# HIS HOLINESS KESAVANANDA BHARATI SRIPADAGALA VARU v. STATE OF KERALA

- **Citation:** [1973] Supp. 1 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1973-04-24
- **Case number:** Writ Petition No. 135 of 1970
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/his-holiness-kesavananda-bharati-sripadagala-varu-v-state-of-kerala-6606
- **Pages:** 1006

## Headnote

HIS HOLINESS KESAVANANDA BHARAT!
SRIPADAGALA VAR U
u.
STATE OF KERALA
April 24, 1973
(S. M. SIKRI, C. J., J. M. SHELAT, K. S. HEGDE, A. N.
GROVER, A. N. RAY, P. JAGANMOHAN REDDY, D. G.
PALEK.AR, H. R. KHANNA, IC K. MATHEW, M. H. BEG,
S. N. DWIVEDI,
A.
K. MUKHERJEA
AND Y. V.
CHANDRACHUD, JJ.)
Constitution of India, 1950-Artick 368 before Constitution (Twenty Fourth)
Amendment Act, 197!-Nature and scope of the amending power.
Article 13(2)-'Law' in 13(2) if includes amendment of the ConstitutionDistinction between legislative power and constituent power.
Article 368-"Amendment" meaning of-"Amcndmcnt" if includes the
power to abrogate the Constitution-If includes the power to alter the basic structure or frame-work of the Constitution,
Fundamental Rights-If amendment can take away or abridge the rights
guaranteed in Part III.
Fundamental Righu--If inalienable natur31 rights so as to operate as restriction on the amending power.
Implied and inherent limitations-Power of amendment if subject to inherent
or implied limitations.
Preamble-Nature-Preamble, if operates as a source of implied limitation
on the power of amendment.
Constitution (Twenty Faurth) Amendment Act 1971-Validity of-Amend·
mrot if enlargement of the limits of the Amending power.
Article 368-lf there are inherent or implied limitations in the article ..
amended.
Constitution (Twenty Fifth) Amendment Act, 1971-Validity of.
Section 2(a) & (b)-Substitution of 'amount' for 'compensation'-Exclusion
of article 19(l)(f) to law in article 31(2)~1£ abrogates the basic structure of
the Constitution-Meaning of 'amount'-Scope of judicial review of adequacy.
Section 3-lntroduction of new asticle 31C-Nature and object of the articloArticle if abrogates the essential features of the Constitution-If amounts to delegation of amending power to state legislatures-Effect of Declaration-Nexus
of law under the article to the directives in article 39(b) and (c), if subjedl to
judicial review.
Directive Principles of State Policy-Importance in the constitutional schcmcRclation with fundamental rights. Property, right to-Nature of the right.
1
2
SUPREME COURT REPORTS [1973] Supp. s.c.R.
Constttutron (Twenty Ninth) Amendment Act, 1972-Validity of-Article
31B and 31A-lf interrelated.
Judicial Revietu-Limits of-Place of judicial review in the constitutional
scheme.
·,
Interpretation-Rules of Constitutional interpretation-Constituent Assembly
Debates, relevancy of.
The question whether the fundamental rights set out in Part III of the C:Onstitution could be taken away or abridged by amendment of the Constitution
was first considered by this Court in Sankari Prasad v. Union of India,
[1952]
S.C.R. 89. In Sankari Prasad the validity of the Constitution (First Amendment)
Act 1951, was challenged. The First Amendment made changes in articles 15
and 19 of the Constitution and inserted articles 31A and 31B.
The principal
contention
was
that
the First Amendment in
so
far
as it purported
to take away or abridge the rights conferred by Part _III of the Constitution fell within the prohibition of article
13(2) of
the
Constitution.
The Court unanimously held that the word 'law' in article 13(2) was relatable
to exercise of ordinary legislative power and not amendments to the Constitution
and that the terms of article 368 were general to empower Parliament to amend
the Constitution without any exception. The question came up again in Sajjan
Singh v. State of Rajasthan, [1965] 1 S.C.R. 938, wherein the validity of the
Constitution (Seventeenth Amendment) Act 1964, was challenged. The majority
view in Sa;jan Singh was that article 368 plainly and unambiguously meant
amendment of all provisions of the Constitution and that the ward •iaw' in
article 13(2) did not take
in
Constitution
Amendments.
Thereafter,
in
Golaknath v. State of Punjab, the Court, six against live, hdd that an amendment
of the Constitution was 'law' within the meaning of article 13(2); therefore, if
an amendment took away or abridged the fu

## Text

_Characters 0–39,932 of 2,868,881. This is a partial read: ask again with offset=39932 for what follows._

HIS HOLINESS KESAVANANDA BHARAT!
SRIPADAGALA VAR U
u.
STATE OF KERALA
April 24, 1973
(S. M. SIKRI, C. J., J. M. SHELAT, K. S. HEGDE, A. N.
GROVER, A. N. RAY, P. JAGANMOHAN REDDY, D. G.
PALEK.AR, H. R. KHANNA, IC K. MATHEW, M. H. BEG,
S. N. DWIVEDI,
A.
K. MUKHERJEA
AND Y. V.
CHANDRACHUD, JJ.)
