Sri Sankari Prasad Singh Deo vs Union of India and State of Bihar

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 05/10/1951

Coram: Hiralal J. Kania, B.K. Mukherjea, N. Chandrasekhara Aiyar

Sri Sankari Prasad Singh Deo filed a petition against the Union of India and the State of Bihar. The judgment was delivered on 5 October 1951 by the Supreme Court of India. The bench that heard the matter comprised Chief Justice Hiralal J. Kania, Justice B.K. Mukherjea and Justice N. Chandrasekhara Aiyar. The case is reported as 1951 AIR 458 and 1952 SCR 89, with additional citator references including 1952 SC 252, 1954 SC 257, 1959 SC 395, 1959 SC 512, 1965 SC 845, 1965 SC 1636, 1967 SC 1643, 1973 SC 1461, 1975 SC 1193, 1975 SC 2299, 1980 SC 1789, 1980 SC 2056, 1980 SC 2097, 1981 SC 271, 1986 SC 1272, 1986 SC 1571, 1987 SC 1140. The judgment also discusses the Constitution (First Amendment) Act 1951, particularly articles 31A and 31B, and refers to constitutional provisions such as articles 13(2), 368, 379 and 392, the power of the provisional Parliament to amend the Constitution, and the Constitution (Removal of Difficulties) Order No. 2 of 1950.

The Court’s headnote explains that the Constitution (First Amendment) Act 1951, which introduced articles 31A and 31B, is neither ultra vires nor unconstitutional. It held that the provisional Parliament possessed the authority to exercise the power of amendment granted by article 368. Although article 368 mentions the two Houses of Parliament and the President separately, the Court rejected the view that this meant a body other than Parliament held the amendment power. The Court further interpreted the phrase “all the powers conferred by the provisions of this Constitution on Parliament” in article 379 as encompassing the amendment power under article 368, not limited to the powers of a unicameral provisional Parliament. Regarding the Constitution (Removal of Difficulties) Order No. 2 dated 26 January 1950, the Court observed that the Order’s substitution of the word “Parliament” for “that House” and the omission of “either House of” and “in each House” did not exceed the authority granted to the President by article 39(l) and was not ultra vires. The Court also noted that article 392 does not require the President to delay adapting a constitutional article until the provisional Parliament actually exercises the relevant power. Finally, the Court rejected the contention that article 368 constitutes a self-contained procedural code that bars any amendment of a Bill while it is being considered, thereby affirming the validity of the amendment process employed.

In this case, the Court explained that although the term “law” ordinarily encompassed constitutional law, a clear distinction existed between ordinary legislation enacted by the ordinary legislative power and constitutional law created by the constituent power. Accordingly, when Article 13 was considered, the word “law” was to be understood as referring only to rules or regulations made under ordinary legislative authority, and not to amendments to the Constitution made under the constituent power; consequently, Article 13(2) did not apply to amendments effected under Article 368. The Court further held that Articles 31A and 31B, which had been inserted into the Constitution by the Constitution (First Amendment) Act, 1951, did not diminish the High Court’s authority under Article 226 to issue writs for enforcing any rights guaranteed by Part III, nor did they limit the Supreme Court’s power under Articles 132 and 136 to entertain appeals from orders granting or refusing such writs. These articles merely excluded certain classes of cases from the scope of Part III, and therefore they did not require ratification under clause (b) of the proviso to Article 368. The Court also rejected the contention that Articles 31A and 31B were invalid because they dealt with land, a subject listed in the State List (item 18 of List II), observing that the articles were essentially constitutional amendments and that only Parliament possessed the authority to enact them. The judgment recorded that the petitions were filed under Article 32 of the Constitution, specifically Petitions Nos. 166, 287, 317-319, 371-372, 374-389, 392-395, 418, 481-485 of 1951, and that the factual background of those petitions was set out in the judgment. Arguments were heard on the 12th, 14th, 11th, 18th and 19th of September, and counsel for the petitioners appeared on behalf of Petitions Nos. 371, 372, 382, 383, 388 and 392. The Court noted that Article 368 formed a complete code governing the amendment process and did not envisage any amendment to the Constitution Amendment Bill after its introduction. The Bill, according to the Court, had to be passed and receive the President’s assent in the form originally presented, without any alteration. Because the Constitution (First Amendment) Act had been amended in several respects during its passage through Parliament, the Court concluded that it had not been enacted in compliance with the procedure prescribed by Article 368 and was therefore invalid. The Court clarified that while Parliament possessed the authority to amend ordinary Bills under Articles 107, 108 and 109(3)-(4), it lacked such power when seeking to amend the Constitution itself, as Article 368 did not grant Parliament that ability. The Court distinguished the power to amend the Constitution from ordinary legislative power, observing that the former was vested not in Parliament but in a different body, namely a two-thirds majority of the two Houses of Parliament.

