Sajjan Singh vs State of Rajasthan

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 30 October, 1964

Coram: P.B. Gajendragadkar, K.N. Wanchoo, M. Hidayatullah, Raghubar Dayal, J.R. Mudholkar

In the matter titled Sajjan Singh versus State of Rajasthan, together with related petitions, the Supreme Court of India delivered its judgment on 30 October 1964. The judgment was authored by Chief Justice P. B. Gajendragadkar, and the bench also included Justices K. N. Wanchoo, M. Hidayatullah, Raghubar Dayal and J. R. Mudholkar. The petitioner was Sajjan Singh and the respondent was the State of Rajasthan, with additional connected petitions considered in the same proceeding.

The citation for this decision appears in the 1965 volume of the All India Reporter at page 845 and in the 1965 Supreme Court Reports, series 1, page 933. The decision is also referenced in numerous subsequent reports, including the 1967 Supreme Court Reports (pages 12, 14, 23, 43, 44, 59, 61, 65, 75, 87), the 1972 Supreme Court Reports (pages 7, 14), the 1973 Supreme Court Reports (pages 9‑16, 38, 88, 107, 633, 658, 929, 9 R), the 1975 Supreme Court Reports (pages 17), the 1980 Supreme Court Reports (pages 8, 55, 61, 96), the 1981 Supreme Court Reports (pages 33, 42), the 1983 Supreme Court Reports (page 7), the 1987 Supreme Court Reports (page 3), the 1989 Supreme Court Reports (page 24), and the 1990 Supreme Court Reports (page 9). The case concerns the validity of the Constitution (Seventeenth Amendment) Act, 1964.

The headnote outlines the historical background. In 1951 several state legislatures enacted measures to implement agrarian reform, which were subsequently challenged in the courts. To assist the states in pursuing this policy, Articles 31A and 31B were added to the Constitution by the Constitution (First Amendment) Act, 1951. Article 31B placed the Acts listed in the Ninth Schedule beyond the reach of judicial review, declaring that they could not be deemed void. In 1955 the Constitution (Fourth Amendment) Act modified Article 31A. Despite these amendments, various state measures continued to face legal challenges.

To preserve the validity of those measures and other statutes likely to be struck down, Parliament enacted the Constitution (Seventeenth Amendment) Act, 1964. This amendment again altered Article 31A and added forty‑four Acts to the Ninth Schedule. The petitioners in the writ petitions before the Supreme Court, together with interveners, were individuals affected by one or more of the newly added Acts. They argued that none of the Acts could be saved because the Seventeenth Amendment itself was unconstitutional.

The petitioners advanced several specific points. First, they contended that since the powers conferred by Article 226, which lies in Chapter V, Part VI of the Constitution, might be affected by the Seventeenth Amendment, the special procedure prescribed in the proviso to Article 368—requiring ratification by not less than half of the States—should apply. Second, they urged the Court to revisit the decision in Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar, reported in 1952 S.C.R. 89, which had rejected a similar argument in the context of the First Amendment. Third, they claimed that the Seventeenth Amendment dealt with land legislation, an area in which Parliament lacked the authority to legislate, rendering the amendment invalid. Fourth, they asserted that the Amendment attempted to set aside decisions of courts of competent jurisdiction, making it unconstitutional.

The Court held, speaking for the Chief Justice P. B. Gajendragadkar and Justices Wanchoo and Raghubar Dayal, that the principal portion of Article 368 together with its proviso must, when interpreted reasonably, be read in harmony so that neither provision may be unduly narrowed or enlarged. Accordingly, when a change to the fundamental rights threatens to make a substantial intrusion on the High Court’s jurisdiction under Article 226, it becomes necessary to examine whether the proviso to Article 368 is attracted by such a circumstance. Where the impact on Article 226 is only indirect, incidental, or of a trivial magnitude, the proviso need not apply. The method for resolving this issue, the Court explained, is to determine the pith and substance of the statute that is being challenged. Applying that test, the Court found that the Constitution (Seventeenth Amendment) Act amends the fundamental rights solely for the purpose of removing obstacles to the achievement of a socio‑economic policy, and that its effect on Article 226 is merely incidental and insignificant. Consequently, the Amendment falls within the substantive part of Article 368 and is not subject to the special procedural requirements of the proviso. [940 D‑E; 941 B‑E; 944 D‑F]

Regarding the petitioners’ arguments, the Court observed that there was no justification for reopening the earlier decision in Shankari Prasad. While acknowledging that the Constitution is an organic document meant to guide the resolution of evolving problems, the Court stressed that it must be cautious before overturning its own precedent lightly. The appropriate test, the Court said, is whether it is absolutely essential to revisit a question that has already been decided. This test depends on the nature of the alleged infirmity in the prior judgment, the significance of that infirmity for the public good, and the strength of the reasons presented for a contrary view. The Court warned that accepting the petitioners’ contention would inevitably jeopardise the constitutional amendments of 1951 and 1955 as well as a large body of decisions concerning the validity of statutes placed in the Ninth Schedule. [947 G‑H; 948 E‑H; 949 A‑B] The Court further noted that Parliament, in enacting the impugned Amendment, was not creating new land legislation but was merely validating land legislation that had already been passed by the State Legislatures. [945 C] Moreover, the power granted to Parliament by Article 368 may be exercised prospectively or retrospectively, allowing Parliament to validate laws that courts have previously declared invalid. [945 E‑F] Finally, the Court held that the authority conferred by Article 368 includes the power to remove the fundamental rights guaranteed by Part III, encompassing powers of modification, alteration, or even amendment that renders those provisions inapplicable in specific cases, and that this amendment power is extremely wide and cannot be narrowly confined.

In this passage the Court explained that the scope of the power to amend the Constitution cannot be limited by a narrow dictionary definition of the word “amend”. The Court said that the phrase “amendment of the Constitution” plainly and unambiguously denotes amendment of every provision of the Constitution. The language employed in the proviso, the Court observed, unmistakably shows that the substantive part of Article 368 applies to all the provisions of the Constitution [946 F; 947 A‑B; 951 B]. The Court further held that the word “law” in Article 13(2) does not encompass a law that Parliament enacts by virtue of its constituent power to amend the Constitution. The Court reasoned that, had the drafters intended that any future amendment affecting fundamental rights should be subject to Article 13(2), they would have expressly included such a limitation. Accordingly, it would be unreasonable to assume that the fundamental rights placed in Part III were meant to be final, immutable and beyond the reach of any later amendment. The Court added that the drafters could not have foreseen that the socioeconomic challenges confronting legislatures would remain static; concepts of public interest and other considerations were expected to evolve. Accordingly, the Court concluded that the drafters must have intended Parliament to possess the competence to amend those rights so as to meet emerging problems. Moreover, the Court stated that the fundamental rights guaranteed by Part III were not intended to be eternal or beyond the ambit of Article 368. Even if Article 368 originally omitted a power to amend fundamental rights, Parliament could, by a suitable amendment of Article 368 itself, acquire that power [951 F‑H; 954 F‑H; 955 E‑G].

The Court then turned to the relationship between Article 226 and Article 32 and the proviso to Article 368. It observed that Article 226, which gives the High Courts the authority to issue writs, falls within the proviso to Article 368, whereas Article 32, a guaranteed fundamental right that enables a citizen to approach the Supreme Court for the issuance of writs, falls within the main part of the article. The Court suggested that Parliament might consider whether the apparent anomaly created by the different modes of amendment prescribed in Article 368 for Articles 226 and 32 should be remedied by placing Part III itself within the proviso. The Court cited the decision in Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar, [1952] S.C.R. 89, which it followed. It also referred to A. K. Gopalan v. State of Madras, [1950] S.C.R. 88, and In re: The Delhi Laws Act, [1951] S.C.R. 747. Finally, the Court rejected the argument that because the impugned Act amends only Articles 31A and 31B and adds several statutes to the Ninth Schedule, it does not affect the provisions of Part III. Consequently, the Court held that the Act nevertheless falls within the scope of the proviso to Article 368. The Court noted that if Parliament had believed that a cumbersome process of amending each relevant article in Part III could be avoided by simply adding Articles 31A and 31B, then Parliament’s action in

In the year 1951, a legitimate foundation was established that permitted further constitutional amendments in the years 1955 and 1964, as noted in the record at paragraph 946 B‑E. The Court observed that the inclusion of certain Acts in the Ninth Schedule, undertaken with the intention of conferring validity upon those Acts, did not extinguish the authority of the legislatures that originally enacted them to repeal or modify those Acts. Moreover, the Court clarified that if a legislature were to amend any provision of an Act that had been placed in the Ninth Schedule, the amended provision would no longer enjoy the shield of Article 31B; consequently, its validity would be subject to substantive examination on its merits, as indicated in paragraph 956 A‑C. The observations were made by Justices Hidayatullah and Mudholkar. The Court then posed two questions for consideration. First, it asked whether the term “law” in Article 13(2) of the Constitution excludes an Act of Parliament that effects a constitutional amendment, with reference to the material at paragraphs 959 E‑F and 968 G. Second, it queried whether Parliament possessed the competence to make any amendment whatsoever to Part III of the Constitution, as cited in paragraphs 961 F‑G and 968 G, a point raised by Justice Mudholkar. The Court further explained that an amendment enacted under the primary clause of Article 368 could be invalidated on grounds such as the removal of the jurisdiction of the High Courts under Article 226 or of the Supreme Court under Article 136, or if the amendment substantially, albeit indirectly, curtailed the jurisdiction of those courts without resort to the proviso to Article 368. It added that it might be necessary to consider whether such an amendment represented a colourable exercise of parliamentary power, as discussed in paragraph 969 D‑F. The Court noted that the challenge to the Seventeenth Amendment Act rested on arguments largely identical to those presented and rejected in the earlier decision of Sankari Prasad Singh Deo v. Union of India and State of Bihar, reported in 1952 S.C.R. 89, together with some additional, unsubstantial grounds. Consequently, the petitioners had failed to establish a case either for revisiting that earlier decision or for striking down the Seventeenth Amendment, as recorded in paragraph 963 F‑G. Nonetheless, the Court identified several issues that had not been addressed in the Sankari Prasad case and therefore warranted further examination. The first issue asked whether legislation that amends a constitutional provision ceases to be “law” within the meaning of Article 13(2) merely because it must be passed by a special majority, referenced in paragraph 964 B‑C. The second issue considered whether, when a party challenges a law on the basis that no constitutional amendment was actually made or that the amendment was invalid, the Court has the duty and authority to assess the question and pronounce a decision, since this mirrors the Court’s competence to adjudicate any other law, as indicated in paragraph 964 F. The third issue, cited at paragraph 936, questioned whether the proposition in A. K. Gopalan v. State of Madras, 1950 S.C.R. 88, that fundamental rights represent the minimum rights reserved by the people for themselves and are therefore unalterable, conflicts with the statement in In re Delhi Laws Act, 1912, 1951 S.C.R. 747, which affirmed Parliament’s plenary legislative powers.

