# Thakur Rudreshwari Prasad Sinha v. ·srimati Rani Probhabhati and others

- **Citation:** [1952] 1 S.C.R. 89
- **Court:** Supreme Court of India
- **Decided:** 1950-01-26
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/thakur-rudreshwari-prasad-sinha-v-srimati-rani-probhabhati-and-others-88
- **Pages:** 21

## Headnote

..- .
I
S;C.R ..
SUPREME COURT REPO.RTS
89
Kharalripur on . the allegation _ that ·Taluk Kakwara
· was alienable with "the consent of the Zami1c1dar.
Ip our judgment the final conclusions arrived at by
Mr. Justice Shearer and Mr. Justice Chatterjee are
clearly right and this appeal must be dismissed with
costs.
A ppe(Jl dismissed.
Agent for the appellant : I. N. Shroff.
Agent for the respondents: S. P. Verma .
SRI SANKAR! PRASAD SINGH DEO
v.
UNION OF INDIA AND ST ATE OF BIHAR
(And Other Cases);
[HARILAL KANIA c. J., PATANJALI SASTRI!
MuKHE!lJEA,
DAs AND
CHANDRASEKHARA
AIYAR JJ.]
Constitution ·(First Amendment) Act, 1951, Arts, 31A, 31BValidity-Constitution
of India, 1950, Arts.
13(2),
368, 379,
392-Provisional
Parliament-Power
to
amend
ConstitutionConstitution (Removal of Difficulties) Order Ng. 2 of 1950-Validity
-Amendment of Constitution-Procedure-Bill amended by Legislature-Amendment
curtailing
fundpmental
rights-Amendment
affecting land-Validity of Amending Act.
The Constitution (First
Amendment) 'Act, 1951, which has
inserted, inter alia, Arts. 31A and 31B in the Constitution of
India is riot ultra vires or unconstitutional.
The provisional Parliament is competent to exercise the power
of amending the Constitution under Art. 368.
The fact that the
said article refers to the two Houses of the Parliament and the
President separately and not to the Parliament, does
not lead to
the inference that the body
which is invested with the power to
amend is not the Parliament but a different body consisting of
the two Houses.
.
The words "all the powers confer{ed by the provisions of this
Constitution ori
Parliament': in Art. 379 are not confined to such
powers as
could be exercised by · the provisional Parliament consisting of a single chamber, but are wide enough to include the
power to amend the Constitution conferred by Art. 368.
The Constitution (Removal of Difficulties} Order No. 2 made
by the President on
the 26th January, 1950, which purports to
adapt Art. 368 · by omitting "either House of" and "in each
House" and substituting "Parliament" for "that House" is not
. 12
1951
. Thakur
Rudreshwari
Prasad Sinha
v.
·srimati Rani
Probhabhati
and others;
1951
Oct. 5.
'1
1951
Sankari Pra.ratl
Singh Deo
v.
Union of India
anti
.State of Bihar.
90
SUPREME COURT REPORTS
[1952]
beyond the powers conferred on him by Art. 392 and ultra vires.
There is nothing in Art. 392 to suggest that the President should
wait,
before
adapting a
particular
article,
till
the oc.casion
actually arose for the provisional
Parliament
to
exercise the
power conferred by the article.
The view that Art. 368 is a complete code in itself in respect
of the procedure provided by it and does not contemplate any
ainendment of a Bill for amendment of the Constitution after it
has been introduced, and that if the Bill is amended during its
passage through the House, the amendment Act cannot be said
to have been passed in conformity with the procedure prescribed
by Art. 368 and would be invalid, is erroneous.
Although "Ia,v" must ordinarily
include
constitutional law
there is a clear demarcation between ordinary law tvhich is made
in
the
exercise of legislative power
and
constitutional
law,
which
is made in the
exercise of constituent power.
In. the
context of Art. 13, "law" must'be taken to mean rules or regulations made in exercise of
ordinary legislative
po\ver and not
amendments to the constitution
made in the
exercise of constituent power with the result that Art. 13(2) does not affect amendments made under Art. 368.
Articles 31A and
31B inserted in the
Constitution by the
Constitution (First Amendment) Act, 1951, do not curtail the
powers of the High Court
under Art.
226 to issue
writs for
enforcement of any of the rights conferred by Part III or of the
Supreme Court under Arts. 132 and 136 to entertain appeals
from orders issuing or refusing such writs; but they only exclude
from the purvie\v of
Part III certain classes of cases.
These
articles therefore do not req

## Text

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..- .
I
S;C.R ..
SUPREME COURT REPO.RTS
89
Kharalripur on . the allegation _ that ·Taluk Kakwara
· was alienable with "the consent of the Zami1c1dar.
Ip our judgment the final conclusions arrived at by
Mr. Justice Shearer and Mr. Justice Chatterjee are
clearly right and this appeal must be dismissed with
costs.
A ppe(Jl dismissed.
Agent for the appellant : I. N. Shroff.
Agent for the respondents: S. P. Verma .
SRI SANKAR! PRASAD SINGH DEO
v.
