Chapter – II

Constitutional Amendments to Fundamental Rights Upto

1971

Democracy, it is said, is a tender plant and it needs to be nourished and

watered by hands of faith. It is the duty of every intellectual to educate the citizens of
this country in the significance and importance of the sense of values on which
democracy is founded. Success of Democracy is mainly based on the written
Constitution. Weaver describes the Constitution as fundamental organic law by
which a state or nation is governed. In its most general sense it may be said to
establish the essential foundation and the general framework of government and to
provide the body of rules and maxims in accordance with which the powers of
sovereignty are habitually exercised. It is those rules or laws, which determine the
form of the government and the respective rights and duties of the government toward
the citizens and of the citizens toward the government. These rules or the more
important among them, may be contained in one document or may be scattered
through a multitude of statutes and reports of decisions. In this comprehensive sense a
Constitution may be either written or unwritten, and is applicable to any established
government.1

Fundamental Rights are legally enforceable right governing the relations

between the State and the Individual. It has both negative and positive aspects It
must, as words indicate, be Fundamental. It does not mean a right of liberty
permissible under the law; it also means a right of liberty in positive senses which
enables an individual to develop his personality and his faculties and to live his life in
his own interest and in the interests of the community as a whole and our nation,
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.

1
P.B.Gajendragadkar, The Indian Parliament And The Fundamental Rights”, Calcutta: Eastern Law
House: 1972, P.106.

31
 A question has been asked why these rights are called Fundamental Rights
when they can be restricted or deleted by an amendment of the Constitution and can
also be suspended by a proclamation of emergency. The answer is that these rights
are called fundamental rights because they are the most essential for the attainment by
the individual of his full moral and spiritual stature. The denial of these rights will
keep his moral and spiritual life stunted and his life potentialities undeveloped.
Fundamental rights are ‘fundamental’ in several senses, but many authorities agree
that they are not ‘unalterable’. Their dynamic nature is accepted and is supported.
The context in our Constitution clearly shows that they are the decision of the
Permanent Will, and so beyond the reach of the Temporary Will. It is common
knowledge that the Constitution itself makes these rights elastic in ordinary times and
also suspendable in Emergencies.

These fundamental rights represent the basic values cherished by the people of
this country since the Vedic times and they are calculated to protect the dignity of the
individual and create conditions in which every human being can develop his
personality to the fullest extent. They weave a pattern of guarantee on the basic
structure of human rights and impost negative obligations on the State not to encroach
on individual liberty in its various dimensions said Justice P.N.Bhagawati.2

Constitution of a country may be described as the foundational or the

fundamental law on which all other legislation is-based, tested and enforced. In a
written Constitution, the authority, jurisdiction and powers of various organs of the
State-Legislative, Executive or judicial are as defined and delimited by the provisions
of the Constitution. The architects of the Constitution, however farsighted they might
be, could not foresee and perceive the future growth. The change in socio-economic
and political norms of a political society though a natural phenomena is always
unpredictable.

In practice different Fundamental Rights have been ensured to all the citizens.
However, for the rights and liberties to become meaningful in their totality, there is a
2
Merunandan K.B. The Introduction to the Constitution of India, Place Sollapur, Merugu Publication
2013 P.31.

32
need to modify them in the context of the changing social and economic conditions.
In other words, the Constitution should be made a viable instrument of socio-
economic changes to articulate the ultimate ideals embodied in the Preamble.
Development and the fight against poverty is very largely a matter of socio-economic
transformation which can bring about only by suitable changes in the concept of the
Fundamental Rights.

The Fundamental Rights are fundamental in the sense that they are necessary
for the welfare of man and for enabling him to grow to his full stature so that
everyone may participate in the power process and in the social process which is the
true measure of democracy. Moreover, the growth of the idea of democracy so as to
have not merely political dimension but also economic and social dimensions makes it
imperative to adopt the necessary changes in the content and scope of Fundamental
Rights. At present the State is required to give economic and social content to the
rights so that each and every one may actually enjoy the rights.

Mulford, “An unamendable Constitution,” said is the worst tyranny of time, or

rather the very tyranny of time. It makes an earthly providence of a convention which
has adjourned without day. It places the scepter over a free people in the hands of
dead men, and the only office left to the people is to build thrones out of the stones of
their sepulchers.3

It will be seen that this article contains two parts. The first part deals with the
question of amendment and provides for the procedure which has to be adopted
before the Bill introduced for the purpose of amendment ultimately leads to the
amendment of the Constitution in accordance with its terms. The proviso to this
article prescribes the special procedure where Parliament intends to amend any of the
special procedure where Parliament intends to amend any of the provisions specified
in clauses (a) to (e) thereof.

3
P.B.Gajandragadakar. The Indian Parliament And The Fundamental Rights: Calcatta : University of
Calcatta, : 1972, P.110

33
 In dealing with the problem with which is concerned, another article calls for
interpretation and that is Article 13(2) of the Constitution in Part III. Article 13
consists of three clauses (1), (2) and (3) and they deal with laws in-consistent with or
in derogation of the fundamental rights.

Reading Article 368 and Article 13(2) together, the question which arises for
consideration is, if Parliament, in exercise of its power to amend the provisions of the
Constitution, seeks to abridge, by amendment, any of the fundamental rights
guaranteed by Part III, does the amended part of the Constitution fall within Article
13(2)? If Article 13, clause(2) applies to the amended provisions of the Constitution
resulting from amendment made by Parliament by virtue of its power to amend the
Constitution, then any amendment that may seek to abridge or take away any of the
fundamental rights guaranteed by Part III would be void and, in the result, the power
to amend the Constitution, then any amendment that may seek to abridge or take away
any of the fundamental rights guaranteed by Part III would be void and, in the result,
the power to amend will not include the power to abridge or take away the said
fundamental rights ; If, on the other hand, Article 13(2) does not apply to the
amendment effected by Parliament by virtue of its power to amend, then, by the
amending process, Parliament can abridge or take away the Fundamental Rights.

If speaking from the point of view of jurisprudence, it is legitimate to hold that

the power to amend any provision of the Constitution, subject to the conditions
prescribed in that behalf, is a constituent power and is distinct from the other
legislative power conferred on Parliament and State Legislature, then an amendment
made under Article 368 would not be “law” within the meaning of Article 13(2) and
Parliament would be entitled so to amend the Constitution in compliance with the
provisions of Article 368 as to abridge or take away any of the fundamental rights
guaranteed by Part III.

If, however, the power conferred by Article 368 is not distinguishable from the
ordinary legislative power ,and if amendments sought to be made by adopting the
procedure prescribed by Article 368 are the result of ordinary legislative process and

34
as such, amount to law within the meaning of Article 13(2), then abridgement of
Fundamental Rights by the amending process would not be valid.4

Therefore a provision for its amendment is the sine-qua-non which enables its
adaptation to the changing social conditions and the cherished goals of the people. A
Constitution, to be a living document, must be capable of adjusting to socio-economic
changes when the society so desires. Constitution should not be too rigid to block
amendments genuine in nature, and should not be too flexible which may make the
Constitution a plaything in the hands of the politicians. Therefore, the procedure of
amendment like safety valve must accommodate the amendments necessitated by
changes of a nation. The Constitution of India makes provision for its amendment
under Art.368 and confers the amending authority on the Parliament and subjects it to
Judicial Review. The limitations or otherwise of the power of the Constitution
amending body to amend the Constitution, in particular, Part III, has become the
subject of interpretation, speculation and inferences. Some are of the opinion that
Art.368 was taken up for discussion at the far end of the work of the Constituent
Assembly and was passed in a hurry and hence it has given room for the conflicting
opinions on the extent of power of the Parliament to amend certain parts of the
Constitution.

The nature of the amending process envisaged by the makers of our

Constitution can be best explained by referring to the observation of Pandit Nehru He
said the Constitution should not be so rigid that it cannot be adapted to the changing
needs, development and strength also He said that, while we want this Constitution to
be as solid and permanent as we can make it, there is no permanence in Constitution.
There should be certain flexibility. If you make anything rigid and permanent, you
stop the nation’s growth, the growth of a living, vital, organic people… In any event,
we could not make this Constitution so rigid that it cannot be adapted to changing
conditions. When the world is in turmoil and we are passing through a very swift
period of transitions what we may do today, may not be wholly applicable tomorrow.5

4
Ibid PP. 2-3
5
Constitution Assembly, Vol – VIII : 1948, P. 420

35
 The nature of the problem which was mentioned in the Constitution (First
Amendment) Act, 1951 was passed by Parliament.

LIST OF THE AMENDMENTS UPTO-1971:

1) The Constitution (First Amendment) Act, 1951, [18th June, 1951]
2) The Constitution (Fourth Amendment) Act, 1955 [27th April, 1955]
3) The Constitution (Seventh Amendment )Act, 1956,[19th October, 1956]
4) The Constitution (Sixteenth Amendment)Act,1963,[19th October, 1963]
5) The Constitution (Seventeenth Amendment) Act, 1964,[20th June1964]
6) The Constitution (Twenty-Fourth Amendment ) Act, 1971, [5th November-1971]
7) The Constitution (Twenty-Fifth Amendment )Act, 1971,[20th April, 1972]

1. THE CONSTITUTION (FIRST AMENDMENT) ACT, 1951

Objects and Reasons of the Bill:

During the last fifteen months of the working of the Constitution, certain
difficulties had been brought in light by judicial decisions and pronouncements
especially in regard to the chapter on Fundamental Rights. The citizen’s right to
freedom of speech and expression guaranteed by article 19 (1) (a) had been held by
some courts to be so comprehensive as not to render a person culpable even if he
advocated murder and other crimes of violence. In other countries with written
Constitutions, freedom of speech and of the press are not regarded as debarring the
State from punishing or preventing abuse of this freedom. The citizen’s right to
practice any profession or to carry on any occupation, trade or business conferred by
article 19(1) (g) is subject to reasonable restrictions which the laws of the State may
impose “in the interest of the general public”. The words cited are comprehensive
enough to cover any scheme of nationalization which the State may Undertake.
However, it was considered to place the matter beyond doubt by a clarificatory
addition to Article 19 (6). Another article in regard to which unanticipated difficulties
had arisen was article 31.The validity of agrarian reform measures passed by the State
Legislatures had, in spite of the provisions of clauses (4) and (6) of article 31, formed
the subject matter of dilatory litigation.

36
 The main objects of this Bill were, accordingly, to amend Article 19 for the
purposes indicated above and to insert provisions fully securing the constitutional
validity of zamindari abolition laws in general and certain specified State Acts in
particular. The Bill also sought to propose a few minor amendments to other Articles
in order to remove difficulties that might arise. It is laid down in article 46 as a
directive principle of State policy that the State should promote with special care the
educational and economic interests of the weaker sections of the people and protect
them from social injustice. In order that any special provision that the State might
make for the educational, economic or social advancement of any backward class of
citizens shall not be challenged on the ground of being discriminatory, it was
proposed that Article 15(3) should be suitably amplified. Certain amendments in
respect of articles dealing with the convening and proroguing of the sessions of
Parliament were also found necessary and were incorporated in this Bill. So, also a
few minor amendments in respect of Articles 341, 342, 372 and 376.

It enacted by Parliament as follows:

1. This Act may be called the Constitution (First Amendment) Act, 1951.
2. . To Article 15 of the Constitution, the following clause shall be added
“4) Nothing in this article or in clause (2) of Article 29 shall prevent the State
from making any special provision for the advancement of any socially and
educationally backward of citizens or for the Scheduled Castes and the classes
Scheduled Tribes.".

3. (1) In Article 19 of the Constitution,—

(a) for clause (2), the following clause hall be substituted, and the said clause shall be
deemed always to have been enacted in the following form, namely
"(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing
law, or prevent the State froth. Making any law in so far as such law imposes
reasonable restrictions on the exercise of the right, conferred by the said sub-clause
in the interests of the security of the State, friendly relations with Foreign States,
public order, decency or morality, or in relation to contempt of court, defamation or
incitement to an offence.",

37
(b) in clause (6), for the words beginning with the words "nothing in the said sub-
clause" and ending with the words "occupation, trade or business", the following shall
be substituted namely
"nothing in the said sub-clause shall' affect the operation of any existing law in
so far as it relates to, or prevent the State from making any law relating to,-

(i) the professional qualifications necessary for practicing any profession

or carrying occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled
by the State, of any trade business industry or service, whether to the
exclusion complete or partial, of citizens or otherwise".

(2) No law in force in the territory of India immediately before the commencement of
the Constitution which is consistent provisions of Article 19 of the Constitution as
amended by sub-section (I) of this section shall be deemed to be void, or ever to have
become Void, on the only that, being a law which takes away or abridges the right
conferred by sub-clause (a) of clause (1) of the said article, its operation was not
saved by clause (2) of that article as originally enacted.

Explanation.- In this sub-section, the expression “law in force” has the same
meaning as in clause (1)of Article 13 of the Constitution.

4. After Article 31 of the Constitution, the following article shall be inserted, and shall
be deemed always to have inserted, namely:-

“31-A 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 :

38
 Provided that where such law is a law made by Legislature of a State, the
provisions of this article shall not apply thereto unless such law, having been reserved
for the consideration of the President, has received his assent.

(2) In this article,-

(a) the expression “estate” shall, in relation to any local area, has the same
meaning as that expression or its local equivalent has in the existing law
relating to land tenures in force in that area and shall also include any
jagir, inam or muafi or other similar grant ;
(b) The expression “rights” in relation to an estate, shall include any rights
vesting in a proprietor, sub-proprietor, under-proprietor, tenure-holder or
other intermediary and any rights or privileges in respect of land revenue.

5. After Article 31-A of the Constitution as inserted by Section 4, the following

article shall be inserted, namely:-

“31-B. Validation of certain Acts and Regulation.- Without prejudice to the

generality of the provisions contained in Article 31-A, none of the Acts and
Regulations specified in the Ninth Schedule nor any of the 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.”6

Parliamentary Debates:
The Prime Minister and Minister of External Affairs Shri Jawaharlal Nehru
introduced the Bill on them and said that, if we thought that the amendments
mentioned in this Bill are not only necessary, but desirable, and because we thought
that if these changes are not made, perhaps not only would great difficulties arise, as

6
The Original Constitution of India 1950 Allahabad Law Published, 1950, P.15

39
they have arisen in the past few months, but perhaps some of the main purposes of the
very Constitution may be defeated or delayed…7

He changed and said that have no doubt that in course of time with the help of
the highest courts in the land we would develop conventions eventually which would
widen the authority of the Legislature to deal with them as the United States of
America had done. The unfortunate part is that we just cannot wait for a generation
or two for these conventions etc. to develop. We have to deal with the situation today
and tomorrow, this year and the next year. Therefore, the safest way is not to pass
legislation in a hurry but to enable Parliament to have authority to make mistakes and
go to pieces. Certainly I realize that in conditions as they exist in India the exact
form, let us say, of the Constitution of the United Kingdom is not inevitable that we
should have a written Constitution. We have got it; it is a fine Constitution.
Gradually as we work it, difficulties appear. As wise men we deal with them and
change it…8

Shri Kameshawara Singh, also expressed his views on amendment, according

to him although the Bill seeks to amend ten Articles of the Constitution, the two
important articles that are sought to be amended are articles 19 and 31. The position
is this. Some of the Acts passed by Parliament or by some of the States in derogation
to the fundamental rights conferred upon a citizen by the provisions of the
Constitution have not met with the approval of some of the courts. The decision of
the Supreme Court, the highest judicial authority of the land, has not yet been given in
respect of most of such Acts. Before we know what the decision of that authority is,
the Constitution, which we have to ourselves after deliberating for full three years, is
going to be altered. The written Constitution of a country, being the Supreme Law of
the land, is expected to lay down principles generally applicable to cases of a
particular kind. But by attempting to introduce provisions like those contained in this
Bill, the Prime Minister is bringing down the Supreme Law of the land to the level of
an ordinary statute which can be, and is modified, altered and amended by the proper
legislature as and when required by the exigency of the hour. The written

7
Parliamentary Debates: Vol. XII: 1951, CC 8814.
8
Ibid, cc. 8829.

40
Constitution has certainly been amended in other countries also; but I know of no
country in which it has been altered so soon after its solemn acceptance, and in such a
manner as is sought to be altered here. The Constitution, if it is allowed to be
amended in such a light-hearted manner, will lose all its permanent character and
forfeit the respect…9

Pandit H.N.Kunzru said, in order to justify the important changes that are
sought to be made in the Constitution, Government should have taken care to supply
us with full information on every point, to tell us exactly why each particular
amendment was needed. Let me guard myself once more against any
misunderstanding. There can be no re-opening of the questions which were at issue
when the Constituent Assembly discussed the Constitution. Those questions have
been laid to rest. Article 31 has to be given effect to. The rights of the community
have to be given precedence over the rights of individual. But, the Prime Minister
sought to reconcile the one with the other so that there may be not only progress, but
also stability. In view of this, I support the view of those hon. Members who think
that the Bill should be circulated even though it may be for a short time, for a
fortnight, in order to enable the public to express its opinion. It is not the same thing
as the consideration of the matter by the Supreme Court. But, it will enable us to
consider the measure more fully than it could be done at the present time.10

Dr.B.R.Ambedkar said that it is next important to consider why the

Supreme Court and the various State High Courts have come to this conclusion. Why
is it that they say that Parliament has no right to make a law in the interests? of public
order or in the interest? of parliament preventing incitement to offences? That is a
very important question and it is a question about which I am personally
considerably disturbed. For this purpose I must refer briefly to the rules of
construction which have been adopted by the Supreme Court as well as the various
State High Courts; but before I go to that I would like to refer very briefly to the rules
of construction which have been adopted by the Supreme Court of the United States-
and I think it is very relevant because the House will remember that if there is any
9
Ibid, cc.8863-64
10
Lok Sabha Debates PP. 8896 to 8898

41
Constitution in the world of a country of any importance which contains fundamental
rights, it is the Constitution of the United States, and those of us who were entrusted
with the task of framing our own Constitution had incessantly to refer to the
Constitution of the United States. How does the Constitution of India and the
Constitution of the United States so far as the fundamental rights are concerned. The
fundamental rights in the Constitution of the United States are stated in an absolute
form; the Constitution does not lay down any limitation on the fundamental rights,
and yet what is this, that the fundamental rights in the United States, although in the
text of the Constitution they appear as absolute, so far as judicial interpretations are
concerned they are riddled with limitations of one sort or another. Nobody can in the
United States claim that his fundamental rights are absolute and that the Congress has
no power to limit them or to regulate them. In our country I find that we are in the
midst of a paradox; we have fundamental rights, we have limitations imposed upon
them, and yet the Supreme Court and High Court sat, “You shall not have any further
limitations upon the fundamental rights.”

