Sri Sankari Prasad Singh Deo Vs. Union
of India and State of Bihar [1951] INSC 45 (5 October 1951)
SASTRI, M. PATANJALI KANIA, HIRALAL J. (CJ)
MUKHERJEA, B.K.
DAS, SUDHI RANJAN AIYAR, N. CHANDRASEKHARA
CITATION: 1951 AIR 458 1952 SCR 89
CITATOR INFO :
F 1952 SC 252 (1,30) RF 1954 SC 257 (4) R
1959 SC 395 (28) E&D 1959 SC 512 (4) F 1965 SC 845
(20,21,23,24,25,27,33,35,38,39 R 1965 SC1636 (25) O 1967 SC1643
(12,14,23,27,43,44,56,59,61,63 RF 1973 SC1461 (16,20,27,30,32,38,39,44,46,88 RF
1975 SC1193 (17) RF 1975 SC2299 (649) RF 1980 SC1789 (96) RF 1980 SC2056 (61)
RF 1980 SC2097 (6) D 1981 SC 271 (19,33,42,43) RF 1986 SC1272 (78) RF 1986
SC1571 (34) RF 1987 SC1140 (3)
ACT:
Constitution (First Amendment) Act, 1951,
Arts. 31A, 31B-Validity--Constitution of India, 1950, Arts. 13(2), 368, 379,
392--Provisional Parliament--Power to amend ConstitutionConstitution (Removal
of Difficulties) Order No. 2 of 1950--Validity --Amendment of
Constitution--Procedure--Bill amended by Legislature--Amendment curtailing
fundamental rights--Amendment affecting land--Validity of Amending Act.
HEADNOTE:
The Constitution (First Amendment) Act, 1951,
which has inserted, inter alia, Arts. 31A and 3lB in the Constitution of India
is not ultra vires or unconstitutional.
The provisional Parliament is competent to
exercise the power of amending the Constitution under Art. 368. The fact that
the said article refers to the two Houses of the Parliament and the President
separately and not to the Parliament, does not lead to the inference that the
body which is invested with the power to amend is not the Parliament but a
different body consisting of the two Houses.
The words "all the powers conferred by
the provisions of this Constitution on Parliament" in Art. 379 are not confined
to such powers as could be exercised by the provisional Parliament consisting
of a single chamber, but are wide enough to include the power to amend the
Constitution conferred by Art. 368.
The Constitution (Removal of Difficulties)
Order No. 2 made by the President on the 26th January, 1950, which purports to adapt Art. 368 by omitting "either House of" and "in each
House" and substituting "Parliament" for "that House"
is not 12 90 beyond the powers conferred on him by Art. 39:1 and ultra vires.
There is nothing in Art. 392 to suggest that the President should wait, before
adapting a particular article, till the occasion actually arose for the
provisional Parliament to exercise the power conferred by the article.
The view that Art. 368 is a complete code in
itself in respect of the procedure provided by it and does not contemplate any
amendment of a Bill for amendment of the Constitution after it has been
introduced, and that if the Bill is amended during its passage through the
House, the amendment Act cannot be said to have been passed in conformity with
the procedure prescribed by Art. 368 and would be invalid, is erroneous.
Although "law" must ordinarily
include constitutional law there is a clear demarcation between ordinary law
which is made in the exercise of legislative power and constitutional law,
which is made in the exercise of constituent power. In the context of Art. 13,
"law" must be taken to mean rules or regulations made in exercise of
ordinary legislative power and not amendments to the constitution made in the
exercise of constituent power with the result that Art. 13(2) does not affect
amendments made under Art.
Articles 31A and 3lB inserted in the
Constitution by the Constitution (First Amendment) Act, 1951, do not curtail
the powers of the High Court under Art. 226 to issue writs for enforcement of
any of the rights conferred by Part III or of the Supreme Court under Arts. 132
and 136 to entertain appeals from orders issuing or refusing such writs; but
they only exclude from the purview of Part III 'certain classes of cases. These
articles therefore do not require ratification under cl. (b) of the proviso to
Art. 368.
Articles 31A and 31B are not invalid on the
ground that they relate to land which is a matter covered by the State List
(item 18 of List II) as these articles are essentially amendments of the
Constitution, and Parliament alone has the power to enact them.
ORIGINAL JURISDICTION : Petitions under Art.
32 of the Constitution (Petitions Nos. 166,287,317 to 319, 371,372, 374 to 389,
392 to 395, 418, 481 to 485 of 1951). The facts which led to these petitions
are stated in the judgment.
