The Fundamental Rights Case : Propositions submitted before the Supreme Court
by N.A. Palkhivala,*
Cite as : (1973) 4 SCC (Jour) 1
WRIT PETITION NO. 135 OF 1970
IN THE MATTER OF :
HIS HOLINESS KESAVANANDA BHARATI . . Petitioner;
THE STATE OF KERALA AND ANOTHER . . Respondents.
Propositions regarding the true construction of Article 368 as it stood before the Twenty-fourth Amendment in 1971, in support of the submissions that:
(a) Parliament had no power to destroy or impair the essential features, the basic elements or the fundamental principles of the Constitution; and
(b) Article 368 did not prevail over or override Article 13.
1. The whole ratio of the majority judgments as well as the minority judgments in Golak Nath case1, turns entirely on the meaning to be attached to two words — the word ‘law’ in Article 13(2) and the word ‘amendment’ in Article 368. Therefore the crucial question is — what is the precise meaning to be attached to these two words. To start with any assumption that the word ‘amendment’ should be construed in its widest sense is to start with the answer instead of starting with the question.
2. The minority judgments in Golak Nath case, as also the earlier cases, proceeded on the assumption that the power of amendment dealt with by Article 368 was plenary. This assumption is wholly without foundation.
3. Article 368 referred only to the topic of constitutional amendment but was silent as to the subject-matter in respect of which the amending power could be exercised, and was equally silent as to the extent or width of the amending power.
4. It was only the proviso which enumerated the Articles the amendment of which required the concurrence of at least half the States. But even the proviso did not make it clear whether the institutions dealt with by it, e.g., the State legislatures and the High Courts, could be destroyed by Parliament in the exercise of its amending power with the concurrence of half the States.
5. Article 368 used the word “amendment” which is of the most elastic ambit; and the primary question is really of ascertaining the fair and reasonable meaning to be attached to that word in the context of Article 368, having regard to the genesis and general scheme of the Constitution, the basic constitutional structure behind the text of the constitutional document, and all other relevant circumstances which will be adverted to later.
6. It is clear beyond doubt that one of the well-settled meanings of the word “amend” is that which would preclude the power to alter or destroy the essential features, the basic elements, the fundamental principles of the Constitution; and it is submitted that the word “amendment” bore that meaning in Article 368. There is inherent evidence within the Article itself to support this view:
(a) Whereas the Constitution is given by the people unto themselves, the power to decide upon amendments (with or without the concurrence of half the States) is given to the five-year Parliament which is merely a creature of the Constitution. This point is of such profound significance that it will be elaborated later as a separate topic.
(b) Article 368 did not start with the non-obstatne clause “notwithstanding anything in this Constitution”.
(c) Article 368 was drafted in a very low key. It used the word “amendment” simplicitor whereas even less significant amending powers in the other parts of the Constitution use the words “add” “alter” “repeal” or “vary”, in addition to the word “amend”. SeeArticles 31-B; 35(b); 252(2); 372; 372-A(2); V Schedule Para 7 and VI Schedule Para 21. Further, Article 368 merely talked of “an amendment of this Constitution” and did not extend the amending power to “all or any of the provisions of this Constitution”.
(d) On the construction of the word “amendment” suggested by the Respondents, all fundamental rights could be taken away by Parliament by the requisite majority, whereas much less significant matters required the concurrence of at least half the States under the proviso to the Article. The basic human freedoms are of the most fundamental importance to all the States and to all their citizens. For instance, every State is interested in ensuring that Articles 14, 15 and 16 are respected and its citizens are not discriminated against, and that its religious and linguistic minorities are protected under Articles 29 and 30. Likewise, Article 32 is of no less importance to the citizens of the States than Article 226. Is it conceivable that while the Constitution required the States’ concurrence for matters of much less moment, it intended the essential features of the Constitution (which included the basic human freedoms) to be entirely at the mercy of a two-thirds majority at the Centre?
(e) Under Article 368, the assent of the President to the Bill was necessary before the Constitution could stand amended. Under Article 60 the President has to take an oath that he will “preserve, protect and defend the Constitution”. Any proposed amendment which struck at the core of the Constitution would require the President, if he was true to his oath, to refuse his assent. It is reasonable to assume that the Constitution did not intend to create a constitutional crisis by permitting Parliament to destroy all or any of the basic features of the Constitution and by enjoining the President at the same time to be true to his oath and preserve, protect and defend the Constitution by refusing assent. On the other hand, on the construction put by the Petitioners on the word “amendment”, such glaring inconsistency between the President’s oath and the Parliament’s power is avoided.
(f) Article 368 deals only with “amendment of this Constitution”. The preamble is not a part or provision of the Constitution. (1960) 3 SCR 250, 282. (See also Annexure “I” in which the same view is expressed about the preamble to the United States Constitution). Therefore, the preamble cannot be amended under Article 368. Secondly, the very nature and contents of the preamble are such that it is incapable of being amended. It refers to the most momentous event in India’s history and sets out what the people of India resolved to do for their unfolding future. No Parliament can amend or alter past history.
If the preamble is unalterable, it necessarily follows that those features of the Constitution which are necessary to give effect to the preamble, are unalterable. Fundamental Rights are intended to give effect to the preamble, (1959 SCR 995, 1018-9). They cannot be abridged or taken away.
(g) It is most important to note that the provisions of Article 368 itself can be amended under that very Article. If the word “amendment” is to be read in the widest sense contended for by the Respondents, Parliament would have the power to get rid of the requisite majority required by Article 368 and make any constitutional amendment possible by a bare majority. Further, Parliament would have the power to reduce India to a status which is neither sovereign nor democratic nor republican, and where the basic human rights are conspicuous by their absence. After doing that Parliament may —
(i) repeal Article 368 and expressly provide that the Constitution should hereafter be unamendable, or
(ii) amend Article 368 and provide for, say, 99 per cent majority for future amendments of the Constitution including any future amendment of Article 368 itself.
7. For the foregoing reasons, which are based upon the provisions of Article 368 itself, apart from other significant reasons which will be adverted to later, it is submitted that Article 368 should not be read as expressing the death-wish of the Constitution or as a provision for its legal suicide. It is fairly clear that Parliament cannot arrogate to itself under Article 368 the role of the Official Liquidator of the Constitution.
Propositions on behalf of the Petitioners regarding the true construction of Article 13 as it stood before the 24th Amendment in 1971; in support of the submissions that—
(a) constitutional amendment, whether under Article 368 or otherwise, was “law” within Article 13(2) and was void to the extent to which it contravened Fundamental Rights; and
(b) Article 368 did not prevail over or override Article 13.
I. Article 13(1) and (2) is not redundant
It is a misconceived argument that Article 13(1) and (2) is redundant and, therefore, the question whether Parliament can abridge Fundamental Rights by constitutional amendment should be decided without reference to Article 13(2). The observations of Kania, C.J., in the Gopalan case, 1950 SCR 88 at 100, which are passing observations made in discussing the provisions of the Constitution generally, have been explained by Hidayatullah, J., in the Sajjan Singh case (1965) 1 SCR 933 at 961. So far from being redundant, Article 13 serves the most useful purpose of dealing clearly and comprehensively with the four dimensions of the bar which it imposes—
(a) the authorities against whom the bar is imposed;
(b) the categories of law to which it applies;
(c) the laws in point of time which it covers; and
(d) the effect of the bar.
These four aspects are dealt by Article 13 as follows:
(a) The bar is imposed against the State, i.e. the totality of all the forces of the State, even including statutory corporations and autonomous authorities. See Rajasthan State Electricity Board v.Mohanlal, (1967) 3 SCR 377, 385.
(b) All categories of law are covered by the bar — from the highest (constitutional amendments) to the humblest (bye-laws); and all executive Orders and Notifications are equally covered Article 13(2).
(c) All laws in force under Article 372 and all laws to be brought into force at any future date are brought within the scope of the bar.
(d) The effect of the bar is to render the law absolutely void, so as to leave no room for the U.S. theory of a law being “relatively void”Behram Khurshed Pesikaka v. State of Bombay, (1955) 1 SCR 613, 651-4.
To say that Article 13(2) is superfluous in the context of the alleged power to take away Fundamental Rights by constitutional amendments, is to beg the question. The primary purpose of Article 13(2) is to prohibit the making of any law, including constitutional law, which takes away or abridges Fundamental Rights. The Preamble makes it clear that the object of the Constitution is to secure the basic human freedoms, and this security or guarantee would be meaningless if the legislatures against whom the guarantees operate is itself at liberty to abrogate the guarantees.
II. “Constitution as by law established“
It is clear beyond doubt, and is admitted in the minority judgments in the Golak Nath case, (1967) 2 SCR 762, at 907 and 930, and in the earlier judgments in the Sankari Prasad case, 1952 SCR 89 at 106, and the Sajjan Singh case, (1965) 1 SCR 933 at 950-1, that the word ‘law’ is comprehensive enough to include both ordinary law and constitutional law. But it is sought to be argued that —
(a) the result of an exercise under Article 368 is not a ‘law’, and
(b) that the word ‘law’ in Article 13(2) does not include constitutional law or constitutional amendment.
As regards argument (a) referred to above, it is submitted that the proposition that upon the procedure laid down in Article 368 being followed, the end-product is not a ‘law’, is erroneous.
The forms of oath in the Third Schedule refer to “Constitution as by law established”. These words postulate —
(a) that the Constitution itself was originally established by law; and
(b) that every amendment thereto has likewise to be established by law in order that it may take effect. This necessarily involves and implies that every Amending Act under Article 368 is a ‘law’.
The decisions of the Privy Council in McCawley v. King, 1920 AC 691 and The Bribery Commissioner v. Ranasinghe, 1965 AC 172, establish that constitutional amendment is a ‘law’, whether it is a controlled Constitution or whether there is a sovereign legislature under an uncontrolled Constitution.
