Judges: P.B. Gajendragadkar, C.J., J.R. Mudholkar, K.N. Wanchoo, M. Hidayatullah and Raghubar Dayal, JJ.

Facts:

Parliament passed the Constitution (Seventeenth Amendment) Act 1964, by which Article 31A was amended. 44 Acts were added to the Ninth Schedule of the Constitution, in order to preserve the legality of those Acts as well as of other Acts that were likely to be struck down.

People who were impacted by one or other of those Acts were the petitioners and interveners in the Writ Petitions filed before the Supreme Court.

Issues:

(i) What would be the requirement about making an amendment in a constitutional provision contained in Part III, if as a result of the said amendment, the powers conferred on the High Courts under Article 226 of the Constitution are likely to be affected?

(ii) Whether the word 'law' in Article 13(2) of the Constitution excludes an Act of Parliament amending the Constitution?

(iii) Whether Parliament is competent to make any amendment at all to Part III of the Constitution?

Law:

Constitution - Article 31B - None of the Acts included in the Constitution's Ninth Schedule will be regarded to be void or to have ever been void.

Constitution - Article 368 - It details the methods by which Parliament may amend the provisions of the Constitution.

Constitution - Article 226 - It gives the High Courts the authority to issue directives, orders, or writs, including writs of habeas corpus, mandamus, prohibition, quo warranto, certiorari, or any of them, to any person or authority, including the government (in proper instances).

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

Contentions:

Petitioner

(i) Powers prescribed by Article 226 of the Constitution are likely to be affected by the 17th Amendment of the provisions contained in Part III. Specific procedure outlined in the proviso to Article 368, which calls for the ratification by at least half the States, should be followed.

(ii) It is important to re-examine the ruling in Sankari Prasad Singh Deo v. Union of India and State of Bihar MANU/SC/0013/1951, which rejected this argument in relation to the First Amendment.

(iii) The bill introduced for the purpose of making such an amendment, must attract the proviso, and as the impugned Act has admittedly not gone through the procedure prescribed by the proviso, it is invalid.

(iv) True purpose and object of the impugned Act is to legislate in respect of land. Legislation in respect of land falls within the jurisdiction of the State Legislatures under Entry 18 of List II. Since the State Legislatures alone can make laws in respect of land, Parliament had no right to pass the impugned Act.

(v) Power to amend, which is conferred by Article 368 of the Constitution, does not include the power to take away the fundamental rights guaranteed by Part III.

Analysis:

Effect of Amendment on Power of High Courts under Article 226 of the Constitution

(i) Per majority opinion, the main part of Article 368 of the Constitution and its proviso must, under a fair interpretation, be consistent with one another.

(ii) Such an interpretation mandates that it would be required to evaluate whether the proviso to Article 368 of the Constitution would apply in such a circumstance if amending fundamental rights was to significantly restrict the High Court's authority of judicial review under Article 226 of the Constitution.

(iii) The caveat might not apply if the effect is indirect, incidental, or otherwise of a minor order. Finding the essence and content of the contested Act is the standard to be used when addressing such a matter.

(iv) If the pith and substance test is applied to the amendment made by the impugned Act, it is evident that the Constitution (Seventeenth Amendment) Act only modifies fundamental rights in order to remove constraints on the implementation of socioeconomic policy.

(v) It has a minor, accidental impact on Article 226 of the Constitution.

(vi) As a result, the impugned Act is covered by the substantive portion of Article 368 and is exempt from the proviso.

No justification for reconsidering Shankari Prasad case

(i) The question about the validity of the Constitution (First Amendment) Act was considered in Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar MANU/SC/0013/1951. One of the grounds of challenge was that the newly inserted Articles 31A and 31B sought to make changes in Articles 132 and 136 in Chapter IV of Part V and Article 226 in Chapter V of Part VI of the Constitution. This contention was rejected by observing that the said Articles "did not either in terms or in effect seek to make any change in Article 226 or in Articles 132 and 136".

