Judges: K. Subba Rao, C.J., C.A. Vaidialingam, G.K. Mitter, J.C. Shah, J.M. Shelat, K.N. Wanchoo, M. Hidayatullah, R.S. Bachawat, S.M. Sikri, Vashishtha Bhargava and Vaidynathier Ramaswami, JJ.

Facts:

The constitutional validity of the Punjab Security of Land Tenures Act, 1953 (hereinafter, Act of 1953) and of the Mysore Land Reforms Act, 1962 (hereinafter, Act of 1962) as amended by Act 14 of 1965 was questioned by a writ petition under Article 32 of the Constitution.

Constitution (Seventeenth) Amendment Act, 1964 (hereinafter, 17th Amendment Act) included the Act of 1953 and the Act of 1962 in the 9th Schedule to the Constitution. Hence, the vires of the 17th Amendment Act was also challenged in this petition.

Prayers were also made to evaluate the correctness of the decisions laid down in Sankari Prasad (MANU/SC/0013/1951) and Sajjan Singh (MANU/SC/0052/1964).

Issues:

I. Whether power to amend the Constitution resides in Article 368 or in residuary power of Parliament under Article 248 read with Entry 97 List 1 of the Constitution?

II. Whether 'fundamental rights' in Part III can be amended and abridged by the procedure in Article 368 of the Constitution?

III. Whether the word 'law' under Article 13(2) of the Constitution includes constitutional amendments?

IV. Whether scheme of 'fundamental rights' as enshrined under the Constitution was intended to be permanent and unamendable?

V. Whether 17th Amendment Act is invalid for contravention of Article 13(2) of the Constitution?

VI. Whether the Act of 1953 and the Act of 1962, contravenes fundamental rights and hence, invalid and unconstitutional?

Laws:

Constitution of India - Article 13(2) - Any law passed by the state that violates fundamental rights will be null and void to the degree that it restricts or limits those rights guaranteed by Part III of the Constitution.

Constitution of India - Article 31-A(1) - Law providing for acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights cannot be declared void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Articles 14, 19 or 31 of Constitution.

Constitution of India - Article 31B - Acts and Regulations specified in 9th Schedule cannot be declared void on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the constitutionally protected fundamental rights.

Constitution of India - Article 245 - It grants the Parliament the authority to enact laws as well as the authority to amend them.

Constitution of India - Article 248 - It addresses the residual legislative powers. Parliament alone has the authority to enact laws pertaining to any subject not covered by the Concurrent List or State List.

Constitution of India - Article 368 - Deals with the powers of the Parliament to amend the Constitution and its procedure.

Contentions:

Petitioner

(i) Both the case of Sankari Prasad (MANU/SC/0013/1951), in which the Constitution (First) Amendment Act of 1951 was sustained, and the case of Sajjan Singh (MANU/SC/0052/1964), in which this Court supported the Constitution (Seventeenth) Amendment Act, 1964, were incorrectly determined.

(ii) The Constitution cannot be amended in a way that would harm, impair, or eliminate its basic structure, since it is meant to be permanent.

(iii) The phrase 'amendment' suggests an addition or alteration within the framework of the original instrument that would improve or better serve the purposes for which it was designed. It cannot be interpreted in a way that would allow the Parliament to undermine the Constitution's basic structure.

(iv) Since the Constitution's basic structure include the protection of fundamental rights, the power to amend Constitution may only be used to protect the essence of those rights rather than to destroy it. Amendment of Part III is outside the scope of Article 368 of the Constitution.

(v) Because the word 'amend' has a specific meaning, the limitations on the power to amend the Constitution are indicated in Article 368 of the Constitution. The broad language employed in other Articles of the Constitution, such as 'repeal' and 're-enact', suggests that Article 368 only permits an amendment of the Articles within the context of the Constitution and not their eradication.

(vi) The discussions in the Constituent Assembly reveal unequivocally that the authors of the Constitution never intended for Article 368 to allow the Parliament to abolish the fundamental rights.

(vii) Part III of the Constitution is a self-contained Code and its provisions are elastic enough to meet all reasonable requirements of changing situations.

