(First Amendment) Act v. Union of India

(First Amendment) Act, 1951, do not curtail the Constitution by the Constitution powers of the High Court under Art. 226 to issue writs for enforcement of any of the rights conferred by Part III or of the Supreme Court under Arts. 132 and 136 to entertain appeals from orders issuing or refusing such writs; but they only exclude from the purvie\v of Part III certain classes of cases. These articles therefore do not require ratification under cl. (b) of the proviso to Art. 368. Articles 3!A and 31B are not invalid on the ground that they land \vhich is a matter covered by the State List (item as these articles are essentially amendments of the to enact relate to 18 of List II) Constitution, and Parliament alone has them. the power ORIGINAL JURISDICTION: the Constitution (Petitions 371, 372, 374 to 389, 392 facts which 1951). The stated in the judgment. Petitions under Art. 32 of Nos. 166, 287, 317 to 319, to 395, 418, 481 to 485 of these petitions are Arguments were heard on 18th and 19th of September. the 12th, 14th, 17th, P.R. Da! (B. Sen, with him) for Petitions Nos. 371, 372, 382, 383, 388 and 368 of the Constitution is a complete It does not contemplate any amendments petitioners in 392, Article code in itself. the Bill S.C.R. SUPREME COURT REPORTS 91 1951' Sflnk,_;:1ri Prasatl Singh Deo ... Union of lnaa· and. State of Bihar. to by through Parliament, after · its introduction. The Bill must be passed and the President as it w~s introduced assented without any amendment. · As the Constitution Amend- respects during its· ment ]3ill was amended in several the Constitution passage (First Amendment) Act was· not · passed in conform- ity' with the procedure laid down in article 368 and \.Vhen the Parliament exercises, its is therefore invalid. 0rdinary, legislative powers it . has · power to amend the Bills under articles 107, 108, 109(3) & ( 4). It has no such power when it seeks to amend the Constitution its.elf as article 368 does not give any such power:' cf. The Parliament Act' of 1911 (of England).· The. Article 368 vests the power· to amend the Con- stitution not in a different the Parliament but body,·viz., a two-thirds majority of the two Houses of the Parliament. · In article 368, the word Parliament which occurs in other articles is · purposely avoided. There is legislative a distinction between ordinary the Constitution. This power and power to amend distinction is observed the power to amend the Constitution is vested· ··there also in a different body. Vide Willis, page 875, Cooley Vol. 1. page 4, Orfield, page 146. Article 379 speaks of the power of the provisional Parliament as a legislative body. The powers under article 368 cannot be and was not intended to be exercised by the provisional Par- liament. under article 379. As . it consists onl.y of a Single Chamber the adaptations made in ·article 368 the Constitution · (Removal of Difficulties) Order . ~o. 2 are ultra virN. · Article 392 gives power to the Presi.dent to remove only such difficulties as arise It cannot be used to l;he working of Constitution. remove difficulties in the way .of amending the Consti- tution that have been deliberately the. Constitution. No difficulty could have been possibly experienced in the working of the Constitution on the. , very day the Constitution came into force. The Consti- tution could legally be amended only by the Parliament consisting of two Houses constituted· under clause 2 of " • Part V. ·In: any event, the impugned Act is void under . the provisions relating to. . article 13(2) as contravening in America and introduced by , 92 SUPREME COURT REPORTS [1952] 1951 Sankari Prasad Singh Deo v. Union of India State of Bihar. by Part III. rights guaranteed fundamental in article 13(2) evidently by the Parliament and must 368 Constituent Assembly Debates, Vol. pp. 1644, 1645, 1661, 1665. 'Law' laws passed laws passed ~mending the Constitution : 37, includes all include IX No. article S. M. Bose (M. L. Chaturvedi, with him) for the petitioner in Petition No. 375. The word "only" in article 368 refers to all that follows and article 368 does not contemplate amendment of a Bill after it has is ·ultra vires his powers under article 392. There is no difficulty in working article 368 and there could be no occasion for the President to adapt 368 in the exercise of his powers under article 392. introduced. The President's Order S. Chaudhuri (M. L. Chaturvedi, with him) for the petitioner in Petition No. 368 adopted the arguments of P. R. Das and S. M. Bose. ' the. present Act contravenes S. K. Dhar (Nanakchand and M. L. Chaturvedi, with him) for the petitioner in . Petition No. 387. Article 379 on which the provisional Parliament's jurisdiction amend the Constitution is based not ' only empowers the said Parliament the powers of the to exercise Parliament but also imposes upon it the obligation to perform all the duties enjoined upon the Parliament by the Constitution. Hence Parliament cannot seek the citizens guaranteed abridge the rights of property of by Part III. As provisions of Part III, it is void under article 13(2). In any event, the new articles 31A and 31B curtail the powers of the Supreme Court under articles, 32, 132 and 136 and those of the High Court under article 226, and as such, they required ratification ·under clause (b) of the proviso to article 368 