Constitution of India, 1950-Artick 368 before Constitution (Twenty Fourth)
Amendment Act, 197!-Nature and scope of the amending power.
Article 13(2)-'Law' in 13(2) if includes amendment of the ConstitutionDistinction between legislative power and constituent power.
Article 368-"Amendment" meaning of-"Amcndmcnt" if includes the
power to abrogate the Constitution-If includes the power to alter the basic structure or frame-work of the Constitution,
Fundamental Rights-If amendment can take away or abridge the rights
guaranteed in Part III.
Fundamental Righu--If inalienable natur31 rights so as to operate as restriction on the amending power.
Implied and inherent limitations-Power of amendment if subject to inherent
or implied limitations.
Preamble-Nature-Preamble, if operates as a source of implied limitation
on the power of amendment.
Constitution (Twenty Faurth) Amendment Act 1971-Validity of-Amend·
mrot if enlargement of the limits of the Amending power.
Article 368-lf there are inherent or implied limitations in the article ..
amended.
Constitution (Twenty Fifth) Amendment Act, 1971-Validity of.
Section 2(a) & (b)-Substitution of 'amount' for 'compensation'-Exclusion
of article 19(l)(f) to law in article 31(2)~1£ abrogates the basic structure of
the Constitution-Meaning of 'amount'-Scope of judicial review of adequacy.
Section 3-lntroduction of new asticle 31C-Nature and object of the articloArticle if abrogates the essential features of the Constitution-If amounts to delegation of amending power to state legislatures-Effect of Declaration-Nexus
of law under the article to the directives in article 39(b) and (c), if subjedl to
judicial review.
Directive Principles of State Policy-Importance in the constitutional schcmcRclation with fundamental rights. Property, right to-Nature of the right.
1
2
SUPREME COURT REPORTS [1973] Supp. s.c.R.
Constttutron (Twenty Ninth) Amendment Act, 1972-Validity of-Article
31B and 31A-lf interrelated.
Judicial Revietu-Limits of-Place of judicial review in the constitutional
scheme.
·,
Interpretation-Rules of Constitutional interpretation-Constituent Assembly
Debates, relevancy of.
The question whether the fundamental rights set out in Part III of the C:Onstitution could be taken away or abridged by amendment of the Constitution
was first considered by this Court in Sankari Prasad v. Union of India,
[1952]
S.C.R. 89. In Sankari Prasad the validity of the Constitution (First Amendment)
Act 1951, was challenged. The First Amendment made changes in articles 15
and 19 of the Constitution and inserted articles 31A and 31B.
The principal
contention
was
that
the First Amendment in
so
far
as it purported
to take away or abridge the rights conferred by Part _III of the Constitution fell within the prohibition of article
13(2) of
the
Constitution.
The Court unanimously held that the word 'law' in article 13(2) was relatable
to exercise of ordinary legislative power and not amendments to the Constitution
and that the terms of article 368 were general to empower Parliament to amend
the Constitution without any exception. The question came up again in Sajjan
Singh v. State of Rajasthan, [1965] 1 S.C.R. 938, wherein the validity of the
Constitution (Seventeenth Amendment) Act 1964, was challenged. The majority
view in Sa;jan Singh was that article 368 plainly and unambiguously meant
amendment of all provisions of the Constitution and that the ward •iaw' in
article 13(2) did not take
in
Constitution
Amendments.
Thereafter,
in
Golaknath v. State of Punjab, the Court, six against live, hdd that an amendment
of the Constitution was 'law' within the meaning of article 13(2); therefore, if
an amendment took away or abridged the fundamental rights it was void, that
the Constitution First1 Fourth and Seventeenth Amendments abridged fundamental
rights but were valid on the application of the doctrine of prospective overruling
or acquiescence and that Parliament had no power from the date of the decision
to amend any of the provisions of Part III so as to take away or abridge the
fundamental rights.
One of the amendments affecting the right to propeny was the Constitution
(Fourth Amendment) Act, 1955. The Amendment Act had enacted that no law
providing for compulsory acquisition or requisitioning "shall be called in question
in any Court on the ground that the compensation provided by that law is not
adequate". The amendment was passed to get over the interpretation given by
the Court in State of West Bengal v. Bela Baoerju, [1954] S.C.R. 674, to the
word 'compensation' viz., just equivalent or full indemnification for the property
expropriated. The effect of the amendment was considered by this Court in
Vairavdu Mudaliar v. Del'Uty Collector, [1965] 1 S.C.R. 614. The Court took
the view that the
fact that
Parliament used the same expressions, namely,
'compensation' and 'principles', as were found in article 31 before the amendment,
was clear indication that Parliament accepted the meaning given by the Court to
tho.9e expressions in Bela Banerjee's case. In Union of India v. Metal Corporation,
[ 1967] 1 S.C.R. 255 the Coun struck down the Metal Corporation (Acquisition of
Undertaking) Act 1965, because the principles for determining the: compens.ation
laid down in the Act did not represent the just equivalent of the property taken.