Now, what is the attitude which the Supreme Court has taken in this country
in interpreting our Constitution? The Supreme Court has said that they will not
recognize the doctrine of the “police power” which is prevalent in the United States. I
do not wish to take the time of the House in reading the judgments of the Supreme
Court, but those who are interested in it may find this matter dealt with in the case
known as Chiranjit Lal Chowdhuri Vs. The Union of India, otherwise known as the
Sholapur Mills case. You find the judgment of Mr. Justice Mukherjee expressly
rejecting this doctrine. The reason why the judges of the Supreme Court do not
propose to adopt the doctrine of “police power” is this, so far as I am able to
understand, that the Constitution has enumerated specifically the heads in clause (2)
under which Parliament can lay restrictions on the fundamental right as to the
freedom of speech and expression, and that as Parliament has expressly laid down the
heads under which these limitations should exist, they themselves now will not add to
any of the heads which are mentioned in clause (2). That is, in sum and substance, the
construction that you will find in the case of Thapar’s judgment which was delivered
by Mr. Justice Patanjali Sastri. He has said that they will not enlarge it and therefore,
as the Constitution itself does not authorize Parliament to make a law for purposes of
public order, according to them Parliament has no capacity to do it and they will not
42
invest Parliament with any such authority. In the case of the Press Emergency Laws
also they have said the same thing that in clause (2) there is no head permitting
Parliament to make any limitations in the interests of preventing incitement to an
offence. Since section 4 of the Press (Emergency Powers) Act provides for
punishment for incitement to the commitment of any offence, Parliament has no
authority to do it.

That is the general line of argument which the Supreme Court judges have
adopted in interpreting the Constitution. Therefore, my contention is this, that so far
as the doctrine of implied powers is concerned, there is ample authority in the
Constitution itself to permit Parliament to make legislation, although it will not be
specifically covered by the provisions contained in the Part on Fundamental Rights.11

Acharya Kriaplani expressed his views on amendment, according to him, it

appears that it is superfluous to speak at this stage. Government seems to have made
up their mind and they have a solid majority behind them, and whatever is proposed
will be carried out. Sometimes it becomes one’s duty to raise a voice of protest when
things that we never imagined before are done. I can understand that there be
constitutional changes. Nothing in the world is stationary; nothing can be stationary;
but here a law changed in a democracy people must be consulted. There was one
thing about which we have been educating the public for years and to which we were
pledged. Everybody knew our minds about the abolition of zamindari. In this enough
propaganda has been carried on and public opinion was in our favour. So if only an
amendment had been brought to the effect that nothing in the Constitution should
debar the Legislature from abolishing the zamindari system, I would have understood
it. We were pledged to that but along with it have been brought something against
which we were pledged. We were to freedom of speech and freedom of expression…
We were pledged against their abrogation. The deprivation of the freedom of speech
and expression had been our greatest handicap in our struggle for freedom. We
struggled against it and we have suffered in order to assert the right of freedom speech

11
Ibid, c. 9721-22.

43
and freedom of expression. Putting those two things together is really a sort of
strange jugglery which only the present Government is capable of.

The constitution (First Amendment) Bill, was then reference to 18 to the

Select Committee. The statement of objects and reasons attached to the Bill explained
that during the past 15 months the right to freedom of Speech had been held by some
courts to be “So comprehensive as not to render a person culpable even if he
advocates murder and other Crimes of violence,” Where “In other countries with
written constitutions freedom of Speech and of the press is not regarded as debarring
the state from punishing or preventing abuse of such freedom.”

The Bill accordingly amended the text of the constitution to empower the
state to impose restriction on the right of freedom of speech “ in the interests of the
security of the state, friendly relations with foreign States, and public decency or
morality,” and in particular to make laws“ relating to contempt of court, defamation ,
or incitement to offence,” the amendment being given retrospective effect.

The select committee’s report, which Mr. Nehru presented to parliament on

May 25, approved the proposed amendment .A motion to take into consideration the
Bill as reported upon by the committee was introduced on may 29, and passed on May
31 by 246 votes to 14. The clause relating to the Bill as a whole was adopted on June
2 by 228 votes to 20.

Parliamentary session of the All India News papers Editors’ Conference

(A.I.N.E.C), held in Bombay on June 24, adopted a resolution calling for the repeal
of the amendment and urging the electorate to demand from every candidate for
parliament and the state legislatures a pledge to work for parliament and the state
legislatures a pledge to work for its repeal.

The Conference also agreed to suspend publications of all newspapers on July

12 as a protest, in all newspapers, It also resolved to part in each day’s issue, the
phrase “freedom of expression is our birthright, and we shall not rest until it is fully
guaranteed by the Constitution.”

44
 Supreme Court Cases:
Shankari Prasad Deo And Others Vs. Union of India and Others:

The judgment of the Court was delivered on the 5th October, 1951 by patanjali
Sastri J. (Petitions,) which have been heard together, raise the common question
whether the Constitution (First Amendment) Act, 1951,12 passed by the present
provisional Parliament and purports to insert, inter alia articles 31A and 31B in the
Constitution of India is ultra virus and unconstitutional.

What led to that enactment is a matter of common knowledge. The political

party in that time was 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 a Zamindar Abolition Acts. Certain
zamindars, 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 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 on those Court. Petitions filed
on those Court by some other zamindars seeking the determination of the same question
are also pending. At that stage, the Union Government, with the view to put an end to
all those litigation and to remedy what they considered to be certain defects brought to
light in the working of the Constitution, which, after undergoing amendments in various
particulars, was passed by the requisite majority as the Constitution (First Amendment)
Act, 1951. Swiftly reacting to that move of the Government the zamindars have
brought the present petitions under article 32 of the Constitution impugning the
Amendment Act itself as unconstitutional and void.

12
A.I.R. (38) 1951 SC

45
The main arguments advanced in support of the petitions may be
summarised as follows:

1. 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 :

2. 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 Constitutions on Parliament” could refer only
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 :

3. The Constitution (Removal of Difficulties) Order No.2 made by the President on

26.1.1950, 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:

4. 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:

5. 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 petition of article 13(2):

46
6. Lastly, as the newly inserted articles 31A and 31B seek to make changes in articles
132 and 136 in Ch.4 of Part V and article 226 in Ch.5 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.

Through this case validity of the First Amendment Act to the Constitution
was challenged on the ground that it purported to abridge the fundamental rights
under part III of the Constitution of India. Supreme Court held that the power to
amend the Constitution, including Fundamental Rights is contained in Article 368.
An amendment is not a law within the meaning of Article 13(2).

Article 13(2) states 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 to this cause shall, to the extent of the contravention, be void.”
Supreme Court as observed that “the fundamental rights are subject to
unamendable, it will lack dynamism and will lag behind the changes in the society.”

It would be noticed that the first part of the last argument was based on the
assumption that the amendments fell within the purview of the proviso Article 368.
Mr. Justice Patanjali Sastri, who spoke for the unanimous Court, rejected this
argument. Therefore, the plea that an amendment, which seeks to abridge
fundamental rights in the manner indicated by the Constitution (First Amendment)
Act, falls within the terms of the proviso, and as such attracts the procedure required
to be followed in dealing with such amendments, need not detain us.13

13
L.M.Singhvi,(Editor) “Fundamental Rights And Constitutional Amendment”, Delhi, National
Publishing House, 1971. PP.510-520

47
2. THE CONSTITUTION (FOURTH AMENDMENT) ACT, 1955

Objects and Reasons of the Bill:

The Bill sought to amend articles 31, 31A and 305 of, and the Ninth
Schedule to the Constitution. Decisions of the Supreme Court had given a very wide
meaning to clauses (1) and (2) of article 31. Despite the difference in the wording of
the two clauses, they were regarded as dealing with the same subject. The deprivation
of property referred to in clause (1) was to be construed in the widest sense as
including any curtailment of a right to property. Even where it was caused by a purely
regulatory provision of law and was not accompanied by an acquisition or taking
possession of that or any other property right by the State, the law, in order to be valid
according to these decisions, had to provide for compensation under clause (2) of the
article. It was considered, therefore, necessary to restate more precisely the State’s
power of compulsory acquisition and requisitioning of private property and
distinguish it from cases where the operation of regulatory or prohibitory laws of the
State results in “deprivation of property”.

The zamindari abolition laws which came first in the programme of social
welfare legislation were attacked by the interests affected mainly with reference to
articles 14, 19 and 31 and that in order to put an end to the dilatory and wasteful
litigation and place these laws above challenge in the courts, articles 31A and 31B
and the Ninth Schedule were enacted by the Constitution (First Amendment) Act.
Subsequent judicial decisions interpreting articles 14, 19 and 31 had raised serious
difficulties in the way of the Union and the States putting through other and equally
important social welfare legislation on the desired lines, e.g., the following:

(i) While the abolition of zamindaris and the numerous intermediaries between the
State and the tiller of the soil had been achieved for the most part, the next objectives
in land reform were the fixing of limits to the extent of agricultural land that might be
owned or occupied by any person, the disposal of any land held in excess of the
prescribed maximum and the further modification of the rights of the land owners and
tenants in agricultural holdings.

48
(ii) The proper planning of urban and rural areas required the beneficial utilization of
vacant and waste lands and the clearance of slum areas.

(iii) In the interests of national economy, the State should have full control over the
mineral and oil resources of the country, including in particular, the power to cancel
or modify the terms and conditions of prospecting licenses, mining leases and similar
agreements. This was also necessary in relation to public utility undertakings which
supply power, light or water to the public under licenses granted by the State.

(iv) It was often found necessary to takeover, under State management, for a
temporary period a commercial or industrial undertaking or other property in the
public interest or in order to secure the better management of the undertaking or
property. Laws providing for such temporary transference to State management
should be permissible under the Constitution.

(v) The reforms in company law now under contemplation, like the progressive
elimination of the managing agency system, provision for the compulsory
amalgamation of two or more companies in the national interest, the transfer of an
undertaking from one company to another, etc., were required to be placed above
challenge. It was accordingly proposed in clause 3 of the Bill to extend the scope of
article 31A so as to cover these categories of essential welfare legislation. As a
corollary to the proposed amendment of article 31A, it was proposed in clause 5 of the
Bill to include in the Ninth Schedule to the Constitution two more State Acts and four
Central Acts which fall within the scope of sub-clauses (d) and (f) of clause (1) of the
revised article 31A. The effect would be their complete, retrospective validation under
the provisions of article 31B.

The judgment of the Supreme Court, in Saghir Ahmed vs. the State of U.P.,
had raised the question whether an Act providing for a State monopoly in a particular
trade or business conflicts with the freedom of trade and commerce guaranteed by
article 301, but left the question undecided. Clause (6) of article 19 was amended by
the Constitution (First Amendment) Act in order to take such State monopolies out of
the purview of sub-clause (g) of clause (1) of that article, but no corresponding
provision was made in Part XIII of the Constitution with reference to the opening
49
words of article 301. It appeared from the judgment of the Supreme Court that
notwithstanding the clear authority of Parliament or of a State Legislature to introduce
State monopoly in a particular sphere of trade or commerce, the law might have to be
justified before the courts as being “in the public interest” under article 301 or as
amounting to a “reasonable restriction” under article 304(b). It was considered that
any such question ought to be left to the final decision of the Legislature. Clause 4 of
the Bill accordingly proposed an amendment of article 305 to make this clear.

The Constitution (Fourth Amendment) Bill, 1954 was introduced in the Lok
Sabha on 20 December 1954. The Bill sought to amend articles 31, 31A, and 305 and
the Ninth Schedule to the Constitution. Lok Sabha Debates held on 20 December
1954. On a motion, moved in the Lok Sabha on 14 March adopted on 15 March and
concurred in by the Rajya Sabha on 19 March 1955, the Bill was referred to a Joint
Committee of the Houses of Parliament. The Report of the Joint Committee was
presented to the Lok Sabha on 31 March 1955. The Committee suggested certain
amendments in the Enacting Formula, clauses 1, 2 and 3 of the Bill. The Bill, as
reported by the Joint Committee, was considered by the Lok Sabha on 11 and 12
April and passed with some modifications on 12 April 1955. The Bill, as passed by
the Lok Sabha, was considered by the Rajya Sabha on 19 and 20 April and passed on
20 April 1955. Clause 1 as formally amended by the Joint Committee, was adopted
by the Lok Sabha and the Rajya Sabha on 12 and 20 April 1955, respectively.

Amendment of Article 31:

Clause 2 of the Bill, as introduced in the Lok Sabha, sought to substitute
clause (2) of article 31 by the following clauses. No property shall be compulsorily
acquired or requisitioned by the State save for a public purpose and save by authority
of a law which provides for compensation for the property. So the original Article 31
(2) read: “(2) No property movable or immovable, including any interest in, or in any
company owning, any commercial or industrial undertaking, shall be taken possession
of or acquired for public purposes under any law authorizing the taking of such
possession or such acquisition, unless the law provides for compensation for the
property taken possession of or acquired and either fixes the amount of compensation
or specifies the principle on which, and the manner in which, the compensation is to

50
be determined and given” , acquired or requisitioned and either fixes the amount of
the compensation or specifies the principles on which, and the manner in which, the
compensation is to be determined and given. (2A) Where a law does not provide for
the transfer of the ownership or right to possession of any property to the State, it
shall not be deemed to provide for the compulsory acquisition or requisitioning of
property by the State notwithstanding that it deprives any person of his property.

The Joint Committee felt that although in all cases falling within the
proposed clause (2) of article 31 compensation should be provided, the quantum of
compensation should be left to be determined by the Legislature, and it should not be
open to the courts to go into the question whether the compensation provided in the
law was adequate or not. Accordingly, a provision that the law shall not be called in
question in any court on the ground that the compensation provided by it was not
adequate, was added by the Committee at the end of proposed clause (2). The Joint
Committee also amended and amplified new clause (2A) so as to cover transfer of
ownership or right to possession of property to corporations owned or controlled by
the State. The Committee also omitted the words “by the State” in both clauses (2)
and (2A); in its view these words were unnecessary since all compulsory acquisition
and requisitioning of property could only be by the State. Clause 2 of the Bill, as
amended by the Joint Committee, was adopted by the Lok Sabha and the Rajya Sabha
on 12 and 20 April 1955, respectively.

Amendment of Article 31A:

Clause 3 (a) of the Bill, as introduced in the Lok Sabha, sought to provide
that in article 31A of the Constitution for clause (1), the Lok Sabha Debates, 12
April 1955 and Rajya Sabha Debates 20 April 1955, Article 31A was inserted by the
Constitution (First Amendment) Act, 1951. For Text of the article as it stood prior to
the Constitution (Fourth Amendment) Act, the Constitution (First Amendment) Act,
1951 in Annexure (A) following clause shall be, and shall be deemed always to have
been substituted, namely:
(1) Notwithstanding anything contained in article 13, no law providing for: (a) the
acquisition by the State of any estate or of any rights therein, or

51
(b) the extinguishment or modification of any rights in estates or in agricultural
holdings, or
(c) the maximum extent of agricultural land that may be owned or occupied by any
person and the disposal of any agricultural land held in excess of such maximum,
whether by transfer to the State or otherwise, or
(d) the acquisition of requisitioning of any immovable property for the relief or
rehabilitation of persons displaced from their original place of residence by reason of
the setting up of the Dominions of India and Pakistan, or
(e) the acquisition or requisitioning for a public purpose of any land, buildings or huts
declared in pursuance of law to constitute a slum, or of any vacant on waste land, or
(f) the taking over of the management of any property by the State for a limited period
either in the public interest or in order to secure the proper management of the
property, or
(g) the transfer of any undertakings wholly or in part, from one company to another or
the amalgamation of two or more companies either in the public interest or in order to
secure the proper management of the undertakings or of any of the companies, or
(h) the extinguishment or modification of any rights of managing agents, managing
directors, managers or shareholders of companies, or
(i) the extinguishment or modification of any rights accruing by virtue of any
agreement, lease or license for the purpose of searching for, or winning, any mineral
or mineral oil, or for the purpose of supplying power, light or water to the public, or
the premature termination or cancellation of any such agreement, lease or license,
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, article 19 or article 31: Provided
that where such law is a law made by the Legislature of a State, the provisions of this
article shall not apply thereto unless such law, having been reserved for the
consideration of the President, has received his assent.
Clause 3 (b) of the Bill, as introduced in the Lok Sabha, sought to provide that
in sub-clause (b) of clause 2 of article 31A: (i) after the words “an estate”, the words
“or agricultural holdings” shall be, and shall be deemed always to have been, inserted;
and (ii) after the word “tenure-holder”, the words “raiyat, under raiyat” shall be, and
shall be deemed always to have been inserted. In view of the further amendment
proposed by them in clause (2) of article 31 (placing questions as to the adequacy of
compensation outside judicial review), the Joint Committee considered that in the
52
proposed clause (1) of article 31A, the reference in sub-clause (b) to “agricultural
holdings”, sub-clauses (c), (d) and (e); the reference in sub-clause (g) to the transfer of
undertakings from one company to another; and the reference in sub-clause (i) to
agreements or licenses for the supply of power, light or water to the public were not
necessary.

The Committee, therefore, omitted them. The remaining sub-clauses were re-
lettered and retained with a few modifications. Thus, in new sub-clause (a), provisions
contained in original sub-clauses (a) and (b) (excluding the reference to “agricultural
holdings”) were combined. In new sub-clauses (c) and (d) [original sub-clauses (g)
and (h)], the word “corporations” was substituted for the words “companies” in order
to cover statutory corporations as well as companies. In new sub clause (d) [original
sub-clause (h)], a reference to secretaries and treasurers was included as their position
was similar to that of managing agents; so far as shareholders were concerned, the
Committee considered it sufficient to refer to their voting rights. With the foregoing
changes, clause 3 of the Bill (as amended by the Joint Committee) read: In article
31A of the Constitution:
(a) for clause (1), the following clause shall be, and shall be deemed always to have
been, substituted, namely:
(1) Notwithstanding anything contained in article 13, no law providing for:
(a) The acquisition by the State of any estate or of any rights therein or the
extinguishment or modification of any such rights, or
(b) The taking over of the management of any property by the State for a limited
period either in the public interest or in order to secure the proper management of the
property, or
(c) The amalgamation of two or more corporations either in the public interest or in
order to secure the proper management of any of the corporations, or
(d) the extinguishment or modification of any rights of managing agents, secretaries,
treasurers, managing directors or managers of corporations, or of any voting rights of
shareholders thereof, or
(e) the extinguishment or modification of any rights accruing by virtue of any
agreement, lease or license for the purpose of searching for or winning, any mineral or
mineral oil, or the premature termination or cancellation of any such agreement, lease
or license, shall be deemed to be void on the ground that it is inconsistent with, or
53
takes away or abridges any of the rights conferred by article 14, article 19 or article
31: Provided that where such law is a law made by the Legislature of a State, the
provisions of this article shall not apply thereto unless such law, having been reserved
for the consideration of the President has received his assent, and (b) in sub-clause (b)
of clause (2), after the word “tenure-holder”, the words “raiyat, under raiyat”, shall
be, and shall be deemed always to have been, inserted.