and not having been ratified, they are void and unconstitutional. They are also ultra vires as they relate to land, a subject matter covered by List item 18) over which the State Legislatures have exclusive power. Parliament cannot make a law validating a law which it had no power to enact. II (see ·1 I '>-/ ' ...,.. S.C.R. SUPREME COURT REPORTS 93 N. P. Asthana . (K. B. Asthana, with him) for the petitioners in Petitions Nos. 4~1 to 484. Article 368 does not confer power on any booy to amend the con- stitution. It simply to be lays down In this view followed for amending the Constitution. article 379 does not come into operation at all. Under article 392 the President himself can alter the Consti- tution but he cannot authorise the provisional Parlia. ment to do so. the procedure 19~1 ·--v· Sank, ari Prasad Singh Deo ·v. Union of India State of Bihat. Y S. P. Sinha (Nanak Chand, 'with him) for ,the peti- tioner in Petition No. 485. Article 13(2) is very wide in its invalidates all laws past, present and future which seek to curtail the rights conferred by It does not exempt laws passed under article Part III. 368 from its operation. scope and it . N. C. Chatterjee (with V. N. Swami for the petitioner in Petition No. 287 and with Abdul Razzak Khan for the petitioner in Petition No. 318). Article 368 must .be read subject to article 13(2). Articles 31A and 31B in the law-making power of the Parliament . exercise of the and not in the exercise of any power to amend / the Constitution and Parliament has no power to validate the laws as it had no power to enact them. legislative in character and were enacted N. R. Reghavachari (V. N. Swami, with him) for the petitioner in Petition No. 166. The fundamental rights are supreme and article 13(2) is a complete bar to any amendment of the rights conferred by Part III. N. S. Bindra (Kahan Chand Chopra, with him) fot the petitioner in Petition No. 319. M. L. Chaturvedi for the petitioners in Petitions Nos. 374, 376, 377, 379,' 380, 381, 384, 385, 386, 389, 393, 394 and 395. Bishan Singh for the petitioner in Petition No. 418. Abdul Rdzzak Khan and P. S. Safeer for the peti- tioner in Petition No. 317. M. C. Setal.vad, Attorney-General ·for ·India G. N. Joshi) for the Union of India, and Narain Singh, G. N. Joshi, A. Kuppuswami (with (with Law 1951 Sankari Prasad '.Singh Deo :·v. Union of India State ·of Bihar. 94 SUPREME COURT REPORTS [1952] reason the Bill authority are the passage of the said article is the constituent authority two different body of varying majority If G. Durgabai) the State of Bihar. The donee power under article 368 ~ Parliament. indicated The process of same as that of ordinary legislative Bills. The article does not mean that the powers under article 368 are to be exercised by a and not by fluctuating Parliament. legislative entitles saving clausCI' in articles 2, 3, 4 and 240, will be meaningless. Under article 379 provisional Parliament can exercise the powers of Parliament; hence Provisional Parliament can act under article 368. "All the powers" in article 379 include power to amend the Constitution and there restrict the is no import of these words by excluding amendment of the Constitution their ambit. The words "perform all the duties" in that article do not in any manner the power ;:,f Parlia1'lent under article 379 cut down because article 13 (2) does not impose any duty. There is no conflict between exercising all the powers under article 379 and the prohibition in article 13(2). No technical meaning should be given to the word "difficulty" in article 392 (1). The adaptation of article 368 is really an adaptation for the removal of difficulties. The adaptation is not of a permanent character. This shows that the adaptation is not an amendment and even if it is an amen.dment, it is so by ~f adaptation. Article 13(2) prohibits "laws" It cannot affect inconsistent with in article 13(2) article 368 refers and not to ordinary constitution making. The argument that the Bill to amend the. Constitution should be passed as introduced, without amendments, is fallacious. It cannot be said that the Bill referred to in article 368 has to be dealt with under a procedure different from that laid down for ordinary Bills in articles 107 and 108. Articles 31-A and 31B are not articles do not affect the scope of articles 226 and 32, for the power of the Court under the said two articles fundamental rights. the word "law". legislative in character. The enactments legislative r- ~-- S.C.R. SUPREME COURT REPORTS 95 remains unaltered. What has been done is to alter the content of fundamental rights: P. L. Banerjee, "Advocate-General of Uttar Pradesh· (U. K. Misra and Gopalji Mehrotrra, with -him) for the . State of Uttar · Pradesh adopted the arguments of the Attorney-General and added that articles 31-A: and 31-B together; even if do not necessarily 31-B goes, 31-A will remain. stand or 1951 Sankari Prasad Singh Deo ' v. Union of fndifl State of Bihar. T. L. Shevde, Advocate-General of Madhya Pradesh (T. P. Naik, with him) the State of Madhya Pradesh adopted the Attorney- General. The Provisional Parliament is competent to do all that the future Parliament can do. The adapt- atic:m under ·article 392 to amend article 368. does not seek arguments of Pataniali Sastri /. P. R. Das, S. M. Bose,. S. Chaudhuri, N. C. Chatterjee, S. K. Dhar and S. P. Sinha replied.