As regards argument (b) noted above, it is submitted that there is no basis for the suggestion that the word ‘law’ in Article 13(2) has to be read in a restricted sense so as to exclude constitutional amendments. On the contrary, there are overriding considerations, set out below, which warrant the conclusion that the ‘law’ contemplated by Article 13(1) and (2) is every category of law, including constitutional law.
III. Article 13(1) covers constitutional law
Article 13(1) enacts that all laws in force immediately before the commencement of the Constitution are void to the extent of their inconsistency with the Fundamental Rights. Article 395 repealed the Indian Independence Act, 1947, and the Government of India Act, 1935, but not the constitutional laws of the Indian States or some other constitutional laws of British India. The Privy Purse caseMadhav Rao Scindia v. Union of India,2 establishes that the Covenants and the Merger Agreements entered into by the Rulers with the Dominion of India were constitutional law; in fact, they have been called in the aforesaid case “Constitutions in little”. These Covenants and Merger Agreements were in force at the commencement of the Constitution and they continued to remain in force. Further, in some of the States, the line between constitutional law and non-constitutional law was blurred, since the Ruler has absolute powers to take any legislative or executive action. Several laws of Indian States, constitutional as well as ordinary, continued after the commencement of the Constitution under Article 372:
See AIR 1960 Supreme Court 1312, Paras 3 and 15: (1961) 1 SCR 957, 962-3: AIR 1954 Supreme Court 680: 1953 SCR 404, 412.
It is fairly clear that such constitutional laws, which stood unrepealed, would be void under Article 13(1) to the extent of their inconsistency with Fundamental Rights. This means that the expression “all laws in force” in Article 13(1) would include constitutional law. The word ‘law’ in Article 13(2) could not have a different meaning. Therefore, the word ‘law’ in Article 13(2) included constitutional amendments.
It is further submitted that even assuming there had been no constitutional laws in force at the commencement of the Constitution which would be void under Article 13(1), that would be merely a fortuitous circumstance and would not derogate from the validity of the proposition that the word ‘law’ in ‘Article 13(1) and the word ‘law’ in Article 13(2) included constitutional law. Since quite obviously all former constitutional laws throughout India were not repealed by Article 395, it must be held that when drafting Article 13(1) it was intended that the former constitutional laws should be hit by that Article.
IV. No limitation on the word ‘law‘ in Article 13(2)
The Preamble, the scheme of the Constitution, the historical background, the intrinsic evidence of the solemn guarantees in Part III as well as the intrinsic evidence in other provisions dealing with constitutional amendments, all lead to the inference that the word ‘law’ in Article 13(2) was used in its ordinary sense as embracing constitutional law and there is no reason for reading the word in a restricted sense so as to confine it to ordinary laws. The Petitioner’s argument merely requires the word ‘law’ to be used in its ordinary sense without the addition of any limiting words.
The real question is not whether there are any words of limitation in Article 368, but whether there are any words of limitation in Article 13(2). The minority decisions in the Golak Nath case, which refuse to read a limitation upon the words of Article 368 overlook that their own view reads a limitation upon the wide word ‘law’ in Article 13(2). If a limitation has to be read in either of these two Articles, there is no reason why it should be read in such a way as to enable Parliament to destroy Part III which is the foundation on which the fabric of the Constitution is reared.
V. Constitutional amendments under Articles 4 and 169 and Schedules V and VI
The argument that the word ‘law’ in Article 13(2) excludes constitutional law or constitutional amendment, is inconsistent with the scheme of the Constitution. The Parliament has power under Articles 4 and 169, and Para 7 of Schedule V and Para 21 of Schedule VI, to make amendments to the Constitution by a bare majority and without following the procedure laid down in Article 368. If the word ‘law’ in Article 13(2) does not cover constitutional amendments ex hypothesi it would not cover constitutional amendments made under the aforesaid provisions of the Constitution by a bare majority. The consequences of this view are so starting as to be patently unacceptable:
(a) If Article 13(2) does not operate as a bar, then under Article 4 read with Article 2 or 3 Parliament would have the power to create a new State and amend the Fourth Schedule so as to give the new State no representation in the Council of States or a representation which is indisputably unfair and which denies to the inhabitants of that State equality before the law as compared to the inhabitants of other States.
(b) If Article 13(2) does not apply, amendments could be made in the Fifth Schedule which deals with the administration of Scheduled Areas, to provide that none of the Fundamental Rights shall apply to the Scheduled Areas. Or, a provision could be made in Para 5 of the Fifth Schedule that the Governor shall have the power to make regulations denying to Scheduled Tribes the right to move freely throughout the territory of India and confining them to certain ghettos as Negroes are confined in South Africa, or denying the Scheduled Tribes all religious freedom and prohibiting them from worshipping their Tribal Gods.
(c) The Sixth Schedule which deals with the administration of Tribal Areas in Assam could likewise be amended to enable laws to be made or executive action to be taken in those areas, which may be patently inconsistent with Fundamental Rights.
Thus on the Respondent’s construction of the word “law” in Article 13(2) as excluding constitutional amendments, Parliament would have the power to reduce the Scheduled Tribes under the Fifth Schedule and the Assam Tribes under the Sixth Schedule to the level of second-class citizens and deny them the most elementary civil liberties — and that too by legislation passed by a bare majority like any ordinary law. The Constitution is reduced to an absurdity when an ordinary law of Parliament passed by a bare majority injuriously affecting the aforesaid Tribes would be void as violating Fundamental Rights; but the same law passed by the same bare majority and by exactly the same procedure would be valid if it seeks to incorporate those violations in Schedule V or VI. Correctly speaking, there is no difference between ordinary legislative power and constituent power in such a case. The Indian Constitution is undoubtedly a controlled Constitution. To say that under a controlled constitution a law prohibited by constitutional limitations can yet be passed as a constitutional amendment by a bare majority, is a contradiction in terms.
It is submitted that this is a conclusive argument which clinches the issue. Article 13(2) has necessarily to be read as including constitutional amendments made, for example, in exercise of the power conferred by Para 7 of Schedule V and Para 21 of Schedule VI. If such constitutional amendments were covered by the word ‘law’ in Article 13(2), it must obviously follow that constitutional amendments under Article 368 were also included and that the word ‘law’ in Article 13(2) embraced all constitutional amendments as much as ordinary law.
It is significant to note that even the 24th Amendment has merely added the following clause to Article 13:
“(4) Nothing in this Article shall apply to any amendment of this Constitution made under Article 368.”
This means that constitutional amendments under Articles 4 and 169, Para 7 of the Fifth Schedule and Para 21 of the Sixth Schedule are still within the ambit of Article 13; and consequently the word ‘law’ in Article 13(2) did include and continues to include constitutional amendments.
VI. Consequences of the contrary view
If constitutional law is not covered by the word “law” in Article 13(2), the integrity of India and the “unity of the nation” referred to in the Preamble would be directly at stake. The Fundamental Rights could be amended so as to make them applicable to certain parts of India and not to others, to certain communities of India and not to others. Overtly favourable treatment could be given to the members of a political party, as is done in several other countries, and not to the rest of the citizenry. The South would be at the mercy of the North; minorities at the mercy of the majority; secularism at the mercy of religious fanaticism; and the process of disintegration of the Republic could well begin. The Petitioner’s submission, giving a fair and natural meaning to the word ‘law’ in the context of Article 13(2), denies to Parliament the power of reducing the Constitution to a caricature of its present self.
If Parliament has an unfettered power of amendment, as claimed by the Respondent, even the two-thirds majority in Article 368 could be reduced to a bare majority, and the Fundamental Rights would thereafter be without any safeguard whatsoever. Alternatively, an amendment could be made in Part III to provide that if a Parliamentary Act or a State law starts with a declaration that the Fundamental Rights shall not apply to that law, such a law cannot be challenged on the ground of violation of any of the Fundamental Rights. In fact, the 25th Amendment is one category of such a law.
VII. Evidence of proceedings before the Constituent Assembly
The proceedings before the Constituent Assembly support the Petitioner’s viewpoint:
(a) On April 29, 1947, an interim report on Fundamental Rights was placed before the Constituent Assembly and there was a debate on that interim report (see Constituent Assembly Debates, Vol III, pp. 399 to 436). On April 29, 1947, Shri K. Santhanam moved an amendment in Clause 2 which corresponded to the present Article 13 as follows:
“Shri K. Santhanam: Sir, I gave notice of an amendment but I will move it in a somewhat modified form in terms of a suggestion made by Sardar Patel. I move that in Clause 2 for the words ‘nor shall the Union or any unit make any law taking away or abridging any such right’, the following be substituted:
‘Nor shall any such right be taken away or abridged except by an amendment of the Constitution.’
The only reason is that if the clause stands as it is then even by an amendment of the Constitution we shall not be able to change any of these rights if found unsatisfactory or inconvenient. In some Constitutions they have provided that some parts of the Constitution may be changed by future constitutional amendments and other parts may not be changed. In order to avoid any such doubts I have moved this amendment and I hope it will be accepted.
The Hon’ble Sardar Vallabhbhai Patel: Sir, I accept the amendment” (Constituent Assembly Debates, Vol. III, pp. 415-6).
In the draft prepared by the Constitutional Advisor in October 1947, Clause 9(2) corresponding to the present Article 13(2) was so worded as to exclude constitutional amendments from being rendered void under that article:
“(2) Nothing in this Constitution shall be taken to empower the State to make any law which curtails or takes away or which has the effect of curtailing or taking away any of the rights conferred by Chapter II of this Part except by way of amendment of this Constitution under Section 232 and any law made in contravention of this sub-section shall, to the extent of the contravention, be void.
But the Drafting Committee omitted the words excluding constitutional amendments, and in the draft Constitution as settled by the Drafting Committee, constitutional amendments were not excluded from the bar of Clause 8(2) corresponding to the present Article 13(2):
“(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;”
(b) Pt. Jawaharlal Nehru referred to Fundamental Rights as “something that you want to make permanent in the Constitution” and Dr. Ambedkar referred to them as being excluded from the ambit of Article 368 (1967 Vol. 2 SCR 762 at 791-2)(SeeConstituent Assembly Debates, Vol. III, pp. 465-6 andConstituent Assembly Debates, Vol. IX, p. 1661).