The Court first identified a series of unresolved issues that had not been examined in the earlier case. The first issue concerned whether a law that amends a constitutional provision ceases to be “law” within the meaning of Article 13(2) merely because it requires passage by a special majority, as discussed in the Laws Act, 1912 (1951) S.C.R. 747, which affirmed Parliament’s plenary legislative powers. The second issue asked whether, when a challenge is raised on the ground that no amendment to the Constitution was actually made or that an amendment is invalid, the Court has the duty and authority to examine and pronounce on that question, just as it would with any other law. The third issue examined whether the observation in A. K. Gopalan v. State of Madras that fundamental rights are the minimum rights reserved by the people and therefore immutable is inconsistent with the statement in In re Delhi Laws Act, 1912 (1951) S.C.R. 747 regarding Parliament’s comprehensive legislative competence. The fourth issue considered whether altering the basic features of the Constitution should be treated merely as an amendment or whether it amounts to rewriting a portion of the Constitution, and, if it is the latter, whether such a change falls within the scope of Article 368. The fifth issue explored, assuming that Parliament could amend Part III of the Constitution and thus was competent to enact Articles 31A and 31B and to modify the definition of “estate,” whether Parliament could thereby validate a State law dealing with land. The sixth issue questioned whether Parliament could extend its reach as it did when it enacted the First Amendment and added the Ninth Schedule, and subsequently added forty‑four more agrarian laws, or whether Parliament was incompetent to go beyond enacting Article 31A in 1950 and later amending the definition of “estate.” The Court then set out the original jurisdiction of the matter, noting that writ petitions numbered 31, 50, 52, 54, 81 and 82 of 1964 were filed under Article 32 of the Constitution for the enforcement of Fundamental Rights. Counsel for the petitioners in writ petitions 31 and 52 of 1964 was R. Gopalakrishnan; the Attorney‑General, C. K. Daphtary, and R. H. Dhebar, represented the Union of India; and the Advocate‑General of the State of Rajasthan, G. C. Kasliwal, together with K. K. Jain (for writ petition 31 only) and R. N. Sachthey (for the respondent), appeared for the State. Additional counsel included M. C. Setalvad, J. B. Dadachanji, O. C. Mathur and Ravinder Narain for intervenor 1, and G. S. Pathak, J. B. Dadachanji, O. C. Mathur and Ravinder Narain for intervenor 2. For writ petition 50 of 1964, Dipak Dutta Chaudhuri and A. K. Nag represented the petitioners, while B. K. Khanna and R. N. Sachthey acted for the respondent. In writ petition 54 of 1964, S. K. Mehta and K. L. Mehta appeared for the petitioners, with B. K. Khanna and R. N. Sachthey for the respondents. For writ petitions 81 and 82 of 1964, R. V. S. Mani represented the petitioners, and C. K. Daphtary, Attorney‑General, together with B. Sen and R. H. Dhebar (for petition 81) and R. K. P. Shankardass and R. H. Dhebar (for petition 82) appeared for respondent 1. Counsel for the State of Madras included N. Krishnaswamy Reddy, Advocate‑General, with A. Ranganadham Chetty and A. V. Rangam; K. S. Chawla and R. V. S. Mani acted for intervenor 3. The judgment was delivered by Chief Justice P. B. Gajendragadkar, joined by Justices K., N. Wanchoo and Raghubar Dayal, while Justices M. Hidayatullah and J. R. Mudholkar delivered separate opinions. Chief Justice Gajendragadkar noted that the six writ petitions sought to challenge the constitutionality of the Constitution (Seventeenth Amendment) Act, 1964, asserting that the petitioners were affected by one of the statutes placed in the Ninth Schedule by the impugned amendment, and therefore contended that if the amendment were invalid, the statutes impacting them could not be saved.

In this matter the petitioners argued that, because the constitutional amendment under review added certain statutes to the Ninth Schedule, the amendment itself must be declared void, and consequently the statutes that were placed in the Ninth Schedule by that amendment could not retain any legal force. Several other persons who were likewise affected by other statutes incorporated into the Ninth Schedule by the same amendment intervened during the hearing of the writ petitions and supported the petitioners’ claim that the amendment was invalid. The various points raised in the proceedings were set out in detail before the Court by counsel for the intervenors and by counsel for the petitioners, and the Attorney General was also heard in response. The amendment that is the subject of the challenge consists of three sections. The first section merely provides the short title of the amendment. Section 2(i) inserts a further proviso after the existing proviso in clause (1) of Article 31A. The newly added proviso states: “Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.” Section 2(ii) replaces sub‑clause (a) of clause (2) of Article 31A with a new sub‑clause that reads: “(a) the expression ‘estate’ shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include— (i) any jagir, inam or muafi or other similar grant and, in the States of Madras and Kerala, any janmam, right; (ii) any land held under ryotwari settlement; (iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans.” Section 3 amends the Ninth Schedule by inserting forty‑four additional entries. Having described the content of the impugned amendment, the Court noted that deciding its validity required an examination of Article 368 of the Constitution, since the principal dispute in the writ petitions turned on the proper scope and effect of that article. The Court then proceeded to recite Article 368, which provides that an amendment of the Constitution may be initiated only by the introduction of a Bill for that purpose in either House of Parliament, and sets out the majority and ratification requirements for such amendments.

Parliament may introduce a Bill for the purpose of amending the Constitution, and the Bill must be 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 who are present and voting. Once the Bill satisfies those voting thresholds, it shall be presented to the President for his assent, and when the President gives his assent the Constitution shall stand amended in accordance with the terms of the Bill. However, a proviso follows this general rule. The proviso provides that if the amendment seeks to make any change in (a) Article 54, Article 55, Article 73, Article 162 or Article 241; or (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter 1 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 Article 368 itself, then the amendment must also be ratified by the Legislatures of not less than one‑half of the States. The ratification is to be effected by resolutions passed by those State Legislatures before the Bill making provision for such an amendment is presented to the President for assent.

The Court observed that the broad scheme of Article 368 is that, when Parliament intends to amend any constitutional provision that is not covered by the proviso, the procedure set out in the main part of the Article alone must be followed. Accordingly, the Bill introduced for the purpose of making the amendment in question must be 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 present and voting. This dual requirement ensures that a constitutional amendment receives substantial support from members of both Houses, which is why the Constitution prescribes a two‑fold voting threshold. After the Bill has been passed in the manner described, it must be presented to the President for his assent, and upon the President’s assent the Constitution becomes amended according to the Bill’s terms. This explains the position applicable to amendments that do not fall within the proviso. Conversely, where Parliament intends to amend any provision listed in clauses (a) to (e) of the proviso, an additional condition must be satisfied before the Bill can be presented to the President. Such a Bill must be ratified by the Legislatures of not less than one‑half of the States through resolutions passed by those Legislatures. In other words, for the Articles covered by the proviso, the further safeguard is that the proposed amendment must obtain the approval of the Legislatures of at least half of the States that constitute the Union of India, each State doing so by a majority vote.

In this case, the Court observed that the fundamental rights set out in Part III of the Constitution are expressly outside the scope of the proviso that follows Article 368. Consequently, when Parliament wishes to alter any of the provisions enumerated in Articles 12 through 35, which lie within Part III, Parliament is not required to invoke the proviso or to comply with the additional procedural steps that the proviso imposes. Up to this point there is no difficulty in the Court’s analysis. Nevertheless, the Court considered that a proper understanding of the reach of Article 368 must also keep in mind that Article 226, located in Chapter V of Part VI, is one of the constitutional provisions listed in clause (b) of the proviso. Accordingly, if Parliament intends to amend the language of Article 226, the legislation proposing such amendment must satisfy the procedural requirements laid down in the proviso. The specific question presented to the Court was whether a different requirement would arise when Parliament seeks to amend a provision that lies within Part III, but where the effect of that amendment is likely to modify the powers that Article 226 confers on the High Courts. The petitioners argued that because the proposed amendment to Part III would probably affect the jurisdiction granted by Article 226, the bill effecting that amendment should be subject to the proviso, and because the impugned Act had not followed the procedural safeguards of the proviso, the Act should be declared invalid. That contention led the Court to examine how the provisions of Article 368 should be interpreted and how the substantive clause of Article 368 relates to its proviso. The Court held that both parts of Article 368 must be read in a harmonious manner, meaning that the scope and impact of each part should not be unduly narrowed or expanded beyond what the framers intended. The petitioners further submitted that any alteration of the fundamental rights in Part III would inevitably influence the authority of the High Courts under Article 226, and therefore the bill effecting such alteration could not fall outside the ambit of the proviso; otherwise the purpose of excluding Part III from the proviso would be nullified. The Court noted that the exclusion of Part III from the proviso suggests that the Constitution‑makers intended amendments to fundamental rights to be dealt with solely under the main text of Article 368, without the additional procedural requirements of the proviso. It was observed that the framers may not have foreseen a large number of future amendments to the fundamental rights guaranteed by Part III. Nevertheless, the Court concluded that, as a matter of statutory construction, Article 368 clearly authorises amendment of the provisions contained in Part III without imposing on Parliament the additional obligation to follow the procedure prescribed by the proviso.