#1951. October 5. The Judgment of the Court was delivered by SASTRI together, J.-These petitions, . which have PATANJALI been heard common question whether the Constitution (First Amendment) Act, 1951, which .w~ recently passed by the present provisional inter alia, articles Parliament and purports to insert, 31A. and 31B in the Constitution of India is ultra vires and unconstitutional. What led to that enactment is a matter of common knowledge. The political party now. in power, com- manding as it does a majority -of votes in the several State legislatures' as well as in Parliament, carried out certain measures of agrarian in_ Bihar, Uttar Pradesh and Madhya Pradesh by enacting legislation which may cpmpendiously be referred to a.S Zemindary Abolition Acts. Certain zemindars, feeling themselves aggrieved, attacked the validity of those Acts in courts they contravened · the fun- of law on the ground that damental rights conferred . on them by Part III of the Constitution. The High Court at Patna held that Act passed ·in Bihar was unconstitutional while the reform 7-2 SC. Ind!a/71 1951 Sankari Prasad Singh Deo v. Union of India State of Bihar. Patanjali Sastri f. 96 SUPREME COURT REPORTS [1952] legislation High Courts at Allahabad and Nagpur upheld in Uttar corresponding validity of Pradesh and Madhya Pradesh respectively. Appeals from those decisions are pending in this Court. Peti- some other zemindars tions filed in this Court by same question are seeking the determination of the also pending. At this stage, the Union Government, with a view to put an end to all this litigation and to remedy what certain defects brought to light in the working of the Constitution, brought forward a bill the Constitution, which, after undergoing amendments in various parti- culars, was passed by the as the (First Amendment) Act, 1951, (herein- Constitution as the Amendment Act). Swiftly reacting to this move of the Government, the zemindars have brought the present petitions under article 32 of the Constitution impugning the Amendment Act itself as unconstitutional and void. requisite majority considered to be to amend referred to The main arguments advanced in support of the petitions may be summarised as follows : First, the power of amending the Constitution pro- vided for under atricle 368 was conferred not on Par- the two Houses of Parliament as a liament but on therefore, the provisional Par- designated body and, that power liament was not competent to exercise under article 379. .. Secondly, assuming the power was conferred on Parliament, it did not devolve on the provisional Parliament by virtue of article 379 as the words "All the powers conferred by the provisions of this Consti- tution on Parliament" could refer only to such powers as are capable of being exercised by the provisional Parliament consisting of a single chamber. The power conferred by article 368 calls for the co-operative action of two Houses of Parliament and could be appropriately exercised only by the Parliament to be duly constitu- ted under Ch. 2 of Part V. Thirdly, the Constitution (Removal, of Difficulties) Order No. 2 made by the Pr.sident on 26th January S.C.R. SUPREME COURT REPORTS 97 1950, in so far as it purports to adapt article 368 by _om1ttmg "either House of" and "in each House" and substituting "Parliament" for "that , House", is beyond the powers conferred on him by article 392, as "any difficulties" sought to be removed by adaptation under tliat article must be difficulties in the actual · working of the Constitutio.n during the transitional period whose removal is necessary for carrying on the Government. No such difficulty could possibly have been experien- ced on the very date of the commencement of the Constitution. 1951 Sankari Prasad Singh Dea v. Union of India State -of Bihar. Patanjali Sastri ]. Fourthly, in any case article 368 is a complete code in itself and does- not provide for any amendment being made in the bill after it has been introduced in the House. The bill in the present case having been admittedly amended in several particulars during its passage through the House, the Amendment Act can- in conformity with not be said to have been passed the procedure prescribed in article 368. Fifthly, the Amendment Act, in so far as it purports to take a~ay or abridge the rights conferred by Part III the prohibition of of the Constitution, falls within article 13 (2). And lastly, as· the newly inserted articles 31A -and 31B seek to -make changes in articles 132 and 136 in Chapter IV of Part V and article 226 in Chapter V of Part VI, they ·require ratification under clause (b) of the proviso to article 368, and not having been so ratified, they are void and unconstitutional. Thev are also ultra vires as they relate to matters enumerated in List II, with respect to which the State legislatures and not Parliament have the power to make laws. Before dealing with these points it will be convepient to set out he!"e the material portions of articles 368, 379 and 392, on the true construction of which these Mguments have largely. turned. (· ,.,.-

