# SAJJAN SINGH v. STATE OF RAJASTHAN

- **Citation:** [1965] 1 S.C.R. 933
- **Court:** Supreme Court of India
- **Decided:** 1964-10-30
- **Case number:** Writ Petitions Nos. 31, 50, 52, 54, 81 and 82 of 1964
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, M. Hidayatullah, Raghubar 'Dayal, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sajjan-singh-v-state-of-rajasthan-3282
- **Pages:** 37

## Headnote

Constitution (Seventeenth Amendment) Act, 1964----Validity of.
In 1951, several State legislative measures passed for giving effect to
a policy of agrarian reform faced a serious challenge in the Courts.
In
order to assist the State Legislatures to give effect to the policy, Arts. 31A
and 3 !B were added to the Constitution by the Constitution (First Amendment) Act, 1951.
Article 31B provided that none of the Acts specified
in the Ninth Schedule to the Constitution shall be deemed to be void or
ever to have become void. In 1955, by the Constitution (Fourth Amendment) Act, Art. 3IA was amended.
Notwithstanding those amendments
some legislative measures adopted by different States for giving effect to
the policy \Vere effectively challenged.
Io order to save the validity of
those Acts as well as of other Acts which were likely to be struck down,
Parliament enacted the Constitution (Seventeenth Amendment), Act 1964,
by which Art. 31 A \Vas again amended and 44 Acts were added to the
Ninth Schedule. 1·he petitioners in the Writ Petitions in Supreme Courti
and interveners, were persons affected by one or other of those Acts.
They contended that none of the Act by which they were affected could
be sa\ed because the Constitution (Seventeenth Amendment) Act was
constitutionally invalid. It was urged that : (i) Since the powers prescnbed by Art. 226, which is in Chapter V, Part VI of the Constitution,
wore likely to be affected by Seventeenth Amendment, the special procedure laid down in the proviso to Art. 368, namely, requiring th~ ratifi~
cation by not less half the number of States, should be followed; (ii) The
decision in Sri Sankari Prasad Singh Deo v. Union of India and State of
Bihar, [1952] S.C.R. 89, which negatived such a contention when dealing
with the First Amendment, should be reconsidered; (iii) The Seventeenth
Amendment Act was a legislative measure in respect of land and since
Parliament had no right to make a law in respect of land, the Act was
invalid and (iv) Since the Act purported to set aside decision• of Court
of competent jurisdiction, it was unconstitutional.
HELD (by P, B, Gajendragadkar C. J., Wanchoo, and Raghubar Dayal
JJ.) : (i) The main part of Art. 368 and its proviso must on a reasonable
construction be harmonised with each other in the sense that the scope and
effect of either of them should not be allowed to be unduly reduced or enlarged. Such a constrnctionJrequires that if amendment of the fundamental righta
is to make a substantial inroad on the High Court's powers under Art.
226, it would become necess~ry to consider whether the pro\iso to Art.
368 would cover such a case. If the effect is indirect, incidental or other~
w1se of an insignificant order the proviso may not apply. In dealing wab
such a question, the test to be adopted is to find the pith and substance
of the impugned Act. So tested it is clear that the Constitution (Seventeenth
Amendment) Act amends the fundamental rights solely with the object of
removing obstacles in the fulfilment of a socio-economic policy.
Jts effect
93'
SUPREME COURT REPORTS
(1965) I S.C.R.
on An. 226 is incidental and insignificant The Act thereto" falls under
the substanuve pan of An. 368 and does not attract the proviso. (940 D-E ·
941 B-E; 944 D-F]
'
(ii) On the contentions urged there was no justification for reconsidering
Shankarl Prasatfs case. (947 G-Hl
Though the Constitution i.o an organic document intended to serve as
• guide to the solution of changing problems the Coun should be reluctant
to ~ccedc to the suggestion that its earlier decisions should be light-heartedly
reviewed and depaned from. In such a case the test is : ls it absolutely
necessary and <$SClllial that the question already decided should be reopened. The answer to the question would depend on the nature of the
infirmity alleged in the earlier decision, its impon on public good and
the validity and compelling character of the considerations urged in suppon of the contrary view.
It

## Text

_Characters 0–39,919 of 100,795. This is a partial read: ask again with offset=39919 for what follows._

A
B
c
•
•
D
E
F
G
..
H
SAJJAN SINGH
v.
STATE OF RAJASTHAN
(With Connected Petitions)
October 30, 1964
(P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO,
M. HIDAYATULLAH, RAGHUBAR 'DAYAL
AND J. R. MUDHOLKAR JJ.)
Constitution (Seventeenth Amendment) Act, 1964----Validity of.
In 1951, several State legislative measures passed for giving effect to
a policy of agrarian reform faced a serious challenge in the Courts.
In
order to assist the State Legislatures to give effect to the policy, Arts. 31A
and 3 !B were added to the Constitution by the Constitution (First Amendment) Act, 1951.
Article 31B provided that none of the Acts specified
in the Ninth Schedule to the Constitution shall be deemed to be void or
ever to have become void. In 1955, by the Constitution (Fourth Amendment) Act, Art. 3IA was amended.
