# W AMAN RAO & ORS. ETC. ETC v. UNION OF INDIA AND ORS

- **Citation:** [1981] 2 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1980-05-09
- **Case number:** Writ Petition Nos. 656-660, 512-533 and 503-511 of 1977
- **Bench:** Y. V. Chandrachud, P. N. Bhagwati, V. R. KRISHNA JyER, V. D. Tulzapurk, A. P. Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/w-aman-rao-ors-etc-etc-v-union-of-india-and-ors-8200
- **Pages:** 51

## Headnote

Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 27 of 1961 as
aniended by Amendtnent Acts 21 of 1975, 47 of 1975 and 2 of 1976-Whether
violates Articles 14, 19 or 31 of the Constitution-Right to challenge, if a consti
tutional provision wliich deprives any person/ citizen of the benefit and protec
aon of Article.J 14, 19 and 31 is invalid, any law on the ground it is inconsis
tent with or :that it takes away or abridges the right conferred by Part Ill of
the Constitution-Constitution of India, Article 13(2), scope of-Constitution
ali;y of .Articles 31A, 31B and the unamended Article 31C of the Constitut.fon
Doctrine ci stare decisis, applicability to Articles 3 lA & 31 B-l-Iouse of the
People (Extensioll of Duration) Act (30 of 1976) section 2 and House of the
People (Exti'nsion of Duration) Act (Act 109 of 1976) section 2-Proclaniation
of Emergency dated Decen1ber 3, 1971 and June 25, 1975, Constitution (Fortie1h
Amendment) Act, 1976-Validity of.
A ceiling on agriculturaJ holdings v.•as imposed in
Maharashtra
by
the
ùlaharashtra Agricultural Lands (Ceiling on Holdings) Act 27 of 1961, which
W<l:l brought into operation on January 26, 1962.
The ceiling fixed by the
Act (Principal Act)
was lov»ered and certain other amendments ¥.'ere made
to tlrnt Act by Acts 27 of 1975, 47 of 1975 and 2 of 1976.
The validity of
1hcse Acts was challenged in the Bombay High Court.
The Division Bench
at Nagpur repelled that challenge by its judgment dated August 13, 1976 in
Vd!ialrao Udhaorao Uttarwar v. Slate of Maharashtra, AIR 1977 Bombay 99.
TI1e appeals filed against the said decision
were dismissed by the
Supreme
Court
by
its

## Text

_Characters 0–38,335 of 139,665. This is a partial read: ask again with offset=38335 for what follows._

W AMAN RAO & ORS. ETC. ETC.
v.
UNION OF INDIA AND ORS.
May 9, 1980/November 13, 1980
1
[Y. V. CHANDRACHUD, C.J., P. N. BHAGWATI, V. R. KRISHNA JyER,
V. D. TULZAPURK,AR AND A. P. SEN, JJ.]
Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 27 of 1961 as
aniended by Amendtnent Acts 21 of 1975, 47 of 1975 and 2 of 1976-Whether
violates Articles 14, 19 or 31 of the Constitution-Right to challenge, if a consti
tutional provision wliich deprives any person/ citizen of the benefit and protec
aon of Article.J 14, 19 and 31 is invalid, any law on the ground it is inconsis
tent with or :that it takes away or abridges the right conferred by Part Ill of
the Constitution-Constitution of India, Article 13(2), scope of-Constitution
ali;y of .Articles 31A, 31B and the unamended Article 31C of the Constitut.fon
Doctrine ci stare decisis, applicability to Articles 3 lA & 31 B-l-Iouse of the
People (Extensioll of Duration) Act (30 of 1976) section 2 and House of the
People (Exti'nsion of Duration) Act (Act 109 of 1976) section 2-Proclaniation
of Emergency dated Decen1ber 3, 1971 and June 25, 1975, Constitution (Fortie1h
Amendment) Act, 1976-Validity of.
A ceiling on agriculturaJ holdings v.•as imposed in
Maharashtra
by
the
ùlaharashtra Agricultural Lands (Ceiling on Holdings) Act 27 of 1961, which
W<l:l brought into operation on January 26, 1962.
The ceiling fixed by the
Act (Principal Act)
was lov»ered and certain other amendments ¥.'ere made
to tlrnt Act by Acts 27 of 1975, 47 of 1975 and 2 of 1976.
The validity of
1hcse Acts was challenged in the Bombay High Court.
The Division Bench
at Nagpur repelled that challenge by its judgment dated August 13, 1976 in
Vd!ialrao Udhaorao Uttarwar v. Slate of Maharashtra, AIR 1977 Bombay 99.
TI1e appeals filed against the said decision
were dismissed by the
Supreme
Court
by
its
judgment
in
Dattanaya
GO\'ind
Mahajan
v.
Stale
of
Maharashtra, [19771 2 SCR 790.
The only point urged in these appeals \\1as
that the Jlrincipal Act, as amended, was void .. being violative of the second pro
viso to Article 3lA(1), tn so far as it created an artificial "family unit" and
fixed the unit on the agricultural holdings on such family units.