#368. An amendment of this Constitution may be initiated only by the· purpose in either House of Parliament, and when the 13 introduction of a Bill for 1951 Sankari Prasad Singh Deo v. Union of l ndia State of BihM'. Patanjali Sastri J. 98 SUPREME COURT REPORTS [1952] Bili is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House pre- sent and voting, it shall be presented to the President for his assent and upon such assent being given to the the Constitution shall stand amended in accord- Bill, ance with the terms of the Bill : Provided that if such amendment seeks to make any change in- ( a) articles 54, 55, 73, 162 or 241, or (b) Chapter IV of Pan V, Chapter V of Part VI, or Chapter I of Part XI, or ( c) any of the Lists in the Seventh Schedule, or ( d) the representation of States in Parliament, or ( e) the provisions of this article, the amendment shall also require to be ratified by the Legislatures of not less the States specified in Parts A and B of the First Schedule by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to • the President for assent. than one-half of

#379. (1) Until both Houses of Parliament have been duly constituted and summoned to meet for the first session under the provisions of body functioning as the Constituent Assembly of the India immediately before the commence- Dominion of ment of the provisional Parliament and shall exercise all the powers and per- form all the duties conferred by the provisions of this Constitution on Parliament. this Constitution shall be this Constitution, .. "

#392. (1) The President may, for the purpose of re- moving any difficulties, particularly in relation to the transition from the provisions of the Government of India Act, 1935, to the provisions of this Constitution, by order direct that this Constitution shall, during such period as may be specified in the order, have effect subject to such adaptations, whether by way of modi- fication, addition or omission, as he may deem to be. necessary or expedient: " " S.C.R. SUPREME COURT REPORTS Provided that no such. order shall be made after the first meeting of "Parliament duly cqnstitluted under Chapter lI of Part V. * * in the way of amending On the first point,- it was submitted that whenever the Constitution sought to confer a power upon Parlia- ment, it specifically mentioned "Parlian; ient" as the <lonee of the power, as in articks · 2, 3, 33, 34 and numerous, other articles, but it deliberately avoided the t1se of that expression in article 368. Realising that the Constitution, as the fundamental l(lw of the counti:y, should not be liable to frequent changes according to the whim of party majorities, the fr<!mers· placed special the Constitution difficulties and it was a part of that scheme to confer the power of amendment on a body other than the ordinary legis- lature, as was done by article 5 of the American Federal Constitution. We are unable to t;1ke that view. constituti<)flal ai; nendment have Various . by been adopted in written constitutions, referendum, by a legislation under a special procedure, and so on. But, which of Indian Constitution these method~ the framers of the the relevant provisions of the Constitution itself without any lean- ing based on a priori grounds or the analogy of other constitutions in favour of <ine method in preference to another. We accordingly turn to the provisions deal- ing with qmstitutional amendments. adopted must be a~ertained from convention, by tm; thods of such · as special ~ 1951 Sankari Prasad Si11gh Dco v. Union of India State of Bihar. Patanjali Sastri ]. ' ,... amendments of its, provisions. First, Now, the Constitution provides for three classes of those (that can that required be effected by a bare majority such as for the passing of any ordinary law. . The amendments contemplated in 'llrticles 4, 169 and 240 fall within this class, and they are ~pecifically excluded from the pur- view of article 368. Secondly, those that can be effect- ed by a special majority as in article 368. All constitutional amendments other than those referred to above come within this category and must be effected by a majority of the total membership of each laid down - ~ - 1951 Sank_ari Prasad Singh Deo v. Union of India State of Bihar. Patanjali Sastri T. 100 SUPREME COURT REPORTS [1952] specified the members of in Parts A and B of House as well as by a majority of not less than two- thirds of that House present and voting; and thirdly, those that require, in addition to the special majority above-mentioned, ratification by resolutions passed by not less than one-half of the States the First amendments which Schedule. This class comprises seek to make any change in the provisions refer·red to in the proviso to article 368. It will be seen that the power of effecting the first class of amendments is ex- say, the plicitly conferred on "Parliament'', that is two Houses of Parliament and the Pre.';ident (article 79). This would lead one to suppose, in the absence of a clear indication to the contrary, the power of effecting the other two classes of amendments has also been conferred on the same body, namely, Parliament, for, the requirement of a different majority, which is merely procedural, can by itself be no reason for en- trusting the power to a different body. An examina- ~ion of tl1e language used in article 368 confirms . v1ew. - .