Arguments were heard on the l2th, l4th, l1th,
18th and 19th of September.
P.R. Das (B. Sen, with him) for the
petitioners in Petitions Nos. 37 l, 372, 382,383, 388 and 392. Article 368 of
the Constitution is a complete code in itself. It does not contemplate any
amendments to the Bill 91 after its introduction. The Bill must be passed and assented
to by the President as it was introduced without any amendment. As the
Constitution Amendment Bill was amended in several respects during its passage
through the Parliament, the Constitution (First Amendment) Act was not passed
in conformity with the procedure laid down in article 368 and is therefore
invalid. When the Parliament exercises its ordinary legislative powers it has
power to amend the Bills under articles 107. 108, 109(3) & (4). It has no
such power when it seeks to amend the Constitution itself as article 368 does
not give any such power: of The Parliament Act of 1911 (of England). The Article 368 vests the power to amend the Constitution not in the Parliament
but in a different body, viz., a two-thirds majority of the two Houses of the Parliament.
In article 368, the word Parliament which occurs in other articles is purposely
avoided. There is a distinction between ordinary legislative power and power to
amend the Constitution. This distinction is observed in America and the power
to amend the Constitution is vested there also in a different body. Vide
Willis, page 875, Coolly Vol. 1. page 4, Or field, page 146. Article 379 speaks
of the power of the provisional Parliament as a legislative body. The powers
under article 368 cannot be and was not intended to be exercised by the
provisional Parliament under article 379. As it consists only of a Single
Chamber the adaptations made in article 368 by the Constitution (Removal of
Difficulties) Order No. 2 are ultra vires.
Article 392 gives power to the President to
remove only such difficulties as arise in the working of the Constitution. It
cannot be used to remove difficulties in the way of amending the Constitution
that have been deliberately introduced by the Constitution. No difficulty could
have been possibly experienced in the working of the Constitution on the very
day the Constitution came into force. The Constitution could legally be amended
only by the Parliament consisting of two Houses constituted under clause 2 of
Part V. In any event, the impugned Act is void under article 13 (2) as
contravening the provisions relating to 92 fundamental rights guaranteed by
Part III. ' Law ' in article 13 (2) evidently includes all laws passed by the
Parliament and must include laws passed under article 368 amending the
Constitution: Constituent Assembly Debates, Vol. IX No. 37, pp. 1644, 1645,
1661, 1665.
S.M. Bose (M. L. Chaturvedi, with him)for the
petitioner in Petition No. 375. The word "only" in article 368 refers
to all that follows and article 368 does not contemplate amendment of a Bill
after it has been introduced. The President's Order is ultra rites his powers
Under article 392. There is no difficulty in working article 368 and there
could be no occasion for the President to adapt 368 in the exercise of his
powers under article 392.
S. Chaudhuri (M. L. Chaturvedi, with him) for
the petitioner in Petition No. 368 adopted the arguments of P.R. Das and S.M.
Bose.
S.K. Dhar (Nanakchand and M.L. Chaturvedi,
with him) for the petitioner in Petition No387. Article 379 on which the
provisional Parliament's jurisdiction to amend the Constitution is based not
only empowers the said Parliament to exercise the powers of the Parliament but
also imposes upon it the obligation to perform all the duties enjoined upon the
Parliament by the Constitution. Hence Parliament cannot seek to abridge the
rights of property of the citizens guaranteed by Part III. As the present Act
contravenes the provisions of Part III, it is void under article 13 (2). In any
event, the new articles 31A and 3lB curtail the powers of the Supreme Court
under articles 32, 132 and 136 and those of the High Court under article 226,
and as such, they required ratification under clause (b) of the proviso to
article 368 and not having been ratified, they are void and unconstitutional.
They are also ultra vires as they relate to land, a subject matter covered by
List II (see item 18) over which the State Legislatures have exclusive power.
Parliament cannot make a law validating a law
which it had no power to enact.
93 N.P. Asthana (K. B. Asthana, with him) for
the petitioners in Petitions Nos. 481 to 484. Article 338 s, does not confer
power on any body to amend the constitution. It simply lays down the procedure
to be followed for amending the Constitution. In this view u article 379 does
not come into operation at all. Under article 392 the President himself can
alter the Constitution but he cannot authorise the provisional Parliament to do
so.
S.P. Sinha (Nanak Chand, with him) for the
petitioner in Petition No. 485. Article 13(2) is very wide in its scope and it
invalidates all laws past, present and future which seek to curtail the rights
conferred by Part II 1. It does not exempt laws passed under article 368 from
its operation.