The argu
n1ent that the violation of the particular proviso deprived the impugned laws
of the protection conferred. by Article 3 lA \vas rejected by the Cotut on the
view 1bat even if the impugned provisions were violative of the second proviso
they y-;·ould receive the protection of Article 31B by reason of the inclusion of
the Principal Act and the amending Acts in the Ninth Schedule.
The Court
con£idered whether, in fact, the provisions of the impugned Acts Vi'ere violative
of the second proviso and held that it was entirely for the Legislature to decide
what policy to adopt for the purpose of restructuring the agrarian system and
the Court could not assume the role of an economic adviser for pronouncing
upon the wisdom of such policy.
The second proviso to Article 31A(l} was
therefore held not to have been contravened.
'fhe judgment of this Court in these appeals \Vas delivered on January 27,
1977 while the proclamation of emergency was in operation.
On the revoca
ticn of that proclamation, petitions were
filed in this
Court by the appellants
A
B
..
c
D
E
F
G
H
2
SUPREME COURT REPORTS
[1981] 2 S.C.R.
A
praying for the review of the judgment in Dattaraya
Govind
Mahajan on
rhe ground that .several contentions, which were otherwise open to them for
assailing the constitutional validity of the impugned Acts, could not be made
by reason of the emergency and that they should be permitted to make those
contentions since the emergency was lifted.
Fresh Writ Petitions were also
filed in this Court in \Vhich those contentions were put forward.
The Court
acceded to the request for the review and hence the peititions.
B
Dismissing the petitions, the Court
HELD
:
(Majority view)
Per Chandrachud, C.J. (On his O\Vll
behalf and on
behalf of Krishna Iyer,
Tulzapurkar and Sen, JJ.)
C
A. (I) The Constitution (First Amendment) Act, 1951 which introduced
D
Article 31A into the Constitution with
retrospective
effect
and sec. 3
of the
Constitution (Fourth Amendment) Act, 1955 \vhich substituted a new clause
(lJ, sub·clauses (a) to (e) for the original clause (1) with retrospective effect,
do not damage any of the basic or essential features of the Constitution or
its basic structure and are valid and constitutional being within the
constituent
power of the Parliament. [9 F-G=45 H, 46 A-BJ
(2) The Agricultural Ceiling Acts, fall squareĥy within the terms of clause
(a) of Article 31A(I). Those Acts provide for the
extinguisbment
and modi
fication of rights in an ''estate'", the expression
"estate"
being
defined
by
clause (2) (a) (iii) to mean "any land held or let for
purposes of agriculrure or for purposes ancillary thereto . . .... ".
It must follow, as a necessary
coroJlary, that the. impugned Acts are
entitled
to
the
protection
of
Article
E
3JA(l )(a} with the result that their provisions cannot be deemed, and there
fore cannot be declared, to be void on the ground that they are inconsistent
'vith or tale away or ::bridge any of the rights conferred by Articles 14, 19
or 31. [17 A-CJ
(3) If a constitutional provision,
which
deprives
the
peuuoners
of
the
benefit and protection of Articles 14, 19 and 31 is invalid, the petitioners will
F
be entitled to challenge the impugned laws on the ground that they are inĦ
consistent with or that they ta.ke away or abridge the rights conferred by Part
Ill of the Constitution.
Article 13(2) has a sensitive touchstone.
Not only
does it mandate that the State shall not make any law which takes away or
abridges the rights conferred by Part III but, it provides that any law made in
contravention of the clause shall, to the extent of the contravention. be void.
:r-,fere abridgement, that is to say curtailment, and not necessarily abrogation,
G
rthnt is to say total deprivation, is enough to produce the consequence pro
vided for by Article 13(2). (17 C-E]
H
(4) Though the withdrawal of the application of Articles 14, 19 and 31 in
respect of laws which fall under clause (a) is total and complete, that is lo say,
the application of those articles stands abrogated, not mere1y abridged, in resħ
pcct of in1pugned enactments \Vhich indubitably fall within the ambit of clause
(a), every ca.se in which the protection of a fundamental right is withdrawn
will not neceĨsarily' result in damaging or destroying the
basic
structure of the
Constitution.
The question as to whether the basic structure is damaged or
destroyed in any given case would· depend
upon
which
particular Article of
WAMAN RAO v. UNION
3
Part 111 is in issue and. whether what is withdrawn is quint-essential to the
A
basic structure of the Constitution. [18 B·D]
(5) The true position of Jav..· on the subject of Parliament's power to amend
ŝhe Constitution is that though the Parliament has the power to amend each
and every Article of the Constitution including the provisions of Part III the
amending power cannot be exercised so as to damage or destroy the basic structure of the Constitution. [19 G-H]
B
H. H. Kesavananda Bharati v. State of Kerala, [1973] Supp. SCR 1; Stnt.
Indira Nehr11 Gandhi v. Raj Narain, [1976] 2 SCR 347 and Minerva Mills Ltd.