- "passed in initiated by each House" - introduction of a "bill familiar In the first place, it is provided that the amendment must be either House of Parliament", a feature of parliamentary procedure (cf. article 107(1) which says "A bill may originate in either House of Parliament"). Then, the bill must be just what Parliament does when it is called upon to exercise its normal legislative function [article 107 (2)]; and finally, tbe bill thus passed must be "presented to the President" for his "assent'', again a parliamentary process through which every bill must pass before it can reach the statute-book (article 111). We thus find that each of the component units of• Parliament is to play its allotted part in bringing about an amendment Parliament effects mentioned above by going through the same three-fold ~ procedure but with a simple majority. The fact that a different majority in the same body is required for the Constitution. We have already amendments "" SUPREME COURT REPORTS 101 the second and third - categories of amend- effecting ments cannot make the amending agency a different body. There is no force, therefore, in the suggestion the Parliament would have been to specifi- referred cally if that -body was intended to exercise the power. Having mentioned each House of Parliament and the President separately and assigned to its appro- priate part in bringing about constitutional changes, the makers of the Constitution presumably did not to refer to_ the collective designation think it necessary of the three units. I Apart from the intrinsic above, a convincing argument indications in article 368 referred is to be found in articles 2, 3, 4, 169 and 240. As already stated, these articles power is given to "Parliament" . under to amend certain to make laws by a bare majority parts of the Constitution; but in each case it is laid law should be deemed to be an down that no such amendment of the Constitution "for the purpose of article 368." It would be quite unnecessary, and laws from the indeed inappropriate, to exclude operation of article 368, which 'a spe'cial majority, if latter article was not also given to Parliament. requires the power to amend· under introduced. Somewhat closely allied to the point discussed above in the present case is th~ obj~ction based on the bill form, and not. as having been passed in an amended It is not correct to say that originally article 368 is a "complete code" in respect of the pro- cedure provided by it. There . are gaps in the procedure as to how and after what notice a bill is to be intro- duc-ed, how it is to be passed by each House and how the President's to be obtained. Evidently, the rules made by each House under article 118 --for regulating the conduct of its business were intended, so far as may be, to be appli- the Bar as to cable. There was whether the process of amending the Constitution was a legislative process. Petitioners' counsel insisted that "legislative pro- it was not, and that, specifically cedure" prescribed m article some discussion at its procedure and therefore, the 107, which assent is 1951 Sankari Prasad Singh Deo v. ·Union of India State of Bihai·. Pataniali Sastri /. I 1951 Sankari Prasad Singh Dea v. Union of India State of Bihar. Patanjali Sastri /. • 102 SUPREME COURT REPORTS [1952] provides for a bill being passed with amendments, was not applicable to a bill for amending the Consti- tution under article 368. The argument was further supported by pointing out that if amendment of such a bill were permissible, it must be open to either House to propose and pass amendments, and in case the two Houses failed to agree, the whole machinery of article 368 would be thrown out of gear, for the joint sitting of both Houses passing the bill by a simple majority case of ordinarv provided for in article 108 in the bills would be inapplicable in view of special majority required in article 368. The argument pro- ceeds on a misconception. Assuming that amendment of the Constitution is not legislation even where it is carried out by the ordinary legislature by passing a the purpose and that articles 107 bill introduced for to Ill cannot dealing with a bill under article 368, there is no obvious reason why Parliament should not adopt, on occasions, its own normal procedure, so far as procedure can be followed consistently with statutory contention that a' Local requirements. Repelling the Government Board statutory enquiry conducting a should have been guided by the procedure of a court of justice, Lord Haldane observed in Local Government Board v. Arlidge(1) : in terms apply when Parliament "Its (the Board's) character is that of an organi- In this it resembles sation with executive functions. other great departments of the State. When, therefore, Parliament entrusts it with judicial duties, Parliament must be taken, in the absence of any declaration fo the contrary, to have intended to follow the procedure which is its own and is necessary if it is to be capable of doing its work efficiently." These observations have application here. Having provided for the constitution of a Parliament and pre- the , conduct, of its scribed a certain procedure ordinary legislative business to be supplemented by rules made by each House (article 118), the makers of to have intended the Constitution must be (I) [1915] A.C. 120. 