determined on a consideration of various factors such as the place of the particular feature in the scheme of the Constitution, its object and purpose and the consequence of its denial on the integrity of the Constitution as a fundamental instrument of country's governance. Vide the observations of Chandrachud, T. (as he then was) in Smt. Indira Gandhis case at p. 658 of the Report.

89. This exercise of determining whether certain particular features formed part of the basic structure of the Constitution had to be undertaken by this Court in Smt. Indira Gandhi's case (supra) which came up for consideration within a short period of four years after the delivery of the judgments in Kesavananda Bharati's case . The constitutional amendment which was challenged

in that case was the Constitution (Thirty-ninth Amendment) Act, 1975, which introduced Article 329A and the argument was that Clause (4) of this newly added article was constitutionally invalid on the ground that it violated the basic structure or framework of the Constitution. This challenge was unanimously upheld by a Constitution Bench which consisted of the Chief Justice and four seniormost Judges of this Court. It is not necessary for our purpose to analyse the judgments given by the five Judges in this case as they deal with various matters which are not relevant to the questions which arise before us. But it may be pointed out that two of the learned Judges, namely, Khanna and Mathew. JJ. neld that democracy was an essential feature forming part of the basic structure and struck down Clause (4) of Article 329A on the ground that it damaged the democratic structure of the Constitution. Chandrachud, J. (as he then was) emphatically asserted that, in his opinion, there were four unamendable features which formed part of the basic structure, namely, "(i) India is a sovereign democratic republic; (ii) Equality of status and opportunity shall be secured to all its citizens; (iii) The State shall have no religion of its own and all persons shall be equally entitled to freedom of conscience and the right freely to pr of ess, practise and propagate religion and (iv) The nation shall be governed by a government of laws, not of men." These, according to him, were "the pillars of our constitutional philosophy, the pillars, therefore, of the basic structure of the Constitution." He then proceeded to hold that Clause (4) of Article 329A was "an Outright negation of the right of equality conferred by Article 14, a right which more than any other is a basic postulate of our Constitution" and on that account declared it to be unconstitutional and void. Mathew, J. however, expressed his dissent from the view taken by Chandrachud, J. as regards the right of equality conferred by Article 14 being an essential feature of the Constitution and stated inter alia the following reason:

The majority in Bharati's case did not hold that Article 14 pertains to the basic structure of the Constitution. The majority upheld the validity of the first part of Article 31C; this would show that a constitutional amendment which takes away or abridges the right to challenge the validity of an ordinary law for violating the fundamental right under that Article would not destroy or damage the basic structure. The only logical basis for supporting the validity of Articles 31A, 31B and the first part of 31C is that Article 14 is not a basic structure.

I shall have occasion to discuss later the concept of equality under the Constitution and whether it forms part of the basic structure. But, one position of a basic and fundamental nature I may make clear at this stage, and there I agree with Mathew, J., that whether a particular feature forms part of the basic structure has necessarily to be determined on the basis of the specific provisions of the Constitution. To quote the words of Mathew, I. in Smt. Indira Gandhi's case (supra) "To be a basic structure it must be a terrestrial concept having its habitat within the four corners of the Constitution." What constitutes basic structure is not like "a twinkling star up above the Constitution." It does not consist of any abstract ideals to be found outside the provisions of the Constitution. The Preamble no doubt enumerates great concepts embodying the ideological aspirations of the people but these concepts are particularised and their essential features delineated in the various provisions of the Constitution. It is these specific provisions in the body of the Constitution which determine the type of democracy which the founders of that instrument established; the quality and nature of justice, political, social and economic which they aimed to realise, the content of liberty of thought and expression which they entrenched in that document and the scope of equality of status and of opportunity which they enshrined in it. These specific provisions enacted in the Constitution alone can determine the basic structure of the Constitution. These specific provisions, either separately or in combination, determine the content of the great concepts set out in the Preamble. It is impossible to spin out any concrete concept of basic structure out of the gossamer concepts set out in the Preamble. The specific provisions of the Constitution are the stuff from which the basic structure has to be woven. Mathew, J. in Smt. Indka Gandhi v. Raj Naiain

90. Now, in Wamanrao's case the broad argument of Mr. Phadke on behalf of the petitioners founded on the doctrine of basic structure was, and this argument was supported by a large number of other counsel appearing in the allied petitions, that the fundamental rights, enshrined in Articles 14 and 19 form part of the basic structure of the Constitution and therefore Article 31A, Article 31B, read with 9th Schedule and the unamend-ed Article 31C in so far as they exclude the applicability of Articles 14 and 19 to certain kinds of legislation emasculate those fundamental rights and thereby damage the basic structure of the Constitution and they must accordingly be held to be outside the amending power of Parliament and hence unconstitutional and void. I have not made any reference here to Article 31 and treated the argument of Mr. Phadke as confined only to Articles 14 and 19, because, though Article 31 was very much in the Constitution when the arguments in Wamanrao's case were heard, it has subsequently been deleted by the Constitution (Forty-Fourth Amendment) Act 1978 and reference to it has also been omitted inArticles 31A, 31B and 31C and we are therefore concerned with the constitutional validity of these Articles only in so far as they grant immunity against challenge on the ground of infraction of Articles 14 and 19. Mr. Phadke on behalf of the petitioners also challenged the constitutional validity of the Constitution (Fortieth Amendment) Act, 1976 which included the amending Acts 21 of 1975, 41 of 1975 and 2 of 1976 in the 9th Schedule, on the ground that the Lok Sabha was not in existence at the date when it was enacted. But obviously, in view of Clauses (4) and (5) introduced in Article 368 by Section 55 of the Constitution (Forty-second Amendment) Act, 1976, it was not possible for Mr. Phadke on behalf of the petitioners to assail the constitutional validity of Article 31A, Article 31B read with the 9th Schedule as amended by the Constitution (Fortieth Amendment) Act, 1976 and the unamend-ed Article 31C, since these two Clauses of Article 368 barred challenge to the validity of a constitutional amendment on any ground whatsoever and declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal, any provision of the Constitution. He therefore, as a preliminary step in his argument challenged the constitutional validity of Clause (4) and (5) of Article 368 on the ground that these Clauses damaged the basic structure of the Constitution and were outside the amending power of Parliament. The argument of Mr. Palkhiwala on behalf of the petitioners in the Minerva Mills' case was a little different. He too attacked the vires of Clause (4) and (5) of Article 368 since they barred at the thresh-hold any challenge against the constitutional validity of the amendment made in Article 31C, but so far as Article 31A, Article 31B and the unamended Article 31C were concerned, he did not dispute their validity and, as pointed out by us earlier, he conceded and in fact gave cogent reasons showing that they were constitutionally valid. His only attack was against the validity of the amendment made in Article 31C by Section 4 of the Constitution (Forty-second Amendment) Act, 1976 and he contended that this amendment, by making the Directive Principles supreme over the fundamental rights, damaged or destroyed the basic structure of the Constitution. He urged that the basic structure of the Constitution rests on the foundation that while the Directive Principles are the mandatory ends of government, those ends have to be achieved only through the permissible means set out in the Chapter on fundamental rights and this balance and harmony between the fundamental rights and the Directive Principles was destroyed by the amendment in Article 31C by making the fundamental rights subservient to the Directive Principles and in consequence, the basic structure of the Constitution was emasculated. A passionate plea was made by Mr. Palkhiwala with deep emotion and feeling that if Article 31C as amended was allowed to stand, it would be on openlicence to the legislature and the executive both at the center and in the States, to destroy democracy and establish an authoritarian or totalitarian regime, since almost every legislation could be related, directly or indirectly, to some Directive Principle and would thus' be able to earn immunity from the challenge of Articles 14 and 19 and the fundamental rights enshrined in these two Articles would be rendered meaningless and futile and would become mere rope of sand. Mr. Palkhiwala vehemently urged that Justice, liberty and equality were the three pillars of the Constitution and they were embodied in Articles 14 and 19 and therefore if the supremacy of the fundamental rights enshrined in these Articles was destroyed and they were made subservient to the Directive Principles, it would result in the personality of the Constitution being changed beyond recognition and such a change in the personality would be outside the amending power of Parliament. Mr. Palkhiwala likened the situation to a permanent state of emergency and pointed out by way of contract that whereas under an emergency the people x-ray be precluded from enforcing their fundamental rights underArticles 14 and 19 for the duration of the emergency, here the people were prevented from moving the court for enforcement of these fundamental rights for all time to come even without any emergency where a law was passed purporting to give effect to any of the Directive Principles, The amendment in Article 31C was thus, according to Mr. Palkhiwala, outside the amending power of Parliament and was liable to be struck down as unconstitutional and void.