Later, in State of Guiarat v. Shanti/al Mangal Das, [1969] 3 S.C.R. 341, the Court
overruled the decision in Metal Corporaticm case. The Court held that a challenge
to a statute that the principles specified by it did not a\\·ard a just equivalent
would be in clear violation of the Constitutional declaration that adequacy of
conlpensation provided was not justiciable, that just equivalent was not c.apable of
precise determination by the application of any recognised principles and that
"''apart from the practical difficulties the law declared by this Court also placed
KESAVANANDA f/, XEaALA
3
serious obstacles in giving effect to the directive
principles of State policy
incorporated in article 39".
Thereafter, in R .. C. Cooper v. Union of India
(The Bank Nationalisation Case) [1970] 3 S.C.R. 530 the Court by a majority,
ten against one, held that even after the Fourth Amendment jjCompcnsation"
meant "the equivalent i~ terms of money of the property comp1:1lsorily acquired''
"according to r.elevant
principles which principles must be appropriate to the
determination of compensation for the particular class of property sought to be
acquired".
Arguments were addressed mainly in W iit Petition No. 135 of 1970. In
this Writ Petition the petitioner had challenged the validity of the Kerala Land
Reforms Amendment Art 1969 and the Kcrala Land Reforms Amendment Act,
1971, for ·the .reason that some of the provisions thereof violated articles
14,
19(l)(f), 25, 26 and 31 of the Constitution. During the pcndency of the Writ
Petition Parliament passed_ three constitution amendments,
namely the Constitution Twenty Fourth, Twenty Fifth and Twenty Ninth Amendment Acts.
The Constitution Twenty Fourth Amendment Act amended article 368. It
enacted that Parliament may, in exercise of its constituent power, amend by way
of addition, variation or repeal any provision of the Constitution in accordance
with the procedure laid down in that article. The other part of the amendment
is that nothing in article 13 shall apply to any amendment under article 368°.
• Atticle 368 · before amendment.
Procedure for amendment •f tho Constitution:
An amendmont of Ibis Com·
titution may be initiated only by the
introducion Of a
Bill for the purpose in
either House of Parliament. when the Bill is passed in each House by a majority
Of the total membership of that House and by a majority of not less than two
thirds of 1lhe members of that H""" present and voting, it shall bo presented to
President for his auent and upon such assent beina: a:iven to the Bill. the Consti·
tution shall stand amended in accordance with the terms of the Bill.
Provided that if such amendment seeks to make any cban,ge in:-
(a) article 54, article 55, article 73, article 162 or article 241; or
(b) Chapter IV of Part V. Chapter V of Pan VJ, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Scbcdule, or
(d) the representation of States in Parliament, or
(e) thci provisions of this article,
the amendment shall also require to be ratified by the Legislatures of not less than
one-half of the States by resolution to that effect
passed
by those Legislatures
before the Bill making provisiori for such amendment is presented to the President
for absent
Article 368 after amendment-Article 368 of the Constitution shall be re-num·
bered as clause (2) thereof, and
(a) for the marginal heading of that article, the following marginal heading
shall be substi!uted, nomcly :-
.. Power of Parliament to amend the Constitution and procedure therefor".
(b) before clause (2) as so re-numbered, the foHowing c1ause shall be insert·
ed, namely:-
"Notwithstanding anything in this
Constitution, Parliament may in exercise !l! its cons~tuent PJ?We.r a.IJ?.end by way ·of ~di ti on, variation or repeal any
prov1s1on of this Constitution 1n accordance with the procedure laid down in
this article".
(c) in claus~ (2) aS so . re-numbered, for the words "it shall be prcsent.ed to
the President for his
assent and
upon such
assent being given to the
Bill", the words "if shall be presented to the President who shall give bis
assent to the Bill and thersupon" shall be substituted;
(d) ·after clause (2) as so re-numbered, the fo1lowing
clause shall be inserted
namely:-
"(3) Nothing in Article 13 shall apply to any amendment made under this
articleu.
4
SUPREME COU1T REPOR'n (1973] Supp. S.C.R.
The Constitution Twenty Fifth Amendment Att amended article 31(2) and
article 31(2-A). Section 2 of the Amendment Act substituted the word "amount"
for the word "compensation" and excluded the applicatioo of article 19(1)(f) to
a law under article 31(2). It was also made clear that no such law shall be
called in question in any court on the groond that the whole or any port of
such amount is to be given othlcrwise than in cash. Section 3 introduced new
article 31C. It empowered Parliament and State Legislatures to enact law giving
effect to the J;><>licy of the State towards securing the directive principles. in clause
(b} or cl. (c) of article 39 and no such law could be questioned on the ground
that it took away or abridged any of the rights conferred by articles 14, 19 and
31. Further, the amendment laid down that
11no law containing a declaration
that it is for giving effect to such policy shall be called in ~stion in any court
on the ground that it docs not give effect to such policy' . The provisions of
the article were not to be applied to a law made by the Legislature of a state
unless such law received the assent of the President. The Constitution (Twenty
Ninth). Amendment Act included the Kerala and Reforms Acts in the Ninth
Schedule to the Constitution making them immune from attack on the ground of
violation of the fundamental rights. The Petitioner challenged the validity of
the three Constitution Amendment Acts.
HELD : (By Full Court) : Thie Constirution (Twenty Fourth) amendment
Act, Section 2(a) md 2(b) of the Constirution (Twenty Fifth) Amendment Act
and the Constirution (Twenty Ninth) Amendment Act arc valid.
