Kesavananda Bharati v. State of Kerala

Court	Supreme Court of India (Constitution Bench of 13 Judges)
Bench	S.M. Sikri, C.J., A.N. Grover, A.N. Ray, D.G. Palekar, H.R. Khanna, J.M. Shelat, K.K. Mathew, K.S. Hegde, A.K. Mukherjea, M.H. Beg, P. Jaganmohan Reddy, S.N. Dwivedi and Y.V. Chandrachud, JJ.
Year	1973 (decided 24 April 1973)
Principle / Topic	Basic structure
Cited in	Nature and Salient Features of Indian Constitution (Notes)

A religious head challenged Kerala land reform laws. The case grew into a challenge to the 24th, 25th and 29th Amendments to the Constitution. Thirteen Judges heard it for over 65 working days to decide how far Parliament can amend the Constitution under Article 368.

Quick Revision

Facts: A religious head challenged Kerala land reform Acts. The case grew into a challenge to the 24th, 25th and 29th Amendments.
Issue: Does Article 368 let Parliament amend fundamental rights, and are there limits on the power?
Holding: Thirteen Judges wrote eleven opinions. Most hold Article 13(2) does not cover amendments. Some state limits tied to basic features; others find none.
Key provisions: Articles 13(2), 31(2), 31C, 368; the Ninth Schedule (a list of laws shielded from challenge under Part III); the 24th, 25th and 29th Amendments.
Biggest exam trap: Cite each Judge's view separately, because the source text has no signed majority summary. Minerva Mills later says nine Judges signed one.
Present position: I.R. Coelho tests Ninth Schedule laws after 24 April 1973 on the basic structure; Minerva Mills treats the signed summary as the majority view.
Order: Cases remitted to the Constitution Bench; the 26th Amendment left open; no costs (paras 2263-2264).

Parties

His Holiness Kesavananda Bharati Sripadagalvaru and Ors. — petitioners in Writ (a court's written order) Petition (civil) No. 135 of 1970. The first petitioner filed it under Article 32 of the Constitution to challenge the Kerala Land Reforms Act and later the Constitution Amendments.

State of Kerala and Anr. — respondents in Writ Petition No. 135 of 1970. The judgment records counsel arguments for them (paras 316, 473, 898).

The other five writ petitioners — the judgment says six writ petitions raise common questions. It does not name the petitioners in the other five (para 2).

Union of India and the States — the judgment records arguments made on behalf of the Union and the States (para 702).

Counsel recorded in the judgment:

Mr. Palkhivala — counsel for the petitioner. He argued the main case for the petitioners (paras 207, 1615).
Mr. Seervai — counsel for the respondents (paras 19, 77, 246).
The Attorney-General — argued for the respondents (paras 316, 473, 898).
The Solicitor-General — argued for the respondents (paras 267, 484, 628).
The Advocate-General of Maharashtra — appeared for respondent No. 1 (para 533).

Procedural History

The petitioner filed Writ Petition No. 135 of 1970 under Article 32 on 21 March 1970. This Court issued rule nisi on 25 March 1970 (para 2).
The Kerala Land Reforms Act was also challenged in a number of petitions in the Kerala High Court. A Full Bench of that court upheld the Act except for certain provisions, which it declared invalid (para 1388).
By judgment of 21 October 1970 the Kerala High Court declared some other provisions of the Act, as amended by Act 35 of 1969, invalid and unconstitutional (para 1389).
The State of Kerala appealed to this Court against the High Court's findings of invalidity. Appeals by private parties against the findings upholding other provisions were also filed. All the appeals were dismissed (para 1388).
Chief Justice Sikri records the date of that Supreme Court judgment as 26 April 1971, in Kunjukutty Sahib v. State of Kerala [1972] S.C.C. 364. He says it upheld the majority judgment of the Kerala High Court in V.N. Narayanan Nair v. State of Kerala, A.I.R. 1971 Kerala 98 (para 4).
Khanna, J. gives the date of the Supreme Court judgment as 26 April 1972 and the report as (1972) 2 S.C.C. 364. He adds that some writ petitions filed in this Court against the Act were disposed of in line with that decision (para 1388).
After the High Court judgment, Ordinance 4 of 1971 amended the Act on 30 January 1971. The Bill replacing it passed the Legislative Assembly on 26 April 1971. It got the President's assent on 7 August 1971 and was published on 11 August 1971 as Act 25 of 1971 (paras 3, 1389).
The petitioner applied to urge additional grounds and to amend the petition to challenge the constitutional amendments (paras 3, 6).
This Court allowed the application on 10 August 1972 and issued notices to the Advocates-General (para 7).
The petition was amended twice. The first amendment let the petitioner challenge Act 25 of 1971. The second added a prayer to declare the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments unconstitutional, ultra vires, null and void (para 1390).
The Constitution Bench referred the case to a larger bench to decide the validity of the amendments. Similar orders were passed in the other writ petitions (paras 8-9).
The larger bench was constituted. It was then felt necessary to decide whether I.C. Golak Nath v. State of Punjab [1967] 2 S.C.R. 762 was rightly decided (para 10).
Counsel in other similar petitions were allowed to intervene (para 1387).
The Judges record the length of the hearing: over 65 working days (para 648) and 66 days (para 1111).
The Judges did not decide the validity of the Twenty-sixth Amendment. That question was left to the Constitution Bench, to be decided in accordance with the law laid down here (paras 507, 648).
The Judges did not decide the validity of the individual Kerala Acts. Counsel did not address arguments on them, and the Constitution Bench will decide that (para 504).

Facts

The Kerala Land Reforms Act, 1963 (Act 1 of 1964) was inserted as item 39 in the Ninth Schedule when it was first enacted (para 1388).
The Act was later amended by the Kerala Land Reforms (Amendment) Act, 1969 (Act 35 of 1969) (para 2).
On 21 March 1970 the petitioner filed Writ Petition No. 135 of 1970 under Article 32. He sought to enforce his fundamental rights under Articles 25, 26, 14, 19(1)(f) and 31 (para 2).
He prayed that the provisions of the Act, as amended in 1969, be declared unconstitutional, ultra vires and void. He also prayed for an appropriate writ or order during the pendency of the petition (para 2).
Mathew, J. records that the petition challenged both the 1969 and the 1971 Acts because some provisions violated Articles 14, 19(1)(f), 25, 26 and 31 (para 1603).
While the petition was pending, the Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of 1971) was passed. The petitioner applied to challenge its validity too (para 3).
The Constitution (Twenty-fourth Amendment) Act came into force on 5 November 1971. The Twenty-fifth came into force on 20 April 1972 and the Twenty-ninth on 9 June 1972 (paras 5, 2090). Paragraph 5 as printed calls the first of these the Twenty-fifth. The other opinions give the order as Twenty-fourth, Twenty-fifth, Twenty-ninth (paras 2089-2090).
Chandrachud, J. records the voting. The Twenty-fourth Amendment: 384 for and 23 against in the Lok Sabha, 177 for and 8 against in the Rajya Sabha. The Twenty-fifth: 355 for and 20 against, then 166 for and 20 against. The Twenty-ninth: 286 for and 4 against, then 170 for and none against (para 2089).
The Twenty-fourth Amendment added Clause (4) to Article 13: nothing in this article shall apply to any amendment of this Constitution made under Article 368. It renumbered Article 368 and added a new Clause (1). That clause says Parliament may, in exercise of its constituent power, amend by way of addition, variation or repeal any provision, following the procedure in the article (paras 417, 1391-1392, 2091).
The same Amendment made it obligatory for the President to give assent to an amendment Bill. It also added Clause (3): Nothing in Article 13 shall apply to any amendment made under this article (paras 417, 1392, 2091).
The petitioner described five results of the Twenty-fourth Amendment (para 418):
- It gives Article 368 an express power to amend, so the source of the amending power is in that article.
- It makes presidential assent obligatory.
- It uses the words amend by way of addition, variation or repeal.
- It says Parliament acts in exercise of its constituent power.
- It says the bar in Article 13 does not apply to amendments under Article 368.
The Twenty-fifth Amendment substituted a new Article 31(2). The new clause lets property be acquired or requisitioned for a public purpose by a law that provides an amount fixed by the law or determined by stated principles. No such law may be questioned in a court because the amount is inadequate or is given other than in cash (paras 428, 1393, 1605).
A proviso to the new Article 31(2) protects minority (a section of citizens based on religion or language) educational institutions. A new Clause (2B) says Article 19(1)(f) does not affect such a law (paras 428, 1393).
The Twenty-fifth Amendment added Article 31C. It says no law giving effect to the State's policy of securing the principles in Article 39(b) or (c) shall be void for inconsistency with Articles 14, 19 or 31. It adds that no law containing a declaration that it gives effect to such policy may be questioned for not doing so (paras 448, 1394).
The proviso to Article 31C makes a State law subject to the President's assent after it is reserved for his consideration (para 448).
The Twenty-ninth Amendment inserted two Kerala Acts into the Ninth Schedule as entries 65 (Act 35 of 1969) and 66 (Act 25 of 1971). Article 31B was thus attracted to them (paras 5, 489, 1389, 2059, 2093).
Khanna, J. gives the date of the President's assent to the Twenty-ninth Amendment as 9 June 1972 (para 1389).
Chandrachud, J. says the Twenty-ninth Amendment made the petitioner's challenge to the two Acts infructuous, depending on its own validity (para 2093).
Palekar, J. records that the petitioner feared he would not succeed against the Acts in view of the Amendments. So he also challenged the Twenty-fourth, Twenty-sixth and Twenty-ninth Amendments (para 1265).
The Twenty-fourth Amendment was passed after Golak Nath. In that case six Judges held that Article 13(2) applied to constitutional amendments and so fundamental rights could not be abridged or taken away. Five Judges held it did not (para 52).
Sikri, C.J. records the extreme positions of the sides. The respondents claim Parliament can abrogate fundamental rights, even replace democracy, short of repealing the Constitution (para 11). The petitioners say the power is much more limited (para 12).

Issues Raised

The judgment is a set of separate opinions. Each Judge frames the questions in a different way. The questions below follow the judgment.

What is the extent of the amending power conferred by Article 368 on Parliament, apart from Article 13(2) (Sikri, C.J., para 10)?
Was I.C. Golak Nath v. State of Punjab rightly decided, and what exactly did it decide (Sikri, C.J., paras 10, 16, 41-52; Shelat and Grover, JJ., para 510)?
What is the scope, ambit and extent of the amending power in Article 368 (Shelat and Grover, JJ., para 510)?
Is the Constitution, and an amendment to the Constitution, law within the meaning of Article 13(2) (Ray, J., para 792)?
Is there any implied or inherent limitation on the power of amendment, apart from Article 13(2) (Ray, J., para 792)?
What does the word law in Article 13 and the word amendment in Article 368 mean (Reddy, J., para 1113)?
Can Parliament, acting under Article 368, amend Part III so as to take away or abridge fundamental rights (Khanna, J., para 1387)?
What is the true ratio and effect of Golak Nath, and should it be upheld (Chandrachud, J., para 2094)?
If the majority decision in Golak Nath is incorrect, what are the inherent or implied limitations, if any, on the power of Parliament to amend the Constitution under Article 368 (Chandrachud, J., para 2094)?
Is the Constitution (Twenty-fourth Amendment) Act, 1971 valid (Sikri, C.J., para 417; Hegde and Mukherjea, JJ., para 648; Mathew, J., para 1607)?
Is Section 2 of the Constitution (Twenty-fifth Amendment) Act, 1971, which changed Article 31(2), valid (Sikri, C.J., para 428)?
Is Section 3 of the Twenty-fifth Amendment, which added Article 31C, valid (Sikri, C.J., para 447)?
Can Parliament delegate its function of amending the Constitution to State legislatures or to itself in its ordinary legislative capacity (Sikri, C.J., para 466)?
Is the Constitution (Twenty-ninth Amendment) Act, 1972 valid, so that the two Kerala Acts in the Ninth Schedule get the protection of Article 31B (Sikri, C.J., paras 489-501; Shelat and Grover, JJ., para 644)?
Is the validity of the Twenty-fifth and Twenty-ninth Amendments dependent on the validity of the Twenty-fourth Amendment (Mathew, J., para 1607)?

Arguments Contended

The judgment records the arguments across the separate opinions. They are grouped below by theme. The petitioners are mainly argued by Mr. Palkhivala. The respondents are argued by the Attorney-General, Mr. Seervai, the Solicitor-General and the Advocate-General of Maharashtra. Paragraph numbers show where each Judge records the argument.

For the petitioners (Mr. Palkhivala)

Extent of the claim: Sikri, C.J. records that the petitioners say the Constitution gave Indian citizens freedoms meant to last for ever and to free the nation from future tyranny by the representatives of the people. Article 31C, they say, takes that freedom away (para 12).
Meaning of amendment: the word in Article 368 can mean only a change that improves the Constitution and fits its nature and purpose. It cannot change the basic structure or essential features (Mathew, J., para 1615). The word is not a term of art and has no fixed meaning (Chandrachud, J., para 2139). It may mean to improve or remove an error, judged by the basic philosophy of the Constitution (Ray, J., para 881).
Implied and inherent limitations: even if amendment has its widest meaning and law in Article 13(2) does not include an amendment, there are inherent and implied limits. They flow from three basic features that every republic's Constitution must have (Mathew, J., para 1664). Ray, J. records them as: the ultimate legal sovereignty lies in the people, Parliament is only a creature of the Constitution, and the power to destroy essential features is an application of ultimate legal sovereignty (para 918).
Essential features: Mr. Palkhivala listed 12 essential features (Ray, J., para 919). They include the supremacy of the Constitution and the sovereignty and integrity of India. They also include the democratic way of life, the republican form of government and the basic human rights in Part III. The list adds a secular State, a free and independent judiciary, and the dual structure of the Union and the States. Mathew, J. records a similar list (para 1685).
Core of essential features: though essential features could be amended, the core of them could not. No precise definition is needed, because the trained judicial mind can find what is essential (Ray, J., para 950).
Preamble (the short statement of aims at the start of the Constitution): the Preamble sets out the great objectives of the people and operates as an implied limit on amendment (Mathew, J., para 1680). Its guarantee would be meaningless if the legislature could abrogate it (Ray, J., para 794). The Preamble is not part of the Constitution but precedes it and is part of the Constitution statute (Sikri, C.J., paras 105-107; Shelat and Grover, JJ., para 551).
Article 13(2): an amendment of the Constitution is law. The unamended Article 368 did not prevail over Article 13 (Ray, J., paras 793, 818). The oath in the Third Schedule uses the words Constitution as by law established. It shows the Constitution and every amendment is established by law (Ray, J., paras 794, 818).
Laws in force: Mr. Palkhivala argued that constitutional laws of the Princely States and British India survived as laws in force under Article 372. So law in Article 13(1) includes constitutional law (Hegde and Mukherjea, JJ., para 664; Ray, J., para 821; Mathew, J., para 1643; Chandrachud, J., para 2163).
Constituent Assembly record: he relied on the stages through which Article 13 passed in the Constituent Assembly (Hegde and Mukherjea, JJ., para 668).
Proviso to Article 368: even minor provisions need ratification by the States, so the framers would not have made fundamental rights a plaything of Parliament (Hegde and Mukherjea, JJ., para 671). If fundamental rights could be abridged, the procedure in the proviso would have been made mandatory for them. The proviso's omission shows they were not to be amended in that way (Mathew, J., para 1654).
Foreign authorities: he relied on Canadian decisions such as the Alberta Press case, the Initiative and Referendum case and Switzmen v. Elbling (Sikri, C.J., para 468; Ray, J., para 1016; Mathew, J., para 1700), on Taylor v. Attorney-General of Queensland and State of Victoria v. Commonwealth (Ray, J., paras 1027, 1032), on Irish cases (Ray, J., para 1039) and on American, Canadian, Australian, Irish and Ceylon amending provisions (Ray, J., para 997).
Ceylon: Section 29(1) of the Ceylon Constitution corresponds to Articles 245-246, Section 29(4) to Article 368, and Sections 29(2)-(3) to Article 13(2). In Ranasinghe the Judicial Committee called these provisions entrenched and unalterable (Sikri, C.J., paras 207, 214).
Consequences of limitless power: the width of a power is tested by what can possibly be done under it, not by how probable it is that it will be used (Ray, J., para 879). He cited countries where an amending power was used to end democracy (Shelat and Grover, JJ., para 557).
Fundamental rights: they are an essential feature and the rock on which the Constitution is built. They are extensions of the natural rights of life, liberty and equality, which the people reserved to themselves (Mathew, J., para 1730). Many human rights are inalienable (Mathew, J., para 1745; Beg, J., para 1907).
Source of the amending power: he did not contend that the power lies in Articles 245, 246 and 248 with Entry 97. He said it does not matter whether the power is there or in Article 368 (Mathew, J., para 1634). He conceded that Parliament could transfer the source of the power to Article 368 (Sikri, C.J., paras 419-420).
Twenty-fourth Amendment: Parliament is a creature of the Constitution and cannot enlarge its own power over the Constitution. The amending power cannot include power to enlarge itself or to abrogate limits implied in its grant (Sikri, C.J., para 421; Mathew, J., para 1778). The inhibition of Article 13(2) cannot be removed indirectly by an amendment (Mathew, J., para 1780). He argued the Amendment, by its statement of objects, tried to enlarge the power (Hegde and Mukherjea, JJ., paras 708, 715; Ray, J., para 955).
Referendum: the people reserved to themselves the power to amend essential features, and any such amendment should go to them by referendum (Ray, J., para 970).
Article 31(2) as amended: the word amount implies a norm for fixing it. Principles for fixing it must have some relevance to the amount (Mathew, J., para 1807). The aim of the amendment was to exclude judicial review (the power of courts to test the validity of laws and actions) of adequacy or relevance (Mathew, J., para 1808).
Article 31C: it subverts seven essential features of the Constitution. It destroys the supremacy of the Constitution, subordinates fundamental rights to directive principles (guiding goals for State policy that courts do not enforce) and virtually abrogates the manner and form of Article 368 (Reddy, J., para 1219; Chandrachud, J., para 2216). It would shield laws like those struck down in Balsara (Sikri, C.J., para 456).
Article 31C and totalitarianism: it has four features of totalitarianism: no equality, no freedom of speech, no personal liberty under Article 19(1)(b), and property at the State's mercy. Mr. Palkhivala also said every implication was deliberately intended (Sikri, C.J., paras 461, 463).
Article 31C and the President's assent: the President's assent is no protection, because the President acts on the advice of the Union Cabinet (Sikri, C.J., para 457). Counsel asked why Parliament and the States may violate Article 19(1)(a) when Article 39(b) and (c) have no link with that freedom (Mathew, J., para 1832).
Delegation of amending power: Article 31C delegates the amending power to State legislatures. He relied on the Initiative and Referendum case to say an amending power cannot be delegated (Sikri, C.J., paras 466, 468, 483).
Twenty-ninth Amendment: Article 31B had an original link with agrarian reform under Article 31A. Before an Act in the Ninth Schedule gets Article 31B protection, it must satisfy Article 31A, because of the opening words without prejudice to the generality of the provisions contained in Article 31A (Sikri, C.J., para 494; Hegde and Mukherjea, JJ., para 781). He did not challenge the validity of Article 31B itself (para 781).
Mangal Singh: counsel relied on Mangal Singh v. Union of India to show a limit on power implied from the Constitution's scheme (Dwivedi, J., para 2000).
Preamble of Canada's Act: counsel invited attention to the Canadian position on civil liberties, where the Preamble to the British North America Act speaks of a Constitution similar in principle to that of the United Kingdom (Khanna, J., para 1547).

For the respondents (Attorney-General, Mr. Seervai, Solicitor-General, Advocate-General of Maharashtra)

Extent of the power: Parliament can abrogate fundamental rights and even replace democracy, short of repealing the Constitution (Sikri, C.J., para 11). The Attorney-General conceded that the power cannot be so wide as to create a vacuum by abrogating the rest of the Constitution (Beg, J., para 1897). The Attorney-General and Mr. Seervai conceded that the whole Constitution cannot be abrogated and a new one substituted (Sikri, C.J., para 225).
Meaning of amendment: the word has a clear, precise and unambiguous legal meaning of the widest amplitude. Revision and amendment have been held synonymous by American courts (Reddy, J., paras 1170-1171). Amendment does not mean improvement, relying on American decisions (Ray, J., para 898). The Attorney-General said the Golak Nath majority rejected the narrow meaning of amendment (Reddy, J., para 1177).
Improvement: the Advocate-General of Maharashtra said a person proposing an amendment will always say it is an improvement. Dictionary links between amendment and improvement are therefore euphemistic (Reddy, J., para 1178).
Constituent power: the Constitution is the supreme higher law. An amendment is an exercise of constituent power and not legislative power. Law in Article 13(2) embodies the doctrine of ultra vires and does not include an amendment (Ray, J., para 795).
Article 368 and the Constitution as a human institution: the Constitution should not be treated as sacred and should be alterable in every part to meet changed conditions. The Constituent Assembly, knowing it would disperse, recreated a Constituent Assembly through Article 368 (Hegde and Mukherjea, JJ., para 702).
Structure of Article 368: the Advocate-General of Maharashtra stressed that Article 368 is the only article in a separate Part titled Amendment of the Constitution. Under it Articles 4, 169 and the Fifth and Sixth Schedule paragraphs can be amended, and they carry only a limited power (Shelat and Grover, JJ., para 533). Mr. Seervai made a similar point about those provisions (Sikri, C.J., para 77).
Background of Article 368: the Attorney-General said any limit on the amending power was never in controversy in the Constituent Assembly. Only the degree of flexibility was. The Constitution has three methods of amendment, which strike a balance (Ray, J., para 922).
Preamble: the Advocate-General said the Preamble is ambiguous and its concepts, such as human dignity and social and economic justice, are vague (Shelat and Grover, JJ., para 547). Mr. Seervai relied on Attorney-General v. Prince Ernest Augustus of Hanover to show a preamble yields to clear enacting words (Sikri, C.J., para 114).
No implied limits: counsel strenuously urged that no implied limitation can arise from the scheme of the Constitution (Sikri, C.J., para 239). The Solicitor-General conceded that implications can arise from a Constitution, but said none arises from Article 368 (para 267). The Advocate-General of Maharashtra accepted implications in a federal Constitution but said the principle of Queen v. Burah is not displaced (Shelat and Grover, JJ., para 606).
Clear words: if power is conferred in clear and unambiguous language, the consequences of its exercise cannot be used to read it down (Ray, J., para 996). The unambiguous meaning of amendment cannot be destroyed to nurse a theory of implied limits, which repudiates the democratic process (Ray, J., para 989).
Abuse of power: the Advocate-General of Maharashtra said an amending power cannot be construed by speculating that it will be abused. A court should not assume extravagant use of power by a responsible legislature, relying on Bank of Toronto v. Lambe (Shelat and Grover, JJ., para 561).
Interpretation: Mr. Seervai relied on British Coal Corporation v. King. A constituent or organic statute must be read in the widest possible amplitude of power. A grant of the power of amendment cannot be cut down except by express or implied limits (Ray, J., para 915). He also argued the construction principles in Vacher, Ajaib Singh and Digvijaysinhji. Narrow meaning would cause uncertainty, friction and confusion (Sikri, C.J., paras 330-342).
Judicial review and the amending power: Mr. Seervai said that if the power of amendment is co-extensive with the power of the judiciary to invalidate laws, the democratic process and the co-ordinate nature of the departments of the State are maintained (Ray, J., para 984). The Advocate-General of Maharashtra said that unless the power of amendment equals the judicial power to invalidate laws, the judiciary would be supreme (Shelat and Grover, JJ., para 614). Mr. Palkhivala replied that if the Constitution is supreme, the amending power must be limited (para 614).
Essential features test: Mr. Seervai said there is no foundation for the analogy that Judges find essential features on the test of reasonableness. A legislature has the standard of reasonableness for its laws, but no similar standard for essential features exists (Ray, J., para 951). He said the basic structure test is unsatisfactory and hard for Parliament to follow, and that the framers dropped due process for certainty (Sikri, C.J., para 314).
Every provision is essential: the Attorney-General said every provision was put in the Constitution because it is essential (Sikri, C.J., para 316).
Natural rights: Mr. Seervai said Part III itself shows that the Constitution does not adopt the theory of natural or moral rights. Article 19 gives freedoms to citizens only. Article 33 allows restriction for the armed forces and Article 34 during martial law. Articles 358 and 359 suspend rights in an Emergency. The words rights conferred in Article 13(2) show the rights were conferred by the people under the Constitution (Sikri, C.J., paras 319-322; Ray, J., para 973; Mathew, J., para 1742).
Basheshar Nath: Mr. Seervai relied on the observation of S.K. Das, J. that the doctrine of natural rights affords nothing but a foundation of shifting sand (Sikri, C.J., para 325).
Foreign authorities: Mr. Seervai and the Attorney-General relied on Barwick, C.J. in the Australian Engineers' case (Sikri, C.J., para 246). Mr. Seervai relied on Liyanage for the point that constituent power is exhaustive and no vague limit of natural justice applies (paras 268-274). He relied on McCawley v. The King for four propositions about controlled and uncontrolled Constitutions (paras 280-285). He argued that entrenched in Ranasinghe meant only that a special procedure applied (para 215). He relied on a passage in Ranasinghe omitted from his written note, which Sikri, C.J. discusses (paras 221-222).
American authorities: Mr. Seervai and the Attorney-General relied on American decisions on Article V (Sikri, C.J., para 346). The Attorney-General relied on several American decisions and writers (Ray, J., paras 898, 1003, 1005; Reddy, J., para 1154). Mr. Seervai urged the 18th Amendment case (Sikri, C.J., para 364). The Attorney-General brought extracts from 71 Constitutions (Sikri, C.J., para 373).
Ranasinghe: the Advocate-General of Maharashtra said the observations about entrenched provisions being unalterable were obiter. The respondent's case was never that any provision is unamendable. Under the Ceylon Constitution only the form and manner mattered (Shelat and Grover, JJ., para 598).
Constituent Assembly debates: counsel on both sides relied on speeches in the Constituent Assembly (Sikri, C.J., para 194; Hegde and Mukherjea, JJ., para 667). The Advocate-General of Maharashtra said this Court's attitude to parliamentary debates has changed since Gopalan's case (Chandrachud, J., para 2237). It was urged that draft Article 305 showed every provision of the Constitution could be amended (Sikri, C.J., para 202).
Twenty-fourth Amendment: the respondents contended it enlarged Parliament's power only if Golak Nath had limited it. Article 368 contemplates self-amendment, so Parliament can confer additional powers on itself (Sikri, C.J., para 422). They relied on Ryan's case and Moore's case (para 423). Article 368 and the proviso permitted amendment of Article 368 (Hegde and Mukherjea, JJ., para 715).
Twenty-fifth Amendment, Article 31(2): the Advocate-General of Maharashtra said the right of the owner is whatever the government determines. The legislature can give what it pleases (Shelat and Grover, JJ., para 625). He said fixing the amount or the principles is for the legislature, and the aim was to exclude judicial review. Under the Cabinet system the government decides, and the ruling party's members must support it (Shelat and Grover, JJ., para 627).
Twenty-fifth Amendment, Article 31(2), Solicitor-General: the amended Article 31(2) still requires a sum of money, in cash or otherwise. The legislature acts on some principle because of the nature of legislative power. Only adequacy and the manner of payment are excluded from review. The owner keeps a fundamental right (Shelat and Grover, JJ., para 628).
Mischief rule: the Advocate-General said the true scope of Article 31(2) must be found from the mischief of the amendment (Hegde and Mukherjea, JJ., para 729). He said the amendment was needed because the Bela Banerjee line was indirectly overruled by the Bank Nationalisation case (para 736).
Article 31C: it was urged that Article 31C does not delegate the amending power but lifts the ban placed by Part III on certain laws (Sikri, C.J., para 483). The Advocate-General of Maharashtra said the same and pointed to other articles that lift bans on legislative power (Hegde and Mukherjea, JJ., para 764). The Solicitor-General said it is an implied amendment of Article 368 and relied on Kariapper (Sikri, C.J., para 484). It was urged that State law under Article 31C is like delegated legislation, which draws its authority from the enabling Act (Sikri, C.J., para 462).
Article 31B and the Ninth Schedule: it was argued that the device has been upheld by this Court in many decisions, so it is too late to impeach it. One object of Article 31B was to prevent time-consuming litigation that holds up urgent reforms (Sikri, C.J., paras 502, 506).
Consequences: counsel painted a lurid picture of what follows if a wide, untrammelled power is conceded. Chandrachud, J. says they do not scare him (para 2191).

Arguments in earlier cases that Sikri, C.J. records

In Sankari Prasad, the petitioners argued that Article 368 power lies in the two Houses as a designated body and not in Parliament. They also argued that Article 368 is a complete code and that the Amendment Act, passed after amendments to the Bill, was not passed in conformity with it. And they argued that the Amendment Act fell within the prohibition of Article 13(2) (para 17).
Mr. Seervai contends that the body that amends the Constitution under Article 368 is not Parliament (para 19).
In the Golak Nath case, counsel said they could not give an exhaustive list of basic features. They named sovereignty, the republican form of government, the federal structure and fundamental rights (Bachawat, J., quoted in para 50).

Court's Reasoning

The judgment has 2,264 numbered paragraphs, numbered straight through all the opinions. There are eleven separate opinions by thirteen Judges. Each opinion is a separate subsection below, in the order of the judgment. Steps follow each Judge's own order. The paragraph numbers belong to the opinion under which they appear.

S.M. Sikri, C.J. (paras 1-508)

Noted: The Chief Justice divides his judgment into eight parts: Introduction, Golak Nath, original Article 368, the 24th Amendment, Section 2 and Section 3 of the 25th Amendment, the 29th Amendment, and Conclusions. (para 1)
Noted: He states the facts of Writ Petition No. 135 of 1970 and the order of the Court allowing additional grounds. (paras 2-9)
Held: Whether Golak Nath was rightly decided does not matter. The real issue is the extent of the amending power in Article 368, apart from Article 13(2). (para 10)
Noted: The respondents say Parliament can even replace democracy, short of repealing the Constitution. The petitioners say the power is more limited. (paras 11-12)
Held: The answer must depend on the words of Article 368, read as one reads a Constitution that the people gave to themselves. The Chief Justice is not interpreting an ordinary statute. (paras 13-15)
Noted: Part II examines Golak Nath. It first looks at Sankari Prasad and Sajjan Singh, where the Court upheld the First and Seventeenth Amendments. (paras 16-18)
Noted: Mr. Seervai contends that the body amending under Article 368 is not Parliament. Sankari Prasad held that Article 13(2) does not cover amendments made in exercise of constituent power. (paras 19-20)
Noted: In Sajjan Singh, Gajendragadkar, C.J. said Article 368 gives a wide power over all provisions, including Part III. He said fundamental rights are not eternal and inviolate. (paras 21-27)
Noted: Hidayatullah, J. agreed on the result but doubted the reasoning in Sankari Prasad. He said law in Article 13 is not defined to exclude amendments. He said the Preamble gives direction and purpose to the Constitution. (paras 28-33)
Noted: Mudholkar, J. reserved his opinion. He asked whether the Preamble epitomises the basic features, and whether changing a basic feature is an amendment or a rewriting. (paras 34-38)
Noted: In Golak Nath, Subba Rao, C.J. and four Judges held that the power to amend lies in Articles 245, 246 and 248, an amendment is law under Article 13, and Parliament cannot amend Part III to take away rights. The decision applied prospective overruling (a ruling that applies only from its date onward). (paras 39-41)
Noted: Those conclusions were reached while Article 13(2) stood unamended. The Court did not decide the ambit of Article 368 over Article 13(2) or over Article 368 itself. (para 42)
Noted: Subba Rao, C.J. refused to give an opinion on the contention that Parliament cannot destroy the fundamental structure. (para 43)
Noted: The petitioners rightly admit that the 24th Amendment is valid in moving the source of the power from Entry 97 or Article 248 to Article 368. The Chief Justice will not discuss whether an amendment is law under Article 13(2). (paras 44-45)
Noted: He summarises the conclusions of Hidayatullah, Wanchoo, Bachawat and Ramaswami, JJ. in Golak Nath. Six Judges held that fundamental rights cannot be abridged. Five held that Article 13(2) does not apply to amendments. (paras 46-52)
Noted: Part III sets out Article 368 and its proviso as originally enacted. The heading is Amendment of the Constitution but the marginal note says Procedure for amendment. (paras 53-54)
Noted: The expression amendment of the Constitution is not defined. The proviso lists Articles 54, 55, 73, 162, 241, some Chapters, the Seventh Schedule Lists, representation of States and Article 368 itself. (paras 55-56)
Noted: Articles 52 and 53 are not in the proviso. The framers probably never contemplated that there would be no President. (paras 57-59)
Noted: The proviso names Article 162 but not the Governor's appointment or the Council of Ministers. It names the High Court and Union Judiciary chapters but not the subordinate judiciary. (paras 60-62)
Noted: Clauses (c), (d) and (e) of the proviso involve the federal structure. Fundamental rights are not in the proviso at all. (paras 63-64)
Held: The expression amendment of this Constitution must be read in the whole scheme of the Constitution, not in vacuo. The Chief Justice adopts the approach of Lord Greene in Bidie v. General Accident. (paras 65-70)
Noted: The words amend and amendment are used in different senses in the Constitution. In Articles 107, 111, 196, 197, 200 and Article 4 the meaning is narrow. (paras 71-73, 79-81)
Noted: In paragraph 7 of the Fifth Schedule and paragraph 21 of the Sixth Schedule, the word is expanded to addition, variation or repeal. Even there the amendments must be in line with the Constitution. (paras 74-75)
Noted: The Constituent Assembly substituted Section 291 of the Government of India Act, 1935 on 18 August 1949 with wide wording. It rejected a proposal to add variation, addition or repeal to Article 368. (paras 76, 78)
Noted: Mr. Seervai says the power under Articles 4, 169 and the Schedules is limited and the power under Article 368 is not. The Chief Justice says every provision is prima facie amendable, but this does not solve the problem. (para 77)
Noted: Articles 35, 372, 243, 252, 254 and 320(5) join the words amended, altered or repealed for a wider power. (paras 82-88)
Held: The Constitution was drafted with great care, so each word was chosen with care. Section 6(2) of the Indian Independence Act uses the comprehensive phrase repeal or amend. (paras 89-90)
Held: The word amendment takes its colour from Article 368 and the rest of the Constitution. The learned counsel for the respondents concede that the whole Constitution cannot be repealed. (para 91)
Noted: The Preamble and the Objectives Resolution (the resolution of 13 December 1946 setting out the aims of the future Constitution) of 22 January 1947 are set out. Pandit Nehru's words and the history of the Preamble from Shiva Rao's book are reviewed. (paras 92-99)
Noted: In an ordinary statute a preamble cannot modify plain language. In a Constitution, as Sir Alladi Krishnaswami said, all importance has to be attached to the Preamble. (paras 100-101)
Noted: In Berubari, the Court said the Preamble is a key to the minds of the makers but not a part of the Constitution. Wanchoo, J. and Bachawat, J. in Golak Nath followed it. (paras 102-104)
Held: With respect, the Court was wrong in Berubari. The Preamble was expressly voted to be a part of the Constitution. No authority shows that what is true about powers is equally true about limitations. (para 105)
Noted: Mr. Palkhivala distinguishes the Constitution statute from the Constitution. The Chief Justice need not decide this or whether Parliament can amend the Preamble. (paras 106-107)
Noted: This Court has used the Preamble as an aid in Behram Khurshed Pesikaka, Kerala Education Bill and Sajjan Singh. Quick and Garran, Thring, Thornton and Prince Ernest Augustus of Hanover are cited on the use of a preamble. (paras 108-116)
Noted: In Australia there is sharp conflict about whether the Preamble controls the amending power. Story says the Preamble is properly resorted to where words are doubtful. Jay, C.J. and American Jurisprudence are cited. (paras 117-123)
Held: The Preamble of our Constitution is of extreme importance. The Constitution should be read and interpreted in the light of its grand and noble vision. (para 124)
Noted: He then describes the scheme of the Constitution: Part I, Part II and the fundamental rights in Articles 12 to 35, with attention to minorities' rights in Articles 29 and 30. (paras 125-141)
Held: The special rights of minorities were clearly intended to be inalienable. Article 31 shows the framers' intention about property: clauses (4), (5)(a) and (6) protected agrarian reform. (paras 136-137)
Noted: Articles 32 and 33 and 34 show the care with which restriction of fundamental rights was contemplated. (paras 138-141)
Noted: Part IV is described. The directive principles are not justiciable under Article 37. Articles 38 to 51 are reviewed. Sir B.N. Rau's and Sir Alladi Krishnaswami Ayyar's notes show a distinction between justiciable rights and directives. (paras 142-154)
Held: Directive principles are very important but cannot be equated with fundamental rights. The Constituent Assembly deliberately refused to make fundamental rights subject to directive principles. To say directives permit taking away fundamental rights is a contradiction in terms. (paras 143, 153-155)
Noted: The Universal Declaration of Human Rights of 10 December 1948 and the 1966 Covenant describe rights as inalienable. In light of Article 51, the Constitution should be read in line with the United Nations Charter and with international law. (paras 156-165)
Noted: Other parts are surveyed: Parliament, ordinances, emergency in Articles 352 to 359, and special provisions for Scheduled Castes and Tribes. (paras 166-174)
Held: Articles 358 and 359 show that the framers knew fundamental rights might impede the State in an emergency. They suspended Article 19, Article 32 and Article 226 for a limited time. If abrogation was intended, it would have been provided expressly. The argument that these articles show rights are not inalienable is rejected. (paras 175-178)
Noted: Section 6(6) of the Indian Independence Act, 1947 let the Dominion's legislature limit its future powers. No similar provision exists in the Independence Acts of other countries. (paras 179-181)
Noted: The Cabinet Mission statement of 16 May 1946, Sir Stafford Cripps, Maulana Azad's letter, the Secretary of State's reply, and the Explanatory statement all required safeguards for minorities. (paras 182-186)
Noted: The Advisory Committee, the Minorities Sub-Committee and Sardar Patel's reports dealt with minority rights. (paras 187-192)
Held: No one ever contemplated that fundamental rights of minorities could be abrogated by amendment. It is impossible to read amendment of the Constitution as empowering Parliament to abrogate the rights of minorities. (para 193)
Held: Constituent Assembly speeches are not aids for interpreting the Constitution, following State of Travancore-Cochin v. Bombay Co. They may be used only to see historical background or a common understanding. (paras 194-201)
Held: Draft Article 305 does not affect the conclusion that every provision is amendable subject to implied limitations. (para 202)
Noted: The Privy Council in Bribery Commissioner v. Pedrick Ranasinghe is set out in detail. The provisions of the Ceylon Constitution, Sections 7, 18, 29, 52, 53 and 55 are quoted. (paras 203-212)
Noted: The Judicial Committee said Section 29(2) provisions represent the solemn balance of rights between citizens and are unalterable under the Constitution. Mr. Palkhivala relies on this. Mr. Seervai says entrenched only meant a special procedure. (paras 213-215)
Held: Mr. Seervai's interpretation is not accepted. The Judicial Committee distinguished McCawley's case on the ground that it was neither fundamental in the sense of being beyond change nor needing a special procedure. The observations may be obiter, but they deserve careful consideration. Ranasinghe is an exact example of implied limitations on the power to amend. (paras 216-220)
Held: The passage Mr. Seervai relies on, read fully, deals only with procedural conditions. A legislature cannot disregard procedure but may amend it if the instrument allows. (paras 221-223)
Noted: The Judicial Committee also kept in mind the rights of minorities in In re Regulation and Control of Aeronautics in Canada. (para 224)
Held: Because the Indian guarantee covers many rights, it cannot be that all are unalterable. A more reasonable inference is that amendment has some other meaning. That meaning is one allowing a social and economic revolution without destroying the democratic structure, the basic rights and the Preamble's contours. (para 225)
Noted: Implied powers and limitations arise from necessity or scheme. Examples: ancillary powers in Canada (Lefroy), necessary and proper clause in the United States (Story), Ram Jawaya Kapur, Sanjeevi Naidu and U.N.R. Rao. (paras 226-237)
Noted: Other implied limits: public purpose in Article 31(2) (Chiranjitlal Chowdhuri; Darbhanga), non-delegation of essential legislative function (Delhi Laws Act; Raj Narain Singh; Hari Shankar Bagla; Vasantlal Sanjanwala; Birla Cotton Mills; Garewal), and the democratic pattern under Articles 3 and 4 (Mangal Singh). (para 238)
Held: These authorities were cited because it was strenuously urged that no implied limitation can arise from a Constitution's scheme. (para 239)
Noted: Dixon, J. in West v. Commissioner of Taxation and Starke, J. in South Australia v. Commonwealth and Melbourne Corporation v. Commonwealth accepted implications in the Australian Constitution. (para 240)
Noted: State of Victoria v. The Commonwealth was decided on whether the Commonwealth Parliament could include a State's Crown in a tax law. Barwick, C.J. relied on the Engineers' case. Menzies, Windeyer and Gibbs, JJ. accepted implications from the federal structure. (paras 241-249)
Noted: Wynes on Australian State Constitutions and Taylor v. Attorney-General of Queensland show that a legislature cannot alter its representative character. The conflict of opinion on the Preamble gives no help. (paras 250-253)
Noted: In the Canadian Lord Nelson Hotel case, the Supreme Court of Canada held that Parliament and a Provincial Legislature cannot delegate their exclusive powers to each other. This implies a limit on delegation of law-making power to a subordinate body. (paras 254-265)
Noted: Canadian Judges (Abbot, O'Halloran, Duff, Rand) implied limits protecting free speech and discussion. The Solicitor-General concedes that implications can arise from a Constitution but says none arises from Article 368. (paras 266-267)
Noted: Mr. Seervai relies on Liyanage's case, where the Judicial Committee refused to apply vague limits of natural justice. He says constituent power is different from legislative power and exhaustive. (paras 268-274)
Held: Mr. Palkhivala's argument is not like that in Liyanage. He relies on the Preamble and scheme of the Constitution, not on vague natural justice. Liyanage furnishes another instance of implied limits: the judicial power cannot be usurped by the legislature. (paras 274-279)
Noted: McCawley v. The King, relied on strongly by Mr. Seervai, was about an uncontrolled Constitution in Queensland. The Board said the legislature could alter the Constitution by ordinary enactment. (paras 280-284)
Held: The first two of Mr. Seervai's four propositions from McCawley are deducible from it. The third, that only express or necessarily implied limits count, does not emerge. The fourth states a fact that does not help. McCawley applies only where the Constitution is uncontrolled. (paras 285-288)
Noted: In Attorney-General for New South Wales v. Trethowan, the Judicial Committee held that Section 7A, which needed a referendum to abolish the Legislative Council, bound the legislature. One contention was that the legislature must remain representative. This is another illustration of an implied limit. (paras 289-295)
Noted: In the United States, Cooley and Corwin show implied limits on taxation of federal and State agencies from McCulloch v. Maryland and Osborn. What was implied there is express in Articles 285, 287, 288 and 289 here. (paras 296-303)
Noted: The cases directly on implied limits to an amending power are Ranasinghe, Mangal Singh, Taylor v. Attorney-General of Queensland and the Initiative and Referendum case. (para 304)
Held: From the Preamble, the inalienability of fundamental freedoms, directive principles and the omission of Articles 52 and 53 from Article 368, it follows that amendment is not used in the widest sense. There was a common understanding that fundamental rights would remain in substance and that secularism, democracy and individual freedom would always subsist. A necessary implication of limits arises. (paras 305-308)
Why: The consequences of the respondents' view are that a party with a two-thirds majority could establish totalitarianism and make the Constitution unamendable. This would invite revolution. The meaning adopted allows a gradual social and economic revolution while preserving freedom and dignity. (paras 309-310)
Held: Amendment of this Constitution in Article 368 means any addition or change in any provision within the broad contours of the Preamble and the Constitution, to carry out the Preamble's objectives and the Directive Principles. Fundamental rights cannot be abrogated, but reasonable abridgements in the public interest can be made. (para 311)
Noted: It is for Parliament to decide whether an amendment is necessary. The Courts are not concerned with its wisdom. The meaning allows Parliament to adjust fundamental rights to secure what the Directive Principles require. (paras 312-313)
Held: Mr. Seervai says the test is unsatisfactory and hard to follow. The Constitution itself uses imprecise terms like reasonable restrictions. Lord Reid said in Ridge v. Baldwin that what cannot be exactly defined does not therefore not exist. The concept of amendment within the contours of the Preamble is not vague. (paras 314-315)
Held: The Attorney-General says every provision is essential. This is true but does not place every provision in the same position. Every provision can be amended provided the basic foundation and structure remain the same. (para 316)
Held: The basic structure includes: supremacy of the Constitution, republican and democratic form of Government, secular character, separation of powers (the spread of law-making, administering and judging among different organs), and federal character. The foundation is the dignity and freedom of the individual, which cannot be destroyed by any amendment. The features are discernible from the Preamble and the whole scheme. (paras 316-318)
Held: Mr. Seervai says there are no natural or inalienable rights. The reply is that the rights are natural rights but the country does not extend Article 19 to non-citizens. Articles 33, 34, 358 and 359 are based on the country's security and do not make rights any less natural or human. Conferred does not mean granted by a superior power. India signed the Universal Declaration. (paras 319-323)
Noted: This Court has described fundamental rights as natural rights or human rights in Gopalan (Patanjali Sastri, J.), Subodh Gopal Bose, Ujjam Bai (Hidayatullah, J.) and the Allahabad High Court in Motilal. (para 324)
Held: The observation of S.K. Das, J. in Basheshar Nath that natural rights are shifting sand is the minority view on waiver. Das, C.J., Kapur, Bhagwati and Subba Rao, JJ. held no waiver of Article 14. Article 14 has been called a principle of republicanism. (paras 325-327)
Held: The First Amendment changes in Articles 15 and 19, Article 31A, and the Fourth Amendment to Article 31(2) would be within the amending power as defined. Mohd. Maqbool Damnoo is not an authority against the basic features. (paras 328-329)
Held: Mr. Seervai's arguments on construction of entries in Articles 245 and 246 do not bear on Article 368. The Court may consider consequences when words are ambiguous: Vacher, Bank of Toronto v. Lambe, Queen v. Judge of City of London Court and Grundt v. Great Boulder Mines support this. Absurdity is an unruly horse but of assistance. (paras 330-339)
Held: The observations in State of Punjab v. Ajaib Singh, Digvijaysinhji Spinning Mills and Budhan Singh v. Nabi Bux do not help the respondents. No uncertainty or confusion will result from the interpretation given. (paras 340-345)
Noted: The Attorney-General and Mr. Seervai rely strongly on United States decisions under Article V. Article V differs greatly from Article 368: it has two steps, proposal and ratification, ending with the people or States, and has express limits. (paras 346-352)
Noted: The United States Supreme Court has not faced the question whether Congress can abrogate basic features and rights. Hawke v. Smith, Rhode Island v. Palmer and United States v. Sprague are discussed. (paras 353-363)
Held: The 18th Amendment would be valid in India because it did not take away fundamental rights or alter basic structure. Mr. Palkhivala's arguments are not like Group B grounds before the District Court. The touchstone is the intention of the Constitution makers, not any political theory. (paras 359, 364-366)
Held: State court decisions are of little help because amendments of State constitutions are made ultimately by the people. Ex parte Kerby and Eason v. State show this. Authors cited by both sides are not needed. The Indian Constitution must be read on its own terms. (paras 367-372)
Held: Extracts from 71 Constitutions are of no use. Arguing from one Constitution to another is not helpful. (para 373)
Noted: The State (Ryan) v. Lennon of the Irish Supreme Court was not cited in Golak Nath. Article 50 of the Irish Constitution allowed amendment by ordinary legislation for eight years. After that a referendum was needed. (paras 374-378)
Held: The Irish case is distinguishable. After eight years amendments were made by the people, whereas Article 368 does not involve people at all. The Irish Constitution had no Chapter on fundamental rights and no guarantee to minorities. (paras 376-377)
Noted: The Irish court dealt with Amendment Nos. 10, 16 and 17. Sullivan, Meredith and O'Byrne, JJ. in the High Court read amendment widely. Kennedy, C.J. found three limits and held the 16th Amendment invalid as an excessive execution of the power. FitzGibbon and Murnaghan, JJ. took a wider view. (paras 379-402)
Held: The Chief Justice rejects the Attorney-General's view that Kennedy, C.J. decided only on the lack of express power. He concurs that the Oireachtas could not increase its power by substituting sixteen for eight years. There is no direct consultation of the people in Article 368. (paras 399, 403-405)
Noted: In Moore v. Attorney-General for the Irish Free State the Judicial Committee dealt with the Constitution (Removal of Oath) Act, 1933 and Amendment No. 22. Mr. Greene's concession and his arguments are recorded. The Judicial Committee held that the Statute of Westminster removed the restriction. (paras 406-416)
Noted: Part IV sets out the 24th Amendment. The petitioner lists five results of it. Mr. Palkhivala did not dispute the first two and conceded the transfer of the power's source to Article 368. (paras 417-420)
Noted: Mr. Palkhivala says Parliament as a creature of the Constitution cannot enlarge its own power. The respondents say Article 368 contemplates amendment of itself. They rely on Ryan's case and Moore's case. (paras 421-423)
Held: Clause (e) of the proviso gives no different power. Article 368 can only be amended so as not to change its identity. Parliament cannot make the Constitution uncontrolled by changing the two-thirds majority to a simple majority. (para 424)
Held: Notwithstanding anything in the Constitution and in exercise of its constituent power only exclude Article 248 and Entry 97. They do not widen the meaning of amendment. (para 425)
Held: Clause (d) of Section 3, making Article 13 inapplicable, is not bad. After it, a law that merely abridges a right within the limits laid down is not liable to be struck down. The 24th Amendment, as interpreted, is valid. (paras 426-427)
Noted: Part V sets out Section 2 of the 25th Amendment. It aimed to modify the Bank Nationalisation case (R.C. Cooper), where ten Judges held that compensation rules were not met. Compensation was replaced by amount. (paras 428-431)
Noted: Dictionary meanings of amount in the Shorter Oxford, Webster's and the Oxford English Dictionary do not decide the point. The figurative meaning full value cannot be given because the word compensation was deliberately omitted. (paras 432-434)
Held: The amount must be worked out by principles with a reasonable relationship to the property acquired. An amount fixed by law must also be fixed by some principle. A Minister could not say it is fixed because it is the government's wish. (paras 435-437)
Held: A person whose property is acquired can no longer claim full or just compensation. He can still claim that the law lay down principles with rational relation to the property. An arbitrary, illusory or shocking amount, or payment of Rs. 10,000 at Rs. 10 per year, would raise a serious question whether Parliament exceeded its amending power. The same applies to the manner of payment. (para 438)
Noted: A discretion must be exercised reasonably: Roberts v. Hopwood and Williams v. Thomas are relied on. An illusory award is a colourable performance. (paras 439-443)
Held: Clause (2B) making Article 19(1)(f) inapplicable is unwise but not an unreasonable abridgement. A procedure that is arbitrary may be struck down under Article 14. Section 2 of the 25th Amendment, as interpreted, is valid. (paras 444-446)
Noted: Part VI sets out Article 31C: no law giving effect to the policy of securing the principles in Article 39(b) or (c) is void for violating Articles 14, 19 or 31. A declaration that a law does so cannot be questioned. (paras 447-448)
Held: Article 31C opens notwithstanding anything contained in Article 13. It cannot mean that the fundamental rights of minorities are also excluded. Once a declaration is made, no court can question it. A court could not test incidental provisions. Akadasi Padhan and Cooper are cited on the meaning of law relating to. (paras 449-452)
Noted: Mr. Palkhivala says Balsara's struck-down sections would now be protected. The President's assent is no protection, since the President acts on Cabinet advice. (paras 453-457)
Held: Article 31C differs from Article 31A, whose subject-matter is specified. In Article 31C the sky is the limit. The wording of Article 39(b) and (c) is very wide. It is difficult to resist the State's contention that each provision is for giving effect to the policy. (paras 458-459)
Held: The suggestion that courts could examine nexus is not accepted. A court could not separate incidental provisions where a declaration exists. Mr. Palkhivala lists four features of totalitarianism. (paras 460-461)
Held: Article 31C in effect enables States to abrogate Articles 14, 19 and 31 at will, and so to amend the Constitution. This differs from delegated legislation, which stays open to challenge. It could enable a State legislature to set up complete totalitarianism. (paras 462-464)
Held: Parliament cannot abrogate fundamental rights under Article 368, and cannot enable legislatures to do so. Section 3 must be declared unconstitutional on that ground. (para 465)
Held: Article 368 does not enable Parliament to delegate its function of amending the Constitution. It contemplates only a Bill in either House. Parliament cannot delegate its essential legislative functions. (paras 466-467)
Noted: In re Initiative and Referendum Act, the Judicial Committee said the Provincial Legislature of Manitoba could not create and endow with its own capacity a new legislative power. The Attorney-General says it decided only the Lieutenant-Governor point, and cites Nadan v. The King. Mr. Seervai says it was obiter and adds nothing to Queen v. Burah. (paras 468-478)
Held: The Initiative and Referendum case shows limits can be implied in an amending power. Burah was not concerned with amending the Constitution. The Chief Justice's own observations in Delhi Municipality v. B.C. & W. Mills were made apart from authority and are contrary to many decisions. (paras 473-482)
Held: Article 31C does not merely lift the ban. The amendment is effected by the State legislation, which is not in the form Article 368 requires. (para 483)
Held: The Solicitor-General relies on Kariapper to say that Article 31C is an implied amendment of Article 368. Article 31C does not say notwithstanding Article 368. If it is such an amendment, it is beyond Article 368, since Parliament cannot create another legislature to amend the Constitution. (paras 484-487)
Held: Section 3 of the 25th Amendment is void as it delegates power to legislatures to amend the Constitution. (para 488)
Noted: Part VII sets out the 29th Amendment and Article 31B, with the history of Articles 31A and 31B in the First, Fourth and Seventeenth Amendments. (paras 489-493)
Held: Mr. Palkhivala's argument that Article 31B is tied to Article 31A is not accepted. Kameshwar Singh, Visweshwar Rao and Jeejeebhoy show that Article 31B is independent. (paras 494-499)
Held: Because Article 368 does not allow abrogation of fundamental rights, it does not allow it by any means, including Article 31B and the Ninth Schedule. The 29th Amendment is ineffective to protect the Acts if they take away fundamental rights. (paras 500-501)
Held: The argument that the device has long been upheld is rejected. Time does not validate an ultra vires Act, as Lord Atkin said in Proprietary Articles Trade Association and the Boilermakers' case says. (paras 502-503)
Noted: Counsel did not address arguments on the individual Kerala Acts. The Constitution Bench will decide whether they take away or merely abridge fundamental rights. Past amendments to Articles 15 and 19 and agrarian laws are examples of reasonable abridgement. (paras 504-505)
Held: Delay in litigation is not a good reason to deprive persons of fundamental rights. Parliament can pass a transfer law instead. (para 506)
Held: The Conclusions are: (a) Golak Nath held that an amendment is bad if it infringes Article 13(2). (b) it did not decide the meaning of amendment. (c) the expression does not let Parliament abrogate fundamental rights or change the fundamental features so as to destroy identity. (d) the 24th Amendment, as interpreted, is valid. (e) Parliament cannot delegate the amending function. (f) Section 2 of the 25th Amendment, as interpreted, is valid. (g) Section 3 is void. (h) the 29th Amendment is ineffective to protect the Acts if they abrogate fundamental rights. (para 506)
Held: The Constitution Bench will determine the validity of the 26th Amendment. The cases are remitted, and the parties bear their own costs. (paras 507-508)

J.M. Shelat and A.N. Grover, JJ. (paras 509-647)

Noted: The facts are in the judgment of the Chief Justice. Golak Nath has become academic, because the result would be the same even if its majority view were wrong. The main question is the scope, ambit and extent of the power in Article 368. (paras 509-510)
Noted: The petitioners say the amending power is limited and cannot alter essential features. The respondents claim an unlimited power, short of total repeal, so long as no vacuum is left. (paras 511-512)
Noted: The Constitution is unique and organic. The Court does not assume the power will be used as claimed. The width of a power cannot be fixed without examining the rival claims. (paras 513-514)
Noted: The history of the Constituent Assembly is traced from 1934 to the Cabinet Mission, the partition and the Objectives Resolution. Section 8 of the Indian Independence Act, 1947 gave the Assembly legal authority. The Assembly adopted the Constitution on 26 November 1949. (paras 515-516)
Noted: The Constitution is supreme. All organs derive their powers from it. It is a written and controlled Constitution that can be amended only under Article 368. Parts III and IV are the conscience of the Constitution. Parliamentary sovereignty as in England does not prevail here. (para 517)
Noted: India is a secular State with judicial review, adult suffrage and special provisions for minorities and weaker classes. (para 518)
Noted: The Preamble is set out. Granville Austin and Das, C.J. in Kerala Education Bill say fundamental rights and directive principles must be harmonised. (paras 519-521)
Noted: The Statement of Objects and Reasons of the 24th Amendment says Golak Nath prevented Parliament from curtailing rights to give effect to directive principles. Article 368's form before and after the amendment is set out. (paras 522-524)
Noted: Mr. Palkhivala does not dispute the express source of power in Article 368 or the President's obligation to assent. The real attack is on the three other results of the amendment. (para 525)
Noted: The respondents say the 24th Amendment only clarified the position. If the original power was limited, it could not be enlarged by the amending body. (para 526)
Held: Amendment can have more than one meaning, so aids to construction must be used. The meaning should be sought in the Constitution rather than in dictionaries. (paras 527-528, 538)
Noted: Eleven features of Article 368 are listed, including that the power is only implied, the proviso's pattern, and the omission of Articles 52 and 53 and of fundamental rights from the proviso. (para 528)
Held: Clauses (a) and (b) of the proviso follow no logic for the federal structure. Fundamental rights can be amended without ratification by States, which is difficult to understand. The Solicitor-General's reading in of Articles 52 and 53 shows the difficulty. (para 529)
Noted: The word amendment has a narrow sense in Articles 4, 169, 107 and 111. Paragraphs 7 and 21 of the Fifth and Sixth Schedules use the expanded phrase. Mangal Singh held that Article 4 cannot override the democratic pattern. (paras 530-531)
Noted: Mr. Kamath's proposal to add variation, addition or repeal to draft Article 304 was rejected. The 24th Amendment now adds substantially the same words. The Assembly knew the expanded form from the new Section 291 of the 1935 Act. (paras 531-532)
Noted: The petitioners rely on the contrast in language, in five steps. (para 532)
Noted: The Advocate-General of Maharashtra says Articles 4, 169 and the Schedule paragraphs are subordinate to Article 368. The Attorney-General says the expanded phrase adds nothing and cites Articles 320(5) and 392(1). (para 533)
Held: Dr. Ambedkar's categories show only one distinction between the powers. The rejection of Mr. Kamath's amendment is not conclusive for the meaning of amendment. (para 534)
Noted: Mr. Palkhivala gave three meanings of amendment. The respondents say it cannot mean repeal of the Constitution but covers every provision, including the Preamble. (paras 535-536)
Held: Article 5 of the United States Constitution cannot be relied on speculatively. The scheme of Article 368 differs from the amending provisions of the United States, Eire, Australia, Switzerland and Japan, where people take part. The speeches of Nehru and Ambedkar give no conclusive result. (para 537)
Held: A Constitution is not construed in a narrow or pedantic sense. Gwyer, C.J. and Lord Wright say general words may be qualified by context and scheme. The Preamble may be used if amendment has more than one meaning. (para 538)
Noted: The history of the Preamble is traced from Rau's draft to Nehru's statements, the Drafting Committee, Sardar Patel and the debate of 17 October 1949. The proposal to add In the name of God was rejected. (paras 539-544)
Held: The Preamble did not walk before the Constitution. It was adopted last as part of it. It took its principles from the Objectives Resolution and embodies the essential features and the concept that sovereignty is in the people. (para 545)
Held: The Advocate-General says the Preamble is ambiguous and its concepts vague. The Court is wholly unable to accept this. The Constitution makers knew what they meant and enacted Parts III and IV to implement them. (paras 546-547)
Noted: This Court has consistently used the Preamble in Behram Khurshid Pesikaka, Basheshar Nath and the Kerala Education Bill. Rex v. Hess, Switzman v. Elbling and McCawley treat the preamble of an Act as guiding. (para 548)
Held: In Berubari, the Court only rejected the Preamble as a source of power. The Advocate-General himself disputes that the Preamble is not part of the Constitution. (paras 549-550)
Held: Mr. Palkhivala's distinction between the Constitution and the Constitution statute is noted. It hardly matters whether the Preamble is part of the Constitution. It indicates the source of the Constitution, contains the enacting clause and declares the rights and polity. If the expressions of a provision are ambiguous, the Preamble gives valuable guidance on the width of the power in Article 368. (paras 551-552)
Held: The respondents' claim that even the Preamble can be repealed is extraordinary. It is unthinkable that the framers conceived that the Preamble could be wiped out. (para 553)
Held: The Preamble fixes India as a Sovereign Democratic Republic. Amendment cannot be read to take away those characteristics. The width of a power is judged by what can be done under it, not by the likelihood of its use. (paras 554-556)
Held: Mr. Palkhivala's examples of countries that lost democracy do not impress the Court. The Court will not enter the political arena. It may consider consequences of a construction, as in Ajaib Singh and Digvijaysinhji, and Liyanage. (paras 557-561)
Noted: Mr. Palkhivala says the test is what can possibly be done under the power. The Court agrees that consequences can be taken into account when judging the width of a power. The Attorney-General's view that the Preamble is only a declaration of 1947 intention shows the consequence of his construction. (paras 562-563)
Held: Parts III and IV are to be balanced and harmonised for the dignity of the individual. They form a basic element without which the identity of the Constitution would change. (para 564)
Noted: The background to Parts III and IV is traced: British executive's arbitrary acts, the Constitution of India Bill of 1895, the Irish Constitution of 1921, the Nehru Committee of 1928, the Karachi Congress of 1931, the Sapru Committee and the Cabinet Mission. (paras 565-566)
Noted: After the Second World War there was a reaction against positivism in Germany and a movement for human rights. In Britain there can be at least procedural limits on the legislature (Moore; Trethowan). The Objectives Resolution is quoted. (para 566)
Held: The Objectives Resolution is a historical fact that moulded the Constitution. The guarantee of fundamental rights and minority rights was the basis on which separate electorates were given up. These rights formed the essential features and the fundamental conditions on which the groups adopted the Constitution. Ranasinghe's solemn balance of rights and the Aeronautics Reference are cited. (para 567)
Held: Our Constitution is federal. The existence of the Union and the States and the power of judicial review are indispensable. The Advocate-General's reliance on Dicey and on Switzerland does not help because judicial review is an integral part of our Constitution. (para 568)
Held: The scheme of Article 368 gives intrinsic evidence of a limited meaning. An amendment cannot make the Constitution lose its identity. The amending Parliament must continue to be that of a sovereign democratic republic. The States must continue to be associated, and one agency cannot destroy the other. (para 569)
Held: The amending body is not a Constituent Assembly. The respondents admit the Constitution cannot be repealed in whole. The amending body was created by the Constitution and can exercise only the powers given to it. (para 570)
Held: Clause (e) of the proviso does not let Parliament enlarge its own limited power. Pouvoir constituent is vested in the people and was exercised by the Constituent Assembly. The amending power cannot abrogate the Constitution, frame a new one or alter the essential elements. (para 571)
Held: The division into rigid and flexible Constitutions is an oversimplification. There can be procedural and substantive limits. The real distinction is that in a controlled Constitution the Constitution has a higher status by which law is tested. A body that is representative cannot be equated with the people, especially where there is a Bill of Rights. (para 572)
Noted: The American decisions on Article 5 are reviewed: Rhode Island v. Palmer (18th Amendment), Dillon v. Gloss, Sprague, Hawke v. Smith and Whitehill v. Elkins. (paras 573-578)
Held: The American decisions rest on the theory that power is inherent in the people, who are associated in the amending process. This does not apply to Article 368. The decisions give little assistance on the meaning of amendment. (paras 573, 579)
Held: The meaning of amendment must accord with the intention of the framers, from history, the Preamble, the scheme and Article 368. It can be neither narrow nor so wide as to change the identity of the Constitution. The Attorney-General's concession supports this. (para 580)
Noted: Mr. Palkhivala distinguishes inherent limits from implied limits. Our own decisions fall in two categories: limits spelt out of constitutional provisions, and limits on legislative power. (para 581)
Noted: The first category includes public purpose under Article 31(2) before 1955 and Mangal Singh. In Golak Nath, Subba Rao, C.J. thought the argument on structure had considerable force. Wanchoo, Hidayatullah, Bachawat and Ramaswami, JJ. took different views. (para 582)
Noted: The second category includes non-delegation of essential legislative function, and usurpation of judicial power (Prithvi Cotton Mills; New Shorrock Mills). (para 583)
Noted: Article 368 itself has its power only by implication. The Solicitor-General conceded that Articles 52 and 53 are included by implication. Executive power of the President is implicitly limited because he is a constitutional head. (paras 584-585)
Held: Queen v. Burah is about conditional legislation and does not bar implications. If Burah means that powers must be conferred in affirmative words, the respondents' own argument suffers, because Article 368's power is implied. (para 586)
Noted: The Initiative and Referendum case illustrates an implied limit. It bears most on Article 31C. (paras 587-588)
Noted: McCawley dealt with an uncontrolled Constitution. The Advocate-General's four propositions are recorded. The first two are accepted. The third and fourth are answered by the fact that in McCawley the implied limit sought was rejected for an uncontrolled Constitution. (paras 589-592)
Held: Trethowan shows that the Privy Council enforces limits on form and manner even against a sovereign legislature. Limits of any other nature would be unorthodox where parliamentary sovereignty is held. (paras 593-595)
Noted: Ranasinghe is set out. The Advocate-General says the observations on entrenched provisions were obiter and that a controlled Constitution can be made uncontrolled by amendment. Mr. Palkhivala replies that the passage is about form and manner and that Ceylon's power to amend or repeal is wider than Article 368. (paras 596-598)
Held: The observations in Ranasinghe, though obiter, rested on necessary implications from Section 29 and on provisions similar to ours. There is substance in Mr. Palkhivala's argument that Liyanage rests on implied limitation. The Parliament could not usurp judicial power. (paras 599-600)
Held: Kariapper shows an inconsistent law in a controlled Constitution amends it. It does not support the view that judicial power can be transferred to the legislature by amendment. Ceylon's power to amend or repeal is wider than Article 368. (paras 601-602)
Noted: The Australian decisions are reviewed: Engineers' case, Brewery Employees, Dixon, Melbourne Corporation and Victoria v. Commonwealth. Menzies, Windeyer, Walsh and Gibbs, JJ. held there is an implied limit from the federal nature. (paras 603-605)
Held: The Advocate-General accepts necessary implications in a federal Constitution. Burah does not stand in the way of drawing implications from the purpose and scheme of the Constitution. (para 606)
Noted: The Canadian cases show an implied limit on delegation (Nova Scotia Delegation case). Switzman v. Elbling and Duff, C.J. imply protection for public debate. (paras 607-608)
Held: The Advocate-General says these cases are about legislative competence of provincial legislatures. The authors cited conflict, so little reliance is placed on them. The Judges who read limits by implication are of recognised eminence. (para 609)
Noted: The Irish decisions are discussed: Ryan's case, the 1937 Constitution, Burke v. Lennon and Buckley. The majority in Ryan read amendment as wide. Moore was decided on the Statute of Westminster. (paras 610-611)
Held: Sprague gives no help. Mr. Palkhivala's reasons have substance. (paras 612-613)
Held: The Advocate-General says amendment power must equal the judicial power to invalidate laws, or the judiciary would be supreme. Mr. Palkhivala says that a limited amending power makes the Constitution supreme. Judicial review does not make the judiciary supreme. Respondents never contested that the validity of an amendment can be reviewed by this Court. (paras 614-615)
Noted: The Constitution creates checks and balances. Judicial review in Articles 32 and 226 is one of them. The Advocate-General calls judicial review undemocratic, which the Court rejects. (para 615)
Noted: The Attorney-General says implied limits are wrong and that express limits are needed. He cites writers. (para 616)
Held: The argument that there are no implied limits because there are no express limits is a contradiction in terms. Dixon, J. in West v. Commissioner of Taxation is quoted. The respondents admit some limits arise by necessity, such as no repeal of the Constitution and a Sovereign Democratic Republic. (paras 617-618)
Held: The argument that the nation cannot grow without full constituent power does not have a solid basis. The Constitution brings about change without taking away the dignity of the individual. Parts III and IV must be in harmony, as Das, C.J. held. (para 619)
Held: The basic structure is not a vague concept. Illustrative basic elements are: supremacy of the Constitution; republican and democratic form and sovereignty; secular and federal character; demarcation of powers between legislature, executive and judiciary; dignity of the individual; and unity and integrity of the nation. (para 620)
Held: The amending power is neither narrow nor unlimited. It permits amendment of every article by addition, variation or repeal so long as the basic elements are not abrogated or denuded of identity. Articles 13(4) and 368(3) do not change this. (para 621)
Noted: Section 2 of the 25th Amendment and its Statement of Objects are set out. The line of decisions on compensation: Bela Banerjee, Vajravelu, Metal Corporation, Shantilal Mangaldas and R.C. Cooper. The Advocate-General says there would have been no need to amend Article 31(2) if Shantilal had not been overruled. (para 622, and the misnumbered second 530 after para 629)
Held: Amount is a neutral, colourless word. Its meaning comes from context. The scheme of Article 31(2) contemplates a norm or principle. The adequacy cannot be questioned, but an amount with no norm would make the bar on enquiry meaningless. (paras 623-624)
Held: The Advocate-General's argument that the owner's right is whatever the government determines is untenable. It adds arbitrariness. Shantilal Mangaldas allowed review of arbitrary or illusory amounts and relevance of principles. The amendment aims to remove the just-equivalent concept. (paras 625-626)
Held: The Advocate-General's view that the Cabinet determines the amount is incomprehensible without debate and disclosure of basis. There can be no basis without a standard. (para 627)
Held: The Solicitor-General agrees that the legislature must act on some principle. The right to receive the amount continues as a fundamental right. The amount need not be market value but must bear a reasonable relationship to the value. It must not be illusory or arbitrary or amount to virtual deprivation. The Court will give due weight to legislative judgment. Adequacy cannot be examined. (paras 628-629)
Held: There is no suggestion of an arbitrary manner of payment. Clause (2B) will not mean an unreasonable procedure. Section 2 of the 25th Amendment can be sustained on this reading. (paras 630-631)
Noted: Section 3, Article 31C, and its Statement of Objects. Article 39(b) and (c) are set out. (paras 632-633)
Held: The Constitution aims at a welfare State (a State that takes responsibility for citizens' economic and social well-being) and an egalitarian order. Fundamental rights and directive principles supplement one another: directive principles prescribe the goal, and fundamental rights the means. The Constituent Assembly refused Rau's proposal to subordinate rights. (para 634)
Noted: Mr. Palkhivala says Article 31C destroys essential features, gives a blank charter and could support an omnibus article. The respondents say it is like Articles 31A and 31B and excludes judicial review. The Solicitor-General says it protects only law and operates on a particular economic system. (paras 635-636)
Held: Article 31C must be examined for its effect on Articles 14, 19 and 31, and for delegation. If it only aimed at an economic system, it is hard to see why Articles 14 and 19(1)(a) to (d) had to be taken away. The Balsara example shows the danger. The article impinges with full force on several fundamental rights. (para 637)
Held: No amendment to Article 368 allows delegation. One legislature cannot create another legislative body (Initiative and Referendum; Nova Scotia). Article 368 is the only way to amend. (paras 638-639)
Held: The declaration precludes the court from enquiring into incidental encroachment. The nexus argument is of little use, given the width of Article 39(b) and (c). Article 31A is limited to specified topics; Article 31C has objects with unlimited scope. (paras 639-640)
Held: They adopt the Chief Justice's reasoning rejecting the arguments that Article 31C lifts the ban or is an amendment of Article 368. (para 641)
Held: Article 31C has two vices: it enables total abrogation of fundamental rights in Articles 14, 19 and 31, and it delegates a special power exclusively conferred on Parliament. Its purpose may be laudable but it cannot be sustained. (paras 642-643)
Noted: The challenge to the 29th Amendment is only to inclusion of the two Kerala Acts. The petitioners argue that Article 31B is tied to Article 31A. (paras 644-645)
Held: This is settled by Kameshwar Singh, Visweshwar Rao and Jeejeebhoy. A matter settled for years cannot be reopened. It is still open to examine whether the Acts or any provision abrogate basic elements of the Constitution. (para 645)
Held: The conclusions are: (1) Golak Nath is academic. (2) the 24th Amendment only clarifies the unamended Article 368, the power is wide and covers all articles but cannot abrogate or change identity or basic features, even if it reaches Article 13(2) it cannot take away fundamental freedoms, and the Amendment is valid. (3) Article 31(2) as substituted does not abrogate any basic element, if the amount rests on a relevant norm, bears a reasonable relation, is not illusory or arbitrary and is open to review but not on adequacy. (4) Clause (2B) is valid. (5) Section 2 of the 25th Amendment is valid. (6) Section 3 is invalid for two vices. (7) the 29th Amendment is valid, but whether the Kerala Acts abrogate basic elements must be examined later. (para 646)
Held: The petitions are remitted to the Constitution Bench to be decided in accordance with the judgment. It will also decide the validity of the 26th Amendment in light of it. (para 647)

K.S. Hegde and A.K. Mukherjea, JJ. (paras 648-787)

Noted: The Judges heard long arguments over 65 working days and were referred to decisions from England, the United States, Canada, Australia, Germany, Ireland and Ceylon. For paucity of time they did not take up the 26th Amendment or the merits of the writ petitions. (para 648)
Noted: Article 368 as it stood before the 24th Amendment is set out. (para 649)
Noted: Mr. Palkhivala argued in two ways. First, Parliament could not abridge Part III rights under Article 368. Second, it could not damage the basic or fundamental features. The Judges take the first on the language of Articles 368 and 13 alone. (para 650)
Noted: On the first point, Mr. Palkhivala said Article 368 only lays down procedure. The power is legislative and its product is law. Article 13(2) therefore bars it. He also said that Articles 4, 169 and the Schedule paragraphs let Parliament amend by a simple majority, which could take away rights of some sections. (para 651)
Noted: The Attorney-General, the Advocate-General of Maharashtra for Kerala and counsel for other States said that Article 368 contains both power and procedure. Law in Article 13 does not include constitutional law, and no constitutional law was in force when the Constitution began. (para 652)
Noted: Sankari Prasad held that Article 13(2) does not affect amendments. Sajjan Singh followed it, with Hidayatullah and Mudholkar, JJ. doubting. Golak Nath, by six to five, held both wrongly decided. Five of the majority located the power in Articles 245, 246 and 248 with Entry 97. Six Judges located it in Article 368. Prospective overruling and acquiescence saved earlier amendments. (paras 653-655)
Held: The contention that the amendment cannot be challenged once form and manner are followed is not tenable. Parliament must first have the power to amend the provision. If power is wanting, compliance with form and manner is immaterial. (para 656)
Held: The power to amend is found in Article 368. A separate Part for amendment is significant. The Judges respectfully disagree with Subba Rao, C.J. and those who placed the power in Entry 97. Articles 245 to 248 and the Lists deal only with legislative power. (para 657)
Held: Article 368 has three components: the amendment, the body, and the form and manner. It does not expressly confer power but the power is necessarily implied. It contains both power and procedure. The marginal note has little weight. The language is plain. (para 658)
Held: Read by itself, Article 368 reaches every article and every part of the Constitution. (para 659)
Held: There is no substance in the contention that an amendment of a Constitution is not law. The Constitution is the paramount law, so an amendment of it is law. The procedure is the same as for an ordinary statute except as Article 368 provides. (para 660)
Held: The question is whether law in Article 13(2) includes the exercise of the amending power. The two articles must be construed harmoniously. Article 368 is unambiguous, while Article 13 is ambiguous. Law in Article 13(2) means the exercise of ordinary legislative power. (paras 661-662)
Held: The Constitution distinguishes between the Constitution and the laws in Articles 60, 61, 73, 75, 76, 124, 148, 159 and 219. The makers did not use law to include constitutional law. (para 663)
Held: Mr. Palkhivala's argument on constitutional laws in force at the commencement is not accepted. Laws continued under Article 372 depended on that article. Article 13(1) refers to laws in force and does not bear on the meaning of law in Article 13(2). (para 664)
Held: Articles 4, 169 and the Schedule paragraphs are amending powers. A law made under them is not an amendment for the purpose of Article 368. This only means the form and manner need not be followed. The law becomes an ordinary law subject to Article 13(2). (paras 665-666)
Held: No conclusive inference can be drawn from the Constituent Assembly speeches of Nehru and Ambedkar. The Judges need not decide whether they may be relied on. (para 667)
Held: Mr. Palkhivala relies on the drafting history of Article 13. The Drafting Committee deleted Rau's words excluding amendments. It is not clear why. It may have thought Article 368 made the exclusion unnecessary. The inference that the Assembly meant to include amendments is not accepted. (paras 668-669)
Held: This Court has called fundamental rights paramount, sacrosanct, inalienable and transcendental. That does not mean they alone are basic elements. Mr. Palkhivala conceded that basic features lie in many parts of the Constitution, including some directive principles and the provisions on sovereignty, republic and democracy. (para 670)
Held: The argument that States must ratify even minor amendments, so the framers would not make rights a plaything of Parliament, does not lead to a definite conclusion. The States have a special interest in the proviso's provisions. When the language is plain, no question of construction arises. (para 671)
Held: A Constitution must be elastic and no generation can bind the next. The Directive Principles are as important as individual rights. Granville Austin calls Parts III and IV the conscience of the Constitution. (para 672)
Held: Implementing Part IV may need abridging Part III, as with Article 15(4) and Article 19(2). The amending power must receive a broad and liberal interpretation. The Judges reject the contention that no right in Part III can be abridged. (para 673)
Held: The Court is reluctant to overrule earlier decisions. Sankari Prasad and Sajjan Singh took the view that the power includes abridging rights. Golak Nath's narrow majority did not invalidate many laws, by prospective overruling and acquiescence. (para 674)
Noted: The First Amendment was passed by a provisional Parliament of the same persons who were the Constituent Assembly. The interpretation of a provision like Article 368 must subserve national interest and further the objectives of the Constitution. (para 675)
Noted: On the second contention, Mr. Palkhivala says amendment ordinarily means a change or improvement and not the power to abrogate basic features. The Union and the States say the power is of the widest amplitude, and no generation can bind the future. (para 676)
Noted: The primary duty is to find legislative intent. Plain language is given effect despite consequences. If the language can bear more than one meaning, the Court may use the history, scheme and consequences. (para 677)
Held: It was conceded that amendment has no precise meaning. It takes its colour from context and cannot be read in vacuo. Article 368 is part of a single complex instrument. (para 678)
Held: Amendment is used with different meanings in different articles. Paragraph 7 of the Fifth Schedule and paragraph 21 of the Sixth Schedule use addition, variation or repeal. The Constituent Assembly amended Section 291 of the 1935 Act a few days before approving Article 368. There is prima facie reason to think the makers distinguished a mere power to amend from a power to amend by addition, modification or repeal. (para 679)
Held: Since amendment is not of precise import, other rules of construction must be used. (para 680)
Noted: Implied limitation was not decided in Sankari Prasad or Sajjan Singh. Mudholkar, J. foresaw it. In Golak Nath, Subba Rao, C.J. recognised the force of the argument but did not decide it. Wanchoo, J. thought the power does not include abrogating the Constitution. Ramaswami, J. alone rejected implied limits. (paras 681-682)
Noted: Heydon's case asks what mischief was meant to be remedied. The history of the national movement, from the 1895 Constitution of India Bill to the Nehru Committee, the Karachi session and the Sapru Committee, shows demands for fundamental rights. (paras 683-684)
Noted: The Second World War, the Atlantic Charter, the UN Charter, the Cabinet Mission and the Objectives Resolution shaped Parts III and IV. Directive principles express the link between political freedom and social justice. (paras 685-686)
Held: The Preamble shows two primary objectives: a Sovereign Democratic Republic and the securing of rights to citizens. The plan was a welfare State and an egalitarian society. The question is whether the framers intended to empower a constituted body to destroy those ideals. (paras 687-688)
Held: If the nature of a power is doubtful, the Court takes consequences into account. The Union and the States' claim would include power to destroy sovereignty, replace democracy by monarchy, break up the country, destroy secularism, abrogate all rights, extend the life of Parliament and make the Constitution unamendable. They conceded only that the whole Constitution could not be repealed, meaning one clause must remain. The people's will to resist cannot be taken into account. (para 689)
Held: The framers did not provide in the Constitution for the destruction of their own ideals. The Constitution is a social document with basic and circumstantial features. One cannot legally use the Constitution to destroy itself. If basic features are taken away, the Constitution is abrogated in substance. The personality of the Constitution must remain unchanged. (para 690)
Held: The amending power is given to a constituted body and the people are not associated with it. The Court must accept the fact stated in the Preamble that the people gave the Constitution to themselves. It is too late to question this, as the Advocate-General once did. (para 691)
Held: Two-thirds of Parliament does not necessarily represent the majority of the people. The Constitution was framed on consensus, and minorities gave up claims because of the guarantee of fundamental rights. (para 692)
Held: The President's oath to preserve, protect and defend the Constitution cannot mean only the amending power of Parliament. The scheme proceeds on the basis that some basic features are permanent. (para 693)
Held: Implied limitations on a power are a general feature of statutes and also of Constitutions. Gwyer, C.J. and Lord Wright are cited. (paras 694-695)
Held: Several powers, such as the executive power of the Union and legislative powers, have implied limits. There is no basis to say the amending power alone has none. The Solicitor-General conceded that Article 52 cannot be amended without following the proviso, which is a limit by implication. (para 696)
Held: The amending power under Article 368 is subject to implied limitations. Ranasinghe and Liyanage support this. (para 697)
Held: United States writers mostly think there is no implied limit under Article 5. The Supreme Court did not decide this in Rhode Island v. Palmer. In America not a single human right has been taken away. Article 5 differs from Article 368 and no two Constitutions are similar. The Judges will not be burdened by foreign writings and decisions. (para 698)
Held: Burah applies to conditional legislation and has not been used for implied limits on a power. (para 699)
Held: The argument that Parliament could not tell what amendments it can make is not accepted. The broad contours of the basic elements are in the Preamble. There will be border cases, as in other legal questions. The presumption of constitutionality applies to amendments. Arguments on difficulty are essentially arguments against judicial review. (para 700)
Held: The Judges agree entirely with the Chief Justice on the foreign decisions. (para 701)
Held: The contention that the Constitution is not sacred and that the Constituent Assembly recreated itself in Article 368 is fallacious. A party can get a two-thirds majority without a majority of votes. No amendment proposals were put to the electorate in 1952 to 1967. The people have little control on detailed law-making. Laski is cited. (para 702)
Held: It is not true that a two-thirds majority speaks for the nation. A ruling party can carry amendments after losing the electorate's confidence. (para 703)
Held: It cannot be presumed that an amendment adapts the Constitution to the people's needs. A power that can extend Parliament's life or make the Constitution unamendable is not exercised on behalf of the people. (para 704)
Held: Parliament has no power to abrogate or emasculate the basic elements or fundamental features, such as sovereignty, the democratic character, the unity of the country, the essential features of individual freedoms, or the mandate to build a Welfare State. These are illustrative. The amending power is wide and reaches every article. Human freedoms are lost gradually and imperceptibly. (para 705)
Held: The word amendment in Article 368 carries some limitation. The power is subject to implied limitations though it is quite large. (para 706)
Held: The contention that the 24th Amendment enlarged the power is first examined. If it did not enlarge the power, the other contentions do not arise. (paras 707-708)
Noted: The 24th Amendment's text and its six material changes are set out. (paras 709-711)
Held: The 24th Amendment made no material change in Article 368. The power was conferred on Parliament, which under Article 79 consists of the President and the two Houses. The Advocate-General's contrary view is rejected. (para 712)
Held: The marginal note change has no significance. Constituent power only describes the nature of the amending power. The limit that applied before continues. Addition, variation or repeal are modes and do not determine scope. The assent change is a matter of propriety. The President is only a constitutional head. (para 713)
Held: Articles 13(4) and 368(3) make explicit what was implicit. (para 714)
Held: The power of Parliament does not rest on its professed intention in the Statement of Objects. Clause (e) of the proviso does not confer power to enlarge its own power. The power is in the main part and the proviso adds restrictions. (para 715)
Held: A limited power cannot be used to enlarge itself into an absolute power. What Parliament cannot do directly, it cannot do indirectly, as Hidayatullah, J. said. If a provision can bear two meanings, the one making it valid is accepted. The 24th Amendment must be deemed to have exercised only the power it had. (para 716)
Held: The 24th Amendment made explicit what was implicit in the original Article 368, and is valid. (para 717)
Noted: The 25th Amendment has three sections. The history of Article 31(2), from the original text through the Fourth Amendment to the 25th, is set out side by side. (paras 718-721)
Held: The Court may not use Constituent Assembly speeches to interpret Article 31(2), following State of Travancore-Cochin v. Bombay Co. Golak Nath, the Privy Purse case and Dhillon did not use speeches as aids to interpretation. (paras 722-728)
Noted: The mischief rule is applied. Bela Banerjee held that compensation means a just equivalent. Vajravelu followed that and added that illusory compensation or irrelevant principles are a fraud on power. Six principles from Vajravelu are listed. (paras 729-733)
Noted: Metal Corporation was overruled by Shantilal Mangaldas, which held that arbitrary or illusory amounts and irrelevant principles can be challenged but not the justness of the amount. The Bank Nationalisation case did not deviate from this. The Advocate-General says Shantilal was indirectly overruled by Cooper, hence the amendment. (paras 734-739)
Held: The 25th Amendment only replaces compensation with amount and adds the cash clause. It removes the concept of just equivalent. In other respects it accepts the earlier interpretation. What it makes non-justiciable is whether the amount is equivalent to the value. (paras 740-741)
Held: The word amount is neutral. Article 31(2) remains a fundamental right. The contention that the owner's right is whatever the government pleases is rejected as too nebulous to be a fundamental right. (paras 742-743)
Held: The two methods, fixing the amount and laying down principles, must bring about nearly the same result. If the relevance of principles is reviewable, so must be a fixed amount. Fixed postulates a standard. The concession that a court can examine whether an amount is illusory shows the Union's contention is untenable. (paras 744-747)
Held: The State action is still acquisition or requisition and not confiscation. Principles must bear reasonable relationship to the value of the property. (para 748)
Held: Legislators must have principles before them to determine the amount. The Advocate-General's explanation, that the ruling party need not know the basis, is a negation of parliamentary democracy. Opposition members and ruling party members have a right and duty to mould measures by debate. (para 749)
Held: The amount must have a reasonable relationship with the value of the property but may not be the market value. The State may appropriate value that is not due to the owner's contribution. Legislative judgment gets great weight. Courts can review whether the amount is arbitrary or illusory and whether principles are relevant, but not adequacy. (para 750)
Held: Read this way, the right to property is not destroyed. Article 31(2) as amended is valid. (para 751)
Held: Article 31(2B) has no real impact on Article 31(2). Article 19(1)(f) gave only a right to reasonable procedure, which natural justice protects. Section 2 of the 25th Amendment is valid. (paras 752-753)
Noted: Section 3 of the 25th Amendment, Article 31C, has two parts. The first protects laws for Article 39(b) and (c) from Articles 14, 19 and 31. The second bars questions on the declaration. Article 39(b) and (c) give objectives, not subject matter. (para 754)
Held: Fundamental Rights and Directive Principles are the conscience of the Constitution. Part IV aims at a non-violent social revolution. Ignoring Part IV ignores the substance of the Constitution. Over-emphasis on duty endangers democracy, as Kurt Riezler warned. (paras 755-757)
Held: The balancing is for the State and, in the end, the courts. There is no antithesis between Parts III and IV. The Directives set the end and Part III prescribes the means. Controversies on whether courts' interpretations impeded the Directives cannot be decided by courts. (paras 758-759)
Held: Article 31C, if read as the Union says, would denude the right to equality, the seven freedoms of Article 19 and the right to reasonable return. It is an arbitrary blanket power. A small majority could truncate democracy and weaken unity. It could shake the foundation of the Constitution. (para 760)
Held: A power to take away a right by ordinary law is a power to pro tanto abrogate the Constitution (McCawley). It is a power to amend the Constitution in essential respects by ordinary law, conferred on Parliament and State Legislatures. (para 761)
Held: Article 368 requires amendment only in the manner provided. The articles allowing amendment by ordinary law say they are not amendments for Article 368. Article 31C permits Constitution-breaking laws by a simple majority. (para 762)
Held: Article 31C is unlike Articles 4, 169 and the Schedule paragraphs, which operate within narrow fields. (para 763)
Held: The argument that Article 31C lifts the ban is not accepted. Provisions that lift a ban create no conflict with Article 13. Article 31C proceeds on the basis that the laws conflict with Article 13 and are prima facie void. (para 764)
Held: The similarity with Article 31A and Lesser v. Garnett does not help. Article 31A laws can encroach only incidentally and to the extent necessary, as Akadasi Padhan and Cooper show. (paras 765-768)
Held: Balsara shows a law to implement a Directive Principle cannot encroach on fundamental rights with impunity. That principle cannot be applied to Article 31C because its reach is wide and the courts cannot examine if the law gives effect to Article 39. The nexus power is tenuous. Lord Atkin said time alone will not validate an ultra vires Act. The 25th Amendment has crossed the boundary after the First and Fourth Amendments. (paras 769-770)
Held: Parliament cannot delegate the amending power to State Legislatures. It is special and exclusive. One legislature cannot create another (Initiative and Referendum; Burah). The exclusive conferment of the amending power on Parliament is a basic feature of the Constitution. Article 31A made a small dent that went unnoticed and is protected by stare decisis. (paras 771-773)
Held: Neglect of a question in earlier cases is not a sound argument. The Court usually acts on a presumption of validity until a law is challenged. Dixon, C.J. in Queen v. Kirby and the Privy Council in Boilermakers are cited. (paras 774-775)
Held: Article 31C cannot be treated as an amendment of Article 368. It is not in Part XX and does not say notwithstanding Article 368. (para 776)
Held: The purpose of Article 31C can be achieved by Article 31(2) with Article 19(6)(ii) or by taxation. Every governmental power must be exercised without an evil eye or an uneven hand. (para 777)
Held: Article 31C permits destruction of basic features and is void. (para 778)
Noted: On the 29th Amendment, the only plea was that a provision of the two Acts must satisfy Article 31A(1)(a) to get Article 31B protection. The two Acts became items 65 and 66 in the Ninth Schedule. (paras 779-780)
Held: Counsel did not challenge Article 31B. The argument based on without prejudice to the generality of Article 31A has some force. But it is concluded by Kameshwar Singh, Visweshwar Rao and Jeejeebhoy, and there is no justification to reopen it. (paras 781-784)
Held: Whether the Acts abrogate basic features can be examined when their validity is gone into. The contention that an Act must satisfy Article 31A before inclusion in the Ninth Schedule is rejected. (paras 785-786)
Held: The conclusions are: (1) the power in the original Article 368 reached each article and part. (2) law in Article 13(2) did not include amendments even before the 24th Amendment. (3) the power is wide but does not include destroying basic elements or fundamental features. (4) the 24th Amendment only made explicit what was implicit and is valid. (5) Article 31(2) as substituted is valid if the amount has a reasonable relationship, uses relevant principles, is not illusory and not arbitrary, which are open to review though adequacy is not. (6) Article 31(2B) is valid. (7) Article 31C is invalid because it destroys basic features and lets legislatures pro tanto amend by ordinary law. (8) the 29th Amendment is valid, but whether the Acts abrogate basic elements will be examined later. The parties bear their own costs. (para 787)

A.N. Ray, J. (paras 788-1110)

Noted: Ray, J. states the 24th, 25th and 29th Amendments. The 24th amended Article 368 and said nothing in Article 13 applies to an amendment under it. The 25th amended Article 31(2) and (2A) and added Article 31C. The 29th added the two Kerala Acts to the Ninth Schedule. (para 788)
Noted: The principal questions are whether the power is under express limitation of Article 13(2), whether there are implied and inherent limits, whether the Constitution distinguishes essential from non-essential features, and who decides what is essential. The people gave the Constitution to themselves and gave the power of amendment to Parliament. Democracy rests on faith in representatives, as Grote's constitutional morality (commitment to the Constitution's values over personal views) shows. (para 789)
Noted: The answer depends on four points: the ratio of Golak Nath, whether it should be upheld, whether there is any limit on the power to amend, and whether the 24th Amendment was valid. (paras 790-792)
Noted: Mr. Palkhivala says the unamended Article 368 was subject to Article 13(2), with four bars: against the whole State, against all categories of law, against laws in force under Article 372, and rendering the law void. The Preamble shows the object is basic human freedom, and the oath in the Third Schedule refers to Constitution as by law established. (paras 793-794)
Noted: The Attorney-General and Mr. Seervai say the Constitution is the supreme higher law. An amendment is an exercise of constituent power, not legislative power. Law in Article 13(2) embodies the doctrine of ultra vires. (para 795)
Noted: Sankari Prasad unanimously held that law in Article 13(2) refers to ordinary legislative power and not to amendments. Sajjan Singh's majority held that Article 368 covers all provisions and that the makers knew rights might need adjusting. The minority doubted Sankari Prasad on abridgement of rights. (paras 796-802)
Noted: Golak Nath's facts and its majority reasoning, by Subba Rao, C.J. and by Hidayatullah, J., are set out. Both held an amendment is law within Article 13(2). The Chief Justice's view left open whether rights could be abridged by a Constituent Assembly. The minority views of Wanchoo, Bachawat and Ramaswami, JJ. are summarised. (paras 803-811)
Held: The question is whether there is a conflict between Article 13(2) and Article 368. Article 368 provides that when the President assents, the Constitution stands amended. There is no law before assent. An amendment becomes part of the fundamental law. The whole Constitution can be amended. (paras 812-813)
Held: The distinction lies in the criterion of validity. An ordinary law derives validity from a higher law. The Constitution generates its own validity. If Parliament passes an ordinary law abridging a right and says it is valid notwithstanding Article 13, it would still be invalid, because Article 13 is in the supreme Constitution. (paras 814-815)
Held: Law in Article 13(2) means law needing validity from a higher source. The definition in Article 13(3) lists such laws and does not mention constitutional amendments. The word law in Articles 17, 19 and others does not mean the Constitution. (paras 815-816)
Held: The Golak Nath majority rested on the view that an amendment is a legislative process. Article 13(2) embodies the doctrine of ultra vires. If the express doctrine barred amendment of Part III, the implied doctrine would bar amendment of other parts, which would be absurd. That is why Article 368 expressly provides for amendment. (para 817)
Noted: Mr. Palkhivala's reasons are the oath in the Third Schedule, the survival of constitutional laws of Princely States and British India under Article 13(1) and Article 372, and the ordinary sense of law. The real question, he says, is limits in Article 13(2), not Article 368. (para 818)
Held: Article 368 does not use the word law, so it raises no question of applying Article 13(2). Constitutional laws of Princely States and British India do not survive as constitutional law. The Judges identify the vital difference between constituent and legislative power. Law in Article 13(2) means a law of Parliament under Chapter II of Part V. (para 819)
Held: Law for constitutional law is not a mere homonym, but constitutional law is tested differently from ordinary law. (para 820)
Held: The purpose of Article 372 is to keep existing laws in force. The repeal of the 1935 Act and the Independence Act repealed constitutional law. All other constitutional laws were repealed by our Constitution. (para 821)
Held: Mr. Seervai rightly says Mr. Palkhivala mixes two senses of constitutional law. An amendment becomes part of the Constitution itself. Law in Article 13 is law other than the Constitution and so other than an amendment. (para 822)
Held: When the Constitution came into force, no other constitutional law survived. Article 393 and the Preamble show the people gave themselves no other Constitution. All other laws became subordinate. (para 823)
Held: In a flexible Constitution, the difference between legislative and constituent power is conceptual only. In a rigid or controlled (a Constitution that needs a special procedure to amend) Constitution it is material. The law making power is the genus, and legislative power and constituent power are species, distinguished by procedure. The distinction brings the doctrine that a law ultra vires the Constitution is void while no provision of the Constitution can be ultra vires. (para 824)
Held: Legislatures have no power to amend the Constitution. The status Article 368 gives Parliament and the State legislatures is that of a Constituent Assembly. Parliament engaged in amending is not legislating. An amendment is constituent law, not law in Article 13. (para 825)
Held: Following the ordinary procedure of the Houses does not change the status of Parliament as a Constituent Assembly. The Constituent Assembly was also invested with legislative power after independence. Under the proviso, ratification by State legislatures is radically different from ordinary legislative process. Parliament then does not act as a Union legislature. (para 826)
Held: Clause (e) of Article 368 shows the Article itself can be amended, so an amendment of Part III can be made. If Article 13(2) excluded Part III altogether, clause (e) would not have been enacted. It is not permissible to add words of limitation to Article 368. (para 827)
Held: The initiative lies with Parliament. A Bill must pass each House by two-thirds of members present and voting, with a majority of total membership. In proviso cases States must ratify. Ordinary legislative process is very different. (paras 828-829)
Held: The ratification by State legislatures is a radical departure from ordinary legislative process. The result is a part of the Constitution and no court can pronounce any part of the Constitution invalid. (para 830)
Held: Ratification by State legislatures is constituent power and not ordinary law-making power. Article 368 confers constituent power under its main part as well as its proviso. If the procedure is followed, no question of invalidity arises. (para 831)
Held: Articles 4, 169, paragraph 7(2) of the Fifth Schedule and paragraph 21(2) of the Sixth Schedule give limited powers. Each makes a law with specific amendments and says it is not an amendment for Article 368. They are specific powers and not legislative power under the Lists. (paras 832-835)
Held: No question under those four provisions arises here. They show the distinction between constituent power and legislative power. If the power were in Entry 97, there would have been no need to grant it again in these provisions. Article 368 gives a general power after the requirements are complied with. (para 836)
Held: The Golak Nath majority said Parliament is a constituted body and could not abridge rights, yet it could call a Constituent Assembly. This ignores that constituent power is located in Article 368. What cannot be done directly cannot be done indirectly. A Constituent Assembly called under the residuary entry would be a body different from Parliament. (paras 837-838)
Held: A Constituent Assembly would be called by extra-constitutional means. A Constitution can be amended only as the Constitution provides. The people who gave the Constitution have said how it is to be changed. (paras 839-840)
Held: McCawley and Ranasinghe do not support the Golak Nath majority. In a rigid Constitution amendment is by a different procedure and is called constituent power. In a flexible one, legislative and constituent power merge. Dicey is cited. (para 841)
Noted: The facts of McCawley, the Queensland Constitution, the Industrial Arbitration Act 1916, the Order in Council of 1859 and the Colonial Laws Validity Act are set out. (paras 842-845)
Held: McCawley shows that, unless a special procedure is prescribed, the Constitution is uncontrolled and a subsequent inconsistent law repeals it pro tanto. McCawley related to an uncontrolled Constitution. That is not our Constitution. (paras 846-848)
Noted: In Ranasinghe the Bribery Tribunal was not appointed under Section 55 of the Ceylon Constitution. Section 29 of the Order is set out. The Privy Council held the appointment invalid for want of the Speaker's certificate. A legislature has no power to ignore conditions of law-making imposed by the regulating instrument. (paras 849-852)
Held: The word fundamental in neither fundamental in the sense of being beyond change refers to express limits on power or on manner and form. It does not mean there are fundamental features that cannot be amended, as Mr. Palkhivala contended. (paras 853-854)
Held: Ranasinghe shows that procedural conditions in a Constitution place the legislature under compulsion to obey. It narrows McCawley's proposition that the legislature can treat the Constitution as a Dog Act. (paras 855-856)
Held: The case shows the distinction between procedural and substantive limits. No question about religious rights was raised in Ranasinghe, and no one argued any provision was unamendable. It would be unusual for the Privy Council to say by obiter that a provision was not amendable. The distinction between legislative and constituent power is the basis of the judgment. (para 856)
Noted: The comparisons between Section 29 of the Ceylon Constitution and Articles 245, 100 and 13(2) of ours are drawn. Section 29(4) does not expressly make void a law amending the Constitution. (para 857)
Held: The Ceylon legislature had no general power to amend by ordinary majority. The social compact refers to rights that could not be altered by a bare majority but only by the strongest safeguard of the amending process. (para 858)
Held: The absence of an express void clause in Section 29(4) does not mean an amendment contrary to it would be valid. The Privy Council held that the opening words of Section 29 introduced the doctrine of ultra vires. Entrenched means that a provision can be amended only by special procedure. The Ceylon legislature's sovereignty is not limited by Section 29(4). (para 859)
Held: The respondent's counsel in Ranasinghe stated there was no limit except procedure, and the Privy Council affirmed this. Section 29(1) is a composite power including constituent power. Subsections (2) and (3) limit only legislative power. The Privy Council took the widest view of the amending power and the narrower view was not argued. (para 860)
Held: Article 13(2) has no higher efficacy in rendering a law void than the opening words of Article 245. In treating Article 13(2) as covering amendments, the majority in Golak Nath was inept. It was induced by the absence of the labels legislative and constituent, though the Privy Council described the concepts. (para 861)
Held: If Article 368 began with a non-obstante clause, it could not be called law under Article 13(2). There is no such clause because amending power is constituent power. Parliament acts as a recreation of the Constituent Assembly. The Constituent Assembly knew limits must be expressly provided. Draft Article 305 shows the Assembly could have excluded fundamental rights expressly. (para 862)
Held: Ghulam Sarwar and Mohd. Yakub show that law in Article 13(2) is not all-embracing despite its definition: a Presidential order under Article 359 is not law within it. (para 863)
Held: The word law appears in various articles but not in Article 368 because the power is constituent. There is no law before the amendment becomes part of the Constitution. (para 864)
Noted: The history of Article 13(2): Sir B.N. Rau's questionnaire of 17 March 1947 and the note on amendment, and the draft report of the sub-committee on fundamental rights of 3 April 1947 with its clause 2. (paras 865-866)
Noted: The Constitutional Adviser suggested Constitution instead of chapter in clause 2, because the whole Constitution was to prevail over law. The interim report of 23 April 1947 and Mr. Santhanam's amendment of 29 April 1947 are set out. The Assembly accepted that no right shall be taken away or abridged except by an amendment of the Constitution. (paras 867-869)
Noted: Clause 9(2) of the October 1947 draft kept the words except by way of amendment of this Constitution under Section 232. The Drafting Committee, on 30 October 1947, revised it to the present form without recording a reason. (paras 870-872)
Held: The history of Article 13(2) shows that the Constituent Assembly intended it not to control the amending Article. The Drafting Committee must have thought an express exclusion unnecessary. (para 873)
Held: The distinction between constituent and legislative power is of enormous magnitude. No provision of the Constitution can be void. Every article is protected by being amendable only as the Constitution provides. Draft Article 305 was deleted. If the framers wanted to forbid something, they would say so. (para 874)
Held: The amending power is put in a separate Article and Part and is meant to be exhaustive and plenary. A legal way to change the Constitution was necessary. It cannot be attributed to the framers that they intended illegal methods. (para 875)
Held: If an amendment were subject to Article 13(2), no amendment would be possible. The residuary power in the 1935 Act shows that constituent power could not reside there. (para 876)
Held: Article 13(2) does not override Article 368. The Constitution is self-validating. Article 13(2) is not a fundamental right. Wanchoo, J. was right that Article 368 is a constituent power distinct from legislative power. Parliament adopted this view in the 24th Amendment. (para 877)
Noted: Mr. Palkhivala's other contention, on implied and inherent limits, requires examining the importance of the amending power. He relies on consequences, on Maxwell and Crawford, and on American Jurisprudence for the role of implication in construction. (paras 878-880)
Noted: Mr. Palkhivala gave three meanings of amend. The Oxford Dictionary, Words and Phrases and others give change or alteration. (paras 881-882)
Held: The contention that amendment has a limited meaning because of paragraphs 7 and 21 of the Fifth and Sixth Schedules is unsound. Those four provisions give limited powers on specific subjects. They are subordinate to Article 368. The Part title Amendment of the Constitution is an important aid to construction. (paras 883-884)
Held: The words no such law shall be deemed an amendment for the purpose of Article 368 show the amendments would otherwise fall within Article 368. This is intrinsic evidence that amendment in Article 368 includes addition, alteration or repeal. By way of clarifies and does not enlarge. The whole of the Schedules cannot be repealed because of Article 244. (paras 885-886)
Held: Section 291 of the 1935 Act, as amended in 1949, does not narrow amendment. The Constitution uses many expressions in different articles, such as alter, repeal in Article 35(b) and repeal or amend in Article 243(1). Modifications in Article 370(1)(d) must be given the widest meaning. (para 887)
Held: Constitution Amendment Acts have been made by addition, substitution and repeal. The Attorney-General is right that amendment of this Constitution has a clear substantive meaning: any part can be amended by variation, addition or repeal. (para 888)
Held: The words may be initiated and shall stand amended show the word is used clearly. Other Constitutions use amend, sometimes with alteration or revision, to mean any change. Constitutional provisions are presumed to be carefully framed. (paras 889-890)
Held: The object of amendment is to change the Constitution in an orderly manner, otherwise changes come by revolution. It is to make fundamental changes. The Attorney-General's two reasons are correct. (paras 891-892)
Held: Each generation has a right to establish its own law. An unamendable Constitution is the worst tyranny of time, as Jefferson said. The French Constitution of 1884 and the American limits of 1808 and Senate suffrage are examples of limits on the sovereign power to change. The machinery of amendment is like a safety valve. (paras 893-894)
Held: Most Constitutions are rigid and distinguish constituent and legislative power. Amendment is a form of growth. If a Constitution provides a method, only that method is legal and any other is revolution. (paras 895-896)
Held: The people gave the amending power to the bodies in Article 368, which represent them. Convening a Constituent Assembly or a referendum would be extra-constitutional. Article 368 restricts only the procedure, not the kind of amendment. There are no implied limits. The Attorney-General said the Constitution acts not only for the people but on the people. (para 897)
Noted: The Attorney-General relied on American decisions in eight propositions: amendment does not mean improvement (Livermore; Edwards; Dillon); ratification is not legislation (Hawke v. Smith; Dillon v. Gloss; Leser v. Garnett); the method alone is legal (Feigenspan; Kerby); amendments touching rights need not go to convention (Rhode Island v. Palmer; Sprague); principles can be changed (Schneiderman); and no restraint on the kind of amendment (Whitehill v. Elkins). (para 898)
Held: Except for special methods and express limits, the meaning and scope of amending power is the same in flexible and rigid forms. A flexible Constitution is changed by the same body in the same manner for every law. A rigid one has laws that cannot be changed by the ordinary legislature. (paras 899-901)
Held: The special machinery for amendment limits the legislature by a greater law. A Constituent Assembly may make some elements unalterable. Just as there are no implied limits in flexible Constitutions, there are none in rigid ones, according to the Attorney-General. (para 902)
Held: A rigid Constitution can be thwarted by a minority, and safeguards secure deliberation and maturity. Amendment connotes a definite and formal process of constitutional change. Tradition and judicial interpretation affect the structure through evolution. (paras 903-904)
Noted: The background of Article 368 is considered. Sir B.N. Rau's brochure of 12 November 1946 listed fundamental rights under 13 heads from 13 countries. There is no absolute standard of fundamental rights, and fundamental rights are not superior to directive principles. The questionnaire of 17 March 1947 and the draft amendment clause are noted. (paras 905-907)
Noted: Mr. Santhanam's amendment of 29 April 1947 said the amending clause may itself be amended like any other clause. Draft clause 232 became draft Articles 304 and 305. Sir B.N. Rau, Sir Alladi Krishnaswami Ayyar and Sir Gopalaswami Ayyangar recommended passage by two-thirds of Parliament and ratification by like majority of Provincial legislatures. The draft Constitution was ready on 21 February 1948. (para 908)
Held: The Constituent Assembly made no distinction between essential and non-essential features. No one said fundamental rights could not be amended. Even in the First Amendment debate no one doubted that fundamental rights could be amended. A Constitution should be sound and basic but flexible. (para 909)
Noted: Proposed amendments 118, 210 and 212 to Article 304 were considered. Amendment 212, that no amendment infringing individual rights be permitted, was withdrawn. (para 910)
Held: Articles 2, 4 and 169 and the Fifth and Sixth Schedules are amendable by a simple majority. Dr. Ambedkar's statement shows three categories: simple majority, two-thirds, and two-thirds with State ratification. Mr. Palkhivala misreads the speech to say Part III was unamendable. (paras 911-912)
Held: The First Amendment added Article 15(4) and amended Articles 19(2), 19(6) and 31A. The answer to criticisms was that a Constitution responsive to the people's will commands respect. If it is unchangeable, those who wish to change it will try to break it. (para 913)
Held: In this background there is no doubt about the meaning of Article 368. Contemporaneous practical exposition has great weight where there is doubt, as in McPherson v. Blacker and Automobile Transport (Rajasthan). (para 914)
Noted: Mr. Seervai, relying on British Coal Corporation v. King, says an organic statute must be construed to the widest amplitude of power. The grant of the amending power cannot be cut down except by express or implied limits. (para 915)
Noted: Mr. Palkhivala's case on implied and inherent limits is set out. The word amendment would preclude altering the essential features. Article 368 uses the word simpliciter, unlike other provisions which add add, alter, repeal or vary. The widest construction would let all fundamental rights go by the requisite majority while minor matters need half the States. (paras 916-917)
Noted: Mr. Palkhivala argues the Preamble is not part of the Constitution and so cannot be amended. Fundamental rights give effect to it. If amendment is read widely, Parliament could make the Constitution unamendable or make India non-sovereign. Three basic features give rise to the limits, and he lists 12 essential features, including that Article 368 cannot be amended to alter essential features. (paras 917-919)
Noted: He challenges the 24th Amendment on three grounds, and in the alternative says it can be valid only by reading down (reading a provision narrowly so that it survives) Articles 13 and 368 to preserve the limits. Fundamental rights are among the essential features and their essence cannot be altered. (paras 920-921)
Noted: The Attorney-General says limits on the amending power were never in controversy in the Constituent Assembly. The Constitution adopts three methods of amendment. (para 922)
Noted: The Constitutional Adviser's October 1947 draft kept ten years' non-amendment for reserved seats. The Drafting Committee in February 1948 made three changes to the amendment provisions. (paras 923-924)
Held: The history shows elaborate procedures such as convention or referendum were eliminated. Only specific matters need State ratification. The provisions are simple compared to the American and Australian. (para 925)
Noted: The theory of implied limits assumes a narrow meaning of amendment and rests on the Preamble. The Preamble is said to be unalterable and not part of the Constitution. (para 926)
Held: Berubari held that the Preamble is not a source of power and that what is true about powers is true about limits. It held Article 1 could be amended under Article 368 to cede territory. The Preamble did not limit that power. (paras 927-928)
Held: Mr. Seervai is right that the Preamble is an integral part of the Constitution. The Assembly voted that it stand part of the Constitution. A Preamble can be repealed. (para 929)
Noted: Gopalan refused to read due process into Article 21. Kerala Education Bill, Basheshar Nath and Story are cited on the use of a Preamble. The Preamble is resorted to where words are ambiguous and cannot enlarge powers. (paras 930-933)
Held: Gopalan, the Coal Bearing Areas case and Leela Jain show a clear enactment cannot be cut down by a Preamble. Jacobson v. Massachusetts shows power is not conferred by the Preamble. (para 934)
Held: A statute does not contain an amending power because it can be amended by legislative power. The Preamble refers to the frame of the Constitution at that time and has no relevance to the constituent power in future. The Attorney-General relied on Canaway and Wynes on Section 128 of the Australian Constitution. (paras 935-937)
Held: The Preamble is part of the Constitution but did not come into force on 26 November 1949, because Article 393 did. Clear constitutional provisions are imperative. The Court has no power to create exceptions by implication. The Preamble expresses intention at the time of framing and does not restrict the power to amend. (paras 938-939)
Held: The contention that essential features are not amendable reads negative restrictions into an express power. Burah applies: if a power is within the affirmative words and violates no express restriction, the Court does not enlarge restrictions. The maxim expressum facit cessare tacitum applies, as in Webb v. Outrim. Implied limits are a subtle attempt to annihilate the affirmative power. (para 940)
Held: The petitioner ignores that the Constitution provides for organs of State for governance. In a democracy policy is decided by majority vote. Holmes, J. said the people have the right to embody their opinion in law. (para 941)
Held: Indian experience since Sankari Prasad in 1951 does not show the Constitution has been subverted. If a party wished to subvert it, Parliament has other powers. Great powers cannot be withheld because they may be misused. The golden rule: If the text is explicit the text is conclusive. Deep Chand and Attorney-General for Ontario are cited. (para 942)
Held: Gopalan refused to invoke the spirit of the Constitution. Kania, C.J. said that striking down a law on an assumed principle would place too great and indefinite a power in the judiciary. A liberal interpretation does not allow the Court to stretch the Constitution. Keshavan Madhava Menon and Benoari Lal Sharma are cited. (para 943)
Held: All provisions of the Constitution are essential and no distinction can be made between essential and non-essential features for amendment unless the Constitution makes it expressly clear. Raising walls of essential features would nullify the Constituent Assembly's intention and pave the way for revolution. The theory cannot act as a boa constrictor to the power of amendment. (para 944)
Held: If there is no express prohibition, the omission is not to impose restrictions. Words are not added by implication unless necessary. Where language is clear, effect is given whatever the consequences. Implication may be used to empower necessary details. (para 945)
Held: Mr. Palkhivala's implication reads negative words into Article 368 to destroy the positive power. No one has authority to say one provision is more essential than another. The draft Constitution shows no provision was excepted from the amending power. (para 946)
Noted: The Attorney-General divided amendment provisions into four categories: those needing State ratification, those needing a double majority, those under Articles 4, 169, 240(1) and the Schedules, and enabling powers such as unless Parliament otherwise provides (Articles 73(2), 100(3) and others). (para 947)
Held: The provisions amendable under the proviso include the election of the President, the executive power, the Union Judiciary, the High Courts, the Seventh Schedule, the representation of States and Article 368 itself. The petitioner's submission that essential features are unamendable is baseless. (para 948)
Held: Finding essential or non-essential features is an exercise in imponderables. The Constitution makes no such distinction. There is no yardstick. If Parliament cannot judge these features, it cannot amend. The theory would rob Parliament of the amending power and put the final power in the courts. (para 949)
Noted: Mr. Palkhivala said essential features could be amended but not their core, and that the trained judicial mind can find them. (para 950)
Held: Mr. Seervai is right that there is no foundation for the analogy that judges find essential features on reasonableness. Reasonableness is an objective criterion in contract, tort and property. Judicial review starts with a presumption that laws are reasonable. (para 951)
Held: American courts evolved substantive due process. Our Constitution used precise words of limitation, as in Articles 19 and 21. The framers replaced due process with procedure established by law (the Article 21 standard for depriving life or liberty). Gopalan rejected due process. Courts are not concerned with the wisdom or policy of amendments. (para 952)
Held: Ridge v. Baldwin does not help, because inherent and implied limits cannot originate in an oracle when there is no express prohibition. The proviso shows that so-called essential features, including federal ones, could be amended. It is difficult to imagine any provision that is inessential. Amendment includes deletion and addition. (para 953)
Held: Changing to a Presidential system is permissible under Article 368. Whether the people would adopt it is not for the Court. The extent and character of change is for the legislatures as amending bodies. (para 954)
Held: The 24th Amendment declared that the power to amend is in Article 368. This was the view in earlier decisions and the Golak Nath minority. By the amendment it became a constitutional mandate. (para 955)
Held: The words in exercise of its constituent power give effect to Shankari Prasad, Sajjan Singh and the Golak Nath dissent. Parliament took note of the preponderating judicial opinion. The Amendment made explicit that Parliament has the constituent power to amend. (para 956)
Held: Amend by way of addition, variation or repeal was used because Golak Nath's leading judgment raised a doubt about the meaning of amendment. The 24th Amendment clarified it. (para 957)
Held: The 24th Amendment excludes Article 13 by sub-article (4), which is reinforced by the words notwithstanding anything contained in this Constitution. (para 958)
Noted: The 24th Amendment raises three aspects: whether amend includes abrogation of the whole Constitution; what light the proviso throws on implied limits; and whether clause (e) of the proviso lets Parliament increase the power of amendment. (para 959)
Held: The words the Constitution shall stand amended exclude a simple repeal. Amendment is of something which provides a system for governing the State. Fundamental or basic principles can be changed, as from a cabinet to a presidential system or a federal to a unitary system. (paras 960-961)
Held: The power is unlimited so long as the result is an amended Constitution, an organic instrument for making, interpreting and implementing law. The theory of unamendable essential features is unmeritorious given clauses (a) to (d) of the proviso, which relate to 66 articles. (paras 961-962)
Held: The question whether the power of amendment could be increased under clause (e) is answered in the affirmative for three reasons. (para 963)
Held: First, under clause (e) any limit alleged in another article can be removed. The 24th Amendment removed the Article 13(2) bar. Any other alleged implied limit could be removed in the same way. (para 964)
Held: Second, decisions show a greater power can be obtained by amending the Article that confers the power. In Ryan, all Judges except the Chief Justice held that amending Section 50 removed its restrictions. Ranasinghe confirms that a controlled Constitution can be converted into an uncontrolled one. (para 965)
Held: Third, the power to amend the amending Article includes the power to add, alter or repeal any part of it, even to confer a larger power. The picture of a future amendment forbidding amendment is not a legal impediment. The safeguard is external. The product need not be this Constitution but a changed one. (para 966)
Held: Clause (e) of the proviso shows a deliberate intention of the Constituent Assembly. The American and Australian Constitutions had no express power to amend the amending clause, and the Assembly avoided those controversies. (para 967)
Held: The amplitude of the amending power stands out in comparison with Article V, Section 128 and Section 50. Article 368 contains no express limit and clause (e) is not limited to federal features. Wynes is cited. (para 968)
Held: Mr. Palkhivala relied on Kennedy, C.J.'s dissent in Ryan. Even on that dissent, no implied limits can be read into an express power of amendment. (para 969)
Held: Mr. Palkhivala says the people reserved the power to amend essential features, which needs a referendum. The Attorney-General and Mr. Seervai correctly say a written Constitution can be amended only by the prescribed method. A referendum would be extra-constitutional or revolutionary. (para 970)
Held: Mr. Palkhivala did not rely on the Golak Nath view of a Constituent Assembly but on legal sovereignty of the people. The Constitution binds all organs and the people. Popular sovereignty means people express their will through representatives as the amending body. (para 971)
Noted: On whether fundamental rights are unamendable, Mr. Palkhivala says they are natural rights based on the Universal Declaration. In Golak Nath, Wanchoo, J. and Ramaswami, J. rejected implied limits on three reasons. (para 972)
Held: Mr. Seervai correctly says Part III shows rights are conferred by the people under the Constitution and are not natural or moral rights. Article 19 applies to citizens only. (para 973)
Held: Articles 33, 34, 352 and 358 show that rights can be modified or suspended. If they were natural rights they could not be abrogated. The basic concept of a fundamental right is social. Basheshar Nath said there are no natural rights under our Constitution. Articles 25 and 26 are subject to the interest of society. (paras 974-976)
Held: Fundamental rights are given by the Constitution and can be abridged or taken away by the people through the amending process. Many articles in Part III, such as Articles 17, 18, 20, 23, 24, 27, 28, 29, 31 and 32, cannot be equated with natural rights. (para 977)
Held: There is no higher law above the Constitution. (para 978)
Held: Mr. Palkhivala's reliance on Conrad does not help. The West German Constitution expressly excluded basic rights, so the question of unamendability on the basis of natural law does not arise. The Attorney-General's reliance on Friedmann shows natural law revival followed the Nazi regime. (paras 979-980)
Held: Fundamental rights are social rights conferred by the Constitution. The Constitution does not recognise natural law. The German experience arose in the context of legislative supremacy without judicial review and a reaction after the war. (paras 981-982)
Held: Natural law philosophies range from extreme views to common aspirations such as the dignity of human personality. Fundamental rights and Directive Principles are to be read as having a common good. Directive Principles are not subsidiary to fundamental rights. It is wrong to equate fundamental rights with natural, inalienable rights beyond amendment. Basheshar Nath said natural rights are shifting sand. (para 983)
Held: Mr. Seervai is right that if the amending power is co-extensive with the judiciary's power to invalidate laws, the democratic process and the co-ordinate nature of the three departments are maintained. If the court strikes down a law for want of power, the legislature can acquire the power by a valid amendment. (para 984)
Held: If inherent limits are read in, defined by undefined essential features, the courts will have to lay down a new Constitution. There is no question here of abrogating the form of government. (paras 985-986)
Held: The framers knew new problems would arise and solutions would need modification. They put no limit on the amending power because the end of a Constitution is the safety and well-being of the people. (para 987)
Noted: Mr. Palkhivala's test is to ascertain the worst that can be done under a power. He says wide power could liquidate the Constitution and make India a totalitarian dictatorship. (para 988)
Held: The Attorney-General correctly says the unambiguous meaning of amendment cannot be destroyed to nurse implied limits. The distinction between power and exercise of power is subject to popular control. A modern State is organised for welfare. (para 989)
Held: In a democracy, policy is decided by majority vote. The argument that the Constitution could be subverted has hortative appeal but is not supported by experience. From 1951 to 1967 the democratic process functioned. (para 990)
Held: Vacher states that consequences may be considered when a statute is susceptible to more than one meaning. (para 991)
Held: The doctrine of consequences has no application to a grant of power in a Constitution. The largest meaning should be given. There are two exceptions: reconciling powers conferred on different legislatures, and technical terms. (para 992)
Held: Consequences do not include policy or wisdom. The Privy Council rejected an implied bar on advisory opinions and held that a possible abuse does not deny a power (Bank of Toronto v. Lambe). (para 993)
Held: The test of the worst that can be done is absurd, as Taft, C.J. in Grossman says. Where the meaning is plain, the Court gives effect to it even if the result is unreasonable. Mahajan, J. in the Bihar Land Reforms case gave effect to Article 31(3) and (4). Absurdity must be used with caution. (para 994)
Held: Grundt says absurdity cannot be used to twist language into a meaning it cannot bear. (para 995)
Held: The Attorney-General is right: where power is conferred in clear language, it cannot be narrowed by considering consequences. A new law cannot be made by construction. The theory of implied limits is a repudiation of the democratic process. Article 368 has no express limit. (para 996)
Noted: Mr. Palkhivala relied on amending provisions and decisions from America, Canada, Australia, Ireland and Ceylon, and on Cooley, Skinner, Marbury. Cooley's views on written Constitutions as limits on government do not relate to amendment. Cooley also says courts cannot read in restraints not expressed in words. (paras 997-1001)
Noted: The Attorney-General relied on other views of Marbury, Frierson, McGovney, Dodd and Taft that there are no implied limits on the American amending power. (paras 1002-1005)
Held: The American Article V has two express limits, one spent and one on equal suffrage in the Senate. In the National Prohibition Cases, the Supreme Court rejected arguments of implied limits. Hawke v. Smith, Leser v. Garnett and Sprague show that Article V is plain and admits of no implied exceptions. All these are authorities that there is no implied limit on the power to amend. (paras 1006-1012)
Held: The word amendment does not take colour from change in the provisions in the proviso. Noscitur a sociis does not apply, as the American Courts held on Article V. Where intention is clear there is no room for construction. Feigenspan says the power cannot be excluded in any way other than prescribed. (paras 1013-1015)
Noted: Mr. Palkhivala relied on Canadian decisions for three propositions: limits from the preamble's reference to the United Kingdom constitution, basic rights of free speech, and natural law. (para 1016)
Held: The Initiative and Referendum case was about an Act of the legislature that excluded the Lieutenant-Governor. It is not relevant to the amending power of a Constitution. The Act set up a different legislature. (para 1017)
Noted: The other Canadian decisions rest on three views: the preamble, implied guarantees from Sections 17 and 50, and natural law. Switzman, Hess, Saumur and Chabot are described. (paras 1018-1022)
Held: The Canadian decisions show the Canadian Constitution was given by the British Parliament and has developed through usage and convention. None relates to amendment. Our Constitution belongs to a sovereign republic and does not draw on foreign conventions. (paras 1023-1024)
Noted: The British North America Act has no explicit guaranteed liberties. The Canadian Bill of Rights of 1960 lets Parliament declare a law operative notwithstanding it. Laskin is cited. (paras 1025-1026)
Noted: Mr. Palkhivala relied on the Australian Taylor case and Victoria v. Commonwealth. The Parliamentary Bills Referendum Act 1908 and the Queensland Bill to abolish the Legislative Council are set out. Section 5 of the Colonial Laws Validity Act is quoted. (paras 1027-1031)
Held: The propositions from Barton and Isaacs, JJ. in Taylor are prefaced by probably and are obiter. The limit of representative character arose from the express language of Section 5 of the Colonial Laws Validity Act and not from implication. The Crown could not be excluded because of the definition of the colonial legislature. (paras 1032-1035)
Noted: In Victoria v. Commonwealth, the Pay-roll Tax Act was held valid. Three Judges held there was no implied limit from federalism. Four held there is one but the Act did not offend it. (paras 1036-1037)
Noted: Barwick, C.J. says the Engineers' case rejected the doctrine of an implied prohibition against a Commonwealth legislative power once ascertained by the ordinary rules of construction. (para 1038)
Noted: Mr. Palkhivala relied on Irish cases. In Ryan, Article 50 allowed amendment by ordinary legislation for eight years. The amendments of 1928 and 1929 were upheld. The challenge was that many articles are so fundamental as to be incapable of alteration. (paras 1039-1040)
Noted: Moore v. Attorney-General for the Irish Free State, on the Treaty, the Constituent Act and Articles 12, 50 and 66, throws light on amendment of the amending power. Amendment Act No. 6 of 1933 removed within the terms of the Treaty and No. 22 of 1933 abolished appeals to the Privy Council. (paras 1041-1043)
Held: The Judicial Committee held that the Oireachtas had power to repeal or amend the Constitution Act, done by virtue of the powers given by statute. The abolition of appeals was a valid amendment. (para 1044)
Noted: Liyanage's facts under the Ceylon Criminal Law Amendment Act of 1962 are set out. The Supreme Court of Ceylon convicted the appellants. (paras 1045-1046)
Held: The Privy Council struck down the Acts for usurping judicial power, not because of fundamental principles of justice. When it asked what if Parliament first amended the Constitution by two-thirds, it said that situation did not arise. Section 29(4) is about manner and form and is not a limit on the width of the power. Liyanage is not an authority for implied limits on the amending power. (para 1047)
Held: In Liyanage, the Privy Council rejected cutting down powers by vague fundamental principles of British law. Its inference of the separation rested on a pure construction of provisions. The Privy Council reference to consequences was in a different context. (para 1048)
Held: Kariapper read amend or repeal to cover amendment by an inconsistent Act. To introduce implied limits by allowing amendment of essential features but not their core, on the theory that only the people can change, is to rewrite the Constitution. Ranasinghe and Kariapper authorise two propositions: a controlled Constitution can be converted to an uncontrolled one, and amendment means alteration. Ibralebbe is also cited. (paras 1049-1050)
Held: Mangal Singh read Article 4 with Articles 2 and 3 and held the power does not override the constitutional scheme. It is a limited amending power that is supplemental, incidental or consequential. It does not say there are implied limits on the amending power. (para 1051)
Noted: The petitioner challenges the 25th Amendment, which amended Article 31(2), added Article 31(2B) and introduced Article 31C. (paras 1052-1054)
Held: The basic controversy is the right to property and acquisition by the State. The Constitution aims at political liberty and also economic and social liberty. The Directive Principles are fundamental in governance (Article 37). Congress resolutions of 1929, 1931, 1945 and the Objectives Resolution show the aim of changing the economic and social structure. (paras 1055-1056)
Held: The Constitution aimed at a social revolution. Parts III and IV are its conscience. Mr. Palkhivala puts Articles 14, 19 and 31 at the centre of fundamental rights, but the Directive Principles are also fundamental. They may prevail over the fundamental rights of a few to subserve the common good. (paras 1057-1058)
Held: The Universal Declaration of Human Rights is no impediment to the amending power. Duty of citizens corresponds to rights. The State's duty extends to the general welfare. Popular sovereignty means the interest of the mass of men prevails. If rights are built upon property, those without property will have no rights. (para 1059)
Noted: The petitioner's challenge to the amended Article 31(2) is that property is an essential feature and handmaid to other rights, such as press freedom, trade unions, occupation and religion. The State could fix an amount on an undisclosed basis. (para 1060)
Noted: Mr. Palkhivala says Article 31(2B) lets laws be unreasonable and relies on the Bank Nationalisation case, which said a law without hearing would offend Article 19(1)(f). (para 1061)
Held: After the amendment, Article 31(2) still requires a sum of money. The law need not provide the equivalent in value. The legislature may include considerations of social justice, including Article 39(b) and (c). Adequacy is excluded by the Fourth Amendment. The Constitution does not allow review on adequacy or the manner of payment. (para 1062)
Held: The Solicitor-General says compensation as equivalent would thwart the Directive Principles. Fulfilling them is in a sense more fundamental than the right to property. Adequacy is not justiciable and cannot be made so indirectly. (para 1063)
Noted: The petitioner says that if principles are irrelevant to the concept of an amount, the law would be invalid, and that the proviso for minority institutions shows the core of rights is damaged otherwise. (paras 1064-1065)
Held: Amount is a sum of money. (para 1066)
Held: Article 31(2), before and after the amendment, gives two alternatives: specify principles or fix the amount. The legislature need not set out the principles. (para 1067)
Held: Article 19(1)(f) is excluded from Article 31(2) to make it self-contained. The right to hold property cannot coexist with the State's right to acquire. Rana and S.N. Nandi show no natural-justice requirement under the Land Acquisition Act or the Requisition Act. (paras 1068-1069)
Noted: Mr. Palkhivala says Article 31C destroys essential features for six reasons. These include the legal fiction that void laws are not void and the subordination of fundamental rights to Directive Principles. They also include passing by simple majority what needs two-thirds to amend, preclusion of review, and delegation of the amending power to State legislatures. (para 1070)
Noted: He also says Articles 14, 19 and 31 are needed for the minority rights in Articles 25 to 30, and the proviso implies a lower amount for others. (para 1071)
Held: Article 31C protects only law made by the legislature in the ordinary legislative procedure. Law in other articles means the same. It does not include ordinances or amendments. The essential elements must be supplied by the enactment. Tika Ramji is cited. (paras 1072-1073)
Held: Article 31C is bound up with Article 39(b) and (c). Articles 31A and 31B were introduced to exclude Part III. Individual liberty should not be an insurmountable barrier to the Directive Principles. Sajjan Singh and Bihar Land Reforms support this. (para 1074)
Held: Laws under Article 31C operate on material resources and the economic system through nationalisation and planned economy. They can fall under List III Entries 42 and 43 and other entries. (para 1075)
Noted: The petitioner challenges the declaration clause, the possibility of discriminatory laws and delegation of the amending power. (para 1076)
Held: The nexus between the law and Article 39(b) and (c) is a condition precedent. The Union and the State did not contend that nexus was not justiciable. The declaration leaves legislative policy and wisdom to the legislature. (para 1077)
Held: The court may examine the nature and character of the legislation and its nexus with Article 39(b) and (c). It can tear the veil to decide the real nature of the statute. (para 1078)
Held: The Solicitor-General rightly says the fear of discrimination is met by three safeguards: the good sense of the legislature, the President's assent, and review of nexus. The exclusions of Articles 14, 19 and 31(2) allow new principles of equality, reasonable restrictions and social justice. (para 1079)
Held: Articles 31(4), 31(6), 31A, 15(4), 31(5)(b)(ii) and 33 each carve out exceptions to fundamental rights. Article 31C is similar and creates a legislative field by object. It is wrong to say the Constitution delegates the power of amendment. The existing legislative field is freed from some fetters of Part III. (paras 1080-1081)
Held: Article 31C works in the industrial sphere as Article 31A works in the agrarian sphere. Laws can be identified by period, subject matter or objective. The exceptions are created by the Constitution and the law does not amend anything. There is no delegation of amending power. (paras 1082-1083)
Held: The First Amendment's Articles 31A and 31B and the Ninth Schedule carried out the intention in Articles 31(4) and 31(6). The Bihar Land Reforms case, Bela Banerjee, Dwarkadas Srinivas and the Fourth and 17th Amendments are reviewed. (paras 1084-1085)
Held: The successive amendments carried out the principle that legislation to secure the public good should have priority over individual rights. (para 1086)
Held: Article 31(2) originally gave full market value with no flexibility for social interest. The 25th Amendment remedies this mischief. Parts III and IV touch and modify each other. (para 1087)
Held: If compensation means social justice, there is harmony between Parts III and IV. If it means market price, there is an inherent conflict. Social interest varies by time and place and individual rights may have to be limited. (para 1088)
Held: The amount and the principles can be fixed on norms of social justice. (para 1089)
Held: Once the amount is fixed, no reasons need appear. The Court cannot go into adequacy or how the amount was fixed. A plea that the amount is illusory meets the constitutional bar on adequacy. (paras 1090-1091)
Held: If the legislature specifies principles, the relevance of principles cannot be challenged because the result cannot be challenged for inadequacy. (paras 1092-1093)
Held: Article 14 has flexibility of classification and Article 19 of reasonable restrictions. Social justice will determine the nature of rights and restrictions. The scheme places social justice above individual rights where necessary. (para 1094)
Held: The 25th Amendment has two objects: to eliminate market value and to exclude Article 19(1)(f). Article 31C confers by constitutional mandate the power to make laws giving effect to the Directive Principles. Articles 31A and 31B, the Ninth Schedule and Article 31C remove restrictions Part III imposes on legislative power. (paras 1095-1096)
Held: State legislatures and Parliament by ordinary law cannot remove the fetters. By amendment Parliament can delete rights or exclude certain laws. Patanjali Sastri, C.J. in Shankari Prasad and Wanchoo, J. in Golak Nath explain Articles 31A and 31B. (paras 1097-1098)
Held: The declaration in Article 31C does not delegate power. It removes a restriction on legislative power. It is comparable to the conclusive evidence clause in Section 6(3) of the Land Acquisition Act and to Babu Barkya Thakur and Somavanti. (para 1099)
Held: Legislative power includes power to provide conclusive proof. The Court can examine nexus by looking at the scope, object and pith and substance (the true nature of a law, judged as a whole) of the legislation. The 25th Amendment is valid. (para 1100)
Held: Article 31B is not linked to the subject matter of Article 31A. Bihar Land Reforms, Visweshwar Rao and Jeejeebhoy support this. Article 31B is a constitutional device placing Scheduled Acts beyond challenge, and the words without prejudice to the generality show independence. (paras 1101-1104)
Held: The validity of the 29th Amendment is within a narrow compass. Mr. Palkhivala's contention that Article 31A requirements must be met cannot be accepted. (para 1105)
Held: The conclusions are: the power to amend is in Article 368. Neither the Constitution nor an amendment is law under Article 13. An amendment is an exercise of constituent power and the Golak Nath majority is wrong. There are no express or implied and inherent limits. Neither the Preamble nor Article 13(2) limits the power. The power is wide and unlimited and includes adding, altering or repealing any provision, with no distinction between essential and inessential features. The power under Article 368 can be increased. The 24th Amendment is valid. Amendment does not mean abrogation or wholesale repeal, and must leave an organic mechanism. (paras 1106-1107)
Held: The 25th Amendment is valid. Adequacy and principles are not reviewable. Article 31(2B) is valid. Article 31C does not delegate and merely removes restrictions of Part III. (para 1108)
Held: The inclusion of the two Kerala Acts in the Ninth Schedule is valid. Article 31B is independent of Article 31A. (para 1109)
Held: The contentions of Mr. Palkhivala fail. Each party bears its own costs. The petitions go to the Constitution Bench. (para 1110)

P. Jaganmohan Reddy, J. (paras 1111-1263)

Noted: Reddy, J. agrees with some conclusions of the Chief Justice but writes his own views because the approach is as important as the conclusion. He refers only to such contentions of the 66 days of argument as are needed. (para 1111)
Noted: The validity of the 24th Amendment depends on two words, law in Article 13 and amendment in Article 368. In Golak Nath the leading majority located the power in Articles 245, 246 and 248 with Entry 97. Hidayatullah, J. found a sui generis power in a process outlined by Article 368. Wanchoo, J. and two others found the power in Article 368. (paras 1112-1114)
Noted: The Advocate-General of Maharashtra argues that the leading majority's finding on fundamental rights loses its basis since six Judges held the power is not in Entry 97, and that no ratio binds the Court. (paras 1115-1116)
Held: The ratio of Golak Nath is that an amendment under Article 368 is law within Article 13(2). The question of whether Article 368 itself could be amended under clause (e) of the proviso to amend fundamental rights was not decided. Five of six Judges who considered it supported the power. Golak Nath is not determinative of that question. (para 1116)
Noted: It is argued that Golak Nath's remarks on the future were obiter. The Court notes that the ratio is that, under unamended Article 368, Parliament could not abridge Part III. The question matters only if Parliament cannot amend Article 368 under clause (e) to take away rights. (paras 1117-1118)
Noted: The first question is what law in Article 13(2) means. The Article 13(3)(a) definition is inclusive and covers Ordinances, bye-laws, rules and custom, and by unless the context otherwise requires also applies to clause (1). (paras 1119-1120)
Held: A law made by Parliament or a State Legislature is clearly law within Article 13(2), as ordinances are. It is difficult to envisage the framers including minor legislative acts in the definition but not an amendment of the Constitution. The enumeration of rules, bye-laws and notifications points to legislative law. (paras 1121-1122)
Held: The articles of Part III that use law show it means the law Parliament or a Legislature must make to give force to rights or may make to restrict them. Even where Article 33 allows restriction or abrogation, it is Parliament that makes a law. (paras 1123-1124)
Held: Hidayatullah, J. read the opening words of Article 35 as excluding Article 368, by analogy with Section 105A of the Australian Constitution. It is unsafe to rely on other Constitutions, and Article 35 is not in pari materia. The article empowers Parliament to give effect to rights and does not limit the amending power. (para 1124)
Held: The limits on rights in Part III can be imposed only by ordinary law and no amendment is needed. The bar in Article 13(2) must be against the State making such a law. To read an amendment into Article 13(3)(a) would restrict Article 368 by a strained construction. (para 1125)
Held: Reading Article 13(2) with Article 19(2) to (6), law in both is only ordinary law. Redrafted versions show this. Articles 16(3) and (5) and 22(3) are similar. (paras 1126-1127)
Held: Hidayatullah, J. read State in Article 12 as the sum of all agencies acting together. That assumption is not warranted. Article 13(2) bars each agency acting separately. Reliance on the Nicaraguan and Burmese Constitutions is not permissible. Article 13(2) does not put an embargo on an amendment under Article 368. (para 1128)
Held: If an amendment is law, so is the Constitution. The framers used law in contradistinction to the Constitution: Articles 60, 61, 73, 75, 76, 124, 148, 159 and 219 and the Third Schedule show this. Constitution as by law established only emphasises force of law. (para 1129)
Held: Article 13(2) is not redundant. It emphasises the commanding position of fundamental rights, as Hidayatullah, J. pointed out against Kania, C.J.'s abundant caution remark in Gopalan. Fundamental rights are self-contained with the remedy in Article 32. The framers wanted to avoid the American doctrine of void and relatively void. The framers may have felt no need to exclude Article 368 expressly if Article 13(2) applies only to legislative law. (para 1130)
Held: The Constituent Assembly debates can be looked at for the stages of drafting. The Court should look boldly into them as relevant data for the intent of framers of a Constitution, rejecting them if unhelpful. A Constitution is a working instrument drafted for successive generations. The proceedings of a Constituent Assembly lack partisan nuance. (para 1131)
Noted: Mr. Santhanam's amendment of 29 April 1947 was accepted: Nor shall any such right be taken away or abridged except by an amendment of the Constitution. It was later deleted by the Drafting Committee. The proviso to draft Article 8(2), on removal of inequality, and the Constitutional Adviser's comment that law means ordinary legislation are set out. The proviso was deleted by Amendment No. 252 on 29 November 1948. (paras 1132-1133)
Held: The proviso envisaged legislative law, and so the same must be true of clause (2) of draft Article 8. The amendment by Dr. Ambedkar unless the context otherwise requires shows the care taken. (paras 1133-1134)
Noted: To draft Article 304, amendment No. 157 by Mr. Santhanam was not moved. Dr. Deshmukh's Amendment No. 212, to bar any amendment infringing individual rights, was withdrawn. A proposal to add Parts III, IV, IX and XVI to the proviso was not adopted. (paras 1135-1136)
Held: Whether Dr. Ambedkar's speech on three categories was a mistake is not relevant. What matters is the words, context and purpose. That members of the Provisional Parliament never doubted the amendability of Part III in the First Amendment debate is not relevant either. (para 1136)
Held: Article 13(2) places no embargo on Article 368. It is not necessary to decide whether the power lies in Entry 97, since the majority held it lies in Article 368. The leading majority did not say whether fundamental rights could be amended under the proviso. (para 1137)
Noted: The 24th Amendment's Statement of Objects and Reasons and the before-and-after text of Articles 368 and 13 are set out. Seven effects are listed. (paras 1138-1140)
Noted: Whether Article 13(2) is an essential feature is the question. If not, it can be amended. The petitioner says that if removing the fetter lets ordinary laws abrogate rights, that would be an essential feature. Implied limits depend on the meaning of amendment before the 24th Amendment. (paras 1141-1142)
Noted: In Golak Nath, Subba Rao, C.J. recognised force in the argument that amendment has a positive and negative content, but left it undecided. Hidayatullah, J. noted the controversy in America and said the whole Constitution is open to amendment except about two dozen articles. Wanchoo, J. rejected implied limits. Bachawat, J. expressed no opinion. Ramaswami, J. rejected them. (paras 1143-1146)
Held: The Court should free itself from consequences and pressures. Milton's words are quoted: we cannot leave the real world for a Utopia. The decision must follow the rules of construction and a true interpretation. (para 1147)
Held: This Court has forged its own rules of interpretation and should not depend on foreign Judges' views. The Court will not be deterred from judicial review by political or social implications. The legislature has the exclusive power to determine policy, and its constitutionality is presumed. All three organs are bound by the Constitution. (para 1148)
Held: The Court has no political philosophy of its own. Judges may not write in prejudices. They judge legislation by the felt needs of society and the Constitution. (para 1149)
Held: Courts have nothing to do with the wisdom of the legislature. They do not bind unborn generations. They have power to re-examine and restate the law to meet socio-economic changes, with resilience in interpretation. (para 1150)
Held: A word of caution is needed on foreign Constitutions. The seed of a Constitution grows in a particular soil. Law varies by time and place. Gwyer, C.J. in the C.P. and Berar case and Gajendragadkar, C.J. in Special Reference 1 of 1964 said no two Constitutions are in identical terms. (para 1151)
Held: American decisions arose from a different history, and their amending power is linked to ratification by the people. They are of little practical use here. English, Commonwealth and American decisions on matters in pari materia are persuasive. (para 1152)
Noted: The Attorney-General argues that the object of amendment in a written Constitution is orderly change, avoiding revolution, and change of basic principles. He cites Woodrow Wilson and Hoar. The people gave the amending power to the bodies in Article 368, and no other method, such as a referendum, is permissible. (paras 1153-1157)
Held: The Attorney-General says the people were eliminated from the amending process because they are illiterate. This is incongruous, as they can be trusted to vote on complex manifestos. But the Constitution is insulated from the direct impact of the people's vote through the electoral system, in which a minority of voters can elect a majority of representatives. Dr. Ambedkar said Democracy in India is only a top-dressing on an Indian soil. (para 1157)
Held: There is warrant for saying the people reserved fundamental rights to themselves, per Patanjali Sastri, J. in Gopalan. Berubari overlooked that the Constituent Assembly adopted the resolution that the Preamble stand part of the Constitution. A comparison with Article V of the American Constitution would mislead. The Constituent Assembly was not elected on adult franchise and represented about 15 per cent of the population. Princely States were represented by nominees. (para 1158)
Noted: The Objectives Resolution was introduced on 13 December 1946 when the Muslim League boycotted, and adopted on 22 January 1947 with solemnity. Legal sovereignty then lay with the British Crown. Sections 6 and 8 of the Indian Independence Act transferred it. The Princes accepted the Constitution only in November 1949. It was not ratified by the people. (paras 1159-1161)
Noted: Speakers in the Assembly said it was not representative, and some moved for ratification by the people. These were rejected. Dr. Ambedkar explained the Assembly had no partisan motive, unlike future Parliaments. He repudiated that an adult-suffrage Assembly would be wiser. (paras 1162-1163)
Held: The Preamble, the working of the Constitution for 23 years and five general elections make it indisputable that the source and binding force of the Constitution is the sovereign will of the people of India. (para 1164)
Held: No State needs unlimited power, and in federal polities no such doctrine is sustainable. Even in the United Kingdom, Goodhart says established principles limit Parliament: no one is above the law, those who govern do so in a representative capacity, freedom of speech and assembly, and the independence of the judiciary. (para 1165)
Held: The 24th Amendment changed the marginal note, added a non obstante clause, constituent power and addition, variation or repeal. Both Houses were construed as Parliament. A law in its generic sense includes constituent law. The amending power is a facet of the constituent power. Clause (1) makes explicit what was implicit and changes nothing. (para 1166)
Held: Clause (3) of Article 368 and clause (4) of Article 13 also make explicit what was implicit, subject to any limit within the word amendment itself. (para 1167)
Noted: The outstanding question is the meaning of amendment: wide or restricted, whether it includes repeal or revision, and whether it permits damaging essential features. (paras 1168-1169)
Held: The simplest solution is to assume the amending power is omni-sovereign, but this should be eschewed as an a priori assumption. Writers on different Constitutions cannot interpret ours. The proper approach is from national aspirations, the Objectives, and the Constitution's balanced structure as in a ship built for fair weather as well as for foul. (para 1169)
Noted: The Attorney-General says amendment has a clear, precise meaning of the widest amplitude, and that revision and amendment are synonymous. Counsel for the petitioner says it has no precise meaning and takes its colour from context, relying on Lord Wright in James v. Commonwealth. (paras 1170-1171)
Held: Provisions of Constitutions where people take part in amendment are inapt. Mr. Brajeshwar Prasad's proposal to adopt the Australian method was negatived. (para 1171)
Held: Draft Article 305 does not show that amendment means repeal. It is completely restrictive for ten years and allows only extension or change of terms. (para 1172)
Held: Five Judges in Golak Nath rejected the contention that amendment means improvement. Subba Rao, C.J. left it open. Hidayatullah, Wanchoo and Bachawat, JJ. said it means change. (paras 1173-1176)
Held: The Attorney-General's statement that the majority in Golak Nath rejected the narrow meaning is not accurate. Implied limits and the width of amendment are different concepts. There is not a majority of Judges that held there are no implied limits. (para 1177)
Noted: The Advocate-General says the dictionary link between amendment and improvement is euphemistic. Bachawat, J. relied on the National Prohibition case on Livermore v. Waite. (paras 1178-1179)
Held: The National Prohibition case did not deal with the scope of the power. At most, amendment includes adding a provision to the Constitution. (para 1180)
Noted: The Advocate-General says amendment in Article 368 is synonymous with amend by way of addition, variation or repeal. Wanchoo, J. doubted whether the power goes to abrogating the present Constitution and substituting a new one. The Attorney-General, Solicitor-General and Advocate-General agree amendment does not mean abrogation. (paras 1181-1183)
Held: If amendment does not mean abrogation, a question arises where the line is drawn. The Attorney-General says clause (e) was added by abundant caution and the Advocate-General says to meet Ryan's case. The Irish analogy is inapplicable. (paras 1184-1186)
Held: The respondents concede the office of the President cannot be abolished without States' concurrence. This is an implied limit in Article 368 because of the proviso. An implied power to amend is itself found in Article 368. If Burah is used against powers not affirmatively conferred, it negatives the respondents' own submission. (para 1187)
Held: There are naturally limitations in every organic instrument. It is not necessary to decide implied or inherent limits if the amending power is wide, because they could be overridden. What must be considered is whether amendment is wide enough to include the power to repeal or abrogate. (para 1188)
Noted: The Advocate-General says the exclusion of paragraphs 7 and 21 from Article 368 shows that amendment there means addition, variation or repeal. The Attorney-General cites many articles and the First Amendment. (para 1189)
Held: A power that corrupts is why the framers drew up a written Constitution and gave citizens basic rights. If faith in rulers were so great, no Constitution would be needed. The question is whether Parliament can make itself the supreme sovereign. Checks and balances guard against abuse. (para 1190)
Held: The Constitutions of other countries cited by the Attorney-General use amend with words like alter, repeal, revise, or in connection with ratification by the people. Ceylon's Section 29(4), the Finnish, Irish 1937, Malayan, Pakistani, South African and Brazilian Constitutions show the same. They do not show amendment has been used alone to denote the full breadth of power. (paras 1191-1193)
Held: By way of is idiomatic and the substitution makes no difference. Amend means to alter, modify or add to. A repeal is not an amendment, although an amendment may operate as a repeal to a degree. Crawford and Words and Phrases are cited. (paras 1194-1195)
Held: State court decisions in the United States distinguish amendment from revision and repeal. The Constitution distinguishes amend from repeal in Articles 372, 252, 35(b), 254, 350 and 243, and in the Government of India Act, Section 6(2) of the Indian Independence Act and Article 109. The word amendment in Article 368 does not connote a full breadth of power. (para 1196)
Held: The argument that minor matters require State ratification but fundamental rights do not rests on a misconception: there is only one citizenship and only Parliament legislates on it. Amendment means change as opposed to destruction. The proviso is a key to its meaning. The amplitude of the amending power cannot be enlarged by amending Article 368 under clause (e). (para 1197)
Held: If all provisions were repealed leaving a husk, that would amount to abrogation and substitution of a new Constitution, which cannot be done under Article 368. (para 1198)
Held: The Preamble can be resorted to. Story's passages, in full, show it is a key to the makers' mind, used where words are ambiguous, to prevent absurdity, and to expound the powers actually conferred but not to create them. Willoughby shows the Preamble reveals essential concepts. Berubari did not notice that the Preamble was adopted as part of the Constitution. (paras 1199-1201)
Noted: The English cases on preambles are reviewed. In Prince Ernest Augustus of Hanover, Viscount Simonds and Lords Normand and Somervell said context includes the preamble. Lord Thring and Mudholkar, J. in Sajjan Singh are cited. (para 1202-1203)
Held: The Preamble is a guide where words are ambiguous, or to avoid absurdity. If it conveys a clear meaning, it prevails over obscure enacting words. Berubari did not consider Story's views, and its remark that the Preamble does not postulate a very serious limitation implies some parts could. Its advisory opinion is not binding on the width of the amending power, which was not considered. (paras 1204-1205)
Held: The argument that every feature is essential and there are no essential features is attractive but unsound. The Constitution is not a jelly fish and must have a structure. The elements of the basic structure are indicated in the Preamble: a Sovereign Democratic Republic; justice, social, economic and political; liberty of thought, expression, belief, faith and worship; and equality of status and opportunity. Removing any makes it a different Constitution. A democratic republic means a representative system with competing candidates. A complete list is not required. (para 1206)
Held: Without fundamental rights or Directive Principles, the structure of a sovereign democratic republic cannot remain the same. Granville Austin calls Parts III and IV the conscience of the Constitution. (paras 1206-1207)
Noted: The demand for fundamental rights is traced from Magna Carta and the 1895 Bill to the Nehru Committee, the Karachi Resolution of 1931 and the Sapru Committee. Nehru, Radhakrishnan and Ambedkar are quoted. Dr. Ambedkar called Article 32 the soul of the Constitution. (para 1208)
Held: Dr. Ambedkar's remarks cannot suggest Article 32 can be abrogated, since clause (4) of Article 32 prevents even suspension except under Article 359. The guarantee in clause (4) is against the amending power. When a remedy cannot be abrogated, the rights cannot be. No member suggested abrogation of fundamental rights. Rau's attempts to make rights subordinate to Directive Principles failed. To say Directive Principles can be given effect only if rights are abrogated is untenable. Justice Black and Maitland are cited. (para 1208)
Held: The framers could not have provided for the destruction of freedoms inherent in civilised man. The Advocate-General of Mysore's contention that people would have ordinary rights if fundamental rights are abrogated is repudiated. Article 13(2) inhibits only ordinary legislative law. Parliament can amend Article 13 and fundamental rights, but cannot abrogate or emasculate any fundamental right or other essential element of the basic structure and destroy its identity. Within these limits Parliament can amend every article. The 24th Amendment is valid. (para 1209)
Noted: The 25th Amendment aimed to get over the Bank Nationalisation case. The earlier compensation cases are examined by Hegde, J. and need not be repeated. (para 1210)
Held: After the amendment the law need not give the just equivalent, and part may be paid otherwise than in cash. The question is whether the lowest coin could be fixed. This Court has consistently held that an illusory or arbitrary amount, bearing no reasonable relation to value, can be examined, as can the relevance of principles. That position is not affected by the change of words. (paras 1211-1212)
Held: An amount fixed without principles would be arbitrary. If fixed, it must be on some principle or criteria. The Advocate-General's concession that fixing principles makes the amount justiciable but fixing the amount without principles does not is without rational basis. The Court can go into arbitrariness, illusoriness or irrelevant principles, and the manner of payment, but not adequacy. (para 1213)
Held: In the Bank Nationalisation case, ten Judges held that reasonableness of procedural provisions under Article 19(1)(f) is not excluded, such as determining compensation without hearing the owner. Clause (2B) therefore removes only reasonableness of procedure. The owner keeps the right that property is acquired only by law and for a public purpose. (paras 1214-1215)
Held: Clause (2B) can be read two ways. The second construction, that a law of acquisition is not void for abridging Article 19(1)(f), is more consistent with the amendment's validity. Since an amendment cannot totally abrogate a right, clause (2B) is restricted by severability in application to abridgement and not abrogation. A reasonable procedure, notice and hearing remain necessary. (para 1215)
Held: Clause (2B) does not exclude natural justice. The Court cannot read a sinister design to abrogate the rule of law (the idea that law governs those in power) and audi alteram partem. (para 1216)
Held: The petitioner's dire consequences are noted. The law must still be for a public purpose, which is justiciable. Under the Bardoli lands principles, the owner gets what he paid with lost interest, so it is not confiscation. Khajamian Wakf Estates shows religious property can be acquired. Section 2 of the 25th Amendment is valid. (para 1217)
Noted: Section 3 caused considerable difficulty. It aims at Article 39(b) and (c) but assumes rights under Articles 14, 19 and 31 must be taken away or abridged. Article 31C is set out. (paras 1218-1219)
Noted: The petitioner says Article 31C subverts seven essential features. The Advocate-General of Maharashtra says it was introduced because Shantilal Mangaldas was reversed in the Bank Nationalisation case. It does not delegate power but removes restrictions. On Akadasi Padhan, a law with only some sections related would not be protected. There must be a nexus. This answer is vague. (paras 1219-1220)
Noted: The Solicitor-General says Article 31C protects only law, the nexus is a condition precedent and justiciable, and the declaration removes political questions. The Court can tear the veil. There are three safeguards: community good sense, the President's assent and review of nexus. Articles 15, 16, 286 and Part XIII remain open for review. (para 1221)
Noted: The Solicitor-General says Article 31C carves a legislative field by objective like Articles 15(4), 31(5)(b)(ii) and 33. Even if there is some delegation of amending power, Article 368 allows its own amendment. (para 1222)
Noted: Article 31C is said to resemble Articles 31A and 31B. The history of Article 31 in the Constituent Assembly, the compromise in clauses (4) and (6), the Patna High Court decision, the First Amendment and Prime Minister Nehru's plea on the Schedule are recounted. Shri Shyama Prasad Mukherjee warned about the precedent. (paras 1223-1224)
Held: Sankari Prasad and Sajjan Singh did not decide that the amending power extends to abrogating fundamental rights. Hidayatullah and Mudholkar, JJ. doubted. Golak Nath did not conclusively decide. That Article 31C is like Articles 31A and 31B, which were held valid, does not justify it. The Court can reconsider since the extent of the power has now been fully argued before the largest Bench. Gajendragadkar, C.J. on stare decisis is quoted. (para 1225)
Held: None of Articles 33, 15(4) and 16(4) totally abrogates a right. Article 15(4) permits classification otherwise permissible under Article 14 and does not abrogate it. The analogy to Article 31C is not apt. (para 1226)
Held: The Directives in Article 39(b) and (c) are wide and indeterminate. Means of implementing them vary by theory and generation. Legislation giving effect is a legislative judgment that courts do not examine for efficacy. Governments have the right to make mistakes. The Court ensures the means do not conflict with the Constitution. Liyanage is cited. (para 1227)
Held: Article 31C lets Parliament and State legislatures, by a simple majority, enact laws contravening Articles 14, 19 and 31, which Parliament could do only under Article 368. Whether one calls it removing restrictions or conferring sovereignty, it is the same. (para 1228)
Held: It is not necessary to decide whether Article 31C delegates the amending power. Reddy, J. prefers to see it as lifting the bar, within legislative powers under the Seventh Schedule. (para 1229)
Noted: The question is whether Article 31C abrogates, damages or destroys any fundamental right. It has four elements: laws inconsistent with, taking away or abridging rights under Articles 14, 19 and 31, and a bar on questioning a declaration. (paras 1230-1231)
Held: The first element is by abundant caution. Taking away rights is ultra vires the amending power. Abridgement is valid if it does not affect the basic or essential content of the right or reduce it to a right in name. In so far as it permits abridging Article 19, it is intra vires. Articles 14 and 19 must be examined for what they guarantee. (para 1232)
Held: Article 14 incorporates liberty and equality from the Preamble. It has a negative aspect, equality before law, and a positive one, equal protection of the laws. Deoman Upadhyaya and Lachhman Das (Subba Rao, J.) are cited. (paras 1233-1234)
Held: Das, C.J. in Dalmia set the classification test: an intelligible differentia and a rational relation to the object. Classification may be based on the objectives of Article 39(b) and (c), but the right to equality cannot be disembowelled by classification. (para 1235)
Held: Lifting the embargo of Article 14 on laws under Article 31C abrogates the right altogether. Severing the words inconsistent with or takes away, or would not by itself leave a meaningful abridgement. A classification under Article 39(b) and (c) must have a rational relation to the object. (para 1236)
Held: A mere violation of Article 14 is taking away or damaging the right, so abridgement of Article 14 is ultra vires. The need to exclude Article 14 from laws under Article 31C is not apparent. Rational classification will satisfy Article 14. Under Article 31A laws were not immune from Article 14 if tainted with arbitrariness, as Balmadies Plantations suggests. (para 1237)
Held: Nagpur Improvement Trust v. Vithal Rao does not affect this. If two similarly placed owners' property is taken, one under Article 31C and one under Article 31(2), it is discrimination. Article 14 is not a hindrance to the Directives. (para 1238)
Held: Article 31C is far wider than Article 31A. Article 14 is excluded where protection is most needed, such as unequal treatment of persons equally situated in distribution. Full compensation would defeat the object, so there is no question of equality in compensation. Article 14 would ensure distributive justice. The analogy with Article 31A is misconceived. (para 1239)
Held: It is not an answer that abuse should not be presumed. The question is the extent of the power. The objectives of Article 39(b) and (c) can be achieved even if Article 14 is severed. (para 1240)
Noted: A question was asked on 12 January 1973, the 35th day, on the social content of restrictions on free speech and movement beyond Article 19(2) to (6). The printed paragraph number here is 1265. The Advocate-General answered on 1 March 1973 under two heads. (para 1265)
Noted: The Advocate-General said the social content of Directive Principles is wider than that of permissible restrictions. Dilatory litigation can hold up social legislation, and that is why the First and Fourth Amendments were enacted. (para 1241)
Noted: The Article 19 rights overlap, for example speech with assembly and trade with property. This explains why the whole of Article 19 is excluded. (para 1242)
Noted: The Advocate-General relied on Lord Bryce on the Press. He said individual free speech differs from the Press, which is a business. (para 1243)
Noted: Article 19(1)(a) is closely connected to Article 19(1)(g) and (f), and Article 19(5) groups movement with residence and property. Gopalan's observations show the need to exclude Article 19(1)(d) and (e). Parliament rightly excluded the whole of Article 19 in the First, Fourth and Seventeenth Amendments. Article 31C extends the primacy given to Directive Principles. (paras 1244-1245)
Held: This analysis shows that, on those submissions, the entire fundamental rights are abrogated: Article 14, Article 19(1)(a) to (g) and other rights. (para 1246)
Held: Laws under Article 31A touched only Article 19(1)(f) and (g). There is no logic linking freedom of assembly or movement with property. Persons deprived of property still need freedom to move and work. Workers' unions and the Press would be unrelated victims. If Article 31C can take away rights, beneficiaries of distribution will not have a stake in democracy. Balsara shows the danger. The absence of a law-making power is no ground to abrogate the entire right of speech. (para 1247)
Held: Articles 25 to 30 could be affected because denominations own property, and Articles 29 and 30 become hollow if Articles 14 and 19 go. Only Articles 20, 21 and 22 would remain. Individual rights may be subordinated to some extent but not enslaved and driven out of existence. (para 1248)
Held: The Solicitor-General rightly says laws under Article 31C operate only on material resources, concentration of wealth and means of production. Only the Article 19 rights relating to property and trade can be abridged. Rights in Article 19(1)(a) to (e) are irrelevant. (para 1249)
Held: Article 31(1) is not affected because laws must conform to it. A further abridgement of Article 31(2) may in a given case amount to abrogation. (para 1250)
Held: On the fourth element, Reddy, J. agrees with Khanna, J. on severance of the declaration part. (para 1251)
Held: Article 31C is intra vires only if the words is inconsistent with or takes away, or and Article 14 and the declaration are severed. Punjab Province v. Daulat Singh and Chamarbaugwalla allow severance. (para 1252)
Held: A legislature is presumed not to exceed its jurisdiction. The Hindu Women's Rights to Property case and Daulat Singh severed the excess. (para 1253)
Held: Chamarbaugwalla's seven rules of separability apply. Balsara severed only some words. Calcutta Tramways severed the conclusive clause. Kameshwar Prasad severed the demonstration part of the rule. Ranojirao Shinde did not apply severability because the clause was too wide to be rewritten. (paras 1254-1256)
Held: Neither side argued severability on Article 31C because both took extreme positions. The Court is left to examine the position. An amendment passed by the proper form should not be invalid if it can be upheld by severing. The words inconsistent with, or takes away or, Article 14 and the declaration portion are severable. After severing, Section 3 of the 25th Amendment is valid. (para 1257)
Held: On the 29th Amendment, Reddy, J. agrees in effect with the Chief Justice and Hegde and Mukherjea, JJ. The contention that Article 31B is connected with Article 31A is unacceptable. Whether the Acts abrogate rights will be examined later. The 29th Amendment is valid subject to that reservation. (para 1258)
Held: His conclusions: Article 13(2) does not place an embargo on Article 368. Amendment in Article 368 does not include repeal. Parliament can amend Article 368, Article 13 and fundamental rights, but cannot abrogate or emasculate them or the essential elements of the basic structure. It cannot enlarge the power to repeal or abrogate the Constitution. The 24th Amendment has not changed the power and is valid. (paras 1259-1260)
Held: Section 2 of the 25th Amendment: Article 31(2) has the same meaning as under the earlier decisions except that the just equivalent no longer applies. The amount must be fixed on some principle, and the Court cannot go into adequacy. Clause (2B) is read to apply only to abridgement and not abrogation, and the right to reasonable procedure remains. Section 2 is valid. (para 1260)
Held: Article 31C is valid only if the words inconsistent with or takes away or, Article 14 and the declaration portion are severed. After severance, Section 3 is valid. (para 1261)
Held: The contention that Articles 31A and 31B are interconnected is rejected. The 29th Amendment is valid, but whether the Acts abrogate fundamental rights or basic elements will be examined later. (para 1262)
Held: The petitions are to be posted before the Constitution Bench and the parties bear their own costs. (para 1263)

D.G. Palekar, J. (paras 1264-1386)

Noted: The facts are in the Chief Justice's judgment. The petitioner, apprehending he would not succeed against the Acts because of the Amendments, also challenged the 24th, 26th and 29th Amendments. The crucial point is whether Parliament can amend the Constitution to abridge or take away fundamental rights. (paras 1264-1266)
Noted: The 24th Amendment brought Articles 13 and 368 in line with what a majority of Judges had held over the years. Article 13 does not apply to amendments, Article 368 contains power as well as procedure, the power is constituent, and it includes addition, variation and repeal. Sankari Prasad (unanimous) and Sajjan Singh (three to two) were overruled in Golak Nath by six to five, with Hidayatullah, J. saying this could not be done even by amending Article 368. (paras 1267-1268)
Noted: Mr. Palkhivala supported Golak Nath and also argued that the power does not extend to essential features. The Union and Kerala say the amendment was permissible even before the 24th Amendment. The Court must therefore go back to the Constitution before the 24th Amendment, since Parliament could not increase its power by amending Articles 13 and 368 if it lacked it. (para 1269)
Noted: The framers knew the English-speaking Constitutions, the unitary and federal types, parliamentary and presidential systems, and flexible and rigid Constitutions (Bryce, Dicey). The Automobile Transport case is cited. Lord Birkenhead in McCawley used controlled and uncontrolled. Strong says the sole criterion of rigidity is a special direction on how to change the Constitution. (paras 1270-1271)
Held: The question is whether our framers adopted a flexible or a rigid Constitution. Articles 245 to 248 and the Lists nowhere mention amendment. Part XX has one Article, Article 368, with a special procedure: a Bill in either House, a special majority, no joint sitting, and ratification by half the States in certain matters. Our Constitution is therefore a rigid or controlled Constitution, and the amendment writes itself into the Constitution when the procedure is followed. (paras 1272-1273)
Held: The two procedures are deliberate, the legislative and the constituent. Constituent is defined as able to frame or alter a Constitution. (para 1274)
Held: The leading majority in Golak Nath found the power in Article 248 with Entry 97 and that was basic to invoking Article 13(2). Mr. Palkhivala's indifference to the location does not conclude the question. Six Judges did not find the power in Entry 97 and five did. The view of Subba Rao, C.J. is, with respect, not correct. (paras 1275-1276)
Held: Article 368 is in a separate Part. Articles 4, 169 and the Schedule paragraphs grant a power by law and say the amendment is not an amendment for Article 368, to emphasise that an amendment under Article 368 has a special quality. Parliament and the States then perform a constituent function. Article 368 is not entirely procedural: the proposed amendment shall become part of the Constitution, which is the substantive part. The power is in Article 368 only. (para 1277)
Held: If the framers regarded the amending power as an ordinary legislative power, they would have added an entry in a List. Draft Article 304 had a separate clause 2 giving States the power to propose amendments in two matters, which supports finding Parliament's power in clause 1. (para 1278)
Held: Article 245 is subject to the provisions of the Constitution. A law amending the text of a provision impairs or nullifies it and so is inconsistent with it. A law amending the Constitution under Entry 97 would always be invalid. A law under Articles 245 to 248 must follow the ordinary procedure. The special procedure in Article 368 produces the constituent power. (para 1279)
Held: If an amendment is a law under Article 248, then either the whole Constitution becomes unamendable or, if it is never repugnant, the whole becomes amendable and Article 13(2) has no determinate value. The power and procedure are in Article 368. (para 1280)
Held: Modern methods of amendment are: by the ordinary legislature with restrictions, by referendum, by a majority of units of a Federal State, by special convention, or by a combination. Strong says the constituent assembly arranges for its own recreation through the legislature acting under restrictions. (para 1281)
Held: Orfield, Finer, Marshall and Wade describe the amending body as sovereign. Patanjali Sastri, J. in Sankari Prasad called the power sovereign constituent power. Sovereign is used only to describe a power superior to other powers: legislative power is subject to the Constitution but the power to amend operates over it. (para 1282)
Held: The power is not less when exercised by an ordinary legislature than by a special convention. The argument that Parliament, as a constituted body, has less power than a constituent assembly is rejected. Article V of the American Constitution is described. (para 1283)
Held: The referendum is wholly excluded in Article V. Dodge v. Woolsey says the people excluded themselves from direct agency in amendments. Sprague and Hawke v. Smith show that an amendment must be made strictly in accordance with the method laid down. Whether it had better be made by a convention is of no relevance. (para 1284)
Held: Under Article 368 Parliament is the principal body. Parliament represents the will of the people in a large way. Under our parliamentary system the Executive is responsible to the legislature, unlike in the United States. In Britain and New Zealand the Constitution can be changed by an ordinary majority. (para 1285)
Held: The people withdrew from the amending process, as in America. Dr. Ambedkar said referendum and convention were considered and rejected, and amendment was made as easy as reasonably possible. The Constituent Assembly's chief controversy was the degree of flexibility. Illiteracy and diversity made an All-India body the choice. The power of the designated authorities must be co-extensive with that of a convention or constituent assembly. (para 1286)
Held: British Coal Corporation and Edwards v. Attorney-General for Canada show that an organic statute is given the widest amplitude. The amending power cannot be less. (para 1287)
Held: Of the 71 Constitutions the Attorney-General cited, over fifty provide for amendment using amend, revise or alter. Some make provisions unamendable, and two, those of Somalia and West Germany, make human rights provisions unamendable. All give an amending power. (para 1288)
Held: The raison d'etre of an amending clause is orderly change. People revolt because essential parts are not changed. The American Constitution survived by its vagueness and by judicial adaptation. Framers of modern Constitutions, including India, made theirs precise and flexible. (para 1289)
Held: Dust over whether amendment extends to repeal of the Constitution is unprofitable. Framers provide for amendment to the widest possible limit between orderly government and orderly change. The word change in Article 368 makes the intention known. Amendment of the Constitution is well known to mean alteration, variation or change. (para 1290)
Held: The exercise of the power must correspond with the amplitude of the power unless there are express or necessarily implied limits. The meaning of amendment of the Constitution cannot be less than amendment by way of addition, variation or repeal, which the 24th Amendment clarified. (para 1291)
Held: No part of the Constitution is expressly excepted from amendment. Article 368 and Part XX stand in supreme isolation. The power is not made subject to any other provision. Article V made two express exceptions, and draft Article 305 was deleted. The proviso shows Article 368 itself is amendable. The people made no reservations. The prescribed method excludes every other. The grant is plenary and unqualified except for the special procedure. (paras 1292)
Held: The character of an amendment does not depend on the flexibility or rigidity of a Constitution. Once the rigid procedure is followed, the Constitution can be amended to the same degree as a flexible one. Dicey, McCawley (Lord Birkenhead rejecting the argument that some sections are fundamental and others not) and the Statute of Westminster are cited. All provisions of a Constitution must be conceded the same character. (paras 1293-1294)
Held: Our Constitution made the amending procedure as flexible as reasonably possible. Burgess says the amending clause is the most important part of a Constitution and warns of revolution if the procedure is too rigid. All Constitutions, flexible or rigid, must have the power to amend to the same degree. (para 1295)
Held: American State courts, Edwards v. Lesueur, Dillon v. Gloss and Livermore v. Waite show the extent of the amending power and reject improvement as a test. Article V subjects the power to only two restrictions. Ratification by representative assemblies is the people's will, so our Parliament and State legislatures are no less representative. (para 1296)
Held: Ex parte Kerby, State v. Cox, Downs v. Birmingham, Schneiderman, Ullmann and Whitehill v. Elkins show there are no limits on amendment other than those expressly laid down. A general assembly amending acts as a convention. (paras 1297-1301)
Held: The Oxford English Dictionary, Sutherland, Words and Phrases, Funk and Wagnalls and the Dictionary of the Social Sciences all show that amendment has the core meaning of alteration or change. (paras 1302-1307)
Held: The language of Article 368 recalls Article V, where amendment alone involves alteration and change. The proviso, if such amendment seeks to make any change in, implies an amendment seeks to change provisions. The word change is uncomplicated. An amendment includes adding, altering or repealing. Improvement is not the test, since every proposer thinks it is an improvement. Mr. Palkhivala admitted no objection to amendments that improve the Constitution. (paras 1308)
Held: It is improper to cut down amendment of the Constitution by comparing it with amendment in other provisions or statutes. The word operates on a higher plane in Article 368. (para 1309)
Held: Paragraphs 7 and 21 of the Fifth and Sixth Schedules authorise an amendment by law. Sub-paragraph (2) of each prevents it being treated as an amendment of the Constitution under Article 368. A change in any provision under Article 368 is an amendment of the Constitution, with wide connotations. (paras 1309-1310)
Held: The amended Section 291 of the 1935 Act authorised the Governor-General to amend certain provisions by Order. It was not an amendment of the Constitution. No implication can be drawn from another statute in its own context. Section 308 of the 1935 Act used amendment without padding words. (para 1311)
Held: The original Article 368 did not refer to provisions, so padding words such as addition, variation or repeal would have been inappropriate. They might have implied alteration or repeal of the Constitution as a whole. This Constitution must be construed as every provision. The 24th Amendment clarified the position after the leading majority judgment's doubts. (para 1312)
Held: Article V of the American Constitution uses amendment alone, and yet there have been additions, alterations and repeals, including the repeal of the 18th Amendment by the 21st. (para 1313)
Held: There is nothing in Article 368 that expressly or by necessary implication limits the power. It is a large power, and it is not the function of the Court to invent limits. Consequences of reckless use are political. Consequences may be considered where the text is unclear but not where it is clear. Lord Shaw's passage in Vacher is quoted. (para 1314)
Noted: The only express limit alleged is Article 13(2). The pre-amendment text of Article 13 is set out. The intention was to make fundamental rights paramount. Article 372(1) continued existing laws. (para 1315)
Noted: Mr. Palkhivala said an amendment is a law made by the State and falls within Article 13(2). He says that, even if the power is in Article 368, an amendment is constitutional law, and some constitutional laws of States continued under Article 13(1). The Independence Act and the Government of India Act were repealed by Article 395. (paras 1316-1317)
Held: Jennings shows constitutional law is distinct from the rest of law. Laws continued under Article 372(1) are subordinate to the Constitution and subject to the other provisions. An amendment has the stature of the Constitution itself. It cannot be equated with so-called constitutional laws that survived. (para 1317)
Held: An amendment of the Constitution is not a law as understood in the Constitution. In other articles law means a law made by Parliament in the ordinary procedure, as Bachawat, J. showed. Article 368 scrupulously avoids the word law. Ratification by State legislatures is not a legislative act. The proposed amendment writes itself into the Constitution. American authorities, Finer, Corpus Juris Secundum, Burdick and Weaver, take the same view of Article V. (para 1318)
Held: Constitution and law are juxtaposed in Articles 60, 159, 76, 165 and the Third Schedule oaths, to emphasise supremacy. If an amendment were intended to be law in Article 13(2), it would have been specifically included in the inclusive definition in Article 13(3)(a), as ordinances and custom were. Its omission is significant. (para 1319)
Held: The bar in Article 13(2) is against a law made by the State, as defined in Article 12. The State includes organs created under the Constitution or adopted under Article 372, all owing a superior obligation to the Constitution. State cannot mean the Nation. (para 1320)
Held: A body exercising constituent power works over the Constitution, not under it. It is not a governmental organ and is not the State for Part III. An amendment is not a law made by the State and Article 13(2) does not control it. (paras 1321-1322)
Held: Article 13(2) embodies the doctrine of ultra vires. An amendment takes equal status with the rest of the Constitution. Voidability can be predicated only with reference to a superior law. Courts have no jurisdiction to avoid one provision with reference to another, as Sri Venkataramana Devaru shows. It becomes a matter of construction. (para 1323)
Held: If fundamental rights were unamendable, the proper place to say so was Part XX. Article V names two unamendable subjects. Draft Article 305 was deleted. (para 1324)
Held: The distinction between Constitution and the law is well recognised in federal Constitutions. Law in its widest sense includes constitutional law, but our Constitution distinguishes ordinary law from an amendment under Article 368, as seen in Articles 4, 169 and the Schedule paragraphs. McCawley was a flexible Constitution. In Ranasinghe, Section 29(4) was in a section dealing with legislative power. Constitution as by law established means legally established. (paras 1325-1326)
Held: The Constituent Assembly debates and drafts prove little. A note accompanying the first draft said Article 13(2) would not control an amendment, so clarification was unnecessary except by abundant caution. Speeches of the leaders, including at the First Amendment, do not show fundamental rights were unamendable. (para 1327)
Held: Fundamental rights are not inalienable natural rights. Articles 13 and 32 show the people conferred them. Many, such as Articles 17, 18, 20(2), 24 and 28, are not natural rights. Article 19 freedoms are only for citizens, and rights are hedged by restrictions. Prior to the Constitution these rights could be taken away by law. (para 1328)
Held: Natural rights have lost utility like laissez faire. The Constitution says rights are conferred, a gift of the Constitution. Social and economic justice is the core philosophy. The Directive Principles mandate is as important. Expropriation is justified in an egalitarian society, and the sacredness of property vanishes. One cannot lift parts of the Constitution above it. In modern democracies property is not an inalienable natural right. Friedmann's Legal Theory is quoted. (para 1329)
Held: The rights are not reserved by the people but conferred. The Constitution has the right to take them away. Golak Nath's majority conceded a Constituent Assembly could take away all rights. Where rights are reserved, the mode is referendum. In our Constitution the people withdrew from the process. Article 13(2) does not control amendment. The majority decision in Golak Nath is not correct. (para 1330)
Held: No other provision was shown as an express limit on the amending power. (para 1331)
Noted: It was contended that there are implied limits in the structure, principles and essential features of the Constitution. Mr. Palkhivala listed twelve. (paras 1332-1333)
Held: The 24th Amendment only gives effect to Parliament's acceptance of Sankari Prasad, the Sajjan Singh majority and the Golak Nath minority. It is clarificatory. No essential feature is affected by it. (para 1334)
Held: The 25th Amendment further abridges the right to property, which was abridged from the start (Article 31(4), (6)). The first, fourth and 17th Amendments were not struck down in Golak Nath. Since Article 13(2) does not control an amendment, no amendment can be challenged on that ground, including the 24th, 25th and 29th. (para 1335)
Noted: Mr. Palkhivala concedes fundamental rights may be somewhat abridged, as in the First Amendment and Articles 31A and 31B, but says the core cannot be damaged. He wants the Court to decide whether the core is damaged, a terrifying responsibility. It is odd that framers who excluded no provision intended this Court to make parts unamendable. The Court cannot be a guardian against change constitutionally effected. (para 1336)
Held: The case boils down to whether the core of the right to property has been damaged by the 25th Amendment. The other essential features do not arise. The 25th Amendment gives only an amount and excludes challenge under Articles 14, 19 and 31 for laws aimed at distribution. The Court will deal briefly with implied limits with special reference to property rights. (para 1337)
Held: The Constitution expressly declared a determination to break up concentration of wealth (Article 39(b) and (c)). If anything is an essential feature, it is this. Clauses (4) and (6) of Article 31 nullified compensation for Zamindaris. Kameshwar Singh shows illusory compensation. Challenge under Articles 14 and 19 was excluded by the First Amendment, and the Fourth Amendment extended Article 31A. The 25th Amendment has the same object. There is no difference in principle between Article 31A and the new Article 31C. (para 1338)
Held: Articles 31(4), (6) and 31A show community interests were regarded as supreme. Pandit Pant said nationalisation principles would be invulnerable in court except as a fraud on the Constitution. Mahajan, J. and Hidayatullah, J. (property is the weakest of fundamental rights) agree. The Constitution negatived protecting concentration of wealth as an essential feature. (para 1338)
Held: Even in countries with express limits, they can be removed by amending the amending clause. Article 368 has no express limit and clause (e) permits amendment of Article 368 itself. Implied prohibitions would contradict settled rules of construction (Isaacs and Rich, JJ. in McCawley). (para 1339)
Held: Amending the amending clause involves the procedure and can make it easier or harder, or replace Parliament with a referendum. Hidayatullah, J. was right that the power is not entrusted to any body but is generated when the procedure is followed. The power remains unqualified whichever the instrumentality. (para 1340)
Held: If implied limits come from the rest of the Constitution, they would bind a convention or referendum too, which Mr. Palkhivala does not accept. Golak Nath accepted that a Constituent Assembly could remove any right. (para 1341)
Held: The thesis that Parliament, as a constituted body, has inherent limits fails, since the power does not vary with the agency. (para 1342)
Held: The power is unqualified by whomsoever it is exercised, so there can be no implied or inherent limits. If a convention has none, no other constituent body is subject to them. (para 1343)
Held: Golak Nath's leading judgment saw some force but did not decide. The 24th Amendment's non obstante clause in clause (1) removes any doubt, so Parliament is not inhibited by express provisions and may ignore implications. (para 1344)
Noted: Where power to amend the amending power exists, it can be curtailed or enlarged. Ryan v. Lennon is explained: the majority held that Amendment No. 16 could extend the period from eight to sixteen years; Kennedy, C.J. dissented only because Article 50 did not provide for amending the amending power. Clause (e) here gives that power, and any implied limit is removed by the non obstante clause. (para 1345)
Held: In Moore, Mr. Greene conceded that Amendment No. 16 was valid, and their Lordships said rightly. According to Keith, Kennedy, C.J.'s judgment was wrong. Five Irish judges held Article 50 itself amendable. Moore held Amendment No. 22 valid. Our Article 368 authorises its own amendment, which can enlarge Parliament's powers. (paras 1346-1347)
Held: On first principles, the constituent body is not bound to respect so-called essential features because some regard them as good. The amending clause is a safety-valve. If a good feature has lost its appeal, the constituent body has the right to change it. (para 1348)
Held: If a part is expressly unamendable, or by necessary implication, the body cannot change it. There is no distinction between an express and a necessarily implied limit. To cut down Article 368, which expressly permits amendment of all provisions, another provision must be clear and specific. Warburton v. Loveland, Bentley v. Rotherham, Burah and Attorney-General for Ontario are cited. Neither the text nor the context of the fundamental rights articles shows they are exposed to Article 368. The Court determines the power expressly granted after excluding what is expressly or by necessary implication excluded. Webb v. Outrim is cited. (para 1349)
Held: The doctrine of implied prohibition against a power ascertained by ordinary rules of construction was rejected by the Privy Council in Webb v. Outrim. Nothing in Articles 31 and 19 suggests property rights cannot be abridged by amendment. Article 31(1) suggests deprivation under the authority of law. Article 31(4) and (6) cut down compensation and needed exclusion of Articles 14, 19 and 31. A spate of amendments curtailed property rights, none challenged on an implied-limit ground. (para 1350)
Held: Where the text is clear and unambiguous, there is no recourse to the context or scheme. The word amendment in a Constitution is clear. The scheme and context relied on, the Preamble and the fundamental rights' alleged transcendental character, only create an ambiguity where there is none. The Preamble and fundamental rights are as much part of a legal document as any other provision and no implied limits can be inferred. The scheme must say or reasonably suggest something about the amending power. (para 1350)
Noted: Mr. Palkhivala says the Preamble sets the objectives, which should be treated as permanent and unamendable, and that fundamental rights are an elaboration of them. (para 1351)
Held: The submission that fundamental rights elaborate the Preamble is an over-statement and a half truth. Strictly the Preamble is amendable under Article 368, but the people will not be rash enough to amend it. The Preamble states Liberty and Equality in absolute terms, while the fundamental rights state them in an attenuated form with restrictions. To say they elaborate the goals is a caricature. (para 1352)
Held: The pre-eminent place in the Preamble is given to Justice. Without Justice, Liberty, Equality and Fraternity are illusory. Article 38 highlights it. Wade says liberty today involves the ordering of social and economic conditions. The shift of emphasis in our Constitution is from individual liberty to Justice. (para 1353)
Held: Absolute Liberty and Equality are difficult to achieve. Fundamental rights are rules of civilised government that the framers placed in the Constitution to bind our own governments. Their importance lies in the bar against contravening laws and the remedy under Article 32. The framers did not confer them in absolute terms, which emphasises they are liable to alteration for the common good. (para 1354)
Held: Even in the United Kingdom individual liberty in property is no longer sacrosanct. In a country with abject poverty and concentrated wealth, advance towards social and economic justice is retarded if the old concept of individual liberty is to dog our footsteps. A law implementing Article 39(b) and (c) is in conformity with the Preamble. (para 1355)
Held: Infringement of Articles 14, 19 and 31 in a genuine implementation of the Directive Principles is a necessary and secondary consequence. Concentration of resources is an evil in the eyes of the Constitution. Any right to the extent it fosters this evil may be abridged or taken away. (para 1356)
Held: The Preamble does not mention the right to property. The framers provided for amendment of this Constitution, so even the Preamble is amendable. Berubari and Bobbili show that the Preamble cannot increase or decrease the power in clear enacting words. Sprague says Article V is clear and calls for no resort to rules of construction. This applies with greater force to Article 368. (para 1357)
Held: In Victoria v. Commonwealth, the Judges divided on implied limits, but it concerned legislative power and construction of the Constitution including its Preamble. The amending power is superior and cannot be bound by any provision of the Constitution itself. The Initiative and Referendum case turned on an express exception, the Lieutenant-Governor, and not on implied limits. Liyanage involved an ordinary Act, not an amendment. Ranasinghe's remark was obiter, and entrenched means not repealable except under stringent conditions, as Wade and Jennings say. Taylor and Mangal Singh were matters of pure construction. (para 1358)
Held: In America, implied limits were rejected in Sprague and the National Prohibition cases. Dodd, Cooley and Burdick say so. (para 1359)
Held: The essential features argument is a variation of the spirit of the Constitution argument rejected in Kameshwar Singh (1952). There Dr. Ambedkar's argument, for some Zamindars, that a prohibition on acquisition without compensation could be implied from the spirit of the Constitution was rejected by Patanjali Sastri, C.J. as contrary to canons of construction. There is no distinction between that argument and this one. (para 1360)
Held: A legislature can amend its own statute in any way by addition, alteration or repeal. It is unreasonable to refuse this latitude to a body specifically granted unqualified power to amend the Constitution. Essential and unessential parts make no difference to the amending power. A Constitution is not repealed as a whole because of its nature as an organic, permanent and sovereign instrument, not because of the nature of the amending power. (para 1361)
Held: The essential-features argument divides the Constitution into essential and non-essential parts. Who decides, and by what standard? In one sense every provision is essential. If a new provision is regarded as more essential than the one repealed, there is no yardstick. The core test is unworkable: an amendment would be challenged only when a law under it affects someone, perhaps years later. The Court would have to decide the core with reference to the original Constitution, ignoring all amendments and arrangements made on their basis. If the core argument were upheld, several previous amendments would fall and prospective overruling would be common. (para 1362)
Held: The argument invites the Court to assess the merits of provisions and determine an irreducible minimum, which is the American substantive due process doctrine rejected in Gopalan. The limits would vary with individual Judges. The Court would determine the spirit of the Constitution, a course deprecated in Gopalan. (para 1363)
Held: Judges determine reasonableness of restrictions and limits of delegated legislation because the Constitution supplies guides. It supplies no guides to its own amendment, which is a matter of policy. (para 1364)
Held: The core and essential features argument leads to endless litigation, a Pandora's box. (para 1365)
Held: If an amendment can be struck down for damaging an essential feature, the same power would operate on the Constitution as it stands. Preventive detention (detention without trial to prevent a future act) in Article 22, the freedoms in Article 19, and State monopolies could be struck down. Every original restriction would come under the pruning knife of the courts. (para 1366)
Held: Accepting the doctrine would amount to adding a proviso below Article 368 barring any amendment damaging the core of the essential features as may be determined by the Courts. This is impermissible. (para 1367)
Held: Bryce, Randall, Cooley and Quick and Garran show that, even in federal Constitutions, essential features such as federal ties, the Senate, the executive and the judiciary can be amended. Section 128 of the Australian Constitution can be used even to change the amending power itself. (para 1368)
Held: There can be no implied limits on the power to amend fundamental rights. All the Amendments in question are valid. The Court cannot question their policy or wisdom. (para 1369)
Held: The 25th Amendment replaced compensation with amount, which may be given in cash or in the manner specified. The objection is that the legislature may fix an arbitrary amount. Even compensation is an amount. The possibility of abuse is not a ground to deny a power (Bank of Toronto v. Lambe). Whether a particular law fixes an illusory amount depends on the law when made, tested on the basis of clause (2). The amendment does not preclude a fair amount. (para 1370)
Held: Clause (2B) is a restatement of the law, in line with Sitabati Debi, that Article 19(1)(f) and Article 31(2) are mutually exclusive. (para 1371)
Noted: The only substantial objection is to Article 31C. (paras 1372-1373)
Held: Article 31C has two parts: a law of a particular description is not void for affecting rights under Articles 14, 19 and 31, and a declaration bars a particular objection. What it saves is a law made by a competent legislature involving the right to property. Articles 37, 38 and 39(b) and (c) are explained. Granville Austin says the framers made it the responsibility of future governments to find a middle way between individual liberty and public good. (paras 1374-1375)
Held: The Constitution looks on concentration of wealth as a social evil. Laws to reduce unequal freedoms will impair rights under Articles 14, 19 and 31 to some extent. This would be justified even on Mr. Palkhivala's core theory, since he admits abridgement in similar cases. The first part of Article 31C has the effect of a proviso to Article 13(2) or to each of Articles 14, 19 and 31. If a law does not genuinely purport to give effect to the Directive Principles, it is not secure against challenge. (para 1375)
Noted: The real difficulty is the second part. The petitioner says a declaration is conclusive and lets legislatures amend the Constitution by a simple device, in a way other than that prescribed in Article 368. The Union says Article 31C does not prevent review of whether the law has a nexus with Article 39(b) or (c). The sole purpose of the declaration is to remove political questions, citing Beauharnais v. Illinois. (paras 1376-1377)
Held: The approach of the Union is correct. (para 1378)
Held: Articles 38 and 39 are the State's goals. Laws giving effect to Article 39(b) or (c) are secure against challenge under Articles 14, 19 and 31, else not. The court decides objectively whether the law reasonably answers the description, which differs from whether it actually achieves the aim. Only the latter is excluded from review. Prohibition laws show a law may fail yet be genuine. Identification of the type of legislation looks at pith and substance. Evaluation of merits and efficacy is a matter of legislative policy that courts cannot undertake. The declaration does no more than the courts themselves do and is by abundant caution. (paras 1379-1380)
Held: No other ground is precluded from review. The court can examine the true nature and character of the legislation. If the object is a pretence and the real object is discrimination, Article 31C is not attracted. Charles Russell v. The Queen and Attorney-General v. Queen Insurance Co. are cited. (para 1381)
Held: On this view of Article 31C it cannot be said the amendment is invalid. The 25th Amendment is valid. (paras 1382-1383)
Held: The 29th Amendment placed the Kerala Acts in the Ninth Schedule. The argument that Article 31B protects only agrarian reform laws was rejected earlier (Jeejeebhoy). It does not challenge the Amendment's validity. The Amendment is not different from similar ones upheld. It is valid. (para 1384)
Held: His conclusions: the power and procedure were in the unamended Article 368, an amendment is not law under Article 13, an amendment abridging fundamental rights is not void under Article 13(2), and Golak Nath's majority is, with respect, not correct. There were no implied or inherent limits on the amending power over fundamental rights, before or after the amendment. The 24th, 25th and 29th Amendments are valid. (para 1385)
Held: The case will be posted before the regular bench. (para 1386)

H.R. Khanna, J. (paras 1387-1600)

Noted: The petition under Article 32 raises the validity of the 24th, 25th and 29th Amendments and whether Parliament under Article 368 can amend Part III to take away or abridge fundamental rights. Counsel in similar petitions were allowed to intervene. (para 1387)
Noted: The facts: the Kerala Land Reforms Act, 1963 (Act 1 of 1964) was item 39 in the Ninth Schedule and was amended by Act 35 of 1969. The petition was filed on 21 March 1970. A Full Bench of the Kerala High Court upheld the Act except certain provisions in V.N. Narayanan Nair. The State's appeals to this Court were dismissed. Appeals by private parties and some writ petitions here were disposed of accordingly. (para 1388)
Noted: The High Court's judgment of 21 October 1970 declared some other provisions invalid. Ordinance 4 of 1971 was promulgated on 30 January 1971. The Bill passed on 26 April 1971, got assent on 7 August 1971 and was published on 11 August 1971 as Act 25 of 1971. The 29th Amendment, assented to on 9 June 1972, included both Acts in the Ninth Schedule. (para 1389)
Noted: The writ petition was amended twice, first to challenge Act 25 of 1971 and then to challenge the 24th, 25th and 29th Amendments. (para 1390)
Noted: The 24th Amendment's provisions, the before-and-after text of Articles 13 and 368, the 25th Amendment's Article 31(2), Article 31C and the 29th Amendment's entries 65 and 66 are set out. (paras 1391-1395)
Noted: Sankari Prasad upheld the First Amendment, which amended Articles 15 and 19 and inserted Articles 31A, 31B and the Ninth Schedule with 13 Acts. All three grounds of attack were rejected. Law in Article 13 means rules made under ordinary legislative power, not amendments in exercise of constituent power. (paras 1396-1397)
Noted: Sajjan Singh upheld the 17th Amendment, by 3 to 2 on the power to take away fundamental rights, with the minority doubting Sankari Prasad on the meaning of law. The Court unanimously held the 17th Amendment did not need ratification. (para 1398)
Noted: Golak Nath, heard by 11 Judges, was concerned with the Punjab and Mysore Acts included by the 17th Amendment. Subba Rao, C.J. with four Judges held fundamental rights cannot be abridged by amendment, and Hidayatullah, J. concurred. Their conclusions are set out. Wanchoo, Bachawat, Ramaswami, Bhargava and Mitter, JJ. dissented. Their conclusions, including on stare decisis, prospective overruling and the impossibility of amending Article 31 except by revolution if rights were unamendable, are summarised. (para 1399)
Noted: There are two types of Constitutions, rigid and flexible. This is not the same as documentary and non-documentary. A flexible Constitution is altered without special machinery. Strong and Lord Birkenhead in McCawley are cited. (para 1400)
Noted: Articles 4, 169 and the Schedule paragraphs permit laws amending provisions and say they are not amendments for Article 368. Other articles continue until Parliament provides otherwise by law. Other provisions can be amended only by Article 368. (paras 1401-1402)
Held: Article 368 is the only article in Part XX headed Amendment of the Constitution. All five dissenting Judges in Golak Nath held it contains the power. Hidayatullah, J. said the power was sui generis. The leading majority located it in Articles 245, 246 and 248 with Entry 97. The steps in Article 368 are set out. (paras 1403-1404)
Held: The words the Constitution shall stand amended show that Article 368 contains the power as well as the procedure. A separate Part shows this. The width of Entry 97 cannot include the power to amend, because legislative power is subject to the Constitution and most amendments would be inconsistent with the article amended. Article 368 would become a dead letter. (para 1405)
Held: Ratification by State Legislatures by resolution is not a legislative process, according to Orfield. Under Entry 97, ratification would be meaningless. (para 1406)
Held: The marginal note cannot control the scope of the article. (para 1407)
Noted: The Constitution did not write on a tabula rasa. The lists follow the Government of India Act, 1935. Gwyer, C.J. said the Indian Act is unique in the detail of its Legislative Lists. (para 1408)
Held: The framers must have made a legislative entry for amendment if they wanted it dealt with as ordinary legislation. Entry 97 deals only with any other matter not enumerated. The power to amend cannot be in the residuary entry of a federal Constitution, because it would include the power to alter the distribution of subjects. Such a power cannot be legislative. (paras 1408-1409)
Held: Residuary power was originally to vest in the States under the Objectives Resolution. If it had stayed there, no one could say the power to amend lay with the States. Later vesting residuary power in the Union does not show it includes the amending power. (para 1410)
Held: Article 368 prescribes the procedure and confers the power of amendment. Irrespective of source, the Constitution shall stand amended shows the process is self-executing. (paras 1411-1412)
Held: No words in Article 368 limit the power to amend Part III. The words shall stand amended cover all articles. Every word in a Constitution is expounded in its plain sense, as Story says. If the framers meant to exclude Part III, it is inconceivable they would not say so. (para 1413)
Held: Lord Selborne's words in Burah apply with equal or greater relevance to the power of amendment. (para 1414)
Held: The framers did not inadvertently omit an express provision. Dr. P.S. Deshmukh's amendment for Article 304A, barring any amendment infringing individual rights, was withdrawn. It would have been included if the framers intended that. (para 1415)
Held: Mr. B.N. Rau's questionnaire of 17 March 1947 drew attention to Constitutions with express limits, such as Article V of the United States. It is inconceivable the framers would omit an express provision if they wanted a limit. Draft Article 305, later dropped, shows the Drafting Committee knew how to make an express limit. The final absence shows none was intended. (para 1416)
Held: Dr. Ambedkar's speech of 17 September 1949 divided articles into three categories. Nothing in it suggests a fourth category in Part III that was not amendable. (para 1417)
Held: The sentence not mentioned in Part III or Article 304 refers to the third category in the proviso, not Part III of the Constitution. Otherwise it would be incongruous. The tenor of his speeches was that all articles were subject to amendment. (para 1418)
Held: The First Amendment was passed by the Provisional Parliament, which had also acted as the Constituent Assembly. Nehru and Ambedkar supported it, and Dr. Shyama Prasad Mukherjee conceded the power. Nehru said a Constitution that is responsive to the people's will is respected, and an unchangeable one tempts people to break it. (para 1419)
Held: The First Amendment is contemporaneous practical exposition of Article 368. If doubt existed, it carries great weight. McPherson v. Blacker and Lithographic Co. v. Sarony are cited. (para 1420)
Held: This Court has taken the view since Golak Nath, in the Privy Purse case and in Dhillon, that Constituent Assembly speeches can be referred to. (para 1421)
Held: The speeches can be referred to for history, background, mischief and object. They cannot be the basis for construing the provisions. Interpretation must be done independently and the words are the final repositories of the intention. (para 1422)
Noted: The petitioners say an amendment is law for Article 13(2), law in Article 13(1) includes constitutional law, and Article 372(1) is relevant. State is defined in Article 12. (para 1423)
Held: An amendment made under Article 368 is not law for Article 13(2). The word law is in many articles but not in Article 368. In a generic sense law includes constitutional law, but that is not its sense in Article 13(2). There is a clear distinction between statutory law made under legislative power and constitutional law made under constituent power. Weaver is cited. Article 13(2) refers to ordinary legislation and, by Article 13(3)(a), ordinances, orders, bye-laws and the like. If the framers meant to include amendments, they would have said so. Article 60's oath the Constitution and the law shows they are not the same. (para 1424)
Held: Articles 56, 61 and 69 distinguish the Constitution from law. As by law established indicates the Constitution's legal origin. Article 143's question of law is a well-known phrase and does not show otherwise. (para 1425)
Held: The words shall not make any law in Article 13(2) echo Articles 245, 246 and 248 and carry the same meaning, law made in exercise of legislative power. (para 1426)
Held: Ratification by State Legislatures is not available for ordinary laws. The need for ratification of some amendments shows an amendment is not law under Article 13(2) or Articles 245 to 248. (para 1427)
Held: Article 395 repealed the Independence Act and the 1935 Act. The law in force in Article 372(1) is not law relating to the Constitution of a territory. Hardly any law containing the Constitutions of the Indian States remained in force. The only Constitution in force was the Constitution of India. (para 1428)
Held: Law in force in Article 372(1) includes laws on subjects dealt with by earlier Constitutions, which are inferior to a Constitution. Law in Article 372 refers to law made under a Constitution and not to the provisions of a Constitution itself. (para 1429)
Held: Article 372(1) is like Section 292 of the 1935 Act and negatives the possibility of existing law being no longer in force. The Constitution of India was not a law in force when it came into force. An amendment can be made only after commencement, so it cannot be law in force for Article 13(1) or 372(1). (para 1430)
Held: Article 13(2) was not intended to cover amendments under Article 368. The two Articles must be read together as parts of a single instrument (James v. Commonwealth). Extinguishing or abridging fundamental rights is not beyond Article 368. The conflict is apparent and not real because the two provisions operate in different fields. (para 1431)
Held: The Constitution treats ordinary legislation and amendment as distinct. Article 368 lacks the words subject to the provisions of this Constitution which begin Article 245. It has a status higher than legislative law. A limit on the power must be found in Article 368 itself. Orfield says limits should be written in the amending clause. A separate Part and a different procedure show different powers. That both Houses pass both kinds of law does not obliterate the difference. (para 1432)
Noted: The petitioners rely on the proceedings of 29 April 1947, when Mr. Santhanam's amendment was accepted, and on the Drafting Committee's revision of Clause 9 in October 1947. The petitioners say the Drafting Committee deliberately undid the amendment because they wanted fundamental rights unamendable. (paras 1433-1434)
Held: This argument cannot be accepted. It is inconceivable that the Drafting Committee would reverse the Assembly's decision. Mr. Santhanam moved his amendment to remove doubt. The Committee seems to have thought it unnecessary. Dr. Ambedkar's letter of 21 February 1948 says changes were indicated and explained in footnotes. (para 1435)
Held: A material change by the Drafting Committee would have been underlined or footnoted, so none was intended. The Constitutional Adviser's October 1948 note says law in clause (2) of draft Article 8 means ordinary legislation and proposed a clarification. The Drafting Committee did not deviate from the Constituent Assembly's decision. (para 1435)
Held: If fundamental rights were meant to be unamendable, a proviso in Article 368 would have guaranteed them. None was added. (para 1436)
Held: A Constitution is often a compromise. Framers know one generation cannot provide a permanent solution. Without amendment the people must use extra-constitutional methods, which take a heavy toll. Burke, Dicey on the French Constitutions, Finer and Burgess are cited. Dicey says rigidity tends to provoke revolution. (para 1437)
Held: John Stuart Mill, Willis, Laski and Jennings are cited on the need for amendment, change and growth. The framers could not foresee future conditions. (paras 1438-1442)
Held: The machinery of amendment should be like a safety valve, neither too easy nor too hard. (para 1443)
Held: The framers reconciled change with continuity. Some amendments need only a simple majority, but others need a majority of the total membership and two-thirds of those present, and in some cases ratification by half the States. The ease of passing amendments in the first two decades was an accident of history because one party had absolute majorities. (para 1444)
Held: No generation has a monopoly of wisdom or a right to fetter future generations. Norms should not be so inflexible that future generations cannot change them. An unamendable Constitution is the worst tyranny of time, according to Mulford. Santayana is cited. (para 1445)
Held: Wilson, Burke, Jefferson, Paine and Pandit Nehru's speech of 11 November 1948 are cited. Liberty fixed in unalterable law would be no liberty at all. There is no permanence in Constitutions. (paras 1446-1448)
Held: If fundamental rights could not be amended under Article 368, the only way, even if 90 per cent of people wanted it, would be revolution. Even if two interpretations were possible, the Court should prefer peaceful amendment through the Constitution over revolution. (para 1449)
Held: The consequences of the petitioners' view would be chaotic because of extra-constitutional methods. (para 1450)
Held: Where words are precise and unambiguous, they are given their natural meaning. Where alternative constructions are equally open, the one consistent with smooth working is chosen (Digvijaysinhji). These principles apply with greater force to a Constitution. (para 1451)
Held: Article 368 is plain and cannot be read to limit the amendment of Part III. If two constructions were possible, the accepted one avoids chaos. It is not permissible to speculate on the supposed intention of the Constitution makers against plain words. (paras 1452-1453)
Held: It is inconceivable that the framers, aware of the earlier French Constitutions perished by violence, put in Part III rights that could not be changed even by the unanimous vote of the people. The mechanics of amendment, including of fundamental rights, are in the Constitution. (para 1454)
Held: The argument that rights can be amended through a Constituent Assembly or referendum created by law is untenable. If Parliament cannot amend Part III by a two-thirds majority, it cannot do so through a body created by a simple majority law under Entry 97. A body created by Parliament cannot have greater powers. What is impermissible in one step is impermissible in two. It would be anomalous, would defeat State ratification and would let Parliament exclude States' voice. (para 1455)
Held: The Constitution-makers rejected the referendum. In a country with religious and linguistic minorities, minority opinion would be submerged. (para 1456)
Held: A referendum is not a more difficult method. Australia adopted only four of over 30 proposals, Switzerland 49 of 64, and the United States 19 ratified of 3,113 proposals in 140 years. A referendum does not give a more effective check. (para 1457)
Held: A referendum cannot be used unless the amending provision provides it. Hawke v. Smith and the National Prohibition cases hold State referendum provisions cannot apply to ratification under Article V. (para 1458)
Held: Modern methods of amendment are by the ordinary legislature with restrictions, by referendum, by a majority of units of a federal state, by special convention, or a combination. Restrictions on legislatures include quorum and special majority, dissolution and election, and joint session. The referendum method is found in Switzerland, Australia, Eire, France and Denmark. Federal methods and ad hoc bodies are described. (paras 1459-1463)
Held: The method of amendment is decided by the Constituent Assembly. Once chosen it must be followed, and it is not for the court to prefer another. Amendment by one prescribed method is as effective as by another unless the Constitution restricts the power. The Italian Article 138 and French Article 89 make a two-thirds vote as effective as a referendum. (para 1464)
Noted: Article V of the United States Constitution and its methods A, B, X and Y are set out. Except for the 21st Amendment, method A and X have always been used. The proviso protects equal suffrage in the Senate. (paras 1465-1468)
Held: In Sprague, the Supreme Court held that the choice of mode of ratification lies with Congress. The argument from the Tenth Amendment that the people reserved powers was a complete non sequitur. Article V is a grant of authority by the people to Congress. (para 1469)
Held: There is no warrant for the proposition that the amending power under Article 368 is limited because it is not exercised through a referendum or convention. (para 1470)
Held: The argument that India could become a police state is one of fear and distrust of representatives. The possibility of abuse is no ground to deny the power. Marshall, C.J. in Providence Bank, Ex parte Rapier and Bank of Toronto v. Lambe are cited. (paras 1471-1472)
Held: The power is vested in the majority of representatives, not one individual. The requirement of a majority of the total membership and two-thirds present makes a snap vote impossible. The Rajya Sabha cannot be outvoted in a joint sitting. State ratification applies where the States' rights are touched. The best safeguard against abuse is public opinion. Holmes, J. said legislatures are ultimate guardians of the liberties of the people as much as courts. (para 1473)
Held: Abuse of the amending power is an anomalous term, according to Orfield. If abuse occurs, it occurs at the hands of the highest agent of the people. If the people choose to abolish fundamental rights, a restricted interpretation would not help, and fundamental rights would not save them from political enslavement. Learned Hand's address on the Spirit of Liberty is cited. (para 1474)
Held: Learned Hand's passages show liberty lies in the hearts of men and women and no Constitution or court can save it when it dies there. (para 1474)
Held: Government and Parliament are trusted with the power to declare war. It would be anomalous to distrust them with the power to amend fundamental rights. (para 1475)
Held: Suppose only the right to property blocks an ameliorative measure. The petitioners' position is that Article 368 cannot abridge it, though the protection sought is really for property. It is wrong to assume that a power to amend Part III means all fundamental rights would be abrogated. From 1950 to 1967 Parliament had that power and did not touch liberty or expression. There is a vital distinction between the vesting of power and its exercise. Parliament has the power to amend Part III as long as the basic structure is retained. (para 1476)
Held: The Weimar argument is misconceived. Hitler rose through Article 48 on emergency powers and the Enabling Act of 1933, not through amending the Constitution. (para 1476 as printed a second time)
Held: Even with Part III intact, a mockery of the system could be made by amending Articles 85 and 172 to extend the life of legislatures to fifty years. The Court refuses to believe public opinion would sink so low. Such an amendment would be a precursor of revolution. The Court need not say whether it would quash it. (para 1477)
Held: Articles 352, 358, 359 and 83(2) could theoretically be used to prolong the rule of a party that has lost public support. The check is political responsibility, public opinion and fear of popular uprising. It is inconceivable that a party would dare. (para 1478)
Held: It is difficult to think a future Parliament would abolish the power of amendment, knowing the fate of unamendable Constitutions. If done, it would lay the seeds of revolution. The validity of such an amendment need not be decided. (para 1479)
Held: The power to amend does not include power to completely abrogate the Constitution and replace it by an entirely new one. Amendment postulates the old Constitution survives without loss of identity. Retention means retention of the basic structure or framework. Retaining some provisions after destroying the basic structure is not retention. It is not permissible to touch the foundation or alter the basic institutional pattern. It would not be competent to change democratic government into dictatorship or hereditary monarchy, abolish the Lok Sabha and Rajya Sabha, or do away with the secular character. Article 368 cannot embody the death wish of the Constitution or sanction its lawful harakiri. (para 1480)
Held: The words amendment of this Constitution and shall stand amended show that what emerges is the existing Constitution in an amended form and not a new one. (para 1481)
Held: Nehru contemplated varying the Constitution here and there, not eliminating its basic structure. (para 1482)
Held: American authorities are not helpful on altering the basic structure because there has been no such amendment. Dicey is cited. (para 1483)
Held: It is not disputed that Article 368 does not allow repeal of the entire Constitution. The minimum to be retained is the basic structure or framework. If the basic structure changes, retaining some articles does not mean the Constitution survives. (para 1484)
Held: Conrad and Friedrich are cited. An amending body cannot by its structure change the fundamental pillars supporting its constitutional authority. A constitutional system perishes when one of its essential component parts is destroyed. (para 1485)
Held: Crawford and Sutherland say amendment is not repeal although it may operate as one to a degree. (para 1486)
Held: This conclusion means no provision authorises a radically new Constitution, but this is not a lacuna. The people, as ultimate sovereign, do not need the existing Constitution's authority if they decide to have a new one. (para 1487)
Held: Subject to retention of the basic structure or framework, the power of amendment is plenary and includes adding, altering or repealing articles, including those on fundamental rights. Denying such a power would introduce a rigidity that might break the Constitution. (para 1488)
Held: The word amendment has the same meaning whether it relates to Part III or other provisions. It is impermissible to differentiate. (para 1489)
Held: The dictionary meaning of improvement does not justify a restricted construction. Every sponsor treats an amendment as an improvement, which involves euphemism. In legal parlance amendment of a Constitution means change or alteration. Whether an amendment is an improvement is not justiciable. Courts are only concerned with legality and compliance with Article 368. (para 1490)
Held: A Constitution is not like pleadings or a will. It is the vehicle of the life of a nation, not a gate but a road. Holmes, Marshall and Frankfurter are cited. Kania, C.J. in Gopalan, Lord Wright, Higgins, J. and Gwyer, C.J. on construing a Constitution broadly are quoted. Courts cannot declare an Act void because it is opposed to a spirit supposed to pervade the Constitution but not expressed in words. (para 1491)
Held: The contrast with paragraphs 7 and 21 of the Fifth and Sixth Schedules does not enlarge the amending power. The words by way of addition, variation or repeal amplify and clarify what is implicit. Sub-paragraph (2) shows amendment of the Constitution for Article 368 is co-extensive with amendment by addition, variation or repeal. The amended Section 291 of the 1935 Act is similar. (para 1492)
Held: British Coal Corporation requires the widest amplitude for organic statutes. Orfield says amendments to Constitutions are construed more liberally than amendments of pleadings. (para 1493)
Held: Article V uses amendment alone, and the 21st Amendment repealed the 18th. No one questioned that the power includes repeal. (para 1494)
Held: An amendment need not keep alive the provision amended or be consistent with it. Amendment in Article 368 denotes change, as the proviso shows. Change can be for the better or worse. A court cannot strike down an amendment that complies with Article 368 as a change for the worse. That would put the court in appeal over the wisdom of Parliament. Holmes, J. in Lochner and Ferguson v. Skrupa are cited. (para 1495)
Held: The argument that amendment of fundamental rights should need State ratification is untenable. The proviso requires ratification for amendments affecting the rights of States, not for important amendments. The framers attached greater importance to the federal structure. Wheare and Dr. Ambedkar's speech on the third category are cited. (para 1496)
Noted: Implied limitations have two facets: those flowing by necessary implication from express provisions, and those based on higher values and the spirit of the Constitution, linked with natural rights. (para 1496)
Held: Certain limits inhere in the word amendment itself, as already explained. (para 1498)
Held: On the first facet, applying the principle to Article 368, no implied limit is discernible. (para 1499)
Held: The second facet is not conceivable in one of the lengthiest Constitutions in the world. If limits were intended, the framers would have written them. The theory is doctrinaire and has not been accepted by the highest court in any country. (para 1500)
Held: The second facet is nebulous, with no definite contours. It would introduce vagueness in a matter of vital importance. Story says Constitutions are not designed for metaphysical subtleties. (para 1500)
Held: The National Prohibition Cases tacitly rejected the implied limits argument. Rottschaefer and Willis say the theory was rejected. (paras 1502-1503)
Noted: In Ryan, Article 50 of the Irish Constitution and the amendments of 1928, 1929 and 1931 are set out. The majority (FitzGibbon and Murnaghan, JJ.) held the amendments valid and rejected the implied limits on matters such as liberty, judicial power and jury trial. Kennedy, C.J. dissented because Article 50 did not provide for amending the power of amendment. (paras 1504-1505)
Held: The implied limits theory was rejected by the majority of Irish Judges. The crucial question there was whether the amending article could itself be amended. Here clause (e) of the proviso expressly permits it. In Moore, counsel conceded the 1929 Amendment was regular, and the Judicial Committee said rightly. Keith says the Chief Justice was wrong. (paras 1506-1507)
Held: Orfield says it is not to be assumed that fundamental purposes shackle the amending power. It would be perilous for the judiciary to intervene when three-fourths of the States have expressed their will. Willis says the Supreme Court brushed away the implied limit arguments. (para 1508)
Held: Natural rights embody cherished values but are not absolute and are subject to obligations to society. Later writers hold they have no place outside the Constitution and laws of the State. Independently of them, natural rights have no legal sanction. Once incorporated, they can be abridged or taken away by amendment. They are not supreme or beyond the amendatory process. (para 1509)
Held: Those who do not accept natural rights do not deny essential values. They maintain that rights, to be justiciable, must be part of the law or Constitution. (para 1510)
Held: Willoughby says natural rights have no force to restrict or extend the Constitution. At most, where language is doubtful, authority is presumed not to be given for violating acknowledged principles of justice and liberty. (para 1511)
Held: Salmond distinguishes moral and legal rights. Bentham denied natural rights. The lack of codification does not mean moral rights do not exist. (para 1512)
Held: Peterson shows Locke's theory has ceased to receive general acceptance. (para 1513)
Held: Roscoe Pound says treating courts as guardians of natural rights fostered hostility and set up a super-Constitution beyond reach. Merriam and Burgess say there is no liberty outside state organisation. Willoughby says natural rights have no political force unless recognised by the state. (paras 1514-1515)
Held: Where essential features means the basic structure or framework, the matter is already dealt with. Apart from that, all provisions are subject to the amendatory process and cannot claim exemption by being called essential features. (para 1516)
Held: The distinction between a fundamental right and its essence or core is an over-refinement and cannot stand judicial scrutiny. The core is an integral part and has no higher protection. There is no objective standard to separate core from periphery, which would introduce uncertainty. (para 1517)
Held: The analogy with the due process clause of the Fourteenth Amendment is far fetched. The two provisions operate in different areas and deal with different subjects. (para 1518)
Noted: The draft report of the Sub-Committee on Fundamental Rights contained a due process clause. A vast case law had gathered around it. It was feared it would hamper social legislation. Property was omitted, and the Drafting Committee substituted except according to procedure established by law, borrowed from Article 31 of the Japanese Constitution. Justice Frankfurter told Mr. Rau due process review was undemocratic. A major factor was that it had no definite contours. (para 1519)
Held: Implied limits would introduce vagueness which the Constitution-makers were keen to avoid. (para 1519)
Held: The UN Charter, Articles 55 and 56, do not limit the amending power. If provisions are clear, the court will not graft limits because of apprehension about international human rights. Maxwell says a clear statute is followed despite conflict with international law. (para 1520)
Noted: A State can incorporate treaties into its laws, as India did with the Geneva Conventions Act, 1960. Members of the European Economic Communities accepted the primacy of Community law. Ireland amended its Constitution by a Third Amendment. Britain did so by the European Communities Act, 1972. (para 1521)
Held: The power to amend fundamental rights cannot be denied by describing them as natural or human rights. Basic dignity does not depend on codification. Before 26 January 1950 there was no provision on fundamental rights, yet Indians lived with dignity. Article 19 does not apply to non-citizens, who can lead dignified lives. (para 1522)
Held: Article 19's reasonable restrictions show fundamental rights were never absolute. There is no absolute standard of what is fundamental. The framers had difficulty selecting them. (para 1523)
Held: The Preamble is part of the Constitution. The Constituent Assembly adopted the motion the Preamble stands part of the Constitution after debate and rejected amendments. Craies shows the earlier view that a statute's preamble is not part of it has been discarded. (para 1524)
Held: Under Article 394, only sixteen articles came into force on 26 November 1949. The remaining provisions, including the Preamble and Parts III and IV, came into force on 26 January 1950. Mr. Santhanam's proposal that the Preamble come into force earlier was rejected. (para 1525)
Held: As the Preamble is part of the Constitution, its provisions other than those relating to the basic structure are as much subject to Article 368 as other parts. If the Preamble is amendable, it cannot impose implied limits unless Parliament is debarred from amending it. The Preamble can be referred to when words are ambiguous, but not when the language is plain. Story and Lord Normand in Prince Ernest Augustus of Hanover are cited. (para 1526)
Held: Berubari held the Preamble is not the source of powers, and what is true of powers is true of prohibitions and limitations. (para 1527)
Noted: The Preamble lists justice, liberty, equality and fraternity, and Article 38 echoes the primacy of justice. (para 1528)
Held: Disparities in wealth give rise to mass discontent and violent upheaval. The modern State pursues a welfare state and the rights of individuals are conditioned by social responsibility. Laski's passages are cited. (para 1529)
Held: A State that seeks to survive must continually transform itself. The privileges of some must give way before the rights of all. (para 1530)
Held: The modern State undertakes social engineering and may subordinate individual rights to larger interests as a step towards social justice. Pound and Friedmann are cited. (para 1531)
Held: Courts may be sceptical about the wisdom of socio-economic measures, but that is extraneous to validity. Nothing in the Preamble gives primacy to the right to property over social, economic and political justice. The dignity of the individual can only be assured by securing justice. (para 1532)
Held: The Nehru Report is of little material bearing. Part IV imposes a commitment to bring economic and social regeneration. No occasion has arisen for amending Part IV, but attempts were made to amend Part III. The question depends on the language of Article 368. Maxwell says historical material cannot be used to read in a limit not inferable from the words. (para 1533)
Held: Congress Resolutions of 1929 and 1931, the Objectives Resolution and Nehru's, Santhanam's and Radhakrishnan's words show economic regeneration was an objective since before independence. Granville Austin is quoted. (para 1534)
Held: Directive Principles are a clear statement of the social revolution and a declaration of economic independence. Austin says the Assembly made it the responsibility of future governments to find a middle way. (para 1535)
Held: Nehru, supporting the First Amendment Bill, spoke of the conflict between dynamic Directive Principles and static fundamental rights. A static Constitution has passed its use. (para 1536)
Held: In the Fourth Amendment Bill Nehru said Parliament should remove the contradiction and make fundamental rights subserve the Directive Principles. (para 1537)
Held: The impugned amendments' aim of changing the economic structure was an objective of national leaders from before independence and was behind the First and Fourth Amendments. The material shows there should be no reluctance to abridge the right to property for the Directive Principles. (para 1538)
Held: The right to property does not pertain to the basic structure or framework. The basic structure indicates broad outlines, while property is a matter of detail. The framers subordinated property to the social good. Property rights have changed over time. Laski and John Stuart Mill are quoted. (para 1539)
Held: The argument that Parliament cannot by amendment enlarge its own powers is untenable. Amendment can enlarge or reduce the powers of organs of the State. Ryan is a precedent, since Kennedy, C.J. did not question the enlargement but only the power to amend the amending clause. The 24th Amendment's obligation on the President to assent is valid. Article V does not require the President's assent. The President is a constitutional head. (para 1540)
Held: Section 6 of the Indian Independence Act gives no help. The Constituent Assembly framed the Constitution as representatives of the people, as the Preamble shows, and not under that Act. (para 1541)
Held: Section 6(6) only allowed laws limiting future legislative power. The Constituent Assembly placed limits on ordinary legislation and also inserted Article 368. Nothing in Section 6 restricts Article 368. (para 1542)
Held: The argument that the Constitution represents a compact on which people joined the Union is misconceived. India was one territory on 15 August 1947, and the Indian States acceded before the Constitution came into force. Assurances to minorities are protected in Articles 25 to 30. If the people through representatives decide to abridge a right like property, no breach of compact arises. (para 1543)
Held: Compact has no relevance to the Indian Constitution, unlike the American context. India was one country before the Constitution was adopted. There was no ratification by each State. (para 1544)
Held: Mangal Singh dealt with the words supplemental, incidental and consequential provisions in Article 4. Constitutional scheme refers to Part VI provisions on a State. It does not warrant an implied limit on the amendment power. (paras 1545-1546)
Noted: In Canada, the Preamble to the British North America Act speaks of a Constitution similar in principle to that of the United Kingdom. Sections 91 and 92 include amendment as a subject of legislation. At least six views on basic liberties have been propounded and the Supreme Court has not approved any. The Alberta Press case and Switzman v. Elbling are described. (paras 1547-1549)
Held: Duff, C.J.'s proposition has never been accepted by a majority of the Canadian Supreme Court. Laskin says that apart from Abbott, J.'s dictum, there is no high authority placing civil liberties beyond legislative reach. These Canadian views are in the context of different provisions and are a fragile basis for implied limits. (paras 1550-1551)
Held: The Canadian Bill of Rights, 1960, allows an Act to override it by express declaration. Section 2 is inconsistent with the theory of implied limits based on human rights. (para 1552)
Held: The Nova Scotia delegation case related to delegation of powers exclusively assigned under the British North America Act. No such question arises here. (para 1553)
Noted: The Ceylon cases arose under Section 29 of the Ceylon Order in Council, which gave both the power to make laws and the power to amend, with different procedures. (para 1554)
Noted: Section 29 of the Ceylon Order in Council is set out, including the proviso and conclusive certificate of the Speaker. The paragraph numbers 1555-1558 in the judgment text fall within this quotation. (paras 1555-1558)
Held: In Liyanage the Judicial Committee held that the Ceylon Parliament had full legislative power and was not limited by fundamental principles of justice. It struck down the Acts of 1962 for usurping judicial power. (para 1559)
Held: Liyanage rested on the severance of powers under the Ceylon Constitution and gives no support to implied limits on Parliament. The Judicial Committee expressly said there had been no amendment under Section 29(4). (para 1560)
Noted: In Ranasinghe, the Bribery Tribunal was appointed in breach of Section 55. The legislature has no power to ignore the conditions of law-making imposed by the instrument regulating its power. (para 1561)
Held: The controversy there differs from this one, since no law is made here in contravention of the Constitution. The passage calling Section 29(2) matters unalterable is relied on, noting the similarity between Section 29(3) and Article 13(2). (para 1562)
Held: The Judicial Committee did not hold that Sections 29(2) and (3) limited the amendment power in Section 29(4). Counsel for the respondent conceded there was no limit on amendment except the requisite majority. The passage says the limitation on lesser majorities does not limit Parliament's sovereign power. Entrenched was used in the sense that these matters could be changed only by two-thirds. Wheare supports this. Ranasinghe furnishes no help to the petitioners. (para 1563)
Held: McCawley laid down that, absent a restriction, none can be imposed on legislative power. The Queensland legislature was master of its own household. The Board rejected distinctions between fundamental or organic sections and others. The decision gives no assistance to the petitioners. (paras 1564-1565)
Held: Trethowan was based on Section 5 of the Colonial Laws Validity Act and the word passed. Nothing in the conclusion runs counter to it. (para 1566)
Held: In Victoria v. Commonwealth, three Judges found no implied limits and four did. The scope of the amending power was not considered. The case does not help. (para 1567)
Held: The majority view in Golak Nath that Parliament could not amend Part III cannot be accepted. Fundamental rights can be abridged or taken away in compliance with Article 368, as long as the basic structure remains unaffected. (para 1568)
Noted: The Statement of Objects and Reasons of the 24th Amendment Bill is set out: Golak Nath meant Parliament could not curtail rights even to give effect to the Directive Principles. (paras 1569-1570)
Held: The 24th Amendment added clause (4) to Article 13 and renumbered Article 368, with a non obstante clause to emphasise that the power is constituent, plus clause (3). It made the President's assent obligatory. It was not disputed that it was passed in accordance with Article 368. Khanna, J. finds no infirmity and upholds it. (para 1571)
Noted: The 25th Amendment makes three changes: Article 31(2), the exclusion of Article 19(1)(f), and Article 31C. The history of the compensation cases is traced: Bela Banerjee, Vajravelu Mudaliar, Shantilal Mangaldas and R.C. Cooper. (para 1572)
Held: Replacing compensation by amount is meant to avoid just equivalent or full indemnification and may allow plainly inadequate sums. Whatever the connotation of amount, it does not affect the validity of the amendment. (para 1573)
Held: No infirmity was found in the change that the law cannot be questioned because the amount is given otherwise than in cash. (para 1574)
Noted: The line of cases on whether Articles 19(1)(f) and 31(2) are exclusive is traced: Gopalan, Ram Singh, Bhanji Munji, Kochuni and Cooper. Cooper held they are not mutually exclusive. (para 1575)
Held: The 25th Amendment seeks to overcome Cooper. Clause (2B) is permissible under Article 368 and not invalid. (para 1576)
Noted: Article 31C has two parts and a proviso. (para 1577)
Noted: The first part is similar to Article 31A except in subject matter. The original Article 31A as inserted in 1951 and its Fourth Amendment version, with clauses (a) to (e), are set out. (para 1578)
Held: Article 31C is an extension of the principle accepted in Article 31A. The first clause of Article 31A and the first part of Article 31C have identical language except for subject. Article 31C is more comprehensive but acts on the mandate of Article 37. If the amendment inserting Article 31A was valid, the first part of Article 31C cannot be invalid. Sankari Prasad upheld the First Amendment in 1952. By stare decisis and the consequences of the agrarian reform laws, as Wanchoo, J. said, the decision cannot be disturbed. This is one of the fittest cases for stare decisis. Lesser v. Garnett is cited. (para 1579)
Held: The second part of Article 31C gives complete protection to a law with a declaration, however tenuous its link to Article 39(b) and (c). If 95 of 100 sections are unrelated, they get protection. State legislatures may make laws against citizens from other States, striking at the integrity and unity of the country and provoking a chain reaction. The President's assent is no effective safeguard. Holmes is cited on the Union being imperilled if courts could not declare State laws void. (para 1580)
Held: The sinister implications of the declaration were not taken into account. A legalistic judgment is a poor consolation if it affects the unity of the country. Story adopting Burke is quoted. (para 1581)
Held: Evil consequences are not determinative, so the matter is examined legally. Three types of constitutional amendment can protect legislative measures from judicial scrutiny. (para 1582)
Held: The first type inserts an existing statute into the Ninth Schedule under Article 31B. The prescribed majority can examine the statute and decide to place all or part of it. Sankari Prasad upheld this. (para 1583)
Held: The second type specifies a subject and protects laws on it. The court may still examine whether the law was made for that subject. Article 31A belongs here. Its validity was upheld in Sankari Prasad. (para 1584)
Held: The third type protects a law made for a specified object and makes the question whether the law is made for that object non-justiciable by a declaration. Article 31C, with its second part, belongs here. Such a law is not examined by two-thirds of Parliament. Judicial review of the object is prohibited, unlike under Article 31A. Even if a law is shown to be enacted for another purpose, it is protected. It can be passed by a bare majority even at a bare quorum. (para 1585)
Held: A declaration stands in the way of challenge even where a law has only a slender connection. A simple majority at the quorum could make any law immune from Articles 14, 19 and 31, reducing them to a dead letter. (para 1586)
Held: The power of amendment is of vital importance. It cannot be delegated and the amending authority cannot abdicate it to another body. Once given to State Legislatures, it would be hard to take back. Article 31C taken with the declaration has in effect delegated the amending power in important respects to State Legislatures. Article 31C departs from the scheme of Article 31A because it can be availed by laws not for specified objects. Such laws have the effect of pro tanto amendment. (para 1587)
Held: In Initiative and Referendum, a legislature cannot create and endow with its own capacity a legislative power not created by the Act. It is equally impermissible for the amending authority to vest its power in a State Legislature. The word only in Article 368 shows other methods of amendment are ruled out. (para 1588)
Held: Articles 14, 19 and 31 are those whose violation led to statutes being quashed. Legislative competence can be challenged despite Article 31C, as under Article 31A. In other respects Article 31C goes beyond Articles 31A and 31B. (para 1589)
Held: A machinery is needed to decide disputes between the Centre and States, and the courts have judicial review, which also checks conformity with Part III. Dr. Ambedkar called Article 32 the soul of the Constitution. Judicial review is an integral part of the system. The one sphere where there is no review is Article 31B with the Ninth Schedule, where the prescribed majority scrutinises an existing statute. Under Article 31C, the power to decide whether the law attains its object is vested in the legislature that passes it. The vice of Article 31C is that the declaration precludes showing the law is not for that object. Even limited review under Article 31A is done away. Our Constitution postulates the Rule of Law. Vesting power to exclude judicial review in a legislature strikes at the basic structure. The second part goes beyond what is amendment under Article 368. (para 1590)
Noted: The respondents argue that the declaration does not preclude the court from finding whether a law gives effect to Article 39(b) and (c). (para 1591)
Held: This contention is not accepted. It would carry weight only if the declaration were not there. Once a law contains the declaration, the court is precluded. It would strain the language to hold otherwise. A law with the declaration is completely protected whether or not it gives effect to the policy. (para 1592)
Held: A concession made by counsel cannot decide the validity of an impugned provision. Constitutional matters cannot be disposed of by agreement or concession, even from State counsel. A concession on law does not bind the party. (para 1593)
Held: The amending authority may exclude review of an existing statute, or of a future statute on a specified subject while leaving review of whether the statute is on that subject. Both are permissible. What is not permissible is a third type that excludes review of whether the statute is on the specified subject. (para 1594)
Held: Courts do not go into the wisdom of a legislative measure. They do not act as a super legislature, which would dilute the responsibility of elected representatives. Shri Alladi Krishnaswami Iyer's speech of 12 September 1949 is cited. (para 1595)
Held: Courts cannot be oblivious of the practical needs of government. The door must be open for trial and error. Judicial review is not for a Judicial Oligarchy. Judges must uphold the Constitution without fear or favour and without being coloured by an economic theory. The Constitution is for people of fundamentally differing views. Holmes and Patanjali Sastri, C.J. in V.G. Row are quoted. (para 1596)
Held: The second part of Article 31C is liable to be quashed on two grounds. It gives carte blanche to legislatures to make any law violative of Articles 14, 19 and 31 immune by a declaration, which in effect gives the power to amend the Constitution. And the legislature becomes the final authority on whether its law is for the specified object, excluding even limited judicial review, which strikes at the basic structure. It can be severed. The words and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy are struck down. (para 1597)
Held: No infirmity is found in the 29th Amendment. The argument that Article 31B is linked with Article 31A was rejected in Jeejeebhoy, where Subba Rao, J. said Article 31B is a constitutional device placing specified statutes beyond attack. The 29th Amendment is valid. (para 1598)
Held: His conclusions: (i) Article 368 contains power and procedure. (ii) Entry 97 does not cover amendment. (iii) law in Article 13(2) does not include amendment. (iv) no generation has a monopoly of wisdom. (v) the Constituent Assembly or referendum argument is untenable. (vi) abuse is no ground to deny power. (vii) the power does not include abrogating the Constitution or altering the basic structure, but is otherwise plenary and covers fundamental rights, with no immunity for an essence or core. (viii) the right to property is not part of the basic structure. (ix) there are no implied limits except those in the word amendment, and natural or human rights do not restrict the power. (x) the Preamble does not restrict it except for the basic structure. (xi) the 24th Amendment is valid. (xii) the amendment to Article 31 is valid. (xiii) the first part of Article 31C is valid. (xiv) the second part of Article 31C, which has the seed of national disintegration, is invalid and is severed. (xv) the 29th Amendment is valid. (para 1599)
Held: The petition will be posted before the Constitution Bench in the light of these findings. (para 1600)

K.K. Mathew, J. (paras 1601-1850)

Noted: The cases consider the most vital parts of the Constitution and may influence the destiny of the country, with an awesome responsibility. (para 1601)
Noted: In important cases a plurality of opinions is desirable for the future development of the law, even if the conclusion is the same. Lord Reid in Gallie v. Lee, Lord Hailsham in Cassell v. Broome and Frankfurter, J. in Graves v. New York are cited. (para 1602)
Noted: The arguments were addressed mainly in Writ Petition No. 135 of 1970, which challenged the 1969 and 1971 Kerala Acts as violating Articles 14, 19(1)(f), 25, 26 and 31. (para 1603)
Noted: The 24th, 25th and 29th Amendments were passed while the petition was pending. Their effects are set out: the 24th makes explicit the constituent power and that Article 13(2) is no bar; the 25th replaces compensation by amount; the 29th places the two Kerala Acts in the Ninth Schedule. (paras 1604-1606)
Noted: The validity of the 25th and 29th depends on that of the 24th, so it is decided first. (para 1607)
Noted: The cases are reviewed. Sankari Prasad upheld the First Amendment of 18 June 1951. Sajjan Singh followed it, with Hidayatullah and Mudholkar, JJ. doubting. Golak Nath held by a majority that Parliament cannot amend fundamental rights but upheld the First, Fourth and Seventeenth Amendments by prospective overruling. The reasoning of the leading majority and of Hidayatullah, J. is stated. (paras 1608-1612)
Noted: The question first is whether Article 368, before the 24th Amendment, gave power to take away or abridge Part III rights. Hidayatullah, Wanchoo, Bachawat and Ramaswami, JJ. were of the view that amendment has the widest amplitude. (paras 1613-1614)
Noted: Mr. Palkhivala says amendment means only change for improvement, consistent with the Constitution's nature, and that the basic structure and essential features cannot be changed. The word is in a low key without by way of addition, variation or repeal. (para 1615)
Held: There is no substance in this contention. The Oxford English Dictionary and Funk and Wagnalls define amendment as change. The proviso uses change. Amendment contains an element of euphemism or conceit in the proposer. McGovney is cited. (paras 1616-1618)
Held: In the National Prohibition Cases the argument that an amendment must be an improvement and cannot change the basic features was overruled. In Ryan the Irish majority held that amendment has the widest amplitude and, per Murnaghan, J., allows repeal of any number of articles though not complete abolition without substitution. (paras 1619-1620)
Held: The general rules of construction apply: Gwyer, C.J.'s broad and liberal spirit, Burah and Lord Loreburn's if the text is explicit, the text is conclusive. Everything turns on the spirit in which a judge approaches the question. Learned Hand and President Roosevelt are quoted. (paras 1621-1624)
Held: The meaning of amendment must suit an instrument meant to endure for ages. Holmes in Missouri v. Holland is cited. A well-drawn Constitution provides for its own amendment to forestall revolutionary upheavals. Friedrich, Frankfurter, Wilson, Holmes in Abrams and Jefferson are cited. Dr. Ambedkar echoed Jefferson, so he could not have conceived any limit on the amending power. If any implied limit exists, it is that the amending body must not limit the amending power of future generations. Mr. Palkhivala's argument that one generation could foreclose the future is too speculative. (paras 1625-1626)
Held: It is a Constitution being expounded. The word is not given a narrow or petty fogging meaning but its familiar legal sense (Holmes in Henry v. United States). (para 1627)
Held: The contrast with paragraphs 7 and 21 fails, because sub-paragraphs (2) show that the expression there has the same content as amendment in Article 368. The wording of Section 291 of the 1935 Act gives no inference. Draftsmen use different words for style (Maxwell). (paras 1628-1629)
Held: The power includes adding, altering, substituting and deleting any provision. A simple repeal or abrogation without substituting anything is beyond the scope, since the Constitution shall stand amended. A radical change such as a presidential system or a monarchy would not be repeal. There must exist a system by which the State is constituted. (para 1630)
Noted: The petitioner says Article 13(2) bars amendment of fundamental rights. The distinction between flexible and rigid Constitutions is needed. (para 1631)
Held: In a rigid Constitution there is a limit on the legislature by something outside itself. Written does not mean rigid. Strong says the sole criterion is whether the constituent assembly left special directions for change. Our Constitution is rigid. (para 1632)
Held: Articles 4 and 169 and the Schedule paragraphs say the amendments are not amendments for Article 368 because their procedure differs. (para 1633)
Held: Mr. Palkhivala did not contend that the power lies in Entry 97. Article 368 before the 24th Amendment contained both procedure and substantive power. The Constitution is rigid and the amending power is constituent. (para 1634)
Held: The vital distinction in a rigid Constitution lies in the criterion of validity. An ordinary law is justified by reference to the Constitution, but the Constitution's validity is inherent. Kelsen's basic norm is cited. (para 1635)
Noted: Whether Kelsen applies depends on whether the legal source of the Constitution is the Indian Independence Act or the revolutionary constituent power of the people. (para 1636)
Held: A flexible Constitution also has basic rules, such as courts enforcing Acts of Parliament (Wade). (para 1637)
Held: An amendment has the same validity as the Constitution. Whether it is made in the manner and form and within the power conferred is justiciable. An amendment of the Constitution can be ultra vires just as an ordinary law can be. (para 1638)
Held: Where the legislature is also the sovereign constitution-making body, the distinction disappears. Britain is not the ideal Constitution to appreciate it. Jennings says there is only the arbitrary power of Parliament. (para 1639)
Noted: It is said that the Bill of Rights 1689 and Act of Settlement 1701 are constitutional law, so could be law in Article 13(2). (para 1640)
Held: In India the only relevant factor is whether a provision is embodied in the Constitution of India. Once validly embodied it acquires a validity of its own beyond challenge. Benn and Bishop Hoadley are cited on the traditional judicial interpretation as the supreme norm. (para 1641)
Held: For Article 13(2) the question is whether an amendment is law. Both derive validity from the Constitution, so the touchstone applies equally. The only distinction is that an amendment must be made in the manner and form prescribed. (para 1642)
Held: Even if laws in force in Articles 13(1) and 372 includes constitutional law, the Indian Independence Act and the 1935 Act were repealed by Article 395 and were not supreme law. Native States' constitutions were not supreme laws either, because they depended on the monarch (Alf Ross). Those laws became void or subject to the Constitution. They lacked the status of supreme constitutional law. (para 1643)
Held: Law in Article 13(2), in context, means ordinary law. A word takes its colour from context. The Constitution-makers wanted to guard against the more common invasion of fundamental rights by ordinary legislation. (para 1644)
Held: If the power lies in Article 368, constituent power is distinct from legislative power. Locating it in Entry 97 is a logical contradiction, since a law under Article 245 is subject to the provisions of the Constitution. (para 1645)
Held: It would be strange to relegate amendment to the residuary entry. The legislative history of the residuary entry prevents this, and Parliament's power under Entry 97 is exclusive though the proviso gives it no exclusive power. (para 1646)
Held: A constituent power in a rigid Constitution would not be put sub-silentio in a residuary legislative entry. (para 1647)
Held: When the procedure in Article 368 is followed, the result is an amendment of the Constitution. The procedure differs from the legislative procedure in Articles 107 to 111 read with Article 100. A joint sitting under Article 108 is ruled out. A majority of the total membership and two-thirds of those present and voting are needed in each House. For matters in the proviso, ratification by half the States is also needed before the Bill goes to the President. (para 1648)
Noted: Subba Rao, C.J. in Golak Nath relied on McCawley v. The King and The Bribery Commissioner v. Pedrick Ranasinghe to show the amending power is legislative. Lord Birkenhead in McCawley said an uncontrolled Constitution stands amended by an ordinary Act repugnant to it. (para 1649)
Noted: In Ranasinghe the question was whether a law on appointing members of the Bribery Tribunal panel, other than by the Judicial Service Commission, violated Section 55. Sections 18 and 29 of the Ceylon Order are set out. The appellant argued that only Section 29(2) violations were expressly void and that Ceylon could amend its Constitution. The Privy Council said the law had to be passed under Section 29(4), so it was void. (paras 1650)
Held: The inference drawn by Subba Rao, C.J. cannot be drawn. A general power to legislate differs from a power to legislate by a special procedure. In a controlled Constitution, an ordinary law that conflicts with the Constitution is void, because amendment needs the special procedure. In an uncontrolled Constitution, a conflicting law impliedly alters it. Seervai and Wynes are cited. (para 1650)
Held: Ranasinghe distinguishes legislative power from constituent power. Ceylon's Parliament had plenary ordinary power but was subject to the special procedure in Section 29(4) for constituent power. (para 1651)
Noted: It was argued that the amending power can be legislative, as in Canada, so locating it in the residuary entry was not wrong. (para 1652)
Held: Section 91(1) of the British North America Act gives a restricted legislative power of amendment, so that Constitution is flexible to that extent. There is no analogy with Article 368, which is a constituent power. Even an entry in List I would not help, because Article 245 begins subject to the provisions of this Constitution. In a controlled Constitution the power to amend can only be constituent. (para 1653)
Held: The argument that the proviso to Article 368 would have been made mandatory for fundamental rights, if they were amendable, overlooks the purpose of the proviso. The proviso protects the rights and powers of the States as persons in a federation (a union in which power is divided between a centre and units). Fundamental rights belong to individuals and minorities, who are represented in Parliament. Wheare is cited. (para 1654)
Held: The First Amendment abridged Articles 15 and 19. Nehru's speech and those of the framers show they never doubted that fundamental rights could be abridged. Even opponents such as S.P. Mukherjee never suggested otherwise. Contemporaneous practical exposition is a valuable aid (McPherson v. Blacker). (para 1655)
Noted: Mr. Palkhivala relied on Dr. Ambedkar's speech of 17 September 1949 to show that fundamental rights could not be taken away. (para 1656)
Noted: Whether Constituent Assembly speeches are admissible is not free from doubt. Kania, C.J. and Patanjali Sastri, J. in Gopalan, Mukherjea, J., Patanjali Sastri, C.J. in State of Travancore-Cochin v. Bombay Co., Subba Rao, C.J. in Golak Nath, Shah, J. in the Privy Purse Case and Union of India v. Harbhajan Singh Dhillon are reviewed. Cooley and Julius Stone favour use of the debates. (para 1657)
Held: There is no logical reason to exclude all speeches that resolve a latent ambiguity. Marshall, C.J. in United States v. Fisher and Frankfurter are cited. (para 1658)
Held: If debates can show legislative history, they can show purpose and intent. The weight depends on the occasion, purpose, care and standing of the speaker. A painstaking speech may carry the weight of an encyclical. A loose impromptu remark will not. Anderson is cited. Dr. Ambedkar's speech as reported is open to doubt. (para 1659)
Held: Dr. Ambedkar's reported speech assumed that Part III fell within the proviso to Article 368, but he never said Part III was not amendable. His speeches of 4 November 1948 and 9 December 1948 show all articles could be amended. He called Article 32 the soul of the Constitution, yet said the writs could be taken away by amending the Constitution. On 25 November 1949 he rejected absolute and unalterable fundamental rights. (paras 1659-1660)
Held: It is hard to see why no exception was made in Article 368 if fundamental rights were meant to be unamendable. Draft Article 305 on reservation of seats for minorities shows how an exception could have been made. (para 1661)
Noted: Kania, C.J. in Gopalan said Article 13 was inserted by abundant caution. Mr. Palkhivala said Article 13 has a function in the scheme. Ivor Jennings thinks Article 13(2) was unnecessary. (para 1662)
Held: Article 13(2) was needed to show the extent of invasion that makes a law void. The word abridge has an American meaning, and the framers knew the First Amendment. Every limitation is not an abridgement. The Court must make a value judgment on what is protected and whether the law abridges it. Directive Principles help fix the content of the right. Personal liberty gets greater protection than property rights. It is unnecessary to pursue this further. (para 1663)
Noted: Mr. Palkhivala argued that, even if amendment is widest and law excludes amendment, implied limits flow from three basic features of every republic. Legal sovereignty lies in the people. Parliament is a creature of the Constitution and not a constituent body. Only the people can alter essential features. Parliament would become master of the Constitution. One constituent assembly cannot create a perpetual one above the nation. Fundamental rights are an essential feature. (para 1664)
Held: The premise that legal sovereignty resides in the people is historically untrue. The Assembly was indirectly elected on a limited franchise and represented at best 28.5 per cent of adults in the provinces (Granville Austin). It drew its legal competence from Section 8(1) of the Indian Independence Act, 1947. A transfer of sovereignty cannot be revoked. The preamble's statement is rhetorical. Willoughby, Dicey, Corwin and Justinian are cited. (para 1665)
Held: The preamble does not conclude the Court. Marshall, C.J. in McCulloch v. Maryland examined historical facts. The validity of a Constitution is separate from its source. Its legal validity derives from the Indian Independence Act and its norms are efficacious. The amending provision must be read on its own language. (para 1666)
Noted: Assuming the people framed the Constitution, the question is whether they still retain the sovereign constituent power to change its basic structure. (para 1667)
Noted: Austin's idea of legal sovereignty is unlimited law-making power. Sovereignty in a quasi-federal (federal in structure with a strong centre) Constitution is hard to locate. State of West Bengal v. Union of India and Chisholm v. Georgia treat the people as sovereign. Latham, Orfield and others hold that an unorganised mass cannot be legally sovereign. (para 1668)
Held: The Constitution itself cannot be sovereign, because sovereignty must be vested in a person or body. Willoughby's popular sovereignty may be a political concept. (para 1669)
Held: The people have no constitutional power under the Constitution and can unmake it only by revolution. So the legal sovereignty does not reside in the people. If sovereignty exists at all, it exists in the Amending Body, which can decide its own competence (kompetenz kompetenz). (para 1670)
Held: The people have a natural right to self-government, exercised when they establish a Constitution. Under this Constitution they delegated the amending power to the Amending Body. Maritain is cited. (para 1671)
Noted: Rights and powers can be conferred on another vicariously without losing them. (para 1672)
Noted: Delegation does not mean parting with the power (Huth v. Clarke, Willis). (para 1673)
Held: Even if the people kept the possession of their constituent power, they have limited its exercise by the instrument they created. Possession differs from exercise. The people excluded themselves from amendment and placed the power in their representatives. There cannot be two bodies for the same thing. Other Constitutions provide referendum or initiative, but ours does not. (para 1674)
Noted: Cohens v. Virginia says the people can unmake the Constitution. This echoes Locke's right of revolution and has no direct relevance. (para 1675)
Held: French writers and Carl Friedrich distinguish constituent power from amending power. There is no scope in our Constitution for the people to exercise constituent power after delegating amendment to the Amending Body. The power to amend the amending power shows plenary power. The German protest under Weimar is outside the Indian context. (para 1676)
Held: The distinction between constituent and amending power matters only in a revolutionary sense. The claim that an unlimited amending authority cannot make basic changes, which only a revolution can make, is extra-legal and no court can countenance it. The people created a lesser sovereign, almost coextensive with itself, called by Max Radin the pro-sovereign. Wheare and Rottschaefer are cited. (para 1677)
Held: A law under Entry 97 for convoking a constituent assembly to ascertain the people's will on amending fundamental rights is not allowed. Hoar's view is not accepted. Willoughby's example of Rhode Island shows a new Constitution adopted outside the old procedure is not valid without the old government's approval. (para 1678)
Held: The Amending Body might amend Article 368 to provide a referendum. If the power to amend the amending power were limited, this could not be done, and no power could transfer the power to the people. That position is impossible. (para 1679)
Noted: Counsel said the preamble limits the amending power and cannot itself be amended. (para 1680)
Held: The preamble is part of the Constitution. The Constituent Assembly passed the motion preamble stands part of the Constitution on 17 October 1949. Under Article 394 it came into operation on 26 January 1950. There is no reason why it cannot be amended. (para 1680)
Held: A preamble represents only a present intention, as Wynes said. Berubari held the preamble does not limit sovereignty over territory. (para 1681)
Held: It is accepted that the preamble is a key to the makers' mind and may aid interpretation of an ambiguous enacting part. But it cannot confer power, enlarge a power or be a source of implied power. (para 1682)
Held: The broad concepts of justice, equality and liberty are moral adjurations that each generation fills afresh. An independent judiciary cannot fill them from its own bosom (Learned Hand). (para 1683)
Held: The concepts have no definite contours (Kelsen, Allen, Lincoln, Lord Reid in Ridge v. Baldwin, Justice Johnson). The preamble gives no clue to their priority among themselves. So one of them cannot be an implied limit on the amending power when the amendment gives priority to another. (para 1684)
Noted: Mr. Palkhivala listed other essential features: sovereignty and integrity, the right to vote, the republican form, the secular State, an independent judiciary, the dual structure of the Union and separation of powers. (para 1685)
Noted: The United States Supreme Court has not accepted implied limits on amendment. (para 1686)
Held: Leser v. Garnett upheld the 19th Amendment. United States v. Sprague rejected an implied limit on the mode of ratification. In the National Prohibition Cases (Rhode Island v. Palmer) the Court upheld the 18th Amendment and did not countenance the arguments on implied limits. (para 1687)
Held: The result of the National Prohibition Cases seems to be that the only limit is a State's equal suffrage in the Senate. Burdick is cited. (para 1688)
Noted: Dodd, and Cooley, say the Court rejected nearly all arguments for implied limits. (para 1689)
Noted: Murphy, J. in Schneiderman v. United States said Article V has no limit except equal suffrage in the Senate. (para 1690)
Noted: Learned Hand in United States v. Dennis said an amendment passed under the amendment provisions is as valid as the original text, with the exception of equal suffrage. (para 1691)
Noted: The latest authority is Douglas, J.'s obiter dictum for the majority in Whitehill v. Elkins. (para 1692)
Noted: Douglas, J. in Whitehill v. Elkins said that a person who wishes to alter the form of government may not be cast into outer darkness. The Constitution prescribes the method in Article V, and there is no restraint on the kind of amendment that may be offered. (para 1692)
Noted: Many writers on the United States Constitution see no implied limits on amendment. They say an amendment can change the dual form of government or the Bill of Rights. Willis, Orfield, Livingstone, Rottschaefer, Burgess, Cooley, McGovney, Dodd and Willoughby are cited. (para 1693)
Noted: Ryan's Case in Ireland decided two points: the meaning of amendment in Article 50, and whether implied limits cut down the amending power. The first has been dealt with. (para 1694)
Held: Kennedy, C.J. found implied limits, but the other two Judges did not. His reasoning is not relevant for India. Article 50 of the Irish Constitution had no power to amend itself, but proviso (e) of Article 368 shows Article 368 can be amended. In Moore v. Attorney General for the Irish State, counsel conceded before the Privy Council that Amendment No. 16 of 1929 was regular, and the Board said rightly. Alf Ross is cited. (para 1695)
Noted: The petitioner relied on Liyanage v. The Queen to show implied limits on legislative power. The Ceylon Criminal Law (Special Provisions) Act No. 1 of 1962 created offences ex post facto, altered evidence and procedure and increased punishment, for the trial of those in an abortive coup. The challenge was that it was directed at individuals and usurped judicial power. (para 1696)
Held: The Privy Council rejected limits based on vague principles. It found a broad separation of powers in the Ceylon Constitution and held that the legislature cannot exercise judicial power. The power under Section 29(1) does not include settling a dispute between private parties and calling it a law. The doctrine of implied limitation has nothing to do with this principle. Locke and Holmes in Prentis are cited. (para 1697)
Held: The rule that the President or Governor acts on the advice of the Council of Ministers does not help implied limits. The words aid and advise had acquired a meaning when transplanted into the Constitution. (para 1698)
Noted: Webb v. Outrim rejected a doctrine of implied limitation on a power already ascertained under the rules of construction. (para 1699)
Noted: The Canadian cases are considered. Duff, C.J. in the Alberta Press Case said the British North America Act implies that provincial legislatures cannot abrogate certain civil liberties. Abbott, J. in Switzman v. Elbling said, though it was unnecessary, that Parliament too could not abrogate the right of discussion. (para 1700)
Noted: In Saumur v. City of Quebec the majority rejected the contention that the preamble made religious freedom part of the Constitution. Rinfret, C.J.C., Taschereau, Kerwin, Cartwright and Fauteux, JJ. held that powers were fully divided between Parliament and the Provinces. Rand, J. found some support in the preamble for free speech. Estey and Locke, JJ. are also described. (para 1701)
Held: The view that neither level of government could affect civil liberties is contrary to the Privy Council view that no topic of internal self-government was withheld from Canada (A.G. Ontario v. A.G. Canada). (para 1702)
Held: The main objection to an implied bill of rights in the British North America Act is parliamentary supremacy. Abbott, J.'s dictum rests on no high authority. The Act has no express guarantee of civil liberties. (para 1703)
Held: These dicta do not bear on Article 368, because they concern the competence of legislatures and not implied limits on amendment. Section 2 of the Canadian Bill of Rights, 1960, lets Parliament declare that a law operates notwithstanding the Bill. (para 1704)
Held: Re Initiative and Referendum Act decided only that, without clear language in Section 92(1), the power of the Crown through the Lieutenant Governor could not be abrogated. It is authority only on the meaning of excepting as regards the office of Lieutenant Governor. Lord Haldane's obiter dictum is not relevant. (para 1705)
Noted: Bora Laskin calls Lord Haldane's dictum more a counsel of caution than a Constitutional limitation. It has not affected wide delegation. (para 1706)
Held: Taylor v. Attorney General of Queensland is not authority for implied limits on amendment. The Acts there did not change the representative character of the legislature or affect the Crown. Gavan Duffy and Rich, JJ. are cited. (para 1707)
Held: Isaacs, J.'s remark rests on the meaning of legislature under Section 5 of the Colonial Laws Validity Act, which did not include the Crown. (para 1708)
Held: The remark means a colonial legislature with power to alter its own Constitution could not eliminate the Queen as part of it. It was based on the construction of the Act. (para 1709)
Held: Mangal Singh v. Union of India decided only that a State formed under Article 4 must have legislative, executive and judicial organs. It gives no help to the petitioner, because a modern State without these is unimaginable. (paras 1710-1711)
Noted: Section 128 of the Australian Constitution Act has restrictions on amendment. They can be removed by amendment, as proviso (e) to Article 368 shows for India. Leading Australian writers say there are no other limits. (para 1712)
Noted: In Victoria v. Commonwealth, Menzies, Windeyer, Walsh and Gibbs, JJ. held there was an implied limit on Commonwealth legislative power, but the Act did not offend it. Barwick, C.J. and Owen, J. held there was none, but a law aimed at a State's functions is invalid for lack of power. McTiernan, J. found no necessary implication. (para 1713)
Noted: The principle is not reserved by the Engineers' Case. Menzies, Walsh and Gibbs, JJ. were unwilling to state it as one precise test. (para 1714)
Noted: Questions are raised whether a judicially manageable set of criteria exists for the principle. The theory could be called an interpretation based on a vague, individual conception of the spirit of the compact. (para 1715)
Noted: The question is whether those judgments show why the existence of the States is threatened without the principle. (para 1716)
Noted: Windeyer, J.'s judgment is a little uncertain. Competing characterisations of a Commonwealth law are possible. (para 1717)
Noted: Windeyer, J. said a law directed against the States to prevent their functions is not for the peace, order and good government of the Commonwealth. (para 1718)
Noted: The basic principle of construction is that in Queen v. Burah. The Judges who found implied limits did not differ in substance from Barwick, C.J. and Owen, J., who said it was lack of power. (para 1719)
Held: The decision is not relevant. In a federal State the continued existence of the States is a fundamental assumption for legislative power. That is not so for an amending power, which alters the Constitution itself. (para 1720)
Noted: The doctrine of immunity of instrumentalities, based on implied prohibition (McCulloch v. Maryland), was progressively abandoned. Dixon, J. in Essendon Corporation v. Criterion Theatres and Graves v. New York mark its end. (para 1721)
Noted: This Court rejected the doctrine in State of West Bengal v. Union of India. (para 1722)
Noted: Mr. Palkhivala argued that without limits Parliament could prolong its life, make India a satellite State, abolish the Supreme Court and High Courts, abolish the parliamentary system and take away or make impossible the power of amendment. (para 1723)
Held: There is no reason to think amendment is narrow. A power that might be abused is not cut down for that reason. Vacher and Sons v. London Society of Compositors is cited: consequences may be considered but policy is not for the court. (para 1724)
Held: Bank of Toronto v. Lambe held that a power is not denied because it may be abused. The Privy Council said wide powers of local self-government are not limited on speculation that they would be used injuriously. (para 1725)
Held: Ex parte Crossman presumes that every organ will act in coordination and no Constitution assumes one organ will defeat another. (para 1726)
Held: Democracy assumes the people's representatives will not betray their trust. They already hold disaster-potential powers such as declaring war and controlling currency, which are insulated from judicial control. There is no warrant for assuming that the amending power will be abused. The remedy is the polling booth. (para 1727)
Held: The catastrophic consequences feared have an air of unreality in the light of experience between 1951 (Sankari Prasad) and 1967 (Golak Nath). Parliament is as much a guardian of liberties as the courts. (para 1728)
Held: If difficulty of amendment shows essential features, the federal features in clauses (a) to (d) of the proviso to Article 368 are essential features. The proviso shows that the Constitution-makers thought essential features were amendable. (para 1729)
Noted: Mr. Palkhivala said fundamental rights are the rock of the Constitution, extensions of natural rights reserved by the people, and cannot be abridged by a constituted authority. (para 1730)
Noted: The respondents said the people have only the rights the Constitution confers and there is no provision like Article 10 of the United States Constitution reserving rights. They said calling the rights transcendental or primordial is sentimentalism. (para 1731)
Noted: The question is partly political philosophy, but the Court should decide it (De Tocqueville). The source of the rights and the reason for their fundamentalness must be understood. (para 1732)
Held: Natural rights are rights appropriate to man as a rational and moral being. They are not enforceable by courts unless recognised by positive law. The preamble shows the Constitution was established to secure them, and the fundamental rights are by and large a recognition of the pre-existing rights. Hocking and Corwin are cited. (para 1733)
Noted: The philosophical foundation of the rights of man is natural law. St. Thomas Aquinas and Spinoza are cited on man's inclinations to preserve life, to things common to animals, and to know truth and live in society. (para 1734)
Noted: The law of nature is both an expression of reality and a standard of justice. Pollock traces its influence on the common law. (para 1735)
Noted: Natural law has been called fanciful, but the overthrow of theories does not overthrow natural law (Laserson). (para 1736)
Noted: Natural law is a living embodiment of the collective reason of civilised mankind. Lauterpacht and Pollock are cited. (para 1737)
Noted: The sacred rights of mankind are written, as with a sunbeam in human nature. (para 1738)
Noted: Patanjali Sastri, J. in State of West Bengal v. Subodh Gopal said Article 19 deals with basic rights recognised as natural rights inherent in the status of a citizen. (para 1739)
Noted: In the United States natural law was used against social legislation and then fell into disrepute. Bentham, Holmes and Kelsen rejected it. (para 1740)
Noted: The doctrine revived in the 20th century and underlies the International Bill of Human Rights. Whether called natural rights or not, they belong to man as a rational and moral being. Neill and Laski are cited. (para 1741)
Noted: Mr. Seervai argued from Article 33 and S.K. Das, J. in Basheshar Nath that Part III shows no natural rights are recognised, as Articles 33, 34 and 35 let Parliament modify them. (para 1742)
Held: Natural rights are limited for the common good, as writers on natural law accept. The fact that Parliament can restrict rights of military and police personnel does not mean fundamental rights are not a recognition of basic human rights. Natural law cannot supplant positive law. Locke did not say natural rights were absolute. Pollock's rule-of-the-road example is cited. (para 1743)
Held: Rights not being granted to non-citizens or suspended in an emergency does not show they are not human rights. The same fallacy lies behind both arguments. (para 1744)
Held: Some rights are inalienable, such as the right to life and the pursuit of happiness, but not free from limits. Others, such as free speech, may be restricted or taken away. Even inalienable rights are subject to limits dictated by justice or the common good. Holmes and Maritain are cited. (para 1745)
Held: Human rights are only prima facie rights. Their claim may be overruled in special circumstances. A prima facie right is justified unless there are stronger counterclaims, and the burden lies on the counterclaims. Vlastos is cited. (para 1746)
Held: Rights founded on different relations may conflict. Social and economic rights, such as a just wage and social security, are the moral rights of Part IV. They had to struggle against the inflated fundamental rights of free contract and private ownership. (para 1747)
Held: What is right involves balancing claims. No single right is absolute. Each is subject to the claims of other rights and the common good (Ginsberg). Article 29(2) of the Declaration of Human Rights allows limits set by law to secure the rights of others, morality, public order (the middle circle between law and order and security of the State) and the general welfare. (para 1748)
Noted: The judgment will show later how the general welfare requires limiting or taking away fundamental rights. (para 1749)
Held: The framers knew fundamental rights were not absolute and provided for restrictions by law. They could not foresee the restrictions needed in future. Whether a right should be abridged must be decided by each generation in light of its experience. (para 1750)
Noted: The question is whether Parliament was justified in past amendments and whether the feared catastrophe follows. (para 1751)
Held: The First Amendment added Article 15(4) for backward classes and Scheduled Castes and Tribes. It followed State of Madras v. Champakam, which struck down reservation of seats under Article 29(2). Social justice required the amendment. Parliament had no option, since the chance of overruling a five-Judge Bench was remote. (para 1752)
Held: The First Amendment also changed Article 19(2) after Romesh Thapar v. State of Madras held that public order was not covered by undermines the security of the State. State of Bihar v. Shailabala Devi is noted. Parliament had no option. The words friendly relations with foreign States were a further abridgement, and nobody would say speech harming such relations should not be curbed. (para 1752)
Held: The 16th Amendment added the sovereignty and integrity of India to Article 19(2), (3) and (4). Freedom of speech is the matrix of other freedoms and an essential feature, yet it had to be abridged for a greater good. Fundamental rights may need abridging for the common good or for higher values. (para 1754)
Noted: Counsel for the petitioner argued that Parliament may abridge rights but not destroy their core or essence. The Court must decide in each case whether the core is damaged. He compared the task with finding reasonable restrictions. (para 1755)
Noted: Mr. Seervai said there is no objective standard for the core, unlike reasonableness. He cited Holmes in Lochner v. New York and Patanjali Sastri, J. in State of Madras v. V.G. Row. He said the quest is like one for the philosopher's stone. He added that the framers omitted due process in Article 21 on purpose, and that substantive due process is nearly obsolete in America. (para 1756)
Held: Judging reasonableness draws on several sources and is an authentic bit of special legislation (Learned Hand). Reason and reasonableness come from natural law (Pollock; Dr. Bonham's case). Due process has no fixed content (Frankfurter in Joint Anti-Fascist Refugee Committee v. McGrath). Article 19's limits open judicial review much like the due process clause. Municipal Committee v. State of Punjab, which said due process has no application in India, is not correct with respect. Collector of Customs v. Sampathu and Abbas v. Union of India are discussed. Vague restrictions are struck down as unreasonable under Article 19(2) to (6). The framers brought in by the back door the concept they banished by the front. (para 1757)
Held: The lack of a yardstick for finding the core or the essential features does not dismay the Judge. Comparable tests exist, such as good moral character, moral turpitude, the core of a contract and pith and substance. These matters are of degree. Great judges discern which gradations make a genuine difference. (para 1758)
Held: Not all provisions of the Constitution are equally essential. The United States Constitution has only seven articles. A Constitution need not have the prolixity of a code. Being in one document and amendable by Article 368 does not make every provision an essential feature. (para 1759)
Held: Even if the core of a right is found, the Amending Body may still have power to damage it, because justice, the common good or the general welfare may require abridging or taking away the right. (para 1760)
Held: No source has been found for implied limitation. The theory of Jefferson, adopted by Dr. Ambedkar, is the only sane theory. Otherwise the framers could bind all people for all time. The basic structure is not sacred. The republican form is not a final verdict of mankind. Plato and Aristotle are cited. (para 1761)
Held: The aim of the Constitution was justice, liberty and equality. Parts III and IV both state moral rights. The rights of Part III are not superior to those of Part IV. Free and compulsory education under Article 45 is as important as freedom of religion under Article 25. Part III rights are not absolute either. Champakam held that Directive Principles run as subsidiary to fundamental rights. Quareshi v. State of Bihar affirmed it, with S.R. Das, C.J. saying the protecting provisions would otherwise be a mere rope of sand. Subba Rao, C.J. in Golak Nath said they form an integrated whole. Later cases speak of harmonising them. (para 1762)
Held: Part IV is expressly unenforceable, but its provisions form part of the Constitutional Law of India and are not subordinate to fundamental rights. Goodhart says enforcement by a court is not the real test of a law. Conventions of the English Constitution are an example. (para 1763)
Held: Article 37 only prevents a citizen from demanding specific performance of the Directive Principles. When the State makes a law implementing them, it becomes law and courts enforce it. The question of a law repugnant to the Directive Principles requires serious consideration. (para 1764)
Held: State has the same definition for Parts III and IV. Articles 38 to 51 address the State as defined in Article 12, unlike Article 45 of the Irish Constitution. Judicial process is State action. Hidayatullah, J. in Naresh v. State of Maharashtra, Shelley v. Kraemer, Budhan v. State of Bihar and United States cases are cited. (para 1765)
Held: If a double conviction is State action for Article 32, the judiciary is also bound to apply the Directive Principles in making its judgments. (para 1766)
Held: The judicial function is both creation and application of law. Courts create general norms (Kelsen). Lord Reid and John Chipman Gray say judges make law. (para 1767)
Held: Calling a law-making process finding the law is strange (Cohen, Cardozo). (para 1768)
Held: Fundamental rights sometimes must yield to Directive Principles to build a just social order. Fundamental rights have an air of unreality for starving millions. Economic goals have a claim to priority, since excellence comes after existence. Blackshield and Hocking are cited. (para 1769)
Noted: Pound's two jural postulates: burdens of life in society are borne by society, and everyone may assume a standard of human life. (para 1770)
Held: Liberty and equality mean something only to those who live. The main task of freedom in India for most people is at the economic level (Friedrich). (para 1771)
Noted: Pound's theory of interests treats claims as pre-existing psychological facts. (para 1772)
Noted: Pound's proposals aim at a correspondence between the demands of a society and its law. (para 1773)
Held: Part IV broadly sketches the actual claims of the millions of people. When these conflict with other rights, the dominant opinion of the community decides. The court is not the organ to light the way to a saner world, because that choice belongs to the representatives of the people (Learned Hand; Julius Stone). (para 1774)
Noted: There will be much gnashing of teeth when a society moves from laissez faire to a social order where individual claims are subordinated to the common good. (para 1775)
Held (summary of this part): Basic human rights, whether called natural rights or not, are an essential feature of the Constitution. The moral rights in Part IV are equally an essential feature, and all organs of the State, including the judiciary, must enforce them. Fundamental rights are empty vessels that each generation fills. Their priority may yield to Part IV. If Parliament amends to take away or abridge a right to give priority to Part IV, the Court cannot hold the amendment bad. Judicial review of an amendment on that ground is impermissible. Natural rights are only prima facie rights. Parliament is the guardian of the rights and liberties of the people more than the courts, since the courts cannot go into the validity on substantive grounds. (para 1776, first numbered paragraph)
Held: There were no express or implied limits on the power to amend fundamental rights, even their core or essence. The 24th Amendment makes this clear. Its opening words bar any implied limit from other provisions. It confirms that the power is in Article 368, includes adding, varying or repealing, is constituent, requires the President's assent and is not subject to Article 13(2). (para 1776, second numbered paragraph)
Held: Article 368, before the 24th Amendment, gave plenary power. Except for compulsory presidential assent, the 24th Amendment is declaratory. It corrected the judicial error of Golak Nath, as the Statement of Objects and Reasons says. (para 1777)
Noted: Mr. Palkhivala argued that a limited power to amend cannot be used to enlarge the amending power. (para 1778)
Held: A donor may grant a limited power with a potential power in the donee to enlarge it. Proviso (e) shows the aim of amending Article 368 is to make changes in it. No limit on the change can be seen. Hidayatullah, J. in Golak Nath assumed that Article 368 could be amended to convene a Constituent Assembly. The amendment was made in the manner and form the article prescribes. (para 1779)
Held: Even if law in Article 13(2) included an amendment, nothing prevented the Amending Body from amending Articles 368 and 13(2) to exclude its operation. The two stages argument fails, since there was no express or implied prohibition. (para 1780)
Noted: The 25th Amendment amended Article 31(2) to speak of an amount. It bars challenge on adequacy or payment otherwise than in cash. It has an exception for minority educational institutions under Article 30(1). Clause (2B) of Article 31 excludes Article 19(1)(f). Article 31C protects laws giving effect to Article 39(b) and (c) from Articles 14, 19 and 31, and protects laws with a declaration. A State law needs the President's assent. (para 1781)
Noted: Mr. Palkhivala argued that the right to property is an essential feature, since dignified citizenship depends on it and other rights depend on it. An inadequate or illusory amount would damage its core. The press, workers' associations and religious denominations would be hurt. (para 1782)
Noted: The framers made property a fundamental right because dignified life is impossible without it. Whether it is the weakest depends on whether there is a hierarchy among rights. The preferred-freedoms concept puts it low. (para 1783)
Noted: Aristotle, Aquinas, Hobbes and positivists agree that the right to life and property is a presupposition of a good legal order. Liberty and property support each other. (para 1784)
Noted: The doctrine of natural rights has deeply influenced the idea of private property. Without dominion over things, man is a slave (Mecklin). (para 1785)
Noted: The most that can be claimed generally is that without some property or capacity to acquire it there is no individual liberty (Rashdall). (para 1786)
Noted: Persons without property lack a background that gives their lives dignity (Holland). (para 1787)
Noted: Property is founded on the natural impulse to extend one's personality. A man cannot marry or found a family without the capacity to own. (para 1788)
Held: Property is not an institution with a fixed content. It has taken diverse forms and remains open to unforeseen change. (para 1789)
Held: Three forms of private property must be distinguished: consumer goods, means of production worked by their owners, and means of production not worked by their owners. The first two can be justified as conditions of a free life. The third gives power over persons and is an instrument of servitude (Ginsberg). (para 1790)
Noted: Society rests on rights and not functions, with the enjoyment of property thought to need no social justification. Jagat Narain is cited. (para 1791)
Held: The framers made property a fundamental right thinking every citizen could have a modicum of it. A defence of the right must be a defence of well-distributed property, not an abstract right exercised by few. (para 1792)
Noted: Article 39(b) directs the State to secure ownership and control of material resources distributed to subserve the common good. Article 39(c) directs the State to secure that the economic system does not concentrate wealth and the means of production. (para 1793)
Noted: Ivor Jennings says these provisions derive from Article 45 of the Irish Constitution, itself based on Papal Bulls. (para 1794)
Noted: The encyclical of Pope Paul VI says private property is not an absolute right and must not be exercised against the common good. (para 1795)
Noted: The institution of property is not the same as its particular forms. Natural right may be violated where many are excluded from acquiring property (McDonald). (para 1796)
Held: No absolute principle of justice requires the State to pay full market value on acquisition for Article 39(b) or (c). Article 31(2A) proceeds on that basis. Taxation and the abolition of slavery and prohibition in America are examples of justified confiscation without compensation. M.R. Cohen is cited. (para 1797)
Noted: A theory of social justice should draw the line between justifiable and unjustifiable confiscation. (para 1798)
Noted: Nehru's speech of 10 September 1949 on Article 24, the original Article 31(2), said the judiciary should not come in unless there is fraud on the Constitution. (para 1799)
Noted: K.M. Munshi said on 12 September 1949 that Parliament is the judge and master of what principles to apply. (para 1800)
Noted: State of West Bengal v. Bela Banerjee belied the Constituent Assembly's expectation. It held the owner must be paid the just equivalent. (para 1801)
Noted: The Fourth Amendment of 27 April 1955 added that no law shall be questioned on the ground that compensation is not adequate. P. Vajravelu Mudaliar v. Deputy Collector held the meaning in Bela Banerjee was accepted. (para 1802)
Noted: Union of India v. Metal Corporation held written-down value was not a just equivalent. (para 1803)
Noted: Gujarat v. Shantilal overruled Metal Corporation. Shah, J. said principles cannot be challenged either. (para 1804)
Noted: In R.C. Cooper v. Union of India (Bank Nationalisation), the majority virtually overruled Shantilal. Compensation meant the money equivalent according to relevant principles. (para 1805)
Noted: The 25th Amendment substituted amount for compensation for these reasons. (para 1806)
Noted: The petitioner said amount implies a norm and the principles must be relevant to it. (para 1807)
Held: The purpose of the amendment was to exclude judicial review of the adequacy of the amount or relevance of the principle. (para 1808)
Noted: Mukherjea, C.J. in Ram Jawaya Kapur v. State of Punjab said the Cabinet formulates major policy. (para 1809)
Noted: Hegde, J. in Sita Ram Bishambhar Dayal v. State of U.P. spoke of the Cabinet leading the Legislature. (para 1810)
Held: The Cabinet has the materials to fix the amount. Fixing the amount or principle rests in the absolute discretion of the legislature on grounds of social justice. Social justice gives no judicially manageable standard to test adequacy or relevance. (para 1811)
Held: The word amount gives no norm. It was deliberately chosen to deprive the Court of a yardstick. Together with the bar on review, fixation is for Parliament alone. Shantilal's remark on a charter of arbitrariness concerned the earlier text. (para 1812)
Held: Shantilal's observations were made before the word amount replaced compensation and are not relevant now. (para 1813)
Held: It is not decided whether an illusory amount or a fraud on the Constitution can be struck down. The argument that Parliament approved the Bank Nationalisation interpretation by keeping the clause is doubtful once compensation was deleted. (para 1814)
Noted: Denning, L.J. in Royal Court Derby Porcelain Co. v. Raymond Russell said re-enactment does not give statutory authority to every erroneous interpretation. (para 1815)
Noted: Lord Radcliffe in Galloway v. Galloway is cited; any presumption yields to a contrary intention. (para 1816)
Held: The argument that amount must bear a reasonable relation to value, since Article 19(1)(f) remains, is rejected. It would open the door to justiciability of adequacy, which the article forbids. (para 1817)
Held: The right to property is attenuated but not wholly taken away. An amendment can be struck down only if it was not made in the manner and form of Article 368, or if it violates some express or implied limit. (para 1818)
Held: The 25th Amendment's change to Article 31(2) cannot be held bad on some invisible radiation from the right to property. Full compensation would turn concentration of wealth into concentration of money. (paras 1819-1820)
Held: Since the 24th Amendment is valid, there is no basis to strike down the amendment of Article 31(2). The word amount implies no standard of reasonableness. The question is outside the judicial ken. (para 1821)
Noted: The validity of Article 31C is considered. (para 1822)
Noted: Counsel for the petitioner distinguished amending fundamental rights from enabling legislatures to pass Constitution-breaking laws. Article 31C makes void laws not void by fiction and repudiates constitutional supremacy. The Directive Principles are made paramount. A declaration is made final, so any law can get immunity. (para 1823)
Held: Article 31C is a proviso to Article 13(2). It lets Parliament and State Legislatures pass laws of one type that are not void for violating Articles 14, 19 and 31. (para 1824)
Held: Law in Article 31C means a law passed by Parliament or the State legislatures. The word takes its colour from the context. (para 1825)
Held: If the 24th Amendment is valid, nothing prevents the Amending Body from exempting laws giving effect to Article 39(b) and (c) from Articles 14, 19 and 31. Article 31C only carves out a legislative field and exempts those laws from Article 13(2) in some respects. The legislatures act under the legislative entries, not under Article 31C. (para 1826)
Held: Article 31A is in pari materia with the first part of Article 31C and was upheld in Sankari Prasad. That the argument did not occur to counsel or the Judges is a weighty consideration. The distinction between subject and object is like one between Tweedledum and Tweedledee. (para 1827)
Held: Article 31C does not give legislatures any power to amend the Constitution. The 25th Amendment itself made a pro tanto amendment of Article 13(2). A law passed by them does not amend the Constitution. (para 1828)
Held: Legislatures do not confer immunity on their own laws. They rely on the 25th Amendment. A law passed under an amendment that lifts Article 13(2) and one passed under an amendment saying the law is not void is the same, as the Article 15(4) illustration shows. In both, the amendment gives the immunity. (para 1829)
Held: If Article 31C invests the legislatures with a power to amend, that is a pro tanto amendment of Article 368. It need not say so or begin with Notwithstanding anything contained in Article 368. Mohamed Samsudeen Kariapper v. Wijesinha is cited. The 25th Amendment was passed in the manner required. No limit on amending the amending power prevents vesting part of it in ordinary legislatures. (para 1830)
Held: The bad odour of the article cannot decide its constitutionality. The Court has no power to strike down an amendment because it gives the legislatures large powers to violate Articles 14, 19 and 31. (para 1831)
Noted: Counsel asked why Article 31C allows laws violating Article 19(1)(a), when Article 39(b) and (c) have no connection with free speech. (para 1832)
Noted: Mathew, J. recalls his dissent in Bennett Coleman v. Union of India about the commercial character of the press. Lord Bryce's view of the press is cited. (para 1833)
Noted: The press has changed its focus from the editor to the citizen. The public has a right to honest news. United States v. Associated Press is cited. (para 1834)
Held: The press is a public utility in private hands and may be regulated. A law giving effect to Article 39(b) and (c) may have to deal with the commercial aspect of the press and so abridge free speech. Hocking is cited. (para 1835)
Held: Personal views on the wisdom of Article 31C are irrelevant. Society has the right to experiment within wide limits. (para 1836)
Noted: The objection is that the bar on review lets legislatures pass laws with no nexus to Article 39(b) or (c) and violate Articles 14, 19 and 31 with impunity. (para 1837)
Held: Article 31C protects only a law that gives effect to the State policy under Article 39(b) and (c). Only such a law can contain a declaration. No law in the latter part means no such law as in the first part. Any other reading would let a declaration shield any law. The legislature's jurisdiction to make the declaration depends on the law being of that kind. So the declaration cannot bar the Court from asking whether the law gives effect to the policy. (para 1838)
Held: The Court examines the pith and substance, true nature, design, subject matter, object and scope. If the declaration is a pretence, the Court may tear the veil and strike down any provision violating Articles 14, 19 or 31. (para 1839)
Held: The President's assent is a further safeguard for State laws. The fear of national disintegration has no real foundation. Holmes's dictum on State laws is not relevant here. (para 1840)
Held: The claim that the framers never meant fundamental rights to yield to Directive Principles is not accepted. A later generation may weigh the two differently. Harmonious construction (reading provisions together so that both operate) may not be a panacea. (para 1841)
Held: The 29th Amendment is valid, for the reasons given by Ray, J. (para 1842)
Noted: The arguments lasted nearly six months. Mathew, J. sums up his findings so that they are not a Delphic oracle. (para 1843)
Held: Golak Nath was wrong. Article 368, before the 24th Amendment, gave plenary power over all provisions. The 24th Amendment is declaratory except for compulsory assent. The only limit is that the Constitution cannot be repealed or abrogated without substituting a mechanism by which the State is constituted and organised. That limit flows from the article's language. (para 1844)
Held: There are no implied or inherent limits on the amending power. (para 1845)
Held: The 24th Amendment is valid. (para 1846)
Held: The 25th Amendment, including Article 31C, is valid. Amount conveys no norm. The Court cannot go into adequacy or relevance of the amount or principle. (para 1847)
Held: The declaration in Article 31C does not oust the Court's jurisdiction to ask whether the law gives effect to the policy. The legislature's jurisdiction to make the declaration depends on the law being of that kind. (para 1848)
Held: The 29th Amendment is valid. (para 1849)
Held: The writ petitions should be disposed of in the light of these findings, with no order as to costs. (para 1850)

M.H. Beg, J. (paras 1851-1921)

Noted: The reference to thirteen Judges was made so that Golak Nath, which became law by a majority of one, could be reconsidered. Golak Nath held that Article 13(2) applies to constitutional amendments. It did not decide the position if Article 368 itself is amended under clause (e) of the proviso. That question is now before the Court. Beg, J. says the Court cannot avoid pronouncing on the correctness of Golak Nath. (para 1851)
Noted: The cases are loaded with learning. Beg, J. will not repeat views he accepts, and will state only the reasons for his disagreement with some conclusions. He follows the House of Lords practice mentioned by Mathew, J. and hopes not to thicken the thicket described by Learned Hand. (para 1852)
Noted: There is a danger of losing sight of the wood for the trees. All the Judges are conscious of their burden of giving a solution that is correct and beneficial without doing violence to the Constitution. (para 1853)
Noted: Friedmann says the democratic judge cannot escape individual responsibility and must weigh conflicting values. The great judges accept the burden of decision. (para 1854)
Noted: Mr. Palkhivala's written submissions say the true ambit of the amending power must be decided. It can be decided on the meaning of amendment or on implied limits. He says the 24th and 25th Amendments, Article 31(2) and Article 31C cannot be dealt with without it. He says Article 31C violates seven essential features. He argues that deciding only on manner and form would be unsatisfactory and the 69 days of hearing would be wasted. (paras 1855)
Noted: Before the core question, Beg, J. makes preliminary observations on the concepts of a Constitution, legal sovereignty and the nature of the amending power. A judge should disclose his undisclosed major premises. (para 1856)
Noted: The Preamble and Parts III and IV express the principle Salus Populi Suprema Lex. The good of the mass of citizens is the supreme law. Justice, social, economic and political, is the first objective. (para 1857)
Noted: A modern democratic Constitution expresses the sovereign will of the people, though the Constituent Assembly was not chosen by adult franchise. It had legal authority under Section 8 of the Indian Independence Act. Sections 6 and 8 transferred legal sovereignty from the British Parliament to the Indian Parliament as Constituent Assembly. (para 1858)
Noted: The transfer of sovereignty became irrevocable in law and in fact. The power to make the Constitution was vested legally in the Constituent Assembly and not in the people of India. The Assembly spoke for the people without specific legal authority from them. (para 1859)
Held: Mr. Palkhivala's description of fundamental rights as means and Directive Principles as ends is not correct. Both are means of attaining the objectives of the Preamble. The Directive Principles lay down the path. (para 1860)
Noted: If a distinction between ends and means is to be made, fundamental rights are better viewed as the ends, with the Directive Principles as guidelines. It is better still to view both as guidelines. (para 1861)
Held: The Directive Principles lay down the path of progress, with fundamental rights as its limits, like the banks of a river. They can be mended, amended, curtailed or enlarged as the path's needs require. The path is more important than its limits. The debates in the Constituent Assembly support this. Under Article 37 it is the duty of the State to apply the principles in making laws. Courts are bound by the mandate in so far as they do judicial law-making in the interstices. (para 1862)
Held: Fundamental rights are conferred on citizens with corresponding obligations on the State. Directive Principles lay down specific duties of State organs. Individual freedoms may have to yield to social welfare. A reconciliation is to be attempted where reasonably possible. In case of conflict, the fundamental right is to be subordinated when embodied in laws properly made. (para 1863)
Noted: Article 38 requires the State to promote a social order informed by justice, social, economic and political. It is the first duty of all State organs. (para 1864)
Noted: Article 39 contains the principles of the socialistic welfare State, clauses (a) to (f): adequate means of livelihood, distribution of resources, no concentration of wealth, equal pay, protection of workers and children. (para 1865)
Held: It is hard to hold that the changeable limits of the path are more important than the path itself. Sapru, J. in Motilal v. Government of Uttar Pradesh (Allahabad Full Bench) said the framers were aiming at a welfare or social service State, not dominated by laissez faire. The object of fundamental rights was also to set standards of conduct, justice and fair play. (para 1866)
Noted: In Balwant Rai v. Union of India, Dhavan, J. held that the duty under Article 37 extends to the judiciary when it has a choice between two constructions. (para 1867)
Noted: The next topic is the meaning of sovereign. The Constituent Assembly constituted a Sovereign Democratic Republic. (para 1868)
Noted: Dicey distinguishes political sovereignty from legal sovereignty. The electors' will asserts itself politically but courts take no notice of it except as expressed in an Act. (para 1869)
Held: Legal sovereignty was transferred to the Constituent Assembly. The people are only politically sovereign. The Princely States came by instruments of accession. We, the people of India means the Assembly spoke for the people. The Constitution contains no transfer of legal sovereignty to the people. (para 1870)
Held: The people speak through Parliament and approach the courts. Judges and Members of Parliament take oaths to the Constitution and not to the people. The Constitution is the legal sovereign recognised by courts, though political sovereignty resides in the people. (para 1871)
Noted: Beg, J. avoids an academic discussion of sovereignty and quotes Barker's Principles of Social and Political Theory on the lawyer's meaning of the term. (para 1872)
Noted: Barker says a State needs a final adjustment centre, the sovereign. Sovereignty is the authority of the last word. It is unlimited in subject but limited by its own nature and mode of action. It moves within the legal association and makes legal pronouncements by legal rules. (para 1872)
Noted: Barker adds that the Constitution itself is the ultimate sovereign, as a continuous control, while the body that amends it acts only at rare intervals. The body making ordinary law is the immediate sovereign, authorised by the Constitution. Barker admits an inconsistency inherent in this view. (para 1873)
Noted: Beg, J. quotes Barker at length because it explains the relevant provisions. Barker begins his book with the Preamble of India's Constitution. (para 1874)
Held: The sovereignty of the Constitution is a feature inherent in a genuine whole (Bosanquet). It may be divided between the organs of the State. Constituent power is a mark of it. Laski and Madison on separation of powers are cited. (para 1875)
Held: The Constitution divides legal sovereignty among the Legislative, Executive and Judicature. They are like three intersecting circles. Where judicial power intersects the others, the judiciary guards the Constitution. In the remaining parts, the legislature and executive are supreme and their decisions cannot be questioned by the judiciary. (para 1876)
Held: The judiciary is the ultimate testing authority for ordinary law-making. In the sphere of primary fundamental law lies the amending power in Article 368. The judiciary's control there is limited to seeing that form and manner are observed. Beyond that its authority over the constituent power ceases. The Court decides the limits of authorities in a dispute, but cannot interfere with action inside those limits. (para 1877)
Noted: The speeches in the Constituent Assembly disclose an urge for dynamic change, embodied in the Preamble and the Directive Principles. Granville Austin says the framers wanted a democratic Constitution with a socialist bias, allowing the nation to become as socialist as it wished. (para 1878)
Noted: The direction was indicated, but the methods were left to future State organs. India's economy must change its feudal character and its social patterns must change. (para 1879)
Noted: Manu and Parashara said the laws of each age differ. Dr. Ganga Nath Jha's treatise on Hindu Law cites the Sanskrit passages. (para 1880)
Noted: An English translation of the sense of the passages is given. (para 1881)
Held: Even ancient jurists recognised that one generation has no right to bind future generations even on fundamentals. Nothing in the unamended Article 368 distinguishes between more and less basic parts of the Constitution, apart from the procedure. None are immune from amendment. (paras 1882-1883)
Held: Dwivedi, J. compared progress to the movement of the chakra. The amending provision is an instrument for dynamic and basic changes. Progress may involve occasional sacrifice of some fundamental rights, to achieve economic emancipation without which the masses cannot enjoy fundamental rights. (para 1884)
Held: The judiciary sees that the vehicle stays on the charted course. Fundamental rights are limits of the path. The power to amend includes the power to change these limits to suit each age. Holmes's felt necessities are cited. It may involve changes in features considered basic today. (para 1885)
Held: The Attorney General and Mr. Seervai rightly said Article 368 is a safety valve against violent revolution. It cannot operate so if its power is construed narrowly to bar change of any feature called basic. (para 1886)
Held: The amending power could not omit any part of the Constitution. The 24th Amendment merely clarifies the original intention. There is no deliberate casus omissus. The Court must lean against a construction exempting any part from Article 368. (para 1887)
Held: Beg, J. agrees that Article 13(2) deals with ordinary laws and not with Article 368, of which Article 13(2) is itself a part. Language, context and subject matter prevent it from restricting the amending power even before the 24th Amendment. (para 1888)
Noted: The majority in Golak Nath held the power itself is in Article 368 and is wide. Hidayatullah, J.'s view on law turned the scales by one vote. Counting the Judges in Sajjan Singh and Sankari Prasad, most Judges hold law does not include the Constitution. Article 13(2) would have said so if intended. (para 1889)
Held: The argument based on dropping from Article 13(2) an exemption proposed by Mr. Santhanam is not accepted. No explanation or authority has been shown for a drastic change. The safer presumption is that the Drafting Committee considered the words unnecessary. (para 1890)
Held: The Constitution itself distinguishes the Constitution from the law in the oaths of the President (Article 60), Governor (Article 159), Union Minister (Article 75(4)), Supreme Court Judge (Article 124(6)), Comptroller and Auditor-General (Article 148(2)), State Minister (Article 164(4)) and High Court Judge (Article 219). (para 1891)
Held: Clause 7 of Part D of the Fifth Schedule and clause 21 of the Sixth Schedule explain amend as addition, variation or repeal. The word deemed there and in Articles 4 and 169 only shows Article 368's procedure is not needed. These provisions aid in fixing the wide meaning of amendment. (para 1892)
Held: Law is not used in Article 368, and Article 13(3) defines it subject to unless the context otherwise requires. The context of Article 368 shows the power operates on every part not expressly excluded. (para 1893)
Held: Even if law in Article 13(3) could include constitutional law, a special provision excludes the particular from the general, whatever the order. (para 1894)
Noted: The maxim generalia specialibus non derogant is explained from Craies, with Mirfin v. Attwood, Heston and Isleworth U.D.C. v. Grout and Harishankar Bagla v. State of M.P. (para 1895)
Held: The principle may only curtail the operation of the general law (Re Williams). On it, constitutional law as special law may be removed from law in Article 13. But amendments operate on every provision unless excluded, so the principle is not necessary. (first para 1896)
Held: Mr. Palkhivala relied mainly on implied limitations because the Golak Nath majority was narrow. The only implied limit Beg, J. can accept is that of Wanchoo, J. in Golak Nath: the power may not completely abrogate the Constitution at one stroke. It seems wide enough to erode the Constitution step by step to replace it by another. (second para 1896)
Held: The Attorney General conceded that the power cannot be so wide as to abrogate the whole Constitution and leave nothing to amend. The word amendment may by necessary implication exclude complete abrogation, though it could be done step by step by the empowered bodies using the proper procedure. (para 1897)
Held: For the reasons of Ray, Palekar, Mathew and Dwivedi, JJ., no cited case allows implied limits on Article 368. The cases bear little on a provision containing constituent power. Beg, J. refers briefly to the main ones. (para 1898)
Noted: The American cases go against implied limits on express powers: Leser v. Garnett, United States v. Sprague, Rhode Island v. Palmer and Schneiderman v. United States. (para 1899)
Noted: The Privy Council and Australian cases are summarised. McCawley v. The King; Taylor v. Attorney General of Queensland, on Section 5 of the Colonial Laws Validity Act; Webb v. Outrim, rejecting implied restrictions; and Victoria v. Commonwealth, on lack of power to tax a State outside Section 51. Queen v. Burah is cited. (para 1900)
Noted: The Canadian cases may support implications from a grant of power by the British Parliament. They do not help for our Constitution's sovereignty. The cases are the Alberta Press cases, Switzman v. Elbling, Saumur v. City of Quebec, A.G. Ontario v. A.G. Canada and Re Initiative and Referendum Act. (para 1901)
Held: In Ryan's case Mr. Palkhivala could rely only on the minority view of Kennedy, C.J. In Moore v. Attorney General for the Irish State, the majority view in Ryan's case was conceded to be correct. The Irish cases give little help. (para 1902)
Held: The Ceylon cases do not help. Bribery Commissioner v. Ranasinghe was a simple conflict of a subordinate enactment with the supreme instrument, and Trethowan's manner-and-form rule was not complied with. Liyanage v. The Queen held that the Acts could not be challenged as contrary to fundamental principles of justice. (para 1903)
Held: Liyanage shows that repugnancy to a vague natural justice cannot invalidate the enactments of a fully competent legislature. (para 1904)
Held: The question of delegation does not arise if the Constitution is the principal and the source of all valid power. The maxim delegatus non potest delegare applies against a delegate, not the principal. An amendment becomes part of the principal's own will. Those authorised under Article 368 share legislative sovereignty and constitute the principal. (para 1905)
Held: The test of consequences and implied rules of natural justice may check a legally non-sovereign body acting without the two-thirds majorities. An ordinary enactment dispensing with such rules can be assailed when Articles 14 and 19 apply. A valid amendment excluding Articles 14, 19 and 31 creates a new legislative field. Its validity cannot be challenged if the form and manner of Article 368 were observed. (para 1906)
Noted: Mr. Palkhivala appealed to natural law and natural rights. Beg, J. does not discuss the theories of Spinoza, Hobbes, Locke or Rousseau. He quotes Friedmann: the history of natural law is a search for absolute justice and its failure. Natural law has served many functions, and its only constant is the appeal to something higher than positive law. (para 1907)
Held: No natural law theory is used to defeat the plain meaning of Article 368 and the Preamble and Directive Principles. No case has done so. In Golak Nath, Subba Rao, C.J. used natural law only to strengthen a view based on Article 13(2). (para 1908)
Held: The questions should be approached from the changing needs of the social and economic order. Checks on abuse of the constituent power lie in public opinion and fear of revolt. They are political and not subject to judicial review. Courts speak only for the Constitution, the legal sovereign. Dicey's external and internal limits are cited. (para 1909)
Held: A constituent power may fail to bring the desired result, and whether a change is better is disputable. Such investigations lie outside the judicial domain once a change is made in the prescribed procedure. (para 1910)
Held: A socialistic State must have power to build a new social and economic order free from exploitation. Public good now means control of economic powers of exploitation and not a movement from status to contract. Individuals must perform social obligations before claiming rights, since rights and duties are correlative. (para 1911)
Held: The contention that a creature of the Constitution cannot create or recreate it is rejected, because clause (e) of the proviso to Article 368 allows expansion or diminution of the amending power. The power to recreate the whole Constitution by stages was already in Article 368. The framers contemplated a wide, elastic power. (para 1912)
Held: The 24th Amendment is valid, so the 25th and 29th follow. The reasons of Ray, Palekar, Mathew and Dwivedi, JJ. are adopted. Beg, J. gives special reasons on Article 31C. (para 1913)
Noted: Article 31C's first part still leaves justiciable whether a law is for the Article 39(b) and (c) principles. A colourable law would fail. The second part's declaration is meant to take the place of a judicial verdict on relevancy. State laws need the President's assent. The Attorney General and Solicitor General conceded that nexus would still be open to judicial scrutiny despite a declaration. (para 1914)
Noted: Khanna, J. declared the second part void despite the concession, as a trespass on the judicial field that removes judicial review, a pillar of the basic structure. (para 1915)
Held: The concession is justified. A declaration is not part of the law but is attached to it. It takes the place of judicial consideration of whether it is reasonable to attach the declaration. (para 1916)
Held: It need not be decided whether natural justice rules apply to the declaration, since this was not argued. The concession rests on the view that a declaration does not preclude judicial examination of nexus. Courts can see whether a law is within the field of Article 31C or only pretends to be. Both parts of Article 31C are valid. (para 1917)
Held: On the amendment of Article 31(2) and the 29th Amendment, Beg, J. adopts the reasons of Ray, Mathew and Dwivedi, JJ. (para 1918)
Held: His conclusions: (1) the Golak Nath majority view that Article 13 limits Article 368 was erroneous, and the minority view was correct. (2) the 24th Amendment is valid. (3) the 25th Amendment, including Article 31C, is valid. (4) amount in Article 31(2) conveys no norm, and fixing it or the principle is for the legislature. (5) the Article 31C declaration is like a certificate and does not oust the Court, which can check whether it is a pretence on a colourable law, and between two acceptable views on nexus the one in line with the legislative verdict should prevail. (6) the 29th Amendment is valid. (para 1920)
Held: The petitions are to be disposed of in the light of these decisions, with no order as to costs for this stage. (para 1921)

S.N. Dwivedi, J. (paras 1922-2064)

Noted: Dwivedi, J. concurs with the conclusions of Ray, J. on the 24th, 25th and 29th Amendments. He adds his own reasons because of the case's importance. (para 1922)
Noted: Seven ideas from the Stuart period resemble Mr. Palkhivala's arguments. They include: Parliament cannot take away the crown itself. It cannot hand the people to a foreign government. It cannot take away innate rights. Property is the foundation of constitutions. A creature cannot unqualify its creator (William Penn). The common law may void an Act against common right and reason (Coke in Dr. Bonham's case). And cases are decided by artificial reason of law, not natural reason (Coke). Dwivedi, J. sets them against the petitioner's seven propositions on essential features, a satellite republic, core of fundamental rights, natural-law property, a creature of the Constitution, natural-law limits and judges as determiners of implied limits. (para 1923)
Noted: In the Stuart period Parliament won against the King and the Common Law (Maitland). India too is in an age of transition (Nehru). The controversy is whether the Constitution lies in its being or its becoming, a prison-house or a free land. Foreign decisions and writings are not a safe guide. Gwyer, C.J. in the C.P. and Berar Motor Spirit case and Bose, J. in the Delhi Laws Act case are cited. Law-making and amending are both law in Canada and Ceylon because amendment there is delegated legislation. (para 1924)
Held: A Constitution expresses the genius of a people (Sapru, J. in Motilal v. State of U.P.). The Indian Constitution reflects hopes of a people emerging from colonial economy. Constitutions framed for political democracy are not a safe guide for one framed for social and economic democracy. (para 1925)
Noted: Older Constitutions sanctified the supremacy of property (Tocqueville). Ours comes from a different tradition. The ancient king was Rajan to secure the welfare of the people. Dharma and rita recognised change. The Mahabharata teaches distribution and enjoyment of the residue of wealth. (para 1926)
Noted: The Constitution bears the imprint of the philosophy of Gandhi and Nehru. Gandhi's Ahimsa has equality and absence of self-acquisition (Aparigraha). He said living above the means of a poor country is living on stolen food. (para 1927)
Noted: Nehru enriched the economic content. In his 1929 Lahore address he said the philosophy of socialism has permeated society worldwide and India must go that way. (para 1928)
Noted: Nehru said an indigenous government keeping all vested interests intact would not be freedom. Independence must also end class privileges and vested interests. (para 1929)
Noted: The common denominator of Gandhi and Nehru was humanism, with social and economic equality, which made a perfect citizen. (para 1930)
Noted: The 1929 All India Congress Committee resolution, the Karachi resolution of 1931, the 1945 Election Manifesto and the November 1947 resolution called for economic freedom and for preventing concentration of wealth. The Karachi resolution allowed property to be taken save in accordance with law. The 1945 Manifesto proposed acquiring intermediaries' land on equitable compensation. (para 1931)
Held: The National Movement was committed to equality of the weaker sections, dispersal of concentrated wealth, and acquisition of property by law with equitable compensation instead of market value. The framers embodied these in the Preamble and Directive Principles, and gave them ascendancy over Part III. Articles 15(3), 16(4), 17, 19(2) to (6), 24, 25(a) and (b), and 31(4), (5) and (6) show this. Pant called them vital principles. (para 1932)
Held: The framers distrusted every concentrated power. Concentrated economic power can manipulate prices, raise unemployment, control politics, threaten governments and endanger liberty and peace. Galbraith, Russell, Friedmann and the Monopolies Inquiry Commission Report are cited. Articles 39(b) and (c) were enacted to prevent these abuses, and Part IV has a pre-emptive significance. (para 1933)
Noted: The question now is whether the Golak Nath majority was correct. (para 1934)
Held: In Golak Nath, Wanchoo, Hidayatullah, Bachawat and Ramaswami, JJ. located the amending power in Article 368. Subba Rao, C.J. and four Judges held Article 368 gives only procedure. Dwivedi, J. agrees the power resides in the original Article 368. (para 1935)
Held: Despite the marginal note, the power is in Article 368. When the procedure is followed, the Constitution shall stand amended. Whoever can bring about a result has the power to produce it. (para 1936)
Held: Article 368 is the sole article in Part XX, headed amendment of the Constitution and not procedure for amendment. It would have been placed in Part V if only procedure were meant. The proviso also shows the power lies there. (para 1937)
Held: The power cannot be placed in Entry 97 of List I with Article 248. The framers foresaw amendment, but the residuary power is for matters unforeseen. Article 245(1) is subject to the provisions of this Constitution, so a law under Entry 97 that amends a provision would be invalid. Section 104 of the Government of India Act, 1935 gave no power to amend that Act. Residuary power was first proposed for the States. Dr. Ambedkar's letter of 21 February 1948 said draft Article 304 gave a limited constituent power to State Legislatures. (para 1938)
Held: The procedure in Article 368 is exclusive. The word only rules out other procedures, so no law can be made for a referendum or a constituent assembly. Dr. Ambedkar said the Draft Constitution eliminated such procedures. (para 1939)
Held: Dwivedi, J. cannot share Hidayatullah, J.'s view that the amending power is legislative. (para 1940)
Held: Under British rule the people had only legislative power under the Constitution Act. The headings in the Government of India Act, 1935 and in the Constitution call that legislative power. The framers placed Article 368 in a separate part, which shows they distinguished legislative from constituent power. (para 1941)
Held: Constituent power determines the frame of primary organs and sets authoritative standards. Legislative power makes laws within them. Bose, J. in the Delhi Laws Act case said the Assembly rejected the British model of supremacy and distinguished constituent power from ordinary legislation. (para 1942)
Held: Parliament's power to amend some provisions by ordinary law does not remove the distinction. In an uncontrolled Constitution the two merge. In a controlled one the procedures are distinct. India's Constitution is a hybrid. Amendment by legislative procedure is legislative power, and by Article 368 is constituent power. (para 1943)
Held: Amendment of this Constitution is the nerve-centre of Article 368. This Constitution in Articles 393, 133(2) and 367 means the whole Constitution. Every provision, including Part III, is within the amending power. (para 1944)
Held: Berubari's remark that the preamble is not part of the Constitution means only that it is not the enacting part. On 17 October 1949 the Assembly resolved that it stands part of the Constitution. (para 1945)
Held: Under Article 394, the remaining provisions came into force on 26 January 1950, including the Preamble. Alladi Krishnaswami Ayyar said it comes into force in all its plentitude. (para 1946)
Held: A statute has four parts: title, preamble, enacting clause and body. The United States preamble is part of its Constitution. The heading the Constitution of India above the Preamble shows it is part. (para 1947)
Held: As part of the Constitution, the Preamble can be amended under Article 368. Parts that speak of the past, such as this 26th day of November, 1949, may not be modifiable, but they can be deleted. (para 1948)
Held: No provision is immune from the amending power, including the Preamble and Part III. (para 1949)
Held: Amendment is a broad word. Wanchoo, Hidayatullah, Bachawat and Ramaswami, JJ., six of eleven Judges in Golak Nath, gave it the sense of addition, alteration or repeal. The Shorter Oxford, Webster's, Random House and Crawford are cited. The power is to add, alter or subtract. The whole text cannot be repealed in one step, and some part must remain. (para 1950)
Noted: The Constitution and the General Clauses Act do not define amendment, though Section 6A of the Act speaks of amendment by omission, insertion or substitution. (para 1951)
Held: Section 6A of the General Clauses Act shows amendment includes addition, substitution and omission. The framers knew this definition, so it applies to Article 368. (para 1951)
Held: An improvement can be made by omission or repeal. Hidayatullah, J. said including property in Part III was an error. Removing it improves the text and clears the way for Part IV. Every mover thinks the amendment an improvement, and the Court should not substitute its own view. (para 1952)
Held: Grants of legislative power get the widest amplitude, so constituent power in Article 368 should too. The framers had four reasons. First, errors and omissions may appear in working. Second, the Court's construction may differ from the framers' intent, as with the First Amendment after State of Madras v. Champakam Dorairajan and Kameshwar Singh v. State of Bihar. Third, the Assembly was not elected on adult franchise. Nehru said on 22 January 1947 and 8 November 1948 that a free India cannot be bound down and a later House elected on adult franchise should be able to make changes. Fourth, self-preservation implies adaptation. Kant is cited. (para 1953)
Noted: Nehru said a Constitution should be sound and basic but also flexible. (para 1954)
Held: Article 368 rests on the philosophy that every generation may adapt the Constitution. The framers were freedom fighters and would not deny that freedom to descendants. Denying radical change invites extra-constitutional change. Burke is cited. (para 1955)
Held: The proviso to Article 368 refers to change. The Shorter Oxford includes substitution in its sense. So amendment includes substituting one provision for another, such as replacing List II. Amendment and amend in Articles 107(2), 108, 110(1)(b), 111, 147, 190(3), 196(2), 197, 198(3), 199(1)(b), 200, 201 and 395 include repeal or abrogation. Amendment cannot be confined to minor changes. (para 1956)
Noted: Paragraph 7 of Schedule V lets Parliament amend the Schedule by addition, variation or repeal. Sub-paragraph (2) says such a law is not an amendment for Article 368. (para 1957)
Held: The words addition, variation or repeal explain amend and do not enlarge it. Otherwise sub-paragraph (2) could not have been enacted. Berubari held Parliament may change State boundaries under Article 3 or Article 368. The power under Article 368 cannot be narrower than that under paragraph 7. Paragraph 21 of Schedule VI is the same. (para 1958)
Held: Under Article 33 Parliament may restrict or abrogate fundamental rights of armed and police forces. By the same reasoning it may abrogate them under Article 368. (para 1959)
Held: A Constituent Assembly's power is unlimited. Article 368 gives Parliament a similar power, so Parliament acts as a Continual Constituent Assembly. (para 1960)
Held: The history of Article 368 supports the broadest meaning. Draft Article 305 on reservation of seats said they shall not be amended for ten years. (para 1961)
Held: Draft Part XIV reserved seats. Amended in draft Article 305 included repeal of reservations. As Article 305 was an exception to Article 304, amendment in Article 304 includes abrogation. The same holds for Article 368. (para 1962)
Held: Articles 35(b), 252(2), the proviso to 254(2) and 372 use alter, repeal or amend. Mr. Palkhivala says this shows repeal is conferred expressly. But amend alone would not repeal an entire law, so those provisions confer that extra power and do not narrow Article 368. (para 1963)
Held: Amendment includes repealing or abrogating every provision. Parliament may not be able to annihilate the entire Constitution at one stroke, but it can repeal all provisions in Part III. Article 368 allows the surgeon's saw as well as the needle. (para 1964)
Held: A Constitution is a politico-legal document that prescribes paramount norms. Law is a statute prescribing derivative norms. A Constitutional amendment has the same standing as a Constitution, so it is not ordinarily law. The word law is not in Article 368. (para 1965)
Held: In Article 13(1) law does not include a Constitution. No constitution existing at commencement has been shown to abridge fundamental rights. Article 13(3)(a) extends law to ordinances, orders, bye-laws, rules, regulations, notifications, custom and usage, but not the Constitution. (para 1966)
Held: The oaths in Articles 60 and 159 and those of Ministers, Judges and the Comptroller and Auditor General name the Constitution separately from the law. (para 1967)
Held: The product of the legislative procedure in Articles 107 to 111 is law. The product of Article 368 is an amendment of the Constitution, which the framers did not call law. (para 1968)
Held: Fundamental rights avail against State organs. In amending, Parliament acts as a constituent authority and not a State organ. The same body can perform functions that differ in character, like the House of Lords. The Dominion Parliament could not make the Constitution by unanimity, but as Constituent Assembly could by a bare majority. A joint sitting cannot amend, and the President may withhold assent to an amending Bill. So a law passed unanimously cannot override a fundamental right, but an amending Bill with the required majority can amend one. (para 1969)
Held: Article 245 is subject to the provisions of this Constitution, but Article 368 is not. It has only a procedural fetter and no substantive fetter. The framers knew foreign Constitutions with substantive limits, and draft Article 305 shows one. Without clear text, law in Article 13(2) cannot be expanded, because that would rule out structural reforms. Nehru's speech of 29 May 1951 on the First Amendment is cited. (para 1970)
Held: Compensation in the unamended Article 31(2) was read as full market value. This conflicts with Article 39(c). Full market value changes concentration from property to cash. The framers must have meant a conflict between Part III and Part IV to be resolved by amendment under Article 368. Bose, J. in S. Krishnan v. State of Madras said a fundamental right is something Parliament cannot touch save by an amendment of the Constitution. (para 1971)
Held: Notwithstanding anything in the Constitution frees a grant of power from restrictions. Article 368 has no non-obstante clause because law in Article 13(2) was not meant to include amendments. (para 1972)
Noted: The history of Article 13(2) gives no unmistakable answer. The Sub-Committee draft of 3 April 1947 and the 16 April 1947 and 23 April 1947 versions barred laws taking away rights. Santhanam proposed that no right be taken away except by an amendment of the Constitution, as abundant caution. Patel accepted it, and the Assembly adopted it. So the Assembly accepted that rights could be abrogated by amendment. (para 1973)
Noted: The Constitutional Adviser's October 1947 draft, Section 9(2), allowed curtailment only by amendment under Section 232. The Drafting Committee omitted the words except by way of amendment in draft Article 8(2). No explanation is on record. The remaining words are wide enough to bar abridgment even by amendment, but Article 8(2) did not catch all provisions, including Article 304. A note from the Constitutional Adviser's office said law in Section 9(2) did not include an amendment. The history does not prove the Drafting Committee gave fundamental rights supremacy over the amending power. (para 1974)
Held: Dr. Ambedkar's speeches show the amending power may abrogate or abridge fundamental rights. On 4 November 1948 he said articles in the second group may be amended by double majority without State ratification. He repeated on that date that all other articles are left to be amended by Parliament. He also spoke of three categories of articles. (para 1975)
Held: There are only three categories, so Part III fits one. His speeches should not be read as saying Part III is unamendable. The word not in the sentence about articles not mentioned in Part III or Article 304 is presumably a slip of tongue or a printer's devil. Nehru's word permanent did not mean unamendable. (para 1976)
Held: Kamath's amendment to Article 304 for Part III was rejected. No inference of unamendability follows, since members may have thought the article spacious enough. (para 1977)
Held: Constitution as by law established in the President's oath means lawfully established. It does not show the Constitution is law. (para 1978)
Held: The oath to defend the Constitution and the law does not bind the President to the Constitution as it stood on the day of the oath. Law means law for the time being in force, and the Constitution as varied. (para 1979)
Held: It is an error to treat Part III rights as sacrosanct, transcendental, natural, primordial, inalienable, inviolable or immutable. Mr. Palkhivala's argument that the people reserved these rights is rejected. (para 1980)
Held: Treating them as sacrosanct does not suit the secular virtue of the Constitution. The rights in Articles 15, 16, 17, 18, 21, 22, 23, 24, 25, 27, 28, 29, 30 and 32 came from our national experience and did not exist in India before the Constitution. (para 1981)
Held: The framers did not see the rights as sacrosanct. Nehru said that to kill the Constitution one need only make it sacred and static. (para 1982)
Held: Many provisions encumber the rights with limits. These include Articles 15(3), 16(4) and (5), 19(2) to (6), 21, 22, 23(2), 25, 26, 28(2) and 31(4), (5) and (6). Article 19(2) added friendly relations with foreign states. Article 33 lets Parliament restrict or abrogate rights of the forces. For five years from 14 May 1954, reasonableness of Article 19 restrictions was non-justiciable in Jammu and Kashmir. Article 35A, as applied there, and Article 303(2) are further examples. Article 358 suspends Article 19 and Article 359 allows suspension of Article 32 during Emergency. S.K. Das, J. in Basheshar Nath is cited. These show rights may be taken away or abridged for the good of the people. (para 1983)
Held: The rights are man-made, a gift of law in Dr. Ambedkar's words. Articles 13(2), 32 and 359 call them conferred by Part III. They are called fundamental because legislative and executive action cannot destroy them. The Constitution has no equivalent of the Tenth Amendment of the United States. The First Amendment, passed by the Assembly as Provisional Parliament, shows the intention that rights can be abrogated. (para 1984)
Held: The more rigid procedure for the matters in the proviso to Article 368 shows the framers valued federalism more than fundamental rights. (para 1985)
Noted: Wanchoo, Bachawat and Ramaswami, JJ. in Golak Nath found no implied limits. Hidayatullah, J. also did not favour the argument. He said the whole Constitution is open to amendment, with only about two dozen articles outside Article 368, because the Constitution made them fundamental. (para 1986)
Noted: Mr. Palkhivala's argument is cast as a syllogism. The first premise is that all legislative powers are subject to inherent and implied limits. (para 1987)
Noted: The second premise is that the constituent power in Article 368 is a legislative power. (para 1988)
Noted: The conclusion is that the constituent power is subject to inherent and implied limits. (para 1989)
Held: Both premises are fallacious. Some legislative powers have no such limits. The War Power is an example, and Mr. Palkhivala could name none on it. During Emergency Articles 250, 353, 358, 359 and the proviso to Article 83(2) show the War Power at its apogee. Also the constituent power in Article 368 is not legislative. (para 1990)
Held: An inherent limit said to lie in the structure of Parliament is a big assumption needing proof from the text. The Constitution has no abstract philosophy. Function works change in structure. Emergency provisions change the structure of the polity. Article 368 can be amended to enlarge the amending power. The magnitude of the power is measured by its purposes more than by Parliament's structure. (para 1991)
Held: Implied limits cannot be drawn from the vague, emotive words of the Preamble. People, Sovereign, Democratic, Republic, Justice, Liberty, Equality and Fraternity are plastic words. Slavery coexisted with democracy. Berubari held the Preamble is neither a source of powers nor of limits. (para 1992)
Held: The scheme of the Constitution creates and limits primary organs, but Article 368 re-creates and re-limits them. Article 368 controls the other provisions and is not controlled by them. Parliament acting under it is the creator, not the creature, and is supreme. Lord Halifax and Nehru are cited. (para 1993)
Held: No accurate test for basic, fundamental or essential features or the core of a right has been suggested. Appeal to the judicial mind is not enough. In the Stuart period both King and Parliament claimed to defend fundamentals. Maitland asked who is to decide what is ornament and what is substantial. (para 1994)
Noted: Lord Halifax said fundamental is a pedestal on which men set what they would not have broken. (para 1995)
Noted: Halifax said fundamental is used by the laity as sacred is by the clergy. (para 1996)
Held: The test of an essential feature is in Article 368. A provision that can be amended only by the special procedure is essential, and the more rigid the procedure, the more essential the provision. So the proviso's provisions are more essential than Part III. Fundamental rights are an essential feature but still amendable. Judicial review of legislation is amendable too, since the Constitution creates, enlarges, restricts and excludes it (Articles 32(2), 138, 139, 143, 77(2), 166(2) and 31(4), (5) and (6)). Guaranteed in Article 32(1) is good against State organs and not the constituent power. Dr. Ambedkar said the writs could be taken away by amending the Constitution. (para 1997)
Held: Article 368 has no express limits and provides for its own amendment. Parliament and half the States could repeal it. Limits cannot be added by construction. Courts cannot void an amendment as opposed to an unexpressed spirit. Kania, C.J. and Mahajan, J. in Gopalan and Mahajan, J. in Raja Suriya Pal Singh are cited. Babu Lal Pavate v. State of Bombay rejected a democratic process doctrine in Article 3. S.K. Das, J. said it is improper to import foreign democratic doctrines unrelated to the tenor, scheme and words of the provision. (para 1998)
Held: In South India Corporation v. Secretary, Board of Revenue, Subba Rao, J. said inconsistency must be spelled out from the provisions and not built on supposed political philosophy. (para 1999)
Noted: Counsel relied on Mangal Singh v. Union of India, on the Punjab Reorganisation Act, 1966. Shah, J. said Article 4 gives no power to override the constitutional scheme or form a State without effective legislative, executive and judicial organs. (para 2000)
Held: Shah, J.'s observation must be read with Chapters II, III and V of Part VI, which provide mandatory State structures (Articles 155, 168, 214). A law under Articles 2, 3 and 4 is subject to those Chapters. The case does not limit Article 368. (para 2001)
Held: Natural law is like a religion with a perpetually growing pantheon, including nature, reason, God, equality, liberty, property, laissez faire, sovereignty and even war. Treitschke invoked it to extol war (Lauterpacht). (para 2002)
Noted: The priestly heads of natural law are Chrysippus, Cicero, Seneca, Aquinas, Grotius, Hobbes, Locke, Paine, Hamilton, Jefferson and Treitschke. Its gods are in constant conflict. (para 2003)
Held: Natural law is a subjective, fighting faith. Kelsen says its principles contradict one another and positive law, and none has a better claim to be recognised. (para 2004)
Held: The framers discarded due process of law, which is another name for natural law, and adopted procedure established by law in Article 21. So they discarded a vague standard for testing amendments. They could have imposed express limits and did not. They did not surround the amending power with implied limits. (para 2005)
Noted: The Court's attitude to judicial review has gone through four phases, from Gopalan to Golak Nath. In Gopalan it showed humility. In State of Madras v. V.G. Row it was a sentinel on the qui vive. In Virendra Singh v. State of U.P. it took the armour of the Constitution. In Golak Nath it announced that Parliament cannot take away fundamental rights, moving from Parliament's supremacy to its own. (para 2006)
Held: The Court's claim to guard fundamental rights recalls the Platonic guardians. Calling rights sacred, primordial, immutable and transcendental draws on Locke, Grotius, Pufendorf, Blackstone and Kant. (para 2007)
Held: That philosophy subordinates the Directive Principles to fundamental rights and entrenches a great divide from 26 January 1950. The framers meant otherwise. Nehru said Parliament should remove the contradiction and make fundamental rights subserve the Directive Principles. (para 2008)
Held: Article 31(4), (5) and (6) show the framers gave ascendancy to the Directive Principles. The emphasis has shifted from the individual to the community. S.K. Das, J. in State of West Bengal v. Subodh Gopal is cited. (para 2009)
Held: The Constitution does not recognise the supremacy of this Court over Parliament. Neither Article 368 nor any other provision sets explicit norms for testing the substance of an amendment. It is not for the Court to make ultimate value choices. It has not set up a government of judges. The Court cannot gauge the urgency of an amendment, while Parliament knows all factors. (para 2010)
Held: Reason is a fickle guide. In the Sankari Prasad, Sajjan Singh and Golak Nath trilogy, seven Judges' opinion prevailed over thirteen. Aristotle found reason in slavery and Milton in denying free speech to Catholics. Schopenhauer is cited. Pure reason is a myth. (para 2011)
Held: Structural socio-political value choices suit the political process, not this Court. Without explicit norms and full evidence, those choices would be largely subjective. Subjectivism undermines legal certainty and the rule of law. (para 2012)
Held: Judicial review of amendments will blunt the people's vigilance. True democracy settles issues by public discussion and the vote of the elected, not by judicial opinion. The Constitution is made for the common people and not for quibbling by men with long purses. (para 2013)
Held: Unhedged amending power would not endanger minorities. Judicial review would isolate them from the political mainstream. A two-thirds majority in Parliament gives better security than a close vote of this Court. The Hindu Law of Succession has been amended while the Muslim Law of Succession has not. (para 2014)
Held: Apprehended abuse is not a reason to deny unrestricted amending power if the language permits it. Power is presumed not to be abused. Das, J. in Gopalan, Kania, C.J. in N.B. Khare, Das, J. in the Delhi Laws Act case and Patanjali Sastri, J. in Anwar Ali Sarkar are cited. Parliament is responsible to the people. (para 2015)
Noted: Das, J. in State of West Bengal v. Subodh Gopal said there is no protection against the legislature on taxation, life or liberty beyond what the Constitution gives. Occasional vagaries are the price of democracy. Stretching the language to make an ideal Constitution is making a new one. (para 2016)
Held: The argument of fear is invalid. Parliament has vast powers over war and currency and no court has restricted them. Democracy rests on self-criticism and self-correction. (para 2017)
Held: India's conditions do not suit the Court acting as a Hildebrand. The House of the People is chosen by the people and the Court is not. The Court would win a permanent place in people's hearts if it shifts the focus of review from minority protection to protection of the weaker sections. (para 2018)
Held: The poor and starved millions need the Court's protection. Without an explicit mandate, the Court should not strike down an amendment that tries to wipe every tear from every eye. The Brihadaranyaka Upanishad, the chakra and satyameva jayate are cited. The chakra means the Constitution is a becoming, and satyam means sacrifice and humanism. (para 2019)
Noted: Sections 2 and 3 of the 24th Amendment are described. Section 2 adds clause (4) to Article 13. Section 3 changes the marginal note to Power of Parliament to amend the Constitution and procedure therefor. It renumbers the unamended Article 368 as clause (2) and adds clause (1) calling the power constituent power to amend by addition, variation or repeal, notwithstanding anything in this Constitution. It says the President shall give his assent. It adds clause (3), under which Article 13 does not apply to amendments. (para 2020)
Held: Except presidential assent, the 24th Amendment was already in the unamended Article 368. It is declaratory and removes doubts cast by Golak Nath. It is valid. (para 2021)
Held: The unamended Article 368 had a procedural limit. Since Article 368 provided for its own amendment, Parliament could amend the procedure. The change that the President shall give his assent is upheld. (para 2022)
Held: Assume the unamended Article 368 was subject to Article 13(2) and implied limits. Those restrictions were then part of Article 368, so they could be removed by amending it. The phrase notwithstanding anything in this Constitution sweeps them away. The amending power is now free of Article 13(2) and any implied limits. (para 2023)
Held: The whole 24th Amendment is valid. Section 2 of the 25th Amendment substitutes an amount for compensation in Article 31(2), and lets it be given in the manner the law specifies. (para 2024)
Noted: The amended Article 31(2) bars challenge that the amount is inadequate or is given otherwise than in cash. (para 2025)
Noted: A proviso protects minority educational institutions. The amount must not restrict or abrogate the right under Article 30(1). (para 2026)
Noted: Section 2 adds clause (2B) to Article 31, so that Article 19(1)(f) does not affect a law under Article 31(2). (para 2027)
Noted: The history of Article 31(2) explains Section 2. Nehru moved draft Article 24 on 10 September 1949 and said compensation could be questioned only for a fraud on the Constitution. Alladi Krishnaswami Ayyar and K.M. Munshi supported him. Munshi gave the Bardoli lands example. In State of West Bengal v. Bela Banerjee this Court held compensation meant full cash equivalent, against the manifest intention of the framers. (para 2028)
Noted: The Fourth Amendment of 1955 added that no law be questioned on the ground that compensation is not adequate. In P. Vajravelu v. Special Deputy Collector, Subba Rao, J. said Parliament accepted the Bela Banerjee meaning. A law must provide a just equivalent or specify principles to find it. Parliament would have used price or consideration otherwise. (para 2029)
Noted: Subba Rao, J. in Vajravelu also said neither the principles nor the just equivalent can be questioned for inadequacy. Principles not relevant to the property or its value at acquisition are not principles under Article 31(2). (para 2030)
Noted: In Union of India v. Metal Corporation, Subba Rao, J. said the validity of principles is open to scrutiny, but adequacy of the result is not. (para 2031)
Noted: These two decisions neutralised the Fourth Amendment. State of Gujarat v. Shantilal Mangaldas overruled Metal Corporation. Shah, J. said the justiciability of principles would create formidable problems and obstruct the Article 39 Directive Principles. (para 2032)
Noted: Shah, J. added that principles cannot be challenged as not giving a just equivalent. An illusory sum would be a charter of arbitrariness. (para 2033)
Noted: Shantilal Mangaldas revived the Fourth Amendment. R.C. Cooper v. Union of India in substance overruled it, restored the old position and added the Article 19(1)(f) test. This constrained Parliament to enact Section 2. (para 2034)
Held: Given this history, the concept of compensation cannot be imported into Article 31(2). The Court should not neutralise Section 2 using notions from the old article. Dictionary meanings of amount, principle and adequate are cited. (para 2035)
Held: Amount is not a term of art and has no specific legal meaning. It may be paid partly in cash and partly in kind, over many years. Article 19(1)(f) no longer affects Article 31(2). Reasonableness cannot be imported. The notion that principles must be relevant to compensation is jettisoned. The amount fixed by law cannot be questioned for inadequacy, and so the amount determined by principles is unquestionable too. (para 2036-2037)
Held: The minority proviso fortifies this reading, because a proviso takes out something included in the main part. So the amount in the main part may abrogate the right of property of all and sundry. The notions of arbitrary, illusory or fraudulent amount cannot be imported. The law may be virtually confiscatory, but not literally confiscatory, as some amount must be paid. Section 25 of the Contract Act is an analogy. (para 2038)
Held: Article 31(2) differs from Articles 31A, 31B and 31C, under which nothing may be paid. The amount is not justiciable, but legislatures are guided by the value, nature and circumstances of the property and the object of acquisition. The owner should not be paid for value contributed by society. Social justice also applies. Article 14 remains a bar. The amended Article 31(2) abrogates the right of property, but it is constitutional as it falls within the 24th Amendment. (para 2039)
Noted: Section 3 of the 25th Amendment adds Article 31C. (para 2040)
Noted: The proviso says a State law needs the President's assent. (para 2041)
Held: Section 3, like Section 2, is made under Article 368 as amended. Its validity cannot be assailed. (para 2042)
Noted: Mr. Palkhivala says Article 31C authorises legislatures to contravene Articles 14, 19 and 31 and so delegates the power of amendment. (para 2043)
Noted: He also stresses the second part lets legislatures shelter laws unrelated to Article 39(b) and (c). (para 2044)
Held: The second part's exclusion of judicial review is not an innovation. Articles 77(2), 166(2), 103(1), 192(1), 311(2) and (3) and 329(a) have similar ouster clauses. The second part excludes review to a limited extent. (para 2045)
Held: Under the first part the Court sees that the law is relevant to Article 39(b) and (c) and that it gives effect to those principles. Whether it subserves the common good or prevents common detriment is a question of fact. If it does not, the law does not prevail over Articles 14, 19 and 31. The Court can test the ends and the means. (para 2046)
Held: The second part bars challenge on the ground that the law does not give effect to the policy. So only sufficiency of efficacy is non-justiciable. The Court still decides whether the law has relevancy to distribution of ownership and control of resources, the operation of the economic system and concentration of wealth. If not, it is void if it offends Articles 14, 19 and 31. (para 2047)
Held: A provision with a declaration but without relevancy is void if it offends those articles, unless it is subordinate, ancillary or consequential to a relevant provision or an integral part of its scheme. (para 2048)
Held: It is not necessary to decide whether Parliament may delegate constituent power, since Article 368(2) says only Parliament amends. Assuming it may not, the question is whether Article 31C authorises legislatures to amend. (para 2049)
Noted: The legislative power on Article 39(b) and (c) comes from Article 246 and the Lists. It is restricted by fundamental rights, because Article 13(2) bars laws violating them. (para 2050)
Held: Article 31C removes the Article 13(2) bar only for Articles 14, 19 and 31 and only for laws relevant to Article 39(b) and (c). Those articles stay operative for all other laws. Article 31C is a saving clause, placed in one article for economy. (para 2051)
Held: The effect is brought about directly by the constituent power in Article 31C and not by the protected laws. So there is no delegation. Harishankar Bagla v. State of Madhya Pradesh on Section 6 of the Essential Supplies (Temporary Powers) Act, 1946 is applied. Parliament itself declared its will there, and the delegate's power was only to make the order. (para 2052)
Held: These observations apply to Article 31C, so there is no delegation of constituent power. (para 2053)
Held: Laws claiming protection do not themselves amend Articles 14, 19 and 31, so they need not follow Article 368's procedure. (para 2054)
Held: Distributed in Article 39(b) may include nationalisation. The State is the people's trustee, and nationalised property is owned by the people through the State. Fabian Socialism essays, Joad and Robson are cited. (para 2055)
Noted: Prof. K.T. Shah moved an amendment vesting natural resources in the country collectively. (para 2056)
Noted: Dr. Ambedkar replied that the draft language was more extensive and included Shah's proposition. (para 2057)
Held: In Dr. Ambedkar's view, nationalisation is included in distributed. (para 2058)
Held: The 29th Amendment places Kerala Act 35 of 1969 and Kerala Act 25 of 1971 in the Ninth Schedule. The argument that Article 31B is dovetailed with Article 31A and so limited to agrarian reform is rejected. Patanjali Sastri, C.J. in State of Bihar v. Kameshwar Singh said Article 31B is not merely illustrative of Article 31A. (para 2059)
Noted: Mahajan, J. in Visweshwar Rao v. State of M.P. said Article 31B stands independent of Article 31A. (para 2060)
Noted: N.B. Jeejeebhoy v. Assistant Collector, Thana, per Subba Rao, J., is cited. (para 2061)
Held: The argument that the Amending power cannot abrogate the property right is rejected for the reasons on the 24th and 25th Amendments. The 29th Amendment is valid. (para 2062)
Held: His summary: (1) the Golak Nath majority is not correct and should be overruled. (2) amendment authorises varying, repealing or abrogating every provision, including Part III. (3) there are no inherent or implied limits. (4) the 24th, 25th and 29th Amendments are valid in full. (5) the amount under Article 31(2) cannot be questioned in court. (6) the last part of Article 31C does not oust the courts' jurisdiction to examine relevancy to distribution of ownership and control of resources, the economic system and concentration of wealth. (para 2063)
Held: The Constitution Bench will now decide the case according to law. (para 2064)

Y.V. Chandrachud, J. (paras 2065-2262)

Noted: Chandrachud, J. wanted to avoid a separate judgment but cannot. Counsel consumed so much time that little was left for the Judges. There was little time after the arguments to exchange drafts, and he has fully known the views of only four colleagues. He regrets disagreeing with the Chief Justice and Hegde, J. on crucial points. The views of Ray and Palekar, JJ. are fairly near his own, but he states his reasons differently. He states his opinion firmly without fear or favour. (para 2065)
Noted: He will not reproduce every counsel's argument. He acknowledges the immense contribution of Mr. Palkhivala, the Attorney-General, the Advocate-General of Maharashtra and the Solicitor-General. (para 2066)
Noted: Orfield called the American amending power sui generis. The matter here is also sui generis. The largest Bench sat for the longest time. The Court was invited to examine parallel clauses of 71 Constitutions. He believes there is no international yardstick to measure the width of an amending power. (para 2067)
Noted: The Court was taken through the writings of scores of scholars, whose conflicting views are listed, from Granville Austin to Arnold Zurcher. (para 2068)
Noted: At one end, Garner and Munro say an unamendable Constitution is the tyranny of time. At the other end, Conrad, Marbury and Skinner say an amending body cannot change the pillars supporting its own authority or destroy the Constitution. The writers cannot conclude the controversy, which must be decided on the terms of the Constitution. Andre Tunc's change of view and Ivor Jennings's remark about trusting neither politicians nor constitutional lawyers are cited. Chandrachud, J. will make spare and studied use of such views. (para 2069)
Noted: Theories on property were cited. Some defend it as the basis of other freedoms. Others call it the weakest right and say it was an error to include it in Part III. The decision must depend on the Constitution's aim of a synthesis between Fundamental Rights and Directive Principles. Fundamental Rights have pride of place and Directive Principles have a place of permanence. Together they form the core and the conscience of the Constitution. (para 2070)
Noted: The UN Charter, the Universal Declaration of Human Rights and the European Convention of 1950 were cited. The answer depends on striking a balance between the rights of individuals and the general good. (para 2071)
Noted: Grotius, Hobbes, Locke, Wolff, Rousseau, Blackstone, Kant, Bentham and Hegel were cited on natural law. The argument is that inalienable rights cannot be damaged at their core. The answer depends on the validity of the core idea and on whether the Constitution recognises natural rights that the people reserved without qualification. (para 2072)
Noted: The Constituent Assembly debates were relied on by all. The speeches of Nehru, Patel, Prasad, Radhakrishnan, Ambedkar, Pant, Munshi, Alladi Krishnaswami Ayyar and others were read. The Court cannot decide the amplitude of the amending power on what amendments to Article 13 were moved and dropped. The First Amendment's passage by the Provisional Parliament does not relieve the Court of interpreting. Nehru said no Constitution is permanent and it must be flexible. He also said the House has moral authority to amend. (para 2073)
Held: The Court decides legal or constitutional authority, not moral authority. Dr. Ambedkar's speech raises no estoppel. The reference to Part III may be a slip (even Homer nods). His and others' remarks were at best their opinion of law. The legal position is for the Court. (para 2074)
Noted: Counsel cited many decisions. He does not accept Walter Berns that the Court must act undemocratically to preserve democracy. He does not accept Dale Gibson that courts may use all ingenuity to preserve civil liberties. Judges, unlike Manu, are not law-givers. The Constituent Assembly considered and rejected substantive due process. Lochner v. New York and Holmes's dissent are described. The Drafting Committee chose procedure established by law in Article 21. (para 2075)
Noted: Decisions of the Privy Council, American, Australian, Irish, South African and Indian courts were cited, including counsel's briefs in the Rhode Island case and the Sprague District Court judgment. (para 2076)
Noted: Marbury v. Madison (1803) said an Act repugnant to a written Constitution is void. (para 2077)
Noted: The Court ended with the Bank Nationalisation Case, where 10 of 11 Judges held the 1969 Act violated Article 31(2). Chandrachud, J. lists the Privy Council, Federal Court, American, American State, Irish, South African, Canadian and Australian cases cited in between. (para 2078)
Noted: Most of the Privy Council decisions bear on the distinction between controlled and uncontrolled Constitutions and so between constituent and ordinary legislative power. This distinction answers some of the petitioner's contentions on Articles 13 and 368. (para 2079)
Noted: American decisions must be used with care, given the differences in birth of the two Constitutions, their purposed vagueness and Article 5 against Article 368. American courts have rejected implied limits (Corwin). Livermore, McCleary and Ex parte Dillon explain amendment. (para 2080)
Noted: The Australian cases (Engineers', State of Victoria, Melbourne Corporation) bear on whether implications arise from the federal structure. (para 2081)
Noted: The two South African decisions show that a sovereign legislature must still follow the form and manner required for law-making. (para 2082)
Noted: The Canadian cases bear on legislative competence over liberties. Six views exist on civil liberties and none has been finally preferred. (para 2083)
Noted: In Ryan's case, the three Judges of the Irish High Court and two Supreme Court Judges rejected contentions like the petitioner's. Kennedy, C.J. alone read limits. Its value is persuasive only. Each side called it an Irish Golak Nath. (para 2084)
Held: Only a few decisions need close consideration. The Court's task is to construe the Constitution and not judgments. Frankfurter, Jackson and Patterson, JJ. are cited on limits to power. But those landmarks cannot defeat the hopes of India's half-clad, half-starved, half-educated millions, which can be voiced only through elected representatives. The Constitution should not be construed in a narrow and pedantic sense (Lord Wright; Higgins, J.). Gwyer, C.J.'s broad and liberal spirit and the maxim ut res magis valeat quam pereat are cited. The present represents the will of the people. The core of social commitment is the quintessence of the Constitution. Law is not a brooding omnipotence in the sky (Holmes). (para 2085)
Held: Dictionaries and law lexicons were cited at length for amendment, constituent, Constitution, distribute and law. Dictionaries alone do not give the meaning of words in a Constitution. These words must be read in the context of a single complex instrument (Lord Wright). They are shaped by the social philosophy and by the aim of Part III's freedoms to attain the ideals of Part IV. A word is the skin of living thought (Holmes). (para 2086)
Noted: The case is sui generis. He must find a specific answer through 71 Constitutions, many dictionaries, texts and cases. (para 2087)
Noted: The main argument was in Writ Petition No. 135 of 1970. Kerala Act 35 of 1969 came into force on 1 January 1970, and Act 25 of 1971 on 7 August 1971. The Kerala High Court struck down some provisions of the 1969 Act, and this Court upheld that on 26 April 1972 in Kunjukutty Sahib v. State of Kerala. (para 2088)
Noted: The petition was filed under Article 32 on 21 March 1970. The 24th, 25th, 26th and 29th Amendment Acts were passed meanwhile. The 24th Amendment got assent on 5 November 1971. Voting figures: 24th: Lok Sabha 384 for and 23 against, Rajya Sabha 177 and 8. 25th: Lok Sabha 355 and 20, Rajya Sabha 166 and 20. 29th: Lok Sabha 286 and 4, Rajya Sabha 170 and none. (para 2089)
Noted: In August 1972 the petitioner was allowed to challenge the three Amendments, which came into force on 5 November 1971, 20 April 1972 and 9 June 1972. (para 2090)
Noted: The 24th Amendment's Section 2 adds clause (4) to Article 13. Section 3 changes the marginal heading, inserts clause (1) in Article 368, makes presidential assent obligatory and adds clause (3). (para 2091)
Noted: The 25th Amendment changes Article 31(2) and adds clause (2B) and Article 31C. The paragraph mentions Article 79, as printed. (para 2092)
Noted: The 29th Amendment put the two Kerala Acts into the Ninth Schedule. The petitioner's challenge to them depends on the validity of the 29th Amendment. (para 2093)
Noted: The main questions are four. What is the true ratio and effect of Golak Nath? Should it be upheld? If incorrect, what implied limits exist on Article 368? Are the 24th, 25th and 29th Amendments valid? (para 2094)
Noted: The First Amendment of 18 June 1951 abridged fundamental rights to a large extent. Section 4 inserted Article 31A, Section 5 inserted Article 31B and Section 14 added the Ninth Schedule. (para 2095)
Noted: In Sankari Prasad Singh Deo v. Union of India, Patanjali Sastri, J. for a unanimous Court rejected the Article 13(2) challenge. Law ordinarily includes constitutional law, but ordinary law made under legislative power is distinct from constitutional law made under constituent power. Without a clear indication to the contrary, fundamental rights are not immune from amendment. (para 2096)
Noted: The Fourth Amendment of 27 April 1955 provided that no law under Article 31(2) can be questioned for inadequacy of compensation. Section 3 substituted a wide clause (1) in Article 31A, with retrospective effect, with a non-obstante clause covering matters (a) to (s). No challenge was ever made to these amendments. (para 2097)
Noted: The Seventeenth Amendment, in force on 20 June 1964, redefined estate in Article 31A(2)(a) with retrospective effect and added 44 Acts to the Ninth Schedule, making 64 in all. (para 2098)
Noted: In Sajjan Singh v. State of Rajasthan, Gajendragadkar, C.J. with Wanchoo and Raghubar Dayal, JJ. held that amendment of the Constitution covers all provisions and law in Article 13(2) means ordinary legislative law. Hidayatullah and Mudholkar, JJ. concurred in the result but doubted this view, saying Article 368 might give only procedure. They said they were not giving a final opinion. These doubts sowed the seeds of Golak Nath. (para 2099)
Noted: Golak Nath was decided by 11 Judges on 27 February 1967. It challenged Punjab Act 10 of 1953 and Mysore Act 10 of 1962 as amended by Act 14 of 1965. The Acts were in the Ninth Schedule. If the Seventeenth Amendment was valid, they could not be challenged. (para 2100)
Noted: Subba Rao, C.J. delivered the leading majority judgment for himself and Shah, Sikri, Shelat and Vaidialingam, JJ. Hidayatullah, J. concurred in a separate judgment. Wanchoo, J. delivered the minority judgment for himself, Bhargava and Mitter, JJ. Bachawat and Ramaswami, JJ. concurred with it separately. (para 2101)
Noted: The leading majority's first conclusion was that fundamental rights are primordial rights necessary for human personality and preserved by the Constitution as rights of the people. (para 2102)
Noted: The Constitution gives the freedoms a place of permanence, and the people reserved them to themselves. Parliament's incapacity arises from the scheme of the Constitution and the nature of the freedoms. (para 2103)
Noted: The majority said Article 368 only prescribes a procedure and does not confer the power to amend. (para 2104)
Noted: The majority located the power in Articles 245 and 248 with Entry 97 in List I. (para 2105)
Noted: The majority said Parliament cannot destroy the structure of the Constitution but can modify provisions within the framework, though not so as to take away or abridge fundamental rights. (para 2106)
Noted: The majority said there is no distinction between the power to amend the Constitution and the ordinary power to make laws. (para 2107)
Noted: The majority said Article 13(2), with an inclusive definition, prima facie takes in constitutional law. (para 2108)
Noted: The majority tentatively said the residuary power could be used to call a Constituent Assembly. (para 2109)
Noted: The majority held the Seventeenth Amendment, and the First, Fourth and Sixteenth Amendments, constitutionally invalid. Declaring them invalid would cause chaos, so by prospective invalidation they remained valid except for the future. (para 2110)
Noted: In future, Parliament cannot amend Part III to take away or abridge fundamental rights. (para 2111)
Noted: Hidayatullah, J. agreed with the final decision. His first point was that the power of amendment must be possessed by the State, and amendment is not limited to minor changes. (para 2112)
Noted: He said Article 368 outlines a process that, if followed strictly, results in amendment, but gives power to no particular person. (para 2113)
Noted: He said the procedure, if a power at all, is a legislative power that is sui generis and outside the three Lists. (para 2114)
Noted: He said there is no distinction between ordinary laws and laws for amendment, so amendments fall within Article 13(2). (para 2115)
Noted: He said the whole Constitution is open to amendment except about two dozen articles that the Constitution made fundamental. (para 2116)
Noted: He said fundamental rights cannot be abridged by the ordinary amending process. Parliament must amend Article 368 to convoke a Constituent Assembly, which could then abridge them. (para 2117)
Noted: He said Parliament cannot amend Article 368 to give itself constituent powers over fundamental rights, as that is against Article 13(2). (para 2118)
Noted: He said the majority's conclusion was correct on acquiescence and not on prospective invalidation. The First, Fourth and Seventeenth Amendments were part of the Constitution by long acquiescence. (para 2119)
Noted: Wanchoo, J.'s leading minority conclusions in Golak Nath are summarised. First, both procedure and power to amend are in Article 368 and not in Entry 97 of List I. (para 2120)
Noted: Amendment must have its full meaning. It covers addition, substitution or deletion, and not only improvement of details. (para 2121)
Noted: Under Article 368, Parliament may amend any provision by following the procedure. (para 2122)
Noted: Law in Article 13(2) covers only ordinary legislative laws and not amendments under Article 368. (para 2123)
Noted: The amending power is constituent and is not subject to implied limits based on basic features. (para 2124)
Noted: Bachawat, J. agreed with Wanchoo, J. His first point was that no limit could be gathered from Article 368, so every part could be amended. (para 2125)
Noted: He said the Constitution is so distinct from laws that it cannot be a law or a legislative act. (para 2126)
Noted: He said Article 368 shows amend means change, which is not necessarily an improvement. (para 2127)
Noted: He said it was unnecessary to decide whether basic features such as the republic form or federal structure could be amended. (para 2128)
Noted: Ramaswami, J. reasoned similarly. (para 2129)
Noted: He held that Article 13(3) does not mention constitutional amendments. If the framers wanted Part III outside Article 368, they would have said so. (para 2130)
Noted: He held the Preamble, distribution of legislative power, parliamentary government and the courts' establishment are not beyond amendment. (para 2131)
Noted: He held every article can be amended with no room for implication. (para 2132)
Held: Six of eleven Golak Nath Judges (Wanchoo, Hidayatullah, Bhargava, Mitter, Bachawat and Ramaswami) rejected the argument that Article 368 prescribes only procedure, and rejected Entry 97 as the source. Subba Rao, C.J. with four colleagues and Hidayatullah, J. held that there is no distinction between constituent and legislative power and law includes an amending law. Subba Rao, C.J. suggested the residuary power to call a Constituent Assembly. Hidayatullah, J. suggested amending Article 368 first. All eleven Judges agreed that even fundamental rights could be taken away, but by different methods. The remaining five held that Parliament itself could do it. (para 2133)
Held: The leading majority did not decide whether Article 368 itself could be amended to confer power over every provision. Golak Nath was decided on the unamended Article 368. That question arose only after an actual amendment of Article 368. Its observations on future restraints on Parliament cannot be the ratio of the majority judgment. The Judges did not consider that Part III might be amended after first amending Article 368, as the 24th Amendment now does. (para 2134)
Noted: The Golak Nath petitioners won a Pyrrhic victory. The laws were upheld, with the consolation that posterity would enjoy the walnut tree they planted. A storm now threatens the tree. (para 2135)
Held: Six of eleven Judges held that Article 368 confers the power and that the power is not traceable to Entry 97 of List I with Articles 245, 246 and 248. Chandrachud, J. respectfully adopts this view. (para 2136)
Held: Part XX is entitled Amendment of the Constitution, not Procedure for Amendment. Article 368, its only article, deals with both procedure and product. The marginal note was only a catchword. The article names no authority but prescribes a self-executing procedure after which the Constitution shall stand amended. The history of residuary power since the Government of India Act, 1935 shows a prominent subject would have been in List I. Entry 97 belongs exclusively to Parliament, but in matters in the proviso Parliament lacks exclusive power to amend. Draft Article 304(2) gave limited power to State Legislatures, which had neither residuary power nor Amendment of the Constitution in List II. Article 245 is subject to the provisions of this Constitution, so no amendment could be made under residuary power. (para 2137)
Noted: With the power in Article 368, the question is whether it is unfettered or subject to express, implied or inherent limits. (para 2138)
Noted: Counsel for the petitioner urged five propositions. Amendment is not a term of art. Article 368 carries vital implications and amendment cannot cover damage or destruction of essential features. Article 13(2) is an express limit. Implied and inherent limits bar damaging essential features or basic elements. The consequences of an absolute power must be considered. He says Article 368 is not a death-wish of the Constitution and Parliament cannot be its Official Liquidator. The respondents disputed each proposition. (para 2139)
Held: Amendment is not a term of art. Dictionaries and lexicons show several shades of meaning. (para 2140)
Noted: Some American State courts, in Livermore v. Waite, McFadden v. Jordan and Foster v. Evatt, said amendment implies a change within the original lines that improves it. Others, in Edwards v. Lesseur, Ex parte Dillon and Staples v. Gilmer, accepted a wider meaning including revision. (para 2141)
Noted: Three meanings are generally given: (a) improve or remove an error; (b) make changes that do not alter, damage or destroy basic features or fundamental principles; (c) make any changes whatsoever. (para 2142)
Held: These texts show the difficulty, but the Court must go to its own Constitution to decide whether amendment in Article 368 is ambiguous. (para 2143)
Held: In the context of Article 368, amendment is neither ambiguous nor amorphous. It has a definite import. (para 2144)
Held: The proviso to Article 368 shows amendment has the widest amplitude. It requires State ratification if such amendment seeks to make any change in clauses (a) to (e). So the article envisages amendment by change, which means substitution or alteration (Oxford; Webster's). It does not mean only an improvement within the original lines. (para 2145)
Noted: Paragraph 7 of Part D of the Fifth Schedule and paragraph 21 of the Sixth Schedule let Parliament amend those Schedules by addition, variation or repeal. Such a law is not an amendment for Article 368. (para 2146)
Held: Two things emerge. Amendment takes in addition, variation or repeal. Such an amendment would fall within Article 368 if it were not expressly excepted. (para 2147)
Noted: Amendment is used in many articles of the original Constitution, including Articles 4(1) and (2), 108(4), 109(3) and (4), 111, 114(2), 169(2), 196(2), 198(3) and (4), 200, 201, 204(2), 207, 240(2), 274(1) and 304(b). (para 2148)
Held: In almost every one of those articles, amendment would be by addition, variation or repeal. (para 2148, continued; the source prints a stray number 349 here)
Held: The original Constitution used various words for the amending power. Article 35(b) says altered, repealed, amended. Article 243(1) says repeal or amend. The proviso to Article 254(2) says adding to, amending, varying or repealing. Article 392(1) says modification, addition or omission. No calculated design lies behind these expressions, which reflect a failing to attain elegance. Reading more than meets the eye is like reading Browning's poems. (para 2149)
Held: Constitutions of several countries use amendment, alteration, revision and change interchangeably. Liberia, Trinidad and Tobago, Somalia, Jordan, Kuwait, Lebanon, Vietnam, Belgium, Burundi, Monaco, Costa Rica, Cuba and Nicaragua are cited. (para 2150)
Held: Dr. Conrad says amendment cannot be restricted to improvement, and complete articles may be removed or replaced. The word occurs in at least 57 of 71 Constitutions. It is inconceivable that it is of doubtful import. (para 2151)
Noted: The Government of India (Third Amendment) Act, 1949 substituted Section 291 of the 1935 Act, giving the Governor General power to amend by addition, modification or repeal. On 17 September 1949 the Assembly debated Article 304 using amendment simpliciter, and rejected Kamath's amendment No. 3239 to add whether by way of variation, addition or repeal. The source here misprints the date of the Third Amendment Act. (para 2152)
Held: This history does not show amendment was used to curtail the power. The 1949 Act repealed Section 291 and substituted a new one, so amend included addition, alteration and repeal. Different words do not necessarily change meaning (Maxwell; Heman Alreja). (para 2153)
Held: Five of eleven Golak Nath Judges gave amendment a wide meaning. Wanchoo, Hidayatullah and Bachawat, JJ. did so expressly. The leading majority and Ramaswami, J. did not consider it. Hidayatullah, J. said new matter may be added and old matter removed or altered. (para 2154)
Held: Amendment in Article 368 has a clear and definite import, a power of the widest amplitude. Clause (e) of the proviso lets the amending power itself be amended. No express restraint exists on that power. (para 2156)
Held: Article 368 imposes no express limits, because the power is in substance a power to clarify the original intention and adjust it to new challenges. The power of amendment is a safety valve and must be equal to the need. Friedrich says failure of amendment may lead to revolution. A strict construction is out of place in a Constitution, and a construction giving the widest amplitude is adopted (British Coal Corporation v. Rex). (para 2157)
Noted: A majority in Golak Nath located the power in Article 368. A differently composed majority held an amendment is law under Article 13(2). That finding of the leading majority and Hidayatullah, J. is the nerve of Golak Nath and needs close consideration. (para 2158)
Held: Article 13(2) echoes Article 245. Article 245 gives the power to make laws, and Article 13(2) limits it. Article 13(2) is paramount, because Article 245 is subject to all provisions. (para 2159)
Held: Article 368 avoids the word law because constitutional law differs from ordinary law. Constitutional law is the fundamental, superior law (Jennings, Britannica, Dicey). A federal legislature is a subordinate body whose laws are like bye-laws. (para 2160)
Held: Articles 3, 4, 169, paragraph 7 of the Fifth Schedule and paragraph 21 of the Sixth Schedule show the distinction. They take matters that would fall in Article 368 into the ordinary legislative sphere by saying such laws are not amendments. (para 2161)
Held: Article 13(1) voids pre-Constitution laws inconsistent with Part III. Article 13(2) does the same for later laws. Both deal with ordinary laws and not constitutional laws. (para 2162)
Held: The argument that Articles 395 and 372 preserved constitutional laws of Indian States has no substance. It is doubtful the States had Constitutions properly so called. Any such Constitutions ceased on integration. So Article 13(1) does not include constitutional laws. (para 2163)
Held: Article 13(3)(a) defines law to include ordinance, order, bye-law, rule, regulation, notification, custom or usage. It is surprising amendments were overlooked if Article 13(2) took them in. The Constitution is the fundamental law of superior obligation (Corpus Juris Secundum, Weaver, Burgess). Unless expressly included in Article 13(3)(a), it falls outside Article 13(2). (para 2164)
Held: In America, State legislatures initiating constitutional amendments do not exercise ordinary legislative power. Under Article V neither Congress nor the States legislate in proposing and ratifying. (para 2165)
Held: The distinction between constitutional and ordinary law lies in the criterion of validity. A constitutional law's validity is inherent, while an ordinary law is tested against the Constitution. The Golak Nath majority did not give due importance to this. In a controlled Constitution, Parliament acts in a constituent capacity under Article 368. (para 2166)
Held: The procedure differs. Under Article 368 the Bill must be initiated for that purpose, passed by two-thirds present and voting, and State-ratified in proviso cases. An ordinary Bill passes by a simple majority, or at a joint sitting. Article 368 has no joint sitting. Ratification is by resolutions, which is not an ordinary legislative process. (para 2167)
Held: Lord Birkenhead in McCawley used controlled and uncontrolled for what Bryce and Dicey called rigid and flexible. A controlled or rigid Constitution has a different amending procedure from ordinary lawmaking. (para 2168)
Held: In an uncontrolled or flexible Constitution the procedures are the same, and any repugnant law repeals the Constitution pro tanto (McCawley). (para 2169)
Held: The true division is between flexible and rigid Constitutions. The United Kingdom and the former Kingdom of Italy are flexible. The United States is rigid (Strong). India is, as a whole, controlled or rigid, since no article can be amended except by Article 368. Article 4 with Articles 2 and 3, Article 169, paragraph 7 of the Fifth Schedule and paragraph 21 of the Sixth Schedule allow amendment by ordinary law but are excepted from Article 368. Schedules V and VI are a Constitution within a Constitution. (para 2170)
Held: This distinction shows the true difference between legislative and constituent power, which the Golak Nath majority did not stress. In a rigid Constitution the power to make laws is the genus. The differentia is the procedure. An ordinary procedure means legislative power, and a special one means constituent power. (para 2171)
Held: In a rigid Constitution like ours, a law amending the Constitution is made in constituent power and is constitutional law. Only laws tested against the Constitution fall within Article 13(2). (para 2172)
Held: An amendment under Article 368 is not law within Article 13(2). So it cannot be void for taking away or abridging Part III rights. (para 2173)
Held: Fundamental rights are unique, whether called transcendental, inalienable or primordial (Lieber). There is no magic in the words. Their importance does not put them beyond the amending power. Article 13(2) does not cover amendment and Article 368 does not except Part III. (para 2174)
Held: Fundamental rights cannot be tinkered with, and the Constitution ensures they are not a plaything of a special majority. Amendments need a majority of the total membership and two-thirds of those present and voting in each House, with State ratification in proviso matters. The Rajya Sabha is a perpetual body, elected by Legislative Assemblies, which insures somewhat against gusts of public opinion. (para 2175)
Noted: The petitioner's argument that the amending power, wherever located, has inherent and implied limits seemed plausible at first but is rejected on scrutiny. (para 2176)
Noted: The argument is that implication plays a large part in constitutional construction. Implied limits are implicit in the scheme, and inherent limits inhere in the authority. Most essential features are basic human rights matching the Universal Declaration of Human Rights. Sovereignty resides in the people, and altering essential features is an attribute of it. Parliament is a creature of the Constitution and cannot destroy its essential features. Otherwise the judicial, executive and legislative powers could be destroyed. The Preamble is beyond amendment and is the Constitution's identity card. (para 2177)
Noted: In the alternative, counsel says the power cannot damage the core of rights or the essential features. He says U.S.A., Canada, Australia and Ireland courts, this Court, the Federal Court and the Privy Council accept implied limits. (para 2178)
Noted: The respondents say there is no scope for implied limits. They say uncertainty would result, the Preamble can be amended, the Constitution does not recognise natural rights, and world opinion is against inherent limits. (para 2179)
Noted: In Golak Nath, Subba Rao, C.J. said the argument had considerable force but did not decide it. Hidayatullah, J. said the whole Constitution is open to amendment. Wanchoo, J. rejected implied limits. Bachawat, J. found it unnecessary to decide. Ramaswami, J. rejected it. (para 2180)
Held: The natural rights argument fails. Part III itself shows the theory was not recognised. Article 13(2) speaks of rights conferred. Article 32 says the right to move the Supreme Court for rights conferred is guaranteed. Article 19 gives seven freedoms only to citizens. Article 33 lets Parliament restrict rights of the armed forces. Article 359(1) lets the President suspend them. Articles 25 and 26 show religion is subject to society's paramount interest (Venkataramana Devaru; Bourne v. Keane). So citizens and non-citizens have certain rights only because the Constitution conferred them. (para 2181)
Held: The natural right theory is by and large repudiated today. The social contract is untenable. Calhoun, Story, Burgess and Willoughby are cited. The lost title-deeds may be lost again. (para 2182)
Noted: The Preamble argument is that it is part of the Constitution but not a provision, and its record of history cannot be amended. Berubari and Story's Commentaries are relied on. (para 2183)
Held: The contention that the Preamble is not a provision is impossible to accept. The Constituent Assembly voted that it forms part. It came into force on 26 January 1950. Craies and Halsbury are cited. (para 2184)
Held: Absence of an express prohibition is highly relevant for inferring no implied prohibition (Queen v. Burah; State of Bombay v. Nauratan Das Jaitha Bai; Sardar Inder Singh v. State of Rajasthan). Those cases concerned conditional legislation. (para 2185)
Held: Courts cannot void an Act as opposed to a spirit not manifest in words. Kania, C.J. in Gopalan and S.R. Das, J. in Keshav Madhav Menon are cited. The language of Article 368 is clear, so it must have full effect despite mischievous consequences. Judges do not concern themselves with policy (Vacher & Sons). Context includes the context of the times. (para 2186)
Held: If the text is explicit, it is conclusive in what it directs and forbids. Consequences cannot affect construction (A.G. Ontario v. A.G. Canada). Marshall, C.J. in Providence Bank v. Billings said a power may be abused but the Constitution is not a corrective for every abuse. The powers of war, peace, finance and preventive detention can be abused yet were conferred. Article 22(7) is an example. Holmes's dissent in Lochner and Bank of Toronto v. Lambe are cited. Trust in elected representatives is the cornerstone of democracy. Learned Hand says liberty lies in the hearts of men. (para 2187)
Held: Where the language of an Act is clear, effect is given whatever the consequences (Craies). (para 2188)
Held: Apart from constitutional limits, no law can be struck down as unreasonable or unjust. State of Bihar v. Kameshwar Singh is cited. Mahajan, J. found the Act unjust but powerless to rectify injustice perpetrated by the Constitution. No provision in the original Constitution can be struck down, and the same applies to amendments made strictly in compliance with Article 368. Amendments pulpate with the vitality of the Constitution itself. (para 2189)
Held: The justification is that a construction introducing uncertainty must be avoided (Subba Rao, J. in Collector of Customs, Baroda v. Digvijaysinhji Spinning and Weaving Mills). The petitioner concedes that the power to amend is necessary and that the First Amendment's changes to Articles 15 and 19 were properly made. The crux is that the impugned amendments also aim to confer the blessings of liberty on the community. Chandrachud, J. sees formidable difficulties in finding an objective standard for the core and the periphery, and considers them inseparable. (para 2190)
Held: The lurid consequences do not scare him. People decide through representatives in trust, and trustees' breaches do not abolish trusts. The questions about a presidential system, monarchy, theocracy, a 99 per cent majority and a 50-year term are answered from history, including the 1640 Short and Long Parliaments. The sanction against political crimes lies in the hearts of men. If the people through Parliament want a King, let them. Holmes said he is not God and so lets them do what the Constitution does not forbid. (para 2191)
Held: Jefferson said the earth belongs to the living and the dead have no power over it, so there must be opportunity for change. President Wilson said a Constitution is a vehicle of life that must grow and develop with the nation. (para 2192)
Held: The theory of immunity of instrumentalities rests on an implied prohibition. This Court rejected it in State of West Bengal v. Union of India. Sinha, C.J. called it an exploded doctrine from McCulloch v. Maryland, decisively rejected by the Privy Council and practically given up in the United States. Wynes and Dixon, J. in the Essendon Corporation case trace its retreat. (para 2193)
Held: The theory of implied or inherent limits has not received wide recognition. McCawley v. R. upheld the dissent of Isaacs and Rich, JJ., which says limits must come from express or necessarily implied limits and not from general concepts. Bribery Commissioner v. Ranasinghe arose under a Ceylon Constitution that is a near parallel to ours, which the Golak Nath leading majority did not notice. Counsel there conceded the only limit was the procedure in Section 29(4), and the Privy Council took the widest view of the amending power. (para 2194)
Noted: Three American decisions suffice: Rhode Island v. Palmer, United States v. Sprague and Schneiderman v. United States. (para 2195)
Held: In Rhode Island the majority gave no reasons. The briefs show the 18th Amendment was challenged on implied limits, among other grounds. The Supreme Court did not accept them and upheld the Amendment. (para 2196)
Held: In Sprague the District Court of New Jersey had voided the 18th Amendment on inherent limits. The Supreme Court did not even try to support that ground. The appeal turned on other grounds. The Supreme Court saw no merit in theoretical limits. (para 2197)
Noted: In Schneiderman, the Government sought to cancel a naturalisation (a foreign national becoming a citizen) certificate on the ground that the appellant was a communist, who thus misrepresented attachment to the principles of the Constitution. (para 2198)
Held: Schneiderman won, and the main foundation was that fundamental principles of the Constitution are open to amendment by a lawful process. (para 2199)
Held: Corwin, Cooley and Rottschaefer say the American Supreme Court has never accepted implied or inherent limits on Article V. It brushed such arguments aside as unworthy of serious attention. The only limit is the equal suffrage of States in the Senate. (para 2200)
Held: The Canadian cases concern legislative competence of provinces over individual freedoms or criminal matters, and not the power to amend the Constitution. The Canadian Bill of Rights, 1960, allows an Act to override it by declaration. At least six views exist and the Supreme Court has approved none (Schmeiser). Hess, Saumur, Switzman and Chabot need no discussion. (para 2201)
Noted: Duff, C.J. in the Alberta Press Case and three Judges in Saumur invoked implied limits from Sections 17 and 50 of the British North America Act. Duff, C.J. was willing to let Parliament legislate to protect the right. (para 2202)
Held: The true ratio of Attorney-General of Nova Scotia v. Attorney-General of Canada is that neither the federal nor the provincial bodies can receive the other's powers by delegation. Chabot v. School Commissioners is a Quebec Court of Appeal decision. Casey, J. said religious rights are in man's nature and cannot be taken away. No Supreme Court Judge shared this, and it conflicts with Henry Birks & Sons v. Montreal. (para 2203)
Noted: A Constitution is a living organism evolved to suit the nation's history and genius. Only a few other foreign decisions are mentioned briefly. (para 2204)
Held: Ryan's case upheld the Oireachtas amendment, which deleted Article 47 and extended an 8-year period to 16 years. The High Court and the Supreme Court by 2 to 1 upheld it. Kennedy, C.J. dissented on implied limits. Article 50 had no power to amend itself, while clause (e) of the proviso to Article 368 does, so Kennedy, C.J.'s reasoning is not relevant. In Moore v. Attorney General for the Irish State the validity of the Ryan amendment was conceded and the Privy Council said rightly. (para 2205)
Held: Taylor v. Attorney General of Queensland, relied on in reply, turned on the Colonial Laws Validity Act. Isaacs, J. meant that a power to alter a colonial legislature's Constitution did not include eliminating the Crown. Canaway and Wynes say all provisions of the Australian Constitution, including Section 128, can be amended, though Section 128 gives no express power to amend itself. (para 2206)
Held: Liyanage v. The Queen held that the Ceylon legislature's powers cannot be cut down by vague expressions such as fundamental principles of British law. (para 2207)
Held: The 24th Amendment is valid. Amendments under Article 368 fall outside Article 13(2), and clause (4) of Article 13 says so. The old Article 368 gave the power and not just procedure, and the new marginal heading makes this clear. The power is wide and untrammelled and constituent. Clause (c) on presidential assent was rightly not argued against. Clause (d) excluding Article 13 reflects the correct interpretation. (para 2208)
Held: The 24th Amendment merely clarifies the true law and is valid. (para 2209)
Noted: The 25th Amendment, in force on 20 April 1972, has two effective sections. Original Article 31(2) required compensation. Bela Banerjee, by a unanimous Bench under Patanjali Sastri, C.J., held that principles must ensure a just equivalent. The Fourth Amendment of 27 April 1955 met that decision. Vajravelu Mudaliar, per Subba Rao, J., said Parliament's use of the same words accepted Bela Banerjee, and principles and just equivalent could not be questioned for inadequacy. The Madras Act's principles were upheld, but the Act fell under Article 14 because full compensation was paid under the Land Acquisition Act. (para 2210)
Noted: Union v. Metal Corporation, a Bench of two Judges (Subba Rao, C.J. and Shelat, J.), said a law must provide a just equivalent or lay down relevant, non-arbitrary principles. This departed from Vajravelu. (para 2211)
Noted: In State of Gujarat v. Shantilal Mangaldas, Shah, J. for four Judges overruled Metal Corporation. Principles could be challenged as irrelevant, but not because the result was not a just equivalent. An illusory sum would be a charter of arbitrariness. (para 2212)
Noted: R.C. Cooper v. Union (Bank Nationalisation), by 10 to 1 of 11 Judges, in substance overruled Shantilal. It held that compensation as equivalent, paid in bonds that substantially reduce value, impairs the guarantee. (para 2213)
Held: This chain of decisions brought uncertainty and defeated the clear intent of the Fourth Amendment. Shah, J. said Bela Banerjee and Subodh Gopal raised more problems than they solved and obstructed Article 39. Subba Rao, J. said Parliament would have used price or consideration. Parliament has partly done this by substituting amount. (para 2214)
Held: Clause (2B) of Article 31 was added because Cooper overruled a long line holding Article 19(1)(f) and Article 31(2) mutually exclusive. Gopalan, Chiranjit Lal Chowdhuri, Sitabati Devi, Shantilal and H.N. Rao are cited. (para 2215)
Noted: The petitioner says Article 31C subverts seven essential features and destroys ten fundamental rights, seven unconnected with property. He says it destroys constitutional supremacy with a blank charter, subordinates fundamental rights to Directive Principles and abrogates the manner and form of Article 368. He says the declaration destroys judicial review and lets legislatures harm minorities. He says it keeps rights unamended but protects laws by legal fiction. He calls it a monstrous outrage meant to legalise despotism. (para 2216)
Held: Though Article 31C is pregnant with possible mischief, it cannot be declared unconstitutional by well-recognised judicial tests. (para 2217)
Noted: The idea of Directive Principles came from Eire, which took it from Republican Spain (Jennings). Articles 38 and 39 rest principally on Article 45 of the Eire Constitution, which draws from Papal Bulls. Article 39(b) and (c) are quoted. Article 31C was introduced to achieve them. (para 2218)
Held: Part III gives a place of pride to fundamental rights, and Part IV gives a place of permanence to Directive Principles. Fundamental rights are the ark of the Constitution. But what is fundamental in governance cannot be less significant than what is fundamental in an individual's life. Justiciability does not bear on relative importance. The basic object of Part III's freedoms is achieving the ideals of Part IV. Article 37 requires the State to apply them in making laws. The freedom of a few may have to be abridged to ensure the freedom of all. Parts III and IV together are the conscience of the Constitution (Austin). The Directive Principles must not become a mere rope of sand. (para 2219)
Held: The new Article 31(2) still binds the Legislature to give the owner a sum of money in cash or otherwise. It may lay down principles or fix the amount. It does not authorise confiscation, since it requires an amount or principles. If expropriation were intended, the framers could have said so. The obligation to pay an amount does not mean no amount at all. (para 2220)
Held: The amount cannot be illusory. One cannot tell an owner I will take your fortune for a farthing. (para 2221)
Held: There is an important qualification. The amount cannot be challenged as inadequate, because adequacy relates to market value. The principles also cannot be challenged for inadequacy in that sense. An amount with no reasonable relationship to market value may still be valid. But an amount with no relationship at all, none whatsoever, becomes illusory and may be challenged. (para 2222)
Noted (obiter): The Court is concerned with the amendment and not a law under Article 31(2). As at present advised, courts may question such a law if the amount is illusory, the principles are wholly irrelevant, acquisition is for a collateral purpose, the law offends other constitutional safeguards, or it is a fraud on the Constitution. Principles bearing on social good are not irrelevant. (para 2223)
Held: There is no substance in the submission that clause (2B), excluding Article 19(1)(f), violates natural justice. Amendments partake of the vitality of the Constitution. There is no reason to suppose a legislature would acquire property without natural justice, because social good does not require condemning a man unheard. (para 2224)
Noted: Article 31C is a gordian knot, which a Judge cannot cut like Alexander. Its text is set out. (para 2225)
Held: Article 31C protects only law and not executive action. The wider definition in Article 13(3) is limited to Article 13. So Article 31C does not violate Article 31(1). Law in Article 31C may include all incidents of law-making. (para 2226)
Noted: Before the Fourth Amendment of 27 April 1955, Articles 31A and 31B, from the First Amendment, wholly excluded Part III for laws acquiring estates. The reason was that society's rights are paramount over the individual's. (para 2227)
Held: Only laws giving effect to the policy under Article 39(b) or (c) get Article 31C's protection. Under clause (b), resources are to be distributed to subserve the common good. Under clause (c), the economic system must not concentrate wealth to the common detriment. Apart from the declaration, the nexus between the law and Article 39(b) and (c) is a condition precedent. The declaration cannot be a cloak for laws without relationship to the objective. (para 2228)
Held: Part IV's objectives are not limited to agrarian reform. The Fourth and Seventeenth Amendments extended the principle of the First Amendment, and the 25th extended it further. Article 31C operates like Article 31A in agrarian matters. It is a logical extension of Article 31(4) and (6) and Article 31A. (para 2229)
Held: Article 31C does not delegate the amending power to State Legislatures or to Parliament. It identifies a class of legislation and exempts it from Articles 14, 19 and 31. Articles 31(4) and (6) identified laws by period of enactment, Articles 31(2) and 31A by subject, and Articles 15(4) and 33 by objective. None involves delegation. Article 31C does not create the field of legislation. It creates an immunity in a pre-existing field. Article 31A, which refers to subject matter, and Article 31C, which refers to object, do not differ in principle. (para 2230)
Held: The argument that Article 31C violates the form and manner of Article 368 overlooks that the article was born after full compliance with it. The power to amend Article 368 includes the power, by complying with its form and manner, to authorise another body to make amendments. Golak Nath's leading majority and Hidayatullah, J. suggested a Constituent Assembly, which is no different in principle. The point does not arise because Article 31C does not delegate. (para 2231)
Held: The latter part of Article 31C does not exclude the court's jurisdiction to decide whether the law is for giving effect to the policy under Article 39(b) or (c). Laws can be upheld only if there is a direct and reasonable nexus with that policy. The law cannot be questioned on the ground that it does not give effect to the policy, and no court can find whether a law in fact gives effect to its true policy. Otherwise Prohibition and Gambling laws would have gone long ago. (para 2232)
Held: Section 3 of the 25th Amendment, which introduces Article 31C, is valid. (para 2233)
Noted: The petitioner argues that if the two Kerala Acts do not fall within Article 31A(1)(a), they cannot get Article 31B protection. The source prints Act 33 of 1969 here, which is a misprint for Act 35 of 1969. (para 2234)
Held: The validity of Article 31B has been accepted in a series of decisions and the petitioner did not challenge it. Kameshwar Singh, Visweshwar Rao and N.B. Jeejeebhoy rejected the argument. The opening words without prejudice to the generality of the provisions contained in Article 31A only show that scheduled Acts get immunity even if Article 31A does not apply. Otherwise Article 31B would be redundant. The 29th Amendment is valid. (para 2235)
Held: The Constituent Assembly debates are not admissible as aids to construction. Kania, C.J. in Gopalan, following the Sydney Municipal Council case and United States v. Wong Kim Ark, allowed reference only on whether a phrase was considered at all. Mukherjea, J. allowed resort with great caution for latent ambiguities. State of Travancore-Cochin v. Bombay Co. is cited. Subba Rao, C.J. and Bachawat, J. in Golak Nath said they did not use the speeches to interpret Article 368. (para 2236)
Noted: The Advocate-General argued that this Court's attitude to debates changed from Gopalan to Golak Nath, the Privy Purse case and Union of India v. H.S. Dhillon. (para 2237)
Held: The Privy Purse and Dhillon cases did not rely on the speeches to interpret provisions. Shah, J. used Patel's speech for circumstances. Mitter, J. used a speech without discussing admissibility. In Dhillon the Chief Justice only found the debates matched his reading. (para 2238)
Held: Relying on debates is hazardous. Speakers have different motives, and the Party Whip means that silent voters cannot be assumed to agree. The safest course is to gather intention from the language. Debates are used only as explained in Gopalan. (para 2239)
Noted: Chandrachud, J. differs from the Golak Nath majority with deference and no pleasure. He hopes the long debate serves the welfare of the common man. If, despite the large powers now conceded to Parliament, the social objectives become a dustbin of sentiments, woe betide those in whom the country placed faith. (para 2240)
Noted: His conclusions follow. (para 2241)
Held: The Golak Nath leading majority was not correct to hold that the then Article 368 only prescribed procedure and that the power lay in Entry 97 of List I with Articles 245, 246 and 248. (para 2242)
Held: The view of the leading majority and Hidayatullah, J. that there is no distinction between an ordinary law and an amending law is incorrect. Article 13(2) takes in only ordinary laws. (para 2243)
Held: The view that Parliament cannot amend the Constitution to abrogate or take away fundamental rights is incorrect. (para 2244)
Held: The amending power of the then Article 368 was wide and unfettered and reached every part and provision. (para 2245)
Held: The Preamble is part of the Constitution and is not outside Article 368. (para 2246)
Held: There are no inherent limits on the amending power in the sense that it cannot damage or destroy the essential features or fundamental principles of the Constitution. (para 2247)
Held: The 24th Amendment only declares the true legal position and is valid. (para 2248)
Held: Sections 2(a) and 2(b) of the 25th Amendment are valid. Courts cannot question a law under Article 31(2) because the amount is inadequate or not given in cash. Courts can question such a law on five grounds. (i) The amount is illusory. (ii) The principles are wholly irrelevant to fixing the amount. (iii) The acquisition or requisition is for a collateral purpose. (iv) The law offends constitutional principles other than Article 19(1)(f), which clause (2B) excepts. (v) The law is a fraud on the Constitution. (para 2249)
Held: Section 3 of the 25th Amendment, which introduced Article 31C, is valid. Despite the declaration's purported conclusiveness, the Court can ascertain whether the law gives effect to the policy under Article 39(b) or (c). If there is no direct and reasonable nexus, the law gets no immunity from challenge under Articles 14, 19 or 31. (para 2250)
Held: The 29th Amendment is valid. The two Kerala Acts in the Ninth Schedule are protected by Article 31B. (para 2251)
Held: Each party bears its own costs. (para 2252)
Noted: Drafts of other Judges' opinions arrived as Chandrachud, J. was closing. He hears a faint whisper of Lord Dunedin and asks Are first thoughts best?. (para 2253)

Authorities

Paragraph numbers run straight through the whole judgment (paras 1-2264). Each line gives the case, its citation as printed in the judgment, how the Court used it and the paragraph.

Indian cases on amendment and fundamental rights

Sankari Prasad Singh Deo v. Union of India ([1952] S.C.R. 89) — followed by Ray, Khanna, Mathew, Dwivedi and Chandrachud; law in Article 13(2) means ordinary law; upheld the First Amendment. Paras 1396-1397, 1579, 1827, 2096, 2200.
Sajjan Singh v. State of Rajasthan ([1965] 1 S.C.R. 933) — followed; upheld the Seventeenth Amendment; Hidayatullah and Mudholkar, JJ. doubted. Paras 1398, 1889, 2099.
I.C. Golak Nath v. State of Punjab ([1967] 2 S.C.R. 762) — overruled by the majority in this case, in parts; its ratio and prospective overruling are examined by every Judge. Paras 1399, 1568, 1844, 2100-2119, 2133-2134, 2242-2244.
A.K. Gopalan v. State of Madras ([1950] S.C.R. 88) — Article 13 as abundant caution; use of Assembly debates; no spirit-based limits. Paras 1657, 1662, 1998, 2186, 2236.
In re Berubari Union ([1960] 3 S.C.R. 250) — the Preamble is not a source of power or limits. Paras 1527, 1681, 1945, 1992.
In re Delhi Laws Act, 1912 ([1951] S.C.R. 747) — Bose, J. on constituent power against ordinary legislative power; Das, J. on presumption against abuse. Paras 1924, 1942, 2015.
State of Madras v. Champakam Dorairajan ([1951] S.C.R. 525) — struck down reservation under Article 29(2); led to the First Amendment; Directive Principles subsidiary to fundamental rights. Paras 1752, 1762, 1953.
Quareshi v. State of Bihar ([1959] S.C.R. 629) — Directive Principles must not abridge fundamental rights; a mere rope of sand. Para 1762.
Romesh Thapar v. State of Madras ([1950] S.C.R. 594) — public order is not security of the State; led to the amendment of Article 19(2). Para 1752.
State of Bihar v. Shailabala Devi ([1952] S.C.R. 654) — qualified Romesh Thapar. Para 1752.
State of Madras v. V.G. Row ([1952] S.C.R. 597) — the Court as sentinel; reasonableness is objective. Paras 1596, 1756, 2006.
Virendra Singh v. State of Uttar Pradesh ([1955] 1 S.C.R. 415) — Court's assertive role in judicial review. Para 2006.
Municipal Committee v. State of Punjab ([1969] 3 S.C.R. 447) — said due process has no application; Mathew, J. disagreed with respect. Para 1757.
Collector of Customs v. Sampathu ([1962] 3 S.C.R. 786) — reasonable against due process. Para 1757.
Abbas v. Union of India ([1971] 2 S.C.R. 446) — vague restrictions can be struck down under Article 19. Para 1757.
Basheshar Nath v. Commissioner of Income Tax ([1959] Supp. 1 S.C.R. 528) — S.K. Das, J. on Articles 33 to 35 and natural rights. Paras 1742, 1983.
State of West Bengal v. Subodh Gopal ([1954] S.C.R. 587) — Article 19 rights as natural rights; the social interest; no judicial rewriting of the Constitution. Paras 1739, 2009, 2016.
State of West Bengal v. Union of India ([1964] 1 S.C.R. 371) — rejected immunity of instrumentalities; sovereignty in the people. Paras 1668, 1722, 2193.
Mangal Singh v. Union of India ([1967] 2 S.C.R. 109) — Article 4 law needs effective legislative, executive and judicial organs; no implied limit on amendment. Paras 1545-1546, 1710-1711, 2000-2001.
Madhav Rao Scindia v. Union of India, the Privy Purse case ([1971] 3 S.C.R. 983) — use of a speech; admissibility of debates. Paras 1657, 2237-2238.
Union of India v. Harbhajan Singh Dhillon ([1971] 2 S.C.R. 779) — use of Assembly speeches. Paras 1657, 2237-2238.
Bennett Coleman and Co. v. Union of India ([1972] 2 S.C.C. 788) — Mathew, J.'s own dissent on the commercial press. Para 1833.
Kameshwar Singh v. State of Bihar and State of Bihar v. Kameshwar Singh ([1952] S.C.R. 889) — Article 31B is independent of Article 31A; Mahajan, J. on an unjust Act. Paras 1953, 2059, 2189, 2235.
Visweshwar Rao v. State of Madhya Pradesh ([1952] 1 S.C.R. 1020) — Article 31B independent of Article 31A. Paras 2060, 2235.
N.B. Jeejeebhoy v. Assistant Collector, Thana ([1965] 1 S.C.R. 636) — Article 31B is a constitutional device. Paras 1598, 2061, 2235.
Kunjukutty Sahib v. State of Kerala ([1972] 2 S.C.C. 364) — upheld the Kerala High Court's striking down of provisions of Act 35 of 1969. Para 2088.
Babu Lal Pavate v. State of Bombay ([1960] 1 S.C.R. 905) — no democratic process doctrine in Article 3. Para 1998.
South India Corporation v. Secretary, Board of Revenue ([1964] 4 S.C.R. 280) — inconsistency must be spelled out from the provisions. Para 1999.
Collector of Customs, Baroda v. Digvijaysinhji Spinning and Weaving Mills ([1962] 1 S.C.R. 896) — avoid constructions that cause uncertainty. Para 2190.
Ram Jawaya Kapur v. State of Punjab ([1955] 2 S.C.R. 225) — Cabinet formulates policy. Para 1809.
Sita Ram Bishambhar Dayal v. State of U.P. (1972, 29 S.T.C. 206) — executive and the Legislature. Para 1810.
Harishankar Bagla v. State of Madhya Pradesh ([1955] 1 S.C.R. 380) — Section 6 of the Essential Supplies Act was not a delegation. Paras 1895, 2052.
Naresh v. State of Maharashtra ([1966] 3 S.C.R. 744), Budhan v. State of Bihar ([1955] 1 S.C.R. 1045) — judiciary as State under Article 12. Para 1765.
Nagpur Improvement Trust v. Vithal Rao — cited on equal protection. Para 1238.
Punjab Province v. Daulat Singh — cited in Reddy, J.'s opinion. Para 1252.
S. Krishnan v. State of Madras ([1951] S.C.R. 621) — Bose, J.: a fundamental right can be touched only by amendment. Para 1971.
Motilal v. Government of Uttar Pradesh (A.I.R. 1951 All. 257) and Balwant Rai v. Union of India (A.I.R. 1968 All. 14) — Directive Principles; the welfare State; Article 37 binds judicial law-making. Paras 1866-1867, 1925.
Venkataramana Devaru v. State of Mysore ([1958] S.C.R. 895) — religion subject to society's interest. Para 2181.
Keshav Madhav Menon ([1951] S.C.R. 228) — spirit is gathered from the words. Para 2186.
Raja Suriya Pal Singh v. State of U.P. ([1952] S.C.R. 1056) — no void by unexpressed spirit. Para 1998.
State of Bombay v. Nauratan Das Jaitha Bai ([1951] 2 S.C.R. 51) and Sardar Inder Singh v. State of Rajasthan ([1957] S.C.R. 605) — absence of express prohibition. Para 2185.
Dr. N.B. Khare v. State of Delhi ([1950] S.C.R. 519) and State of West Bengal v. Anwar Ali Sarkar ([1952] S.C.R. 284) — presumption against abuse of power. Para 2015.
In re C.P. and Berar Sales of Motor Spirit Act ([1939] F.C.R. 18) — Gwyer, C.J.: words take colour from context; broad and liberal spirit. Paras 1621, 1924, 2085.
Bhanji Munji, Kochuni, Ram Singh — Articles 19(1)(f) and 31(2) as exclusive. Para 1575.
Chiranjit Lal Chowdhuri ([1950] S.C.R. 869), Sitabati Devi ([1967] 2 S.C.R. 949) and H.N. Rao ([1969] 2 S.C.R. 392) — mutually exclusive line. Para 2215.

Indian cases on compensation under Article 31(2)

State of West Bengal v. Bela Banerjee ([1954] S.C.R. 558) — compensation means just equivalent; overridden by the Fourth Amendment. Paras 1572, 1801, 2028, 2210.
P. Vajravelu Mudaliar v. Special Deputy Collector ([1965] 1 S.C.R. 614) — just equivalent and principles; inadequacy not justiciable. Paras 1572, 1802, 2029-2030, 2210.
Union of India v. Metal Corporation ([1967] 1 S.C.R. 255) — relevant, non-arbitrary principles; overruled in Shantilal. Paras 1803, 2031, 2211.
State of Gujarat v. Shantilal Mangaldas ([1969] 3 S.C.R. 341) — overruled Metal Corporation; charter of arbitrariness. Paras 1572, 1804, 1812, 2032-2033, 2212.
R.C. Cooper v. Union of India, the Bank Nationalisation Case ([1970] 3 S.C.R. 530) — compensation is money equivalent; Articles 19(1)(f) and 31(2) not exclusive; reversed by the 25th Amendment. Paras 1572, 1805, 2034, 2078, 2213.

Privy Council, Ceylon and Irish cases

McCawley v. The King ([1920] A.C. 691) — uncontrolled Constitution; ordinary Act amends it pro tanto. Paras 1649, 1900, 2168-2169, 2194.
Bribery Commissioner v. Pedrick Ranasinghe ([1965] A.C. 172) — special procedure must be followed; no limits on Section 29(4) amendment. Paras 203-212, 1649-1651, 1903, 2194.
Liyanage v. The Queen ([1967] 1 A.C. 259) — no limit from vague fundamental principles; separation of judicial power. Paras 1559-1560, 1696-1697, 1903-1904, 2207.
Mohamed Samsudeen Kariapper v. Wijesinha ([1968] A.C. 717) — pro tanto amendment need not be express. Para 1830.
Attorney-General for New South Wales v. Trethowan ([1932] A.C. 526) — manner and form. Paras 289-295, 1566, 1903.
Taylor v. Attorney-General of Queensland (23 C.L.R. 457) — Isaacs, J.'s remark rests on the Colonial Laws Validity Act. Paras 250-253, 1707-1709, 1900, 2206.
Webb v. Outrim ([1907] A.C. 81) — implied limitation rejected. Paras 940, 1349-1350, 1699, 1900.
Queen v. Burah ([1878] 3 A.C. 889) — plenary legislative power; absence of express prohibition. Paras 468-478, 586, 1719, 1900, 2185.
Attorney-General for Ontario v. Attorney-General for Canada ([1912] A.C. 571) — no topic of self-government withheld; text explicit is conclusive. Paras 1702, 1901, 2187.
Re Initiative and Referendum Act ([1919] A.C. 935) — power of the Crown through the Lieutenant Governor; Haldane's dictum. Paras 1705-1706, 1901.
Moore v. Attorney-General for the Irish State ([1935] A.C. 484) — concession that Amendment No. 16 was regular; rightly. Paras 406-416, 1041-1043, 1695, 1902, 2205.
Ryan's Case ([1935] Irish Reports 170) — Kennedy, C.J.'s implied limits; majority upheld the amendment; meaning of amendment. Paras 1345, 1620, 1694-1695, 1902, 2084, 2205.
Bank of Toronto v. Lambe ([1887] 12 A.C. 575) — power not denied for fear of abuse. Paras 330-339, 993, 1725, 2187.
Vacher and Sons v. London Society of Compositors ([1913] A.C. 107) — consequences; no covert censure of the legislature. Paras 1724, 2186.
Bourne v. Keane ([1919] A.C. 815) — religion and society. Para 2181.
Huth v. Clarke ((1890) 25 Q.B.D. 391) — delegation does not mean parting with power. Para 1673.
Royal Court Derby Porcelain Co. v. Raymond Russell ([1949] 2 K.B. 417) and Galloway v. Galloway ([1956] A.C. 299) — re-enactment presumption. Paras 1815-1816.
Ridge v. Baldwin ([1964] A.C. 40) — what cannot be defined may still exist. Paras 314-315, 953, 1684.
Gallie v. Lee, Cassell v. Broome — plurality of opinions. Para 1602.
Mirfin v. Attwood, Heston and Isleworth U.D.C. v. Grout, Re Williams — special against general provisions. Paras 1895-1896.
Bentley v. Rotherham, Warburton v. Loveland — cited in Palekar, J.'s opinion. Para 1349.
Burke v. Lennon, Ryan v. Lennon, Attorney-General v. Queen Insurance Co., Charles Russell v. The Queen, Dr. Bonham's case — authorities on constituent power and common law. Paras 610-611, 1345, 1381, 1757, 1923.
British Coal Corporation v. Rex ([1935] A.C. 500) — widest construction of constitutional powers. Paras 915, 2157.
Edwards v. Attorney-General — cited in Palekar, J.'s opinion. Para 1287.

American cases

Marbury v. Madison (2 L. ed. 69) — a law repugnant to a written Constitution is void. Para 2077.
McCulloch v. Maryland (4 Wheaton 316) — Constitution proceeded from the people; immunity of instrumentalities. Paras 296-303, 1666, 1721, 2193.
Rhode Island v. Palmer, the National Prohibition Cases (253 U.S. 350) — implied limits on amendment not accepted. Paras 353-363, 573-578, 698, 898, 1687, 1899, 2196.
Leser v. Garnett (258 U.S. 130) — the 19th Amendment upheld. Paras 765-768, 898, 1006-1012, 1579, 1687.
United States v. Sprague (282 U.S. 716) — mode of ratification; District Court reversed. Paras 353-363, 1687, 2195, 2197.
Hawke v. Smith, Dillon v. Gloss — ratification and amendment cases. Paras 353-363, 573-578, 898, 1006-1012, 1296.
Schneiderman v. United States (320 U.S. 118) — fundamental principles can be changed by lawful process. Paras 1690, 1899, 2195, 2198-2199.
United States v. Dennis (183 F.2d 201) and Whitehill v. Elkins (389 U.S. 54) — amendment as valid as the original text. Paras 898, 1297-1301, 1691-1692.
Lochner v. New York (198 U.S. 45) — Holmes's dissent; due process as an economic theory. Paras 1756, 2075.
Graves v. New York (306 U.S. 466) — end of immunity of instrumentalities. Paras 1602, 1721.
Missouri v. Holland, Henry v. United States, Providence Bank v. Billings, Ex parte Grossman, Chisholm v. Georgia, Cohens v. Virginia, Dodge v. Woolsey, United States v. Fisher, United States v. Wong Kim Ark, McPherson v. Blacker, Ferguson v. Skrupa, Jacobson v. Massachusetts, Joint Anti-Fascist Refugee Committee v. McGrath, Shelley v. Kraemer, Beauharnais v. Illinois, United States v. Associated Press, Livermore v. Waite, Edwards v. Lesueur, McFadden v. Jordan, Foster v. Evatt, Staples v. Gilmer, Ex parte Dillon — cited for construction, immunities, speech, ratification and the meaning of amendment. Paras 934, 1178-1179, 1284, 1296, 1376-1377, 1420, 1495, 1625-1627, 1655, 1658, 1666, 1668, 1675, 1721, 1757, 1765, 1834, 2141, 2236.

Canadian and Australian cases

Alberta Press Case ((1938) 2 D.L.R. 81) — Duff, C.J.'s implied bill of rights. Paras 548, 1547-1549, 1700, 2202.
Switzman v. Elbling ((1957) 7 D.L.R. 337) — Abbott, J.'s dictum; Padlock law. Paras 548, 607-608, 1547-1549, 1700, 2201.
Saumur v. City of Quebec ([1953] 4 D.L.R. 641) — preamble and religious freedom. Paras 1701, 1901, 2201.
Attorney-General of Nova Scotia v. Attorney-General of Canada ([1951] S.C.R. 31) — no delegation between federal and provincial bodies. Paras 1553, 2203.
Chabot v. School Commissioners ((1947) 12 D.L.R. (2nd) 796), Rex v. Hess, Henry Birks and Sons v. Montreal — religious rights; weight of the Quebec ruling. Paras 548, 2203.
Victoria v. Commonwealth (45 A.L.J. 251) — implied limits on Commonwealth power; payroll tax. Paras 241-249, 603-605, 1027-1031, 1036-1037, 1358, 1567, 1713-1720, 1900.
Amalgamated Society of Engineers v. Adelaide Steamship Co. ((1920) 28 C.L.R. 129) — Engineers' case. Paras 240, 1714.
Melbourne Corporation v. Commonwealth, South Australia v. Commonwealth, West v. Commissioner of Taxation, Essendon Corporation v. Criterion Theatres, James v. Commonwealth — federal implications and construction. Paras 240, 617-618, 1170-1171, 1431, 1721, 2081.
Nadan v. The King, Grundt v. Great Boulder Mines, Queen v. Judge, Roberts v. Hopwood, Williams v. Thomas, Eason v. State, State v. Cox, Downs v. Birmingham, Punjab v. Ajaib Singh, Budhan Singh v. Nabi Bux, Delhi Municipality v. B.C. — cited mainly in Sikri, C.J.'s opinion (paras 330-345, 367-372, 439-443, 468-482) and Palekar, J.'s opinion (paras 1297-1301) on construction, delegation and ratification.

Further authorities named in the judgment

These cases are cited by the Judges or counsel in their reasoning. Each line gives the case, the citation as printed, how it was used, and the paragraph.

V.N. Narayanan Nair v. State of Kerala (A.I.R. 1971 Kerala 98; I.L.R. [1970] (II) Kerala 315) — Kerala High Court Full Bench decision that struck down certain sections of the Land Reforms Act. Paras 4, 1388.
A.K. Gopalan v. The State of Madras ([1950] S.C.R. 88) — Kania, C.J. on Article 13 as a matter of abundant caution. Paras 25, 517, 817, 1491.
Bidie v. General Accident, Fire and Life Assurance Corporation ([1948] 2 All E.R. 995) and Bidis v. General Accident — Lord Greene: words must be read in context and amendment has more than one meaning. Paras 65, 538.
Bourne v. Norwich Crematorium ([1967] 2 All E.R. 576) — English words take colour from those around them. Para 67.
Towne v. Eigner / Towne v. Eiser (245 U.S. 418; 62 L. ed. 372) — Holmes, J.: a word is not a crystal but the skin of a living thought. Paras 68, 678.
Holmes v. Jennison (10 L. ed. 579) and William v. United States (77 L. ed. 1372) — every word of the Constitution must have its due force. Para 89.
Golaknath v. Punjab and Golaknath v. State of Punjab ([1967] 2 S.C.R. 762) — Wanchoo, J. on the Preamble and the Berubari case; the validity of the 17th Amendment. Paras 103, 1610.
Behram Khurshed Pasikaka v. The State of Bombay ([1955] 1 S.C.R. 613) — Mahajan, C.J. on rights in Part III. Para 108.
Attorney-General v. Prince Ernest Augustus of Hanover and Att.-Gen. v. H.R.H. Prince Ernest Augustus ([1957] A.C. 436) — the House of Lords on the effect of a preamble. Paras 113, 934, 1526.
Powell v. Kempton Park Racecourse Co. Ltd. ((1889) A.C. 143) — clear terms in an enactment. Paras 115, 1202.
State of Victoria v. The Commonwealth (45 A.L.J. 251) — federal structure and implied limits. Paras 117, 241, 604, 1358.
Hunter v. Martin (1 Wheat. R. 305) — the Constitution was ordained by the people. Para 121.
Corocraft v. Pan American Airways ((1969) 1 All E.R. 82) — Lord Denning on construing legislation to match treaty obligations. Para 165.
State of Travancore-Cochin and Ors. v. Bombay Co. Ltd. ([1952] S.C.R. 1112) and Cochin and Anr. v. Bombay Co. Limited — Assembly speeches not an aid to construction. Paras 194, 201, 722, 1657, 2236. Also printed as Constitution-see State of Travancore Cochin and Ors. v. The Bombay Co. Ltd.
Administrator-General of Bengal v. Prem Nath Mallick ([1895] 22 I.A. 107) — rule of construction of Indian statutes. Paras 194, 722.
United States v. Trans-Missouri Freight Association — cited on the rule excluding legislators' speeches, which America has not always followed. Paras 194, 722.
Orient Paper Mills v. State of Orissa ([1962] 1 S.C.R. 549), Burmah Construction Co. v. State of Orissa and Navnit Lal Javeri v. Appellate Assistant Commissioner (A.I.R. 1965 S.C. 1375) — decisions where this Court implied powers. Para 229.
Sanjeevi Naidu v. State of Madras ([1970] 1 S.C.C. 443) — Hegde, J.: the Governor is essentially a constitutional head, an implied limitation. Para 234.
U.N.R. Rao v. Smt. Indira Gandhi ([1971] 2 S.C.C. 63) — followed the same line. Para 235.
State of Bihar v. Makarajadhiraja of Darbhanga ([1952] S.C.R. 889) — Mahajan, J. on implied limits on legislative power. Para 238.
Raj Narain Singh v. Patna Administration ([1955] 1 S.C.R. 290), Vasantilal Sanjanwala v. State of Bombay ([1961] 1 S.C.R. 341), Municipal Corporation of Delhi v. Birla Cotton Mills ([1968] 3 S.C.R. 251) and Garewal v. State of Punjab ([1959] Supp. 1 S.C.R. 792) — cases applying limits on delegation. Paras 238, 467, 583.
Reg. v. Burah ([1878] 3 A.C. 889) — the Privy Council rule for construing a Constitution. Para 603.
Malbourne Corporation v. The Commonwealth ([1947] 74 C.L.R. 31) — Melbourne Corporation case on federal limits. Paras 247, 248, 1287, 1493. Also Ltd. v. The Commonwealth (the same series of names as printed).
Lamshed v. Lake ((1958) 99 C.L.R. 132) and Spratt v. Hermes ((1965) 114 C.L.R. 226) — Windeyer, J. on construing the Constitution. Para 248.
Taylor v. The Attorney-General of Queensland (23 C.L.R. 457) and Clayton v. Heffron ([1960] 105 C.L.R. 214) — implied limits on the Commonwealth Constitution. Paras 251, 304.
Hodge v. The Queen and Hodge v. Queen ((1883) 9 App. Cas. 117), Shannon v. Lower Mainland Dairy Products Board ([1938] A.C. 708) — Canadian cases on delegation. Paras 261, 471, 472, 771.
Attorney General for Canada v. Attorney General for Ontario ([1937] A.C. 326) — Lord Atkin on the distribution of powers. Para 263. Attorney-General for Alberta v. Attorney-General for Canada ([1939] A.C. 117) — explains Bank of Toronto v. Lambe. Para 334. Proprietary Articles Trade Association v. Attorney-General for Canada ((1931) A.C. 310) — Lord Atkin on a point not raised before. Paras 502, 769, 773.
Ibralebbe v. The Queen ((1964) A.C. 900) — full legislative powers of a sovereign independent State. Para 273.
Osborn v. Bank of the United States — the Court re-examined the question of State taxation of the Bank. Para 299.
Ujjambai v. State of U.P. ([1963] 1 S.C.R. 778) — Hidayatullah, J. on fundamental rights. Para 324.
Motilal v. State of U.P. (I.L.R. [1951] 1 All. 269) — a Constitution reflects democratic thought. Paras 324, 1925.
Satwant Singh v. Passport Officer ([1967] 3 S.C.R. 525) — Subba Rao, C.J. on the rule of law. Para 327.
Mohd. Maqbool Damnoo v. State of Jammu and Kashmir ([1972] 1 S.C.C. 536) — repelled an argument on amendments. Para 329.
Grey v. Pearson ((1857) 6 H.L.C. 61) — grammatical and ordinary sense in construing instruments. Para 331.
Cooke v. Charles A. Vogeler Co. ([1901] A.C. 102) — a court does not decide on reasonableness of a provision. Para 333.
United States of America v. William H. Sprague (75 L. Ed. 640) — validity of the 18th Amendment. Paras 360, 575, 612. Also printed as William H. Sorague.
Towns v. Suttles (Ga. 838; 69 S.E. 2d 742) — the people's power to amend. Para 368.
Commissioner of Stamps, Straits Settlements v. Oei Tjong Swan ([1933] A.C. 378) — power cannot pass from one Parliament to another. Para 373.
James Leslie Williams v. Haines Thomas ([1911] A.C. 381) — a discretion must be exercised reasonably. Para 442.
Moore and Ors. v. Attorney-General for the Irish Free State and Ors. ((1935) A.C. 484), also printed as Moore v. The Attorney General and Moore and Ors. v. The Attorney-General — the Ryan amendment conceded as regular. Paras 406-416, 566, 1041, 1506, 1695.
State of Bombay v. F.N. Balsara ([1951] S.C.R. 682) and State of Bombay and Anr. v. F.N. Balsara — this Court struck down two provisions of the Bombay Prohibition Act (Sections 23(a) and 24(1)(a)) as conflicting with Article 19(1)(a) under the old clause (2). Paras 453, 637, 769, 1247.
Mohamed Samsudeen Kariapper v. S.S. Wijesinha ((1968) A.C. 717) — the Solicitor General relied on it for implied amendment; later cited for pro tanto amendment. Paras 484, 601, 1830.
State of Bihar v. Maharajadhiraja Sir Kameshwar Singh ((1952) S.C.R. 889) — Patanjali Sastri, C.J. rejected a limited meaning of Article 31B. Paras 495, 582, 782, 1221.
Attorney-General for Australia v. The Queen and the Boilermakers' Society (1957) A.C. 288) and Attorney-General of Commonwealth of Australia v. The Queen and Ors. — separation of powers. Paras 503, 775.
State of Madras v. Smt. Champakam Dorairajan and State of Madras v. Srimathi Champakam Dorairajan ([1951] S.C.R. 525) — reservation struck down; led to the First Amendment. Paras 521, 670, 1953, 1970.
Attorney General for New South Wales v. The Brewery Employees Union of New South Wales ([1908] 6 C.L.R. 469) — Higgins, J. on constructing a Constitution, also printed as Gen. of New South Wales v. Brewery Employees Union and New South Wales v. The Commonwealth. Paras 538, 603, 716, 1124.
John Switzman v. Freda Elbling and Attorney General of Quebec ([1957] Can. L.R. 285) — Abbott, J.'s view on civil liberties. Paras 548, 608.
Don John Francis Douglas Liyanage and Ors. v. The Queen ([1967] 1 A.C. 259), also printed as Liyange's case — relied on by Mr. Seervai on amendments and the Constitution. Paras 268, 559, 599, 697, 1696.
State of Rhode Island v. A. Mitchel Palmer (64 L. Ed. 946) — National Prohibition Cases. Paras 573, 613, 1458, 1899.
J.J. Dhillon v. R.W. Gloss (Dillon v. Gloss) (65 L. Ed. 994; 256 U.S. 358) — Article V of the American Constitution and ratification. Paras 574, 898, 1296.
Howard Joseph Whitehill v. Wilson Elkins (19 L. Ed. 2d 228) — the Constitution prescribes the method of alteration by amendment. Para 575.
Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality ((1970) 1 S.C.R. 388) and Municipal Corporation of the City of Ahmedabad v. New Shorrock Spg. and Wvg. Co. Ltd. ((1971) 1 S.C.R. 288), printed as City of Ahmedabad Etc. v. New Shorock Spg. and Wvg. Co. Ltd. — cited for legislation that usurps judicial power. Para 583.
Australian Railways Union v. Victorian Railway Commissioners ([1930] 44 C.L.R. 319) — Dixon, J. on implied limits. Para 603.
The Attorney General of Nova Scotia v. The Att. Gen. of Canada and Attorney General of Nova Scotia v. The Attorney General of Canada ([1951] Can. L. Rep. 31) — delegation between Parliament and provinces. Paras 607, 638.
Jermiah Ryan v. Captain Michael Lenons and Jeremish Ryan and Ors. v. Captain Michael Lennon ((1935) Irish Reports 170) — Ryan's case on the Irish amendment power. Para 610. Margaret Buckley v. Att. Gen. of Eire ((1950) Ir. Reports 67) — a later Irish case. Para 610.
Commonwealth of Australia v. Bank of New South Wales ([1950] A.C. 235) — Lord Porter: such problems are often political or economic. Para 615.
Att. Gen. for the Commonwealth of Australia v. Colonial Sugar Refining Co. ([1914] A.C. 237) — Haldane, L.C. on construing Constitutions. Para 615.
State of West Bengal v. Mrs. Bela Bannerji and Ors. ((1954) S.C.R. 558) — compensation as a just equivalent. Paras 622, 729, 1210, 2028.
Basheshar Nath v. The Commissioner of Income Tax and Basheshar Nath v. The C.I.T. Delhi ([1959] Supp. 1 S.C.R. 528) — Das, C.J. and S.K. Das, J. on Article 14 and natural rights. Paras 637, 932, 1983.
Visweshwar Rao v. The State of Madhya Pradesh ([1952] 1 S.C.R. 1020) — Article 31B independent. Paras 645, 783, 2235.
M.S.M. Sharma v. Shri Sri Krishna Sinha ([1959] Supp. 1 S.C.R. 806) — fundamental rights called inalienable. Para 670.
Bribery Commissioner v. Rana Singhe (Ranasinghe) ([1965] A.C. 172) — throws light on amendment and special procedure. Paras 203, 217, 304, 567.
Australian Communist Party v. The Commonwealth (83 C.L.R. 1) — implied limits. Para 716.
Fraser Henlein Pty. Ltd. v. Cody ((1945) 70 C.L.R. 100), printed as Ltd. v. Cody — cited for the meaning of a compensation term. Para 746. Ch. Tika Ramji and Ors. v. The State of Uttar Pradesh and Ors. (1956 S.C.R. 393), printed as Etc. v. The State of Uttar Pradesh and Ors. — cited on delegating the power of repeal to an executive authority. Para 1073.
Queen v. Kirby and Ors. ((1956) 94 C.L.R. 295) — Dixon, C.J. on the weight of prior cases. Para 774.
Mohd. Yakub v. State of Jammu and Kashmir ((1968) 2 S.C.R. 227) — a Presidential order under Article 359 not law. Para 863.
British Coal Corporation v. King ((1935) A.C. 500) — widest construction of a constituent statute. Paras 915, 1287, 1493.
State of Rajasthan v. Leela Jain ((1965) 1 S.C.R. 276) — a clear enactment is not cut down by the Preamble. Para 934.
Secretary of State for India in Council v. Maharajah of Bobbili (I.L.R. 43 Mad. 529) — the enacting part may exceed the Preamble. Paras 934, 1357.
Henning Jacobson v. Commonwealth of Massachusetts (197 U.S. 11) — power is not conferred by the Preamble. Para 934.
Fielding v. Thomas (1896 A.C. 600) and Whiteman v. Sadler (1910 A.C. 514) — full power to legislate; express enactment shuts the door to implication. Para 940.
Deep Chand v. State of Uttar Pradesh ((1959) Supp. 2 S.C.R. 8) — Queen v. Burah test. Para 942.
Keshavan Madhavan Menon v. The State of Bombay (1951 S.C.R. 228) — the spirit of the Constitution cannot override words. Para 943.
Province of Madras v. Governor General (72 I.A. 93) and State of Madras v. Gannon Dunkerley and Co. (1959 S.C.R. 379) — technical terms get technical meaning. Para 992.
Ross v. Illison (1930 A.C. 1) and Damselle Howard v. Illinois Central Rail Road Co. (207 U.S. 463) — what is said, not what is supposed to be intended. Para 996.
S.N. Nandi v. State of West Bengal (A.I.R. 1971 S.C. 961) — an acquisition did not violate Article 19(1)(f). Para 1069.
Dwarkadas Srinivas v. Sholapur Spg. and Wvg. Co. Ltd. (1954 S.C.R. 674) — law taking over management struck down for lack of compensation. Para 1085.
Babu Barkya Thakur v. The State of Bombay and Ors. ((1961) 1 S.C.R. 128) — a conclusive declaration clause under the Land Acquisition Act, 1894 prevails and is not justiciable. Para 1099.
State ex rel. Strutz v. Baker (299 N.W. 574) — amendment does not include repeal. Para 1196.
Cooper v. The Wandsworth Board of Works (14 C.B. (N.S.) 180) — Byles, J.'s aphorism on a fair hearing. Para 1216.
The Provincial Transport Service v. State Industrial Court ([1963] 3 S.C.R. 650) — Das Gupta, J. on principles in Article 39(b) and (c). Para 1220.
Firm Tilak Ram Ram Bux v. State of Punjab ((1963) 2 S.C.R. 353) and Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar ((1959) S.C.R. 279) — classification under Article 14. Para 1234.
State of Madhya Pradesh v. G.C. Mandawar ([1955] 1 S.C.R. 599) — the sources of two laws differ. Para 1235. State of Madhya Pradesh v. Ranojirao Shinde ((1968) 3 S.C.R. 489) — severability was not applied to the term grant. Para 1256.
Corporation of Calcutta v. Calcutta Tramways Co. Ltd. ((1964) 5 S.C.R. 25) — Section 437(1)(b) of the Calcutta Municipal Act and Article 19(1)(g). Para 1255.
Kameshwar Prasad v. State of Bihar ((1962) Supp. 3 S.C.R. 369) — Rule 4-A of the Conduct Rules. Para 1256.
Downs v. City of Birmingham (198 Southern Reporter 231) — an amendment of a State Constitution may extend widely. Paras 1298, 1304.
Ullmann v. United States (100 L. ed. 511) — Frankfurter, J. on the privilege against self-incrimination (giving evidence that could prove one's own guilt). Para 1300.
Sri Venkataramana Devaru v. State of Mysore ([1958] S.C.R. 895) — Article 26(b) read subject to Article 25(2)(b). Para 1323.
Amalgamated Society of Engineers v. The Adelaide Steamship Co. Limited and Ors. (28 C.L.R. 129) — Isaacs, J. on the doctrine of implied prohibition. Para 1349.
William McPherson v. Robert R. Blacker (146 U.S. 1) — plain words are followed. Para 1420.
The United Provinces v. Mst. Atiqa Begum and Ors. ([1940] 2 F.C.R. 110) — Gwyer, C.J. on a provision inserted by draftsmen. Para 1430.
George S. Hawke v. Harvey C. Smith (64 Lawyers Ed. 871) — ratification and the amendment provision. Para 1458.
The Providence Bank v. Alpheus Billings (29 U.S. 514) — a power may be abused, but the Constitution is not a corrective. Paras 1471, 2187.
Gompers v. United States (233 U.S. 604) — origin and growth of terms. Para 1491.
James v. The Commonwealth of Australia ((1936) A.C. 578) — Lord Wright: no narrow or pedantic construction. Paras 1491, 2085.
Adams v. Tanner and Adkins v. Children's Hospital (the latter overruled by West Coast Hotel Co. v. Parrish) — cited as mistaken reliance on economic theory. Para 1495.
State of Bombay v. Bhanji Munji and Anr. ([1955] 1 S.C.R. 777) — Article 19(1)(f) and Article 31. Para 1575.
Ltd. v. Brome and Anr. (Cassell and Co. Ltd. v. Broome) and Rookes v. Barnard ([1964] 1 All E.R. 367) — House of Lords practice on multiple opinions. Para 1602.
Abrams v. United States (250 U.S. 616) — Holmes: all life is an experiment. Para 1626.
Anderson v. Dunn (6 Wheat 204) — Johnson, J.: government is the science of experiment. Para 1684.
Prentis v. Atlantic Coast Line Co. ((1908) 211 U.S. 210) — Holmes on legislative and judicial power. Para 1697.
Municipal Committee v. The State of Punjab ([1969] 3 S.C.R. 447) — due process clause has no application. Para 1757.
Backus v. Fort Street Union Depot Co. (169 U.S. 557), Snowden v. Hughes (321 U.S. 1) and Carter v. Texas (177 U.S. 442) — equal protection and State action. Para 1765.
Ltd. v. Raymond Russel (Royal Court Derby Porcelain Co. Ltd. v. Raymond Russell) ([1949] 2 K.B. 417) — re-enactment of statutes. Para 1815.
Harishankar Bagla v. M.P. State and Harishankar Bagla v. The State of Madhya Pradesh ([1955] 1 S.C.R. 380) — Section 6 of the Essential Supplies Act is not a delegation. Paras 1895, 2052.
Oscar Leser v. J. Mercer Garnett (258 U.S. 130) — 19th Amendment upheld. Para 1899.
Attorney-General for New South Wales and Ors. v. Trethowan and Ors. ((1932) A.C. 526) — manner and form. Paras 289, 566, 1903.
Dr. N.B. Khare v. The State of Delhi ([1950] S.C.R. 519) — presumption against abuse of power. Para 2015.
Anderson National Bank v. Luckett (321 U.S. 233) — State statute on inactive bank deposits upheld. Para 2075.
William Marbury v. James Madison (2 L. ed. 69) — a statute repugnant to the Constitution is void. Para 2077.
West v. Commonwealth of Australia (1937) — listed among the Australian cases cited. Para 2078.
Joint Anti-Fascist Refugee Committee v. McGrath (341 U.S. 123), also printed as Comm. v. McGraths, and American Communications Association v. Douds (339 U.S. 382), printed as Assoc. v. Doudds — Frankfurter and Jackson, JJ. on limits to power. Paras 1757, 2085.
State of Bombay v. Heman Alreja (A.I.R. 1952 Bom. 16) — different words need not change meaning. Para 2153.
Livermore v. E.C. Waite ((102) Cal. 113; 25 L.R.A. 312) — cited by Bachawat, J. for the view that an amendment must improve the Constitution. Paras 1179, 1296. Sri Venktaramana v. The State of Mysore ([1958] S.C.R. 895) — also printed as Sri Venkataramana Devaru v. State of Mysore; Article 26(b) read subject to Article 25(2)(b). Para 1323.
Vacher and Sons Limited v. London Society of Compositors ((1913) A.C. 107) — no covert censure of the legislature. Paras 1724, 2186. Also printed as Limited v. London Society of Compositors.
Municipal Council of Sydney v. The Commonwealth ([1904] 1 Com. L.R. 208) — reference to debates only for limited purposes. Para 2236.

Also cited in footnotes: Livermore v. Waite (California, 1894), McCleary (Indiana, 1917), Geigenspan v. Bodine, Skrupa, Harris's case and the High Court of Parliament case (South Africa, 1952), Subramaniam Chettiyar and Suraj Narain Anand (Federal Court), Ibralebbe's case, Kerala Education Bill reference and other cases named in the lists in paras 2078 and 2085.

Provisions mentioned

Article 13 (clauses 1 to 4): laws inconsistent with fundamental rights are void; law in clause (3)(a) includes ordinances, orders, bye-laws, rules, regulations, notifications, custom and usage; clause (4), added by the 24th Amendment, says Article 13 does not apply to amendments under Article 368. Paras 1391-1395, 1631-1647, 1888-1896, 2158-2173.
Article 368 (before and after the 24th Amendment) with its proviso, clauses (a) to (e): amendment is by a Bill passed by a majority of the total membership and two-thirds of those present and voting, with State ratification for the matters in the proviso. Paras 1403-1407, 1648, 1936-1939, 2020-2023, 2137, 2145.
Articles 14, 19 and 31, including Article 31(2), 31(2A), 31(2B) and Article 19(1)(f): equality, the seven freedoms and the right to property. Paras 1572-1576, 1781, 1797-1821, 2024-2039, 2210-2224.
Articles 31A, 31B and the Ninth Schedule: protection of agrarian and scheduled laws. Paras 1583-1584, 1598, 2059-2061, 2095-2098, 2227-2235.
Article 31C (inserted by the 25th Amendment): protection for laws giving effect to Article 39(b) and (c), with a declaration clause and a proviso for presidential assent for State laws. Paras 1577-1597, 1822-1848, 2040-2054, 2216-2233.
Articles 37, 38, 39(a) to (f) and 45: Directive Principles, the duty to apply them in making laws, and distribution of resources. Paras 1762-1766, 1793-1795, 1860-1866, 2008-2009, 2218-2219.
Articles 245, 246, 248, Entry 97 of List I and Article 4: legislative power and the residuary entry. Paras 1403-1407, 1645-1647, 1938, 2137.
Articles 15(3), 15(4), 16(4), 19(2) to (6), 21, 22, 25, 26, 29(2), 30(1), 32, 33, 35, 358, 359: fundamental rights and their limits. Paras 1752-1754, 1983, 2181, 2187.
Articles 3, 4, 169, paragraph 7 of the Fifth Schedule and paragraph 21 of the Sixth Schedule: laws that amend the Constitution but are not amendments under Article 368. Paras 1401-1402, 1892, 1957-1958, 2146-2147, 2161, 2170.
Articles 60, 75(4), 124(6), 148(2), 159, 164(4) and 219: oaths that name the Constitution and the law separately. Paras 1891, 1967, 1978-1979.
Articles 394 and 395: commencement of the Preamble and repeal of the 1935 and 1947 Acts. Paras 1525, 1946, 2163.
Articles 77(2), 83(2), 103(1), 107 to 111, 123, 166(2), 192(1), 213, 311, 329(a): ouster and procedure provisions used by analogy. Paras 1648, 1941, 1969, 1990, 2045.
Articles 12, 20(2), 22(7), 303(2): State action, double jeopardy (being punished twice for the same offence), detention, trade preference. Paras 1765, 1983, 2187.
Section 8 of the Indian Independence Act, 1947 and Sections 99, 100 and 104 of the Government of India Act, 1935: source of the Assembly's authority and residuary power. Paras 1665, 1858, 1938, 1941.
Sections 18, 29 and 55 of the Ceylon (Constitution) Order in Council, 1946. Section 5 of the Colonial Laws Validity Act, 1865; Sections 91 and 92 of the British North America Act, 1867. Section 128 of the Australian Constitution. Article V of the United States Constitution. Article 50 of the Irish Constitution. Paras 1550-1566, 1653, 1700-1712, 1938.
Section 25 of the Indian Contract Act and Section 6A of the General Clauses Act, used by analogy. Paras 1951, 2038.
Kerala Land Reforms Act, 1963 (Act 1 of 1964), Kerala Land Reforms (Amendment) Acts, 1969 (Act 35) and 1971 (Act 25). Paras 1388-1389, 2088-2093.

Further provisions mentioned

Each line gives the provision, what the judgment says it does, and the paragraph.

Article 40 provides for the organisation of village panchayats. Article 41 deals with the right to work, to education and to public assistance in certain cases. Article 42 directs the State to secure just and humane conditions of work and maternity relief. Article 43 directs the State to secure a living wage (a wage covering a decent standard of life) and decent conditions of work. Article 44 enjoins the State to secure a uniform civil code (one set of civil laws for all citizens). Article 46 supplements the education directive and promotes the educational and economic interests of weaker sections. Article 49 deals with protection of monuments and places of national importance. (Sikri, C.J., paras 145-151)
Article 174 deals with summoning the State Legislature, like Article 85. Article 265 says no tax is levied or collected except by authority of law. Article 301 makes trade, commerce and intercourse throughout India free. (Sikri, C.J., paras 168, 172)
Articles 331 and 332 provide for nominating Anglo-Indian members and reserving seats for Scheduled Castes and Tribes. Article 334 limits those reservations to ten years. Article 335 deals with claims of Scheduled Castes and Tribes to services and posts. Articles 336 and 337 make special provisions for the Anglo-Indian community in services and educational grants. Article 338 provides for a Special Officer. Article 340 allows a Commission on backward classes. Articles 341 and 342 let the President specify Scheduled Castes and Tribes. (Sikri, C.J., paras 172-173)
Article 354 lets the President make exceptions and modifications in Articles 268 to 279. Article 355 makes it the Union's duty to protect States against external aggression and internal disturbance. Article 356 deals with failure of constitutional machinery in a State. (Sikri, C.J., para 174)
Article 379 is cited for the provisional Parliament's competence. (Petitioners' argument, paras 17-18)
Article 6 appears in Article 66 of the Irish Constitution, whose amendment ended the right of appeal to the King in Council. (paras 408, 1042)
Article 7 and Articles 54, 55, 73, 162 and 241 are listed in the proviso to Article 368 among provisions needing State ratification. (paras 53, 60)
Article 62 and Article 68 are cited with other articles of the United Nations Charter on the basis for human rights. (para 164)
Article 291 is the provision for which Sardar Patel's speech was used in the Privy Purse case. Article 363 was construed by Mitter, J. using a speech. (paras 197-199, 1657)
Section 41, Section 42, Section 45 and Section 56 of the Ceylon Bribery Amendment Act are about the Bribery Tribunal: the Tribunal's panel and members, their pay, and the offence of influencing the Commission. (paras 209-214)
Article 298 was substituted by the Constitution (Seventh Amendment) Act, 1956. (para 238)
Section 106 of the Australian Constitution makes the States part of the Commonwealth. Section 114 bars the Commonwealth from taxing State property. Section 48 of the Banking Act, 1945 barred banks from banking for a State. (paras 248, 603-604)
Section 1025A and Section 1025 are cited in the Alberta Press Case as contrary to the Canadian Constitution. (paras 266, 548, 1026)
Section 13 of the Lunatic Asylums (Ireland) Act, 1875 barred an accused from appearing before the District Justice. (para 610)
Sections 13, 14, 15, 18, 19, 20, 21 and 22 of the Constitution Act of New South Wales are cited in the Trethowan case. Section 22 of the Order in Council gave power to alter the Constitution by law. (paras 289, 850)
Article 391 of American Jurisprudence is cited by counsel as describing a principle of republican institutions. (para 327)
Sections 26 and 27 of the Constitution of Jammu and Kashmir were amended, and the challenge said that destroyed its structure. (para 327)
Section 62 of the Metropolis Management Act, 1855 was held to need reasonable exercise of discretion. (para 440)
Sections 11, 54, 56, 90 and 7 of the Initiative and Referendum case statute are cited on the legislature's assent and money bills. (paras 470-471)
Article 74 provides for a council of ministers to aid and advise the President. (para 584)
Article 141 is cited for the affirmation that judges declare but do not make law. (paras 615, 948)
Articles 132, 136 and 226 are among provisions whose change would need State ratification. (paras 654, 1130)
Sections 53 and 57 of the Bombay Town Planning Act, 1955 fixed principles for compensation. (para 735)
Article 59, Article 72, Article 88 and Article 287 of American Jurisprudence are cited by Mr. Palkhivala on constitutional construction. (paras 880, 1507)
Article 364 uses the words exceptions or modifications. Article 370(1)(d) uses modifications. (para 887)
Draft Article 232 became Articles 304 and 305. Draft Article 148A became Article 169, which lets Parliament abolish Upper Chambers. (paras 911, 914)
Article 372A(2) is listed among articles where amendment is used. (para 916)
Articles 73(2), 100(3), 105(3), 118(2), 120(2), 125, 133(3), 171(2), 189(3), 194(3), 210(2), 241(2), 283(1) and (2), 285(1) and (2), 343(3), 345 and 348(1) are examples of provisions that allow changes by ordinary law until Parliament provides otherwise. (para 947)
Sections 5A and 299 are cited: Section 5A of the Land Acquisition Act gives an inquiry that is administrative, and Section 299 of the Government of India Act, 1935 protected property from deprivation. (paras 1069, 1084)
Article 255 appears in the range of Articles 246 to 255 on distribution of legislative powers. Articles 107 to 122 give the law-making procedure for Parliament. (paras 1121, 1273)
Article 80 and Article 81 provide for State representation in Parliament, which may be changed. (para 1129 and proviso discussion)
Article 325 of the Nicaraguan Constitution is cited. Article 9 of the Burmese Constitution is cited on the definition of State. Clause (6) of Article 217 of the Brazilian Constitution is an entrenched provision. (paras 1129-1130, 1191-1192)
Sections 32, 37, 74, 82 and 107(2) of the Government of India Act use amendment in the sense of change. (para 1196)
Article 31G is mentioned in connection with Article 31C. (paras 1247, 1829)
Section 13A of the Punjab Alienation of Land Act, 1900, Section 281 and Section 298 of the Government of India Act, 1935 are discussed with Article 14. (para 1253)
Section 437(1)(b) of the Calcutta Municipal Act, 1851 was in issue under Article 19(1)(g). (para 1255)
Article 316 is cited to show the two laws would not be saved by it despite the Amendment. (para 1384)
Article 146 of the Constitution of the USSR allows amendment only by the Supreme Soviet. Article 64 and Article 72 are cited for judicial power and trial by jury. (paras 1460, 1507)
Article 324, Article 366, Article 380 and Article 388 came into force on 26 November 1949 under Article 394. (para 1525)
Section 46 is cited from Roscoe Pound's Jurisprudence. (para 1770)
Article 348 is cited in a printed form for Article 248. (para 1938)
Sections 42, 43, 44, 72, 88, 89 and 90 of the Government of India Act, 1935 gave the Governor General and Governors ordinance-making powers. (para 1941)
Article 102(1) lists disqualifications of members of Parliament. Article 114(2) is listed among provisions that use the word amendment. Articles 327 and 328 concern delimitation laws. Article 128 of the Australian Constitution (Section 128) concerns amendment. (paras 887, 2045, 2206)
Section 1 of the Colonial Laws Validity Act, 1865 defines the representative character of a legislature, and Section 1 of the Canadian Bill of Rights declares human rights and freedoms. Sections 15 and 16 of the 1867 Constitution of New South Wales dealt with the tenure of Judges. (paras 1707, 1552, 846)
Section 23(a), Section 24(1)(a) and Section 25 and other sections of Acts quoted by Judges: Section 23(a) and Section 24(1)(a) prohibited commending intoxicants; Section 25 of the Contract Act is the adequacy-of-consideration rule. (paras 453, 2038)

Judgement

The judgment records no single order signed by all thirteen Judges. The only common order is in the closing Order paragraphs. Each Judge also records a final order or conclusions in his own opinion.

Order of the Court

The Constitution Bench will decide the validity of the Constitution (Twenty-sixth Amendment) Act, 1971 in accordance with law. (para 2263)
The cases are remitted to the Constitution Bench for disposal in accordance with law. (para 2264)
There is no order as to costs incurred up to this stage. (para 2264)

Conclusions and directions recorded in each opinion

Sikri, C.J.: Golak Nath held an amendment is bad if it infringes Article 13(2) and did not decide the meaning of amendment. The word does not let Parliament abrogate fundamental rights or change the fundamental features so as to destroy identity. The 24th Amendment, as interpreted, is valid. Parliament cannot delegate the amending function. Section 2 of the 25th Amendment, as interpreted, is valid. Section 3 is void. The 29th Amendment does not protect the Kerala Acts if they abrogate fundamental rights. Within these limits Parliament can amend every article. The Constitution Bench will determine the validity of the 26th Amendment, the cases are remitted, and parties bear their own costs. (paras 506-508)
Ray, J.: The power is in Article 368 and an amendment is not law under Article 13. There are no implied or inherent limits, and the Golak Nath majority is wrong. Amendment does not mean abrogation or wholesale repeal. The 24th, 25th and 29th Amendments are valid. Article 31C does not delegate. Adequacy and the principles of the amount cannot be reviewed, and Article 31(2B) is valid (para 1108). Each party bears its own costs, and the petitions go to the Constitution Bench. (paras 1106-1110)
Reddy, J.: Parliament can amend fundamental rights but cannot abrogate or emasculate them or the essential elements of the basic structure. The 24th Amendment is valid. Section 2 of the 25th Amendment is valid. Article 31C is valid only if certain words and the declaration are severed. The 29th Amendment is valid, but whether the Acts abrogate basic elements is to be examined later. Amendment in Article 368 does not include repeal, and Parliament cannot enlarge its power to repeal or abrogate the Constitution. Clause (2B) is read as limited to abridgement and not abrogation (para 1260). The petitions go to the Constitution Bench, and parties bear their own costs. (paras 1259-1263)
Palekar, J.: The power and procedure were in the unamended Article 368. An amendment is not law under Article 13, and the Golak Nath majority is not correct. There were no implied or inherent limits on the amending power over fundamental rights. The 24th, 25th and 29th Amendments are valid. The case will be posted before the regular bench. (paras 1385-1386)
Khanna, J.: His fifteen conclusions say that Article 368 contains power and procedure. Amendment does not include abrogating the Constitution or altering its basic structure, but is otherwise plenary and covers fundamental rights. The right to property is not part of the basic structure. The 24th, the first part of Article 31C, the amendment of Article 31 and the 29th Amendment are valid. The second part of Article 31C is invalid and severed. The petition will be posted before the Constitution Bench in the light of these findings. (paras 1599-1600)
Mathew, J.: Golak Nath was wrong. The only limit is that the Constitution cannot be repealed without substituting a mechanism by which the State is constituted. The 24th and 25th Amendments, including Article 31C, and the 29th Amendment are valid. The writ petitions are to be disposed of in the light of these findings with no order as to costs. (paras 1844-1850)
Beg, J.: Golak Nath was erroneous on Article 13. The 24th, 25th and 29th Amendments are valid. Both parts of Article 31C are valid because the declaration does not oust the Court. The petitions are to be disposed of accordingly, with no order as to costs for this stage. (paras 1920-1921)
Dwivedi, J.: Golak Nath should be overruled. There are no inherent or implied limits. The three Amendments are valid. The last part of Article 31C does not oust the courts' jurisdiction to examine relevancy. The Constitution Bench will now decide the case according to law. (paras 2063-2064)
Chandrachud, J.: The 24th Amendment is valid. Sections 2(a), 2(b) and 3 of the 25th Amendment and the 29th Amendment are valid, subject to the court's power to examine illusory amounts and the nexus under Article 31C. Each party bears its own costs. (paras 2241-2252)
Shelat and Grover, JJ.: The power is wide but cannot abrogate the Constitution or change its identity or basic features. The 24th Amendment is valid. Section 2 of the 25th Amendment is valid. Section 3 is invalid for two vices. The 29th Amendment is valid, but whether the Kerala Acts abrogate basic elements is to be examined later. Golak Nath is now academic. Article 31(2) as substituted is valid if the amount rests on a relevant norm, bears a reasonable relation, and is not illusory or arbitrary, and it is open to review but not on adequacy. Clause (2B) is valid. The petitions go to the Constitution Bench, which will also decide the 26th Amendment. (paras 646-647)
Hegde and Mukherjea, JJ.: The power does not include destroying basic elements or fundamental features. The power in the original Article 368 reached every article and part, and law in Article 13(2) did not include amendments. Article 31(2) as substituted is valid on the same conditions, and Article 31(2B) is valid. The 24th Amendment is valid. Article 31C is invalid because it destroys basic features and lets legislatures amend pro tanto by ordinary law. The 29th Amendment is valid, subject to later examination of the Acts. The parties bear their own costs. (para 787)

Legal Principle / Ratio

The judgment has eleven separate opinions and the text records no single reasoned majority. The principles below are what the opinions state, each with its author.

Article 368 contains both the power and the procedure to amend the Constitution, and the power is not found in the residuary Entry 97 (Khanna, J., paras 1403-1407; Dwivedi, J., paras 1935-1939; Chandrachud, J., paras 2136-2137).
Law in Article 13(2) means ordinary law and does not cover an amendment made under Article 368 (Hegde and Mukherjea, JJ., para 787; Ray, J., para 1107; Palekar, J., para 1385; Khanna, J., para 1599; Beg, J., para 1920; Chandrachud, J., para 2243).
The power to amend is wide. Sikri, C.J. holds it does not let Parliament abrogate fundamental rights or destroy the identity of the Constitution (para 506). Khanna, J. holds it does not include abrogating the Constitution or altering its basic structure, but covers fundamental rights (para 1599).
Shelat, Grover, Hegde and Mukherjea, JJ. also hold that the power cannot destroy basic elements or fundamental features (paras 646, 787). Reddy, J. holds that Parliament cannot abrogate the essential elements of the basic structure (para 1259).
Ray, Palekar, Dwivedi and Chandrachud, JJ. find no implied or inherent limits (paras 1107, 1385, 2063, 2247). Mathew, J. accepts only a limit against repealing the Constitution without a substitute mechanism (para 1844). Beg, J. accepts only that the power does not completely abrogate the Constitution at one stroke (paras 1896-1897).
Key holding of Chandrachud, J.: "The power of amendment of the Constitution conferred by the then Article 368 was wide and unfettered." (para 2245)
On Article 31C, Sikri, C.J., Shelat, Grover, Hegde and Mukherjea, JJ. hold it invalid (paras 506, 646, 778). Khanna, J. severs its second part (para 1597). Reddy, J. upholds it after severance (para 1261). Ray, Palekar, Mathew, Beg, Dwivedi and Chandrachud, JJ. read the declaration as not ousting the Court's examination of the nexus with Article 39(b) and (c) (paras 1381, 1848, 1920, 2063, 2250).
Obiter: Chandrachud, J. lists five grounds on which a law under Article 31(2) may still be questioned, including an illusory amount and fraud on the Constitution (paras 2223, 2249).

Subsequent Treatment

This section is built only from the supplementary files for Minerva Mills and I.R. Coelho. Neither file has numbered paragraphs, so the opinion is named instead of a paragraph.

Minerva Mills Ltd. v. Union of India (1980)

Court and bench: Supreme Court of India, decided 31 July 1980. Bench: Y.V. Chandrachud, P.N. Bhagwati, A.C. Gupta, N.L. Untwalia and P.S. Kailasam, JJ. Printed citation: 1980 AIR 1789, 1981 SCR (1) 206.
Signed summary: Chandrachud, J. says the summary of the Kesavananda Bharati judgments was signed by nine of the thirteen Judges. Its paragraph 2 says Article 368 does not let Parliament alter the basic structure or framework of the Constitution. He says it correctly reflects the majority view, whether or not it is a legitimate part of the judgment.
Question asked: He asks whether, given the majority decision in Kesavananda Bharati, Parliament may give Directive Principles precedence over fundamental rights. The answer depends on whether Articles 14 and 19 are part of the basic structure.
Rule drawn: If those rights are part of the basic structure, they cannot be wiped out for laws described in Article 31C or any other laws. By the ratio of Kesavananda Bharati, total emasculation of the essential features is not permitted to Parliament.
Fundamental rights: He recalls from Kesavananda Bharati that fundamental rights are the ark of the Constitution.
Article 31A: He says no decision on Article 31A can serve as a measuring rod for the amending power. Going back to Article 31A each time an amendment is challenged would erode fundamental rights.
Article 31C: He notes the difficulty for a court in deciding whether a law gives effect to the policy of the State under Article 31C.

I.R. Coelho v. State of Tamil Nadu (2007)

Court and bench: Supreme Court of India, decided 11 January 2007, by nine Judges: Y.K. Sabharwal, CJI, Ashok Bhan, Arijit Pasayat, B.P. Singh, S.H. Kapadia, C.K. Thakker, P.K. Balasubramanyan, Altamas Kabir and D.K. Jain, JJ. The citation is not stated in the judgment text.
Question: The Court examined the protection that Article 31B gives to laws added to the Ninth Schedule by amendments made after 24 April 1973, the date of Kesavananda Bharati. That judgment propounded the basic structure doctrine for testing the validity of amendments.
Holding on each amendment: The majority judgment in Kesavananda Bharati, read with Indira Gandhi's case, requires each new constitutional amendment to be judged on its own merits. The actual effect and impact on Part III rights decides whether the basic structure is destroyed.
Ninth Schedule laws after 24 April 1973: All such amendments are to be tested against the basic or essential features, as reflected in Article 21 read with Articles 14 and 19. A law in the Ninth Schedule is open to attack if the rights it takes away belong to the basic structure.
Scrutiny: The Court must first see whether the Ninth Schedule law violates Part III. It must then see whether that violation destroys the basic structure. If so, the law is invalidated.
Kesavananda Bharati and Article 31B: Going back to Kesavananda Bharati upholding Article 31B each time such an amendment is challenged would erode fundamental rights. Article 31B gives validation based on fictional immunity.
Earlier decisions: If the Court has already upheld a Ninth Schedule law, it cannot be challenged again on these principles. A law held to violate Part III and later added after 24 April 1973 can be challenged.
Directions: Actions already taken and transactions finalised under the Acts are not open to challenge. The petitions were sent to a Three Judge Bench for decision.

Other later cases (not summarized)

M. Nagaraj v. Union of India (AIR 2007 Supreme Court 71; 2006 (8) SCC 212), decided 19 October 2006.
L. Chandra Kumar v. Union of India (AIR 1997 Supreme Court 1125; 1997 (3) SCC 261), decided 18 March 1997.
E.P. Royappa v. State of Tamil Nadu (1974 AIR 555; 1974 4 SCC 3), decided 23 November 1973.
K.S. Puttaswamy v. Union of India, Janhit Abhiyan v. Union of India, Navtej Singh Johar v. Union of India, National Legal Services Authority v. Union of India and Kaushal Kishor v. State of U.P. — the case files name Kesavananda Bharati; the citations are not in the judgment text.

Comparative Analysis

Minerva Mills and I.R. Coelho describe the Kesavananda Bharati majority differently from the individual opinions summarised above. Minerva Mills treats the signed summary as showing a majority view that Article 368 cannot alter the basic structure (Chandrachud, J.). I.R. Coelho reads the majority judgment as requiring each amendment to be tested on its own effect. This Court's opinions in 1973 differ among themselves on whether any such limit exists, as the Ratio section shows.

Critical Analysis

Analysis based on the judgment text.

The source text has eleven opinions and no signed summary of agreed conclusions. Its paragraph numbers 2254 to 2262 are missing. Minerva Mills later says nine of the thirteen Judges signed a summary, so the principle has to be assembled from the opinions.
Judges give different answers on the same point. Sikri, C.J. holds Section 3 of the 25th Amendment void, Khanna, J. severs only part of Article 31C, Reddy, J. upholds it after severance, and Beg, J. upholds both parts (paras 506, 1597, 1261, 1917).
Several Judges rely on a concession by the Attorney General and Solicitor General that the nexus with Article 39(b) and (c) stays open to review (paras 1593, 1914). Khanna, J. says a concession on law does not decide validity.
Chandrachud, J. calls the Golak Nath ratio on future restraint not binding, because Article 368 had not then been amended (para 2134). Others treat Golak Nath as wrong in the main.
The opinions use the Constituent Assembly debates differently. Some treat them as aids, and Chandrachud, J. calls them inadmissible (paras 1657-1659, 2236-2239).
Judges leave questions open. The Constitution Bench is left to decide the 26th Amendment and the individual Kerala Acts (paras 507, 2263-2264).
The source text has numbering irregularities, such as a repeated para 1776 and a stray number 349, which make citation harder.

Significance

It is the largest bench the Court had sat in, with thirteen Judges. The hearing ran for about six months (paras 1843, 1851).
It reconsidered Golak Nath, which had held by a narrow majority that Article 13(2) limits Article 368 (paras 1851, 2100-2119).
It decided the validity of the 24th, 25th and 29th Amendments and of Article 31C.
Sikri, Shelat, Grover, Hegde, Mukherjea, Reddy and Khanna, JJ. state limits tied to the identity, basic elements or basic structure of the Constitution. Ray, Palekar, Dwivedi and Chandrachud, JJ. reject implied limits. Mathew and Beg, JJ. accept only a limit against abrogating the Constitution entirely. Later cases are not covered, because no supplementary file exists.
It settled that Article 13(2) does not apply to constitutional amendments in the opinions of Hegde, Mukherjea, Ray, Palekar, Khanna, Mathew, Beg, Dwivedi and Chandrachud, JJ.
It sent the validity of the 26th Amendment and the individual petitions to a Constitution Bench (paras 2263-2264).

Exam-Important Points

Bench: thirteen Judges, eleven opinions. Cite the Judge when you state a view, not the Court.
Golak Nath: the opinions here treat its Article 13(2) holding as incorrect. Trap: Chandrachud, J. says its remarks on future restraint were not the ratio (para 2134).
Article 368: contains power and procedure, not just procedure. Trap: do not place the power in Entry 97.
Limits: Sikri, C.J., Shelat, Grover, Hegde, Mukherjea, Reddy and Khanna, JJ. state limits (identity, basic elements, basic structure). Ray, Palekar, Dwivedi and Chandrachud, JJ. deny implied limits. Mathew and Beg, JJ. allow only a no-total-abrogation limit (paras 1844, 1896-1897).
Right to property: Khanna, J. says it is not part of the basic structure (para 1599).
Article 31C: Sikri, Shelat, Grover, Hegde and Mukherjea, JJ. hold it void. Khanna, J. severs the second part. Reddy, J. upholds it after severance. Ray, Palekar, Mathew, Beg, Dwivedi and Chandrachud, JJ. keep both parts, with judicial review of the nexus in most of those opinions.
Article 31(2): amount gives no norm, but Chandrachud, J. lists five grounds for review (para 2249).
Preamble: the Preamble is part of the Constitution (Khanna, Dwivedi and Chandrachud, JJ.).
Final order: remitted to the Constitution Bench; 26th Amendment left open; no costs (paras 2263-2264).

Prepared from the full text of the judgment. Paragraph numbers follow the official Supreme Court judgment text; law reports may number the same paragraph differently.