\'. Union of India & Ors., [1981] I SCR p. 206, referred to.
(6) If Article 31A were not enacted. so•ne of the main purposes of the
Con:;titution would have been delayed and eventually defeated and that by the
First Amendment, the constitutional edifice \Vas not impaired but strengthened.
C
The First and the Fourth An1endn1ents,
especially the First
were made
so
closely on the heels of the Constitution that they ought indeed to be considered
as a rart and parcel of the Constitution itself.
These
amendments are
not
born of second thoughts and they do not reflect a fresh look at the Constitution
in order to deprive the people of the gains of the Constitution.
They are in
the truest sense of the phrase, a contemporary
practical
exposition of
the
Constitution. [26 E-F, G-H, 27 Al
D
(7) Article 39 of the Constitution directs by clauses (b) and (c) that the
ownership and control of the n1ateri:;il resources of the community are so dis
trihuted as best to subserve the common good; that the operation of the eco
nomic system does not result in the concentration of wea.lth and means
of
production to the common detriment.
These twin principles of State policy
\;i.:ere a part of the Constitution as originally enacted and it is in order to effecE
tuate the purpose of these Directive Principles that the First and the
Fourth
Amendments "\Vere passed. {27 A-B]
(8) Article 31A(l) could e<:.sily have appeared in the original Constitution
itself as an illustration of its basic
philosophy.
What remained to be done in
the hope that vested interests will not distort the base of the Constitution1 had
to be undertaken 'vith a sense of urgency and expediency.
It is that sense and
sensitivity which gave birth to the impugned amendment.
The progress in the
F
degeneracy of any nation can be rapid, especially in societies riven by econoŞ
1nic disparities and caste barriers.
We
embarked upon a
constitutional era
y·
holding forth the promise that \Ve will secure to all citizens justice. social, eco ...
nornic and political; equality of status and of opportunity; and, last but not
the least, dignity of the individual.
Between these
promises
and
the
First
Amendment there is discernible a nexus, direct and immediate.
Indeed, if
there is one place in an agriculture-domina.ted society like ours where citizens
G
can hope to have equal justice, it is on the strip of land which they till and
Jove, the land which assures to them the dignity of their persons by _providing
to them a near decent means of livelihood. [28 .E-H]
(9) The First Amendment has made the constitutional ideal of equal justice
a living truth.
It is like a n1irror that reflects the ideals of the Constitution,
it is not the destroyer of its basic structure.
l"fhe provisions introduced by it
and the Fourth Arnendn1ent for the extinguishment or modification of rights
in lands hekl or let for purposes of agriculture or for purposes ancillary thereto,
•trengtben rather than weaken the basic structure of the Constitution. [29 A-Bl
H
4
SUPREME COURT REPORTS
[1981] 2 S.C.R.
A
The First An1endment is aimed at removing social and economic disparities in
the agricultural sector.
It ma.y happen that while existing
inequalities
are
being removed, new inequalities may arise marginally and incidentally.
Such
marginal and incidental inequaliti..::s cannot damage or destroy the basic struc
t;.ue of the Constitution.
It is impossible for any Government, howsoever ex
pertly advised, socially oriented and prudently managed, to remove every econo
n1ic disparity without causing some hardship or injustice to a class of persons
B
who also are entitled to equal treatment under the law.
Thus, the
adoption
of ''family unit" as the unit of application for the revised
ceilings
may cause
incidental hardship to n1inor children and to unmarried daughters.
That can
not, however, furnish an argument for assailing the
impugned laws on
the
ground that they violate the guarantee of equality.
It
seems
ironical indeed
that the laws providing for agricultural ceilings should be stigmati<;ed as des
troying the guarantee of equality when their true object
and intendment is to
C
remove inequalities in the matter of agricultural holding,<;. [29 B-El
The note of the Panel set up by the Planning Commission in May 1959 on
the adoption of "family unit'" as the unit of application for the revised ceilings
and the counter-affidavit of the Deputy Secretary to the Govt. of Ơ1aharashtr::i.
show the relevance and efficacy of the family being
treated as
the real
ope
rative unit in the movement for agrarian reform.
Considering the Indian social
D
tnilieu, the Panel ca.me to the conclusion that agricultural ceiling can be most
equitably applied if the base of application is taken as the family unit consist
ing of husband, wife and thn::e minor children.
In vieiw of thi:s expert data
a L.i\V passed truly for in1plementing the objective of Article 3lA(1) (a) can
not be open to chnllenge on the ground that it infringes Articles 14. 19 or 31.
[29 E·G]
E
B.
(1). The An1endment introduced by sec. 4
of the
Constitution (First
G
H
Amendment) Act, 1951 dues not dn.mage or destroy the basic structure of the·
Constitution.
That :\tnendment 1nust, therefore, be upheld on its o\.\ n merits.
[29 HI
(2) The validity of Article 31A. cannot be upheld by applying the doctrine
of stare deci:ls, though the Article has continued to be recognised a<; valid ever
sin.;e it -was introduced into the Constitution.