N.C. Chatterjee (with V.N. Swami for the
petitioner in Petition No. 287 and with Abdul Razzak Khan for the petitioner in
Petition No. 318). Article 368 must be read subject to article 13(2). Articles
31A and 31IB are legislative in character and were enacted in the exercise of
the law-making power of the Parliament and not in the exercise of any power to
amend the Constitution and Parliament has no power to validate the laws as it
had no power to enact them.
N.R. Raghavachari (V. N. Swami, with him) for
the petitioner in Petition No. 166. The fundamental rights are supreme and
article 13 (2) is a complete bar to any amendment of the rights cenferred by
Part III.
N.S.. Bindra (Kahan Chand Chopra, with him)
for the petitioner in Petition No. 319.
M.L. Chaturvedi for the petitioners in
Petitions Nos.
374,376, 377, 379, 380, 381,384, 385, 386,
389, 393, 394 and 395.
Bishan Singh for the petitioner in Petition
No. 418. Abdul Razzak Khan and P. 5. Safeer for the petitioner in Petition No.
a17.
M.C. Setalvad, Attorney-General for India
(with G.N. Joshi) for the Union of India, and (with Lal Narain Singh, G N.
Joshi, A. Kuppuswami and 94 G. Durgabai) for the State of Bihar. The donee of
the power under article 368 is Parliament. and The process of the passage of
the Bill indicated in the said article is the same as that of ordinary
legislative Bills. The article does not mean that the powers under article 368
are to be exercised by a fluctuating body of varying majority and not by
Parliament. If the constituent authority and the legislative authority are two
different entities the saving clauses in articles 2,3, 4 and 240, will be
meaningless.
Under article 379 provisional Parliament can
exercise all the powers of Parliament; hence Provisional Parliament can act
under article 368. "All the powers" in article 379 include power to
amend the Constitution and there is no reason to restrict the import of these
words by excluding amendment of the Constitution from their ambit. The words "perform
all the duties" in that article do not in any manner cut down the power of
Parliament under article 379 because article 13 (2) does not impose any duty.
There is no conflict between exercising all the powers under article 379 and
the prohibition in article 13 (2). No technical meaning should be given to the
word "difficulty" in article 392 (1). The adaptation of article 368
is really an adaptation for the removal of difficulties. The adaptation is not
of a permanent character. This shows that the adaptation is not an amendment
and even if it is an amendment, it is so by way of adaptation. Article 13 (2)
prohibits "laws" inconsistent with fundamental rights. It cannot
affect article 368 since the word "law" in article 13 (2) refers to
ordinary legislative enactments and not constitution making.
The argument that the Bill to amend the
Constitution should be passed as introduced, without amendments, is fallacious.
It cannot be said that the Bill referred to
in article 368 has to be dealt with under a procedure different from that laid
down for ordinary Bills in articles 107 and 108. Articles 31-A and 31B are not
legislative in character. The said articles do not affect the scope of articles
226 and 32, for the power of the Court under the said two articles 95 remains
unaltered. What has been done is to alter the content of fundamental rights.
P.L. Banerjee, Advocate-General of Uttar
Pradesh (U. K. Misra and Gopalji Mehrotra, with him) for the State of Uttar
Pradesh adopted the arguments of the un. Attorney-General and added that
articles 31-A and 31-B st do not necessarily stand or fall together; even if
31-B goes, 31-A will remain.
T.L. Shevde, Advocate-General of Madhya
Pradesh (T. P. Naik, with him)for the State of Madhya Pradesh adopted the
arguments of the Attorney General. The Provisional Parliament is competent to
do all that the future Parliament can do. The adaptation under article 392 does
not seek to amend article 368.
P.R. Dots, S.M. Bose S. Chaudhuri, N.C.
Chatterjee, S.K. Dhar and S.P. Sinha replied.
1951. October 5. The Judgment of the Court
was delivered by PATANJALI SASTRI J.--These petitions, which have been heard
together, raise the common question whether the Constitution (First Amendment)
Act, 1951, which was recently passed by the present provisional Parliament and
purports to insert, inter alia, articles 31A and 3lB in the Constitution Of
India is ultra vires and unconstitutional.