By maj<>rity : .Per Hegdc, Ray, Jaganmohan Reddy, Palckar, Khanna, Mathew,
Beg, Dwivedi, Mukhcrjea and Chandrachud, JI : The decision of the majority
in Golaknath that the word "law" in article 13(2) included amendments to tlle
Constitution and the article operated as a limitation upon the power to amend
the Constitution in article 368 is erroneous and is overruled.
By majority: Per Ray, Palekar, Khanna, Mathew, Beg, Dwivedi and Chandrachud, JJ : The power of amendment is plenary. It includes within itself the
power to add, alter or re.peal the various articles of the Constitution including
those relating to fundamental rights.
By majority: Per Sikri, C.J. and Shelat, Hegde, Grover, Khanna, Jaganmohan
Reddy and Mukherjea, JJ. (Ray, Palekar, Mathew, Beg, Dwivcdi and Chandrachud, JJ. dissenting) : The power to amend does not include the power to alter
the basic structure or framework of the Constitution so as to change its identity.
By majority: Per Ray, Palekar, Khanna, Mathew, Beg, Dwivcdi and Chandrachud JJ. (Sikri, C.J. and Shelat, Hcgdc, Grover, Mukherjca, JJ. holding contra
and Jaganmohan Reddy, J. leaving the question open) : The~ arc no inherent
or implied limitations on the power of amendment under arttcle 368.
By majority: The first pa". ?£article 31C. is valid •• 'f!>e seco~d. part of the
article, viz., "and no law conta1nmg a declaration that tt ts for giving e~ct ~o
such policy s'Na,11 be called.~, qu~tion. in any court on the ground that it docs
not give effect to such policy
1s invalid.
[Sikri, C.J. and Shelat, Hegde, Grove.r and Mukherjca, JJ. hel4 both the
parts of article 31C invalid.
Ray, Palekar, Ma~hew, Beg, Dwivedi and Chandrachud, JJ. held both the
ports of the article valid.
'I "
K:ESAVANANDA V. El!RALA (Sikn, C.J.)
s
Jaganmohan Reddy J, held the second part of the article invalid and the
fust part of the article valid subject to the severance of the words "inconsistent
with or takes away" and the words "article 14" therein.
Khanna J. held the first part of the article valid and the second part invalid.]
Per Sikri, . C. /. : The Con;titution Twenty Fourth Amendment is valid,
Section 2 of Constitttion Twenty Fifth Amendment is valid. Section 3 of
Constitution Twenty Fifth Amendment is void. The Constitution Twenty Ninth
Amendment is ineffective to protect the impugned sections if they abrogate or
take away fundamental rights.
The Golaknath case (1967) 2 S.C.R. 762 did not decide the ambit of article
368 with respect to the powors of Parliament to amend Article 13(2) or to
amend Article 368 itself. Nor did it determine the exact meaning of the expression "amendment of this Constitution". The leading majority did not express
-any opinion on the contention that in exercise of the power of amendment
Parliament cannot destroy the fundamental structure of the Constitution but can
-0nly modify provisions thereof within the framework· of the original instrument
for its better effectuation. The conclu.sion in Golaknath's case tl1at the power of
the Parliament to amend the Constitution is derived from
Article 245,
246
and 248 of the Constitution and not from Article 368 thereto and that amend·
ment is a legislative process docs not survive for discussion any longer;. because,
it was rightly admitted on behalf of the petitioners that the Constitution 24th
Amendment Act, 1971, in so far as it tran.sfcrs the power to amend the Cons·
titution from the residuary entry (Entry 97 List I) or Article 248 of the Constitution to Article 368, is valid. In other words Article 368 of the Constitutioo
as now amended by the 24th amendment deals not only with the procedure
for amendment but also with the express powers of Parliament to amend
the
Constitution. It is not necessary to discuss the merits of the question whether
amendment is 'law' within the meaninz of Article 13 as the same result follows
in this case even if it be assumed in favour of the respondents that an amendment
<>f the Constitution is not 'law' within Art. 13(2) of the Constitution. (p. 96].
I C. Golaknath v. State of Puniab (1967) 2 S.C.R. 672, Sri Sankari Prasad
Singh Deo v. Union of India and State of BU.ar (1952) S.C.R. 89 and Saiian
Singh v. State of Raiasthan (1965) 1 S.C.R. 933 discussed.
A. K. Gopa/an v. The State of Madras (1950) S.C.R. 88 at p. 100, referred to.
The expression 'Amendment of the Constitution' does not enable Parlia·
ment to abrogate or take away fundamental rights or to completely change
the fundamental features of the Constitution so as to destroy its identity.
Within these limits Parliament can amend every article:
(i) ID construing the expression
1amendment of the Constitution' one mwt
look at the whole scheme of the Constitution. It is not right to construe words
in vacuum and then insert the meaning into article. [p. 101].
Bidie v. General Accident, Fire anti Life Assurance Corporation
(1948)
2 All E.R. 995-998, Bourne v. Norwich Crematorium (1967) 2 All E.R. 576-578,
Towne v. Elsner 245 U.S. 418; 425-62 L. ed. 372-376 and obsecvations of Gwyer
C.J. in The Central Provinces & Bmr Act 1939 F.C.R. at page 42 and Lord
Wright in James v. Commonwealth of Australia 1936 A.C. 578 at page 613,
relied oa.