During consideration of the Bill by the Lok Sabha, the Minister of Legal
Affairs, Shri H.V. Pataskar, moved two amendments to clause 3, as amended by the
Joint Committee. The first amendment only sought a minor verbal alteration in
proposed sub-clause (1) (d) of article 31A. The second amendment proposed that in
sub-clause (a) of clause (2) of article 31A, after the word “grant”, the words “and in
the States of Madras and Travancore-Cochin, any janmam right” shall be, and shall be
deemed always to have been, inserted. Both the amendments were accepted by the
Lok Sabha. With these further changes, clause 3 of the Bill, amending article 31A,
was adopted by the Lok Sabha on 12 April 1955 and by the Rajya Sabha on 20 April
1955.
Amendment of Article 30:
As stated in the “Objects and Reasons” of the Bill, the amendment of article
305 became necessary to make it clear that legislation providing for monopoly trading
by the State would be immune from attack on the ground that it conflicted with the
freedom of trade and commerce as secured by articles 301 and 303 of the
Constitution. Clause 4 of the Bill, as introduced in the Lok Sabha, sought to
substitute the original article 305 by the following: Nothing in articles 301 and 303
shall affect the provisions of any existing law; and nothing in article 301 shall affect
the operation Article 301 guarantees freedom of trade, commerce and intercourse
throughout the territory of India. Article 303 places certain restrictions on the
legislative powers of Parliament and State Legislatures with regard to trade and
commerce.

of any law made before the commencement of the Constitution (Fourth

Amendment) Act, 1954 in so far as it relates to, or prevent Parliament or the
Legislature of a State from making any law relating to, any such matter, as it referred

54
to in sub-clause (ii) of clause (6) of article 1948. During consideration of the Bill by
the Lok Sabha, Pandit Thakur Das Bhargava moved an amendment to the effect that
after the words “any existing law” in the proposed article 305 the words “except in so
far as the President may by order otherwise direct” be inserted. The amendment was
accepted by the House. Clause 4 of the Bill, as so amended, as adopted by the Lok
Sabha and Rajya Sabha on 12 and 20 April 1955, respectively.

Amendment of Ninth Schedule:

Clause 5 of the Bill sought to add 6 new entries (enactments or specific
provisions of certain Acts) to the Ninth Schedule so as to give the relevant Acts or
provisions retrospective validation under article 31B. At the consideration stage in the
Lok Sabha, one more entry was added following an amendment to that effect by the
Minister of Legal Affairs, Shri Pataskar. Clause 5, as so amended, was adopted by
the Lok Sabha on 12 April 1955 and by the Rajya Sabha on 20 April 1955.
Important Provisions of the Act:

The Clause (2) of article 31 has been re-enacted. The amendment in the first
part of this is somewhat verbal. The generic word ‘property’ has been retained while
the words connoting species of property have been replaced the figures “1954” by the
figures “1955”. Sub-clause 6 (ii) of article 19, as amended by the Constitution (First
Amendment) Act, permits legislation being made enabling the State to carry on any
trade or business, etc., to the exclusion, complete or partial of citizens or otherwise
vide the Constitution (First Amendment) Act, 1951. Dispensed with the words “taken
possession of or acquired” have been replaced by the words “compulsorily acquired
or requisitioned” and so have the words “under any law authorizing the taking of such
possession or such requisition” been substituted by the words “save by authority of a
law”. These changes have been made to distinguish the scope of clause (2) from
clause (1). Further, the amended clause makes it clear that no property can be
compulsorily acquired or requisitioned by the State save for a “public purpose”.
Finally, the question of “adequacy” of compensation is made non-justifiable. (Section
2) A new clause (2A) has been inserted in article 31. It clearly lays down that the
obligation to pay compensation under clause (2) will no longer arise unless either the
ownership or the right to possession of the individual is transferred to the State or a

55
corporation owned or controlled by the State. (Section 2) Clause (1) of article 31A has
been replaced by a new clause and the amendment has been given retrospective effect.
As a result of the amendment, in addition to laws relating to the abolition of
zamindari, some more categories of welfare legislation have been taken out from the
purview of articles 14, 19 and 31, viz., laws providing for:
(1) taking over the management of any property by the State for a limited period;
(2) amalgamation of two or more corporations;
(3) extinguishment or modification of rights of persons interested in corporations;
and
(4) extinguishment or modification of rights accruing under any agreement, lease or
license relating to minerals.

The definition of “estate” in clause (2) of article 31A has been enlarged in
order to include not only the interests of “intermediaries” strictly so called but also of
“raiyats and under raiyats”. (Section 3) Article 305 has been amended to make
existing as well as future laws, providing for monopoly trading by the State, immune
from attack on the ground of contravention of articles 301 and 303. (Section 4) Seven
new enactments have been added in the Ninth Schedule. The effect will be their
complete retrospective validation under article 31B. (Section- 5)

Supreme Court Cases:

1) Sahir Ahmad vs. State of U.P.14
While dealing with cases involving Fundamental Rights the Court was not from
the very beginning very much overwhelmed by the rule of presumption. In Saghr
Ahmad Vs. State of U.P. a, statute nationalizing the road transport was challenged as
violating property right under Art. 19(1) (g). Justice Mukherjea (for the Court) took
judicial notice of the concept of property right in public roads in India, distinguishing
it from the American concept of “franchise” or “privileges”, as “all public streets and
roads vest in the State, but that the State holds them as trustees on behalf of the
public. The members of the public are entitled. as beneficiaries to use them as of right
and this right is limited only by the similar rights possessed by every other citizen to

14
AIR 1954 SC 728, 1955(1) SCR 707. 2.ibid pp.738-39

56
use the pathways, thus a law which takes away this right of the public is violative of
Article 19(1) (g). In answer to the plea of presumption the learned Justice replied
that, there is undoubtedly a presumption in favors of the constitutionality of a
legislation. But when the enactment on the face of it is found to violate a
Fundamental Rights guaranteed under Art. 19(1) (g) of the Constitution, it must be
held to be invalid unless those who support the legislation can bring it within the
purview of the exception laid down in clause (6) of the Article. If the respondent does
not place any materials before the Court to establish that the legislation comes within
the permissible limits of Clause (6) it is surely not for the appellants to prove
negatively that the legislation was not reasonable and was not conducive to the
welfare of the community. In the present case we have absolutely no materials before
us to say in which way the establishment of State monopoly in regard to road
transport service in particular areas would be conducive to the general welfare of the
public. We do not know the conditions of the bus service at the present moment or
the conveniences or inconveniences of the public in regard to the same, nor we are
told how the position is likely to improve if the State takes over the road transport
service and what additional amenities or advantages the general public would enjoy in
that event. These relevant matters, which might help to the Court in coming to a
decision as to the reasonableness or otherwise of the prohibition, but unfortunately
there are no records relating to any one of them.

Justice Gajendragadkar (for the majority) but for the Court’s decision in
Saghir Ahmad’s case was willing to hold that since “freedom guaranteed to the
individual is not absolute and its content must be determined by reading Art.19 (1)(g)
and Clause 6 of Art. 19 together, it can perhaps be said that the initial presumption
cannot be rebutted merely by showing that the freedom under Art. 19 (1) (g) has,
prima facie, been invaded, as such the Court should assume that the restrictions
imposed reasonable and in the interest of the general public, unless the contrary is
shown. But the learned Justice felt bound by Sahir Ahmad’s case and observed that
once the invasion of the Fundamental Right under Art.19(1) is prove, the State must
justify its case under Clause (6) which is in the nature of an exception to the main
provisions contained in Article 19(1). The position with regard to onus would be the
same in dealing with the law passed under Article 304(b). In fact, in the case of such
a law, the position is somewhat stronger in favour of the citizen, because the very fact
57
that a law is passed under Art.304 (b) means clearly that it purports to restrict the
freedom of trade. That being so, we think that as soon as it is shown that the Act
invades the right of freedom of trade it is necessary to enquire whether the State has
proved that the restrictions imposed by it by way of taxation are reasonable and in the
public interest within the meaning of Art.304(b). This enquiry would be of a similar
character in regard to Cl. 6 of Art.19. In upholding the statute the learned Justice
relied on the argument of the State that the raising of revenue by way of taxation was
necessary to keep the waterways and roads in good condition in the State, therefore
was in the interest of the public, and reasonable. It was earlier pointed out by him that
in considering the reasonableness the Court inevitably enquiry also whether the said
restriction is not unreasonable.
This principle was extended further by the Court per Justice Mukerjea, who
relying on the view of law stated by Cooley (which was based on the decisions of
State Courts and Federal Courts other than the U.S. Supreme Court, and without
commenting on the Supreme Court’s decision in Wilkerson vs. Rahrer that a statute
void for unconstitutionality is dead and cannot be vitalized by a subsequent
amendment of the Constitution removing the constitutional objection but must be re-
enacted”, as being a sound law, held the statute nationalizing road transport as
offending Art.19(1) (g), even though such an unconstitutionality was removed by the
Constitution (First Amendment) Act 1951. The amendment of the Constitution
which came later cannot be invoked to validate an earlier legislation which must be
regarded as unconstitutional when it was passed in respect of Art.31 which was
available to both citizens and non-citizens and expressly ruled against the
applicability of the doctrine of eclipse in respect of post-constitution laws.

Thus applying these principles of U.S. constitutional law, which were laid down
in the context unrelated to the Bill of Rights provisions, to the conclusion earlier
arrived at about the nature of Fundamental Rights vis-à-vis legislative power
construed strictly on literal terms of Cl. 2 of Art.13 in preference to the practice of
U.S. constitutional law, the learned Justice took the same view as Justice Mukherjea
did in Sahir Ahmad’s case, i.e. a post-constitution law violative of Fundamental
Rights is null and void as into , and cannot be revived by the removal of
constitutional prohibitions by constitutional amendments made subsequently.

58
3. THE CONSTITUTION (SEVENTH AMENDMENT) ACT, 1956:

The Constitution (Seventh Amendment) Bill was introduced as the Constitution

(Ninth Amendment) Bill in Lok Sabha by the Minister of Home Affairs Pt. G.B. Pant
on 18 April 1956, Referred to the Joint Committee, Report of the Committee
presented on 16 July 1956 ,Debated at Lok Sabha: 26 and 27 April and 4, 5 and 6
September 1956, Rajya Sabha 2 May and 10 and 11 September 1956, Ratified as per
requirement of proviso to article 368(2) of the Constitution by the following State
Legislatures, namely, Andhra Pradesh, Bihar, Bombay, Hyderabad, Madhya Bharat,
Madhya Pradesh, Madras, Mysore, Punjab, Punjab and East Punjab States Union,
Rajasthan, Saurashtra and Uttar Pradesh. President’s Assent: 19 October 1956.
Date of Commencement 1,November 1956.

Following submission of report of the States Reorganisation Commission

charted by K.M. Panmikar, formulation of the State Reorganisation Plan (Proposals),
and their decision to under-take the reorganization, the Amendment was adopted in
order to implement the scheme. The amend made necessary a consequent changes
alteration in the void provisions of the Statute Text. Fourth Schedule to the
Constitution, Articles 81, 82, 131, 153, 168(1) 170, 217 (1) and certain other article
amended.
Statement of Objects and Reasons :
It was considered necessary to make numerous amendments in the Constitution in
order to implement the scheme of States Reorganization. The Act makes these
amendments and also some other amendments to certain provisions of the
Constitution relating to High Courts and High Court Judges, the executive power of
the Union and the and the States, and a few entries in the legislative lists.23

Original Constitution deals about Article 16:

(1) There shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place
birth, residence or any of them, be ineligible for, or discriminated against in
respect of, any employment or office under the State.

59
 (3) Nothing in this article shall prevent Parliament from making any law
prescribing, in regard to a class or classes of employment or appointment to an
office prior to such employment or appointment.

Through the Constitution (Seventh Amendment) Act, 1956, sec. 29 and Sch.,
for certain words added to the Article 16 (3) [Under the Government of, or any local
or other authority within, a State territory] 24

4. THE CONSTITUTION (SIXTEENTH AMENDMENT) ACT, 1963

Implemented certain recommendation of the Committee, on National

Integration and Regionalism. Article 19(2)-(4) were suitably amended to enable
placing of restriction on exercises of the Fundamental Rights under Article 19(1) (a),
(b) and (c) Articles 84 and 173 too were suitably amended.

Objects and Reasons of the Bill:

The Committee on National Integration and Regionalism appointed by the
National Integration Council recommended that article 19 of the Constitution be so
amended that adequate powers become available for the preservation and maintenance
of the integrity and sovereignty of the Union. The Committee were further of the view
that every candidate for the membership of a State Legislature or Parliament and
every aspirant to, and incumbent of, public office should pledge himself to uphold the
Constitution and to preserve the integrity and sovereignty of the Union and that forms
of oath in the Third Schedule to the Constitution should be suitably amended for the
purpose. It was proposed to give effect to these recommendations by amending
clauses (2), (3) and (4) of article 19 for enabling the State to make any law imposing
reasonable restrictions on the exercise of the rights conferred by sub-clauses (a), (b)
and (c) of clause (1) of that article in the interest of the sovereignty and integrity of
India. It was also proposed to amend articles 84 and 173 and forms of oath in the
Third Schedule to the Constitution so as to provide that every candidate for the
membership of Parliament or State Legislature, Union and State Ministers, members
of Parliament and State Legislatures, Judges of the Supreme Court and High Courts

60
and the Comptroller and Auditor- General of India should take an oath to uphold the
sovereignty and integrity of India.

The Constitution (Sixteenth Amendment) Bill, introduced by the Minister of

Law, Shri A.K. Sen on January 21, 1963.15 The Bill sought to amend articles 19, 84
and 173 and the Third Schedule to the Constitution. On a motion moved, in the Lok
Sabha on 22 January16 adopted on the same day and concurred to by the Rajya Sabha
on 25 January 196317, the Bill was referred to a Joint Committee of the Houses of
Parliament. The Report of the Joint Committee on the Bill was presented to the Lok
Sabha on 18 March 196318. The Committee did not recommend any amendment in
the Bill except a formal change in the Enacting Formula. The Bill, as reported by the
Joint Committee, was considered and passed by the Lok Sabha on 2 May 1963 and
by the Rajya Sabha19 on 9 May 196320. Ratified as per requirement of proviso to
article 368(2) of the Constitution by the following State Legislatures, namely, Andhra
Pradesh, Assam, Kerala, Madras, Mysore, Punjab, Rajasthan and West Bengal;
President gave his Assent on 5 October 1963.

Important Provisions of the Act:

Section 2 has amended clauses (2), (3) and (4) of article 19 so as to enable the
State to make any law imposing reasonable restrictions on the exercise of the rights
conferred by sub-clauses (a), (b) and (c) of clause (1) of the aforesaid article in the
interests of the sovereignty and integrity of India. Amendments in articles 84, 173
and the Third Schedule to the Constitution of India provide that every candidate for
the membership of Parliament or State Legislatures, Union and State Ministers,
Judges of the Supreme Court and High Courts and the Comptroller and Auditor-
General of India shall take an oath to uphold the sovereignty and integrity of India.

15
Lok Sabha. Debates, 21 January 1963, c. 5495.
16
Ibid., 22 January 1963, cc. 5759, 5840 and 5841
17
Rajya Sabha Debates, 25 January 1963, c. 4952.
18
Lok Sabha. Debates, 18 March 1963, c. 4438.
19
Ibid., 2 May 1963, c. 13503
20
Rajya Sabha., 9 May 1963, c. 2896.

61
The forms of oath in the Third Schedule have been amended accordingly. (Sections 3
to 5)

Original Constitution deals Article 19 (2), (3) and (4):

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

(3) Nothing in sub- clause ( b) of the said clause shall affect the operation of any
existing law in so far it imposes, or prevent the State from making any law imposing,
in the interests of public order, reasonable restrictions on the exercise of the right
conferred by the said sub-clause.

(4) Nothing in sub clause (c ) of the said clause shall affect the operation of any
existing law in so far as it impose, or prevent the State from making any law
imposing, in the interests of public order or morality, reasonable restrictions on the
exercise of the right conferred by said sub-clause.

Supreme Court Cases:

Article 19 guarantees to every citizen the right to freedom of speech and
expression; to assemble peaceably and without arms; to form associations or unions;
to move freely throughout the territory of India; to reside and settle in any part of the
territory of India; and practice any profession, or to carry on any occupation, or to
carry on any occupation, trade or business, Earlier, the article also guaranteed the
right to acquire, hold and dispose of property.

The rights enumerated above clearly show that these are not the creations of
the Constitution, or for that matter, any other law. These are the natural capacities of
an individual and the Constitution merely guarantees to every citizen that; and,
subject to certain limitations to be discussed later, he has the freedom in the matter of

62
use and exercise of those capacities. This aspect of the nature of the rights
guaranteed by the article has to be specially remembered for understanding the scope
of the right to practice any profession or to carry on any occupation, trade or business.
We shall see when we come to discuss this right in detail that the constitutional
guarantee does not extend to such professions, occupations, trade or business as are
artificial creations of law.

The rights are not absolute. They have to be limited so that they may be
enjoyed better. Freedom has to be limited in order to be secure. The freedom of one
person has to be adjusted with similar freedom of others. In addition, individual
rights have to be limited in the interest of collective interest of the society as well.
Accordingly, while article 19(1) in its six sub-clauses guarantees the six freedoms,
clauses (2)-(6) of the article contain the grounds for imposing reasonable restrictions
by law on the rights so guaranteed. Clauses (2), (3) and (4) contain grounds for
imposing restrictions, respectively, on the freedoms of speech and expression,
freedom of assembly, and freedom of association; freedoms of movement and
residence can be restricted on grounds enumerated in clause (5); and freedom to
practice any profession or to carry on any occupation, trade or business can be
restricted to the extent and on the ground mentioned in clause (6) of the article. The
grounds so mentioned include both individual and public interests. Thus, one cannot
exercise one’s right of speech or expression to defame another person nor can one do
so in a manner as may threaten public order or the security of the State.