Notwithstanding those amendments
some legislative measures adopted by different States for giving effect to
the policy \Vere effectively challenged.
Io order to save the validity of
those Acts as well as of other Acts which were likely to be struck down,
Parliament enacted the Constitution (Seventeenth Amendment), Act 1964,
by which Art. 31 A \Vas again amended and 44 Acts were added to the
Ninth Schedule. 1·he petitioners in the Writ Petitions in Supreme Courti
and interveners, were persons affected by one or other of those Acts.
They contended that none of the Act by which they were affected could
be sa\ed because the Constitution (Seventeenth Amendment) Act was
constitutionally invalid. It was urged that : (i) Since the powers prescnbed by Art. 226, which is in Chapter V, Part VI of the Constitution,
wore likely to be affected by Seventeenth Amendment, the special procedure laid down in the proviso to Art. 368, namely, requiring th~ ratifi~
cation by not less half the number of States, should be followed; (ii) The
decision in Sri Sankari Prasad Singh Deo v. Union of India and State of
Bihar, [1952] S.C.R. 89, which negatived such a contention when dealing
with the First Amendment, should be reconsidered; (iii) The Seventeenth
Amendment Act was a legislative measure in respect of land and since
Parliament had no right to make a law in respect of land, the Act was
invalid and (iv) Since the Act purported to set aside decision• of Court
of competent jurisdiction, it was unconstitutional.
HELD (by P, B, Gajendragadkar C. J., Wanchoo, and Raghubar Dayal
JJ.) : (i) The main part of Art. 368 and its proviso must on a reasonable
construction be harmonised with each other in the sense that the scope and
effect of either of them should not be allowed to be unduly reduced or enlarged. Such a constrnctionJrequires that if amendment of the fundamental righta
is to make a substantial inroad on the High Court's powers under Art.
226, it would become necess~ry to consider whether the pro\iso to Art.
368 would cover such a case. If the effect is indirect, incidental or other~
w1se of an insignificant order the proviso may not apply. In dealing wab
such a question, the test to be adopted is to find the pith and substance
of the impugned Act. So tested it is clear that the Constitution (Seventeenth
Amendment) Act amends the fundamental rights solely with the object of
removing obstacles in the fulfilment of a socio-economic policy.
Jts effect
93'
SUPREME COURT REPORTS
(1965) I S.C.R.
on An. 226 is incidental and insignificant The Act thereto" falls under
the substanuve pan of An. 368 and does not attract the proviso. (940 D-E ·
941 B-E; 944 D-F]
'
(ii) On the contentions urged there was no justification for reconsidering
Shankarl Prasatfs case. (947 G-Hl
Though the Constitution i.o an organic document intended to serve as
• guide to the solution of changing problems the Coun should be reluctant
to ~ccedc to the suggestion that its earlier decisions should be light-heartedly
reviewed and depaned from. In such a case the test is : ls it absolutely
necessary and <$SClllial that the question already decided should be reopened. The answer to the question would depend on the nature of the
infirmity alleged in the earlier decision, its impon on public good and
the validity and compelling character of the considerations urged in suppon of the contrary view.
It is therefore relevant and material to note
that if the argumoot urged by the petitioners were to prevail, it would
lead to the inevitable consequence that the amendments of 1951 and 1955
and a large number of decJSions dealing with the validity of the Acts in
the Ninth Schedule would be exposed to serious jeopardy. [948 E-H: 949
A-Bl
(iii) Patfr•tmnt in enaC1ing the impugned Act was not making any provision of land~legislation but was merely valtdating land·legislation already
pa.~<ed by the State Legislatures in that behalf. (945 CJ
(iv) The power conferred by An. 368 on Parliament can he exercised
both prospectively and retrospectively.
I< is open to Parliament to valida1e laws which have been declared invalid by courts.
(945 E-F)
(v) The power conferred by An. 368, includes the power to 1aJ;e
away the fundamental rights guarantee<! by Part Ill. In tbe context of
the Collstitution it includes the powet of modification, or changing the
provisiom, or even an amendment which makes the said provisions inapplicable in certain cases.
The power to amend is a very wide power
and cannot be controlled by the literal dictionary meaning of the word
.. amend".
The expression "amendment of the Constitution" plainly and
unambiguOW1ly means amendmcot of all the provisions of the Constitution.
T~e words used in the proviso unambiguously indicate that the sl!bstantive
part of the Article applies to all the provisions of the Constitution. (946 F;
947 A-B; 951 BJ
The word "law" in Art. 13 (2) does not include a law passed by Parliament by vinuc of iu constituent power to amend the Constitution.
If
the Constitution-makers had intended that any future amendment of the
rrovilions in regard to fundamental rights should be subject to Art. 13(2),
they would have taken the prceantion of making a clear provision in that
hehatf.
It would not be reuonable to proceed on the ba.•is that the
fundamental rights in Pan W wmc intended to be finally and immutably
settled and determined once for all and were beyond the reach of any
f uturc amendment.