(viii) The power to amend is sought to come from three sources, including -

• by implication under Article 368 itself; the procedure to amend, which culminates in the amendment of the Constitution, necessarily implies that power,
• the power and the limits of the power to amend are implied in the Articles sought to be amended, and
• Article 368 of the Constitution only lays down the procedure to amend, but the power to amend is only the legislative power granted to the Parliament under Articles 245, 246, and 248.

(ix) Since every branch of law - statutory, constitutional, etc. - is included in the definition of 'law' in Article 13(2) of the Constitution, any amendment power that takes away or abridges fundamental rights would be invalid.

(x) The 17th Amendment Act limits the High Court's jurisdiction under Article 226 of the Constitution as well as the States' legislative power; as a result, it is covered by the proviso to Article 368.

Respondent

(i) An amendment to the Constitution is made through the sovereign authority, not the legislative power of Parliament. As such, it has the qualities and characteristics of the Constitution itself.

(ii) The true difference lies in a constitution's flexibility or rigidity. The distinction is based on the amending power's clear limitations.

(iii) The terms of Article 368 of the Constitution are explicit and unambiguous. There is no room for asserting implicit restrictions on that authority.

(iv) The purpose of the amending clause in a flexible constitution is to give the parliament the ability to amend the constitution in order to express the will of the people in accordance with how events are developing. If this power is constrained by implied limitations, a revolution could overthrow the constitution as a whole.

(v) The Constitution has no basic or non-basic feature. Everything in it is fundamental, and it may be changed to support the nation's continued growth and development.

(vi) The Constituent Assembly's debates cannot be used to interpret Article 368 of the Constitution. Even if they could, there is no concrete evidence from the discussions that the fundamental rights were not subject to amendment.

(vii) Majority of amendments are made out of political necessity. They concern issues like how to exercise authority, how to improve the condition of citizens, and similar matters, and because they are not judicial issues. They fall beyond the purview of the court.

(viii) The language of Article 368 is unambiguous, categorical, mandatory and universal. In contrast, the wording of Article 13(2) is such that it admits conditions or restrictions. The Court, therefore, must interpret it in a way that prevents it from superseding Article 368 of the Constitution.

(ix) The great fabric of the Indian Union has been built since 1950 on the premise that the Constitution could be amended. As a result, any reversal of the previous decisions would cause economic chaos in our nation.

(x) Despite the fact that their areas of operation are restricted, Article 31-A and the 9th Schedule have no bearing on the High Court's authority under Article 226. It neither has any bearing on the States' legislative authority. Thus, they are not covered by the proviso to Article 368 of the Constitution.

Analysis

Sankari Prasad and Sajjan Singh - Correctness of views taken therein

I. Question of the amendability of the fundamental rights was considered by Supreme Court earlier in two decisions, namely, Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar and in Sajjan Singh v. State of Rajasthan.

II. In the former the validity of the Constitution (First Amendment) Act, 1951, which inserted, interalia, Articles 31-A and 31-B in the Constitution, was questioned. That amendment was made under Article 368 of the Constitution by the Provisional Parliament. It was held that Parliament had power to amend Part III of the Constitution.

III. This conclusion was reached mainly on two grounds, firstly, the word 'law' in Article 13(2) was one made in exercise of legislative power and not constitutional law made in exercise of constituent power; and secondly, there were two articles (Articles 13(2) and 368) each of which was widely phrased and, therefore, harmonious construction required that one should be so read as to be controlled and qualified by the other. The whole decision turned upon an assumption that the expression 'law' in Article 13(2) does not include constitutional law and on that assumption an attempt was made to harmonise Article 13 (2) and 368 of the Constitution.

IV. The decision in Sajjan Singh's case was given in the context of the question of the validity of the Constitution (Seventeenth Amendment) Act, 1964.

V. The majority, agreed with the reasons given in Sankari Prasad's case, and held that if it was the intention of the Constitution-makers to save, fundamental rights from the amending process they should have taken the precaution of making a clear provision in that regard. The majority agreed that no case had been made, out for reviewing the earlier decision and practically accepted the reasons given in the-earlier decision of Sankari Prasad.

Power to amend Constitution - Whether found in Article 368 or in Articles 245, 246 and 248 read with Entry 97 of List 1 of Constitution

I. Article 368 in terms only prescribes various steps in the matter of amendment. It assumes the power to amend found elsewhere. The completion of the procedural steps cannot be said to culminate in the power to amend for if that was so the Constitution makers could have stated that in the Constitution.

