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Report No. 46

13. Necessity of amendment in view of Cooper's case.-

Every student of Constitutional Law knows that Parliament thought that it was necessary to make these provisions because of the recent decision of the Supreme Court in Rustam Cavasjee Cooper v. Union of India. AIR 1970 SC 564, Parliament presumably thought, and we think rightly, that the effect of this majority decision of the Supreme Court was, in substance, to make compensation provided for by the impugned legislation justiciable and subject it to the test of reasonableness under Article 19(5), and, to that extent, the said decision is inconsistent with the view taken by the Supreme Court in State of Gujarat v. Shantilal Mangaldass, (1969) 1 SCR 509. Indeed, ever since the Fourth Amendment was passed on the 27th April, 1955, the Supreme Court had generally interpreted clause (2) of Article 31 to mean that the adequacy of compensation directed to be paid by laws passed under the said clause was not justiciable as we have explained earlier, except in cases where it reasonably appeared to the Court that the compensation was illusory or that the whole legislative exercise was a fraud on the Constitution.

But, in Cooper's case,1 the majority view appeared to strike a somewhat different note; and that, according to parliament, made it necessary to introduce the amended clause (2) in Article 31. We think that, in the circumstances to which we have just referred, Parliament is justified in introducing the amendment in question.

1. Rustom Cavasjee Copper v. Union of India, AIR 1970 SC 564.

The Constitution (Twenty-Fifth Amendment) Bill, 1971 Back

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