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Summary of Arguments in the Fundamental Rights Case
[(1973) 4 SCC 225]
by V.G. Ramachandran, Honorary Editor
Cite as : (1973) 4 SCC (Jour) 35
Shri C.K. Daphtary.—Shri C.K. Daphtary appearing for the petitioner in WP No 373/72 discussed the proposition that vital features of the Constitution cannot be legislated away. He refuted the contention that the amending power under Article 368 were very wide and all-embracing. That would only lead to abrogation of all fundamental rights. A bitter point of this claim is the gross misuse of it by the 24th and 25th Amendments. Even the discretionary powers of the President as to assent was taken away by the 24th Amendment. The 25th Amendment reduced "compensation" in Article 31(2) into 'amount'. It introduced Article 31-C which enforced certain Directive Principles even contrary to the provisions in Articles 14, 19 and 31 and made them non-justiciable. The basis for the pledge in Article 13(2) was the assurance contained in the U.N., Charter to safeguard Human Rights, and fundamental freedoms particularly of the minorities. Under the 25th Amendment the right of minorities were in dire jeopardy. The 24th and 25th Amendments enabled the party in power to break the Constitution from "within".
Shri M.C. Chagla.—Shri M.C. Chagla for the petitioner in WP No 374/72 urged that Parliament was not competent to effect changes in the basic nature and scheme of the Constitution. The Constitution of India being a 'controlled' one, Parliament, a creature of the Constitution cannot exercise its powers so as to make it an 'uncontrolled' one. Under the new Article 31-C even the State legislature (which had no competency) is now given the power to abrogate the rights guaranteed under Articles 14, 19 and 31. The said article enables Parliament to give effect by law to the Directive principles in Article 39 which abrogates many fundamental guarantees in Part III of the Constitution. Such laws cannot be questioned by any court of law. This was a clear usurpation of the judicial function. Parliament's decision is most often that of the leader of the major political party. Therefore the phrase 'wisdom of Parliament in reaching a conclusion' in a legislative measure is a misnomer. This has necessarily to be borne in mind by the court in considering 'the implied and inherent limitations on the amending power of Parliament.
Shri H.M. Seervai.—Shri H.M. Seervai, the Advocate-General of Maharashtra and counsel for the State of Kerala, took 21 days for his learned arguments meeting the able contentions put forward by Shri Palkhivala for the petitioners for 30 days. He laid great stress on the democratic set-up enunciated in the Preamble of the Constitution and the need for showing the utmost respect for the 'wisdom of Parliament' in the exercise of its sovereign legislative power. To assume that the elected representatives of the people will abuse their unlimited legislative power in gross irreverance to the democratic edifice of adult suffrage on which the institutions of Government were built up in the Republic of India. It is essential that the three wings of Government — the legislature, the Judiciary and the Executive — should harmoniously run the machinery of Government. Therefore the test of the existence of unlimited Amending Power should not be viewed in the context of possible abuse of that power. The existence of this power was fully recognised by the Supreme Court from 1950 to 1967 (till the Golaknath decision), in upholding several Constitutional Amendments. Even Golaknath did not abrogate those Amendments but only vetoed Parliament's power to amend in future any of the Rights in Part III of the Constitution. The majority opinion (6: 5) located the source of the amending i.e. Constituent power in the people while the minority located it in Article 368 itself. This power in Article 368 was sui generis when compared to the ordinary legislative power adumberated in Article 245. Even in the majority Bench, the reasoning of Hidayatullah was that Article 368 itself could be so amended as to empower Parliament to make a law to convoke a Constituent Assembly. The other judges of the majority would suggest resort to the residuary power. (Entry 97, List I) for the convoking of such a Constituent Assembly. So there was absolutely no binding ratio in the Golaknath decision. Viewed in this light the 24th Amendment followed the procedure set out in Article 368 and this was only in consonance with the opinion of the five minority judges and Hidayatullah, J. Just as the Ist, 4th and 17th Amendments were the results of the opinions expressed by the Supreme Court, the 24th Amendment was designed to 'remove some of the doubts of amendability' of the unspecified Articles of the Constitution as indicated in the majority Judgment in the Golaknath case. It is significant to note that while the minority judgment rejected the theory of implied or inherent limitations of the amending power, the majority judgment did not decide the issue at all.
Counsel submitted that the Preamble was part of the Constitution and Parliament could amend it like any other provision of the Constitution. It was moved, debated and passed by the Constituent Assembly. The Preamble came into force on Jan. 26, 1950 and it cannot be said that the Preamble hangs in the air "and had not been brought into force". The statement in the Preamble "enact and give to ourselves" was only a legal fiction.
Counsel further submitted that Fundamental Rights are not human rights. These rights did not belong to the people of India before Jan. 26, 1950 and as such could not be claimed by them. They are only social rights conferred on citizens by civilized society at a given time and are therefore susceptible to change from time to time. That the rights are subject to change is even intrinsically evidenced by the provisions in Article 19, 33, 34, and 352. During emergency the freedoms in Article 19 can be suspended from operation.
The right to freedom of religion in Article 25 and 26 is not a natural right but subject to interests of society and State.
That most of the rights vouchsafed in Part III of the Constitution are not available to foreigners clearly prove that they are not human rights or natural rights. Further the Preamble to the Constitution which is clearly a part of it seeks to secure only for the citizens of India Justice, Liberty, Equality and Fraternity. Right to the freedoms in Part III is clearly subject to the paramount interest of Society i.e. social good of society and are regulated by considerations such as of public interest, morality, health, public order, friendly relations with foreign states, etc. The objectives set out in Part IV (Directive Principles of State policy) operate as the yardstick for imposing reasonable restrictions for regulation of the Rights in Part III.
The basic features of the Constitution e.g. Parliamentary democracy, federal structure, rule of law, judicial review, religious rights and fundamental freedoms were not meant to be permanent by the founding fathers of the Constitution. Unlimited constitutional power is the essence of the grant of power to self-governing Government. Such power cannot be limited on the assumption of extravagant abuse of such powers e.g. the large powers to redraw the map of the states under Articles 3 and 4 cannot be abused except by force of external sanction — linguistic states reorganisation.