6
SUPU:M! COUllT 11.EPORTS [ 1973] Supp. s.c.R.
In the Constitution the word 'amendment' or 'amend' has been used in
various places to mean different things. In view of. the great variation of the
phrases used throughout the Constitution it follows that the word 'amendment'
must derive its oolou.r from Article 368 and the rest of the provisions of the
Constitution. It is not intended. that the whole Constitution could be repealed.
[p. 103, 107].
Mangal Singh v. Union of India (1967) 2 SCR 109 & 112 and Holmes v.
Tennison (10) L. ed. 579: 594, rdied on.
If on reading article 368 in the context of the
Constitution the
word
'amendment' is found to be ambiguous, one can refer to the preamble to find
which construction would fit in with the preamble. Therefore, the preamble of
our Constitution is of extreme impor-..ance and the Constitution should be read
and interpreted in the light of the grand and noble vision exprcssocd
in the
preamble. The Court was wrong in holding in the Berubari's case that the
preamble is not a part of the Constitution. It was expressly voted to be a part
of the
Constitution. In
some cases limitations have been
derived froril the
preamble. [pp. 112, 114, 116].
Re. Berubari Union and Exchange of Enclave>
(1960) 3 SCR 250; 281-82,
Golaknoth v. Punjab (1967) 2 SCR 762; 838 and 914, Behram Khurshed Pesikaka
v. The State of Bombay (1955) 1 SCR 613 at p. 653, In re. The Kera/a Education
Bill 1957 (1959) SCR 995; 1018-1019, Saiian Singh v. State of Rajasthan (1965)
I SCR 933, 968, Attomcy.General v. Prince Ernest Augustus of Hanover ( 1957)
A.C. 436; 460 and State of Vicwria v. The Commonwealth
45 A.L.J. 251, referred to.
It is impossible to equate the directive principles with fundamental rights.
To say that Directive Principles give a directive to take away fundamental rights
in order to achieve what is directed by the directive principles seems to be
a
contradiction in terms.
While our fundamental rights and directive .principles were being fashioned
and approved by the Constituent Assembly on December 10, 1948 the General
Assembly of the United Nations adopted a Universal Declaration of Human
Rights. The Declaration may 'not be a binding instrument but it shows how
India understood the nature of the human rights. In view of art. 51 of the
directive principles this Court must interpret the language of the Constitution,
which is after all a municipal law, in the light of the United Nations Charter
and the solemn declaration subscribed to by India. [p. 123].
Corocraft v. Pan American Airways (1969) 1 All. E.R. 82, 87, referred to.
The work of the Advisory Committee and the Minorities Committee of the
Constituent Assembly shows that no one ever contemplated that the fundamental
rights appertaining to the minorities would be liable to be abrogated by an
amendment of the COnstitution. The same is true about the proceedings in the
Constituent Assembly. There is no hint anywhere that abrogation of minorities'
rights was ever in the contemplation of the important members of the Constituent
Assembly. In the context of the British. Plan, the setting up o'f Minorities Subcommittee, the Advisory Committee and the proceedings of these c.ommittces as
well as the proceedings in the Constituent Assembly, it is impossible to read
the expression "Amendment of the Constitution" as empowering Parliament to
abrogate the rights qf minorities.
It is a sound rule of construction that speeches made by members of legislature in the course of· debates rdating tQ the enactment of the statute cannclt
be used as aids for interpreting any of the provisions of the statute. The same
.I
!f
,
ll.S,1.VANiNJ>A V. KERALA (Sikri, C.J.)
7
rule must be applied to the provisions of the Constitution. The speeches can be
relied on only in order to see if the course of the progress of a particular provision
or provisions throws any light on the historical background or shows that a
common understanding or agreement was arrived at between certain sections of
the people. [pp. 13l, 133].
Stat< of Travancore.Cochin and Others v. Bombay Co. Ltd. (1952) SCR
1112; 1121, Adminittrator-General of Bengal v. Prem Nath (1895) 22 I.A. 107Jl8, Gopalan's case (1950) SCR 88, Golaknath's case (1967~ 2 SCR 762; 792; 922,
H. H. Maharaiadhiraia Madhav Rao v. Union of India (1971) 3 SCR. 9 and
Union of India v. H. S. Dhillon (1972) 2 SCR 33, referred to.
The guarantee of fundamental rights extends to numerous rights and it could
not have been intended that all of them would remain completely unalterable
even if article 13(2) of the Constitution be taken to
include constitutional
amendments. A more reasonable inference to be drawn from the whole scheme
of the Constitution is that some other meaning of
'Amendment'
is
more
appropriate. This conclusion is also reinforced by the concession on behalf of
the respondents· that the whole Constitution cannot be abrogated or repealed
and a new one substituted. In other words the expression •Amendment' of this
Constitution docs not include a revision of the whole Constitution. If this is
true then which is that meaning of the -\vord 'amepdment' that is most appropriate and fits in with the whole schieme of the Constitution. That meaning
would be appropriate which would enable the country to achieve -a social and
economic revolution without destroying the democratic structure of the Constitution and the basic inalienable rights guaranteed in Part III and without going
outside the contours delineated in the Preamble. [p. 140].