UNION OF INDIA AND ST ATE OF BIHAR
(And Other Cases);
[HARILAL KANIA c. J., PATANJALI SASTRI!
MuKHE!lJEA,
DAs AND
CHANDRASEKHARA
AIYAR JJ.]
Constitution ·(First Amendment) Act, 1951, Arts, 31A, 31BValidity-Constitution
of India, 1950, Arts.
13(2),
368, 379,
392-Provisional
Parliament-Power
to
amend
ConstitutionConstitution (Removal of Difficulties) Order Ng. 2 of 1950-Validity
-Amendment of Constitution-Procedure-Bill amended by Legislature-Amendment
curtailing
fundpmental
rights-Amendment
affecting land-Validity of Amending Act.
The Constitution (First
Amendment) 'Act, 1951, which has
inserted, inter alia, Arts. 31A and 31B in the Constitution of
India is riot ultra vires or unconstitutional.
The provisional Parliament is competent to exercise the power
of amending the Constitution under Art. 368.
The fact that the
said article refers to the two Houses of the Parliament and the
President separately and not to the Parliament, does
not lead to
the inference that the body
which is invested with the power to
amend is not the Parliament but a different body consisting of
the two Houses.
.
The words "all the powers confer{ed by the provisions of this
Constitution ori
Parliament': in Art. 379 are not confined to such
powers as
could be exercised by · the provisional Parliament consisting of a single chamber, but are wide enough to include the
power to amend the Constitution conferred by Art. 368.
The Constitution (Removal of Difficulties} Order No. 2 made
by the President on
the 26th January, 1950, which purports to
adapt Art. 368 · by omitting "either House of" and "in each
House" and substituting "Parliament" for "that House" is not
. 12
1951
. Thakur
Rudreshwari
Prasad Sinha
v.
·srimati Rani
Probhabhati
and others;
1951
Oct. 5.
'1
1951
Sankari Pra.ratl
Singh Deo
v.
Union of India
anti
.State of Bihar.
90
SUPREME COURT REPORTS
[1952]
beyond the powers conferred on him by Art. 392 and ultra vires.
There is nothing in Art. 392 to suggest that the President should
wait,
before
adapting a
particular
article,
till
the oc.casion
actually arose for the provisional
Parliament
to
exercise the
power conferred by the article.
The view that Art. 368 is a complete code in itself in respect
of the procedure provided by it and does not contemplate any
ainendment of a Bill for amendment of the Constitution after it
has been introduced, and that if the Bill is amended during its
passage through the House, the amendment Act cannot be said
to have been passed in conformity with the procedure prescribed
by Art. 368 and would be invalid, is erroneous.
Although "Ia,v" must ordinarily
include
constitutional law
there is a clear demarcation between ordinary law tvhich is made
in
the
exercise of legislative power
and
constitutional
law,
which
is made in the
exercise of constituent power.
In. the
context of Art. 13, "law" must'be taken to mean rules or regulations made in exercise of
ordinary legislative
po\ver and not
amendments to the constitution
made in the
exercise of constituent power with the result that Art. 13(2) does not affect amendments made under Art. 368.
Articles 31A and
31B inserted in the
Constitution by the
Constitution (First Amendment) Act, 1951, do not curtail the
powers of the High Court
under Art.
226 to issue
writs for
enforcement of any of the rights conferred by Part III or of the
Supreme Court under Arts. 132 and 136 to entertain appeals
from orders issuing or refusing such writs; but they only exclude
from the purvie\v of
Part III certain classes of cases.
These
articles therefore do not require ratification under cl. (b) of the
proviso to Art. 368.
Articles 3!A and 31B are not invalid on the ground that they
relate to
land \vhich is a matter covered by the State List (item
18 of List II)
as these articles are essentially amendments of the
Constitution,
and
Parliament alone
has
the power
to
enact
them.
ORIGINAL
JURISDICTION:
the Constitution (Petitions
371, 372, 374 to 389, 392
1951). The facts
which
stated in the judgment.
Petitions under Art. 32 of
Nos. 166, 287, 317 to 319,
to 395, 418, 481 to 485 of
led to
these petitions are
Arguments were
heard on
the
12th,
18th and 19th of September.
P.R. Da! (B. Sen, with him) for the
Petitions Nos. 371, 372, 382, 383, 388 and
368 of the
Constitution
is a complete
It does not contemplate any amendments
14th,
17th,
petitioners in
392, Article
code in itself.
to the Bill
S.C.R.
SUPREME COURT REPORTS
91
after · its introduction.
The Bill must be passed and
assented
to by the President as it
w~s introduced
without any amendment. · As the Constitution Amendment ]3ill was amended in several
respects
during its·
passage
through
the
Parliament,
the
Constitution
(First Amendment) Act was· not · passed in conformity' with the procedure laid
down in article 368 and
is therefore invalid.
\.Vhen the Parliament exercises, its
0rdinary, legislative powers it . has · power to amend the
Bills under articles 107,
108, 109(3) & ( 4). It has no
such power when it seeks to amend the Constitution
its.elf as article
368 does not give
any such power:'
cf. The Parliament Act' of
1911 (of England).· The.