The Court observed that the Constitution required the adoption of the procedure prescribed by the proviso. It noted that, although an amendment of the fundamental rights could reduce the scope within which the powers conferred by Article 226 operate, the Constitution‑makers appeared to hold the view that such a diminution of the High Courts’ jurisdiction would not automatically bring the amendment within the ambit of the proviso. The Court further explained that if the substantive portion of Article 368 were interpreted in a very liberal and generous manner, and if it were held that even a substantial modification of the fundamental rights—one that created a serious and considerable encroachment on the powers of the High Courts under Article 226—could be effected without invoking the proviso, then clause (b) of the proviso would be stripped of its substantive meaning. In other words, while construing both parts of Article 368, the rule of harmonious construction mandates that, when the direct effect of an amendment to the fundamental rights is to make a significant intrusion into the High Courts’ powers under Article 226, it becomes necessary to examine whether the proviso should apply to that situation. Conversely, if the impact of the amendment on the High Courts’ powers under Article 226 is indirect, merely incidental, or otherwise trivial, the Court held that the proviso might not be triggered. The proviso would, however, apply where the amendment in question aims to bring about any change, inter alia, in Article 226, and the pertinent enquiry would be whether the amendment seeks to alter the provisions of Article 226. The answer to that enquiry, the Court said, depends upon the actual effect of the amendment on the fundamental rights. In addressing constitutional questions of this nature, the Court noted that courts generally employ the “pith and substance” test. It cited the decision in Attorney‑General for Ontario v. Reciprocal Insurers and others (1), wherein the Privy Council examined the validity of the Reciprocal Insurance Act, 1922 (12 & 13 Geo. 5, Ont., c. 62) and section 508c added to the Criminal Code of Canada by sections 7 & 8 Geo. 5, c. 29 Dom. The Court quoted Mr Justice Duff, speaking for the Privy Council, who observed that in such an inquiry “it has been formally laid down in judgments of this Board, that in such an inquiry the Courts must ascertain the ‘true nature and character’ of the enactment: Citizens’ Insurance Co. v. Parsons (1); its ‘pith and substance’: Union Colliery Co. v. Bryden (3); and it is the result of this investigation, not the form alone, which the statute may have assumed under the hand of the draughtsman, that will determine within which of the categories of subject matters mentioned in sections 91 and 92 the legislation falls; and for this purpose the legislation must be …”.

The Court observed that the impugned enactment must be examined in its whole, as emphasized in the decision of Great West Saddlery Co. v. The King (4). The Court noted that it was unnecessary to cite a large number of authorities to support the principle that, when assessing the constitutional validity of a statute, the enquiry must focus on the pith and substance of that statute. This principle, the Court explained, is firmly established by earlier decisions of this Court that have consistently endorsed the view expressed by Justice Duff, which was previously cited. The Court then turned to the question of what the pith and substance of the impugned Act actually is. To answer that, it found it essential to recall briefly the legislative history of Articles 31A and 31B of the Constitution.

Articles 31A and 31B were inserted into the Constitution with retrospective operation by Section 4 of the Constitution (First Amendment) Act, 1951. It was widely recognised that their insertion became necessary because several states had enacted measures to implement agrarian‑reform policies endorsed by the ruling party, and those measures were being seriously challenged in the courts on the ground that they violated the fundamental rights guaranteed by Part III of the Constitution. Such legislations had been passed in the states of Bihar, Uttar Pradesh and Madhya Pradesh, and each of those statutes was contested in the respective High Courts. The Patna High Court declared the Bihar legislation unconstitutional, whereas the Allahabad and Nagpur High Courts upheld the corresponding statutes of Uttar Pradesh and Madhya Pradesh. The decisions in Kameshwar v. State of Bihar (1) and Surya Pal v. U. P. Government (1) were consequently appealed to this Court by special leave. Simultaneously, other zamindars filed petitions under Article 32 of the Constitution seeking determination of the same constitutional questions. Observing the likely delay that would result from continuing the litigation before this Court, Parliament decided to intervene and legislatively resolve the controversy. It did so by amending the Constitution to include Articles 31A and 31B, which was the first step taken by Parliament to facilitate agrarian‑reform legislation. A further step was taken in 1955 when Parliament amended Article 31A by the Constitution (Fourth Amendment) Act, 1955. The purpose of that amendment was to broaden the scope of agrarian reform and to grant the statutes enacted under that programme immunity from attacks on the ground that they infringed the fundamental rights of citizens, as reflected in the rulings cited at (1) A.I.R. 1951 Pat. 91 and (2) A.I.R. 1951 AU. 674. In other words, the amendment sought to protect such legislation from constitutional challenges.

The second amendment protected legislative measures concerning certain agrarian and social welfare statutes that impacted the proprietary rights of some citizens. Parliament enacted the second amendment in response to the earlier amendment that added Articles 31A and 31B to the Constitution. When the first amendment was adopted, Article 31B expressly declared that none of the Acts and Regulations listed in the Ninth Schedule could be considered void. It also provided that no provision of those Acts could be void on the ground that they conflicted with or abridged the rights enumerated in Part Three of the Constitution. Additionally, Article 31B stated that despite any judgment, decree, or order of any court or tribunal, each of the listed Acts would continue in force. Such Acts could be repealed or amended only by a competent legislature. At that stage, nineteen Acts were enumerated in Schedule Nine, and those Acts thereby received effective validation. The Amendment Act of 1955 added one more Act to the Schedule, raising the total validated Acts to twenty. Nevertheless, despite these validations, several legislative measures enacted by various States to implement the agrarian policy of the incumbent party faced judicial challenges. For example, in Karimbil Kunhikoman v. State of Kerala (1), writ petitions under Article 32 questioned the Kerala Agrarian Relations Act, Fourth of 1961. The majority of the Court held that the entire Kerala Agrarian Relations Act was unconstitutional, and the Court announced this decision on December 5, 1961. In A. P. Krishnaswami Naidu etc. v. State of Madras (2), the constitutionality of the Madras Land Reforms (Fixation of Ceiling on Land) Act, Number 58 of 1961, was contested. By the Court’s judgment delivered on March 9, 1964, the Court declared the whole Act invalid. Similar rulings declared the Rajasthan Tenancy Act of 1955 and the Maharashtra Agricultural Lands (Ceiling and Holdings) Act of 1961 invalid. Consequently, Parliament considered it necessary to amend Article 31B again in order to preserve the validity of those Acts that had been struck down. Parliament also aimed to shield similar statutes from future challenges. To achieve that purpose, the impugned Act, by inserting section three, added forty‑four Acts to the Ninth Schedule. If the impugned Act and its amendment to the Schedule are upheld, those forty‑four Acts would be treated as valid law. Thus, the origin of the parliamentary amendments made in 1951, which introduced Articles 31A and 31B, was to assist State Legislatures in giving effect to economic policy objectives.

In this case, the Court observed that the legislation under review was enacted to further a policy of agrarian reform that the governing party regarded as essential for the nation. The same purpose had motivated the second amendment made by Parliament in 1955, and the Court noted that the amendment introduced by the impugned Act pursued an identical objective. Parliament intended that a comprehensive programme of agrarian reform be implemented for the benefit of a large portion of the Indian population residing in villages, whose economic well‑being was closely linked to progressive agricultural policies. Applying the pith‑and‑substance test to the amendment, the Court found that Parliament’s sole aim was to modify fundamental rights in order to eliminate any obstacle to the achievement of this socioeconomic agenda. Consequently, any impact of the amendment on the jurisdiction of the High Courts under Article 226 was deemed merely incidental and of negligible significance. The Court emphasized that the impugned Act did not seek to alter the provisions of Article 226, nor could it be said to do so in any direct or material way. For this reason, the contention that the Act fell within the proviso of the relevant constitutional provision could not be sustained. The Act’s purpose was to amend the articles in Part III that confer fundamental rights, placing it squarely within the substantive field of Article 368 and outside the scope of clause (b) of the proviso. The Court further noted that if the amendment’s effect on Article 226 were direct, substantial, and significant, different considerations might arise; however, in the present circumstances there was no basis to entertain such considerations. Accordingly, the Court rejected the principal challenge raised by the petitioners and intervenors to the validity of the impugned Act.

The Court then addressed the argument that the true purpose of the impugned Act was to legislate on matters of land, a subject that, according to the challengers, fell exclusively within the competence of State Legislatures under Entry 18 of List II. The challengers contended that because only State Legislatures could make laws concerning land, Parliament lacked the authority to enact the impugned Act, asserting that the Act effectively constituted land legislation. This line of reasoning was restated in a different form, invoking Articles 245 and 246 of the Constitution to claim that Parliament possessed no power to legislate on land matters and therefore the Act was invalid. The Court found this argument to be misguided. It clarified that the impugned Act did not aim to create new land law; rather, its purpose was to protect and validate agrarian reform measures already enacted by the various State Legislatures by shielding them from attacks based on alleged violations of fundamental rights. Thus, Parliament was not exercising a legislative power over land per se, but was providing a constitutional safeguard for state‑enacted land reforms. Consequently, the contention that the Act was an impermissible exercise of parliamentary competence was dismissed as fundamentally incorrect.

