CCSU V.

MINISTER FOR THE CIVIL SERVICES, (1984) 3 ALL ER 935

My Lords, Government Communications Headquarters (GCHQ) is a branch of the public

service under the Foreign and Commonwealth Office, the main functions of which are to
ensure the security of the United Kingdom military and official communications, and to
provide signals intelligence for the government. These functions are of great importance
and they involve handling secret information which is vital to the national security. The
main establishment of GCHQ is at Cheltenham, where over 4,000 people are employed.
There are also a number of smaller out-stations, one of which is at Bude in Cornwall.
Sine 1947, when GCHQ was established in its present form, all the staff employed there
have been permitted, and indeed encouraged, to belong to national trade unions, and most
of them did so. Six unions were represented at GCHQ. They were all members, though not
the only members, of the Council of Civil Service Unions (CCSU), the first Appellant. The
second Appellant is the secretary of CCSU. The other Appellants are individuals who are
employed at GCHQ and who were members of one or other of the unions represented
there. A departmental Whitley Council was set up in 1947 and, until the events with which
this appeal is concerned, there was a well-established practice of consultation between the
official side and the trade union side about all important alterations in the terms and
conditions of employment of the staff.
On 25 January 1984 all that was abruptly changed. The Secretary of State for Foreign and
Commonwealth Affairs announced in the House of Commons that the government had
decided to introduce with immediate effect new conditions of service for staff at GCHQ,
the effect of which was that they would no longer be permitted to belong to national trade
unions but would be permitted to belong only to a departmental staff association approved
by the director. The announcement came as a complete surprise to the trade unions and to
the employees at GCHQ, as there had been no prior consultation with them. The principal
question raised in this appeal is whether the instruction by which the decision received
effect, and which was issued orally on 22 December 1983 by the Respondent (who is also
the Prime Minister), is valid and effective in accordance with Article 4 of the Civil Service
Order in Council 1982. The Respondent maintains that it is. The Appellants maintain that it
is invalid because there was a procedural obligation on the Respondent to act fairly by
consulting the persons concerned before exercising her power under Article 4 of the Order
in Council, and she had failed to do so. Underlying that question, and logically preceding
it, is the question whether the courts, and your Lordships' House in its judicial capacity,
have power to review the instruction on the ground of a procedural irregularity, having
regard particularly to the facts (a) that it was made in the exercise of a power conferred
under the royal prerogative and not by statute and (b) that it concerned national security.

It is necessary to refer briefly to the events which led up to the decision on 22 December
1983. Between February 1979 and April 1981 industrial action was taken at GCHQ on
seven occasions. The action took various forms: one-day strikes, work to Rule and
overtime bans. The most serious disruption occurred on 9 March 1981, when about 25% of
the staff went on one-day strike and, according to Sir Robert Armstrong, the Secretary to
the Cabinet, who made an affidavit in these proceedings, parts of the operations at GCHQ
were virtually shut down. The Appellants do not accept the Respondent's view of the
seriousness of the effects of industrial action on the work at GCHQ. But clearly it must
have had some adverse effect, especially by causing some interruption of the constant day
and night monitoring of foreign signals communications. The industrial action was taken
mainly in support of national trade unions, when they were in dispute with the government
about conditions of service of civil servants generally, and not about local problems at
GCHQ. In 1981 especially it was part of a campaign by the national trade unions, designed
to do as much damage as possible to government agencies including GCHQ. Sir Robert
Armstrong in his affidavit refers to several circular letters and 'campaign reports' issued by
CCSU and some of its constituent unions, which show the objects of the campaign. One of
these is a circular letter dated 10 March 1981 from the Society of Civil and Public
Servants. In a paragraph headed 'Selective Strikes' the letter states as follows:
"Union members at certain key Government sites are now on permanent strike. This is the
first phase of the selective action: it includes naval supplies and dockyards, locations where
the Government finance machine can be disrupted a Government surveillance centre and
the DHSS Contributions Records computer."
(My emphasis.)
Among the selective strike areas referred to in the list appended to the letter is 'GCHQ
Bude, Cornwall'. The seriousness of the intended challenge to the security system of this
country can be gauged from the literature issued at the time by the CCSU, of which the
following are examples:
"Our ultimate success depends upon the extent to which revenue collection is upset,
defence readiness hampered, and trading relations disrupted by this and future action."
'Walkouts in key installations have affected Britain's defence capability in general, and
crippled the UK contribution to the NATO exercise "Wintex"."
'... another vital part of the Government's Composite Signals Organisation... is to be hit by
a strike from Friday, 3 April."
'48 hour walkouts have severely hit secret monitoring stations belonging to the Composite
Signals Organisation. The Government is clearly worried and will be subject to huge
pressure from NATO allies."

'Defence plans have been upset by the continuing action at naval supplies depots,
dockyards, and other crucial establishments."
Approaches were made on behalf of the government to local union officials, and later to
national CCSU officials, to dissuade them from action which would directly adversely
affect operations at GCHQ. Some co-operation was given by the local officials, but none at
all by national officers. Sir Brian Tovey (former director of GCHQ) gave evidence to the
Employment Committee of the House of Commons on 8 February 1984 and told them that,
after one of his subordinates had sought to explain to the general secretary of one of the
trade unions the serious consequences that might follow from disruption of certain parts of
GCHQ work, the answer was: 'Thank you. You are telling me where I am hurting Mrs.
Thatcher the most."
In 1982 the government considered whether measures should be taken to prevent the
recurrence of such disruptive action. But at that time the intelligence functions of GCHQ
had not been publicly acknowledged by the government, although they had already been
referred to in the newspapers, and it was decided that no action which would involve public
acknowledgment of the activities should be taken. In May 1983 following the report of the
Security Commission in the case of Geoffrey Prime, who had been convicted of espionage
at GCHQ, the intelligence role of GCHQ was for the first time publicly acknowledged, and
the reason for avoiding public action to deal with disruption was thus removed. The report
of the Security Commission on the Prime case is also relevant to this appeal in another
way, because it recommended that a pilot scheme should be undertaken to test the
feasibility of polygraph security screening at intelligence agencies including GCHQ. The
CCSU were opposed to this recommendation and several meetings were held between their
representatives and the Cabinet Office officials to discuss the matter. CCSU were
concerned that the polygraph might be introduced without adequate consultation and on 9
January 1984 Sir Robert Armstrong wrote to the chairman of their general policy
committee explaining that before a decision was taken for the definitive introduction of
polygraph, as distinct from the experimental pilot scheme, there would certainly need to be
consultations. That was the last word on the polygraph question before the announcement
on 25 January 1984 that national trade unions were to be excluded from GCHQ. Their
exclusion would necessarily prevent their playing any part in further consultations on the
polygraph and that was one of their reasons for resenting the decision of 22 December
1983.
Course of the proceedings
The trade unions, and some at least of the employees at GCHQ, objected strongly to the
decision made on 22 December 1983 and announced on 25 January 1984. Representatives
of the trade unions met the Minister for the Civil Service on two occasions in February
1984 to express their objections. They also met Sir Robert Armstrong several times. They

presented a draft agreement to prevent disruption at certain parts of GCHQ but the draft
was rejected by the government and no agreement was reached about changing the
government's decision. Eventually the first and second Appellants obtained leave from
Glidewell J on 8 March 1984 to bring proceedings for judicial review against the Minister
for the Civil Service in respect of the instruction of 22 December 1983 and against the
Foreign Secretary in respect of certificates which he had issued under the Employment
Protection Act 1975, Section 121(4) and the Employment Protection (Consolidation) Act
1978, Section 138(4) to give effect to the instruction by discontinuing, on national security
grounds, the right of staff to appeal to industrial tribunals. The attack on these certificates
has been abandoned, and the attack on the instruction is now limited to seeking a
declaration that it is invalid; the remedy of certiorari is no longer sought.
Glidewell J granted a declaration that "the instruction purportedly issued by the Minister for the Civil Service on 22 December
1983 that the terms and conditions of service of civil servants serving at GCHQ should be
revised so as to exclude membership of any trade union other than a departmental staff
association approved by the Director of GCHQ was invalid and of no effect."
His reason for granting the declaration was that there had been a procedural irregularity in
failing to consult before issuing the instruction. I take this opportunity of expressing my
respectful admiration for the carefully reasoned opinion of the judge, which has
substantially assisted me and, I believe, my noble and learned friends.
Against that declaration the Respondent appealed. The Court of Appeal (Lord Lane CJ,
Watkins and May LJJ) reversed the judge's decision and dismissed the Appellants'
application for judicial review. They also dismissed a cross-appeal by the Appellants.
The appeal raises a number of questions. I shall consider first the question which I regard
was the most important and also the most difficult. It concerns the royal prerogative.
The royal prerogative
The mechanism on which the Minister for the Civil Service relied to alter the terms and
conditions of service at GCHQ was an 'instruction' issued by her under Article 4 of the
1982 Order in Council. That article, so far as relevant, provides as follows:
"As regards Her Majesty's Home Civil Service (a) the Minister for the Civil Service may from time to time make regulations or give
instructions... (ii) for controlling the conduct of the Service, and providing for the
classification of all persons employed therein and... the conditions of service of all such
persons..."

The Order in Council was not issued under powers conferred by any Act of Parliament.
Like the previous Orders in Council on the same subject it was issued by the sovereign by
virtue of her prerogative, but of course on the advice of the government of the day. In these
circumstances counsel for the Respondent submitted that the instruction was not open to
review by the courts because it was an emanation of the prerogative. This submission
involves two propositions:
(1) that prerogative powers are discretionary, that is to say they may be exercised at the
discretion of the sovereign (acting on advice in accordance with modern constitutional
practice) and the way in which they are exercised is not open to review by the courts;
(2) that an instruction given in the exercise of a delegated power conferred by the
sovereign under the prerogative enjoys the same immunity from review as if it were itself a
direct exercise of prerogative power. Counsel for the Appellants contested both of these
propositions, but the main weight of his argument was directed against the second.
The first of these propositions is vouched by an impressive array of authority, which I do
not propose to cite at all fully. Starting with Blackstone's Commentaries (1 Bl Com (15th
edn) 251) and Chitty A Treatise on the Law of the Prerogatives of the Crown they are at
one in stating that, within the sphere of its prerogative powers, the Crown has an absolute
discretion. In more recent times the best known definition of the prerogative is that given in
Dicey Introduction to the Study of the Law of the Constitution (8th edn, 1915), which is as
follows:
"The prerogative is the name for the remaining portion of the Crown's original authority,
and is therefore, as already pointed out, the name for the residue of discretionary power left
at any moment in the hands of the Crown, whether such power be in fact exercised by the
King himself or by his Ministers."
Dicey's definition was quoted with approval in this House in A-G v. De Keyser's Royal
Hotel Ltd. by Lord Dunedin and was impliedly accepted by the other Law Lords in that
case. In Burmah Oil Co. (Burma Trading) Ltd. v. Lord Advocate Lord Reid referred to
Dicey's definition as being 'always quoted with approval' although he said it did not take
him very far in that case. It was also referred to with apparent approval by Roskill LJ in
Laker Airways Ltd. v. Deft of Trade. As De Keyser's case shows, the courts will inquire
into whether a particular prerogative power exists or not and, if it does exist, into its extent.
But once the existence and the extent of a power are established to the satisfaction of the
court, the court cannot inquire into the propriety of its exercise. That is undoubtedly the
position as laid down in the authorities to which I have briefly referred and it is plainly
reasonable in relation to many of the most important prerogative powers which are
concerned with control of the armed forces and with foreign policy and with other matters
which are unsuitable for discussion or review in the law courts. In the present case the
prerogative power involved is power to regulate the Home Civil Service, and I recognise

there is no obvious reason why the mode of exercise of that power should be immune from
review by the courts. Nevertheless, to permit such review would run counter to the great
weight of authority to which I have briefly referred. Having regard to the opinion I have
reached on the second proposition of counsel for the Respondent, it is unnecessary to
decide whether his first proposition is sound or not and I prefer to leave that question open
until it arises in a case where a decision on it is necessary. I therefore assume, without
deciding, that his first proposition is correct and that all powers exercised directly under the
prerogative are immune from challenge in the courts. I pass to consider his second
proposition.
The second proposition depends for its soundness on whether the power conferred by
Article 4 of the 1982 Order in Council on the Minister for the Civil Service of 'providing
for... the conditions of service' of the Civil Service is subject to an implied obligation to act
fairly. (Such an obligation is sometimes referred to as an obligation to obey the rules of
natural justice, but that is a less appropriate description, at least when applied, as in the
present case, to a power which is executive and not judicial.) There is no doubt that, if the
1982 Order in Council had been made under the authority of a statute, the power delegated
to the minister by Article 4 would have been construed as being subject to an obligation to
act fairly. I am unable to see why the words conferring the same powers should be
construed differently merely because their source was an Order in Council made under the
prerogative. It is all the more difficult in the face of Article 6(4) of the 1982 Order in
Council, which provides that the Interpretation Act 1978 shall apply to the order; it would
of course apply to a statutory order. There seems no sensible reason why the words should
not bear the same meaning whatever the source of authority for the legislation in which
they are contained. The 1982 Order in Council was described by Sir Robert Armstrong in
his first affidavit as primary legislation; that is, in my opinion, a correct description, subject
to the qualification that the Order in Council, being made under the prerogative, derives its
authority from the sovereign alone and not, as is more commonly the case with legislation,
from the sovereign in Parliament. Legislation frequently delegates power from the
legislating authority, the sovereign in one case, Parliament in the other, to some other
person or body and, when that is done, the delegated powers are defined more or less
closely by the legislation, in this case by Article 4. But, whatever their source, powers
which are defined, either by reference to their object or by reference to procedure for their
exercise, or in some other way, and whether the definition is expressed or implied, are in
my opinion normally subject to judicial control to ensure that they are not exceeded. By
'normally' I mean provided that considerations of national security do not require
otherwise.
The courts have already shown themselves ready to control by way of judicial review the
actions of a tribunal set up under the prerogative. R v. Criminal Injuries Compensation
Board, ex p Lain was such a case. In that case Lord Parker CJ said:

"I can see no reason either in principle or in authority why a board, set up as this board
were set up, should not be a body of persons amenable to the jurisdiction of this Court.
True the board are not set up by statute but the fact that they are set up by executive
government, i.e., under the prerogative, does not render their acts any the less lawful.
Indeed, the writ of certiorari has been issued not only to courts set up by statute but also to
courts whose authority was derived, inter alia, from the prerogative. Once the jurisdiction
is extended, as it clearly has been, to tribunals as opposed to courts, there is no reason why
the remedy by way of certiorari cannot be invoked to a body of persons set up under the
prerogative."
That case was concerned with the actions of a board or tribunal exercising functions of a
judicial character, but it is now established that certiorari is not limited to bodies
performing judicial functions. In R v. Secretary of State for the Home Dept, ex p Hosenball
which was concerned with the actions of the Secretary of State himself in refusing to give
information about the reasons for making a deportation order against an alien, the
Divisional Court and the Court of Appeal refused to make an order of certiorari because the
refusal had been based on grounds of national security but, if it had been made in what
Lord Denning MR called an 'ordinary case', that is one in which national security was not
involved, the position would have been different. Lord Denning MR said:
"... if the body concerned, whether it be a Minister or advisers, has acted unfairly, then the
courts can review their proceedings so as to ensure, as far as may be, that justice is done."
Accordingly, I agree with the conclusion of Glidewell J that there is no reason for treating
the exercise of a power under Article 4 any differently from the exercise of a statutory
power merely because Article 4 itself is found in an order issued under the prerogative.
It follows, in my opinion, that some of the reasoning in R v. Secretary of State for War and
Griffin v. Lord Advocate 1950 SC 448 is unsound, although the decisions themselves might
perhaps be supported on the ground that they related to actions by the Crown connected
with the armed forces. The former case was of course decided long before the modern
development of judicial review and the latter, which was a decision of Lord Sorn in the
Outer House, mainly followed it.
The duty to consult
Counsel for the Appellants submitted that the minister had a duty to consult the CCSU, on
behalf of employees at GCHQ, before giving the instruction on 22 December 1983 for
making an important change in their conditions of service. His main reason for so
submitting was that the employees had a legitimate, or reasonable, expectation that there
would be such prior consultation before any important change was made in their
conditions.

It is clear that the employees did not have a legal right to prior consultation. The Order in
Council confers no such right, and Article 4 makes no reference at all to consultation. The
Civil Service handbook (Handbook for the new civil servant (1973 edn, as amended
1983)), which explains the normal method of consultation through the departmental
Whitley Council, does not suggest that there is any legal right to consultation; indeed, it is
careful to recognise that, in the operational field, considerations of urgency may make prior
consultation impracticable. The Civil Service Pay and Conditions of Service Code
expressly states:
"The following terms and conditions also apply to your appointment in the Civil Service. It
should be understood, however, that in consequence of the constitutional position of the
Crown, the Crown has the right to change its employees' conditions of service at any time,
and that they hold their appointments at the pleasure of the Crown."
But even where a person claiming some benefit or privilege has no legal right to it, as a
matter of private law, he may have a legitimate expectation of receiving the benefit or
privilege, and, if so, the courts will protect his expectation by judicial review as a matter of
public law. This subject has been fully explained by Lord Diplock in O'Reilly v. Mackman
and I need not repeat what he has so recently said. Legitimate, or reasonable, expectation
may arise either from an express promise given on behalf of a public authority or from the
existence of a regular practice which the claimant can reasonably expect to continue.
Examples of the former type of expectation are Re Liverpool Taxi Owners' Association and
A-G of Hong Kong v. Ng Yuen Shiu. (I agree with Lord Diplock's view, expressed in the
speech in this appeal, that 'legitimate' is to be preferred to 'reasonable' in this context. I was
responsible for using the word 'reasonable' for the reason explained in Ng Yuen Shiu, but it
was intended only to be exegetical of 'legitimate'.) An example of the latter is R v. Hull
Prison Board of Visitors, ex p St Germain approved by this House in O'Reilly v. Mackman.
The submission on behalf of the Appellants is that the present case is of the latter type. The
test of that is whether the practice of prior consultation of the staff on significant changes
in their conditions of service was so well established by 1983 that it would be unfair or
inconsistent with good administration for the government to depart from the practice in this
case. Legitimate expectations such as are now under consideration will always relate to a
benefit or privilege to which the claimant has no right in private law, and it may even be to
one which conflicts with his private law rights. In the present case the evidence shows that,
ever since GCHQ began in 1947, prior consultation has been the invariable Rule when
conditions of service were to be significantly altered. Accordingly, in my opinion, if there
had been no question of national security involved, the Appellants would have had a
legitimate expectation that the minister would consult them before issuing the instruction
of 22 December 1983. The next question, therefore, is whether it has been shown that
consideration of national security supersedes the expectation.
National security

The issue here is not whether the minister's instruction was proper or fair or justifiable on
its merits. These matters are not for the courts to determine. The sole issue is whether the
decision on which the instruction was based was reached by a process that was fair to the
staff at GCHQ. As Lord Brightman said in Chief Constable of the North Wales Police v.
Evans: 'Judicial review is concerned, not with the decision, but with the decision-making
process."
I have already explained my reasons for holding that, if no question of national security
arose, the decision-making process in this case would have been unfair. The Respondent's
case is that she deliberately made the decision without prior consultation because prior
consultation 'would involve a real risk that it would occasion the very kind of disruption [at
GCHQ] which was a threat to national security and which it was intended to avoid' (I have
quoted from para 27(i) of the Respondent's printed case). Counsel for the Appellants
conceded that a reasonable minister could reasonably have taken that view, but he argued
strongly that the Respondent had failed to show that was in fact the reason for her decision.
He supported his argument by saying, as I think was conceded by counsel for the
Respondent, that the reason given in para 27(i) had not been mentioned to Glidewell J and
that it had only emerged before the Court of Appeal. He described it as an 'afterthought'
and invited the House to hold that it had not been shown to have been the true reason.
The question is one of evidence. The decision on whether the requirements of national
security outweigh the duty of fairness in any particular case is for the government and not
for the courts; the government alone has access to the necessary information, and in any
event the judicial process is unsuitable for reaching decisions on national security. But if
the decision is successfully challenged, on the ground that it has been reached by a process
which is unfair, then the government is under an obligation to produce evidence that the
decision was in fact based on grounds of national security. Authority for both these points
is found in The Zamora. The former point is dealt with in the well-known passage from the
advice of the Judicial Committee delivered by Lord Parker:
"Those who are responsible for the national security must be the sole judges of what the
national security requires. It would be obviously undesirable that such matters should be
made the subject of evidence in a Court of law or otherwise discussed in public."
The second point, less often referred to, appears elsewhere in the advice:
"In their Lordships' opinion the order appealed from was wrong, not because, as contended
by the Appellants, there is by international law no right at all to requisition ships or goods
in the custody of the Court, but because the judge had before him no satisfactory evidence
that such a right was exercisable ."
(My emphasis.)

What was required was evidence that a cargo of copper in the custody of the Prize Court
was urgently required for national purposes, but no evidence had been directed to that
point. The claim on behalf of the Crown that it was entitled to requisition the copper
therefore failed; considering that the decision was made in 1916 at a critical stage of the
1914/18 war, it was a strong one. In Chandler v. DPP which was an appeal by persons who
had been convicted of a breach of the peace Under Section 1 of the Official Secrets Act
1911 by arranging a demonstration by the Campaign for Nuclear Disarmament on an
operational airfield at Wethersfield, Lord Reid said:
"The question more frequently arises as to what is or is not in the public interest. I do not
subscribe to the view that the government or a minister must always or even as a general
Rule have the last word about that. But here we are dealing with a very special matter interfering with a prohibited place which Wethersfield was."
But the court had had before it evidence from an Air Commodore that the airfield was of
importance for national security. Both Lord Reid and Viscount Radcliffe referred to the
evidence as being relevant to their refusal of the appeal.
The evidence in support of this part of the Respondent's case came from Sir Robert
Armstrong in his first affidavit, especially at para 16. Counsel for the Appellants rightly
pointed out that the affidavit does not in terms directly support para 27(i) quoted above.
But it does set out the Respondent's view that to have entered into prior consultation would
have served to bring out the vulnerability of areas of operation to those who had shown
themselves ready to organise disruption. That must be read along with the earlier parts of
the affidavit in which Sir Robert had dealt in some detail with the attitude of the trade
unions which I have referred to earlier in this speech. The affidavit, read as a whole, does
in my opinion undoubtedly constitute evidence that the minister did indeed consider that
prior consultation would have involved a risk of precipitating disruption at GCHQ. I am
accordingly of opinion that the Respondent has shown that her decision was one which not
only could reasonably have been based, but was in fact based, on considerations of national
security, which outweighed what would otherwise have been the reasonable expectation on
the part of the Appellants for prior consultation. In deciding that matter I must with respect
differ from the decision of Glidewell J but, as I have mentioned, I do so on a point that was
not argued to him.
Minor matters
The judge held that had the prior consultations taken place they would not have been so
limited that he could confidently say that they would have been futile. It is not necessary
for me to reach a concluded view on this matter, but as at present advised I am inclined to
differ from the judge, especially because of the attitude of two of the trade union members
of CCSU who declared that they were firmly against any no-strike agreement.

The Court of Appeal considered the proper construction of certain international labour
conventions which they cite. I respectfully agree with Lord Lane CJ, who said that 'the
correct meaning of the material articles of the conventions is by no means clear', but I do
not propose to consider the matter as the conventions are not part of the law in this country.
Counsel for the Appellants submitted that the oral direction did not qualify as an
'instruction' within the meaning of Article 4, and that for two reasons. First, he said that
there was no sufficient evidence of any instruction. In my opinion there is no substance in
this ground. There is ample evidence in a letter dated 7 February 1984 from Sir Robert
Armstrong to the Director of GCHQ and also in the General Notice 100/84 and a covering
letter issued by the director to all employees at GCHQ. Second, counsel said that the
instruction did not sufficiently specify conditions that were being altered, but I agree with
Glidewell J, and with the Court of Appeal, that the minister's direction on 22 December
1983 did give 'instructions... providing for... the conditions of service' of employees at
GCHQ in the sense of Article 4 of the 1982 Order in Council. There was no obligation to
put the instructions in writing, although that might perhaps have been expected in a matter
so important as this. Nor was there any obligation to couch the instructions in any
particular form. Accordingly, I reject this submission.
For these reasons I would dismiss the appeal.
Lord Scarman
My Lords, I would dismiss this appeal for one reason only. I am satisfied that the
Respondent has made out a case on the ground of national security. Notwithstanding the
criticisms which can be made of the evidence and despite the fact that the point was not
raised, or, if it was, was not clearly made before the case reached the Court of Appeal, I
have no doubt that the Respondent refused to consult the unions before issuing her
instruction of 22 December 1983 because she feared that, if she did, union-organised
disruption of the monitoring services of GCHQ could well result. I am further satisfied that
the fear was one which a reasonable minister in the circumstances in which she found
herself could reasonably entertain. I am also satisfied that a reasonable minister could
reasonably consider such disruption to constitute a threat to national security. I would,
therefore, deny relief to the Appellants on their application for judicial review of the
instruction, the effect of which was that staff at GCHQ would no longer be permitted to
belong to a national trade union.
The point of principle in the appeal is as to the duty of the court when in proceedings
properly brought before it a question arises as to what is required in the interest of national
security. The question may arise in ordinary litigation between private persons as to their
private rights and obligations; and it can arise, as in this case, in proceedings for judicial
review of a decision by a public authority. The question can take one of several forms. It
may be a question of fact which Parliament has left to the court to determine: see for an

example Section 10 of the Contempt of Court Act 1981. It may arise for consideration as a
factor in the exercise of an executive discretionary power. But, however it arises, it is a
matter to be considered by the court in the circumstances and context of the case. Though
there are limits dictated by law and common sense which the court must observe in dealing
with the question, the court does not abdicate its judicial function. If the question arises as
a matter of fact, the court requires evidence to be given. If it arises as a factor to be
considered in reviewing the exercise of a discretionary power, evidence is also needed so
that the court may determine whether it should intervene to correct excess or abuse of the
power.
Let me give three illustrations taken from the case law of the twentieth century. First, The
Zamora surely one of the more courageous of judicial decisions even in our long history. In
April 1916 a question of national security came before the Judicial Committee of the Privy
Council sitting in Prize. The Crown's role in the Prize Court was that of a belligerent power
having by international law the right to requisition vessels or goods in the custody of its
Prize Court. A neutral vessel carrying a cargo of copper (contraband) had been stopped at
sea by the Royal Navy and taken to a British port. No decree of condemnation of the cargo
had yet been made to the Prize Court when the Crown intervened by summons to
requisition the cargo then in the custody of the court. Lord Parker, who delivered the
judgment of the Judicial Committee, concluded:
"A belligerent Power has by international law the right to requisition vessels or goods in
the custody of its Prize Court pending a decision of the question whether they should be
condemned or released, but such right is subject to certain limitations. First, the vessel or
goods in question must be urgently required for use in connection with the defence of the
realm, the prosecution of the war, or other matters involving national security. Secondly,
there must be a real question to be tried, so that it would be improper to order an immediate
release. And, thirdly, the right must be enforced by application to the Prize Court, which
must determine judicially whether, under the particular circumstances of the case, the right
is exercisable."
Discussing the first limitation, Lord Parker observed that the judge ought, 'as a rule', to
treat the statement of the proper officer of the Crown that the vessel or goods were urgently
required for national security reasons as conclusive of the fact and it was in this context
that he delivered his famous dictum: 'Those who are responsible for the national security
must be the sole judges of what the national security requires.' These words were no
abdication of the judicial function, but were an indication of the evidence required by the
court. In fact the evidence adduced by the Crown was not sufficient, and the court ruled
that the Crown had no right to requisition. The Crown's claim was rejected 'because the
judge had before him no satisfactory evidence that such a right was exercisable'. The Prize
Court, therefore, treated the question as one of fact for its determination and indicated the
evidence needed to establish the fact. The true significance of Lord Parker's dictum is

simply that the court is in no position to substitute its opinion for the opinion of those
responsible for national security. But the case is a fine illustration of the court's duty to
ensure that the essential facts to which the opinion or judgment of those responsible relates
are proved to the satisfaction of the court.
My second illustration is Chandler v. DPP. In this case the interest of national security
came into court as a matter of fact to be established by evidence to the satisfaction of a jury
in a criminal case. The Appellants were convicted of conspiring to commit a breach of
Section 1 of the Official Secrets Act 1911, 'namely, for a purpose prejudicial to the safety
or interests of the state to enter a Royal Air Force station... at Wethersfield...' There was
evidence from an officer of air rank that the airfield was of importance for national
security: and, as my noble and learned friend Lord Fraser has pointed out, Lord Reid and
Viscount Radcliffe treated his evidence as relevant to the dismissal of their appeal. Lord
Devlin developed the point taken in the case on national security in a passage which, with
all respect to those who take a different view, I believe to be sound law. Having referred to
the undoubted principle that all matters relating to the disposition and armament of the
armed forces are left to the unfettered control of the Crown, he made three comments.
First, he put The Zamora dictum into its true context. Second, he observed that, when a
court is faced with the exercise of a discretionary power, inquiry is not altogether excluded:
the court will intervene to correct excess or abuse. His third and, as he said, his 'most
significant' comment was as to the nature and effect of the principle: 'Where it operates, it
limits the issue which the court has to determine; it does not exclude any evidence or
argument relevant to the issue."
As I read the speeches in Chandler's case, the House accepted that the statute required the
prosecution to establish by evidence that the conspiracy was to enter a prohibited place for
a purpose prejudicial to the safety or interests of the state. As Parliament had left the
existence of a prejudicial purpose to the decision of a jury, it was not the Crown's opinion
as to the existence of prejudice to the safety or interests of the state but the jury's which
mattered; hence, as Lord Devlin remarked, the Crown's opinion on that was inadmissible
but the Crown's evidence as to its interests was an 'entirely different matter'. Here, like
Lord Parker in The Zamora, Lord Devlin was accepting that the Crown, or its responsible
servants, are the best judges of what national security requires without excluding the
judicial function of determining whether the interest of national security has been shown to
be involved in the case.
Finally, I would refer to Secretary of State for Defence v. Guardian Newspapers Ltd. a case
arising Under Section 10 of the Contempt of Court Act 1981. As in Chandler's case, the
interest of national security had to be considered in proceedings where it arose as a
question of fact to be established to the satisfaction of the court. Though the House was
divided as to the effect of the evidence, all their Lordships held that evidence was

necessary so that the court could be judicially satisfied that the interest of national security
required disclosure of the newspaper's source of information.
My Lords, I conclude, therefore, that where a question as to the interest of national security
arises in judicial proceedings the court has to act on evidence. In some cases a judge or jury
is required by law to be satisfied that the interest is proved to exist; in others, the interest is
a factor to be considered in the review of the exercise of an executive discretionary power.
Once the factual basis is established by evidence so that the court is satisfied that the
interest of national security is a relevant factor to be considered in the determination of the
case, the court will accept the opinion of the Crown or its responsible officer as to what is
required to meet it, unless it is possible to show that the opinion was one which no
reasonable minister advising the Crown could in the circumstances reasonably have held.
There is no abdication of the judicial function, but there is a commonsense limitation
recognised by the judges as to what is justiciable; and the limitation is entirely consistent
with the general development of the modern case law of judicial review.
My Lords, I would wish to add a few, very few, words on the reviewability of the exercise
of the royal prerogative. Like my noble and learned friend Lord Diplock, I believe that the
law relating to judicial review has now reached the stage where it can be said with
confidence that, if the subject matter in respect of which prerogative power is exercised is
justiciable, that is to say if it is a matter on which the court can adjudicate, the exercise of
the power is subject to review in accordance with the principles developed in respect of the
review of the exercise of statutory power. Without usurping the role of legal historian, for
which I claim no special qualification, I would observe that the royal prerogative has
always been regarded as part of the common law, and that Coke CJ had no doubt that it
was subject to the common law: see Prohibitions Del Roy and Case of Proclamations. In
the latter case he declared that 'the King hath no prerogative, but that which the law of the
land allows him'. It is, of course, beyond doubt that in Coke's time and thereafter judicial
review of the exercise of prerogative power was limited to inquiring into whether a
particular power existed and, if it did, into its extent: see A-G v. De Keyser's Royal Hotel
Ltd. But this limitation has now gone, overwhelmed by the developing modern law of
judicial review: see R v. Criminal Injuries Compensation Board, ex p Lain (a landmark
case comparable in its generation with the Case of Proclamations) and R v. Secretary of
State for the Home Dept, ex p Hosenball. Just as ancient restrictions in the law relating to
the prerogative writs and orders have not prevented the courts from extending the
requirement of natural justice, namely the duty to act fairly, so that it is required of a purely
administrative act, so also has the modern law, a vivid sketch of which my noble and
learned friend Lord Diplock has included in his speech, extended the range of judicial
review in respect of the exercise of prerogative power. Today, therefore, the controlling
factor in determining whether the exercise of prerogative power is subject to judicial
review is not its source but its subject matter.

Subject to these few comments, I agree with the speeches delivered by my noble and
learned friends Lord Diplock and Lord Roskill. I am in favour of dismissing the appeal
only because the Respondent has established by evidence that the interest of national
security required in her judgment that she should refuse to consult the unions before
issuing her instruction. But for this I would have allowed the appeal on the procedural
ground that the Respondent had acted unfairly in failing to consult unions or staff before
making her decision.
Lord Diplock
My Lords, the English law relating to judicial control of administrative action has been
developed on a case to case basis which has virtually transformed it over the last three
decades. The principles of public law that are applicable to the instant case are in my view
well established by authorities that are sufficiently cited in the speech that will be delivered
by my noble and learned friend Lord Roskill. This obviates the necessity of my duplicating
his citations; though I should put on record that after reading and rereading Lord Devlin's
speech in Chandler v. DPP have gained no help from it, for I find some of his observations
that are peripheral to what I understand to be ratio decidendi difficult to reconcile with the
actual decision that he felt able to reach and also with one another.
The only difficulty which the instant case has presented on the facts as they have been
summarised by my noble and learned friend Lord Fraser and expanded in the judgment of
Glidewell J has been to identify what is, in my view, the one crucial point of law on which
this appeal turns. It never was identified or even adumbrated in the Respondent's argument
at the hearing before Glidewell J and so, excusably, finds no place in what otherwise I
regard as an impeccable judgment. The consequence of this omission was that he found in
favour of the applicants. Before the Court of Appeal the crucial point was advanced in
argument by the Crown in terms that were unnecessarily and, in my view, unjustifiably
wide. This stance was maintained in the appeal to this House, although, under your
Lordships' encouragement, the narrower point of law that was really crucial was developed
and relied on by the Respondent in the alternative. Once that point has been accurately
identified the evidence in the case in my view makes it inevitable that this appeal must be
dismissed. I will attempt to state in summary form those principles of public law which
lead me to this conclusion.
Judicial review, now regulated by RSC Order 53, provides the means by which judicial
control of administrative action is exercised. The subject matter of every judicial review is
a decision made by some person (or body of persons) whom I will call the 'decision-maker'
or else a refusal by him to make a decision.
To qualify as a subject for judicial review the decision must have consequences which
affect some person (or body of persons) other than the decision-maker, although it may
affect him too. It must affect such other person either (a) by altering rights or obligations of

that person which are enforceable by or against him in private law or (b) by depriving him
of some benefit or advantage which either (i) he has in the past been permitted by the
decision-maker to enjoy and which he can legitimately expect to be permitted to continue
to do until there has been communicated to him some rational ground for withdrawing it on
which he has been given an opportunity to comment or (ii) he has received assurance from
the decision-maker will not be withdrawn without giving him first an opportunity of
advancing reasons for contending that they should not be withdrawn. (I prefer to continue
to call the kind of expectation that qualifies a decision for inclusion in class (b) a
'legitimate expectation' rather than a 'reasonable expectation', in order thereby to indicate
that it has consequences to which effect will be given in public law, whereas an expectation
or hope that some benefit or advantage would continue to be enjoyed, although it might
well be entertained by a 'reasonable' man, would not necessarily have such consequences.
The recent decision of this House in Findlay v. Secretary of State for the Home Dept
presents an example of the latter kind of expectation. 'Reasonable' furthermore bears
different meanings according to whether the context in which it is being used is that of
private law or of public law. To eliminate confusion it is best avoided in the latter.)
For a decision to be susceptible to judicial review the decision-maker must be empowered
by public law (and not merely, as in arbitration, by agreement between private parties) to
make decisions that, if validly made, will lead to administrative action or abstention from
action by an authority endowed by law with executive powers, which have one or other of
the consequences mentioned in the preceding paragraph. The ultimate source of the
decision-making power is nearly always nowadays a statute or subordinate legislation
made under the statute; but in the absence of any statute regulating the subject matter of the
decision the source of the decision-making power may still be the common law itself, i.e.
that part of the common law that is given by lawyers the label of 'the prerogative'. Where
this is the source of decision-making power, the power is confined to executive officers of
central as distinct from local government and in constitutional practice is generally
exercised by those holding ministerial rank.
It was the prerogative that was relied on as the source of the power of the Minister for the
Civil Service in reaching her decision of 22 December 1983 that membership of national
trade unions should in future be barred to all members of the Home Civil Service employed
at Government Communications Headquarters (GCHQ).
My Lords, I intend no discourtesy to counsel when I say that, intellectual interest apart, in
answering the question of law raised in this appeal, I have derived little practical assistance
from learned and esoteric analyses of the precise legal nature, boundaries and historical
origin of 'the prerogative', or of what powers exercisable by executive officers acting on
behalf of central government that are not shared by private citizens qualify for inclusion
under this particular label. It does not, for instance, seem to me to matter whether today the
right of the executive government that happens to be in power to dismiss without notice

any member of the Home Civil Service on which perforce it must rely for the
administration of its policies, and the correlative disability of the executive government
that is in power to agree with a civil servant that his service should be on terms that did not
make him subject to instant dismissal, should be ascribed to 'the prerogative' or merely to a
consequence of the survival, for entirely different reasons, of a Rule of constitutional law
whose origin is to be found in the theory that those by whom the administration of the
realm is carried on do so as personal servants of the monarch, who can dismiss them at
will, because the King can do no wrong.
Nevertheless, whatever label may be attached to them there have unquestionably survived
into the present day a residue of miscellaneous fields of law in which the executive
government retains decision-making powers that are not dependent on any statutory
authority but nevertheless have consequences on the private rights or legitimate
expectations of other persons which would render the decision subject to judicial review if
the power of the decision-maker to make them were statutory in origin. From matters so
relatively minor as the grant of pardons to condemned criminals, of honours to the good
and great, of corporate personality to deserving bodies of persons, and of bounty from
moneys made available to the executive government by Parliament, they extend to matters
so vital to the survival and welfare of the nation as the conduct of relations with foreign
states and (what lies at the heart of the present case) the defence of the realm against
potential enemies. Adopting the phraseology used in the Convention for the Protection of
Human Rights and Fundamental Freedoms (Rome, 4th November 1950; TS 71 (1953)), to
which the United Kingdom is a party, it has now become usual in statutes to refer to the
latter as 'national security'.
My Lords, I see no reason why simply because a decision-making power is derived from a
common law and not a statutory source it should for that reason only be immune from
judicial review. Judicial review has I think developed to a stage today when, without
reiterating any analysis of the steps by which the development has come about, one can
conveniently classify under three heads the grounds on which administrative action is
subject to control by judicial review. The first ground I would call 'illegality', the second
'irrationality' and the third 'procedural impropriety'. That is not to say that further
development on a case by case basis may not in course of time add further grounds. I have
in mind particularly the possible adoption in the future of the principle of 'proportionality'
which is recognised in the administrative law of several of our fellow members of the
European Economic Community; but to dispose of the instant case the three already wellestablished heads that I have mentioned will suffice.
By 'illegality' as a ground for judicial review I mean that the decision-maker must
understand correctly the law that regulates his decision-making power and must give effect
to it. Whether he has or not is par excellence a justiciable question to be decided, in the

event of dispute, by those persons, the judges, by whom the judicial power of the state is
exercisable.
By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury
unreasonableness' (see Associated Provincial Picture Houses Ltd. v. Wednesbury
Corporation). It applies to a decision which is so outrageous in its defiance of logic or of
accepted moral standards that no sensible person who had applied his mind to the question
to be decided could have arrived at it. Whether a decision falls within this category is a
question that judges by their training and experience should be well equipped to answer, or
else there would be something badly wrong with our judicial system. To justify the court's
exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's
ingenious explanation in Edwards (Inspector of Taxes) v. Bairstow of irrationality as a
ground for a court's reversal of a decision by ascribing it to an inferred though
unidentifiable mistake of law by the decision-maker. 'Irrationality' by now can stand on its
own feet as an accepted ground on which a decision may be attacked by judicial review.
I have described the third head as 'procedural impropriety' rather than failure to observe
basic rules of natural justice or failure to act with procedural fairness towards the person
who will be affected by the decision. This is because susceptibility to judicial review under
this head covers also failure by an administrative tribunal to observe procedural rules that
are expressly laid down in the legislative instrument by which its jurisdiction is conferred,
even where such failure does not involve any denial of natural justice. But the instant case
is not concerned with the proceedings of an administrative tribunal at all.
My Lords, that a decision of which the ultimate source of power to make it is not a statute
but the common law (whether or not the common law is for this purpose given the label of
'the prerogative') may be the subject of judicial review on the ground of illegality is, I
think, established by the cases cited by my noble and learned friend Lord Roskill, and this
extends to cases where the field of law to which the decision relates is national security, as
the decision of this House itself in Burmah Oil Co. (Burma Trading) Ltd. v. Lord Advocate
shows. While I see no a priori reason to Rule out 'irrationality' as a ground for judicial
review of a ministerial decision taken in the exercise of 'prerogative' powers, I find it
difficult to envisage in any of the various fields in which the prerogative remains the only
source of the relevant decision-making power a decision of a kind that would be open to
attack through the judicial process on this ground. Such decisions will generally involve
the application of government policy. The reasons for the decision-maker taking one course
rather than another do not normally involve questions to which, if disputed, the judicial
process is adapted to provide the right answer, by which I mean that the kind of evidence
that is admissible under judicial procedures and the way in which it has to be adduced tend
to exclude from the attention of the court competing policy considerations which, if the
executive discretion is to be wisely exercised, need to be weighed against one another, a
balancing exercise which judges by their upbringing and experience are ill-qualified to

perform. So I leave this as an open question to be dealt with on a case to case basis if,
indeed, the case should ever arise.
As respects 'procedural propriety', I see no reason why it should not be a ground for
judicial review of a decision made under powers of which the ultimate source is the
prerogative. Such, indeed, was one of the grounds that formed the subject matter of judicial
review in R v. Criminal Injuries Compensation Board, ex p Lain. Indeed, where the
decision is one which does not alter rights or obligations enforceable in private law but
only deprives a person of legitimate expectations, 'procedural impropriety' will normally
provide the only ground on which the decision is open to judicial review. But in any event
what procedure will satisfy the public law requirement of procedural propriety depends on
the subject matter of the decision, the executive functions of the decision-maker (if the
decision is not that of an administrative tribunal) and the particular circumstances in which
the decision came to be made.
My Lords, in the instant case the immediate subject matter of the decision was a change in
one of the terms of employment of civil servants employed at GCHQ. That the executive
functions of the Minister for the Civil Service, in her capacity as such, included making a
decision to change any of those terms, except in so far as they related to remuneration,
expenses and allowances, is not disputed. It does not seem to me to be of any practical
significance whether or not as a matter of strict legal analysis this power is based on the
Rule of constitutional law to which I have already alluded that the employment of any civil
servant may be terminated at any time without notice and that on such termination the
same civil servant may be re-engaged on different terms. The Rule of terminability of
employment in the civil service without notice, of which the existence is beyond doubt,
must in any event have the consequence that the continued enjoyment by a civil servant in
the future of a right under a particular term of his employment cannot be the subject of any
right enforceable by him in private law; at most it can only be a legitimate expectation.
Prima facie, therefore, civil servants employed at GCHQ who were members of national
trade unions had, at best, in December 1983, a legitimate expectation that they would
continue to enjoy the benefits of such membership and of representation by those trade
unions in any consultations and negotiations with representatives of the management of
that government department as to changes in any term of their employment. So, but again
prima facie only, they were entitled, as a matter of public law under the head of 'procedural
propriety', before administrative action was taken on a decision to withdraw that benefit, to
have communicated to the national trade unions by which they had theretofore been
represented the reason for such withdrawal, and for such unions to be given an opportunity
to comment on it.
The reason why the Minister for the Civil Service decided on 22 December 1983 to
withdraw this benefit was in the interests of national security. National security is the

responsibility of the executive government; what action is needed to protect its interests is,
as the cases cited by my noble and learned friend Lord Roskill establish and common sense
itself dictates, a matter on which those on whom the responsibility rests, and not the courts
of justice, must have the last word. It is par excellence a non-justiciable question. The
judicial process is totally inept to deal with the sort of problems which it involves.
The executive government likewise decided, and this would appear to be a collective
decision of cabinet ministers involved, that the interests of national security required that
no notice should be given of the decision before administrative action had been taken to
give effect to it. The reason for this was the risk that advance notice to the national unions
of the executive government's intention would attract the very disruptive action prejudicial
to the national security the recurrence of which the decision barring membership of
national trade unions to civil servants employed at CGHQ was designed to prevent.
There was ample evidence to which reference is made by others of your Lordships that this
was, indeed, a real risk; so the crucial point of law in this case is whether procedural
propriety must give way to national security when there is conflict between (1) on the one
hand, the prima facie Rule of 'procedural propriety' in public law, applicable to a case of
legitimate expectations that a benefit ought not to be withdrawn until the reason for its
proposed withdrawal has been communicated to the person who has theretofore enjoyed
that benefit and that person has been given an opportunity to comment on the reason, and
(2) on the other hand, action that is needed to be taken in the interests of national security,
for which the executive government bears the responsibility and alone has access to
sources of information that qualify it to judge what the necessary action is.
To that there can, in my opinion, be only one sensible answer. That answer is Yes.
I agree with your Lordships that this appeal must be dismissed.
Lord Roskill
My Lords, this appeal arises out of the exercise by the Respondent, the Minister for the
Civil Service, of a specific power vested in her by Article 4 of the Civil Service Order in
Council 1982. That specific power purported to be exercised orally on 22 December 1983.
The terms in which it is claimed to have been exercised are contained in a letter dated 7
February 1984 from Sir Robert Armstrong writing as head of the Civil Service to the
Director of the Government Communications Headquarters at Cheltenham (GCHQ). The
exercise of the power took the form of "instructions that the conditions of service under which civil servants are employed as
members of the staff of the Government Communications Headquarters shall be varied so
as to provide that such civil servants shall not be members of any trade union other than a
departmental staff association approved by yourself."

The making of this change in the conditions of service of civil servants employed at GCHQ
was announced in the House of Commons by the Secretary of State for Foreign and
Commonwealth Affairs on 25 January 1984 and on the same day he issued certificates
Under Section 121(4) of the Employment Protection Act 1975 and Under Section 138(4) of
the Employment Protection (Consolidation) Act 1978 certifying that employment at GCHQ
was to be excepted from those Sections 'for the purpose of safeguarding national security'.
On the same day the Director of GCHQ informed his staff in writing of the decision, of the
issue of the certificates and of the various options which were thereafter to remain open to
them.
My Lords, the background to these actions in December 1983 and January 1984 is fully set
out in the speech of my noble and learned friend Lord Fraser, which I gratefully adopt. It
requires no repetition. Nor does the history of the antecedent rights of those concerned to
join trade unions. That the instructions thus given and the certificates thus issued
drastically altered the trade union rights of those civil servants concerned cannot be
doubted. Nor can it be doubted that the issue of the instructions and of the certificates
without prior warning or consultation of any kind with the various trade unions concerned
either at a national or at a local level involved a complete departure from the normal
manner in which relations between management and staff had hitherto been conducted and
was bitterly resented by some of those immediately involved on the staff side.
My Lords, with matters of that kind your Lordships are in no way concerned. This appeal
is concerned with and only with judicial review. Judicial review, as Lord Brightman stated
in Chief Constable of the North Wales Police v. Evans 'is not an appeal from a decision, but
a review of the manner in which the decision was made'. It is the Appellants' case, stated in
a sentence, that the oral instruction of 22 December 1983 should be judicially reviewed and
declared invalid because of the manner in which the decision which led to those
instructions being given was taken, that is to say without prior consultation of any kind
with the Appellants or, indeed, others. Initially the Appellants also sought judicial review
of the two certificates to which I have referred but that claim has been abandoned.
Before considering the rival submissions in more detail, it will be convenient to make some
general observations about the process now known as judicial review. Today it is perhaps
commonplace to observe that as a result of a series of judicial decisions since about 1950
both in this House and in the Court of Appeal there has been a dramatic and, indeed, a
radical change in the scope of judicial review. That change has been described, by no
means critically, as an upsurge of judicial activism. Historically the use of the old
prerogative writs of certiorari, prohibition and mandamus was designed to establish control
by the Court of King's Bench over inferior courts or tribunals. But the use of those writs,
and of their successors, the corresponding prerogative orders, has become far more
extensive. They have come to be used for the purpose of controlling what would otherwise
be unfettered executive action whether of central or local government. Your Lordships are

not concerned in this case with that branch of judicial review which is concerned with the
control of inferior courts or tribunals. But your Lordships are vitally concerned with that
branch of judicial review which is concerned with the control of executive action. This
branch of public or administrative law has evolved, as with much of our law, on a case by
case basis and no doubt hereafter that process will continue. Thus far this evolution has
established that executive action will be the subject of judicial review on three separate
grounds. The first is where the authority concerned has been guilty of an error of law in its
action, as for example purporting to exercise a power which in law it does not possess. The
second is where it exercises a power in so unreasonable a manner that the exercise
becomes open to review on what are called, in lawyers' shorthand, Wednesbury principles
(see Associated Provincial Picture Houses Ltd. v. Wednesbury Corp). The third is where it
has acted contrary to what are often called 'principles of natural justice'. As to this last, the
use of this phrase is no doubt hallowed by time and much judicial repetition, but it is a
phrase often widely misunderstood and therefore as often misused. That phrase perhaps
might now be allowed to find a permanent resting-place and be better replaced by speaking
of a duty to act fairly. But that latter phrase must not in its turn be misunderstood or
misused. It is not for the courts to determine whether a particular policy or particular
decisions taken in fulfilment of that policy are fair. They are only concerned with the
manner in which those decisions have been taken and the extent of the duty to act fairly
will vary greatly from case to case as, indeed, the decided cases since 1950 consistently
show. Many features will come into play including the nature of the decision and the
relationship of those involved on either side before the decision was taken.
My noble and learned friend Lord Diplock in his speech has devised a new nomenclature
for each of these three grounds, calling them respectively 'illegality', 'irrationality' and
'procedural impropriety', words which, if I may respectfully say so, have the great
advantage of making clear the differences between each ground.
In the present appeal your Lordships are not concerned with the first two matters already
mentioned, with the exercise of a power which does not exist or with Wednesbury
principles. But this appeal is vitally concerned with the third, the duty to act fairly.
The particular manifestation of the duty to act fairly which is presently involved is that part
of the recent evolution of our administrative law which may enable an aggrieved party to
evoke judicial review if he can show that he had 'a reasonable expectation' of some
occurrence or action preceding the decision complained of and that 'reasonable expectation'
was not in the event fulfilled.
The introduction of the phrase 'reasonable expectation' into this branch of our
administrative law appears to owe its origin to Lord Denning MR in Schmidt v. Secretary
of State for Home Affairs (when he used the phrase 'legitimate expectation'). Its judicial
evolution is traced in the opinion of the Judicial Committee delivered by Lord Fraser in A-

G of Hong Kong v. Ng Yuen Shiu. Though the two phrases can, I think, now safely be
treated as synonymous for the reasons there given by my noble and learned friend, I prefer
the use of the adjective 'legitimate' in this context and use it in this speech even though in
argument it was the adjective 'reasonable' which was generally used. The principle may
now said to be firmly entrenched in this branch of the law. As the cases show, the principle
is closely connected with 'a right to be heard'. Such an expectation may take many forms.
One may be an expectation of prior consultation. Another may be an expectation of being
allowed time to make representations, especially where the aggrieved party is seeking to
persuade an authority to depart from a lawfully established policy adopted in connection
with the exercise of a particular power because of some suggested exceptional reasons
justifying such a departure.
The Appellants say that the relationship between management and staff over many years
gave rise to a reasonable expectation of consultation before action involving so drastic a
curtailment of trade union rights as that taken on 22 December 1983 was decreed. It is of
the deprivation of that reasonable expectation that they now principally complain and say
entitles them to judicial review.
In a judgment which, if I may respectfully say so, I have read and reread with increasing
admiration for its thoroughness and clarity, Glidewell J, while in my view correctly
rejecting all the other arguments of the Appellants, accepted this submission. The Court of
Appeal (Lord Lane CJ, Watkins and May LJJ) in a single judgment delivered by the Lord
Chief Justice was of a different opinion. But it is right to say that the submission on which
counsel for the Respondent finally and principally rested was never advanced at all before
Glidewell J and though advanced for the first time in the Court of Appeal does not seem to
have been advanced even there in entirely the same way as in argument before this House,
for it was advanced there on a considerably wider basis than that on which counsel for the
Respondent ultimately came to rest. Counsel for the Appellants understandably made
skilful forensic play with this failure to advance this crucial submission before the judge.
Thus the House has not got the benefit of the views of Glidewell J on what I regard as the
crucial issue for the determination of this appeal.
My Lords, before considering this issue it is necessary to consider a further important
question which arises by reason of the fact that the instructions given under Article 4 of the
1982 Order in Council were by means of the exercise of a prerogative power. The
Appellants in their printed case invited the House to consider and if necessary to reconsider
the reviewability of executive acts done under the prerogative. Counsel for the Respondent
understandably did not press the argument that no action taken under the prerogative could
ever be the subject of judicial review. But, helpfully, he thought it right to make available
to your Lordships a selection from the classic pronouncements of many famous writers in
this field from Locke through Blackstone and Chitty to Dicey and from the writings of
distinguished modern authorities including de Smith, Wade, Hood Phillips and Heuston

designed to show, first, the historic view that acts done under the prerogative were never
reviewable and, second, the extent to which that classic doctrine may at least in this
century be said to have been diluted.
Dicey's classic statement in Law of the Constitution (10th edn, 1959) that the prerogative is
'the residue of discretionary or arbitrary authority, which at any given time is legally left in
the hands of the Crown' has the weight behind it not only of the author's own authority but
also of the majority of this House in Burmah Oil Co. (Burma Trading) Ltd. v. Lord
Advocate per Lord Reid. But as Lord Reid himself pointed out, this definition 'does not
take us very far'. On the other hand the attempt by Lord Denning MR in Laker Airways
Ltd. v. Dept of Trade (obiter since the other members of the Court of Appeal did not take so
broad a view) to assert that the prerogative 'if... exercised improperly or mistakenly' was
reviewable is, with great respect, far too wide. Lord Denning MR sought to support his
view by a quotation from Blackstone's Commentaries (1 Bl Com (15th edn) 252). But
unfortunately and no doubt inadvertently he omitted the opening words of the paragraph:
In the exercise therefore of those prerogatives, which the law has given him, the King is
irresistible and absolute, according to the forms of the constitution and yet, if the
consequence of that exertion be manifestly to the grievance or dishonour of the kingdom,
the parliament will call his advisers to a just and severe account."
In short the orthodox view was at that time that the remedy for abuse of the prerogative lay
in the political and not in the judicial field.
But, fascinating as it is to explore this mainstream of our legal history, to do so in
connection with the present appeal has an air of unreality. To speak today of the acts of the
sovereign as 'irresistible and absolute' when modern constitutional convention requires that
all such acts are done by the sovereign on the advice of and will be carried out by the
sovereign's ministers currently in power is surely to hamper the continual development of
our administrative law by harking back to what Lord Atkin once called, albeit in a different
context, the clanking of medieval chains of the ghosts of the past: see United Australia Ltd.
v. Barclays Bank Ltd. It is, I hope, not out of place in this connection to quote a letter
written in 1896 by the great legal historian F.W. Maitland to Dicey himself: 'the only direct
utility of legal history (I say nothing of its thrilling interest) lies in the lesson that each
generation has an enormous power of shaping its own law': see Cosgrove The Rule of Law:
Albert Venn Dicey: Victorian Jurist. Maitland was in so stating a greater prophet than even
he could have foreseen, for it is our legal history which has enabled the present generation
to shape the development of our administrative law by building on but unhampered by our
legal history.
My Lords, the right of the executive to do a lawful act affecting the rights of the citizen,
whether adversely or beneficially, is founded on the giving to the executive of a power
enabling it to do that act. The giving of such a power usually carries with it legal sanctions

to enable that power if necessary to be enforced by the courts. In most cases that power is
derived from statute though in some cases, as indeed in the present case, it may still be
derived from the prerogative. In yet other cases, as the decisions show, the two powers may
coexist or the statutory power may by necessary implication have replaced the former
prerogative power. If the executive in pursuance of the statutory power does an act
affecting the rights of the citizen, it is beyond question that in principle the manner of the
exercise of that power may today be challenged on one or more of the three grounds which
I have mentioned earlier in this speech. If the executive instead of acting under a statutory
power acts under a prerogative power and in particular a prerogative power delegated to
the Respondent under Article 4 of the 1982 Order in Council so as to affect the rights of the
citizen, I am unable to see, subject to what I shall say later, that there is any logical reason
why the fact that the source of the power is the prerogative and not statute should today
deprive the citizen of that right of challenge to the manner of its exercise which he would
possess were the source of the power statutory. In either case the act in question is the act
of the executive. To talk of that act as the act of the sovereign savours of the archaism of
past centuries. In reaching this conclusion I find myself in agreement with my noble and
learned friends Lord Scarman and Lord Diplock, whose speeches I have had the advantage
of reading in draft since completing the preparation of this speech.
But I do not think that right of challenge can be unqualified. It must, I think, depend on the
subject matter of the prerogative power which is exercised. Many examples were given
during the argument of prerogative powers which as at present advised I do not think could
properly be made the subject of judicial review. Prerogative powers such as those relating
to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of
honours, the dissolution of Parliament and the appointment of ministers as well as others
are not, I think, susceptible to judicial review because their nature and subject matter is
such as not to be amenable to the judicial process. The courts are not the place wherein to
determine whether a treaty should be concluded or the armed forces disposed in a
particular manner or Parliament dissolved on one date rather than another.
In my view the exercise of the prerogative which enabled the oral instructions of 22
December 1983 to be given does not by reason of its subject matter fall within what for
want of a better phrase I would call the 'excluded categories', some of which I have just
mentioned. It follows that in principle I can see no reason why those instructions should
not be the subject of judicial review.
My Lords, I am not conscious of any previous decision of this House which is inconsistent
with the principles I have just endeavoured to state. It may well be that there are decisions
or dicta of other courts which are inconsistent. R v. Secretary of State for War arose in
connection with the armed forces, with which this appeal is not concerned, but, even so,
some of the reasoning cannot I think now be supported. There are also passages in the
judgments of the Court of Appeal in Crown Lands Comrs v. Page and in the opinion of