The legislative powers under the Constitution and the constituent amending powers of the Constitution are totally distinct. Counsel submitted that if the test of the 'worst' (abuses of power) being done by each of the three organs of Government held the field then the normal functioning of Government would become impossible. When great legislatures were entrusted with very wide powers such as in taxation, finance, rearranging the map of the country, it did not stand to reason that they cannot be trusted with as much power in the normal operation of Government. The apprehensions of the writ petitioners that by abuse of this power of amendment the Parliamentary form of democracy will be changed into a Presidential form of Government, that the rights of minorities will be jeopardised, that there will be denudation of the judicial power, were all baseless.
Citing A.K. Gopalan case, 1950 SCR 88 and other Supreme Court decisions counsel submitted that a broad and liberal construction should inspire those whose duty it was to interpret the Constitution. The clear language of the provision and not the underlying unfathomed spirit thereof should be the guiding factor. The social philosophy personal to the judge should not warp his conclusions if he realised his full responsibility and exercised self-restraint on the sobering reflection (a) that the Constitution is not meant only for people of his own way of thinking but for all the people; and (b) that the majority of the elected representatives of the people have considered the imposition of the restrictions as quite reasonable.
It must also be realised that the judiciary and the legislatures have co-equal powers. If the former invalidated an amendment as ultra vires, the latter had the necessary power to pass a law meeting the situation created by the judicial verdict. The constituent power of amendment in Article 368 should be given the widest interpretation. The expressions concerned should receive a flexible and elastic interpretation. Counsel cited a foreign Ruling where the word 'Telegraph' was deemed broad enough to connote 'Telephone'. The only exceptions to this wide rule of construction are (i) where a union entry and state entry collided (e.g. in taxation), one of them has to be cut down by interpretation to prevent overlapping. (2) Legal terms should be interpreted in accepted legal sense as the legislature should be deemed to have used it only in that sense.
It must be remembered that the scheme of the distribution of the legislative powers between the Centre and the State was effected through three distinct legislative lists (Union, State and concurrent lists).
The expression 'Amendment of the Constitution' in Article 368 carried with it the prima facie meaning — the power to "amend any provision of the Constitution", including the rights in Part III of the Constitution. Referring to comparative provisions in the Constitution of Canada, Australia, U.S.A., Switzerland, Ireland and Japan, Shri H.M. Seervai explained that whenever the relevant constitution wanted to place prohibition or restrictions on the amending power in any sphere of the Constitution, there were always express provisions to that effect. This is also true of the Indian Constitution. The latter was a controlled and rigid constitution and consequently amendments lay only through the process laid in Article 368 which was far different from the amending process as to ordinary laws. In uncontrolled (flexible) constitutions the distinction between 'legislative power' and 'constituent power' gets blurred. But the distinction does exist sharply in controlled constitutions between the legislative and constituent power, thereby bringing in the doctrine of ultra vires. Further, here the 'law-making power' was a genus of which legislative power and constituent power were but species. In flexible constitutions no law was 'ultra vires'. Constitutional limitations had meaning only in a controlled constitution wherein those limitations could not be got rid of except by the prescribed special procedure for the amendment of the Constitution. Thus matters dealt under Articles 2 to 4 as also under Schedule V and Schedule VI which contain provision for amendment of those schedules — all these can be amended only by resort to the process set out in Article368 and not by ordinary legislation. The majority opinion in the Golaknath decision also recognised the distinction between a legislative power and a constituent power.
To put it tritely the power of amendment was prima facie relatable to the constitution-making power. This is manifest in the Supreme Court opinion expressed in Kameswar Singh case, 1952 SCR 889. That decision also pointed out that no law could be struck down on the ground of unreasonableness and unjustness. A glaring example of unjustness is detention without trial under Article22 but that was necessitated by the paramount consideration for protection of the state from subversive activities by persons who did not believe in freedom and free society. That such a big power will be abused did not prevent the conferral of that power. To deny the existence of unlimited amending power on the same ground was irrational, illogical and illegal. Enunciating the Rules of Interpretation, counsel submitted that if the language of a statute was plain and clear then effect had to be given to what had been said by these words, even if that meaning lead to 'absurdity', 'mischief' or 'injustice'. Only where the words were ambiguous regard might be had for the 'consequences'. Queen v. Burrah, (1878) 3 AC 889: 5 IA 178 and other Supreme Court opinions clearly establish that when, words of a statute were clear consideration of jurisprudence and policy were not relevant at all. Where more than one meaning was possible then that construction must be given which will ensure smooth and harmonious working of the Constitution. If each time the court has to find the essential features or search for the core of the fundamental right then that will introduce an element of uncertainty and chaos. It follows you cannot import non-existing limitations to the amending powers, simply because it will jeopardise minority rights, fundamental rights, etc. Both Parts III and IV of the Constitution were fundamental. When the State gives effect to a Directive Principle in Part IV by law and if such a law would be subject to the hazard of a challenge in Court, it was perfectly open to Parliament to make such law nonjusticiable. In such an event the concerned Directive Principle will override and prevail over the fundamental rights.
The marginal note to Article 368 — "Procedure for amendment of the Constitution" — cannot be construed as limiting Article 368 to only procedure. As Part XX of the Constitution carried the sub-title 'Amendment of the Constitution', the said Article governs both the substantive and the procedural aspects of the amending power. It is to be noted that the word 'law' is not at all used in Article 368. For, once the procedure set out therein is followed the substantive result was a constitutional amendment. Analysing the amending power contained in Article 368, Shri H.M. Seervai observed:
(i) The entire amending power (substantive and procedural) was located in Article 368.
(ii) It was wide enough to amend by way of 'addition, variation or repeal' of any provision of the Constitution including Fundamental Rights.
(iii) It was not correct to say (as contended by petitioners) that the amending power resided in the residuary legislative power of Parliament.
(iv) The amending power was 'constituent power' in contradistinction to ordinary legislative power of Parliament.
(v) Sub-article 2 of Article 13 was no limitation (either express or implied) on the amending power in Article 368. A constitutional amendment cannot be tested by the touchstone of fundamental rights.
