Sankari Prasad Singh Deo Vs. Union of India (UOI)
and State of Bihar

Judges: H.J. Kania, C.J., M. Patanjali Sastri, B.K. Mukherjea, Sudhi Ranjan Das and N. Chandrasekhara Aiyar, JJ.

Facts:

The present petition has been filed to challenge the constitutional validity of Constitution (First Amendment) Act, 1951 through which Articles 31A and 31B have been inserted in the Constitution of India. The Act has been enacted because political party in power has carried out certain measures of agrarian reform in Bihar, Uttar Pradesh and Madhya Pradesh by enacting Zamindary Abolition Act. Certain Zamindars, feeling aggrieved have challenged the validity of those Acts on the ground that they contravened the fundamental rights conferred on them by Part III of the Constitution. The High Court of Patna held that the Act passed in Bihar was unconstitutional while the High Courts of Allahabad and Nagpur upheld the validity of the corresponding legislation in Uttar Pradesh and Madhya Pradesh respectively. Appeals from those decisions are pending before present Court. Thus, the Union Government, with a view to put an end to all this litigation had brought forward a bill to amend the Constitution, which was passed by the requisite majority as the Constitution (First Amendment) Act, 1951. To challenge this move of the Government, the zamindars have brought the present petitions under Article 32 of the Constitution impugning the Amendment Act itself as unconstitutional and void.

Issue:

(i) Whether the Constitution (First Amendment) Act, 1951, which has inserted Articles 31A and 31B in the Constitution of India is ultra vires and unconstitutional?

Law:

Constitution of India - Article 13(2) - The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

Constitution of India - Article 31A - Saving of laws providing for acquisition of estates, etc.

Constitution of India - Article 31B - Validation of certain Acts and Regulations

Constitution of India - Article 368 - Power of Parliament to amend the Constitution and procedure therefor.

Contentions

Petitioners

The power of amending the Constitution provided for under Article 368 of Constitution was conferred not on Parliament but on the two Houses of Parliament as a designated body and, therefore, the provisional Parliament was not competent to exercise that power under Article 379 of Constitution.

In any case Article 368 of Constitution is a complete code in itself and does not provide for any amendment being made in the bill after it has been introduced in the House. The bill in the present case has been amended several times. Thus, the Amendment Act cannot be said to have been passed in conformity with the procedure prescribed in Article 368 of Constitution.

The Amendment Act, in so far as it purports to take away or abridge the rights conferred by Part III of the Constitution, falls within the prohibition of Article 13(2) of Constitution.

As the newly inserted Articles 31A and 31B of Constitution seek to make changes in Articles 132 and 136 in Chapter IV of Part V and Article 226 in Chapter V of Part VI of Constitution, they require ratification under clause (b) of the proviso to Article 368 of Constitution, and not having been so ratified, they are void and unconstitutional. They are also ultra vires as they relate to matters enumerated in List II, with respect to which the State legislatures and not Parliament have the power to make laws.

Analysis

(ii) The Constitution provides for three classes of amendments of its provisions. First, those that can be affected by a bare majority such as that required for the passing of any ordinary law. Secondly, those that can be effected by a special majority as laid down in Article 368 of Constitution; and thirdly, those that require, in addition to the special majority, ratification by resolutions passed by not less than one-half of the State specified in Parts A and B of the First Schedule. It will be seen that the power of effecting the first class of amendments is explicitly conferred on "Parliament", that is to say, the two Houses of Parliament and the President. This would lead one to suppose, in the absence of a clear indication to the contrary, that the power of effecting the other two classes of amendments has also been conferred on the same body, namely Parliament, for, the requirement of a different majority, which is merely procedural, can by itself be no reason for entrusting the power to a different body.

(iii)The fact that a different majority in the same body is required for affecting the second and third categories of amendments cannot make the amending agency a different body.

(iv)The argument that a power entrusted to a Parliament consisting two Houses cannot be exercised under Article 379 of Constitution by the provisional Parliament sitting as a single chamber overlooks the scheme of the constitutional provisions in regard to Parliament. These provisions envisage a Parliament of two Houses functioning under the Constitution framed as they have been on that basis. But the frames were well aware that such a Parliament could not be constituted till after the first elections were held under the Constitution. It thus became necessary to make provision for the carrying on, in the meantime, of the work entrusted to Parliament under the Constitution, Accordingly, it was provided in Article 379 of Constitution that the Constituent Assembly should function as the provisional Parliament during the transitional period and exercise all the powers and perform all the duties conferred by the Constitution on Parliament. Article 379 of Constitution should be viewed and interpreted in the wider perspective of this scheme and not in its isolated relation to Article 368 of Constitution alone.

(v) It is not correct to say that article 368 is a "complete code" in respect of the procedure provided by it. There are gaps in the procedure as to how and after what notice a bill is to be introduced, how it is to be passed by each House and how the President's assent is to be obtained. Evidently, the rules made by each House under Article 118 of Constitution for regulating its procedure and the conduct of its business were intended, so far as may be, to be applicable. There was some discussion at the Bar as to whether the process of amending the Constitution was a legislative process.

(vi)Although, our constitution-makers have incorporate certain fundamental rights in Part III and made them immune from interference by laws made by the State. It is however, difficult, in the absence of a clear indication to the contrary, to suppose that they also intended to make those rights immune from constitutional amendment. Also, the terms of Article 368 of Constitution are perfectly general and empower Parliament to amend the Constitution, without any exception whatever. If it has been intended to save the fundamental right from the operation of that provision, it would have been perfectly easy to make that intention clear by adding a proviso to that effect. Thus, in the context of Article 13 of Constitution "law" must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power. , with the result that Article 13(2) of Constitution does amendments made under article 368

(vii) Articles 31A of Constitution aims at saving laws providing of the compulsory acquisition by the State of a certain kind of property from the operation of article 13 read with other relevant articles in Part III, while article 31B purports to validate certain specified Acts and Regulations already passed, which, but for such a provision, would be liable to be impugned under Article 13 of Constitution. It is not correct to say that the powers of the High Court under Article 226 of Constitution to issue writs "for the enforcement of any of the rights conferred by part III" or of this Court under Articles 132 and 136 of Constitution to entertain appeals from orders issuing or refusing such writs are in any way affected. They remain just the same as they were before : only a certain class of case has been excluded from the purview of Part III and the courts could no longer interfere, not because their powers were curtailed in any manner or to any extent, but because there would be no occasion hereafter for the exercise of their power in such cases.

Conclusion:

Constitution (First Amendment) Act, 1951 is not ultra vires and unconstitutional. 

Hence, petition dismissed.