The Bribery Com,nissioner v. Pedrick Ranasinghe (1%5) A.C. 172, MCCawley" v. The King (1920) A.C. 691, and In re. The Regulation and Control of
Aeronautics in Canada (1932) A.C. 54 at p. 70, referred to.
The same conclusion is arrived at by another line of reasoning. In a written
Constitution it is rarely that everything is said expressly. Powers and limitations
arc implied from necessity or the scheme of the Constitution. The Solicitor General
appearing on behalf of the Union of India conceded that implications can arise:
from a Constitution, but said that no implication necessarily arises under the
provisions of article 368. Reading the preamble, the fundamental importance of
the freedom of individual, indeed its inalienability, the importance of the economic,
social and political justice mentioned in the preamble, the importance of
the
directive principles-, the non-inclusion in article 368 or provisions like articles 52,
53 and various other provisions, an irresistible conclusion emerges that it was
not the intention to use the word "amendment' in the widest sense. It was the
common understanding that fundamental rights would remain in substance as
they are and they would not be amended out of existence. It semis also to have
been a common understanding that the fundamental features of the Constitution,
namely secularisn1, democracy, and the freedom of the individual would always
subsist in the wdfare state.
In view of the above reasons, a necessary implication a.rises that there are
implied limitations on the power of Parliament, that the expression 'Amendment of the Constitution' has .conseq,,.ntly a · timited meaning in our Constitution, and not the meaning suggested by the respondents. [pp. 141, 163; 164 ].
8
SUPREME COURT REPOllTS [1973) Supp, S.C.R.
The Bn"bery Commissioner v. Pedrick RllfUUinglie (1965) A. C. 172, Mangal
Sinth v. Uniun of India (1967) 2 SCR 109112, Taylor v. The Attornry-General
of Queensland 23 C.L.R. 457, and In "· The Initiative and R<f.,...dum Acl
(1919) A.C. 935, applied.
Hawk• v. Smith 64 L. Ed. 871, Rhode Island v. Palmer 64 L. Ed, 946,
Uniled States of America v. William H. Soragu1 (75) L. Ed. 640, Commissioner
of Stamps, Straits Settlements v. Oei Tjong Swan (1933) A.C. 378; 389, Bank
of Toronto v. Iambe (1887) 12 A.C. 575-587 and Th• State (at the prosecution
of Jeremiah Ryan) v. Captain Michael Lennon and others (1935) Irish Reports
170, discinguishcd.
If the argument that there is no limit to the power of Parliament
to
amend the Constitution is accepted, Article 368 can itself be amended to make
the Constitution completely flexible or
extremely
rigid
and
unamendablc.
If this is so a political party with a two-third majority in Parliament for a
few years could so amend the Constitution as to debar any other party from
functioning, establish totalitarianism, enslave
the
people and after having
effected these purposes make the Constitution unamcndablc or cxucmcly rigid.
For the· aforesaid reasons, one is driven to the conclusion that the expression
"Amendment of this Constitution" in Article 368 means any addition or change
in any of the provisions of the Constitution within the broad contours of the
Preamble and the Constitution to carry out the objectives in the Preamble a,nd
the Directive Principles. Applied to fundamental rights it would
mean
that
while fundamental righis cannot be abrogated reasonable abridgements of fundamental rights can be effected in the public interest. It is of course for Parliament to decide whether an amendment is nec.essa_ry. The courts will not be
concerned with the wisdom of the amendment. This meaning would enable
Parliament to adjust fundamental rights in order to secure whiat the Directive
Principles direct ro be accomplished, while maintaining the freedom and dignity
of every citizen. [p. 164 ].
(ii) Amendment within the contours of the Preamble and the Constitution
cannot be said to be a vague and unsatisfactory idea which Parliamentarians
and the public would not be able to understand. The true position is that
every provision of the Constitution can be amended provided in the result the
basic foundation and the basic structure of the Constitution remains tlM! same.
Basic -structure may be said to consist of the following features: (a) Supremacy
of the Constitution (b) Republican and democratic form of government (c)
Secular character ofi the Constitution (d) Separation of powers bctwen the leigslaturc, the executive and the judiciary (c) Federal character of the Constitution.
The above structure is built on the basic foundation, that is, the dignity and
freedom of the individual. This is of supreme importance. This cannot by any
form of amendment be destroyed. T~ above foundation and the above basic
features arc easily discernablc not only from the Preamble but the whole scheme
of the Constitution. [p. 165].
(iii) The provisions of articles 33, 358 and 359 and the uoe of the words
'rights conferred' in article 13(2) cannot support the proposition that some of
the rights in Part III arc not natural or inalienable righu. India was a party
to the Universal Declaration of Right1 and that declaration describes some fundamental rights as inalienable. Various decisions of this Court describe fundamental rights as 'natural rights' or 'human rigau'. [p. 167].
-
,
USAVANANDA I/, Jtl!RALA (Sikri, C.J.)