What led to that enactment is a matter of
common knowledge. The political party now in power, commanding as it does a
majority of votes in the several State legislatures as well as in Parliament,
carried out certain measures of agrarian reform in Bihar, Uttar Pradesh and
Madhya Pradesh by enacting legislation which may compendiously be referred to
as Zemindary Abolition Acts. Certain zemindars, feeling themselves aggrieved,
attacked the validity of those Acts in courts of law on the ground that they
contravened the fundamental rights conferred on them by Part III of the
Constitution. The High Court at Patna held that the Act passed in Bihar was
unconstitutional while the 96 High Courts at Allahabad and Nagpur upheld the
validity of the corresponding legislation in Uttar Pradesh and, Madhya Pradesh
respectively. Appeals from those decisions are pending in this Court. Petitions
filed in this Court by some other zemindars seeking the determination of the
same question are "also pending. At this stage, the Union Government, with
a view to put an end to all this litigation and to remedy what they considered
to be certain defects brought to light in the working of the Constitution,
brought forward a bill to amend the Constitution, which, after undergoing
amendments in various particulars, was passed by the: requisite majority as the
Constitution (First Amendment) Act, 1951, (hereinafter referred to as the
Amendment Act). Swiftly reacting to this move of the Government, the zemindars
have brought the present petitions under article 32 of the Constitution
impugning the Amendment Act itself as unconstitutional and void.
The main arguments advanced in support of the
petitions may be summarised as follows:
First, the power of amending the Constitution
provided for under article 368 was conferred not on Parliament but on the two
Houses of Parliament as a designated body and, therefore, the provisional
Parliament was not competent to exercise that power under article 379.
Secondly, assuming that the power was
conferred on Parliament, it did not devolve on the provisional Parliament by
virtue of article 379 as the words "All the powers conferred by the
provisions of this Constitution on Parliament" could refer only to such
powers as are capable of being exercised by the provisional Parliament
consisting of a single chamber. The power conferred by article 368 calls for the
co-operative action of two Houses of Parliament and could be appropriately
exercised only by the Parliament to be duly constituted under Ch. 2 of Part V.
Thirdly, the Constitution (Removal of
Difficulties) Order No. 2 made by the President on 26th January 97 1950, in so
far as it purports to adapt article 368 by omitting "either House of"
and "in each House" and substituting "Parliament" for"
that House", is beyond the powers conferred on him by article 392, as
"any difficulties" sought to be removed by adaptation under that
article must be difficulties in the actual working of the Constitution during
the transitional period whose removal is necessary for carrying on the
Government. No such difficulty could possibly have been experienced on the very
date of the commencement of the Constitution.
Fourthly, in any case article 368 is a
complete code in itself and does not provide -for any amendment being made in
the bill after it has been introduced in the House. The bill in the present
case having been admittedly amended in several particulars during its passage
through the House, the Amendment Act cannot be said to have been passed in
conformity with the procedure prescribed in article 368.
Fifthly, the Amendment Act, in so far as it
purports to take away or abridge the rights conferred by Part III of the
Constitution, falls within the prohibition of article 13 (2).
And lastly, as the newly inserted articles
31A and 3lB seek to make changes in articles 132 and 136 in Chapter IV of Part
V and article 226 in Chapter V of Part VI, they require ratification under
clause (b) of the proviso to article 368, and not having been so ratified, they
are void and unconstitutional. They are also ultra vires as they relate to
matters enumerated in List II, with respect to which the State legislatures and
not Parliament have the power to make laws.
Before dealing with these points it will be
convenient to set out here the material portions of articles 368, 379 and 392,
on the true construction of which these arguments have largely turned.
368. An amendment of this Constitution may be
initiated only by the introduction of a Bill for the purpose in either House of
Parliament, and when the 13 98 Bill is passed in each House by a majority of
the total membership of that House and by a majority of not less than
two-thirds of the members of that House present and voting, it shall be
presented to the President for his assent and upon such assent being given to
the Bill, the Constitution shall stand amended in accordance with the terms of
the Bill:
Provided that if such amendment seeks to make
any change (a) articles 54, 55, 78,162 or 241, or (b) Chapter IV of Part V,
Chapter V of Part VI, or Chapter I of Part XI, or (c) any of the Lists in the
Seventh Schedule, or (d) the representation of States in Parliament, or (e) the
provisions of this article, the amendment shall also require to be ratified by
the Legislatures of not less than one-half of the States specified in Parts A
and B of the First Schedule by resolutions to that effect passed by those
Legislatures before the Bill making provision for such amendment is presented
to the President for assent.