1951 S1111lcui Pr.s11l Si11zh Deo · \ v. Union of .India Mi ' St11te O/.Bihar. Patnfarli SllStri /. SUPREME COURT REPORTS 103 Parliament to follow that procedure, so far as h ma)'. be applicable, consistently with the express provisions of article 368, when they entrusted to it the power of amending die Constitution. ' :parliament -.a Parliament of the meantime, of The argument that a power entrusted to a Parlia- ment consisting two Houses cannot be exercised under article 379 by the provisional Parliament sitting as a single chamber overlooks the scheme of the constitu- to Parliament. These tional provisions regard provisions· envisage two Houses functioning under the Constitution framed as they have been on that basis. But the· framers were well aware that such a Parliament could not be constituted till after the first elections were held under the Con- It thus became necessary to make provision stitUtion. the work for the carrying on, in entrusted ·constjtution. Accordingly, it was provided in article 379 , that the Constituent Assembly should function as the provi- transitional period and sional Parliament during exercise all the duties the powers and perform all 1mnfetred by the Constitution on Parliament. Article the wider 379 should be viewed and isolated perspective of this relation to article 368 alone. The petitioners' argument to "two Houses" inapplicable to the provisional that provision Parliament would equally apply the provisions of the Constitution in ·regard to Parliamentary action and, 'if accepted, would its very purpose and meaning. It was precisely to obviate such an argument and . to remove the difficulty on which it is founded and other difficulties· of a like nature in working the constitution during the transitional period that the framers of the Constitution made the further provision in article 392 c'onferring a general power on the President to adapt the provisions of the Constitu- tion by 'fhis brings us · to the construction of article 392. suitably modifying their terms. the reference in article 368 interpreted in rob article 379 of scheme ,and not to all It will be seen that the purpose for which an adap- is widely tation may be made under that article , , j ~ 104 SUPREME COURT REPORTS (1952) •ngv..· . Patanjali S<Utri J. ; 1951 nit-.- expressed. It may be made for the purpose of removing d "any difficulties". The· particularisation of one class Sas··~~:,:· 1of difficulties which follows is illustrative and cannot .. -have the effect of circumscribing the scope of the pre- Unihn of India ceding general words. It has been urged, however, that the condition precedent to the exercise M powers Siat. 0f Bihar. ·under article 392 is the existence of diffiCjilties to be removed, that is to say, difficulties actually experien- ced in the working of the Constitution whose removal would be necessary for carrying on the Government, · such as for instance, the difficulties connected with applying articles 112, 113, etc., in the transitional period. But, the argum~nt proceeds, constitutional amendments cannot be said to be necessary during that period. ·Besides, amendment of the Constitution is a very serious thing, and hence, by providing that both Houses must deliberate and agree to the amendment proposed and pass the bill by a special majority, the Constitution has purposely. placed difficulties in the way of amending its provisions. It would be fantastic to suppose that, after deliberately creating-those diffi; . culties, it has empowered the President to remove them ·by a stroke of his pen .. \Ve see no.force in this line of argument. It is true enough to say. that. difficulties must exist before they can be removed by adaptation, but they can exist before an occasion for their removal actually arises. As already stated, difficulties are bound to arise in applying provisions; which, by their t!!rrns · are applicable to a Parliament of two Houses, to the provisional Parliament sitting as a single ·chamber, Those difficulties, arising as they do out of the in- appropriateness of .the language of those provisions as applied to the provisional Parliament, have to be removed by modifying that language to fit in with the situation created by article 379. There is nothing in . that article to suggest that the President should wait, before adapting a particular article; till an occasion actually arose for the provisional Parliament to exer- cise the power conferred by that article. Nor is there any question here of the President removing by his ad- aJ>t_ation any of t_he difficulties which the Constitution • S.C.R. . SUPREME COURT REPORTS 105 r leaves the requirement of a has deliberately placed in the way of its amendment. The adaptation special majority untouched. The passing of an amendment bill by both Houses is no more a special requirement . of such a bill than it is of any ordinary law made by Parliament. We are, tlierefore, of opinion that . the adaptation of article 368 by the President was well within, the powers conferred on him by article 392 and is valid and constitutional. 