The Constitution-makers must have anticip:tted that
m dealing with die socio-economic problcma which the legislatures may
have to face from time to time, doe concepts of public interest and other
importlllt considerations IR&Y change and expand. and ''" it is legitimate to
'"ume that the Comlimrion-mann knew that Parliament should be comretcot to make ameoc!menta in thole righll IO ao to meet the challenge of
the problems wlliell may arise. The fundamental righ13 guaranteed hy Pan
II! could 1IOI ha"" been intended to be eternal, in,iolate and beyond the
reach of Art. 368 for, -
if lhe l'C'Wel'S to ammd tbc fundamental ri!lhls
were -
illcluded in the Article, Parliament can bv a ouitable amendrMnt
of the Article take~ powcn. (9'1 F-H; 954 F-H; 955 E-0]
Article 226 wtricb confeno on ·Hlgti Oourt Ilse power to Mic writs fall•
under the provilo to Art. 3611, wtiile Art. 32 which Is itaclf a ~
fundamental rlabt md mal>J,. a citizen to move the Supmne Coort to
A
B
c
D
E
F
..
G
H
' -
•
SA.J.JAN .SINGH V. STATE
935
A
iS.ue writs, fall under the main part of the section. Parliament may consider whether the anamoly which is apparent in the different modes prescribed by Art. 368 for amending Arts. 226 and 32 respectively, should not
be remedied by includins,Part III itself in the proviso. [956 E-G]
Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar,
[1952) S.C.R. 89, followed.
A. K. Gopalan v. State of Madras, [1950) S.C.R. 88 and In " · The
B
De/hi Laws Act, [1951) S.C.R. 747, referred to.
c
D
E
F
G
H
(vi) It is not reasonable to suggest that, since the impuglled Act
amends only Arts. 3 IA and 3 IB and adds several
Acts to the Ninth
Schedule it does not amend the pro\isions of Part III but makes an independent provision, and so, comes within the scope of the proviso to
Art, 368. If Parliament thought that instead of adopting the cumbersome
process of amending each relevant Article in Part III, it would be more
appropriate to add Arts. 31A and 31B, then what Parliament did in 1951
has afforded a valid basis for further amendments in 1955 and in 1964. [946
B-E]
(vii) The fact that the Acts have been included in the Ninth Schedule
with a view to making them valid, does not mean that the Legislatures
which passed the Acts have lost their competence to repeal or amend them.
Also, iJ; a legislature amends any provision of any such Act, the amended
prmision would not receive the protection of Art. 3 IB and its validity will
be liable to be examined on the merits. [956 A-CJ
Per Hidayatullah and Mudholkar JJ. Quaere (i) Whether the word "law"
in Art. 13 (2) of the Constitution exclucJes an Act of Parliament amending
the Constitution. [959 E-F; 968 G]
(ii) Whether it is competent to Parliament to make any amendtnent at
all to Part III of the Constitution. [961 F-G; 968 G)
Per Mudholkar J. An amendment made by resort to the first part of
Art. 368 coμld be struck down upon a ground such as taking away the
jurisdiction of High Courts under Art. 226 o' of the Supreme Court under
Art. 136 or that the effect of the amendment is to curtail substantially,
though indirectly, the jurisdiction of the High Courts under Art. 226 or
the Supreme Court under Art. 136, and recourse had not been had to the
proviso to Art. 368. The question whether the amendment was a colourable exercise of power by Parliament may be relevant for consideration in
the latter kind of case. [969 D-F]
The attack on the Seventeenth Amendment Act was b3,'led on grounds
most of which were 'lhe same as those urged· and rejected in the earlier
case of Sankari Prasad Singh Deo v. Union of India and State of Bihar,
[1952) S.C.R 89, and on some grounds which are unsubstantial.
No
ease bes therefore been made out by the petitioners either for the reconsideration of that decision or for striking down the Seventeenth Amendment. [963 E-G)
Th following matters however were not considered in Sankari Prasad'•
case and merit consideration :-
(i) Where Legislation deals with the amendment of a provision of the
Constitution, does it cease to be law within the meaning of Art. 13(2)
merely because it has to be passed by a special majority ? [964 B-CJ
(ii) Wh- a challenge ia made before the Court on the ground that no
amendment to the Constitution had in fact been made 0t on the ground
that it was not a valid amendment, would it not be the duty of the Court
and within its power to examin& tile questM>n and to pronounce upon It
since Ibis ia precisely what a Court ia competent to. do in regard to aa)'
other law ? [964 Fl
936
SUPREME COUlt.T REPORTS
( 1965] I S.C.R.
(iii) Is the statement in A. K. Gopa/an v. Srate of Madras, [1950] S.C.R.
A
88 that the fundamental riahts are the minimum rights rcsen-cd by the
people to themselves.
and therefore unalterable,
inconsistent with the
statement in In re Delhi Laws Act, 1912 [1951] S.C.R. 747, that Parliament
,,
has plenary pow~rs of legislation? [965 D-E]
(iv) Whether mal:.ing a change in the basic features of the Constitution
can be regarded merely .. an amendment or. would it be, in effect, rewriting a part of the ConSlitution, and if it is the latter, would it be
B
within the purview of Art. 368 ? [966 H, 967 A]
(v) Upon the assumption that Parliament can amend Part 111 of the
Constitution and was therefore competent to enact Arts. 31A and JIB,
as also to amend the definition of "estate", can Parlian1cnt validate a State
law dealing with land ? [968 H, 969 A]
(vi) Could Parliament go to the extent it went when it enacted the
First Amendment and the Ninth Schedule and now when it added 44 more
C
agrarian laws to it? Or,
was Parliament incompetent to go,
hcyond
enacting Art. 3JA in 1950, and now, beyond amending the definition of
"Estate" ? (969 B-CJ
ORIGINAL JuRISDICTION : Writ Petitions Nos. 31, 50, 52, 54,
81 and 82 of 1964.