Article 368 requires the concurrence of both Houses of Parliament for a constitutional amendment. The term “Parliament” that appears in many other provisions is deliberately omitted in article 368 to emphasize a special distinction between the ordinary legislative authority of Parliament and the separate authority to amend the Constitution. This distinction is also recognised in the United States, where the power to amend the Constitution is vested in a body distinct from the ordinary legislature. The distinction is discussed, for example, in Willis, page 875, Coolly Vol. 1, page 4, and Orfield, page 146.

Article 379 assigns legislative power to the provisional Parliament, but the powers conferred by article 368 cannot be exercised by that provisional body. Because the provisional Parliament consists of a single chamber, the modifications to article 368 introduced by the Constitution (Removal of Difficulties) Order No. 2 exceed its authority and are ultra vires. Article 392 empowers the President to remove only those difficulties that arise in the practical operation of the Constitution; it does not permit the President to remove difficulties that are essentially constitutional amendments deliberately placed in the text. On the day the Constitution came into force, no operational difficulty could have arisen, and the Constitution may be amended only by a Parliament composed of two Houses as provided in clause 2 of Part V. Consequently, the impugned Act is void under article 13(2) because it contravenes the fundamental rights guaranteed by Part III. The word “law” in article 13(2) unmistakably embraces all statutes, including those enacted under article 368 for constitutional amendment, as reflected in the Constituent Assembly Debates, Vol. IX No. 37, pp. 1644-45, 1661, 1665.

The term “only” in article 368 refers to everything that follows it, and the article does not permit amendment of a Bill after its introduction. Therefore, the President’s Order exceeds the powers granted under article 392 and is ultra vires. There is no difficulty in the operation of article 368 that would justify the President’s adaptation of that article under article 392.

Counsel for the petitioner in Petition No. 375 advanced these points, and counsel for the petitioner in Petition No. 368 adopted the same arguments. Counsel for the petitioner in Petition No. 387 also relied on the same reasoning. Article 379, which forms the basis of the provisional Parliament’s jurisdiction, not only gives the provisional Parliament the powers of the ordinary Parliament but also obliges it to fulfil all constitutional duties. Accordingly, the provisional Parliament cannot abridge the property rights of citizens protected by Part III. Since the present Act violates the provisions of Part III, it is void under article 13(2). Moreover, the newly introduced articles 31A and 31B limit the jurisdiction of the Supreme Court under articles 32, 132 and

In the matter before the Court, the provisions that had been made under the heading “136” together with the powers of the High Court under article 226 were examined. The Court observed that, in accordance with clause (b) of the proviso to article 368, such provisions required ratification by the appropriate authority. Since ratification had not been obtained, the Court held that those provisions were void and could be characterized as unconstitutional. Moreover, the Court found that the provisions were ultra vires because they dealt with land, a subject that falls within List II, item 18, over which the State Legislatures possess exclusive jurisdiction. Consequently, Parliament could not enact a statute that validated a law which it itself lacked the power to pass. Counsel representing the petitioners in Petitions Nos. 481 to 484 presented these arguments.

The Court then turned to article 338, noting that this article does not confer any power on any body to amend the Constitution. Instead, article 338 merely prescribes the procedural steps that must be followed when an amendment is to be effected. In the view expressed by the Court, because article 338 does not grant amendment power, article 379 does not become operative in the present context. The Court further explained that, under article 392, the President alone possesses the authority to alter the Constitution, and that authority cannot be delegated to allow the provisional Parliament to make constitutional changes. These points were advanced on behalf of the petitioner in Petition No. 485.