Article
368
vests the
power· to
amend the Constitution not in the Parliament but in a different
body,·viz., a two-thirds majority of the two Houses of
the Parliament. · In article 368, the word
Parliament
which occurs in other
articles is · purposely
avoided.
There is
a distinction
between
ordinary legislative
power and power to
amend the Constitution.
This
distinction is
observed
in
America and
the
power
to amend the Constitution is vested· ··there also in a
different body.
Vide Willis, page 875, Cooley Vol. 1.
page 4,
Orfield, page 146. Article 379 speaks of the
power of
the provisional
Parliament as a legislative
body. The powers under article 368 cannot be and was
not intended to
be exercised by the
provisional Parliament. under article 379.
As . it consists
onl.y of a
Single
Chamber the adaptations
made in ·article 368
by the Constitution · (Removal of Difficulties) Order
. ~o. 2 are ultra virN. · Article 392 gives power to the
Presi.dent to remove
only such difficulties as arise
in
l;he working of
Constitution. It cannot be
used to
remove difficulties in the way .of amending the Constitution that have been deliberately introduced by the.
Constitution.
No difficulty
could have
been
possibly
experienced in the working of the Constitution on the.
, very day the Constitution came into force.
The Constitution could legally be amended only by the Parliament
consisting of two Houses constituted· under clause 2 of
,
" • Part V. ·In: any event, the impugned Act is void under .
. article 13(2) as contravening the provisions relating to.
1951'
Sflnk,_;:1ri Prasatl
Singh Deo
...
Union of lnaa·
and.
State of Bihar.
1951
Sankari Prasad
Singh Deo
v.
Union of India
and
State of Bihar.
92
SUPREME COURT REPORTS
[1952]
fundamental
rights guaranteed
by
Part III. 'Law'
in article 13(2) evidently includes all laws passed
by the
Parliament
and
must
include
laws
passed
under
article
368
~mending the
Constitution :
Constituent
Assembly Debates,
Vol.
IX
No.
37,
pp. 1644, 1645, 1661, 1665.
S. M. Bose (M. L. Chaturvedi, with him) for the
petitioner in Petition No. 375.
The word "only" in
article 368 refers to all that follows
and article 368
does not contemplate amendment of a Bill after it has
been
introduced.
The President's
Order is ·ultra
vires his
powers
under article
392.
There is
no
difficulty in working article 368 and there could be no
occasion for the President to adapt 368 in the exercise
of his powers under article 392.
S. Chaudhuri (M. L. Chaturvedi, with him) for the
petitioner in Petition No. 368 adopted the arguments
of P. R. Das and S. M. Bose.
S. K. Dhar (Nanakchand and M. L. Chaturvedi, with
him) for the petitioner in . Petition No. 387. Article 379
on which the provisional
Parliament's jurisdiction
to
amend the
Constitution is
based not ' only empowers
the said
Parliament
to exercise
the
powers
of the
Parliament but also imposes
upon it the obligation to
perform all the duties enjoined upon the Parliament by
the Constitution.
Hence
Parliament cannot seek
to
abridge the rights of property of the citizens guaranteed
by Part III.
As
the. present
Act
contravenes
the
provisions of
Part III,
it is void under article 13(2).
In any event, the new articles 31A and 31B curtail the
powers of the Supreme Court under articles, 32, 132
and 136 and those of the High Court under article 226,
and as such, they required ratification ·under clause (b)
of the proviso to
article
368
and not having
been
ratified, they are void and unconstitutional. They are
also ultra vires as they relate to land, a subject matter
covered by List II (see item 18) over which the
State Legislatures have
exclusive power.
Parliament
cannot make a law validating a law which it had no
power to enact.
'
·1
>-/
' ...,..
S.C.R.
SUPREME COURT REPORTS
93
N. P. Asthana . (K. B. Asthana, with him) for the
petitioners in Petitions Nos.
4~1 to 484. Article 368
does not confer power on any booy to amend the constitution. It simply lays down the procedure to be
followed for amending the Constitution. In this view
article 379 does not come into operation at all. Under
article 392 the
President himself can alter the Constitution but he cannot authorise the provisional Parlia.
ment to do so.
S. P. Sinha (Nanak Chand, 'with him) for ,the petitioner in Petition No. 485.
Article 13(2) is very wide
in its
scope and it invalidates all laws past, present
and future which seek to curtail the rights conferred by
Part III.
It does not exempt laws passed under article
368 from its operation.
.
N. C. Chatterjee (with V. N. Swami for the petitioner
in Petition No. 287 and with Abdul Razzak Khan for
the petitioner in Petition No. 318). Article 368 must
.be read subject to article 13(2). Articles 31A and 31B
are legislative in character and were enacted in the
. exercise of the law-making power
of the Parliament
and not in the
exercise of any power to amend / the
Constitution and
Parliament has no power to validate
the laws as it had no power to enact them.
N. R. Reghavachari
(V. N. Swami, with him) for
the petitioner in Petition No. 166. The fundamental
rights are supreme and article 13(2) is a complete bar
to any amendment of the rights conferred by Part III.