91. Logically I must first consider the challenge against the constitutional validity of Clause (4) and (5) of Article 368, because it is only if they can be put out of the way that Mr. Phadke and Mr. Palkhiwala can proceed further with their respective challenges against the validity of the other constitutional provisions Impugned by them. Both these Clauses were inserted in Article 368 by Section 55 of the Constitution (Forty-second Amendment) Act, 1976 with a view to overcoming the effect of the majority decision in Kesavananda Bharati's case . Clause (4) enacted that no amendment of the

Constitution "made or purporting to have been made under this Article whether before or after the commencement of Section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question in any court on any ground" while Clause (5), which begins with the words "For the removal of doubts', declared that "there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this Article." The question is whether these two Clauses transgress the limitations on the amending power of Parliament and are therefore void. I will first take up for consideration Clause (4) which seeks to throw a cloak of protection on an amendment made or purporting to have been made in the Constitution and makes it unchallengeable on any ground. It is rather curious in its wording and betrays kck of proper care and attention in drafting. It protects every amendment made or purporting to have been made "whether oefore or after the commencement of Section 5 of the Constitution (Forty-second Amendment) Article 1976." But would an amendment made by any other section of the Constitution (Forty-second Amendment) Act, 1976 such as Section 4, which would be neither before nor after the commencement of Section 55, but simultaneous with it, be cover-ed by 9ils protective provision? This k purely a problem of verbal semantics which arises because of slovenliness in drafting that is becoming rather common these days and I need not dwell on it, for there are more important questions which arise out of the challenge to the constitutional validity of Clause (4) and they require serious consideration. I will proceed on the basis that the protection sought to be given by Clause (4) extends to every amendment whatsoever and that the parenthetical words "whether before or after the commencement of Section 55 of the Constitution (Forty-second Amendment) Act. 1976" were introduced merely by way of abundant caution with a view to indicating that this protection was intended to cover even amendments made or purporting to have been made before the enactment of the Constitution (Fourty-second Amendment) Act, 1978. Now even a cursory look at the language of Clause (4) is sufficient to demonstrate that this is a case of zeal over-running discretion. Clause (4) provides that no amendment to the Constitution made or purporting to have been made under Article 368 shall be called in question in any court on any ground. The words 'on any ground are of the widest amplitude and they would obviously cover even a ground that the procedure prescribed in Clause (2) and its proviso has not been followed. The result is that even if an amendment is purported to have been made without complying with the procedure prescribed in Sub-Clause (2) including its proviso, and is therefore unconstitutional, it would still be immune from challenge. It was undisputed common ground both at the bar and on the Bench, in Kesavananda Bharati's case that any amendment of the Constitution which did not conform to the procedure prescribed by Sub-Clause (2) and its proviso was no amendment at ail and a court would declare it invalid. Thus if an amendment were passed by a simple majority in the House of the People and the Council of States and the President assented to the amendment, it would in law be no amendment at all because the requirement of Clause (2) is that it should be passed by a majority of each of the two Houses separately and by not less than two-thirds of the members present and voting. But if Clause (4) were valid, it would become difficult to challenge the validity of such an amendment and it would prevail though made in defiance of a mandatory constitutional requirement. Clause (2) including its proviso would be rendered completely superfluous and meaningless and its prescription would become merely a paper requirement. Moreover, apart from nullifying the requirement of Clause (2) and its proviso, Clause (4) has also the effect of rendering an amendment immune from challenge even if it damages or destroys the basic structure of the Constitution and is therefore outside the amending power of Parliament. So long as Clause (4) stands, an amendment of the Constitution though unconstitutional and void as transgressing the limitation on the amending power of Parliament as laid down in Kesavananda Bharati's case, would be unchallengeable in a court of law. The consequence of this exclusion of the power of judicial review would be that, in effect and substance, the limitation on the amending power of Parliament would, from a practical point of view, become non-existent and it would not be incorrect to say that, covertly and indirectly, by the exclusion of judicial review, the amending power of Parliament would stand enlarged, contrary to the decision of this Court in Kesavananda Bharati's case. This would undoubtedly damage the basic structure of the Constitution, because there are two essential features of the basic structure which would be violated, namely, the limited amendingpower of Parliament and the power of judicial review with a view to examining whether any authority under the Constitution has exceeded the limits of its powers, I shall immediately proceed to state the reasons why I think that these two features form part of the basic structure of the Constitution.

92. It is clear from the majority decision in Kesavananda Bharati's case that our Constitution is a controlled

Constitution which confers powers on the various authorities created and recognised by it and defines the limits of those powers. The Constitution is supreme lex, the paramount law of the land and there is no authority, no department or branch of the State, which is above or beyond the Constitution or has powers unfettered and unrestricted by the Constitution. The Constitution has devised a structure of power relationship with checks and balances and limits are placed on the powers of every authority or instrumentality under the Constitution. Every organ of the State, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of such authority. Parliament too, is a creature of the Constitution and it can only have such powers as are given to it under the Constitution. It has no inherent power of amendment of the Constitution and being an authority created by the Constitution, it cannot have such inherent power, but the power of amendment is conferred upon it by the Constitution and it is a limited power which is so conferred. Parliament cannot in exercise of this power so amend the Constitution as to alter its basic structure or to change its identity. Now, if by constitutional amendment, Parliament were granted unlimited power of amendment, it would cease to be an authority under the Constitution, but would become supreme over it, because it would have power to alter the entire Constitution including its basic structure and even to put an end to it by totally changing its identity. It will therefore be seen that the limited amending power of Parliament is Itself an essential feature of the Constitution, a part of its basic structure, for if the limited power of amendment were enlarged into an unlimited power, the entire character of the Constitution would be changed. It must follow as a necessary corollary that any amendment of the Constitution which seeks, directly or indirectly, to enlarge the amending power of Parliament by freeing it from the limitation of unamendability of the basic structure would be violative of the basic structure and hence outside the amendatory power of Parliament.