(ii) Per majority opinion in present case, the Constitution is a living document created to act as a roadmap for resolving complex issues. However, the Court should be reluctant to agree to the proposal that its past rulings should be casually re-examined. In such a situation, the key question is whether it is absolutely necessary to revisit the already settled question. The Amendments of 1951 and 1955 as well as several judgements pertaining to the legality of the Acts in the Ninth Schedule would be put in considerable peril if the petitioners' claim were to be accepted.

(iii) Per minority opinion, the attack on the Seventeenth Amendment Act was based on grounds most of which were the same as those urged and rejected in the earlier case of Sankari Prasad Singh Deo. No case made out by the petitioners either for the reconsideration of that decision or for striking down the Seventeenth Amendment.

Power of Parliament to Amend Constitution - Article 368 of the Constitution

(i) In the context of the constitution, this includes the authority to modify, change, or even amend the provisions such that they are inapplicable in specific circumstances to those included in Part III. The phrase 'amendment of the Constitution' clearly and unmistakably refers to changing all of its provisions. The proviso's language makes it clear that the substantive part of the Article applies to all of the Constitution's provisions.

(ii) Parliament in enacting the impugned Act was not making any provision of land-Legislation. Per majority opinion, the Parliament was just approving land-Legislation that had previously been enacted in that regard by the State Legislatures.

(iii) Parliament may validate laws which have been declared invalid by courts. Authority granted to Parliament by Article 368 may be used both in the present and in the past. Parliament has the authority to uphold legislation that have been ruled unconstitutional by the courts.

Amendment to Constitution - Meaning of 'Law' within Article 13(2) of Constitution

(i) A legislation approved by Parliament with its inherent authority to amend the Constitution is not a law as defined by Article 13(2) of the Constitution.

(ii) The makers of the Constitution would have taken the care of inserting an explicit provision in that respect if they had intended for any future revision of the provisions relating to fundamental rights to be subject to Article 13(2) of the Constitution.

Power to amend - Part III of the Constitution

(i) The idea that the fundamental rights in Part III were meant to be fixed and established once and for all, without the possibility of further amendment, would not be a realistic one on which to continue. The concepts of public interest and other crucial considerations may change and expand as a result of the socioeconomic issues that legislatures may occasionally have to deal with.

(ii) It is reasonable to assume that the Constitution-makers were aware that Parliament should have the authority to amend those rights in order to address the challenges presented by potential issues. Therefore, the fundamental rights protected by Part III could not have been meant to be everlasting, inviolate, and beyond the grasp of Article 368 of the Constitution.

(iii) Constitution (Seventeenth Amendment) Act does not amend the provisions of Part III but makes an independent provision. Constitution (Seventeenth Amendment) Act is outside the purview of the proviso to Article 368 since it simply modifies Articles 31A and 31B of the Constitution and adds a number of Acts to the Ninth Schedule, not Part III's provisions.

(iv) If Parliament decided that adding Articles 31A and 31B would be more suitable than following the laborious procedure of altering each pertinent Article in Part III, then what Parliament did in 1951 has provided a legitimate foundation for additional amendments in 1955 and in 1964.

Conclusion:

(i) Article 368 of the Constitution empowers the Parliament to amend any article of the Constitution.

(ii) While the scope of Article 368 is restricted to constitutional law, Article 13 is only confined to ordinary legislation and does not apply to constitutional amendments.

(iii) Parliament has the power to amend the fundamental rights of the people conferred vide Part III of the Constitution.

(iv) An amendment made by resort to the first part of Article 368 of the Constitution could be struck down upon a ground such as taking away the jurisdiction of the High Courts under Article 226 or of this Court under Article 136 without complying with the requirements of the proviso.

Important Precedents:

(i) Sankari Prasad Singh Deo v. Union of India and State of Bihar MANU/SC/0013/1951

(ii) Karimbil Kunhikoman v. State of Kerala MANU/SC/0095/1961

(iii) A. P. Krishnaswami Naidu, etc. v. The State of Madras MANU/SC/0039/1964

(iv) A. K. Gopalan v. The State of Madras MANU/SC/0012/1950