379. (1) Until both Houses of Parliament have
been duly constituted and summoned. to meet for the first session under the provisions
of this Constitution, the body functioning as the Constituent Assembly of the
Dominion of India immediately 'before the commencement of this' Constitution
shall be the provisional Parliament and shall exercise all the powers and
perform all the duties conferred by the provisions of this Constitution on
Parliament.
392. (1) The President may, for the purpose
of removing any difficulties, particularly in relation to the transition from
the provisions of the Government of India Act, 1935, to the provisions of this
Constitution, by order direct that this Constitution shall, during such period
as may be specified in the order, have effect subject to such adaptations,
whether by way of modification, addition or omission, as he may deem to be
necessary or expedient:
99 Provided that no such order shall be made
after the first meeting of Parliament duly constituted under Chapter II of Part
V. * * * * On the 'first point, it was submitted that whenever the Constitution
sought to confer a power upon Parliament, it specifically mentioned
"Parliament" as the done of the power, as in articles 2, 3, 33, 34
and numerous other articles, but it deliberately avoided the use of that
expression in article 368. Realising that the Constitution, as the fundamental
law of the country, should not be liable to frequent changes according to the
whim of party majorities, the framers placed special difficulties in the way of
amending the Constitution and it was a part of that scheme to confer the power
of amendment on a body other than the ordinary legislature, as was done by
article 5 of the American Federal Constitution. We are unable to take that
view.
Various methods of constitutional amendment
have been adopted in written constitutions, such as by referendum, by a special
convention, by legislation under a special procedure, and so on. But, which of
these methods the framers of the Indian Constitution have adopted must be
ascertained from the relevant provisions of the Constitution itself without any
leaning based on a priori grounds or the analogy of other constitutions in
favour of one method in preference to another. We accordingly turn to the
provisions dealing with constitutional amendments.
Now, the Constitution provides for three
classes of amendments of its provisions. First, those that can be effected by a
bare majority such as that required for the passing of any ordinary law. The
amendments contemplated in articles 4, 169 and 240 fall within this class, and
they are specifically excluded from the purview of article 368.
Secondly, those that Can be effected by a
special majority as laid down in article 368. All constitutional amendments
other than those referred to above come within this category and must be
effected by a majority of the total membership of each 100 House as well as by
a majority of not less than two thirds of the members of that House present and
a voting; and thirdly, those that require, in addition to the special majority
above-mentioned, ratification by resolutions passed by not less than one-half
of the States specified in Parts A and B of 'the First Schedule. This class
comprises amendments which seek to make any change in the provisions referred
to in the proviso to article 368. It will be seen that the power of effecting
the first class of amendments is explicitly conferred on
"Parliament", that is to say, the two Houses of Parliament and the
President (article 79).
This would lead one to suppose, in the
absence of a clear indication to the contrary, that the power of effecting the
other two classes of amendments has also been conferred on the same body,
namely, Parliament, for, the requirement of a different majority, which is
merely procedural, can by itself be no reason for entrusting the power to a
different body. An examination of the language used in article 368 confirms
that view.
In the first place, it is provided that the
amendment must be initiated by the introduction of a "bill in either'
House of Parliament", a familiar feature of parliamentary procedure (of.
article 107(1) which says "A bill may originate in either House of
Parliament"). Then, the bill must be "passed in each House"-just
what Parliament does when it is called upon to exercise its normal legislative
function [article 107(2)]; and finally, the bill thus passed must be
"presented to the President"' for his "assent", again a
parliamentary process through which every bill must pass before it can reach
the statute-book (article 111). We thus find that each of the component units
of Parliament is to play its allotted part in bringing about an amendment to
the Constitution. We have already seen that Parliament effects amendments of
the first class mentioned above by going through the same three-fold procedure
but with a simple majority.
The fact that a different majority in the
same body is required for 101 effecting the second and third categories of
amendments cannot make the amending agency a different body. There is no force,
therefore, in the suggestion that Parliament would have been referred to
specifically if that body was intended to exercise the power. Having mentioned
each House of Parliament and the President separately and assigned to each its
appropriate part in bringing about constitutional changes, the makers of the
Constitution presumably did not think it necessary to refer to the collective
designation of the three units.
Apart from the intrinsic indications in
article 368 referred to above, a convincing argument is to be found in articles
2, 3, 4, 169 and 240. As already stated, under these articles power is given to
"Parliament" to make laws by a bare majority to amend certain parts
of the Constitution; but in each case it is laid down that no such law should
be deemed to be an amendment of the Constitution "for the purpose of article
368." It would be quite unnecessary, and indeed inappropriate, to exclude
these laws from the operation of article 368, which requires a. special majority,
if the power to amend under the latter article was not also given to
Parliament.