The constitutional validity of
Article 31A has been n.:cugnised in the four deciƣdons, namely, Sliunkari Prasad
v. Union of India, [J.952] SCR 89. 95;
Sajjan.1•fngh v. State
of
Rajasthan,
[1965j I SCR 933; l. C. Golaknath v. Union of India & Or,., [1957] 2
SCR
762 and H. H. Kesava11a11da Bltarati Sripada[.?alavaru v. State of Kera/a, [1973J
Suppl. SCR 1. sometimes directly, sometimes indirectly and sometimes inciden
tally.
It mơ be mentioned, though it has no relevance on the applicability
of the rule of stun: dccisi!>, that in none of the three earlier
decisions was
the validity of Article JlA tested on the ground that it damaged or destroyed
the basic structure of the Constitution.
That
theory
was
el::iborated for the
first time in
Kesa1·a11anda Bharati and it was in the majority judgment deliver
ed in that case that the doctrine found its first acceptance.
Even in the two
latest cases, namely, Atnhif..:u Prasad Mishra v. S1ure of U.P .. [1980] 3
SCR
p. 1159, Thurnuti Venkaiah v.
State
of A.P., [19801 3 SCR 1143 the ques
tion as to whether Article 3 lA C<Ƣn be upheld by applying the doctrine of
stare deci.\is was never decided.
Nor was the question of vire-; of
Articles
3L\, 318 and 31C (unamended) considered in these decisions.
[30 G-H, 31 A-B, C, 32 B·Cl
•
WAMAN RAO V. UNION
5
It is true to say that for the applicatio·n of the rule of stare decisis, it is
Anot necessary that the earlier decision or decisions of long standing should have
considered and either accepted or rejected the particular a.rgument which is
advanced in the case on hand.
Were it so, the previous decisions could more
easily be treated as binding by applying the law of precedent and it will be
unneceąsary to take resort to the principle of stare decisis.
It is, therefore,
3ufficicnt fOl" invoking the 1·ule of
stare decisis that a certain decision
was
arrived at on a question v,.·hich arose or was argued, no matter on what reason
n·
the decision rests or \Vhat is the basis of the decision.
In other words, for
the purpose of applying the rul_e of stare dccisis, it is unnecessary to enquire
or determine as to ·what was the rationale of the earlier decision which is said
to operate as stare decisis.
Therefore, the reason why Article 3 lA was upheld
in the earlier decisions. if indeed it was, are not germane for the purpose of
deciding whether this is a fit and proper case in which to apply that rule.
[34 C·G]
C
But there are four principal
reasons for not
invoking the rule of stare
decisis for deciding upon the constitutionality
of Article 3 lA.
In
the
first
place, Article 31A breathes its ov.·n vitality, drawing its sustenance from the
basic tenets of our
Constitution.
The second
reason
is
that
neither
in
Slzankari Prasad, nor in Saijan Singh nor in Golak Nath and evidently not in
Kesavananda Bharati, was the question as regards the validity as such of Arti
cle 31A raised or decided.
111irdly, the history of the World's constitutionM
law shows
that the
principle of stare decisis is treated as
having a
limited
application only.
The fourth reason is that on principle rules like stare decisis
should not be invoked for upholding constitutional devices like Articles 3 lA,
31B and 31C which are designed to protect not only past laws but future lav.rs
also.
The principle of stare decisis can apply, if at all, to laws protected by
these articles, if those laws have enjoyed the protection of these articles for
a long
time, but the principle cannot apply to the articles themselves.
The
principle of stare decisis permits the saving of hnvs the validity of which has
been r.ccepted or recognised over the years.
Tt does not require or sanction
that, in future too, la\VS m<Jy be passed even though they a.re invalid or un
constitutional.
Future perpctrJ,tion of illegality is no part' of the doctrine of
stare dcci5is. [34 F-H, 35 A-B, D, 36 B-E]
Burnet v. Coronado Oil & Gas Co., 285 US. 393, 406; Tramways Case (No.
1) 1914 (CLR) 54@ 58; Bengal Immunity Case [1955] 2 SCR 603; Income
Tax Officer, Tuticorin v. T. S. D. Nadar, AIR 1968 SC
623; New York v.
Unlfed States, 326 U.S. 572, 590-591 [1946]; U.S. v. International Boxing Club,
348 U.S. 236. 249 [1955]; Mac Pherson v. Buick Motor Co., 217 N.Y. 382,
391 [1916]; State of Woshington v. W. C. Dawson & Co., 264 U.S. 219, 238
[1924] James Morwroe v. Frank Pape, 5 L.Ed. 2nd U.S. 492, 523, 528, quoted
with approval.
C.,
( 1) All amendments to the Constitution which were made before April
24, 1973 and by which the Ninth Schedule to the Constitution was amended
from time to time by the inclusion of various Acts and Regulations therein are
valid and constitutional. Amendments to the Constitution made on or after
April 24, 1973 by which the Ninth Schedule to the Constitution was amended
from time to time by the inclusion of various Acts and Regulation therein, are
open to challenge on the ground that they. or any one or more of them, are
beyond the constituent power of the Parliament since they damage the basic or
essential features of the Constitution or its basic structure in view of the JudgĆ
E
F
G
H
A
B
c
D
F
G
H
6.