(c) All the living members of the Committee of the Constituent Assembly, which was entrusted with the task of drafting the Chapter on “Fundamental Rights”, are unanimously of the view that they intended the Fundamental Rights to be beyond the reach of parliamentary majorities. (Writ Petition No. 135 of 1970, Vol. II, pp. 99-100).
VIII. Inalienable natural rights
The Fundamental Rights, with very few exceptions, are inalienable natural rights. Since the rights embodied in Part III are inalienable, it must necessarily follow that they cannot be taken away by Parliament by law, whether the law is entitled “Constitution Amendment” or is labelled as ordinary law.
“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s rights to life, liberty and property, to free speech, a free press, freedom of worship and assembly, and other Fundamental Rights may not be submitted to vote; they depend on the outcome of no elections.” Per Jackson in West-Viginia State Board of Education v. Barnette, (1943) 87 L Ed 1628 at 1638: 319 U.S. 624 at 638.
“The great purposes of the Constitution do not depend on the approval or convenience of those they restrain.” Jackson, Erresonv. Board of Education, 330 US 1, 28.
“Man being what he is, cannot safely be trusted with complete immunity from outward responsibility in depriving others of their rights. At least such is the conviction underlying our Bill of Rights.” Frankfurter: Joint Antifascist Ref. Comm.v. McGrath, 341 US 123, 171.
“Our protection against all kinds of fanatics and extremists, none of whom can be trusted with unlimited power over others, lies not in their forbearance but in the limitations of our Constitution.” Jackson:American Comm. Assn.v. Douds, 339 US 382, 439.
When we are dealing with the Fundamental Rights, “we are dealing with principles of liberty and justice ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental’ — something without which ‘a fair and enlightened system of justice would be impossible’.” Frankfurter: West Va. State Board of Education v. Barnette, 319 US 624, 652.
If the basic human rights are to be fundamental and not fragile, it is impossible to hold that they can be abolished by an Act of Parliament merely by being called a Constitutional Amendment Act. A constitutional limitation would be no limitation at all if Parliament can do away with the limitation at its will. Constitutional guarantees which are away from extinction only by a bare majority or a two-thirds majority of a five-year Parliament are no guarantees at all.
Further, the opposite view involves the inexplicable anomaly that a five-year Parliament which even by a unanimous vote cannot abridge a single Fundamental Right by ordinary law, can repeal by a requisite majority the entire Chapter on Fundamental Rights merely by calling the law a Constitutional Amendment.
IX. Freedoms reserved by the people for themselves
Our Constitution is given by the people, in the exercise of their sovereignty unto themselves:
1954 SCR 541 at 555;
(1960) 3 SCR 250 at 281-2.
The Fundamental Rights are merely the expression of the basic freedoms reserved by the people for themselves:
(1967) 2 SCR 762 at 792;
1950 SCR 88 at 198.
If the freedoms are reserved by the people for themselves, all the functionaries and agencies under the Constitution have to respect those freedoms and, ex hypothesi, no functionary or agency can destroy those freedoms.
X. Reference to “the State“ in Article 13(2)
Article 13(2) imposes a limitation on the power of “the State” which is a term of the largest possible import. The significance of the word “State” is vital to the present case. Part III gives protection to the citizen and guarantees him the basic human rights against the totality of all the forces of the State. If the State in its most comprehensive sense cannot make a law to take away or abridge Fundamental Rights, Parliament which is only one of the functionaries or agencies of the State cannot pass such a law under Article 368. In other words, when the State, i.e. the totality of all the legislative and executive forces throughout India, is interdicted from passing a certain law, it is not possible to exclude or exempt constitutional amendments. The all-comprehensive concept of the State harmonises with the all-comprehensive concept of the ‘law’ in Article 13(2). The juxtaposition contemplated by Article 13(2) is not of “Parliament” and “ordinary law”, but of all agencies comprised in the State and all branches of the law.
XI. Fundamental Rights exist even in times of Emergency
Even in times of crisis when a Proclamation of Emergency is issued, all Fundamental Rights continue to be in force except those dealt with by Article 19, and even the provisions of Article 19 are merely suspended and not abrogated during the period of Emergency (Article 358). Further, when the Proclamation of Emergency is in operation, the President has the power under Article 359 to suspend the enforcement of the Fundamental Rights in a court of law, but the Rights continue to exist and can be enforced after the Emergency ceases. It is inconceivable that the same Constitution which intended the Fundamental Rights to remain in existence even during the period of Emergency, at the same time intended to empower any five-year Parliament to take away those Rights altogether in normal times.
Propositions on behalf of the Petitioner on the point that in the exercise of its amending power under Article 368, Parliament cannot alter or destroy the essential features of the Constitution:
1. It has been already submitted that just as there are inherent and implied limitations on the legislative power to make ordinary laws, e.g. the unexpressed limitation which disentitles the legislature to encroach upon the judicial domain, —
(1971) 1 SCR 288, 294-7: (1970) 2 SCC 280;
(1970) 3 SCR 745, 751: (1970) 1 SCC 509;
(1970) 1 SCR 388, 392-3: (1969) 2 SCC 283;
(1967) 1 AC 259, 287, 288, 290 (PC);
1940 IR 136.
1950 IR 67.
Lane’s: The Australian Federal System, 1972, pp. 4, 94-5.
there are, likewise, inherent and implied limitations on the other species of legislative power, i.e. the power to make amendments to the Constitution.
2. These inherent and implied limitations disentitle Parliament to alter or destroy any of the essential features, basic elements or fundamental principles (hereinafter called “the essential features” or “essential elements”) of the Constitution. However, Parliament may amend them without altering or destroying them.
3. The principle of inherent or implied limitations on Parliament’s power to amend a controlled Constitution stems from three basic features which, by definition, must be present in every controlled Constitution of a Republic:
(a) The ultimate legal sovereignty resides in the people.
(b) Parliament is only a creature of the Constitution.
(c) The power to alter or destroy the essential elements of a Constitution is an attribute of ultimate legal sovereignty.
If Parliament has the power to destroy the essential elements, it would cease to be a creature of the Constitution, the Constitution would cease to be controlled, and all the other institutions and authorities under the Constitution would be entirely at the mercy of a single institution, viz. Parliament.
A power given by the Constitution cannot be construed as authorising a destruction of other powers given in the same instrument — and this rule applies a fortiori to the power of amendment.
4. It is true that the borderline cannot be precisely drawn between amendments which would be valid and those which would be invalid on the principle that the essential features are beyond Parliament’s amending power; nor would it be possible to specify exhaustively the amendments which would be invalid on that principle. But that is no argument against accepting the aforesaid principle:
“. . .In modern times opinions have sometimes been expressed to the effect that natural justice is so vague as to be practically meaningless. But I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist. The idea of negligence is equally insusceptible of exact definition, but what a reasonable man would regard as fair procedure in particular circumstances and what he would regard as negligence in particular circumstances are equally capable of serving as tests in law, and natural justice as it has been interpreted in the courts is much more definite than that. . . .”
Per Lord Reid, Ridge v. Baldwin, 1964 AC 40 at 64-5.
“But such a lack of generality in criminal legislation need not, of itself, involve the judicial function, and Their Lordships are not prepared to hold that every enactment in this field which can be described as ad hominem and ex post facto must inevitably usurp or infringe the judicial power. Nor do they find it necessary to attempt the almost impossible task of tracing where the line is to be drawn between what will and what will not constitute such an interference. Each case must be decided in the light of its own facts and circumstances, . . .”
Per Lord Pearce, Liganage v. Queen, (1967) 1 AC 259 at 289-90.
In re Delhi Laws Act, 1912, 1951 SCR 747, this Hon’ble Court held that the essentials of a legislative function could not be delegated, although it is not possible to enumerate precisely what those essential principles are nor is it possible to specify exhaustively those elements of legislation which cannot be delegated.
5. The following are some of the essential features of the Constitution:
(i) The supremacy of the Constitution. Ours is a controlled “Constitution” par excellence. All institutions, including Parliament, are merely creatures of the Constitution and none of them is its master.
(ii) The Sovereignty of India. This country cannot be made a satellite, colony or dependency of any foreign country.
(iii) The integrity of the country. The unity of the nation, transcending all the regional, linguistic, religious and other diversities, is the bed-rock on which the constitutional fabric has been raised.
(iv) The democratic way of life, which connotes much more than merely the people’s right to vote and elect representatives to power. In totalitarian, authoritarian and Fascist countries also, the people have such a right to vote and elect, but the equal freedom to choose between different parties and the freedom to oppose are denied.
(v) The Republican form of Government. India cannot be transformed into a monarchy.
(vi) The guarantee of basic human rights to all its citizens to ensure JUSTICE, social, economic and political; LIBERTY of thought expression, belief, faith and worship; EQUALITY of status and of opportunity. These rights are categorised and elaborated as Fundamental Rights in Part III of the Constitution. Parliament cannot damage or abrogate the essence of any of these rights. (See, further, the Annexure.)
(vii) A secular State, that is, a State in which there is no State religion.
(viii) A free and independent judiciary. Without it, all other rights would be writ in water.
(ix) The dual structure of the Union and the States. Entries in the Legislative Lists or other powers may be transferred from the Union to the State or vice-versa, but not so as to imperil the existence of either the Union or the States.
(x) The balance between the legislature, the Executive and the judiciary. None of the three organs can use any of its power to destroy the powers of the other institutions, nor can any of them abdicate its power in favour of another.
(xi) A Parliamentary form of Government as distinct from a Presidential form of Government.