Somewhat closely allied to the point
discussed above is the objection based on the bill in the present case having
been passed in an amended form, and not as originally introduced. It is not
correct to say that article 368 is a "complete code" in respect of
the procedure provided by it.
There are gaps in the procedure as to how and
after what notice a bill is to be introduced, how it is to be passed by each
House and how the President's assent is to be obtained.
Evidently, the rules made by each House under
article 118 for regulating its procedure and the conduct of its business were
intended, so far as may be, to be applicable. There was some discussion at the.
Bar as to whether the process of amending the Constitution was a legislative
process. Petitioners' counsel insisted that it was not, and that, therefore,
the "legislative procedure" prescribed in article 107, which
specifically 102 provides for a bill being passed with amendments, was not
applicable to a bill for amending the Constitution under article 368. The
argument was further supported by pointing out that if amendment of such a bill
were permissible, it must be open to either House to propose and pass
amendments, and in case the two Houses failed to agree, the whole machinery of
article 368 would be thrown out of gear, for the joint sitting of both Houses
passing the bill by a simple majority provided for in article 108 in the case
of ordinary bills would be inapplicable in view of the special majority
required in article 368. The argument proceeds on a misconception. Assuming
that amendment of the Constitution is not legislation even where it is carried
out by the ordinary legislature by passing a bill introduced for the purpose
and that articles 107 to 111 cannot in terms apply when Parliament is dealing
with a bill under article 368, there is no obvious reason why Parliament should
not adopt, on such occasions, its own normal procedure, so far as that procedure
can be followed consistently with statutory requirements. Repelling the contention
that a Local Government Board conducting a statutory enquiry should have been
guided by the procedure of a court of justice, Lord Haldane observed in Local
Government Board v. Arlidge(1):
"Its (the Board's) character is that of
an organisation with executive functions. In this it resembles other great
departments of the State. When, therefore, Parliament entrusts it with judicial
duties, Parliament must be taken, in the absence of any declaration to the
contrary, to have intended to follow the procedure which is its own and is
necessary if it is to be capable of doing its work efficiently." These
observations have application here. Having provided for the constitution of a
Parliament and prescribed a certain procedure for the conduct of' its ordinary
legislative business to be supplemented by rules made by each House (article
118), the makers of the Constitution must be taken to have intended (1) [1915]
A.C. 120.
103 Parliament to follow that procedure, so
far as it may be applicable, consistently with the express provisions of
article 368, when they entrusted to it the power of amending the Constitution,.
The argument that a power entrusted to a
Parliament consisting two Houses cannot be exercised under article 379 by the
provisional Parliament sitting as a single chamber overlooks the scheme of the
constitutional provisions in regard to Parliament. These provisions envisage a
Parliament of two Houses functioning under the Constitution framed as they have
been on that basis. But the framers were well' aware that such a Parliament
could not be constituted till after the first elections were held under the
Constitution.
It thus became necessary to make provision
for the carrying on, in the meantime, of the work entrusted to Parliament under
the Constitution. Accordingly, it was provided in article 379 that the
Constituent Assembly should function as the provisional Parliament during the
transitional' period and exercise all the powers and perform all the duties
conferred by the Constitution on Parliament. Article 379 should be viewed and
interpreted in the wider perspective of this scheme and not in its isolated
relation to article 368 alone. The petitioners' argument that the reference in
article 368 to "two Houses" makes that provision inapplicable to the
provisional Parliament would equally apply to all the provisions of the
Constitution in regard to Parliamentary action and, if accepted, would rob
article 379 of its very purpose and meaning. It was precisely to obviate such
an argument and to remove the difficulty on which it is rounded and other
difficulties of a like nature in working the Constitution during the
transitional period that the framers of the Constitution made the further
provision in article 392 conferring a general power on the President to adapt
the provisions of the' Constitution by suitably modifying their terms. This
brings us to the construction of article 392.
It will be seen that the purpose for which an
adaptation may be made under that article is widely 104 expressed. It may be
made for the purpose of removing "any difficulties". The
particularisation of one class of difficulties which follows is illustrative
and cannot have the effect of circumscribing the scope of the preceding general
words. It has been urged, however, that the condition precedent to the exercise
of powers under article 392 is the existence of difficulties to be removed,
that is to say, difficulties actually experienced in the working of the
Constitution whose removal would be necessary for carrying on the Government,
such as for instance, the difficulties connected with applying articles 112,
113, etc., in the transitional period. But, the argument proceeds, constitutional
amendments cannot be said to be necessary during that period. Besides,
amendment of the Constitution is a very serious thing, and hence, by providing
that both Houses must deliberate and agree to the amendment proposed and pass
the bill by a special majority, the Constitution has purposely placed
difficulties in the way of amending its provisions.