SUPREME COURT REPORTS
[1981) 2 S.C.R,
men.t in Kesavananda Bharati. If any Act or Regulation included in the Ninth
Schedule by a; constitutional amendment made on or after April 24, 1973 is
saved by Article 3 IA, or by Article 31 C as it stood prior to its amendment by
the. Forty Second Amendment, the challenge to the validity of the
relevant
co"stitutional Amendment by which that Act or Regulation is put in the Ninth
Schedule, on the ground that the Amendment damages or destroys a basic or
essential feature of the Constitution.1 or its basic structure as reflected in Articles
14, 19 or 31, will become otiose. [IO C-F=46 C-FJ
(2) Article 31B provides that the Acts and Regulations specified in the
Ninth Schedule shall not be deemed to be void or ever to have become void on
the ground that they are inconsistent with or take away or abridge ahy of the
rights conferred by Part III of the Constitution. The provisions of the· Article
are expressed to be without prejudice to the generality of the provisions i.n
Article
31A
and
the
concluding
portion
of
the
Article
supersedC"..s
any
judgment,
decree
or
order of
any
court
or
tribunal
to
the
contrary. This Article wa<> introduced into the Constitution by section 5 of
the Constitution (First Amendment) Act, 1951, Article 31A having been introduced by section 4 of the san1e Amendment. Article 31B bas to be read along
with the Ninth Schedule because it is only those Acts and Regulations which
are put in that Schedule that can receive the protection of that article. The
Ninth Schedule was added to the Constitution by section 14 of the First Amendment Act, 1951. The device or mechanism which sections 5 and
14 or the
First Amendment have adopted is that as and \V'hen Acts and Regulations are
put in.to the Ninth Schedule by constitutional amendments made from time to
tin1e, they will automaticaJly by reason of the provisions of Article 31B, receive
the protection of that article. [36 F-H, 37 A-B].
The view of the Court that it would not be proper to invoke the
doctrine of stare decisis for upholding the validity of Article 31A, must
govern the question of the validity of Article 31 B. But just as there
are significant similarities between Articles 31A and 31B, there is a significant
dissimilarity too. Article 3 lA enables the passing of Jaws of the description
mentioned in clauses (a) to (e), in violation of the guarantee afforded by Articles 14 and 19. In so far as Article 31B is concerned, it does not define the
category of laws which are to receive its protection, and secondly, it affords
protection to Schedule-laws against all the provisions of Part III of the Constitu~
tion. No Act can be placed in the Ninth Schedule except by the Parliament and
since the Ninth Schedule is a part of the Constitution, no additions or alterations
can be made therein without complying with the restrictive provisions governing
amendments to the Constitution. Thus, Article 31B. read with the Ninth Schedule provides what is generally described as, a protective umbrella to all Acts
which are included in the Schedule, no matter of what character, kind or category they may be. Putting it briefly, whereas Article 31A protects laws of a
defined category, Article 3 lB empowers the Parliament to include in the Ninth
Schedule such laws as it considers fit and proper to include therein. Thus the
fourth reason for not applying the rule of stare decisis to Article 3 lA that any
particular law passed under clauses (a) to (e) can be accepted as good if it
has been treated as valid for a long number of years but the device in the form
of the Article cannot be upheld by the application of that rule, applies to Article
31B read with the Ninth Scheduie by the self-same test.
[37 G-H, 38 B-D, E-FJ
(3) The decision in Kesavananda Bharati must be treated as a landmark.
The theory that the Parliament cani;iot exercise its amending power so as to
WAMAN RAO v. UNION
7
damage or destroy the basic stJ.ucture of the Constitution, was propounded and
A
accepted for the first time in Kesavananda Bharati. This is one· reason for
holding the laWli incorporated into the Ninth Schedule before April 24, 1973,
on which date the judgment in Kesavananda Bharati was rendered. The second
reason for drawing a line at a convenient and relevant point of time is that the
first 66 items in the Ninth Schedule, which were inserted prior to the decision
in Kesavananda Bharati, mostly pertains to laws of agrarian reforms.
[38 G·H, 39 A,BJ
B
D. (1) Article 31C of the Constitution, as it stood prior to its amendment by
section 4 of the Constitution (Forty Second Amendment) Act. 1976, is valid
to the extent to which its. constitutionality was upheld in Kesavananda Bharati.
Article 31C, as it stood prior to the Constitution (Forty Second Amendment)
Act does not damage any of the basic or essential features of the Constitution
or its basic structure. Once it is held that Article 3 lA is valid on its own merits,
it must follow logically that the unamended Article 31C is also valid. The un·
amended portion of Article 31C is not like· an unchartered ship. It gives protection to a defined and lin1ited category of la\vs which are passed for giving
effect to the policy of the State towards securing the principles specified in
clause (b) or clause_ (c) of Article 39. It is impossible to conceive that any
law passed for such a purpose can at all violate Article 14 or Article 19. In
fact, far from damaging the basic structure of the Constitution, laws passed
truly and bona fide for giving effect to directive principles contained in clause
(b) and (c) of Article 39 will. fortify that structure. [10 F-0, 40 G·H, 41 A-CJ
E.