(vi) There is a marked difference in procedure between the amending powers in Article 368 and that relating to ordinary legislation.
(vii) Justiciability was confined to procedural matters under Article 368, as to whether the prescribed procedure was followed or not.
(viii) There was neither express nor implied limitations to the amending power.
Counsel submitted that it was nothing but political argument to urge that if the amending power was unlimited, the very federal structure, rights of minorities and religious rights, etc. could be done away with and the powers of the judiciary denuded. He cited authority to show that courts will not countenance such political arguments.
Shri H.M. Seervai contended that the Golaknath decision erred in locating the amending power outside Article 368 in the residuary power listed in Entry 97 of List I. The provision in Article 13(2) speaks of 'law'. It was grotesque to contend under the residuary power a law convoking a Constituent Assembly could be passed and that that body alone can amend Fundamental Rights. How can Parliament which could not amend Part III create a body that can do it? If the amending power was not located in Entry 97 of List I only two views could possibly hold the field:
(i) The provision in Article 368 was 'self executing'. Once the procedure set out therein was followed the result was an amendment of the Constitution;
(ii) The power of Amendment could only be located in Article 368 itself.
The phrase 'the amendment of this Constitution' in Article 368 connoted the constituent power to amend any and every provision in the Constitution. Similar expressions were found in Australian and American Constitutions. The ordinary legislative power under Article 245 was as the opening words state 'subject to the provisions of this Constitution'. This demonstrably shows that Constitution was higher than law and that the constituent power of amendment was distinct and superior to the ordinary law-making power under Article 245.
It is the will of the people that is reflected in the unlimited constituent power enshrined in Article 368. For the elected representatives of the people in a democratic country to amend the Constitution under Article 368 is only carrying out the mandate of the people and as such this cannot be curbed by any implied limitations. In India the Constitution being controlled does not leave the power of amendment to any entry in the legislative lists, but enshrines it in Article 368 itself. The Canadian Constitution is an example of uncontrolled Constitution with a legislative list containing an entry as to amendment. To read into Entry 97 a residuary amending power is to convert a constituent power as a mere legislative power of amendment.
Shri H.M. Seervai further contended that Privy Council Judgment in McCawley case, 1920 AC 691 relied upon by the petitioners did not support the theory of implied limitations vis-...-vis the amending power. Nor did the case allow a different kind of treatment to provisions which were said to be the 'core and essence' of the Constitution (e.g. Fundamental Rights). The McCawley case restricted all limitations on legislative power to objective standards. The court had no jurisdiction to invoke vague standards to discover implied limitations on the amending power. It further laid down that unless there was a special procedure prescribed for amending any part of the Constitution the Constitution was 'uncontrolled' and as such could be amended by ordinary law. To dub fundamental rights as natural rights and to invoke the doctrine of implied limitations on the amending power was without any legal basis. The theory of natural rights is rejected in Part III itself wherein the rights were dominated by special, political and economic considerations governing an organised democratic society or state. A large and liberal construction of Article 368 is called for and that is what the Supreme Court did from 1951 till 1967 (till the Golaknath case), in upholding the Ist, 4th and 17th Amendments. Consequent on the reversal of this opinion in Golaknath the present 24th Amendment merely sought to restore to Parliament the power it already possessed. Even the Preamble was part of the Constitution and as such was subject to the all-pervasive amending power.
Counsel then submitted that the Privy Council decision in Rana Singhe case, 1965 AC 172 which posited that the amending power given to a legislature could not be narrowed down by the theory of implied limitation. He refuted the contention of opposing counsel that that decision supports the doctrine of implied limitations on the amending power. Comparing analogous powers in the Ceylon Constitution to the Indian provisions in Articles 13(2) and 368, counsel emphasised that there was necessarily an implied doctrine of ultra vires governing both the Ceylon and Indian constitutions. It was erroneous to state that Article 13(2) imposed limitations on the amending power contained in Article 368. If that were so every Article of the Constitution would be a limitation, on Article 368 because of the doctrine of ultra vires. Rana Singhe case also posits that even amending provision could be amended by following the prescribed procedure (e.g. as laid in Article 368). This was what was done in the 24th Amendment. Golaknath erred in treating that the prohibition contained in Article 13(2) had higher efficacy than the opening words in Article 245. It also erred in holding that Rana Singhe case did not draw any distinction between 'constituent power' and 'legislative power'. Article 13(2) cannot control Article 368. This is apparent from the Constituent Assembly debates where Shri K. Santhanam withdrew his amendment as quite unnecessary since Article 13(2) would not apply to an amendment of the Constitution.
When the expression 'laws in force' in Article 13(2) did not include 'constitutional law', on a parity of reasoning 'Law' in Article 13(2) could not be said to be 'constitutional law'. So an amendment of the Constitution cannot be tested by the touchstone of Fundamental Rights. The speeches of Nehru and Dr. Ambedkar clearly showed that the rights in Part III were amendable. Though in A.K. Gopalan case, reference to Constituent Assembly proceedings was prohibited for construing a constitutional provision, yet the Golaknath and some Privy Council cases permitted such reference.
In the United States the Due Process clause permitted the Judiciary to discover the limitations on the widely worded rights in the National Charter. In India the Due Process doctrine stood rejected and the only yardstick for regulating the exercise of fundamental rights was the reasonable restriction clause. This was done deliberately with a view to relieve the judiciary of 'subjective judicial determination'. Judicial review was to be only on objective considerations.A.K. Gopalan case rejected the subjective Due Process doctrine. The petitioner's plea that the essential features of the Constitution could not be amended was nothing but clothing the judiciary with usurpation of power through the subjective test. There was no objective standard to determine the core or the periphery of any essential feature of the Indian Constitution. Judicial Review was not an essential feature of the Constitution. In France Judicial Review of legislation was totally rejected. The theory that Fundamental Rights were reserved to the people and they only can amend them is fallacious. A study of Constituent Assembly proceedings rejected the concept of a Referendum to or a Convention of the people. There is no provision similar to the provision in the U.S. Tenth Amendment which stated: "What was not given either to the Federal or State's legislatures was reserved to the people".
