Writ Petition Nos. 135 of 1970 and 351, 352, 373, 374 and 400 of 1972. Case: His Holiness Kesavananda Bharati Sripadagalvaru Vs State of Kerala. Supreme Court

Case Number:Writ Petition Nos. 135 of 1970 and 351, 352, 373, 374 and 400 of 1972
Party Name:His Holiness Kesavananda Bharati Sripadagalvaru Vs State of Kerala
Judges:S.M. Sikri, C.J., A.N. Grover, A.N. Ray, D.G. Palekar, H.R. Khanna, J.M. Shelat, K.K. Mathew, K.S. Hegde, M.H. Beg, P. Jaganmohan Reddy, S.N. Dwivedi, A.K. Mukherjea and Y.V. Chandrachud, JJ.
Issue:Constitution of India - Articles 1, 2, 3, 4, 4(1), 4(2), 5, 6, 8, 9, 10, 12, 13, 13(1), 13(2), 13(3), 13(3), 13(3), 13(4), 14, 15, 15(1), 15(3), 15(4), 16, 16(2), 16(3), 16(4), 16(5), 17, 18, 19, 19(1), 19(1), 19(2), 19(5), 19(6), 19(6), 20, 20(2), 21, 22, 22(1), 22(2), 22(3), 22(4), 23, 24, 25, 25(1), 25(2), 26, 26, 26, 27, 28, 29, 29(1), 29(2...
Citation:AIR 1973 SC 1461, (1973) 4 SCC 225, [1973] Supp SCR 1
Judgement Date:April 24, 1973
Court:Supreme Court


S.M. Sikri, C.J.

  1. I propose to divide my judgment into eight parts. Part I will deal with Introduction; Part II with interpretation of Golakhnath case; Part III with the interpretation of the original Article 368, as it existed prior to its amendment; Part IV with the validity of the Constitution (Twenty-fourth Amendment) Act; Part V with the validity of Section 2 of the Constitution (Twenty-fifth Amendment) Act; Part VI with the validity of Section 3 of the Constitution (Twenty-fifth Amendment) Act; Part VII with Constitution (Twenty-ninth Amendment) Act; and Part VIII with conclusions.

    PART I-Introduction

  2. All the six writ petitions involve common questions as to the validity of the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments of the Constitution. I may give a few facts in Writ petition No. 135 of 1970 to show how the question arises in this petition. Writ Petition No. 135 of 1970 was filed by the petitioner on March 21, 1970 under Article 32 of the Constitution for enforcement of his fundamental rights under Articles 25, 26, 14, 19(1)(f) and 31 of the Constitution. He prayed that the provisions of the Kerala Land Reforms Act, 1963 (Act 1 of 1964) as amended by the Kerala Land Reforms (Amendment) Act 1969 (Act 35 of 1969) be declared unConstitutional, ultra vires and void. He further prayed for an appropriate writ or order to issue during the pendency of the petition. This Court issued rule nisi on March 25, 1970.

  3. During the pendency of the writ petition, the Kerala Land Reforms (Amendment) Act 1971 (Kerala Act No. 25 of 1971) was passed which received the assent of the President on August 7, 1971. The petitioner filed an application for permission to urge additional grounds and to impugn the Constitutional validity of the Kerala Land Reforms (Amendment) Act 1971 (Kerala Act No. 25 of 1971).

  4. In the meantime, the Supreme Court by its judgment dated April 26, 1971 in Kunjukutty Sahib v. State of Kerala [1972] S.C.C. 364 (Civil Appeals Nos. 143, 203-242, 274 & 309 of 1971). Judgment dated April 26, 1971 upheld the majority judgment of the Kerala High Court in V.N. Narayanan Nair v. State of Kerala AIR1971Ker98 whereby certain, sections of the Act were struck down.

  5. The Constitution (Twenty-fifth Amendment) Act came into force on November 5, 1971, the Constitution (Twenty-fifth Amendment) Act came into force on April 20, 1972 and the Constitution (Twenty-ninth Amendment) Act came into force on June 9, 1972. The effect of the Twenty-ninth Amendment of the Constitution was that it inserted the following Acts in the Ninth Schedule to the Constitution:

  6. The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of 1969).

  7. The Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of 1971).

  8. The petitioner then moved an application for urging additional grounds and for amendment of the writ petition in order to challenge the above Constitutional amendments.

  9. The Court allowed the application for urging additional grounds and for amendment of the writ petition on August 10, 1972 and issued notices to the Advocates-General to appear before this Court and take such part in the proceedings as they may be advised.

  10. When the case was placed before the Constitutional bench, it referred this case to a larger bench to determine the validity of the impugned Constitutional amendments.

  11. Similar orders were passed in the other writ petitions.

  12. The larger bench was accordingly constituted. It was then felt that it would be necessary to decide whether I.C. Golak Nath v. State of Punjab [1967]2SCR762 was rightly decided or not. However, as I see it, the question whether Golak Nath's [1967]2SCR762 case was rightly decided or not does not matter because the real issue is different and of much greater importance, the issue being: what is the extent of the amending power conferred by Article 368 of the Constitution, apart from Article 13(2), on Parliament?