(!) The normal term of the Lok Sabha expired on March 18, 1976. On
April 2, 1976, the Lok Sabha passed the Fortieth Amendment Act by which the
Maharashtra I.and Ceiling Amendment Acts were put in the Ninth Schedule
as Items 157, 159 and 160.
On November 24,
1976 the House of People
(Extension of Duration) Amendment Act was passed extending the term of
the Parliament for a further period of one year. The Forty Second Amendment
Act was passed on November 12, 1976. The Lok Sabha was dissolved on
January 18, 1977 and both the emergencies dated December 3,
1971 and ·lune
25, 1975 were revoked on March 21, 1977. [43 E·G]
In so far as the proclamation of December 3, 1971 is concerned, there was
c
D
E
manifest justification for that coufse of action. The danger to the security of
F
the country was clear and present. From the various dates and events mentioned and furnished to the Court, it may be possible for a layman to conclude
that there was no reason to continue the state of emergency at least after the
formality of exchanging the prisoners of war was completed. But Courts have
severe constraints which deter them from undertaking a task which cannot
judicially be performed. [44 D-F, HJ
(2) The two Acts, the House of the People (Extension of Duration) Act,
Act 30 of 1976 and the House of the People (Extension of Duration) Amend,
ment Act 109 of 1976, by which the duration of the Lok Sabha was extended
are valid and lawful. The Fortieth and the Forty Second Constitutional Amendments cannot, therefore, be struck down on the ground that they were passed
by a Lok Sabha which was not lawfully in existence. [45 F·G]
Section 2 of the first of these Acts, Act 30 of 1976, which was passed on
Febru;iry 16, 1976, provided that the period of five years in relation to the then
House of. the People shall be extended for a period of one year "while the ProG
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8
SUPREME COURT REPORTS
[1981) 2 S.C.R.
clamation of Emergency issued on the 3rd day of December, 1971 and on the
25th day of June, 1975, are both 1n operation." The second Act of Extension
continue! to contain the same provision.
Both the proclamations of emergency
were in fact in operation on February 16, 1976 when the first Act was passed
as also on November 24, 1976 when the second Act, 109 of 1976, was passed.
Neither the first Proclamation can be deemed not to be in existence, nor can
the second Proclamation be held to have been issued mala fide and, therefore
non est, since the evidence produced before the Court is insufficient for record~
ing a decision on either of these matters. [45 C-F]
Per Bhagwati, J. (Contra)
The doctrine of stare decisis can be invoked for sustaining the constitutional
validity 'of Article 3 lA. (50 El
·
Minerva Mills v. Union of India, (1981] 1 SCR p. 206 reiterated; Ambika
·""*{
·C
Prasad Mishra v. State of U.P., (1980] 3 SCR p. 1159, followed.
Per Krishna Iyer-, 1:- (Contra)
Applying the principle of stare decisis. Article 3 lA is valid. In constitu_tional issues over stress on precedents is inept. Even so, great respect and binding value are the no1mal claim of rulings until reversed by larger Benches.
(51 C-D]
D
Ambika Prasad MislITa v. State of U.P., [1980] 3 SCR p. 1159 reiterated.
ORIGINAL JURISDICTION : Writ Petition Nos.
656-660, 512-533
and 503-511 of 1977.
(Under Article 32 of the Constitution)
AND
Review Petitions Nos. 34, 62-65, 66-72, 73-74, 75-77, 78-81, 82,
83-84, 85, 86-87, 88, 89-90, 91-92, 93-94, 95, 95A, 96,
103-107,
110, 120, 121, 122-130 of 1977.
AND
Writ Petition No. 63 of 1977. (Under Article 32 of the Constitution).
M. N. Phadke,
N. M.
Ghatate
(Dr.), S.
N. Bapat a11d S. V.
Deshpande for the Petitioners in RPs. 34, 62-95, 95A. 96, 103-107,
120-123 & WPs. 656-660, 503-511/77.
'111· S. Gupta for the Petitioners in RPs. 110, 122-130/77.
·G
S. N. Kherdikar, M. N.
Ingle, A. G.
Ratnaparkhi and C. K.
Ratnaparkhi for the Petitioners in WPs. 512-533/77.
S. V. Gupte, Att. Genl. K. H. Bhatt, R. N. Sac~they and Miss A.
Subhashini for R 1 in WPs. 503-511, 512-533, 656-660 & RPs. 34,
62-65/77.
H
S. V. Gupte, Att. Genl. C. J. Sawant, M. C. Bhandare, M. B. Bor &
M. N. Shroff for R. 2 in WPs. 503-533 and for RR. 2 & 3 in WPs.
656-660/77.