N. S. Bindra (Kahan Chand Chopra, with him) fot
the petitioner in Petition No. 319.
M. L. Chaturvedi for the petitioners in Petitions
Nos. 374, 376, 377, 379,' 380, 381, 384, 385, 386, 389,
393, 394 and 395.
Bishan Singh for the petitioner in Petition No. 418.
Abdul Rdzzak Khan and P. S. Safeer for the petitioner in Petition No. 317.
M. C. Setal.vad, Attorney-General ·for ·India
(with
G. N. Joshi) for the Union of India, and (with Law
Narain
Singh, G. N. Joshi, A. Kuppuswami
and
19~1
·--v·
Sank,ari Prasad
Singh Deo
·v.
Union of India
and
State of Bihat. Y
1951
Sankari Prasad
'.Singh Deo
:·v.
Union of India
and
State ·of Bihar.
94
SUPREME COURT REPORTS
[1952]
G. Durgabai)
for
the State of Bihar.
The donee
of
the
power
under
article 368
~ Parliament.
The
process of
the
passage of
the
Bill
indicated
in the said
article is the
same as that of ordinary
legislative Bills.
The article does not
mean that the
powers under article 368 are
to be
exercised
by
a
fluctuating
body of
varying
majority
and
not by
Parliament.
If the
constituent
authority
and
the
legislative
authority are
two
different
entitles
the
saving
clausCI' in
articles
2, 3, 4 and
240, will be
meaningless.
Under article
379 provisional Parliament
can exercise
all
the
powers of
Parliament;
hence
Provisional Parliament can act under article 368. "All
the powers" in article 379 include power to amend the
Constitution and there
is no
reason to
restrict the
import of these words by excluding amendment of the
Constitution from
their ambit. The words "perform
all the duties" in that
article do not in any manner
cut down
the power ;:,f Parlia1'lent under article 379
because article
13 (2)
does
not impose
any duty.
There is no conflict between exercising all the powers
under article 379 and the prohibition in article 13(2).
No technical meaning should be given to
the
word
"difficulty"
in
article
392 (1).
The adaptation
of
article 368 is really an
adaptation for the removal of
difficulties.
The
adaptation is not
of a
permanent
character.
This shows that the
adaptation is not an
amendment and even if it is an amen.dment, it is so by
way
~f adaptation.
Article
13(2)
prohibits "laws"
inconsistent with
fundamental rights.
It cannot affect
article 368
since the word "law". in article 13(2)
refers
to ordinary
legislative
enactments
and
not
constitution making.
The argument
that the Bill to
amend the. Constitution should be passed as introduced,
without amendments, is fallacious.
It cannot
be said
that the Bill referred to in article 368 has to be dealt
with under a procedure different from that laid down
for ordinary Bills in articles 107 and 108. Articles 31-A
and 31B are
not
legislative in
character.
The
said
articles do not affect the scope of articles
226 and 32,
for the power of the Court under the said two articles
-
~--
S.C.R.
SUPREME COURT REPORTS
95
remains unaltered. What has been done is to alter the
content of fundamental rights:
P. L. Banerjee, "Advocate-General of Uttar Pradesh·
(U. K. Misra and Gopalji Mehrotrra, with -him) for the .
State of Uttar · Pradesh adopted the arguments of the
Attorney-General and added that articles 31-A: and 31-B
do
not necessarily
stand or fall
together;
even if
31-B goes, 31-A will remain.
T. L. Shevde, Advocate-General of Madhya Pradesh
(T. P. Naik, with him)
for
the
State
of Madhya
Pradesh adopted
the
arguments
of
the
AttorneyGeneral.
The Provisional
Parliament is competent to
do all that the future Parliament can do.
The adaptatic:m under ·article 392
does
not seek to
amend
article 368.
P. R. Das, S.
M.
Bose,. S.
Chaudhuri, N.
C.
Chatterjee, S. K. Dhar and S. P. Sinha replied.
1951.
October 5.
The Judgment of the Court was
delivered by
PATANJALI
SASTRI
J.-These petitions, . which have
been
heard
together,
raise
the
common
question
whether the Constitution (First Amendment) Act, 1951,
which .w~ recently passed
by the present provisional
Parliament and purports to insert, inter alia, articles
31A. and 31B in the Constitution of India is ultra vires
and unconstitutional.
What led to that enactment is a matter of common
knowledge.
The political party now. in power, commanding as it does a majority -of votes in the several
State legislatures' as well as in Parliament, carried out
certain measures of agrarian reform
in_ Bihar, Uttar
Pradesh and
Madhya
Pradesh by enacting legislation
which may cpmpendiously be referred to a.S Zemindary
Abolition Acts.
Certain zemindars, feeling themselves
aggrieved, attacked the validity of those Acts in courts
of law on the ground that they contravened · the fundamental rights conferred . on them by Part III of the
Constitution. The High Court at Patna held that the
Act passed ·in Bihar was unconstitutional
while the
7-2 SC. Ind!a/71
1951
Sankari Prasad
Singh Deo '
v.
Union of fndifl
and
State of Bihar.
Pataniali
Sastri /.