9
(iv) If Parliament hu power to pass the impugned amendment Acts, there
. i1 no doubt that the wisdom of the policy of the Pai:liament cannot be questioned. jlut if the net result of the above interpretation is to prevent Parliament
from abrogating the fundamental rights or the basic structure outlined above
it is impossible to appreciate that any uncertainty, friction or confusion
will
necessarily result. [p. 174].
·
(v} It was righ<tly concedc,d that Parliament could validly amend article
368 to transfer the source of '1"ending power from List I Entry 97 to Article
368. The amendments indicating that the source of amending power will be
found in article 368 itself and · the amendment making it obligatory on the
President to give his assent to anr. bill duly passed under the
article
were
within the amending power of the Parliament. It is not necessary to go into
the question whether Subba Rao, Chief Justice, rightly decided that the amending power was in List I Entry 97 or article 248 because nod:ting turns on it now.
It is not. legitimate to interpret article 368 as pehnitting Parliament to en·
larging its power to amend the Constitution. Clause ( c) of the proviso does not
give any different power than what is contained in the
main article. The
meaning of the expression 'amendment of the .Constitution~ docs not change
when one reads the provision. Article 368 can only be amended so as not to
change its identity completely.
Parliament, . for instance could not make
the
Constitution uncontrolled by changing the prescribed two third majority
to
simple majority. Similarly it cannot get rid of the true meaning of the expression
~'Amendment of t1le Constitution" so as to derive power to abrogate fundamental
righ.ts. If the words 'notwithstanding anything in the Constitution' arc designed
to/widen the meaning of the word 'amendment of the Constitution' it would
have to be held void as beyond the amending power. But they must not be
read to mean this. They are inserted to get rid of the argument that article 248
and Entry 97 List I contains power of amendment. Similarly, the insertion of
the words "in exercise of its constituent power only serves to exclude article 248
and Entry 97 List I and tmphasisc that it is not ordinary legislative rower that
Parliament is exercising under .Article 368 but legislative pov,;er o amending
the Constitution.
It cannot be said that if Parliament cannot increase its power of amendment
clause ( d} of Section 3 of the 24th. amendment which makes article 13 inapplicable to an amendment of the Constitution would be bad. There was no force
in this contCntion. Anicle 13(2) as it existed previous to the 24th amendment
as interpreted by the majority in GolaJcnath' s case prevented legislatures from
taking away ·or abridging the rigljts conferred by Article 13. In other words
any law whi.ch abridged a fund~mcntal _right even to a small extent was liable
to be struck down. Under Article 368 Parliament can amend every article of
the Constitution as long as the result is within the limits laid down in
this
judgment. The amendment of article 13(2) docs not go beyond the limits laid
down 1:5ecau~ Parliament cannot even after the amendment abrogate or authorise
abrogation or the taking away of fu!ldamental rights. After the amendment a
law which. !las the effect of merely abridging a right while remaining within
the limits laid down would not be liable to be struck down. [pp. 192, 193, 194].
Section 2 of the Constitution Twenty fifth Amendment Act, 1971, has been
validly enacted.
There cannot be any doubt that the object of Section 2 of the Constitution
Twonty Fifth Amendment Act is to modify the decision given by this Court
in RUllOm Cavtuiief COOf'<' v. UtJi.on of India (1970) 3 SCR 530 where it was
.held by ten judgos that the .Balling Companies (Acquisition and Transfer of
10
SUPREME COURT REPORTS [1973] Supp. s.c.R.
Undertakings) Act violated the guarantee of compensation under
article 3!(2)
in that it provided for giving certain amounts determined according to principles
which were not relevant in the determination of compensation of the undertaking
of the named Banks and by the method prescribed the amounts so declared
could not. be .regarded as-· compensation. Since the word compensation has been
deliberately omitted and substituted by the word 'amount' in the amended article
31(2), it is not possible to give to the word "amount" the figurative meaning,
that is, the full value. Article 3!(2) postulates that in some cases principles may
be laid down for determining the amount and these principles may lead to an
adequate amount or an inadequate amount. So this shows
that the
vrord
•amount' here means something to be given in lieu of the property to be acquirt.d but this amount has to and can be worked out by laying down certain
principles.
The principles must then have a reasonable
relationship to
the
property which is sought to be acquired. If this is so die amount ultimately
arrived at by applying the principles must have some reasonable relationship
with the property to be ;icquired, otherwise the principles laid down by the
Act could hardly be principles within the meaning of Article 31 (2 ). Similarly
when the alrtount is fixed by law the amount so fixed must ialso be fixed in
accordance with some principles because it could not have been intended that
if the amount is fixed by law, the legislature would fix the amount arbitrarily.