The Due Process test alone can reject a Constitutional Amendment which was based on political, social or economic grounds. That subjective test is not available in India where a law could be tested as to its constitutionality only by the objective test of reasonableness. Even in U.S. (Sprague case 282 US 716) when the Ist Amendment was struck down as void, the Supreme Court rejected the contention that an amendment of that nature could be based only on conventions i.e. decision at the people's meet. Shri H.M. Seervai submitted that at the General Elections in 1967, the people of India had a say as to the need for the present 24th and 25th Amendments insofar that was included in the Congress election manifesto. The thumping majority secured by the Congress showed the people's approval of the policy as to constitutional amendments. Judicial Review was not an essential feature of any Federal Constitution e.g. Switzerland. Courts have no jurisdiction to determine any dispute as to division of powers in a federal polity. It was generally resolved by an impartial body outside the Federal and State Governments.
The power of amendment must be co-extensive with the judiciary's power of invalidation of laws made by Parliament. So if a law is struck down by court as ultra vires due to lack of power or violating limitation on power, it is open to Parliament to re-enact the law by acquiring the necessary power by a constitutional amendment. Thus the democratic will of the people is made to prevail. However, courts do have power to further review as to whether the new law is intra vires of the newly amended Constitution. Thus the democratic process of maintaining co-extensive powers to the legislature and the judiciary and making no wing of Government superior to the others is kept up. The doctrine of implied limitations of the amending power allows the judiciary the last word on the Constitution, thereby usurping a superior status not warranted under the Constitution.
Counsel then referred to the U.S. Lochner case (49 L Ed 937) which postulated that "the underlying theory of democratic Government was the right of the majority to embody its opinion in law, subject to the limitations imposed by the Constitution and subject further to the 'unlimited power' to remove these limitations by a Constitutional amendment except in the disputable case of an express limitation alleged to be permanent". Thus can 'Government by judges' be avoided in a federal democracy. This is what President Roosevelt (U.S.) wanted to avoid in his drive for a new deal. Jawaharlal Nehru's speech in the Constituent Assembly clearly posits that "no judiciary including the Supreme Court was intended under the Constitution to stand in judgment over the sovereign will of Parliament representing the entire will of the community".
Where the Constitution would not allow implementation of a certain policy of the Government, it is open to the latter to get an amendment of the Constitution to give the necessary powers to aid such implementation. In a democratic society a veto on change imposed by a political or judicial body will be removed by effective political action. This is the lesson of history to be drawn from the nature of the amending power.
Counsel then adverted to the speeches of Nehru and Ambedkar in the Constituent Assembly (referred to by Bachawat, J. in Golaknath minority judgment) which pointed out that every provision in the Constitution is subject to the amending process. Amendment by a people's convention or referendum was rejected by Dr. Ambedkar. Judges only reveal the law and not make it. Once the Judiciary vetoes the unlimited amending power they cease to be judges of a free democracy. The Constitution was only a means to an end which is "the safety, and greatness and well being of the country and the people for whom the Constitution was enacted". This end was achieved by constitutional amendments in a federal set-up. Unless specifically so provided by express provisions, there can be no limitation on the amending power. In Switzerland there was a provision enabling amendment of the Federal Laws by the ascertainment of the people's will through the method of 'initiative'. It should be remembered that the first Indian Constitutional amendment was passed by the first Parliament consisting of only of the members of the Constituent Assembly. This demonstrably showed that the intendment of the founding fathers was that the amending power extends to all provisions of the Constitution inclusive of the Rights in Part III thereof. There is considerable juristic opinion to show that judicial review of Federal Legislation was not an essential feature of the Constitution. But judicial review of state laws was considered as an essential feature in order to maintain the supremacy of the Federal Constitution and the Federal laws over the State Constitution and State laws.
The Irish Ryan case (1935 Ir Rep 170) posited that the words conferring legislative power should be given the widest meaning — a rule which would apply a fortiori to constituent power. The U.S. Rhode Island case (64 L Ed 946: 253 US 350) upheld the Ist Amendment and rejected the doctrine of inherent or implied limitations of the amending power. For the court to limit this power would constitute a constitutional change beyond the reach of popular control.
In the realm of Property Rights consequent on the misinterpretation of the term 'compensation' Parliament had at first to resort to the 4th Amendment and now the 25th Amendment. The word 'Amount' now replaced 'compensation'. Counsel then drew on the speeches of Nehru, Alladi Krishnaswamy Iyer and K.M. Munshi to show that Parliament had the right to deal with all matters relating to compensation — fixation of principles as well as the amount. The 25th Amendment only did away with the confusing uncertainty in the law introduced by decisions in Vajravelu Mudaliar (1965) 1 SCR 614), Metal Corporation (1967) 1 SCR 255, Shantial (1969) 1 SCC 509 and Bank Nationalisation (1970) 1 SCC 248) cases. The 25th Amendment introduced three desired changes: (a) Fixation amount by Parliament (b) non-justiciability of the amount so fixed, (c) law dealing with Acquisition and Requisition should not be tested in the light of Article 19(1)(f). The provisions in Article 19(1) and Article 31 are mutually exclusive.
There can be only limited judicial review under the 25th Amendment, as to whether the 'amount' is illusory. The petitioner's contention that Articles 31-A and 31-B covered the same field is erroneous. They cover distinct and separate areas.
Article 31-A gave protection to certain categories of socio-economic reform laws. In the Golaknath case both the majority and minority judgments upheld the 1st and 4th Amendments thereby declaring the validity of both Articles 31-A and 31-B. The latter article validated certain Acts and Regulations included in the 9th Schedule, giving omnibus protection to the laws which were contrary to the rights vouchsafed in Part III of the Constitution. But by such inclusion of State laws in the 9th Schedule, it did not mean that the State legislatures amended the Constitution.
It should be stated that all the provisions of the Constitution are essential features thereof subject to the amending power. The proviso to Article 368 would point out that the federal features of the Constitution are more important than the rest of the provisions. Fundamental Rights as well as the Preamble are subject to the amending process. The Canadian Bill of Rights contained a provision that any of its provisions could be excluded by an express declaration contained in any law.