Lord Sorn in Griffin v. Lord Advocate 1950 SC 448 (to mention but two decisions) which
require reconsideration in the light of the decision of this House in this appeal; in the latter
case, Lord Sorn mainly followed the first of these three cases.
I find considerable support for the conclusion I have reached in the decision of the
Divisional Court (Lord Parker CJ, Diplock LJ and Ashworth J) in R v. Criminal Injuries
Compensation Board, ex p Lain the judgments in which may without exaggeration be
described as a landmark in the development of this branch of the law. The board had been
set up not by statute but by executive action under, as I think and as Lord Parker CJ stated,
the prerogative. It was strenuously argued that the board was not subject to the jurisdiction
of the courts since it did not have what was described as legal authority in the sense of
statutory authority. This argument by Mr. Nigel Bridge was emphatically and unanimously
rejected. I will quote one passage from the judgment of Lord Parker CJ:
"I can see no reason either in principle or in authority why a board, set up as this board
were set up, should not be a body of persons amenable to the jurisdiction of this Court.
True the board are not set up by statute but the fact that they are set up by executive
government, i.e., under the prerogative, does not render their acts any the less lawful.
Indeed, the writ of certiorari has been issued not only to courts set up by statute but to
courts whose authority was derived, inter alia, from the prerogative. Once the jurisdiction
is extended, as it clearly has been, to tribunals as opposed to courts, there is no reason why
the remedy by way of certiorari cannot be invoked to a body of persons set up under the
prerogative. Moreover the board, though set up under the prerogative and not by statute,
had in fact the recognition of Parliament in debate and Parliament provided the money to
satisfy the board's awards."
I would also refer, albeit without citation, to the entirety of the judgment delivered by
Diplock LJ.
It follows from what I have said thus far that in principle I am of the clear opinion that the
Respondent's oral instructions of 22 December 1983 are amenable to judicial review and
are not immune from such review because the instructions were given pursuant to
prerogative powers.
The next question is whether they are susceptible of successful challenge on the third of the
grounds mentioned earlier, namely that the Appellants had 'a legitimate expectation' of
consultation prior to any such instructions being given which radically affected the longestablished rights of the staff at GCHQ to be members of trade unions.
It was common ground before your Lordships, though it was not common ground below,
that there was no contractual relationship between the Crown and the staff at GCHQ.
Counsel for the Respondent accepted that the absence of a contractual relationship and thus
of a remedy in private law did not preclude the possibility of a remedy in public law if a

legitimate expectation of consultation were established. But he suggested that the absence
of such a relationship in private law made it difficult to establish a legitimate expectation
justiciable in the field of public law without eroding the basic principle that, at least in
theory, civil servants are dismissible by the Crown at will and thus have no remedy in
private law. He further argued that, even if in principle there were a legitimate expectation
of the nature for which the Appellants contended, that legitimate expectation could not
exist when the government of the day considered that their duty in the field of national
security required them not to give effect to any such legitimate expectation as might
otherwise exist. Once, he contended, the Respondent on the material before her could
conclude that consultations of the kind contended for by the Appellants could and, indeed,
would damage national security, any obligation to consult the Appellants prior to taking the
decision disappeared. Indeed, counsel for the Respondent went so far as to contend that in
such circumstances the Respondent was under a duty not to consult the Appellants lest
otherwise the very mischief which she feared might arise would arise.
My Lords, if no question of national security were involved I cannot doubt that the
evidence and the whole history of the relationship between management and staff since
1919 shows that there was a legitimate expectation of consultation before important
alterations in the conditions of service of civil servants were made. No doubt in strict
theory civil servants are dismissible at will and the various documents shown to your
Lordships seek to preserve the strict constitutional position. But in reality the managementstaff relationship is governed by an elaborate code, to which it is unnecessary to refer in
detail. I have little doubt that, were management to seek to alter without prior consultation
the terms and conditions of civil servants in a field which had no connection whatever with
national security or perhaps, though the matter does not arise in this appeal, with urgent
fiscal emergency, such action would in principle be amenable to judicial review.
But that is not the present issue. It is asserted on behalf of the Respondent that the reason
for the instructions being given without prior consultation was that it was feared that so to
consult would have given rise to grave risk of industrial action through the reaction of the
Appellants and others and thus have brought about the very situation which the oral
instructions were themselves designed to avoid, namely the risk of industrial action by the
staff at GCHQ caused or at least facilitated by a membership of trade unions, and
damaging to national security. GCHQ was, it was said, and is, highly vulnerable to
industrial action and prior consultation would have revealed to those who had previously
organised disruption that high degree of vulnerability.
My Lords, the conflict between private rights and the rights of the state is not novel either
in our political history or in our courts. Historically, at least since 1688, the courts have
sought to present a barrier to inordinate claims by the executive. But they have also been
obliged to recognise that in some fields that barrier must be lowered and that on occasions,
albeit with reluctance, the courts must accept that the claims of executive power must take

precedence over those of the individual. One such field is that of national security. The
courts have long shown themselves sensitive to the assertion by the executive that
considerations of national security must preclude judicial investigation of a particular
individual grievance. But even in that field the courts will not act on a mere assertion that
questions of national security were involved. Evidence is required that the decision under
challenge was in fact founded on those grounds. that principle exists is I think beyond
doubt. In a famous passage in The Zamora Lord Parker, delivering the opinion of the
Judicial Committee, said:
"Those who are responsible for the national security must be the sole judges of what the
national security requires. It would be obviously undesirable that such matters should be
made the subject of evidence in Court of law or otherwise discussed in public."
The Judicial Committee were there asserting what I have already sought to say, namely that
some matters, of which national security is one, are not amenable to the judicial process.
The force of the passage I have quoted is in no way diminished by the fact, much relied on
by counsel for the Appellants, that in that case the Crown failed because it had failed to
adduce before the Prize Court the requisite evidence of urgent necessity, proof of which
was essential if the right of angary were to be successfully invoked in relation to a cargo in
the custody of the Prize Court. This last-mentioned fact merely reinforces what I have just
said, that evidence and not mere assertion must be forthcoming.
A similar problem arose in Chandler v. DPP a case Under Section 1 of the Official Secrets
Act 1911. Lord Reid expressly stated that he did not 'subscribe to the view that the
government or a minister must always or even as a general Rule have the last word' about
the safety or interests of the state. But he agreed, in common with all the other members of
the House, that cross-examination was not permissible to challenge the evidence of a senior
air force officer that a proposed obstruction of an airfield was contrary to the 'safety or
interests of the state' which were the relevant words of the statute. Viscount Radcliffe said:
"The defence of the state from external enemies is a matter of real concern, in time of
peace as in days of war. The disposition, armament and direction of the defence forces of
the state are matters decided by the Crown and are within its jurisdiction as the executive
power of the state. So are treaties and alliances with other states for mutual defence."
The other Law Lords then sitting shared Lord Reid's view, though I venture most
respectfully to question one observation of Lord Devlin's where, after referring to The
Zamora, he said:
"It is said that in such cases the minister's statement is conclusive. Certainly: but conclusive
of what? Conclusive, in the absence of any allegation of bad faith or abuse, that he does
think what he says he thinks. The court refrains from any inquiry into the question whether
the goods are, in fact, necessary, not because it is bound to accept the statement of the

Crown that they are and to find accordingly, but because that is not the question which it
has to decide."
I respectfully suggest that passage is out of line with the views expressed by the other Law
Lords then sitting.
The same problem arose in R v. Secretary of State for the Home Dept, ex p Hosenball
where the Court of Appeal and in particular Lord Denning MR accepted that, if the case
had been one 'in which the ordinary rules of natural justice were to be observed, some
criticism could be directed on it' but held that the interests of national security must
override the Appellants' private rights and that, where compliance with the requirements of
natural justice would itself have revealed that which it was in the interests of national
security not to reveal, private rights must yield to the public interest.
My Lords, I venture to think that today this principle cannot be disputed. The question is
whether, on the evidence before your Lordships, the Respondent is entitled to assert that it
was for fear of revealing the vulnerability of GCHQ to industrial action that it was decided
that advance consultation could not take place. Counsel for the Appellants did not contest
that there was evidence on which a reasonable minister might have taken that view or,
indeed, that the Respondent as a reasonable minister might have taken that view. His main
contention was that the submission on behalf of the Respondent to be found encapsulated
in para 27(i) of the Respondent's case thus:
"It was considered that consultation would involve a real risk that it would occasion the
very kind of disruption which was a threat to national security and which it was intended to
avoid. Having regard to these factors a reasonable Minister could properly take the
decision without consultation"
was an afterthought and unjustified by the evidence adduced on the Respondent's behalf.
In its judgment, the Court of Appeal set out three of the assertions by or on behalf of the
trade unions concerned regarding the possibility of and the effect of disruption at GCHQ
by industrial action. There are many other similar statements in the evidence. I refer only to
two of these other statements. The first is:
"Walkouts in key installations have affected Britain's defence capability in general, and
crippled the UK contribution to the NATO exercise "Wintex"."
The other, under the heading 'Government Communications', is:
"48 hour walkouts have severely hit secret monitoring stations belonging to the Composite
Signals Organisation. The Government is clearly worried and will be subject to huge
pressure from NATO allies."

Nevertheless, counsel for the Appellants claimed that careful reading of Sir Robert
Armstrong's first affidavit, and in particular para 16 of that affidavit, did not support the
view that this was a consideration which the Respondent had ever had in mind. My Lords,
with all respect, para 16 must not be divorced from its contents or read in isolation from the
paragraphs which both precede it and follow it. Paragraphs 13 to 18 inclusive must all be
read together. In those paragraphs I read Sir Robert as explaining why the possibility of
negotiating a non-disruption agreement was considered and rejected. I draw particular
attention to the penultimate sentence in, which reads:
"To have entered such consultations would have served to bring out the vulnerability of
areas of operations to those who had shown themselves ready to organise disruption and
consultation with individual members of staff at GCHQ would have been impossible
without involving the national unions."
Ministers also were of the view that the importance of the decision was such as to warrant
its first being announced in Parliament. This passage read in the context of the
documentary evidence exhibited to Sir Robert's affidavit to which I have already referred
seems to me to make abundantly clear why the Respondent and other ministers declined to
engage in consultations in advance of issuing the instructions. It was argued that such
consultation might have led to a non-disruption agreement such as was later suggested on
behalf of the Appellants. But the draft of that agreement clearly does not achieve that
which the Respondent sought to achieve by the instructions and the evidence clearly shows
that the national unions, without whose co-operation a non-disruption agreement would
have been valueless, were not prepared to countenance such an agreement. It was also
suggested that if consultation had taken place regarding the polygraph there was no reason
why consultation should not take place regarding the intended instructions. My Lords, the
short answer to that is that the two are not comparable.
My Lords, I have therefore reached the clear conclusions, first, that the Respondent has
established that the work at GCHQ was a matter of grave national security, second, that
security would have been seriously compromised had industrial action akin to that
previously encountered between 1979 and 1981 taken place, third, that consultation with
the Appellants prior to the oral instructions would have served only further to reveal the
vulnerability of GCHQ to such industrial action, fourth, that it was in the interests of
national security that should not be allowed to take place and, fifth, that accordingly the
Respondent was justified in the interests of national security in issuing the instructions
without prior consultation with the Appellants.
That conclusion accords with the conclusion reached by the Court of Appeal and must lead
to the result that the appeal should be dismissed. I would only add, again in agreement with
the Court of Appeal, that had the matter been argued before the judge, as it was in the

Court of Appeal and before this House, he might well have reached a different conclusion
from that which he reached.
For the sake of completeness I would add that I reject the separate argument of counsel for
the Appellants that the oral instructions were in any event bad as insufficiently specific or
precise. I am in complete agreement with the views of both courts below on that
submission.
I do not find it necessary to say anything about what became known as the 'futility
argument', that is to say that even if consultation were required it would have been futile
because it would have been of no effect. On the view I take, that matter does not arise for
decision.
Lord Brightman
My Lords, I also would dismiss this appeal for one reason only, namely on the ground of
national security. The evidence is compelling that the Minister for the Civil Service acted
without prior consultation with the unions concerned because she believed, and reasonably
believed, that such process of prior consultation might result in disruption that would pose
a threat to the security of the nation. This factor overrode the right in public law which the
unions would otherwise have had, on the facts of this particular case, to be consulted
before the instruction of 22 December 1983 was given.
There is nothing which I can usefully add to the comprehensive survey which your
Lordships have already made of the authorities on the reviewability of decisions taken
under the royal prerogative. There is no difference between the conclusions reached by
your Lordships except on one isolated point: whether the reviewability of an exercise of a
prerogative power is limited to the case where the power has been delegated to the
decision-maker by Order in Council, so that the decision-making process which is sought
to be reviewed arises under and must be exercised in accordance with the terms of that
order, or whether reviewability may also extend, in an appropriate case, to a direct exercise
of a prerogative power. Like my noble and learned friend Lord Fraser, I would prefer to
leave the resolution of that question to a case where it must necessarily be determined.
For the reason indicated, I would dismiss this appeal.

CHINTAMANARAO V. STATE OF MADHYA PRADESH, AIR 1951 SC 118

Mahajan, J.
1. These two applications for enforcement of the fundamental right guaranteed under
article 19(1)(g) of the Constitution of India have been made by a proprietor and an
employee respectively of a bidi manufacturing concern of District Sagar (State of Madhya
Pradesh). It is contended that the law in force in the State authorizing it to prohibit the
manufacture of bidis in certain villages including the one wherein the applicants reside is
inconsistent with the provisions of Part III of the Constitution and is consequently void.
2. The Central Provinces and Berar Regulation of Manufacture of Bidis (Agricultural
Purposes) Act, LXIV of 1948, was passed on 19th October 1948 and was the law in force
in the State at the commencement of the Constitution. Sections 3 and 4 of the Act are in
these terms :"3. The Deputy Commissioner may by notification fix a period to be an agricultural
season with respect to such villages as may be specified therein.
4. (1) The Deputy Commissioner may, by general order which shall extend to such
villages as he may specify, prohibit the manufacture of bidis during the agricultural
season.
(2) No person residing in a village specified in such order shall during the
agricultural season engage himself in the manufacture of bidis, and no
manufacturer shall during the said season employ any person for the manufacture
of bidis".
3. On the 13th June 1950 an order was issued by the Deputy Commissioner of Sagar under
the provisions of the Act forbidding all persons residing in certain villages from engaging
in the manufacture of bidis. On the 19th June 1950 these two petitions were presented to
this Court under article 32 of the Constitution challenging the validity of the order as it
prejudicially affected the petitioners' right of freedom of occupation and business. During
the pendency of the petitions the season mentioned in the order of the 13th June ran out. A
fresh order for the ensuing agricultural season - 8th October to 18th November 1950 - was
issued on 29th September 1950 in the same terms. This order was also challenged in a
supplementary petition.
4. Article 19(1)(g) runs as follows :-

"All citizens shall have the right to practise any profession, or to carry on any occupation,
trade or business."
5. The article guarantees freedom of occupation and business. The freedom guaranteed
herein is, however, subject to the limitations imposed by clause (6) of article 19. That
clause is in these terms :"Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in
so far as it imposes, or prevent the State from making any law imposing, in the interests of
the general public, reasonable restrictions on the exercise of the right conferred by the said
sub-clause, and in particular, nothing in the said sub-clause shall affect the operation of any
existing law in so far as it prescribes or empowers any authority to prescribe, or prevent the
State from making any law prescribing or empowering any authority to prescribe, the
professional or technical qualifications necessary for practising any profession or carrying on
any occupation, trade or business."
6. The point for consideration in these applications is whether the Central Provinces and
Berar Act LXIV of 1948 comes within the ambit of this saving clause or is in excess of its
provisions. The learned counsel for the petitioners contends that the impugned Act does not
impose reasonable restrictions on the exercise of the fundamental right in the interests of
the general public but totally negatives it. In order to judge the validity of this contention it
is necessary to examine the impugned Act and some of its provisions. In the preamble to
the Act, it is stated that it has been enacted to provide measures for the supply of adequate
labour for agricultural purposes in bidi manufacturing areas. Sections 3 and 4 cited above
empower the Deputy Commissioner to prohibit the manufacture of bidis during the
agricultural season. The contravention of any of these provisions is made punishable by
section 7 of the Act, the penalty being imprisonment for a term which may extend to six
months or with fine or with both. It was enacted to help in the grow more food campaign
and for the purpose of bringing under the plough considerable areas of fallow land.
7. The question for decision is whether the statute under the guise of protecting public
interests arbitrarily interferes with private business and imposes unreasonable and
unnecessarily restrictive regulations upon lawful occupation; in other words, whether the
total prohibition of carrying on the business of manufacture of bidis within the agricultural
season amounts to a reasonable restriction on the fundamental rights mentioned in
article 19(1)(g) of the Constitution. Unless it is shown that there is a reasonable relation of
the provisions of the Act to the purpose in view, the right of freedom of occupation and
business cannot be curtailed by it.
8. The phrase "reasonable restriction" connotes that the limitation imposed on a person in
enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is
required in the interests of the public. The word "reasonable" implies intelligent care and
deliberation, that is, the choice of a course which reason dictates. Legislation which

arbitrarily or excessively invades the right cannot be said to contain the quality of
reasonableness and unless it strikes a proper balance between the freedom guaranteed in
article 19(1)(g) and the social control permitted by clause (6) of article 19, it must be held
to be wanting in that quality.
9. Clause (6) in the concluding paragraph particularizes certain instances of the nature of
the restrictions that were in the mind of the constitution-makers and which have the quality
of reasonableness. They afford a guide to the interpretation of the clause and illustrate the
extent and nature of the restrictions which according to the statute could be imposed on the
freedom guaranteed in clause (g). The statute in sub-stance and affect suspends altogether
the right mentioned in article 19(1)(g) during the agricultural seasons and such suspension
may lead to such dislocation of the industry as to prove its ultimate ruin. The object of the
statute is to provide measures for the supply of the adequate labour for agricultural
purposes in bidi manufacturing areas of the Province and it could well be achieved by
legislation restraining the employment of agricultural labour in the manufacture of bidis
during the agricultural season. Even in point of time a restriction may well have been
reasonable if it amounted to a regulation of the hours of work in the business. Such
legislation though it would limit the field for recruiting persons for the manufacture of
bidis and regulate the hours of the working of the industry, would not have amounted to a
complete stoppage of the business of manufacture and might well have been within the
ambit of clause (6). The effect of the provisions of the Act, however, has no reasonable
relation to the object in view but is so drastic in scope that it goes much in excess of that
object. Not only are the provisions of the statute in excess of the requirements of the case
but the language employed prohibits a manufacturer of bidis from employing any person in
his business, no matter wherever that person may be residing. In other words, a
manufacturer of bidis residing in this area cannot import labour from neighbouring places
in the district or province or from outside the province. Such a prohibition on the face of it
is of an arbitrary nature inasmuch as it has no relation whatsoever to the object which the
legislation seeks to achieve and as such cannot be said to be a reasonable restriction on the
exercise of the right. Further the statute seeks to prohibit all persons residing in the notified
villages during the agricultural season from engaging themselves in the manufacture of
bidis. It cannot be denied that there would be a number of infirm and disabled persons, a
number of children, old women and petty shop keepers residing in these villages who are
incapable of being used for agricultural labour. All such persons are prohibited by law from
engaging themselves in the manufacture of bidis; and are thus being deprived of earning
their livelihood. It is a matter of common knowledge that there are certain classes of
persons residing in every village who do not engage in agricultural operations. They and
their womenfolk and children in their leisure hours supplement their income by engaging
themselves in bidi business. There seems no reason for prohibiting them from carrying on
this occupation. The statute as it stands, not only compels those who can be engaged in
agricultural work from not taking to other avocations, but it also prohibits persons who
have no connection or relation to agricultural operations from engaging in the business of

bidi making and thus earning their livelihood. These provisions of the statute, in our
opinion, cannot be said to amount to reasonable restrictions on the right of the applicants
and that being so, the statute is not in conformity with the provisions of Part III of the
Constitution. The law even to the extent that it could be said to authorize the imposition of
restrictions in regard to agricultural labour cannot be held valid because the language
employed is wide enough to cover restrictions both within and without the limits of
constitutionally permissible legislative acting affecting the right. So long as the possibility
of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it
must be held to be wholly void.
10. Mr. Sikkri for the Government of Madhya Pradesh contends that the legislature of
Madhya Pradesh was the proper judge of the reasonableness of the restrictions imposed by
the statute, that that legislature alone knew the conditions prevailing in the State and it
alone could say what kind of legislation could effectively achieve the end in view and
would help in the grow more food campaign and would help for bringing in fallow land
under the plough and that this Court sitting at this great distance could not judge by its own
yardstick of reason whether the restrictions imposed in the circumstances of the case were
reasonable or not. This argument runs counter to the clear provisions of the Constitution.
The determination by the legislature of what constitutes a reasonable restriction is not final
or conclusive; it is subject to the supervision by this Court. In the matter of fundamental
rights, the Supreme Court watches and guards the rights guaranteed by the Constitution and
in exercising its functions it has the power to set aside an Act of the Legislature of it is in
violation of the freedoms guaranteed by the Constitution. We are therefore of opinion that
the impugned statute does not stand the test of reasonableness and is therefore void.
11. The result therefore is that the orders issued by the Deputy Commissioner on 13th June
1950 and 26th September 1950 are void, inoperative and ineffective. We therefore direct
the respondents not to enforce the provisions contained in section 4 of the Act against the
petitioners in any manner whatsoever. The petitioners will have their costs of these
proceedings in the two petitions.
12. Petitions allowed.

DESTRUCTION OF PUBLIC AND PRIVATE PROPERTIES, IN RE VS. STATE OF

ANDHRA PRADESH AND OTHERS, (2009) 5 SCC 212.

Arijit Pasayat, J.
1. Taking a serious note of various instances where there was large scale destruction of
public and private properties in the name of agitations, bandhs, hartals and the like, suo
motu proceedings were initiated by a Bench of this Court on 5.6.2007. Dr. Rajiv Dhawan,
Senior counsel of this Court agreed to act as Amicus Curiae. After perusing various reports
filed, two Committees were appointed; one headed by a retired Judge of this Court Justice
K.T. Thomas. The other members of this Committee were Mr. K. Parasaran, Senior
Member of the legal profession, Dr. R.K. Raghvan, Ex-Director of CBI, and Mr. G.E.
Vahanavati, the Solicitor General of India and an officer not below the rank of Additional
Secretary of Ministry of Home Affairs and the Secretary of Department of Law and Justice,
Government of India. The Other Committee was headed by Mr. F.S. Nariman, a Senior
Member of the Legal Profession. The other members of the Committee were the Editor-inChief of the Indian Express, the Times of India and Dainik Jagaran, Mr. Pranay Roy of
NDTV and an officer not below the rank of Additional Secretary of Ministry of Home
Affairs, Information and Broadcasting and Secretary, Department of Law and Justice,
Government of India, Mr. G.E. Vahanavati, Solicitor General and learned Amicus Curiae.
2. Two reports have been submitted by the Committees. The matter was heard at length.
The recommendations of the Committees headed by Justice K.T. Thomas and Mr. F.S.
Nariman have been considered.
3. Certain suggested guidelines have also been submitted by learned Amicus Curiae.
4. The report submitted by Justice K.T. Thomas Committee has made the following
recommendations:
(i) The PDPP Act must be so amended as to incorporate a rebuttable presumption
(after the prosecution established the two facets) that the accused is guilty of the
offence.
(ii) The PDPP Act to contain provision to make the leaders of the organization,
which calls the direct action, guilty of abetment of the offence.
(iii) The PDPP Act to contain a provision for rebuttable presumption.

(iv) Enable the police officers to arrange videography of the activities damaging
public property.
The recommendations have been made on the basis of the following conclusions after
taking into consideration the materials.
In respect of (i)
According to this Committee the prosecution should be required to prove,
first that public property has been damaged in a direct action called by an
organization and that the accused also participated in such direct action.
From that stage the burden can be shifted to the accused to prove his
innocence. Hence we are of the view that in situations where prosecution
succeeds in proving that public property has been damaged in direct actions
in which accused also participated, the court should be given the power to
draw a presumption that the accused is guilty of destroying public property
and that it is open to the accused to rebut such presumption. The PDPP Act
may be amended to contain provisions to that effect.
In respect of (ii)
Next we considered how far the leaders of the organizations can also be
caught and brought to trial, when public property is damaged in the direct
actions called at the behest of such organizations. Destruction of public
property has become so rampant during such direct actions called by
organizations. In almost all such cases the top leaders of such organisations
who really instigate such direct actions will keep themselves in the
background and only the ordinary or common members or grass root level
followers of the organisation would directly participate in such direct
actions and they alone would be vulnerable to prosecution proceedings. In
many such cases, the leaders would really be the main offenders being the
abettors of the crime. If they are not caught in the dragnet and allowed to be
immune from prosecution proceedings, such direct actions would continue
unabated, if not further escalated, and will remain a constant or recurring
affair.
Of course, it is normally difficult to prove abetment of the offence with the
help of direct evidence. This flaw can be remedied to a great extent by
making an additional provision in PDPP Act to the effect that specified
categories of leaders of the organization which make the call for direct
actions resulting in damage to public property, shall be deemed to be guilty
of abetment of the offence. At the same time, no innocent person, in spite of
his being a leader of the organization shall be made to suffer for the actions

done by others. This requires the inclusion of a safeguard to protect such

innocent leaders.
In respect of (iii)
After considering various aspects to this question we decided to recommend that prosecutions
should be required to prove (i) that those accused were the leaders or office bearers of the
organisation which called out the direct actions and (ii) that public property has been
damaged in or during or in the aftermath of such direct actions. At that stage of trial it should
be open to the court to draw a presumption against such persons who are arraigned in the case
that they have abetted the commission of offence. However, the accused in such case shall
not be liable to conviction if he proves that (i) he was in no way connected with the action
called by his political party or that (ii) he has taken all reasonable measures to prevent
causing damage to public property in the direct action called by his organisation.
In respect of (iv)
The Committee considered other means of adducing evidence for averting
unmerited acquittals in trials involving offences under PDPP Act. We felt
that one of the areas to be tapped is evidence through videography in
addition to contemporaneous material that may be available through the
media, such as electronic media. With the amendments brought in the
Evidence Act, through Act 21 of 2000 permitting evidence collected
through electronic devices as admissible in evidence, we wish to
recommend the following:
i) If the officer in charge of a police station or other law enforcing
agency is of opinion that any direct action, either declared or
undeclared has the potential of causing destruction or damage to
public property, he shall avail himself of the services of video
operators. For this purpose each police station shall be empowered
to maintain a panel of local video operators who could be made
available at short notices.
(ii) The police officer who has the responsibility to act on the
information that a direct action is imminent and if he has reason to
apprehend that such direct action has the potential of causing
destruction of public property, he shall immediately avail himself of
the services of the videographer to accompany him or any other
police officer deputed by him to the site or any other place
wherefrom video shooting can conveniently be arranged
concentrating on the person/ persons indulging in any acts of
violence or other acts causing destruction or damage to any

property. iii) No sooner than the direct action subsides, the police
officer concerned shall authenticate the video by producing the
videographer before the Sub Divisional or Executive Magistrate
who shall record his statement regarding what he did. The original
tapes or CD or other material capable of displaying the recorded
evidence shall be produced before the said Magistrate. It is open to
the Magistrate to entrust such CD/material to the custody of the
police officer or any other person to be produced in court at the
appropriate stage or as and when called for.
The Committee felt that offenders arrested for damaging public property shall be
subjected to a still more stringent provision for securing bail. The discretion of the
court in granting bail to such persons should be restricted to cases where the court
feels that there are reasonable grounds to presume that he is not guilty of the
offence. This is in tune with Section 437 of the Code of Criminal Procedure, 1973
and certain other modern Criminal Law statutes. So we recommend that
Section 5 may be amended for carrying out the above restriction.
Thus we are of the view that discretion to reduce the minimum sentence on
condition of recording special reasons need not be diluted. But, instead of "reasons"
the court should record "special reasons" to reduce the minimum sentence
prescribed.
However, we felt that apart from the penalty of imprisonment the court should be
empowered to impose a fine which is equivalent to the market value of the property
damaged on the day of the incident. In default of payment of fine, the offender
shall undergo imprisonment for a further period which shall be sufficient enough to
deter him from opting in favour of the alternative imprisonment.
The recommendations according to us are wholesome and need to be accepted.
To effectuate the modalities for preventive action and adding teeth to enquiry/investigation
following guidelines are to be observed: As soon as there is a demonstration organized:
(I) The organizer shall meet the police to review and revise the route to be taken
and to lay down conditions for a peaceful march or protest;
(II) All weapons, including knives, lathis and the like shall be prohibited;
(III) An undertaking is to be provided by the organizers to ensure a peaceful march
with marshals at each relevant junction;

(IV) The police and State Government shall ensure videograph of such protests to
the maximum extent possible;
(V) The person in charge to supervise the demonstration shall be the SP (if the
situation is confined to the district) and the highest police officer in the State,
where the situation stretches beyond one district;
(VI) In the event that demonstrations turn violent, the officer-in-charge shall ensure
that the events are videographed through private operators and also request such
further information from the media and others on the incidents in question.
(VII) The police shall immediately inform the State Government with reports on
the events, including damage, if any, caused .
(VIII) The State Government shall prepare a report on the police reports and other
information that may be available to it and shall file a petition including its report
in the High Court or Supreme Court as the case may be for the Court in question to
take suo motu action.
So far as the Committee headed by Mr. F.S. Nariman is concerned the recommendations
and the views are essentially as follows:
There is a connection between tort and crime - the purpose of the criminal law is to
protect the public interest and punish wrongdoers, the purpose of tort-law is to
vindicate the rights of the individual and compensate the victim for loss, injury or
damage suffered by him: however - the distinction in purpose between criminal law
and the law of tort is not entirely crystal-clear, and it has been developed from
case-to-case. The availability of exemplary damages in certain torts (for instance)
suggest an overtly punitive function - but one thing is clear: tort and criminal law
have always shared a deterrent function in relation to wrongdoing.
The entire history of the development of the tort law shows a continuous tendency,
which is naturally not uniform in all common law countries, to recognise as worthy
of legal protection, interests which were previously not protected at all or were
infrequently protected and it is unlikely that this tendency has ceased or is going to
cease in future. There are dicta both ancient and modern that categories of tort are
not closed and that novelty of a claim is no defence. But generally, the judicial
process leading to recognition of new tort situations is slow and concealed for
judges are cautious in making innovations and they seldom proclaim their creative
role. Normally, a new principle is judicially accepted to accommodate new ideas of
social welfare or public policy only after they have gained their recognition in the
society for example in extra judicial writings and even then the decision accepting

the new principle is supported mainly by expansion or restriction of existing

principles which "gradually receive a new content and at last a new form".
Where persons, whether jointly or otherwise, are part of a protest which turns
violent, results in damage to private or public property, the persons who have
caused the damage, or were part of the protest or who have organized will be
deemed to be strictly liable for the damage so caused, which may be assessed by
the ordinary courts or by any special procedure created to enforce the right.
This Committee is of the view that it is in the spirit of the observation in M.C.
Mehta v. Union of India MANU/SC/0092/1986
: [1987]1SCR819 that this

Court needs to lay down principles on which liability could be fastened and
damages assessed in cases in which due to behaviour of mobs and riotous groups
public and private property is vandalized and loss of life and injury is occasioned to
innocent persons. These are clearly "unusual situations", which have arisen and
likely to arise in future and need to be provided for in the larger interest of justice.
It is on the principles set out above that (it is suggested) that the Hon'ble Court
should frame guidelines and venture to evolve new principles (of liability) to meet
situations that have already arisen in the past and are likely to arise again in future,
so that speedy remedies become available to persons affected by loss of life, injury
and loss of properties, public or private, as a result of riots and civil commotions.
Damages in the law of torts in India include
(a) damages based on the concept of restituto in interregnum to enable total
recompense; and
(b) exemplary damages" The basic principles as suggested by Nariman
Committee are as follows which we find to be appropriate: (1) The basic
principle for measure of damages in torts (i.e. wrongs) in property is that
there should be `restituto in interregnum' which conveys the idea of
"making whole".
(2) Where any injury to property is to be compensated by damages, in
settling the sum of money to be given for reparation by way of damages the
Court should as nearly as possible get at that sum of money which will put
the party who has suffered, in the same position as he would have been in if
he had not sustained the wrong for which he is now getting his
compensation or reparation.

(3) In this branch of the law, the principle of restitution in interregnum has
been described as the "dominant" rule of law. Subsidiary rules can only be
justified if they give effect to that rule.
In actions in tort where damages are at large i.e. not limited to the pecuniary loss
that can be specifically proved, the Court may also take into account the
defendant's motives, conduct and manner of committing the tort, and where these
have aggravated the plaintiff's damage e.g. by injuring his proper feelings of
dignity, safety and pride - aggravated damages may be awarded.
Aggravated damages are designed to compensate the plaintiff for his wounded
feelings-they must be distinguished from exemplary damages which are punitive in
nature and which (under English Law) may be awarded in a limited category of
cases.
"Exemplary damages" has been a controversial topic for many years. Such
damages are not compensatory but are awarded to punish the defendant and to
deter him and others from similar behaviour in the future. The law in England (as
restated in Rookes v.Barnard affirmed in Cassell v. Broome) is that such damages
are not generally allowed. In England they can only be awarded in three classes of
cases (i) where there is oppressive, arbitrary or unconstitutional action by servants
of the Government; (ii) where the defendants conduct has been calculated by him
to make a profit for himself which may well exceed the compensation payable to
the claimant; and (iii) where such damages are provided by statute.
In the decision in Kuddus v. Chief Constable of Leicestershire (2001) UKHL 29 the most recent judgment of the House of Lords, the Law Lords did not say that in
the future the award of exemplary damages should be restricted only in the cases
mentioned in
Rookes v. Barnard [1964] 1 All ER 367 (as affirmed in Cassell v. Broome [1972] 1
All ER 801) Lord Nicholls in his speech at page 211 stated that:
...the essence of the conduct constituting the Court's discretionary jurisdiction to award
exemplary damages is conduct which was such as to be an outrageous disregard of the
claimant's rights.
In this committee's view, the principle that Courts in India are not limited in the law
of torts merely to what English Courts say or do, is attracted to the present
situation. This Committee is of the view that this Hon'ble Court should evolve a
principle of liability - punitive in nature - on account of vandalism and rioting
leading to damages/destruction of property public and private. Damages must also
be such as would deter people from similar behaviour in the future: after all this is

already the policy of the law as stated in the Prevention of Damage to Property Act,
1984, and is foreshadowed in the order of this Hon'ble Court dated 18-06-2007
making the present reference.
In a Winfield and Jolowicz (on Tort) Seventeenth Edition (at pages 948-949) the
authors set out the future of exemplary damages by quoting from the decision
in Kuddeus v. CC Leicestershie (supra) where two Law Lords Lord Nicholls and
Lord Hutton expressed the view that such damages might have a valuable role to
play in dealing with outrageous behaviour. The authors point out that the
boundaries between the civil and criminal law are not rigid or immutable and the
criminal process alone is not an adequate mechanism to deter willful wrong-doing.
The acceptability of the principle of compensation with punishment appears to
have been confirmed by the Privy Council (in The Cleaner Co
Ltd. v. Abrahams (2004) a AC 628 at 54) where it was felicitously said that "oil and
vinegar may not mix in solution but they combine to make an acceptable salad
dressing." The authors go on to say that exemplary damages certainly enjoy a
continuing vitality in other common law jurisdictions, which, by and large, have
rejected the various shackles imposed on them in England and extended them to
other situations: thus punitive damages was held to be available in Australia "in
cases of "outrageous" acts of negligence.
The Law Commission of Australia has also concluded - after a fairly evenly
balanced consultation-that exemplary damages should be retained where the
defendant "had deliberately and outrageously disregarded the plaintiffs rights.
In the absence of legislation the following guidelines are to be adopted to assess damages:
(I) Wherever a mass destruction to property takes place due to protests or thereof,
the High Court may issue suo motu action and set up a machinery to investigate the
damage caused and to award compensation related thereto.
(II) Where there is more than one state involved, such action may be taken by the
Supreme Court.
(III) In each case, the High Court or Supreme Court, as the case may be, appoint a
sitting or retired High Court judge or a sitting or retired District judge as a Claims
Commissioner to estimate the damages and investigate liability.
(IV) An Assessor may be appointed to assist the Claims Commissioner.
(V) The Claims Commissioner and the Assessor may seek instructions from the
High Court or Supreme Court as the case may be, to summon the existing video or

other recordings from private and public sources to pinpoint the damage and
establish nexus with the perpetrators of the damage.
(VI) The principles of absolute liability shall apply once the nexus with the event
that precipitated the damage is established.
(VII) The liability will be borne by the actual perpetrators of the crime as well as
organisers of the event giving rise to the liability - to be shared, as finally
determined by the High Court or Supreme Court as the case may be.
(VIII) Exemplary damages may be awarded to an extent not greater than twice the
amount of the damages liable to be paid.
(IX) Damages shall be assessed for:
(a) damages to public property;
(b) damages to private property;
(c) damages causing injury or death to a person or persons;
(d) Cost of the actions by the authorities and police to take preventive and
other actions
(X) The Claims Commissioner will make a report to the High Court or Supreme
Court which will determine the liability after hearing the parties.
The recommendations of Justice K.T. Thomas Committee and Mr. F.S. Nariman
Committees above which have the approval of this Court shall immediately became
operative. They shall be operative as guidelines.
The power of this Court also extends to laying down guidelines. In Union of
India v. Association
for
Democratic
Reforms MANU/SC/0394/2002
:

[2002]3SCR696 , this Court observed:

...It is not possible for this Court to give any directions for amending the Act or statutory
Rules. It is for Parliament to amend the Act and the Rules. It is also established law that no
direction can be given, which would be contrary to the Act and the Rules. However, it is
equally settled that in case when the Act or Rules are silent on a particular subject and the
authority implementing the same has constitutional or statutory power to implement it, the
court can necessarily issue directions or orders on the said subject to fill the vacuum or void
till the suitable law is enacted." (pp.307)

This Court has issued directions in large number of cases to meet urgent situations e.g.
Lakshmi Kant Pandey v. Union of India MANU/SC/0054/1984

[1984]2SCR795
Vishaka v. State of Rajasthan MANU/SC/0786/1997

: AIR1997SC3011

Vineet Narain v. Union of India MANU/SC/0827/1998

State of W.B. v. Sampat Lal MANU/SC/0126/1984

K. Veeraswami MANU/SC/0610/1991

: 1998CriLJ1208

: 1985CriLJ516

: (1992)IILLJ53bSC

Union Carbide Corporation v. Union of India MANU/SC/0058/1992

AIR1992SC248
Delhi Judicial Service Assn. v. State of Gujarat MANU/SC/0473/1991

AIR1991SC2150
Delhi Development
MANU/SC/0497/1996

Authority v. Skipper Construction

: AIR1996SC2005 ;

Co.

(P)

Ltd.

 Dinesh Trivedi, M.P. v. Union of India MANU/SC/1138/1997

[1997]3SCR93 Common Cause v. Union of India MANU/SC/0246/1996

[1996]1SCR89
Supreme Court Advocates-on-Record Association
MANU/SC/0073/1994
: AIR1994SC268

v. Union

of

India

Positive Mandamus Cases

(i) Mandamus to enforce the law
The situation in which a positive mandamus to do a particular act in a particular way, may
be broadly classified in the following manner. First are the broad mandamus cases where
this Court has held that the court may issue a positive mandamus to enforce the law. Thus
in Vineet Narain's case (supra) detailed orders were passed for the investigation of the
Hawala transaction cases. It is laid down that positive directions can be issued where there
is a power coupled with a duty. The situations under which this can happen are numerous.
In Commissioner of Police v. Gordhandas Bhanji MANU/SC/0002/1951
:

[1952]1SCR135 , quoting from Julius v. Lord Bishop of Oxford MANU/QB/0462/1880

, where the court said:

There may be something in the nature of the thing empowered to be done, something in the
object for which it is to be done, something in the title of the person or persons for whose
benefit the power is to be exercised, which may couple the power with a duty, and make the
duty of the person in whom the power is reposed, to exercise that power when called upon to
do so.
In Comptroller and Auditor General of India v. K S. Jagannathan MANU/SC/0066/1986
: [1986]2SCR17 the court also explored the need to issue a positive mandamus

where a power was coupled with a duty.

18. The first contention urged by learned Counsel for the appellants was that the
Division Bench of the High Court could not issue a writ of mandamus to direct a
public authority to exercise its discretion in a particular manner. There is a basic
fallacy underlying this submission-both with respect to the order of the Division
Bench and the purpose and scope of the writ of mandamus. The High Court had not
issued a writ of mandamus. A writ of mandamus was the relief prayed for by the
respondents in their writ petition. What the Division Bench did was to issue
directions to the appellants in the exercise of its jurisdiction under Article 226 of
the Constitution. Under Article 226 of the Constitution, every High Court has the
power to issue to any person or authority, including in appropriate cases, any
government, throughout the territories in relation to which it exercises jurisdiction,
directions, orders, or writs including writs in the nature of habeas corpus,
mandamus, quo warranto and certiorari or any of them, for the enforcement of the
Fundamental Rights conferred by Part III of the Constitution or for any other
purpose.
In Dwarkanath v. ITO MANU/SC/0166/1965
:

[1965]57ITR349(SC) this Court pointed out that Article 226 is designedly couched
in a wide language in order not to confine the power conferred by it only to the
power to issue prerogative writs as understood in England, such wide language
being used to enable the High Courts "to reach injustice wherever it is found" and
"to mould the reliefs to meet the peculiar and complicated requirements of this
country." In Hochtief Gammon v. State of Orissa MANU/SC/0348/1975
:

(1975)IILLJ418SC this Court held that the powers of the courts in England as
regards the control which the Judiciary has over the Executive indicate the
minimum limit to which the courts in this country would be prepared to go in
considering the validity of orders passed by the government or its officers.
19. Even had the Division Bench issued a writ of mandamus giving the directions
which it did, if circumstances of the case justified such directions, the High Court
would have been entitled in law to do so for even the courts in England could have
issued a writ of mandamus giving such directions. Almost a hundred and thirty
years ago, Martin, B., in Mayor of Rochester v. Regina said:
But, were there no authority upon the subject, we should be prepared upon principle to affirm
the judgment of the Court of Queen's Bench. That court has power, by the prerogative writ of
mandamus, to amend all errors which tend to the oppression of the subject or other
misgovernment, and ought to he used when the law has provided no specific remedy, and
justice and good government require that there ought to be one for the execution of the
common law or the provisions of a statute: Comyn's Digest, Mandamus (A).... Instead of

being astute to discover reasons for not applying this great constitutional remedy for error and
misgovernment, we think it our duty to be vigilant to apply it in every case to which, by any
reasonable construction, it can be made applicable.
The principle enunciated in the above case was approved and followed in King v.
Revising Barrister for the Borough of Hanley. In Hochtief Gammon case this Court
pointed out (at p. 675 of Reports: SCC p. 656) that the powers of the courts in
relation to the orders of the government or an officer of the government who has
been conferred any power under any statute, which apparently confer on them
absolute discretionary powers, are not confined to cases where such power is
exercised or refused to be exercised on irrelevant considerations or on erroneous
ground or mala fide, and in such a case a party would be entitled to move the High
Court for a writ of mandamus. In Padfield v. Minister of Agriculture, Fisheries and
Food, the House of Lords held that where Parliament had conferred a discretion on
the Minister of Agriculture, Fisheries and Food, to appoint a committee of
investigation so that it could be used to promote the policy and objects of the
Agricultural Marketing Act, 1958, which were to be determined by the construction
of the Act which was a matter of law for the court and though there might be
reasons which would justify the Minister in refusing to refer a complaint to a
committee of investigation, the Minister's discretion was not unlimited and if it
appeared that the effect of his refusal to appoint a committee of investigation was
to frustrate the policy of the Act, the court was entitled to interfere by an order of
mandamus. In Halsbury's Laws of England, 4th Edn., vol. I, para 89, it is stated that
the purpose of an order of mandamus:
is to remedy defect of justice; and accordingly it will issue, to the end that justice may be
done, in all cases where there is a specific legal right and no specific legal remedy for
enforcing that right; and it may issue in cases where, although there is an alternative legal
remedy, yet that mode of redress is less convenient, beneficial and effectual.
20. There is thus no doubt that the High Courts in India exercising their jurisdiction
under Article 226 have the power to issue a writ of mandamus or a writ in the
nature of mandamus or to pass orders and give necessary directions where the
government or a public authority has failed to exercise or has wrongly exercised
the discretion conferred upon it by a statute or a rule or a policy decision of the
government or has exercised such discretion mala fide or on irrelevant
considerations or by ignoring the relevant considerations and materials or in such a
manner as to frustrate the object of conferring such discretion or the policy for
implementing which such discretion has been conferred. In all such cases and in
any other fit and proper case a High Court can, in the exercise of its jurisdiction
under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or
pass orders and give directions to compel the performance in a proper and lawful

manner of the discretion conferred upon the government or a public authority, and
in a proper case, in order to prevent injustice resulting to the concerned parties, the
court may itself pass an order or give directions which the government or the public
authority should have passed or given had it properly and lawfully exercised its
discretion.
This is especially important in giving directions in respect of mobilizing:
(a) The Prevention of Damage to Public Property Act (1984)
(b) The Police Act of 1861 and the duties of the police under the Criminal
Procedure Code
In D.K. Basu v. State of West Bengal MANU/SC/0157/1997

: 1997CriLJ743 ,

directions were given to "Arrest and Detention" in criminal cases. The Court opined:
28. Police is, no doubt, under a legal duty and has legitimate right to arrest a
criminal and to interrogate him during the investigation of an offence but it must be
remembered that the law does not permit use of third-degree methods or torture of
accused in custody during interrogation and investigation with a view to solve the
crime. End cannot justify the means. The interrogation and investigation into a
crime should be in true sense purposeful to make the investigation effective. By
torturing a person and using third-degree methods, the police would be
accomplishing behind the closed doors what the demands of our legal order forbid.
No society can permit it.
29. How do we check the abuse of police power? Transparency of action and
accountability perhaps are two possible safeguards which this Court must insist
upon. Attention is also required to be paid to properly develop work culture,
training and orientation of the police force consistent with basic human values.
Training methodology of the police needs restructuring. The force needs to be
infused with basic human values and made sensitive to the constitutional ethos.
Efforts must be made to change the attitude and approach of the police personnel
handling investigations so that they do not sacrifice basic human values during
interrogation and do not resort to questionable forms of interrogation. With a view
to bring in transparency, the presence of the counsel of the arrestee at some point of
time during the interrogation may deter the police from using third-degree methods
during interrogation.
30. Apart from the police, there are several other governmental authorities also like
Directorate of Revenue Intelligence, Directorate of Enforcement, Coastal Guard,

Central Reserve Police Force (CRPF), Border Security Force (BSF), the Central
Industrial Security Force (CISF), the State Armed Police, Intelligence Agencies
like the Intelligence Bureau, RAW, Central Bureau of Investigation '(CBI), CID,
Traffic Police, Mounted Police and ITBP, which have the power to detain a person
and to interrogate him in. connection with the investigation of economic offences,
offences under the Essential Commodities Act, Excise and Customs Act, Foreign
Exchange Regulation Act etc. There are instances of torture and death in custody of
these authorities as well. In In Re: Death of Sawinder Singh Grover (to which
Kuldip Singh, J. was a party) this Court took suo moto notice of the death of
Sawinder Singh Grover during his custody with the Directorate of Enforcement.
After getting an enquiry conducted by the Additional District Judge, which
disclosed a prima facie case for investigation and prosecution, this Court directed
the CBI to lodge an FIR and initiate criminal proceedings against all persons
named in the report of the Additional District judge and proceed against them. The
Union of India/Directorate of Enforcement was also directed to pay a sum of Rs 2
lakhs to the widow of the deceased by way of ex gratia payment at the interim
stage. Amendment of the relevant provisions of law to protect the interest of
arrested persons in such cases too is a genuine need.
31. There is one other aspect also which needs our consideration. We are conscious
of the fact that the police in India have to perform a difficult and delicate task,
particularly in view of the deteriorating law and order situation, communal riots,
political turmoil, student unrest, terrorist activities, and among others the increasing
number of underworld and armed gangs and criminals. Many hardcore criminals
like extremists, terrorists, drug peddlers, smugglers who have organised gangs,
have taken strong roots in the society. It is being said in certain quarters that with
more and more liberalisation and enforcement of fundamental rights, it would
lead to difficulties in the detection of crimes committed by such categories of
hardened criminals by soft peddling interrogation. It is felt in those quarters that if
we lay too much of emphasis on protection of their fundamental rights and human
rights, such criminals may go Scot free without exposing any element or iota of
criminality with the result, the crime would go unpunished and in the ultimate
analysis the society would suffer. The concern is genuine and the problem is real.
To deal with such a situation, a balanced approach is needed to meet the ends of
justice. This is all the more so, in view of the expectation of the society that police
must deal with the criminals in an efficient and effective manner and bring to book
those who are involved in the crime. The cure cannot, however, be worst than the
disease itself.
Thus the purpose of the guidelines in D.K. Basu was to effectuate a constitutional right
within the framework of a statute. At paras 33 & 34, it was observed as follows:

33. There can be no gainsaying that freedom of an individual must yield to the
security of the State. The right of preventive detention of individuals in the interest
of security of the State in various situations prescribed under different statutes has
been upheld by the courts. The right to interrogate the detenus, culprits or arrestees
in the interest of the nation, must take precedence over an individual's right to
personal liberty. The Latin maxim salus populi supremo lex (the safety of the
people is the supreme law) and salus republicae supremo lex (safety of the State is
the supreme law) coexist and are not only important and relevant but lie at the heart
of the doctrine that the welfare of an individual must yield to that of the
community. The action of the State, however, must be "right, just and fair".
Using, .any form of torture for extracting any kind of information would neither be
"right nor just nor fair" and, therefore, would be impermissible, being offensive to
Article 21. Such a crime suspect must be interrogated - indeed subjected to
sustained and scientific interrogation - determined in accordance with the
provisions of, law. He cannot, however, be tortured or subjected to third-degree
methods or eliminated with a view to elicit information, extract confession or
derive knowledge about his accomplices, weapons etc. His constitutional right
cannot be abridged in the manner permitted by law, though in the very nature of
things there would be qualitative difference in the method of interrogation of such a
person as compared to an ordinary criminal. Challenge of terrorism must be met
with innovative ideas and approach. State terrorism is no answer to combat
terrorism. State terrorism would only provide legitimacy to "terrorism". That would
be bad for the State, the community and above all for the rule of law. The State
must, therefore, ensure that various agencies deployed by it for combating
terrorism act within the bounds of law and not become law unto themselves. That
the terrorist has violated human rights of innocent citizens may render him liable to
punishment but it cannot justify the violation of his human rights except in the
manner permitted by law. Need, therefore, is to develop scientific methods of
investigation and train the investigators properly to interrogate to meet the
challenge.
34. In addition to the statutory and constitutional requirements to which we have
made a reference, we are of the view that it would be useful and effective to
structure appropriate machinery for contemporaneous recording and notification of
all cases of arrest and detention to bring in transparency and accountability. It is
desirable that the officer arresting a person should prepare a memo of his arrest at
the time of arrest in the presence of at least one witness who may be a member of
the family of the arrestee or a respectable person of the locality from where the
arrest is made. The date and time of arrest shall be recorded in the memo which
must also be countersigned by the arrestee.

5-24. On this basis, detention guidelines were issued. In a sense, the guidelines in
the Vineet Narain case (supra) also purported to be to enforce the statute - without more,
even though the constitutional right to a corrupt free government under Article 21 was
involved.
25. There are also several cases where guidelines may become necessary in the absence of
a statutory framework.
26. The justification for this was given in Vishaka's case (supra) and approved in Vineet
Narain's case (supra) at pr. 52:
Vishaka's paras 8.14,15
8. Thus, the power of this Court under Article 32 for enforcement of the
fundamental rights and the executive power of the Union have to meet the
challenge to protect the working women from sexual harassment and to make their
fundamental rights meaningful. Governance of the society by the rule of law
mandates this requirement as a logical concomitant of the constitutional scheme.
The exercise performed by the Court in this matter is with this common perception
shared with the learned Solicitor General and other members of the Bar who
rendered valuable assistance in the performance of this difficult task in public
interest.
xxx
14....The international conventions and norms are to be read into them in the
absence of enacted domestic law occupying the field when there is no
inconsistency between them. It is now an accepted rule of judicial construction that
regard must be had to international conventions and norms for construing domestic
law when there is no inconsistency between them and there is a void in the
domestic law. The meaning and content of the fundamental rights guaranteed in the
Constitution of India are of sufficient amplitude to encompass all the facets of
gender equality including prevention of sexual harassment or abuse. Independence
of judiciary forms a part of our constitutional scheme. The international
conventions and norms are to be read into them in the absence of enacted domestic
law occupying the field when there is no inconsistency between them. It is now an
accepted rule of judicial construction that regard must be had to international
conventions and norms for construing domestic law when there is no inconsistency
between them and there is a void in the domestic law. The High Court of Australia
in Minister for Immigration and Ethnic Affairs v. Tech 128 ALR 353, has
recognised the concept of legitimate expectation of its observance in the absence of
a contrary legislative provision, even in the absence of a Bill of Rights in the
Constitution of Australia.

15.

In Nilabati

Behera v. State

of

Orissa MANU/SC/0307/1993

1993CriLJ2899 , a provision in the ICCPR was referred to support the view taken
that 'an enforceable right to compensation is not alien to the concept of
enforcement of a guaranteed right', as a public law remedy under Article 32,
distinct from the private law remedy in torts. There is no reason why these
international conventions and norms cannot, therefore, be used for construing the
fundamental rights expressly guaranteed in the Constitution of India which embody
the basic concept of gender equality in all spheres of human activity.
Vineet Narain Para 52
As pointed out in Vishaka it is the duty of the executive to fill the vacuum by executive
orders because its field is coterminous with that of the legislature, and where there is inaction
even by the executive, for whatever reason, the judiciary must step in, in exercise of its
constitutional obligations under the aforesaid provisions to provide a solution till such time as
the legislature acts to perform its role by enacting proper legislation to cover the field.
27. Thus, as we have noted, there are a number of cases in which guidelines have been
given
Lakshmi

Kant

Pandey v. Union

of

India MANU/SC/0054/1984

[1984]2SCR795 [Guidelines for adoption of minor children by foreigners were laid

down]
Vishaka v. State of Rajasthan MANU/SC/0786/1997

: AIR1997SC3011

[Guidelines were laid down to set up a mechanism to address the issue of sexual
harassment at the workplace]
Vineet Narain v. Union of India MANU/SC/0827/1998

: 1998CriLJ1208

[Directions were laid down to ensure the independence of the Vigilance

Commission]
State of W.B. v. Sampat Lal MANU/SC/0126/1984

: 1985CriLJ516

 K. Veeraswami MANU/SC/0610/1991

: (1992)IILLJ53bSC

Union Carbide Corporation v. Union of India MANU/SC/0058/1992

AIR1992SC248
Delhi Judicial Service Assn. v. State of Gujarat MANU/SC/0473/1991

AIR1991SC2150
Delhi
Development
Authority v. Skipper
Construction
Ltd. MANU/SC/0497/1996
: AIR1996SC2005 ;

Dinesh

Trivedi,

M.P. v. Union

of

Co.

(P)

India MANU/SC/1138/1997

India MANU/SC/0246/1996

[1997]3SCR93
Common

Cause v. Union

of

[1996]1SCR89 [Directions were issued for revamping the system of blood banks in
the country]
28. The present case is one in which guidelines are necessary:
(i) to the police to enforce statutory duties
(ii) to create a special purpose vehicle in respect of damages for riot cases
29. This issue was examined by the Nariman Committee which considered:
...where (in such cases) there is destruction/damage to properties and loss of lives
or injuries to persons (i) the true measures of such damages

(ii) the modalities for imposition of such damages and..." (p.2 of the
Report)
30. These guidelines shall cease to be operative as and when appropriate legislation
consistent with the guidelines indicated above are put in place and/or any fast track
mechanism is created by Statute(s).
31. So far as the role of media is concerned the Mr. F.S. Nariman Committee has suggested
certain modalities which are essentially as follows:
a) The Trusteeship Principle
- Professional journalists operate as trustees of public and their mission should be
to seek the truth and to report it with integrity and independence.
b) The Self Regulation Principles
- A model of self-regulation should be based upon the principles of impartiality and
objectivity in reporting; ensuring neutrality; responsible reporting of sensitive
issues, especially crime, violence, agitations and protests; sensitivity in reporting
women and children and matters relating to national security; respect for privacy.
c) Content Regulations
- In principle, content regulation except under very exceptional circumstances, is
not to be encouraged beyond vetting of cinema and advertising through the existing
statues. It should be incumbent on the media to classify its work through warning
systems as in cinema so that children and those who are challenged adhere to time,
place and manner restraints. The media must also evolve codes and complaint
systems. But prior content control (while accepting the importance of codes for self
restraint) goes to the root of censorship and is unsuited to the role of media in
democracy.
d) Complaints Principle
- There should be an effective mechanism to address complaints in a fair and just
manner.
e) Balance Principle
- A balance has to be maintained which is censorial on the basis of the principles of
proportionality and least invasiveness, but which effectively ensures democratic
governance and self restraint from news publications that the other point of view is
properly accepted and accommodated.