Doctrine of necessary implication - Whether can be invoked

I. Power to amend cannot be implied either from Article 368 or from the nature of the articles sought to be amended, the doctrine of necessary implication cannot be invoked if there is an express provision.

II. There is no necessity to imply any such power as Parliament has the plenary power to make any law including the law to amend the Constitution subject to the limitations laid down therein.

III. Power of Parliament to amend the Constitution is derived from Articles 245, 246 and 248 read with Item 97 in List I. The residuary power of Parliament can certainly take in the power to amend the Constitution.

Power to amend Constitution - Whether can be used to abridge fundamental rights guaranteed in Part III of the Constitution

I. Fundamental Rights cannot be abridged or taken away by the amending procedure in Article 368 of the Constitution. An amendment to the Constitution is 'law' within the meaning of Article 13(2) and is therefore subject to Part III of the Constitution.

II. The fundamental rights are given a transcendental position under our Constitution and are kept beyond the reach of Parliament. At the same time Parts III and IV of the Constitution constituted an integrated scheme forming a self contained code. The scheme is made so elastic that all the Directive Principles of State Policy can reasonably be enforced without taking away or-abridging the fundamental rights.

III. While recognising the immutability of the fundamental rights, subject to social control, the Constitution itself provides for the suspension or the modification of fundamental rights under specific circumstances, as in Articles 33, 34 and 35 of Constitution.

IV. Even during grave emergencies Article 358 only suspends Article 19 and all other rights are untouched except those specifically suspended by the President under Article 359.

V. The Constitution has given a place of permanence to the fundamental freedoms. In giving to themselves the Constitution the people have reserved the fundamental freedoms to themselves. Article 13 merely in-corporate that reservation.

VI. The importance attached to the fundamental freedoms is so transcendatal that a bill enacted by a unanimous vote of all the members of both Houses is ineffective to derogate from its guaranteed exercise.

VII. The incapacity of Parliament, therefore, in exercise of its amending power to modify, restrict, or impose fundamental freedoms in Part III arises from the scheme of the Constitution and the nature of the freedoms.

Law amending the Constitution - Whether 'law' within the meaning of Article 13(2)

I. Article 13(2), for the purpose of that Article, gives an inclusive definition of 'law'. It does not prima facie exclude constitutional law. The process under Article 368 of Constitution itself closely resembles the legislative process.

II. However, Article 368 is not a complete code in respect of the procedure of amendment. The details of procedure in respect of other bills have to be followed so far as possible in respect of a Bill under Article 368 also. The rules made by the House of the People providing procedure for amendments lay down a procedure similar to that of other bills with the addition of certain special provisions.

III. If amendment is intended to be something other than law the constitutional insistence on the said legislative process is unnecessary. Article 3 of the Constitution permits changes in States and their boundaries by a legislative process under Articles 4 and 169 of Constitution. Amendments in the solution are made by 'law' but by a fiction are deemed not to be amendments for the purpose of Article 368. Therefore, amendments either under Article 368 or under other Articles are only made by Parliament following the legislative process and are 'law' for the purpose of Article 13(2) of Constitution.

Constitution (Seventeenth Amendment) Act, 1964 - Validity of

I. The Constitution (Seventeenth Amendment) Act, 1964, inasmuch as it takes away or abridges fundamental rights was beyond 'the amending power of Parliament and void' because of contravention of Article 13(2) of Constitution.

II. But having regard to the history of this and earlier amendment to the Constitution, their effect on the social and economic affairs of the country and the chaotic situation that may be brought about by the sudden withdrawal at this stage of the amendments from the Constitution it was undesirable to give retroactivity of this decision.

III. Therefore it is a fit case for the application of the doctrine of 'prospective overruling', evolved by the courts in the United States of America.

IV. Constitution (Seventeenth Amendment) Act held the field the validity of the two impugned Acts, namely the Punjab Security of Land Tenures Act, 1953 and the Mysore Land Reforms Act, 1962, as amended by Act 14 of 1965, could, not be questioned on the ground that they offended Articles 13, 14 or 31 of the Constitution.

Doctrine of 'prospective overruling' cannot be applied in India

I. Doctrine of "prospective overruling" is a modern doctrine suitable for a fast moving society. It does not do away with the doctrine of state decision but confines it to past transactions.