93. It is a fundamental principle of our constitutional scheme, and I have pointed this out in the preceding paragraph, that every organ of the State, every authority under the Constitution, derives its power from the Constitution and has to act within the limits of such power. But then the question arises as to which authority must decide what are the limits on the power conferred upon each organ or instrumentality of the State and whether such limits are transgressed or exceeded. Now there are three main departments of the State amongst which the powers of Government are divided; the Executive, the legislature and the Judiciary. Under our Constitution we nave no rigid separation of powers as in the United States of America, but there is a broad demarcation, though, having regard to the complex nature of governmental functions, certain degree of overlapping is inevitable. The reason for this broad separation of powers is that "the concentration of powers in any one organ may" to quote the words of Chandrachud, J. (as he then was) in Smt. Indira Gandhi's case (supra) "by upsetting that fine balance between the three organs, destroy the fundamental premises of a democratic Government to which we are pledged." Take for example, a case where the executive which is in charge of administration acts to the prejudice of a citizen and a question arises as to what are the powers of the executive and whether the executive has acted within the scope of its powers. Such a question obviously cannot be left to the executive to decide and for two very good reasons. First, the decision of the question would depend upon the interpretation of the Constitution and the laws and this would pre-eminently be a matter fit to be decided by the judiciary, because it is the judiciary which alone would be possessed of expertise in this field and secondly, the constitutional and legal protection afforded to the citizen would become illusory, if it were left to the executive to determine the legality of its own action. So also if the legislature makes a law and a dispute arises whether in making the law the legislature has acted outside the area of its legislative competence or the law is violative of the fundamental rights or of any other provisions of the Constitution, its resolution cannot, for the same reasons, be left to the determination of the legislature. The Constitution has, therefore, created an independent machinery for resolving these disputes and this independent machinery is the judiciary which is vested with the power of judicial review to determine the legality of executive action and the validity of legislation passed by the legislature. It is the solemn duty of the judiciary under the Constitution to keep the different organs of the State such as the executive and the legislature within the limits of the power conferred upon them by the Constitution. This power of judicial review is conferred on the judiciary byArticles 32 and 226 of the Constitution. Speaking about draft Article 25, corresponding to present Article 32 of the Constitution, Dr. Ambedkar, the principal architect of our Constitution, said in the Constituent Assembly on 9th December, 1948:

"If I was asked to name any particular article in this Constitution as the most important--an article without which this Constitution would be a nullity--I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realised its importance." (C. A. debates, Vol. VII, p. 953) It is a cardinal principle of our Constitution that no one howsoever highly placed and no authority however T of ty can claim to be the sole judge of its power under the Constitution or whether its action is within the confines of such power laid down by the Constitution. The judiciary is the interpreter of the Constitution and to the judiciary is assigned the delicate task to determine what is the power conferred on each branch of Government, whether It is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for the judiciary to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law, which inter alia requires that "the exercise of powers by the Government whether it be the legislature or the executive or any other authority, be conditioned by the Constitution and the law." The power of judicial review is an integral part of our constitutional system and without it, there will be no Government of laws and the rule of law would become a teasing illusion and a promise of unreality. I am of the view that if there is one feature of our Constitution which, more than any other, ii basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably, to my mind, part of the basic structure of the Constitution. of course, when I say this I should not be taken to suggest that effective alternative institutional mechanisms or arrangements for judicial review cannot be made by Parliament. But what I wish to emphasise is that judicial review is a vital principle of our Constitution and it cannot be abrogated without affecting the basic structure of the Constitution. If by a constitutional amendment, the power of judicial review is taken away and it is provided that the validity of any law made by Legislature shall not be liable to be called in question on any ground, even if it is outside the legislative competence of the legislature or is violative of any fundamental rights, it would be nothing short of subversion of the Constitution, for it would make a mockery of the distribution of legislative powers between the Union and the States and render the fundamental rights meaningless and futile. So also if a constitutional amendment is made which has the effect of taking away the power of judicial review and providing that no amendment made in the Constitution shall be liable to be questioned on any ground, even if such amendment is violative of the basic structure and, therefore, outside the amendatory power of Parliament, it would be making Parliament sole Judge of the constitutional validity of what it nas done and that would, in effect and substance, nullify the limitation on the amending power of Parliament and affect the basic structure of the Constitution. The conclusion must therefore inevitably follow that Clause (4) of Article 368 is unconstitutional ;and void as damaging the basic structure l of the Constitution.

94. That takes us to Clause (5) of Article 368. This Clause opens with the words "For the removal of doubts" and proceeds to declare that there shall be no limitation whatever on the amending power of Parliament under Article 368, It is difficult to appreciate the meaning of the opening words "For the removal of doubts" because the majority decision in Kesavananda Bharati's case clearly laid down and left no doubt that the basic structure of the Constitution was outside the competence of the amendatory power of Parliament and in Smt. Indira Gandhi's case all the Judges unanimously accepted theory of the basic structure as a theory by which the validity of the amendment impugned before them, namely, Article 329A(4) was to be judged. Therefore, after the decisions in Kesavananda Bharati's case and Smt. Indira Gandhi's case, there was no doubt at all that the amendatory power of Parliament was limited and it was not competent to Parliament to alter the basic structure of the Constitution and Clause (5) could not remove the doubt which did not exist. What Clause (5), really sought to do was to remove the limitation on the amending power of Parliament and convert it from a limited power into an unlimited one- This was clearly and indubitably a futile exercise on the part or Parliament. I fail to see how Parliament which has only a limited power or amendment and which cannot alter the basic structure of the Constitution can expand its power of amendment so as to confer upon itself the power of repeal or abrogate the Constitution or to damage or destroy its basis structure. That would clearly be in excess of the limited amending power possessed by Parliament. The Constitution has conferred only a limited amending power on Parliament so that it cannot damage or destroy the basic structure of the Constitution and Parliament cannot by exercise of that limited amending power convert that very power into an absolute and unlimited power. If it were permissible to Parliament to enlarge the limited amending power conferred upon it into an absolute power of amendment, then it was meaningless to place a limitation on the original power of amendment. It is difficult to appreciate how Parliament having a limited power of amendment can get rid of the limitation by exercising that very power and convert it into an absolute power. Clause (5) of ! Article 368 which sought to remove the limitation on the amending power of Parliament by making it absolute must there-i fore be held to be outside the amending power of Parliament. There is also an-1 other ground on which the validity of this Clause can be successfully assailed. This Clause seeks to convert a controlled Constitution into an uncontrolled one by removing the limitation on the amending power of Parliament which, as pointed out above, is itself an essential feature of the Constitution and it is therefore violative of the basic structure. I would in the circumstances hold Clause (5) of Article 368, to be unconstitutional and void.

95. With Chiuscs (4) and (5) of Article 368 out of the way. I must now proceed to examine the challenge against the constitutional validity of Article 31A. Article 31B read with the 9th Schedule and the unamended Article 31C, So far as Article 31A is concerned, Mr. Phadke appearing on behalf of the petitioners contended that, tested by the doctrine of basic structure, Article 31A was unconstitutional and void, since it had the effect of abrogating Articles 14 and 19 in reference to legislation falling within the categories specified in the various Clauses of that Article, He argued that the Fundamental Rights enshrined in Articles 14 and 19 were part of the basic structure of the Constitution and any constitutional amendment which had the effect of abrogating or damaging these Fundamental Rights was outside the amendatory power of Parliament. While considering this argument, I may make it clear that I am concerned here only with constitutional validity of Clause (a) of Article 31A since the protection of Article 31A has been claimed in respect of Maharashtra Land Ceiling Acts only under Clause (a) of that Article arid I need not enter upon a discussion of the constitutional validity of Clauses (b) to (e) of Article 31A. I do riot think that the argument of Mr. Phadke challenging the constitutional validity of Clause (a) of Article 31A is well-founded. I shall have occasion to point out in a later part of this judgment that where any law is enacted for giving effect to a Directive Principle with a view to furthering the constitutional goal of social and economic justice, there would be no violation of the basic structure, even if it infringes formal equality before the law under Article 14 or any Fundamental Right under .Article 19. Here Clause (a) of Article 31A protects a law of agrarian reform which is clearly, in the context of the socio-economic conditions prevailing in India, a 'basic requirement of social and economic justice and is covered by the Directive Principles set out in Clauses (b) and (c) of Article 39 and it is difficult to see how t can possibly be regarded as violating the basic structure of the Constitution, on the contrary, agrarian reform leading to social and economic justice to the rural 'population is an objective which stren-gathers the basic structure of the Constitution. Clause (a) of Article 31A must therefore be held to be constitutionally, valid even on the application of the basic structure test.