32. It is felt that the appropriate methods have to be devised norms of self regulation rather
than external regulation in a respectable and effective way both for the broadcasters as well
as the industry. It has been stated that the steps constitute a welcome move and should be
explored further. The proposed norms read as follows:
The NBA believes that media that is meant to expose the lapses in government and in public
life cannot be obviously be regulated by government, else it would lack credibility. It is a
fundamental paradigm of freedom of speech that media must be free from governmental
control in the matter of "content" and that censorship and free speech are sworn enemies. It
therefore falls upon the journalistic profession to evolve institutional checks and safeguards,
specific to the electronic media, that can define the path that would conform to the highest
standards of rectitude and journalistic ethics and guide the media in the discharge of its
solemn Constitutional duty. There are models of governance evolved in other countries which
have seen evolution of the electronic media, including the news media, much before it
developed in India. The remarkable feature of all these models is "self-governance", and a
monitoring by a "jury of peers".
33. The Committee has recommended the following suggestions:
(i) India has a strong, competitive print and electronic media
(ii) Given the exigencies of competition, there is a degree of sensationalism, which
is itself not harmful so long as it preserves the essential role of the media viz: to
report news as it occurs - and eschew comment or criticism. There are differing
views as to whether the media (particularly the electronic media) has exercised its
right and privilege responsibly. But generalisations should be avoided. The
important thing is that the electronic (and print) media has expressed
(unanimously) its wish to act responsibly.
The media has largely responsible and more importantly, it wishes to act
responsibly.
(iii) Regulation of the media is not an end in itself; and allocative regulation is
necessary because the 'air waves' are public property and cannot technically be free
for all but have to be distributed in a fair manner. However, allocative regulation is
different from regulation per se. All regulation has to be within the framework of
the constitutional provision. However, a fair interpretation of the constitutional
dispensation is to recognize that the principle of proportionality is built into the
concept of reasonableness whereby any restrictions on the media follow the least
invasive approach. While emphasizing the need for media responsibility, such an
approach would strike the correct balance between free speech and the
independence of the media.

(iv) Although the print media has been placed under the supervision of the Press
Council, there is need for choosing effective measures of supervision - supervision
not control.
(v) As far as amendments mooted or proposed to the Press Council Act, 1978 this
Committee would support such amendments as they do not violate Article 19(1)
(a) - which is a preferred freedom.
(vi) Apart from the Press Council Act, 1978, there is a need for newspapers and
journals to set up their own independent mechanism. (vii) The pre censorship
model used for cinema under the Cinematography Act, 1952 or the supervisory
model for advertisements is not at all appropriate, and should not be extended to
live print or broadcasting media.
(viii) This Committee wholly endorses the need for the formation of
(a) principles of responsible broadcasting
(b) institutional arrangements of self regulation
But the Committee emphasised the need not to drift from self regulation to some
statutory structure which may prove to be oppressive and full of litigative potential.
(ix) The Committee approved of the NBA model as a process that can be built upon
both at the broadcasting service provider level as well as the industry level and
recommend that the same be incorporated as guidelines issued by this Court under
Act 142 of the Constitution of India - as was done in Vishaka's case.
34. The suggestions are extremely important and they constitute sufficient guidelines
which need to be adopted. But leave it to the appropriate authorities to take effective steps
for their implementation. At this juncture we are not inclined to give any positive
directions.
35. The writ petitions are disposed of. We express our appreciation for the members of both
the Committees and the Chairman of each Committee Justice K.T. Thomas and F.S.
Nariman who are to be complimented for the pains taken by them to make
recommendations which will go a long way to meet the challenges posed.

DR. RAMESH YASHWANT PRABHOO V. PRABHAKAR K. KUNTE, AIR 1996

SC 1113

J.S. Verma, J.
1. Both these appeals are under Section 116A of the Representation of the People Act, 1951
(hereinafter referred to as "the Act/R. P. Act") against the judgment dated 7th April, 1989 of
the Bombay High Court in Election Petition No. 1 of 1988 by which the election of Dr.
Ramesh Yeshwant Prabhoo, the returned candidate from 38, Vile Parle Constituency to the
Maharashtra State Legislative Assembly, held on 13th December, 1987, has been declared
to be void on the ground under Section 100(1)(b) of the Act. The appellant has been found
guilty of the corrupt practices prescribed by Sub-sections (3) and (3A) of Section 123 of
the Act at the election, in that he and his agent Bal Thackeray with his consent appealed for
votes on the ground of the returned candidate's religion and that they promoted or tended to
promote feelings of enmity and hatred between different classes of the citizens of India on
the grounds of religion and community. Consequently, Bal Thackeray, after a notice issued
under Section 99 of the Act to him, has also been named for commission of these corrupt
practices. Civil Appeal No. 2836 of 1989 is by the returned candidate Dr. Ramesh
Yeshwant Prabhoo and Civil Appeal No. 2835 of 1989 is by Bal Thackeray against that
judgment.
2. The said election was held on 13th December, 1987 and the result was declared on 14th
December, 1987, at which Dr. Ramesh Yeshwant Prabhoo was declared to be duly elected.
The charge of these corrupt practices is based on three public speeches delivered by Bal
Thackeray : on 29-11-1987 at Parle (opposite Shi v Sena Shaka No. 84), on 9-12-1987 at
Khar-Danda near Shankar Temple, and on 10-12-1987 at Jaltaran Maidan, Vile Parle
(East). The public speech given on 9-12-1987 has been held to amount to the corrupt
practice under Sub-section (3) of Section 123, while public speeches delivered on 29-111987 and 10-12-1987 have been held to be corrupt practices under Sub-sections (3) and (3
A) of Section 123 of the Act. The relevant pleading relating to these corrupt practices is
contained in paras 6 and 8 of the election petition. Sub-paras (a) to (d) of para 6 relate to
first speech, sub-para (e) of para 6 relates to second speech and sub-para (t) of para 6
relates to third speech. Para 8 of the election petition then says that returned candidate
indulged in the corrupt practices provided by Sub-sections (3) and (3 A) of Section 123 of
the Act and, therefore, his election is void.
3. After the election petitioner closed his evidence, the returned candidate Dr. Prabhoo
examined only himself in rebuttal. After close of the evidence of the parties and hearing
arguments of both sides, the High Court ordered issue of notice under Section 99 of the Act
to Bal Thackeray who filed an affidavit in reply to the notice. The election petitioner and

his three witnesses were recalled for cross-examination by counsel for the noticee, Bal
Thackeray. The notices did not examine himself or any other witness in rebuttal. The
decision of the High Court is based on this material.
4. Dr. Prabhoo was set up as candidate of the Shiv Sena which was then not a recognised
political party for purposes of the Legislative Assembly Elections and, therefore, Dr.
Prabhoo's candidature was shown as 'Shiv Sena -- Independent." Bal Thackeray is the top
leader of Shiv Sena and he participated in the election campaign of Dr. Prabhoo as the
main speaker in his capcity as the leader of Shiv Sena. The status of Bal Thackeray as the
top leader of Shiv Sena has never been disputed. The gist of election petitioner's case
which has been found proved by the High Court is that the three public speeches of Bal
Thackeray in the election campaign of Dr. Prabhoo were all in very intemperate language
and incendiary in nature which were appeals to the voters to vote for Dr. Prabhoo because
of his religion, i.e., he being a Hindu, and the speeches also promoted or tended to promote
enmity and hatred between different classes of the citizens of India on the ground of
religion. The High Court has held this charge of the alleged corrupt practices proved
against the returned candidate Dr. Prabhoo and Bal Thackeray. Accordingly, the election of
the returned candidate has been declared to be void on the ground contained in
Section 100(1)(b) of the Act, and Bal Thackeray has been named in ' accordance with
Section 99 of the Act. Hence these appeals by them.
5. The averments in para 6 of the election petition till aging the commission of corrupt
practices within the meaning of Section 123 of the Act are in sub-paras (a) to (f) which are
as under:-(a) The petitioner states that respondent No. I during his election campaign
indulged in corrupt practices by appealing himself, or by his election agents, or by
his supporters with his consent to vote him and refrain from voting other candidates
on the grounds of religion. The whole tenor of election propaganda of the
respondent No. 1 was that he is a candidate of Hindus and Hindus should vote him
alone. The details of this appeal arc given in the later part of this petition.
(b) The respondent No. I, his election against and his supporters with the consent of
the candidate respondent No. 1 also indulged in corrupt practice by promoting and
by attempting to promote feelings of enmity and hatred between different classes of
citizens of India on grounds of religion, community and language. The examples of
this corrupt practice are also listed in the later part of this petition.
(c) The campaign for the election of respondent No. 1 was headed by Shri Balsaheb
Thackeray, the leader of the Shiv Sena, who had put up respondent No. 1 in this
election. Shri Thackeray addressed several meetings and also issued press
statements during the course of the election in question. Out of these meetings Shri
Thackeray spoke on 29-11-1987 at a meeting held at Shiv Sena Shaka No. 84 at

Vile Parle, which took place from 9 p.m. to 12 midnight. In this meeting Shri
Balasheb Thackeray, Suryakant Mahadik Pramod Navalkar, Ratnesh Mchta.
Madhukar Sarpotdar and the candidate respondent No. 1 Dr. Ramesh Prabhoo
himself were also present. Shri Thackeray uttered the following words during this
meeting. The words are quoted in Marathi and they are followed by the English
translation.
Translation : "We are fighting this election for the protection of Hinduism.
Therefore, we do not care for the votes of the Muslims. This country belongs to
Hindus and will remain so."
Since the petitioner was all throughout in the constituency for his election
campaign, he came to know about the said meeting having been held and attended
by Shri Bal Thackeray. Subsequently, he also came to know about the speeches
made in the meeting from his friends and active workers of the Party. The petitioner
has reliably learnt that the police reporters also attended the meeting and they have
taken down the report of the speeches made. The petitioner craves leave to call for
the record of the speeches from the Police Department and to prove the point by
examining the police reporters who have taken down the speeches. The petitioner
craves leave to rely upon the said police report in the custody of the Police. A
report regarding the said meeting and the speeches appeared in the newspaper
"Mumbai Sakal" (A Marathi daily) dated 1-12-1987 with the photographs under the
title "Hindu Dev-Devtavareel Teeka Sahan Karnar Nahi Thackeray" (We will not
tolerate the criticism of Hindu gods and goddesses -- Thackeray). From the said
photograph it is clear that respondent No. I was also present in the said meeting.
Thus all the utterances regarding the speeches made by Shri Bal Thackeray to
appeal to voters in the name of Hindu religion are with the consent and connivance
of the first respondent. The same meeting was also reported in 'Sanj Tarun Bharat'
(an evening daily) dated 30-11-87 with the photograph of Shri Bal Thackeray,
respondent No. I and others on the alias. The said photograph further shows that a
banner was put up on the dias which reads as under:-Garva Say Kaho (OM) Ham Hindu Hai
The said meeting was also reported in 'Sandhyakal', another Marathi daily, on 1-1287. Hereto annexed and marked Exhibit 'A' and 'A 1' is a copy of the report
appearing in the 'Mumbai Sakal' with English translation, hereto annexed and
marked Exhibits 'B' and 'B1' are the original report appearing in 'Sanj Tarun Bharat'
with English translation and hereto annexed and marked Exhibits 'C and 'C1' arc
the said reports appearing in 'Sandhyakal' with English translation.
(d) The petitioner says that a report regarding the said meeting also appeared in the
'Urdu Times', an Urdu daily published from Bombay in its issue dated 1-12-87. The

petitioner docs not know how to read and write Urdu. However, he got the said
report translated. In the said 'Urdu Times' the report appeared with the title 'Shiv
Sena ko Musalmano ke Voting zarurat nahin hai' (Shiv Sena did not need the votes
of Muslims). A true English translation of the said news item is annexed hereto and
marked Exhibits 'D' and 'D-l' with a zerox copy of the report in Urdu.
(e) Again on 9-12-87 there was another election meeting which took place from 9
a.m. to about 12 midnight at Khar-Danda, near Shankar Temple. This meeting was
addressed by Shri Bal Thackeray, respondent No. 1, Harish Chandra Dattaji Salvi
(a Shiv Sena leader) and Shambhoo Maharaj, a religious leader from Gujarat. In the
said meeting Shri Bal Thackeray, while addressing the audience stated as under:-Translation : "Hinduism will triumph in this election and we must become
hon'ble recipients of this victory to ward off the danger on Hinduism, elect
Ramesh Prabhoo to join with Chhagan Bhujbal who is already there. You
will find Hindu temples underneath if all the mosques are dug out.
Anybody who stands against the Hindus should be showed or worshipped
with shoes. A candidate by name Prabhoo should be led to victory in the
name of religion.
The petitioner says that the proceedings of the said meeting were recorded by the
police. Newspaper reports regarding the meeting also appeared. The petitioner will
crave leave to and rely upon the records of the police and also the press report
giving the version of the said meeting appearing in various news-papers.
(f) The petitioner says that on 10-12-87 a meeting was held from 9 p. m. to about
12 midnight at Vile Parle (East) at Shahaji Raje Marg. This was addressed by
S/Shri Bal Thackeray, Shambhoo Maharaj, Ramesh Mehta, Rishi Kapoor. Jitendra
Madhukar Joshi and Ramesh Prabhoo, respondent No. 1. In this meeting Shri Bal
Thackeray uttered the following words while addressing the meeting :-Translation : We have come with the ideology of Hinduism. Shiv Sena will
implement this ideology. Though this country belongs to Hindus, Ram and
Krishna are insulted. (They) valued the Muslim votes more than your votes;
we do not want the Muslim votes. A snake like Shahabuddin is sitting in the
Janta Party, man like Nihal Ahmed is also in Janta Party. So the residents of
Vile Parle should bury this party (Janta Party).
The above utterances in these three meetings are the examples of promoting the
feelings of enmity between different classes of citizens of India. The sole purpose
in doing so and making the appeal was to canvas votes in favour of the first
respondent on the ground of religion and make it appear to the voters that
respondent No. 1 was the only person who could represent the Hindu community.

The effect of the said speeches was to promote the feelings of enmity and hatred
between Hindus and non-Hindus on the ground of religion, race, caste, community
etc. As such the petitioner and most of the respondents from 1 to 13 are Hindus,
having full faith in the Hindu religion. The main ground of objection on the way of
canvassing for votes by respondent No. 1 and his supporters was to bring the
element of religion into politics endangering the very foundation of the
Constitution of India, viz. secularism. The petitioner honestly believes that it is one
thing to follow one's own religion according to his own conviction and another
thing to appeal to the voters to vote in the name of the religion.
6. Reliance was placed by the election petitioner on certain news items wherein the public
speeches were published and also on certain reports alleged to have been made by some
police officers who reported the making of the speeches raising some controversy relating
to sufficiency of pleadings and the use of material for proving the contents of the speeches
in excess of the exact words pleaded in the election petition. Details of this controversy
would be mentioned later while considering that point. However, it may be mentioned that
the extent to which there is specific pleading and the returned candidate himself admitted
the contents of the public speeches can safely be considered subject to the objection raised
of the alleged legal infirmities in-eluding want of a valid notice under Section 99 of the Act
to the noticee Bal Thackeray. More details of the evidence would be mentioned at the
appropriate stage.
7. Broadly stated, the contentions of Shri Ram Jethmalani, learned counsel for the
appellants in these appeals are : (1) Sub-sections (3) and (3A) of Section 123of the Act are
constitutionally invalid being violative of guarantee offree speech in Article 19(1)(a) of the
Constitution; (2) To save both these provisions from constitutional invalidity, they must be
read as reasonable restrictions in the interest of public order to get the protection of
Article 19(2) of the Constitution. In other words, unless the speech is prejudicial to the
maintenance of public order, it cannot fall within the net of either Sub-section (3) or Subsection (3A) of Section 123 of the Act; (3) In Sub-section (3) of Section 123, the emphasis
is on the word "his" preceding the word 'religion' and its significance must be understood
in the light of the restricted scope of the provision indicated by the Union Law Minister
during the Parliamentary debates to explain the object of introduction of the word "his" in
the provision. In other words, only a direct appeal for votes on the ground of "his" religion
subject to its tendency to prejudice the maintenance of public order is contended to be the
limited scope of Sub-section (3) of Section 123(4) A speech in which there be a reference
to religion but no direct appeal for votes on the ground of his religion, does not come
within the net of Sub-section (3) of Section 123(5) The public speeches in question did not
amount to appeal for votes on the ground of his religion and the substance and main thrust
thereof was "Hindutava" which means the Indian culture and not merely the Hindu
religion; (6) The public speeches criticized the anti-secular stance of the Congress Party in
practising discrimination against Hindus and giving undue favour to the Minorties which is

not an appeal for votes on the ground of Hindu religion; (7) On behalf of the noticee Bal
Thackeray, it was further contended that there was no compliance of the requirements of
Section 99 of the Act, inasmuch as the notice contemplated by the provision was not given
and the noticee was never informed of the precise charge against him. It was submitted that
the notice given was not in conformity with the law and particulars required to be given by
the Court were never given, the High Court having merely asked the petitioner to indicate
the particulars of the charge of the corrupt practice; and (8) that the pleadings in the
election petition are deficient being devoid of the material particulars and, therefore, the
material brought in at the stage of evidence and relied on to prove the charge of corrupt
practice has to be excluded from consideration. Learned counsel for the appellant also
made the grievance that the High Court had decided the election petition mainly on the
basis of the general impressions and vague assertions made by the election petitioner
instead of confining the decision to the precise pleadings and the legally admissible
evidence examined in the light of the true meaning and scope of Sub-sections (3) and (3A)
of Section 123 of the Act.
8. In reply, Shri Ashok Deasi, learned counsel for the respondent refuted these contentions.
He submitted that the question of constitutional validity of the provisions is no longer res
integra being concluded by the decision of the Constitution Bench in Jamuna Prasad
Mukhariya v. Lachhi Ram MANU/SC/0104/1954
: [1955]1SCR608 .

Alternatively, he contended that the freedom of speech guaranteed in the Constitution does
not extend to giving speeches of the kind given by Bal Thackeray and, at any rate, these
provisions impose reasonable restrictions on the freedom of speech which are saved by
Article 19(2) of the Constitution. Shri Desai also submitted that the substance and main
thrust of the speech, not merely the form, has to be seen in its context to determine if it
amounts to an appeal for votes on the ground of 'his' religion, and such appeal need not
necessarily be only direct. Learned counsel submitted that each one of the speeches in
question was highly incendiary containing appeal to vote for Dr. Ramesh Prabhoo because
he is a Hindu; and it also tended to promote enmity and hatred between Hindus and
Muslims. According to him, each one of the speech amounted to the corrupt practice both
under Sub-sections (3) and (3A) of Section 123 of the Act.
Meaning of Sub-sections (3) and (3A) of Section 123 of the R.P. Act.
9. Sub-sections (3) and (3 A) of Section 123 of the R.P. Act are as under:-123. Corrupt practices:---The following shall be deemed to be corrupt practices for
the purposes of this Act :-xxx xxx xxx

(3) The appeal by a candidate or his agent or by any other person with the
consent of a candidate or his election agent to vote or refrain from voting
for any person on the ground of his religion, race, caste, community or
language or the use of, or appeal to religious symbols or the use of, or
appeal to, national symbols, such as the national flag or the national
emblem, for the furtherance of the prospects of the election of that
candidate or for prejudicially affecting the election of any candidate :
Provided that no symbol allotted under this Act to a candidate shall
be deemed to be a religious symbol or a national symbol for the
purposes of this clause.
(3A) The promotion of, or attempt to promote, feelings of enmity or hatred
between different classes of the citizens of India on grounds of religion,
race, caste, community, or language, by a candidate or his agent or any
other person with the consent of a candidate or his election agent for the
furtherance of the prospects of the election of that candidate or for
prejudicially affecting the election of any candidate.
xxx xxx xxx
10. The submission of Shri Ram Jethmalani, learned counsel for the appellants is that the
appeal to vote or refrain from voting for any person on the ground of 'his' religion, etc. for
the furtherance of the prospects of the election of that candidate or for prejudicially
affecting the election of any candidate means a direct appeal to vote or refrain from voting
on the ground of 'his' religion, etc,; and the appeal must also be provocative in nature to
adversely affect public order. The further element of adverse effect on public order, it is
urged, is implicit in the provision to save it from constitutional invalidity, which argument
is considered separately. Shri Jethmalani laid emphasis on the word 'his' which was
inserted by Act 40 of 1961 w.e.f. 20-9-1961 when the existing Sub-section (3) was
substituted for the old Sub-section (3). Shri Ram Jethmalani contended that the object of
insertion of the word 'his' in the newly substitued Sub-section (3) was to restrict the
meaning of the provision and confine it only to a direct appeal based on 'his' religion.
Learned counsel placed strong reliance on the statement of the Law Minister during the
debates in the Parliament to support this submission. In reply, Shri Ashok Dcsai, learned
counsel for the respondent contended that the word 'his', no doubt has significance, but its
use does not confine the meaning of Sub-section (3) only to a direct appeal on the ground
of 'his' religion, etc. and extends to an appeal of which the main thrust in the context is on
the religion of the candidate. Shri Desai submitted that an unduly restricted meaning cannot
be given to Sub-section (3) since the object of the provision is to prohibit appeal for votes
during the election on the ground of religion of the candidate.

11. There can be no doubt that the word 'his' used in subs-section (3) must have
Significance and it cannot be ignored or equated with the word 'any' to bring within the net
of Sub-section (3) any appeal in which there is any reference to religion. The religion
forming the basis of the appeal to vote or refrain from voting for any person must be of that
candidate for whom the appeal to vote or refrain from voting is made. This is clear from
the plain language of Sub-section (3) and this is the only manner in which the word 'his'
used therein can be construed. The expressions the appeal ...to vote or refrain from voting
for any person on the ground of his religion, ... for the furtherance of the prospects of the
election of that candidate or for prejudicially affecting the election of any candidate" lead
clearly to this conclusion. When the appeal is to vote on the ground of 'his' religion for the
furtherance of the porspects of the election of that candidate, that appeal is made on the
basis of the religion of the candidate for whom votes are solicited. On the other hand when
the appeal is to refrain from voting for any person on the ground of 'his' religion for
prejudicially affecting the election of any candidate, that appeal is based on the religion of
the candidate whose election is sought to be prejudicially affected. It is thus clear that for
soliciting votes for a candidate, the appeal prohibited is that which is made on the ground
of religion of the candidate for whom the votes are sought; and when the appeal is to
refrain from voting for any candidate, the prohibition is against an appeal on the ground of
the religions of that other candidate. The first is a positive appeal and the second a negative
appeal. There is no ambiguity in Sub-section (3) and it clearly indicates the particular
religion on the basis of which an appeal to vote or refrain from voting for any person is
prohibited under Sub-section (3).
12. The argument that such an appeal must be a direct appeal, such as 'Vote for A because
he is a Hindu' or 'Do not vote for B because he is a Christian', and that no other appeal
leading to that conclusion is forbidden does not appeal to reason.
What is forbidden by Sub-section (3) is an appeal of this kind and. therefore, any appeal
which amounts to or leads to this inference must necessarily come within the prohibition in
Sub-section (3). Whether a particular appeal is of this kind, is a question of fact in each
case. Where the words used in the appeal are clear and unambiguous amounting to a direct
appeal, the exercise of construing the speech is not needed. However, where a reasonable
construction of the appeal leads to that conclusion, the result must be the same. The
substance of the speech and the manner in which it is meant to be understood by the
audience determines its nature, and not the camouflage by an artistic use of the language.
For understanding the meaning and effect of the speech, the context has to be found in the
speech itself and not outside it with reference to any other background unless the speech
itself imports any earlier fact in the context of that speech. The speech has also not to be
construed in the abstract or in the manner in which it would be construed after an academic
debate. Care must be taken to remember that the public speeches during election campaign
ordinarily are addressed to audience comprised of common men and, therefore, the manner
in which it would be understood by such an audience has to be kept in view.

13. We are unable to accept the submission of Shri Jethmalani that a further element of
prejudicial effect on public order is implicit in Sub-section (3). We do not find anything in
the language of the provision to read this further element into it. Sub-section (3) in
substance forbids appeal for votes for any candidate on the ground of 'his' religion and
appeal to refrain from voting for any other candidate on the ground of the religion of that
other candidate. Obviously the purpose of enacting the provision is to ensure that no
candidate at an election gets votes only because of his religion and no candidate is denied
any votes on the ground of his religion. This is in keeping with the secular character of the
Indian polity and rejection of the scheme of separate electorates based on religion in our
constitutional scheme. An appeal of the kind forbidden by Sub-section (3) based on the
religion of a candidate need not necessarily be prejudicial to public order and, therefore,
the further element of likelihood of prejudice to public order is unnecessary, on account of
which it is not implicit in the provision. This, according to us, is the meaning and the
correct construction of Sub-section (3). The question of constitutional validity of the
provision on this meaning is considered later.
14. Reference may now be made to the Parliamentary debates in which the reason ascribed
by the Law Minister Shri A.K. Sen for adding the word 'his' in Sub-section (3) and its
purpose was stated, thus:-Shri A.K. Sen : I added the word 'his' in the Select Committee in order to make
quite clear as to what was the mischief which was sought to be prevented under this
provision.
xxx xxx xxx
Shri A.K. Sen : The apprehension was expressed if one's right was going to be
curbed by this section. If such a right was going to be curbed by the section, I
would have been against such an amendment, because after all, it is the right of a
person to propagate his own language, his own particular culture and various other
matters. But that does not mean vilifying another language or creating enmity
between communities.
xxx xxx xxx
Shri A.K. Sen :...
I am pained to hear Shri Hynniewta giving expression to an apprehension, which to
me seems entirely baseless. That apprehension is to the effect that Clause 23 will
deprive him of his fight to propagate his language or preserve his language, which
cannot be taken away from him as he himself has quoted the relevant article of the
Constitution. If that right is taken away by the Bill, it will be struck down as
contravening article 19 and the section will not be given effect to by any Court.

Fortunately, this country is still governed by the rule of law and the Courts of law
have the last say in these matters.
xxx xxx xxx
Shri A. K. Sen : That is a different matter. With due respect to the Hon'ble Member,
he has not really appreciated the rationale of the Supreme Court's decision. With
regard to election matters, Parliament is free to enact such legislation as it thinks
best and Chapter III does not come in. That is the decision of the Supreme Court.
But in the guise of framing an electoral law, no fundamental right of the citizen can
be taken away. That is what I am saying. The right to preserve one's language
cannot be taken away by an election law. That is as clear as daylight."
xxx xxx xxx
Shri A.K. Sen; You cannot-make it an election issue if you say : 'Do not vote for
him. He is a Bengali' or 'Do not vote for him. He is a Khasi'. I made it
unequivocally clear that it is the purpose and design of this House and of the
country to ensure that. No man shall appeal only because he speaks a particular
language and should get voted for that reason; or no man shall appeal against a
particular person to the electorate solely because that opponent of his speaks a
particular language.
xxx xxx xxx
Shri A.K. Sen : They are entitled to do so. The Constitution gives them the right to
do so. But we are on a very narrow point. Whether we shall extend the right to a
person, to a voter, to say: vote for me because I speak Hindi, I speak Gharwali, or I
speak Nepali or speak Khasi; or in the alternative, do not vote for my opponent
because he is a man who speaks this particular language, his own language. It is on
that sole narrow point that the prohibition is sought to be made.
....But we are not here on the aesthetics of language or the philosophy of language;
nor are we here to debate the fundamental rights of a citizen to preserve his own
language and culture. Fortunately, that is guaranteed to every man and woman in
this country as it not elsewhere....
xxx xxx xxx
Shri A.K. Sen:....
But the problem is are we going to allow a man to go to the electorate and ask for
votes because he happens to speak a particular language or ask the electorate to

refrain from voting for a particular person merely on the ground of his speaking a
particular language or following a particular religion and so on? If not, we have to
support this. The preservation of the minority's rights and so on is a different and a
wider question.
xxx xxx xxx
Shri A.K. Sen:...But, if you say that Bengali language in this area is being
suppressed or the schools are being closed, as Shri Hynneiwta was saying, because
they bore a particular name, then; you are speaking not only to fight in an election
but you are also really seeking to protect your fundamental rights, to preserve your
own language and culture. That is a different matter.
But, if you say. "I am a Bengali, you are all Bengalis, vote for me,' or I am an
Assamese and so vote for me because you are Assamese speaking men', I think, the
entire House will deplore that as hopeless form of election propaganda. And, no
progressive party will run an election on that line. Similarly on the ground of
religion. In the olden days, what speeches we used to hear in Muslim League
gatherings They were purely appeals on the ground of religion. So, the issue is too
narrow and not a wide issue in which the life and death of minorities are involved
as Shri Hynniewta sought to make out. It is not at all in question....
15. The clarification given in the speech of the Law Minister clearly shows that a speech
for the protection of fundamental rights, preservation of own language, religion and
culture, etc. are, not forbidden by Sub-section (3) of Section 123, and the limit is narrow to
the extent indicated.
16. It cannot be doubted that a speech with a secular stance alleging discrimination against
any particular religion and promising removal of the imbalance cannot be treated as an
appeal on the ground of religion as its thrust is for promoting secularism. Instances given in
the speech of discrimination against any religion Causing the imbalance in the professed
goal of secularism, the allegation being against any individual or any political party cannot
be called an appeal on the ground of religion forbidden by Sub-section (3). In other words,
mention of religion as such in an election speech is not forbidden by Sub-section (3) so
long as it does not amount to an appeal to vote for candidate on the ground of his religion
or to refrain from voting for any other candidate on the ground of his religion. When it is
said that politics and religion do not mix, it merely means that the religion of a candidate
cannot be used for gaining political mileage by seeking votes on the ground of the
candidate's religion or alienating the electorate against another candidate on the ground of
the other candidate's religion. It also means that the State has no religion and the State
practises the policy of neutrality in the matter of religion.

17. In Dr. M. Ismali Faruqui v. Union of India MANU/SC/0860/1994

AIR1995SC605 ,(Ayodhya case), the Constitution Bench, after a detailed discussion,

summarised the true concept of secularism under the Indian Constitution as under:-It is clear from the constitutional scheme that it guarantees equality in the matter of
religion to all individuals and groups irrespective of their faith emphasising that
there is no religion of the State itself. The Preamble of the Constitution read in
particular with Articles25 to 28 emphasises this aspect and indicates that it is in this
manner the concept of secularism embodied in the constitutional scheme as a creed
adopted by the Indian people has to be understood while examining the
constitutional validity of any legislation on the touchstone of the Constitution. The
concept of secularism is one facet of the right to equality woven as the central
golden thread in the fabric depicting the pattern of the scheme in our Constitution.
(at page 403)(of SCC); (at p. 4932 of AIR)
18. It cannot be doubted that an election speech made in conformity with the fundamental
right to freedom of religion guaranteed under Articles 25 to 30 of the Constitution, cannot
be treated as anti-secular to be prohibited by Sub-section (3) of Section 123, unless it falls
within the narrow net of the prohibition indicated earlier. It is obvious that a speech
referring to religion during election campaign with a secular stance in conformity with the
fundamental right to freedom of religion can be made without being hit by the prohibition
contained in Sub-section (3), if it does not contain an appeal to vote for any candidate
because of his religion or to refrain from voting for any candidate because of his religion.
When it is said that politics and religion do not mix, it obviously does not mean that even
such permissible political speeches are forbidden. This is the meaning and true scope of
Sub-section (3) of Section 123 of the Act.
19. We would now consider the meaning of Sub-section (3A) of Section 123. This subsection also was inserted along with the substituted Sub-section (3) by the Act 40 of 1961
w. e. f. 20-9-1061. The meaning of this sub-section is not much in controversy. Sub-section
(3A) is similar to Section 153-A of the Indian Penal Code. In Sub-section (3A), the
expression used is "the promotion of, or attempt to promote, feelings of enmity or hatred'
as against the expression "Whoever ...promotes or attempts to promote-- disharmony or
feelings of enmity, hatred or ill-will..." in Section 153-A, I.P.C. The expression 'feeling of
enmity or hatred' is common in both the provisions but the additional words in
Section 153-A, I.P.C. are 'disharmony ....or ill-will'. The difference in the plain language of
the two provisions indicates that mere promotion of disharmony or ill-will between
different groups of people is an offence under Section 153-A, I. P. C. while under Subsection (3A) of Section 123 of the R. P. Act, it is only the promotion of or attempt to

promote feelings of enmity or hatred, which are stronger words, that is forbidden in the
election campaign.
20. The provision is made with the object of curbing the tendency to promote or attempt to
promote communal, linguistic or any other factional enmity or hatred to prevent the
divisive tendencies. The provision in the I. P. C. as well as in the R. P. Act for this purpose
was made by amendment at the same time. The amendment in the R. P. Act followed
amendments made in the Indian Penal Code to this effect in a bid to curb any tendency to
resort to divisive means to achieve success at the polls oil the ground of religion or narrow
communal or linguistic affiliations. Any such attempt during the election is viewed with dis
favour under the law and is made a corrupt practice under Sub-section (3A) of Section 123.
21. Shri Jethmuluni is right that in Sub-section (3A), the element of prejudicial effect on
public order is implicit. Such divisive tendencies promoting enmity or hatred between
different classes of citizens of India tend to create public unrest and distrub public order.
This is a logical inference to draw on proof of the constituent parts of Sub-section (3A).
The meaning of Sub-section (3A) is not seriously disputed between the parties and,
therefore, it does not require any further discussion. However, whether the act complained
of falls within the net of Sub-section (3A) is a question of fact in each case to be decided
on the basis of the evidence led to prove the alleged act.
22. The decision in Ziyauddin Burhanuddin Bukhari v. Bri jmohan Ramdass Mehra
MANU/SC/0277/1975
: AIR1975SC1788 , lends assurance to the correctness of

the construction made by us of these provisions. The returned candidate Bukhari was the
candidate of Muslim League while the defeated candidate Shauket Chagla was the
Congress candidate at the election. Both were Muslims. The returned candidate Bukhari in
his appeal to the voters said that Chagla was not true to his religion while he himself was a
true Muslim and that Chagla was neither a good Hindu nor a true Muslim. The clear
implication of the appeal was that Chagla was not true to his religion whereas Bukhari was,
and, therefore, the voters should prefer Bukhari. In short, the appeal for votes was made on
the ground that Bukhari was a staunch believer of the Muslim religion as against Chagla
who did not. It was this clear appeal based on the ground of the candidate's religion which
was held to constitute the corrupt practices defined by Sub-sections (3) and (3A) of
Section 123 of the R. P. Act. For this purpose, the true ambit and scope of these provisions
was considered and indicated as under:-We propose to indicate, at this stage, what mischief the provisions were designed to
suppress because that seems to us to be the most illuminating and certain way of
correctly construing these statutory provisions. We cannot do so without adverting
to the historical, political, and Constitutional background of our democratic set up,

such provisions are necessary in our opinion, to sustain the spirit or climate in
which the electoral machinery of this set up could work. (para 10 of AIR).
Our Constitution-makers certainly intended to set up a Secular Democratic
Republic the binding spirit of which is summed up by the objectives set forth in the
preamble to the Constitution. No democratic political and social order,in which the
conditions of freedom and their progressive expansion for all make some regulation
of all activities imperative, could endure without an agreement on the basic
essentials which could unite and hold citizens together despite all the differences of
religion, race, caste, community, culture, Read and language. Our political history
made it particularly necessary that these differences, which can generate powerful
emotions depriving people of their powers of rational thought and action, should
not be permitted to be exploited lest the imperative conditions for the preservation
of democratic freedoms are disturbed. (Para 11 of AIR.)
It seems to us that Section 123, sub-secs. (2), (3) and (3A) were enacted so as to
eliminate, from the electoral process, appeals to those divisive factors which arouse
irrational passions that run counter to the basic tenets of our Constitution, and,
indeed of any civilised political and social order. Due respect for the religious
beliefs and practices, race, creed, culture and language of other citizens is one of
the basic postulates of our democratic system. Under the guise of protecting your
own religions, culture or creed you cannot embark on personal attacks on those of
others or whip up low hard instincts and animosities or irrational fears between
groups to secure electoral victories. The line has to be drawn by the Courts,
between what is permissible and what is prohibited after taking into account the
facts and circumstances of each case interpreted in the context in which the
statements or acts complained of were made. (para 12 of AIR)
xxx xxx xxx
We have to determine the effect of statements proved to have been made by a
candidate, or on his behalf and with his consent, during his election, upon the
minds and feelings of the ordinary average voters of this country in every case of
alleged corrupt practice of undue influence by making statements. We will,
therefore, proceed to consider the particular facts of the case before us. (Para 15 of
AIR)
xxx xxx xxx
...In other words, Bukhari, apart from making a direct attack on the alleged
religious beliefs and practices of the Chagla family, clearly conveyed to the hearers
that Chagla was an unfit person, on the ground of his mixed religious faith and
practices, to represent Muslims. Bukhari had also called upon Muslims to unite

against such a person if they wanted their religion to survive. The High Court had
very rightly held that these statements contravened the provisions of
Section 123(3) of the Act. (para. 36 of AIR).
XXX XXX XXX
We do not think that any useful purpose is served by citing authorities, as the
learned counsel for the appellant tried to do, to interpret the facts of the case before
us by comparing them to the very different facts of other cases. In all such cases,
the line has no doubt to be drawn with care so as not to equate possible impersonal
attacks on religious bigotry and intolerance with personal ones actuated by bigotry
and intolerance. (Para 39 of AIR)
As already indicated by us, our democracy can only survive if those who aspire to
become people's representatives and leaders understand the spirit of secular
democracy. That spirit was characterised by Montesquieu long ago as one of
"virtue'. It implies, as the late Pandit Jawaharlal Nehru once said, 'self discipline'.
For such a spirit to prevail, candidates at elections have to try to persuade electors
by showing them the light of reason and not by inflaming their blind and disruptive
passions. Heresy hunting propaganda or professedly religious grounds directed
against a candidate at an election may be permitted in a theocratic state but not in a
secular republic like ours. It is evident that, if such propaganda was permitted here,
it would injure the interests of members of religious minority groups more than
those of others. It is forbidden in this country in order to preserve the spirit of
equality, fraternity, and amity between rivals even during elections. Indeed, such
prohibitions are necessary in the interests of elementary public peace and order.
(Para 40 of AIR).
xxx xxx xxx
According to his own professions, the appellant wanted votes for himself on the
ground that he staunchly adhered to what he believed to be Muslim religion as
contrasted with Chagla who did not. There is no doubt whatsoever in our minds
that the High Court has rightly found the appellant guilty of the corrupt practices
defined by the provisions of Sections 123(2), 123(3) and 123(3A) of the Act by
making the various speeches closely examined by us also. (Para 47 of AIR).
The meaning of Sub-sections (3) and (3A) of Section 123 was understood and indicated in
this decision, in the above manner. Constitutional validity of Sub-sections (3) and (3A) of
Section 123.
23. The next question now relates to the constitutional validity of these provisions on the
meaning ascribed to them.

24. Sub-section (3A) of Section 123 is undoubtedly a provision made in the interests of
public order or incitement to an offence because the promotion or attempt to promote
feelings of enmity or haired between different classes of the citizens of India on any of the
grounds specified therein, apart from creating divisive tendency, would also be prejudicial
to the maintenance of public order and may amount to incitement to commission of
offences. The freedom of speech and expression guaranteed to all citizens under
Article 19(1)(a), which is the basis of the constitutional challenge to this provision is
subject to Clause (2) of Article 19which permits the making of any law imposing
reasonable restrictions on the exercise of this right in the interests of public order or
incitement to an offence. For this reason, no further attempt was made to press the
argument of challenge to the constitutional validity of Sub-section (3A) on the construction
we have made of that provision.
25. The question now is of the constitutional validity of Sub-section (3) of Section 123. We
have already rejected the argument that the element of prejudicial effect on public order is
implicit also in Sub-section (3) as it is in Sub-section (3A). According to Shri Ram
Jethmalani, unless this element also is read into Sub-section (3), it is violative of
Article 19(1)(a) inasmuch as Clause (2) of Article 19 does not save its validity under any of
the other heads specified therein.
26. We have construed Sub-section (3) of Section 123 as a restriction only to the extent that
votes cannot be sought for a candidate on the ground of his religion, etc. and similarly there
can. be no appeal to refrain from voting for any person on the same ground. In other words,
an appeal to vote for a candidate or note vote for him on the ground of his religion, etc. is
the restriction imposed by Sub-section (3). This restriction is in the law enacted to provide
for the conduct of elections, the qualifications and disqualifications for membership of the
Houses, the corrupt practices and other offences at or in connection with such elections.
The right to contest the election is given by the statute subject to the conditions prescribed
therein. The restriction is limited only to the appeal for votes to a candidate during the
election period and not to the freedom of speech and expression in general or the freedom
to profess, practise and propagate religion unconnected with the election campaign.
27. It is true, as argued by Shri Jethmalani, that the freedom of speech and expression
guaranteed to all citizens under Article 19(1)(a) is absolute subject to the reasonable
restrictions imposed by any law saved by Clause (2) of Article 19, under one of the heads
specified therein. The heads specified in Clause (2) of Article 19 are, therefore, several and
they are intended to cover the entire area within which the absolute freedom to say
anything which the speaker may like would not extend, in keeping with the standards of a
civilized society, the corresponding rights in others in an orderly society, and the
constitutional scheme.

28. The expression "in the interests of' used in Clause (2) of Article 19 indicates a wide
amplitude of the permissible law which can be enacted to provide for reasonable
restrictions on the exercise of this right under one of the heads specified therein, in
conformity with the constitutional scheme. Two of the heads mentioned are ; decency or
morality. Thus any law which imposes reasonable restrictions on the exercise of this right
in the interests of decency or morality is also saved by Clause (2) of Article 19. Shri
Jethmalani contended that the words 'decency or morality' relate to sexual morality alone.
In view of the expression "in the interest of and the context of election campaign for a free
and fair poll, the right to contest the election being statutory and subject to the provisions
of the statute, the words 'decency or morality' do not require a narrow or pedantic meaning
lo be given to these words. The dictionary meaning of 'decency' is "correct and tasteful
standards of behavior as generally accepted; conformity with current standards of behavior
or propriety; avoidance of obscenity; and the requirements of correct behavior " (The
Oxford Encyclopedic English Dictionary); "conformity to the prevailing standards of
propriety, morality, modesty, etc; and the quality of being decent" (Collins English
Dictionary).
29. Thus, The ordinary dictionary meaning of 'decency' indicates that the action must be in
conformity with the current Standers of behavior or propriety, etc. In a secular polity, the
requirement of correct behavior or propriety is that an appeal for votes should not be made
on the ground of the candidate's religion which by itself is no index of the suitability of a
candidate for membership of the house. In Knuller (Publishing, Printing and Promotions)
Ltd., v. Director of Public Prosecutions (1972) 2 All ER 898 the meaning o|' 'indecency'
was indicated as under:
...Indecency is not confined to sexual indecency; indeed it is difficult to find any limit short
of saying that it includes, anything which an ordinary decent man or woman would find to be
shocking, disgusting and revolting.... (at page 905)
30. Thus, seeking votes at an election on the ground of the candidate's religion in a secular
State is against the norms of decency and propriety of the society;
31. In our opinion, the saving in Clause (2) of Article 19 permits the imposition of
reasonable restrictions on the exercise of the right conferred by Article 19(1)(a)by making
any law in the interests of decency or morality; and Sub-section (3) of Section 123 of the
R. P. Act, as construed by us, has the protection of Clause (2) of Article 19 under the head
'decency' therein. This conclusion, is reached by us even if it is assumed that the provision
is not saved merely as a condition subject to which the statutory right of contesting an
election is available to the candidate. The fact that the scheme of separate electorates was
rejected in framing the Constitution and secularism is the creed adopted in the
Constitutional scheme are relevant considerations to treat this as a reasonable restriction on
the freedom of speech and expression, for maintaining the standard of behavior required in

conformity with the decency and propriety of the societal norms. Viewed at in any manner,
Sub-section (3) of Section 123 cannot be held to be unconstitutional. This view is also in
accord with the nature of right to contest an election, as understood in Jamunaprasad
Mukhariya v. Lachhi Ram MANU/SC/0104/1954
: [1955]1SCR608 .

32. The argument assailing the constitutional validity of Sub-sections (3) and/or (3A) of
Section 123 is rejected.
Meaning of 'Hindutva' and 'Hinduism'
33. The next contention relates to the meaning of 'Hindutva' and Hinduism and the effect of
the use of these expressions in the election speeches.
34. We have already indicated the meaning of Sub-section (3) of Section 123 of the R.P.
Act and the limit of its operation. It may be said straight way that any speech wherein these
expressions are used, irrespective of their meaning, cannot by itself fall within the ambit of
Sub-section (3) of Section 123, unless the speech can be construed as an appeal to vote for
a candidate on the ground that he is a Hindu or to refrain from voting for a candidate on the
ground of his religion, i.e., he not being a Hindu. We have also indicated that mere
reference to any religion in an election speech does not bring it within the net of Subsection (3) and/or Sub-section (3A) of Section 123, since reference can be made to any
religion in the context of secularism or to criticise any political party for practising
discrimination against any religious group or generally for preservation of the Indian
culture. In short, mere use of the word 'Hindutva' or 'Hinduism' or mention of any other
religion in an election speech does not bring it within the net of Sub-section (3) and/or
subjection (3A) of Section 123, unless the further elements indicated are also present in
that speech. It is also necessary to see the meaning and purport of the speech and the
manner in which it was likely to be understood by the audience to which the speech was
addressed. These words are not to be construed in the abstract, when used in an election
speech.
35. Both sides referred copiously to the meaning of the words 'Hindutva' and 'Hindusim'
with reference to several writings. Shri Jethmalani referred to them for the purpose of
indicating the several meanings of these words and to emphasise that the word 'Hindutva'
relates to Indian Culture based on the geographical division known as Hindustan, i.e.,
India. On the other hand, Shri Ashok Desai emphasised that the term 'Hindutva' used in
election speeches is an emphasis on Hindu religion bearing no relation to the fact that India
is also known as Hindustan, and the term can relate to Indian culture.

36. The Constitution Bench in Sastri Yagnapurushadji v. Muldas Bhudardas Vaishya

MANU/SC/0040/1966
: [1966]3SCR242 held thus

Who are Hindus and what are the broad features of Hindu religion, that must be the
first part of our enquiry in dealing with the present controversy between the parties.
The historical and etymological genesis of the word 'Hindu' has given rise to a
controversy amongst indologists; but the view generally accepted by scholars
appears to be that the word "Hindu" is derived from the river Sindhu otherwise
known as Indus which flows from the Punjab. "That part of the great Aryan race",
says Monier Williams, 'which immigrated from Central Asia, through the mountain
passes into India, settled first in the districts near the river Sindhu (now called the
Indus). The Persians pronounced this word Hindu and named their Aryan brethren
Hindus, The Greeks, who probably gained their first ideas of India from the
Persians, dropped the hard aspirate, and called the Hindus Indoi' ("Hinduism" by
Monier Williams, P. J).
The Encyclopedia of Religion and Ethics, Vol. VI, has described 'Hinduism' as the
title applied to that form of religion which prevails among the vast majority of the
present population of the Indian Empire (p. 686). As Dr. Radhakrishnan has
observed; "The Hindu civilization is so called, since its original founders or earliest
followers occupied the territory drained by the Sindhu (the Indus) river system
corresponding to the North West Frontier Province and the Punjab. This is recorded
in the Rig Veda, the oldest of the Vedas, the Hindu scriptures which give their name
to this period Indian history, The people on the Indian side of the Sindhu were
called Hindu by the Persian and the later western invaders" ("The Hindu view of
Life" by Dr. Radhakrishnan, P. 12). That is the genesis of the word "Hindu".
When we think of the Hindu religion. We find it difficult, if not impossible to
define Hindu religion or even adequately describe it. Unlike other religions in the
world, the Hindu religion does not claim any one prophet; it does not worship any
one God; it does not subscribe to any one dogma; it does not believe in any one
philosophic concept; it does not follow any one set of religious rites or
performances; in fact, it does not appear to satisfy the narrow traditional features of
any religion or creed. It may broadly be described as a way of life and nothing
more.
...The term 'Hindu', according to Dr. Radhakrishnan, had originally a territorial and
not a credal significance. It implied residence in a well-defined geographical area.
Aboriginal tribes, savage and half-civilized people, the cultured Dravidians and the
Vedic Aryans were all Hindus as they were the sons of the same mother. The Hindu

thinkers reckoned with the striking fact that the men and women dwelling in India
belonged to different communities, worshipped different gods, and practised
different rites (Kurma Purana) (Ibid p. 12).
Monier Williams has observed that "it must be borne in mind that Hinduism is far
more than a mere form of theism vesting on Brahmanism. It presents for our
investigation a complex congeries of creeds and doctrines which in its gradual
accumulation may be compared to the gathering together of the mighty volume of
the Ganges, swollen by a continual influx of tributary rivers and rivulets, spreading
itself over an ever-increasing area of country and finally resolving itself into an
intricate Delta of tortuous steams and jungly marshes.... The Hindu religion is a
reflection of the composite character of the Hindus, who are not one people but
many. It isbased on the Ida of universal receptivity. It has ever aimed to
accomodating itself to circumstances, and has carried on the process of adaptation
through more than three thousand years. It has first borne with and then, so to
speak, swallowed, digested, and assimilated something from all creeds".
("Religious Thought & Life in India" by Monier Williams, P. 57).
We have already indicated that the usual tests which can be applied in relation to
any recognised religion or religious creed in the world turn out to be inadequate in
dealing with the problem of Hindu religion. Normally, any recognised religion or
religious creed subscribes to body of set philosophic concepts and theological
beliefs. Docs this test apply to the Hindu religion? In answering this question, we
would base ourselves mainly on the exposition of the problem by Dr.
Radhakrishnan in his work on Indian Philosophy. ("Indian Philosophy" by Dr.
Radhakrishnan, Vol. I, pp. 22--23). Unlike other countries, India can claim that
philosophy in ancient India was not an auxiliary to any other science or Article but
always held a prominent position of independence ...."In all the fleeting centuries
of history", says Dr. Radhakrishnan, 'in all the vicissitudes through which India has
passed, a certain marked identity is visible. It has held fast to certain psychological
traits which constitute its special heritage, and they will be the characteristic marks
of the Indian people so long as they are privileged to have a separate existence."
The history of Indian thought emphatically brings out the fact that the development
of Hindu religion has always been inspired by an'endlcss quest of the mind for truth
based on the ' consciousness that truth has many facets. Truth is one, but wise men
describe it differently. (..) The Indian mind has, consistently through the ages, been
exercised over the problem of the nature of godhead the problem that faces the
spirit at the end of life, and the interrelation between the individual and the
universal soul. "If we can abstract from the variety of opinion", says Dr.
Radhakrishnan, "and observe the general spirit of Indian thought, we shall find that
it has a disposition to interpret life and nature in the way of monistic idealism,

though this tendency is so plastic, living and manifold that it takes many forms and
expresses itself in even mutually hostile teachings." (..)
....Naturally enough, it was realised by Hindu religion from the very beginning of
its career that truth was many-sided and different views contained different aspects
of truth which no one could fully express. I his knowledge inevitably bred a spirit
or tolerance and willingness to understand and appreciate the opponent's point of
view. That is how 'the several views set forth in India in regard to the vital
philosophic concepts are considered to be the branches of the self-same tree. The
short cuts and blind alleys are somehow reconciled with the main road of advance
to the truth." (..) When we consider this broad sweep of the Hindu philosophic
concepts, it would be realised that under Hindu philosophy, there is no Scope for
ex-communicating any notion or principle as heretical and rejecting it as such.
xxx xxx xxx
The development of Hindu religion and philosophy shows that from time to time
saints and religious reformers attempted to remove from the Hindu thought and
practices elements of corruption' and superstition and that led to the formation of
different sects. Buddha started Buddhism; Mahavir founded Jainism; Basava
became the founder of Lingayat religion, Dnyaneshwar and Tukaram initiated the
Varakari cult; Guru Nank inspired Siskhism; Dayananda founded Arya Samaj, and
Chaitanya began Bhakti cult: and as a result of the teachings of Ramkrishnaand
Vivekananda, Hindu religion flowered into its most attractive, progressive and
dynamic form. If we study the teachings of these saints and religious reformers, we
would notice an amount of divergence in their respective views; but underneath
that divergence, there is a kind of subtle indescribable unity which keeps them
within the sweep of the broad and progressive Hindu religion.
xxx xxx xxx
...It is somewhat remarkable that this broad sweep of Hindu religion has been
eloquently described by Toynbee. Says Toynbce: "When we pass from the plane of
social practice to the plane of intellectual outlook, Hinduism too comes out well by
comparison with the religions and ideologies of the South-West Asian group. In
contrast to these Hindusim has the same outlook as the pre-Christian and preMuslim religions and philosophies of the Western half of the old world. Like them,
Hinduism takes it for granted that there is more than one valid approach to truth
and to salvation and that these different approaches are not only Compactable with
each other., but are complementary" ("The Present-Day Experiment in Western
Civilisation" by Toynbee, pp. 48-49).

The Constitution-makers were fully conscious of this broad and comprehensive

character of Hindu religion; and so, while guaranteeing the fundamental right to
freedom of religion, Explanation II to Art.
25 has made it clear that in sub-clause (b) of Clause (2). the reference to Hindus
shall be construed as including a reference to persons professing the Sikh, Jains or
Buddhist religion, and the reference to Hindu religious institutions shall be
construed accordingly.
(emphasis supplied)
(from pages259-266) (of SCR): (at pages 1128-1131 of AIR).
37. In a later Constitution Bench decision in Commissioner of Wealth tax, Madras v. Late
R. Sridharan by L.Rs. MANU/SC/0515/1976
: (1976) Supp SCR 478, the meaning

of the term 'Hinduism' as commonly understood is stated thus :-...It is a matter of common knowledge, that Hinduism embraces within self so
many diverse forms of beliefs, faiths, practices and worship that it is difficult to
define the term 'Hindu' with precision.
The historical and etymological genesis of the word 'Hindu" has been succinctly
explained by Gajendragadkar, C. J. in Shastri Yagnapurushdasji v. Muldas
Bhudardas Vaishya MANU/SC/0040/1966
: [1966]3SCR242 .

In Unabridged Edition of Webster's Third New International Dictionary of the

English language, the term 'Hinduism' has been defined as meaning 'a complex
body of social, cultural and religious beliefs and practices evolved in and largely
confined to the Indian subcontinent and marked by a caste system, an outlook
tending to view all forms and theories as aspects of one eternal being and truth, a
belief in ahimsa, karma, dharma, sansara and moksha, and the practice of the way
of works, the way of knowledge, or the way of devotion as the means of release
from the bound of rebirths; the way of life and form of thought of a Hindu".
In Encyclopaedia Britannica (15th Eidition), the term 'Hindusim' has been defined
as meaning "the civilization of Hindus (originally, the inhabitants of the land of the
Indus River). It properly denotes the Indian civilization of approximately the last
2,000 years, which gradually evolved from Vedism, the religion of the ancient
Indo-European who settled in India in the last centuries of the 2nd millennium BC.
Because it integrates a large variety of heterogeneous elements, Hinduism

constitutes a very complex but largely continuous whole, and since it covers the
whole of life, it has religious social, economic literary, and artistic aspects. As a
religion, Hinduism is an utterly diverse conglomerate of doctrines, cults, and way
of life....In principle, Hinduism incorporates all forms of belief and worship
without necessitating the selection or elimination of any. The Hindu is inclined to
revere the divine in every manifestation, whatever it may be, and is doctrinally
tolerant, leaving others ir eluding both Hindus and non-Hindus -- whatever creed
and worships practices suit them best. A Hindu may embrace a non-Hindu religion
without ceasing to be Hindu, and since the Hindu is disposed to think synthetically
and to regard other forms of worship, strange gods, and divergent doctrines as
inadequate rather than wrong or objectionable, he tends to believe that the highest
divine powers complement each other for the well-being of the world and mankind.
Few religious ideas are considered to be finally irreconcilable. The core of religion
does not even depend on the existence or non-existence of God or on whether there
is one god or many. Since religious truth is said to transcend all verbal definition, it
is not conceived in dogmatic terms. Hinduism is then both a civilization and a
conglomerate of religions with neither a beginning, a founder, nor a central
authority, hierarchy, or organization. Every attempt at a specific definition of
Hinduism has proved unsatisfactory in one way or another, the more so because the
finest Indian scholars of Hinduism, including Hindus themselves, have emphasized
different aspects of the whole.
In his celebrated treatise "Gitarahasya", B.G. Tilak has given the following broad
description of the Hindu religion :-Acceptance of the Vedas with reverence; recognition of the fact that the means or
ways of salvation or diverse; and realisation of the truth that the number of gods to
be worshipped is large, that indeed is the distinguishing feature of Hindu religion.
In Bhagwan Koer v. J.C. Bose ILR 1904 Cal 11, it was held that Hindu religion is
Marvelously catholic and elastic. Its theology is marked by eclecticism and tolerance and
almost unlimited freedom of private worship....
This being the scope and nature of the religion, it is not strange that it holds within its fold
men of divergent views and traditions which have very little in common except a vague
faith in what may be called the fundasnentals of the Hindu religion.
38. These Constitution Bench decisions, after a detailed discussion, indicate that no precise
meaning can be ascribed to the terms 'Hindu', 'Hindutva' and 'Hinduism'; and no meaning
in the abstract can confine it to the narrow limits of religion alone, excluding the content of
Indian culture and heritage. It is also indicated that the term 'Hindutva' is related more to
the way of life of the people in the subcontinent. It is difficult to appreciate how in the face
of these decisions the term 'Hindutva' or 'Hinduism' per se, in the abstract, can be assumed

to mean and be equated with narrow fundamentalist Hindu religious bigotry, or be

construed to fall within the prohibition in sub-sections 3 and/or (3A) of Section 123 of the
R. P. Act.
39. Bharucha, J. in Dr. M. Ismali Faruqui v. Union of India MANU/SC/0860/1994

: AIR1995SC605 , (Ayodhya case), in the separate opinion for himself and Ahmadi, J. (as
he then was), observed as under:
...Hinduism is a tolerant faith. It is that tolerance that has enabled Islam,
Christianity, Zoroastrianism, Judaism, Buddhism, Jainism, and Sikhism to find
shelter and support upon this land....
(at page 442) (of SCC): (at p. 4971, para 159 of AIR)
40. Ordinarily, Hindutva is understood as a way of life or a state of mind and it is not to be
equated with, or understood as religious Hindu fundamentalism. In "Indian Muslims -- The
Need For A Positive Outlook" by Maulana Wahiduddin Khan (1994), it is said:
The strategy worked out to solve the minorities problem was, although differently
worded, that of Hindutva or Indianisation. This strategy, briefly stated Aims at
developing a uniform culture by obliterating the differences between all the
cultures co-existing in the country. This was felt to be the way of communal
harmony and national unity. It was thought that this would put an end once and for
all to the minorities problem.
(at page 19)
The above opinion indicates that the word 'Hindutva' is used and understood as a synonym
of 'Indianisation', i.e. development of uniform culture by obliterating the differences
between all the cultures co-existing in the country.
41. In Kultar Singh v. Mukhtiar Singh MANU/SC/0180/1964

: [1964]7SCR790 ,

the Constitution Bench construed the meaning of sub-section (3) of Section 123prior to its
amendment. The question there was whether a poster contained an appeal to voters to vote
for the candidate on the ground of his religion; and the meaning of the word 'Panth' in the
poster was significant for the purpose. It was held as under:-It is true that a corrupt practice under Section 123(3) can be committed by a
candidate by appealing to the voters to vote for him on the ground of his religion

even though his rival candidate may belong to the same religion. If, for instance, a
Sikh candidate were to appeal to the voters to vote for him, because he was a Sikh
and add that his rival candidate, though a Sikh in name, was not true to the
religious tenets of Sikhism or was a heretic and as such, outside the pale of the Sikh
religion, that would amount to a corrupt practice under Section 123(3), and so, we
cannot uphold the contention that Section 123(3) is inapplicable because both the
appellant and the respondent are Sikhs....
The corrupt practice as prescribed by Section 123(3) undoubtedly constitutes a very
healthy and salutary provision which is intended to serve the cause of secular
democracy in thiscountry. In order that the democratic process should thrive and
succeed, it is of utmost importance that our elections to Parliament and the different
legislative bodies must be free from the unhealthy influence of appeals to religion,
race, caste, community, or language. If these considerations are allowed any away
in election campaigns, they would vitiate the secular atmosphere of democratic life,
and so, Section 123(3) wisely provides a check on this undesirable development by
providing that an appeal to any of these factors made in furtherance of the
candidature of any candidate as therein prescribed would constitute a Corrupt
practice and would render the election of the said candidate void.
In considering the question as to whether the distribution of the impugned poster by
the appellant constitutes corrupt practice under Section 123(3), there is one point
which has to be borne in mind. The appellant had been adopted as its candidate by
the Akali Dal Party. This party is recognised as a political party by the Election
Commission nothwithstanding the fact that all of its members are only Sikhs. It is
well-known that there are several parties in this country which subscribe to
different political and economic ideologies, but the membership of them is either
confined to, or predominantly held by, members of particular communities or
regions. So long as law does not prohibit the formation of such parties and in fact
recognises them for the purpose of election and parliamentary life, it would be
necessary to remember that an appeal made by candidates of such parties for votes
may, if successful, lead to their election and in an indirect way, may conceivably be
influenced by considerations of religion, race, caste, community or language. This
infirmity cannot perhaps be avoided so long as parties are allowed to function and
are recognised, though their composition may be predominantly based on
membership of particular communities or religion. That is why we think, in
considering the question as to whether a particular appeal made by a candidate falls
within the mischief of Section 123(3), Courts should not be astute to read into the
words used in the appeal anything more than can be attributed to them on its fair
and reasonable construction.