(xii) The amendability of the Constitution as per the basic scheme of Article 368. That article itself can be amended but not so as to destroy its basic scheme. For instance, Article 368 cannot be amended so as to —
(a) empower Parliament to alter or destroy any of the essential features of the Constitution;
(b) make the Constitution literally or practically unamendable;
(c) make it generally amendable by a bare majority in Parliament;
(d) confer the power of amendment either expressly or in effect on the State legislatures;
(e) delete the proviso and deprive the States of the power of ratification which is today available to them in certain broad areas.
The Historical Background regarding Fundamental Rights
The historical background is of great importance. The difference in basic approach, which results in some Constitutions having guaranteed fundamental rights and others not having them, “may be traced mainly to the spirit and genius of the nation in which a particular Constitution has its birth” (See McCawley v. King, 1920 AC 691 at 703). The history of India prior to the promulgation of the Constitution, has perhaps not been paralleled in its essential features in any other country:
(a) For several decades the national leaders had been struggling to achieve independence and had envisaged a Constitution for free India which would provide basic human rights which could not be withdrawn under any circumstances. (See Granville Austin’s: “The Indian Constitution: Corner-stone of a Nation“, pp. 52-59, reproduced in the Compilation filed on 23rd November, 1972).
(b) India was to become a free democracy for the first time in its 5000 years old history. Since freedom had not become a way of life in this country, the basic human rights had to be carefully protected and preserved.
(c) The country was welded together into one nation under one Central legislature for the first time in its history. The fundamental rights represented the solemn balance of rights between citizens from various parts of India, “the fundamental conditions on whichinter se they accepted the Constitution” (Cf. Bribery Commissioner v. Pedrick Ranasinghe, 1965 AC 172 at 193-4).
(d) A sense of security and safety had to be created in the minds of the people when there were such tremendous diversities of religion, race, caste, creed, language, culture, etc., particularly in the minds of the religious and linguistic minorities.
(e) Economic and political thinking in the country ranged from antiquated feudalism to extreme leftism, and the necessity arose of putting the Fundamental Rights beyond the reach of the party in power and the State.
Since the question essentially is as to the intention of the founding fathers of the Constitution — did they intend that Parliament should have the power to destroy fundamental rights? — the above background is not only relevant but significant on the question as to the real intention.
The makers of the Constitution had a large number of foreign models before them in which there were provisions for amending the essential features of the Constitution by means of Referendum and other modes of ascertaining the wishes of the people in whom the ultimate legal sovereignty resides. The absence of any such provision in our Constitution clearly shows that the founding fathers of our Constitution did not want to provide in the original Constitution itself any channel for altering or destroying the basic constitutional structure. It is inconceivable that they intended to empower Parliament to destroy any of the essential features of the Constitution. In particular, it is inconceivable that after having provided the most complete and comprehensive guarantees of the basic human freedoms known to any Constitution of the world, the Constitution-makers still intended that any Parliament for the time being in session may take away or abridge all or any of those basic freedoms.
Propositions on behalf of the Petitioner on the necessity of taking into account the consequences of each of the rival contentions regarding the width of the power of amendment, the question of abuse of power being wholly irrelevant to the issue of the true scope of the power.
The word used in Article 368 is “amendment”, a word of ambiguous import and elastic ambit. The principle of inherent and implied limitations means deducing what is left unsaid from what is said, and perceiving what is implicit in the express provisions and scheme of the instrument. The entire attempt is to fathom the true intention of the Founding Fathers of the Constitution.
The submission of the Petitioner is that —
(a) according to one of the well-settled meanings of the word “amend”, the power of amendment in Article 368 does not comprise the power to alter or destroy any of the essential features, basic elements or fundamental principles of the Constitution (hereinafter called “essential features”);
(b) in any event there are inherent and implied limitations on the power.
The Respondents controvert both (a) and (b). They submit that the power of amendment comprehends the power to alter or destroy the essential features; that there are no inherent or implied limitations; and that the power is absolute and limitless.
Thus this Hon’ble Court has to decide upon; (i) the meaning of the word “amendment” and (ii) the existence of inherent and implied limitations. The conclusion on these two distinct questions would resolve the most crucial issue arising in the case —
the scope and width of the power of amendment.
In ruling on this most crucial issue, it is not only desirable but imperative to consider the consequences of the plea of limited power and also of the plea of limitless power. To form a value judgment on this central point while ignoring the consequences of each rival view, is to form no value judgment at all. The Constitution is an organic whole and presents an integrated scheme; and it is judicially impossible to determine the width of one power without considering its effect on other powers and institutions.
The test of the true width of a power is not how probable it is that it may be exercised, but what can possibly be done under it.
The question of abuse or misuse of power is entirely irrelevant. To say that taking into account consequences involves consideration of abuse of power is to confuse the extent of power with its exercise, and its scope with the manner of its use. When the question is as to the width of the power, the hope and expectation that it will never be used is as wholly irrelevant as an imminent danger of its use.
Propositions on behalf of the Petitioner regarding the Constitution (Twenty-fourth Amendment) Act, 1971.
The Twenty-fourth Amendment has sought to achieve five results:
(i) It has inserted an express provision in Article 368 to indicate that the source of the amending power will be found in that Article itself.
(ii) It has made it obligatory on the President to give his assent to any Bill duly passed under that Article.
(iii) It has substituted the words “amend by way of addition, variation or repeal. . . . “in place of the bare concept of “amendment” in the original Article 368.
(iv) It makes explicit that when Parliament makes a constitutional amendment under Article 368 it acts “in exercise of its constituent power.”
(v) It has expressly, provided, by amendments in Articles 13 and 368, that the bar in Article 13 against abridging or taking away any of the Fundamental Rights should not apply to any amendment made under Article 368.
The petitioner does not dispute that the amendments covered by (i) and (ii) above are within the amending power of Parliament.
If the amendments covered by (iii) and (iv) above are to be construed as empowering Parliament to exercise the full constituent power of the people themselves, and as vesting in Parliament the ultimate legal sovereignty of the people, and as authorising Parliament to alter or destroy all or any of the essential features, basic elements and fundamental principles of the Constitution (hereinafter called “essential features”), the amendments must be held to be illegal void.
Likewise if the amendment covered by (v) above is construed as authorising Parliament to damage or destroy the essence of all or any of the Fundamental Rights, the amendment must be held to be illegal and void.
If the aforesaid construction is correct, it is submitted that the Twenty-fourth Amendment would be void and illegal for the following reasons:
(1) A creature of the Constitution cannot increase its own constituent power
The limited power of Parliament to amend the Constitution conferred by Article 368 prior to the Twenty-fourth Amendment is hereinafter referred to as “the constituent power”.
A creature of the Constitution, as the Parliament is, can have only such constituent power as is conferred by the Constitution which is given by the people unto themselves. While purporting to exercise that constituent power, Parliament cannot increase that very power. No doubt, Parliament had the power to amend Article 368 itself, but that does not mean that Parliament could so amend Article 368 as to change its own constituent power beyond recognition. A creature of the Constitution cannot enlarge its own power over the Constitution, while purporting to act under it, any more than the creature of an ordinary law can enlarge its own power while purporting to act under that law. The power of amendment cannot possibly embrace the power to enlarge that very power of amendment, or to abrogate the limitation, inherent or implied, in the terms on which the power was conferred. The contrary view would reduce the whole principle of inherent and implied limitations to an absurdity.
(2) A creature of the Constitution cannot arrogate to itself the power to alter or destroy the essential features of the Constitution
In any view of the matter, Parliament as a functionary created under the Constitution had no competence so to amend the Constitution as to empower itself to alter or destroy the essential features of the Constitution. If the Twenty-fourth Amendment does confer such a power on Parliament, it would mean that, instead of the Constitution continuing to be supreme, it is now Parliament which is supreme and the Constitution is made subservient. In other words Parliament which is constituted under the Constitution has purported to make itself the master of the Constitution instead of being the functionary or creature of the Constitution as it was before the amendment, and has converted the controlled Constitution into an uncontrolled Constitution.
On the aforesaid construction, what Parliament has actually purported to do in the Twenty-fourth Amendment is to effect a silent revolution, since it has sought to overthrow the supremacy of the Constitution and make itself supreme. The fact that the revolution has been silent, peaceful and unperceived, does not make it anytheless a revolution. Revolution is the only word to denote the substitution of one supremacy for another and to indicate the transfer of the ultimate legal sovereignty from the people to Parliament which is sought to be done by the Twenty-fourth Amendment. “An attempt by the majority to change the fundamental law in violation of self-imposed restrictions is unconstitutional and revolutionary” (American Jurisprudence, Vol. II, Section 25, pp. 629-30).
(3) Parliament cannot abridge or destroy basic human rights and fundamental freedoms which were reserved by the people for themselves when they gave to themselves the Constitution
The Twenty-fourth Amendment purports to empower Parliament to take away or abridge all or any of the fundamental rights. This means that Parliament is made competent to destroy the basic human rights and the fundamental freedoms which were reserved by the people unto themselves when they gave themselves the Constitution and provided for the functioning of a Parliament. What is reserved by the people for themselves cannot possibly be destroyed by a functionary of the Constitution.
(4) Parliament cannot do indirectly what it was enjoined by the Constitution not to do directly
On a proper reading of the word “amendment” in Article 368 as it stood originally and also on the principle of inherent and implied limitations, Parliament had no power to alter or destroy any of the essential features of the Constitution. If this is the correct position under the Constitution as given by the people unto themselves, it must necessarily follow that Parliament cannot abrogate the limits of its own constituent power. It cannot do in two stages what it could not do in one stage. It cannot first repeal the limitations on its own constituent power and then purport to do what was forbidden by those limitations.
ALTERNATIVE SUBMISSION REGARDING THE TWENTY-FOURTH AMENDMENT
Without prejudice to the above and in the alternative, it is submitted that if the Twenty-fourth Amendment is at all to be held valid, it can only be on a “reading down” of the amended provisions of Articles 13 and 368, which reading would preserve the original inherent and implied limitations on the constituent power. The restricted reading would be that even after the Twenty-fourth Amendment —
(a) Parliament would have no power to alter or destroy the essential features of the Constitution;
(b) fundamental rights are among the essential features of the Constitution and, therefore, the essence of any of the fundamental rights cannot be altered or destroyed even when they are sought to be abridged.