The grounds of restriction enumerated in clauses (2)-(6) of article 19 have

repeatedly been held by the Supreme Court it has been held that since the grounds of
restriction are expressly enumerated in the Constitution, there is no scope for any
fresh ground to be implied. In this respect it is to be noted that clauses (5) and (6)
mention interest of the general public as a permissible ground of restriction on the
rights guaranteed by article 19(1) (d), (e) and (g). This phrase has a very wide
connotation and can virtually include every ground of restriction which has some
plausibility. Therefore, with regard to these rights, there cannot conceivably arise
any need to imply any fresh ground for restriction. But the position of the rights of
speech and expression, assembly, and association guaranteed, respectively, in article
19(1)(a), (b) and (c) is different. The permissible grounds of restriction mentioned in
63
clauses (2)-(4) of article 19 are narrowly drawn and difficulty has been felt in
accommodating quite plausible and reasonable grounds of restriction within the limits
imposed by the above clauses. Since the problem is relevant essentially in the context
of article 19(2), we shall examine the same when we come to discuss that.

The restriction can be imposed only by law and can be imposed by any
entity which the ambit of the definition of ‘State’ as given in article 12. Thus,
restriction can be imposed not only by Parliament or a State Legislature by passing an
enactment but also by a Municipality by making a bye-law or by an executive
authority by making a rule or regulation.

The restrictions have to be reasonable. Obviously, the initial judgment with

regard to the reasonableness of restriction and also the necessity for imposing them
will be that of the authorities which enact the law or impose the restriction. But their
judgment is not final because it is subject to judicial review. The Court will naturally
give due deference to legislative and executive judgments short of treating the same
as final. The reasonableness of restriction being a justiciable issue, it is the judicial
verdict which has the element of finality.21

At the moment citizenship is governed by the provisions of Citizenship

Act, 1955 which, by section 2(f) expressly excludes “any company, or association or
body of persons whether incorporated or not” from the definition of person. In view
of this, the Supreme Court in State Trading Corporation of India Ltd. vs. C.T.O.22
held that the State Trading Corporation, being a company registered under the
Companies Act, 1956, was not entitled to the protection of article 19, as it was not a
citizen. Later, in Tata Engineering and Locomotive Co. Ltd. vs. State of Bihar,23 the
Supreme Court adhered to this view and refused to lift the corporate veil to see
whether the shareholders of the company were Indian citizens

21
Udai Raj Rai, “Fundamental Rights And Their Enforcement”, New Delhi: PHI Learning, 2011, PP.
13-14
22
(1964) 4 SCR 99.
23
(1964) 6 SCR 885.

64
 As pointed out earlier, some of the rights under article 19 can be restricted
in the interest of general public. But all public interest do not have the same value.
Those public interests which required to be promoted by the different directive
principles of State policy have a higher constitutional value and a law restricting an
individual right to promote such interests is almost deemed to be reasonable.

The Disproportion of the Imposition :

Another criterion of reasonableness is the restriction imposed should not be
disproportionate. Implicit in this requirement are quite a few principles. First, the
imposition of restriction should not be productive of more evil than it seeks to
remedy. Thus, in S. Rangrajan vs. P. Jagjeewan,24 the Supreme Court rejected the
plea that the screening of a motion picture could be banned to prevent disorderly
reaction of the masses because they were unhappy with its unpopular theme.

Second, the restriction should not be excessive. In Ibrahim Wazir vs. State of
Bombay,25 the Supreme Court held section 7 of the Influx from Pakistan (Control)
Act, 1949 to be invalid because it imposed unreasonable restriction on the right of
residence inasmuch as it permitted a citizen to be deported to Pakistan for a mere
breach of permit regulations which virtually amounted to forfeiture of his citizenship.

The restriction should not be more than what is necessary to prevent the evil
26
sought to remedied. In Chinaman Rao vs. State of M.P., the Supreme Court
invalidated a Madhya Pradesh law as an unreasonable restriction on the freedom of
trade and business which totally prohibited the manufacture of bidis during
agricultural season. The purpose of the law was to prevent the diversion of
agricultural labour from agricultural season. The purpose of the law was to prevent
the diversion of agricultural labour from agriculture. But it went much beyond its
preventing even such people from getting engaged in bidi manufacturing job as were
totally unfit and useless for agricultural purposes. But where the aim and purpose of
the law cannot be achieved otherwise, it is permissible to order to ensure weekly

24
(1989) 2 SCC 574.
25
(1950) SCR 759; AIR 1951 SC 118.
26
(1954) SCR 933; AIR 1954 SC 229.

65
holiday for the employees engaged in shops, it is permissible to order weekly closure
of all the shops including those which are run exclusively by the family members of
the owners.27

Though a restriction should not be more than what is necessary to achieve the
stated objective, if the circumstances so require, it can even amount to total
prohibition. In Narendra Kumar v. Union of India28 the Supreme Court upheld the
validity of a measure which virtually banned retail trade in copper in the commercial
sense. Since the quantity of copper imported was much less than the demand in the
market, the Government had to intervene to prevent black marketing. Accordingly, it
fixed the maximum sale price of the metal which was only marginally in excess of the
total cost of the import. In the circumstances, no one could earn any profit except the
importer himself, and his own margin of profit being very small, he could not further
share it with others. The Supreme Court said that more severe the restriction, the
heavier was the burden on the Government to prove its reasonableness. But if this is
done, there is nothing in the Constitution which prevents the Government from
imposing a restriction which may amount to total prohibition.32

Vagueness of statutory provision may make the restriction excessive or

disproportionate. Statutory provisions may not define clearly the persons whose
rights are to be restricted or they may remain vague about the nature of the restrictions
to be imposed. In either case, they leave ample room for the executive authorities to
be arbitrary. In State of M.P. v. Baldeo,29 the Supreme Court held that the externment
order passed against the respondent was violative of his fundamental rights under
article 19(1) (d) and (e) because, while the Legislature indicated that action could be
taken only against a goonda, but the law failed to define goonda precisely. In K.A.
Abbas v. Union of India,30 the Supreme Court agreed that the directions issued to the
Censor Board for pre-censorship of motion pictures should be the vice of vagueness.
Hidayatullah C.J. said that the rule of void for vagueness did not mean that the Court

27
Manoharlal vs. State Of Punjab (1961) 2 SCR 343.
28
(1960) 2 SCR 375; AIR 1960 SC 430.
29
(1961) 1 SCR 970; AIR 1961 SC 293.
30
(1970) 2 SCC 780; AIR 1971 SC 481.

66
was importing the American doctrine of due process. “The invalidity arises from the
probability of the misuse of the law to the detriment of the individual.31

Retrospectively of the Legislation which imposes the restrictions is also a factor

to be taken into account while determining the reasonableness of restrictions.
Restrictions imposed with retrospective effect, in the absence of any other
consideration, naturally become disproportionate. Here it must be conceded that,
apart from article 20(1), which we shall discuss in a later chapter, there is nothing in
the Constitution which prevents a legislative body from legislating retrospectively.
But power to pass a certain kind of law is one thing and its reasonableness as a
restriction on a fundamental right is another thing. There are definite Supreme Court
observations which suggest that retrospectively may make a restriction unreasonable.
But the Supreme Court in Hariprasad vs. A.D. Divakarar,32 decided on November 27,
1956, held that termination made as a result of bona fide closure of an industrial
undertaking did not amount to retrenchment. Its constitutionality was challenged in
Hathisingh Mfg. Co. Ltd. vs. Union of India.33 It was contended that it constituted an
unreasonable restriction on the right guaranteed right guaranteed under article 19
(1)(g). Retrospective operation of the amendment was relied upon as one of the
factors which made the restriction unreasonable. However, the Supreme Court held
the restriction to be reasonable. Shah. J, delivering the judgment of the Court said:
“(A) law which creates a civil liability in respect of a transaction which has taken
place before the date on which the Act was enacted does not per se impose an
unreasonable restriction.34 He found cogent reasons for the law having been given a
retrospective effect and held that the date chosen for bringing the law into effect was
not an arbitrary one. It was on November 27, 1956 that the Supreme Court had
decided Hariprasad, and, consequent upon that decision, many undertakings had been
closed and more than 25,000 workers were thrown out of employment. It is submitted
that, in the absence of these facts, retrospectively of might have made the restriction
unreasonable.

31
Ibid., P.799 of SCC.
32
(1957) SCR 121
33
(1960) 3 SCR 528; AIR 1960 SC 923
34
Ibid at SCR, p.536

67
Prevailing Conditions at the Time :
In determining the reasonableness of restrictions prevailing
conditions at the time have to be taken into account. A critical comment on the tenets
of a religion may be tolerated, or even applauded for its philosophical insight if the
prevailing conditions are normal and peaceful. But at a time of communal tension, it
may have the effect of igniting a riot. The Constitution itself takes note of conditions
of turmoil, insurrection and war, and empowers the President to proclaim emergency
which may have the effect of suspending the enforcement of some of the fundamental
rights. In conditions of lesser seriousness, it may be considered enough to impose
restrictions on the exercise of the rights. In Virendra vs. State of Punjab,35 the
constitutionality of prior restraint on the freedom of press was upheld after taking note
of the tension prevailing in the State as a result of language controversy. Later, when
we come to discuss freedom of trade and business, we shall see that constitutionality
of all types of control on the exercise of the right has been upheld in many cases in
view of the prevailing conditions of scarcity of essential of essential commodities and,
in some cases, because of the critical position of foreign exchange reserves. We have
seen that in Collector of Customs vs. Samapsthu Chetty,36 the Supreme Court upheld
the constitutionality of a very drastic restriction on the right to acquire, hold and
dispose of property because of the large scale smuggling in gold prevailing at the
time.
Article 19(2):
This article deals about the sovereignty and integrity of India, security of the
State, friendly relations with foreign States, public order. The enjoyment of
fundamental rights, including the right of speech and expression, is possible only in a
secure social order, where people live in a state of public safety and tranquility, and
this is possible only if the country is safe against aggression and internal disturbance.
Therefore, article 19(2) allows the right of speech and expression to be subjected to
reasonable restrictions, inter alia, in the interest of sovereignty and integrity of India,

35
(1958) SCR 308; AIR 1957 SC 896.
36
(1962) 3 SCR 786; AIR 1962 SC 316.

68
security of India, friendly relations with foreign States, public order, and on the
ground that the particular speech is an incitement to an offence.

The above grounds have considerable significance. Here, the central concepts
are “Security of the State” and “Public Order”, and others only supplement them.
Article 352 of the Constitution states that the security of India can be threatened by
war, external aggression or armed rebellion. Before the amendment of the article in
1978 by the Constitution 44th Amendment Act, the security of India could also be
threatened by internal disturbance. However, the Supreme Court decisions in Romesh
Thaper vs. State of Madras,37 and Brij Bhushan vs. State of Delhi,38 show that such
internal disturbance must be sufficiently grave should be spread over considerable
territory, though it need not be spread over the whole country or even the whole of a
State because the security of the State can be said to be threatened both when the
security of India or any part thereof is threatened.

In general, a threat to the security of India should also threaten the sovereignty
and integrity of India. But it is meant to punish especially the preaching of disloyalty
to India. This may be by those who advocate cession of a territory to a territory to a
foreign country or secession from India. This may be by those who advocate cession
of a territory to a foreign country or secession from India. Equally dangerous, if not
more, can be those who preach that a class of people, because of their religious,
linguistic or other some such identity cannot be depended upon in the matter of
loyalty to the nation. Section 153-B of the India Penal Code, The Criminal Law
Amendment Act, 1961, and the Unlawful Activities (Prevention) Act, 1967
specifically punish such speeches.

Insertion in clause (2) of Article 19 of friendly relations with foreign States as a

separate ground for restricting speech and expression presents problems of
interpretation. Obviously, in order to be valid, every restriction must be reasonable.
Therefore, one has to speculate hard to tell what kind of speech can be an impediment
to the legitimately restricted in a democracy. It is the privilege of every citizen in a
37
(1950) SCR 594; AIR 1950 SC 124.
38
(1950) SCR 605; AIR 1950 SC 129.

69
democracy to criticize or to comment upon the activities of a foreign Government
friendly to one’s country. What can possibly be restricted is the instigation of crime
or creation of a feeling of hatred against the nationals of foreign countries residing in
India.
“Public order” was inserted as a permissible ground for restricting speech by the
Constitution First Amendment Act , 1951. It was necessitated by the Supreme Court
decision in Romesh Thapar vs. State of Madras,39 wherein the majority drew a
distinction between the concept of security of State on the one hand and that of public
order, on the other. It was held that the security of the State gets threatened only by
serious and aggravated forms of public disorder and not by relatively minor breaches
of peace of a purely local significance.

Public order, as one of the eight permissible grounds of restriction in article

19(2), came for interpretation in Supdt. Central Prison, Fathegarh v. Ram Manohar
Lohia. Subba Rao, J. pointed out that the term ‘public order’ had an elastic meaning
and could encompass almost all the grounds mentioned in article 19(2). Public order
was again distinguished from law and order in Ram Manohar Lihia vs. State of
Bihar,40 but it must be remembered that it was done in the context of preventive
detention which can be ordered in the interest of public order and not in the interest of
merely law and order. The author is of the view that in the context of article 19(2),
right to speech can be validly restricted both in the interest of public order and law
and order and, therefore, in article 19 public orders should be understood to include
law and order as well.

Like clause (2) which was discussed clauses (3) and (4) are also
narrowly drawn. It is so because like the right to speech and expression, the rights of
assembly and association are also simultaneously both civil and political rights. They
facilitate political participation by empowering the citizens to organize themselves
politically, by holding public meetings or by taking out processions with a view to
express political grievances or demonstrate political dissent. On the other hand, the

39
(1960) 2 SCR 821; AIR 1960 SC 633.
40
(1966) 1 SCR 709; AIR 1966 SC 740 .

70
right to move freely throughout the territory of India and the right to reside and settle
in any part of the territory of India guaranteed, respectively, under sub clauses (d) and
(e).

5. THE CONSTITUTION (SEVENTEENTH AMENDMENT) ACT,

1964
Objects and Reasons of the Bill:

Under article 31A of the Constitution, a law in respect of acquisition by

the State of any estate or of any rights therein or the extinguishment or modification
of any such rights shall not 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, article 19 or
article 31. The protection of this article was available only in respect of such tenures
as were estates on 26 January 1950, when the Constitution came into force. The
expression “estate” had been defined differently in different States and, as a result of
the transfer of land from one State to another on account of the reorganization of
States, the expression came to be defined differently in different parts of the same
State. Moreover, many of the land reform enactments were related to lands which
were not included in an estate. Several State Acts relating to land reform were struck
down on the ground that the provisions of those Acts were violative of articles 14, 19
and 31 of the Constitution and that the protection of article 31A was not available to
them. It was, therefore, proposed to amend the definition of “estate” in article 31A of
the Constitution by including therein lands held under ryotwari settlement and also
other lands in respect of which provisions were normally made in land reform
enactments.

The Constitution (Seventeenth Amendment) Act, 1964, when introduced in the

Lok Sabha on 27 May 1964,41 was titled as the Constitution (Nineteenth Amendment)
Bill 1964. The Bill sought to amend article 31A and the Ninth Schedule to the
Constitution. The Bill was considered by Lok Sabha on first and second June and,

41
Lok Sabha Debate ., 27th May 1964. C.154

71
as amended, passed by the House on 2 June 196442. The Bill by the Lok Sabha was
considered by the Rajya Sabha on 4 and 5 June and passed on 5 June 196443. By a
formal amendment to clause 1 of the Bill, the short title was changed to “The
Constitution (Seventeenth Amendment) Act “Clause 2 of the Bill, which sought to
amend article 31A, was adopted, in the original form, by the Lok Sabha and the Rajya
Sabha on 2 and 5 June 1964, respectively Amendment of Ninth Schedule Clause 3 of
the Bill, as introduced in the Lok Sabha.

In the aforesaid Entry 33, an amendment, moved by Shri A.P. Jain in the Lok
Sabha, was accepted. The amendment was to the effect that at the end of Entry 33
the words, brackets and figures “except in so far as this Act relates to an alienation
referred to in sub-clause (d) of clause (3) of section 2 thereof” be added. Clause 3 of
the Bill was adopted, in this amended form, by the Lok Sabha and the Rajya Sabha on
2 and 5 June 1964, respectively.

Important Provisions of the Act :

The Act has amended the definition of “estate” given in sub clause (a) of
clause (2) of article 31A of the Constitution so as to include therein lands held under
rotary settlement in addition to other lands in respect of which provisions are
normally made in land reform enactments. The Act added another proviso to clause 1
of article 31A so as to provide that where any law makes any provision for the
acquisition by the State of any estate and where any land comprised therein is held by
a person under his personal cultivation, it shall not be lawful for the State to acquire
any portion of such land as is within the ceiling limit applicable to him under any law
or any building or structure standing thereon or appurtenant thereto unless the law
relating to the acquisition of such land building or structure provides for payment of
compensation.

42
Ibid., 2 June 1964, c. 719
43
Rajya Sabha., 5 June 1964, c. 1050. 155

72
 The Act added to the Ninth Schedule to the Constitution, additional State
enactments relating to land reform with a view to provide that the said enactments
shall not be deemed to be void on the ground that the same are inconsistent with any
provisions of Part III of the Constitution relating to Fundamental Rights.

Validity of The Constitution (Seventeenth Amendment) Act, 1964 :

In 1951, several State legislative measures passed for giving effect
to a policy of agrarian reform faced a serious challenge in the Courts. In order to
the State Legislatures to give effect to the policy, Arts. 31A and 31B were added to
the Constitution by the Constitution ( First Amendment) Act, 1951. Article 31B
provided that none of the Acts specified in the Ninth Schedule to the constitution
shall be deemed to be void or ever to have become void. In 1955, by the
Constitution (Fourth Amendment) Act, Art. 31A was amended. Notwithstanding
those amendments some legislative measures adopted by the different States for living
effect to the policy were effectively challenged. In order to save the validity of those
Acts as well as of other Acts which were likely to be struck down, Parliament
enacted the Constitution (Seventeenth Amendment) Act 1964, by which Art. 31A
was again amended and 44 Acts, were added to the Ninth Schedule. The petitioners
in the Writ Petitions in Supreme Court, and interveners, were persons affected by one
or other of those Acts. They tended that none of the Act by which they were affected
could be saved because the Constitution Seventeenth Amendment) Act was
constitutionally invalid. It was urged that:

(i) Since the powers prescribed by Art. 226, which is in Chapter V, Part VI of the
Constitution, were likely to be affected by Seventeenth Amendment, the special
procedure laid down in the proviso to Art. 368, namely' requiring the ratification by
not less half the number of States, should be followed;

(ii) The decision in Sri Sankari Prasad Singh Deo vs. Union of India and State of
Bihar, [1952] S.C.R. 89, which negative such a contention when dealing with the
First Amendment, should be reconsidered;

73
(iii) The seventeenth Amendment Act was a legislative measure in respect of land
and since Parliament had no right to make a law in respect of land, the Act was
invalid and

(iv) Since the Act purported to set aside decisions of Court of competent
jurisdiction, it was unconstitutional.