That takes us to the question of construing the impugned poster. The principles
which have to be applied in construing such a document are well-settled. The
document must be read as a whole and its purport and effect determined in a fair,
objective and reasonable manner. In reading such documents, it would be
unrealistic to ignore the fact that when election meetings are held and appeals are
made by candidates of opposing political parties, the atmosphere is usually
surcharged with partisan feelings and emotions and the use of hyperboles or
exaggerated language, or the adoption of metaphors, and the extravagance of
expression in attacking one another, are all a part of the game, and so, when, the
question about the effect of speeches delivered or pamphlets distributed at election
meetings is argued in the cold atmosphere of a judicial chamber, some allowance
must be made and the impugned speeches or pamphlets must be construed in that
light, In doing so, however, it would be unreasonable to ignore the question as to
what the effect of the said speech or pamphlet would be on the mind of the ordinary
voter who attends such meetings and reads the pamphlets or hears the speeches. It
is in the light of these well-established principles that we must now turn to the
impugned pamphlet."
(at pages 793-795) (of SCR): (at Pages 143-44 of AIR.)
42. The test applied in the decision was to construe the meaning of the word 'Panth' not in
the abstract but in the context of its use. The conclusion reached was that the word 'Panth'
is used in Hie poster did not mean Sikh religion and, therefore, the appeal to the voters was
not to vote for the candidate because of his religion. Referring to an earlier decision in
Jagdev Singh Sidhanti v. Pratap Singh Dautta MANU/SC/0178/1964
:

[1964]6SCR750 , it was reiterated as under:-...Political issues which form the subject-matter of controversies at election
meetings may indirectly and incidentally introduce considerations of language or
religion, but in deciding the question as to whether corrupt practice has been
committed under Section123(3), care must be taken to consider the impugned
speech or appeal carefully and always in the light of the relevant political
controversy....
(emphasis supplid)
(at page 799) (of SCR): (at P. 146, Pr. 17 of AIR.)
43. Thus, it cannot be doubted, particularly in view of the Constitution Bench decisions of
this Court that the words 'Hinduism' or 'Hindutva' are not necessarily to be understood and
construed narrowly, confined only to the strict Hindu religious practices unrelated to the

culture and ethos of the people of India, depicting the way of life of the Indian people.
Unless the context of a speech indicates a contrary meaning or use, in the abstract these
terms are indicative more of a way of life of the Indian people and are not confined merely
to describe persons practising the Hindu religion as a faith.
44. Considering the terms 'Hinduism' or 'Hindutva' per se as depicting hostility, enmity or
intolerance towards other religious faiths of professing communalism, proceeds from an
improper appreciation and perception of the true meaning of these expressions emerging
from the detailed discussion in earlier authorities of this Court. Misuse of these expressions
to promote communalism cannot alter the true meaning of these terms. The mischief
resulting from the misuse of the terms by anyone in his speech has to be checked and not
its permissible use. It is indeed very unfortunate, if in spite of the liberal and tolerant
features of 'Hinduism' recognized in judicial decisions, these terms are misused by anyone
during the elections to gain any unfair political advantage. Fundamentalism of any colour
or kind must be curbed with a heavy hand to preserve and promote the secular creed of the
nation. Any misuse of these terms must, therefore, be dealt with strictly.
45. It is, therefore, a fallacy and an error of law to proceed on the assumption that any
reference to Hindutva or Hinduism in a speech makes it automatically a speech based on
the Hindu religion as opposed to the other religions or that the use of words 'Hindutva' or
'Hinduism' per se depict an attitude hostile to all persons practising any religion other than
the Hindu religion. It is the kind of use made of these words and the meaning sought to be
conveyed in the speech which has to be seen and unless such a construction leads to the
conclusion that these words were used to appeal for votes for a Hindu candidate on the
ground that he is a Hindu or not to vote for a candidate because he is not a Hindu, the mere
fact that these words are used in the speech would not bring it within the prohibition of
Sub-section (3) or (3A) of Section 123. It may well be, that these words are used in a
speech to promote secularism or to emphasise the way of life of the Indian people and the
Indian culture or ethos, or to criticise the policy of any political party as discriminatory or
intolerant. The parliamentary debates, including the clarifications made by the Law
Minister quoted earlier, also bring out this difference between the prohibited and
permissible speech in this context. Whether a particular speech in which reference is made
to Hindutva and/or Hinduism falls within the prohibition under Sub-section (3) or (3A) of
Section 123 is, therefore, a question of fact in each case.
46. This is the correct premise in our view on which all such matters are to be examined.
The fallacy is in the assumption that a speech in which reference is made to Hindutva or
Hinduism must be a speech on the ground of Hindu religion so that if the candidate for
whom the speech is made happens to be a Hindu, it must necessarily amount to a corrupt
practice under Sub-section (3) and/or Sub-section (3A) of Section 123 of the R.P. Act. As
indicated, there is no such presumption permissible in law contrary to the several
Constitution Bench decisions referred herein.

Non-compliance of Section 99 of the R.P. Act.

47. The contention that the notice given to Bal Thackeray under Section 99 of the R.P. Act
was not in conformity with that provision and that there is non-compliance of the
requirements of Section 99, has no merit. The notice was given after the entire evidence
had been recorded and the learned trial Judge formed the prima facie opinion that the
corrupt practices alleged to have been committed under Sub-sections (3) and (3A) of
Section 123 appeared to have been proved and Bal Thackeray was likely to be named along
with the returned candidate to be guilty of those corrupt practices. The notice given was
accompained by copies of pleadings and the entire evidence adduced at the trial for proving
those corrupt practices. The notice clearly stated that the noticee had the opportunity to
cross-examine such witnesses as had already been examined and of calling evidence in his
defence and of being heard. The noticee raised objection to the notice alleging that it was
vague, which was rejected by the High Court. That order was challenged by a special leave
petition in this Court which was dismissed granting liberty to the noticee to apply in the
High Court for the precise particulars claimed by him. Ultimately certain portions from the
material on record were indicated by the petitioner on such a direction being given by the
High Court. In view of the direction of this Court in the special leave petition, it would
have been more appropriate for the High Court to indicate the precise portions. However,
there is no prejudice caused, inasmuch as the portions were indicated by the election
petitioner on the High Court's direction. The election petitioner Prabhakar Kashinath
Kunte, (P.W. I) was called for cross-examination on behalf of the noticee. The noticee was
given full opportunity to cross-examine the witnesses already examined and to adduce
evidence in his defence and to argue his case in the High Court. The noticee Bal Thackeray
did not choose to enter the witness box and, therefore the material present has to be
examined without any denial by the noticee as a witness in the case.
48. There is no dispute that no material which was not given to the noticee Bal Thackeray
was used against him. We have already indicated that the finding of proof of the corrupt
practices alleged in the election petition is based on the three speeches of Bal Thackeray
which are not denied either by Dr. Ramesh Prabhoo or by Bal Thackeray. Copy of the text
of those speeches is also undisputed. All this was furnished to the noticee Bal Thackeray. It
is difficult to visualise what prejudice could be caused to the noticee on these facts and
how there could be any non-compliance of Section 99 of the R. P. Act in this Situation.
49. In order to examine the contention of non-compliance of Section 99, it is necessary to
examine the requirements of that provision. Section 99 reads as under:-99. Other orders to be made by the High Court. (1) At the time of making an order
under Section 98 the High Court shall also make an order -(a) where any charge is made in the petition of any corrupt practice having
been committed at the election, recording --

(i) a finding whether any corrupt practice has or has not been
proved to have been committed at the election, and the nature of
that corrupt practice; and
(n) the names of all persons, if any, who have been proved at the
trial to have been guilty of any corrupt practice and the nature of
that practice; and
(b) fixing the total amount of costs payable and specifying the
persons by and to whom costs shall be paid,:
Provided that a person who is not a party to the petition shall not be
named in the order under sub-clause (ii) of Clause (a) unless -(a) he has been given notice to appear before the High
Court and to show cause why he should not be so named;
and
(b) if he appears in pursuance of the notice, he has been
given an opportunity of cross-examining any witness who
has already been examined by the High Court and has given
evidence against him, of calling evidence in his defence and
of being heard.
(2) In this section and in Section 100, the expression 'agent' has the
same meaning as in Section 123.
50. Sub-section (1) requires that at the Trine of making an order under Section 98, the High
Court shall also make an order recording the names of all persons, if any, who have been
proved at the trial to have been guilty of any corrupt practice and the nature of that
practice. In other words, while deciding the election at the conclusion of the trial and
making an order under Section 98 disposing of the election petition in one of the ways
specified therein, the High Court is required to record the names of all persons guilty of
any corrupt practice which has been proved at the trial. Proviso to Sub-section (1) then
prescribes that a person who is not a party to the petition shall not be so named unless the
condition specified in the proviso is fulfilled. The requirement of the proviso is only in
respect of a person who is not a party to the petition and is to be named so that he too has
the same opportunity which was available to a party to the petition. The requirement
specified is of a notice to appear and show cause why he should not be named and if he
appears in pursuance of the notice, he has to be given an opportunity of cross-examining
any witness who has already been examined by the High Court and has given evidence
against him and also the opportunity of calling evidence in his defence and of being heard.
In short, the opportunity which a party to the petition had at the trial to defend against the

allegation of corrupt practice is to be given by such a notice to that person of defending

himself if he was not already a party to the petition. In other words, the noticee has to be
equated with a party to the petition for this purpose and is to be given the same opportunity
which he would get if he has made a party to the petition.
51. This is the pragmatic test to be applied for deciding the question of compliance of
Section 99 of the R. P. Act. If the noticee had the opportunity which he would have got as a
party to the petition, then there can be no case of non-compliance of Section 99. The
opportunity required to be given by the proviso to Sub-section (1) of Section 99 is the same
and not more than that available to a party to the petition to defend himself against the
charge of corrupt practice. Applying the above test, there can be no doubt that there is no
non-compliance of Section 99 in the present case. The noticee Bal Thackeray had the same
opportunity which the returned candidate Dr. Ramesh Yeshwant Prabhoo got as a
respondent to the petition. The noticee was given the opportunity to cross-examine any
witness who had already been examined by the High Court and the witnesses who were
considered to have given evidence against him, were also enumerated in the notice; and he
was given an opportunity to call evidence in his defence and to be heard.
52. In this situation, the grievance made that specific portion of the material which formed
the record at the trial was not precisely indicated to the noticee has no merit. It was clear
from the pleading that the allegation against the noticee was in respect of the three
speeches made by him, the particulars of which were given and the text of those speeches
also was available to the noticee which he did not Evenly deny. On these facts, there is no
Ground to allege non-compliance of Section 99 of the R. P. Act. This contention on behalf
of the noticee Bal Thackeray is, therefore, rejected and the objection raised in the appeal of
Bal Thackeray of non-compliance of Section 99 of the R. P. Act has no merit.
53. We would now proceed to examine the facts of the case.
Speeches
54. It is in the light of the above discussion and the meaning of Sub-sections (3) and (3A)
of Section 123 that the effect of the alleged offending speeches has to be examined. The
three speeches were made on 29-11-1987, 9-12-1987 and 10-12-1987. The High Court has
held that the speeches of 29-11 -1987 and 10-12-1987 amount to corrupt practices-under
Sub-sections (3) and (3A) of Section 123, while the speech of 9-12-1987 is a corrupt
practice only under Sub-section (3) thereof. The returned candidate Dr. Ramesh Yeshwant
Prabhoo was present in all the three meetings in which these speeches were given by Bal
Thackeray. The consent of Dr. Prabhoo for these speeches is implied from his conduct
including his personal presence in all the three meetings.
55. Certain extracts from the alleged speeches of Bal Thackeray, translated in English, are
expressly pleaded in the election petition, as under:--

From Speech of 29-11-1987

We are fighting this election for the protection of Hinduism. Therefore, we do not
care for the votes of the Muslims. This country belongs to Hindus and will remain
so.
From Speech of 9-12-1987
Hinduism will triumph in this election and we must become hon'ble recipients of
this victory to ward off the danger on Hinduism, elect Ramesh Prabhoo to join with
Chhagan Bhujbal who is already there. You will find Hindu temples underneath if
all the mosques are dug out. Anybody who stands against the Hindus should be
showed or worshipped with shoes. A candidate by name Prabhoo should be led to
victory in the name of religion.
From Speech of 10-12-1987
We have gone with the ideology of Hinduism. Shiv Sena will implement this
ideology. Though this country belongs to Hindus, Ram and Krishna are insulted.
(They) valued the Muslim votes more than your votes; we do not want the Muslim
votes. A snake like Shahabuddin is sitting in the Janta Party, man like Nihal Ahmed
is also in Janata Party. So the residents of Vile Parle should bury this party (Janta
Party).
56. It has been pleaded in the election petition that the above utterances in the three
meetings are examples to show that the appeal to voters emphasised that Dr. Ramesh
Prabhoo was the only person who could represent of Hindu community and, therefore, the
voters should vote for Ramesh Prabhoo in the name of religion. The full text of the
speeches were adduced in evidence and the contents thereof are not disputed. It may be
mentioned that a notice under Section 99 of the R. P. Act was issued to Bal Thackeray who
merely filed an affidavit but did not enter the witness box. The true import and impact of
these speeches has, therefore, to be adjudged in the light of the evidence including the
statement of Dr. Ramesh Yeshwant Prabhoo without the version in evidence of Bal
Thackeray.
57. The case was argued even before us on a demurrer treating the contents of the speeches
as reproduced in the full text in evidence, of which the specific portions pleaded in the
election petition are extracts. The question is : Whether these speeches amount to corrupt
practices under Sub-sections (3) and/or (3A) of Section 123 as held by the High Court?
58. We may now quote certain extracts from the three speeches of Bal Thackeray on which
reliance has been placed in particular by Shri Ashok Desai to support the judgment of the
High Court that they constitute the said corrupt practices. These are :

First Speech on 29-11-1987

All my Hindu brothers, sisters and mothers gathered here.... Today Dr. Prabhoo has
been put up as candidate from your Parle... But here one cannot do anything at
anytime about the snake in the form of Khalistan and Muslim.... The entire country
has been ruined and therefore we took the stand of Hindutva and by taking the said
stand we will step in the legislative Assembly.... Unless we step forward strongly it
would be difficult for us to live because there would be war of religion...., Muslims
will come. What will you Hindu (people) do. Are you going to throw 'Bhasma' (i.e.
ashes) on them.... We won't mind if do not get a vote from a single Muslim and we
are not at all desirous to win an election with such votes....therefore, there is a dire
need of the voice of Hindutva and therefore please send Shiv-Sena to Legislative
Assembly ...who are (these) Muslims. Who are these 'lande'. Once Vasant Dada had
called me when he was a Chief Minister. He told me that rest is O.K. But asked me
as to why I was calling them Lande. But is it correct if they call us 'Kafer' (i.e.
traitor) then we will certainly call them 'Lande'.... They should bear in mind that
this country is of Hindus, the same shall remain of Hindus.... if Shiv-Sena comes to
power and if the morchas come -- first of all (we) shall make them come.
Everybody will have to take 'diksha' (i.c. initiation) of Hindu religion.
Second speech of 9-12-1987
...The victory will not be mine or of Dr. Prabhu or of Shiv-Sena but the victory will
be that of Hiduism. You will be instrumental in victory and you should become
instrument for the same. At last you have the right to get rid of the difficulties faced
by your caste, creed, gods deities and Hindu religion.... Therefore, I want to say
that today we are standing for Hinduism.... Whatever Masjids are there, if one starts
digging the same, one will find Hindu temples under the same... If any body stands
against Hindustan you should show courage by performing pooja (i.e. worship)
with shoes....And a person by name Prabhu who is contesting the election in the
name of religion sent ahead (in the assembly). A 'Jawan' -- like Prabhu should go
there (in the assembly)....
Third speech of 10-12-1987
....It will do, if we do not get a vote from any Muslim. If anybody from them is
present at this place he should think for himself. I am not in need of their votes. But
I want your vote.... You must sent only Dr. Ramesh Prabhu of Shiv-Sena, otherwise
Hindus will be finished. It will not take much time for Hindustan to be green (i.e.
Pakistan?)....
59. As earlier stated, the three speeches of Bal Thackeray from which the above extracts
have been quoted are admitted. Similarly the interview of Dr. Ramesh Yeshwant Prabhu

and its text published in Janniabhoomi Prawasi is admitted. Dr. Prabhoo was the Mayor of
Bombay. Dr. Prabhoo (R. W. 1) admitted his presence in the meetings held on 29-11 -1987,
9-12-1987 and 10-12-1987 in which the above speeches were given by Bal Thackeray. He
admitted speaking himself also in these meetings. He has said nothing in his statement to
suggest that he did not consent to the contents of the speeches of Bal Thackeray. In his
deposition, he has expressly admitted that the speeches of Bal Thackeray were according to
his election campaign. The element or" the candidate's consent for the appeal to the voters
made by Bal Thackeray in his speeches is, therefore, adequately proved. About his
interview published in the Janmabhoomi Prawasi, issue of 9-12-1987, he said that the
report is substantially correct, even though the first paragraph of that news item is
incorrect. Omitting the first paragraph of the news item which he denied, certain portions,
translated into English, from the remaining news item publishing the interview are as
under:-....Dr. Prabhoo told me that there was a Hindu wave in Parle. The battle is between
Hindus and Muslims i.e. to say between nationalist and anti-nationalist ....
xxx xxx xxx
Supremely confident about his victory in the Vile Parle bye-election, Dr. Prabhu
discounted any possibility of his defeats but he added that if he loses, it will mean
that Hinduism has lost....
60. The appeal made to the voters by Bal Thackeray in his aforesaid speech was a clear
appeal to the Hindu voters to vote for Dr. Ramesh Prabhoo because he is a Hindu. The
clear import of the above extracts in each of the three speeches is to this effect. The first
speech also makes derogatory reference to Muslims by calling them 'snake' and referring to
them as 'lande' (derogatory term used for those, practising circumcision). The language
used in the context, amounted to an attempt to promote feelings of enmity or hatred
between the Hindus and the Muslims on the ground of religion. The first speech, therefore,
also constitutes the corrupt practice under Sub-section (3A).
61. The High Court has held the second speech to fall only under Sub-section (3) and not
Sub-section (3A), but the third speech has been held to fall both under Sub-sections (3) and
(3A). We have already held the third speech also to constitute the corrupt practice under
Sub-section (3). The correctness of the English translation of a part of the third speech was
found to be defective at the hearing and, therefore, an agreed fresh translation thereof was
taken" on record. Reading the speech in the light of the fresh agreed translation of the
defective portion, it appears to us that the High Court finding that the third speech amounts
also to the corrupt practice under Sub-section (3A) cannot be affirmed, even though this
variation is of no consequence to the ultimate result.

62. Our conclusion is that all the three speeches of Bal hackeray amount to corrupt practice
under Sub-section (3), while the first speech is a corrupt practice also under Sub-section
(3A) of Section 123 of the R.P. Act. Since the appeal made to the voters in these speeches
was to vote for Dr. Ramesh Prabhoo on the ground of his religion as a Hindu and the
appeal was made with the consent of the candidate Dr. Ramesh Prabhoo, he is guilty of
these corrupt practices. For the same reason, Bal Thackeray also is guilty of these corrupt
practices and, therefore liable to be named in accordance with Section 99 of the R. P. Act of
which due compliance has been made in the present case.
63. We cannot help recording our distress at this kind of speeches given by a top leader of a
political party. The lack of restraint in the language used and the derogatory terms used
therein to refer to a group of people in an election speech is indeed to be condemned. The
likely impact of such language used by a political leader is greater. It is, therefore, a greater
need for the leaders to be more circumspect and careful in the kind of language they use in
the election campaign. This is essential not only for maintaining decency and propriety in
the election campaign but also for the preservation of the proper and time honoured values
forming part of our cultural heritage and for a free and fair poll in a secular democracy. The
offending speeches in the present case discarded the cherished values of our rich cultural
heritage and tended to erode the secular polity. We say this, with the fervent hope that our
observation has some chastening effect in the future election campaigns.
64. For the aforesaid reasons, both the appeals must fail. We may Observe that
considerable irrelevant material was brought on record during the trial at the instance of
both the parties which, apart from needlessly enlarging the scope of the trial, has led to
needless extra expense and wastage of time even in the hearing of these appeals. In these
circumstances, it is appropriate to direct the parties to bear their own costs in this Court.
Accordingly, both the appeals are dismissed.

GOLAK NATH V. STATE OF PUNJAB, AIR 1967 SC 1643

Subbarao, C.J.
1. These three writ petitions raise the important question of the validity of the Constitution
(Seventeenth Amendment) Act, 1964.
2. Writ Petition No. 153 of 1966, is filed by the petitioners therein against the State of
Punjab and the Financial Commissioner, Punjab. The petitioners are the son, daughter and
grand-daughters of one Henry Golak Nath, who died on July 30, 1953. The Financial
Commissioner, in revision against the order made by the Additional Commissioner,
Jullundur Division, held by an order dated January 22, 1962 that an area of 418 standard
acres and 9 1/4 units was surplus in the hands of the petitioners under the provisions of the
Punjab Security of Land Tenures Act X of 1953, read with s. 10-B thereof. The petitioners,
alleging that the relevant provisions of the said Act whereunder the said area was declared
surplus were void on the ground that they infringed their rights under cls. (f) and (g) of
Art. 19and Art. 14 of the Constitution, filed a writ in this Court under Art. 32 of the
Constitution for a direction that the Constitution (First Amendment) Act, 1951,
Constitution (Fourth Amendment) Act, 1955, Constitution (Seventeenth Amendment) Act,
1964, insofar as they affected their fundamental rights were unconstitutional and
inoperative and for a direction that s. 10-B of the said Act X of 1953 was void as violative
of Arts. 14 and 19(1)(f) and (g) of the Constitution.
3. Writ Petitions Nos. 202 and 203 of 1966 were filed by different petitioners under
Art. 32 of the Constitution for a declaration that the Mysore Land Reforms Act (Act 10 of
1962) as amended by Act 14 of 1965, which fixed ceilings on land holdings and conferred
ownership of surplus lands on tenants infringed Arts. 14, 19and 31 of the Constitution and,
therefore, was unconstitutional and void.
4. The States of Punjab and Mysore, inter alia, contended that the said Acts were saved
from attack on the ground that they infringed the fundamental rights of the petitioners by
reason of the Constitution (Seventeenth Amendment) Act, 1964, which, by amending
Art. 31-A of the Constitution and including the said two Acts in the 9th Schedule thereto,
had placed them beyond attack.
5. In Writ Petition No. 153 of 1966, 7 parties intervened. In Writ Petition No. 202 of 1966
one party intervened. In addition, in the first petition, notice was given to the Advocates
General of various States. All the learned counsel appearing for the parties, the Advocates
General appearing for the States and the learned counsel for the interveners have placed
their respective viewpoints exhaustively before us. We are indebted to all of them for their

thorough preparation and clear exposition of the difficult questions of law that were raised
in the said petitions.
6. At the outset it would be convenient to place briefly the respective contentions under
different heads : (1) The Constitution is intended to be permanent and, therefore, it cannot
be amended in a way which would injure, maim or destroy its indestructible character. (2)
The word "amendment" implies such an addition or change within the lines of the original
instrument as will effect an improvement or better carry out the purpose for which it was
framed and it cannot be so construed as to enable the Parliament to destroy the permanent
character of the Constitution. (3) The fundamental rights are a part of the basic structure of
the Constitution and, therefore, the said power can be exercised only to preserve rather than
destroy the essence of those rights. (4) The limits on the power to amend are implied in
Art. 368, for the expression "amend" has a limited meaning. The wide phraseology used in
the Constitution in other Articles, such as "repeal" and "re-enact" indicates that
art. 368 only enables a modification of the Articles within the framework of the
Constitution and not a destruction of them. (5) The debates in the Constituent Assembly,
particularly the speech of Mr. Jawahar Lal Nehru, the first Prime Minister of India, and the
reply of Dr. Ambedkar, who piloted the Bill disclose clearly that it was never the intention
of the makers of the Constitution by putting in Art. 368 to enable the Parliament to repeal
the fundamental rights; the circumstances under which the amendment moved by Mr. H. V.
Kamath, one of the members of Constituent Assembly, was withdrawn and Art. 368 was
finally adopted, support the contention that amendment of Part III is outside the scope of
Art. 368. (6) Part III of the Constitution is a self-contained Code and its provisions are
elastic enough to meet all reasonable requirements of changing situations. (7) The power to
amend is sought to be derived from three sources, namely, (i) by implication under
Art. 368 itself; the procedure to amend culminating in the amendment of the Constitution
necessarily implies that power, (ii) the power and the limits of the power to amend are
implied in the Articles sought to be amended, and (iii) Art. 368 only lays down the
procedure to amend, but the power to amend is only the legislative power conferred on the
Parliament under Arts. 245, 246 and 248 of the Constitution. (8) The definition of "law" in
Art. 13(2) of the Constitution includes every branch of law, statutory, constitutional, etc.,
and therefore, the power to amend in whichever branch it may be classified, if it takes
away or abridges fundamental rights would be void thereunder. (9) The impugned
amendment detracts from the jurisdiction of the High Court under Art. 226 of the
Constitution and also the legislative powers of the States and therefore it falls within the
scope of the proviso to Art. 368.
7. The said summary, though not exhaustive, broadly gives the various nuances of the
contentions raised by the learned counsel, who question the validity of the 17th
Amendment. We have not noticed the other arguments of Mr. Nambiar, which are peculiar
to the Writ Petition No. 153 of 1966 as those questions do not arise for decision, in the
view we are taking on the common questions.

8. On behalf of the Union and the States the following points were pressed : (1) A
Constitutional amendment is made is exercise of the sovereign power and not legislative
power of Parliament and, therefore, it partakes the quality and character of the Constitution
itself. (2) The real distinction is between a rigid and a flexible Constitution. The distinction
is based upon the express limits of the amending power. (3) The provisions of Art. 368 are
clear and unequivocal and there is no scope for invoking implied limitations on that
power : further the doctrine of implied power has been rejected by the American courts and
jurists. (4) The object of the amending clause in a flexible Constitution is to enable the
Parliament to amend the Constitution in order to express the will of the people according to
the changing course of events and if amending power is restricted by implied limitations,
the Constitution itself might be destroyed by revolution. Indeed, it is a safety valve and an
alternative for a violent change by revolution. (5) There are no basic and non-basic features
of the Constitution; everything in the Constitution is basic and it can be amended in order
to help the future growth and progress of the country. (6) Debates in the Constituent
Assembly cannot be relied upon for construing Art. 368 of the Constitution and even if
they can be, there is nothing in the debates to prove positively that fundamental rights were
excluded from amendment. (7) Most of the amendments are made out of political necessity
: they involve questions, such as, how to exercise power, how to make the lot of the
citizens better and the like and, therefore, not being judicial questions, they are outside the
court's jurisdiction. (8) The language of Art. 368is clear, categorical, imperative and
universal; on the other hand, the language of Art. 13(2) is such as to admit qualifications or
limitations and, therefore, the Court must construe them in such a manner as that Article
could not control Art. 368. (9) In order to enforce the Directive Principles the Constitution
was amended from time to time and the great fabric of the Indian Union has been built
since 1950 on the basis that the Constitution could be amended and, therefore, any reversal
of the previous decisions would introduce economic chaos in our country and that,
therefore, the burden is very heavy upon the petitioners to establish that the fundamental
rights cannot be amended under Art. 368 of the Constitution. (10) Art. 31-A and the 9th
Schedule do not affect the power of the High Court under Art. 226 or the legislative power
of the States though the area of their operation is limited and, therefore, they do not fall
within the scope of the proviso to Art. 368.
9. The aforesaid contentions only represent a brief summary of the elaborate arguments
advanced by learned counsel. We shall deal in appropriate context with the other points
mooted before us.
10. It will be convenient to read the material provisions of the Constitution at this stage.
Article 13(1) . . . . .

(2) The State shall not make any law which takes away or abridges the rights
conferred by this part and any law made in contravention of this clause shall, to the
extent of the contravention, be void.
(3) In this article, unless the context otherwise requires, (a) "law" includes any Ordinance, order, bye-law, rule regulation, notification,
custom or usage having in the territory of India the force of law.
Article 31-A(1). Notwithstanding anything contained in article 13, no law
providing for,
(a) the acquisition by the State of any estate or of any rights therein or the
extinguishment or modification of any such rights,
.....
shall be deemed to be void on the ground that it is inconsistent with, or takes away
or abridges any of the rights conferred by article14, article 19 or article 31.
(2) (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 tenure in force in that area and shall also include,
......
(i) any land held under ryotwari settlement,
(ii) any land held or let for purposes of agriculture or for purposes ancillary
thereto............
Article 31-B. Without prejudice to the generality of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the
provisions thereof shall be deemed to be void, or ever to have become, void, on the ground
that such Act, Regulation or provision is inconsistent with, or takes away or abridges any
of the rights conferred by, any provisions of this Part, and notwithstanding any judgment
decree or order of any court or tribunal to the contrary, each of the said Acts and
Regulations shall, subject to the power of any competent Legislature to repeal or amend it,
continue in force.
11. In the Ninth Schedule to the Constitution the Mysore Land Reforms Act, 1961,
(Mysore Act 10 of 1962) is included as item 51 and the Punjab Security of Land Tenures
Act, 1953 (Punjab Act 10 of 1953) is included as item 54. The definition of "estate" was

amended and the Ninth Schedule was amended by including therein the said two Acts by
the Constitution (Seventeenth Amendment) Act, 1964.
12. The result of the said amendments is that both the said Acts dealing with estates, within
their wide definition introduced by the Constitution (Seventeenth Amendment) Act, 1964,
having been included in the Ninth Schedule, are placed beyond any attack on the ground
that their provisions are inconsistent with or take away or abridge any of the rights
conferred by Part III of the Constitution. It is common case that if the Constitution
(Seventeenth Amendment) Act, 1964, was constitutionally valid, the said Acts could not be
impugned on any of the said grounds.
13. The question of the amendability of the fundamental rights was considered by this
Court earlier in two decisions, namely, Sri Sankari Prasad Singh Deo v.Union of India and
State of Bihar MANU/SC/0013/1951
: [1952]1SCR89 and in Sajjan Singh v. State

of Rajasthan MANU/SC/0052/1964

: [1965]1SCR933 .

14. In the former the validity of the Constitution (First Amendment) Act, 1951, which
inserted, inter alia, Arts. 31-A and 31-B in the Constitution, was questioned. That
amendment was made under Art. 368 of the Constitution by the Provisional Parliament.
This Court held that Parliament had power to amend Part III of the Constitution. The Court
came to that conclusion on two grounds, namely, (1) the word "law" in Art. 13(2) was one
made in exercise of legislative power and not constitutional law made in exercise of
constituent power; and (ii) there were two articles (Arts. 13(2) and 368) each of which was
widely phrased and, therefore, harmonious construction required that one should be so read
as to be controlled and qualified by the other, and having regard to the circumstances
mentioned in the judgment Art. 13 must be read subject to Art. 368. A careful perusal of the
judgment indicates that the whole decision turned upon an assumption that the expression
"law" in Art. 13(2) does not include constitutional law and on that assumption an attempt
was made to harmonise Article 13(2) and 368 of the Constitution.
15. The decision in Sajjan Singh's case MANU/SC/0052/1964

: [1965]1SCR933 ,

was given in the context of the question of the validity of the Constitution (Seventeenth
Amendment) Act, 1964. Two questions arose in that case : (1) Whether the amendment Act
insofar it purported to take away or abridge the rights conferred by Part III of the
Constitution fell within the prohibition of Art. 13(2) and (2). Whether Articles 31A and 31-B sought to make changes in Arts. 132, 136or 226 or in any of the lists in the

Seventh Schedule and therefore the requirements of the proviso to Article 368 had to be
satisfied. Both the Chief Justice and Mudholkar, J., made it clear that the first contention
was not raised before the Court. The learned counsel appearing for both the parties
accepted the correctness of the decision in Sankari Prasad's case MANU/SC/0013/1951
: [1952]1SCR89 , in that regard. Yet Gajendragadkar, C.J. speaking for the

majority agreed with the reasons given in Sankari Prasad's case MANU/SC/0013/1951
: [1952]1SCR89 , on the first question and Hidayatullah and Mudholkar, JJ.

expressed their dissent from the said view. But all of them agreed, though for different
reasons on the second question. Gajendragadkar, C.J. speaking for himself, Wanchoo and
Raghubar Dayal, JJ. rejected the contention that Art. 368 did not confer power on
Parliament to take away the fundamental rights guaranteed by Part III. When a suggestion
was made that the decision in the aforesaid case should be reconsidered and reviewed, the
learned Chief Justice though he conceded that in a case where a decision had a significant
impact on the fundamental rights of citizens, the Court would be inclined to review its
earlier decision in the interests of the public good, he did not find considerations of
substantial and compelling character to do so in that case. But after referring to the
reasoning given in Sankari Prasad's case MANU/SC/0013/1951
: [1952]1SCR89 ,

the learned Chief Justice observed :

"In our opinion, the expression "amendment of the Constitution" plainly and unambiguously
means amendment of all the provisions of the Constitution".
16. Referring to Art. 13(2), he restated the same reasoning found in the earlier decision and
added that if it was the intention of the Constitution-makers to save fundamental rights
from the amending process they should have taken the precaution of making a clear
provision in that regard. In short, the majority, speaking through Gajendragadkar, C.J.
agreed that no case had been made out for reviewing the earlier decision and practically
accepted the reasons given in the earlier decision. Hidayatullah J., speaking for himself,
observed :
"But I make it clear that I must not be understood to have subscribed to the view that the
word "law" in Art. 13(2) does not control constitutional amendments. I reserve my opinion on
that case for I apprehend that it depends on how wide is the word "law" in that Article".

17. After giving his reasons for doubting the correctness of the reasoning given in Sankari
Prasad's case MANU/SC/0013/1951
: [1952]1SCR89 , the learned Judge

concluded thus :
"I would require stronger
case MANU/SC/0013/1951

reasons than those given in Sankari Prasad's

: [1952]1SCR89 , to make me accept the view that

Fundamental Rights were not really fundamental but were intended to be within the powers
of amendment in common with the other parts of the Constitution and without the
concurrence of the States".
18. The learned Judge continued :
"The Constitution gives so many assurances in Part III that it would be difficult to think that
they were the playthings of a special majority".
19. Mudholkar, J. was positive that the result of a legislative action of a legislature could
not be other than "law" and, therefore, it seemed to him that the fact that the legislation
dealt with the amendment of a provision of the Constitution would not make its results
anytheless a "law". He further pointed out that Art. 368did not say that whenever
Parliament made an amendment to the Constitution it assumed a different capacity from
that of a constituent body. He also brought out other defects in the line of reasoning
adopted in Sankari Prasad's case MANU/SC/0013/1951
: [1952]1SCR89 . It will,

therefore, be seen that the correctness of the decision in Sankari Prasad's

case MANU/SC/0013/1951
: [1952]1SCR89 , was not questioned in Sajjan

Singh's case MANU/SC/0052/1964

: [1965]1SCR933 . Though it was not

questioned, three of the learned Judges agreed with the view expressed therein, but two
learned Judges were inclined to take a different view. But, as that question was not raised,
the minority agreed with the conclusion arrived at by the majority on the question whether
the Seventeenth Amendment Act was covered by the proviso to Art. 368 of the
Constitution. The conflict between the majority and the minority in Sajjan Singh's
caseMANU/SC/0052/1964
: [1965]1SCR933 , falls to be resolved in this case.

The said conflict and the great importance of the question raised is the justification for the
Constitution of the larger Bench. The decision in Sankari Prasad's
case MANU/SC/0013/1951
: [1952]1SCR89 , was assumed to be correct in

subsequent decisions of this Court. See S. Krishnan v. State of Madras (sic). The State of
West Bengal v. Anwar Ali Sarkar MANU/SC/0033/1952
: 1952CriLJ510 and

Basheshar
Nath
v.
The
Rajasthan MANU/SC/0064/1958

Commissioner
of
Income-tax,
Delhi
and
: [1959] 1 S.C.R. 528. But nothing turns upon

that fact, as the correctness of the decision was not questioned in those cases.
20. A correct appreciation of the scope and the place of fundamental rights in our
Constitution will give us the right perspective for solving the problem presented before us.
Its scope cannot be appreciated unless we have a conspectus of the Constitution, its objects
and its machinery to achieve those objects. The objective sought to be achieved by the
Constitution is declared in sonorous terms in its preamble which reads :
"We the people of India having solemnly resolved to constitute India into a Sovereign,
Democratic, Republic and secure to all its citizens justice.... liberty.... equality..... and
fraternity...."
21. It contains in a nutshell, its ideals and its aspirations. The preamble is not a platitude
but the mode of its realisation is worked out in detail in the Constitution. The Constitution
brings into existence different constitutional entities, namely, the Union, the States and the
Union Territories. It creates three major instruments of power, namely, the Legislature, the
Executive and the Judiciary. I demarcates their jurisdiction minutely and expects them to
exercise their respective powers without overstepping their limits. They should function
with the spheres allotted to them. Some powers overlap and some are superseded during
emergencies. The mode of resolution of conflicts and conditions for supersession are also
prescribed. In short, the scope of the power and the manner of its exercise are regulated by
law. No authority created under the Constitution is supreme; the Constitution is supreme;
and all the authorities function under the supreme law of the land. The rule of law under
the Constitution has a glorious content. It embodies the modern concept of law evolved
over the centuries. It empowers the Legislatures to make laws in respect of matters
enumerated in the 3 Lists annexed to Schedule VII. In Part IV of the Constitution, the
Directive Principles of State Policy are laid down. It enjoins it to bring about a social order
in which justice, social, economic and political - shall inform all the institutions of national
life. It directs it to work for an egalitarian society where there is no concentration of

wealth, where there is plenty, where there is equal opportunity for all, to education, to
work, to livelihood, and where there is social justice. But having regard to the past history
of our country, it could not implicitly believe the representatives of the people, for
uncontrolled and unrestricted power might lead to an authoritarian State. It, therefore,
preserves the natural rights against the State encroachment and constitutes the higher
judiciary of the State as the sentinel of the said rights and the balancing wheel between the
rights, subject to social control. In short, the fundamental rights, subject to social control,
have been incorporated in the rule of law. That is brought about by an interesting process.
In the implementation of the Directive Principles, Parliament or the Legislature of a State
makes laws in respect of matter or matters allotted to it. But the higher Judiciary tests their
validity on certain objective criteria, namely, (i) whether the appropriate Legislature has the
legislative competency to make the law; (ii) whether the said law infringes any of the
fundamental rights; (iii) even if it infringes the freedoms under Art. 19, whether the
infringement only amounts to "reasonable restriction" on such rights in "public interest".
By this process of scrutiny, the court maintains the validity of only such laws as keep a just
balance between freedoms and social control. The duty of reconciling fundamental rights in
Art. 19 and the laws of social control is cast upon the courts and the touchstone or the
standard is contained in the said two expressions. The standard is an elastic one; it varies
with time, space and condition. What is reasonable under certain circumstances may not be
so under different circumstances. The constitutional philosophy of law is reflected in Parts
III and IV of the Constitution. The rule of law under the Constitution serves the needs of
the people without unduly infringing their rights. It recognizes the social reality and tries to
adjust itself to it from time to time avoiding the authoritarian path. Every institution or
political party that functions under the Constitution must accept it; otherwise it has no
place under the Constitution.
22. Now, what are the fundamental rights ? They are embodied in Part III of the
Constitution and they may be classified thus : (i) right to equality, (ii) right to freedom, (iii)
right against exploitation, (iv) right to freedom of religion, (v) cultural and educational
rights, (vi) right to property, and (vii) right to constitutional remedies. They are the rights
of the people preserved by our Constitution. "Fundamental rights" are the modern name for
what have been traditionally known as "natural rights". As one author puts : "they are
moral rights which every human being everywhere at all times ought to have simply
because of the fact that in contradistinction with other beings, he is rational and moral".
They are the primordial rights necessary for the development of human personality. They
are the rights which enable a man to chalk out his own life in the manner he likes best. Our
Constitution, in addition to the well-known fundamental rights, also included the rights of
the minorities, untouchables and other backward communities, in such rights.
23. After having declared the fundamental rights, our Constitution says that all laws in
force in the territory of India immediately before the commencement of the Constitution,
insofar as they are inconsistent with the said rights, are, to the extent of such inconsistency,

void. The Constitution also enjoins the State not to make any law which takes away or
abridges the said rights and declares such laws, to the extent of such inconsistency, to be
void. As we have stated earlier, the only limitation on the freedom enshrined in Art. 19 of
the Constitution is that imposed by a valid law operating as a reasonable restriction in the
interests of the public.
24. It will, therefore, be seen that fundamental rights are given a transcendental position
under our Constitution and are kept beyond the reach of Parliament. At the same time Parts
III and IV constituted an integrated scheme forming a self-contained code. The scheme is
made so elastic that all the Directive Principles of State Policy can reasonably be enforced
without taking away or abridging the fundamental rights. While recognizing the
immutability of fundamental rights, subject to social control, the Constitution itself
provides for the suspension or the modification of fundamental rights under specific
circumstances, for instance, Art. 33 empowers Parliament to modify the rights conferred by
Part III in their application to the members of the armed forces, Art. 34 enables it to impose
restrictions on the rights conferred by the said parts while martial law is in force in an area,
Art. 35 confers the power on it to make laws with respect to any of the matters which under
clause (3) of Art. 16, Clause (3) of Art. 32, Art. 33 and Art. 34 may be provided for by law.
The non-obstante clause with which the last article opens makes it clear that all the other
provisions of the Constitution are subject to this provision. Article 32 makes the right to
move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by the said Parts a guaranteed right. Even during grave emergencies
Art. 358 only suspends the provision of Art. 19; and Art. 359 enables the President by order
to declare the right to move any court for the enforcement of such of the rights conferred
by Part III as may be mentioned in that order to be suspended; that is to say, even during
emergency, only Art. 19 is suspended temporarily and all other rights are untouched except
those specifically suspended by the President.
25. In the Book "Indian Constitution - Cornerstone of a Nation" by Granville Austin, the
scope, origin and the object of fundamental rights have been graphically stated. Therein the
learned author says :
"..... the core of the commitment to the social revolution lies in Parts III and IV, in the
Fundamental Rights and in the Directive Principles of State Policy. These are the conscience
of the Constitution".
26. Adverting to the necessity for incorporating fundamental rights in a Constitution, the
learned author says :
"That a declaration of rights had assumed such importance was not surprising; India was a
land of communities, of minorities, racial, religious, linguistic, social and caste. For India to
become a state, these minorities had to agree to be governed both at the center and in the
provinces by fellow Indian-members, perhaps, of another minority - and not by a mediatory

third power, the British. On both psychological and political grounds, therefore, the demand
for written rights - since rights would provide tangible safeguards, against oppression proved overwhelming".
27. Motilal Nehru, who presided over the Committee called for by the Madras Congress
resolution, in May, 1928 observed in his report :
"It is obvious that our first care should be to have our Fundamental Rights guaranteed in a
manner which will not permit their withdrawal under any circumstances..... Another reason
why great importance attached to a Declaration of Rights is the unfortunate existence of
communal differences in the country. Certain safeguards are necessary to create and establish
a sense of security among those who look upon each other with distrust and suspicion. We
could not, better secure the full enjoyment of religious and communal rights to all
communities than by including them among the basic principles of the Constitution".
28. Pandit Jawaharlal Nehru, on April 30, 1947 in proposing for the adoption of the Interim
Report on Fundamental Rights, said thus :
"A fundamental right should be looked upon, not from the point of view of any particular
difficulty of the moment, but as something that you want to make permanent in the
Constitution. The other matter should be looked upon - however important it might be - not
from this permanent and fundamental point of view, but from the more temporary point of
view".
29. Pandit Jawaharlal Nehru, who was Prime Minister at that time and who must have had
an effective voice in the framing of the Constitution, made this distinction between
fundamental rights and other provisions of the Constitution, namely, the former were
permanent and the latter were amendable. On September 18, 1949 Dr. Ambedkar in
speaking on the amendment proposed by Mr. Kamath to Art. 304 of the Draft Constitution
corresponding to the present Art.368, namely, "Any provision of this Constitution may be
amended, whether by way of variation, addition or repeal, in the manner provided in this
article", said thus :
"Now, what is it we do ? We divide the articles of the Constitution under three categories. The
first category is the one which consists of articles which can be amended by Parliament by a
bare majority. The second set of articles are articles which require two-thirds majority. If the
future Parliament wishes to amend any particular article which is not mentioned in Part III or
article 304, all that is necessary for them is to have two-thirds majority. Then they can amend
it".
30. Therefore, in Dr. Ambedkar's view the fundamental rights were so important that they
could not be amended in the manner provided by Art. 304 of the Draft Constitution, which
corresponds to the present Art. 368.

31. We have referred to the speeches of Pandit Jawaharlal Nehru and Dr. Ambedkar not
with a view to interpret the provisions of Art. 368, which we propose to do on its own
terms, but only to notice the transcendental character given to the fundamental rights by
two of the important architects of the Constitution.
32. This Court also noticed the paramountcy of the fundamental rights in many decisions.
In A. K. Gopalan v. State of Madras MANU/SC/0012/1950
: 1950CriLJ1383 ,

they are described as "paramount", in State of Madras v. Smt. Champakam Dorairajan

MANU/SC/0007/1951
: [1951]2SCR525 , as "sacro-sanci", in Pandit M. S. M.

Sharma v. Shri Sri Krishna Sinha MANU/SC/0021/1958

: [1959] 1 S.C.R. 806, as

"rights reserved by the people", in Smt. Ujjam Bai v.State of Uttar Pradesh
MANU/SC/0101/1961
: [1963]1SCR778 as "inalienable and inviolable" and in

other cases as "transcendental". The minorities regarded them as the bedrock of their
political existence and the majority considered them as a guarantee for their way of life.
This, however, does not mean that the problem is one of mere dialectics. The Constitution
has given by its scheme a place of permanence to the fundamental freedoms. In giving to
themselves the Constitution, the people have reserved the fundamental freedoms to
themselves. Article 13 merely incorporates that reservation. That Article is however not the
source of the protection of fundamental rights but the expression of the reservation. The
importance attached to the fundamental freedoms is so transcendental that a bill enacted by
a unanimous vote of all the members of both the Houses is ineffective to derogate from its
guaranteed exercise. It is not what the Parliament regards at a given moment as conducive
to the public benefit, but what Part III declares protected, which determines the ambit of
the freedom. The incapacity of the Parliament therefore in exercise of its amending power
to modify, restrict or impair fundamental freedoms in Part III arises from the scheme of the
Constitution and the nature of the freedoms.
33. Briefly stated, the Constitution declares certain rights as fundamental rights, makes all
the laws infringing the said rights void, preserves only the laws of social control infringing
the said rights and expressly confers power on Parliament and the President to amend or
suspend them in specified circumstances; if the decisions in Sankari Prasad's
case MANU/SC/0013/1951
:
[1952]1SCR89
and
Sajjan
Singh's

case MANU/SC/0052/1964

: [1965]1SCR933 , laid down the correct law, it

enables the same Parliament to abrogate them with one stroke, provided the party in power
singly or in combination with other parties commands the necessary majority. While
articles of less significance would require consent of the majority of the States,
fundamental rights can be dropped without such consent. While a single fundamental right
cannot be abridged or taken away by the entire Parliament unanimously voting to that
effect, a two-thirds' majority can do away with all the fundamental rights. The entire super
structure built with precision and high ideals may crumble at one false step. Such a
conclusion would attribute unreasonableness to the makers of the Constitution, for, in that
event would be speaking in two voices. Such an intention cannot be attributed to the
makers of the Constitution unless the provisions of the Constitution compel us to do so.
34. With this background let us proceed to consider the provisions of Art. 368, vis-a-vis
Art. 13(2) of the Constitution.
35. The first question is whether amendment of the Constitution under Art. 368 is "law"
within the meaning of Art. 13(2). The marginal note to Art. 368 describes that article as one
prescribing the procedure for amendment. The article in terms only prescribes various
procedural steps in the matter of amendment : it shall be initiated by the introduction of a
bill in either House of Parliament; it shall be passed by the prescribed majority in both the
Houses; it shall then be presented to the President for his assent; and upon such assent the
Constitution shall stand amended. The article assumes the power to amend found elsewhere
and says that it shall be exercised in the manner laid down therein. The argument that the
completion of the procedural steps culminates in the exercise of the power to amend may
be subtle but does not carry conviction. If that was the intention of the provisions, nothing
prevented the makers of the Constitution from stating that the Constitution may be
amended in the manner suggested. Indeed, whenever the Constitution sought to confer a
special power to amend on any authority it expressly said so : (See Arts. 4 and 392). The
alternative contention that the said power shall be implied either from Art. 368 or from the
nature of the articles sought to be amended cannot be accepted, for the simple reason that
the doctrine of necessary implication cannot be invoked if there is an express provision or
unless but for such implication the article will become otiose or nugatory. There is no
necessity to imply any such power, as Parliament has the plenary power to make any law,
including the law to amend the Constitution subject to the limitations laid down therein.
36. Uninfluenced by any foreign doctrines let us look at the provisions of our Constitution.
Under Art. 245, "subject to the provisions of the Constitution. Parliament may make laws
for the whole or any part of the territory of India...." Article 246 demarcates the matters in
respect of which Parliament and State Legislatures may make laws. In the field reserved
for Parliament there is Entry 97 which empowers it to make laws in respect of "any other

matter not enumerated in Lists II and III including any tax not mentioned in either of those
lists". Article 248 expressly states that Parliament has exclusive power to make any law
with respect to any matter not enumerated in the Concurrent List or State List. It is,
therefore, clear that the residuary power of legislation is vested in Parliament. Subject to
the argument based upon the alleged nature of the amending power as understood by jurists
in other countries, which we shall consider at a later stage, it cannot be contended, and
indeed, it was not contended, that the Constituent Assembly, if it were so minded, could not
have conferred an express legislative power on Parliament to amend the Constitution by
ordinary legislative process. Articles 4 and 169, and para 7 of the 5th Schedule and para 21
of the 6th Schedule have expressly conferred such power. There is, therefore, no inherent
inconsistency between legislative process and the amending one. Whether in the field of a
constitutional law or statutory law amendment can be brought about only by law. The
residuary power of Parliament, unless there is anything contrary in the Constitution,
certainly takes in the power to amend the Constitution. It is said that two Articles indicate
the contrary intention. As Art. 245, the argument proceeds, is subject to the provisions of
the Constitution, every law of amendment will necessarily be inconsistent with the articles
sought to be amended. This is an argument in a circle. Can it be said reasonably that a law
amending an article is inconsistent with the article amended ? If an article of the
Constitution expressly says that it cannot be amended, a law cannot be made amending it,
as the power of Parliament to make a law is subject to the said Article. It may well be that
in a given case such a limitation may also necessarily be implied. The limitation in
Art. 245 is in respect of the power to make a law and not of the content of the law made
within the scope of its power. The second criticism is based upon Art. 392 of the
Constitution. That provision confers power on the President to remove difficulties; in the
circumstances mentioned in that provision, he can by order direct that the Constitution
shall during such period as may be specified in that order have effect subject to such
adaptations, whether by way of modification, addition or omission, as he may deem to be
necessary or expedient. The argument is that the President's power, though confined to a
temporary period, is co-extensive with legislative power and if the power to amend is a
legislative power it would have to be held that the President can amend the Constitution in
terms of Art. 368. Apart from the limited scope of Art. 392, which is intended only for the
purpose of removing difficulties and for bringing about a smooth transition, an order made
by the President cannot attract Act. 368, as the amendment contemplated by that provision
can be initiated only by the introduction of a bill in the Parliament. There is no force in
either of the two criticisms.
37. Further, there is internal evidence in the Constitution itself which indicates that
amendment to the Constitution is a "law" within the meaning of Art. 245. Now, what is
"law" under the Constitution ? It is not denied that in its comprehensive sense it includes
constitutional law and the law amending the Constitution is constitutional law. But
Art. 13(2) for the purpose of that Article gives an inclusive definition. It does not exclude
Constitutional law. It prima facie takes in constitutional law. Article 368 itself gives the

necessary clue to the problem. The amendment can be initiated by the introduction of a
bill; it shall be passed by the two Houses; it shall receive the assent of the President. These
are well-known procedural steps in the process of law-making : Indeed this Court in
Sankari Prasad's case MANU/SC/0013/1951
: [1952]1SCR89 , brought out this

idea in clear terms. It said in the first place, it is provided that the amendment must be
initiated by the introduction of a "bill in either House of Parliament" a familiar feature of
Parliament procedure (of Article 107(1) which says "A bill may originate in either House
of Parliament"). Then, the bill must be "passed in each House," - just what Parliament does
when it is called upon to exercise its normal legislative function [Article 107(2)]; and
finally, the bill thus passed must be "presented to the President" for his "assent", again a
parliamentary process through which every bill must pass before it can reach the statutebook, (Article 111). We thus find that each of the component units of Parliament is to play
its allotted part in bringing about an amendment to the Constitution. We have already seen
that Parliament effects amendments of the first class mentioned above by going through the
same three-fold procedure but with a simple majority. The fact that a different majority in
the same body is required for effecting the second and third categories of amendments
make the amending agency a different body".
38. In the same decision it is pointed out that Art. 368 is not a complete code in respect of
the procedure. This Court said "There are gaps in the procedure as to how and after what
notice a bill is to be introduced, how it is to be passed by each House and how the
President's assent is to be obtained. Having provided for the Constitution of a Parliament
and prescribed a certain procedure for the conduct of its ordinary legislative business to be
supplemented by rules made by each House (Article 118), the makers of the Constitution
must be taken to have intended Parliament to follow that procedure, so far as they may be
applicable consistently with the express provision of Art. 368, when they have entrusted to
it the power of amending the Constitution". The House of the People made rules providing
procedure for amendments, the same as for other Bills with the addition of certain special
provisions viz., Rules 155, 156, 157 and 158. If amendment is intended to be something
other than law, the constitutional insistence on the said legislative process is unnecessary.
In short, amendment cannot be made otherwise than by following the legislative process.
The fact that there are other conditions, such as, a larger majority and in the case of articles
mentioned in the proviso a ratification by Legislatures is provided, does not make the
amendment anytheless a law. The imposition of further conditions is only a safeguard
against hasty action or a protection to the States, but does not change the Legislative
character of the amendment.
39. This conclusion is reinforced by the other articles of the Constitution. Article 3 enables
Parliament by law to form new States and alter areas, boundaries or the names of existing
States. The proviso to that Article imposed two further conditions, namely, (i) the

recommendation of the President, and (ii) in the circumstances mentioned therein, the
views expressed by the Legislatures. Notwithstanding the said conditions it cannot be
suggested that the expression "law" under the said Article is not one made by the
Legislative process. Under Art. 4, such a law can contain provisions for amendment of
Schedules I and IV indicating thereby that amendments are only made by Legislative
process. What is more, clause (2) thereof introduces a fiction to the affect that such a law
shall not be deemed to be an amendment to the Constitution. This shows that the
amendment is law and that but for the fiction it would be an amendment within the
meaning of Art. 368. Article 169 which empowers Parliament by law to abolish or create
Legislative Councils in States, para 7 of the 5th Schedule and para 21 of the 6th Schedule
which enable Parliament by law to amend the said Schedules, also bring out the two ideas
that the amendment is law made by legislative process and that but for the fiction
introduced it would attract Article 368. That apart amendments under the said provisions
can be made by the Union Parliament by simple majority. That an amendment is made only
by legislative process with or without conditions will be clear if two decisions of the Privy
Council are considered in juxta-position. They are McCawley v. The King [1920] A.C.
691 and The Bribery Commissioner v. Pedrick Ranasinghe [1964] 2 W.L.R. 1301.
40. The facts in McCawley v. The King [1920] A.C. 691 were these : In 1859 Queensland
had been granted a Constitution in the terms of an Order in Council made on June 6 of that
year under powers derived by Her Majesty from the Imperial Statute, 18 & 19 Vict. c. 54.
The Order in Council had set up a legislature for the territory, consisting of the Queen, a
Legislative Council and a Legislative Assembly, and the law-making power was vested in
Her Majesty acting with the advice and consent of the Council and Assembly. Any laws
could be made for the "peace, welfare and good government of the Colony". The said
legislature of Queensland in the year 1867 passed the Constitution Act of that year. Under
that Act power was given to the said legislature to make laws for "peace, welfare and good
Government of the Colony in all cases whatsoever". But, under s. 9 thereof a two-thirds
majority of the Council and of the Assembly was required as a condition precedent to the
validity of legislation altering the constitution of the Council. The Legislature, therefore,
had, except in the case covered by s. 9 of the Act, an unrestricted power to make laws. The
Legislature passed a law which conflicted with one of the existing terms of the Constitution
Act. Lord Birkenhead, L.C., upheld the law, as the Constitution Act conferred an absolute
power upon the legislature to pass any law by majority even though it, in substance,
amended the terms of the Constitution Act.
41. In The Bribery Commissioner v. Pedrick Ranasinghe [1964] 2 W.L.R. 1301, the facts
are these : By section 29 of the Ceylon (Constitution) Order in Council, 1946, Parliament
shall have power to make laws for the "peace, order and good government" of the Island
and in the exercise of its power under the said section it may amend or repeal any of the
provisions of the Order in its application to the Island. The proviso to that section says that
no Bill for the amendment or repeal of any of the provisions of the Order shall be presented

for the Royal assent unless it has endorsed on it a certificate under the hand of the Speaker
that the number of votes cast in favour thereof in the House of Representatives amounted
to not less than two-thirds of the whole number of members of the House. Under s. 55 of
the said Order the appointment of Judicial Officers was vested in the Judicial Service
Commission. But the Parliament under s. 41 of the Bribery Amendment Act, 1958,
provided for the appointment of the personnel of the Bribery Tribunals by the GovernorGeneral on the advice of the Minister of Justice. The said Amendment Act was in conflict
with the said s. 55 of the Order and it was passed without complying with the terms of the
proviso to s. 29 of the Order. The Privy Council held that the amendment Act was void.
Lord Pearce, after considering McCawley's case ([1920] A.C. 691), made the following
observations, at p. 1310 :
"........ a legislature has no power to ignore the conditions of law-making that are imposed by
the instrument which itself regulates its power to make law. This restriction exists
independently of the question whether the legislature is sovereign, as is the legislature of
Ceylon, or whether the Constitution is "uncontrolled", as the Board held the Constitution of
Queensland to be. Such a Constitution can, indeed, be altered or amended by the legislature,
if the regulating instrument so provides and if the terms of those provisions are complied with
.........."
42. It will be seen from the said judgments that an amendment of the Constitution is made
only by legislative process with ordinary majority or with special majority, as the case may
be. Therefore, amendments either under Art. 368 or under other Articles are made only by
Parliament by following the legislative process adopted by it in making other law. In the
premises, an amendment of the Constitution can be nothing but "law".
43. A comparative study of other Constitutions indicates that no particular pattern is
followed. All the Constitutions confer an express power to amend, most of them provide
for legislative procedure with special majority, referendum, convention, etc., and a few
with simple majority. Indeed, Parliament of England, which is a supreme body, can amend
the constitution like any other statute. As none of the Constitutions contains provisions
similar to Art. 368 and Art. 13(2), neither the said Constitutions nor the decisions given by
courts thereon would be of any assistance in construing the scope of Art. 368 of our
Constitution.
44. A brief survey of the nature of the amending process adopted by various constitutions
will bring out the futility of any attempt to draw inspiration from the said opinions or
decisions on the said constitutions. The nature of the amending power in different
constitutions generally depends on the nature of the polity created by the constitution,
namely, whether it is federal or unitary constitution or on the fact whether it is a written or
an unwritten constitution or on the circumstances whether it is a rigid or a flexible
constitution. Particularly the difference can be traced to the "spirit and genius of the nation

in which a particular constitution has its birth". The following articles of the Constitution
of the different countries are brought to our notice by one or other of the counsel that
appeared before us. Art. 5 of the Constitution of the united States of America, Arts. 125 and
128 of the Commonwealth of Australia Constitution Act, Art. 92(1) of the British North
American Act, s. 152 of the South African Act, Art. 217 of the Constitution of the United
States of Brazil, Section 46 of the Constitution of Ireland, 1937, Arts. 207, 208 and 209 of
the Constitution of the Union of Burma, Art. 88 of the Constitution of the Kingdom of
Denmark Act, Art. 90 of the Constitution of the French Republic, 1954, Art. 135 of the
united States of Mexico, Art. 96 of the Constitution of Japan, Art. 112 of the Constitution
of Norway, Art.85 of the Constitution of the Kingdom of Sweden, Arts. 118, 119, 120, 121,
122 and 123 of the Constitution of the Swiss Federation, Arts. 140, 141 and 142 of the
Constitution of Venezuela, and Art. 146 of the Constitution of the Union of Soviet Socialist
Republics, 1936 and s. 29(4) of Ceylon Constitution Order in Council, 1946.
45. Broadly speaking amendments can be made by four methods : (i) by ordinary
legislative process with or without restriction, (ii) by the people through referendum, (iii)
by majority of all the units of a federal State; and (iv) by a special convention. The first
method can be in four different ways, namely, (i) by the ordinary course of legislation by
absolute majority or by special majority, (See Section 92(1) of the British North America
Act, sub-section 152 South African Act, whereunder except sections 35, 137 and 152, other
provisions could be amended by ordinary legislative process by absolute majority. Many
constitutions provide for special majorities.); (ii) by a fixed quorum of members for the
consideration of the proposed amendment and a special majority for its passage; (see the
defunct Constitution of Rumania), (iii) by dissolution and general election on a particular
issue; (see the Constitutions of Belgium, Holland, Denmark and Norway), and (iv) by a
majority of two Houses of Parliament in joint session as in the Constitution of the South
Africa. The second method demands a popular vote, referendum or plebiscite as in
Switzerland, Australia, Ireland, Italy, France and Denmark. The third method is by an
agreement in some form or other of either of the majority or of all the federating units as in
Switzerland, Australia and the United States of America. The fourth method is generally by
creation of a special body ad hoc for the purpose of constitution revision as in Latin
America. Lastly, some constitutions impose express limitation on the power to amend. (See
Art. 5 of the United States Constitution and the Constitution of the Fourth French
Republic). A more elaborate discussion of this topic may be found in the American political
Constitution by strong. It will, therefore, be seen that the power to amend and the
procedure to amend radically differ from State to State; it is left to the constitution-makers
to prescribe the scope of the power and the method of amendment having regard to the
requirements of the particular State. There is no article in any of the constitutions referred
to us similar to article 13(2) of our Constitution. India adopted a different system altogether
: it empowered the Parliament to amend the Constitution by the legislative process subject
to fundamental rights. The Indian Constitution has made the amending process
comparatively flexible, but it is made subject to fundamental rights.