Petitions under Art. 32 of the Constitution of India for the
enforcement of Fundamental Rights.
R. Gopa/akrishnan, for the petitioners (in W.P. Nos. 31 and
52 of 1964).
G. C. Kasliwal, Advocate-General, State of Rajasthan, K. K.
D
Jain (for W. P. No. 31of1964 enly) and R. N. Sachthey, for the
E
respondent (in W. P. Nos. 31 and 52 of I 964).
C. K. Daphtary, Attorney-General and R. H. Dhebar, for the
Union of India.
M. C. Setalvad, J. B. Dadachanji, 0. C. Mathur and Ravinder
Narain, for intervener No. I.
F
G. S. Pathak. J. B. Dadachanji, 0. C. Mathur and Ravinder
Narain, for intervener No. 2.
Dipak Dutta Chaudhuri and A. K. Nag, for the petitioners (in
W. P. No. 50 of 1964).
B. K. Khanna and R. N. Sachthey, for the respondent (in
G
W. P. No. 50 1964).
S. K. Mehta, K. L. Mehta, for the petitioners (in W. P. No.
54 of I 964 ).
B. K. Khanna and R. N. Sachthey, for respondents Nos. I to
3 (in W. P. No. 54 of 1964).
H
R. V. S. Mani, for the petitioners (in W. P. Nos. 81
~nd
82 of 1964).
. (
' -
-. -
SAJJAN SINGH v. STATE (Gajendragadkar C.J.)
937
A
C. K. Daphtary, Attorney-General, B. Sen and R. H. Dhebar,
for respondent No. 1 (W. P. No. 81 of 1964).
C. K'. Daphtary, Attorney-General, R. K. P. Shankardass and
R.H. Dhebar, for respondent No. 1 (in W. P. ~o. 82 of 1964).
N. Krishnaswamy Reddy, Advocate-General, State of Madras,
B
A. Ranganadham Chetty and A. Y. Rangam, fo~ respondent No. 2
(in W. P. Nos. 81 and 82 1964).
c
K. S. Chawla and R. V. S. Mani, for intervel)er No. 3.
The Judgment of P. B. GAJENDRAGAD~R C.J., K.
N.
WANCHOO and RAGHUBAR DAYAL JJ. was delivered by GAJENDRAGADKAR C.J. M. HIDAYATULLAH and J. R. MUDHOLKAR JJ. delivered separate judgments.
Gajendragadkar C.J. These
six
writ
! petitions
which
have been filed under Art. 32 of the Constitution,
seek
to
challenge the validity of the Constitution (17th Amendment) Act,
D
1964. The petitioners are affected by one cir the other of the Acts
added to the 9th Schedule by the impugned Acti and their contention is that the impugned Act being constitutionally invalid, the
validity of the Acts by which they are affected cannot be saved.
Some other parties who are similarly affected by other Acts added
to the 9th Schedule by the impugned Act, have intervened at the
E
hearing of these writ petitions, and they have joiped the petitioners
in contending that the impugned Act is invalid.I The points raised
in the present proceedings have been elaborately argued before
us by Mr. Setalvad and Mr. Pathak for the interveners and Mr.
Mani for the petitioners. We have also heard the Attorney1.l'
General in reply.
G
H
The impugned Act consists of three sections. The first section
gives its short title.
Section 2 (i) adds a proviso to cl. (1) of
Art. 3 lA after the existing proviso. This proviso reads thus :
"Provided further that where any laiv makes any
provision for the acquisition by the State [of any estate
and where any land comprised therein is held by a person
under his personal cultivation, it shall not be lawful for
the State to acquire any portion of such la~d as is within
the c~iling limit applicable to him under ajly law for the
time being in force or any building or structure standing
thereon or appurtenant thereto, unless the Jaw relating
to the acquisition of such land, building or structure,
provides for payment of compensation at a rate which
shall not be less than the market value thereof'.
938
SUPREME COURT llBPOltTS
(196Sj ls.CR.