In addressing the contention that the impugned Act should be struck down because it allegedly amounts to land legislation, the Court applied the pith‑and‑substance test. The Court observed that the true purpose of the Act was not to enact new provisions concerning land, but to protect and give effect to agrarian reform measures that had already been enacted by various State Legislatures. By granting those State laws immunity from challenges based on alleged violations of fundamental rights, Parliament was merely validating legislation that existed, rather than creating fresh land law. The argument that the Act, in substance, seeks to overturn judgments of competent courts concerning the invalidity of certain Acts placed in the Ninth Schedule was also rejected as lacking merit. The Court noted that legislative authority over subjects allocated to different legislatures may be exercised both prospectively and retrospectively, and that the constituent power vested in Parliament by Article 368 may likewise be exercised in either temporal direction. It further explained that legislatures have, on several occasions, found it necessary to validate statutes that courts had declared invalid, and therefore they must include provisions that allow such validation to operate notwithstanding any contrary judicial decree, order, or judgment. Consequently, the suggestion that the retrospective nature of the amendment renders the Act constitutionally void was deemed untenable.

The Court then considered the argument that the proviso’s operative words should determine whether the impugned Act falls within its scope. The proviso, the Court explained, applies where a bill seeks to amend any of the articles listed in clauses (a) to (e). The contention that a proper reading of clauses (b) and (c) demonstrates that the Act merely aims to amend the provisions of Article 226 was found to be unconvincing. That line of reasoning presupposed that the legislative mechanism employed by Parliament in passing the Act introduced a defect, and it further assumed that Parliament could have opted to amend the various articles of Part III, such as Articles 14 and 19, thereby rendering the Act constitutionally valid. However, the Court observed that the impugned Act exclusively amends Articles 31A and 31B and adds several statutes to the Ninth Schedule; it does not alter any provision of Part III. In doing so, the Act creates an independent provision, and that, it is said, must

In the present matter the Court observed that the argument seeking to place the impugned legislation within the scope of the proviso could not succeed because the legislation plainly intends to amend Article 31A, and Article 31A is itself part of Part III of the Constitution. The Court explained that even if Parliament had considered that it would be more convenient to add Articles 31A and 31B rather than follow the lengthier procedure of amending each individual article in Part III, the method chosen in 1951 by enacting the Constitution (First Amendment) Act provided a legitimate basis for the subsequent amendments made in 1955 and now in 1964. Consequently, although the submissions advanced by the petitioners were expressed in various forms, they all ultimately required the Court to decide whether the impugned Act fell within the ambit of the proviso. Applying the doctrine of pith and substance, the Court concluded that the answer must be against the petitioners. The petitioners further contended that the power to amend granted by Article 368 does not extend to removing the fundamental rights guaranteed by Part III, asserting that the material provisions of the impugned Act effectively deprive a citizen of the right to challenge the validity of statutes placed in the Ninth Schedule, thereby extinguishing the relevant fundamental rights. The Court found no merit in this contention. While acknowledging that the ordinary dictionary meaning of “amend” is to correct or reform, the Court held that reliance on that narrow definition was inappropriate in this constitutional context. Article 368 authorises amendment of the Constitution, and constitutional amendment may, in appropriate cases, involve deletion of one or more provisions and substitution of new ones. Thus, amendment under Article 368 can encompass modification, alteration, or even rendering certain provisions inapplicable in specified circumstances. The power to amend is therefore expansive and cannot be confined to the literal dictionary meaning of the term. The Court recalled that the validity of the Constitution (First Amendment) Act had been examined in Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar, where the amendment was challenged on several grounds, including the insertion of Articles 31A and 31B. The Court’s earlier decision in that case was noted as relevant to the present analysis.

In that case, the Court examined the contention that Articles 31A and 31B attempted to modify Articles 132 and 136 in Chapter IV of Part V and Article 226 in Chapter V of Part VI, and therefore required ratification under clause (b) of the proviso to Article 368. The Court rejected this contention. Justice Patanjali Sastri, speaking for a unanimous Court, observed that the said Articles did not, in either terms or effect, seek to change Article 226 or Articles 132 and 136. He added that it was not correct to say that the powers of the High Courts under Article 226 to issue writs for the enforcement of any rights conferred by Part HI, or the powers of the Supreme Court under Articles 132 and 136 to entertain appeals from orders issuing or refusing to issue such writs, were in any way affected. In the Court’s view, those powers remained exactly as they were before; only a particular class of cases had been excluded from the purview of Part III. The fact that the courts could not exercise their powers with respect to that class of cases did not demonstrate any curtailment of judicial power; it merely meant that a specific area in which the powers could have been exercised had been withdrawn. In the same manner, the Court rejected the argument that the amendments were invalid because they related to legislation on land, holding that Articles 31A and 31B were essentially constitutional amendments, and that only Parliament possessed the authority to make such amendments. Consequently, the points raised in the present proceedings were effectively decided by the decision of this Court in Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar (1). During the hearing of the writ petitions, counsel urged the Court to reconsider and review its earlier decision in Sankari Prasad’s case. The Court noted that the Constitution imposes no restriction on its power to review or depart from earlier decisions, especially when constitutional questions that significantly impact fundamental rights arise and the public interest warrants reconsideration. The Court observed that the doctrine of stare decisis may not strictly apply in such a context, and that it should not be permitted to perpetuate erroneous decisions to the detriment of general welfare. Nevertheless, the Court emphasized that the normal principle of finality of its judgments cannot be ignored, and unless there are substantial and compelling reasons, it should be cautious in doubting the correctness of its previous decisions.

The Court observed that it is universally recognized that many constitutional questions presented before it involve complex and difficult issues, and that for many such questions two opposing views are logically possible. Consequently, when the Court has, after careful and mature deliberation, adopted one particular view, the mere fact that another Bench may be inclined to adopt a different perspective does not, by itself, justify revisiting or overturning the earlier decision. The Court explained that interpreting constitutional provisions cannot be accomplished solely through a literal reading of the words employed in those provisions. Rather, the Constitution is an organic document designed to guide the resolution of evolving problems that the Court may encounter over time. In a progressive and dynamic society, the nature and shape of such problems inevitably change, and consequently the meanings and significance of the Constitution’s words may also evolve. This fluidity makes the task of resolving constitutional issues dynamic rather than static. Nevertheless, the Court emphasized that it should be hesitant to accept suggestions that its earlier decisions be lightly reviewed or departed from. In such circumstances, the Court stated that the appropriate test is whether it is absolutely necessary and essential to reopen a question that has already been decided. The answer to that test depends on the character of any alleged infirmity in the earlier decision, the effect of that decision on the public good, and the strength and compelling nature of the considerations supporting the contrary view. The Court further noted that if the earlier decision has been followed in a large number of subsequent cases, that fact constitutes an additional factor that must be weighed. Applying this approach to the present petition, the Court remarked that accepting the petitioners’ arguments would inevitably render the constitutional amendments of 1951 and 1955 invalid, and would jeopardize numerous judgments of various High Courts that have upheld the validity of Acts placed in the Ninth Schedule since the decision in Sankari Prasad’s case. The Court considered these consequences to be both relevant and material to the petitioners’ request that the earlier case be reconsidered. Accordingly, the Court deliberately chose to address the merits of the petitioners’ contentions before revisiting the prior decision itself. After careful consideration, the Court concluded that the petitioners’ plea for reconsideration of Sankari Prasad’s case is wholly unjustified and must be rejected. The Court then indicated that it would also address another aspect of the matter, recalling that the primary issue raised in these proceedings concerns the validity of the impugned legislation.

In this case, the petitioners argued that the impugned Act was void because the procedure required by the proviso to Article 368 had not been observed before the Bill was presented to the President for assent, even though the Act fell within the category of legislation covered by that proviso. The Court noted that there was no dispute that Article 368 authorises Parliament to amend any provision of the Constitution, including the provisions relating to fundamental rights contained in Part III. The principal contention of the petitioners was that, when Parliament amends the relevant constitutional provisions, it must follow the special procedure laid down in the proviso to Article 368. The Court observed, however, that in the earlier decision known as Sankari Prasad’s case, another line of argument had been raised against the Constitution (First Amendment) Act, an argument that had not been put forward in the present proceedings but which the Court considered necessary to address in order to give a complete answer.

The additional argument advanced in Sankari Prasad’s case was that, although Parliament may amend the provisions relating to fundamental rights in Part III, any such amendment must be examined in the light of Article 13(2) of the Constitution. The petitioners in that case maintained that the term “law” to which Article 13(2) applies would encompass a law enacted by Parliament pursuant to its constituent power to amend the Constitution, and therefore the validity of the amendment itself would have to be tested under Article 13(2). Article 13(2) declares that the State may not make any law that takes away or abridges the rights conferred by Part III, and that any law made in contravention of this clause shall, to the extent of the contravention, be void. Consequently, the challengers contended that if the Constitution (First Amendment) Act curtailed or removed any fundamental right, it would be void under Article 13(2).