1951
Sankari Prasad
Singh Deo
v.
Union of India
and
State of Bihar.
Patanjali
Sastri f.
96
SUPREME COURT REPORTS
[1952]
High
Courts at
Allahabad and Nagpur upheld
the
validity
of
the
corresponding
legislation in Uttar
Pradesh and
Madhya
Pradesh respectively.
Appeals
from those decisions are pending in this
Court. Petitions filed in this
Court by
some
other zemindars
seeking the determination of the
same
question
are
also pending.
At this stage, the
Union Government,
with a view to put an end to all this litigation and to
remedy what
they
considered to be
certain defects
brought to light in the working
of the Constitution,
brought forward
a bill
to
amend
the
Constitution,
which, after undergoing amendments in
various particulars, was passed
by the
requisite
majority
as the
Constitution
(First
Amendment)
Act, 1951, (hereinafter referred to
as the
Amendment
Act).
Swiftly
reacting to this move of the Government, the zemindars
have brought the present petitions under article 32 of
the Constitution impugning the
Amendment Act itself
as unconstitutional and void.
The main
arguments advanced in support of the
petitions may be summarised as follows :
First, the power of
amending the Constitution provided for under atricle 368 was conferred not on Parliament but on
the two Houses of Parliament as a
designated
body and,
therefore, the
provisional Parliament was
not competent to
exercise
that
power
under article 379.
Secondly, assuming
that
the power was conferred
on Parliament, it did
not devolve on the provisional
Parliament by
virtue of article
379 as the words "All
the powers conferred by the provisions of this Constitution on Parliament" could refer only to such powers
as are capable
of being
exercised by the provisional
Parliament consisting of a single chamber.
The power
conferred by article 368 calls for the co-operative action
of two Houses of Parliament and could be appropriately
exercised only by the Parliament to be duly constituted under Ch. 2 of Part V.
Thirdly, the Constitution
(Removal, of
Difficulties)
Order No. 2 made by the Pr.sident on
26th January
..
(·
,.,.-
S.C.R.
SUPREME COURT REPORTS
97
1950, in so far as it purports to adapt article 368 by
_om1ttmg "either House of" and "in each House" and
substituting "Parliament" for
"that , House", is beyond
the powers
conferred on him by article 392, as "any
difficulties" sought to be removed by adaptation under
tliat article must be difficulties
in the actual · working
of the Constitutio.n during the transitional period whose
removal is necessary for carrying on the Government.
No such difficulty could
possibly have been experienced on the
very date
of the
commencement of the
Constitution.
Fourthly, in any case article 368 is a complete code
in itself
and does- not provide for any amendment
being made in the
bill after
it has
been introduced
in the House. The bill in the present case having been
admittedly amended
in several particulars
during its
passage through the House, the Amendment Act cannot be said to
have been passed
in conformity with
the procedure prescribed in article 368.
Fifthly, the Amendment Act, in so far as it purports
to take a~ay or abridge the rights conferred by Part III
of the
Constitution, falls
within the prohibition of
article 13 (2).
And lastly, as· the newly
inserted articles 31A -and
31B seek to -make changes in articles 132 and 136 in
Chapter IV of Part V and article 226 in Chapter V of
Part VI, they ·require ratification under clause (b) of
the proviso to article
368, and
not having been so
ratified, they are void and unconstitutional.
Thev are
also ultra vires as they relate
to matters
enumerated
in List II, with respect
to which the State legislatures
and not Parliament have the power to make laws.
Before dealing with these points it will be convepient
to set out he!"e the material portions of articles 368,
379 and 392, on the true construction of which these
Mguments have largely. turned.
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
13
1951
Sankari Prasad
Singh Dea
v.
Union of India
and
State -of Bihar.
Patanjali
Sastri ].
1951
Sankari Prasad
Singh Deo
v.
Union of l ndia
and
State of BihM'.
Patanjali
Sastri J.
98
SUPREME COURT REPORTS
[1952]
Bili 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 the terms of the Bill :
Provided that if such amendment seeks to make any
change in-
( a) articles 54, 55, 73, 162 or 241, or
(b) Chapter IV of Pan V, Chapter V of Part VI,
or Chapter I of Part XI, or
( 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 shall also require to be ratified by the
Legislatures of not less
than
one-half of the States
specified in
Parts A and B of the First Schedule by
resolutions to that
effect passed by those Legislatures
before the Bill making provision for such amendment
is presented to • the President for assent.
379. (1) Until both Houses of Parliament have been
duly constituted and summoned to meet for the first
session under the provisions of
this
Constitution,
the
body functioning as the
Constituent
Assembly of the
Dominion of
India immediately before the commencement of this Constitution shall be the provisional
Parliament and shall exercise all the
powers and perform all the duties conferred by the provisions of this
Constitution on Parliament.
"
"
..
"
392. (1) The President may, for the purpose of removing any difficulties,
particularly in relation to the
transition from
the provisions of the
Government of
India Act, 1935, to the provisions of this
Constitution,
by order
direct that this
Constitution shall,
during
such period as may be specified in the order, have effect
subject to such adaptations, whether by way of modification, addition or omission, as
he may deem to be.
necessary or expedient:
S.C.R.