In answer to a barrage of questions from the Bench Shri H.M. Seervai reiterated that justiciability under Article 31(2) can henceforth be limited only to the issue as to whether the 'amount' was illusory; that Article 31-C merely enforced the Directive Principles in Article 39; that a declaration made under Article 31-C protected the law from the operation of Articles 14, 19 and 31; and that such power exercised under Article 31-C should not be deemed as delegated to the State legislature.
Article 31-C merely removed the restrictions on the legislative power of the State legislatures and Parliament by Articles 14, 19 and 31. Article 31-C did not at all confer any power to amend the Constitution. The exclusion of the operation of Article 13(2) on laws made under Article 31-C is a necessary protection. If such power is liable to abuse, judicial review cannot be the remedy. External action is the only safety valve e.g. where a state law enables seizure of properties of persons residing in other states such a situation is best met by the threat of reprisals from other States in a similar manner. The principle of conferral of absolute power cannot be tested by the possibility of abuse of that power. The power to rearrange states on linguistic basis may be abused but political judgment can alone be the watchdog for the proper exercise of it so as not to jeopardise the unity of India under linguistic mania.
Shri H.M. Seervai concluded his arguments on the note: It is the people and not the parchment on which the Constitution is written who constitute the Indian nation and who can breath into the concept of the unity and integrity of India".
Shri Niren De.—Shri Niren De, the Attorney General of India, appearing for the Union of India submitted that a study of the various constitutions of the world reveals that where the constitution-makers wanted any limitation on the amending power they specifically stated so expressly in the very provisions of the Constitution. The amending power was subject to no implied or inherent limitations, unless they were so specifically provided as in the constitutions of some countries. The amending power in Article 368 helped orderly changes to avoid extra constitutional agitations leading to revolution. The width of the amending power allowed no limitations. Thus new unforeseen socio-economic situations in the future could be met by changes in the Constitution in a gradual and orderly fashion. It is the people's will that gave such power to its representatives in Parliament to fashion out the needed law. Sovereignty of U.K. had to yield somewhat when joining the European Common Market. This was later ratified by the people's Parliament in U.K.
There is a difference between the existence of an unlimited amending power and the exercise of it. The exercise will be limited to what the people actually demanded. It is not as if the Constitution will be wholly repealed at any given moment.
While the ordinary law-making power is limited by the opening words in Article 245 — "Subject to the provisions of the Constitution" — there is absolutely no fetter on the amending constituent power under Article 368. The amending power of future parliaments cannot be fettered by the doctrine of implied limitations. Once the procedure set out in Article 368 was followed the resultant was an Amendment of the Constitution. No essential feature of the Constitution was outside the ambit of the amending power. The Constituent Assembly rejected the Referendum idea e.g.: to subject Minority Rights (admittedly an essential feature) to a referendum will be hazardous to their rights. Abuse of power can be no ground for denying the existence of an unlimited amending power which the Constituent Assembly gave to Parliament. Shri Punjab Rao Deshmukh withdrew his amendment in the Constituent Assembly suggesting Fundamental Rights be saved from the operation of Article 368. This made it clear that Part III of the Constitution was as much subject to Article 368 as any other part of the Constitution. This is made clearer by use of the words 'Amendment of this Constitution' in Article 368 which means that every provision there of is amendable. This power of amendment is located wholly in Article 368 and not as a residuary power under Entry 97 in List I.
Amendment means addition, repeal or variation. It included even substitution. It also meant amendment of Article 368 itself which is absent in the constitutions of U.S.A. and Australia. However repeal of the Constitution in toto was not included. If this Court came to the view that there were implied limitations in Article 368, then under clause (e) of that article, an amendment can be affected to erase those possible limitations.
The 24th Amendment merely restored to Parliament its constituent power of amendment (without any limitation) which was denied in the Golaknath decision. Once the 24th Amendment is held valid it follows that Article 31-C is also valid as the amending power is unlimited in its sweep. Abuse of this power is no ground for denying its very existence. The fear of total abrogation of the Constitution by such abuse of power is meaningless. For, political realities will prevent such situations.
There is no conflict between Article 13(2) and Article 368 as the former applies only to ordinary laws and not constitutional amendments. There can be no exceptions to the amending power. Clause (e) of Article 368 permitted amendment of that article itself. Parliament of U.K. passed a Bill of Rights for British North America providing therein that it was open to the Canadian Parliament to pass if necessary laws to which the Bill of Rights will not apply. This limitation to the amending power is absent in the Indian Constitution. Further Article 368 was a constituent power while the Canadian counterpart was only a legislative power. The Canadian Initiative and Referendum case (1919 AC 935 PC) posited that there can be no implied limitations to the amending power. The submission of the petitioners to the contrary in respect of the same Privy Council decision is totally wrong. The observations of the Judges in that case adverting to the history of the Canadian Constitution and the rights of the people as similar to that of the people has no relevance to the Indian Constitution where usage and convention have no place.
The Attorney General submitted that the Preamble was part of the Constitution. Also when the meaning of the amending Article was clear and unambigous, the Preamble cannot cut down the scope.
A Constitution should be interpreted as a living organism. So it was that the amending power was made wide enough to meet the needs of a given society at a future time, not foreseen by the makers of the Constitution. This was to avert revolutions as those that took place in China, Russia and France.
Counsel cited (McCawley v. King, 1920 AC 691) which posited that Legislative power (not constituent power) should not be exercised in a way as to destroy the functioning of various organs under it. Two Irish cases Moore case (1935 AC 484) and Ryan case (1935 Ir Rep 170) were also cited to show that the Irish Parliament could amend legislative provisions containing limitation on the amending power. If this was so, counsel submitted, in the case of ordinary legislative power how much more should it be regarding constituent power under Article 368? In a written federal Constitution like the Indian National Document there can be no unwritten higher law than what the Constitution expressly formulates. Nor were fundamental rights, natural rights so as to attract the application of the U.N. Charter of Human Rights. Part IV of the Constitution laid fundamental principles for the governance of the State. This was in accord with the socio-economic justice promised to the people of India in the Preamble. In this implementation of the Directive Principles by law, if any of the rights in Part III stood in the way, the latter should give way to Part IV. Attorney General conceded that the declaration clause in Article 31 was unnecessary. There must be nexus between the legislation and Directive Principle sought to be a given effect to. This was open to judicial review. Such a law could not be challenged, however, on the ground it did not give effect to the policy of the State towards securing the Directive Principles. There were decisions of the Privy Council saying that courts could always step in where there had been colourful exercise of power by the legislature.