The Court rejected this line of reasoning. It held that the word “law” used in Article 13 must be interpreted to refer to rules or regulations made in the exercise of ordinary legislative authority, and not to amendments to the Constitution made under the constituent power. Accordingly, Article 13(2) does not apply to amendments effected under Article 368. The judgment recorded that Justice Patanjali Sastri, speaking for the Court, described the argument concerning the applicability of Article 13(2) to constitutional amendment Acts as attractive, examined it in detail, and ultimately dismissed it. The Court concluded that the distinction between ordinary legislation and constitutional amendment is clear, and that the prohibition in Article 13(2) does not extend to amendments made by the procedure laid down in Article 368.

The judgment observed that certain rights are described as “eternal and inviolate,” and for illustration it referred to Article 11 of the Japanese Constitution and Article 5 of the American Federal Constitution. It also noted that the word “law” in its literal sense may include constitutional law, but it emphasized a clear demarcation between ordinary law made by legislative power and constitutional law made by constituent power. The Court then examined the scheme of the relevant constitutional provisions and concluded that, although Articles 13 and 368 are broadly worded, a harmonious construction requires that the term “law” in Article 13 exclude law enacted under the constituent power. The judgment expressed full concurrence with the decision in Sankari Prasad’s case and explained that it was necessary to set out reasons for agreeing with that conclusion, even though the effectiveness of the conclusion had not been challenged during the arguments. The Court added that, had it encountered genuine difficulty in accepting this part of the conclusion, it would have seriously considered referring the matter to a larger Bench for further examination. The citation to the earlier decision is recorded as (1) [1952] S.C.R. 89. The first issue to be addressed concerns the construction of Article 368 itself, which forms Part XX of the Constitution and is described as dealing solely with constitutional amendment. Article 368 prescribes the procedure for amendment and begins by stating that an amendment of the Constitution may be initiated in the manner indicated therein. The Court held that the expression “amendment of the Constitution” plainly and unambiguously means amendment of all provisions of the Constitution, not merely the procedural mechanics. It would be unreasonable to suggest that Article 368 only provides the mechanics of amendment without indicating which provisions may be altered and which may not. Such a restrictive interpretation of the substantive part of Article 368 would be clearly untenable. Moreover, the wording of the proviso unambiguously indicates that the substantive portion of the article applies to every provision of the Constitution. On that basic assumption, the proviso prescribes a specific procedure for amending the articles listed in clauses (a) to (e). Consequently, the Court expressed no hesitation in holding that when Article 368 confers upon Parliament the power to amend the Constitution, that power may be exercised over all constitutional provisions. How that power should be exercised, the judgment said, must be determined by examining whether the proposed amendment falls within the substantive part of Article 368 or triggers the provisions of the proviso.

In this case, the Court examined whether the expression “law” in Article 13(2) should be understood to include statutes that amend the Constitution under Article 368. The Court noted that Article 13(2) speaks of any law in the general sense, and if the term were read literally, a law made pursuant to the constituent power granted to Parliament could fall within its ambit. However, the Court observed that Parliament possesses a specific, unqualified and unambiguous authority to amend the Constitution, and it would therefore be unreasonable to construe the word “law” in Article 13(2) as covering Constitution‑Amendment Acts passed under Article 368. The Court further reasoned that, had the framers intended that every future amendment affecting fundamental rights be subject to Article 13(2), they would have expressly provided for such a limitation. Moreover, the Court found it highly unlikely that, when conferring the power of constitutional amendment on Parliament, the framers intended to exclude fundamental rights altogether from that comprehensive power. The Court explained that if “law” in Article 13(2) were held to include constitutional amendment statutes, then any amendment that abridges or removes a fundamental right would automatically be void, because the offending portion would be rendered invalid under Article 13(2). The Court expressed confidence that the framers could not have intended such an outcome when they incorporated Article 368 into the Constitution. While interpreting the term “law” in Article 13(2), the Court referred to the observation of Chief Justice Kania in A. K. Gopalan v. State of Madras, which stressed that the inclusion of Articles 13(1) and (2) was a matter of great caution and that, even in their absence, the Court retains the power to strike down any legislative enactment that infringes fundamental rights. The Court affirmed the paramount importance of the fundamental rights guaranteed in Part III, describing them as the very foundation and cornerstone of the democratic way of life established by the Constitution. Nonetheless, the Court posed the question of whether these rights are immutable and beyond amendment. It recalled that in A. K. Gopalan, Justice Patanjali Sastri had observed that the people of India, through the Preamble, embraced a democratic ideal that guarantees individual dignity and cherished human values, thereby empowering the legislature, the executive and the judiciary to fulfill the aspirations of the citizenry.

The Court noted that the Constitution contains powers that are absolute and that certain fundamental rights have been retained by the people and placed above delegated authority, much like the American model described on page 198. This observation might initially suggest that the authority to amend those fundamental rights resides not with Parliament but directly with the people of India. However, the Court emphasized that the same learned Judge, when addressing the issue more fully in In re The Delhi Laws Act, 1912, unequivocally held that it is beyond doubt that the Indian Legislature, while acting within the limits of its legislative competence, possesses plenary legislative power comparable to that of the British Parliament. The Court further observed that no constitutional restriction on the delegation of legislative power to a subordinate body can be found in the Indian Councils Act 1861, the Government of India Act 1935, or the Constitution of 1950, as cited in [1950] S.C.R. 88 at p. 100 and [1951] S.C.R. 747 at pp. 883‑84. The suggestion that legislatures, including Parliament, are merely delegates of the people in whom sovereignty resides was rejected. The learned Judge remarked that the maxim “delegates ten protest delegate” is not part of Indian constitutional law and carries no more weight than a political precept; consequently, courts cannot declare an Act of Parliament unconstitutional merely because Parliament chooses to entrust its legislative power to another body, even if that delegation appears politically undesirable, provided it is constitutionally competent. Accordingly, the Court concluded that the question of Parliament’s power to amend the Constitution under Article 368 cannot be resolved on theoretical political science premises that sovereignty lies with the people and statutes are merely their delegates. Instead, the existence of the amendment power must be determined solely by whether Article 368 expressly confers it. Considerations of reasonableness, expediency, or desirability of a particular amendment are irrelevant to the construction of Article 368. The Court also pointed out that the Constitution‑makers deliberately provided that certain changes would not be treated as constitutional amendments for the purposes of Article 368. For example, Article 4(2), which concerns legislation made under Article 4(1), expressly declares that no such law shall be deemed an amendment of the Constitution under Article 368.

The Court noted that Article 4(2) provides that no law made by virtue of Article 4(1) shall be deemed to be an amendment of the Constitution for the purposes of Article 368. In a similar manner, Article 169(3) states that any law relating to the amendment of the existing legislative structure by the abolition or creation of Legislative Councils in a State shall not be deemed to be an amendment of the Constitution for the purposes of Article 368. Accordingly, the Court explained that statutes falling within the scope of Articles 4(2) and 169(3) are not required to satisfy the procedural restrictions imposed by Article 368, even though, in effect, such statutes may bring about changes to the relevant constitutional provisions.

The Court further reasoned that if the framers of the Constitution had intended to exclude fundamental rights guaranteed by Part HI entirely from the reach of Article 368, they would have inserted a specific provision to that effect. Since the Constitution contains an explicit provision that excludes certain amendments from Article 368, it is reasonable to infer that the framers would also have made a clear statement if they had meant to make all fundamental rights immutable. The Court emphasized that the language of Article 368 is clear and unambiguous, supporting this view, and that it would be unreasonable to assume that the framers intended to render fundamental rights completely untouched by constitutional amendment.

The Court reminded that fundamental rights, such as those enumerated in Article 19, are not absolute. The structure of Article 19 itself shows that the rights guaranteed by sub‑clauses (a) to (g) of clause (1) may be validly regulated in accordance with the provisions of clauses (2) to (6). Thus, the scheme of Article 19 is two‑fold: while the rights of citizens are of paramount importance, they may nevertheless be regulated to serve the general public interest or other objectives specified in clauses (2) to (6). For the purposes indicated in those clauses, even the supremacy of fundamental rights must yield to the regulation contemplated therein.

The Court observed that the framers could not have imagined the purposes for regulating fundamental rights as static and unchangeable. They must have foreseen that socioeconomic challenges confronting legislatures would evolve, and that the concepts of public interest and other considerations underlying clauses (2) to (6) might expand over time. Consequently, it is legitimate to assume that the framers recognized Parliament’s competence to amend fundamental rights in order to address problems arising from socioeconomic progress and development. On this basis, the Court concluded that, even in principle, it would be unreasonable to hold that fundamental rights are beyond the scope of amendment under Article 368.

The Court observed that the rights placed in Part III were not meant to be final, immutable provisions that could never be altered by any future amendment. To illustrate this principle, the Court referred to the Constitution (First Amendment) Act of 1951, which amended Articles 15, 19 and 31. It noted that the necessity to modify Articles 15 and 19 arose because the language of those articles could not adequately address the evolving nature of the problems they were intended to remedy, and therefore amendment was essential. The Court further explained that if the contention that fundamental rights are beyond the reach of Article 368 were correct, the amendments made by the First Amendment would have been constitutionally invalid, a conclusion the Court rejected as contrary to the true purpose and effect of Article 368. Consequently, the Court affirmed its earlier decision in the case of Sankari Prasad (1) that such an argument could not succeed.

The Court then examined the argument that the fundamental rights guaranteed by Part III are eternal, inviolate and beyond the scope of Article 368. It identified two underlying assumptions of this argument. The first assumption holds that a fair and reasonable construction of Article 368 excludes the power to amend fundamental rights from the constituent powers granted to Parliament. The Court had previously held that a reasonable construction of Article 368 does not support this assumption. The second assumption asserts that if the power to amend fundamental rights is not presently included in Article 368, it can never be included within its ambit; otherwise, the notion that fundamental rights are immutable would be unrealistic. The Court rejected this second assumption, noting that Article 368 itself is subject to amendment by Parliament, provided that clause (e) of the proviso is satisfied before any amendment to Article 368 is effected. In other words, even if the power to amend fundamental rights were not originally contained in Article 368, Parliament could acquire that power by suitably amending Article 368. Hence, the Court concluded that both assumptions supporting the claim of immutable fundamental rights are unfounded.