When the government places the legislation fixing the amount
before
the
legislature it will have to show that it has been fixed according to some principles. These principles cannot be different from the principle which the legislature would lay down. The change effected by the amendment in article 31(2)
is that a person whose property is acquired can no longer claim full compensation or just compensation but he can still claim that the law should
lay
down principles to determine the amount which he is to get and these principles must have a rational relation to the property sought to be acquired. If
article 31(2) were to be interpreted as meaning that even an arbitrary or illusory
or a grossly low amount could be given, which would
shock not only
the
judicial conscience
but the
conscience, of every
reasonable human being, a
serious question would arise whether Parliament has not exceeded its amending
power under article 368 of the Constitution. The substance of the fundamental
right to property under article 31 consists of three things: First, the property
shall be. acquired by or under a valid law; S«ondly, it shall be acquired only
for a public purpose; and thirdly, a person whose property has been acquired
shall he given an amount in lieu thereof, which is nor arbitrary, illusory or
shocking to the judicial conscience or to the conscience of mankind. Parliarnent
has no power under the article 368 to abrogate the fundamental rights but can
amend or rer,ulate or adjust them in its. exercise of amending power without
destroying them. Applying this to the fundamental right of property, Parlia.
ment cannot c-n1power legislatures to fix an arbitrary amount or illusory amount
or an amount th.at virtually amounts to confiscation, taking all
the
relevant
circumstances of the acquisition into consideration. Same considerations apply
to the manner of payment. It cannot be interpreted to mean that an arbitrary
manner of payment is contemplated. If discretion is conferred it must be excr.
ciscd reasonably. [pp. 195, 196, 197].
Robberts v. Hopu•ood (1925) A.C. 578; 590 and fames Laslie Williams
v.
Haines Thomas (1911) A.C. 381, referred to.
Article 31 (2B), the effect of which is to make article l9(!)(f) inapplicable,
cannot be said to be an unreliSonablc abridgement of right under article 19(1)(£).
While passing a law fixing principles, the legislatures arc bound to provide
a procedure for the detenninatiori of the amount and if the procedure is
arbitrary that provision may well be struck down under Article 14. [p. 199].
KE$AVANANDA v. KEllALA. (Sikri, C.J.)
11
Sec#on 3. of the ·Constitution Twenty Fifth Amendment Act, 1971, is
vo;iJ as it dekgates power to legi'slatures to amend the Constitution. Articl~
368 doi!s not enable Parliament in its Constituent capacity to delegaie ;u
function of amending the Constitut.,-on to another legislature or to itself
in its ordinary legiilative capaa"ty.
The . expression 'notwithstanding anything contained in article 13' with
which article 31C open• canMt mean that not only fundamental rights like article
19(1)(f) and article 31 arc excluded but funda:ncntal rights belonging to the
.Minorities and religious groups are also excluded. The article purports to save
laws which a State may make towards securing the principles specified in clause
(b) or (c) of article 39 from being challenged on the ground that the law is
inconsistent with or takes away or abridges any of the rights conferred
by
articles 14, 19 or 31. This is the only ground on which they cannot be
challenged. (p. 199].
The article. provides that if the law contains a declaration that it is for
giving effect to such policy, it shall not be called in question in any court
on the ground that it docs not give effect to such policy. In other words once
a declaration is given no court can question the law on the- grou.nd that il
has nothing to do with giving effect to the policy; whether it gives effect to
sOme other policy is irrelevant.
Further a law may contain some provision
dealing with principles specified in clause (b) or (c) of article 39 while other
sections may have nothing to do with it, yet on the language it denies any
court power or. jurisdiction to go into this question.
In the f:tcc of the dcdaration this Court would be unable to test the validity
of incidental provisions which do not constitute an essential and integral -part
of the policy directed to give ef!cct to article 39(b) and article 39(c) (p. 200].
Article 31C dif!crs in nature from article 31A. In article 31A the subject
maner of the legislation is clearly provided, namely, the acquisition by
the
State _pf any estate or any rights therein. [art.
31A(a) J Similarly the subject
matter of legislation is specifically provided in clauses (b),' (c) and (d)
of
article 31A. But in article 31C the sky is the limit because it leaves it to each
State to. adopt measures towards securing principles specified in clauses (b)
and (c) of article 39. The wording of articles 39(b) and 39(c) is vety wide.
The expression· "economic system" in article 39(c) may well include professional
and other services.
It would be difficult to resist the contention of the State
that each provision in the law had been taken for the purpose of giving effect
to the policy of the State. (pp. 201, 202].
In effect article 31C enables States to adopt any
policy they like and
•brogate article 14, 19 and 31 of the COnstitution at will.
Parliament cannot under article 368 abrogate fundamental rights. Parlia•
ment equally cannot enable the legislatures to abrogate them. This provision
enables legislatures to . abrogate fundamental rights and therefore
must be
declar.ed .unconstitutional. [p. 204],.
Article 368 of the C.Onstitution itself provides that amendment may be
initiated only by the introduction of a bill for the purpose in either House of
.Parliament ln _other word.s Article 368 docs not contemplate any <;>!her mode
·of amen\ll)lcn\ by Patli.ill)cllt aQ.d. it docs not equally contemplate Parliament
to set up .an~t body .to aq;.nd 'the C.Onstitution. It is ~IL settled ,i,ii. India
that Parliament canruit deltgate its essential legisl•tive functions. [p. 21Jof!!
12
SVPUMK coo.T llEPORTS (1973] Supp. s.c.a.
Since the State legislates under article 31C and the law abrogo,tes. or takes
away fundamental rights, the11: cease to have any eflect. The amendment ii
not then made by Parliament as the extent of the amendment is not known
till the State legislates. It is when the State legislates that the extent of the
abrogation or abridgement of the fundamental rights becomes clear. To all intents
and purposes it seems that it is State legislation that effects an amendment
of
the Constitution.