96. But, apart from this reasoning on principle which in our opinion clearly sustains the constitutional validity of Clause (a) of Article 31A, we think that even on the basis of the doctrine of stare decisis Article 31A, must be upheld as constitutionally valid. The question as to the constitutional validity of Article 31A first came up for consideration before this1 Court in Shankari Prasad v. Union of India 1952 SCR 89 : AIR 1951 SC 458. There was a direct challenge leveled against the constitutionality of Article 31A in this case on various grounds and this challenge was rejected by a Constitution Bench of this Court. The principal ground on which the challenge was based was that if a constitutional amendment takes away or abridges any of the Fundamental Rights conferred by Part III of the Constitution, it would fall within the prohibition of Article 13(2) and would therefore be void. Patanjali Shastri, J., speaking on behalf of the Court, did not accept this contention and taking the view that in the context of Article 13, 'law' must he taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power he held that Article 13(2) does not affect constitutional amendments. This view in regard to the interpretation of the word 'law' in Article 13(2) has now been affirmed by this Court sitting as a full Court of 13 Judges in Kesavananda Bharati's case and it is no longer possible to argue the contrary proposition. It is true that in this case, the constitutional validity of Article 31A was not assailed on the ground of infraction of the basic feature since that was a doctrine which came to be evolved only in Kesavananda Bharati's case , but the fact

remains that whatever be the arguments advanced or omitted to be advanced, Article 31A was held to be constitutionally valid by this Court. Nearly 13 years after this decision was given in Shankari Prasad's case, a strong plea was made before this Court in Sajjan Singh v. State of Rajasthan that Shankari Prasad's case

should be reconsidered, but after a detailed discussion of the various arguments involved in the case, the Constitution Bench of this Court expressed concurrence with the view expressed in Shankari Prasad's case and in the result, upheld the constitutional validity of Article 31A, though the question which arose for consideration was a little different and did not directly involve the constitutional validity of Article 31A. Thereafter, came the famous decision of this Court in Golak Nath's case where a full Court of 11 Judges,

Now it is obvious on a plain natural construction of the language of Clause (1) of Article 352 that the President can take action under this Clause only if he is satisfied that a grave emergency exists whereby the security of India or any part of the territory there of is threatened, whether by war or external aggression or internal disturbance. The satisfaction of the President "that a grave emergency exists whereby the security of India, ...is threatened whether by war or external aggression or internal disturbance" is a condition precedent which must be fulfilled before the President can issue a Proclamation under Article 352 Clause (1). When this condition precedent is satisfied, the President may exercise the power under Clause (1) of Article 352 and issue a Proclamation of Emergency, The constitutional implications of a declaration bf emergency under Article 352 Clause (1) are vast and tht-y are provided in Articles 83(2), 250, 353, 354, 358 and 359. The emergency being an exceptional situation arising out of a national crisis certain wide and sweeping powers have been conferred on the Central Government and Parliament with a view to combat the situation and restore normal conditions. One such power is that given by Article 83(2), which provides that while a Proclamation of Emergency is in operation, Parliament may by law extend its duration for a period not exceeding one year at a time. Then another power conferred is that under Article 250 which says that, while a Proclamation of Emergency is in operation, Parliament shall nave the power to make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List. The effect of this provision is that the federal structure based on separation of powers is put out of action for the time being. Another power of a similar kind is given by Article 353 which provides that during the time when a Proclamation of Emergency is in force, the executive powers of the Union shall extend to the giving of directions to any State as to the manner in which the executive power there of is to be exercised. This provision also derogates from the federal principle which forms the basis of the Constitution. Then we come to Article 354 which confers power on the President, during the operation of a Proclamation of Emergency, to direct that the provisions relating to distribution of revenues underArticles 268 to 270 shall have effect subject to such modifications or exceptions as he thinks fit. Another drastic consequence of the Proclamation of Emergency is that provided in Article 358 which suspends the operation of the Fundamental Rights guaranteed under Article 19 while a Proclamation of Emergency is in operation. Article 359 Clause (1) empowers the President during the operation of a Proclamation of Emergency to make an Order suspending the enforcement of any of the Fundamental Rights conferred by Part III and CLAUSE (1A) introduced by the Constitution (Thirty Eight Amendment) Act, 1975 suspends the operation of those Fundamental Rights of which the enforcement has been suspended by the President by an Order made under Clause (1). These are the drastic consequences which ensue upon the making of a declaration of emergency. The issue of a Proclamation of Emergency makes serious inroads into the principle of federalism and emasculates the operation and efficacy of the Fundamental Rights. The power of declaring an emergency is therefore a power fraught with grave consequences and it has the effect of disturbing the entire power structure under the Constitution. But it is a necessary power given to the Central Government with a view to arming it adequately to meet an exceptional situation arising out of threat to the security of the country on account of war or external aggression or internal disturbance or imminent danger of any such calamity. It is therefore a power which has to be exercised with the greatest care and caution and utmost responsibility.

103. It will be convenient at this stage to consider the question as to whether and if so to what extent, the Court can review the constitutionality of a Proclamation of Emergency issued under Article 352 Clause (1). There were two objections put forward on behalf of the respondents against the competence of the Court to examine the question of validity of a Proclamation of Emergency. One objection was that the question whether a grave emergency exists whereby the security of India or any part there of is threatened by war or external aggression or internal disturbance is essentially a political question entrusted by the Constitution to the Union Executive and on that account, it is not justiciable before the court. It was urged that having regard to the political nature of the problem, it was not amenable to judicial determination and hence the court must refrain from inquiring into it. The other objection was that in any event by reason of Clause (4) and (5) of Article 352, the Court had no jurisdiction to question the satisfaction of the President leading to the issue of a Proclamation of Emergency or to entertain any question regarding the validity of the Proclamation of Emergency or its continued operation. Both these objections are in my view unfounded and they do not bar judicial review of the validity of the Proclamation of Emergency issued by the President under Article 352 Clause (1). My reasons for saying so are as follows.

104. It is axiomatic that if a question brought before the court is purely a political question not involving determination of any legal or constitutional right or obligation, the court would not entertain it, since the court is concerned only with adjudication of legal rights and liabilities. But merely because a question has! a political complexion, that by itself is no ground why the court should shrink from performing its duty under the Constitution, if it raises an issue of constitutional determination. There are a large number of decisions in the United States where Supreme Court has entertained actions having a political complexion because they raised constitutional issues. Vide Comillion v. Lightfoot (1960) 364 US 339 and Baker v. Carr (1961) 369 US 186. The controversy before the court may be political in character, but so long as it involves determination of a constitutional question, the court cannot decline to entertain it. This is also the view taken by Cupta. J. and myself in State of Rajas-than v. Union of India . I pointed out in my judgment in that case and I

still stand by it, that merely because a question has a political colour, the court cannot fold its hands in despair and declare "Judicial hands of f". So long as the question is whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the court. Indeed it would be its constitutional obligation to do so. I have said before, I repeat again, that the Constitution is suprema lex, the paramount, law of the land, and there is no department or branch of government above or beyond it. Every organ of government, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of its authority and whether it has done so or not is tor the Court to decide. The Court is the ultimate interpreter of the Constitution and when there is manifestly unauthorised exercise of power under the Constitution, it is the duty of the Court to intervene. Let it not be forgotten, that to this Court as much as to other branches of government, is committed the conservation and further-mice of constitutional values. The Court's task is to identify those values in the constitutional plan and to work them into life in the cases that reach the court. "Tact and wise restraint ought to temper any power but courage and the acceptance of responsibility have their place too." The Court cannot and should not shirk this responsibility, because it has swom the oath of allegiance to the Constitution and is also accountable to the people of this country. It would not therefore, be right for the Court to decline to examine whether in a given case there is any constitutional violation involved in the President issuing a Proclamation of Emergency under Clause (1) of Article 352.