Finally, the Court referred to its earlier observation in Sankari Prasad (1) that the question of whether the latter part of Article 31B was too broadly expressed had not been raised before it, and therefore no opinion had been expressed. Since that issue had now been argued before the Court, it clarified that the effect of the provision under consideration would be addressed in the subsequent discussion.

In this case, the Court explained that the final clause of Article 31B leaves it to the respective state legislatures to repeal or amend any Act that has been placed in the Ninth Schedule. In other words, the fact that a law has been listed in the Ninth Schedule for the purpose of giving it protection does not remove the power of the legislature that enacted the law to later repeal or amend it. This is one direct consequence of the provision. A further inevitable consequence is that if a legislature makes any amendment to a provision contained in an Act that lies in the Ninth Schedule, that amended provision will no longer enjoy the shield of Article 31B and its validity may be examined on the merits. Before concluding the matter, the Court observed that Parliament might consider whether it would be both expedient and reasonable to include the provisions of Part III of the Constitution in the proviso to Article 368. The Court noted that it is difficult to understand why the Constitution‑makers did not place those provisions within the proviso when Article 368 was enacted. The Court referred to the decision in In re: the Berubari Union and Exchange of Enclaves (1960) 3 S.C.R. 250, where it was pointed out that an amendment of Article 1 resulting from the cession of territory to a foreign State does not trigger the safeguard in the proviso to Article 368 because neither Article 1 nor Article 3 is listed among the entrenched provisions in that proviso. The Court further observed that it was not for the judiciary to decide whether those two articles should be added to the proviso; rather, that decision rests with Parliament. Similarly, the Court found it somewhat anomalous that an amendment of the provisions contained in Article 226 falls within the ambit of the proviso, whereas an amendment of Article 32 does not. Article 226 empowers High Courts to issue certain writs, while Article 32, as a guaranteed fundamental right, permits a citizen to approach the Supreme Court for similar writs. Parliament may therefore examine whether this apparent inconsistency in the amendment procedures prescribed by Article 368 for Articles 226 and 32 should be remedied by bringing Part III itself within the proviso. If such a step were taken, difficult questions about whether amendments to Part III would substantially, directly, or materially affect the jurisdiction and powers of the High Courts under Article 226 could be readily avoided. In the result, the Court held that the impugned Act is constitutionally valid. Consequently, the petitions were dismissed and no order as to costs was made. The judgment also recorded the remarks of Hidayatullah J., who stated that he had read the judgment delivered by the Chief Justice and expressed his agreement.

In this case, the Court observed that the argument asserting that the Seventeenth Amendment required the special procedure prescribed in the proviso to Article 368 for its valid enactment had no merit. The Court explained that such a special procedure would have been necessary only if the amendment had attempted to alter Article 226. However, the amendment did not seek to change Article 226; that article remained exactly as it was before the amendment. Accordingly, the proviso to Article 368 becomes relevant solely when the text of an article is directly amended or when its scope is expressly expanded, which was not the situation here. The substance of the Seventeenth Amendment, as the Court noted, was to broaden the definition of the term ‘estate’ in Article 31‑A and to place certain statutes enacted by State Legislatures into the Ninth Schedule, thereby placing them under the protection of Article 31‑B. The statutes in question dealt with agrarian reform, and without their placement in the Ninth Schedule they could have been challenged on the basis of Articles 14, 19 or 31 of the Constitution. Some of those statutes had indeed been successfully challenged, but the amendment rendered them immune from attack under those three articles, even though Article 13 of the Constitution continued to apply. The Court then referred to the precedent set in Sri Sankari Prasad’s case, in which the Constitution (First Amendment) Act introduced Articles 31‑A, 31‑B and the Ninth Schedule. In that earlier case, the impact of the amendment on Article 226 was examined, and it was held that the amendment did not produce the effect imagined by the proviso to Article 368. The Court stated that the same reasoning, with appropriate modifications, applies to the present Seventeenth Amendment. Nevertheless, the Court expressed some hesitation in adopting a portion of the reasoning employed in Sankari Prasad’s case. It clarified that the present judgment would be delivered without relying on that particular line of reasoning. The Court briefly outlined the reasoning it found doubtful. In Sankari Prasad’s case, it had been contended that Article 13(2) placed the fundamental rights enumerated in Part III beyond the reach of Article 368 and therefore beyond Parliament’s amendment power. While that contention appeared attractive, the Court had rejected it on the basis of important considerations that led to the opposite conclusion. The Court identified two principal reasons for its rejection. First, constitutional law is distinct from ordinary municipal law, and there is no clear indication in the Constitution that fundamental rights are immune from amendment. Consequently, only the intrusion of fundamental rights by statutes that are not constitutional amendments falls within the prohibition of Article 13(2).

Clause (2) states that the State shall not make any law that takes away or abridges the rights conferred by this Part. Any law made in contravention of this rule shall, to the extent of the contravention, be declared void. Clause (3) clarifies that, unless the context requires otherwise, the word “law” includes any ordinance, order, bye‑law, rule, regulation, notification, custom or usage that possesses the force of law within the territory of India. Although the article does not provide a complete definition of “law”, it is significant that the definition does not expressly exclude constitutional amendments. The exclusion could have been made explicit by adding a phrase such as “but shall not include an amendment of the Constitution”. The intended effect is to enlarge, not to curtail, the meaning of the term. Consequently, the interpretation of Article 13 depends on how the word “law” in clause (2) is understood. If a constitutional amendment falls within the definition of “law”, then the Fundamental Rights would become immutable, echoing language from the Japanese Constitution. Under that view, Article 13 would occupy a position similar to Article 5 of the United States Federal Constitution, providing an enduring prohibition. However, a restricted interpretation of “law” prevents such an expansive reading. Some reasoning proceeds a priori without examining the actual text of the articles in Part III, which employ language of permanence. The Court expressed the view that the Constitution contains indications that must be taken into account, and promised to cite illustrative examples later. Another reason cited was that Article 368 is described as perfectly general and permits amendment of the Constitution without any exception whatsoever. Therefore, the Court held that Article 13(2) does not extend to constitutional amendments. It was observed that, had it been necessary to protect Fundamental Rights, a clear proviso in Article 368 would have unmistakably expressed that intention. The Court considered that the simplest way to achieve clarity was to state that the term “law” in Article 13 does not encompass a constitutional amendment.

The final conclusion was expressed as follows: “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 controlled and qualified by the other. Having regard to the considerations adverted to above, we are of opinion that in the context of article 13 ‘law’ must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power, with the result that article 13 (2) does not affect amendments made under article 368.” During the hearing, counsel did not rely on Article 13(2) but instead emphasized the amendment of Article 226. Mr R. V. S. Mani, however, referred to the provision that allows suspension of Fundamental Rights.

In considering the matter of fundamental rights, the Court observed that, unless a suspension is justified by an emergency, the entire Part III of the Constitution must remain unchanged; the Court specifically referred to clause (4) of Article 32 in this context. Regarding the disposal of the appealed cases, the Court indicated its view that, based on the arguments presented, it was compelled to follow the ruling in the case of Sankari Prasad, wherein the Court had held that Article 226 was not intended to be altered by the Seventeenth Amendment. However, the Court expressly clarified that this statement should not be taken to mean that the Court endorsed the proposition that the term “law” in Article 13(2) fails to govern constitutional amendments. The Court reserved its definitive opinion on that particular issue, explaining that the answer depends on the breadth accorded to the word “law” within that article. The Court noted that the prohibition contained in Article 13 may have to be interpreted in light of the various declarations made throughout Part III in order to ascertain its proper meaning.

Although the Court did not render a final judgment on the scope of “law,” it proceeded to illustrate its thinking by presenting several examples, the first of which was Article 32. The full text of Article 32 was quoted: “Remedies for enforcement of rights. (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court shall have power to issue directions or orders or writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. (3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by the Constitution.” The Court observed that, prima facie, it seemed reasonable to think that if clauses (1) and (4) of Article 32 were placed within Part XX, which deals with amendment of the Constitution, the guarantee would become absolute and could not be altered by any amendment. The Court then raised the question of whether the guarantee loses any of its force merely because the article resides in a different Part of the Constitution.

The Court emphasized that the first clause of Article 32 ensures a guaranteed remedy and that this guarantee applies equally to actions of both the legislature and the executive. It further explained that Part III consists largely of statements delineating the powers that the legislature may exercise and those it may not, and that the guarantee in Article 32 therefore covers all actions that are beyond the reach of both the legislature and the executive. The Court suggested that, if the guarantee were held to be inviolable, the assurance of a remedy would effectively make the rights “equally protected.” Turning to another important provision, the Court discussed the Preamble of the Constitution, describing it as equally vital to the nation’s political body. Referring to the decision in In re The Berubart Union and Exchange of Enclaves, the Court noted that the learned judges had held that, although the Preamble reflects the underlying intent of the Constitution‑makers, it does not form a part of the Constitution itself. The Court observed that, in one sense, the Preamble may be said not to be part of the Constitution, while in another sense it may be regarded as part of it, and that the Preamble bears a nature more akin to the American Declaration of Independence than to the preamble of the United States Constitution.