  13. The respondents claim that Parliament can abrogate fundamental rights such as freedom of speech and expression, freedom to form associations or unions, and freedom of religion. They claim that democracy can even be replaced and one-party rule established. Indeed, short of repeal of the Constitution, any form of Government with no freedom to the citizens can be set up by Parliament by exercising its powers under Article 368.

  14. On the side of the petitioners it is urged that the power of Parliament is much more limited. The petitioners say that the Constitution gave the Indian citizen freedoms which were to subsist for ever and the Constitution was drafted to free the nation from any future tyranny of the representatives of the people. It is this freedom from tyranny which, according to the petitioners, has been taken away by the impugned Article 31C which has been inserted by the Twenty-fifth Amendment. If Article 31C is valid, they say, hereafter Parliament and State Legislatures and not the Constitution, will determine how much freedom is good for the citizens.

  15. These cases raise grave issues. But however grave the issues may be, the answer must depend on the interpretation of the words in Article 368, read in accordance with the principles of interpretation which are applied to the interpretation of a Constitution given by the people to themselves.

  16. I must interpret Article 368 in the setting of our Constitution, in the background of our history and in the light of our aspirations and hopes, and other relevant circumstances. No other Constitution in the world is like ours. No other Constitution combines under its wings such diverse peoples, numbering now more than 550 millions, with different languages and religions and in different stages of economic development, into one nation, and no other nation is faced with such vast socio-economic problems.

  17. I need hardly observe that I am not interpreting an ordinary statute, but a Constitution which apart from setting up a machinery for government, has a noble and grand vision. The vision was put in words in the Preamble and carried out in part by conferring fundamental rights on the people. The vision was directed to be further carried out by the application of directive principles.

    PART II-Interpretation of Golak Nath's Case.

  18. Before proceeding with the main task, it is necessary to ask: what was decided in I.C. Golak Nath v. State of Punjab [1967]2SCR762? In order to properly appreciate that case, it is necessary first to have a look at Sri Sankari Prasad Singh Deo v.Union of India and State of Bihar [1952]1SCR89 and Sajjan Singh v. State of Rajasthan[1965]1SCR933.

  19. The Constitution (First Amendment) Act, 1951, which inserted inter alia Articles 31A and 31B in the Constitution was the subject matter of decision in Sankari Prasad's [1952]1SCR89 case. The main arguments relevant to the present case which were advanced in support of the petition before this Court were summarised by Patanjali Sastri, J. as he then was, as follows:

    First, the power of amending the Constitution provided for under Article 368 was conferred not on Parliament but on the two Houses of Parliament as designated body and, therefore, the provisional Parliament was not competent to exercise that power under Article 379.

    Fourthly, in any case Article 368 is a complete code in itself and does not provide for any amendment being made in the bill after it has been introduced in the House. The bill in the present case having been admittedly amended in several particulars during its passage through the House, the Amendment Act cannot be said to have been passed in conformity with the procedure prescribed in Article 368.

    Fifthly, the Amendment Act, in so far as it purports to take away or abridge the rights conferred by Part III of the Constitution, falls within the prohibition of Article 13(2).

    X X X

  20. As stated in the head note, this Court held:

    The provisional Parliament is competent to exercise the power of amending the Constitution under Article 368. The fact that the said article refers to the two Houses of the Parliament and the President separately and not to the Parliament, does not lead to the inference that the body which is invested with the power to amend is not the Parliament but a different body consisting of the two Houses.

    The words "all the powers conferred by the provisions of this Constitution on Parliament" in Article 379 are not confined to such powers as could be exercised by the provisional Parliament consisting of a single chamber, but are wide enough to include the power to amend the Constitution conferred by Article 368.

  21. I may mention that Mr. Seervai contends that the conclusion just mentioned was wrong and that the body that amends the Constitution under Article 368 is not Parliament.

  22. The Court further held:

    The view that Article 368 is a complete code in itself in respect of the procedure provided by it and does not contemplate any amendment of a Bill for amendment of the Constitution after it has been introduced, and that if the Bill is amended during its passage through the House, the Amendment Act cannot be said to have been passed in conformity with the procedure prescribed by Article 368 and would be invalid, is erroneous.

    Although "law" must ordinarily include Constitutional law there is a clear demarcation between ordinary law which is made in the exercise of legislative power and Constitutional law, which is made in the exercise of constituent power. 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 the exercise of constituent power with the result that Article 13(2) does not affect amendments made under Article 368.

  23. Although the decision in Sankari Prasad's [1952]1SCR89 case was not challenged in Sajjan Singh's [1965]1SCR933 case, Gajendragadkar, C.J. thought it fit to give reasons for expressing full concurrence with that...

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