Addressing article 13(2), the Court described its ambit as very broad. The provision invalidates any law—whether past, present, or future—that seeks to curtail the rights conferred by Part III of the Constitution. The Court emphasized that article 13(2) does not carve out an exemption for statutes enacted under article 368; such statutes remain subject to the same prohibition. Counsel for the petitioners in Petitions Nos. 287 and 318 argued that article 368 must be interpreted subject to the constraints of article 13(2). The Court concurred that Articles 31A and 31B are legislative in nature, having been enacted by Parliament in the exercise of its ordinary law-making power and not as a manifestation of any constitutional amendment power. Accordingly, Parliament does not possess the authority to validate laws that it was not empowered to enact in the first place. These submissions were presented on behalf of the petitioner in Petition No. 166.

The Court reiterated that fundamental rights enjoy a position of supremacy within the constitutional scheme. It held that article 13(2) constitutes an absolute bar to any amendment of the rights guaranteed by Part III. This principle was advanced by counsel representing the petitioner in Petition No. 319, and it formed part of the Court’s reasoning in rejecting the contested legislative measures.

Several petitioners were represented by counsel across a range of petitions, including petitions numbered 374, 376, 377, 379, 380, 381, 384, 385, 386, 389, 393, 394, 395, 418, a17, and others. The Union of India was represented by the Attorney-General for India, assisted by counsel, and the State of Bihar was represented by a team of counsel. The Court clarified that the entity to which the power under article 368 is granted is Parliament itself, and that the procedure for passing a Bill under article 368 mirrors the procedure for ordinary legislative Bills. The Court rejected the notion that article 368 creates a power that could be exercised by a fluctuating body with a varying majority, emphasizing that such a view would be inconsistent with the constitutional design. The Court further noted that if the constituent authority and the legislative authority were treated as separate entities, the saving clauses contained in articles 2, 3, and 4 would become meaningless.

Under article 379 the provisional Parliament may exercise all the powers that belong to the regular Parliament, and consequently it is competent to act in accordance with article 368. The expression “all the powers” in article 379 embraces the power to amend the Constitution; there is no justification for limiting the meaning of those words by excluding the power of constitutional amendment. Likewise, the phrase “perform all the duties” in the same article does not diminish the authority of the Parliament under article 379, because article 13 (2) does not impose a duty upon it. Hence there is no inconsistency between the full exercise of the powers granted by article 379 and the prohibition contained in article 13 (2). The word “difficulty” in article 392 (1) should not be given a technical definition; the adaptation referred to in article 368 is merely a measure for removing difficulties. Such adaptation is not permanent and therefore it does not constitute an amendment; even if it were to be characterised as an amendment, it would be an amendment made by way of adaptation. Article 13 (2) bans “laws” that are inconsistent with fundamental rights, but the term “law” there refers to ordinary legislative enactments, not to the making of the Constitution. Consequently article 13 (2) cannot be applied to article 368.

The contention that a constitutional amendment bill must be passed exactly as introduced, without any amendment, is untenable. It cannot be asserted that the bill mentioned in article 368 must follow a procedure different from the one prescribed for ordinary bills in articles 107 and 108. Articles 31-A and 31-B are not legislative in nature and they do not affect the scope of articles 226 and 32; the judicial powers under those articles remain unchanged. What has effectively occurred is an alteration of the content of fundamental rights. The Advocate General of Uttar Pradesh, assisted by counsel, for the State of Uttar Pradesh adopted the Attorney-General’s arguments and added that articles 31-A and 31-B do not necessarily stand or fall together, so that even if article 31-B were to be removed, article 31-A would continue to operate. Similarly, the Advocate General of Madhya Pradesh, with counsel, for the State of Madhya Pradesh embraced the Attorney-General’s position. The provisional Parliament is therefore competent to perform all functions that the future Parliament may perform, and the adaptation under article 392 does not aim to amend article 368. Counsel appearing on behalf of the respondents replied. The judgment of the Court was delivered by Justice Patanjali Sastri. These petitions, heard together, raise the common question whether the Constitution (First Amendment) Act, 1951, recently passed by the provisional Parliament and intended to insert, among other provisions, articles 31-A and 31-B into the Constitution of India, is ultra vires and unconstitutional. The background to that enactment is well known. The political party now in power, commanding as it does a majority of