In this passage, the Court observed that the pre‑amble to the United States Constitution resembles the American Declaration of Independence dated July 4, 1776 rather than the United States Constitution’s own pre‑amble. The pre‑amble does not confer any power; instead it sets out the direction and purpose of the Constitution, a purpose that is reflected in the provisions of Parts III and IV. The Court questioned whether a two‑thirds majority in both Houses of Parliament would ever be sufficient to amend the Constitution without consulting the States, noting that such a majority is not even mentioned in the proviso to Article 368 and that it is difficult to imagine that, lacking the protection of that proviso, the amendment power would lie within the main body of Article 368. The Court then turned to Article 13(1), which declares void any law in force in the territory of India that conflicts with Part III. It asked whether Article 13 could be repealed retroactively, thereby reviving statutes that had become void, citing the case reported in [1960] 3 S.C.R. 250. The Court noted that successive amendments have produced many variations of Article 31‑A, and it considered whether Article 13 was intended to bring all existing and future laws into conformity with the basic requirements of Part III, or whether it left the door open for the Constitution’s policy to be reversed from time to time by legislation supported by a larger majority, even if not directly through constitutional amendment. The Court remarked that such amendments might be justified by the provisos in Article 19, which allow the making of laws restricting freedoms, but not by ignoring Article 13 and relying solely on Article 368. Referring to A. K. Gopalan v. State of Madras, the Court recalled that Chief Justice Kania had described the inclusion of Articles 13(1) and (2) as an expression of abundant caution, and that even without those provisions, if any fundamental right were infringed by legislation, the Court would still possess the authority to declare the offending enactment invalid. The observation was deemed unclear, yet the Court acknowledged the great purpose served by the article. It was suggested that, far from diminishing the importance of Article 13, the learned Chief Justice likely intended to emphasize the commanding position of fundamental rights, which would have the same effect even in the absence of Article 13. To argue that Article 13 was framed merely as abundant caution and serves no additional intrinsic function might, by analogy, lead one to conclude the same of Article 32(1), because the Court would fulfil its duty under Article 32(2) even without the guarantee. The Court stated that stronger reasons would be required than those offered in Sankari Prasad’s case to accept the view that fundamental rights were not truly fundamental but were intended to be amendable on the same terms as other parts of the Constitution without the concurrence of the States.

In this case the Court observed that Article 19, by its clauses numbered two to six, permits the curtailment of rights when it is in the public interest, and that this shows that Part III of the Constitution is not a fixed, unchanging portion. The Court explained that while Part III must evolve with progress, it simultaneously safeguards individual liberties. The Court further noted that virtually any reform can be introduced in a reasonable manner without destroying the guarantee of personal liberty, and even agrarian reforms could have been partially carried out without invoking Articles 31‑A and 31‑B, although such an approach would have imposed a greater cost on the public exchequer, as indicated in the cited authorities. The Court affirmed that the rights of society are placed above those of the individual, a hierarchy that it described as appropriate. However, the Court distinguished between limiting Fundamental Rights by invoking clauses two to six of Article 19 and removing or weakening those rights by a constitutional amendment, stating that the latter constitutes a different and more serious step, a point derived from the reasoning in Sankari Prasad’s case. The Court acknowledged that while such amendments may never actually occur, the possibility must be considered. The Court then turned to Article 368, observing that its wording is explicit and does not confer the power to amend “any provision” of the Constitution; the article merely outlines the method of amendment for “this Constitution” without meaning every individual article wherever it appears. The Court pointed out that the Constitution itself expresses a contrary intention in certain places expressly, referring to Articles 4, 169 and the former Article 240, and in other places by implication, referring to Article 113. Accordingly, Article 368 sets out the procedure and the necessary conditions for a valid amendment. The Court explained that the contrast between the opening part of Article 368 and its proviso does not indicate that provisions lying outside the proviso are automatically amendable. The proviso specifically excludes from Parliament’s exclusive power of amendment those provisions on which the federal structure depends, requiring not only a two‑thirds majority in Parliament but also the concurrence of a majority of the States, and it preserves the structure of the higher judiciary, which is essential to a written Constitution and to the nation’s democracy. The Court emphasised that nowhere does Article 368 state that the preamble and every single article of the Constitution may be amended by a two‑thirds majority irrespective of any entrenched language, historical significance, or sentiment. The Court further observed that Part III contains numerous guarantees that make it difficult to regard them as mere matters for alteration by a special majority. To hold otherwise would, prima facie, place the most solemn portions of the Constitution on the same footing as any ordinary provision and even on a less secure basis than the articles protected by the proviso.

In this case the Court observed that it is puzzling that Article 226 might receive some protection while Article 32 would not. The Court explained that Article 32 does not provide a defence against private conduct but rather safeguards against actions of the State, including the legislatures, as is indicated by the reference to Article 12. The Court then asked whether the legislature could remove this protection. It noted that a literal reading of Article 368 might allow such a conclusion, but the Court was not prepared to act as a mere grammarian. The Court affirmed that, as presently advised, the power to amend the Constitution should not generally be employed as a means of escaping the absolute constitutional restrictions that exist. Consequently, although the Court agreed with the proposed order, it stressed that it did not wish to be understood as having expressed a final opinion on the aspect of the case that had been highlighted.

The judgment continued with the Court noting that it had examined the opinions of the Chief Justice and of Justice Hidayatullah and agreed with their view that the writ petitions should be dismissed. The Court then turned to the various contentions raised in the earlier case of Sankari Prasad Singh De v. Union of India and State of Bihar, wherein the Constitution (First Amendment) Act, 1951 was challenged. The Court identified two issues from that case that were relevant to the present matter concerning the Constitution (Seventeenth Amendment) Act, 1964. The first issue concerned whether the amendment, insofar as it attempted to take away or abridge the rights granted by Part III of the Constitution, fell within the prohibition of Article 13(2). The second issue concerned whether Articles 31A and 31B attempted to alter Articles 132, 136 or 226, or any provisions of the Lists in the Seventh Schedule, thereby invoking the proviso to Article 368. The Court recalled that both of those issues had been rejected by this Court in the earlier decision. It further observed that the first issue was not raised before it in the present arguments, and that the attack on the Seventeenth Amendment was based solely on the second issue. Most of the grounds urged by counsel were identical to those presented in the earlier case, with only a few additional arguments. The Court, following the Chief Justice’s observation, found those additional arguments to be unsubstantial.

The Court recorded that counsel for the petitioners, Mr Mani, had attempted to persuade the Court to revisit the earlier decision on the second issue. Since no persuasive case was made for reconsideration, the Court informed counsel that it would not reconsider that decision. Noting that the Chief Justice had also addressed the first issue in his judgment and had affirmed the correctness of the earlier decision, the Court expressed, partly in line with the reasoning of Justice Hidayatullah and partly for its own reasons, that it would reserve its opinion on this question and would not regard the previous ruling as the final word. The Court then indicated that, in its view, the term “law” appearing in Article 13(2) does not necessarily exclude a constitutional amendment, setting the stage for further discussion.

In this passage the Court observed that Article 13 (2) of the Constitution does not incorporate an amendment to the Constitution, and that the Court had not taken into account certain important considerations that are relevant to this issue. The Court noted that the wording of Article 368 plainly indicates that Parliament’s action in amending the Constitution is a legislative act, similar to any other exercise of its ordinary legislative authority. The only distinction, the Court explained, is that a constitutional amendment bill must be passed by a special majority, and the discussion was limited to those amendments that do not fall within the proviso to Article 368. Because every legislative action of a legislature results in a law, the Court held that the fact that the legislation concerns an amendment of a constitutional provision does not, in any way, remove its character as law.

The Court further stated that Article 368 does not provide that, when Parliament amends the Constitution, it assumes a different capacity such as that of a constituent assembly. While acknowledging a suggestion by a fellow judge that the article might confer such a power, the Court expressed doubt about that view and, even if the power existed, declared that it would merely be an additional legislative power. The Court then contrasted the original Constitution, which can only be interpreted by a court of law and whose provisions cannot be challenged, with an amendment to the Constitution, which can be subject to judicial review. For an amendment to be regarded as part of the Constitution, the Court said, it must have become part of the Constitution both in fact and in law, and determining whether this has occurred is a question open to judicial scrutiny.

The Court emphasized that any amendment must satisfy the procedural and substantive requirements of the Constitution and must not violate any of its provisions. Consequently, when a challenge is brought before the Court on the ground that an amendment was never actually made or that it is not a valid amendment, the Court has both the duty and the authority to examine the issue and to pronounce on its validity. This, the Court observed, is precisely the same function the Court performs when the validity of any other law is contested. The Court noted that these points had not been addressed in the earlier Sankari Prasad case and that they warranted consideration.

Finally, the Court referred to observations made by the Chief Justice regarding the earlier case of A.K. Gopalan v. State of Madras, where Patanjali Sastri J. had described fundamental rights as rights reserved by the people for themselves. The Court also recalled a statement in In re The Delhi Laws Act, 1912 that Parliament, when acting within the limits of its constitutional authority, possesses plenary legislative powers.

The Court observed that Parliament, when it acts under its legislative authority, possesses plenary powers of legislation that are as extensive and of the same character as those of the British Parliament. The Court rejected the view that Parliament is merely a delegate of the people in whom sovereignty ultimately resides. The Court then questioned whether the learned Judge had departed from his earlier opinion. It noted that in the case of Sankari Prasad (2) the Judge did not refer back to his previous observations, even though those observations required explanation. However, in the Delhi Laws Act case (1) the Judge unequivocally affirmed that Parliament enjoys plenary legislative powers. The Court explained that while Parliament’s plenary powers are subject to the circumscribed limits of its legislative competence, it is well‑accepted that Parliament cannot be regarded as a delegate of the people while exercising those powers. The Court emphasized a further point that, unlike the British Parliament, the Indian Parliament, like every other organ of the State, may function only within the boundaries of the powers conferred upon it by the Constitution. This limitation also applies when the Parliament, in the exercise of its legislative authority, enacts an amendment to the Constitution or to any of its provisions. Consequently, the Court found that the earlier observation of Patanjali Sastri J. is not inconsistent with his later statements in the Delhi Laws Act case (1). The Court stressed that this aspect of the matter warrants additional consideration, especially because the same learned Judge did not address those observations in Sankari Prasad (2).