SUPREME COURT REPORTS
Provided that no such. order shall be made after the
first
meeting of "Parliament duly
cqnstitluted under
Chapter lI of Part V.
*
*
On the first
point,- it was submitted that whenever
the Constitution sought to confer a power upon Parliament, it specifically
mentioned "Parlian;ient"
as the
<lonee of the power, as in articks · 2, 3, 33, 34 and
numerous,other articles, but it deliberately avoided the
t1se of that expression in article 368.
Realising that the
Constitution, as the fundamental
l(lw of the
counti:y,
should not be liable to frequent changes according to
the whim of party majorities, the fr<!mers· placed special
difficulties in the way of amending the
Constitution
and it was a part of that scheme to confer the power
of amendment on a body other than the ordinary legislature, as was
done
by article 5 of the American
Federal Constitution. We are unable to t;1ke that view.
Various
tm;thods of
constituti<)flal
ai;nendment
have
been adopted in
written
constitutions,
such · as . by
referendum, by a
special
convention,
by
legislation
under a special procedure, and so on.
But, which of
these method~ the framers of the
Indian
Constitution
have
adopted
must be a~ertained from the relevant
provisions of the Constitution itself without any leaning based on a priori grounds or the analogy of other
constitutions in favour of <ine method in preference to
another. We accordingly turn to the
provisions dealing with qmstitutional amendments.
~
Now, the Constitution provides for
three classes of
,...
amendments of its, provisions. First, those (that can
be effected by a bare majority such as that required
for the passing of any ordinary law. . The amendments
contemplated in 'llrticles 4, 169 and 240 fall within this
class, and they are
~pecifically excluded from the purview of article 368.
Secondly, those that can be effect-
-
ed by a special
majority as
laid down in article 368.
All constitutional amendments other than those referred
to
above come
within this category
and
must
be
effected by a majority of the total membership of each
~ -
1951
Sankari Prasad
Si11gh Dco
v.
Union of India
and
State of Bihar.
Patanjali
Sastri ].
'
1951
Sank_ari Prasad
Singh Deo
v.
Union of India
and
State of Bihar.
Patanjali
Sastri T.
100
SUPREME COURT REPORTS
[1952]
House as well as by a majority of not less than twothirds of the members of that House present and
voting; and thirdly, those that require, in addition to
the special
majority above-mentioned,
ratification
by
resolutions passed by
not less
than
one-half
of the
States
specified
in
Parts
A and
B
of the First
Schedule.
This class comprises
amendments
which
seek to make any change in the provisions refer·red to
in the proviso to article 368.
It will be seen that the
power of effecting the first class of amendments is explicitly conferred on "Parliament'', that is
to
say, the
two Houses of
Parliament and the Pre.';ident (article
79). This would lead one to suppose, in the absence of
a clear indication to the contrary, that the power of
effecting the other two classes of
amendments has also
been conferred on
the same body, namely, Parliament,
for, the requirement of a different majority, which is
merely procedural, can by itself
be no reason for entrusting the power to a different body.
An examina-
~ion of tl1e language used in article 368 confirms that
.
-
v1ew.
In the first place, it is provided that the amendment
must be initiated by the introduction of a "bill in
either House of
Parliament", a
familiar
feature of
parliamentary procedure (cf. article 107(1) which says
"A bill may originate in either House of Parliament").
Then, the
bill must be
"passed in
each
House" -
just what Parliament does
when it is
called upon to
exercise its normal legislative function [article 107 (2)];
and finally, tbe bill thus passed must be "presented to
.-
the
President" for his "assent'', again a parliamentary ""
process through which every bill must pass before it
can reach the statute-book (article 111).
We thus find
that each of the component units of• Parliament is to
play its allotted part in bringing about an amendment
to
the
Constitution.
We have
already
seen
that
Parliament effects
amendments
of
the
first
class
mentioned above by going through the same three-fold ~
procedure but with a simple majority.
The fact that
a different majority in the same
body is required for
I
SUPREME COURT REPORTS
101
effecting the second
and third - categories of amendments cannot
make the amending agency a different
body. There is no force, therefore, in the
suggestion
the Parliament
would have been referred to specifically if that -body was intended to exercise the power.
Having mentioned each
House of Parliament and the
President separately and assigned to
each
its appropriate
part in bringing about constitutional changes,
the makers
of the
Constitution presumably
did not
think it necessary to refer to_ the collective designation
of the three units.
Apart from the intrinsic indications in article 368
referred
to
above, a convincing
argument is to be
found in articles 2, 3, 4, 169 and 240. As already stated,
. under
these
articles
power is given to "Parliament"
to make
laws by a bare majority to amend
certain
parts of the
Constitution; but in each case it is laid
down that no such
law should be
deemed to be an
amendment of the Constitution "for the purpose of
article
368." It would
be
quite
unnecessary,
and
indeed inappropriate, to exclude
these
laws from the
operation of
article
368,
which
requires 'a spe'cial
majority, if the power to amend· under
the latter
article was not also given to Parliament.