II. Our Constitution does not expressly of by necessary implication speak against the doctrine of prospective overruling. Articles 32, 141 and 142 are designedly made comprehensive to enable the Supreme Court to declare law and to give such directions or pass such orders as are necessary to do complete justice.

III. Expression 'declared' in Article 141 is wider than the words 'found or made'. The law declared by the Supreme Court is the law of the land. If so, there is no acceptable reason why the Court, in declaring the law in supersession of the law declared by it earlier, could not restrict the operation of the law as declared to the future and save the transactions whether statutory or otherwise that were affected on the basis of the earlier law.

Concurring opinion of M. Hidayatullah, J.

I. Fundamental Rights are outside the amendatory process if the amendment seeks to abridge or take away any of the rights.

II. Sankari Prasad's case (and Sajjan Singh's case which followed it) conceded the power of amendment over Part III of the Constitution on an erroneous view of Articles 13(2) and 368 of Constitution.

III. First, Fourth and Seventh Amendments being part of the Constitution by acquiescence for a long time, cannot now be challenged and they contain authority for the Seventeenth Amendment.

IV. For abridging or taking away Fundamental Rights, a Constituent body will have to be convoked.

V. Two impugned Acts, namely, the Punjab Security of Land Tenures Act, 1953 and the Mysore Land Reforms Act, 1961 as amended by Act XIV of 1965 are valid under the Constitution not because they are included in IXth Schedule of the Constitution but because they are protected by Article 31-A of Constitution, and the President's assent.

Dissenting opinions of K.N. Wanchoo, Vashishtha Bhargava and G.K. Mitter, JJ.

I. The Constitution provides a separate part headed 'Amendment of the Constitution' and Article 368 is the only article in that Part, which must contain the power to amend the Constitution. If there was any doubt in the matter it is resolved by the words, namely, "the Constitution shall stand amended in accordance with the terms of the bill". These words can only mean that the power is there to amend the Constitution after the procedure has been followed.

II. While there is a whole part devoted to the amendment of the Constitution, there is no specific mention of the amendment of the Constitution in Article 248 or in any Entry of List 1. It would in the circumstances be more appropriate to read the power in Article 368 than in Article 248 read with Item 97 of List I.

III. The word 'law' has been avoided apparently with great care in Article 368 of Constitution. What emerges after the procedure has been followed is not an Act but an amendment to the Constitution. After that the courts can only see whether the procedure in Article 368 was followed or not.

IV. It may be open to doubt whether the power of amendment contained in Article 368 goes to the extent of completely abrogating the present Constitution and substituting it by an entirely new one. But short of that, the power to amend includes the power to add any provision to the Constitution to alter any provision and substitute any other provision in its place or to delete any provision.

V. The seventeenth amendment is merely in exercise of the power of amendment as indicated above and cannot be struck down on the ground that it goes beyond the power conferred by Parliament to amend the Constitution by Article 368.

VI. There is no express limitation on power of amendment in Article 368 and no limitation can or should be implied therein. If the Constitution makers intended certain basic provisions in the Constitution, and Part III in particular, to be not amendable there is no reason why it was not so stated in Article 368.

VII. There is no reason why if the word 'law' in Article 13(1) relating to past laws does not include any constitutional provision, the word 'law' in Article 13(2) would take in an amount of the Constitution. Article 13(2) when it talks of the State making any law, refers to the law made under the provisions contained in Ch. 1 of Part XI of the Constitution beginning with Article 245. It can have no reference to the constituent power of amendment under Article 368. Therefore, the word 'law' in Article 13(2) must be read as meaning law passed under the ordinary legislative power and not a constitutional amendment.

VIII. Though the period for which Sankari Prasad's case has stood unchallenged is not long, the effects which have followed on the passing of State laws on the faith of that decision, are so overwhelming that the decision should not be disturbed otherwise chaos will follow. This is the fittest possible case in which the principle of stare decisis should be applied.

IX. The doctrine of prospective overruling cannot be accepted in this country. The doctrine accepted here is that courts declare law and that a declaration made by a court is the law of the land and takes effect from the date the law came into force.

Dissenting opinion of R.S. Bachawat, J.

I. Article 368 not only prescribes the procedure but also gives the power of amendment. It is because the power to amend is given by the article that by following its procedure the Constitution stands amended. There is no other provision in the Constitution under which these articles' can be amended.