Section 2(ii) substitutes the following sub-clause for sub-cl. (a)
of cl. (2) of Art. 31A :-
"(a) the expression "estate" shall, in relation to any
local area, have the same meaning as that expressmn or
Its local equivalmt has in the existing 11\W relating to land
tenures in force in that area and shall also include-
(i) any jaglr, inam or muafi or other similar grant and
in the States of Madras and Kerala, any janmam.
right;
(ii) any land held under ryotwari settlement;
(iii) any land held or let for purposes of agriculture or
for purposes ancillary thereto, including waste land,
forest land, land for pasture or sites of buildings
and other structures occupied by cultivators of land,
agricultural labourers and village artisans".
c
Section 3 amends the 9th Schedule by adding 44 entries to it. ])
That is the nature of the provisions contained in the impugned
Amendment Act
Jn dealing with the question about the validity of the impugned
Act, it is necessary to consider the scope and effect of the provisions contained in Art. 368 of the Constitution, because a large
E
part of the con~oversy in the pre5ent writ petitions turns upon
the deci~ion of the question as to what the true scope and effect
of Art. 368 is. Let us read Art. 368 :
"368. An amendment of this Constitution may be
initiated only by the introduction of a Bill
for
the
purpose in either House of Parliament, and when the
F
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 the members of that House present
and voting, it 'shall be presented to the President for
his assent and upon such assent being given to the Bill.
the Constitution shall stand amended in accordance with
G
the terms of the Bill :
Provided that if such amendment seeks to make any
change in-
( a) Article S4, Article SS, Article 73, Article 162 or
Article 241, or
B
(b) Chapter IV of Part V, Chapter V of Part VI, or
ChaJ>'er I of Part XI, or
~ I
, ..
SAJJAN SINGH v. STATE (Gajendragadkar C.J.)
939•
A
( c) any of the Lists in the Seventh Schedule, or
( d) the representation of States in Parliament, or
( e) the provisions of this · Article,
the amendment s]lall also require to be ratified by the
Legislatures of not less than oμe-half of the States by
B
resolutions to that effect passed by those Legislatures
before the Bill making provision for such amendment is
.presented to the· President for assent".
.
.
It would, thus, appear that the broad scheme of Art. 368 is
that if Parliament proposes to amend any provision of the ConstiC tution not enshrined in the proviso, the procedure prescribed by
the main part of ihe Article has to be followed. The Bill introduced' for the purpose of making the amendment in question, has
to be passed in each House by a IJlajority of the total membership
of that House and by a majority of not· less than two-thirds of
the members of that House ·present and voting. This requirement
D
postulates that a bill seeking to amend the relevant provisions of
the Constitution should receive substantial support from members
of both the Houses. That is why a two-fold requirement has been
prescribed in that behalf: A£ter the bill is passed as aforesaid,
it has to be presented to the President for his assent and when
he gives his assent, the .Constitution. shall stand amended in·
E
accordance with the terms of the bill.
That is 'the position in
regard to the amendment of the provisions of the Constitution
to which the proviso does ri.ot apply.
If Parliament intends tO amend any of the provisions of the
Constitution which are covered by clauses (a) to ( e) of the
F
proviso, there is a further requirement which has to be satisfied
before the bill can be presented to the President for his assent. ·
Such a bill is required to be ratified by the . Legisfatures. of not
less than one-half of the States by Resolutions to that effect
passed by them. In other words, in respeet of the Articles covered
by the proviso, the· further safeguard prescribed by the proviso
G is that the intended amendment should receive the approval of the
Legislatures of not less than one-half of the States. That means
that at least half of the States constituting the Union of India
should by a majority vote, approve of the proposed· amendment.
It is obvious that the fundamental rights enshrined in Part IiI
ate rw>t included in the proviso, aftd so, if Parliament intends to
H
lill'lertd anv of the orovisions contained in Articles 12 fO 3' which
ate included in Part III, it is not necessary to take recourse to the
prll'Yiso and to satisfy the additional requirements presctibed by it.
'940
SUPREME . COURT REPORTS
JI 965] I S.C.R.
Thus far, there is no difficulty. But jn considering the ,scope of A
Art. 368, it is necessary to remember. that Ari. 226, which i!
included in Chapter V of Part VI of the Constitution, is one of
the constituiional provisions which fall under cl. (b) of the proviso; and so, it.is clear that if Parliament intends to amend the
provisions of Art. 226, the bill proposing to make such an
amendment must satisfy the requirements of the proviso.
The B
question which calls for our decision is : 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 Art. 226 are likely
to be affected ?
The petitioners contend that since it appears
that the powers pre5cribed by Art. 226 are likely to be affected by
the intended amendment of the provisions. contained in Part III,
the bill introduced for the purpose of making such an amendment,
must atttact the proviso, and as the impugned Act has admittedly
not gone through the procedure prescribed by the proviso, it is ·
invalid; and that raises the question about the construction of the D
provisions contained in Ari. 368 and the relation between the
substantive part of Art. 368 with its proviso.
In our opinion, the two parts of Art. 368 must on a reasonable
construction be harmonised with each other in the sense that the
scope and effect of either of them should not be allowed to be ·
unduly reduced or enlarged. Ii is urged that any amendment of the E
fundamental rights contained in Part III would inevitably affect
the powers of the High Court, prescribed by Art. 226, and a-'!
such, the bill proposing the said amendment cannot fall under the
prov'.so; cthenvise the very object of not including Part III under
tile proviso would he defeated. When the Constitution-makers did
not include Part III under the proviso, it would be reasonable to
F
assume that they took the view that the amendment of the provisions contained in Part III was a matter which should be dealt
with by Parliament under the substantive provisions of Art. 3 68
and not under. the proviso. It has no doubt been suggested that
the Constitution-makers perhaps did not anticipate that there would
be many occasions to amend the fundamental rights guaranteed by G
Part III. However that may be, as a matter of construction, there
is no escape from the conclusion that Art. 368 provides for the
amendment of the provisions contained in Part III without impos- ·
ing on Parliament an obligation to adopt the procedure prescribed
by the proviso. It is ttiie that as a result of the amendment of H
the ftindamental rights, the area over which the powers prescribed
by Art. 226 would operate may be reduced, but apparently, the
Constitutioncmakers took the view that the diminution in the area
r
. '
> .,.