WAMAN RAO V. UNION
9
S. V. Gupte, Att. Gen. and Miss A. Subhashiniri.or the Att. Genl.
A
R. K. Rastogi, J. S. Rastogi and Bardridas Sharma for the State of
Rajasthan in WP No. 656/77.
·
G. N. D.ikshit and M. V. Goswami for the State of U.P.
Altaf Ahmed for the State of Jammu & Kashmir in WPs. 533 &
M~~
B
FOR THE ADVOCATES GENERAL :
U. P. Smgh and Shambhunath Iha (State of Bihar).
M. M. Abdul Khader and K. R. Nambiar (State of Kerala)·.
B. M. Patnaik and R. K. Mehta (State of Orissa).
K. M. K. Nair and N. Nettar (State of Karnataka).
K. M. K. Nair and N. Nettar (State of Tamil Nadu).
FOR THE JNTERVENERS:
V. N Ganpu/e for Pratap Rao in W.P. 503.
R. K. Garg for Shyam Narain Tiwari in RP 34/77 & WP 512/
77.
R. N. Bannerjee, J. S. Sinha and J.B.D. & Co. for Panch Valley
Coal Co. and Shri Bimal Poddar in WP. 512/77.
c
D
G. L. Snnghi, Miss Bhubnesh Kumari, K. J. John and J. B. D. &
E
Co. for the Appellant Intervener Lt. Col. Himmat Singh & Ors.
S. B. Wad for the Applicant/Intervener in WPs. 342 & 343 of 77
and RP. 63/77.
The following Order was delivered on 9th May, 1980.
(1) The Constitution (First Amendment) Act, 1951 which introduced Article 3 lA into the Constitution with retrospective effect, and
section 3 of the Constitution (Fourth Amendment) Act, 1955 which
substituted a new clause (1), sub-clauses (a) to ( e), for the original
clause ( 1) with retrospective effect, do not damage any of the basic
F
or essential features of the Constitution or its basic structure and are
G
valid and constitutional, being within the constituent power of the
Parliament.
(2) Section 5 of the Constitution (First Amendment) Act 1951
introduced Article 31 B into the Constitution which reads thus :
"3 lB. Without prejudice to the generality of the proviH
sions contained in article 3 lA, none of the Acts and Regulations specified in the Ninth Schedule nor any df the provi-
A
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SUPREME COURT REPORTS
[1981] 2 S.C.R.
sions thereof •all be deemed to be void, or ever to have
become void, on the ground that such Act, Regulation or
provision is inconsistent with, or takes away or abridges any
of the rights conferred by, auy provisions of this Part, and
notwithstanding any judgment, decree or order of any court
or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force."
In Kesavananda Bharati (1973, Suppl. SCR 1) decided on April 24,
1973 it was held by the majority th.at Parliament has no power to
amend the Constitution so as to damage or destroy its basic or essential features or its basic structure. We hold that all amendments to the
Constitution which were made before April 24, 1973 and by which the
9th Schedule to the Constitution was amended from time to time by
the inclusion of various Acts and Regulations therein, are valid and
constitutional. Amendments to the Constitution made on or after
April 24, 1973 by which the 9th Schedule to the Constitution was
amended from time to time by the inclusion of various Acts and Regulations therein, are open to challenge on the ground that they, or any
one or more of them, are beyond the constituent power of the Parliament since they damage the basic or essential features of the Constitution or its basic structure. We do not pronounce upon the validity of
such subsequent constitutional amendments except to say that if any
Act or Regulation included in the 9th Schedule by a constitutional
amendment made after April 24, 1973 is saved by Article 3 lA, or by
Article 31C as it stood prior to its amendment by the 42nd Amendment, the challenge to the validity of the relevant Constitutional
Amendment by which that Act or Regulation is put in the 9th Schedule, on the ground that the Amendment damages or destroys a basic
or essential feature of the Constitution or its basic structure as reflected
in Articles 14, 19 or 31, will become otiose.
(3) Article 31C of the Constitution, as it stood pridr to its amendment by section 4 of the Constitution ( 42nd Amendment) Act, 1976,
is valid to the extent to which its constitutionality was upheld in
G
Kesavananda Bharati. Article 31C, as it stood prior to the Constitution ( 42 Amendment) Act does not damage any of the basic or essential features of the Constitution or its basic structure.
l4) All the Writ Petitions and Review Petitions relating to the
validity of the Maharashtra Agricultural Lands· Ceiling Acts are disH
missed with costs. The stay orders granted in these matters will stand
vacated. We quantify the costs at Rs. five thousand which will be
borne equally by the petitioners in Writ Petitions Nos. 656-660 of
~I
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(
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~ .. •
.. . '
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WAMAN RAO v. UNION (Chandrachud, C.J.)
II
1977; 512-533 of 1977; and 503 to 511 of 1977. The costs will be
A
payable to the Union of India and the State of Maharashtra in equal
measure.
(5) Writ Petition No. 63 of 1977 (Baburao Samant vs. Union of
Jndia) will be set down for hearing.