In answer to a question the Attorney General responded that the Court under Article 37 was bound to uphold laws enforcing Directive Principles. Therefore the new provision 31-C is quite intra vires. What 'amount' has to be given in matters of acquisition, it is for the legislature which is the sole authority to fix it which no court can question. Hegde, J. when he was M.P. in the Rajya Sabha had expressed the opinion on the 4th Amendment that the legislature was the sole judge in fixing compensation.
Counsel submitted that clearly Part III is subservient to Part IV insofar as it advanced the socio-economic progress of the people. Acknowledged jurists like Laski, John Stuart Mill and Friedmann held that modern democracy looked upon the right to property as one conditioned by social responsibility. Social need was best represented by Parliament, not the judiciary.
Shri Lal Narain Sinha.—Shri Lal Narain Sinha, Solicitor-General of India, and Shri Niren De, the Attorney General of India, together took 12 days to place before the court the submissions of the Government of India. The Solicitor-General of India urged that the clear objective of the Constitution was to bring about a just social order. Social interest governed all rights in Part III and so if any of the rights came in the way of implementing social interest, the right must give way. Ergo, as Article 31-C implemented Article 39 (a Directive Principle) laws made under Article 31-C cannot be challenged on the ground of Articles 14, 19 and 31. It was Parliament that was the final authority to fix the amount of compensation. No court can challenge the vires of the law made under Article 31-C. Counsel however conceded that the court can go into the question as to whether the law made under Article 31-C fulfilled the requirement of Article 39(b) and (c) whether there is nexus between Article 31-C and Article 39(b) and (c) can be justiciable but not the efficacy of the law. Judicial review is not open under Articles 14, 19 and 31 nor is the quantum of amount justiciable. Counsel added that there can be a challenge on the basis of violation of the principles of natural justice. While Article 31-A operated in the agrarian sphere, Article 31 operated in the Industrial sphere.
The 25th Amendment was valid as it only gives effect to the principles stated in Article 39(b) and (c) as also in the Preamble of the Constitution.
The quantum of "amount" under the new Article 31(2) and the principle for its quantification were "matters for legislative judgment". The new expression may include considerations of social justice. In fixing the "amount" the legislature was not required to set out in law the principle on which the fixation had taken place.
Fundamental Rights cannot operate as a curb on the amending power. The people's amending power (constituent power) is fully contained in Article 368 which power can abrogate even the rights in Part III e.g.: extinguishment of the rights of Indian citizens in Berubari consequent on ceding of that territory to Pakistan under the 9th Constitutional Amendment. The fear of repeal of the Constitution under the amending power is groundless. The Constitution always survives after the amendment for Article 368 says 'The Constitution shall stand amended'.
Refuting the arguments of petitioner's counsel that radical amendments can be made only by the people directly, the Solicitor-General of India submitted: "If we assume the antithesis between the people and their chosen representatives who exercise the power under Article 368 the result is that the people have no power to make an amendment of a drastic nature because the court cannot recognise any amendment made outside the provisions of Article 368".
Even if Parliament sounded public opinion through Referendum or Convention the validity of Amendment would rest on the procedure laid under Article 368. In the final analysis it will be found that the amending power under Article 368 can amend any and every article of the Constitution.
Shri R.N. Byra Reddy.—Shri R.N. Byra Reddy, the Advocate General of Mysore, submitted that both the 24th and 25th Amendments were the expressed will of the people through their representatives in Parliament, elected duly under adult suffrage. Any limitation on the amending power will tantamount to putting limitations on the sovereign will of the people and the objectives set out in the Preamble. It is futile to assume that Parliament will destroy the democratic Constitution. Even if it did, the remedy lay not in courts. Pressure and fear of public opinion will be enough to guard against such radical changes.
Dr.L.M. Singhvi.—Dr.L.M. Singhvi appearing as the Advocate General Rajasthan adopted the arguments submitted by the Attorney General and Solicitor-General of India and added that the width of the amending power under Article 368 was so great and unlimited that it can amend any provision in the Constitution inclusive of the rights in Part III. The exercise of this constituent power cannot be challenged on the ground of abuse of power as Parliament was competent to decide what was good for the socio-economic progress of the Nation. Both the 24th and 25th Amendments were quite within the ambit of the amending power under Article 368.
Other Counsel.—Messrs.A.V. Rangam, K.M.K. Nair, P. Parameswara Rao, B. Pathasarathy, R.N. Sachthey, S.K. Nandi, N. Mukherjee, Moinul Haq Chaudhury and O.P. Rana, representing the Advocates General of Tamil Nadu, Kerala, Andhra Pradesh, Orissa, Punjab, Manipur, Meghalaya, Assam, Uttar Pradesh respectively and Mr S.K. Ghosh Advocate General of Nagaland, adopted the arguments of the Advocate General and Solicitor-General of India in support of the validity of the 24th and 25th Amendments.
Mr N.A. Palkhivala's reply.—Shri N.A. Palkhivala, leading Senior Counsel for the Petitioners, in his reply arguments formulated certain postulates underlying the Constitution:
(i) One of the main postulates was that the ushering in of a welfare society as laid down in the Directive Principles of the Constitution should be achieved only by the permissible means in the Fundamental Rights Chapter e.g. by imposing reasonable restrictions and in public interest under suitable laws. The Directives in Part IV are the directory ends of Government while the provisions in Part III are the permissible means to achieve those ends.