Somewhat closely allied to the point discussed above
is th~ obj~ction based on the bill
in the present case
having been passed in an amended
form, and
not. as
originally
introduced.
It is
not
correct to say that
article 368 is a "complete code" in respect of the procedure provided by it. There . are gaps in the procedure
as to how and after what notice a bill is to be introduc-ed, how it is to be passed by each House and how
the
President's
assent is
to be obtained. Evidently,
the rules
made by
each
House
under
article
118
--for regulating its procedure
and
the
conduct of its
business were intended, so far as may be, to be applicable. There was
some discussion at
the
Bar as to
whether the process of amending the Constitution was
a legislative process.
Petitioners' counsel
insisted that
it was not,
and that,
therefore, the
"legislative procedure" prescribed m
article
107,
which
specifically
1951
Sankari Prasad
Singh Deo
v.
·Union of India
and
State of Bihai·.
Pataniali
Sastri /.
I
1951
Sankari Prasad
Singh Dea
v.
Union of India
and
State of Bihar.
Patanjali
Sastri /.
•
102
SUPREME COURT REPORTS
[1952]
provides for a bill being passed with amendments,
was not applicable to a bill for amending the Constitution under
article 368.
The argument
was further
supported by pointing out that if amendment of such
a bill were permissible, it must be open to either House
to propose and pass amendments, and in case the two
Houses failed to agree, the whole
machinery of article
368 would be thrown out of gear, for the joint sitting
of both Houses passing the bill by a simple majority
provided for in article
108 in the
case of ordinarv
bills would be inapplicable
in view
of
the
special
majority required in article
368.
The argument proceeds on a misconception.
Assuming that
amendment
of the Constitution is not legislation even where it is
carried out by the ordinary
legislature by
passing a
bill introduced for the purpose and that articles 107
to Ill cannot
in terms
apply
when
Parliament
is
dealing with a bill under article 368, there is no obvious
reason why
Parliament should
not adopt, on
such
occasions, its own normal
procedure,
so far
as
that
procedure can be followed
consistently with statutory
requirements.
Repelling the
contention that a' Local
Government
Board
conducting
a
statutory
enquiry
should have been guided by the procedure of a court
of justice, Lord Haldane observed in Local Government
Board v. Arlidge(1) :
"Its (the Board's) character
is that of an organisation with executive
functions.
In this it resembles
other great departments of the State.
When, therefore,
Parliament entrusts it with judicial duties,
Parliament
must be taken, in the
absence of any
declaration fo
the contrary, to have intended
to follow the procedure
which is its own and is necessary if it is to be capable
of doing its work efficiently."
These observations
have application here.
Having
provided for the constitution of a Parliament and prescribed a certain
procedure
for
the , conduct, of its
ordinary legislative
business to be
supplemented
by
rules made by each House (article 118), the makers of
the
Constitution
must
be
taken to
have intended
(I) [1915] A.C. 120.
SUPREME COURT REPORTS
103
Parliament to follow that procedure, so far as h ma)'.
be applicable, consistently with the
express provisions
of article 368, when they entrusted to it the power of
amending die Constitution.
'
The argument that a power entrusted to a Parliament consisting two Houses cannot be exercised under
article 379 by the provisional Parliament sitting
as a
single chamber overlooks the scheme of the constitutional
provisions
in
regard
to
Parliament.
These
provisions· envisage
-.a
Parliament
of
two
Houses
functioning
under the
Constitution framed
as they
have been on that basis.
But the· framers were well
aware that such a Parliament could not be constituted
till after the first elections were held under the ConstitUtion.
It thus became necessary to make provision
for the carrying on, in
the
meantime, of the work
entrusted to
:parliament
under
the
·constjtution.
Accordingly, it was
provided in article 379 , that the
Constituent Assembly
should
function as
the provisional Parliament during the transitional period and
exercise all the powers and perform all the duties
1mnfetred by the
Constitution on Parliament.
Article
379 should be viewed and interpreted in the wider
perspective of this
scheme ,and
not
in its isolated
relation to article 368 alone. The petitioners' argument
that the reference in article 368
to "two Houses"
makes
that provision inapplicable to the
provisional
Parliament would equally apply to all the provisions
of the
Constitution in ·regard to Parliamentary action
and, 'if accepted, would rob article 379 of its very
purpose and meaning. It was precisely to obviate such
an argument and . to remove the difficulty on which it
is founded and other difficulties· of a like
nature in
working the constitution during the transitional period
that the framers of the Constitution made the further
provision in article 392 c'onferring a general power on
the President to adapt the provisions of the Constitution by
suitably
modifying their terms.
'fhis brings
us · to the construction of article 392.
It will be seen that the purpose for which an adaptation may be
made under that article
is
widely
1951
S1111lcui Pr.s11l
Si11zh Deo ·
'
\
v.
Union of .India
Mi
St11te O/.Bihar.
Patnfarli
SllStri /.