P. B. Gajendragadkar C. J., Wanchoo, and Raghubar Dayal JJ (i) The main

part of Art. 368 and its proviso must on a reasonable construction be harmonized
with each other in the sense that the scope and effect of either of them should not be
allowed to be unduly reduced or enlarged. Such a construction requires that if
amendment of the fundamental rights is to make a substantial inroad on the High
Court's powers under Art. 226, it would become necessary to consider whether the
proviso to Art. 368 would cover such a case. If the effect is indirect, incidental or
otherwise of an insignificant order the proviso may not apply. In dealing with such a
question, the test to be adopted is to find the pith and substance of the impugned
Act. So tested it is clear that the Constitution (Seventeenth Amendment) Act
amends the fundamental rights solely with the object of removing obstacles in the
fulfillment of a socio-economic policy. Its effects on Art. 226 is incidental and
insignificant. The Act therefore falls under the substantive part of Art. 368 and does
not attract the proviso.

(ii) On the contentions urged there was no justification for reconsidering Shankari
Prasad case. Though the Constitution is an organic document intended to serve as a
guide to the solution of changing problems the Court should be reluctant to accede to
the suggestion that its earlier decisions should be lightheartedly reviewed and
departed from. In such a case the test is : Is it absolutely and essential that the
question already decided should be reopened. The answer to the question would
depend on the nature of the infirmity alleged in the earlier decision, its import on
public good and the validity and compelling character of the considerations urged in
support of the contrary view. It is therefore relevant and material to note that if the
argument urged by the petitioners were to prevail, it would lead to the inevitable
consequence that the amendments of 1951 and 1955 and a large number of

74
decisions dealing with the validity of the Acts in the Ninth Schedule would be
exposed to serious jeopardy.

(iii) Parliament in enacting the impugned Act was not making any Provision of
land-Legislation but was merely validating land-Legislation already passed by the
State Legislatures in that behalf.

(iv) The power conferred by Art. 368 on Parliament can be exercised both
prospectively and retrospectively. It is open to Parliament to validate laws which have
been declared invalid by courts.

(v) The power conferred by Art. 368, includes the power to take away the
fundamental rights guaranteed by Part III. In the context of the constitution it
includes the power of modification, or changing the provisions, or even an
amendment which makes the said provisions inapplicable in certain cases. The
power to amend is a very wide power and cannot be controlled by the literal
dictionary meaning of the word "amend". The expression "amendment of the
Constitution" plainly and unambiguously means amendment of all the provisions of
the Constitution. The words used in the proviso unambiguously indicate that the
substantive part of the Article applies to all the provisions of the Constitution.

The word "law" in Art. 13(2) does not include a law passed by Parliament by
virtue of its constituent power to amend the Constitution. if the Constitution makers
had intended that any future amendment of the provisions in regard to fundamental
rights should be subject to Art. 13(2), they would have taken the precaution of
making a clear provision in that behalf. It would not be reasonable to proceed on the
basis that the fundamental rights in Part III intended to be finally and immutably
settled and determined once for all and were beyond the reach of any future
amendment. The Constitution makers must have anticipated that in dealing With the
socio-economic problems which the legislatures may have to face from time to
time, the concepts of public interest and other important considerations may change
and expand, and so, it is legitimate to assume that the Constitution-makers knew that
Parliament should be competent to make amendments in those rights so as to meet
the challenge of the problems which may arise. The fundamental rights guaranteed by
75
Part III could not have been intended to be eternal, inviolate and beyond the reach of
Art. 368 for, even if the powers to amend the fundamental rights were not included in
the Article, Parliament ran by a suitable amendment of the Article take those powers.
Article 226 which confer on High Court the power to issue writs falls under the
proviso to Art. 368, while Art.32 which is itself a guaranteed fundamental right and
enables a citizen to move the Supreme Court to issue writs, fall under the main part
of the section. Parliament may consider whether the anomaly which is apparent in
the different modes prescribed by Art. 368 for amending Arts. 226 and 32
respectively, should not be remedied by including Part III itself in the proviso Sri
Sankari Prasad Singh Deo vs. Union of India and State of Bihar, [1952] S.C.R. 89,
followed. A. K. Gopalan vs. State of Madras, [1950] S.C.R. and The Delhi Laws
Act, [1951] S.C.R. , referred to.

(vi) It is not reasonable to suggest that, since the impugned Act amends only
Arts. 31A and 31B and adds several Acts to the Ninth Schedule it does not amend the
provisions of Part III but makes an independent provision, and so, comes within
the scope of the proviso to Art. 368. If Parliament thought that instead of adopting
the cumbersome process of amending each relevant Article in Part III, it would be
more appropriate to add Arts. 31A and 31B, then at Parliament did in 1951 has
afforded a valid basis for further amendments in 1955 and in 1964.

(vii) The fact that the Acts have been included in the Ninth Schedule with a view to
making them valid, does not- mean that the Legislatures which passed the Acts have
lost their competence to repeal or amend them. Also, if a legislature amends any
provision of any such Act, the amended provision would not receive the protection of
Art. 31B and its validity will be liable to be examined on the merits.

As per Hidayatullah and Mudholkar JJ. Quaere (i) Whether the word "law" in Art.
13(2) of the Constitution exclude an Act of Parliament amending the Constitution.

(ii) Whether it is competent to Parliament to make any amendment at all to Part III of
the Constitution. According to Mudholkar J. an amendment made by resort to the first
part of Art. 368 could be struck down upon a ground such as taking away the
jurisdiction of High Courts under Art. 226 or of the Supreme Court under Art.136 or
76
that the effect of the amendment is to curtail substantially, though indirectly, the
jurisdiction of the High Court’s under Art. 226 or the Supreme Court under Art. 136,
and recourse had not been had to the proviso to Art.368. The question, whether the
amendment was a colorable exercise of power by Parliament may be relevant for
consideration in the latter kind of case. The attack on the Seventeenth Amendment
Act was based on grounds most of which were the same as those urged and
rejected in the earlier case of Sankari Prasad Singh Deo Union of India and State of
Bihar, [1952] S.C.R. 89, and on some grounds which are unsubstantial. No case has
therefore been made out by the petitioners either for the reconsideration of that
decision or for striking down the Seventeenth Amendment. The following matters
however were not considered in Sankari Prasad's case and merit consideration:-

(i) Where legislation deals with the amendment of a provision of the Constitution,
does it cease to be law within the meaning of Art. 13(2) merely because it has to be
passed by a special majority?

(ii) Where a challenge is made before the Court on the ground that no amendment to
the Constitution had in fact been made or on the ground that it was not a valid
amendment, would it not be the duty of the Court and within its power to examine
the question and to pronounce upon it since this is precisely what a Court is
competent to do in regard to any other law?

(iii) Is the statement in A. K. Gopalan vs. State of Madras, [1950] S.C.R. 88 that
the fundamental rights are the minimum rights reserved by the people to themselves,
and therefore unalterable, inconsistent with the statement in the Delhi Laws Act, 1912
[1951] S.C.R. 747, that Parliament has plenary powers of legislation ?

(iv) Whether making a change in the basic features of the Constitution can be
regarded merely as an amendment or would it be, in effect, rewriting a part of the
Constitution, and if it is the latter, would it be within the purview of Art. 368 ?

(v) Upon the assumption that Parliament can amend Part III of the Constitution
and was therefore competent to enact Arts. 31A and 31B, as also to amen the
definition of "estate", can Parliament validate a State law dealing with land ?
77
(vi) Could Parliament go to the extent it went when it enacted the First Amendment
and the Ninth Schedule and now when it added 44 more agrarian laws to it? Or,
was Parliament incompetent to go, beyond enacting Art. 31A in 1950, and now,
beyond amending the definition of "Estate"?

Supreme Court Cases:

Sajjan Singh And Others Vs. State of Rajasthan:44

Judgments delivered on the 30th October, 1964 by Gajendragadkar C.J. Those
six writ petitions which have been filed under Art. 32 of the Constitution, seek to
challenge the validity of the Constitution (17th Amendment) Act, 1964. The
petitioners are affected by one or the other of the Acts added to the 9th Schedule by
the impugned Act, and their contention is that the impugned Act being
constitutionally invalid, the validity of the Acts by which they are affected cannot be
saved. Some other parties who are similarly affected by other Acts added to the 9th
Schedule by the impugned Act, have intervened at the hearing of these writ petitions,
and they have joined the petitioners in contending that the impugned Act is invalid.
The points raised in the present proceedings have been elaborately argued before us
by Mr. Setalvad and Mr. Pathak for the interveners and Mr. Mani for the petitioners.

The impugned Act consists of three sections. The first section gives its short
title. Section 2(i) adds a proviso to cl. (1) of Art. 31A after the existing proviso. This
proviso reads thus "Provided further that where any law makes any provision for the
acquisition by the State of any estate and where any land comprised therein is held by
a person under his personal cultivation, it shall not be lawful for the State to acquire
any portion of such land as is within the ceiling limit applicable to him under any law
for the time being in force or any building or structure standing thereon or appurtenant
thereto, unless the law relating to the acquisition of such land, building or structure,
provides for payment of compensation at a rate which shall not be less than the
market value thereof".

44
1964

78
Substitutes the following sub- clause for sub-cl. (a) of cl. (2) of Art.31A :-
"(a) the expression "estate" shall, in relation to any local area, have the same meaning
as that expression or its local equivalent has in the existing law relating to land
tenures in force in that area and shall also include-

(i) any jagir, inam or muafi or other similar grant and in the States of Madras and
Kerala, any janmam, right;
(ii). any land held under ryotwari settlement;

(iii) any land held or let for purposes of agriculture or for purposes ancillary thereto,
including waste land, forest land, land for pasture or sites of buildings and other
structures occupied by cultivators of land, agricultural labourers and village
artisans". Section 3 amends the 9th Schedule by adding 44 entries to it. That is the,
nature of the provisions contained in the impugned Amendment Act.

In dealing with the question about the validity of the impugned Act, it is
necessary to consider the scope and effect of the provisions contained in Art. 368 of
the Constitution, because a large part of the controversy in the present writ petitions
turns upon the decision of the question as to what the true scope and effect of Art.
368 is 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 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 in-
(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter 1 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 by resolutions to that effect passed
by those Legislatures before the Bill making provision for such amendment is
presented to the President for assent.
79
 It would, thus, appear that the broad scheme of Art.368 is that if Parliament
proposes to amend any provision of the Constitution not enshrined in the proviso, the
procedure prescribed by the main part of the Article has to be followed. The Bill
introduced for the purpose of making the amendment in question, has to be 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.

Supreme Court Cases:

It would be necessary to recall very briefly the history of Articles 31A and 31B.
Articles 31A and 31 B were added to the Constitution with retrospective effect by of
the Constitution (First Amendment) Act, 1951. It is a matter of general knowledge
that it became necessary to add these two provisions in the Constitution, because it
was realised that legislative measures adopted by certain States for giving effect to the
policy of agrarian reform which was accepted by the party in power, had to face a
serious challenge in the courts of law on the ground that they contravened the
fundamental rights guaranteed to the citizens by Part III.

1. These measures had been passed in Bihar, Uttar Pradesh and Madhya Pradesh,
and their validity was impeached in the High Courts in the said three States. The High
Court of Patna held that the relevant Bihar legislation was unconstitutional, whilst the
High Courts at Allahabad and Nagpur upheld the validity of the corresponding
legislative measures passed in Uttar Pradesh and Madhya Pradesh respectively.
[Kameshwar vs. State of Bihar and Surya Pal vs. U. P. Government. The parties
aggrieved by these respective decisions had filed appeals by special leave before the
Supreme Court. At the same time, petitions had also been preferred before the
Supreme Court under Art. 32 by certain other zamindars, seeking the determination
of the same issues.

It was at this stage that Parliament thought it necessary to avoid the delay
which would necessarily have been involved in the final decision of the disputes
pending before the Supreme Court, and introduced the relevant amendments in the
Constitution by adding Articles 31A and 31B. 'Mat was the first step taken by

80
Parliament to assist the process of legislation to bring about agrarian reform by
introducing Articles 31A and 31B.

The second step in the same direction was taken by Parliament in 1955 by
amending Art. 31A by the Constitution (Fourth Amendment) Act, 1955. The object
of this amendment was to widen the scope of agrarian reform and to confer on the
legislative measures adopted in that behalf immunity from a possible attack that they
contravened the fundamental rights of citizens. In other words, this amendment
protected the legislative measures in respect of certain other items of agrarian and
social welfare legislation, which affected the proprietary rights of certain citizens.
That is how the second amendment was made by Parliament. At the time when the
first amendment was made, Art.31B expressly provided that none of the Acts and
Regulations specified in the 9th Schedule, nor any of the provisions thereof, shall be
deemed to be void or ever to have become void on the ground that they were
inconsistent with or took away or abridged any of the rights conferred by Part III, and
it added that 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, continue in force. At this time, 19 Acts
were listed in Schedule 9, and they were thus effectively validated. One more Act was
added to this list by the Amendment Act of 1955, so that as a result of the second
amendment, the Schedule contained 20 Acts which were validated.

2. It appears that notwithstanding these amendments, certain other legislative

measures adopted by different States for the purpose of giving effect to the agrarian
policy of the party in power, were effectively challenged. For instance, in Karimbil
Kunhikoman vs. State of Kerala, the validity of the Kerala Agrarian Relations Act
(IV, of 1961) was challenged by writ petitions filed under Art. 32, and as a result of
the majority decision of this Court, the whole Act was struck down. This decision was
pronounced on December 5, 1961.

3. In A. P. Krishnaswami Naidu, etc. vs. The State of Madras (2 the

constitutionality of the Madras Land Reforms (Fixation of Ceiling on Land) Act (No.
58 of 1961) was put in issue, and by the decision of this Court pronounced on March
9, 1964, it was declared that the whole Act was invalid. It appears that the Rajasthan
81
Tenancy Act HI of 1955 and the Maharashtra Agricultural Lands (Ceiling and
Holdings) Act 27 of 1961 have been similarly declared invalid, and in consequence,
Parliament thought it necessary to make a further amendment in Art. 31B so as to
save the validity of these Acts which had been struck down and of other similar Acts
which were likely to be struck down, if challenged. With that object in view, the
impugned Act has added 44 Acts added to Scheduled 9 were found to be effective,
these 44 Acts would have to be treated as valid.

Thus, it would be seen that the genesis of the amendments made by

Parliament in 1951 by adding Articles 31A and 31B to the Constitution, clearly is to
assist the State Legislatures in this country to give effect to the economic policy in
which the party in power passionately believes to bring about much needed agrarian
reform. It is with the same object that the second amendment was made by Parliament
in 1955, and as we have just indicated, the object underlying the amendment made by
the impugned Act is also the same. Parliament desires that agrarian reform in a broad
and comprehensive sense must be introduced in the interests of a very large section of
Indian citizens who live in villages and whose financial prospects are integrally
connected with the pursuit of progressive agrarian policy.

The argument obviously assumes that it would have been open to Parliament
to make appropriate changes in the different Articles of Part III, such as Articles 14
and 19, and if such a course had been adopted, the impugned Act would have been
constitutionally valid. But inasmuch as the impugned Act purports to amend only
Arts. 31A and 31B and seeks to add several Acts to the Ninth Schedule, it does not
amend any of the provisions in Part III, but is making an independent provision, and
that, it is said, must take the case within the scope of the proviso. It is clear that what
the impugned Act purports to do is to amend Art. 31A, and Article 31A itself is
included in Part III.

If Parliament thought that instead of adopting the cumbersome process of

amending each relevant Article in Part III, it would be more appropriate to add
Articles 31A and 31B, and on that basis, it passed the material provisions of the
Constitution (First Amendment) Act, it would not be reasonable to suggest that this
method brings the amendment within the proviso. What the Parliament did in 1951,
82
has afforded a valid basis for further amendments made in 1955 and now in 1964. It
would be clear that though the arguments which have been urged is that, in the
proceedings have been put in different forms, basically they involve the consideration
of the main question whether the impugned Act falls within the scope of the proviso
or not; and the answer to this question, has to be against the petitioners by the
application of the doctrine of pith and substance. Then, it is urged that the power to
amend, which is conferred by Art. 368, does not include the power to take away the
fundamental rights guaranteed by Part III. The contention is that the result of the
material provisions of the impugned Act is to take away a citizen's right to challenge
the validity of the Acts added to the Ninth Schedule, and that means that in respect of
the said Acts, the relevant fundamental rights of the citizens are taken away.

It is well-known that the amendment of a law may in a proper case include

the deletion of any one or more of the provisions of the law and substitution in
their place of new provisions. Similarly, an amendment of the Constitution which is
the subject matter of the power conferred by Art.368, may include modification or
change of the provisions or even an amendment which makes the said provisions
inapplicable in certain cases. The power to amend in the context is a very wide power
and it cannot be controlled by the literal dictionary meaning of the word "amend".

The question about the validity of the Constitution (First Amendment) Act
has been considered by this Court in Sri Sankari Prasad Singh Deo vs. Union of India
and State of Bihar. In that case, the validity of the said Amendment Act was
challenged on several grounds. One of the grounds was that the newly inserted
Articles 31A and 31B sought to make changes in Articles 132 and 136 in Chapter IV
of Part V and Art. 226 in Chapter V of Part VI 'and so, they required ratification under
cl. (b) of the proviso to Art. 368. This contention was rejected by this Court.
Patanjali Sastri J., as he then was, who spoke for the unanimous Court, observed that
the said Articles "did not either in terms or in effect seek to make any change in Art.
226 or in Articles 132 and 136", and he added that it was not correct to say that the
powers of the High Courts under Art. 226 to issue writs for the enforcement of any of
the rights conferred by Part of the Court under Articles 132 and 136 to entertain
appeals from orders, issuing or refusing to issue such writs were in any way affected.
In the opinion of the Court, the said powers remained just the same as they were
83
before; only a certain class of cases had been excluded from the purview of Part Ill.
The fact that the courts could not exercise their powers in respect of the said class of
cases did not show that the powers of the courts were curtailed in any way or to any
extent. It only meant that certain area of in which the said powers could have been
exercised had been withdrawn. Similarly, the argument that the amendments were
invalid because they related to legislation in respect of land was also rejected on the
ground that the impugned Articles 31A and 31B were essentially amendments of the
Constitution which Parliament alone had the power to make. It would thus appear that
in substance the points urged in the proceedings were really concluded by the decision
of the Court in Sankari Prasad's case. It was, however, urged in the course of the
hearing of these writ petitions that we should reconsider the matter and review our
earlier decision in Sankari Prasad's case.