105. But when I say this, I must make it clear that the constitutional jurisdiction of this Court does not extend further than saying whether the limits on the power conferred by the Constitution on the President have been observed or there is transgression of such limits. Here the only limit on the power of the President under Article 352 Clause (1) is that the President should be satisfied that a grave emergency exists whereby the security of India or any part there of is threatened whether by war or external aggression or internal disturbance. The satisfaction of the President is a subjective one and cannot be decided by reference to any objective tests. It is deliberately and advisedly subjective because the matter in respect to which he is to be satisfied is of such a nature that its decision must necessarily be left to the Executive branch of Government. There may be a wide range of situations which may arise and their political implications and consequences may have to be evaluated in order to decide whether there is a situation of grave emergency by reason of the security of the country being threatened by war or external aggression or internal disturbance. It is not a decision which can be based on what the Supreme Court of the United States has' described as "judicially discoverable and manageable standards". It would largely be a political judgment based on assessment of diverse and varied factors, fast-changing situations, potential consequences and a host of other imponderables. It cannot therefore, by its very nature, be a fit subject matter for adjudication by judicial methods and materials and hence it is left to the subjective satisfaction of the Central Government which is best in a position to decide it. Tliel court cannot go into the question of correctness or adequacy of the facts and circumstances on which the satisfaction of the Central Government is based. That would be a dangerous exercise for the Court, both because it is not a fit instrument for determining a question of this kind and also because the court would thereby usurp the function of the executive and in doing so, enter the "political thicket" which it must avoid, if it is to retain its legitimacy with the people. But one thing is certain that if the satis-facion is mala fide or is based on wholly extraneous and irrelevant grounds, the court would have jurisdiction to examine it, because in that case there would b^ no satisfaction of the President in regard to the matter on which he is required to be satisfied. The satisfaction of the President is a condition precedent to the exercise of power under Article 352 Clause (1) and if it can be shown that there is no satisfaction of the President at all, the exercise of the power would be constitutionally invalid. It is true that by reason of Clause (5) (a) of Article 352, the satisfaction of the President is made final and conclusive, and cannot be assailed on any ground, but as I shall presently point out, the power of judicial review is a part of the basic structure of the Constitution and hence this provision debarring judicial review would be open to attack on the ground that it is unconstitutional and void as damaging or destroying the basic structure. This attack against constitutionality can, however, be averted by reading the provision to mean--and that is how I think it must be read--that the immunity from challenge granted by it does not apply where the challenge is not that the satisfaction is improper or unjustified but that there is no satisfaction at all. In such a case, it is not the satisfaction arrived at by the President which is challenged but the existence of the satisfaction itself. Where therefore the satisfaction is absurd or perverse or mala fide or based on a wholly extraneous and irrelevant ground, it would be no satisfaction at all and it would be liable to be challenged before a Court, notwithstanding Clause (5) (a) of Article 352. It must of course, be conceded that in most cases it would be difficult if not impossible, to challenge the exercise of power under Article 352 Clause (1) even on this limited ground, because the facts and circumstances on which the satisfaction is based would not be known, but where it is possible, the existence of the satisfaction can always be challenged on the ground that it is mala fide or based on a wholly extraneous or irrelevant ground.

106. It is true that so far there is no decision of this Court taking the view that the validity of a Proclamation of Emergency can be examined by the court though within these narrow limits. But merely because there has been no occasion for this Court to pronounce on the question of justifiability of a Proclamation of Emergency no inference can be drawn that a Proclamation of Emergency is immune from judicial scrutiny. The question whether or not a Proclamation of Emergency can be judicially reviewed on the ground that it is mala tide or an abuse of power of the President did arise before this Court in Ghulam Sarwar v. Union of India , but the court declined to express any opinion on this question since no material was placed before the Court making out a case of mala fides or abuse of power. Undoubtedly, in the subsequent decision of this Court in Bhutnath Mato v. State of West Bengal there are one or two observations which might seem to suggest at first blush that a Proclamation of Emergency being a political matter is "dehon our ken", but if one looks closely at the judgment of Krishna lyer, J. in that case, it will be apparent that he does not lay down that a Proclamation of Emergency cannot be reviewed by the judiciary even on a limited ground and leaves that question open and rejects the contention of the petitioner challenging the continuance of Emergency only on the ground that : "the onus of establishing the continuation of Emergency and absence of any ground whatever for the subjective satisfaction of the President, heavy as it is, has hardly been discharged," and consequently it would be an academic exercise in constitutional law to' pronounce on the question of judicial reviewability of a Proclamation af Emergency. There is thus no decision of this Court holding that a Proclamation of Emergency is beyond the judicial ken and I am not fettered by any such decision compelling me to take a view different from the one which I have expounded in the preceding paragraph of this opinion. In fact, the judgment of Gupta, J. and Myself in State of Rajasthan v. Union of India (supra) completely support me in the view I am taking. A Proclamation of Emergency is undoubtedly amenable to judicial review though on the limited ground that no satisfaction as required by Article 352 was arrived at by the President in law or that the satisfaction was absurd or perverse or mala fide or based on an extraneous or irrelevant ground.

107. Now the question arises whether the continuance of a Proclamation of Emergency valid when issued can be challenged before the court on the ground that the circumstances which necessitated or justified its issuance have ceased to exist. Can the court be asked to declare that the Proclamation of Emergency has ceased to exist and is no longer in force or does the Proclamation continue to be in force until it is revoked by another Proclamation under Clause (2) (a) of Article 352. The answer to this question depends on the interpretation of Clause (2) of Article 352. That Clause says in Sub-Clause (a) that a Proclamation of Emergency issued under Clause (1) may i>e revoked by a subsequent Proclamation. Sub-Clause (b) of that Clause requires that a Proclamation issued under Clause (1) shall be laid before each House of Parliament and under Sub-Clause (c) such a Proclamation ceases to operate at the expiration of two months, unless it has been approved by both Houses of Parliament before the expiration of two months. It is clear from this provision that a Proclamation of Emergency validly issued under Clause (1) would continue to operate at least for a period of two months and if before the expiration of that period, it has been approved by resolutions of both Houses of Parliament, it would continue to operate further even beyond the period of two months, and the only way in which it can be brought to an end is by revoking it by another Proclamation issued under Clause (2) (a). There is to other way in which it can cease to operate. Neither Article 352 nor any other Article of the Constitution contains any provision saying that a Proclamation of Emergency validly issued under Clause (1) shall cease to operate as soon as, the circumstances warranting its issuance have ceased to exist. Il is, therefore, clear on a plain natural interpretation of the language of Sub- Clauses (a) to (c) of Clause (2) that so long as the Proclamation of Emergency is not revoked by another Proclamation under Sub-Clause (2) (a), it would continue to be in operation irrespective of change of circumstances. It may be pointed out that iti is interpretation of the provision of Clause (2) of Article 352 is supported by the decision of this Court in Lakhan Pal v. Union of India where dealing with a similar