1951 Sankari Prasad Singh Deo v • Union of India ·and Stat; of Bihar. Patanjali Sastri /. sanctity of (article 12) includes Parliament to take away or abridge any of A more plausible argument was advanced in support that the Amendment Act, in so far of the contention as it purports fundamental rights, the prohibition of falls within article 13(2) which provides that "the State shall not make any law which takes away or abridges the rights conferred by this1 Part and any law made in contra- vention of this cfause shall to the extent of the contra- · vention be void." The argument was put thus : "The and · "law" State" must 'include a constitutional amendment.. It was the deliberate intention of the framers of the Constitution, the fundamental rights who realised the conferred by Part Ill, to make them immune from interference not only by ordinary 1aws passed by the constitu- legislatures in the tional amendments. that certain in written constitutions a declaration should be fundamental rights conferred on the people "eternal and instance article 11 of inviolate" as for the Japanese Constitution. Article 5 of the American Federal Constitution provides that no amendment. shall be made depriving any Stat~ .without its consent "of its equal suffrage in the Senate." The framers of the Indian Constitution had the AlJlerican and the Japanese models before them, . and they must be taken to have prohibited even constitutional amendments in deroga- tion of fundamental rights by using aptly wide langu- age in article 13((2). The argument is attractive, but there are other important considerations which point to the opposite_ conclusion. is not uncommon country but also It 14 / • ---r· 1951 Sank_ari Prasad Singh Deo v. Union of India State of Bihar. P11tanjali Sastri /. 106 SUPREME COURT REPORTS [19521 is made in Part judiciary, think that Although "law" must ordinarily It is thus mainly concerned with include constitu- tional law, there is a clear demarcation between ordi- nary law, which i~ made in exercise of legislative power, and constitutional law, which in exercise of constituent power. Dicey defines constitutional law as including "all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the State." creation of the three great organs of the State, the exe- cutive, the legislature and the the distribu- tion of governmental power among them and the defi- nition of their mutual relation. No doubt our constitu- the American model, have tion-makers, following incorporated certain fundamental rights III and made them interference bv laws immune from made by the State. We find it, however, difficult, in to the contrary, to the absence of a clear indication suppose that they also intended to make those rights constitutional amendment. We are immune inclined to they must have had in mind what is of more frequent occurrence, that is, invasion of the rights of the subjects, by the legislative and the executive organs of the State by means of laws and rules made in exercise of their legislative power and not the abridgement or nullification of such rights by alterations of the Constitution in exercise. of sovereign constituent power. That power, though it has been entrusted to Parliament, has been so hedged about with restrictioru that its exercise must be diffi- cult and rare. On the other hand, the terms of article 368 are perfectly general and empower Parliament to amend the Constitution, without any exception what- save the fundamental ever. Had it been intended to rights from the operation of that prov1s1on, it would have been perfectly easy to make that intention clear by adding a proviso to that effect. In short, we have here two articles each of which is widely phrased, but conflicts in its operation with the other. Harmonious construction requires that one should be read as con- trolled and qualified by the other. Having regard to the considerations adverted to above, we are of opinion itself 11 .. S.C.R. SUPREME COURT REPORTS . 