In this case, the political party that commanded a majority of votes in the various State legislatures as well as in Parliament carried out certain measures of agrarian reform in Bihar, Uttar Pradesh and Madhya Pradesh by enacting legislation that may be referred to collectively as the Zamindari Abolition Acts. Certain zamindars, feeling aggrieved, challenged the validity of those Acts in courts of law on the ground that they contravened the fundamental rights conferred on them by Part III of the Constitution. The High Court at Patna held that the Act passed in Bihar was unconstitutional, while the High Courts at Allahabad and Nagpur upheld the validity of the corresponding legislation in Uttar Pradesh and Madhya Pradesh respectively. Appeals from those decisions are pending before this Court, and petitions filed here by some other zamindars seeking determination of the same question are also pending. At this stage, the Union Government, with a view to put an end to all this litigation and to remedy what it considered to be certain defects revealed in the working of the Constitution, introduced a bill to amend the Constitution. After undergoing amendments in various particulars, the bill was passed by the requisite majority and became the Constitution (First Amendment) Act, 1951, hereinafter referred to as the Amendment Act. Swiftly reacting to this move of the Government, the zamindars filed the present petitions under article 32 of the Constitution, impugning the Amendment Act itself as unconstitutional and void. The main arguments advanced in support of the petitions may be summarised as follows: first, the power of amending the Constitution provided for under article 368 was conferred not on Parliament alone but on the two Houses of Parliament as a designated body, and therefore the provisional Parliament was not competent to exercise that power under article 379; second, assuming that the power was conferred on Parliament, it did not devolve on the provisional Parliament by virtue of article 379, as the words “all the powers conferred by the provisions of this Constitution on Parliament” could refer only to powers capable of being exercised by a provisional Parliament consisting of a single chamber, whereas the power under article 368 requires the cooperative action of two Houses and can be exercised only by a Parliament duly constituted under Chapter 2 of Part V; third, the Constitution (Removal of Difficulties) Order No 2 made by the President on 26 January 1950, insofar as it purports to adapt article 368 by omitting “either House of” and “in each House” and substituting “Parliament” for “that House”, exceeds the powers conferred on him by article 392, because any “difficulties” to be removed by adaptation must be difficulties in the actual working of the Constitution during the transitional period whose removal is necessary for carrying on the Government, and no such difficulty could possibly have been experienced on the very date of the commencement of the Constitution; fourthly, in any case

Article 368 constitutes a complete code on constitutional amendment and does not contain any provision that allows a bill to be altered after it has been introduced in a House of Parliament. In the present matter, the bill that was the subject of the amendment was openly changed on several points while it was passing through the House. Because of those changes, the Amendment Act cannot be said to have been passed in accordance with the procedure laid down in article 368. The Court further observed that, to the extent the Amendment Act attempts to remove or limit the rights that are guaranteed by Part III of the Constitution, it runs afoul of the prohibition contained in article 13(2). The Court also noted that the newly inserted articles 31A and 31B intend to modify articles 132 and 136 of Chapter IV of Part V and article 226 of Chapter V of Part VI. Such modifications are required to be ratified in accordance with clause (b) of the proviso to article 368. Since no such ratification was obtained, those newly inserted provisions are void and unconstitutional. Moreover, because the subjects of articles 31A and 31B fall within List II of the Seventh Schedule, they are matters that the State legislatures, and not Parliament, are empowered to legislate on, rendering the amendments ultra vires.

Before analysing these points in detail, the Court set out the relevant portions of articles 368, 379 and 392 to clarify the true construction on which the arguments hinge. Article 368 provides that a constitutional amendment may be initiated only by the introduction of a Bill for that purpose in either House of Parliament. The Bill must be passed in each House by a majority of the total membership of that House and by not less than two-thirds of the members present and voting. After passage, the Bill is to be presented to the President for assent, and upon such assent the Constitution is amended according to the terms of the Bill. The article further stipulates that if the amendment seeks to alter (a) articles 54, 55, 78, 162 or 241; (b) Chapter IV of Part V, Chapter V of Part VI or Chapter I of Part XI; (c) any of the Lists in the Seventh Schedule; (d) the representation of States in Parliament; or (e) the provisions of article 368 itself, then the amendment must also be ratified by resolutions of the legislatures of at least one-half of the States listed in Parts A and B of the First Schedule before the Bill is presented to the President. Article 379 states that until both Houses of Parliament have been duly constituted and summoned to meet for the first session under this Constitution, the body that functioned as the Constituent Assembly of the Dominion of India immediately before the commencement of this Constitution shall constitute the provisional Parliament and shall exercise all the powers and perform all the duties conferred on Parliament by this Constitution. Article 392, as cited, deals with the President’s power to remove difficulties for a limited period, a power that could not be exercised after the first meeting of the duly constituted Parliament.