contention urged on behalf of the petitioner that the continuance of the emergency which was declared on 26th October 1962 was a fraud on the Constitution, this Court speaking through Sarkar, C. I. pointed out that "the only way a Proclamation ceases to have effect is by one of the events mentioned in this: Clause " and since neither had happened, the Proclamation must be held to have continued in operation. The petitioner urged in that case that armed aggression which justified the issue of the Proclamation of Emergency had come to an end and the continuance of the Proclamation was therefore unjustified. But this contention was negatived on the ground that the Proclamation having been approved by the two Houses of Parliament within a period of two months of its issuance, it could cease to have effect only if revoked by another Proclamation and that not having happened, the Proclamation continued to be in force. It is true that the power to revoke a Proclamation of Emergency is vested only in the Central Government and it is possible that the Central Government may abuse this power by refus-ine to revoke a Proclamation of Emergency even though the circumstances justifying the issue of Proclamation have ceased to exist and thus prolong base-lessly the state of emergency obliterating the Fundamental Rights and this may en-courage a totalitarian trend. But the primary and real safeguard of . the citizen against such abuse of power lies in "the good sense of the people and in the system of representative and responsible Government' which is provided in the Constitution, Additionally, it may be possible for the citizen in a given case to move the court for issuing a writ of mandamus for revoking the Proclamation of Emergency if he is able to show by placing clear and cogent material before the court that there is no justification at all for the continuance of the Proclamation of Emergency. But this would be a very heavy onus because it would be entirely for the executive Government to be satisfied whether a situation has arisen where the Proclamation of Emergency can be revoked. There would be so many facts and circumstances and such diverse considerations to be taken into account by the executive Government before it can be satisfied that there is no longer any grave emergency whereby the security of India is threatened by war or external aggression or internal disturbance. This is not a matter which is a fit subject matter for judicial determination and the court would not interfere with the satisfaction of the executive Government in this regard unless it is clear on the material on record that there is absolutely no justification for the continuance of the Proclamation of Emergency and the Proclamation is being continued mala Fide or for a collateral purpose. The court may in such a case, if satisfied beyond doubt, grant a writ of mandamus directing the Central Government to revoke the Proclamation of Emergency. But until that is done, the Proclamation of Emergency would continue in operation and it cannot he said that, though not revoked by another Proclamation, it has still ceased to be in force. Here, in the present case it was common ground that the first Proclamation of Emergency issued on 3rd December 1971 was not revoked by another Proclamation under Clause (2) (a) of .Article 352 until 21st March 1977 and hence at the material time when the House of People (Extension of Duration) Act, 1976 was passed, the first Proclamation of Emergency was in operation.

108. Now if the first Proclamation of Emergency was in operation at the relevant time, it would be sufficient compliance with the requirement of the proviso to Clause (2) of Article 83 and it would be unnecessary to consider whether the second Proclamation of Emergency was validly issued by the President. But, contended the petitioners, the House of People (Extension of Dilution) Act, 1976 on a proper interpretation of Section 2 postulated the operational existence of both the Proclamations of Emergency and if either of them was not in existence at the material date, the Act would be inoperative and would not have the effect of extending the duration of the Lok Sahha. It was therefore not enough for the respondents to establish that the first Proclamation of Emergency was in operation at the relevant date, but it was further necessary to show that the second Proclamation of Emergency was also in operation and hence it was necessary to consider whether the second Proclamation of emergency was validly issued by the President. The respondents sought to answer this contention of the petitioners by saying that on a proper construction of the language of Section 2, it was not a condition precedent to the operation of the House of People (Extension of Duration) Act, 1976 that both the Proclamations of Emergency should be in operation at the date when the Act was enacted. The House of People (Extension of Duration) Act, 1976 no doubt referred to both the Proclamations of Emergency being in operation but that was merely, said the respondents, by way of recital and it was immaterial whether this recital was correct or incorrect, because so long as it could be objectively established that one Proclamation of Emergency at least was in operation, the requirement of the proviso to Article 83 Clause (2) would be satisfied and the Act would be within the competence of Parliament to enact. These rival contentions raised a question of construction of Section 2 of the House of People (Extension of Duration) Act, 1976, It is a simple question which does not admit of much doubt or debate and a plain grammatical reading of Section 2 is sufficient to answer it. It would be convenient to reproduce Section 2 which coincidentally happens to be the only operative section of the Act:

Section 2: The period of five years (being the period for which the House of the People may, under Clause (2) of Article 83 of the Constitution, continue from the date appointed for its first meeting) in relation to the present House of the People shall, while the Proclamations of Emergency issued on the 3rd day of December, 1971 and on the 25th day of June, 1975, are both in operation, be extended for a period of one year:

Provided that if both or either of the said Proclamations cease or ceases to operate before the expiration of the said period of one year, the present House of the People shall, unless previously dissolved under Clause (2) of Article 83 of the Constitution, continue until six months after the cesser of operation of the said Proclamations or Proclamation but not beyond the said period of one year.

While interpreting the language of this section, it is necessary to bear in mind that the House of People (Extension of Duration) Act, 1976 was enacted under the proviso to Clause (2) of Article 83 for the purpose of extending the duration of the Lok Sabba and it was a condition precedent to the exercise of this power by Parliament that there should be a Proclamation of Emergency in operation at the date when the Act was enacted. Now according to Parliament there were two Proclamations of Emergency which were in operation at the material date, one issued on 3rd December 1971 and the other on 25th June 1975 and the condition precedent for the exercise of the power under the proviso to Clause (2) of Article 83 to enact the House of People (Extension of Duration) Act, 1976 was satisfied. It was, from the point of view of legislative drafting, riot necessary to recite the fulfilment of this condition precedent, but the draftsman of the Act, it seems, thought it advisable to insert a recital that this condition precedent was satisfied and he, therefore, introduced the words "while the Proclamations of Emergency issued on the 3rd day of December, 1971 and on the 25th day of June, 1975 are both in operation" before the operative part in Section 2 of the Act. These words were introduced merely by way of recital of the satisfaction of the condition precedent for justifying the exercise of the power under the proviso to Clause (2) of Article 83 and they were not intended to lay down a condition for the operation of Section 2 of the Act. Section 2 clearly and in so many terms extended the duration of the Lok Sabha for a period of one year and this extension wag not made dependent on both the Proclamations of Emergency being in operation at the date of the enactment of the Act. It was for a definite period of one year that the extension was effected and it was not co-extensive with the operation of both the Proclamations of Emergency. The extension for a period of one year was made once and for all by the enactment of Section 2 and the reference to both the Prodamations of Emergency being in operation was merely for the purpose of indicating that both the Proclamations of Emergency being ir operation, Parliament had competence to make the extension. It was therefore not at all necessary for the efficacy of the extension that both the Proclamations of Emergency should be in operation at the date of enactment of the Act. Even if one Proclamation of Emergency was in operation at the material date, it would be sufficient to attract the power of Parliament under the proviso to Article 83 Clause (2) to enact the Act extending the duration of the Lok Sabha. of course, it must be conceded that Parliament proceeded on the assumption that both the Proclamations of Emergency were in force at the relevant date and they invested Parliament with power to enact the Act, but even if this legislative assumption were unfounded, it would not make any difference to the validity of the exercise of the power, so long as there was one Proclamation of Emergency in operation which authorised Parliament to extend the duration of the Lok Sabha under the proviso to Clause (2) of Article 83. It is true that the proviso to Section 2 enacted that if both or either of the Proclamations of Emergency c-ease or ceases to operate before' the expiration of the extended period of one year, the Lok Sabha shall continue until six months after the cesser of operation of the said Proclamations or Proclamation, not going beyond the period of one year, but the opening part of this proviso can have application only in relation to a Proclamation of Emergency which was in operation at the date of enactment of the Act. If such a Proclamation of Emergency which was in operation at the material date ceased to operate before the expiration of the extended period of one year, then the term of the Lok Sabha would not immediately come to an end. but it would continue for a further period of six months but not so as to exceed the extended period of one year. This provision obviously could have no application in relation to the second Proclamation of Emergency if it was void when issued. In such a case, the second Proclamation not being valid at all at the date of issue would not be in operation at all and it could not cease to operate after the date of enactment of the Act. The proviso would in that event have to be read as relating only to the first Proclamation" of Emergency, and since that Proclamation of Emergency continued until it was revoked on 21st March, 1977, the duration of the Lok Sabha was validly extended for a period of one year from 18th March, 1976 and hence there was a validly constituted Lok Sabha' on the dates when the Constitution (Fortieth Amendment) Act, 1976 and the Constitution (Forty-second Amendment) Act, 1976 were passed by Parliament. On. this view it is not at all necessary to consider whether the second Proclamation of Emergency was validly issued by the President. It is the settled practice of this Court not to say more than is necessary to get a safe resting place for the decision and I do not think that any useful purpose will be served by examining the various grounds of challenge urged against the validity of the second Proclamation of Emergency, particularly since Clause (3) has been introduced in Article 332 by the Constitution (Forty-fourth Amendment) Act, 1978 requiring that a Proclamation of Emergency shall not be issued by the President unless the decision of the Union Cabinet recommending the issue of such Proclamation has been communicated to him in writing and Clause (9) of Article 352 introduced by the Constitution (Thirty-eighth Amendment) Act, 1975 and renumbered by the Constitution (Forty-fourth Amendment) \et, 1978 empowered the President to issue different Proclamations on different grounds. I would, therefore, reject the, challenge against the validity of the Constitution (Fortieth Amendment) Act. 1976' and the Constitution (Forty-second I Amendment) Act, 1976 bused on the ground that on the dates when these Con situation Amending Acts were enacted, the Lok Sabha was not validly in existence.