(ii) Another basic postulate is that our citizens needed protection against their own representatives. It is because of this they have been provided with provisions like Fundamental Rights and Freedom of Inter-State Trade and Commerce, etc. placing limitations on the exercise of legislative power by Parliament and the State legislatures. For men charged with the affairs of the State, though guided by the legitimacy of their ends, seldom paused to consider the legitimacy of means.
(iii) The permissible means for ushering in a welfare state within the meaning of Part IV were only those Directive Principles compatible with the basic human freedoms enshrined in Part III. This in effect means that full opportunity should be available to the people at a given point of time to strive for 'any reversal of current policy'.
(iv) In the basic scheme of the Constitution, the founding fathers totally rejected a totalitarian system of society which had no place for the exercise of the basic freedoms enshrined in Articles 14, 19 and 31.
(v) The Golaknath decision was rightly decided in holding that Parliament was not competent to abridge fundamental rights.
Shri N.A. Palkhivala then submitted that the 25th Amendment was clearly ultra vires. It enacted a new Article 31-C which has to be struck down for:
(a) It makes a clear dent and inroad into the constitutional scheme.
(b) The effect of Article 31-C was to erase the basic freedoms vouchsafed in Articles 14, 19 and 31, thereby ushering in a totalitarian State.
(c) The import of Article 31-C was of such far-reaching effect that even a legitimate criticism of Governmental policy in enacting a law under Article 39 will be barred.
(d) The validity of a law made under Article 31-C is not justiciable.
(e) The argument that if Article 31-A is valid, Article 31-C is also valid is erroneous. They are two distinct concepts. Article 31-A gives protection (from Articles 14, 19 and 31) only to one specified subject-matter: Agrarian Reform. Article 31-C protected many matters from the operation of Article 14, 19 and 31 e.g. Freedom of Press; Religious and Minority Rights; Rights of Profession, etc.
(f) Article 31-C impinged on the various essential features of the Constitution and virtually abrogated the most important of fundamental rights.
(g) It would appear that under Article 31-C the Sky was the limit for any policy of nationalisation.
Counsel then submitted that the 25th Amendment was the creation of those who refused to accept the discipline of the Constitution. He refuted petitioner's contention that there was conflict between Article 39(b) and (c), and Article 19. For, Article 19 permitted the State to make suitable laws to give effect to Directive Principles in Article 39 by imposing 'reasonable restrictions' and in public interest.
Shri N.A. Palkhivala further pointed out that the concept of nationalisation was not conceived by the Directive Principles in Article 39 or anywhere else in Part IV. emphasis in Article 39 was on distribution of ownership or control of resources. If the state acquires all surplus lands and kept the same for itself it clearly offends Article 39. The concept of distribution of ownership and resources, etc. under Article 39 did not mean that the fruits of such resources could be taken away from those who had developed it by their labour or management. All these are possible only in a totalitarian state and not in a free democracy. The founding fathers rejected the former concept and opted for a free democracy. Article 31-C gave in a nut-shell the concept of a totalitarian state, i.e. no equality before law, no freedom of speech, no protection from arrest and detention, no right to property, denial of redress through courts and finally the citizen's right to be left alone.
There was no conflict between Parts III and IV of the Constitution. The only conflict was between those who stood by the Constitution and those who accepted the discipline of the Constitution.
Counsel then submitted that the meaning of the word 'Amend' in Article 368 was not precise or definite. Therefore the court was compelled to construe a given amendment having regard also to the consequences of such an Amendment. He stoutly refuted the contention of the respondents that in determining the existence of the amending power it was not relevant to examine the exercise of it, i.e. if there was abuse of power in a given case. The 24th Amendment was clearly ultra vires for:
(i) The amending power could not be so exercised by Parliament so as to destroy or damage the democratic character, basic freedoms, and identify of our Constitution as originally conceived by the founding fathers.
(ii) There were inherent or implied limitations on the amending power in the context and scheme of our Constitution.
(iii) Parliament being the donee (as representatives of the people in a free democracy, of the amending power gifted to it by the people, it cannot take away or destroy the democratic character of the Constitution to the detriment of future Parliaments who will consist of representatives of the then people of India.
(iv) These inherent or implied limitations are essential to safeguard the essential features of the Constitution which proclaim the sanctity of our sovereign democratic republic and the rights and duties of freedom. Those essential features include: Parliamentary democracy, basic freedoms, federal structure, Rule of law and Independent Judiciary.
The doctrine of implied or inherent limitations of the amending power in democratic constitutions drew support from the Privy Council decisions in Ranasinghe case from Ceylon (1965 AC 172) and Ryan case from Ireland and an Australian case.
Counsel then submitted that the words 'Amendment of the Constitution' conveyed no precise meaning. Therefore, the meaning ('Limited' according to submission) must take the colour from the context of the scheme of the Constitution. 'Amendment' in Article 368 itself had inherent limitations and also implications from the very scheme of the Constitution clearly preventing Parliament —
(a) from amending in such a way as to destroy the very basic structure of the Constitution or destroy the power of amendment itself by future Parliaments;
(b) from deleting the proviso to Article 368 as to ratification so as to give the gobye to the federal scheme in the matter of amendment. The proviso did not enlarge the amending power but operated as an express limitation.
Counsel then submitted that it is not as if the Preamble was not part of the Constitution. It was not part of it only in the context of exercise of amending power of Parliament. He refuted the contention that the amending power in Article 368 was wide. It could be wide only if the people were associated with it say by a referendum, or convention as in U.S.A. or Australia. The doctrine of implied limitations is borne out by the Supreme Court decision in Mangal Singh case and the foreign decision in Taylor case unless the provision in Article 368 was so amended as to provide for a referendum, the 24th Amendment has to be struck down. If the referendum provision was executed and the people's will is determined on the issue covered by the 24th Amendment the verdict of the people will alone prevail as to the vires of the impugned Amendment. In the absence of such a referendum the touchstone of Fundamental Rights in Part III is the only test as laid in Article 13(2) wherein the term 'law' includes 'constitutional amendments' under Article 368.