' ,
SAJJAN SINGH v. STATE (Gajendragadkar C.J.)
941
A over which the High Courts' powers under Art. 226 operate, would
not necessarily take the case under the proviso,
On the other hand, if the substantive part of Art. 368 is very
liberally and generously construed and it is held that even substantial modification of !he fundamental rights which may make
B a very serious and substantial inroad on the powers of the High
Courts under Art. 226 can be made without invoking the proviso,
it may deprive cl. (b) of the proviso of its substance. In other
words, in construing botlt the parts of Art. 368, the rule of
harmonious construction requires that if the direct effect of the
amendment of fundamental rights is to make a subsrnntial inroad
c on the High Courts' powers under Art. 226, it would become necessary to consider whether the proviso would cover such a case or not.
If the effect of the amendment made in the fundamental rights on
the powers of the High Courts prescribed by Art. 226, is indirect,
incidental, or is otherwise of an insignificant order, it may be that
the proviso will not apply. · The proviso would apply where the
D amendment in question seeks to make any change, inter alia, in
Art. 226, and the question in such a case would be : does the
amendment seek to make a change in the orovisions of Art. 226 ?
The answer to this question would depend upon the effect of the
amendment made in the fundamental rights.
E
In dealing with constitutional questions of this character, courts
generally adopt a test which is .described as the pith and substance
test. In Attorney-General for Ontario v. Reciprocal Insurers and
others ( 1), the Privy Council was called upon to consider the validity
of the Reciprocal Insurance Act, 1922 (12 & 13 Geo. 5, Ont.,
c. 62) and s. 508c which had been added to the Criminal Code of
F Canada by ss. 7 & 8 Geo. 5, c. 29 Dom. Mr. Justice Duff, who
spoke for the Privy Council, observed that in an enquiry like the
one with which the Privy Council was concerned in that case, "it
has been formally laid down in judgments of this Board, that in
such an inquiry the Courts must ascertain the 'true nature and
character' of the enactment : Citizens' Insurance
Co.
v.
G
Parsons('); its 'pith and substance' : Union Colliery Co. v.
Bryden (3 ); and it is the result of this investigation, not the form
alone, which the statute may have assumed under the hand of the
drau.!!htsman, that will determine within which of the categories
of subject matters mentioned in ss. 91 and 92 the legislation falls;
and for this vurpose the legislation must be 'scrutinised in its
H
entirety': "Great West Saddlery Co. v. The King"('). It is not
(1) [1924] A.C. 328.
(3) [l 899] A.C. 580.
(2) [l 881] 7 App. Cas 96,
(4) [1921] 2 A.C. 91, 117.
•
942
SUPREME COURT
REPORTS
(1965] I S.C.R.
necessary to multiply authorities in support of the proposition that
A
in considering the constitutional validity of the impugned Act, it
would be relevant to inquire what the pith and substance of the
impugned Act is. This legal position can be taken to be established
by the decisions of this Court which have consistently adopted the
view expressed by Justice Duff, to which we have just referred.
What then is the pith and substance of the impugned Act'?
For answering this question, it would be necessary to recall very
briefly the history of Articles 3 lA and 3 lB. Articles 3 lA and
31 B were added to the Constitution with retrospective effect by s. 4
of the Constitution (First Amendment) Act, 1951. It is a matter
B
of general knowledge that it became necessary to add these two c
provisions in the Constitution, because it was realised that legislative measures adopted by certain States for giving effect to the
policy of agrarilμl reform which was accepted by the party in
power, had to face a serious challenge in the courts of law on
the ground that they contravened the fundamental rights guaranteed
to the citizens by Part III. These measures had been passed in D
Bihar, Uttar Pradesh and Madhya Pradesh, and their validity was
impeached in the High Courts in the said three States. The High
Coun of Patna held that the relevant Bihar legislation was unconstitutional, whilst the High Courts at Allahabad and Nagpur
upheld the validity of the corresponding legislative measures
passed in Uttar Pradesh and Madhya Pradesh respectively. [See
E
Kameshwar v. State of Bihar(') and Surya Pal v. U. P. Governmenl ( 2 ) .]
The paajes aggrieved by these respective decisions
bad filed appeals by special leave before the Supreme Court. At
the same time, petitions had also been preferred before the Supreme
Court under Art. 32 by certain other zamindars, seeking the
determination of the same issues. It was at this stage that ParliaF
ment thought it necessary to avoid the delay which would necessarily have been involved in the final decision of the disputes pending
before the Supreme Court, and introduced the relevant amend-.
ments in the Constitution by adding Articles 3 lA and ~ IB. That
was the first slep taken by Parliament to assist the process of
legislation to bring about agrarian reform by introducing Articles G
31A and 31B.