The Court explained that the President possessed the authority to issue an order for the purpose of removing any difficulties, especially those arising from the transition from the Government of India Act, 1935, to the present Constitution. By such an order the President could declare that the Constitution would, for a period specified in the order, operate subject to adaptations that might involve modification, addition or omission, as the President deemed necessary or expedient. The Court further noted that this power could be exercised only until the first meeting of Parliament duly constituted under Chapter II of Part V; after that meeting no such order could be made.

Turning to the argument concerning the source of power to amend the Constitution, the Court observed that the petitioners contended that wherever the Constitution conferred a power on Parliament it expressly used the term “Parliament,” as found in articles 2, 3, 33, 34 and many others, but deliberately omitted that term in article 368. The petitioners argued that, because the Constitution was intended to be a stable fundamental law not subject to frequent changes by shifting party majorities, the framers had created special difficulties for amendment and had assigned the amendment power to a body other than the ordinary legislature, drawing a parallel with article 5 of the American Federal Constitution. The Court rejected this view, stating that various methods of constitutional amendment exist in written constitutions—such as referendums, special conventions, or legislation under special procedures—but the method chosen by the framers of the Indian Constitution must be discerned from its own provisions without relying on external analogies. Accordingly, the Court examined the constitutional text and identified three distinct classes of amendments. The first class, which includes the amendments contemplated in articles 4, 169 and 240, can be effected by a simple majority—the same majority required for passing any ordinary law—and these amendments are expressly excluded from article 368. The second class consists of all other constitutional amendments, which must be passed by a special majority as laid down in article 368; this requires the support of a majority of the total membership of each House of Parliament together with at least two-thirds of the members present and voting in that House. The third class comprises amendments that, in addition to the special majority, also require ratification by resolutions passed by not less than one-half of the States listed in Parts A and B of the First Schedule, that is, amendments that affect the matters specified in the proviso to article 368.

The judgment observed that the authority to effect the first class of constitutional amendments was expressly granted to “Parliament,” which the Constitution defines as the two Houses of Parliament together with the President, pursuant to article 79. From this, it was inferred that, unless a clear contrary indication existed, the same body – Parliament – also possessed the power to carry out the second and third classes of amendments. The reasoning was that a requirement of a different majority, being merely a procedural variation, could not by itself justify assigning the power to a different institution.

An analysis of the language of article 368 supported this inference. First, article 368 stipulated that any amendment had to be initiated by the introduction of a “bill in either House of Parliament,” a feature that mirrored the ordinary parliamentary procedure described in article 107(1), which states that a bill may originate in either House. Second, the amendment bill required passage in each House, exactly as Parliament does when exercising its normal legislative function, as provided in article 107(2). Third, after passage, the bill had to be presented to the President for his assent, a step that followed the parliamentary process set out in article 111, whereby every bill must obtain the President’s assent before becoming law. Accordingly, each component of Parliament – the two Houses and the President – performed its designated role in bringing about a constitutional amendment.

The Court noted that Parliament already effected amendments of the first class by following the same three-stage procedure but with a simple majority. The fact that a special or qualified majority was required for the second and third categories did not alter the identity of the amending agency; it remained the same Parliament. Consequently, there was no justification for the suggestion that a different body had been intended to exercise the amendment power. By mentioning each House and the President separately and assigning to each its appropriate function, the Constitution’s framers apparently saw no need to refer to the collective term “Parliament” again.

Beyond the internal cues in article 368, the Court identified a further persuasive argument in articles 2, 3, 4, 169 and 240. Under each of these articles, power was granted to “Parliament” to enact laws by a bare majority for the purpose of amending specific portions of the Constitution. However, each provision expressly stated that such laws would not be deemed amendments “for the purpose of article 368.” The Court reasoned that it would be unnecessary and inappropriate to exclude these laws from the operation of article 368, which demands a special majority, if the power to amend under article 368 had not also been vested in Parliament. The discussion concluded by indicating that this point was closely related to the preceding analysis.

