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PETITIONER:

SRI SANKARI PRASAD SINGH DEO

Vs.

RESPONDENT:

UNION OF INDIA AND STATE OF BIHAR(And Other Cases).

DATE OF JUDGMENT:

05/10/1951

BENCH:

SASTRI, M. PATANJALI

BENCH:

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

Constitution- Constitution (Removal of Difficulties) Order

No. 2 of 1950--Validity --Amendment of Constitution--Proce-

dure--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 Par-

liament and the President separately and not to the Parlia-

ment, 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.

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The words "all the powers conferred by the provisions of

this Constitution on Parliament" in Art. 379 are not con-

fined to such powers as could be exercised by the provision-

al Parliament consisting of a single chamber, but are wide

enough to include the power to amend the Constitution con-

ferred 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 Parlia-

ment 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 contem-

plate any amendment of a Bill for amendment of the Constitu-

tion 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 constitu-

tional 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.

368.

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 ratifica-

tion 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.

JUDGMENT:

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

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after its introduction. The Bill must be passed and assent-

ed 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, Orfield, 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 Parlia-

ment under article 379. As it consists only of a Single

Chamber the adaptations made in article 368 by the Constitu-

tion (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 contraven-

ing 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 No- 387. Article 379 on which the

provisional Parliament's jurisdiction to amend the Constitu-

tion 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

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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.

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N.P. Asthana (K. B. Asthana, with him) for the petition-

ers 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 peti-

tioner in Petition No. 318). Article 368 must be read

subject to article 13(2). Articles 31A and 31IB are legis-

lative 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 amend-

ment 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 arti-

cle 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

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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 adapta-

tion 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" incon-

sistent with fundamental rights. It cannot affect article

368 since the word "law" in article 13 (2) refers to ordi-

nary 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. Arti-

cles 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 Parlia-

ment 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 knowl-

edge. 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 Gov-

ernment, with a view to put an end to all this litigation

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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 Amend-

ment) 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 con-

ferred 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 substi-

tuting "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 sever-

al particulars during its passage through the House, the

Amendment Act cannot be said to have been passed in conform-

ity 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

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only by the introduction of a Bill for the purpose in either

House of Parliament, and when the

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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 func-

tioning 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 speci-

fied 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 arti-

cles, 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 amend-

ing 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 Ameri-

can Federal Constitution. We are unable to take that view.

Various methods of constitutional amendment have been adopt-

ed in written constitutions, such as by referendum, by a

special convention, by legislation under a special proce-

dure, 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

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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 proce-

dure (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 "present-

ed to the President"' for his "assent", again a parliamen-

tary 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 Consti-

tution. We have already seen that Parliament effects amend-

ments 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 Par-

liament 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

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these articles power is given to "Parliament" to make laws

by a bare majority to amend certain parts of the Constitu-

tion; 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 majori-

ty, 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 intro-

duced. 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. Peti-

tioners' counsel insisted that it was not, and that, there-

fore, 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 ma-

chinery 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 miscon-

ception. 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 Parlia-

ment 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 proce-

dure can be followed consistently with statutory require-

ments. 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 ob-

served 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 en-

trusts 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 effi-

ciently."

These observations have application here. Having pro-

vided for the constitution of a Parliament and prescribed a

certain procedure for the conduct of' its ordinary legisla-

tive 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

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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 Parlia-

ment 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 inapplica-

ble to the provisional Parliament would equally apply to all

the provisions of the Constitution in regard to Parliamen-

tary 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 modi-

fying 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

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expressed. It may be made for the purpose of removing "any

difficulties". The particularisation of one class of diffi-

culties 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, constitu-

tional 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 diffi-

culties 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

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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 Presi-

dent 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 in-

clude 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 "eter-

nal and inviolate" as for instance article 11 of the Japa-

nese Constitution. Article 5 of the American Federal Consti-

tution 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.

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Although "law" must ordinarily include constitutional

law, there is a clear demarcation between ordinary law,

which is made in exercise of legislative power, and consti-

tutional 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

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find it, however,difficult, in the absence of a clear indi-

cation 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 execu-

tive 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 Con-

stitution 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

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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 ratifica-

tion 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 arti-

cles so far as they are material here, run thus :--

31A. Saving of laws providing for acquisition of es-

tates, etc.--(1) Notwithstanding anything in the foregoing

provisions of this part, no law providing for the acquisi-

tion 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 incon-

sistent 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

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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-Regula-

tions already passed, which, but for such a provision, would

be liable to be impugned under article 13. It is not cor-

rect 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 rele-

vant

109

articles of Part III. The new articles being thus essential-

ly 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 constitution-

ally 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.

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Agent for the Petitioner in Petition No. 318: Ganpat

Rai.

Agent for the respondents: P. A. Mehta.

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