The second step in the same direction was taken by Parliament in 19,S by amending Art. 31 A by the Constitution (Fourth
Amendment) Act, 1955. The object of this amendment was to
widen the scope of agrarian.reform and to confer on the legislative
H
measures adopted in that behalf immunity from a possible attack
(I) A.LR. 6511'1«. 91.
(2) A.LR. J9St All 674.
•
.. •
SAJJAN SINGH v. STATE (Gajendragadkar C.l.)
943
A that they contravene<l the fundamental rights of citizens. In other
words, this amendment protected the legislative
measures
in
respect of certain other items of agrarian and social welfare legislation, which affected the proprietary rights of certain citizens .
That is how the second amendment was made by Parliament. At
the. time when the first amendment was made, Art. 3 lB expressly
B
provide<l that none of the Acts and Regulations specifie<l in the
9th Schedule, nor any of the provisions thereof, shall- be deemed
to be void or ever to have become void on the ground that they
were inconsistent with or took away or abridged any of the rights
conferred by Part III, and it added that notwithstanding any
judgment, decree or order of any Court or tribunal to the contrary,
C
each of the said Acts and Regulations shall subiect to the power
of any competent ,legislature to repeal or amend, continue in
force. At this time, 19 Acts were listed in Schedule 9, and they
were thus effectively validated. One more Act was added to this
list by the Amendment Act of 1955, so that as a result of the
second amendment, the Schedule contained 20 Acts which were
D
validated.
It appears that notwithstanding these amendments, certain other
• ~
legislative measures adopted by different States for the purpose
of giving effect to the agrarian policy of the party in power, were
effectively c)lallenged. For instance, in Karimbil Kunhikoman v.
....
E
State of Kera/a('), the validity pf the Kerala Agrarian Relations
Act (IV of 1961) was challenged by writ petitions filed under
Art. 32, and as a result of the ·majority decision of this Court, the
whole Act was struck down. This decision was pronounced on
December 5, 1961.
In A. P. Krishnaswami Naidu, etc. v. The State of Madras( 2 )
F
the. constitutionality of the Madras Land Reforms (Fixation of
Ceiling 011 Land) Act (No. 58 of 1961) was put in issue, and
by the decision of this Court pronounced on March 9, 1964, it
was declared that the whole Act was invalid. It appears that the
Rajasthan Tenancy Act III of 1955 and the Maharashtra AgriculG tural Lands (Ceiling and Holdings) Act 27 of 1961 have been
similarly declared invalid, and in consequence, Parliament thought
it necessary to make a further amendment in Art. 3 IB so as to
save the validity of these Acts which had been struck down and of
other similar Acts which were likely to be struck down, · if
challenged.
With that object in view, the impugned Act has
H
enacted s. 3 by which 44 Acts have been added to Sche<lule 9.
If the impugned Act is held to be valid and the amendment made
(I) {1962) Supp. 1 S.C.R. 829.
(2) [1964] 7 S.C.R. 82
944
SUPREME COURT REPORTS
[1965] 1 s.c.R
in the Schedule is found to be effective, these 44 Acts would have
to be treated as valid.
Thus, it would be seen that the genesis of the amcr.Llmcnts
made by Parliament in 1951 by adding Articles 31A and 3113 to
the Constitution; clearly is to assist the State Legislatures in this
country to give effect to the economic policy in which the party
in power passionately believes to bring about much needed agrarian
reform.
It is with the same object that the second amendment
was made by Parliament in 1955, and as we have just indicated,
the object underlying the amendment made by the impugned
Act is also the same. Parliament desires that agrarian reform in a
broad and comprehensive sense must be introduced in the interests
of a very large section of Indian citizens who live in villages and
whose financial prospects arc integrally connected with the pursuit
of progressive agrarian policy.
Thus, if the pith and substance
test is applied to the amendment made by the impugned Act, it
would be clear that Parli<•ment is seeking to amend fund~mental
rights solely with the object of removing any poss:ble obstacle
in the fulfilment of the socio-economic policy in which the party
in power believes. If that be so, the effect of the amendment on
tbe area over which the High Courts' powers prescribed by Art.
226 operate, is incidental and in the present case can be described
as of an insignificant order. The impugned Act docs not purport
to change the provisions of Art. 226 and it cannot be said even
to have that effect directly or in any appreciable measure. That
is why wc think that the argument that the impugned Act falls
under the proviso, cannot be sustained. It is an Act the object
of which is to amend the relevant Articles in Part III which confer
fundamental rights on citizens and as such it falls under the substantive part of Art. 368 and docs not attract the provisions of
cl. (b) of the proviso. If the effect of the amendment made in the
fundamental rights on Art. 226 is direct and not incidental and is
of a very significant order, different considerations may perhaps
arise. But in the present case, there is no occasion to entertain or
weigh the said considerations.
Therefore the main contention
raised by the petitioners and the interveners against the validity of
the impugned Act must be rejected.
A
B
c
D
E
F
G
Then, it is urged that the true purpose and object of the
impugned Act is to. legislate in respect of land, and legislation in
respect of land falls within th!! jurisdiction of the State Legislatures
under Entry 18 of List II. The argument is that since the
H
State Legislatures alone can make laws in respect of land. Parliament had no right to pass the impugned Act. This argument is
'l ..