46. Now let us consider the argument that the power to amend is a sovereign power, that
the said power is supreme to the legislative power, that it does not permit any implied
limitations and that amendments made in exercise of that power involve political questions
and that, therefore, they are outside judicial review. The wide proposition is sought to be
supported on the basis of opinions of jurists and judicial decisions. Long extracts have been
read to us from the book "The Amending of the Federal Constitution (1942)" by Lester
Bernhardt Orfield, and particular reference was made to the following passages :
"At the point it may be well to note that when the Congress is engaged in the amending
process it is not legislating. It is exercising a peculiar power bestowed upon it by Article Five.
This Article for the most part controls the process; and other provisions of the Constitution,
such as those relating to the passage of legislation, having but little bearing".
47. Adverting to the Bill of Rights, the learned author remarks that they may be repealed
just as any other amendment and that they are no more sacred from a legal standpoint than
any other part of the Constitution. Dealing with the doctrine of implied limitations, he says
that it is clearly untenable. Posing the question "Is there a law about the amending power of
the Constitution ?", he answers, "there is none". He would even go to the extent of saying
that the sovereignty, if it can be said to exist at all, is located in the amending body. The
author is certainly a strong advocate of the supremacy of the amending power and an
opponent of the doctrine of implied limitations. His opinion is based upon the terms of
Art. 5 of the Constitution of the United States of America and his interpretation of the
decisions of the Supreme Court of America. Even such an extreme exponent of the doctrine
does not say that a particular constitution cannot expressly import restrictions on the power
to amend or that a court cannot reconcile the articles couched in unlimited phraseology.
Indeed Art. 5 of the American Constitution imposes express limitations on the amending
power. Some passages from the book "Political Science and Government" by James
Wilford Garner are cited. Garner points out :
"An unamendable constitution, said Mulford, is the "worst tyranny of time, or rather the very
tyranny of time"."
But he also notices :
"The provision for amendment should be neither so rigid as to make needed changes
practically impossible nor so flexible as to encourage frequent and unnecessary changes and
thereby lower the authority of the Constitution".
Munro in his book "The Government of the United States", 5th Edition, uses strong words
when he says :
"........ it is impossible to conceive of an unamendable constitution as anything but a
contradiction in terms".

48. The learned author says that such a constitution would constitute "government by the
graveyards". Hugh Evander Willis in his book "Constitutional Law of the United States"
avers that the doctrine of amendability of the Constitution is grounded in the doctrine of
the sovereignty of the people and that it has no such implied limitations as that an
amendment shall not contain a new grant of power or change the dual form of government
or change the protection of the Bill of Rights, or make any other change in the
Constitution. Herman Finer in his book "The Theory and Practice of Modern Government"
defines "constitution" as its process of amendment, for, in his view, to amend is to
deconstitute and reconstitute. The learned author concludes that the amending clause is so
fundamental to a constitution that he is tempted to call it the constitution itself. But the
learned author recognizes that difficulty in amendment certainly products circumstances
and makes impossible the surreptitious abrogation of rights guaranteed in the constitution.
William S. Livingston in "Federalism and Constitutional Change" says :
"The formal procedure of amendment is of greater importance than the informal processes,
because it constitutes a higher authority to which appeal lies on any question that may arise".
49. But there are equally eminent authors who express a different view. In "American
Jurisprudence", 2nd Edition, Vol. 16, it is stated that a statute and a constitution though of
unequal dignity are both laws. Another calls the constitution of a State as one of the laws of
the State. Cooley in his book on "Constitutional Law" opines that changes in the
fundamental laws of the State must be indicated by the people themselves. He further
implies limitations to the amending power from the belief in the constitution itself, such as,
the republican form of Government cannot be abolished as it would be revolutionary in its
character. In the same book it is further said that the power to amend the constitution by
legislative action does not confer the power to break it any more than it confers the power
to legislate on any other subject contrary to the prohibitions. C. F. Strong in his book
"Modern Political Constitutions", 1963 edition, does not accept the theory of absolute
sovereignty of the amending power which does not brook any limitations, for he says :
"In short, it attempts to arrange for the re-creation of a constituent assembly whenever such
matters are in future to be considered, even though that assembly be nothing more than the
ordinary legislature acting under certain restrictions. At the same time, there may be some
elements of the constitution which the constituent assembly wants to remain unalterable by
the action of any authority whatsoever. These elements are to be distinguished from the rest,
and generally come under the heading of fundamental law. Thus, for example, the American
Constitution, the oldest of the existing Constitutions, asserts that by no process of amendment
shall any State, without its own consent, be deprived of its equal suffrage in the Senate, while
among the Constitutions more recently promulgated, those of the Republics of France and
Italy, each containing a clause stating that the republican form of government cannot be the
subject of an amending proposal".

50. It is not necessary to multiply citations from text-books.

51. A catena of American decisions have been cited before us in support of the contention
that the amending power is a supreme power or that it involves political issues which are
not justiciable. It would be futile to consider them at length, for after going through them
carefully we find that there are no considered judgments of the American Courts, which
would have a persuasive effect in that regard. In the Constitution of the United States of
America, prepared by Edwards S. Corwin, Legislative Reference Service, Library of
Congress, (1953 edn.), the following summary under the heading "Judicial Review under
Article V" is given :
"Prior to 1939, the Supreme Court had taken cognizance of a number of diverse objections to
the validity of specific amendments. Apart from holding that official notice of ratification by
the several States was conclusive upon the Courts, it had treated these questions as
justiciable, although it had uniformly rejected them on the merits. In that year, however, the
whole subject was thrown into confusion by the inconclusive decision in Coleman v. Miller.
This case came up on a writ of certiorari to the Supreme Court of Kansas to review the denial
of a writ of mandamus to compel the Secretary of the Kansas Senate to erase an endorsement
on a resolution ratifying the proposed child labour amendment to the Constitution to the
effect that it had been adopted by the Kansas Senate. The attempted ratification was assailed
on three grounds : (1) that the amendment had been previously rejected by the State
Legislature; (2) that it was no longer open to ratification because an unreasonable period of
time, thirteen years, had elapsed since its submission to the States, and (3) that the lieutenant
governor had no right to cast the deciding vote in the Senate in favour of ratification. Four
opinions were written in the Supreme Court, no one of which commanded the support of
more than four members of the Court. The majority ruled that the plaintiffs, members of the
Kansas State Senate, had a sufficient interest in the controversy to give the federal courts
jurisdiction to review the case. Without agreement as to the grounds for their decision, a
different majority affirmed the judgment of the Kansas court denying the relief sought. Four
members who concurred in the result had voted to dismiss the writ on the ground that the
amending process "is political" in its entirety, from submission until an amendment becomes
part of the Constitution, and is not subject to judicial guidance, control or interference at any
point". Whether the contention that the lieutenant governor should have been permitted to
cast the deciding vote in favour of ratification presented a justiciable controversy was left
undecided, the court being equally divided on the point. In an opinion reported as "the
opinion of the Court" but in which it appears that only three Justices concurred, Chief Justice
Hughes declared that the writ of mandamus was properly denied because the question as to
the effect of the previous rejection of the amendment and the lapse of time since it was
submitted to the States were political questions which should be left to Congress. On the
same day, the Court dismissed a writ of certiorari to review a decision of the Kentucky Court
of Appeals declaring the action of the Kentucky General Assembly purporting to ratifying the
child labour amendment illegal and void. Inasmuch as the governor had forwarded the

certified copy of the resolution to the Secretary of State before being served with a copy of
the restraining order issued by the State Court, the Supreme Court found that there was no
longer a controversy susceptible of judicial determination".
52. This passage, in our view, correctly summarises the American law on the subject. It will
be clear therefrom that prior to 1939 the Supreme Court of America had treated the
objections to the validity of specific amendments as justiciable and that only in 1939 it
rejected them in an inconclusive judgment without discussion. In this state of affairs we
cannot usefully draw much from the judicial wisdom of the Judges of the Supreme Court
of America.
53. One need not cavil at the description of an amending power as sovereign power, for it
is sovereign only within the scope of the power conferred by a particular constitution. All
the authors also agree, that a particular constitution can expressly limit the power of
amendment, both substantive and procedural. The only conflict lies in the fact that some
authors do not permit implied limitations when the power of amendment is expressed in
general words. But others countenance such limitations by construction or otherwise. But
none of the authors goes to the extent of saying, which is the problem before us, that when
there are conflicting articles couched in widest terms, the court has no jurisdiction to
construe and harmonize them. If some of the authors meant to say that - in our view, they
did not - we cannot agree with them, for, in that event this Court would not be discharging
its duty.
54. Nor can we appreciate the arguments repeated before us by learned counsel for the
respondents that the amending process involves political questions which are, outside the
scope of judicial review. When a matter comes before the Court, its jurisdiction does not
depend upon the nature of the question raised but on the question whether the said matter is
expressly or by necessary implication excluded from its jurisdiction. Secondly, it is not
possible to define what is a political question and what is not. The character of a question
depends upon the circumstances and the nature of a political society. To put it differently,
the court does not decide any political question at all in the ordinary sense of the term, but
only ascertains whether Parliament is acting within the scope of the amending power. It
may be that Parliament seeks to amend the Constitution for political reasons, but the court
in denying that power will not be deciding on political questions, but will only be holding
that Parliament has no power to amend particular articles of the Constitution for any
purpose whatsoever, be it political or otherwise. We, therefore, hold that there is nothing in
the nature of the amending power which enables Parliament to override all the express or
implied limitations imposed on that power. As we have pointed out earlier, our Constitution
adopted a novel method in the sense that Parliament makes the amendment by legislative
process subject to certain restrictions and that the amendment so made being "law" is
subject to Art. 13(2).

55. The next argument is based upon the expression "amendment" in Art. 368 of the
Constitution and it is contended that the said expression has a positive and a negative
content and that in exercise of the power of amendment Parliament cannot destroy the
structure of the Constitution, but it can only modify the provisions thereof within the
framework of the original instrument for its better effectuation. If the fundamentals would
be amenable to the ordinary process of amendment with a special majority, the argument
proceeds, the institutions of the President can be abolished, the parliamentary executive can
be removed, the fundamental rights can be abrogated, the concept of federalism can be
obliterated and in short the sovereign democratic republic can be converted into a
totalitarian system of government. There is considerable force in this argument. Learned
and lengthy arguments are advanced to sustain it or to reject it. But we are relieved of the
necessity to express out opinion on this all important question as, so far as the fundamental
rights are concerned, the question raised can be answered on a narrower basis. This
question may arise for consideration only if Parliament seeks to destroy the structure of the
Constitution embodied in the provisions other than in Part III of the Constitution. We do
not, therefore, propose to express our opinion in that regard.
56. In the view we have taken on the scope of Art. 368 vis-a-vis the fundamental rights, it
is also unnecessary to express our opinion on the question whether the amendment of the
fundamental rights is covered by the proviso to Art. 368.
57. The result is that the Constitution (Seventeenth Amendment) Act, 1964, inasmuch as it
takes away or abridges the fundamental rights is void under Art. 13(2)of the Constitution.
58. The next question is whether our decision should be given retrospective operation.
During the period between 1950 and 1967 i.e., 17 years, as many as 20 amendments were
made in our Constitution. But in the context of the present petitions it would be enough if
we notice the amendments affecting fundamental right to property. The Constitution came
into force on January 26, 1950. The Constitution (First Amendment) Act, 1951, amended
Arts. 15 and 19, and Arts. 31-Aand 31-B were inserted with retrospective effect. The object
of the amendment was said to be to validate the acquisition of zamindaries or the abolition
of permanent settlement without interference from courts. The occasion for the amendment
was that the High Court of Patna in Kameshwar Singh v. State of BiharA.I.R. 1951 Pat 91,
held that the Bihar Land Reforms Act (30 of 1950) passed by the State of Bihar was
unconstitutional, while the High Courts of Allahabad and Nagpur upheld the validity of
corresponding legislations in Uttar Pradesh and Madhya Pradesh respectively. The
amendment was made when the appeals from those decisions were pending in the Supreme
Court. In Sankari Prasad's case MANU/SC/0013/1951
: [1952]1SCR89 , the

constitutionality of the said amendment was questioned but the amendment was upheld. It
may be noticed that the said amendment was not made on the basis of the power to amend

fundamental rights recognized by this Court, but only in view of the conflicting decisions
of High Courts and without waiting for the final decision from this Court. Article 31-A was
again amended by the Constitution (Fourth Amendment) Act, 1955. Under that amendment
clause (2) of Art. 31 was amended and clause (2-A) was inserted therein. While in the
original article 31-A the general expression "any provisions of his Part" was found, in the
amended article the scope was restricted only to the violation of
Arts. 14, 19 and 31 and 4 other clauses were included, namely, clauses providing for (a)
taking over the management of any property by the State for a limited period; (b)
amalgamation of two or more corporations; (c) extinguishment or modification of rights of
persons interested in corporations; and (d) extinguishment or modification of rights
accruing under any agreement, lease or licence relating to minerals, and the definition of
"estate" was enlarged in order to include the interests of raiyats and under-raiyats. The
expressed object of the amendment was to carry out important social welfare legislations
on the desired lines, to improve the national economy of the State and to avoid serious
difficulties raised by courts in that regard. Article 31-A had further been amended by the
Constitution (Fourth Amendment) Act, 1955. By the said amendment in the Ninth Schedule
to the Constitution entries 14 to 20 were added. The main objects of this amending Act was
to distinguish the power of compulsory acquisition or requisitioning of private property and
the deprivation of property and to extend the scope of Art. 31-A to cover different
categories of social welfare legislations and to enable monopolies in particular trade or
business to be created in favour of the State. Amended Art. 31(2) makes the adequacy of
compensation not justiciable. It may be said that the Constitution (Fourth Amendment) Act,
1955 was made by Parliament as this Court recognized the power of Parliament to amend
Part III of the Constitution; but it can also be said with some plausibility that, as Parliament
had exercised the power even before the decision of this Court in Sankari Prasad's
case MANU/SC/0013/1951
: [1952]1SCR89 , it would have amended the

Constitution even if the said decision was not given by this Court. The Seventeenth
Amendment Act was made on June 20, 1964. The occasion for this amendment was the
decision of this Court in Karimbil Kunhikoman v. State of Kerala MANU/SC/0095/1961
: [1962] 1 S.C.R. 829, which struck down the Kerala Agrarian Relations Act IV of

1961 relating to ryotwari lands. Under that amendment the definition of the expression
"estate" was enlarged so as to take in any land under ryotwari settlement and any 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. In the Ninth Schedule the amendment
included items 21 to 65. In the objects and reasons it was stated that the definition "estate"
was not wide enough, that the courts had struck down many land reform Acts and that,
therefore, in order to give them protection the amendment was made. The validity of the

Seventeenth Amendment Act was questioned in this Court and was held to be valid in
Sajjan Singh's case MANU/SC/0052/1964
: [1965]1SCR933 . From the history of

these amendments, two things appear, namely unconstitutional laws were made and they
were protected by the amendment of the Constitution or the amendments were made in
order to protect the future laws which would be void but for the amendments. But the fact
remains that this Court held as early as in 1951 that Parliament had power to amend the
fundamental rights. It may, therefore, be said that the Constitution (Fourth Amendment)
Act, 1955, and the Constitution (Seventeenth Amendment) Act, 1964, were based upon the
scope of the power to amend recognized by this Court. Further the Seventeenth
Amendment Act was also approved by this Court.
59. Between 1950 and 1967 the Legislatures of various States made laws bringing about an
agrarian revolution in our country - zamindaries, inams and other intermediary estates were
abolished, vested rights were created in tenants, consolidation of holdings of villages was
made, ceilings were fixed and the surplus lands transferred to tenants. All these were done
on the basis of the correctness of the decisions in Sankari Prasad's
case MANU/SC/0013/1951
:
[1952]1SCR89
and
Sajjan
Singh's

case MANU/SC/0052/1964

: [1965]1SCR933 , namely, that Parliament had the

power to amend the fundamental rights and that Acts in regard to estates were outside
judicial scrutiny on the ground they infringed the said rights. The agrarian structure of our
country has been revolutionised on the basis of the said laws. Should we now give
retrospectivity to our decision, it would introduce chaos and unsettle the conditions in our
country. Should we hold that because of the said consequences Parliament had power to
take away fundamental rights, a time might come when we would gradually and
imperceptibly pass under a totalitarian rule. Learned counsel for the petitioners as well as
those for the respondents placed us on the horns of this dilemma, for they have taken
extreme positions - learned counsel for the petitioners want us to reach the logical position
by holding that all the said laws are void and the learned counsel for the respondents
persuade us to hold that Parliament has unlimited power and, if it chooses, it can do away
with fundamental rights. We do not think that this Court is so helpless. As the highest Court
in the land we must evolve some reasonable principle to meet this extraordinary situation.
There is an essential distinction between Constitution and statutes. Comparatively
speaking, Constitution is permanent; it is an organic statute; it grows by its own inherent
force. The constitutional concepts are couched in elastic terms. Courts are expected to and
indeed should interpret, its terms without doing violence to the language to suit the
expanding needs of the society. In this process and in a real sense they make laws. Though

it is not admitted, the said role of this Court is effective and cannot be ignored. Even in the
realm of ordinary statutes, the subtle working of the process is apparent though the
approach is more conservative and inhibitive. In the constitutional field therefore, to meet
the present extraordinary situation that may be caused by our decision, we must evolve
some doctrine which has roots in reason and precedents so that the past may be preserved
and the future protected.
60. There are two doctrines familiar to American Jurisprudence, one is described as
Blackstonian theory and the other as "prospective over-ruling", which may have some
relevance to the present enquiry. Blackstone in his Commentaries, 69 (15th edn., 1809)
stated the common law rule that the duty of the Court was "not to pronounce a new rule but
to maintain and expound the old one". It means the Judge does not make law but only
discovers or finds the true law. The law has always been the same. If a subsequent decision
changes the earlier one, the latter decision does not make law but only discovers the correct
principle of law. The result of this view is that it is necessarily retrospective operation. But
Jurists, George F. Canfield, Robert Hill Freeman, John Henry Wigmore and Cardozo, have
expounded the doctrine of "prospective over-ruling" and suggested it as "a useful judicial
tool". In the words of Canfield the said expression means :
"........ a court should recognize a duty to announce a new and better rule for future
transactions whenever the court has reached the conviction that an old rule (as established by
the precedents) is unsound even though feeling compelled by stare decisis to apply the old
and condemned rule to the instant case and to transactions which had already taken place".
61. Cardozo, before he became a Judge of the Supreme Court of the United States of
America, when he was the Chief Justice of New York State addressing the Bar Association
said thus :
62. The rule (the Blackstonian rule) that we are asked to apply is out of tune with the life
about us. It has been made discordant by the forces that generate a living law. We apply it
to this case because the repeal might work hardship to those who have trusted to its
existence. We hive notice however that any one trusting to it hereafter will do at his peril".
63. The Supreme Court of the United States of America, in the year 1932, after cardozo
became an Associate Justice of that Court in Great Northern Railway v. Sunburst Oil &
Ref. Co., , applied the said doctrine to the facts of that case. In that case the Montana Court
had adhered to its previous construction of the statute in question but had announced that
interpretation would not be followed in the future. It was contended before the Supreme
Court of the United States of America that a decision of a court over-ruling earlier decision
and not giving its ruling retro-active operation violated the due process clause of the 14th
Amendment. Rejecting that plea, Cardozo said :

"This is not a case where a Court in overruling an earlier decision has come to the new ruling
of retro-active dealing and thereby has made invalid what was followed in the doing. Even
that may often be done though litigants not infrequently have argued to the contrary........ This
is a case where a Court has refused to make its ruling retro-active, and the novel stand is
taken that the Constitution of the United States is infringed by the refusal. We think that the
Federal Constitution has no voice upon the subject. A state in defining the elements of
adherence to precedent may make a choice for itself between the principle of forward
operation and that of relation backward. It may be so that the decision of the highest courts,
though later over-ruled, was law nonetheless for intermediate transactions........ On the other
hand, it may hold to the ancient dogma that the law declared by its Courts had a platonic or
ideal existence before the act of declaration, in which event, the discredited declaration will
be viewed as if it had never been and to reconsider declaration as law from the beginning......
The choice for any state may be determined by the juristic philosophy of the Judges of her
Courts, their considerations of law, its origin and nature".
64. The opinion of Cardozo tried to harmonize the doctrine of prospective over-ruling with
that of stare decisis.
65. In 1940, Hughes, C.J., in Chicot County Drainage District v. Baxter State Bank [1940]
308 U.S. 371, sated thus :
"The law prior to the determination of unconstitutionality is an operative fact and may have
consequences which cannot justly be ignored. The past cannot always be erased by a new
judicial declaration".
66. In Griffin v. Illionis [1956] 351 U.S. 12, the Supreme Court of America reaffirmed the
doctrine laid down in Sunburst's case (sic). There, a statute required defendants to submit
bills of exceptions as a pre-requisite to an appeal from a conviction; the Act was held
unconstitutional in that it provided no means whereby indigent defendants could secure a
copy of the record for this purpose. Frankfurter, J., in that context observed :
"......... in arriving at a new principle, the judicial process is not important to define its scope
and limits. Adjudication is not a mechanical exercise nor does it compel 'either/or'
determination".
67. In Wolf v. Colorado, a majority of the Supreme Court held that in a prosecution in a
State Court for a state crime, the 14th Amendment did not forbid the admission of evidence
obtained by an unreasonable search and seizure. But in Mapp. v. Ohio, the Supreme Court
reversed that decision and held that all evidence obtained by searches and seizure in
violation of the 4th Amendment of the Federal Constitution was, by virtue of the due
process clause of the 14th Amendment guaranteeing the right to privacy free from
unreasonable State intrusion , inadmissible in a State Court. In Linkletter v. Walker [1965]
381 U.S. 618, the question arose whether the exclusion of the rule enunciated in Mapp v.

Ohio, did not apply to State Court convictions which had become final before the date of
that judgment. Mr. Justice Clarke, speaking for the majority observed :
"We believe that the existence of the Wolf doctrine prior to Mapp is 'an operative'
fact and may have consequences which cannot justly be ignored. The past cannot
always be erased by a new judicial declaration".
"Mapp had as its prima purpose the enforcement of the Fourth Amendment through
the inclusion of the exclusionary rule within its rights ..................
We cannot say that this purpose would be advanced by making the rule
retrospective. The misconduct of the police prior to Mapp has already occurred and
will not be corrected by releasing the prisoners involved......... On the other hand,
the States relied on Wolf and followed its command. Final judgments of conviction
were entered prior to Mapp. Again and again the Court refused to reconsider Wolf
and gave its implicit approval to hundreds of cases in their application of its rule. In
rejecting the Wolf doctrine as to the exclusionary rule the purpose was to deter the
lawless action of the police and to effectively enforce the Fourth Amendment. That
purpose will not at this late date be served by the wholesale release of the guilty
victims".
"Finally, there are interests in the administration of justice and the integrity of the
judicial process to consider. To make the rule of Mapp retrospective would tax the
administration of justice to the utmost. Hearings would have to be held on the
excludability of evidence long since destroyed, misplaced or deteriorated. If it is
excluded, the witness available at the time of the original trial will not be available
or if located their memory will be dimmed. To thus legitimate such an
extraordinary procedural weapon that has no bearing on guilt would seriously
disrupt the administration of justice".
68. This case has reaffirmed the doctrine of prospective overruling and has taken a
pragmatic approach in refusing to give it retroactivity. In short, in America the doctrine of
prospective overruling is now accepted in all branches of law, including constitutional law.
But the carving of the limits of retrospectivity of the new rule is left to courts to be done,
having regard to the requirements of justice. Even in England the Blackstonian theory was
criticized by Bentham and Austin. In Austin's Jurisprudence, 4th Ed., at page 65, the
learned author says :
"What hindered Blackstone was 'the childish fiction' employed by our judges, that judiciary
or common law is not made by them, but is a miraculous something made, by nobody,
existing, I suppose, from eternity, and merely declared from time to time by the Judges".

69. Though English Courts in the past-accepted the Blackstonian theory and though the
House of Lords strictly adhered to the doctrine of 'precedent' in the earlier years, both the
doctrines were practically given up by the "Practice Statement (Judicial Precedent)" issued
by the House of Lords recorded in (1966) 1 W.L.R. 1234. Lord Gardiner L.C., speaking for
the House of Lords made the following observations :
"Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to
injustice in a particular case and also unduly restrict the proper development of the law. They
propose, therefore, to modify their present practice and, while treating former decisions of
this House as normally binding, to depart from a previous decision when it appears right to
do so".
70. In this connection they will bear in mind the danger of disturbing retrospectively the
basis on which contracts, settlements of property and fiscal arrangements have been
entered into and also the especial need for certainty as to the criminal law".
This announcement is not intended to affect the use of precedent elsewhere than in this
House".
71. It will be seen from this passage that the House of Lords hereafter in appropriate cases
may depart from its previous decision when it appears right to do so and in so departing
will bear in mind the danger of giving effect to the said decision retroactivity. We consider
that what the House of Lords means by this statement is that in differing from the
precedents it will do so only without interfering with the transactions that had taken place
on the basis of earlier decisions. This decision, to a large extent, modifies the Blackstonian
theory and accepts, though not expressly but by necessary implication the doctrine of
"prospective overruling".
72. Let us now consider some of the objections to this doctrine. The objections are : (1) the
doctrine involved legislation by courts; (2) it would not encourage parties to prefer appeals
as they would not get any benefit therefrom; (3) the declaration for the future would only
be obiter; (4) it is not a desirable change; and (5) the doctrine of retroactivity serves as a
brake on courts which otherwise might be tempted to be so fascile in overruling. But in our
view, these objections are not insurmountable. If a court can over-rule its earlier decision there cannot be any dispute now that the court can do so - there cannot be any valid reason
why it should not restrict its ruling to the future and not to the past. Even if the party filing
an appeal may not be benefited by it, in similar appeals which he may file after the change
in the law he will have the benefit. The decision cannot be obiter for what the court in
effect does is to declare the law but on the basis of another doctrine restricts its scope.
Stability in law does not mean that injustice shall be perpetuated. An illuminating article on
the subject is found in Pennsylvania Law Review [Vol. 110 p. 650].

73. It is a modern doctrine suitable for a fast moving society. It does not do away with the
doctrine of stare decisis, but confines it to past transactions. It is true that in one sense the
court only declares the law, either customary or statutory or personal law. While in strict
theory it may be said that the doctrine involves making of law, what the court really does is
to declare the law but refuses to give retroactivity to it. It is really a pragmatic solution
reconciling the two conflicting doctrines, namely, that a court finds law and that it does
make law. It finds law but restricts its operation to the future. It enables the court to bring
about a smooth transition by correcting its errors without disturbing the impact of those
errors on the past transactions. It is left to the discretion of the court to prescribe the limits
of the retroactivity and thereby it enables it to mould the relief to meet the ends of justice.
74. In India there is no statutory prohibition against the court refusing to give retroactivity
to the law declared by it. Indeed, the doctrine of res judicata precludes any scope for
retroactivity in respect of a subject-matter that has been finally decided between the parties.
Further, Indian court by interpretation reject retroactivity to statutory provisions though
couched in general terms on the ground that they affect vested rights. The present case only
attempts a further extension of the said rule against retroactivity.
75. Our Constitution does not expressly or by necessary implication speak against the
doctrine of prospective over-ruling. Indeed, Arts. 32, 141 and 142 are couched in such wide
and elastic terms as to enable this Court to formulate legal doctrines to meet the ends of
justice. The only limitation thereon is reason, restraint and injustice. Under Art. 32, for the
enforcement of the fundamental rights the Supreme Court has the power to issue suitable
directions or orders or writs. Article 141 says that the law declared by the Supreme Court
shall be binding on all courts; and Art. 142 enables it in the exercise of its jurisdiction to
pass such decree or make such order as is necessary for doing complete justice in any cause
or matter pending before it. These articles are designedly made comprehensive to enable
the Supreme Court to declare law and to give such directions or pass such orders as are
necessary to do complete justice. The expression "declared" is wider than the words "found
or made". To declare is to announce opinion. Indeed, the latter involves the process, while
the former expresses result. Interpretation, ascertainment and evolution are parts of the
process, while that interpreted, ascertained or evolved is declared as law. The law declared
by the Supreme Court is the law of the land. If so, we do not see any acceptable reason
why it, in declaring the law in supersession of the law declared by it earlier, could not
restrict the operation of the law as declared to future and save the transactions, whether
statutory or otherwise that were effected on the basis of the earlier law. To deny this power
to the Supreme Court on the basis of some outmoded theory that the Court only finds law
but does to make it is to make ineffective the powerful instrument of justice placed in the
hands of the highest judiciary of this country.
76. As this Court for the first time has been called upon to apply the doctrine evolved in a
different country under different circumstances, we would like to move warily in the

beginning. We would lay down the following propositions : (1) The doctrine of prospective
over-ruling can be invoked only in matters arising under our Constitution; (2) it can be
applied only by the highest court of the country, i.e., the Supreme Court as it has the
constitutional jurisdiction to declare law binding on all the courts in India; (3) the scope of
the retroactive operation of the law declared by the Supreme Court superseding its earlier
decisions is left to its discretion to be moulded in accordance with the justice of the cause
or matter before it.
77. We have arrived at two conclusions, namely, (1) Parliament has no power to amend
Part III of the Constitution so as to take away or abridge the fundamental rights; and (2)
this is a fit case to invoke and apply the doctrine of prospective overruling. What then is
the effect of our conclusion on the instant case ? Having regard to the history of the
amendments, their impact on the social and economic affairs of our country and the chaotic
situation that may be brought about by the sudden withdrawal at this stage of the
amendments from the Constitution, we think that considerable judicial restraint is called
for. We, therefore, declare that our decisions will not affect the validity of the constitution
(Seventeenth Amendment) Act, 1964, or other amendments made to the Constitution taking
away or abridging the fundamental rights. We further declare that in future Parliament will
have no power to amend Part III of the Constitution so as to take away or abridge the
fundamental rights. In this case we do not propose to express our opinion on the question
of the scope of the amendability of the provisions of the Constitution other than the
fundamental rights, as it does not arise for consideration before us. Nor are we called upon
to express out opinion on the question regarding the scope of the amendability of Part III of
the Constitution otherwise than by taking away or abridging the fundamental rights. We
will not also indicate our view one way or other whether any of the Acts questioned can be
sustained under the provisions of the Constitution without the aid of Arts. 31A, 31B and
the 9th Schedule.
78. The aforesaid discussion leads to the following results :
(1) The power of the Parliament to amend the Constitution is derived from
Arts. 245, 246 and 248 of the Constitution and not from Art.368 thereof which only
deals with procedure. Amendment is a legislative process.
(2) Amendment is 'law' within the meaning of Art. 13 of the Constitution and,
therefore, if it takes away or abridges the rights conferred by Part III thereof, it is
void.
(3) The Constitution (First Amendment) Act, 1951, Constitution (Fourth
Amendment) Act, 1955, and the Constitution (Seventeenth Amendment) Act, 1964,
abridge the scope of the fundamental rights. But, on the basis of earlier decisions of
this Court, they were valid.

(4) On the application of the doctrine of 'prospective over-ruling', as explained by

us earlier, our decision will have only prospective operation and, therefore, the said
amendments will continue to be valid.
(5) We declare that the Parliament will have no power from the date of this decision
to amend any of the provisions of Part III of the Constitution so as to take away or
abridge the fundamental rights enshrined therein.
(6) As the Constitution (Seventeenth Amendment) Act holds the filed, the validity
of the two impugned Acts, namely, the Punjab Security of Land Tenures Act X of
1953, and the Mysore Land Reforms Act X of 1962, as amended by Act XIV of
1965, cannot be questioned on the ground that they offend Arts. 13, 14, or 31 of the
Constitution.
Before we close, it would be necessary to advert to an argument advanced on emotional
plane. It was said that if the provisions of the Constitution could not be amended it would
lead to revolution. We have not said that the provisions of the Constitution cannot be
amended but what we have said is that they cannot be amended so as to take away or
abridge the fundamental rights. Nor can we appreciate the argument that all the agrarian
reforms which the Parliament in power wants to effectuate cannot be brought about without
amending the fundamental rights. It was exactly to prevent this attitude and to project the
rights of the people that the fundamental rights were inserted in the Constitution. If it is the
duty of the Parliament to enforce the directive principles, it is equally its duty to enforce
them without infringing the fundamental rights. The Constitution-makers thought that it
could be done and we also think that the directive principles can reasonably be enforced
with the self-regulatory machinery provided by Part III. Indeed both Parts III and IV of the
Constitution form an integrated scheme and is elastic enough to respond to the changing
needs of the society. The verdict of the Parliament on the scope of the law of social control
of fundamental rights is not final, but justiciable. If not so, the whole scheme of the
Constitution will break. What we cannot understand is how the enforcement of the
provisions of the Constitution can bring about a revolution. History shows that revolutions
are brought about not by the majorities but by the minorities and some time by military
coups. The existence of an all comprehensive amending power cannot prevent revolutions,
if there is chaos in the country brought about by mis-rule or abuse of power. On the other
hand, such a restrictive power gives stability to the country and prevents it from passing
under a totalitarian or dictatorial regime. We cannot obviously base our decision on such
hypothetical or extraordinary situations which may be brought about with or without
amendments. Indeed, a Constitution is only permanent and not eternal. There is nothing to
choose between destruction by amendment or by revolution, the former is brought about by
totalitarian rule, which cannot brook constitutional checks and the other by the
discontentment brought about by mis-rule. If either happens, the constitution will be a

scrap of paper. Such considerations are out of place in construing the provisions of the
Constitution by a court of law.
79. Nor are we impressed by the argument that if the power of amendment is not all
comprehensive there will be no way to change the structure of our Constitution or abridge
the fundamental rights even if the whole country demands for such a change. Firstly, this
visualizes an extremely unforeseeable and extravagant demand; but even if such a
contingency arises, the residuary power of the parliament may be relied upon to call for a
Constituent Assembly for making a new Constitution of radically changing it. The recent
Act providing for a poll in Goa, Daman and Diu is an instance of analogous exercise of
such residuary power by the Parliament. We do not express our final opinion on this
important question.
80. A final appeal is made to us that we shall not take a different view as the decision in
Sankari Prasad's case MANU/SC/0013/1951
: [1952]1SCR89 , held the field for

many years. While ordinarily this Court will be reluctant to reverse its previous decision, it
is its duty in the constitutional field to correct itself as early as possible, for otherwise the
future progress of the country and the happiness of the people will be at stake. As we are
convinced that the decision in Sankari Prasad's case MANU/SC/0013/1951
:

[1952]1SCR89 is wrong, it is pre-eminently a typical case where this Court should overrule it. The longer it holds the field the greater will be the scope for erosion of fundamental
rights. As it contains the seeds of destruction of the cherished rights of the people the
sooner it is over-ruled the better for the country.
81. This argument is answered by the remarks made by this Court in the recent judgment in
The Superintendent and Legal Remembrancer State of West Bengal v. The Corporation of
Calcutta MANU/SC/0020/1966
: 1967CriLJ950 .

"The third contention need not detain us for it has been rejected by this Court in The Bengal
Immunity Company Limited v. The State of Bihar MANU/SC/0083/1955
:

[1955]2SCR603 . There a Bench of 7 Judges unanimously held that there was nothing in the
Constitution that prevented the Supreme Court from departing from a previous decision of its
own it was satisfied of its error and of its baneful effect on the general interest of the public.
If the aforesaid rule of construction accepted by this Court is inconsistent with the legal
philosophy of our Constitution, it is our duty to correct ourselves and lay down the right rule.

In constitutional matters which affect the evolution of our polity, we must more readily do so
than in other branches of law, as perpetuation of a mistake will be harmful to public interests.
While continuity and consistency are conducive to the smooth evolution of the rule of law,
hesitancy to set right deviation will retard its growth. In this case, as we are satisfied that the
said rule of construction is inconsistent with our republican polity and, if accepted, bristles
with anomalies, we have no hesitation to reconsider our earlier decision".
82. In the result the petitions are dismissed, but in the circumstances without costs.
Wanchoo, J.
83. This Special Bench of eleven Judges of this Court has been constituted to consider the
correctness of the decision of this Court in Sri Sankari Prasad Singh Deo v. Union of India
MANU/SC/0013/1951
: [1952]1SCR89 , which was accepted as correct by the

majority in Sajjan Singh v. State of Rajasthan MANU/SC/0052/1964

[1965]1SCR933 .
84. The reference has been made in three petitions challenging the constitutionality of the
Seventeenth Amendment to the Constitution. In one of the petitions, the inclusion of the
Punjab Security of Land Tenures Act, (No. X of 1953) in the Ninth Schedule, which makes
it immune from attack under any provisions contained in Part III of the Constitution, has
been attacked on the ground that the Seventeenth Amendment is in itself unconstitutional.
In the other two petitions, the inclusion of the Mysore Land Reforms Act. (No. 10 of 1962)
has been attacked on the same grounds. It is not necessary to set out the facts in the three
petitions for present purposes. The main argument in all the three petitions has been as to
the scope and effect of Art. 368 of the Constitution and the power conferred thereby to
amend the Constitution.
85. Before we come to the specific points raised in the present petitions, we may indicate
the circumstances in which Sankari Prasad's case MANU/SC/0013/1951
:

[1952]1SCR89 , as well as Sajjan Singh's case MANU/SC/0052/1964

[1965]1SCR933 , came to be decided and what they actually decided. The Constitution
came into force on January 26, 1950. It provides in Part III for certain fundamental rights.
Article 31 which is in Part III, as it originally stood, provided for compulsory acquisition of
property. By clause (1) it provided that "no person shall be deprived of his property save by

authority of law". Clause (2) thereof provided that any law authorising taking of possession
or acquisition of property must provide for compensation therefore and either fix the
amount of compensation or specify the principles on which, and the manner in which, the
compensation was to be determined and paid. Clause (4) made a special provision to the
effect that if any Bill pending at the commencement of the Constitution on the Legislature
of a State had, after it had been passed by such Legislature, been reserved for the
consideration of the President and had received his assent, then such law would not be
called in question though it contravened the provisions of clause (2) relating to
compensation. Clause (6) provided that any law of the State enacted not more than
eighteen months before the Constitution might be submitted to the President for his
certification, and if so certified, it could not be called in question on the ground that it
contravened the provisions of clause (2) of Art. 31 relating to compensation.
86. These two clauses of Art. 31 were meant to safeguard legislation which either had been
passed by Provincial or State legislatures or which was on the anvil of State legislatures for
the purpose of agrarian reforms. One such piece of legislation was the Bihar Land Reforms
Act, which was passed in 1950. That Act received the assent of the President as required
under clause (6) of Art. 31. It was however challenged before the Patna High Court and
was struck down by that court on the ground that it violated Art. 14 of the Constitution.
Then there was an appeal before this Court, but while that appeal was pending, the First
Amendment to the Constitution was made.
87. We may briefly refer to what the First Amendment provided for. It was the First
Amendment which was challenged and was upheld in Sankari Prasad's
caseMANU/SC/0013/1951
: [1952]1SCR89 . The First Amendment contained a

number of provisions; but it is necessary for present purposes only to refer to those
provisions which made changes in Part III of the Constitution. These changes related to
Arts. 15 and 19 and in addition, provided for insertion of two Articles numbered 31A and 31-B in Part III. Article 31-A provided that no law providing for the acquisition by
the State of any estate or of any rights therein or the extinguishment or modification of any
such rights shall be deemed to be void on the ground that it was inconsistent with, or took
away or abridged any of the rights conferred by any provision in part III. The word "estate"
was also defined for the purpose of Art. 31-A. Further Article 31-B, provided for validation
of certain Acts and Regulations and specified such Acts and Regulations in the Ninth
Schedule, which was for the first time added to the Constitution. The ninth Schedule then
contained 13 Acts, all relating to estates, passed by various legislatures of the Provinces or
States. It laid down that those Acts and Regulations would not be deemed to be void or
ever to have become void, on the ground that they were inconsistent with or took away or
abridged any of the rights conferred by any provision of Part III. It further provided that
notwithstanding any judgment, decree or order of any court or tribunal to the contrary, all

such Acts and Regulations subject to the power of any competent legislature to repeal or
amend them, continue in force.
88. This amendment, and in particular Arts. 31-A and 31-B were immediately challenged
by various writ petitions in this Court and these came to be decided on October 5, 1951 in
Sankari Prasad's case MANU/SC/0013/1951
: [1952]1SCR89 . The attack on the

validity of the First Amendment was made on various grounds; but three main grounds
which were taken were, firstly, that amendments to the Constitution made under
Art. 368 were liable to be tested under Art.13(2); secondly that in any case as Arts. 31A and 31-B inserted in the Constitution by the First Amendment affected the power of the
High Court under Art. 226and of this Court under Articles 132 and 136, the amendment
required ratification under the proviso to Art. 368; and, thirdly, that Arts. 31-A and 31B were invalid on the ground that they related to matters covered by the State List, namely,
item 18 of List II, and could not therefore be passed by Parliament. This Court rejected all
the three contentions. It held that although "law" would ordinarily include constitutional
law, there was a clear demarcation between ordinary law made in the exercise of legislative
power and constitutional law made in the exercise of constituent power, and in the context
of Art. 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; in consequence Art. 13(2) did not affect amendments made under
Art. 368. It further held that Arts. 31-A and 31-B did not curtail the power of the High
Court under Art. 226 or of this court under Arts. 132 and 136 and did not require
ratification under the proviso contained in Art. 368. Finally, it was held that Arts. 31A and31-B were essentially amendments to the Constitution and Parliament as such had
the power to enact such amendments. In consequence, the First Amendment to the
Constitution was upheld as valid.
89. After this decision, there followed sixteen more amendments to the Constitution till we
come to the Seventeenth Amendment, which was passed on June 20, 1964. There does not
seem to have been challenge to any amendment up to the Sixteenth Amendment, even
though two of them, namely, the Fourth Amendment and the Sixteenth Amendment,
contained changes in the provisions of Part III of the Constitution. Further the nature of
these amendments was to add to, or alter or delete various other provisions of the
Constitution contained in Part III thereof. On December 5, 1961, came the decision of this
Court by which the Kerala Agrarain Reforms Act (No. 4 of 1961), passed by the Kerala
legislature, was struck down, among other grounds, for the reason that ryotwari lands in
South India were not estates within the meaning of Art. 31-A and therefore acquisition of
ryotwari land was not protected under Art. 31-A of the Constitution : [see Karimbil

Kunhikoman v. State of Kerala MANU/SC/0095/1961

: [1962] Supp. 1 S.C.R.

829]. This decision was followed by the Seventeenth Amendment on June 20, 1964. By
this amendment, changes were made in Art. 31-A of the Constitution and 44 Acts were
included in the Ninth Schedule to give them complete protection from attack under any
provision of Part III of the Constitution. Practically all these Acts related to land tenures
and were concerned with agrarian reforms. This amendment was challenged before this
Court in Sajjan Singh's case MANU/SC/0052/1964
: [1965]1SCR933 . The points

then urged were that as Art. 226 was likely to be affected by the Seventeenth Amendment,
it required ratification under the proviso to Art. 368 and that the decision in Sankari
Prasad's caseMANU/SC/0013/1951
: [1952]1SCR89 , which had negatived this

contention required reconsideration. It was also urged that the Seventeenth Amendment
was legislation with respect to land and Parliament had no right to legislate in that behalf,
and further that as the Seventeenth Amendment provided that the Acts put in the Ninth
Schedule would be valid in spite of the decision of the Courts, it was unconstitutional. This
Court by majority of 3 to 2 upheld the correctness of the decision in Sankari Prasad's
case MANU/SC/0013/1951
: [1952]1SCR89 . It further held unanimously that the

Seventeenth Amendment did not require ratification under the proviso to Art. 368 because
of its indirect effect on Art. 226, and that Parliament in enacting the Amendment was not
legislating with respect to land and that it was open to Parliament to validate legislation
which had been declared invalid by courts. Finally this Court held by majority that the
power conferred by Art. 368 included the power to take away fundamental rights
guaranteed by Part III and that the power to amend was a very wide power and could not
be controlled by the literal dictionary meaning of the word "amend", and that the word
"law" in Art. 13(2) did not include an amendment of the Constitution made in pursuance of
Art. 368. The minority however doubted the correctness of the view taken in Sankari
Prasad's case MANU/SC/0013/1951
: [1952]1SCR89 , to the effect that the word

"law" in Art. 13(2) did not include amendment to the Constitution made under Art. 368 and
therefore doubted the competence of Parliament to make any amendment to Part III of the
Constitution. One of the learned Judges further doubted whether making a change in the
basic features of the Constitution could be regarded merely as an amendment or would, in
effect, be re-writing a part of the Constitution, and if so, whether it could be done under
Art. 368. It was because of this doubt thrown on the correctness of the view taken in

Sankari Prasad's case MANU/SC/0013/1951

: [1952]1SCR89 , that the present

reference has been made to this Special Bench.

90. As the question referred to this Bench is of great constitutional importance and affected
legislation passed by various States, notice was issued to the Advocates General of all
States and they have appeared and intervened before us. Further a number of persons who
were also affected by the Seventeenth Amendment have been permitted to intervene. The
arguments on behalf of the petitioners and the interveners who support them may now be
briefly summarised.
91. It is urged that Art. 368 when it provides for the amendment of the Constitution merely
contains the procedure for doing so and that the power to make amendment has to be found
in Art. 248 read with item 97 of List I. It is further urged that the word "amendment" in
Art. 368 means that the provisions in the Constitution can be changed so as to improve
upon them and that this power is of a limited character and does not authorise Parliament to
make any addition to, alteration of or deletion of any provision of the Constitution,
including the provision contained in Part III. So Art. 368 authorise only those amendments
which have the effect of improving the Constitution. Then it is urged that amendment
permissible under Art. 368 is subject to certain implied limitations and these limitations are
that basic features of the Constitution cannot be amended at all. An attempt was made to
indicate some of these basic features, as, for example, the provisions in Part III, the federal
structure, the republican character of the State, elected Parliament and State Legislatures on
the basis of adult suffrage, control by the judiciary and so on, and it is said that an
amendment under Art. 368 is subject to the implied limitations that these basic features and
others of the kind cannot be changed. Thus in effect the argument is that there is a very
limited power of amendment under the Constitution.
92. It is further urged that apart from these implied limitations, there is an express
limitation under Art. 13(2) and the word "law" in that Article includes an amendment of the
Constitution. The argument thus in the alternative is that as the word "law" in
Art. 13(2) includes a constitutional amendment, no amendment can be made in Part III
under Art. 368 which would actually take away or abridge the rights guaranteed under that
Part. In effect, it is said that even if there are no implied limitations to amend the
Constitution under Art. 368, Art. 13(2) is an express limitation insofar as the power to
amend Part III is concerned and by virtue of Art. 13(2) the rights guaranteed under Part III
cannot be taken away or abridged under Art. 368, though it is conceded that Part III may be
amended by way of enlarging the rights contained therein.
93. Another line of argument is that in any case it was necessary to take action under the
proviso to Art. 368 and as that was not done the Seventeenth Amendment is not valid. It is

urged that Art. 226 is seriously affected by the provisions contained in the Seventeenth
Amendment and that amounts to an amendment of Art. 226 and in consequence action
under the proviso was necessary. It is also urged that Art. 245 was equally affected by the
addition of a number of Acts in the Ninth Schedule read with Art. 13(2) and therefore also
it was necessary to take action under the proviso. It is further urged that it was not
competent for Parliament to amend the Constitution by putting a large number of Acts in
the Ninth Schedule as the power to legislate with respect to land is solely within the
competence of State Legislatures and that is another reason why the addition to the Ninth
Schedule read with Art. 31-B should be struck down.
94. Lastly an argument had been advanced, which we may call the argument of fear. It is
said that if Art. 368 is held to confer full power to amend each and every part of the
Constitution as has been held in Sankari Prasad's case MANU/SC/0013/1951
:

[1952]1SCR89 . Parliament may do all kinds of things, which were never intended, under
this unfettered power and may, for example, abolish elected legislatures, abolish the
President or change the present form of Government into a Presidential type like the United
States Constitution or do away with the federal structure altogether. So it is urged that we
should interpret Art. 368 in such a way that Parliament may not be able to do all these
things. In effect this argument of fear has been put forward to reinforce the contention that
this Court should hold that there are some implied limitations on the amending power and
these implied limitations should be that there is no power any where in the Constitution to
change the basic features of the Constitution to which reference has already been made.
This is in brief the submission on behalf of the petitioners and the interveners who support
them.
95. The submission on behalf of the Union of India and the States may now be
summarised. It is urged that Art. 368 not only provides procedure for amendment but also
contains in it the power to amend the Constitution. It is further urged that the word
"amendment" in law does not merely mean making such changes in the Constitution as
would improve it but includes the power to make any addition to the Constitution, any
alteration of any of the existing provisions and its substitution by another provision, and
any deletion of any particular provision of the Constitution. In effect, it is urged that even if
the word "amendment" used in Art. 368 does not take in the power to abrogate the entire
Constitution and replace it by another new Constitution, it certainly means that any
provisions of the Constitution may be changed and this change can be in the form of
addition to, alteration of or deletion of any provision of the Constitution. So long therefore
as the Constitution is not entirely abrogated and replaced by a new Constitution at one
stroke, the power of amendment would enable Parliament to make all changes in the
existing Constitution by addition, alteration or deletion. Subject only to complete repeal
being not possible, the power of amendment contained in Art. 368 is unfettered. It is further

urged that there can be no implied limitations on the power to amend and the limitations if
any on this power must be found in express terms in the Article providing for amendment.
It is conceded that there may be an express limitation not merely in the Article providing
for amendment but in some other part of the Constitution. But it is said that if that is so,
there must be a clear provision to that effect. In the absence of express limitations,
therefore, there can be no implied limitations on the power to amend the Constitution
contained in Art. 368 and that power will take in all changes whether by way of addition,
alteration or deletion, subject only to this that the power of amendment may not contain the
power to abrogate and repeal the entire Constitution and substitute it with a new one.
96. It is then urged that there is no express provision in Art. 368 itself so far as any
amendment relating to the substance of the amending power is concerned; the only
limitations in Art. 368 are as to procedure and courts can only see that the procedure as
indicated in Art. 368 is followed before an amendment can be said to be valid. It is further
urged that the word "law" in Art. 13 does not include an amendment of the Constitution
and only means law as made under the legislative provisions contained in Chapter I of Part
XI read with Chapters II and III of Part V of the Constitution and Chapters III and V of Part
VI thereof. In effect it is a law which is made under the Constitution which is included in
the word "law" in Art. 13(2) and not an amendment to the Constitution under Art. 368.
97. As to Articles 226 and 245 and the necessity of taking action under the proviso to
Art. 368, it is urged that there is no change in Art. 226 and 245 on account of any provision
in the Seventeenth Amendment and therefore no action under the proviso was necessary. It
is only direct change in Art. 226 and 245 which would require following the procedure as
to ratification or at any rate such change in other Articles which would have the effect of
directly compelling change in Arts. 226 and 245 and that in the present case no such direct
compulsion arises.
98. Lastly as to the argument of fear it is urged that there is always a provision with respect
to amendment in written federal Constitutions. Such a provision may be rigid or flexible. In
our Constitution Art. 368 provides for a comparatively flexible provision for amendment
and there is no reason to make it rigid by implying any limitations on that power. Further
there is no reason to suppose that all those things will be done by Parliament which are
being urged to deny the power under Art. 368 which flows naturally from its terms.
99. Besides the above, reliance is also placed on behalf of the Union of India and the States
on the doctrine of stare decisis. It is urged that since the decision of this Court in Sankari
Prasad's case MANU/SC/0013/1951
: [1952]1SCR89 , sixteen further

amendments have been made by Parliament on the faith of that decision involving over 200
Articles of the Constitution. The amendments relating to Part III have been mainly with

respect to agrarian reforms resulting in transfers of title of millions of acres of land in

favour of millions of people. Therefore, even though Sankari Prasad's
case MANU/SC/0013/1951
: [1952]1SCR89 , has stood only for fifteen years

there has been a vast agrarian revolution effected on the faith of that decision and this
Court should not now go back on what was decided in that case. Further, besides the
argument based on state decisis, it is urged on the basis of certain decisions of this Court
that the unanimous decision in Sankari Prasad's case MANU/SC/0013/1951
:

[1952]1SCR89 , which had stood practically unchallenged for about 15 years till the
decision in Sajjan Singh's case MANU/SC/0052/1964
: [1965]1SCR933 , should

not be over-ruled unless it is found to be incorrect by a large majority of the Judges

constituting this Special Bench. It is urged that if the present Bench is more or less evenly
divided it should not over-rule, the unanimous decision in Sankari Prasad's
caseMANU/SC/0013/1951
: [1952]1SCR89 , by a majority of one.