It would be fantastic to suppose that, after
deliberately creating those difficulties, it has empowered the President to
remove them by a stroke of his pen. We see no force in this line of argument.
It is true enough to say that difficulties must exist before they can be
removed by adaptation, but they can exist before an occasion for their removal
actually arises. As already stated, difficulties are bound to arise in applying
provisions, which, by their terms are applicable to a Parliament of two Houses.
to the provisional Parliament sitting as a single chamber. Those difficulties,
arising as they do out of the inappropriateness of the language of those
provisions as applied to the provisional Parliament, have to be removed by
modifying that language to fit in with the situation created by article 379.
There is nothing in that article to suggest that the President should wait,
before adapting a particular article, till an occasion actually arose for the
provisional Parliament to exercise the power conferred by that article. Nor is
there any question here of the President removing by his adaptation any of the
difficulties which the Constitution 105 has deliberately placed in the way of
its amendment. The adaptation leaves the requirement of a special majority
untouched. The passing of an amendment bill by both Houses is no more a special
requirement of such a bill than it is of any ordinary law made by Parliament.
We are, therefore, of opinion that the adaptation of article 368 by the President
was well within the powers conferred on him by article 892 and is valid and
constitutional.
A more plausible argument was advanced in
support of the contention that the Amendment Act, in so far as it purports to
take away or abridge any of the fundamental rights, falls within the
prohibition of article 13(2) which provides that "the State shall not make
any law which takes away or abridges the rights conferred by this Part and any
law made in contravention of this clause shall to the extent of the
contravention be void." The argument was put thus: "The State"
includes Parliament (article 12)and "law" must include a
constitutional amendment. It was the deliberate intention of the framers of the
Constitution, who realized the sanctity of the fundamental rights conferred by
Part III, to make them immune from interference not only by ordinary laws
passed by the legislatures in the country but also from constitutional
amendments. It is not uncommon to find in written constitutions a declaration
that certain fundamental rights conferred on the people should be "eternal
and inviolate" as for instance article 11 of the Japanese Constitution.
Article 5 of the American Federal Constitution provides that no amendment shall
be made depriving any State without its consent "of its equal suffrage in
the Senate." The framers of the Indian Constitution had the American and
the Japanese models before them, and they must be taken to have prohibited even
constitutional amendments in derogation of fundamental rights by using aptly
wide language in article 13 (2). The argument is attractive, but there are
other important considerations which point to the opposite conclusion.
14 106 Although "law" must
ordinarily include constitutional law, there is a clear demarcation between
ordinary law, which is made in exercise of legislative power, and constitutional
law, which is made in exercise of constituent power. Dicey defines
constitutional law as including "all rules which directly or indirectly
affect the distribution or the exercise of the sovereign power in the
State." It is thus mainly concerned with the creation of the three great
organs of the State, the executive, the legislature and the judiciary, the
distribution of governmental power among them and the definition of their
mutual relation. No doubt our constitution-makers, following the American
model, have incorporated certain fundamental rights in Part III and made them
immune from interference by laws made by the State. We find it, however, difficult,
in the absence of a clear indication to the contrary, to suppose that they also
intended to make those rights immune from constitutional amendment.
We are inclined to think that they must have
had in mind what is of more frequent occurrence, that is, invasion of the
rights of the subjects by the legislative and the executive organs of the State
by means of laws and rules made in exercise of their legislative power and not
the abridgement or nullification of such rights by alterations of the Constitution
itself in exercise of sovereign constituent power.
That power, though it has been entrusted to
Parliament, has been so hedged about with restrictions that its exercise must
be difficult and rare. On the other hand, the terms of article 36a are perfectly
general and empower Parliament to amend the Constitution, without any exception
whatever. Had it been intended to save the fundamental rights from the
operation of that provision, it would have been perfectly easy to make that
intention clear by adding a proviso to that effect. In short, we have here two
articles each of which is widely phrased, but conflicts in its operation with
the other. Harmonious construction requires that one should be read as
controlled and qualified by the other. Having regard to the considerations
adverted to above, we are of opinion 107 that in the context of article 13
"law" must be taken to mean rules or regulations made in exercise of
ordinary legislative power and not amendments to the Constitution made in exercise
of constituent power, with the result that article 1:3(2) does not affect
amendments made under article 368.