109. That takes me to the challenge against the "constitutional validity of the amendment made in Article 31C by Section 4 of the Constitution (Forty-second Amendment) Act, 1976. This amendment substitutes the words "all or any of the principles laid down in Part IV" for the words the principles specified in Clause (b) or Clause (c) of Article 39" and so amended, Article 31C provides that "Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV 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". The amended Article 31C gives primacy to Directive Principles over Fundmental Rights in case of conflict between them and the question is whether this amendment is in any way destructive of the basin structure of the Constitution. To answer this question satisfactorily, it is necessary to appreciate the inter-relationship between Fundamental Rights and Directive Principles and for this purpose it would be useful to trace briefly the history of their enactment in the Constitution. The genesis of Fundamental Rights and Directive Principles is to be found in the freedom struggle which the people of India waged against the British rule under the aegis of the Indian National Congress led by Mahatma Gandhi, Jawaharlal Nehru and other national leaders. These great leaders realised the supreme importance of the political and civil rights of the individual, because they knew from their experience of the repression under the British rule as also from the recent events of history including the two World Wars that these rights are absolutely essential for the dignity of man and development of his full personality. But, at the same time, they were painfully conscious that in the socio-economic conditions that prevailed in the country, only an infinitesimal fraction of the people would be able to enjoy these civil and political rights. There were millions of people in the country who were steeped in poverty and destitution and for them, these civil and political rights had no meaning. It was realised that to the large majority of people who are living an almost subhuman existence in conditions of abject poverty and for whom fife is one long unbroken story of want and destitution, notions of individual freedom and liberty, though representing some of the most cherished values of free society, would sound as empty words bandied about only in the drawing rooms of the rich and well-to-do and the only solution for making these rights meaningful to them was to re-make the material conditions and usher in a new social order where socio-economic notice will inform all institutions of public life so that the pre-conditions of fundamental liberties for all may be secured. It was necessary to create socio-economic conditions in which every citizen of the country would be able to exercise civil and political rights and they will not remain the preserve of only a fortunate few. The national leaders, therefore, laid the greatest stress on the necessity of bringing about socio-economic regeneration and ensuring social and economic justice. Mahatma Gandhi, the father of the nation, said in his inimitable style in words, full of poignancy:

Economic equality is the master key to non-violent independence. A non-violent system of Government is an impossibility so long as the wide gulf between the rich and the hungry millions persists. The contrast between the palaces of New Delhi and the miserable hovels of the poor labouring class cannot last one day in a free India in which the poor will enjoy the some power as the rich in the land. A violent and bloody revolution is a certainty one day, unless there is voluntary abdication of riches and the power that riches give and sharing them for common good.?

Jawaharlal Nehru also said in the course of his presidential address to the Lahore Congress Session of 1929:

The philosophy of socialism has gradually permeated the entire structure of the society, the world over and almost the only point in dispute is the phase and methods of advance to its full realisation. India will have to go that way too if she seeks to end huge poverty and inequality, though she may evolve her own methods and may adapt the ideal to the genius of her race.

Then again, emphasising the intimate and inseverable connection between political independence and social and economic freedom, he, said:

If an indigenous Government took the place of the foreign Government and kept all the vested interests intact, this would not be even the shadow of freedom.... India's immediate goal can only be considered in terms of the ending of the exploitation of her people. Politically, it must mean independence and cession of the British connection; economically and socially, it must mean the ending of all special class privilege and vested interests.

The Congress Resolution of 1929 also emphasised the same theme of socio-economic reconstruction when it declared:

The great poverty and misery of the Indian people are due, not only to foreign exploitation in India, but also to the economic structure of society, which the alien rulers support so that their exploitation may continue. In order there-fore to remove this poverty and misery and to ameliorate the condition of the Indian masses, it is essential to make revolutionary changes in the present economic and social structure of society and to remove the gross inequalities.

110. The Resolution passed by the Congress in 1931 proceeded to declare that in order to end the exploitation of masses, political freedom must include social and economic freedom of the starving millions. The Congress Election Manifesto of 1945 also reiterated the same thesis when it said that "the most vital and urgent of India's problems is how to remove the curse of poverty and raise the standard of masses" and for that purpose it is necessary...to prevent the concentration of wealth and power in the hands of individuals and groups and to prevent vested interests inimical to society from "growing". This was the socio-economic philosophy which inspired the framers of the Constitution to believe that the guarantee of individual freedom was no doubt necessary to be included in the Constitution, but it was also essential to make provisions for re-structuring the socio-economic order and ensuring social and economic justice to the people. This was emphasized by Jawaharlal Nehru when, speaking on the resolution regarding the aims and objectives before the Constituent Assembly, he said:

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

In fact, as pointed out by K. Santhanan, a prominent southern member of the Constituent Assembly, there were three revolutions running parallel in India since the end of the first World War. The political revolution came to an end on 15th August, 1947 when India became independent but clearly political freedom cannot be an end in itself it can only be a means to an end, "that end being" as eloquently expressed by Jawaharlal Nehru "the raising of the people... to higher levels and hence the general advancement of humanity." It was therefore necessary to carry forward and accomplish the social and economic revolutions The social revolution was meant to get India ''out of the medievalism based on birth, religion, custom and community and reconstruct her social structure on modern foundations of law, individual merit and secular education," while the economic revolution was intended to bring about "transition from primitive rural economy to scientific and planned agriculture and industry," Dr. Radhakrishnan who was a member of the Constituent Assembly and who later became the President of India also emphasized that India must have a socio-economic revolution designed not only to brine about the real satisfaction of the fundamental needs of the common man but to go much deeper and bring about "a fundamental change in the structure of Indian society." It was clearly realised by the framers of the Constitution that on the achievement of this great social and economic change depended the survival of India. "If we cannot solve this problem soon", Jawaharlal Nehru warned the Constituent Assembly "all our paper Constitutions will become useless and purposeless." The Objectives Resolution which set out the Aims and Objectives before the Constituent Assembly in framing the Constitution and which was pass-ed by the Constituent Assembly in January 1947 before embarking upon the actual task of Constitution making, therefore, expressed the resolve of the Constituent Assembly to frame a Constitution wherein shall be guaranteed and secured to all the people of India justice, social, economic and political, equality of status and of opportunity before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action subject to law and public morality and wherein adequate safeguards shall be provided for minority, backward and tribal areas and depressed and other backward classes." These objectives were incorporated by the Constitution makers in the Preamble of the Constitution and they were sought to be secured by enacting Fundamental Rights in Part III and Directive Principles in Part IV.

111. It is not possible to fit Fundamental Rights and Directive Principles in two distinct and strictly defined categories, but it may be stated broadly that Fundamental Rights represent civil and political rights while Directive Principles embody social and economic rights. Both are clearly part of the broad spectrum of human rights. If we look at the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on 18th December, 1948, we find that it contains not only rights protecting individual freedom (See Articles 1 to 21) but also social and economic rights intended to ensure socio-economic justice to every one (See Articles 22 to 29). There are also two International Covenants adopted by the General Assembly for securing human rights, one is the International Covenant on Civil and Political Rights and the other is the International Covenant on Economic, Social and Cultural Rights. Both are international instruments relating to human rights. It is therefore not correct to say that Fundamental Rights alone are based on human rights while Directive Principles fall in some category other than human rights. The socio-economic rights embodied in the Directive Principles are as much a part of human rights as the Fundamental Rights. Hegde and Mukherjea, JJ. were, to my mind, right in saving in Kesavananda Bharati's case of the Report that "the Directive Principles and the Fundamental Rights mainly proceed on the basis of human rights." Together, they are intended to carry out the objective set out in the Preamble of the Constitution and to establish an egalitarian social order informed with political, social and economic justice and ensuring dignity of the individual not only to a few privileged persons but to the entire people of the country including the have-nots and the handicapped, the lowliest and the lost.

112. Now it is interesting to note that although Fundamental Rights and Directive Principles appear in the Constitution as distinct entities, there was no such demarcation made between them during the period prior to the framing of the Constitution. If we may quote the words of Granville Austin in his book; "both types of rights had developed as a common demand, products of the national and social revolutions, of their almost inseparable intertwining, and of the character of Indian politics itself". They were both placed on the same pedestal and treated as falling within the same category compendiously described as "Fundamental Rights". The Sapru Committee in its Constitutional Proposals made in 1945, recommended that the declaration of Fundamental Rights in its wider sense was absolutely necessary and envisaged these rights as falling in two classes; one justiciable and the other non-justiciable -- the former being enforceable in Courts of law and the latter, not. The Committee however, felt difficulty in dividing the Fundamental Rights onto these two classes and, left the whole issue to be settled by the Constitution making body with the observation that though the task was difficult, it was by no means impossible. This suggestion of the Sapru Committee perhaps drew its inspiration from the Irish Constitution of 1937, which made a distinction between justiciable and non-justiciable rights and designated the former as Fundamental Rights and the latter as Directive Principles of Social Policy. Dr. Lauter-pacht also made a similar distinction between justiciable and non-justiciable rights in his "International Bill of the Rights of Men". The substantial provisions of this Bill were in two parts; Part I dealt with personal or individual rights enforceable in Courts of Law while Part II set out social and economic rights incapable of or unsuitable for such enforcement. Sir B.N. Rau, who was the Constitutional Adviser to the Government of India, was considerably impressed by these ideas and he suggested that the best way of giving effect to the objectives set out in the Objectives Resolution was to split-up the objectives into Fundamental Rights and Fundamental Principles of State Policy, the former relating to personal and political rights enforceable in Courts of Law and the latter relating to social and economic rights and other matters, not so enforceable and proposed that the Chapter on Fundamental Rights may be split-up into two parts; Part A dealing with the latter kind of rights under the heading "Fundamental Principles of Social Policy" and Part B dealing with the former under the heading "Fundamental Rights". The Fundamental Rights Sub-Committee also recommended that "the list of fundamental rights should be prepared in two parts, the first part consisting of rights enforceable by appropriate legal process and the second consisting of Directive Principles of Social Policy." A week later, while moving for consideration, the Interim Report on Fundamental Rights, Sardar Vallabhbhai Patel said:

This is a preliminary report or an interim report because the Committee when it sat down to consider the question of fixing the fundamental rights and its incorporation into the Constitution, came to the conclusion that the Fundamental Rights should be divided into two parts--the first part justiciable and the other non-justiciable.

This position was reiterated by Sardar Vallabhbhai Patel when he said while presenting the Supplementary Report:

There were two parts of the Report; one contained Fundamental Rights which were justiciable and the other part of the Report referred to Fundamental Rights which were not justiciable but were directives....

It will, therefore, be seen that from the point of view of importance and significance, no distinction was drawn between justiciable and non-justiciable rights and both were treated as forming part of the rubric of Fundamental Rights, the only difference being that whereas the former were to be enforceable in Courts of Law, the latter were not to be so enforceable. This proposal of dividing the fundamental rights into two parts, one part justiciable and the other non-justiciable, was however not easy of adoption because it was a difficult rack to decide in which category a particular fundamental right should be included. The difficulty may be illustrated by pointing out that at one time the right to primary education was included in the draft list of Fundamental Rights, while the equality clause figured in the draft fast of Fundamental Principles of Social Policy. But ultimately a division of the Fundamental Rights into justiciable and non-justiciable rights was agreed upon by the Constituent Assembly and the former were designated as "Fundamental Rights" and the latter as "Directive Principles of State Policy". It has sometimes been said that the Fundamental Rights deal with negative obligations of the State not to encroach on individual freedom, while the Directive Principles impose positive obligations on the State to take certain kind of action But. I find it difficult to subscribe to this proposition because, though the latter part may be true that the Directive Principles require positive action to be taken by the State, it is not wholly correct to say that the Fundamental Rights impose only negative obligations on the State. There are a few fundamental rights which have also a positive content and that has been, to some extent, unfolded by the recent decisions of this Court in Hussainara Khatoon v. State of Bihar , Madhav Hayawadanrao Hoskot v. State of Maharashtra and Sunil Batra v. Delhi Administration . There are

new dimensions of the Fundamental Rights which are being opened up by this Court and the entire jurisprudence of Fundamental Rights is in a state of resurgent evolution. Moreover, there are three articles, namely, Article 15(2), Article 17 and Article 23 within the category of Fundamental Rights which are designed to protect the individual against the action of other private citizens and seem to impose positive obligations on the State to ensure this protection to the individual. I would not, therefore, limit the potential of the Fundamental Rights by subscribing to the theory that they are merely iterative obligations requiring the State to abstain as distinct from taking positive action. The only distinguishing feature, to my mind, between Fundamental Rights and Directive Principles is that whereas the former are enforceable in a Court of Law, the latter, are not. And the reason for this is obvious. It has been expressed succinctly by the Planning Commission in the following words: