(Overruled by Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461)

Facts in Brief

The question before the Supreme Court was a challenge to the constitutional validity of an Act passed by the legislature taking away fundamental rights in an estate. The precise issue was whether any part of the fundamental rights guaranteed by the Constitution could be abrogated or changed by a constitutional amendment, even if passed by the requisite two-thirds majority of Parliament as provided in Article 368.

Earlier, in Sankari Prasad Singh v. Union of India, AIR 1951 SC 458, a Constitution Bench of five Judges had unanimously held that Parliament had unfettered power to amend the Constitution. In Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845, the Court had upheld the power of Parliament to amend any part of the Constitution, including provisions affecting the fundamental rights of citizens.

The law in question in the instant case was aimed at reforming land ownership and tenancy structures, implementing the socialistic goals of the Constitution (Article 39(b) and (c) of the Directive Principles of State Policy), which required equitable distribution of the resources of production among all citizens and the prevention of concentration of wealth in the hands of a few. This was opposed to the fundamental right to acquire, hold and dispose of property (Article 19(1)(f)) and Article 31, under which one could not be deprived of one’s property unless it was acquired by the State and for public purposes only, upon payment of compensation determined by law.

Arguments

There were multifarious arguments from both sides.

The Petitioners contended:

• The Constitution was intended to be permanent, and therefore could not be amended in a way so as to injure, maim or destroy its indestructible character.
• The word “amendment” implied an addition or change within the lines of the original instrument, such as would effect an improvement or better carry out the purpose for which it was framed; it could not be so construed as to enable Parliament to destroy the permanent character of the Constitution.
• The fundamental rights were a part of the basic structure of the Constitution, and therefore the power of amendment could be exercised only to preserve, rather than destroy, the essence of those rights.
• The limitations on the power to amend were implicit in Article 368 itself, as the use of words such as “repeal” and “re-enact” in other Articles meant that the expression “amend” had a limited meaning. This indicated that Article 368 only enabled a modification of the Articles within the framework of the Constitution, and not their destruction.
• The Constituent Assembly Debates — particularly the speech of Mr. Jawaharlal Nehru and the reply of Dr. Ambedkar, who piloted the Bill — disclosed clearly that it was never the intention of the Constitution’s framers to enable Parliament to repeal the fundamental rights by use of the power under Article 368. The circumstances under which the amendment moved by Mr. H.V. Kamath was withdrawn, and Article 368 was finally adopted, clearly showed that amendment of Part III was outside the scope of Article 368.
• Part III of the Constitution was a self-contained Code, and its provisions were elastic enough to meet all reasonable requirements of changing situations. Therefore, no amendment was warranted for them.
• Article 368 only lays down the procedure to amend, but the power to amend is only the legislative power conferred on Parliament under Articles 245, 246 and 248 of the Constitution.
• The definition of “law” in Article 13(2) of the Constitution includes every branch of law, statutory or constitutional; therefore, the power to amend, in whichever branch it may be classified, if it takes away or abridges the fundamental rights, would be void thereunder.

In defence, the arguments for the State were:

1. A constitutional amendment is made in exercise of the sovereign power, and not the legislative power, of Parliament. It therefore partakes of the quality and character of the Constitution itself, becoming an integral part of it.
2. The provisions of Article 368 are clear and unequivocal, with no scope for invoking implied limitations on that power. This limitation, under the doctrine of implied power, had also been expressly rejected by the American courts.
3. The object of the amending clause in a flexible Constitution was to enable Parliament to amend the Constitution in order to express the will of the people according to the changing course of events; if the amending power were restricted by implied limitations, the Constitution itself might be destroyed by revolution. The amending procedure was therefore a safety valve, and an alternative to violent change by revolution.
4. There were no basic and non-basic features of the Constitution; everything in the Constitution was basic, and could be amended in pursuance of the future growth and progress of the country.
5. Debates in the Constituent Assembly could not be relied upon for construing Article 368, and even if they could be, there was nothing in the debates to prove positively that fundamental rights were excluded from the purview of amendment.
6. Since amendments were made out of political necessity, they involved questions such as how to exercise power, how to make the lot of citizens better, and the like; therefore, not being judicial questions, they were outside the Court’s jurisdiction.
7. The language of Article 368 was clear, categorical and imperative, while the language of Article 13(2) admitted qualifications or limitations; therefore, the Court must construe the latter in a manner that it could not control Article 368.
8. In order to enforce the Directive Principles, the Constitution had been amended from time to time, and the great fabric of the Indian Union had been built since 1950 on the basis that the Constitution could be amended. Therefore, any reversal of the previous decisions would introduce economic chaos in the country, and the burden on the Petitioners was very heavy to establish that the fundamental rights could not be amended under Article 368.

Judgment

Presided over by Chief Justice Subba Rao, this eleven-Judge Bench, by a 6:5 majority, held that the fundamental rights were not amenable to the amending power under Article 368. The Court held that Article 368, which contained provisions relating to the amendment of the Constitution, merely laid down the amending procedure. It did not confer upon Parliament the power to amend the Constitution. The amending power (or constituent power) of Parliament arose from other provisions contained in the Constitution (i.e., Articles 245, 246 and 248), which gave it the power to make laws (i.e., plenary legislative power) only. The Apex Court thus held that the amending power and the legislative powers of Parliament were essentially the same. Therefore, any amendment of the Constitution was deemed to be “law” as understood in Article 13(2), and consequently was to be struck down if it violated the fundamental rights.

For the Common Man

The judgment invoked the concept of implied limitations on Parliament’s power to amend the Constitution. The Court held that the Constitution gives a place of permanence to the fundamental freedoms of the citizen; in giving the Constitution to themselves, the people had reserved the fundamental rights for themselves. Another aspect of the judgment is that it introduced in India the doctrine of prospective overruling, whereby, in order not to disturb hitherto concluded transactions under previously invalid laws, all invalidations would be operative only from the future. The Court therefore declared that henceforth all laws violative of fundamental rights would be void ab initio.