II. The power to amend the Constitution cannot be said to reside in Article 248 and Item 97 of List 1 because if amendment could be made by ordinary legislative process, Article 368 of Constitution would be meaningless. Under the residual power the Parliament has no competence to make any law with respect to any matter enumerated in Lists II and III of the 7th Schedule, but under Article 368 even Lists II and III can be amended.

III. Article 368 gives the power of amending this Constitution. This Constitution means every part of the Constitution including Part III and Article 13(2).

IV. The contention that a constitutional amendment under Article 368 is a law within the meaning of Article 13 must be rejected. The distinction between the Constitution and law is so fundamental that the Constitution is not regarded as a law or a legislative act. An amendment made in conformity with Article 368 is a part of the Constitution and is likewise not law.

V. The words 'fundamental' used in regard to rights in Part III and the word guaranteed in Article 32 do not mean that the said rights cannot be amended. The constitution is never at rest, it changes with the progress of time. The scale of values in Parts III and IV is not immortal and these Parts being parts of the Constitution are not immune from amendment under Article 368.

VI. The impugned amendments affected Articles 226 and 245 only indirectly and did not require ratification under the proviso to Article 168. In validating the impugned laws, Parliament was not encroaching on the State List. It was only validating the said laws and such constitutional validating was within its competence.

VII. If the First Fourth, Sixteenth & Seventeenth Amendments Acts are void they do not legally exist from their inception. They cannot be valid from 1951 to 1967 and invalid thereafter. Therefore, the doctrine of prospective overruling cannot be, adopted. If these amendments are validated by acquiescence, the Seventeenth Amendment is equally validated.

Dissenting opinion of Vaidynathier Ramaswami, J.

I. The amending power in Article 368 is sui generis and cannot be compared to the law making power of Parliament pursuant to Article 246 read with Lists II and III of Constitution.

II. The expression 'law' in Article 13(2) cannot be construed as including an amendment of the Constitution which is achieved by Parliament in exercise of its sovereign constituent. It can only mean 'law' made by Parliament in its legislative capacity under Article 246 read with List I and III of the 7th Schedule.

III. The language of Article 368 is perfectly general and empowers Parliament to amend the Constitution without any exception whatsoever. If the Constitution makers wanted certain basic features to be unamendable they would have said so.

IV. What the impugned 17th Amendment Act purports to do is not to make any legislation but to protect and validate the legislative measure passed by different State legislatures. This was within the legislative competence of Parliament. Articles 226 and 245 were not directly affected by the impugned Act and therefore no ratification by the State Legislatures was necessary.

V. Even on the assumption that the impugned 17th Amendment Act is unconstitutional the principle of stare decisis must be applied to the present case and the plea made by the petitioners for reconsideration of Sankari Prasad's case and Sajjan Singh's case must be rejected.

Conclusion

I. Power to amend the Constitution is derived from Articles 245, 246 and 248 of the Constitution and not from Article 368 thereof which only deals with procedure.

II. Amendment is 'law' within the meaning of Article 13 of the Constitution and, therefore, if it takes away or abridges the rights conferred by Part III thereof, it is void.

III. Constitution (First Amendment) Act, 1951, Constitution (Fourth Amendment) Act, 1955, and the Constitution (Seventeenth Amendment) Act, 1964, abridge the scope of the fundamental rights. But, on the basis of earlier decisions of this Court, they were valid.

IV. On the application of the doctrine of 'prospective over-ruling', the Constitution (Seventeenth Amendment) Act, 1964 will continue to be valid.

V. Parliament will have no power from the date of this decision to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein.

VI. As the Constitution (Seventeenth Amendment) Act holds the field, the validity of Punjab Security of Land Tenures, 1953 and the Mysore Land Reforms, 1962, as amended by Act XIV of 1965, cannot be questioned on the ground that they offend Articles 13, 14, or 31 of the Constitution.

Important Precedents

(i) A.K. Gopalan vs. The State of Madras MANU/SC/0012/1950

(ii) The State of Madras vs. Srimathi Champakam Dorairajan MANU/SC/0007/1951

(iii) M.S.M. Sharma vs. Sri Krishna Sinha and Ors. MANU/SC/0021/1958

(iv) Smt. Ujjam Bai vs. State of Uttar Pradesh MANU/SC/0101/1961