It is submitted that if this Hon’ble Court is at all pleased to hold the Twenty-fourth Amendment to be valid, it should only be on the aforesaid restricted interpretation which would permit amendments only within the basic framework of the Constitution in which all the essential features are preserved.
There are clear authorities for the proposition that the Court may “read down” a statute in order to bring it within the competence of the authority enacting it, when on a wider construction the Statute would have to be held void as being beyond the law-making authority’s competence.
The Hindu Women‘s Rights to Property Act, 1941 FCR 12 at 26-32; R.M.D. Chamarbaugwalla v. Union, 1957 SCR 930 at 936-39; Kedarnath Singh v. State of Bihar, 1962 Supp 2 SCR 769 at 810-11; Arora v. State of U.P., (1964) 6 SCR 784 at 797; Shah & Co.v. State of Maharashtra, (1967) 3 SCR 466 at 477; Seshammal v. State of Tamil Nadu, (1972) 2 SCC 11 at 22-25.
Such restricted construction is possible in the present case for the following reasons:
(a) In a broad sense the expression “constituent power” may include the power to amend the Constitution, whether the amending power is limited or unlimited.
(b) While the words “amend by way of addition, variation or repeal” are, generally speaking, words of wide import, in a given context they are capable of being read as not authorising the alteration or destruction of essential features. In other words, these newly inserted words are not necessarily inconsistent with the limitation which enjoins the preservation of essential features, although in other contexts they may well comprehend changes in or abrogation of the essential features. In short, these newly inserted words may involve, but do not necessarily involve, the power to abrogate or destroy the essential features.
(c) The lifting of the bar of Article 13(2) against amendments under Article 368 is again not necessarily inconsistent with the essential features being beyond the amending power. If the bar in Article 13(2) is validly lifted, it can mean that Parliament can abridge any of the fundamental rights but not so as to damage or destroy the essence or core of any of those rights.
(d) The whole point about implied and inherent limitation is that they apply where the empowering words are seemingly wide enough to cover what the limitations prohibit. On the original Article 368, two submissions have been made on behalf of the Petitioner —
(i) the bare word “amendment” is not to be read in the wide sense of “amendment by way of addition, variation or repeal”, and
(ii) even if it is to be read in the aforesaid wide sense, the inherent and implied limitations would still apply.
In other words, if the bare word “amendment” in the original Article 368 were to be read in the wide sense of “amendment by way of addition, variation or repeal”, even then the implied and inherent limitations would have cut down the scope of the amending power prior to the Twenty-fourth Amendment. It is clear that since the inherent and implied limitations would have applied even if what is now enacted explicitly was implicit in the bare word “amendment”, they apply with equal vigour after the change in the language of Article 368.
The inherent and implied limitations can be ruled out only by express words to the contrary. They would cease to apply only if there were compelling words, e.g., an express power conferred on Parliament to alter or abrogate any of the essential features of the Constitution. In that event the Court would have no option but to strike down the conferment of such a power.
ADDITIONAL PROPOSITIONS ON BEHALF OF THE PETITIONER ON
THE CONSTITUTION (TWENTY-FOURTH AMENDMENT) ACT,
1971, REGARDING THE LIFTING OF THE BAR IMPOSED
BY ARTICLE 13(2)
1. First submission
Article 13(2), as it stood before the Twenty-fourth Amendment, had two elements—
(i) the bar against the State making any ordinary law which abridges or takes away any of the fundamental rights; and
(ii) the bar against any constitutional amendment which abridges or takes away any of the fundamental rights.
The first bar is an essential feature of the Constitution and it has been left untouched by the Twenty-fourth Amendment.
The second bar is also an essential feature of the Constitution. The effect of the bar is that while Parliament may add to or amend the fundamental rights, the amendment cannot take the form of abridgment or taking away of any of the fundamental rights. Since the bar against such constitutional amendments is an essential feature of the Constitution, the purported lifting of the bar by the Twenty-fourth Amendment is illegal and void.
II. Second submission in the alternative
An argument may be urged as follows: To distinguish the second bar from the first and to hold that while the first is an essential feature of the Constitution, the second is not. The first is an essential feature, since it is clearly basic to the constitutional scheme that the State should be restrained from abridging or taking away any of the fundamental rights, But the second bar stands on a different footing, since in the working of the Constitution, Parliament may find it necessary to abridge a fundamental right without damaging or destroying its core or essence and in that event it may propose to lift the second bar of Article 13(2) in the exercise of its amending power. Since each fundamental right is itself an essential feature and its core or essence cannot be destroyed or damaged in the exercise of the amending power, no damage could be done to the core and essence of any of the Fundamental Rights by the lifting of the second bar. In other words, it may be urged that the Fundamental principles underlying the original Constitution are the following:
(a) Subject to (b) dealt with below, the “State” as defined in Article 12 should be powerless to abridge or take away any of the Fundamental Rights;
(b) Parliament in the exercise of its amending power should be powerless to damage or destroy the core or essence of any of the Fundamental Rights, and even if it assumes the power to amend any of them, the amendment should not reach the point of such damage or destruction.
In this view of the matter, it would be possible to decide the present case entirely on the principle of inherent and implied limitations and the true construction of the words of Article 368 conferring the amending power, without any reference to Article 13(2) at all.
Without prejudice to the first submission and in the alternative, the Petitioner submits that if the aforesaid second bar against constitutional amendments imposed by Article 13(2) is held not to be an essential feature of the Constitution, then the position after the Twenty-fourth Amendment is as follows:
(a) The provision of the Twenty-fourth Amendment, lifting the bar in Article 13(2) against constitutional amendments under Article 368, should be held to be valid.
(b) However, the bar would continue to apply against constitutional amendments made under other provisions of the Constitution namely Articles 4, 169, 244-A, Para 7 of the Fifth Schedule, and Para 21 of the Sixth Schedule. Any constitutional amendments made under any of these provisions would have to observe the bar of Article 13(2), and such amendments cannot abridge or take away any of the Fundamental Rights. The reason is that it is only amendments made under Article 368 which are exempted from the application of Article 13(2) by the Twenty-fourth Amendment. This difference may be justified on the ground that whereas under Article 368 a special majority is necessary, under the other amending provisions only a bare majority of Parliament is sufficient.
(c) The power to amend the Constitution under Article 368 continues to be subject to the inherent and implied limitations which prevent Parliament from altering, damaging or destroying any of the essential features of the Constitution. Every Fundamental Right is an essential feature of the Constitution. The net result is that a constitutional amendment under Article 368 may abridge a fundamental right but if after the lifting of the bar in Article 13(2), the degree of abridgment is such as to damage or destroy the essence or core of that right, the constitutional amendment would be illegal and void.
Propositions on behalf of the Petitioner regarding the Constitution (Twenty-fifth Amendment) Act, 1971.
The ground for holding the 25th Amendment illegal and void is that, as already submitted, even if the 24th Amendment is held to be valid, it can only be on a restricted interpretation of the power of amendment conferred on Parliament by Article 368 as altered by the 24th Amendment. The restricted the interpretation would be that even after 24th Amendment and even if the bar of Article 13(2) was validly lifted, the inherent and implied limitations continue to attach to Parliament’s amending power under Article 368 with the result that —
(a) Parliament would have no power to alter, damage or destroy the essential features of the Constitution; and
(b) each fundamental right being an essential feature of the Constitution, no constitutional amendment can damage or destroy the essence or core of any of the Fundamental Rights.
It is in the light of this legal position that the validity of the 25th Amendment has to be considered.
The 25th Amendment has made three material changes:
(i) It has amended Article 31(2) in two respects —
(a) it substitutes the word “amount” for the concept of “compensation” for property acquired or requisitioned; and
(b) it has provided that the acquisition or requisition law shall not be called in question on the ground that the whole or any part of the “amount” is to be given otherwise than in cash.
(ii) it has provided that the fundamental right to acquire hold and dispose of property under Article 19(1)(f) cannot be invoked in respect of any such law as is referred to in Article 31(2).
(iii) It has inserted Article 31-C as an overriding Article which makes the various fundamental rights conferred by Articles 14, 19 and 31 in-applicable to certain categories of laws passed by Parliament or by any State legislature.
It is submitted that all the amendments covered by (i), (ii) and (iii) above, damage or destroy the essence or core of the fundamental rights which they deal with; and consequently the whole of the 25th Amendment Act is illegal and void.
The aforesaid three features of the 25th Amendment are dealt with below seriatim:
I. Amendment of Article 31(2)
It is submitted that the right to property is one of the essential features of the Constitution, like all the other fundamental rights. Further, it is the handmaid to various other fundamental rights. A very few examples may suffice to illustrate this point. The right to freedom of the Press under Article 19(1)(a) would be meaningless if a publisher could be deprived of his printing plant and the building in which it is housed without compensation. The fundamental right under Article 19(1)(c) to form trade unions would be denuded of its true content if the property of a trade union could be acquired by the State without compensation. The right to practise any profession or to carry on any occupation, trade or business under Article 19(1)(g) would be merely a right to do forced labour for the State if the net savings from the fruits of a citizen’s personal exertion are liable to be acquired by the State without compensation. The freedom of religion in Article 26 would lose a great deal of its efficacy if the institutions maintained by a community for its religious and charitable purposes could be acquired without compensation. The common man who may have put his life-savings in shares or in other forms of property is directly affected by the denial of the right to compensation. Under the amended Article 31 and amount may be fixed by the State on a basis which need not be disclosed even to members of the legislature which passes the law and which may have no relation to the value of the property sought to be acquired. In other words, the amended Article 31 in substance and effect authorizes confiscation of any citizen’s property, however small that property may be in value. Such a law which has nothing to do with concentration of wealth and permits any common citizen’s property to be virtually confiscated involves destruction of the essence or core of the right to property.