100. We shall first take Art. 368. It is found in Part XX of the Constitution which is headed
"Amendment of the Constitution" and is the only Article in that Part. That Part thus
provides specifically for the amendment of the Constitution, and the first question that
arises is whether it provides power for the amendment of the Constitution as well as the
procedure for doing so. It is not disputed that the procedure for amendment of the
Constitution is to be found in Art. 368, but what is in dispute is whether Art. 368 confers
power also in that behalf. Now the procedure for the amendment of the Constitution is this.
The amendment is initiated by the introduction of a Bill in either House of Parliament. The
Bill has to be passed in each House by a majority of the total membership of that House
and by a majority of not less two-third of the members of that House present and voting.
After it is so passed, it has to be presented to the President for his assent. On such
presentation if the President assents to the Bill, Art. 368 provides that the Constitution shall
stand amended in accordance with the terms of the Bill. Further there is a proviso for
ratification with respect to certain Articles and other provisions of the Constitution
including Art. 368, and those matters can only be amended if the Bill passed by the two
Houses by necessary majority is ratified by the legislatures of not less than one-half of the
States by resolutions to that effect. In such a case the Bill cannot be presented for his assent
to the President until necessary ratification is available. But when the necessary ratification
has been made, the Bill with respect to these matters is then presented to the President and

on his assent being given, the Constitution stands amended in accordance with the terms of
the Bill.
101. The argument is that there is no express provision in terms in Art. 368 conferring
power on Parliament to amend the Constitution, and in this connection our attention has
been invited to an analogous provision in the Constitution of Ireland in Art. 46, where
clause 1 provides that any provision of the Constitution may be amended in the manner
provided in that Article, and then follows the procedure for amendment in clauses 2 to 5.
Reference is also made to similar provisions in other constitution, but it is unnecessary to
refer to them. It is urged that as Art. 368 has nothing comparable to clause 1 of Art. 46 of
the Irish Constitution, the power to amend the Constitution is not in Art. 368 and must be
found elsewhere. We are prepared to accept this argument. The fact that Art. 368 is not in
two parts, the first part indicating that the Constitution shall be amended in the manner
provided thereafter, and the second part indicating the procedure for amendment, does not
mean that the power to amend the Constitution is not contained in Art. 368 itself. The very
fact that a separate Part has been devoted in the Constitution for amendment thereof and
there is only one Article in that Part shows that both the power to amend and the procedure
for amendment are to be found in Art. 368. Besides, the words "the Constitution shall stand
amended in accordance with the terms of the Bill" in Art. 368 clearly in our opinion
provide for the power to amend after the procedure has been followed. It appears that our
Constitution-makers were apparently thinking of economy of words and elegance of
language in enacting Art. 368 in the terms in which it appears and that is why it is not in
two parts on the model of Art. 46 of the Irish Constitution. But there can in our opinion be
no doubt, when a separate Part was provided headed "Amendment of the Constitution" that
the power to amend the Constitution must also be contained in Art. 368 which is the only
Article in that Part. If there was any doubt about the matter, that doubt in our opinion is
resolved by the words to which we have already referred, namely, "the Constitution shall
stand amended in accordance with the terms of the Bill". These words can only mean that
the power is there to amend the Constitution after the procedure has been followed.
102. It is however urged that the power to amend the Constitution is not to be found in
Art. 368 but is contained in the residuary power of Parliament in Art. 248read with item 97
of List I. It is true that Art. 248 read with item 97 of List I, insofar as it provides for
residuary power of legislation, is very wide in its scope, and the argument that the power to
amend the Constitution is contained in this provision appears prima facie attractive in view
of the width of the residuary power. But we fail to see why when there is a whole Part
devoted to the amendment of the Constitution the power to amend should not be found in
that Part, if it can be reasonably found there and why Art. 368 should only be confined to
providing for procedure for amendment. It is true that the marginal note to Art. 368 is
"procedure for amendment of the Constitution", but the marginal note cannot control the
meaning of the words in the Article itself, and we have no doubt that the words "the
Constitution shall stand amended in accordance with the terms of the Bill" to be found in

Art. 368 confer the power of amendment. If we were to compare the language of cls. 2 to 5
of Art. 46 of the Irish Constitution which prescribes the procedure for amendment, we find
no words therein comparable to these words in Art. 368. These words clearly are
comparable to clause 1 of Art. 46 of the Irish Constitution and must be read as conferring
power on Parliament to amend the Constitution. Besides it is remarkable in contrast that
Art. 248 read with List I does not in terms mention the amendment of the Constitution.
While therefore there is a whole Part devoted to the amendment of the Constitution, we do
not find any specific mention of the amendment of the Constitution in Art.248 or in any
entry of List I. It would in the circumstances be more appropriate to read the power in
Art. 368 in view of the words which we have already referred to than in Art. 248 read with
item 97 of List I. Besides it is a historical fact to which we can refer that originally the
intention was to vest residuary power in States, and if that intention had been eventually
carried out, it would have been impossible for any one to argue that the power to amend the
Constitution was to be found in the residuary power if it had been vested in the States and
not in the Union. The mere fact that during the passage of the Constitution by the
Constituent Assembly, residuary power was finally vested in the Union would not therefore
mean that it includes the power to amend the Constitution. On a comparison of the scheme
of the words in Art. 368 and the scheme of the words in Art. 248 read with item 97 of List
I, therefore, there is no doubt in our mind that both the procedure and power to amend the
Constitution are to be found in Art. 368 and they are not to be found in Art. 248 read with
item 97 of List I which provides for residuary legislative power of Parliament.
103. There is in our opinion another reason why the power to amend the Constitution
cannot be found in Art. 248 read with item 97 of List I. The Constitution is the fundamental
law and no law passed under mere legislative power conferred by the Constitution can
affect any change in the Constitution unless there is an express power to that effect given in
the Constitution itself. But subject to such express power given by the Constitution itself
the fundamental law, namely the Constitution, cannot be changed by a law passed under
the legislative provisions contained in the Constitution as all legislative acts passed under
the power conferred by the Constitution must conform to the Constitution can make no
change therein. There are a number of Article in the Constitution, which expressly provide
for
amendment
by
law,
as,
for
example, 3, 4, 10, 59(3), 65(3), 73(2), 97, 98(3), 106, 120(2), 135, 137, 142(1), 146(2), 148
(3), 149, 169, 171(2), 186,187(3), 189(3), 194(3), 195, 210(2), 221(2), 225, 229(2), 239(1),
241(3), 283(1) and (2), 285(2), 287, 300(1), 313, 345, 373, Sch. V. clause 7 and Sch. VI
clause 21; and so far as these Articles are concerned they can be amended by parliament by
ordinary law-making process. But so far as the other Articles are concerned they can only
be amended by amendment of the Constitution under Art. 368. Now Art. 245 which gives
power to make law for the whole or any part of the territory of India by Parliament is
"subject to the provisions of this Constitution" and any law made by Parliament whether
under Art. 246 read with List I or under Art. 248 read with item 97 of List I must be subject
to the provisions of the Constitution. If therefore the power to amend the Constitution is

contained in Art. 248read with item 97 List I, that power has to be exercised subject to the
provisions of the Constitution and cannot be used to change the fundamental law (namely,
the Constitution) itself. But it is argued that Art. 368 which provides a special procedure for
amendment of the Constitution should be read along with Arts. 245and 248, and so read it
would be open to amend any provisions of the Constitution by law passed under
Art. 248 on the ground that Art. 248 is subject to Art. 368and therefore the two together
give power to Parliament to pass a law under Art. 248 which will amend even those
provisions of the Constitution which are not expressly made amendable by law passed
under the legislative power of Parliament. This in our opinion is arguing in a circle. If the
fundamental law (i.e. the Constitution) cannot be changed by any law passed under the
legislative power contained therein, for legislation so passed must conform to the
fundamental law, we fail to see how a law passed under the residuary power, which is
nothing more than legislative power conferred on Parliament under the Constitution, can
change the Constitution (namely, the fundamental law) itself.
104. We may in this connection refer to the following passage in The Law and the
Constitution by W. Ivor Jennings (1933 Ed.) at p. 51 onwards :"A written constitution is thus the fundamental law of a country, the express embodiment of
the doctrine of the reign of law. All public authorities - legislative administrative and judicial
- take their powers directly or indirectly from it....... whatever the nature of the written
constitution it is clear that there "is a fundamental distinction between constitutional law and
the rest of the law...... There is a clear separation, therefore, between the constitutional law
and the rest of the law".
105. It is because of this difference between the fundamental law (namely, the
Constitution) and the law passed under the legislative provisions of the Constitution that it
is not possible in the absence of an express provision to that effect in the fundamental law
to change the fundamental law by ordinary legislation passed thereunder, for such ordinary
legislation must always conform to the fundamental law (i.e. the Constitution). If the power
to amend the Constitution is to be found in Art. 248 read with item 97 of List I, it will mean
that ordinary legislation passed under the fundamental law would amend that law and this
cannot be done unless there is express provision as in Art. 3 etc. to that effect. In the
absence of such express provision any law passed under the legislative powers granted
under the fundamental law cannot amend it. So if we were to hold that the power to amend
the Constitution is comprised in Art. 248, that would mean that no amendment of the
Constitution would be possible at all except to the extent expressly provided in various
Articles to which we have referred already, for the power to legislate under Art. 245 read
with Art. 248 is itself subject to the Constitution. Therefore, reading Art. 368 and
considering the scheme of the legislative powers conferred by Articles 245 and 248 read
with item 97 of List I, this to our mind is clear, firstly that the power to amend the
Constitution is to be found in Art. 368 itself, and secondly, that the power to amend the

Constitution can never reside in Art. 245 and Art. 248 read with item 97 of List I, for that
would make any amendment of the Constitution impossible except with respect to express
provisions contained in certain Articles thereof for amendment by law.
106. We may in this connection add that all this argument that power to amend the
Constitution is to be found in Art. 245 and Art. 248 read with item 97 of List I has been
based on one accidental circumstance, and that accidental circumstance is that the
procedure for amendment of the Constitution contained in Art. 368 is more or less
assimilated to the procedure for making ordinary laws under the Constitution. The
argument is that constitutional amendment is also passed by the two Houses of Parliament,
and is assented to by the President like ordinary legislation, with this difference that a
special majority is required for certain purposes and a special majority plus ratification is
required for certain other purposes. It may be admitted that the procedure for amendment
under Art. 368 is somewhat similar to the procedure for passing ordinary legislation under
the Constitution. Even so, as pointed out by Sir Ivor Jennings under in the passage already
quoted, there is a clear separation between constitutional law and the rest of the law and
that must never be forgotten. An amendment to the Constitution is a constitutional law and
as observed in Sankari Prasad's case MANU/SC/0013/1951
: [1952]1SCR89 , is in

exercise of constituent power; passing of ordinary law is in exercise of ordinary legislative

power and is clearly different from the power to amend the Constitution. We may in this
connection refer, for example, to Art. V of the U.S. Constitution, which provides for the
amendment thereof. It will be clearly seen that the power contained in Art. V of the U.S.
Constitution is not ordinary legislative power and no one can possibly call it ordinary
legislative power, because the procedure provided for the amendment of the Constitution in
Art. V differs radically from the procedure provided for ordinary legislation, for example,
the President's assent is not required for constitutional amendment under Art. V of the U.S.
Constitution. Now if Art. 368 also had made a similar departure from the procedure
provided for ordinary legislation, it could never have been said that Art. 368 merely
contained the procedure for amendment and that what emerges after that procedure is
followed is ordinary law of the same quality and nature as emerges after following the
procedure for passing ordinary law. If, for example, the assent of the President which is to
be found in Art. 368had not been there and the Constitution would have stood amended
after the Bill had been passed by the two Houses by necessary majority and after
ratification by not less than one-half of the States where so required, it could never have
been argued that the power to amend the Constitution was contained in
Arts. 245and 248 read with item 97 of List I and Art. 368 merely contained the procedure.
107. We are however of opinion that we should look at the quality and nature of what is
done under Art. 368 and not lay so much stress on the similarity of the procedure contained
in Art. 368 with the procedure for ordinary law-making. If we thus look at the quality and

nature of what is done under Art. 368, we find that it is the exercise of constituent power
for the purpose of amending the Constitution itself and is very different from the exercise
of ordinary legislative power for passing laws which must be in conformity with the
Constitution and cannot go against any provision thereof, unless there is express provision
to that effect to which we have already referred. If we thus refer to the nature and quality of
what is done under Art. 368, we immediately see that what emerges after the procedure in
Art. 368 is gone through is not ordinary law which emerges after the legislative procedure
contained in the Constitution is gone through. Thus Art.368 provides for the coming into
existence of what may be called the fundamental law in the form of an amendment of the
Constitution and therefore what emerges after the procedure under Art. 368 is gone through
is not ordinary legislation but an amendment of the Constitution which becomes a part of
the fundamental law itself, by virtue of the words contained in Art. 368 to the effect that the
Constitution shall stand amended in accordance with the terms of the Bill.
108. It is urged in this connection on behalf of the Union of India that even though the
assent of the President is required under Art. 368, the President must assent thereto and
cannot withhold his assent as is possible in the case of ordinary law in view of Art. 111 of
the Constitution, for the word "that he withholds assent therefrom" found in Art. 111 are
not to be found in Art. 368. It is however difficult to accept the argument on behalf of the
Union that the President cannot withhold his assent when a Bill for amendment of the
Constitution is presented to him. Article 368 provides that a Bill for the amendment of the
Constitution shall be presented to the President for his assent. It further provides that upon
such assent by the President, the Constitution shall stand amended. That in our opinion
postulates that if assent is not given, the Constitution cannot be amended. Whether a
President will ever withhold his assent in our form of Government is a different matter
altogether, but as we read Art. 368 we cannot hold that the President is bound to assent and
cannot withhold his assent when a Bill for amendment of the Constitution is presented to
him. We are of opinion that the President can refuse to give his assent when a Bill for
amendment of the Constitution is presented to him, the result being that the Bill altogether
falls, for there is no specific provision for anything further to be done about the Bill in
Art. 368 as there is in Art. 111. We may in this connection refer to the different language
used in clause 5 of Art. 46 of the Irish Constitution which says that "a Bill containing a
proposal for the amendment of this Constitution shall be signed by the President forthwith
upon his being satisfied that the provisions of this Article have been complied with in
respect thereof". It will be seen therefore that if the intention under Art. 368 had been that
the President cannot withhold his assent, we would have found language similar in terms to
that in clause 5 of Art. 46 of the Irish Constitution.
109. We thus see that in one respect at any rate Art. 368 even on its present terms differs
from the power of the President in connection with ordinary legislation under the
Constitution and that is if the President withholds his assent the Bill for amendment of the
Constitution immediately falls. We cannot accept that the procedure provided under the

proviso to Art. 111 can apply in such a case, for this much cannot be disputed that so far as
the procedure provided for amendment of the Constitution is concerned we must look to
Art. 368 only and nothing else. In any case the mere fact that the procedure in Art. 368 is
very much assimilated to the procedure for passing ordinary legislation is no reason for
holding that what emerges after the procedure under Art. 368 is followed is ordinary law
and no more. We repeat that we must look at the quality and nature of what is done under
Art. 368, and that is, the amendment of the Constitution. If we look at that we must hold
that what emerges is not ordinary law passed under the Constitution but something which
has the effect of amending the fundamental law itself which could not be done by ordinary
legislative process under the Constitution unless there is express provision to that effect.
We have already referred to such express provisions in various Articles, but Art. 368 cannot
be treated as such an Article, for it deals specifically with the amendment of the
Constitution as a whole.
110. It is also remarkable to note in this connection that the word "law" which has been
used in so many Articles of the Constitution has been avoided apparently with great care in
Art. 368. We again refer to the concluding words of the main part of Art. 368 which says
that the "Constitution shall stand amended in accordance with the terms of the Bill". Now it
is well-known that in the case of ordinary legislation as soon as the Bill is passed by both
Houses and has received the assent of the President it becomes an Act. But
Art. 368 provides that as soon as the Bill for amendment of the Constitution has been
passed in accordance with the procedure provided therein the Constitution shall stand
amended in accordance with the terms of the Bill. These words in our opinion have
significance of their own. It is also remarkable that these words clearly show the difference
between the quality of what emerges after the procedure under Art. 368 is followed and
what happens when ordinary law-making procedure is followed. Under Art. 111, in the
case of ordinary law-making when a Bill is passed by the two Houses of Parliament it is
presented to the President and the President shall declare either that he assents to the Bill or
that he withholds assent therefrom. But it is remarkable that Art. 111 does not provide that
when the Bill has been assented to by the President it becomes an Act. The reason for this
is that the Bill assented to by the President though it may become law is still not declared
by Art. 111 to be a law, for such law is open to challenge in courts on various grounds,
namely, on the ground that it violates any fundamental rights, or on the ground that
parliament was not competent to pass it or on the ground that it is in breach of any
provision of the Constitution. On the other hand we find that when a Bill for the
amendment of the Constitution is passed by requisite majority and assented to by the
President, the Constitution itself declares that the Constitution shall stand amended in
accordance with the terms of the Bill. Thereafter what courts can see is whether the
procedure provided in Art. 368 has been followed, for if that is not done, the Constitution
cannot stand amended in accordance with the terms of the Bill. But if the procedure has
been followed, the Constitution stands amended, and there is no question of testing the
amendment of the Constitution thereafter on the anvil of fundamental rights or in any other

way as in the case of ordinary legislation. In view of all this we have no doubt that even
though by accident the procedure provided in the Constitution for amendment thereof is
very akin to the procedure for passing ordinary legislation, the power contained in
Art. 368 is still not ordinary legislative power but constituent power for the specific
purpose of amendment of the Constitution; and it is the quality of that power which
determines the nature of what emerges after the procedure in Art. 368 has been followed
and what thus emerges is not ordinary legislation but fundamental law which cannot be
tested, for example, under Art. 13(2) of the Constitution or under any other provision of the
Constitution.
111. We may briefly refer to an argument on behalf of the Union of India that the amending
power contained in Art. 368 is the same sovereign power which was possessed by the
Constituent Assembly when it made the Constitution and therefore it is not subject to any
fetters of any kind. We do not think it necessary to enter into the academic question as to
where sovereignty resides and whether legal sovereignty is in the people and political
sovereignty in the body which has the power to amend the Constitution and vice versa. In
our view the words of Art. 368 clearly confer the power to amend the Constitution and also
provide the procedure for doing so, and that in our opinion is enough for the purpose of
deciding whether the Seventeenth Amendment is valid or not. Further as we have already
stated, the power conferred under Art. 368 is constituent power to change the fundamental
law i.e. the Constitution, and is distinct and different from the ordinary legislative power
conferred on Parliament by various other provisions in the Constitution. So long as this
distinction is kept in mind Parliament would have the power under Art. 368 to amend the
Constitution and what Parliament does under Art. 368 is not ordinary law-making which is
subject to Art. 13(2) or any other Article of the Constitution. What is the extent of the
power conferred on Parliament and whether there are any limitations on it - express or
implied - will be considered by us presently. But we have no doubt, without entering into
the question of sovereignty and of whether Art. 368 confers the same sovereign power on
Parliament as the Constituent Assembly had when framing the Constitution, that
Art. 368 does confer power on Parliament subject to the procedure provided therein for
amendment of any provision of the Constitution.
112. This bring us to the scope and extent of the power conferred for amendment under
Art. 368. It is urged that Art. 368 only gives power to amend the Constitution. Recourse is
had on behalf of the petitioners to the dictionary meaning of the word "amendment". It is
said that amendment implies and means improvement in detail and cannot take in any
change in the basic features of the Constitution. Reference in this connection may be made
to the following meaning of the word "amend" in the Oxford English Dictionary, namely,
"to make professed improvements in a measure before Parliament; formally, to alter in
detail, though practically it may be to alter its principle, so as to thwart it". This meaning at
any rate does not support the case of the petitioners that amendment merely means such
change as results in improvement in detail. It shows that in law, though amendment may

professedly be intended to make improvements and to alter only in detail, in reality, it may
make a radical change in the provision which is amended. In any case, as was pointed out
in Sajjan Singh's caseMANU/SC/0052/1964
: [1965]1SCR933 , the word "amend"

or "amendment" is well understood in law and will certainly include any change whether
by way of addition or alteration or deletion of any provision in the Constitution. There is no
reason to suppose that when the word "amendment" of the Constitution was being used in
Art. 368, the intention was to give any meaning less than what we have stated above. To
say that "amendment" in law only means a change which results in improvement would
make amendments impossible, for what is improvement of an existing law is a matter of
opinion and what, for example, the legislature may consider an improvement may not be so
considered by others. It is therefore in our opinion impossible to introduce in the concept of
amendment as used in Art. 368 any idea of improvement as to details of the Constitution.
The word "amendment" used in Art. 368 must therefore be given its full meaning as used in
law and that means that by amendment an existing Constitution or law can be changed, and
this change can take the form either of addition to the existing provisions, or alteration of
existing provisions and their substitution by others or deletion of certain provisions
altogether. In this connection reference has been made to contrast certain other provisions
of the Constitution, where, for example, the word "amend" has been followed by such
words as "by way of addition, variance or repeal" (see Sixth Schedule, paragraph 21) and
more or less similar expressions in other Articles of the Constitution. It is very difficult to
say why this was done. But the fact that no such words appear in Art. 368 does not in our
mind make any difference, for the meaning of the word "amendment" in law is clearly as
indicated above by us and the presence or absence of explanatory words of the nature
indicated above do not in our opinion make any difference.
113. The question whether the power of amendment given by Art. 368 also includes the
power to abrogate the Constitution completely and to replace it by an entire new
Constitution, does not really arise in the present case, for the Seventeenth Amendment has
not done any such thing and need not be considered. It is enough to say that it may be open
to doubt whether the power of amendment contained in Art. 368 goes to the extent of
completely abrogating the present Constitution and substituting it by an entirely new one.
But short of that, we are of opinion that the power to amend includes the power to add any
provision to the Constitution, to alter any provision and substitute any other provision in its
place and to delete any provision. The Seventeenth Amendment is merely in exercise of the
power of amendment as indicated above and cannot be struck down on the ground that it
goes beyond the power conferred on Parliament to amend the Constitution by Art. 368.
114. The next question that arises is whether there is any limitation on the power of
amendment as explained by us above. Limitations may be of two kinds, namely, express or
implied. So far as express limitations are concerned, there are none such in Art. 368. When

it speaks of the "amendment of this Constitution" it obviously and clearly refers to

amendment of any provision thereof, including the provisions contained in Part III relating
to fundamental rights. Whether Art.13(2) is an express limitation on the power of
amendment will be considered by us later, but so far as Art. 368 is concerned there are no
limitations whatsoever in the matter of substance on the amending power and any
provision of the Constitution, be it in Part III and any other Part, can be amended under
Art. 368.
115. The next question is whether there are any implied limitations on the power of
amendment contained in Art. 368, and this brings us to the argument and there are certain
basic features of the Constitution which cannot be amended at all and there is an implied
limitation on the power of amendment contained in Art. 368 so far as these basic features
are concerned. We may in this connection refer to the view prevailing amongst jurists in the
United States of America as to whether there are any implied limitations on the power of
amendment contained in Art. V of the U.S. Constitution. There are two lines of thought in
this matter in the United States. Some jurists take the view that there are certain implied
limitations on the power to amend contained in Art. V of the U.S. Constitution. These are
said to be with respect to certain basic features, like, the republican character of
Government, the federal structure etc. On the other hand, it appears that the more prevalent
view amongst jurists in the United States is that there are no implied limitations on the
scope of the amending power in Art. V of the U.S. Constitution. Willis on the
Constitutional Law of the United States of America (1936 Edition) says that probably the
correct position is that the amending power embraces everything; in other words there are
no legal limitations whatever on the power of amendment, except what is expressly
provided in Art. V : (see discussion on pp. 122 to 127). Even with respect to these express
limitations. Munro in The Government of the United States (Fifth Edition) at p. 77 says
that even these express limitations can be removed and one of the ways of doing so is "to
remove the exception by a preliminary amendment and thus clear the way for further
action". Besides, as a matter of fact there is no decision of the Supreme Court of the United
States holding that there are implied limitations on the power of amendment contained in
Art. V of the U.S. Constitution and all amendments so far made in the United States have
been upheld by the Supreme Court there in the few cases that have been taken to it for
testing the validity of the amendments.
116. We have given careful consideration to the argument that certain basic features of our
Constitution cannot be amended under Art. 368 and have come to the conclusion that no
limitations can be and should be implied upon the power of amendment under Art. 368.
One reason for coming to this conclusion is that if we were to accept that certain basic
features of the Constitution cannot be amended under Art. 368, it will lead to the position
that any amendment made to any Article of the Constitution would be liable to challenge
before courts on the ground that it amounts to amendment of a basic feature. Parliament
would thus never be able to know what amendments it can make in the Constitution and

what it cannot; for, till a complete catalogue of basic features of the Constitution is
available, it would be impossible to make any amendment under Art. 368 with any
certainty that it would be upheld by courts. If such an implied limitation were to be put on
the power of amendment contained in Art. 368, it would only be the court which would
have the power to decide what are basic features of the Constitution and then to declare
whether a particular amendment is valid or not on the ground that it amends a particular
basic feature or not. The result would be that every amendment made in the Constitution
would provide a harvest of legal wrangles so much so that Parliament may never know
what provisions can be amended and what cannot. The power to amend being a constituent
power cannot in our opinion for these reasons be held subject to any implied limitations
thereon on the ground that certain basic features of the Constitution cannot be amended.
We fail to see why if there was any intention to make any part of the Constitution
unamendable, the Constituent Assembly failed to indicate it expressly in Art. 368. If, for
example, the Constitution-makers intended certain provisions in the Constitution, and Part
III in particular, to be not amendable, we can see no reason why it was not so stated in
Art. 368. On the clear words of Art. 368 which provides for amendment of the Constitution
which means any provision thereof, we cannot infer any implied limitations on the power
of amendment of any provision of the Constitution, be it basic or otherwise. Our
conclusion is that constituent power, like that contained in Art. 368, can only be subject to
express limitations and not to any implied limitations so far as substance of the
amendments are concerned and in the absence of anything in Art. 368making any provision
of the Constitution unamendable, it must be held that the power to amend in
Art. 368 reaches every provision of the Constitution and can be used to amend any
provision thereof, provided the procedure indicated in Art. 368 is followed.
117. Copious reference were made during the course of arguments to debates in Parliament
and it is urged that it is open to this Court to look into the debates in order to interpret
Art. 368 to find out the intention of the Constitution-makers. We are of opinion that we
cannot and should not look into the debates that took place in the Constituent Assembly to
determine the interpretation of Art. 368 and the scope and extent of the provision contained
therein. It may be conceded that historical background and perhaps what was accepted or
what was rejected by the Constituent Assembly while the Constitution was being framed,
may be taken into account in finding out the scope and extent of Art. 368. But we have no
doubt that what was spoken in the debates in the Constituent Assembly cannot and should
not be looked into in order to interpret Art. 368. Craies on Statute Law (Sixth Edition) at p.
128 says that "it is not permissible in discussing the meaning of an obscure enactment, to
refer to 'parliamentary history' of a statute, in the sense of the debates which took place in
Parliament when the statute was under consideration", and support his view with reference
to a large number of English cases. The same is the view in Maxwell on Interpretation of
Statutes, (11th Edition) p. 26. Crawford on Statutory Construction (1940 Edition) at p. 340
says that resort may not be had to debates to ascertain legislative intent, though historical
background in which the legislation came to be passed, can be taken into consideration.

118. In Administrator General of Bengal v. Prem Lal Mullick [1895] 22 I.A.107, the Privy
Council held that "proceedings of the legislature cannot be referred to as legitimate aids to
the construction of the Act in which they result".
119. In Baxter v. Commissioner of Taxation [1907] 4 C.L.R. 1087), it was said that
reference to historical facts can be made in order to interpret a statute. There was however
no reference to the debates in order to arrive at the meaning of a particular provision of the
Constitution there in dispute.
120. In A. K. Gopalan v. the State of Madras MANU/SC/0012/1950

1950CriLJ1383 , Kania C.J. referring to the debates and reports of the Drafting Committee
of the Constituent Assembly in respect of the words of Art. 21 observed at p. 110 that they
might not be read to control the meaning of the Article. In that case all that was accepted
was that "due process of law" which was a term used in the U.S. Constitution, was not
accepted for the purpose of Art. 21 which used the word "the procedure established by
law". Patanjali Sastri J. (at p. 202) also refused to look at the debates and particularly the
speeches made in order to determine the meaning of Art. 21. Fazl Ali, J. (at p. 158) was of
opinion that the proceedings and discussions in the Constituent Assembly were not relevant
for the purpose of construing the expressions used in Art. 21.
121. Again in The Automobile Transport (Rajasthan) Limited v. the State of Rajasthan
MANU/SC/0065/1962
: [1963]1SCR491 , this Court looked into the historical

background but refused to look into the debates in order to determine the meaning of the
provisions of the Constitution in dispute in that case.
122. We are therefore of opinion that it is not possible to read the speeches made in the
Constituent Assembly in order to interpret Art. 368 or to define its extent and scope and to
determine what it takes in and what it does not. As to the historical facts, namely, what was
accepted or what was avoided in the Constituent Assembly in connection with Art. 368, it
is enough to say that we have not been able to find any help from the material relating to
this. There were proposals for restricting the power of amendment under Art. 368 and
making fundamental rights immune therefrom and there were counter proposals before the
Constituent Assembly for making the power of amendment all-embracing. They were all
either dropped or negatived and in the circumstances are of no help in determining the
interpretation of Art. 368 which must be interpreted on the words thereof as they finally
found place in the Constitution, and on those words we have no doubt that there are no
implied limitations of any kind on the power to amend given therein.

123. An argument is also raised that limitations on the power to amend the Constitution can
be found in the preamble to the Constitution. As to that we may refer only to in re : the
Berubari Union and Exchange of Enclaves MANU/SC/0049/1960
:

[1960]3SCR250 , with respect to the value of the preamble to the Constitution and its
importance therein. It was observed in that case unanimously by a Bench of nine Judges
that "although it may be correct to describe the preamble as a key to the mind of the
Constitution-makers, it forms no part of the Constitution and cannot be regarded as the
source of any substantive power which the body of the Constitution alone can confer on the
Government, expressly or by implication. This is equally true to prohibitions and
limitations". The Court there was considering whether the preamble could in any way limit
the power of Parliament to cede any part of the national territory and held that it was not
correct to say that "the preamble could in any way limit the power of Parliament to cede
parts of the national territory". On a parity of reasoning we are of opinion that the preamble
cannot prohibit or control in any way or impose any implied prohibitions or limitations on
the power to amend the Constitution contained in Art. 368.
124. This brings us to the question whether the word "law" in Art. 13(2) includes an
amendment of the Constitution, and therefore, there is an express provision in
Art. 13(2) which at least limits the power of amendment under Art. 368 to this extent that
by such amendment fundamental rights guaranteed by Part III cannot be taken away or
abridged. We have already pointed out that in Sankari Prasad's case MANU/SC/0013/1951
: [1952]1SCR89 , as well as Sajjan Singh's case MANU/SC/0052/1964
:

[1965]1SCR933 , it has already been held, in one case unanimously and in the other by
majority, that the word "law" in Art. 13(2)does not include an amendment of the
Constitution, and it is the correctness of this view which is being impugned before this
Bench, Article 13 is in three parts. The first part lays down that "all laws in force in the
territory of India immediately before the commencement of this Constitution, insofar as
they are inconsistent with the provisions of this Part, shall, to the extent of such
inconsistency, be void". Further all previous constitutional provisions were repealed by
Art. 395 which provided that "the Indian Independence Act, 1947, and the Government of
India Act, 1935, together with all enactments amending or supplementing the latter Act, but
not including the Abolition of Privy Council Jurisdiction Act, 1949, are hereby repealed".
Thus it is clear that the word "law" in Art. 13(1), does not include any law in the nature of a
constitutional provision, for no such law remained after the repeal in Art. 395.
125. Then comes the second part of Art. 13, which says that "the State shall not make any
law which takes away or abridges the rights conferred by this Part and any law made in
contravention of this clause shall, to the extent of the contravention, be void". The third

part defines the word "law" for the purpose of Art. 13; the definition is inclusive and not
exhaustive. It is because of the definition in clause (3) of Art. 13 being inclusive that it is
urged that the word "law" in Art. 13(2)includes an amendment of the Constitution also.
Now we see no reason why if the word "law" in Art. 13(1) relating to past laws does not
include any constitutional provision the word "law" in clause (2) would take in an
amendment of the Constitution, for it would be reasonable to read the word "law" in
Art.13(2) includes an amendment of the 13. But apart from this consideration, we are of
opinion that the word "law" in Art. 13(2) could never have been intended to take in an
amendment of the Constitution. What Art. 13(2) means is that a law made under the
constitutional provisions would be tested on the anvil of Part III and if it takes away or
abridges rights conferred by Part III it would be void to the extent of the contravention.
There are many Articles in the Constitution which provides directly for making law in
addition to Articles 245, 246, 248, etc. and the three Lists and Art. 13(2) prohibits the State
from making any law under these provisions. We see no difficulty in the circumstances in
holding that Art. 13(2) when it talks of the State making any law, refers to the law made
under the provisions contained in Ch. I of Part XI of the Constitution beginning with
Art. 245 and also other provisions already referred to earlier. Article 246 provides that
Parliament may make laws for the whole or any part of the territory of India and the
legislature of a State may make laws for the whole or any part of the State.
Article 246(1) gives exclusive power to Parliament to make laws with respect to subjects
enumerated in List I. Article 246(3) gives exclusive power to State legislatures to make
laws with respect to List II. Article 248(1) gives exclusive power to Parliament to make
laws with respect to any matter nor enumerated in the Concurrent List or the State List. We
are referring to these provisions merely to show that the various provisions in Chapter I of
Part XI provide for making laws, and these laws are all laws which are made under the
legislative power conferred on Parliament or on the State legislatures under the
Constitution. Therefore when in Art. 13(2) it is said that the State shall not make any law
(State there including Parliament and legislature of each State), its meaning could only take
in laws made by Parliament and State legislatures under the powers conferred under
Chapter I Part XI and also other provisions already referred to earlier. We have already held
that the power to amend the Constitution is to be found in Art. 368 along with the
procedure and that such power is not to be found in Art. 248 read item 97 of List I.
Therefore an amendment of the Constitution is not an ordinary law made under the powers
conferred under Chapter I of Part XI of the Constitution and cannot be subject to
Art. 13(2) where the word "law" must be read as meaning law made under the ordinary
legislative power. We have already referred to a larger number of Articles where Parliament
is given the power to make law with respect to those Articles. So far as this power of
Parliament is concerned it is ordinary legislative power and it will certainly be subject to
Art. 13(2). But there can in our opinion be no doubt that when Art. 13(2)prohibits the State
from making any law which takes away or abridges rights conferred by Part III, it is only
referring to ordinary legislative power conferred on Parliament and legislatures of States

and cannot have any reference to the constituent power for amendment of the Constitution
contained in Art. 368.
126. We have already pointed out that there are no implied limitations on the power to
amend under Art. 368 and it is open to Parliament under that Article to amend any part of
the Constitution, including Part III. It is worth remembering that a whole Part XX is
devoted by the Constitution-makers to the subject of amendment of the Constitution. If it
was their intention that Part III of the Constitution will not be liable to amendment by way
of abridgement or abrogation under the amending power contained in Art. 368 we see no
reason why an express provision to that effect was not made in Art. 368. We cannot see
what prevented the Constituent Assembly from making that clear by an express provision
in Art. 368. It is however said that it was not necessary to say so in Art. 368, because the
provision was already made in Art. 13(2). We are unable to accept this contention, for we
have no doubt that Art. 13(2), when it refers to making of laws is only referring to the
ordinary legislative power and not to the constituent power which results in amendment of
the Constitution. In any case it seems to us somewhat contradictory that in Art. 368 power
should have been given to amend any provision of the Constitution without any limitations
but indirectly that power is limited by using words of doubtful import in Art. 13(2). It is
remarkable that in Art. 13(2) there is no express provision that amendment of the
Constitution, under Art. 368, would be subject thereto. It seems strange indeed that no
express provision was made in Part XX in this matter and even in Art.13(2) no express
provision is made to this effect, and in both places the matter is left in a state of
uncertainty. It is also remarkable that in Art. 368 the word "law", which we find so often
used in so many Articles of the Constitution is conspicuously avoided, and it is specifically
provided that after the procedure has been gone through the Constitution shall stand
amended in accordance with the terms of the Bill. This language of Art. 368 is very
significant and clearly makes a distinction between a constitutional Amendment and an
ordinary law passed as an Amending Act. The validity of law has to be determined at the
time when the Bill actually matures into an Act and not at the stage while it is still a Bill.
The provision in Art. 368 has the effect that when a Bill amending the Constitution
receives the assent of the President, the Constitution stands amended in accordance with
the terms of the Bill. The Constitution thus stands amended in terms of the Bill if the Bill
has been introduced, passed and assented to by the President in accordance with the
procedure laid down in Art. 368 and not as a result of the Bill becoming an Amendment
Act introducing amendment in the Constitution. The provision that the Constitution shall
stand amended in terms of the Bill was thus clearly intended to indicate that the
amendment of the Constitution is not dependent on the Bill being treated as a law or an Act
duly passed by Parliament. Thus it is clear that by indicating that the Constitution is to
stand amended in accordance with the terms of the Bill, Art. 368 clearly envisages that the
power of amendment of the Constitution stands on an entirely different footing from an
ordinary law made by Parliament in exercise of its legislative power.

127. If we keep in mind this difference between a constitutional amendment or

constitutional law and an ordinary amending Act or law, it should not be difficult to hold
that when Art 13(2) speaks of the State making a law, it is referring to ordinary law made
under the powers conferred by Art. 245 etc. reads with various Lists and various provisions
of the Constitution where express provision to that effect has been made and is not
referring to the amendment of the Constitution which is made under the constituent power.
Once it is held that the power to amend is found in Art. 368 and is not to be found in
Art. 248 read with item 97 of List I, it must follow that the power to amend the
Constitution under Art. 368 is a different power (namely, constituent power) and when
Art. 13(2) speaks of making law, it can only refer to making ordinary law, particularly
when we compare the words of Art. 13(2) (namely, the State shall not make any law) and
the words of Arts. 245, 248, and 250 (which all speak of Parliament making law, Statelegislatures making law, and so on).
128. Lastly, as the power to amend is in Art. 368 and of the words, as they stand in that
Article, that power is unfettered and includes the power to amend Part III, it is strange that
power should be limited by putting an interpretation on the word "law" in Art. 13(2), which
would include constitutional law also. There is nothing to suggest this even in the inclusive
definition of the words "law" and "laws in force" in Art. 13(3). Besides it is conceded on
behalf of the petitioners that Art. 368 gives power to amend Part III, but that power is only
to amend one way, namely, towards enlargement of the rights contained therein, and not the
other way, namely, for abridging or taking away the rights contained therein. We must say
that it would require a very clear provision in the Constitution to read the power to amend
the Constitution relating to Part III in this manner. We cannot find that clear provision in
Art. 13(2). We repeat that what the Constituent Assembly was taking the trouble of
providing a whole Part for amendment of the Constitution and when the words in
Art. 368 clearly give the power to amend the Constitution and are subject to no implied
limitations and contain no express unitations, it is strange indeed that it should have
omitted to provide in that very Article that Part III is not liable to amendment thereunder.
In any case if the power of amendment conferred to the words of Art. 368 is unfettered, we
must avoid any inconsistency between that power and the provision contained in
Art. 13(2). We avoid that in keeping with the unfettered power in Art. 368 by reading the
word "law" in Art. 13(2) as meaning law passed under ordinary legislative power and thus
not including an amendment of the Constitution therein. The words in Art. 13(2) are in our
opinion not specific and clear enough to take in the power of amendment under
Art. 368 and must be confined only to the power of ordinary law-making contained in
Arts. 245 etc., and other provisions of the Constitution read with various Lists. We have
therefore no hesitation in agreeing with the view taken in Sankari Prasad's

case MANU/SC/0013/1951

: [1952]1SCR89 , which was upheld by the majority

in Sajjan Singh's case MANU/SC/0052/1964

: [1965]1SCR933 .

129. The next argument is that action under the proviso to Art. 368 is necessary as the
Seventeenth Amendment affects the power of the High Court contained in Art. 226. It is
said that by including various Acts in the Ninth Schedule and making them immune from
challenge under the provisions contained in Part III, the power of the High Court under
Art. 226 is affected inasmuch as the High Court cannot strike down any of the Acts
included in the Ninth Schedule on the ground that they take away or abridge the rights
conferred by Part III. So it is said that there has been a change in Art. 226 and it was
necessary that the Seventeenth Amendment should have been ratified by more than half the
States under the proviso. A similar argument was raised in Sankari Prasad's
caseMANU/SC/0013/1951
: [1952]1SCR89 , and was turned down unanimously.

The same argument was again raised in Sajjan Singh's case MANU/SC/0052/1964

: [1965]1SCR933 , and was also turned down. Now ratification is required under the
proviso if the amendment seeks to make any change in various provisions mentioned
therein and one such provision is Art. 226. The question therefore is whether the
Seventeenth Amendment makes any change in Art. 226 and whether this change has to be a
direct change in the words of Art. 226 or whether merely because there may be some effect
by the Seventeenth Amendment on the content of the power in Art. 226 it will amount to
change in Art. 226. We are of opinion that when the proviso lays down that there must be
ratification when there is any change in the entrenched provisions, including Art. 226, it
means that there must be actual change in the terms of the provision concerned. If there is
no actual change directly in the entrenched provision, no ratification is required, even if
any amendment of any other provision of the Constitution may have some effect Indirectly
on the entrenched provisions mentioned in the proviso. But it is urged that there may be
such a change in some other provision as would seriously affect an entrenched provision,
and in such a case ratification should be necessary. This argument was also dealt with in
the majority judgment in Sajjan Singh's case MANU/SC/0052/1964
:

[1965]1SCR933 , where the doctrine of pith and substance was applied and it was held that
where the amendment in any other Article so affects the entrenched Article as to amount to
an amendment therein, then ratification may be necessary, even though the entrenched

Article may not be directly touched. Perhaps the use of the doctrine of pith and substance
in such a case is not quite apt. But what was meant in Sajjan Singh's
caseMANU/SC/0052/1964
: [1965]1SCR933 , was that if there is such an

amendment of an unentrenched Article that it will directly affect an entrenched Article and
necessitate a change therein, then recourse must be had to ratification under the proviso.
We may illustrate this by two examples. Article 226 lays down inter alia that the High
Court shall have power to issue writs for the enforcement of any of the rights conferred by
Part III and for any other purpose. Now assume that Part III is completely deleted by
amendment of the Constitution. If that takes place, it will necessitate an amendment of
Art. 226 also and deletion therefrom of the words "for the enforcement of any of the rights
conferred, by Part III". We have no doubt that if such a contingency ever happens and Part
III is completely deleted, Parliament will amend Art. 226 also and that will necessitate
ratification under the proviso. But suppose Parliament merely deletes Part III and does not
make the necessary consequential amendment in Art. 226, it can then be said that deletion
of Part III necessitates change in Art. 226 also, and therefore in such a case ratification is
necessary, even though Parliament may not have in fact provided for amendment of
Art. 226.
130. Take another example. Article 54 is an entrenched Article and provides for the
election of the President. So is Art. 55 which provides for the manner of election.
Article 52 which lays down that there shall be a President is on the other hand not an
entrenched Article. It is said that Art. 52 may be altered and something else may be
substituted in its place and that would not require ratification in terms as Art. 52 is not
among the entrenched Articles. But we are of opinion that if Parliament amends Art. 52, it
is bound to make consequential amendments in Arts. 54 and 55 which deal with the
election of the President and the manner thereof and if it is so the entire amendment must
be submitted for ratification. But suppose Parliament merely amends Art. 52 and makes no
change in Arts. 54 and 55 (a supposition which is impossible to visualise). In that case it
would in our opinion be right to hold that Art. 52 could not be altered by abolition of the
office of the President without necessitating a change in Arts. 54 and 55 and in such a case
if Art. 52 alone is altered by Parliament, to abolish the office of President, it will require
ratification.
131. These two examples will show where alteration or deletion of an unentrenched Article
would necessitate amendment of an entrenched Article, and in such a case if Parliament
takes the incredible course of amending only the unentrenched Article and not amending
the entrenched Article, courts can say that ratification is necessary even for amending the
unentrenched Article, for it directly necessitates a change in an entrenched Article. But
short of that we are of opinion that merely because there is some effect indirectly on an

entrenched Article by amendment of an unentrenched Article it is not necessary that there

should be ratification in such circumstances also.
132. Besides, let us consider what would happen if the argument on behalf of the
petitioners is accepted that ratification necessary whenever there is even indirect effect on
an entrenched Article by amending an unentrenched Article. Take the case of
Art. 226 itself. It gives power to the High Court not only to issue writs for the enforcement
of fundamental rights but to issue them for any other purpose. Writs have thus been issued
by High Courts for enforcing other rights conferred by ordinary laws as well as under other
provisions of the Constitution, like Arts. 301 and 311. On this argument if any change is
made in Arts. 301 and311 there is bound to be an effect on Art. 226 and therefore
ratification would be necessary, even though both Arts. 301 and 311 are not entrenched in
the proviso. Further, take an ordinary law which confers certain rights and it is amended
and those rights are taken away. Article 226 would be clearly affected. Before the
amendment those rights may be enforced through Art. 226 while after the amendment the
rights having disappeared there can be no enforcement thereof. Therefore, on this argument
even if there is amendment of ordinary law there would be an effect on Art. 226 and it must
therefore be amended every time even when ordinary law is changed and the entire
procedure under Art. 368 must be gone through including ratification under the proviso. It
is however said that when ordinary law is amended, rights disappear and therefore there is
no question of enforcement thereof; if that is correct with respect to ordinary law, it is in
our opinion equally correct with respect to the amendment of an unentrenched provision of
the Constitution. The answer given in Sankari Prasad's case ([1952] S.C.R. 89), to this
argument was that Art. 226 remained just the same as it was before, and only a certain class
of cases had been excluded from the purview of Part III and the courts could no longer
interfere, not because their powers were curtailed in any manner or to any extent, but
because there would be no occasion thereafter for the exercise of their power in such cases.
We respectfully agree with these observations and are of opinion that merely because there
is some indirect effect on Art. 226 it was not necessary that the Seventeenth Amendment
should have been ratified by more than one half of the States. It is only in the extreme case,
the examples of which we have given above, that an amendment of an unentrenched
Article without amendment of entrenched Article might be had for want of ratification, and
this is what was intended by the majority judgment in Sajjan Singh's
case MANU/SC/0052/1964
: [1965]1SCR933 , when it applied the doctrine of

pith and substance in these circumstances. The argument that ratification is necessary as
Art. 226 is indirectly affected has therefore no force and must be rejected. This is equally
true with respect to the power of this Court under Arts. 132 and 136.
133. Then it is urged that Art. 245 is enlarged by the Seventeenth Amendment inasmuch as
State legislatures and Parliament were freed from the control of Part III in the matter of

certain laws affecting, for example, ryotwari lands, and therefore as Art. 245 is an
entrenched Article there should have been ratification under the proviso. The argument in
our opinion is of the same type as the argument with respect to the effect on Art. 226 and
our answer is the same, namely, that there is no direct effect on Art. 245 by the amendment
and the indirect effect, if any, does not require that there should have been ratification in
the present case.
134. It is then urged that ratification is necessary as Art. 31-B deals with State legislation
and in any case Parliament cannot make any law with respect to Acts which were put in the
Ninth Schedule and therefore Parliament could not amend the Constitution in the manner
in which it was done by making additions in the Ninth Schedule, both for want of
ratification and for want of legislative competence. The answer to this argument was given
in Sankari Prasad's caseMANU/SC/0013/1951
: [1952]1SCR89 , and it was

observed there that "Article 31-A and 31-B really seek to save a certain class of laws and certain specified laws
already passed from the combined operation of Art. 13 read with other relevant Articles of
Part III. The new Articles being thus essentially amendments of the Constitution, Parliament
had the power of enacting them. That laws thus saved relate to matters covered by List II
does not in any way affect the position. It was said that Parliament could not validate a law
which it had no power to enact. The proposition holds good where the validity of the
impugned provision turns on whether the subject-matter, falls within or without the
jurisdiction of the legislature which passed it. But to make a law which contravenes the
Constitution, constitutionally valid is a matter of constitutional amendment and as such it
falls within the exclusive power of Parliament".
135. We respectfully agree with these observations. They succinctly put the legal and
constitutional position with respect to the validity of Arts. 31-A and 31-B. It seems to us
that Art. 31-B in particular is a legislative drafting device which compendiously puts in one
place amendments which would otherwise have been added to the Constitution under
various Articles in Part III. The laws in the Ninth Schedule have by the device of Art. 31B been excepted from the various provisions in Part III, which affected them and this
exception could only be made by Parliament. The infirmity in the Acts put in the Ninth
Schedule was apprehended to be a constitutional infirmity on the ground that those laws
might take away or abridge rights conferred by Part III. Such a constitutional infirmity
could not be cured by State legislatures in any way and could only be cured by Parliament
by constitutional amendment. What Parliament in fact did by including various Acts in the
Ninth Schedule read with Art. 31-B was to amend the various provisions in Part III, which
affected these Acts by making them an exception to those provisions in Part III. This could
only be done by Parliament under the constituent power it had under Art. 368 and there

was no question of the application of the proviso in such a case, for Parliament was
amending Part III only with respect to these laws. The laws had already been passed by
State legislatures and it was their constitutional infirmity, if any, which was being cured by
the device adopted in Art. 31-B read with the Ninth Schedule, the amendment being only
of the relevant provisions of Part III which was compendiously put in one place in Art. 31B. Parliament could alone do it under Art. 368 and there was no necessity for any
ratification under the proviso, for amendment of Part III is not entrenched in the proviso.
136. Nor is there any force in the argument that Parliament could not validate those laws by
curing the constitutional infirmity because they dealt with land which is in List II of the
Seventh Schedule to the Constitution over which State Legislatures have exclusive
legislative power. The laws had already been passed by State legislatures under their
exclusive powers; what has been done by the Seventeenth Amendment is to cure the
constitutional infirmity, if any, in these laws in relation to Part III. That could only be done
by Parliament and in so doing Parliament was not encroaching on the exclusive legislative
power of the State. The States had already passed the laws and all that was done by the
Seventeenth Amendment was to cure any constitutional infirmity in the laws by including
them in the Ninth Schedule read with Art. 31-B. We must therefore reject the argument that
the Seventeenth Amendment required ratification because laws put in the Ninth Schedule
were State laws. We must equally reject the argument that as these laws dealt with land,
which in the exclusive legislative power of State legislature. Parliament could not cure the
constitutional infirmity, if any, in these laws by putting them in the Ninth Schedule.
137. We now come to what may be called the argument of fear. It is urged that if
Art. 368 confers complete power to amend each and every provision of the Constitution as we have held that it does - frightful consequences will follow on such an interpretation.
If Parliament is clothed with such a power to amend the Constitution it may proceed to do
away with fundamental rights altogether, it may abolish elected legislatures, it may change
the present form of Government, it may do away with the federal structure and create a
unitary state instead, and so on. It is therefore argued that we should give a limited
interpretation to the power of amendment contained in Art. 368, as otherwise we shall be
giving power to Parliament to destroy the Constitution itself.
138. This argument is really a political argument and cannot be taken into account in
interpreting Art. 368 when its meaning to our mind is clear. But as the argument was urged
with a good deal of force on behalf of the petitioners and was met with equal force on
behalf of the Union and the States, we propose to deal with it briefly. Now, if this argument
means that Parliament may abuse its power of amendment conferred by Art. 368, all that
need be said in reply is that mere possibility of abuse cannot result in courts withholding
the power if the Constitution grants it. It is well-settled so far as ordinary laws are
concerned that mere possibility of abuse will not induce courts to hold that the power is not
there, if the law is valid and its terms clearly confer the power. The same principle in our

opinion applies to the Constitution. If the Constitution gives a certain power and its terms
are clear, there is no reason why that power should be withheld simply because of
possibility of abuse. If we may say so, possibility of abuse of any power granted to any
authority is always there; and if possibility of abuse is a reason for withholding the power,
no power whatever can ever be conferred on any authority, be it executive, legislative or
even judicial. Therefore, the so-called fear of frightful consequences, which has been urged
on behalf of the petitioners (if we hold, as we do, that the power to amend the Constitution
is unfettered by any implied limitations), is no ground for withholding the power, for we
have no reason to suppose that Parliament on whom such power is conferred will abuse it.
Further even if it abuses the power of constitutional amendment under Art. 368 the check
in such circumstances is not in courts but is in the people who elect members of
Parliament. The argument for giving a limited meaning to Art. 368 because of possibility of
abuse must therefore be rejected.
139. The other aspect of this argument of fear is that we should not make the Constitution
too flexible so that it may be open to the requisite majority with the requisite ratification to
make changes too frequently in the Constitution. It is said that the Constitution is an
organic document for the governance of the country and it is expected to endure and give
stability to the institution which it provides. That is undoubtedly so and this is very true of
a written federal Constitution. But a perusal of various Constitutions of the world shows
that there are usually provisions for amendment of the Constitution in the Constitution
itself. This power to amend a Constitution may be rigid or flexible in varying degrees.
Jurists have felt that where the power to amend the Constitution is made too rigid and the
people outgrow a particular Constitution and feel that it should be amended but cannot do
so because of the rigidity of the Constitution, they break the Constitution, and this breaking
is more often than not by violent revolution. It is admitted by even those writers on the
United States Constitution who are of the view that there are certain basic features which
cannot be amended and who would thus make the U.S. Constitution even more rigid than it
is, that howsoever rigid the Constitution may be its rigidity will not stop the people from
breaking it if they have outgrown it and this breaking is, generally speaking, by violent
revolution. So, making our Constitution rigid by putting the interpretation which the
petitioners want us to put on it will not stop the frightfulness which is conjured up before
us on behalf of the petitioners. If any thing, an interpretation which will make our
Constitution rigid in the manner in which the petitioner want the amending power in
Art. 368 to be interpreted will make a violent revolution, followed by frightfulness of
which the petitioners are afraid, a nearer possibility than an interpretation which will make
it flexible.
140. It is clear that our Constitution-makers wanted to avoid making the Constitution too
rigid. It is equally clear that they did not want to make an amendment of the Constitution
too easy. They preferred an intermediate course which would make the Constitution
flexible and would still not allow it to be amended too easily. That is why Art. 368 provides

for special majorities of the two Houses for the purpose of amendment of the Constitution.
Besides it also provides for ratification by more than half the States in case of entrenched
provisions in the proviso. Subject to these limitations, the Constitution has been made
moderately flexible to allow any change when the people feel that change is necessary. The
necessity for special majorities in each House separately and the necessity for ratification
by more than half the States in certain cases appear to us to be sufficient safeguards to
prevent too easy change in the Constitution without making it too rigid. But it is said that in
the last sixteen years, a large number of amendments have been made to the Constitution
and that shows that the power to amend is much too easy and should be restricted by
judicial interpretation. Now, judicial interpretation cannot restrict the power on the basis of
a political argument. It has to interpret the Constitution as it finds it on the basis of wellknown canons of construction and on the terms of Art. 368 in particular. If on those terms it
is clear - as we think it is - that power to amend is subject to no limitations except those to
be expressly found in the Constitution, courts must give effect to that. The fact that in the
last sixteen years a large number of amendments could be made and have been made is in
our opinion due to the accident that one party has been returned by electors in sufficient
strength to be able to command the special majorities which are required under Art. 368,
not only at the center but also in all the States. It is because of this circumstance that we
have had so many amendments in the course of the last sixteen years. But that in our
opinion is no ground for limiting the clear words of Art. 368.
141. The power of amendment contained in a written federal Constitution is a safety valve
which to a large extent provides for stable growth and makes violent revolution more or
less unnecessary. It has been said by text-book writers that the power of amendment,
though it allows for change, also makes a Constitution long-lived and stable and serves the
needs of the people from time to time. If this power to amend is made too rigid it loses its
value as a safety valve. The more rigid a Constitution the more likely it is that people will
outgrow it and throw it over-board violently. On the other hand, if the Constitution is
flexible (though it may not be made too easy to modify it) the power of amendment
provides for stability of the Constitution itself and for ordered progress of the nation. If
therefore there had to be a choice between giving an interpretation to Art. 368 which would
make our Constitution rigid and giving an interpretation which would make it flexible, we
would prefer to make it flexible, so that it may endure for a long period of time and may, if
necessary, be amended from time to time in accordance with the progress in the ideas of the
people for whom it is meant. But we feel that it is not necessary to go to this extent, for that
would be entering into the field of politics. As we see the terms of Art. 368, we are clearly
of opinion that the Constitution-makers wanted to make our Constitution reasonably
flexible and that the interpretation that we have given to Art. 368 is in consonance with the
terms thereof and the intention of those who made it. We therefore reject the argument of
fear altogether.