In Sankari Prasad's case, it was contended that though it may be open to

Parliament to amend the provisions in respect of the fundamental rights contained in
Part III, the amendment, if made In that behalf, would have to be tested in the light of
the provisions contained in Art. 13(2) of the Constitution. The argument was that the
law to which Art. 13(2) applies, would include a law passed by Parliament by virtue
of its constituent power to amend' the Constitution, and so, its validity will have to be
tested by Art. 13(2) itself. It will be recalled that Art. 13(2) prohibits (1) [1952]
S.C.R. 89. The State from making any law which, takes away or abridges the rights
conferred by Part III, and provides that any law made in contravention of clause (2)
shall, to the extent of the contravention, be void. In other words, it was urged before
this Court in Sankari Prasad's(1) case that in considering the question as to the validity
of the relevant provisions of the Constitution (First Amendment) Act, it would be
open to the party challenging the validity of the said Act to urge that in so far as
the Amendment Act abridges or takes away the fundamental rights of the citizens, it is
void. This argument was, however, rejected by this Court on the ground that the word
"law" used in Art. 13 "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 Art. 13 (2) does not affect amendments made
under Art. 368".

84
 It is significant that Patanjali Sastri J. as he then was, who spoke for the
Court, described as attractive the argument about the applicability of Art.13(2)
to Constitution Amendment Acts passed under Art. 368, examined it closely, and
ultimately rejected it. It was noticed in the judgment that certain constitutions make
certain rights "eternal and inviolate", and by way of illustration, reference was made
to Art. 11 of the Japanese Constitution and Art. 5 of the American Federal
Constitution. It was also noticed that the word "law" in its literal sense, may include
constitutional law, but it was pointed out that "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". The scheme of the relevant
provisions of the Constitution was then examined, and ultimately, the Court reached
the conclusion that though both Articles 13 and 368 are widely phrased, the
harmonious rule of construction requires that the word "law" in Art. 13should be
taken to exclude law made in exercise of the constituent power. In our opinion, this
conclusion is right, and as we are expressing our full concurrence with the decision in
Sankari Prasad's case, we think it is necessary to indicate our reasons for agreeing
with the conclusion of the Court on this point, even though the correctness of this
conclusion has not been questioned before us in the course of arguments. If we had
felt a real difficulty in accepting this part of the conclusion, we would have seriously
considered the question as to whether the matter should not be referred to a larger
Bench for a further examination of the problem.

The importance and significance of the fundamental rights must obviously be

recognised and in that sense, the guarantee to the citizens contained in the relevant
provisions of Part III, can justly be described as the very foundation and the
cornerstone of the democratic way of life ushered in this country by the Constitution.
But can it be said that the fundamental rights guaranteed to the citizens are eternal and
inviolate in the sense that they can never be abridged or amended? It is true that in the
case of A. K. Gopalan , Patanjali Sastri, as he then was, expressed the view that
"there can be no doubt that the people of India have, in exercise of their sovereign will
as expressed in the Preamble, adopted the democratic ideal which assures to the
citizen the dignity of the individual and other cherished human values as a means to
the full evolution and expression of his personality, and in delegating to the
legislature, the executive and the judiciary the irrespective powers in the Constitution
85
reserved to themselves certain fundamental rights, so-called, because they have been
retained by the people and made paramount to the delegated powers, as in the
American model.
It may, prima facie, tend to show that the right to amend these fundamental
rights vested not in Parliament, but in the people of India themselves. But it is
significant that when the same learned Judge had occasion to consider this question
more elaborately in the Delhi Laws Act, 1912, (1) etc. he has emphatically expressed
the view that it is established beyond doubt that the Indian Legislature, when acting
within the limits circumscribing its legislative power, has and was intended to have
[1950] plenary of legislation as large and of the same nature as those of the British
Parliament itself and no constitutional limitation on the delegation of legislative
power to a subordinate unit is to be found in the Indian Councils Act, 1861, or the
Government of India Act, 1935, or the Constitution of 1950. The suggestion that the
legislatures, including the Parliament, are the delegate of the people of India in whom
sovereignty vests, was rejected by the learned Judge when he observed that "the
maxim 'delegates ten protest delegate' is not part of the Constitutional law of India
and has no more force than a political precept to be acted upon by legislatures in the
discharge of their function of making laws, and the courts cannot strike down an Act
of Parliament as unconstitutional merely because Parliament decides in a particular
instance to entrust its legislative power to another in whom it has confidence or, in
other words, to exercise such power through its appointed instrumentality, however
repugnant such entrustment may be to the democratic process. What may be regarded,
as politically undesirable is constitutionally competent". It would thus appear that so
far as our Constitution is concerned, it would not be possible to deal with the question
about the powers of Parliament to amend the Constitution under Art. 368 on any
theoretical concept of political science that sovereignty vests in the people and the be
statures are merely the delegate of the people. Whether or not Parliament has the
power to amend the Constitution must depend solely Upon the question as to
whether the said power is included in Art. 368.

The provisions of the Constitution (First Amendment) Act, 1951 itself. By this
Act, Articles 15, 19 and 31were amended. One has merely to recall the purpose for
which it became necessary to amend Articles 15 and 19 to be satisfied that the
changing character of the problems posed by the words used in the respective articles
86
could not have been effectively met unless amendment in the relevant provisions was
effected; and yet, if the argument that the fundamental rights are beyond the reach
of Art. 368 were valid, an these amendments would be constitutionally impermissible.
That, we think is not the true purport and effect of Art. 368. We are, therefore,
satisfied that this Court was right in rejecting the said argument in the case of Sankari
Prasad.

There is one more point, in the case of Sankari Prasad Court has observed that
the question whether the latter part of Art. 31B is too widely expressed, was not
argued before it, and so, it did not express any opinion upon it. This question has,
however, been argued before us, and so, we would like to make it clear that the effect
of the last clause in Art. 31B is to leave it open to the respective legislatures to repeal
[1952] or amend the Acts which have been included in the Ninth Schedule. In other
words, the fact that the said Acts have been included in the Ninth Schedule with a
view to make them valid, does not mean that the legislatures in question which passed
the said Acts have lost their competence to repeal them or to amend them. That is one
consequence of the said provision. The other inevitable quince of the said provision is
that if a legislature amends any of the provisions contained in any of the said Acts, the
amended provision would not receive the protection of Art.31B and its validity may
be liable to be examined on the merits. Before we part with this matter, we would like
to observe that Parliament may consider whether it would not be expedient and
reasonable to include the provisions of Part III in the proviso to Art. 368. It is not easy
to appreciate why the Constitution-makers did not include the said provisions in the
proviso when Art. 368 was adopted. In the Berubari Union and Exchange of Enclaves,
this Court had pointed out that amendment of Art. 1 of the Constitution consequent
upon the cession of any part of the territory of India in favour of a foreign State, does
not attract the safeguard prescribed by the proviso to Art. 368, because neither Art.
1 nor Art. 3 is included in the list of entrenched provisions of the Constitution
enumerated in the proviso; and it was observed that it was not for this Court to
enquire or consider whether it would not be appropriate to include the said two
articles under the proviso, and that it was a matter for Parliament to consider and
decide. Similarly, it seems somewhat anomalous that any amendment of the
provisions contained in Art. 226 should fall under the proviso but, not an amendment
of Art. 32. Article 226 confers on High Courts the power to issue certain writs,
87
while Art. 32, which itself is a guaranteed fundamental right, enables a citizen to
move this Court for similar writs. Parliament may consider whether the anomaly
which is apparent in the different modes prescribed by Art. 368 for amending Articles
226 and 32 respectively, should not be remedied by including Part HI itself in the
proviso. If that is done, difficult questions as to whether the amendment made in the
provisions of Part III substantially, directly and materially affects the jurisdiction and
powers of the High Court's under Art. 226 may be easily avoided. In the result, we
hold that the impugned Act is constitutionality valid.

Hidayatullah J. said, the privilege of reading the judgment just delivered by

the Chief Justice was that there is no force in the contention that the 17th Amendment
required for its valid enactment the special procedure, laid down in the proviso to Art.
368. It would, of course, have, been necessary if the amendment had sought to make
a change in Art. 226. This eventuality cannot be said to have arisen. Article
226 remains unchanged after the amendment. The proviso comes into play only when
the article is directly changed or its ambit as such is sought to be changed. What the
17th amendment does is to enlarge the meaning of the word 'estate' in Art. 31-A and'
to give protection to some Acts passed by the State Legislatures by including them in
the Ninth Schedule under the shield of Art.31 B. These Acts promoted agrarian
reform and but for the inclusion in the Ninth Schedule they might be assailed by the
provisions of Articles 14, 19 or 31 of the Constitution. Some of the Acts were in fact
successfully assailed but the amendment makes them effective and invulnerable to the
three articles notwithstanding Art. 13 of the Constitution. In Sri Sankari Prasad's
case when the Constitution (First Amendment) Act was passed and Articles 3 I-A and
31-B and Ninth Schedule were introduced, the effect of that amendment on Art.
226 were considered and it was held that the Amendment had not the effect visualized
by the proviso to Art. 368. The reasoning in that case on this point applies mutatis
mutandis to the 17th Amendment. However, some difficulty in accepting a part of the
reasoning in Sankari Prasad's case it was contended that by Art. 13(2)the Fundamental
Rights in Part III of the Constitution were put beyond the reach of Art.368 and outside
the power of amendment conferred on Parliament by Art. 368.

This argument was considered "attractive', but was rejected because of certain
"important considerations" which it was held pointed "to the opposite conclusion".
88
Two reasons alone appear to have weighed with this Court. The first is that as
constitutional law is distinguishable from other municipal laws and as there is no
"clear indication" to be found that the Fundamental Rights are “immune from
constitutional amendment", only the invasion of the Fundamental Rights by laws
other than constitutional laws (1) [1952] S.C.R. 89 must be the subject of the
prohibition in Art.13(2). Art.13 may to be quoted at this stage : Article 13 Laws
inconsistent with or in derogation of the fundamental rights.
(1) All laws in force in the territory of India immediately before the commencement
of this Constitution, in so far as they are inconsistent with the provisions of this Part,
shall, to the extent of such inconsistency, be void.
(2) 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.
(3) In this article, unless the context otherwise requires,-
(a) "law" includes any Ordinance, order, bye-law, rule, regulation, notification,
custom or usage having in the territory of India the force of law;
(b) It is true that there is no complete definition of the word "law" in the article but it
is significant that the definition does not seek to exclude constitutional amendments
which it would have been easy to indicate in the definition by adding "but shall not
include an amendment of the Constitution".

The meaning is also sought to be enlarged not curtailed. The meaning of Art.
13 thus depends on the sense in which the word "law" in Art. 13(2) is to be
understood. If an amendment can be said to fall within the term "law", the
Fundamental Rights become "eternal and inviolate" to borrow the language of the
Japanese Constitution. Article 13 is then on par with Art.5 of the American Federal
Constitution in its immutable prohibition as long as it stands. But the restricted
meaning given to the word "law" prevents this to be held.

The validity of the 17th Amendment Act was challenged on the ground that
one of the acts inserted by the amendment in the 9th scheduled affected the petitioner
on the basis that the amendment fell within the purview of Article 368 and the
requirements in the proviso to Article 368 had not been complied with Supreme Court
approved the judgment in Shankari Prasad case and held that on Article 13 (2) the
89
case was rightly decided. Amendment includes amendment to all provisions of the
Constitution.
The Supreme Court as observed that “the fundamental rights are also subject
to amendment by Parliament and there by the Court maintained the dynamism.” This
Amendment Act was also enacted to supersede judicial decision.

6. THE CONSTITUTION (TWENTY-FOURTH AMENDMENT) ACT, 1971

Objects and Reasons of the Bill:

The Supreme Court in the well-known Golak Nath’s case [1967, 2 S.C.R.
762] reversed, by a narrow majority, its own earlier decisions upholding the power of
Parliament to amend all parts of the Constitution including Part III relating to
Fundamental Rights. The result of the judgment was that Parliament was considered
to have no power to take away or curtail any of the Fundamental Rights guaranteed by
Part III of the Constitution even if it was necessary to do so for giving effect to the
Directive Principles of State Policy and for the attainment of the objectives set out in
the Preamble to the Constitution. It was, therefore, considered necessary to provide
expressly that Parliament has power to amend any provision of the Constitution so as
to include the provisions of Part III within the scope of the amending power. The Bill
sought to amend article 368 suitably for the purpose of making it clear that article 368
provides for amendment of the Constitution as well as procedure therefore. The Bill
further provided that when a Constitution Amendment Bill passed by both Houses of
Parliament is presented to the President for his assent, he should give his assent
thereto. The Bill also sought to amend article 13 of the Constitution to make it
inapplicable to any amendment of the Constitution under article 368.

The Constitution (Twenty-fourth Amendment) Bill was introduced in the Lok

Sabha on 28 July 1971.45 The Bill sought to amend articles 13 and 368 of the
Constitution. In Lok Sabha by the Minister of Law and Justice, Shri H.R. Gokhale on
28 July 197146. Debated at Lok Sabha 3 and 4 August 1971. Rajya Sabha: 10 and 11
August 197147; Ratified as per requirement of proviso to article 368(2) of the

45
Lok Sabha Debate 28 July 1971
46
Ibid
47
Rajya Sabha: 10 and 11 August 1971

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Constitution by the following State Legislatures, namely, Andhra Pradesh, Haryana,
Himachal Pradesh, Jammu and Kashmir, Kerala, Madhya Pradesh, Maharashtra,
Nagaland, Tamil Nadu and Uttar Pradesh; President’s Assent: 5 November 1971;
Date of Gazette Notification: 5 November 1971; Date of Commencement: 5
November 1971.

The Bill was considered by the Lok Sabha on 3 and 4 August and passed, in the
original form, on 4 August 1971, The Bill, as passed by the Lok Sabha, was
considered by the Rajya Sabha on 10 and 11 August and passed by that House on 11
August 1971.

The Minister of Law and Justice , Shri H.R.Gokhale stated , "That the Bill
further to amend the Constitution of India be taken into consideration." In a
democracy as ours, the people are sovereign and parliament which is fully
representative of the people is supreme. The Bill once again seeks to reassert that
Parliament is supreme and that no person or authority howsoever highor respected can
come in the way of the fulfillment of the will of the people at large. So far as we the
members on this side of the House are concerned we are under a clear mandate a
massive mandate from the people that 'we Will bring about the necessary amendments
to the Constitution so as to remove the impediments that have been created in the way
of the implementation 'of the fulfillment of our socio-economic programmers. The
Bill seeks to amend two articles, 13 and 368. Till recently many constitutional jurists
believed and many of them believe even now that article 368 as it is provides for
amendment of any part of the Constitution and does not contain only the procedure
for amendment of the Constitution.

Even the two previous judgments of the Supreme Court in fact had given
the verdict that Parliament had the power to amend any provision of the Constitution
irrespective of whether that provision pertains to fundamental rights or not. But for
the first time in the latest case the Golaknath case the Supreme Court reversed the
earlier view and held that there are limitations on the rights of Parliament to amend
the Constitution and that view was taken principal on two grounds. What was said
was that article 368 contains only the procedure to amend the Constitution and does
not confer a substantive power to amend the Constitution. They said that even if the
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entire procedure in article 368 is gone through, it will not culminate in an amendment
of the Constitution taking place. The other reason which the Supreme Court gave in
this case was that article 13 when it refers to law takes within its ambit not only law
which is passed in the ordinary legislative process but also includes the law passed by
parliament in the exercise of its sovereign constituent power which Parliament does
when it amends the Constitution, the organic instrument itself. This view of the
Supreme Court has necessitated a reconsideration of the steps which are required to
be taken to see that the power of Parliament which is the supreme body so far as this
country is concerned is restored or may I say is reasserted so that parliament has an
power to take in hand the amendment of any provision of the Constitution.

A Constitution after all is an instrument which the people give to themselves

for the organization of the governance of their country. It is at the most a means and
not an end in itself. A Constitution cannot be immutable mutable, it and if it is so
held that it means that we subscribe to the theory of stagnation. All progressive
countries in their Constitutions have provided for an amending process because it has
been regarded by jurists all over the world that the amending process is the only
safety valve in any proper Constitution as a result of which the Constitution itself can
be saved from decay.

Time and tide wait for nobody and the mere fact that the written instrument is
immutable will not stop the people from making strides towards their own progress to
which and for which they forever strive. That is why to get over this difficulty. I
would explain the import of the amendment to the two articles which have been
brought before this House.

The amendment of article 368 which is now proposed seeks to make it clear
beyond doubt that that article would now contain not only the procedure to amend the
Constitution but would contain a substantive Power to exercise the sovereign
constituent right of Parliament to amend any provision of the Constitution including
the fundamental rights Incidentally the marginal note which said that it was a
procedure has been amended although some of us lawyers never understood how on
the interpretation of the marginal note alone a view can be taken that it is not power
but procedure of the article itself in substance and in its content clearly indicated that
92
there was a power to amend substantively any provision of the Constitution. To get
over the difficulty, even this small change of altering the marginal note which really
was not a creature of Parliament has also been one so far as the proposed amendment
is concerned.

The other thing which has been done is to obviate the second difficulty which
was raised in. Golaknath's case. That difficulty was that the distinction which has
been recognised in jurisprudence all over between constituent law which is passed in
exercise of sovereign power and law which is passed by any parliament in exercise of
its ordinary legislative power was blurred by that decision. Now, for the first time, in
view of the Now proposed that nothing contained in article 13 will apply to an
amendment under article 368, the so called distinction between exercise of the
constituent power and exercise of ordinary legislative power will be taken away, and
it is now made clear and, again without any shadow of doubt that the exercise of
power under article 368 is not just ordinary legislative exercise of power but it is a
power which in jurisprudence is regarded everywhere as sovereign exercise of
constituent power.

A consequential amendment has also been proposed to article 13 which was

really the block which came in the way substantially in Golaknath's case which says
that nothing contained in article 13 will apply to a law passed in exercise of the
sovereign constituent power contained in article 368 of the Constitution. These, in
substance, are the proposed amendments, and if these amendments are made, it will
again be clear that Parliament alone in this country will be supreme in the matter of
amendment of any provision of the Constitution, and that is the sole purpose of
amending the two articles at this juncture. When this Bill becomes law, I dare say that
it will be a landmark in the legislative and constitutional history of this country.

Pandit Jawaharlal Nehru said, "The real difficulty which has come up before
us is this. The Constitution lays down certain Directive Principles of State Policy and
after long discussion, we agreed to them and they point out the way we have got to
travel. The Constitution also lays down certain fundamental rights both are important.
The Directive Principles of State Policy represent dynamic 'move towards a certain
directive. The fundamental rights represent something static, to preserve certain rights
93
which exist. Both again are right. But somehow and some-time it might so happen
that dynamic towards a certain objective. The fundamental rights represent something
static, to preserve certain rights which exist. Both again are right. But somehow and
some time it might so happen that dynamic movement and that static standstill do not
quite into each other.