The other amendment of Article 31(2) is that even the “amount” which does not satisfy any of the principles of compensation need not be paid in cash but may be given in the form, say, of a promise to pay at a future date, and that cannot be made a ground of challenge to the validity of the law. This amendment amounts in effect to compounding the injustice. In these days of mounting inflation and the State tendency to repudiate even solemn constitutional guarantees, a Government’s promise to pay at a future date may be almost worthless. This part of the amendment serves to emphasise the point that the change in Article 31(2) effected by the 25th Amendment is really intended to authorise confiscation of the bulk of any property which a State may choose to acquire or requisition. It may be noted that Article 31(2) has nothing to do with estates, zamindaris, land reforms or agrarian reforms which are specifically dealt with by Article 31-A and to which Article 31(2) is wholly inapplicable.
II. Amendment to make Article 19(1)(f) inapplicable to acquisition and requisition laws
The right to acquire, hold and dispose of property under Article 19(1)(f) is subject under Article 19(5) to reasonable restrictions in the interests of the general public. Since all reasonable restrictions in the public interest are already permitted under Article 19(5), the only object of making Article 19(1)(f) inapplicable can be to enable acquisition and requisition laws under Article 31 to contain restrictions and provisions which are unreasonable or not in the public interest.
If Article 19(1)(f) applies, an acquisition or requisition law which permits a property to be taken without the owner being heard where the rules of natural justice would require the owner to be heard, would be void as offending that Article. See R.C. Cooper v.Union, (1970) 3 SCR 530 at 577: (1970) 1 SCC 248. But after the 25th Amendment, such rules of natural justice can be flagrantly violated and a man’s property can be acquired or requisitioned and the “amount” fixed, without giving him a hearing in cases where natural justice would require such hearing to be given; and the Land Acquisition Act can be amended to provide that any man’s land or house can be acquired without any notice to the owner to show cause against the acquisition or to prove what “amount” should be fairly paid to him for the property acquired. This clearly damages the essence or the core of the fundamental right under Article 19(1)(f) to acquire, hold and dispose of property.
III. Article 31-C which validates Constitution-breaking laws
Article 31-C damages or destroys the core or essence of at least seven essential features of the Constitution.
1. There is a fine but vital distinction between two cases —
(a) where the fundamental rights are amended to permit laws to be validity passed which would have been void before the amendment; and
(b) the fundamental rights remain unamended but the laws which are void as offending those rights are validated by a legal fiction that they shall not be deemed to be void.
The question is not one merely of legislative device. In the first case the law is constitutional in reality. In the second case the law is unconstitutional in reality but is deemed by a fiction of law not to be void; with the result that Constitution-breaking laws are validated and there is a repudiation or abrogation of the Constitution pro tanto.
If the second case is permissible as a proper exercise of the amending power, the Constitution would be reduced to a scrap of paper. If Article 31-C is valid, it would be equally permissible to Parliament so to amend the Constitution as to declare all laws to be valid which are passed by Parliament or State legislatures in excess of their legislative competence, or which violate any of the basic human rights enshrined in Part III or the freedom of inter-State trade in Article 301. It would be equally permissible to have an omnibus Article that “notwithstanding anything contained in the Constitution, no law passed by Parliament or any State legislature shall be deemed to be void on any ground whatsoever”. The insertion of only one such Article would toll the death-knell of the Constitution.
The true legal effect of Article 31-C is that it gives a blank charter to Parliament and all the State legislatures to defy and ignore the Constitution.
Article 31-C clearly damages or destroys the supremacy of the Constitution which is one of the essential features of the Constitution.
2. Article 31-C not only subordinates the fundamental rights to the Directive Principles of State policy but virtually abrogates the fundamental rights in respect of laws which the legislature declares to be for giving effect to the Directive Principles. One of the essential features of the Constitution is that the right to enforce the fundamental rights in the Court is guaranteed (Article 32), whereas the Directive Principles are not so enforceable (Article 37). The fundamental rights are clear-cut and precise, in contrast to the vague contours of the Directive Principles. To abrogate the fundamental rights when giving effect to the Directive Principles is to destroy one of the essential features of the Constitution. Ignorance and arbitrariness, injustice and unfairness, would hereafter not be open to challenge on the touchstone of the invaluable basic rights, if Article 31-C is valid.
3. It is one of the essential features of the Constitution that it can be amended only in the “form and manner” laid down in Article 368 and according to that Article’s basic scheme. (Cf. Trethowan case, 1932 AC 526). This essential feature is sought to be abrogated by Article 31-C. That Article has the effect of virtually authorizing abrogation of the fundamental rights while they still remain ostensibly on the Statute Book. The public criticism and debate which would be invoked by a proposal to abridge a particular fundamental right is avoided, although various fundamental rights are effectively silenced. The absurd situation is that, whereas an amendment of a single fundamental right would require a majority of at least 2/3rds of the members of Parliament present and voting (Article 368), a law falling within Article 31-C which overrides and violates several fundamental rights can be passed by a simple majority.
4. Every fundamental right is an essential feature of the Constitution. Article 31-C purports to take away a large number of these fundamental rights altogether in the field covered by that Article. It provides for the wholesale smothering of various rights which are independent of the right to property and are totally irrelevant to the Directive Principles laid down in Article 39(b) or (c). Even the rights to —
equality before the law;
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;
to practise any profession or to carry on any occupation, trade or business;
to retain property except when deprived by authority of law;
which are so vital for the survival of democracy, the rule of law, and the integrity and unity of the Republic, can be violated under Article 31-C under the cloak of avoiding concentration of economic power.
5. A citizen is not even permitted to raise the question whether the proposed law will result, or is reasonably calculated to result, in securing the Directive Principles laid down in Article 39(b) or (c). The wrong done to the people who are deprived of their basic freedoms is aggravated by protection to laws, which, in reality, may not be at all calculated to give effect to the Directive Principles. This would be so even on the basis that on a proper construction of Article 31-C, Article 39(b) or (c) must have direct relevance to the law and its subject-matter, because even in such a case a question may still arise whether the law is so framed or conceived that it will secure the Directive Principles in question.
One of the essential features of the Constitution is the right to move the Supreme Court for the enforcement of the other fundamental rights (Article 32). The essence of core of this right is gone when the fundamental rights are made unenforceable for the purpose of giving effect to the Directive Principles and at the same time the Court is precluded from considering whether the law is such that it can possibly secure the Directive Principles in question.
6. One of the essential features of the Constitution is that no State legislature can amend the fundamental rights or any other part of the Constitution. This essential feature is repudiated by Article 31-C which empowers even State legislatures to pass laws which virtually involve a repeal of the fundamental rights. The wholly irrational consequence is, whereas State legislatures cannot abridge a single fundamental right, it is now open to them to supersede a whole series of such rights. In substance, the power of amending the Constitution is delegated to all the State legislatures — which is not permissible under Article 368. See 1919 AC 935, 945 (PC); (1967) 2 SCR 650, 653-4, 659-60; 1951 Canada Law Reports Supreme Court, 31 at 37-38.
7. One of the essential features of the Constitution is the provision for the protection to minorities and their cultural and educational rights. The fundamental rights under Articles 14, 19 and 31 which are sought to be superseded by Article 31-C are necessary to make meaningful the specific rights of the minorities which are guaranteed by Articles 25 to 30. Under the guise of giving effect to Directive Principles, a number of steps can be taken which can seriously affect the position of regional, linguistic, cultural and other minorities.
The proviso inserted by the Twenty-fifth Amendment to Article 31(2) is very telltale. It expressly provides that where the property of an educational institution established and administered by a minority is acquired, the amount fixed for the acquisition should be such as not to restrict or abrogate the right guaranteed under Article 30(1). The clear implication is that when property is acquired in other cases, an amount can be fixed which restricts or abrogates any of the other fundamental rights — for instance, the rights to freedom of speech and expression Article 19(1)(a), to form associations or unions Article 19(1)(c), or to practise any profession or carry on any occupation, trade or business Article 19(1)(g), or the right of religious community to establish and maintain institutions for religious or charitable purposes (Article 26). Further, if a law violates the rights of the minorities under Articles 25 to 30, such a law would be no law at all and therefore deprivation of property under such a law would violate Article 31(1). But since Article 31(1) is one of the Articles abrogated by Article 31-C, minorities can be deprived of their properties, held privately or upon pubic charitable or religious trust, by a law which clearly violates their rights under Articles 25 to 30.
In conclusion, it would be no exaggeration to say that Article 31-C is a monstrous outrage on the Constitution. It has a built-in mechanism for the dissolution of the true democracy that India has been so far, cessation of the rule of law, disintegration of the nation, and the birth of a totalitarian regime.
Propositions on behalf of the Petitioner regarding the true Construction of Article 31(2) substituted by the Constitution (Twenty-fifth Amendment) Act, 1971.
1. True construction of Article 31(2)
It is significant to note that before the 25th Amendment, Article 31(2) provided for the payment of compensation when any property was acquired or requisitioned for a public purpose and contained the provision inserted by the Fourth Amendment that the adequacy of such compensation should not be called in question in any court. The 25th Amendment substituted the word ‘amount’ for ‘compensation’.
The Petitioner submits that the true construction of Article 31(2) as substituted by the 25th Amendment involves the following:
(a) “Amount” is not a legal concept at all, unlike “compensation”. Therefore the will of the State is the only yardstick for fixing the amount. Thus the amount fixed may be such as may amount to virtual confiscation of the property or the bulk of it.
(b) The Supreme Court held in the Bank Nationalisation case, (1970) 3 SCR 530) that if the principles which were irrelevant to the concept of compensation were adopted, the law would be struck down. But that decision was with reference to the word “compensation” which appeared in Article 31(2) before the 25th Amendment. Since the word “amount” is not a legal concept at all, there is no basic norm by reference to which the relevance or irrelevance of principles can be judged.