142. This brings us to the argument of stare decisis raised on behalf of the Union of India
and the States. The argument is put thus. After the decision of the Patna High Court
invalidating the Bihar Land Reforms Act, 1950, Parliament passed the First Amendment to
the Constitution. That Amendment was challenged in this Court by a number of writ
petitions and was upheld in Sankari Prasad's case MANU/SC/0013/1951
:

[1952]1SCR89 , in 1951. That case practically stood unchallenged till Sajjan Singh's
case MANU/SC/0052/1964
: [1965]1SCR933 , in 1964 after the Seventeenth

Amendment was passed. Thus in the course of these fifteen years or so a large number of
State Acts were passed on the basis of the First Amendment by which in particular
Arts. 31-A and 31-B were introduced in the Constitution. It is said that though Sankari
Prasad's case MANU/SC/0013/1951
: [1952]1SCR89 , has stood for less than 15

years there have been so many laws dealing with agrarian reforms passed on the basis of
the First Amendment which was upheld by this Court that the short period for which that
case has stood should not stand in the way of this Court acting on the principle of stare
decisis. The reason for this is that an agrarian revolution has taken place all over the
country after the First Amendment by State laws passed on the faith of the decision of this
Court in Sankari Prasad's case MANU/SC/0013/1951
: [1952]1SCR89 . This

agrarian revolution has led to millions of acres of land having changed hands and millions
of new titles having been created. So it is urged that the unanimous decision in Sankari
Prasad's case MANU/SC/0013/1951
: [1952]1SCR89 , which was challenged

when the Seventeenth Amendment was passed and was upheld by majority in Sajjan
Singh's case MANU/SC/0052/1964
: [1965]1SCR933 , should not now be

disturbed as its disturbance would create chaos in the country, particularly in the agrarian
sector which constitutes the vast majority of the population in this country.
143. We are of opinion that there is force in this argument. Though the period for which
Sankari Prasad's case MANU/SC/0013/1951
: [1952]1SCR89 , has stood

unchallenged is not long, the effects which have followed in the passing of State laws on

the faith of that decision, are so overwhelming that we should not disturb the decision in
that case. It is not disputed that millions of acres of land have changed hands and millions
of new titles in agricultural lands have been created and the State laws dealing with
agricultural lands have been passed in the course of the last fifteen years after the decision
in Sankari Prasad's caseMANU/SC/0013/1951
: [1952]1SCR89 , have brought

about an agrarian revolution. Agricultural population constitutes a vast majority of the

population in this country. In these circumstances it would in our opinion be wrong to hold
now that Sankari Prasad's case MANU/SC/0013/1951
: [1952]1SCR89 , was not

correctly decided and thus disturb all that has been done during the last fifteen years and
create chaos into the lives of millions of our countrymen who have benefited by these laws
relating to agrarian reforms. We would in the circumstances accept the argument on behalf
of the Union of India and the States that this is the fittest possible case in which the
principle of stare decisis should be applied. On this basis also, apart from our vies that
Sankari Prasad's caseMANU/SC/0013/1951
: [1952]1SCR89 , was in fact rightly

decided, we would not interfere with that decision now.

144. But it is urged that instead of following the principle of stare decisis which would
make the decision in Sankari Prasad's case MANU/SC/0013/1951
:

[1952]1SCR89 , good for all times, we should follow the doctrine of prospective overruling, which has been evolved by some United States courts so that everything that has
been done up to now, including the Seventeenth Amendment would be held good but in
future it would not be open to Parliament to amend Part III by taking away or abridging
any of the rights conferred thereby and, if the argument as to implied limitations on the
power to amend is accepted, further limit the power of Parliament to amend what may be
called basic features of the Constitution. We must say that we are not prepared to accept the
doctrine of prospective over-ruling. We do not know whether this doctrine which it is urged
should be applied to constitutional amendment would also be applied to amendments of
ordinary laws. We find it difficult to visualise what would be the effect of this doctrine if it
is applied to amendment of ordinary laws. We have so far been following in this country
the well-known doctrine that courts declare law and that a declaration made by a court is
the law of the land and takes effect from the date the law came into force. We would on
principle be loath to change that well-known doctrine and supersede it by the doctrine of
prospective over-ruling. Further it seems to us that in view of the provisions of Art. 13(2) it
would be impossible to apply the doctrine of prospective over-ruling in our country,

particularly where a law infringes fundamental rights. Article 13(2) lays down that all laws
taking away or abridging fundamental rights would be void to the extent of contravention.
It has been held by this Court in Deep Chand v. The State of Uttar Pradesh [1959] Supp. 2
S.C.R. 8, that a law made after the Constitution came into force which infringes
fundamental rights is a still-born law and that the prohibition contained in Art. 13(2) went
to the root of the State power of legislation and any law made in contravention of that
provision was void ab initio. This case has been followed in Mehendra Lal Jaini v. The
State of Uttar Pradesh MANU/SC/0083/1962
: [1963] 1 S.C.R. 912. In the face of

these decisions it is impossible to apply the principle of prospective over-ruling in this

country so far as ordinary laws are concerned. Further, if the word "law" in
Art. 13(2) includes an amendment of the Constitution, the same principle will apply, for
that amendment would be still-born if it infringes any fundamental rights contained in Part
III. In these circumstances, it would be impossible to apply the principle of prospective
over-ruling to constitutional amendments also. On the other hand, the word "law" in
Art. 13(2) does not include an amendment of the Constitution, then there is no necessity of
applying the principle of prospective over-ruling, for in that case unless some limitations
on the power of amendment of the Constitution are implied the amendment under
Art. 368 would not be liable to be tested under Art. 13(2). We are therefore unable to apply
the doctrine of prospective over-ruling in the circumstances. Further as we are of opinion
that this is the fittest possible case in which the principle of stare decisis applies, we must
uphold Sankari Prasad's case MANU/SC/0013/1951
: [1952]1SCR89 , for this

reason also.
145. Lastly we would refer to the following observations in Sajjan Singh's
case MANU/SC/0052/1964
: [1965]1SCR933 , with respect to over-ruling earlier

judgments of this Court and specially those which are unanimous, like Sankari Prasad's
case MANU/SC/0013/1951
: [1952]1SCR89 :-

"It is true that the Constitution does not place any restriction on our powers to
review our earlier decisions or even to depart from them and there can be no doubt
that in matters relating to the decision of constitutional points which have a
significant impact on the fundamental rights of citizens, we would be prepared to
review our earlier decisions in the interest of public good.......... Even so, the
normal principle that "judgments pronounced by this Court would be final, cannot

be ignored and unless considerations of a substantial and compelling character

make it necessary to do so, we should be slow to doubt the correctness of previous
decisions or to depart from them.
"It is universally recognised that in regard to a large number of constitutional
problems which are brought before this Court for its decision, complex and
difficult questions arise and on many of such questions two views are possible.
Therefore, if one view has been taken by this Court after mature deliberation, the
fact that another Bench is inclined to take a different view may not justify the Court
in reconsidering the earlier decision or in departing from it...................... Even so,
the Court should be reluctant to accede to the suggestion that its earlier decisions
should be light-heartedly reviewed and departed from. In such a case the test
should be : is it absolutely necessary and essential that the question already decided
should be reopened ? The answer to this question would depend on the nature of
the infirmity alleged in the earlier decision, its impact on public good, and the
validity and compelling character of the considerations urged in support of the
contrary view. If the said decision has been followed in a large number of cases,
that again is a factor which must be taken into account".
146. A similar view was taken in the Keshav Mills Company Limited v. Commissioner of
Income-tax MANU/SC/0102/1965
: [1965]56ITR365(SC) , where it was observed

that "...........before a previous decision is pronounced to be plainly erroneous, the Court must be
satisfied with a fair amount of unanimity amongst its members that a revision of the said view
is fully justified".
147. These principles were applied in Sajjan Singh's case MANU/SC/0052/1964

[1965]1SCR933 and it was observed that if Sankari Prasad's caseMANU/SC/0013/1951

: [1952]1SCR89 , were to be overruled, "it would lead to the inevitable

consequence that the amendments made in the Constitution both in 1951 and 1955 would
be rendered invalid and a large number of decisions dealing with the validity of the Acts
included in the Ninth Schedule which have been pronounced by different High Courts ever

since the decision of this Court in Sankari Prasad's case MANU/SC/0013/1951

[1952]1SCR89 , was declared, would also be exposed to serious jeopardy".

148. The majority in that case therefore was not in favour of reviewing Sankari Prasad's
case MANU/SC/0013/1951
: [1952]1SCR89 , even so in view of the argument

raised and the importance of the question it considered the arguments against that decision
and came to the conclusion itself that case was rightly decided. We may add that besides so
many cases in the High Courts there have been a large number of cases in this Court to
which it is unnecessary to refer where on the faith of various amendments made in the
Constitution, particularly the First, the Fourth and the Sixteenth, amending fundamental
rights, this Court has upheld the validity of various Acts on the basis of these amendments.
Further we would be very reluctant to over-rule the unanimous decision in Sankari Prasad's
case MANU/SC/0013/1951
: [1952]1SCR89 , or any other unanimous decision by

the slender majority of one in a larger Bench constituted for the purpose. We say this with
great respect and would hold that apart from the principle of stare decisis we should not say
that the unanimous judgment in Sankari Prasad's case MANU/SC/0013/1951
:

[1952]1SCR89 , was wrongly decided by such a slender majority in this Special Bench.
149. We therefore hold that Sankari Prasad's case MANU/SC/0013/1951

[1952]1SCR89 , was correctly decided and that the majority in Sajjan Singh's
caseMANU/SC/0052/1964
: [1965]1SCR933 , was correct in following that

decision. We would follow the decision in Sankari Prasad's case MANU/SC/0013/1951

: [1952]1SCR89 , even now as in our opinion it was correctly decided. Following

that decision we hold that the Seventeenth Amendment is good.

150. In view of this decision it is unnecessary to refer to other arguments raised with
respect to the two petitions challenging the Mysore Land Reforms Act.

151. In our view therefore all the three petitions should fail and we would dismiss them. In
the circumstances we would pass no order as to costs.
Hidayatullah, J.
152. In these three writ petitions, the facts of which appear in the two judgments just
delivered, the validity of the Punjab Security of Land Tenures Act, 1953 and the Mysore
Land Reforms Act, 1953, is principally involved. Since these Acts are protected by the
Constitution (Seventeenth Amendment) Act, 1964, the validity of the constitutional
amendment is also questioned. Therefore, a much larger field must be traversed because of
the claim of the State that no part of the Constitution from the Preamble to the Ninth
Schedule, is beyond the provision for amendment contained in Art. 368. The article forms
the Twentieth Part of the Constitution and is said to be a code by itself in which reposes a
sovereign power, transcending anything elsewhere in the Constitution. The State submits
that (except as stated in the article) there are no limitations on the amending power and
denies that there are any implied restrictions. It claims, therefore, that an amendment of the
Constitution or of any of its part can never be a justiciable issue if the procedure for
amendment has been duly followed. In this claim no exception is made - the Preamble, the
Fundamental Rights, the guaranteed remedy to uphold them all of them severally and
together are said to be capable of being partially or wholly abrogated by an amendment.
Looked at from this point of view the Seventeenth Amendment Act not only must be valid
but also beyond the power of the courts to question. The petitioners, on the other hand,
contend that this is to deny the real importance and inviolability of the Fundamental Rights
which the Constitution itself, through certain articles, has made paramount even to
Art. 368. It is these questions which fall for consideration, before we can decide whether
the two State Acts are valid or not.
153. The same questions were before this Court on two earlier occasions. They arose for
the first time immediately after the Constitution (First Amendment) Act, 1951 was adopted
and became the subject of a decision of this Court reported in Sri Sankari Prasad Singh
Deo v. Union of India MANU/SC/0013/1951
: [1952]1SCR89 . There Patanjali

Sastri J. speaking for Harilal Kania C.J., Mukherjea. Das and Chandrasekhara Aiyar, JJ.
and himself upholds the First Amendment on the grounds that the power conferred by Part
XX is constituent, paramount and sovereign and is, therefore, not subject to
Art. 13(2) which prohibits the making of ordinary laws tending to abridge or take away
Fundamental Rights. The questions were again before the Court in Sajjan Singh v. State of
Rajasthan MANU/SC/0052/1964
: [1965]1SCR933 , when the Seventeenth

Amendment was impugned. The authority of Sankari Prasad's case MANU/SC/0013/1951

: [1952]1SCR89 , was the mainstay of the argument in support of the validity of

the new amendment. This time the Court was not unanimous although the Court as a whole
did not strike down the Act. Three opinions were delivered : by Gajendragadkar, C.J. on
behalf of Wanchoo and Raghubar Dayal, JJ. and himself, by Mudholkar, J. and by me. I
found the reasoning in Sankari Prasad's case MANU/SC/0013/1951
:

[1952]1SCR89 , to be unacceptable, although for reasons which I shall give, I refrained

from expressing a final opinion. Mudholkar, J. in his opinion supported me with additional
and forceful reasons but he also did not express himself finally on the broader question. I
closed my opinion with the following observations :"I would require stronger reasons than those given in Sankari Prasad's
case MANU/SC/0013/1951
: [1952]1SCR89 , to make me accept the view

that Fundamental Rights were not really fundamental but were intended to be
within the powers of amendment in common with the other parts of the
Constitution and without the concurrence of the States. No doubt Art. 19 by clauses
numbered 2 to 6 allows a curtailment of rights in the public interest. This shows
that Part III is not static. It visualises changes and progress but at the same time it
preserves the individual rights. There is hardly any measure of reform which
cannot be introduced reasonably, the guarantee of individual liberty
notwithstanding. Even the agrarian reforms could have been partly carried out
without Article 31-Aand 31-B but they would have cost more to the public
exchequer. The rights of society are made paramount and they are placed above
those of the individual.
This is as it should be. But restricting the Fundamental Rights by resort to cls. 2 to
6 of Art. 19 is one thing and removing the rights from the Constitution or
debilitating them by an amendment is quite another. This is the implication of
Sankari Prasad's caseMANU/SC/0013/1951
: [1952]1SCR89 . It is true

that such things would never be, but one is concerned to know if such a doing
would be possible".
......
......

"The Constitution gives so many assurances in Part III that it would be difficult to
think that they were the playthings of a special majority. To hold this would mean
prima facie that the most solemn parts of our Constitution stand on the same
footing as any other provision and even on a less firm ground than one on which
the articles mentioned in the proviso stand. The anomaly that Art. 226should be
somewhat protected but not Art. 32 must give us pause. Article 32 does not erect a
shield against private conduct but against state conduct including the legislatures
(See Art. 12). Can the legislature take away this shield ? Perhaps by adopting a
liberal construction of Art. 368 one can say that. But I am not inclined to play a
grammarian's role. As at present advised I can only say that the power to make
amendments ought not ordinarily to be a means of escape from absolute
constitutional restrictions".
154. My opposition (lest one misunderstands its veridical character) appears to be cautious
and even timid but this was because it was attended by an uneasy feeling that I might have
missed some immanent truth beyond what was said in Sankari Prasad's
case MANU/SC/0013/1951
: [1952]1SCR89 . The arguments then were extremely

brief. After hearing full arguments in this case, which have not added to the reasoning of
the earlier cases, I am not satisfied that the reasons are cogent enough for me to accept
them. I say it with respect that I felt then, as I do so even more strongly now, that in the two
earlier cases, the result was reached by a mechanical jurisprudence in which harmonious
construction was taken to mean that unless Art. 368 itself made an exception the existence
of any other provision indicative of an implied limitation on the amending power, could not
be considered. This was really to refuse to consider any argument which did not square
with the a priori view of the omnicompetence of Art. 368. Such reasoning appears to me to
be a kind of doctrinaire conceptualism based on an arid textual approach supplemented by
one concept that an amendment of the Constitution is not an exercise of legislative power
but of constituent power and, therefore, an amendment of the Constitution is not law at all
as contemplated by Art. 13(2). I am reminded of the words of Justice Holmes that "we
must think things and not words". The true principle is that if there are two provisions in
the Constitution which seem to be hostile, juridical hermeneutics requires the Court to
interpret them by combining them and not by destroying one with the aid of the other. No
part in a Constitution is superior to another part unless the Constitution itself says so and
there is no accession of strength to any provision by calling it a code. Portalis, the great
French Jurist (who helped in the making of the Code Napoleon) supplied the correct
principle when he said that it is the context of the legal provisions which serves to illustrate
the meaning of the different parts, so that among them and between them there should be
correspondence and harmony.

155. We have two provisions to reconcile. Article 368 which says that the Constitution may
be amended by following this and this procedure, and Art. 13(2) which says, the State shall
not make any law which takes away or abridges the rights conferred by Part III and that
any law made in contravention of the clause shall, to the extent of the contravention, be
void. The question, therefore, is : does this create any limitation upon the amending process
? On the answer to this question depends the solution of all the problems in this case.
156. It is an error to view our Constitution as if it were a mere organisational document by
which the people established the structure and the mechanism of their Government. Our
Constitution is intended to be much more because it aims at being a social document in
which the relationship of society to the individual and of Government to both and the rights
of the minorities and the backward classes are clearly laid down. This social document is
headed by a Preamble (PREAMBLE -WF, THE PEOPLE OF INDIA, having solemnly
resolved to constitute India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure
all its citizens; JUSTICE, social, economical and political; LIBERTY of thought,
expression, belief, faith and worship; EQUALITY of status and of opportunity; and to
promote among them all; FRATERNITY assuring the dignity of the individual and the
unity of Nation: IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of
November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS
CONSTITUTION."), which epitomizes the principles on which the Government is
intended to function and these principles are later expanded into Fundamental Rights in
Part III and the Directive Principles of Policy in Part IV. The former are protected but the
latter are not. The former represent the limits of State action and the latter are the
obligations and the duties of the Government as a good and social Government.
157. Why was it necessary to have the Fundamental Rights at all and make them justiciable
? As we seem to be forgetting our own history so soon let me say that the answer lies there.
The Nationalist Movement and the birth of the Indian National Congress in 1885 were the
direct result of the discriminatory treatment of the Indians in their own country. The
demand for the guarantee of Fundamental Rights had unfortunately to be made then to a
foreign rule and it appeared in the Constitution of India Bill framed by the Indian National
Congress ten years later. All that is valuable to an Individual in civilized society, including
free speech, imprisonment only by a competent authority, free state education, etc. were
claimed therein. Resolutions of the Congress since then reiterated this demand and the
securing of Fundamental Rights in any future Constitution became one of the articles of
faith. To cut the narration short, the main steps may only be mentioned. Mrs. Besant's
Commonwealth of India Bill 1925 with its seven fundamental rights (the precursor of
Art. 19), the Madras Congress Resolution of 1927 - "a constitution on the basis of
declaration of rights" - the Nehru Report - "it is obvious that our first care should be to
have the Fundamental Rights guaranteed in a manner which will not permit their
withdrawal in any circumstances" - the draft article in the Nehru Constitution - "No person
shall be deprived of his liberty, nor shall his dwelling or property be entered, requisitioned

or confiscated save in accordance with law" - the Independence Resolution of 26th January,
1930 - "We believe that it is the inalienable right of the Indian people, as of any other
people, to have freedom and to enjoy the fruits of their toil and have the necessities of life,
so that they may have full opportunities of growth" - the Karachi Resolution on
Fundamental Rights, Economic and Social Change (1931), the Sapru Report (1945) which
for the first time distinguished between justiciable and non-justiciable rights, the
suggestion of the Cabinet Mission for the constitution of an Advisory Committee on
Fundamental and Minority Rights, and, lastly the Committee on Fundamental Rights of the
Constituent Assembly, are just a few of the steps to be remembered. The Fundamental
Rights and the Directive Principles were the result.
158. Fundamental laws are needed to make a Government of laws and not of men and the
Directive Principles are needed to lay down the objectives of a good Government. Our
Constitution was not "the cause but the result of political and personal freedom". Since
Dicey had said that "the proclamation in a Constitution or Charter of the right to personal
freedom, or indeed of any other right, gives of itself but slight security that the right has
more than a nominal existence", (Dicey : "Law of the Constitution" 10th Edn. p.207)
provision had to be made for guaranteeing them and to make them justiciable and
enforceable. This result is reached by means of Arts. 12, 13, 32, 136, 141, 144 and 226.
The High Courts and finally this Court have been made the Judges of whether any
legislative or executive action on the part of the State considered as comprehensively as is
possible, offends the Fundamental Rights and Art. 13(2) declares that legislation which so
offends is to be deemed to be void. It is thus that Parliament cannot today abridge or take
away a single Fundamental Right even by a unanimous vote in both the Chambers. But on
the argument of the State it has only to change the title of the same Act to an Amendment
of the Constitution Act and then a majority of the total strength and a 2/3rds majority of the
members present and voting in each House may remove not only any of the Fundamental
Rights but the whole Chapter giving them. And this is said to be possible because of
Art. 368 and its general language which, it is claimed, makes no exception in its text and,
therefore, no exception can be implied. It is obvious that if an Act amending the
Constitution is treated as a law it must also be subject to the provisions of Art. 13(2). Since
the definition of the word 'law', makes no exception a strenuous effort is made on the basis
of argument and authority to establish that a constituent power does not result in a law in
the ordinary sense. Distinction is thus made between laws made ordinarily that is to say,
from day to day by ordinary majority and laws made occasionally for the amendment of
the Constitution by a slightly enhanced majority. In our Constitution this distinction is not
valid in the eye of Art. 13(2).
159. It is not essential, of course, that a difference must always exist in the procedure for
the exercise of constituent and ordinary legislative power. One has not to go far to find the
example of a country in which constitutional law as such may be made by the same agency

which makes ordinary laws. The most outstanding example is that of England about which
de Tocqueville observed :"
"the Parliament has an acknowledged right to modify the Constitution; as, therefore, the
Constitution may undergo perpetual changes, it does not in reality exist; the Parliament is at
once a legislative and a constituent assembly :" (Introduction to the Study of Law of the
Constitution by A. V. Dicey, Tenth Edn. p. 88 quoting from O'Euvres completes (14th ed.,
1864) Vol. I (Democratie en Amerique), pp. 166, 167).
160. Of course, the dictum of de Tocqueville that the English Constitution "elle n'existe
point" (it does not exist) is far from accurate. There is a vast body of constitutional laws in
England which is written and statutory but it is not all found in one place and arranged as a
written Constitution usually is. The Act of Settlement (1701), the Act of Union with
Scotland (1707), the Act of Union with Ireland (1800), the Parliament Act (1911), the
Representation of the Peoples Acts of 1832, 1867, 1884, 1918, 1928 and 1948, the Ballot
Act (1872), the Judicature Acts 1873, 1875 and 1925, the Incitement to Disaffection Act
(1934), His Majesty's Declaration of Abdication Act (1936), the Regency Act (1937) and
the various Acts setting up different ministries are examples of what will pass for
constitutional law under our system (The list is taken from K. C. Wheare's : The Statute of
Westminster and Dominion Status" (4th Edn) p. 8. Dicey and others give different list). The
Bill of Rights (1689) lays down the fundamental rule in England that taxation may not be
levied without the consent of Parliament which in our Constitution has its counterpart in
Art. 265. In our Constitution also the laws relating to delimitation of constituencies or
allotment of seats to such constituencies made or purporting to be made under Art. 327 or
Art. 328, by reason of the exclusion of the powers of the courts to question them, are
rendered constitutional instruments. Other examples of constitutions which, in addition to
constitution proper, contain certain ordinary legislation having constitutional qualities, also
exist. (See constitutions of Austria, Honduras, Nicaragua, Peru, Spain and Sweden among
others. The Constitution of Spain in particular is in several Instruments. The Constitution
of Austria (Art. 149) makes special mention of these constitutional instruments).
161. What then is the real distinction between ordinary law and the law made in the
exercise of constituent power ? I would say under the scheme of our Constitution none at
all. This distinction has been attempted to be worked out by several authors. It is not
necessary to quote them. Taking the results obtained by Willoughby (Tagore Law Lectures
(1924) p. 83) it may be said that the fact that a Constitution is written as a Constitution is
no distinction because in Britain constitutional law is of both kinds and both parts co-exist.
The test that the Constitution requires a different kind of procedure for amendment, also
fails because in Britain Parliament by a simple majority makes laws and also amends
constitutional statutes. In our Constitution too, in spite of the claim that Art. 368 is a code
(whatever is meant by the word "code" here), Arts. 4, 11 and 169 show that the amendment
of the Constitution can be by the ordinary law making procedure. By this method one of

the legislative limbs in a State can be removed or created. This destroys at one stroke the
claim that Art. 368 is a code and also that any special method of amendment of the
Constitution is fundamentally necessary.
162. The next test that the courts must apply the Constitution in preference to the ordinary
law may also be rejected on the analogy of the British practice. There, every statute has
equal standing. Therefore, the only difference can be said to arise from the fact that
constitutional laws are generally amendable under a process which in varying degrees, is
more difficult or elaborate. This may give a distinct character to the law of the Constitution
but it does not serve to distinguish it from the other laws of the land for purposes of
Art. 13(2). Another difference is that in the written constitutions the form and power of
Government alone are to be found and not rules of private law as is the case with ordinary
laws. But this is also not an invariable rule. The American Constitution and our
Constitution itself are outstanding examples. There are certain other differences of degree,
such as that ordinary legislation may be tentative or temporary, more detailed or secondary,
while the Constitution is intended to be permanent, general and primary. Because it creates
limitations on the ordinary legislative power, constitutional law in a sense is fundamental
law, but if the legislative and constituent processes can become one, is there any reason
why the result should be regarded as law in the one case and not in the other ? On the
whole, therefore, as observed in the American Jurisprudence "It should be noticed however that a statute and a constitution, though of unequal dignity are
both laws and each rests on the will of the people. . . . . . . ." (American Jurisprudence Vol. 11
Section 3)
163. A Constitution is law which is intended to be for all time and is difficult to change so
that it may not be subject to "impulses of majority" "temporary excitement and popular
caprice or passion". (Amendment is expressly called a legislative process in the
Constitutions of Colombia, Costa Rica, Hungary, Panama and Peru. In Portugal the
ordinary legislatures enjoy constituent powers every 10 years).
164. I agree with the authors cited before us that the power of amendment must be
possessed by the State. I do not take a narrow view of the word "amendment" as including
only minor changes within the general framework. By an amendment new matter may be
added, old matter removed or altered. I also concede that the reason for the amendment of
the Constitution is a political matter although I do not go as far as some Justices of the
Supreme Court of the United States did in Coleman v. Miller 307 U.S. 443 83 L.Ed. 1385,
that the whole process is "political in its entirely from submission until an amendment
becomes part of the Constitution and is not subject to judicial guidance, control or
interference at any point". There are fundamental differences between our Constitution and
the Constitution of the United States of America. Indeed this dictum of the four Justices

based upon the case of Luther v. Borden 7 How. 1 12 L.Ed. 58 has lost some of its force
after Baker v. Carr 369 U.S. 186 7 L.Ed. 2d 633.
165. A Republic must, as says Story (Commentaries on the Constitution of the United
States (1883) 3 686, possess the means for altering and improving the fabric of the
Government so as to promote the happiness and safety of the people. The power is also
needed to disarm opposition and prevent factions over the Constitution. The power,
however, is not intended to be used for experiments or as an escape from restrictions
against undue state action enacted in the Constitution itself. Nor is the power of
amendment available for the purpose of removing express or implied restrictions against
the State.
166. Here I make a difference between Government and State which I shall explain
presently. As Willoughby (Tagore Law Lectures, p. 84), points out constitutional law
ordinarily limits Government but not the State because a constitutional law is the creation
of the State for its own purpose. But there is nothing to prevent the State from limiting
itself. The rights and duties of the individual and the manner in which such rights are to be
exercised and enforced are ordinarily to be found in the laws though some of the
Constitutions also fix them. It is now customary to have such rights guaranteed in the
Constitution. Peaslee, (Constitutions of Nations, Vol. I (2nd Edn.) p.7), writing in 1956
says that about 88% of the national Constitutions contain clauses respecting individual
liberty and fair legal process; 83% respecting freedom of speech and the press; 82%
respecting property right; 80% respecting rights of assembly and association; 80%
respecting rights of conscience and religion; 79% respecting secrecy of correspondence
and inviolability of domicile; 78% respecting education; 73% respecting equality; 64%
respecting right to petition; 56% respecting labour; 51% respecting social security; 47%
respecting rights of movement within, and to and from the nation; 47% respecting health
and motherhood; and 35% respecting the non-retroactivity of laws. In some of the
Constitutions there is an attempt to put a restriction against the State seeking to whittle
down the rights conferred on the individuals. Our Constitution is the most outstanding
example of this restriction which is to be found in Art. 13(2). The State is no doubt legally
supreme but in the supremacy of its powers it may create impediments on its own
sovereignty. Government is always bound by the restrictions created in favour of
Fundamental Rights but the State may or may not be. Amendment may be open to the State
according to the procedure laid down by the Constitution. There is nothing, however, to
prevent the State from placing certain matters outside the amending procedure (In the
Constitution of Honduras, partial amendment only is possible. For a complete amendment
a Constituent Assembly has to be convoked. In the Constitution of Brazil, the Constitution
cannot be amended when there is a state of seige (our emergency). In turkey an amendment
of Article I cannot even be proposed). Examples of this exist in several Constitutions of the
world : see Art. 5 of the American Constitution; Art. 95 of the Constitution of France;
Art. 95 of the Constitution of Finland; Art. 97 of the Constitution of Cambodia; Art. 183 of

the Constitution of Greece Art. 97 of the Japanese Constitution; Art. 139 of the Italian
Constitution, to mention only a few.
167. When this happens the ordinary procedure of amendment ceases to apply. The
unlimited competence (the kompetenz-kompetenz of the Germans) does not flow from the
amendatory process. Amendment can then be by a fresh constituent body. To attempt to do
this otherwise is to attempt a revolution. I do not know why the word "revolution", which I
have used before, should evoke in some persons an image of violence and subversion. The
whole American Constitution was the result of a bloodless revolution and in a sense so was
ours. The adoption of the whole Constitution and the adoption of an amendment to the
Constitution have much in common. An amendment of the Constitution has been aptly
called a Constitution in little and the same question arises whether it is by a legal process
or by revolution. There is no third alternative. An amendment, which repeals the earlier
Constitution, unless legal, is achieved by revolution. As stated in the American
Jurisprudence :
"An attempt by the majority to change the fundamental law in violation of self-imposed
restrictions is unconstitutional and revolutionary" (Vol. 12, Section 25 pp. 629-630).
168. There are illegal and violent revolutions and illegal and peaceful revolutions.
Modification of Constitution can only be by the operation of a certain number of will
acting on other wills. The pressure runs through a broad spectrum, harsh at one end and
gentle at the other. But whatever the pressure may be, kind or cruel, the revolution is
always there if the change is not legal. The difference is one of method, not of kind.
Political thinking starts from the few at the top and works downward more often than in the
reverse direction. It is wrong to think that masses alone, called "the people" after Mazini,
or "the proletariate" after Marx, begin a revolutionary change. Political changes are always
preceded by changes in thought in a few. They may be outside the Government or in it. It is
a revolution nevertheless, if an attempt is made to alter the will of the people in an illegal
manner. A revolution is successful only if there is consent and acquiescence and a failure if
there is not. Courts can interfere to nullify the revolutionary change because in all cases of
revolution there is infraction of existing legality. It is wrong to classify as revolution some
thing coming from outside the Government and an illegality committed by the Government
against the Constitution as evolution. I am mindful of the observations of Justice Holmes
that "We need education in the obvious to learn to transcend our own convictions and to leave
room for much that we hold dear to be done away with short of revolution, by the orderly
change of law" (The Mind and Faith of Justice Holmes p. 390).
169. But the problem we are faced with is not an orderly change of law but of a claim to a
revolutionary change against the vitals of the Constitution. In such a case the apprehension
is that democracy may be lost if there is no liberty based on law and law based on equality.

The protection of the Fundamental Rights is necessary so that we may not walk in fear of
democracy itself.
170. Having assumed the distinction between Government and State let me now explain
what I mean by that distinction and what the force of Art. 13(2) in that context is. I shall
begin first by reading the pertinent article. Article 13(2), which I quoted earlier, may again
be read here :
"13. . . . . .
(2) The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall, to the
extent of contravention, be void".
171. The definition of the State in Art. 12 reads :
"12. In this Part, unless the context otherwise requires, "the State" includes the
Government and Parliament of India and the Government and the Legislature of
each of the States and all local or other authorities within the territory of India or
under the control of the Government of India".
172. The State is the sum total of all the agencies which are also individually mentioned in
Art. 12 and by the definition all the parts severally are also included in the prohibition.
Now see how 'law' is defined :
(3) In this article, unless the context otherwise requires, (a) "law" includes any ordinance, order, bye-law, rule, regulation, notification, custom or
usage having in the territory of India the force of law :"
173. In Sajjan Singh's case MANU/SC/0052/1964

: [1965]1SCR933 , I said that if

amendments of the Constitution were meant to be excluded from the word "law" it was the
easiest thing to add to the definition the further word "but shall not include an amendment
of the Constitution". It is argued now before us that this was not necessary because
Art. 368 does not make any exception. This argument came at all stages like a refrain and
is the real cause of the obfuscation in the opposite view. Those who entertain this thought
do not pause to consider : why make a prohibition against the State ? As Cooley said :
"there never was a republican Constitution which delegated to functionaries all the latent
powers which lie dormant in every nation and are boundless in extent and incapable of
definition".

174. If the State wields more power than the functionaries there must be a difference
between the State and its agencies such as Government, Parliament, the Legislatures of the
States and the local and other authorities. Obviously, the State means more than any of
these or all of them put together. By making the State subject to Fundamental Rights it is
clearly stated in Art. 13(2) that any of the agencies acting alone or all the agencies acting
together are not above the Fundamental Rights. Therefore, when the House of the People
or the Council of States introduces a Bill for the abridgement of the Fundamental Rights, it
ignores the injunction against it and even if the two Houses pass the Bill the injunction is
next operative against the President since the expression "Government of India" in the
General Clauses Act means the President of India. This is equally true of ordinary laws and
laws seeking to amend the Constitution. The meaning of the word "State" will become
clear if I draw attention at this stage to Art. 325 of the Constitution of Nicargua, which
reads as follows :"325. The agencies of the Government, jointly or separately, are forbidden to suspend the
Constitution or to restrict the rights granted by it, except in the cases provided therein".
175. In our Constitution the agencies of the State are controlled jointly and separately and
the prohibition is against the whole force of the State acting either in its executive or
legislative capacity. The control of the Executive is more important than even the
Legislature. In modern politics run on parliamentary democracy the Cabinet attains a
position of dominance over the Legislature. The Executive, therefore, can use the
Legislature as a means of securing changes in the laws which it desires. It happened in
Germany under Hitler. The fact has been noticed by numerous writers for example, Wade
and Philips (Constitutional Law, 6th Edn. p. 27), Sir Ivor Jennings (Parliament [1957] pp.
11-12), Dawson (Government of Canada [1952] Chapter XIX), Keith (An Introduction to
British Constitutional Law [1931] p. 48) and Ramsay Muir (How Britain is Governed p. 5,
6). Dawson in particular said that a Cabinet is no longer responsible to the Commons but
the Commons has become instead responsible to the Government. Ivor Jennings added that
if a Government had majority it could always secure the legislation. The others pointed out
that the position of the Cabinet towards Parliament tends to assume more or less dictatorial
powers and that was why people blamed Government, this to say, the Cabinet rather than
Parliament for ineffective and harsh laws.
176. This is true of our country also regarding administration and legislation. Fortunately,
this is avoided at least in so far as the Fundamental Rights are concerned. Absolute,
arbitrary power in defiance of Fundamental Rights exist nowhere under our Constitution,
not even in the largest majority. The people's representatives have, of course, inalienable
and undisputable right to alter, reform or abolish the Government in any manner they think
fit, but the declarations of the Fundamental Rights of the citizens are the inalienable rights
of the people. The extent of the power of the rulers at any time is measured by the
Fundamental Rights. It is wrong to think of them as rights within the Parliament's giving or

taking. Our Constitution enables an individual to oppose successfully the whole

community and the State and claim his rights. This is because the Fundamental Rights are
so safe-guarded that within the limits set by the Constitution they are inviolate. The
Constitution has itself said what protection has been created round the person and property
of the citizens and to what extent this protection may give way to the general good. It is
wrong to invoke the Directive Principles as if there is some antinomy between them and
the Fundamental Rights. The Directive Principles lay down the routes of State action but
such action must avoid the restrictions stated in the Fundamental Rights. Prof. Anderson
(Changing Law in Developing Countries, pp. 88, 89), taking the constitutional
amendments, as they have been in our country, considered the Directive Principles to be
more potent-than the Fundamental Rights. That they are not, is clear when one takes the
Fundamental Rights with the guaranteed remedies. The Directive Principles are not
justiciable but the Fundamental Rights are made justiciable. This gives a judicial control
and check over State action even within the four corners of the Directive Principles. It
cannot be conceived that in following the Directive Principles the Fundamental Rights (say
for example, the equality clause) can be ignored. If it is attempted, then the action is
capable of being struck down. In the same way, if an amendment of the Constitution is law,
for the reasons explained by me, such an amendment is also open to challenge under
Art. 32, if it offends against the Fundamental Rights by abridging or taking them away. Of
course, it is always open to better Fundamental Rights. A law or amendment of the
Constitution would offend the Fundamental Rights only when it attempts to abridge or take
them away.
177. The importance of Fundamental Rights in the world of today cannot be lost sight of.
On December 10, 1948, the General Assembly of the United Nations adopted the Universal
Declaration of Human Rights without a dissent. This draft was made after the Third
Committee of the United Nations had devoted 85 meetings to it. The Declaration represents
the civil, political and religious liberties for which men have struggled through the
centuries and those new social and economic rights of the Individual which the Nations are
increasingly recognising in their Constitutions. Some of these were proclaimed during the
French Revolution and are included in the declarations of Nations taking pride in the
dignity and liberty of the Individual. They are epitomized in the Preamble, and more fully
expressed in Parts III and IV of our Constitution. These Declarations wherever found are
intended to give a key to social progress by envisaging rights to work, to education and to
social insurance.
178. The Nations of the world are now in the second stage, where Covenants are being
signed on the part of the States to respect such rights. United Nations Human Rights
Commission has worked to produce two drafts - one dealing with civil and political rights
and the other with economic, social and cultural rights. The third stage is still in its infancy
in which it is hoped to provide for the enforcement of these rights on an international basis.
The Regional Charter of the Human Rights under which there is established already a

European Commission of Human Rights to investigate and report on violations of Human

Rights, is a significant step in that direction. After 1955 the European Commission has
become competent to receive complaints from individuals although the enforceability of
Human Rights on an international basis is still far from being achieved. If one compares
the Universal Declaration with Parts III and IV of our Constitution one finds remarkable
similarity in the two. It is significant that our Committee on Fundamental Rights was
deliberating when the Third Committee of the United Nations was deliberating on the
Universal Declaration of Human Rights. Both are manifestos of man's inviolable and
fundamental freedoms.
179. While the world is anxious to secure Fundamental Rights internationally, it is a little
surprising that some intellectuals in our country, whom we may call "classes non classes"
after Hegel, think of the Directive Principles in our Constitution as if they were superior to
Fundamental Rights. As a modern philosopher (Benedetto Croce) said such people 'do lip
service' to freedom thinking all the time in terms of social justice "with 'freedom' as a byproduct". Therefore, in their scheme of things Fundamental Rights become only an
epitheton ornans. One does not know what they believe in : the communistic millennium of
Marx or the individualistic Utopia of Bastiat. To them an amendment of the Fundamental
Rights is permissible if it can be said to be within a scheme of a supposed socio-economic
reform, however, much the danger to liberty, dignity and freedom of the Individual. There
are others who hold to liberty and freedom of the Individual under all conditions. Compare
the attitude of Middleton Murray who would have Communism provided "there was
universal freedom of speech, of association, of elections and of Parliament". To such the
liberty and dignity of the Individual are inviolable. Of course, the liberty of the individual
under our Constitution, though meant to be fundamental, is subject to such restrictions as
the needs of society dictate. These are expressly mentioned in the Constitution itself in the
hope that no further limitations would require to be imposed at any time.
180. I do not for a moment suggest that the question about reasonableness, expediency or
desirability of the amendments of the Constitution from a political angle is to be considered
by the courts. But what I do say is that the possession of the necessary majority does not
put any party above the constitutional limitations implicit in the Constitution. It is obvious
that the Constituent Assembly in making the Fundamental Rights justiciable was not
satisfied with reliance on the sense of self-restraint or public opinion (Sir Robert Peel calls
it "that great compound of folly, weakness, prejudice, wrong feeling, right feeling,
obstinacy and newspaper paragraphs") on which the majority in Sajjan
Singh's MANU/SC/0052/1964
: [1965]1SCR933 , case does. This is not an

argument of fear. The question to ask is : can a party, which enjoys 2/3rds majority today,
before it loses it, amend Art. 368 in such wise that a simple majority would be sufficient for

the future amendments of the Constitution ? Suppose it did so, would there be any
difference between the constitutional and the ordinary laws made thereafter ?
181. The liberty of the Individual has to be fundamental and it has been so declared by the
people. Parliament today is not the constituent body as the Constituent Assembly was, but
is a constituted body which must bear true allegiance to the Constitution as by law
established. To change the Fundamental part of the Individual's liberty is a usurpation of
constituent functions because they have been placed outside the scope of the power of
constituted Parliament. It is obvious that Parliament need not now legislate at all. It has
spread the umbrella of Art. 31-B and has only to add a clause that all legislation involving
Fundamental Rights would be deemed to be within that protection hereafter. Thus the only
palladium against legislative dictatorship may be removed by a 2/3rds majority not only in
praesenti but defuturo. This can hardly be open to a constituted Parliament.
182. Having established that there is no difference between the ordinary legislative and the
amending processes in so far as clause (2) of Art. 13 is concerned, because both being laws
in their true character, come within the prohibition created by that clause against the State
and that the Directive Principles cannot be invoked to destroy Fundamental Rights, I
proceed now to examine whether the English and American precedents lay down any
principle applicable to amendments of our Constitution. In Britain the question whether a
constitutional amendment is valid or not cannot arise because the courts are powerless.
Parliamentary Sovereignty under the English Constitution means that Parliament enjoys the
right to make or unmake any law whatever and no person or body has any right to question
the legislation. The utmost and absolute despotic power belongs to Parliament. It can
"make, confirm, enlarge, restrain, abrogate, repeal, revise and expand law concerning
matters of all possible denominations". What Parliament does, no authority on earth can
undo. The Queen, each House of Parliament, the constituencies and the law courts have in
the past claimed independent legislative powers but these claims are unfounded. It is
impossible to compare the Indian Parliament with the British Parliament as the former
concededly in the ordinary legislation, is subject to judicial review, both on the ground of
competence arising from a federal structure and the existence of Fundamental Rights. The
question of competence in the matter of amendment of the Constitution depends upon,
firstly, compliance with the procedure laid down in Art. 368 and, secondly, upon the
question whether the process is in any manner restricted by the Fundamental Rights. Such
questions cannot obviously arise in the British Parliament (Dicey gives three supposed
limitations on the power of Parliament. Of these one that language has been used in Acts of
Parliament which implies that one Parliament can make laws which cannot be touched by
any subsequent Parliament, is not true. The best examples are Act of treaties with Scotland
and Ireland but these same Acts have been amended later. Francis Bacon found this claim
to be untenable. See Dicey 'The Law of Constitution' pp. 64, 65).

183. The example of the Constitution of the United States cannot also serve any purpose
although the greatest amount of support was sought to be derived from the decisions of the
Supreme Court and the institutional writings in the United States. The power of
amendment in the United States Constitution flows from Art. V. (Article V. The Congress,
whenever two-thirds of both houses shall deem it necessary, shall propose amendments to
this Constitution, or, on the application of the legislatures of two-thirds of the several
States, shall call a convention for proposing amendments, which, in either case, shall be
valid to all intents and purposes, as part of this Constitution, when ratified by the
legislatures of three-fourths of the several States or by conventions in three-fourths thereof,
as the one or the other mode of ratification may be proposed by the Congress, provided that
no amendment which may be made prior to the year one thousand eight hundred and eight
shall in any manner affect the first and fourth clauses in the ninth section of the first article;
that no State, without its consent, shall be deprived of its equal suffrage in the Senate"). It
must be noticed that the power is clearly not made equal to ordinary legislative process.
One salient point of difference is that the President is nowhere in this scheme because his
negative does not run (Hollingsworth v. Virginia 3 Dall. 378). The amendment is thus not
of the same quality as ordinary legislation.
184. The Supreme Court of the United States has no doubt brushed aside objections to
amendments of the Constitution on the score of incompetence, but has refrained from
giving any reasons. In the most important of them, which questioned the 18th Amendment,
the Court only stated its conclusions. After recalling the texts of the Article under which
Amendments may be made and of the 18th Amendment proposed by the Congress in 1917
and proclaimed as ratified by the States in 1919, the Court announced :
"4. The prohibition of the manufacture, sale, transportation, importation, and exportation of
intoxicating liquors for beverage purposes, as embodied in the 18th amendment, is within the
power to amend reserved by Art. 5 of the Constitution." (National Prohibition Cases,253 U.S.
350).
185. One would have very much liked to know why this proposition was laid down in the
terms emphasised above if the effective exercise of the power depended upon a particular
procedure which was immaculately followed. The silence of the Court about its reasons has
been noticed in the same judgment by Mr. Justice Mokenna. In Leser v. Garnett 258 U.S.
130, the Court was hardly more expressive. The only question considered by the Court was
:"The first contention is that the power of amendment conferred by the Federal Constitution,
and sought to be exercised, does not extend to this Amendment, because of its character".
186. This was repelled by Brandeis, J. on behalf of the unanimous court on the ground that
the Amendment was in character and phraseology similar to the 15th Amendment and was
adopted by following the same method. As the 15th Amendment had been accepted for half

a century the suggestion that it was not in accordance with law, but as a war measure
validated by acquiescence was not accepted.
187. It is significant, however, that at the time of the 18th Amendment, the arguments were
(a) that 'amendment' was limited to the correction of error in the framing of the
Constitution, (b) Article V did not comprehend the adoption of additional or supplementary
provisions, (c) ordinary legislation could not be embodied in the constitutional amendment,
and (d) Congress could not propose amendment which pared the sovereign power of the
States. None of these arguments was accepted. At the time of the 19th Amendment, which
increased the franchise in the States, the narrow ground was that a State which had not
ratified the Amendment would be deprived of its equal suffrage in the Senate because its
representatives in that body would be persons not of its choosing, i.e. persons chosen by
voters whom the State itself had not authorised to vote for Senators. This argument was
rejected. However, in Dillion v. Gloss 256 U.S. 368, the Supreme Court held that Congress
had the power to impose a time limit for ratification because Art. V implied that
"ratification must be within some reasonable time after the proposal". The fixation of 7
years was held by the Court to be reasonable.
188. In 1939 came the case of Coleman v. Miller 307 U.S. 443, which dealt with the Child
Labour Amendment. Such a law was earlier rejected by the Kansas Legislature. Later the
State ratified the amendment after a lapse of 13 years by the casting vote of the Lt.
Governor. Mandamus was asked against the Secretary of Kansas Senate to erase the
endorsement of ratification from its record and it was denied. The Supreme Court of
Kansas refused to review this denial on certiorari. The Supreme Court of the United States
in an opinion, in which not more than 4 Justices took any particular view, declined to
interfere. Majority affirmed the decision of Supreme Court of Kansas. Four Justices
considered that the question was political from start to finish and three Justices that the
previous rejection of the law and the extraordinary time taken to ratify were political
questions.
189. Although the Supreme Court has scrupulously refrained from passing on the ambit of
Art. V it has nowhere said that it will not take jurisdiction in any case involving the
amending process. (See Rottschaeffer : Handbook of American Constitutional Law (1939)
pp. 397, 398, though the author's opinion is that it will deny jurisdiction). In Hollingsworth
v. Virginia 3 Dall. 378, the Supreme Court assumed that the question was legal. The
Attorney-General did not even raised an objection. In Luther v. Borden 12 L.Ed. 58, the
matter was finally held to be political which opinion prevailed unimpaired till some doubts
have arisen after Baker v. Carr 369 U.S. 186. In the case the Court remarked "We conclude ...... that the non-justiciability of claims resting on the guarantee clause which
arises from the embodiment of questions that were thought 'political' can have no bearing
upon the justiciability of the equal protection claim presented in this case....... We emphasise

that it is the involvement in guarantee clause claims of the elements thought to define
"political questions" and no other feature, which could render them non-justiciable.
Specifically, we have said that such claims are not held non-justiciable because they touch
matters of State Government organisation ......"
190. It would appear that the Equal Protection Clause was held to supply a guide for
examination of apportionment methods better than the Guarantee Clause.
191. Although there is no clear pronouncement, a great controversy exists whether
questions of substance can ever come before the Court and whether there are any implied
limitations upon the amendatory power. In the cases above noted, the other articles
(particularly the Bill of Rights) were not read as limitations and no limitation outside the
amending clause was implied. In the two cases in which the express limitation of Equal
Suffrage Clause was involved the Court did not enter the question. Thus the 15th and, on
its strength, the 19th Amendments were upheld. In Coleman v. Miller 307 U.S. 443, the
political question doctrine brought the support of only four Justices and in Baker v.
Carr 369 U.S. 186, the Federal Courts were held to have jurisdiction to scrutinise the
fairness of legislative apportionment, under the 14th Amendment and to take steps to
assure that serious inequities were wiped out. The courts have thus entered the 'political
thicket'. The question of delimitation of constituencies cannot, of course, arise before
courts under our Constitution because of Art. 329.
192. Baker v. Carr 369 U.S. 186, makes the Court sit in judgment over the possession and
distribution of political power which is an essential part of a Constitution. The magical
formula of "political question" is losing ground and it is to be hoped that a change may be
soon coming. Many of the attacks on the amendments were the result of a
misunderstanding that the Constitution was a compact between States and that the
allocation of powers was not to be changed at all. This was finally decided by Texas v.
White (Wall. 700) as far back as 1869.
193. The main question of implied limitations has evoked a spate of writings. Bryce (The
American Commonwealth Vol. I), Weaver (Constitutional Law and its Administration
(1946), Mathews (American Constitutional System (2nd Edn.) p. 43-45), Burdick (The
Law of the American Constitution 7th Imp.) p. 45), Willoughby (Tagore Law Lectures
[1924]), Willis (Constitutional Law of United States [1936]), Rottshaefer (Handbook of
American Constitutional Law), Orfield (The Amending of the Federal Constitution) (to
name only a few) are of the opinion that there are no implied limitations, although, as
Cooley points out, "it is sometimes expressly declared - what indeed is implied without the
declaration - that everything in the declaration of rights contained is excepted out of the
general powers of Government, and all laws contrary thereto shall be void (Constitutional
Limitations Vol. I, 8th Edn. pp. 95, 96)". Express checks there are only three. Two
temporary checks were operative till 1808 and dealt with interference with importation of

slaves and the levying of a direct tax without apportionment among the States, according to
population Permanent check that now remains is equality of representation of States in the
Senate. Some writers suggest that this check may also be removed in two moves. By the
first the Article can be amended and by the second the equality removed. When this
happens it will be seen whether the Supreme Court invokes any doctrine such as achieving
indirectly what cannot be done directly.
194. It will, of course, be completely out of place in a judgment to discuss the views of the
several writers and so I shall confine myself to the observation of Orfield to whom again
and again counsel for the State turned either for support or inspiration. According to him,
there are no implied limitations unless the Courts adopt that view and therefore no
limitations on the substance of the amendments except the Equality Clause. His view is
that when Congress is engaged in the amending process it is not legislating but exercising a
peculiar power bestowed by Art. V. I have already shown that under our Constitution the
amending process is a legislative process, the only difference being a special majority and
the existence of Art. 13(2). Orfield brushes aside the argument that this would destroy the
very concept of the Union which, as Chief Justice Marshall had said, was indestructible.
Orfield faces boldly the question whether the whole Constitution can be overthrown by an
amendment and answers yes. But he says that the amendment must not be in violation of
the Equality Clause. This seems to be a great concession. He makes this exception but
Munro (The Government of the United States (5th Edn.) p. 77), who finds it difficult to
conceive of an unamendable constitution suggests that it should be possible to begin with
that clause and then the door to amendments would be wide open. Of course, the Supreme
Court has not yet faced an amendment of this character and it has not yet denied
jurisdiction to itself. In the United States the Constitution works because, as observed by
Willis, the Supreme Court is allowed to do "the work of remolding the Constitution to keep
it abreast with new conditions and new times, and to allow the agencies expressly endowed
with the amending process to act only in extraordinary emergencies or when the general
opinion disagrees with the opinion of the Supreme Court". In our country amendments so
far have been made only with the object of negativing the Supreme Court decisions, but
more of it later.
195. I have referred to Orfield although there are greater names than his expounding the
same views. I have refrained from referring to the opposite view which in the words of
Willoughby has been "strenuously argued by reputable writers" although Willis
discourteously referred to them in his book. My reason for not doing so is plainly this. The
process of amendment in the United States is clearly not a legislative process and there is
no provision like Art. 13(2) under which "laws" abridging or taking away Fundamental
Rights can be declared void. Our liberal Constitution has given to the Individual all that he
should have - freedom of speech, of association, of assembly, of religion, of motion and
locomotion, of property and trade and profession. In addition it has made the State
incapable of abridging or taking away these rights to the extent guaranteed, and has itself

shown how far the enjoyment of those rights can be curtailed. It has given a guaranteed
right to the person affected to move the Court. The guarantee is worthless if the rights are
capable of being taken away. This makes our Constitution unique and the American
precedents cannot be of much assistance.
196. The Advocate General of Madras relied upon Vedel (Mannual Elementaire da Droit
Constitutional (Sirey) p. 117). According to Vedel, a prohibition in the Constitution against
its own amendment has a political but not juridical value, and from the juridical point of
view, a declaration of absolute constitutional immutability cannot be imagined. The
constituent power being supreme, the State cannot be fettered even by itself. He notices,
however, that the Constitution of 1791 limited the power of amendment (revision) for a
certain time and that of 1875 prohibited the alteration of the Republican form of
Government. He thinks that this hindrance can be removed by a two step amendment. He
concludes that the constituent of today cannot bind the nation of tomorrow and no
Constitution can prohibit its amendment in all aspects.
197. Of course, the French have experimented with over a dozen Constitutions, all very
much alike, while the British have slowly changed their entire structure from a monarchical
executive to an executive from Parliament and have reduced the power of the House of
Lords. Cambell-Bannerman, former Prime Minister of England summed up the difference
to Ambassador M. de Fleurian thus :
".....Quand nous faisons une Revolution, nous ne detruisons pas notre maison, nous en
conservons avec soin la facade, et, derriere cette facade, nous reconstruisons une nouvelle
maison. Vous, Francais, agissez autrement; vous jetez bas le vieil edifice et vous
reconstruisez la meme maison avec une autre facade et sous un nom different". (When we
make a Revolution we do not destroy an house, we save with care the facade and behind
construct a new house. You, Frenchmen, act differently. You throw down the old edifice and
you reconstruct the same house with a different facade and under a different name).
198. M. de Fleurian agreed that there was a lot of truth in it (Il ya du vrai dans cette
boutade) (Recounted by M. de Fleuriau in the Preface to J. Magnan de Bornier, L'Empire
Britannique, son evolution politique et constitutionnelle p. 6, quoted in whereas : The
Statute of Westminster and Dominion Status, p. 9-10).
199. But of course to a Frenchman brought up in a legal system in which the Courts do not
declare even an ordinary statute to be invalid, the idea of the unconstitutionality of a
constitutional amendment does not even occur. France and Belgium have created no
machinery for questioning legislation and rely on moral and political sanctions. Even an
English lawyer and less so an American lawyer find it difficult to understand how the
legality of an amendment of the Constitution can ever be questioned. It appears to them
that the procedure for the amendment being gone through there is no one to question and
what emerges is the Constitution as valid as the old Constitution and just as binding. The

matter, however, has to be looked at in this way. Where the Constitution is overthrown and
the Courts lose their position under the old Constitution, they may not be able to pass on
the validity of the new Constitution. This is the result of a revolution pure and simple.
Where the new Constitution is not accepted and the people have not acquiesced in the
change and the courts under the old Constitution function, the courts can declare the new
Constitution to be void. Perhaps even when the people acquiesce and a new Government
comes into being, the courts may still declare the new Constitution to be invalid but only if
moved to do so. It is only when the courts begin to function under the new Constitution
that they cannot consider the vires of that Constitution because then they owe their
existence to it. I agree with Orfield in these observations taken from his book. He,
however, does not include amendments of the Constitution in these remarks and expressly
omits them. His opinion seems to indicate that in the case of amendments courts are
completely free to see that the prescribed constitutional mode of alteration is complied with
and the alteration is within the permissive limits to which the Constitution wishes the
amendments to go. This is true of all amendments but particularly of an amendment
seeking to repeal the courts' decision and being small in dimension, leaves the courts free
to consider its validity. The courts derive the power from the existing terms of the
Constitution and the amendment fails if it seeks to overbear some existing restriction on
legislation.
200. What I have said does not mean that Fundamental Rights are not subject to change or
modification. In the most inalienable of such rights a distinction must be made between
possession of a right and its exercise. The first is fixed and the latter controlled by justice
and necessity. Take for example Art. 21 :
"No person shall be deprived of his life or personal liberty except according to procedure
established by law".
201. Of all the rights, the right to one's life is the most valuable. This article of the
Constitution, therefore, makes the right fundamental. But the inalienable right is curtailed
by a murderer's conduct as viewed under law. The deprivation, when it takes place, is not
of the right which was immutable but of the continued exercise of the right. Take a
Directive Principle which is not enforceable at law but where the same result is reached.
The right to employment is a directive principle. Some countries even view it as a
Fundamental Right. The exercise, however, of that right must depend upon the capacity of
Society to afford employment to all and sundry. The possession of this right also cannot be
confused with its exercise. One right here is positive and can be enforced although its
exercise can be curtailed or taken away, the other is a right which the State must try to give
but which cannot be enforced. The Constitution permits a curtailment of the exercise of
most of the Fundamental Rights by stating the limits of that curtailment. But this power
does not permit the State itself, to take away or abridge the right beyond the limits set by
the Constitution. It must also be remembered that the rights of one individual are often

opposed by the rights of another individual and thus also become limitative. The
Constitution in this way permits the Fundamental Rights to be controlled in their exercise
but prohibits their erasure.
202. It is argued that such approach makes Society static and robs the State of its
sovereignty. It is submitted that it leaves revolution as the only alternative if change is
necessary. This is not right. The whole Constitution is open to amendment. Only two dozen
articles are outside the reach of Art. 368. That too because the Constitution has made them
fundamental. What is being suggested by the counsel for the State is itself a revolution
because as things are that method of amendment is illegal. There is a legal method.
Parliament must act in a different way to reach the Fundamental Rights. The State must
reproduce the power which it has chosen to put under a restraint. Just as the French or the
Japanese etc. cannot change the articles of their Constitution which are made free from the
power of amendment and must call a convention or a constituent body, so also we in India
cannot abridge or take away the Fundamental Rights by the ordinary amending process.
Parliament must amend Art. 368 to convoke another Constituent Assembly, pass a law
under item 97 of the First List of Schedule VII to call a Constituent Assembly and then that
assembly may be able to abridge or take away the Fundamental Rights if desired. It cannot
be done otherwise. The majority in Sajjan Singh's case MANU/SC/0052/1964
:

[1965]1SCR933 , suggested bringing Art. 32 under the Proviso to improve protection to the
Fundamental Rights. Article 32 does not stand in need of this protection. To abridge or take
away that article (and the same is true of all other Fundamental Rights) a constituent body
and not a constituted body is required. Parliament today is a constituted body with powers
of legislation which include amendments of the Constitution by a special majority but only
so far as Art. 13(2) allows. To bring into existence a constituent body is not impossible as I
had ventured to suggest during the hearing and which I have now more fully explained
here. It may be said that this is not necessary because Art. 368 can be amended by
Parliament to confer on itself constituent powers over the Fundamental Rights. This would
be wrong and against Art. 13(2). Parliament cannot increase its powers in this way and do
indirectly which it is intended not to do directly. The State does not lose its sovereignty but
as it has chosen to create self-imposed restrictions through one constituent body, those
restrictions cannot be ignored by a constituted body which makes laws. Laws so made can
affect those parts of the Constitution which are outside the restriction in Art. 13(2) but any
law (legislative or amendatory) passed by such a body must conform to that article. To be
able to abridge or take away the Fundamental Rights which give so many assurances and
guarantees a fresh Constituent Assembly must be convoked. Without such action the
protection of the Fundamental Rights must remain immutable and any attempt to abridge
or take them away in any other way must be regarded as revolutionary.