It only remains to deal with the objections
particularly directed against the newly inserted articles 31A and :3lB.
One of these objections is based on the
absence of ratification under article 368. It was said that, before these
articles were inserted by the Amending Act, the High Courts had the power under
article 226 of the Constitution to issue appropriate writs declaring the
Zemindari Abolition Acts unconstitutional as contravening fundamental rights,
and this Court could entertain appeals from the orders of the High Courts under
article 132 or article 136. As a matter of fact, some High Courts had.
exercised such powers and this Court had entertained appeals. The new articles,
however, deprive the High Courts as well as this Court of the power of
declaring the said Acts unconstitutional, and thereby seek to make changes in
Ch. 4 of Part V and Ch. 5 of Part VI. It was therefore submitted that the newly
inserted articles required ratification under the proviso to article 368. The
argument proceeds on a misconception. These articles so far as they are
material here, run thus :-31A. Saving of laws providing for acquisition of estates,
etc.--(1) Notwithstanding anything in the foregoing provisions of this part, no
law providing for the acquisition by the State of any estate or of any rights
therein or for the extinguishment or modification of any such rights 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, any provisions of this Part :-* * * *
31B. Validation of certain Acts and Regulations. Without prejudice to the
generality of the provisions contained in article :31A, none of the Acts and
Regulations specified in the Ninth Schedule nor any of the 108 provisions
thereof shall be deemed to be void, or ever to have become void, on the ground
that such Act, Regulation or provision is inconsistent with, or takes away or
abridges any of the rights conferred by, any provisions of this Part, and
notwithstanding any judgment, decree or order of any court or tribunal to the
contrary, each of the said Acts and Regulations shall, subject to the power of
any competent Legislature to repeal or amend it, continue in force.
It will be seen that these articles do not
either in terms or in effect seek to make any change in article 226 or in
articles 132 and 136. Article 31A aims at saving laws providing for the
compulsory acquisition by the State of a certain kind of property from the
operation of article 13 read with other relevant articles in Part III, while
article 3lB purports to validate certain specified Acts and-Regulations already
passed, which, but for such a provision, would be liable to be impugned under
article 13. It is not correct to say that the powers of the High Court under
article 226 to issue writs "for the enforcement of any of the rights
conferred by Part III" or of this Court under articles 132 and 136 to entertain
appeals from orders issuing or refusing such writs are in any way affected.
They remain just the same as they were before: only a certain class of case has
been excluded from the purview of Part II/and the courts could no longer
interfere, not because their powers were curtailed in any manner or to any
extent, but because there would be no occasion hereafter for the exercise of
their power in such cases.
The other objection that it was beyond the
power of Parliament to enact the new articles is equally untenable.
It was said that they related tO land which
was covered by item 18 of List II of the Seventh Schedule and that the State
legislatures alone had the power to legislate with respect to that matter. The
answer is that, as has been stated, articles a IA and 3lB really seek to save a
certain class of laws and certain specified laws already passed from the
combined operation of article 13 read with other relevant 109 articles of Part
III. The new articles being thus essentially amendments of the Constitution,
Parliament alone had the power of enacting them. That the laws thus saved
relate to matters covered by List II does not in any way affect the position.
It was said that Parliament could not validate a law which it had no power to
enact. The proposition holds good where the validity of the impugned provision
turns on whether the subject-matter falls within or without the jurisdiction of
the legislature which passed it. But to make a law which contravenes the
constitution constitutionally valid is a matter of constitutional amendment,
and as such it falls within the exclusive power of Parliament. The question
whether the latter part of article 31B is too widely expressed was not argued
before us and we express no opinion upon it.
The petitions fail and are dismissed with
costs.
Petitions dismissed.
Agent for the Petitioners in Petitions Nos.
871, 372, 382, 383, 388 and 392: I. N. Shroff.
Agent for the Petitioners in Petitions Nos.
287, 374 to 381 393, 394, 395: Rajinder Narain.
Agent for the Petitioners in Petitions Nos.
387, 418, 481 to 485, 384, 385, 386 and 389: S.S. Sukla. Agent for the
Petitioners in Petition No. 166:
M.S.K. Sastri.
Agent for the Petitioners in Petition Nos.
817 and 319:
R.S. Narula.
Agent for the Petitioner in Petition No. 318:
Ganpat Rai.
Agent for the respondents: P. A. Mehta.
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