(c) Since the amount fixed or the principles adopted may be arbitrary and may have no relation or relevance to the value of the property acquired, the essence or core of the right to property is damaged, if not destroyed, by Article 31(2).
(d) Not only does Article 31(2) virtually abrogate the right to property, but it can have a similar effect on the other fundamental rights, e.g. the rights enumerated in Article 19 and the rights of the minorities and of religious freedom (see the examples on page 3 of the Propositions on the 25th Amendment tendered on 8th December, 1972). This is made clear by the prouiso to Article 31(2) which has also been inserted by the 25th Amendment. The implication of that proviso is that the State may fix such an amount for acquisition of property as may restrict or abrogate any of the other fundamental rights the exercise of which would be affected by the deprivation of the property without just compensation — and the only exception to this power of the State is the case dealt with in the proviso of educational institutions established and administered by a minority referred to in Article 30(1).
It is submitted that what is stated above is the correct interpretation of Article 31(2) substituted by the 25th Amendment and that it must therefore be held to be void on the ground that it damages or destroys the core or essence of the right to property and of several other fundamental rights; and that “reading down” of the Article would not be proper.
II. Alternative submission regarding Article 31(2)
Without prejudice to the above and only in the event of this Hon’ble Court coming to the conclusion that Article 31(2) as substituted by the 25th Amendment should be held valid on a restricted interpretation, it is submitted that the restricted interpretation would have to proceed on the following basis:
(a) Article 31(2) still appears as a fundamental right by reference to which the validity of ordinary laws is to be judged. Therefore it must be read as providing a standard or measure. If the “amount” and the “principles” are entirely at the will or whim of the State, there would be no meaning in keeping Article 31(2) as a fundamental right and in making payment an essential feature of that fundamental right.
(b) The word “amount” is used in the context of a Constitution which specifically continues to provide in Article 19(1)(f) the right to acquire, hold and dispose of property. Further, the word “amount” occurs in Article 31(2) which provides not for expropriation or confiscation but for compulsory acquisition or requisition for a public purpose. Article 31(2) makes it a condition of the validity of the acquisition or requisition law that it must fix an amount or specify the principles for determining the amount. Article 31(2) embodies the principle of eminent domain which necessarily involves the obligation of the State to pay for what is taken. Therefore the amount must be such as would not abrogate the right to property, since such abrogation would be inconsistent with —
(i) the inherent and implied limitations on Parliament’s power under Article 368 to abrogate any fundamental right;
(ii) Article 19(1)(f) which preserves the right to property; and
(iii) the Statement of Objects and Reasons which does not indicate that the right to property was intended to be abrogated by the 25th Amendment.
Consequently, the true standard or measure is that the amount or the principles must have a reasonable relation to the property and its value. In short, the word “amount” which is literally amorphous crystallises into shape and form in the context of Article 31(2).
On the above interpretation, the right to property may be said to have evolved in the Indian Constitution through the following stages of dilution:
(i) Property could be taken by the State only on payment of full compensation, the adequacy of the compensation being justiciable. (This was the Constitution in its original form).
(ii) The State could take property on payment of “compensation” in the legal sense, although that compensation may be inadequate; the adequacy of the compensation being non-justiciable. (This stage was reached by the Fourth Amendment in 1955).
(iii) The State may take property for an amount which may not represent “compensation” in the legal sense, but which must have a reasonable relation to the value of the property taken and which would prevent the acquisition from amounting to confiscation or expropriation. (This is the effect of the 25th Amendment).
(c) The “principles” referred to in Article 31(2) would be such principles as are relevant and appropriate to the determination of such an “amount” as is referred to in (a) above. Just as principles which were irrelevant to the legal concept of “compensation” made the acquisition law invalid prior to the 25th Amendment, if any principles are adopted which are irrelevant to the concept of amount as explained in (a) above, the law would be invalid.
(d) Where the law itself fixes the amount, it may indicate the principles on which it has been arrived at, or the Court may enquire on what broad principles it has been fixed. The contrary view would involve the unacceptable position that Article 31(2) gives the option to the State either to specify principles which cannot be arbitrary or to specify an amount which can be arbitrary. The only correct view can be that whether the law fixes the amount or specifies the principles, the amount or the principles must converge on the same result.
(e) Since Parliament has no power to damage or destroy the core or essence of any of the fundamental rights, the very limits on its amending power would involve the conclusion that the power under Article 31(2) cannot be so exercised, and the amount fixed or determined cannot be so low, as to damage or destroy the core or essence of the other fundamental rights, e.g. the freedom of the Press, the right to form trade unions and the religious freedom and the rights of the minorities in Articles 25, 26 and 29.
On the above construction, the effect of the proviso to Article 31(2) would be as follows:
The proviso would give a wider protection in respect of educational institutions of a minority than would be available under (e) above. The reason is that the proviso requires such an amount to be fixed or determined as would not restrict the right under Article 30(1), which is a higher safeguard than the rule prohibiting damage to the essence or core of the other fundamental rights. If the amount to be paid on acquisition has to be such that it would not restrict the right under Article 30 (1), it would have to be an amount higher than the amount which would be sufficient not to damage the essence of that right. Whereas on the principle of inherent and implied limitations it is only the core or essence of the fundamental rights which is protected, the proviso to Article 31(2) protects the right under Article 30(1) in its full amplitude and not merely its core or essence.
Additional argument in support of the plea that the “amount” or “principles” under Article 31(2) cannot be arbitrary but have to be reasonable.
Assuming Article 31(2) as substituted by the 25th Amendment is to be regarded as legal and valid, there is an additional reason for holding that the “amount” and “principles” referred to therein have to be reasonable in relation to the property and its value.
Article 31(2) may be regarded as vesting the State with a discretion to fix the amount. It is well-settled that where a discretion is granted by any law, it is implicit in the grant of such discretion that it must be exercised reasonably. If the discretion is exercised arbitrarily or unreasonably, it would mean that the discretion has not been exercised at all. These principles which are well-settled in respect of discretion conferred by ordinary statutes apply a fortiori to Article 31(2) which safeguards the citizen’s fundamental right to property against the State. The condition on which the State is permitted by Article 31(2) to exercise the power of acquiring or requisitioning property is that discretion must be exercised in fixing the amount or specifying principles. If a law fixes an amount unreasonably or if the Court finds that in arriving at the amount the State has adopted principles which are unreasonable or irrelevant to the property and its value, the exercise of the State’s discretion would be arbitrary. In such a case the Court would strike down the law on the ground that the constitutional requirement of the exercise of discretion has not been satisfied.
In Roberts v. Hopwood, (1925) AC 578 the House of Lords held that where a statute permitted a Borough Council to employ such servants as may be necessary on such “wages as (the Council) may think fit”, the discretion conferred upon the Council by the Statute must be exercised reasonably, and that the fixing by the Council of an arbitrary sum for wages without regard to existing labour conditions was not an exercise of that discretion.
Lord Buckmaster’s observations in that case at pp. 587 and 590 are very pertinent. At page 590 Lord Buckmaster says:
“. . . . they did not base their decision upon the ground that the reward for work is the value of the work reasonably and even generously measured, but that they took an arbitrary principle and fixed an arbitrary sum, which was not a real exercise of the discretion imposed upon them by the statute.”
Lord Atkinson’s observations at pp. 597 and 599 are again pertinent. On page 599 Lord Atkinson says that on a fair construction of the statute it means that “in each and every case the payment of all salaries and wages must be ‘reasonable’.” This means that the test of reasonableness is treated as implicit in the conferment of discretion by the law.
Lord Wrenbury’s classic words are at page 613:
“I rest my opinion upon higher grounds. A person in whom is vested a discretion must exercise his discretion upon reasonable grounds. A discretion does not empower a man to do what he likes merely because he is minded to do so — he must in the exercise of his discretion do not what he likes but what he ought. In other words, he must, by use of his reason, ascertain and follow the course which reason directs. He must act reasonably.”
By this test, the legal position is that so long as the discretion is exercised reasonably under Article 31(2), the Court will not interfere even though the return may not amount to compensation in the eye of the law or the principles may not cover all the essential elements of the legal concept of ‘compensation’.
Inadequacy of the amount is non-justiciable, but only where the State action is within the constitutionally permissible limits. Arguments regarding the reasonable exercise of discretion (i.e. the reasonable relation of the amount or principles to the property and its value) and the bar against damaging any of the fundamental rights go to the constitutional limitations upon State action under Article 31(2), and are therefore justiciable. They deal with the constitutional condition which is required to be satisfied before the power of acquisition or requisition can be validly exercised. There is a world of difference between the proposition that adequacy of the amount shall not be called in question and the proposition that arbitrary exercise of discretion or power shall not be called in question.
Proposition on behalf of the Petitioner in support of the point that the right to property is one of the essential features of the Constitution.
I. Every fundamental right is an essential feature of the Constitution
Every fundamental right is an essential feature of the Constitution. If the Constitution-makers had thought that a particular right was not an essential feature, they would not have included it in the category of fundamental rights. In respect of the rest of the Constitution it is for the Court to decide whether a particular provision or institution constitutes an essential feature or not. But when it comes to the fundamental rights, all controversy is eliminated and what the Constitution-makers specified as fundamental must necessarily be treated as a fundamental feature of our Constitution.
II. The importance of the right to property
Without prejudice to the above and assuming any inquiry is at all possible as to whether the right to property should be treated as one of the basic elements of our Constitution, it is submitted that —
(a) the intrinsic value of the right,
(b) its necessity for the meaningful exercise of various other fundamental rights, and
(c) its importance to the proper functioning of the Constitution as a whole;
leave no doubt that the right to property is one of the basic elements of our Constitution.
Property is necessary for the subsistence and well-being of men. No man would become a member of a community in which he could not enjoy the fruits of his honest labour and industry. The preservation and security of property is one of the primary objects of the social compact that induce men to unite in society. There can be no dispute or debate about this proposition, though there may be different opinions as to the quantum of property that a person should be allowed to hold.