Counsel also laid stress on the compact doctrine. There was a kind of compact between the various diverse sections of the people represented in the Constituent Assembly to accept the final Draft Constitution because it declared the fundamental rights of the citizens, the rights of minorities, (religious, cultural and social) and assured the people of Parliamentary system of democratic Government, an independent judiciary, one citizenship, and integrity of the country as one entity. Such a compact cannot be disturbed by the amending power and by assuming that power to be without any limitation.
Justice Beg's illness and hospitalisation from March 22, 1973 created a problem as Mr Palkhivala had been given further two days for completing his arguments in reply. The judgment had to be pronounced before the summer recess as Chief Justice, Sikri, was to proceed on a foreign visit and his retirement was soon in the offing. Shri N.A. Palkhivala made a sporting gesture in not arguing but sought permission of the Court to file his written arguments by way of reply. Shri Niren De agreed to this provided he was also permitted to file written statement by way of clarification if necessary. The Court accepted this good gesture by counsel. The case was begun on October 31, 1972 and counsel on both sides took up 65 working days for submitting their arguments. The sittings were interrupted three times by Justice Beg's illness for four days in February, six days in March and one day on this day, March 22, 1973. Justice Khanna, was unavoidably absent for one day while the Court adjourned for one day due to illness of Counsel Shri H.M. Seervai. The case attracted a truck-load of documents and huge load of case-law, it being a cause celibri in India's national history.
Shri N.A. Palkhivala's written reply arguments.—The substance of the written arguments in reply filed by Shri N.A. Palkhivala postulated:
(i) None suggested in the Constituent Assembly that in the exercise of the amending power fundamental rights could be abrogated. On the other hand top leaders like Messrs. Nehru, Ambedkar and Dr.S. Radhakrishnan, during the proceedings of the Constituent Assembly, gave assurances that fundamental rights will not be taken away.
(ii) If those assurances had not been given and if fundamental rights were to be subjected to the amending power, large sections of the people especially the minorities would never have agreed to the final draft of the Constitution.
(iii) Despite Shri B.N. Rao's attempt the Constituent Assembly (C.A.) rejected the idea that fundamental rights should be subjected to Directive Principles of State policy. this is of special significance as the impugned Article 31-C aims at complete reversal of the decision of Constituent Assembly.
(iv) The majority decision in Golaknath case that 'law' in Article 3(2) included an 'amendment of the Constitution' is correct and binding. It is illogical to suggest that the majority ratio was in any way affected by the issue as to whether the amending power was located in Article 246 (Residuary Power, Entry 97, List I) or in Article 368.
(v) The Ceylon case — Ranasinghe case posited that a constitutional amendment was law; that the process employed such a law was the legislative power and the special procedure prescribed for amendment was only legislative procedure. The provisions in Articles 13(2) and 368 also bear this out.
(vi) Parliament is not Constituent Assembly.—It is grossly erroneous to contend that the first Parliament was acting as the Constituent Assembly when it amended the Constitution under Article 368. Only Parliament in its status as Parliament can amend under Article 368. All amendments (from the 1st to 25th) only say: 'This amendment is made by Parliament'.
(vii) The 24th Amendment is ultra vires since it exceeded the limits placed originally on the amending power prohibiting amendment of fundamental rights. Therefore it is fallacious to urge that 24th Amendment merely restored the Parliament the power it had prior to the Golaknath decision.
(viii) Privy Council decisions and foreign cases posit that a creature of the Constitution (here: Parliament) cannot enlarge its powers and thereby supersede the original limitations.
(ix) Parliament can amend Article 368 itself provided it related to the manner and form (i.e. procedure) laid down in Article 368. It cannot embrace abrogation of inherent and implied limitations.
(x) The 25th Amendment is ultra vires for:
(a) Replacing the word 'compensation' by 'amount' was arbitrary. It enabled the state to even confiscate property without any compensation.
(b) The amendment seeks to render the provision Article 19(1)(f) relating to the 'citizen's right to hold property' as State's right to confiscation'.
(c) It subverts the essential feature of the Constitution i.e. Supremacy of the Constitution itself giving a blank charter to Parliament and the States legislatures to defy and ignore the Constitution.
(d) It subordinates fundamental rights to Directive Principles of State policy. The rights can be abrogated by a law passed under Article 31-C by a simple majority.
(e) Judicial review and enforcement of fundamental rights are taken away by Article 31-C.
(f) Article 31-C enabled even State legislatures to supersede a whole series of fundamental rights.
(g) A law under Article 31-C will affect minority rights, linguistic, religious and cultural rights, freedom of speech, equality before law, right to property, etc. To put it shortly Article 31-C legalises despotism.
(xi) There was no real conflict between Parts III and IV of the Constitution.—The real question was not of social interest versus individual interest but whether the basic human freedoms can be trampled under foot. All Directive Principles could be implemented by laws made within the limits of reasonable restrictions mentioned in Article 19, clauses (1) to (6).
(xii) The court had to decide the true ambit of the amending power either:
(i) on the ground of the meaning of amendment under Article 368; or
(ii) on the ground of inherent and implied limitations; or
(iii) on both grounds.
If the original amending power was limited then the constitutionality of the 24th Amendment will be in jeopardy.
(xiii) The Respondent's plea for an unlimited amending power was untenable. Such a power could be so exercised as to make all future amendments impossible.
Respondent's written reply
The Attorney General elucidated some points in his written statement filed on March 28, 1973:
1. Mangal Singh case and Taylor case relied on by the petitioners did not lay down any implied limitations on the power of amendment.
2. In Mangal Singh case Article 4 was interpreted. But Article 4 should be read with Articles 2 and 3. Article 4 contained a limited power of amendment confined to amending Schedules 1 and 4 "as may be necessary to give effect to a law mentioned in Articles 2 and 3" and of making supplemental, incidental and consequential provisions. As the terms of amendment was expressly limited by the terms of Article 4 the Court had to ascertain such limit on a true interpretation. This was what Justice Shah, did in Mangal Singh case.
3. In Taylor case, the observations relied upon by the petitioners were mere obiter. They did not involve any theory of implied limitations on the power of amendment. On the other hand the observations of Justice Issacs, showed that the limitation on the power of amendment flowed form the express language and was not at all dependent upon any implications.
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