,
104
SUPREME COURT REPORTS
(1952)
; 1951
expressed. It may be made for the purpose of removing
nit-.-
d "any difficulties". The· particularisation of one class
,
Sas··~~:,:· 1of difficulties which follows is illustrative and cannot
•ngv..· . .. -have the effect of circumscribing the scope of the preUnihn of India ceding general words. It has been urged, however,
and
that the condition precedent to the exercise M powers
Siat. 0f Bihar. ·under article 392 is the existence of diffiCjilties to be
removed, that is to say, difficulties actually experienPatanjali
S<Utri J.
ced in the working of the Constitution whose removal
•
would be necessary for carrying on the Government,
· such as for instance, the difficulties connected with
applying articles 112, 113, etc., in the transitional
period. But, the argum~nt proceeds, constitutional
amendments cannot be said to be necessary during that
period. ·Besides, amendment of the Constitution is a
very serious thing, and hence, by providing that both
Houses must deliberate and agree to the amendment
proposed and pass the bill by a special majority, the
Constitution has purposely. placed difficulties in the
way of amending its provisions. It would be fantastic
to suppose that, after deliberately creating-those diffi;
. culties, it has empowered the President to remove them
·by a stroke of his pen .. \Ve see no.force in this line of
argument. It is true enough to say. that. difficulties
must exist before they can be removed by adaptation,
but they can exist before an occasion for their removal
actually arises. As already stated, difficulties are bound
to arise in applying provisions; which, by their t!!rrns
· are applicable to a Parliament of two Houses, to the
j
provisional Parliament sitting as a single ·chamber,
Those difficulties, arising as they do out of the inappropriateness of .the language of those provisions as
applied to the provisional Parliament, have to be
removed by modifying that language to fit in with the
situation created by article 379. There is nothing in
~
. that article to suggest that the President should wait,
before adapting a particular article; till an occasion
actually arose for the provisional Parliament to exercise the power conferred by that article. Nor is there
any question here of the President removing by his adaJ>t_ation any of t_he difficulties which the Constitution
•
---r·
S.C.R.
. SUPREME COURT REPORTS
105
r
has deliberately placed in the way of its amendment.
The adaptation
leaves the
requirement of a
special
majority
untouched.
The passing of an amendment
bill by both Houses is no more a special requirement
. of such a bill than it is of any ordinary law made by
Parliament. We are,
tlierefore,
of
opinion that . the
adaptation
of article
368 by the
President was well
within, the powers conferred on him by article 392 and
is valid and constitutional.
A more plausible argument was advanced in support
of the contention that the Amendment Act, in so far
as it purports
to take
away or abridge any of the
fundamental rights,
falls within
the
prohibition
of
article 13(2) which provides that "the State shall not
make any law which takes away or abridges the rights
conferred by this1
Part and any law made in contravention of this cfause shall to the extent of the contra- ·
vention be void." The argument was put thus : "The
State"
includes
Parliament
(article 12)
and · "law"
must 'include a constitutional amendment.. It was the
deliberate intention of the framers of the Constitution,
who realised the
sanctity of
the fundamental rights
conferred by Part Ill, to
make them
immune from
interference not only by ordinary 1aws
passed by the
legislatures in the
country but
also
from
constitutional amendments.
It
is not
uncommon
to
find
in
written
constitutions
a
declaration
that
certain
fundamental rights conferred on the people
should be
"eternal and inviolate" as for instance article 11 of
the Japanese
Constitution.
Article 5 of the American
Federal Constitution provides that no amendment. shall
be made depriving any
Stat~ .without its
consent "of
its equal suffrage in the
Senate." The framers of the
Indian Constitution had the AlJlerican and the Japanese
models before them, . and they must be taken to have
prohibited even constitutional
amendments in
derogation of fundamental rights by using aptly wide language in article 13((2). The argument is attractive, but
there are other important considerations
which point
to the opposite_ conclusion.
14
1951
Sankari Prasad
Singh Deo
v •
Union of India
·and
Stat; of Bihar.
Patanjali
Sastri /.
/
1951
Sank_ari Prasad
Singh Deo
v.
Union of India
and
State of Bihar.
P11tanjali
Sastri /.
106
SUPREME COURT REPORTS
[19521
Although "law" must ordinarily include constitutional law, there is a clear demarcation between ordinary law, which i~ made in exercise of legislative power,
and constitutional law,
which is made
in exercise of
constituent power.
Dicey defines constitutional law as
including "all rules which directly or indirectly affect
the distribution or the exercise of the sovereign power
in the State."
It is thus mainly concerned with
the
creation of the three great organs of the State, the executive, the legislature and the judiciary, the distribution of governmental power among them and the definition of their mutual relation.
No doubt our constitution-makers, following
the
American
model,
have
incorporated certain fundamental
rights
in
Part
III
and made them
immune from
interference
bv laws
made by the State.
We find it, however, difficult, in
the absence of
a clear indication
to the contrary, to
suppose that they also intended to make
those rights
immune
from
constitutional amendment.
We are
inclined to think that they must have had in mind
what is of more frequent occurrence, that is, invasion
of the rights of the subjects, by the legislative and the
executive organs of the
State by means of
laws and
rules made in exercise of their legislative
power and
not the abridgement or nullification of such rights by
alterations of the
Constitution
itself
in
exercise.