A dynamic movement towards a certain objective necessarily means certain

changes taking place that is the essence of movement. Now it may be that in the
process of dynamic movement, certain existing relationships are altered, varied of
affected the result is that the whole purpose behind the Constitution, which was meant
to be b:a dynamic Constitution leading to a certain goal step by step, is somewhat
hampered and hindered by the static element being emphasised a little more than the
dynamic element and we have to find out some way of solving it, I said these words
were very prophetic, because particularly after the last judgment of the Supreme
Court in Golaknath's case. it has been exhibited beyond doubt that it is really the static
element which is trying to gain predominance over the dynamic element. If it was
contemplated by the founding fathers that our Constitution is intended to work in
consonance with the Directive Principles, if there was an injunction on the State that
they are fundamental to the governance of the country and if further the directive was
that the State will make laws in consonance with the Directive Principles, how can
anyone who has a sense of the general idea of the structure underlying the
Constitution ever contend that the Constitution should not be amended, if need be, to
make the Directive Principles more effective, so that the state can legislate to make
the Directive Principles more effective as time goes on and when necessity arises The
whole idea underlying the amendment now is that the predominance of the static
element which has now really blocked all the ways to progress has to be given a
subsidiary position and if occasion arises Parliament should have the power to amend
the fundamental rights if the necessity of implementing the Directive Principles
arises.

This is not to say that we wish to under rate some of the other basic rights
such as the freedom of speech and expression, the right to assemble peaceably and
without arms, right to form associations, right to move freely through-out the territory
of India, etc., and they will be interfered with. I anticipate that it may be said by some
94
of the critics that if power is given to amend any provision of the Constitution, some
of these rights also may be amended. I describe this argument as the argument of fear
and nervousness. If we look at the history of the last few years, after the Constitution
came into force, we are on the twenty-fourth amendment Bill of the Constitution; 23
amendments have gone by, but not one amendment has touched some of the other
rights like the right guaranteeing the protection to minorities or freedom of speech,
except on two occasions.

But there is nothing to indicate in the short history after the coming into force
of the Constitution that any of these fundamental rights were touched I think it was
always regarded, and the Supreme Court has also accepted the position, that we had
all the time the power to amend the fundamental rights. It is not as if for the first time
this right is taken. But for the Golaknath’s case it would not have been necessary at
all. We always had the right and it was so assumed and it was so held by the judiciary
also. Even then, no such right was ever touched. That is why I said it was more an
argument of fear and nervousness than of substance. Ultimately it is a question of
how much faith we put on ourselves.

Parliament Debates :
Shri A.K.Gopalan said that we support this Amendment it: 11 that is there
before the House now. while supporting the Bill we have to say that this Bill should
have been introduced earlier, not only after the Golaknath’s case judgment but even
before that, because several cases in 1961 as well as in 1969 were there in the
Supreme Court where they bad struck down some of the provisions relating to social
and economic progress. So this Bill should have come even before the Golaknath case
judgment. his Bill has come how because of the urge of the people for the last so
many years after independence. The people wanted radical changes. They waited for
some time. Then they understood that there were so many hurdles as far as changes
were concerned; so, they agitated. There were so many struggles in the country. The
unemployed people in the country wanted employment. The underemployed wanted
better living conditions. So the urge of the people was there and the people were
determined not to live as before as slaves and in the conditions that were there. It
was that urge of the people that prompted the Government to bring forward even at

95
this late hour such a taking the power of amending the Constitution wherever it
stands in the way of social and economic progress.
Fundamental rights as far as the personal liberty is concerned can be curbed.
But when it came to Golak Nath case, they said that property rights cannot be
touched. I want to point out that in 1950 when I was detained, I filed a habeas
petition in the Supreme Court and that position was first constitutional case and it was
a tease. that, the majority judgment held that a person detained may not claim that the
freedom guaranteed under Article 19(1) (d) was infringed by his detention, and that
the validity of law providing for making orders of detention will not be tested in the
light of the reasonableness of the restrictions imposed, thereby on the freedom of
movement, nor on the ground that his right to person 3l liberty is infringed. So this
judgment served as the guiding principle and a test case for so many years. As fact
as the freedom of speech and personal liberty is concerned, they said that it cannot be
touched.

Important Provisions of the Act:

A new clause (4) has been inserted in article 13 of the Constitution to provide that the
provisions of article 13 shall not be applicable to any amendment made under article
368. (Section 2) The Act has amended article 368 to provide expressly that Parliament
has power to amend any provision of the Constitution. The amendment further
provides that when a Constitution Amendment Bill is presented to the President for
his assent, it would be obligatory upon him to give his assent thereto. (Section 3)

Supreme Court Cases :

1. I.C.Golak Nath Vs. State of Punjab :
The Court was delivered on the 27th February, 1967. For the first time by a
majority of 6 against 5 Judges of the Supreme Court, a view is expressed indicating
incompetence on part of the Parliament to legislate by amending the provisions of
Part III relating to fundamental rights. In this case some important points were
considered by the Supreme Court Judges, such as the are limitations upon Parliament
in amending the Constitution in so far as the amendment takes away or abridges the

96
fundamental rights guaranteed in Part III, as envisaged in the view of majority of
Judges of the Bench in Goalknaths’s case correct and proper? If so, is there any
remedy open to remove all or any such limitations? Is the theory of prospective
operation of invalidity applicable in India and if so to what extent?

In this case some of the Basic approaches also raised, Sovereignty of an

independent country like ours in a democratic set up is full and complete. No portion
of it can exist outside or be in vacuum. Negatively sovereignty can never be in the
third limb of the Constitution, viz., the judiciary. Judiciary is independent but not
sovereign. It is not subordinate to executive. It expresses the last word in deciding
matters that come up before it. That decision or conclusion or adjudication is binding
upon all courts in India and indirectly on all citizens of the Republic. It is an
axiomatic truth that in all democracies sovereignty rests wholly and in the first report
in the public and the citizens. For due exercise of it the elected representatives
function in a legislature to reveal the mind of the people. Human society is in
perpetual progress. Therefore nations have been held to be capable of changing the
pattern of laws if the interests of the nation so require. This is an inalienable right.
To whatever extent the powers may be delegated in the Constitution of the Indian
Republic there are no indications that lay down that there is any area beyond the reach
of the sovereignty of the nation. It is the nation that constitutes the final tribunal in a
democracy. It is incorruptible and cannot be replaced by something better. Despite
complexities that have arisen on account of party pressures or pressure groups or
individual sections of interest, by and large, the public are the safest judge. It may be
that in certain constitutions entered into between sovereign units that in certain
constitutions entered into between sovereign units that a particular area has been
agreed to be unalterable. This aspect does not arise under our Constitution. The
States if ever they are to be deemed to have entered into federation by their own
volition were not independent states bargaining for individual interests for and on
behalf of sovereign states.

Thomas Jefferson said, that some men look at constitutions with

sanctimonious reverence, and deem them like the ark of the covenant, too scared to
be touched. They ascribe to the men of the preceding age wisdom more than human,
and suppose what they did to be beyond amendment… Laws and institutions must go
97
hand in hand with the progress of the human mind. As that becomes more developed,
more enlightened, as new discoveries are made, new truths disclosed, and manners
and opinions changes with the change of circumstances, institutions must advance
also, and keep pace with the times… The real friends of the Constitution in its federal
form, if they wish it to be immoral, should be attentive, by amendments, to make it
keep pace with the advance of the age in science and experience.

The society in our country-politically, economically and in sovereignty has to

be taken note of. The trailing effect of British rule and attempted contributions to
jurisprudence during British rule in the shape of (i) guided democracy; (ii) paramount
prevailing in British Parliament; and (iii) sovereignty subject to paramount under the
Indian Princes of independent States, are not applicable and have to be wiped out.
Besides, majority of thinking minds, in which are also included the category of
judges, have borne the impress of British jurisprudence. This acts as a pull back in
the true interpretation. So one can select a few from among a multitude of speeches
made in framing the Constitution and reflecting the opinion of the people.

Dr Ambedkar observed the Constituent Assembly has not only refrained

from putting a seal of finality and infallibility upon this Constitution by denying the
people the right to amend the Constitution as in Canada or by making the amendment
of the Constitution subject to the fulfillment of extraordinary terms and conditions as
in America or Australia, but has provided for a facile procedure for amending the
Constitution… If those who are dissatisfied with the Constitution have only to obtain
a 2/3 majority and, if they cannot obtain even a two-thirds majority in the Parliament
elected on adult franchise in their favor, their dissatisfaction with the Constitution
cannot be deemed to be shared by the general public.

Pandit Jawaharlal Nehru, also observed in this connection, He said that No

Supreme Court and no judiciary can stand in judgment over the sovereign will of
Parliament representing the will of the entire community. If we go wrong here and
there, it can point it out, but in the ultimate analysis, where the future of the
community is concerned, no judiciary can come in the way. And if it comes in the
way, ultimately the whole Constitution is a creature of Parliament… it is obvious that
no court, no system of judiciary can function in the nature of a third. House, as a
98
kind of Third House of correction. So, it is important that with this limitation the
legislature must be supreme and must not be interfered with by the courts of law in
such measures of social reform. Otherwise, you will have strange procedures
adopted. Of course, one is the method of changing the Constitution. The other is that
which we have seen in great countries across the seas that the executive, which is the
appointing authority of the judiciary, begins to appoint judges of its own liking for
getting decisions in its own favour, but that is not very good method.

It now remains to mention that, as a result of the majority decision in

Golaknath’s Case, Parliament felt justified and perhaps compelled, to introduce and
adopt the Constitution Twenty-Fourth Amendment Act, 1971. The debate in
Parliament on this Bill and the final voting, when the Bill was adopted, indicate that
an overwhelming majority of the members of Parliament in both Houses took the
view that the majority decision in Golaknath’s case would tend to stall all, future
socio-economic progress of the country, because the power the of Parliament to
amend in future the Constitution so as to abridge Fundamental Rights was, in terms,
denied by the said majority decision. This is how the Amendment Act reads ;

It enacted by Parliament in the Twenty-second Year of the Republic of

India as follows:
1. This Act may be called the Constitution (Twenty-fourth Amendment) Act,
1971.
2. In article 13 of the Constitution, after clause (3), the following clause shall be
inserted, namely :-
“(4) Nothing in this article shall apply to any amendment of this
Constitution made under article 368.”
3. Article 368 of the Constitution shall be re-numbered as clause (2) thereof,
and-
(a) for the marginal heading to that article, the following marginal heading
shall be substituted, namely :-
“Power of Parliament to amend the Constitution and procedure therefore”
(b) Before clause (2) as so re-numbered, the following clause shall be
inserted, namely:-

99
 “(I) Notwithstanding anything in this Constitution, Parliament may in
exercise of its Constituent power amend by way of addition, variation or
repeal any provision of this Constitution in accordance with the procedure
laid down in this article”.
(c) In clause (2) as so re-numbered, for the words “it shall be presented to the
President for his assent and upon such assent being given to the Bill”. the
words “it shall be presented to the President who shall give his assent to
the Bill and thereupon” shall be substituted ;
(d) After clause (2) as so re-numbered, the following clause shall be inserted,
namely :-
“(3) Nothing in article 13 shall apply to any amendment made under this
article.” 48

It is apparent that the Act does not purport to confer on Parliament any new
additional powers. It seeks to clarity the true position about the scope and effect of
article 368 and 13(2). By making suitable amendments in articles 368 and 13,
Parliament has removed any possible ambiguity or doubt about the effect of the said
two articles. In plain terms, by passing this Act, Parliament has declared
unambiguously and clearly that so far as it is concerned, the interpretation placed on
Article 368 and Article 13(2) by the Supreme Court Sri Sankari Prasad’s case and
reaffirmed by the majority decision in Sajjan Singh’s case was the correct
interpretation of these two articles. In other words, the Act means that the position
with regard to the Constitutional power of Parliament to amend the Constitution under
Article 368 should be deemed to have been correctly laid down by the two earlier
decisions of the Supreme Court, just referred, and by the minority judgment in
Golaknath’s case.

The Twenty-Fourth Amendment Act, it would have been better if, at the very
commencement, when article 368 was adopted by the Constituent Assembly, Part III
had been placed under the proviso to the said article, and had been included in the list

48
P.B.Gajendragadkar, “The Indian Parliament and The Fundamental Rights”, Calcutta,
Easter Law House, 1972 pp-180-181.

100
of entrenched provisions. The logical basis on which provisions contained in clauses
(a) to (e) of the proviso have been selected and they urge that the inclusion of part II
dealing with the Fundamental Rights in the said provision would not logically have
been justified.

In fact, in dealing with this problem in Sajjan Singh’s case, Parliament may, in due
course, consider the question as to whether Part III should not be included in the
proviso to article 368. In a pluralistic society like ours, where different political
parties, having faith in different political philosophies and ideologies, are likely to be
in power in different States and at the Centre, it would, have been if Parliament had
accepted the suggestion of placing Part III in entrenched provisions of Article 368.
When any law is passed either by Parliament or any of the State Legislatures affecting
Fundamental Rights by virtue of the power conferred on them by the Twenty-Fifth
Amendment Act to achieve the socio-economic objectives enshrined in clause (b) and
(c) of Article 39, the validity of such laws may be challenged before the Supreme
Court on the basis of the majority decision in Golaknath’s case : the argument would
be that the Twenty-Fourth Amendment Act is invalid, since it is inconsistent with the
said majority decision, and consequence, the Twenty-Fifth Amendment Act, which
authorizes the passing of the impugned law is itself invalid. Many Rule of Law and
the dynamic role of the Judiciary.

The introduction of political overtones in the debate which followed the

pronouncement of the judgment in Golaknath’s case was singularly unfortunate. The
decision of the Supreme Court and the reaction in Parliamentary circles represent the
inevitable features of the democratic process. Judges interpret the laws, including the
Constitution, and whenever the Legislature feels that a particular law has been
interpreted in a manner not within the contemplation of the makers of the
Constitution, it is open to the Legislative to amend the law and to Parliament to
amend the Constitution. Judges, in that sense, are supreme in the sphere which is
entrusted to them and so are Legislatures, including Parliament, supreme in the sphere
entrusted to them. When one speaks of the supremacy of the Judiciary functioning
within its legitimate sphere and the supremacy of Parliament likewise functioning
within its legitimate sphere, one must make another important reservation and that
101
Parliament has the right to amend the Constitution; but once the Constitution is
amended, Parliament again functions under the amended Constitution. Thus, the true
constitutional position in our country is that the Constitution which is supreme so far
as the governance of the country as well as administration of justice is concerned.

As a result of the judgment in Golaknath’s case, the power of Parliament to

amend the Constitution itself was effectively stalled and, naturally, this democratic
process received a severe jolt. Nevertheless, the decision itself, though one may
disagree with it, must be considered a part of the democratic process and the use of
militant terms, such as confrontation between the Judiciary and Parliament must,
therefore, be scrupulously avoided. In order that the democratic way of life should
take a firm root in our country, it is of utmost importance that common men and
women should understand the true significance and character of the democratic
process. It is because considerable importance to this aspect of the matter that
deliberately chosen for my lectures the present subject and my endeavor is to show
that, even though, the majority verdict in Golaknath’s case, does not correctly
represent the true Constitutional position, it would be unfair to attribute any motives
to the learned Judges who expressed that view, or to suggest that the majority view
intended to precipitate a political crisis. In order that the true scope and effect of the
democratic process should be fully appreciated by the common citizens of our
country.

The legislative process under a parliamentary democracy is carried on by

public discussion and all questions of policy concerning the socio-economic and
political progress of the country are freely and fully discussed in the press and on the
public platform. Such fearless and free discussion is an important feature of the
democratic way of life. Proposals to meet the socio-economic and political problems
are introduced by the government of the day before the legislative assembly and in
the chamber of the assembly a full debate follows. The party in opposition ruthlessly
and mercilessly criticizes the proposals it is opposed to them and the prescribed
pattern of legislative process is followed before the proposals emerge as the laws of
the land. That is so far as the legislative chamber is concerned.

102
 After a law is thus put on the statute book its validity is tested in courts of law.
In a country like India which is governed by a written constitution, the validity of
legislative action is often impeached on the ground that the legislature has purported
to act in excess of its legislative authority, or acting within its jurisdiction the
legislature has trespassed on the fundamental rights guaranteed by the Constitution to
the citizens of this country. In either case the challenge has to be met by the
government before a court of law and the verdict pronounced by the court on such
matters is final. In other words, free and fearless discussion in the press and on the
public platform, free and full debate in the legislative chamber, and exhaustive
discussion before the courts of law, are the three safeguards which the Constitution
prescribed for the making of valid laws.

7. THE CONSTITUTION (TWENTY-FIFTH AMENDMENT) ACT,

1971
Objects and Reasons of the Bill :
Article 31 of the Constitution specifically provided that no law providing for
the compulsory acquisition or requisitioning of property which either fixes the amount
of compensation or specifies the principles on which and the manner in which the
compensation is to be determined and given, shall be called in question in any Court
on the ground that the compensation provided by that law is not adequate.

The Bill put on discussion and debate at Rajya Sabha , 11 August 1971 same
bill Introduced in Lok Sabha by the Minister of Law and Justice, Shri H.R. Gokhale
on 28 July 1971 Debated at Lok Sabha. 30 November and 1 December 1971 at Rajya
Sabha: 7 and 8 December 1971; Ratified as per requirement of proviso to article
368(2) of the Constitution by the following State Legislatures, namely, Andhra
Pradesh, Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, Jammu and Kashmir,
Kerala, Madhya Pradesh, Maharashtra, Meghalaya, Mysore, Nagaland, Orissa,
Punjab, Tamil Nadu, Tripura, Uttar Pradesh and West Bengal; President’s Assent: 20
April, 1972 Date of Gazette Notification on 20 April 1972 Date of Commencement:
20 April 1972.