( 6) Reasons for this Order will follow later.
The following Jndgments were delivered :
CHANDRACHUD, C.J. A ceiling on agricultural holdings was imposed in Maharashtra by the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 27 o~ 1961, which was bi:ought into operation
on January 26, 1962. The ceiling fixed by that Act (the Principal
Act), was lowered and certain other amendments were made to that
Act by Acts 21 of 1975, 47 of 1975 and 2 of 1976. The validity of
1hese Acts w~s challenged in the Bombay High Court in a large group
of over 2660 petitions. A Division Bench of the High Court silting at
Nagpur repelled that challenge by a judgment dated August 13, 1976,
1n Vithalrao Udhaorao Uttanvar v.
State of Maharashtra('). The
High Court held that the provisions of the aforesaid Acts were not open
to challenge on the ground that they were inconsistent with or took
away or abridged any of the rights conferred by Part III of the Constitution, since those Acts were placed in the Ninth Schedule by the Constitution 17th Amendment Act,
1964, and the Constitution 40th
Amendment Act, 1976, and also because of the
promulgation of
Emergency as a result of which, the rights under Articles 14 and 19 of
1he Constitution could not be enforced. The High Court also repelled
the challenge to the validity of Article 3 lB itself by holding that far
from damaging the basic structure of the Constitution, the Constitution
(First Amendment) Act, 1951, which introduced Article 31B into the
Constitution, fortified that structure by subserving a fundamental con-
~titutional purpose. Certain provisions of the Principal Act and of the
Amending Acts, particularly the concept of 'family unit' were challenged before the High Court on the ground, inter alia, that they were
outside the purview of Article 3 lA On an overall consideration of
the movement of agrarian reforms, with
particular reference to the
relevant statistics in regard to Maharashtra, the High Court rejected
that challeng.e too on the ground that those provisions formed a part
of an integral scheme of agrarian reforms under which large agricultu-
{I) ATR' 1977 llombay 99.
2-1281 SCl/80
B
c
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E
F
G
H
A
B
c
D
E
F
G
H
12
SUPREME COURT REPORTS
[1981] 2 S.C.R.
ral holdings had to be reduced and the surplus
land distributed
amongst the landless· and others.
The appeals filed against the decision of the Bombay High Court
were dismissed by this Court by a judgment dated January 27, 1977 in
Dattatraya Govind Mahajan v. State of Maharashtra('). The only
point urged in those appeals was that the Principal Act, as amended,
was void being violative of the second proviso to Article 31A(l), in
so far as it created an artificial 'family unit' and fixed the ceiling on
the agricultural holdings of such family units. The argument was that
the violation of the particular proviso deprived the impugned laws of
the protection conferred by Article 31A. That argument was rejected
by the Court on the view that even if the impugned provisions were
violative of the second proviso, they would receive the protection of
Article 3 lB by reason of the inclusion of the Principal Act and the
Amending Acts
in the Ninth Schedule.
The Court considered
whether, in fact, the provisions of the impugned Acts were violative of
the second proviso and held that it was entirely for the legislature to
decide what policy to adopt for the purpose of restructuring the
agrarian system and the Court could not assume the role of au economic adviser for pronouncing upon the wisdom of such policy.
The
second proviso to Article 31A(l) was therefore held not to have been
contravened.
The judgment of this Court in the appeals aforesaid was delivered
on January 27, 1977 while the proclamation of emergency was in
operation.
On the revocation of that proclamation, petitions were
filed in this Court by the appellants praying for the revi•"w
of the
judgment in Dattatraya Govind Mahajan (Supra) on the ground that
several contentions, which were otherwise open to them for assailing
the constitutional validity of the impugned Acts, could not be made by
reason of the emergency and that they should be permitted to make
those ·contentions since the emergency was lifted.
Fresh Writ Petitions were also filed in this Court in which those contentions were put
forward.
TlTe Court having accepted the request for the review of the
judgment in Dattatraya Govind Mahajan, (supra) these matters have
coine before us for consideration of the other points involved in the
appeals.
In these proceedings, the. main challenge now is to the constitutionality of Articles 3 lA, 3 lB and the unamended Article 31 C of the
Constitution. The various grounds of challenge to the Principal Act
and the Amending Acts were met on behalf of the respondents by rely-
-(1) [1977] 2 S.C.R. 790.
\
''"'[)
)
<
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WAMAN RAO v. UNION (Chandrachud, C.J.)
13
ing on the provisions of these Articles which throw a protective doak
around Jaws of a certain description and variety, by excluding challenge
thereto on the ground that they are violative of certain articles of the
Constitution. The reply of the appellants and the petitioners to
the
defence of the respondents is, as it could oruy be, that the very provisions of the Constitution on which the respondents rely for saving the
impugned laws are invalid, since these particular provisions of the
Constitution, which were introduced by later amendments, damage or
destroy the basic structure of the Constitution within the meaning of
the ratio of the majority judgment in Keshavananda Bharati.(1)
Articles· 14, 19, 31A.