The Court further noted that, by virtue of Section 8 of the Indian Independence Act, 1947, it was the Constituent Assembly—not the people of India directly—that framed the Constitution, and that sovereignty devolved after the British withdrawal. Nevertheless, the Court pointed out that both the “Objectives Resolution” adopted by the Constituent Assembly on 22 January 1947 and the Preamble to the Constitution demonstrate that the sovereign body framed the Constitution in the name of the people of India and derived its authority from them. In these circumstances, the Court considered whether Patanjali Sastri J. was correct in stating that fundamental rights constitute the minimum rights reserved by the people for themselves and are therefore unalterable. While acknowledging that the Constitution does not expressly forbid amendment of Part III, the Court found it counter‑intuitive that rights regarded as fundamental—particularly the right guaranteed under Article 32—should be more readily abridged or restricted than matters listed in the proviso to Article 368, some of which may be less vital than fundamental rights. The Court entertained the suggestion made by the learned brother that Article 368 merely delineates the procedure for amending the Constitution and does not itself confer a substantive power to amend the Constitution, a point that the Court believed required further determination.

The Court observed that the discussion must begin with the specific provision that is proposed to be altered, together with any other provisions that are relevant, including the pre‑amble of the Constitution. It noted that an argument had been advanced that treating fundamental rights as immutable could impede future legislation that a dynamic society might require. The Court described this argument as substantial and deserving of careful analysis. It further indicated that a possible answer to this difficulty might be found. The Court explained that the rights listed in Article 19(1) are already subject to reasonable restrictions prescribed in clauses (2) to (6) of the same article, and it suggested that many of the other fundamental rights could, in principle, be modified to suit the evolving needs of society by employing the Directive Principles of State Policy.

The Court then turned to Article 37, the second article of Part IV, which deals with the Directive Principles of State Policy, and pointed out that this article obliges the State to use those principles when framing legislation. It emphasized that these principles are themselves fundamental to the governance of the nation and that the provisions of Part III, which contain the fundamental rights, must be read in harmony with the Directive Principles. The Court highlighted that this harmonious interpretation is another important aspect that must be considered.

Next, the Court reminded that the Constitution of India is a written document. It reflected that the Constituent Assembly, which held the sovereignty of the people, could have fashioned a sovereign Parliament following the British model, but instead it chose to adopt a written Constitution, to establish three organs of State, to make the Union executive answerable to Parliament and the State executives answerable to the State legislatures, to create a federal structure with a distribution of legislative powers between Parliament and the State legislatures, to recognise certain rights as fundamental and to provide mechanisms for their enforcement, and to prescribe oaths of office or affirmations that require the oath‑takers to pledge true allegiance to the Constitution. The Court also noted that the Constitution requires members of the Union Judiciary and of the higher judiciary in the States to uphold the Constitution. Above all, the Court observed that the Constitution contains a solemn and dignified pre‑amble that encapsulates the basic features of the document. It asked whether this may be read as an indication of the Constituent Assembly’s intention to give permanence to those basic features.

The Court further considered whether altering a basic feature of the Constitution would amount merely to an amendment or whether it would amount to a rewriting of a portion of the Constitution, and if the latter, whether such a change would fall within the scope of Article 368. It observed that the Constitution obliges every member of Parliament, before assuming office, to take an oath or make an affirmation that he or she will bear true faith and allegiance to the Constitution. Conversely, Article 368 sets out the procedure for amending the Constitution. The Court questioned, on a literal reading of Article 368, whether an amendment that affects even the basic features of the Constitution would be permissible, and it indicated that this raises the issue of how to reconcile the duty of allegiance to the Constitution with the power to amend it.

In this case the Court examined whether the procedure for amendment laid down in Article 368 could be reconciled with the oath taken by every member of Parliament to uphold the Constitution, and whether the two could be harmonised by excluding from the amendment process any alteration of a basic feature of the Constitution. The Court referred to a decision of the Supreme Court of Pakistan in Mr Fazlul Quader Chowdhry v Mr Mohd Abdul Haque, where the Court held that the franchise and the form of government constitute fundamental features of a Constitution and that the power conferred on the President of Pakistan to remove difficulties does not extend to changing any such fundamental feature. In striking down the President’s action, the Chief Justice, Cornelius, relied upon the oath of office taken by judges. He quoted a passage from Cooley’s Constitutional Limitations, stating that the Constitution of a State is higher in authority than any law, direction or order made by any person or officer, because such a person or officer exercises delegated authority that must be subordinate to the instrument granting that delegation; in any conflict the fundamental law prevails and any act in conflict is legally invalid. The Chief Justice observed that deciding the constitutional validity of an act of a statutory authority, however high‑ranking, is a duty that ordinarily devolves on superior courts by virtue of their office, and that in the absence of any express or implied bar to performing that duty, the responsibility cannot be avoided. The Court said that these observations, together with the quoted passage from Cooley, supported the earlier statement that the courts possess the power to pronounce on the validity of constitutional amendments. The Constitution, the Court noted, provides three modes of amendment, and assuming that Article 368 confers on Parliament the power to amend, it must still be examined whether, so long as the preamble remains unchanged, that power may be exercised with respect to any basic feature. To illustrate, the Court asked whether, while the words “sovereign democratic republic” remain in the preamble, Parliament could amend the Constitution so as to abandon democratic form of government or its republican character. If such a departure were impossible, the Court then asked whether, while the words “Justice, social, economic and political …” remain, any of the rights enumerated in Articles 14 to 19, 21, 25, 31 and 32 could be taken away. If the rights could not be removed, the Court considered whether they might at least be modified. It was noted that some authorities have said the preamble is not part of the Constitution, but the Court expressed the view that a comparison of the preamble with the broader features of the Constitution shows that the preamble is an epitome of those features.

In this case, the Court observed that the substantive features of the Constitution may be regarded as an amplification or a concrete expression of the ideas set out in the preamble. It therefore considered whether the preamble itself forms part of the Constitution. The Court noted that the preamble differs from the ordinary introductory statements that appear in ordinary legislative Acts, because it reflects a deep deliberative process and displays a high degree of precision. Such characteristics, the Court suggested, indicate that the framers attached special significance to the preamble. Keeping these observations in mind, and also taking into account the arguments presented by the learned brother Justice Hidayatullah, the Court expressed reluctance to give a definitive opinion on two points. First, it did not wish to decide conclusively whether the term “law” in Article 13(2) of the Constitution excludes a Parliamentary Act that amends the Constitution. Second, it refrained from pronouncing definitively on whether Parliament possesses the competence to make any amendment to Part III of the Constitution. Regarding the latter contention, the Court generally concurred with the view expressed by the Chief Justice, but added an additional observation concerning the scope of Parliament’s power to amend Part III.

The Court continued its analysis by assuming, for the sake of argument, that Parliament is indeed capable of amending Part III of the Constitution and that, on that basis, it was competent to enact Articles 31A and 31B as well as to modify the definition of “estate.” Even with that assumption, the Court questioned whether Parliament could validate a State law that deals with land. The Court held that only the legislature that has the authority to enact a particular law can also validate it. Since the agrarian statutes placed in the Ninth Schedule and intended to be protected by Article 31B could not have been enacted by Parliament, the Court asked whether it would be correct to say that Parliament could validate those statutes. If Parliament were able to amend Part III, it could remove the constitutional obstacle that prevents a State from legislating on land, for example by enacting Article 31A and altering the definition of “estate.” However, the Court wondered whether Parliament could extend its power to the extent it did when it passed the First Amendment Act, created the Ninth Schedule, and subsequently added forty‑four additional agrarian laws to that schedule. The Court queried whether Parliament was incompetent to go beyond the enactment of Article 31A in 1950 and the subsequent amendment of the “estate” definition. The Court noted that these issues had not been raised in the Sankari Prasad case, nor had any party advanced such arguments before it in the present matter. Consequently, the Court decided that, on the narrow ground of the arguments presented, no case had been made out for striking down the Seventeenth Amendment. The Court also reiterated, in line with the Chief Justice’s judgment, that an amendment made under the first part of Article 368 could be invalidated if it removed the jurisdiction of the High Courts under Article 226 or of this Court under Article 136.

The judgment noted that an amendment made without observing the conditions laid down in the proviso to Article 368 would be open to challenge. It added that if the practical effect of such an amendment is to substantially, albeit indirectly, limit the jurisdiction of the High Courts under Article 226 or of this Court under Article 136, and if no reference has been made to the proviso to Article 368, then the question of whether Parliament has engaged in a colourable exercise of power becomes relevant for judicial consideration. The Court further clarified that the observations recorded in this judgment should not be taken as a final, conclusive opinion. Rather, they represent a set of doubts that have arisen in the mind of the judge concerning a matter of utmost importance to the citizens of the nation. Specifically, the doubt concerns whether the fundamental features of the Constitution, to which the people owe their allegiance, are intended to endure indefinitely or at least for the foreseeable future, as opposed to being as transient as the merely implemental and subordinate provisions of the Constitution. After deliberating on these issues, the Court ordered that the petitions be dismissed. The decision was recorded with reference to the citation (1) [1952] S.C.R. 89.