103
 The Constitution guarantees right to compensation, that is, the equivalent in
money of the property compulsorily acquired. Thus in effect the adequacy of
compensation and the relevancy of the principles laid down by the Legislature for
determining the amount of compensation virtually became justiciable inasmuch as the
Court could go into the question whether the amount paid to the owner of the property
was what might be regarded reasonably as compensation for loss of property. In the
same case, the Court also held that a law which seeks to acquire or requisition
property for a public purpose should also satisfy the requirements of article 19(1)(f).
The Bill sought to surmount the difficulties placed in the way of giving effect to the
Directive Principles of State Policy by the aforesaid interpretation. The word
“compensation” was sought to be omitted from article 31(2) and replaced by the word
“amount”. It was also clarified that the said amount might be given otherwise than in
cash. The Bill also proposed to provide that article 19(1)(f) shall not apply to any law
relating to the acquisition or requisitioning of property for a public purpose. The Bill
further sought to introduce a new article 31C providing that if any law is passed to
give effect to the Directive Principles contained in clauses (b) and (c) of article 39 and
contains a declaration to that effect, such law shall not be deemed to be void on the
ground that it takes away or abridges any of the rights contained in articles 14, 19 or
31 and shall not be questioned on the ground that it does not give effect to those
principles. For this provision to apply in the case of laws made by State Legislatures,
it was necessary that the relevant Bill should be reserved for the consideration of the
President and receive his assent.

The Constitution (Twenty-fifth Amendment) Bill, 1971 was introduced in the

Lok Sabha on 28 July 197149. The Bill sought to: (i) amend article 31 and (ii) insert a
new article 31C in the Constitution. The Bill was considered by the Lok Sabha on 30
November and 1 December and, as amended, passed on 1 December 197150. The
Bill, as passed by the Lok Sabha, was considered by the Rajya Sabha on 7 and 8
December and passed on 8 December 1971. Clauses 1 and 3 of the Bill were adopted,
in the original form, by the Lok Sabha and the Rajya Sabha on 1 and 8 December
1971, respectively.

49
Lok Sabha Debate, 28 July 1971, c. 308.
50
Ibid., 1 December 1971, c. 524.

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Amendment of Article 31:
Clause 2 of the Bill sought to amend article 31(2) of the Constitution to make
it clear that no law providing for the compulsory acquisition or requisitioning of
property could be called in question in any Court on the ground that the amount fixed
or determined under such law to be given to the owner of the property is not adequate.
During the consideration of the clause by the Lok Sabha, the Minister of Law, Shri
H.R. Gokhale, moved an amendment seeking addition of the following proviso at the
end of the proposed clause (2) of article 31: Provided that in making any law
providing for the compulsory acquisition of any property of an educational institution
established and administered by a minority, referred to in clause (1) of article 30, the
State shall ensure that the amount fixed by or determined under such law for the
acquisition of such property is such as would not restrict or abrogate the right
guaranteed under that clause. The amendment was accepted by the House. The
clause, as amended, was adopted by the Lok Sabha and the Rajya Sabha on 1 and 8
December 1971, respectively.

Important Provisions of the Act:

The Act has amended article 31 in order to provide that the word
“compensation” in article 31(2) be replaced by the word “amount” so that no law
providing for the compulsory acquisition or requisitioning of property could be called
in question in any Court on the ground that the amount so fixed or determined is not
adequate. It has also been clarified that the said amount may be given otherwise than
in cash.
However, in making any law providing for the compulsory acquisition of any
property of an educational institution established and administered by a minority, the
State is enjoined to ensure that the amount fixed by or determined under such law is
such as would not restrict the minority’s right under article 30(1). A new clause (2B)
inserted in article 31 provided that article 19(1)(f), which guarantees the right to hold
and dispose of property, shall not apply to any law relating to the acquisition or
requisitioning of property for a public purpose. (Section 2) A newly inserted article
31C provided that a law giving effect to the Directive Principles of State Policy
specified in article 39(b) and (c) shall not be void on the ground of contravention of

105
articles 14, 19 or 31 and that a law containing a declaration that it is for giving effect
to these Directive Principles will not be open to judicial scrutiny on the ground that it
does not give effect to these Directive Principles. For this provision to apply in the
case of State laws, however, it is necessary that the relevant Bill should have been
reserved for the consideration of the President and received his assent.

Parliamentary Debates:
Shri A. K. Gopalan opined that two years ago when gave a statement in the
papers, in the course of the statement we said that the Constitution must be changed
lock, stock and barrel. The monopoly press wrote editorials about it. I am glad, now
the Government and some of those, who criticized even a statement that the
Constitution must be changed, have found out that unless some radical changes were
made in the Constitution, even the reform which the Government proposed to bring
about could not be brought about and implemented. Twenty-three times the
Constitution had been amended in 20 years. This also shows that this Constitution is a
bundle of contradictions.

In the Golak Nath case, they said that property rights cannot be touched.
As far as the eminent Judges in Gopalan's case saying that "the assumption that
certain articles in the Constitution exclusively deal with specific matters and in
determining whether there is infringement of the individual's guaranteed rights, the
object and form of the State action alone needs to be considered, and effects of the
law on fundamental rights of the individuals in general will be ignored cannot be
accepted as correct."

Shri R.K.Sinha, supported the Bill seeking to amend the Constitutional

provision. This amendment is coming after 3 or 4 years after the Golaknath case. In
that case Supreme Court reversed its earlier decision. The earlier judgment of the
Supreme Court was reversed by their own Judgment in the Golaknath case. So we see
the Courts can also reverse themselves. Why don't they agree that Parliament
representing the people of India can also change their decision ? There have been
certain implications of the decision in the case Golaknath case that Parliament is not
sovereign. How can we say, when we are fighting for a cause, that it is different: and

106
when we are entrusting power to the people of India, Government and the court
decisions in the Golaknath case, the Bank Nationalisation case and the Privy Purses
case. The people of India rejected those judgments and authorised us to write a
change into the Constitution, to restore and ressert our sovereignty, so that once again
that right may not be taken away from us.

We seem to be at cross purposes. I am proceeding on a very simple

proposition. If they review or reverse the Golaknath case judgment well and good.
But if the Golaknath case judgment is affirmed it means what we have sought to do
is ultra vices. That is the simple ratio in the Golaknath case is bad enough let us not
make it worse by an incorrect interpretation of that judgment here.

Shri M. Satyanarayan Rao he said First of all, I will speak two sentences in English. I
will first make it clear I am supporting this Bill wholeheartedly. We cannot afford to
have a static view of life for all times Socio-economic situations have undergone a
sea-change in the last few years. We cannot harp or the conditions that prevailed in
the pre-Independence days. We shall be failing our people if, with the transact given
to us, we do not work here for the amelioration of their sufferings and betterment of
their lives. We have, therefore, to start from this premise and view the Constitutional
provision in that angle and as and when necessity arises, change according to the
demands of the social order and times, Instead of criticizing his measure, we should
give it our whole-hearted support. 90 per cent of our people are wallowing in utter
penury. They have not so far had the opportunities for improving their lot. It is for
their sake that we have to bring such radical measures.

The question has been raised about the competence of Parliament to amend the
provisions of the Constitution. In my opinion, as elected representatives of the people
who are sovereign, we are empowered with all authority to engage ourselves in this
task, Just because the Supreme Court with a majority of one Judge had handed down a
judgment that Parliament had no power to amend these provisions of the Constitution,
we as the chosen representatives of the sovereign people, are not prevented from
exercising our rightful power. Therefore, I am convinced in my mind that this

107
Parliament is clothed with the powers of amending the Constitution to suit the
imperative requirements of our society.

Supreme Court Cases:

1) The aforesaid changes were made by the 25th Amendment Act in Art 31J to
nullify the effects of the judgment of the Supreme Court in R.C. Cooper v. Union of
India4 popularly known as Bank Nationalisation case. This case has been dealt with in
Chapter XI dealing with the Right to property. However it may be recalled here that
notwithstanding the fourth Amendment Act, the majority of judges in this case said
he Constitution guarantees a right to compensation-an equivalent of the property
expropriated-and the right to compensation cannot be converted into a loan on terms
which do not compare favorably with the prevailing commercial terms.

Since the majority judgment in Bank Nationalisation case had also held that any
law has to pass the test of Art. 19 (1) ( f) the Twenty-fifth Amendment Act seeks to
immunize acquisition from this clause also. But the most important change made by
the Twenty-fifth Amendment Act is the insertion of Art 31C to immunize legislation
undertaken for fulfilling the Directive Principles specified in Art. 39 (b) and (c) 6 .By
this Article, parliament and State legislatures have been given power to place the
Directive Principles specified in Cl.(b) and Cl.(c) of Art. 39, above the fundamental
Rights and a law giving effect to the policy for securing the principles of the aforesaid
two clauses shall not be void even if it contravenes.

2) Arts. 14, 19 and 31 of the Constitution. Another part of Art. 31C is that a
declaration by the legislature that the law is for giving effect to the policy contained in
Cl. (b) or CI. (c) of Art 39 would take it outside the scope of judicial review and the
law cannot be questioned in any court on the ground that it does not give effect to
such policy. With regard to the judicial attitude towards the Directive Principles vis-à-
vis fundamental Rights, in the earlier cases, viz., State of Madras vs Champakam
Dorairajan. State of Madras vs. C.R. Srinivasan. B. Venkataraman vs State of
Madras, the Courts had held that Directive Principles of State policy could not justify
any action by the State in derogation of fundamental Rights. However in later cases,
the Courts have taken due cognizance of the Directive principles. Thus in State of

108
West Bengal vs. Subodh Gopal Bos Jagannadas J. observed, the Court may not
ignore the Directive principles, as having no bearing on the interpretation of
constitutional problems since Art. 37 categorical states that it shall be the duty of the
State to apply these principles in making laws.

3) Similarly, in State of Bihar vs. Komeshwar Singh, the Supreme Court relied
upon the Directive principle incorporated in Art. 39 (b). On the basis of this Directive
principle, the Supreme Court held that certain Zamindari Abolition Acts had been
passed for a public purpose within the meaning of Art, 3l. The Courts have also held
that Directive Principles are relevant to consider what are reasonable restrictions
under Art. 19, Thus, a restriction which promotes one of the objectives of the
Directive Principles has been regarded by the Courts as reasonable. The aforesaid
cases establish that the Courts have taken cognizance of the fact that that Directive
principles of state policy are “fundamental in the governance of the country”.

After having restored to Parliament by the 24th Amendment Act. The all-
comprehensive amending power, i.e., the power to amend by way of addition,
variation or repeal any provision of the Constitution, the parliament passed the 25th
Constitution Act. This Amendment was necessitated by the judgment of the Supreme
Court in Bank Nationalization case. Besides making the question of compensation for
acquisition or requisitioning of property justiciable, the Supreme Court held in this
case, acquisition and requisitioning of property should also satisfy the requirements of
Art. 19(I) (f) Hence the 25th Amendment Act substituted a new clause for Cl. 2 is Art,
31 replacing the word compensation by the word amount i.e. it provides that, no
property shall be compulsorily acquired save for a public purpose and save try
authority of law which provides for acquisition or requisitioning the property For an
amount which may be fixed by such law or which may be determined in accordance
with the principles and given in such manner as may “be specified in such law It has
also inserted a new Cl. 2(B) which provides that no law which provides for
acquisition or requisitioning of property shall be challenged on the ground of
contravention of the right to property guaranteed by Art. 19(1) (f).

109
 In the judgment delivered in the fundamental Rights case it has been held that
substitution of the word ‘amount’ for compensation’ is valid. The validity of C1. 2(B)
inserted in Art. 31 has been unanimously upheld, Brief excerpts from the judgments
are as follows : S.M. Sikri C.J. opines: It seems to me that the change effected is
that a person whose property is acquired can no looser claim full Compensation for
just compensation but he can still claim that the law should lay down principles to
determine the amount which he as get and these principles most have rational relation
to the property sought to be acquired…. If I were to interpret Art. 31 (2) as meaning
that even an arbitrary or Illusory or a grossly low amount could be given, which
would shock not only the judicial conscience but the conscience of every reasonable
human being, a serious question would arise whether parliament has not exceeded its
amending power under Art 368 of the Constitution Although I am unable to
appreciate the wisdom inserting Cl. 2(B) in Art. 31 the effect of which is to make Art.
19(1) ( f) inapplicable, I cannot say it is an unreasonable abridgement of rights under
Art. 19(1)(f).

J.M, Shelat and A.N. Grover JJ opined that infixing the amount the legislature
has to act on principle- Judicial review on the ground of in adequacy of the amount
and the manner of payment is excluded. The expropriated owner still continues to
have a Fundamental Right… It is true that the ‘amount’ to toe paid to an owner not be
the market value, But the norm or the principles of fixing or determining the amount’
will have to be disclosed to the court. It will have to be satisfied the amount’ has
reasonable relationship with the value of the property acquired or requisitioned and
one or more the relevant principles have been applied not it has been fixed arbitrarily
nor at such a figure that it means virtual deprivation of the right under Art.3l (2)’ The
question of adequacy or inadequacy however, cannot be gone into as regards Cl.2(B)
inserted in Art. 31 which makes Art 19 (1) (f) inapplicable, there is no reason for
assuming that a procedure will be provided which will not be reasonable or will be
opposed to the rules of natural justice. Sec. 2 of the 25th Amendment Act can be
sustained on the construction given to it above.

K,S. Hegde and AC, Mukherjea JJ. have observed as follows If the expression
‘amount’ has no norm and is just what the parliament stipulates, there can be no
question of prescribing principles for determining that amount’;, nor is there any
110
scope for finding out its adequacy The legislatures are permitted under the amended
Art, 31 (2) either to fix the ‘amount’ to be paid in lieu of the property acquired or to
lay down the principles for determining: that ‘amount’. These two alternative methods
mast bring oat nearly the same result. If the relevancy of the principles fixed can be
judicially reviewed as indeed they must be in view of the decisions referred to earlier,
fail to see how the fixation of the ‘amount’, “which is the alternative method of
determining the recompense to be paid in lieu of the property taken is excluded from
judicial review…

P. Jaganmohan Reddy J opined ever since the Constitution fourth Amendment) Act,
this Court has consistently held that where what is given in lieu of expropriating
property of a citizen is illusory arbitrary, cannot be regarded as compensation, and
bears no reasonable relation to the property acquired, the Court can go into it, and
secondly where principles are determined for determining the compensation, it can
examine the question whether they are relevant to subject matter of the acquisition.
That position has not in any way been affected the amendment substituting the void
amount’ for Compensation so that if the amount is illusory or arbitrary and is such
that it shocks the conscience of any reasonable man, and bears no reasonable relation
to the value of the property acquired the Court is Dot precluded from examining it.

Y. V. Chandrachud J, observed that amended Aft. 31 (2) was valid but asserted the
Court’s power to question a law passed under the Act under certain circumstances.
His observations on the amended Art. 3 1 (2) are as follows :
Not only docs Art. 31 (2) not authorize the legislature to fix such amount as it
deems fit’ in accordance with such principles as it considers relevant, but It enjoins
the legislature by express words either to fix an ‘amount’ for being paid to the owner.
The specific obligation to pay ‘amount’ and in the alternative the use of the word
‘principles’ for determination of that amount must mean that the amount fixed or
determined to be paid cannot be illusory… as at present advised, I am inclined to the
view which as have said is unnecessary to discuss fully that though It. Is not open to
(2)f on the ground that the amount fixed or determined is not adequate* courts would
have the power to question such a law if the amount fixed the render is illusory if the
principles, if they are stated, for deterring the amount are wholly irrelevant for
fixation of the amount, if the power of compulsory acquisition or requisition is
111
exercised for a collateral purpose if the law offends constitutional safeguard Art 19
(i) (f) ; or, if the law is in the nature of a fraud the Constitution….As regards the new
Art. 31 (2B) I see no substance to the submission of the petitioner that the exclusion
of challenge under Art. 19(1) (f) to a law passed under Art. 3% (2) is bad as being in
violation of the principles natural justice…

A.N. Ray J.’s views are as follows After the substitution of the neutral expression
‘amount’ for compensation’ in Art. 31(2) by the Constitution 2 Amendment Act, the
article still binds the legislature to provide for the giving to the owner a son of money
either in cash or otherwise The constitution 25th Amendment Act states that the Law
no longer need provide for the giving of equivalent in value of the acquired property.
The quantum of the amount if directly fixed by the law and the principles for its
quantification are matters for legislative judgment The fulfillment of the Directive
Principles is in a sense more fundamental than the mere right to property Re-
adjustment in the social order may not be practicable in a smooth manner unless the
Directive principles are effectively implemented. The emergence of a new social
order is a challenge to present day civilization. If nations wanted independence and
supremacy in the latter half of the 19th century and the first half of the 20th century’
individual dignity» individual freedom, individual status in a well organized and well-
planned society are opening the frontiers since the mid-century. In this background
the 25th Amendment protects the law in one respect, to be measured by the standard of
equivalent in value to be measured the standard of equivalent value of the acquired
property. The quantum cannot be a matter for judicial review.

The views of H.R. Khanna J, on the amended Art, 31 (2) are as follows The
amendment in Art.31(2) made by the Twenty-fifth by substituted The word ‘compel
over the difficulty caused by the use of the word amount for the word compensation
is necessarily intended to get over the difficulty caused by the use of the word
‘compensation sensation As the said word was held W this Court to have a particular
connotation and was construed to mean just equivalent or full indemnification, the
amendment has replaced that word by the word ‘amount’ In substituting the word
‘amount’ for ‘compensation’, the amendment has sought to ensure that the amount

112
determined for acquisition or requisition of property need not be just equivalent or full
indemnification and may be. If the legislative so chooses, plainly inadequate’ It is not
necessary to farther dilate upon this aspect because whatever the connotation of the
word amount’ it would not affect the validity of the amendment made in Art.31(2).

Judicial review is indispensable for successful working of limited

Government. Courts of law act on principles of justice and the views expressed by
the courts are generally accepted by the bulk of the people. They are regarded as
better custodians of the interests of the people than the legislature for the following
reasons:
Firstly, a written Constitution, as a limitation, is adopted primarily to check the
tendency of a legislature to be arbitrary. Hamilton rightly pointed out in the that, the
representatives of the people in a popular assembly seem sometimes to fancy that they
are the people themselves, and betray strong symptoms of impatience and disgust at
the last sign of opposition from any other quarter; they always act with such
momentum as to make it very difficult for the other members of the Government to
maintain the balance of the Constitution.
Secondly, it is possible that a legislature might adopt measures which are
arbitrary or unreasonable. Hence judicial review is necessary to check the absolutism
of the legislature.
To conclude the appraisal of the judgment, it must be said that the majority
view that there are implied limitation on the amending powers of Parliament under
Art. 368 and that Art. 368 does not enable Parliament to alter the basic structure or
framework of the Constitution’ has introduced an element of rigidity barring changes
in the basic features even when deemed essential. No feature of the Constitution can
be considered eternal and inviolate, intended to be finally and immutably determined
once for all by the Constitution makers. Differentiation between essential and non-
essential features can be made only if the Constitution-makers make it expressly clear
in the Constitution itself. 51

51
Sarojini Reddy “ Judicial Review”, New-Delhi, National Publishing House, 1976, pp-325-26.

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