<
..
J
• .>
SAJJAN SINGH v. STATE (Gajendragadkar C.J.)
945
A based on the assumption that the impugned Act purports to be,
and in fact is, a piece of land legislation. The same argument is
placed before us in another form. It is urged that the scheme of
Articles 245 and 246 of the Constitution clearly shows that Parliament has no right to make a law in respect of land, and since the
impugned Act is a legislative measure in relation to land, it is
B invalid.
This argument, in our opinion, is misconceived.
In
dealing with this argument, again, the pith and substance test is
relevant. What the impugned Act purports to do is not to make
any land legislation but to protect and validate the legislative
measures in respect of agrarian reforms passed by the different
State Legislatures in the country by granting them immunity from
C attack based on the plea that they contravene fundamental rights .
Parliament, in enacting the impugned Act, was not making any
provisions of land legislation. It was merely validating land
legislations already passec;I by the State Legislatures in that behalf.
It is also urged that inasmuch as the impugned Act purports
D in substance to set aside the decisions of courts ·of competent
jurisdiction by which some of the Acts added to the Ninth Schedule
have been declared to be invalid, it .is unconstitutional. We see
no substance in this argument. It is hardly necessary to emphasize
that legislative power to ma]se laws in respect of areas entrusted to
the legislative jurisdiction of different legislative bodies, can be
E exercised both prospectiyely and retrospectively. The constituent
power conferred by Art. 368 on the Parliament can also be
exercised both prospectively and retrospectively.
On several
occasions, legislatures think it necessary to validate laws which
have been declared to be invalid by Courts of competent jurisdiction
and in so doing, they have necessarily to provide for the intended
F
validation to take effect notwithstanding any judgment, decree or
order passed by a court of competent jurisdiction to the contrary.
Therefore, it would be idle to contend that by making the amendment retrospective, the impugned Act has become constitutionally
invalid.
G
It has also been contended before us that in deciding the
question as to whether the impugned Act falls under the proviso,
we should take into account the operative words in the proviso.
The proviso takes in casi:s where the amendment sought to be
made by the relevant bill seeks to make any change in any of the
Articles specified in clauses (a) to (e) of the proviso, and it is
H
urged that on a fair reading of clauses (b) and ( c), it would
follow that the impugned Act purports to do nothing else but to
seek to amend the provisions contained in Art. 226. It is not
'94 6
SUPREME COURT
REPORTS
( 1965] I S.C. R.
easy to appreciate the strength or validity of this argument. This
argument is really based on the assumpllon that the legislative
mechanism adopted by the Parliament in passing the impugned
Act introduces this infirmity.
The argument obviously a'iSumes
that it would have been open to Parliament to make appropriate
changes in t11e different Articles of Part Ill, such as Articles 14
and 19, aud if such a course had been adopted, the impugned Act
would have been constitutionally valid.
But inasmuch as the
impugned Act purports to amend only Arts. 31A and 31B and
seeks to add several Acts to the Ninth Schedule, it docs not amend
any of the provisions in Part III, but is making an independent
provision, and that, it is said, must take the case within the scope
of the proviso. It is clear that what the impugned Act purports
to do is to amend Art. 31 A, and Article 31 A itself is included in
Part III.
If Parliamen~ thought that instead of adopting the
cumbersome process of amending each rele\'lnt Article in Part III,
it would be more appropriate to add Articles 31 A and 31 B, and on
that basis, it pasbed the material provisions of the Constitution
(First Amendment) Act, it would not be reasonable to suggest
that this method brings the amendment within the proviso. What
the Parliament did ii) 1951, has afforded a \'alid basis for further
amendments mac.le in 1955 and now in 1964. It would he clear
that though the arguments which have been urged before us in
the present proceedings have been put in different forms, basically,
they involve the consideration of the main question whether the
impugned Act falls within the scope of the proviso or not; and
the answer to 'this question. in our opinion, has to be against
the petitioners by the application of the doctrine of rith :md
i;ubstancc.
Then, it is urged that the power to amend, which is conferred
by Art. 368, docs not include the power to take away the fundamental rights guaranteed by Part III. The contention is thal the
result of the material provisions of the impugned Act is to take
awav a citizen's right to challenge the validity of the Acts added
to the Ninth Schedule, and that means that in res!Jcct of t11e said
A.:ts, the relevant fundamental rights of the citizens are taken
awav. We do not thimk there is any substance in this argument.
It i; true that the dictionary meaning of the word "amend" is to
correct' a fault or reform; but in the context, reliance on the dict.ionary meaning of the word is singularly inappropriate. b~cause
what Art. 368 authorises to be done is the amendment of the
provisions of the Constitution. It is well-known that the amendment of a law may in a proper case include the deletion of any
one or more of the provisions of the law and substitution in their
A
•
B
c
•
D
....
E
F
G
H
I
SAJJAN SINGH v. STATE (Gajendragadkar C.J.)
947
A place of n~w provisions. Similarly, an amendment of the Constitution whiyh is the subject matter of the power conferred by Art.