The Court observed that the objection raised in the present case, which stated that the bill had been passed in an amended form rather than as originally introduced, was not a proper ground for challenging the amendment process. It held that article 368 could not be described as a “complete code” governing the entire procedure for constitutional amendment because it left unanswered several procedural questions, such as the manner and timing of giving notice for the introduction of a bill, the manner in which each House must pass the bill, and the method for obtaining the President’s assent. The Court noted that the procedural rules made by each House under article 118, which were intended to regulate the conduct of business in the Houses, were meant to be applicable to amendment bills to the extent that they were consistent with article 368. The Court further recounted that during arguments before the Bar, a dispute arose over whether the process of amending the Constitution should be considered a legislative process. Counsel for the petitioners maintained that it was not a legislative process and therefore the “legislative procedure” laid down in article 107, which specifically permits a bill to be passed with amendments, did not apply to a constitutional amendment bill under article 368. They argued that if amendments to such a bill were allowed, either House could propose and pass amendments, and if the two Houses failed to agree, the entire mechanism of article 368 would collapse, because the joint sitting provision of article 108, which allows a simple majority for ordinary bills, would be inapplicable where a special majority is required by article 368. The Court rejected this line of reasoning as a misconception. It explained that even if one assumes that constitutional amendment is not legislation, there is no evident reason why Parliament could not, on occasions when it deals with an amendment bill, follow its ordinary legislative procedure, provided that such procedure does not conflict with the statutory requirements of article 368. To reinforce this view, the Court cited Lord Haldane’s observation in Local Government Board v. Arlidge: when Parliament entrusts an executive body with judicial duties, Parliament must be taken, unless it expressly says otherwise, to intend that the body follow Parliament’s own procedural rules in order to perform its work efficiently. The Court applied this principle to the present situation, concluding that having established a Parliament and prescribed a procedure for ordinary legislative business, supplemented by rules made by each House under article 118, the framers of the Constitution intended that Parliament should follow that procedure insofar as it is compatible with the specific provisions of article 368.

It must be presumed, as was indicated in the decision cited as [1915] A.C. 120, that Parliament intended to follow its own established procedure, insofar as that procedure could be applied consistently with the explicit requirements of article 368 when Parliament was entrusted with the power to amend the Constitution. The contention put forward that a power granted to a Parliament composed of two Houses could not be exercised under article 379 by the provisional Parliament sitting as a single chamber fails to appreciate the overall scheme of the constitutional provisions concerning Parliament. Those provisions were designed with the expectation that a bicameral Parliament would operate under the Constitution in the manner for which the Constitution was drafted. Nevertheless, the framers were fully aware that such a bicameral Parliament could not be constituted until after the inaugural elections required by the Constitution had been conducted. Consequently, it became necessary to provide for the continuation, during the interim period, of the functions that the Constitution assigned to Parliament. To address this need, article 379 stipulates that the Constituent Assembly should act as the provisional Parliament throughout the transitional period and should exercise all powers and discharge all duties that the Constitution confers on Parliament. Article 379 therefore has to be interpreted in the broader context of this constitutional scheme rather than in isolation from article 368. The petitioners argued that the reference in article 368 to “two Houses” renders that provision inapplicable to the provisional Parliament; however, that same argument would extend to every constitutional provision dealing with parliamentary action and, if accepted, would nullify the very purpose and meaning of article 379. The framers inserted article 392 precisely to prevent such a difficulty and to eliminate similar problems that might arise while the Constitution was being implemented during the transition. Article 392 grants the President a general power to adapt constitutional provisions by suitably modifying their terms. The purpose of an adaptation under article 392 is expressed in broad terms; it may be undertaken to remove “any difficulties.” The illustration of a particular class of difficulties that follows is merely exemplary and does not limit the scope of the general language that precedes it. Some have argued, however, that a condition precedent to exercising the power under article 392 is the actual existence of difficulties that need to be removed—difficulties that have arisen in the operation of the Constitution and whose removal is necessary for the functioning of Government, for example, difficulties associated with applying articles 112, 113, and others during the transitional period. The same argument continues by asserting that constitutional amendments are not required during this period and that amendment of the Constitution is a serious undertaking; consequently, because the Constitution mandates that both Houses must deliberate and concur on any proposed amendment and that such a bill must pass by a special majority, the framers intentionally created procedural hurdles to amendment.