107 that in the context of article 13 "law" must be taken to mean rules or regulations made in exercise of ordi- Sankari Prasad nary legis ative power and not amen roents Singh Dea Constitution made in exercise of constituent power, , . v. . with the resuit that article 13(2) does not affect amerrd- Union of India ments made under article 368. d l 1951 · State of Bihar. Patanjali ,Sastri /. It only remains fundamental rights, and to deal with the· objections parti- cularly directed against the newly inserted articles 31A and 31B. One of these objections is based on. the In was said ratification under article 368. absence of that, before these articles were inserted by the Amend· ing Act, the High Courts had the power under article appropriate writ.5 226 of to issue the Constitution, .Acts unconstitu- de.daring the Zemindari Abolition tional as contravening Court could entertain appeals from the orders of the High Courts under article 132 or article 136. As a ni.atter of fact, some High Courts had exercised such pGwers and this Court had entertained appeals. The new articles, however, deprive the High Courts as well as this Court of the power of declaring the said 'Acts thereby seek to make changes unconstitutional, · and It was there- in Ch. '4 of Patt V and Ch. 5 of Part VI. fore' submitted that the newly inserted articles required to· article 368. The ratification under atgument proceeds on a misconception. These articles so far as they are material here, tun thus :- the proviso 3 lA. Saving of laws providing for acquisition of ·estates, etc.-( 1) Notwithstanding anything in the fore- going provisions of this part, no law providing the acquisition by the State of any estate or of any rights therein . or for the extinguishment or modifica- tion of any such rights &hall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by, any provi· si')ns of this Part :- 31B. Validation of certain Acts and Regulations. Without prejudice tb the generality of the provision~ in article 31A, none of the Acts and Regu- · contained lations specified in the Ninth Schedule nor any of the • • • ( • 108 SUPREME COURT REPORTS [1952) and. Pataniali j951 -.-

8.,,,.. 1. provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, 8"";."",P;"'"~ Regulation or provision is inconsistent with, or takes '.~. "' away or abridges any of the rights conferred by, any Unwn of Ind>• provisions of this Part, and notwithstarnjing any judgment, decree or order of a_ny court or tribunal to Stat• 01 mh.,. the contrary, each of the said Acts and 'Regulations shall, subject to the power of any competent Legisla- ture to repeal or amend it, continue in force. · It will be see·n that these articles do not either in terms or in effect seek to make any change in article 226 or in articles 132 and 136. Article 3IA aims at saving laws providing for the compulsory acquisition •-by the State of a certain kind of property from the · operation of article 13 read with other relevant articles in Part III, while article· 31B purports to validate certain specified Acts and-Regulations already passed, which, but for such a provision, would be liable to be impugned under article 13. It is not correct to say that the powers of the High Court under article 226 to issue writs· "for the enforcement of any of the rights - ·conferred by Part III" or of this Court under articles 132 and 136 to entertain appeals from orders issuing or refusing such writs are in any way affected. They remain just the same as they were before : only a certain class of case has been excluded from the pur- view of Part III and the courts could no longer inter. fere, not because their powers were curtailed in any manner or to any extent, but because there would be no occasion hereafter for the exercise of their power in such cases. The other objection that it was beyond the power of Parliament to enact the new articles is equally: untenable. It was said that they related to land which' was covered by item 18 of List II of ·the Seventh Schedule and that the State_ legislatures alone had the power to legislate with respect to that matter. The answer is that, as has been stated, articles 31A and 31B really seek to save a certain class of laws and certain specified laws already passed from the combin-. ed operation of article 13 read with other relevant • S.C.R. SUPREME COURT REPORTS 109 articles of Part III. The new articles being thus essen- the Constitution, Parliament tially amendments of alone had the power of enacting them. That the laws thus saved relate to matters covered by List II does not in any way affect the position. . It was said that Parliament could not validate a law which it had no power to enact. The proposition holds good where the validity of the impunged provision turns on whether the subject-matter falls within or without the jurisdic- tion of the legislature which passed it. But to make a law whlch contravenes the constitution constitution- ally valid amendment, is a matter of constitutional as such it falls within the exclusive power of Parliament. The question whether the latter part of too widely expressed was not argued article 31B before us and we express no opinion upon it. The petitions fail and are dismissed with costs. Petitions dismissed. 1951 Sankari Prasatl Singh Deo v. Uni1m of India 1111tl State of Bihar Pataniali Sastri /. Agent for the Petitioners in Petitions Nos. 371, 372, 382, 383, 388 and 392: /. N. Shroff. Agent for the Petitioners in Petitions Nos. 287, 374 to 381, 393, 394, 395 : Rajinder Narain. the Petitioners Agent for in Petitions Nos. 387, 418, 481 to 485, 384, 385, 386 and 389: S. S. Suk/a. Agent the Petitioners in Petition No. 166 : .. M. S. K. Sastri. Agent for the Petitioners in Petition Nos. 317 and 319: R. S. Narula. Agent Gimpat Rai. the Petitioner in Petition No. 318 : Agent for the respondents: P.A. Mehta.