III. Legislative history
(a) Section 299 of the Government of India Act, 1935 recognised the right to property and contained a safeguard against expropriation without compensation or acquisition of property for a non-public purpose.
(b) Article 17 of the Universal Declaration of Human Rights also recognises the right to private property. India is a signatory to that Declaration.
(c) The Constituent Assembly examined the Constitutions of several countries, which guarantee basic rights. In “Constituent Assembly of India, Constitutional Precedents (Third Series) 1947)”, it is stated as follows:
“Broadly speaking, the rights declared in these Constitutions relate to equality before the law, freedom of speech, freedom of religion, freedom of assembly, freedom of association, security of person and security of property. Within limits these are all well-recognised rights and it may be useful to draw attention to them by embodying them in the Constitutional Charter.”
(d) The debates in the Constituent Assembly when the draft articles corresponding to Article 19(1)(f) and Article 31 came up for discussion clearly indicate that the framers of our Constitution attached sufficient importance to property to incorporate it in the chapter on fundamental rights and rejected suggestions and contentions to the contrary. The provision regarding freedom of trade and intercourse which was originally in the chapter on fundamental rights was later on removed from that chapter and put into a separate part, in view of the suggestions by some members in the Constituent Assembly. It is significant to note that similar suggestions in respect of Article 31 (corresponding to Article 24 of the draft Constitution) were not accepted. Pandit Jawaharlal Nehru categorically stated that in the Indian Constitution there was no room for expropriation or acquisition without compensation. That basic feature of the Constitution was departed from only in the case of legislation regarding abolition of zamindari and land tenure reforms and such legislation was accordingly expressly saved by clauses (4) and (6) of Article 31. Whilst there may be difference of opinion as to the quantum and extent of compensation that should be paid for acquisition of property, it was an essential feature of the Indian Constitution as framed and enacted that there could not be any expropriation of private property or acquisition without compensation.
IV. Right to property necessary for the meaningful exercise of other fundamental rights
The right to property is essential for the effective and meaningful exercise of various other fundamental rights. A very few examples would suffice to illustrate this point. The right to freedom of the Press under Article 19(1)(a) would be meaningless if a publisher could be deprived of his printing plant and the building in which it is housed without compensation. The fundamental right under Article 19(1)(c) to form trade unions would be denuded of its true content if the property of a trade union could be acquired by the State without compensation. The right to reside and settle in any part of the territory of India, which is guaranteed by Article 19(1)(e), would be meaningless if the State could expropriate the citizen’s hut or house or household effects. The right to practise any profession or to carry on any occupation, trade or business under Article 19(1)(g) would be merely a right to do forced labour for the State if the net savings from the fruits of a citizen’s personal exertion are liable to be acquired by the State without compensation. The freedom of religion in Article 26 would lose a great deal of its efficacy if the institutions maintained by a community for its religious and charitable purposes could be acquired without compensation.
V. Necessity of the right to property for the normal working of the Constitution
It would be no exaggeration to say that without the right to property it would be impossible to work the Constitution. For example, many of the legislative Entries, including Entries which set out the subject-matters in respect of which taxes can be levied, necessarily pre-suppose the right to private property. The existence of the separate States would be in direct jeopardy if the right to private property did not exist. The democratic way of life, the very institution of Parliament with its necessary incidents like free elections, freedom to oppose and the right to dissent would all be paralysed if the right to private property did not exist.
Propositions on behalf of the Petitioner regarding the ambit of the amending power in different Constitutions
Parliament providing a channel like referendum for ascertaining the people’s will.
I. The amending power in our Constitution must be construed on its own terms
The scope and width of Parliament’s amending power under Article 368 must be determined on its own terms and the other world Constitutions are of no assistance in solving this question. Some of the material features which have a bearing on this issue are:
(a) Our historical background. National leaders struggled for several decades to achieve independence and envisaged a Constitution for free India which would provide inalienable basic human rights; the country became a free democracy for the first time, and was welded together into one State also for the first time, in its five thousand years old history; the necessity of creating a sense of security and safety in the minds of numerous religious, linguistic and regional minorities made it imperative that fundamental rights should be beyond the reach of the party in power.
(b) Amending powers are conferred by different Articles in our Constitution — Articles 4, 169, Para 7 of the Fifth Schedule and Para 21 of the Sixth Schedule — in significantly different terms which have a direct bearing on the scope and width of the amending power.
(c) In the original draft of the Constitution prepared by B.N. Rau, there was a significant contrast between the word ‘amendment’ in the clause corresponding to the present Article 368 and the conferment of amending power in wider term in Clause 238 which was later omitted. Further, Mr Kamath’s amendment which would have widened the scope of the amending power in Article 368 was rejected. Thus the proceedings before the Constituent Assembly clearly support the view that Parliament’s amending power under Article 368 was intended to be restricted as contended by the Petitioner.
(d) Our Constitution has an extraordinarily forceful and meaningful Preamble which contains guarantees reflecting the pledge contained in the Objectives Resolution of 1946.
(e) The people are in no way associated with the amending power in Article 368, but the decision is purely that of a creature of the Constitution, viz. Parliament; and even the States are wholly dissociated from the amending process except in the cases falling within the proviso to Article 368.
There is no other Constitution in the world which affords a parallel to the Indian Constitution as regards the abovementioned cumulative features and other relevant circumstances. Therefore it would be futile to consider the scope of the amending power in other Constitutions.
II. Constitutions of other countries
The amending power has widely varying scope and width in the Constitutions of different countries. Relevant extracts from the Constitutions of 61 countries are given in a separate compilation.
It is most significant to note that where the amending power rests with the people of a Republic, in whom the ultimate legal sovereignty resides, the position is quite different as compared to cases where the amending power resides in a creature of the Constitution, e.g., the Indian Parliament. Inherent and implied limitations which apply to a Parliament constituted under a controlled Constitution do not apply to the people. People may, in the exercise of their ultimate legal sovereignty alter, damage or destroy an essential feature of their Constitution by way of amendment (apart from questions of limitations on the people’s power arising from the Preamble or the principle of inalienable and natural human rights).
III. The U.S.A. Constitution
Article V of the U.S.A. Constitution affords no analogy to Article 368, as is clear from the following:
(a) The features and the historical background peculiar to India, do not exist in the case of the U.S. Constitution.
(b) Article V in the U.S.A. Constitution has been read as associating the people with the amending process, since that article expressly provides for the calling of Conventions for amending the Constitution. The fact that Conventions have been rarely called is not relevant. The necessity of calling Conventions (instead of letting the legislature make the decision) would really arise when the basic human freedoms are sought to be abridged or taken away or any other essential feature of the Constitution is sought to be altered, damaged or destroyed. Such amendments have not been made in the U.S.A. But the very fact that the people are capable of being associated with the exercise of the amending power distinguishes Article V from our Article 368.
(c) The decision to have an amendment is not made by the Congress (corresponding to our Lok Sabha) but is made by 3/4ths of the State legislatures or Conventions. The Congress can only initiate a Proposal.
(d) Two-thirds of the State legislatures may ask for amendments, and in such a case Congress does not even initiate a Proposal.
(e) The decisions of the Supreme Courts of the States in U.S.A. are not relevant, since they turn upon the terms and background of the State Constitutions. For instance, the case reported in Southern Reporter, Second Series, Vol. 81, page 881 is irrelevant, since that case deals with the Constitution under which an amendment would become valid only “when approved by the qualified electors” (see the first para of that Vol. at page 882).
IV. Can Parliament amend our Constitution so as to provide a channel for a decision by the people regarding amendments?
One possible view of the matter is that having regard to the historical background which is referred to above and which is set out in detail in the Annexure to the Propositions No. P-5/12-B, the Constitution-makers did not intend that any essential feature of our Constitution should be permitted to be altered, damaged or destroyed, even by the people, although all amendments may be made by Parliament which do not have such an effect. It may be urged that it was precisely for this reason that the Constitution-makers, having the various constitutional precedents before them, deliberately chose to make no provision for amendment by the people by a referendum or convention. (Ascertainment of the will of the people as regards constitutional amendments may be done in one of the well-settled constitutional modes, of which referendum is a well-favoured example. For the sake of brevity, the word “referendum” is used hereinafter to denote any of the available channels for enabling the people’s will to be expressed as regards constitutional amendments).
The other view of the matter is that a referendum was not provided for originally in the Constitution because it might have made it very difficult to have the Constitution accepted on those terms by the diverse sections of the public who would have viewed a referendum with grave misgivings; but that does not rule out the constitutional possibility of Parliament at any future stage amending the Constitution so as to provide a channel for the decision of the people on a referendum regarding amendments which are beyond the constitutional limits of the Parliament’s amending power.
If the latter view is correct, Parliament can amend the Constitution to provide such a channel for ascertaining the will of the people regarding constitutional amendments. The most important point is that the provision must be such that —
(a) the decision can be made directly by the people on the precise proposal being submitted to them, and
(b) the issue of amendment must be presented to the people in absolute isolation, so that it does not get mixed up with other political questions and with political party affiliations or preferences.
Thus it must satisfy the criteria of directness and speciality of the people’s decision (See Dr. Conrad’s Article, pp. 405, 408 and 412).
If the latter view is right and Parliament can amend the Constitution to provide for a referendum, two views would again be possible as regards the scope of the people’s amending power:
(a) It may be urged that the people would have on a referendum complete and absolute power to deal with any of the essential features of the Constitution.
(b) The other view would be that even the people on a referendum would have their amending power limited in two respects. Firstly, they cannot so amend the Constitution as to make it inconsistent with any part of the Preamble; and, secondly, they cannot take away the natural and inalienable rights or the basic human freedoms.
In this case it is not necessary to decide the questions regarding Parliament’s competence to amend the Constitution so as to provide for a referendum and the extent and scope of the people’s amending power on a referendum.