In this case, the Court observed that the Constitution deliberately makes the amendment process difficult by requiring a special majority in both Houses before a bill may be passed. It rejected the notion that, after creating those procedural obstacles, the President could simply remove them by a unilateral act. The Court noted that while it is true that difficulties must exist before they can be removed by adaptation, the existence of difficulties does not depend on a specific occasion for their removal to arise. Difficulties naturally arise when provisions that are written for a bicameral Parliament are applied to a provisional Parliament that sits as a single chamber. Those difficulties stem from the unsuitability of the language of the provisions for the provisional situation created by article 379, and they must be eliminated by modifying the language so that it fits the new circumstance. Nothing in article 379 indicates that the President must wait until a concrete occasion occurs for the provisional Parliament to exercise a particular power before adapting an article. Nor does the argument involve the President removing the procedural hurdles that the Constitution itself placed in the way of amendment. The adaptation, the Court held, leaves the requirement of a special majority untouched; the requirement that both Houses pass an amendment bill is no more a special requirement for that bill than it is for any ordinary law passed by Parliament. Accordingly, the Court concluded that the President’s adaptation of article 368 was within the authority granted by article 892 and was therefore valid and constitutional. The Court then addressed a second line of argument that the Amendment Act, insofar as it attempted to take away or abridge any fundamental right, fell within the prohibition of article 13(2), which states that “the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall to the extent of the contravention be void.” The argument presented that “the State” includes Parliament under article 12 and that “law” must therefore encompass a constitutional amendment. It was asserted that the framers of the Constitution, aware of the sanctity of the fundamental rights contained in Part III, deliberately intended those rights to be immune not only from ordinary statutes but also from constitutional amendments. The argument further cited examples from other written constitutions, such as article 11 of the Japanese Constitution, which declares certain fundamental rights to be “eternal and inviolate,” and article 5 of the United States Constitution, which prohibits amendment that would deprive a State of its equal suffrage in the Senate without that State’s consent. The Court noted that these foreign examples were raised to support the view that article 13(2) was meant to bar any amendment that infringed fundamental rights.

In this case, the Court observed that the makers of the Indian Constitution were aware of the American and Japanese models, which had explicitly barred constitutional amendments that curtailed fundamental rights by employing broad language in article 13 (2). The Court found that this argument, while attractive, was outweighed by other significant considerations leading to a different conclusion. The Court explained that although the term “law” ordinarily embraces constitutional law, a clear distinction exists between ordinary law, which is created through the exercise of legislative authority, and constitutional law, which arises from the exercise of constituent power. Referring to Dicey’s definition, the Court noted that constitutional law comprises all rules that directly or indirectly affect the distribution or exercise of sovereign power within the State, and therefore mainly concerns the formation of the executive, legislature and judiciary, the allocation of governmental authority among them, and the definition of their mutual relationships. The Court acknowledged that, following the American model, the Constitution’s framers incorporated certain fundamental rights in Part III and rendered those rights immune from interference by statutes enacted by the State. However, the Court expressed difficulty in assuming, without a clear indication to the contrary, that the framers also intended to make those rights immune from amendment by the constituent power. The Court reasoned that the framers were more likely concerned with the frequent possibility of legislative and executive encroachment on individuals’ rights through ordinary statutes, rather than with the prospect of rights being nullified or abridged by alterations to the Constitution itself. While Parliament has been entrusted with constituent power, the Court pointed out that this power is heavily circumscribed by restrictions, making its exercise difficult and rare. In contrast, article 36a is expressed in very general terms and empowers Parliament to amend the Constitution without any stated exception. The Court observed that, had the Constitution intended to protect fundamental rights from the operation of article 36a, it could have easily done so by inserting a clear proviso to that effect. Consequently, the Court concluded that the two broadly phrased provisions—article 13 (2) and article 36a—appear to conflict in their operation, and that a harmonious construction requires reading one as qualified by the other. Accordingly, after considering the foregoing factors, the Court held that within the context of article 13, the term “law” should be understood to mean rules or regulations made in the exercise of ordinary legislative power, not amendments to the Constitution made under constituent power. As a result, article 13 (2) does not affect amendments carried out under article 368.

The Court then turned to the specific objections raised against the newly inserted articles 31A and :3lB, beginning with the contention that these articles had not been ratified in accordance with article 368. The objection asserted that, prior to the insertion of these articles, the High Courts possessed the authority under article 226 to issue appropriate writs declaring the Zemindari Abolition Acts unconstitutional because they contravened fundamental rights, and that this Court could entertain appeals from such High Court orders under article 132 or article 136. The Court noted that, indeed, some High Courts had exercised that jurisdiction and that this Court had entertained the resulting appeals. However, the Court observed that the newly inserted articles removed from both the High Courts and this Court the power to declare the aforementioned Acts unconstitutional, thereby effecting changes in Chapter 4 of Part V and Chapter 5 of Part VI. On that basis, it was argued that the new articles required ratification under the proviso to article 368. The Court rejected this line of reasoning as based on a misconception, emphasizing that the articles in question, as they stand, read as follows: “31A. Saving of laws providing for acquisition of estates, etc.—(1) Notwithstanding anything in the foregoing provisions of this part, no law providing for the acquisition by the State of any estate or of any …”. The Court therefore concluded that the objection founded on the alleged lack of ratification under article 368 was misplaced.

The Amending Act had provided that the High Courts possessed authority under Article 226 of the Constitution to issue writs declaring the Zemindari Abolition Acts unconstitutional because they violated fundamental rights, and it also authorized this Court to entertain appeals from the orders of the High Courts under Article 132 or Article 136. In practice, some High Courts exercised that jurisdiction and this Court entertained the resulting appeals. The subsequently inserted articles, however, remove from both the High Courts and this Court the power to declare those Acts unconstitutional, and they purport to amend Chapter 4 of Part V and Chapter 5 of Part VI. Consequently, it was submitted that the newly inserted articles needed ratification pursuant to the proviso to Article 368. The argument proceeds on a misconception. For the purposes of this case, the relevant provisions read as follows: “31A. Saving of laws providing for acquisition of estates, etc.—(1) Notwithstanding anything in the foregoing provisions of this part, no law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of any such rights shall 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 provisions of this Part …” and “31B. Validation of certain Acts and Regulations—Without prejudice to the generality of the provisions contained in Article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.” It will be seen 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 31A 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 exactly as they were before: only a

In this case the Court noted that a particular class of cases had been excluded from the ambit of Part II, and therefore the courts could no longer interfere with those matters. The Court explained that this restriction did not stem from any reduction in judicial power, but rather from the fact that after the amendment there would be no occasion for the courts to exercise jurisdiction in such cases. The Court then turned to the second objection, namely that Parliament lacked authority to enact the new constitutional articles. It rejected that contention as untenable. It was argued that the provisions related to land covered by item 18 of List II of the Seventh Schedule and that only State legislatures possessed the power to legislate on that subject. The Court responded that, as previously indicated, Articles 31A and 31B were expressly intended to shield a specific class of statutes and certain specified statutes already enacted from the combined effect of Article 13 read with other relevant provisions of Part III. Because the new articles functioned as amendments to the Constitution, the exclusive power to enact them rested with Parliament. The fact that the statutes saved by the amendment pertained to matters listed in List II did not alter that conclusion. The Court further addressed the argument that Parliament could not validate a law that it itself lacked authority to enact. It held that this principle applies when the validity of a challenged provision depends on whether the subject-matter falls within the legislative competence of the body that passed it. However, making a law that contravenes the Constitution constitutionally valid is a matter of constitutional amendment, and such power belongs solely to Parliament. The Court observed that the issue of whether the latter part of Article 31B was expressed overly broadly had not been raised before it, and therefore it expressed no opinion on that point. Consequently, the Court held that the petitions failed, dismissed them with costs, and ordered the dismissal of the petitions. Counsel for the petitioners in Petitions Nos 871, 372, 382, 383, 388 and 392 was identified, as was counsel for the petitioners in Petitions Nos 287, 374 to 381, 393, 394 and 395. Counsel for the petitioners in Petitions Nos 387, 418, 481 to 485, 384, 385, 386 and 389 was also noted, together with counsel for the petitioner in Petition No 166 and counsel for the petitioners in Petition Nos 817 and 319, as well as counsel for the petitioner in Petition No 318. Finally, counsel for the respondents was listed.