203. I shall now consider the amendments of the Fundamental Rights made since the
adoption of the Constitution, with a view to illustrating my meaning. Part III is divided
under different headings. They are (a) General (b) Right to Equality (c) Right to Freedom
(d) Right against exploitation (e) Right to Freedom of Religion (f) Cultural and
Educational Rights (g) Right to Property (h) Right to Constitutional Remedies. I shall first
deal with amendments of topics other than the topic (g) - Right to Property. The articles
which are amended in the past are Arts. 15 and 19 by the 1st Amendment (18th June 1951)
and Art. 16 by the 7th Amendment (19th October 1956). The 16th Amendment added the
words "the sovereignty and integrity of India" to some clauses. As that does not abridge or
take away any Fundamental Right, I shall not refer to the 16th Amendment hereafter. That
Amendment was valid. The changes so made may be summarized. In Art. 15, which deals
with prohibition of discrimination on the ground of religion, race, caste, sex or place of
birth, clause (3) allowed the State to make special provision for women and children. A
new clause was added which reads :
"(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making
any special provision for the advancement of any socially and educationally backward classes
of citizens or for the Scheduled Castes and the Scheduled Tribes".
204. It is argued by counsel for the State that by lifting the ban to make special provision
for backward classes of citizens, there is discrimination against the higher classes. This is
the view which classes in a privileged position who had discriminated against the
backward classes for centuries, might indeed take. But I cannot accept this contention. The
Constitution is intended to secure to all citizens "Justice, social, economic and political"
and Equality of status and opportunity" (vide the Preamble) and the Directive Principles
include Art. 38 which provides :
"38. The State shall strive to promote the welfare of the people by securing and protecting as
effectively as it may a social order in which justice, social, economic and political, shall
inform all the institutions of the national life".
205. To remove the effect of centuries of discriminatory treatment and to raise the downtrodden to an equal status cannot be regarded as discriminatory against any one. It is no
doubt true that in State of Madras v. Champakam MANU/SC/0007/1951
:

[1951]2SCR525 , the reservation of seats for Backward Classes, Scheduled Castes and
Tribes in public educational institutions was considered invalid. Articles 16(4) and 340 had
already provided for special treatment for these backward classes and Art. 46 had provided
that the State shall promote with special care their educational and economic interests.
With all due respects the question of discrimination hardly arose because in view of these
provisions any reasonable attempt to raise the status of the backward classes could have

been upheld on the principle of classification. In any event, the inclusion of this clause to
Art. 16 does not abridge or take away any one's Fundamental Rights unless the view be
taken that the backward classes for ever must remain backward.
206. By the First Amendment the second and the sixth clauses of Art. 19 were also
amended. The original clause (2) was substituted by a new clause and certain words were
added in clause (6). The changes may be seen by comparing the unamended and the
amended clauses side by side :

207. The amendment was necessary because in Romesh Thapar v. State of Madras
MANU/SC/0006/1950
: 1950CriLJ1514 , it was held that disturbances of public

tranquility did not come within the expression "undermines the security of the State". Later
the Supreme Court itself observed in the State of Bihar v.Shailabala Devi
MANU/SC/0015/1952
: 1952CriLJ1373 , that this Court did not intend to lay

down that an offence against public order could not in any case come within that
expression. The changes related to (a) "friendly relations with foreign States", (b) "public
order" and (c) "incitement to an offence" and the words "undermines the security of the
State or tends to overthrow the State" were replaced by the words "in the interests of the
security of the State". This change could be made in view of the existing provisions of the
clause as the later decision of this Court above cited clearly show that "public order" and

"incitement to offence" were already comprehended. The amendment was within the
permissible limits as it did not abridge or take away any Fundamental Right.
208. The Amending Act passed by Parliament also included a sub-section which read :
"(2) No law in force in the territory of India immediately before the
commencement of the Constitution which is consistent with the provisions of
article 19 of the Constitution as amended by sub-section (1) of this section shall be
deemed to be void, or ever to have become void, on the ground only that, being a
law which takes away or abridges the right conferred by sub-clause (a) of clause (1)
of the said article, its operation was not saved by clause (2) of that article as
originally enacted.
Explanation. - In this sub-section, the expression "law in force" has the same
meaning as in clause (1) of article 13 of this Constitution".
209. This sub-section was not included in the Constitution. That device was followed in
respect of certain State statutes dealing with property rights by including them in a new
Schedule. It did not then occur to Parliament that the laws could be placed under a special
umbrella of constitutional protection. Perhaps it was not considered necessary because
Art. 19(2) was retrospectively changed, and the enactment of this sub-section was an
ordinary legislative action. If the amendment had failed, the second sub-section of
section 3 would not have availed at all.
210. Turning now to clause (6), we may read the original and the amended clause side by
side :
"19(1) All citizens shall have the right .. .. ..
(g) to practise any profession, or to carry on any occupation, trade or business.
.. .. ..
(6) (Before Amendment)
Nothing in sub-clause (g) of the said clause shall affect the operation of any
existing law in so far as it imposes, or prevent the State from making any law
imposing, in the interests of the general public, reasonable restrictions on the
exercise of the right conferred by the said sub-clause, and, in particular nothing in
the said sub-clause, shall affect the operation of any existing law in so far as it
prescribes or empowers any authority to prescribe, or prevent the State from

making any law prescribing or empowering any authority to prescribe, the

professional or technical qualifications necessary for practising any profession or
carrying on any occupation, trade or business.
(After Amendment)
Nothing in sub-clause (g) of the said clause shall affect the operation of any
existing law in so far as it imposes, or prevent the State from making any law
imposing, in the interests of the general public, reasonable restrictions on the
exercise of the right conferred by the said sub-clause, and, in particular, nothing in
the said sub-clause, shall affect the operation of any existing law in so far as it
relates to, or prevent the State from making any law relating to, (i) the professional or technical qualifications necessary for practising any
profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or a corporation owned or controlled by the State,
of any trade, business, industry or service, whether to the exclusion, complete or
partial, of citizens or otherwise.
211. The first change is in the verbiage and is not one of substance. It only removes some
unnecessary words. The new sub-clause is innocuous except where it provides for the
exclusion of citizens. It enables nationalisation of industries and trade. Sub-clause (g) (to
the generality of which the original clause (6) created some exceptions) allowed the State
to make laws imposing, in the interests of the general public, reasonable restrictions on the
exercise of the right conferred by the sub-clause. A law creating restrictions can, of course,
be made outside the Constitution or inside it. If it was considered that this right in the state
was required in the interests of the general public, then the exercise of the right to practise
profession or to carry on an occupation, trade or business could be suitably curtailed. It
cannot be said that nationalisation is never in the interest of he general public. This
amendment was thus within the provision for restricting the exercise of the Fundamental
Right in sub-clause (g) and was perfectly in order.
212. The Seventh Amendment introduced certain words in Art. 16(3). The clauses may be
compared :
"16. . . . .
(3) (Before Amendment)
Nothing in this article shall prevent Parliament from making any law prescribing,
in regard to a class or classes of employment or appointment to an office under any
State specified in the First Schedule or any local or other authority within its

territory, any requirement as to residence within the State prior to such employment
or appointment.
(After Amendment)
Nothing in this article shall prevent Parliament from making any law prescribing,
in regard to a class or classes of employment or appointment to an office under the
Government of, or any local authority within, a State or Union territory, any
requirement as to residence within that State or Union territory prior to such
employment or appointment".
213. The change is necessary to include a reference to Union territory. It has not bearing
upon Fundamental Rights and neither abridges nor takes away any of them. In the result
non of the amendments of the articles in parts other than that dealing with Right to
Property is outside the amending process because Art.13(2) is in no manner breached.
214. This brings me to the main question in this case. It is : whether the amendments of the
part to Property in Part III of the Constitution were legally made or not. To understand this
part f the case I must first begin by discussing what property rights mean and how they
were safeguarded by the Constitution as I was originally framed. "Right to Property" in
Part III was originally the subject of one article, namely, Art. 31. Today there are three
articles 31, 31-A and 31-B and the Ninth Schedule. The original thirty-first article read :
"31. Compulsory acquisition of property.
(1) No person shall be deprived of his property save by authority of law.
(2) No property, movable or immovable, including any interest in, or in any
company owning, any commercial or industrial undertaking, shall be taken
possession of or acquired for public purposes under any law authorising the taking
of such possession or such acquisition, unless the law provides for compensation
for the property taken possession of or acquired and either fixes the amount of the
compensation, or specifies the principles on which, and the manner in which, the
compensation is to be determined and given.
(3) No such law as is referred to in clause (2) made by the Legislature of the State
shall have effect unless such law, having been reserved for the consideration of the
President, has received his assent.
(4) If any Bill pending at the commencement of this Constitution in the Legislature
of a State has, after it has been passed by such Legislature, been reserved for the
consideration of the President and has received his assent, then, notwithstanding

anything in this Constitution, the law so assented to shall not be called in question
in any court on the ground that t contravenes the provisions of clause (2).
(5) Nothing in clause (2) shall affect (a) the provisions of any existing law other than a law to which the provisions of
clause (a) apply, or
(b) the provisions of any law which the State may hereafter make (i) for the purpose of imposing or levying any tax or penalty, or
(ii) for the promotion of public health or the prevention of danger to life or
property, or
(iii) in pursuance of any agreement entered into between the Government of the
Dominion of India or the Government of India and the Government of any other
country, or otherwise, with respect to property declared by law to be evacuee
property.
(6) Any law of the State enacted nor more than eighteen months before the
commencement of this Constitution may within three months from such
commencement be submitted to the President for his certification; and thereupon, if
the President by public notification no certifies, it shall not be called in question in
any court on the ground that it contravenes the provisions of clause (2) of this
article or has contravened the provisions of sub-section (2) of section 299 of the
Government of India, Act, 1935".
215. The provisions of this article are intended to be read with Art. 19(1)(f) which reads :
"19(1) All citizens shall have the right ........................................
(f) to acquire, hold and dispose of property".
Article 19(1)(f) is subject to clause (6) which I have already set out elsewhere and
considered. Ownership and exchange of property are thus recognised by the article. The
word "property" is not defined and I shall presently consider what may be included in
'property'. Whatever the nature of property, it is clear that by the first clause of Art. 31 the
right to property may be taken away under authority of law. This was subject t one
condition under the original Art. 31, namely, that the law must either fix the compensation
for the deprivation of specify the principles on which and the manner in which
compensation was to be determined and given. This was the heard of the institution of

property as understood by the Constituent Assembly. The rest of the article only gave
constitutional support against the second clause, to legislation already on foot in the State.
This created a Fundamental Right in property. The question may now be asked : why was it
necessary to make such a Fundamental Right at all ?
216. There is no natural right in property and a Burke said in his Reflections, Government
is not made in virtue of natural rights, which may and do exist in total independence of it.
Natural rights embrace activity outside the status of citizen. Legal rights are required for
free existence as a social being and the State undertakes to protect them. Fundamental
Rights re those rights which the State enforces against itself. Looking at the matter briefly
but historically, it may be said that the Greeks were not aware of the distinctions for a
Gierke (Das Deutsches Genossenschaftrecht (III, 10) points out they did not distinguish
between personality as a citizen and personality as a human being. For them the Individual
was merged in the citizen and the citizen in the State. There was personal liberty and
private law but there was no sharp division between the different kinds of laws. The
Romans evolved this gradually, not when the Roman Republic existed, but when the notion
of a Fiscus developed in the Empire and the legal personality of the Individual was
separated from his membership of the State. It was then that the State began to recognize
the rights of the Individual in his dealings with the State. It was Cicero (De Off. (The
Offices) II Ch. XXI (Everyman) p.105), who was the first to declare that the primary duty
of the Governor of a State was to secure to each individual in the possession of his
property. Here we may see recognition of the ownership of property as a Fundamental
Right. This idea was so engrained in early social philosophy that we find Locke opening in
his 'Civil Government' (Ch. 7) that "Government has no other end but the preservation of
property". The Concepts of liberty, equality and religious freedom were well-known. To
them was added the concept of property rights. Later the list included :equalitas, libertas
ius securitatis, ius defensionis and ius puniendi. The concept of property right gained
further support from Bentham and Spencer and Kant and Hegel (W. Friedman : Legal
Theory (4th Edn.) See pp. 373-376). The term property in its pristine meaning embraced
only land but it soon came to mean much more. According to Noyes (The Institution of
Property (1936) p. 436) "Property is any protected right or bundle of rights (interest or thing) with direct or indirect
regard to any external object (i.e. other than the person himself) which is material or quasi
material (i.e. a protected process) and which the then and there organisation of Society
permits to be either private or public, which is connoted by the legal concepts of occupying,
possession or using".
217. The right is enforced by excluding entry or interference by a person not legally
entitled. The position of the State vis-a-vis the individual is the subject of
Arts. 19 and 31, 31-A and 31-B.

218. Now in the enjoyment, the ultimate right may be an interest which is connected to the
object through a series of intermediaries in which each 'holder' from the last to the first
'holds of' 'the holder' before him. Time was when there was a lot of 'free property' which
was open for appropriation. As Noyes (The Institution of Property (1936) p. 438) puts it,
"all physical manifestations capable of being detected, localised and identified" can be the
objects of property. One exception now made by all civilized nations is that human beings
are no longer appropriable. If any free property was available then it could be brought into
possession and ownership by mere taking. It has been very aptly said that all private
property is a system of monopolies and the right to monopolise lies at the foundation of the
institution of property. Pound (Reading; p. 420) in classifying right in rem puts private
property along with personal integrity [right against injury to life, body and health (body or
mental), personal liberty (free motion and locomotion)], Society and control of one's family
and dependents. An extremely valuable definition of ownership is to be found in the
Restatement of the Law of Property where it is said :
"It is the totality of rights as to any specific objects which are accorded by law, at any time
and place, after deducting social reservations".
219. This is the core from which some rights may be detached but to which they must
return when liberated.
220. The right to property in its primordial meaning involved the acquisition of a free
object by possession and conversion of this possession into ownership by the protection of
State or the ability to exclude interference. As the notion of a State grew, the right of
property was strong or weak according to the force of political opinion backing it or the
legislative support of the State. The English considered the right as the foundation of
society. Blackstone (Commentaries) explained it on religious and social grounds claiming
universality for it and called it the right of the English people. William Paley (Moral
Philosophy), although he thought the institution paradoxical and unnatural, found it full of
advantages and Mackintosh in his famous diatribe against the French Revolution described
it as the "sheet-anchor of society". This institution appeared in the Magna Carta, in the
American Declaration of Independence and the French Declaration of Rights of Man. Later
we find it in many Constitutions described as Fundamental, general and guaranteed (Under
the Constitution of Norway the rights (Odels and Asaete rights) cannot be abolished but if
the State requires the owner must surrender the property and he is compensated).
221. Our Constitution accepted the theory that Right of Property is a fundamental right. In
my opinion it was an error to place it in that category. Like the original Art. 16 of the Draft
Bill of the Constitution which assured freedom of trade, commerce and intercourse within
the territory of India as a fundamental right but was later removed, the right of property
should have been placed in a different chapter. Of all the fundamental rights it is the
weakest. Even in the most democratic of Constitutions, (namely, the West German

Constitution of 1949) there was a provision that lands, minerals and means of production
might be socialised or subjected to control. Art. 31, if it contemplated socialization in the
same way in India should not have insisted so plainly upon payment of compensation.
Several speakers warned Pandit Nehru and others of the danger of the second clause of
Art. 31, but it seems that the Constituent Assembly was quite content that under it the
Judiciary would have no say in the matter of compensation. Perhaps the dead hand of
s. 299 of the Constitution Act of 1935 was upon the Constituent Assembly. Ignored were
the resolutions passed by the National Planning Committee of the Congress (1941) which
had advocated the co-operative principle for exploitation of land, the Resolution of 1947
that land with its mineral resources and all other means of production as well as
distribution and exchange must belong to and be regulated by the Community, and the
warning of Mahatma Gandhi that if compensation had to be paid we would have to rob
Peter to pay Paul (Gandhi : Constituent Assembly Debates Vol. IX pp. 1204-06). In the
Constituent Assembly, the Congress (which wielded the majority then, as it does today)
was satisfied with the Report of the Congress Agrarian Reforms Committee 1949 which
declared itself in favour of the elimination of all intermediaries between the State and the
tiller and imposition of prohibition against subletting. The Abolition Bills were the result.
Obviously the Sardar Patel Committee on Fundamental Rights was not prepared to go far.
In the debates that followed, many amendments and suggestions to alter the draft article
protecting property, failed. The attitude was summed up by Sardar Patel. He conceded that
land would be required for public purposes but hopefully added : "not only land but so
many other things may have to be acquired. And the State will acquire them after paying
compensation and not expropriate them". (Patel : Constituent Assembly Debates Vol. I p.
517).
222. What was then the theory about Right to Property accepted by the Constituent
Assembly ? Again I can only describe it historically. Grotius (Grotius : De jure Belli ac
Pacis. II c. 2 2 (5) 6. I c. 1 6 and II c. 14 7 and 8), had treated the right as an
acquired right (ius quaesitum) and ownership (dominium) as either serving individual
interests (vulgare) or for the public good (eminens). According to him, the acquired right
had to give way to eminent domain (ex vi auper-eminentis domini) but there must be public
interest (publicautilitas) and if possible compensation. In the social contract theory also the
contract included protection of property with recognition of the power of the rule to act in
the public interest and emergency. Our constitutional theory treated property rights as
inviolable except through law for public good and on payment of compensation. Our
Constitution saw the matter in the way of Grotius but overlooked the possibility that just
compensation may not be possible. It follows almost literally the German jurist Ulrich
Zasius (except in one respect) : Princeps non potest auferee mihi rem mean sive iure
gentium, sive civile sit facta mea.
223. All would have been well if the Courts had construed Article 31 differently. However,
the decisions of the High Courts and the Supreme Court, interpreting and expounding this

philosophy took a different view of compensation. I shall refer only to some of them. First
the Patna High Court in Kameshwar v. Bihar A.I.R. 1951 Pat 91, applied Art. 14 to strike
down the Reforms Act in Bihar holding it to be discriminatory. This need not have
occasioned an amendment because the matter could have been righted, and indeed it was,
by an appeal to the Supreme Court [see State of Bihar v. Kameshwar
MANU/SC/0019/1952
: [1952]1SCR889 ]. The Constitution (First Amendment)

Act, 1951 followed. It left Art. 31 intact but added two fresh articles, Arts. 31-A and 31B which are respectively headed "saving of laws providing for acquisition of estates etc."
and "Validation of certain Acts and Regulations" and added a schedule (Ninth) to be read
with Art. 31-Bnaming therein thirteen Acts of the State Legislatures. Article 31-A was
deemed always to have been inserted and Art. 31-B wiped out retrospectively all decisions
of the courts which had declared any of the scheduled Acts to be invalid. The texts of these
new articles may now be seen :
"31-A. Saving of laws providing for acquisition of estates, etc. (1) Notwithstanding anything in foregoing provisions of this Part, no law providing
for the acquisition by the State of any estate or of any rights therein or for the
extinguishment or modification of any such rights shall be deemed to be void on
the ground that it is inconsistent with, or takes away or abridges any of the rights
conferred by, any provisions of this Part :
Provided that where such law is a law made by the Legislature of a State, the
provisions of this article shall not apply thereto unless such law, having been
reserved for the consideration of the President, has received his assent.
(2) In this article, (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 any jagir, inam or muafi or
other similar grant;
(b) the expression "right" in relation to an estate shall include any rights vesting in
a proprietor, sub-proprietor, tenure-holder or other intermediary and any rights or
privileges in respect of land revenue".
"31-B. Validation of certain Acts and Regulations.
Without prejudice to the generality of the provisions contained in article 31A, none
of the Acts and Regulations specified in the Ninth Schedule nor any of the

provisions thereof shall be deemed to be void, or ever to have become void, on the
ground that such Act, Regulation or provision is inconsistent with, or takes away or
abridges any of the rights conferred by, any provision of this Part, and
notwithstanding any judgment, decree or order of any court or tribunal to the
contrary, each of the said Acts and Regulations shall, subject to the power of any
competent Legislature to repeal or amend it, continue in force".
224. Article 31-A has been a Protean article. It has changed its face many times. Article 31B has remained the same till today but the Ninth Schedule has grown. The Constitution
(Fourth Amendment) Act, 1955, took the number of the Scheduled statutes to 20 and the
Constitution (Seventeenth Amendment) Act, 1964 to 64 and a so-called explanation which
saved the application of the Proviso in Art. 31-A, was also added. The device [approved by
Sankari Prasad's caseMANU/SC/0013/1951
: [1952]1SCR89 ], was found so

attractive that many more Acts were sought to be included but were dropped on second
thoughts. Even so, one wonders how the Railway Companies (Emergency Provisions) Act,
1951, The West Bengal Land Development and Planning Act and some others could have
been thought of in this connection. By this device, which can be extended easily to other
spheres, the Fundamental Rights can be completely emasculated by a 2/3 majority, even
though they cannot be touched in the ordinary way by a unanimous vote of the same body
of men. The State Legislatures may drive a coach and pair through the Fundamental Rights
and the Parliament by 2/3 majority will then put them outside the jurisdiction of the courts.
Was it really intended that the restriction against the State in Arts. 13(2) might be overcome
by the two agencies acting hand in hand ?
225. Article 31-A dealt with the acquisition by the State of an 'estate' or of any rights
therein or the extinguishment or modification of any such rights. A law of the State could
do these with the President's assent, although it took away or abridged any of the rights
conferred by any provisions of Part III. The words 'estate' and 'rights in relation to an estate'
were defined. The constitutional amendment was challenged in Sankari Prasad's
case MANU/SC/0013/1951
: [1952]1SCR89 , on various grounds but was upheld

mainly on two grounds to which I objected in Sajjan Singh's case MANU/SC/0052/1964

: [1965]1SCR933 . I have shown in this judgment, for reasons which I need not

repeat and which must be read in addition to what I said on the earlier occasion, that I
disagree respectfully but strongly with the view of the Court in those two cases. This
touches the first part of the amendment which created Art. 31-A. I do not and cannot
question Art. 31-A because (a) it was not considered at the hearing of this case, and (b) it

has stood for a long time as part of the Constitution under the decision of this Court and
has been acquiesced in by the people. If I was free I should say that the amendment was
not legal and certainly not justified by the reasons given in the earlier cases of this Court.
Under the original Art. 31, compensation had to be paid for acquisition by the State. This
was the minimum requirement of Art. 31(1) and (2) and no amendment could be made by a
constituted Parliament to avoid compensation. A law made by a constituted Parliament had
to conform to Art. 13(2) and Art. 31 could not be ignored.
226. In 1954 the Supreme Court in a series of cases drew the distinction between Art. 19(1)
(f) and Art. 31, particularly in West Bengal v. Subodh Gopal MANU/SC/0018/1953
: [1954]1SCR587 , Dwarkadas Srinivas v. Sholapur Spinning Co.

MANU/SC/0017/1953

: [1954]1SCR558 . In State of West Bengal v. Mrs. Bela

Banerjee and Others [1954] S.C.R. 678, this Court held that compensation in
Art. 31(2) meant just equivalent, i.e. 'full and fair money equivalent' thus making the
adequacy of compensation justiciable.
227. The Constitution (Fourth Amendment) Act, 1955 then amended both Art. 31 and
Art. 31-A. Clause (2) of Art. 31 was substituted by "(2) No property shall be compulsorily acquired or requisitioned save for public purpose and
save by authority of a law which provides for compensation for the property so acquired or
requisitioned and either fixes the amount of the compensation or specifies the principles on
which, and the manner in which, the compensation is to be determined and given; and no
such law shall be called in question in any court on the ground that the compensation
provided by that law is not adequate".
228. The opening words of the former second clause were modified to make them more
effective but the muzzling of courts in the matter of adequacy of the compensation was the
important move. As Basu says :
"It is evident that the 1955 amendment of clause (2) eats into the vitals of the constitutional
mandate to pay compensation and demonstrate a drift from the moorings of the American
concept of private property and judicial review to which our Constitution was hitherto tied, to
that of socialism". (Basu : Commentaries on the Constitution of India (5th Edn.) Vol. 2 p.
230).
229. It is appropriate to recall here that as expounded by Professor Beard (An Economic
Interpretation of the United States Constitution) (whose views offended Holmes and the
Times of New York but which are now being recognised after his further explanation (See

Laski : The American Democracy; Weaver : Constitutional Law, Brown : Charles Beard
and the Constitution : Willis Constitutional Law) the Constitution of the United States is an
economic document prepared by men who were wealthy or allied with property rights, that
it is based on the concept that the fundamental rights of property are anterior to
Government and morally beyond the reach of popular majorities and that the Supreme
Court of the United States preserved the property rights till the New Deal era. The threat at
that time was to enlarge the Supreme Court but not to amend the Constitution. It appears
that the Indian Socialists charged with the idea of Marx, the Webbs, Green, Laski and
others viewed property rights in a different way. Pandit Nehru once said that he had no
property sense, meaning that he did not value property at all. The Constitution seems to
have changed its property sense significantly. In addition to avoiding the concept of just
compensation, the amendment added a new clause (2A) as follows :"(2A) Where a law does not provide for the transfer of the ownership or right to possession of
any property to the State or to a corporation owned or controlled by the State, it shall not be
deemed to provide for the compulsory acquisition or requisitioning of property,
notwithstanding that it deprives any person of his property".
230. This narrowed the field in which compensation was payable. In addition to this, clause
(1) of Art. 31-A was substituted and was deemed to be always substituted by a new clause
which provided :
"(1) Notwithstanding anything contained in article 13, no law providing for (a) the acquisition by the State of any estate or of any rights therein or the
extinguishment or modification of any such rights, or
(b) the taking over of the management of any property by the State for a limited
period either in the public interest or in order to secure the proper management of
the property, or
(c) amalgamation of two or more corporations either in the public interest or in
order to secure the proper management of any of the corporation, or
(d) the extinguishment or modification of any rights of managing agents,
secretaries and treasurers, managing directors, directors or managers of
corporations, or of any voting rights of shareholders thereof, or
(e) the extinguishment or modification of any rights accruing by virtue of any
agreement, lease of licence for the purpose of searching for, or winning, any
mineral or mineral oil, or the premature termination or cancellation of any such
agreement, lease or licence,

shall be deemed to be void on the ground that it is inconsistent with, or takes away
or abridges any of the rights conferred by Art. 14, article 19 or article 31 :
Provided that where such law is a law made by the Legislature of a State, the
provisions of this article shall not apply thereto unless such law, having been
reserved for the consideration of the President, has received his assent".
231. In clause (2) (a) after the word 'grant', the words "and in any State of Madras and
Travancore Cochin, any Janmam right" were inserted and deemed always to have been
inserted; and in clause (2)(b) after the words 'tenure-holder' the words "raiyat, under raiyat"
were inserted and deemed always to have been inserted. Once again the reach of the State
towards private property was made longer and curiously enough he was done
retrospectively from the time of the Constituent Assembly and, so to speak in its name. As
to the retrospective operation of these constitutional amendments I entertain considerable
doubt. A Constituent Assembly makes a new Constitution for itself. Parliament is not even
a Constituent Assembly and to abridge fundamental rights in the name of the Constituent
Assembly appears anomalous. I am reminded of the conversation between Napoleon and
Abe Sieyes, the great jurist whose ability to draw up one Constitution after another has
been recognised and none of whose efforts lasted for long. When Napoleon asked him
"what has survived ?" Abe Sieyes answered "I have survived". I wonder if the Constituent
Assembly will be able to say the same thing. What it had written on the subject of property
rights, appears to have been written on water. The Fourth Amendment served to do away
with the distinction made by this Court between Arts. 19 and 31 and the theory of just
compensation. The Fourth Amendment has not been challenged before us. Nor was it
challenged at any time before. For the reasons for which I have declined to consider the
First Amendment. I refrain from considering the validity of the Fourth Amendment. It may,
however, be stated here that if I was free to consider it, I would have found great difficulty
in accepting that the constitutional guarantee could be abridged in this way.
232. I may say here that the method I have followed in not reconsidering an amendment
which has stood for a long time, was also invoked by the Supreme Court of United States
in Leser v. Garnett [1922] 258 U.S. 130. A constitution works only because of universal
recognition. This recognition may be voluntary or forced where people have lost liberty of
speech. But the acquiescence of the people is necessary for the working of the Constitution.
The examples of our neighbours, of Germany, of Rhodesia and others illustrates the
recognition of Constitutions by acquiescence. It is obvious that it is good sense and sound
policy for the Courts to decline to take up an amendment for consideration after a
considerable lapse of time when it was not challenged before, or was sustained on an
earlier occasion after challenge.
233. It is necessary to pause here and see what the property rights have become under the
repeated and retrospective amendments of the Constitution. I have already said that the

Constitution started with the concept of which Grotius may be said to be the author,
although his name is not particularly famous for theories of constitutional or municipal
laws. The socialistic tendencies which the amendments now manifest take into
consideration some later theories about the institution of property. When the original
Art. 31 was moved by Pandit Jawaharlal Nehru, he had described it as a compromise
between various approaches to the question and said that it did justice and equality not only
to the individual but also to the community. He accepted the principle of compensation but
compensation as determined by the Legislature and not the Judiciary. His words were :
"The law should do it. Parliament should do it. There is not reference in this to any judiciary
coming into the picture. Much thought has been given to it and there has been much debate as
to where the judiciary comes in. Eminent lawyers have told us that on a proper construction
of this clause, normally speaking the judiciary should not come in. Parliament fixes either the
compensation itself or the principle governing that compensation and they should not be
challenged except for one reason, where it is thought that there has bee a gross abuse of the
law, where, in fact, there has been a fraud on the Constitution. Naturally the judiciary comes
in to see if there has been a fraud on the Constitution or not". (Constituent Assembly Debates
Vol. IX pp. 1193-1195).
234. He traced the evolution of property and observed that property was becoming a
question of credit, of monopolies, that there were two approaches, the approach of the
Individual and the approach of the community. He expressed himself for protection of the
individual's rights. (Constituent Assembly Debates Vol. IX p. 1135). The attitude changed
at the time of the First Amendment. Pandit Nehru prophesied that the basic problem would
come before the House from time to time. That it has, there is no doubt, just as there is no
doubt that each time the individual's rights have suffered.
235. Of course, the growth of collectivist theories have made else-where considerable
inroads into the right of property. In Russia there is no private ownership of land and even
in the Federal Capital Territory of Australia, the ownership of land is with the Crown and
the individual can get a leasehold right only. Justification for this is found in the fact that
the State must benefit from the rise in the value of land. The paucity of land and of
dwelling house have led to the control of urban properties and creation of statutory
tenancies. In our country a ceiling is put on agricultural land held by an individual. The
Supreme Court, in spite of this, has not frustrated any genuine legislation for agrarian reform. It has upheld that laws by which the lands from latifundia have been distributed
among the landless. It seems that as the Constitutions of Peru, Brazil, Poland, Latvia,
Lethuania and Mexico contain provisions for such reforms, mainly without payment of
compensation, our Parliament has taken the same road. Of course, the modern theory
regards the institution of property on a functional basis (See G. W. Paton : Text Book of
Jurisprudence (1964) pp. 484-485), which means that property to be productive must be
properly distributed. As many writers have said property is now a duty more than a right

and ownership of property entails a social obligation. Although Duguit (Transformations

du droit prive), who is ahead of others, things that the institution of property has undergone
a revolution, the rights of the Individual are not quite gone, except where Communism is
firmly entrenched. The rights are qualified but property belongs still to the owner. The
Seventeenth Amendment, however, seems to take us far away from even this qualified
concept, at least in so far as "estates" as defined by Art. 31-A. This is the culmination of a
process.
236. Previous to the Constitution (Seventeenth Amendment) Act the Constitution (Seventh
Amendment) Act, 1956 had given power indirectly by altering entry No. 42 in List III. The
entries may be read side by side :
"42. (Before Amendment) (After Amendment) Principles on which compensation
for Acquisition and requisitioning property acquired or requisitioned of property.
for the purposes of the Union or of a State or for any other public purpose is to be
determined, and the form and the manner in which such compensation is to be
given".
237. This removed the last reference to compensation in respect of acquisition and
requisition. What this amendment began, the Constitution (Seventeenth Amendment) Act,
1964 achieved in full. The Fourth Amendment had added to the comprehensive definition
of 'right in relation to an estate, the rights of raiyats and under-raiyats. This time the
expression 'estate' in Art. 31-A was amended retrospectively by a new definition which
reads :
"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;"
238. The only saving of compensation is now to be found in the second proviso added to
clause (1) of the article which reads :-

"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".
239. There is also the provision for compensation introduced indirectly in an Explanation
at the end of the Ninth Schedule, in respect of the Rajasthan Tenancy Act, 1955. By this
Explanation the provisions of this Tenancy Act in conflict with the proviso last quoted are
declared to be void.
240. The sum total of this amendment is that except for land within ceiling, all other land
can be acquired or rights therein extinguished or modified without compensation and no
challenge to the law can be made under Arts. 14, 19 or 31 of the Constitution. The same is
also true of the taking over of the management of any property by the State for a limited
period either in the public interest or in order to secure the proper management of the
property, or the amalgamation of two or more companies, or the extinguishment or
modification of any rights of managing agents, secretaries, treasurers, managing directors,
directors or managers, of corporations or of any voting right, of shareholders thereof or of
any rights by virtue of any agreement, lease, or licence for the purpose of searching for, or
winning, any mineral or mineral oil, or of the premature termination or cancellation of any
such agreement, lease or licence.
241. It will be noticed further that deprivation of property of any person is not to be
regarded as acquisition or requisition unless the benefit of the transfer of the ownership or
right to possession goes to the State or to a corporation owned or controlled by the State.
Acquisition or requisition in this limited sense alone requires that it should be or public
purpose and under authority of law which fixes the compensation or lays down the
principles on which and the manner in which compensation is to be determined and given
and the adequacy of the compensation cannot be any ground of attack. Further still
acquisition of estates and of rights therein and the taking over of property, amalgamation of
corporations, extinguishment or modification of rights in companies and mines may be
made regardless of Arts. 14, 19 and 31. In addition 64 State Acts are given special
protection from the courts regardless of their contents which may be in derogation of the
Fundamental Rights.
242. This is the kind of
Singh MANU/SC/0052/1964

amendment which has been upheld in Sajjan

: [1965]1SCR933 case on the theory of the

omnipotence of Art.368. The State had bound itself not to enact any law in derogation of
Fundamental Rights. Is the Seventeenth Amendment a law ? To this question my answer is
a categoric yes. It is no answer to say that this is an amendment and, therefore, not a law, or
that it is passed by a special power of voting. It is the action of the State all the same. The
State had put restraints on itself in law-making whether the laws were made without or
within the Constitution. It is also no answer to say that this Court in a Bench of five Judges
on one occasion and by a majority of 3 to 2 on another, has said the same thing. In a matter
of the interpretation of the Constitution this Court must look at the functioning of the
Constitution as a whole. The rules of res judicata and stare decisis are not always
appropriate in interpreting a Constitution, particularly when Art. 13(2) itself declares a law
to be void. The sanctity of a former judgment is for the matter then decided. In Plessy v.
Fergusson 163 U.S. 537, Harlan, J. alone dissented against the "separate but equal"
doctrine uttering the memorable words that there was no caste and that the Constitution of
the United States was 'colour blind'. This dissent made some Southern Senators to oppose
his grandson (Mr. Justice John Marshall Harlan) in 1954. It took fifty-eight years for the
words of Harlan, J.'s lone dissent (8 to 1) to become the law of the United States at least in
respect of segregation in the public schools [see Brown v. Board of Education [1954] 347
U.S. 483]. As Mark Twain said very truly - "Loyalty to a petrified opinion never yet broke
a chain or freed a human soul."
243. I am apprehensive that the erosion of the right to property may be practised against
other Fundamental Rights. If a halt is to be called, we must declare the right of Parliament
to abridge or take away Fundamental Rights. Small inroads lead to larger inroads and
become as habitual as before our freedom was won. The history of freedom is not only how
freedom is achieved but how it is preserved. I am of opinion that an attempt to abridge or
take away Fundamental Rights by a constituted Parliament even through an amendment of
the Constitution can be declared void. This Court has the power and jurisdiction to make
the declaration. I dissent from the opposite view expressed in Sajjan
Singh's MANU/SC/0052/1964
: [1965]1SCR933 case and I overrule that decision.

244. It remains to consider what is the extent of contravention. Here I must make it clear
that since the First, Fourth and Seventh Amendments are not before me and I have not,
therefore, questioned them, I must start with the provisions of Arts. 31, 31-A, 31-B, List III
and the Ninth Schedule as they were immediately preceding the Seventeenth Amendment. I
have elsewhere given a summary of the inroads made into property rights of individuals
and Corporations by these earlier amendments. By this amendment the definition of 'estate'
was repeated for the most part but was extended to include :
"(ii) any land held under ryotwari settlement;

(iii) any land held or let 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".
245. Further reach of acquisition or requisition without adequate compensation and without
a challenge under Arts. 14, 19 and 31 has now been made possible. There is no kind of
agricultural estate or land which cannot be acquired by the State even though it pays an
illusory compensation. The only exception is the second proviso added to Art. 31-A(1) by
which, lands within the ceiling limit applicable for the time being to a person personally
cultivating his land, may be acquired only on paying compensation at a rate which shall not
be less than the market value. This may prove to be an illusory protection. The ceiling may
be lowered by legislation. The State may leave the person an owner in name and acquire all
his other rights. The latter question did come before this Court in two cases - Ajit Singh
v. State of Punjab MANU/SC/0218/1966
: [1967]2SCR143 and Bhagat Ram and

Ors. v. State of Punjab and Ors. MANU/SC/0060/1966

: [1967]2SCR165 ,

decided on December 2, 1966. My brother Shelat and I described the device as a fraud
upon this proviso but it is obvious that a law lowering the ceiling to almost nothing cannot
be declared a fraud on the Constitution. In other words, the agricultural landholders hold
land as tenants-at-will. To achieve this a large number of Acts of the State Legislatures
have been added to the Ninth Schedule to bring them under the umbrella of Art. 31-B. This
list may grow.
246. In my opinion the extension of the definition of 'estate' to include ryotwari and
agricultural lands is an inroad into the Fundamental Rights but it cannot be questioned in
view of the existence of Art. 31-A(1)(a) as already amended. The constitutional
amendment is a law and Art. 31(1) permits the deprivation of property by authority of law.
The law may be made outside the Constitution or within it. The word 'law' in this clause
includes both ordinary law or an amendment of the Constitution. Since "no law providing
for the acquisition by the State of any estate or of any rights therein or the extinguishment
or modification of any such rights shall be deemed to be void on the ground that it is
inconsistent with, or takes away or abridges any of the rights conferred by Art. 14,
Art. 19 or Art.31", the Seventeenth Amendment when it gives a new definition of the word
'estate' cannot be questioned by reason of the Constitution as it exists. The new definition
of estate introduced by the amendment is beyond the reach of the courts not because it is
not law but because it is "law" and falls within that word in Art. 31(1)(2-A) and Art. 31A(1). I, therefore, sustain the new definition, not on the erroneous reasoning in Sajjan

Singh's case MANU/SC/0052/1964

: [1965]1SCR933 , but on the true

construction of the word 'law' as used in Arts. 13(2), 31(1)(2-A) and 31-A(1). The above
reason applies a fortiori to the inclusion of the proviso which preserves (for the time being)
the notion of compensation for deprivation of agricultural property. The proviso at least
saves something. It prevents the agricultural lands below the ceiling from being
appropriated without payment of proper compensation. It is clear that the proviso at least
cannot be held to abridge or take away fundamental rights. In the result I uphold the second
section of the Constitution (Seventeenth Amendment) Act, 1964.
247. This brings me to the third section of the Act. That does no more than add 44 State
Acts to the Ninth Schedule. The object of Art. 31-B, when it was enacted, was to save
certain State Acts notwithstanding judicial decision to the contrary. These Acts were
already protected by Art. 31. One can with difficulty understand such a provision. Now the
Schedule is being used to give advance protection to legislation which is known or
apprehended to derogate from the Fundamental Rights. The power under Art. 368,
whatever it may be, was given to amend the Constitution. Giving protection to statutes of
State Legislatures which offend the Constitution in its most fundamental part, can hardly
merit the description amendment of the Constitution. In fact in some cases it is not even
known whether the statutes in question stand in need of such aid. The intent is to silence
the courts and not to amend the Constitution. If these Acts were not included in the
Schedule they would have to face the Fundamental Rights and rely on Arts. 31 and 31-A to
save them. By this device protection far in excess of these articles is afforded to them. This
in my judgment is not a matter of amendment at all. The power which is given is for the
specific purpose of amending the Constitution and not to confer validity on State Acts
against the rest of the Constitution. If the President's assent did not do this, no more would
this section. I consider s. 3 of the Act to be invalid as an illegitimate exercise of the powers
of amendment however generous. Ours is the only Constitution in the world which carries
a long list of ordinary laws which it protects against itself. In the result I declare s. 3 to be
ultra vires the amending process.
248. As

stated by me

in Sajjan Singh's case MANU/SC/0052/1964

[1965]1SCR933 , Art. 368 outlines a process, which, if followed strictly, results in the
amendment of the Constitution. The article gives power to no particular person or persons.
All the named authorities have to act according to the letter of the article to achieve the
result. The procedure of amendment, if it can be called a power at all is a legislative power
but it is sui generis and outside the three lists in Schedule 7 of the Constitution. It does not
have to depend upon any entry in the lists.

249. Ordinarily there would be no limit to the extent of the amendatory legislation but the
Constitution itself makes distinctions. It states three methods and places certain bars. For
some amendments an ordinary majority is sufficient; for some others a 2/3rd majority of
the members present and voting with a majority of the total members, in each House is
necessary; and for some others in addition to the second requirement, ratification by at
least one half of the legislatures of the States must be forthcoming. Besides these methods,
Art. 13(2) puts an embargo on the legislative power of the State and consequently upon the
agencies of the State. By its means the boundaries of legislative action of any kind
including legislation to amend the Constitution have been marked out.
250. I have attempted to show here that under our Constitution revolution is not the only
alternative to change of Constitution under Art. 368. A Constitution can be changed by
consent or revolution. Rodee, Anderson and Christol (Introduction to Political Science, p.
32 et seq.) have shown the sovereignty of the People is either electoral or constituent.
When the People elect the Parliament and the Legislatures they exercise their electoral
sovereignty. It includes some constituent sovereignty also but only in so far as conceded.
The remaining constituent sovereignty which is contained in the Preamble and Part III is in
abeyance because of the curb placed by the People on the State under Art. 13(2). It is this
power which can be reproduced. I have indicated the method. Watson (Constitution, its
History, Application and Construction Vol. II (1910) p. 1301) (quoting Ames - On
Amendments p. 1 note 2) points out that the idea that provision should be made in the
instrument of Government itself for the method of its amendment is peculiarly American.
But even in the Constitution of the United States of America some matters were kept away
from the amendatory process either temporarily or permanently. Our Constitution has done
the same. Our Constitution provides for minorities, religions, socially and educationally
backward peoples, for ameliorating the condition of depressed classes, for removing class
distinctions, titles, etc. This reservation was made so that in the words of Mandison
(Federalist No. 10), men of factious tempers, of local prejudices, or sinister designs may
not by intrigue, by corruption, or other means, first obtain the suffrages and then betray the
interests of the people. It was to plug the loophole such as existed in s. 48of the Weimar
Constitution (See Louis L. Snyder : The Weimar Constitution, p. 42 et seq) that
Art. 13(2) was adopted. Of course, as Story (Commentaries on the Constitution of the
United States (1833) 2 687) says, an amendment process is a safety valve to let off all
temporary effervescence and excitement, as an effective instrument to control and adjust
the movements of the machinery when out of order or in danger of self-destruction but is
not an open valve to let out even that which was intended to be retained. In the words of
Wheare (K. C. Wheare : Modern Constitutions, p. 78) the people or a Constituent
Assembly acting on their behalf, has authority to enact a Constitution and by the same
token a portion of the Constitution placed outside the amendatory process by one
Constituent body can only be amended by another Constituent body. In the Commonwealth
of Australia Act the provisions of the last paragraph of s. 128 have been regarded as
mandatory and held to be clear limitations of the power of amendment. Dr. Jethro Brown

considered that the amendment of the paragraph was logically impossible even by a two
step amendment. Similarly, s. 105-A has been judicially considered in the Garnishee
case 46 C.L.R. 155 to be an exception to the power of amendment in s. 128 although
Wynes (Legislative, Executive and Judicial Powers in Australia pp. 695-698), does not
agree. I prefer the judicial view to that of Wynes. The same position obtains under our
Constitution in Art. 35 where the opening words are more than a non-obstante clause. They
exclude Art. 368 and even amendment of that article under the proviso. It is, therefore, a
grave error to think of Art. 368 as a code or as omnicompetent. It is the duty of this Court
to find the limits which the Constitution has set on the amendatory power and to enforce
those limits. This is what I have attempted to do in this judgment.
251. My conclusions are :
(i) that the Fundamental Rights are outside the amendatory process if the
amendment seeks to abridge or take away any of the rights;
(ii) that Sankari Prasad's case (and Sajjan Singh's case which followed it) conceded
the power of amendment over Part III of the Constitution on an erroneous view of
Art. 13(2) and 368;
(iii) that the First, Fourth and Seventh Amendments being part of the Constitution
by acquiescence for a long time, cannot now be challenged and they contain
authority for the Seventeenth Amendment;
(iv) that this Court having now laid down that Fundamental Rights cannot be
abridged or taken away by the exercise of amendatory process in Art. 368, any
further inroad into these rights as they exist today will be illegal and
unconstitutional unless it complies with Part III in general and Art. 13(2) in
particular;
(v) that for abridging or taking away Fundamental Rights, a Constituent body will
have to be convoked; and
(vi) that the two impugned Acts, namely, the Punjab Security of Land Tenures Act,
1953 (X of 1953) and the Mysore Land Reforms Act, 1961 (X of 1962) as amended
by Act XIV of 1965 are valid under the Constitution not because they are included
in Schedule 9 of the Constitution but because they are protected by Art. 31-A, and
the President's assent.
252. In view of my decision the several petitions will be dismissed, but without costs. The
State Acts Nos. 21-64 in the Ninth Schedule will have to be tested under Part III with such
protection as Arts. 31 and 31-A give to them.

253. Before parting with this case I only hope that the Fundamental Rights will be able to
withstand the pressure of textual readings by "the depth and toughness of their roots".
Bachawat, J.
254. The constitutionality of the Constitution First, Fourth and Seventeenth Amendment
Acts is challenged on the ground that the fundamental rights conferred by Part III are
inviolable and immune from amendment. It is said that art. 368 does not give any power of
amendment and, in any event, the amending power is limited expressly by art. 13(2) and
impliedly by the language of art. 368 and other articles as also the preamble. It is then said
that the power of amendment is abused and should be subject to restrictions. The Acts are
attacked also on the ground that they made changes in Arts. 226 and 245 and such changes
could not be made without complying with the proviso to art. 368. Article 31-B is
subjected to attack on several other grounds.
255. The constitutionality of the First Amendment was upheld in Sri Sankari Prasad Singh
Deo v. Union of India and State of Bihar MANU/SC/0013/1951
: [1952]1SCR89 ,

and that of the Seventeenth amendment, in Sajjan Singh v. State of Rajasthan

MANU/SC/0052/1964
: [1965]1SCR933 . The contention is that these cases were

wrongly decided.
256. Part XX of the Constitution specifically provides for its amendment. It consists of a
single article. Part XX is as follows :"PART XX.
Amendment of the Constitution
Procedure for amendment of the Constitution
368. An amendment of this Constitution may be initiated only by the introduction
of a Bill for the purpose in either House of Parliament, and when the Bill is passed
in each House by a majority of the total membership of that House and by a
majority of not less than two-thirds of the members of that House present and
voting, it shall be presented to the President for his assent and upon such assent
being given to the Bill, - the Constitution shall stand amended in accordance with
the terms of the Bill :
Provided that if such 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 I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article,
the amendment shall also require to be ratified by the Legislatures of not less than
one-half of the States by resolutions to that effect passed by those Legislatures
before the Bill making provision for such amendment is presented to the President
for assent".
257. The contention that article 368 prescribes only the procedure of amendment cannot be
accepted. The article not only prescribes the procedure but also gives the power of
amendment. If the procedure of art. 368 is followed, the Constitution "shall stand
amended" in accordance with the terms of the bill. It is because the power to amend is
given by the article that the Constitution stands amended. The proviso is enacted on the
assumption that the several articles mentioned in it are amendable. The object of the
proviso is to lay down a stricter procedure for amendment of the articles which would
otherwise have been amendable under the easier procedure of the main part. There is no
other provision in the Constitution under which these articles can be amended.
258. Articles 4, 169, Fifth Schedule Part D, and Sixth Schedule Para 21 empower the
Parliament to pass laws amending the provisions of the First, Fourth, Fifth and Sixth
Schedules and making amendments of the Constitution consequential on the abolition of
creation of the legislative councils in States, and by express provisions no such law is
deemed to be an amendment of the Constitution for the purposes of art. 368. All other
provisions of the Constitution can be amended by recourse to art. 368 only. No other article
confers the power of amending the Constitution.
259. Some articles are expressed to continue until provision is made by law [see
articles 59(3), 65(3), 73(2), 97, 98(3), 106, 135, 142(1), 148(3), 149, 171(2),186, 187(3), 1
89(3), 194(3), 195, 221(2), 283(1) and (2), 285, 313, 345, 372(1), 373]. Some articles
continue unless provision is made otherwise by law [see articles 120(2), 133(3), 210(2) and
some continue save as otherwise provided by law [see articles 239(1), 287]. Some articles
are
subject
to
the
provisions
of
any
law
to
be
made
[see
articles 137, 146(2), 225, 229(2), 241(3), 300(1), 309], and some are expressed not to
derogate from the power of making laws [see articles 5 to 11, 289(2)]. All these articles are
transitory in nature and cease to operate when provision is made by law on the subject.
None of them can be regarded as conferring the power of amendment of the Constitution.

Most of these articles continue until provision is made by law made by the Parliament. But
some of them continue until or unless provision is made by the State Legislature (see
articles 189(3), 194(3), 195, 210(2), 229(2), 300(1), 345) or by the appropriate legislature
(see articles 225, 241(3); these articles do not confer a power of amendment, for the State
legislature cannot amend the Constitution. Many of the above-mentioned articles and also
other articles (see articles 22(7), 32(3), 33 to 35, 139, 140, 239A, 241, 245 to
250, 252, 253, 258(2), 286(2), 302,307, 315(2), 327, 369 delegate powers of making laws
to the legislature. None of these articles gives the power of amending the Constitution.
260. It is said that Art. 248 List 1 item 97 of the 7th Schedule read with art. 246 give the
Parliament the power of amending the Constitution. This argument does not bear scrutiny.
Art. 248 and List I item 97 vest the residual power of legislation in the Parliament. Like
other powers of legislation, the residual power of the Parliament to make laws is by virtue
of Art. 245 subject to the provisions of the Constitution. No law made under the residual
power can derogate from the Constitution or amend it. If such a law purports to amend the
Constitution, it will be void. Under the residual power of legislation, the Parliament has no
power to make any law with respect to any matter enumerated in Lists II and III of the 7th
Schedule but under art. 368 even Lists II and III can be amended. The procedure for
constitutional amendments under art. 368 is different from the legislative procedure for
passing laws under the residual power of legislation. If a constitutional amendment could
be made by recourse to the residual power of legislation and the ordinarily legislative
procedure, art. 368 would be meaningless. The power of amending the Constitution is to be
found in art. 368 and not in Art. 248 and List I item 97. Like other Constitutions, our
Constitution makes express provisions for amending the Constitution.
261. The heading of art. 368 shows that it is a provision for amendment of the Constitution,
the marginal note refers to the procedure for amendment and the body shows that if the
procedure is followed, the Constitution shall stand amended by the power of the article.
262. Chapter VIII of the Australian Constitution consists of a single section (S. 128). The
heading is "Alteration of the Constitution". The marginal note is "Mode of altering the
Constitution". The body lays down the procedure for alteration. The opening words are :
"This Constitution shall not be altered except in the following manner". Nobody has
doubted that the section gives the power of amending the Constitution. Wynes in his book
on Legislative Executive and Judicial Powers in Australia, third edition, p. 695. stated "The
power of amendment extends to alteration of 'this Constitution' which includes
S. 128 itself. It is true that S. 128 is negative in form, but the power is implied by the terms
of the section".
263. Article 5 of the United States Constitution provides that a proposal for amendment of
the Constitution by the Congress on being ratified by three-fourths of the States "shall be
valid to all intents and purposes as part of this Constitution". The accepted view is that

"power to amend the Constitution was reserved by article 5" per Van Devanter, J. in Rhode
Island v. Palmer 253 U.S. 350 : 64 L.E.D. 946. Art. 368 uses stronger words. On the
passing of the bill for amendment under art. 368, "the Constitution shall stand amended in
accordance with the terms of the bill".
264. Article 368 gives the power of amending "this Constitution". This Constitution means
any of the provisions of the Constitution. No limitation on the amending power can be
gathered from the language of this article. Unless this power is restricted by some other
provision of the Constitution, each and every part of the Constitution may be amended
under art. 368. All the articles mentioned in the proviso are necessarily within this
amending power. From time to time major amendments have been made in the articles
mentioned
in
the
proviso
(see
articles 80
to
82, 124(2A), 131, 214, 217(3), 222(2), 224A, 226(1A), 230, 231, 241 and
Seventh
Schedule)
and
other
articles
(see
articles 1, 3, 66, 71, 85, 153, 158, 170, 174, 239, 239A, 240, 258A, 269, 280, 286, 290A, 2
91, 298, 305, 311, 316,350A, 350B, 371, 371A, 372A, 376, 379 to 391, the first, third and
fourth schedules), and minor amendments have been made in innumerable articles. No one
has doubted so far that these articles are amendable. Part III is a part of the Constitution
and is equally amendable.
265. It is argued that a Constitution Amendment Act is a law and therefore the power of
amendment given by art. 368 is limited by art. 13(2). Art. 13(2) is in these terms :"13(1) . . . . . . .
(2) The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall, to the
extent of the contravention, be void".
266. Now art. 368 gives the power of amending each and every provision of the
Constitution. Art. 13(2) is a part of the Constitution and is within the reach of the amending
power. In other words art. 13(2) is subject to the overriding power of art. 368 and is
controlled by it. Art. 368 is not controlled by art. 13(2) and the prohibitory injunction in
art. 13(2) is not directed against the amending power. Looked at from this broad angle,
art. 13(2) does not forbid the making of a constitutional amendment abridging or taking
away any right conferred by Part III.
267. Let us now view the matter from a narrower angle. The contention is that a
constitutional amendment under art. 368 is a law within the meaning of Art. 13. I am
inclined to think that this narrow contention must also be rejected.
268. In Art. 13 unless the context otherwise provides 'law' includes any ordinance, order,
bye-law, rule, regulation, notification, custom or usage having in the territory of india the

force of law [article 13(3)(a)]. The inclusive definition of law in Art. 13(3)(c) neither
expressly excludes nor expressly includes the Constitution or a constitutional amendment.
269. Now the term 'law' in its widest and generic sense includes the Constitution and a
constitutional amendment. But in the Constitution this term is employed to designate an
ordinary statue or legislative act in contradistinction to the Constitution or a constitutional
amendment. The Constitution is the basic law providing the framework of government and
creating the organs for the marking of the laws. The distinction between the Constitution
and the laws is so fundamental that the Constitution is not regarded as a law or a legislative
act. The Constitution means the Constitution as amended. An amendment in conformity
with art. 368 is a part of the Constitution and is likewise not a law.
270. The basic theory of our Constitution is that it cannot be changed by a law or
legislative Act. It is because special provision is made by articles 4, 169, Fifth Schedule
Part D and Sixth Schedule para 21 that some parts of the Constitution are amendable by
ordinary laws. But by express provision no such law is deemed to be a constitutional
amendment. Save as expressly provided in articles 4, 169, Fifth Schedule Part D and Sixth
Schedule para 21, no law can amend the Constitution, and a law which purports to make
such an amendment is void.
271. In Marbury v. Madison [1803] 1 Cra : 2 L. Ed. 60, Marshall, C.J., said :
"It is a proposition too plain to be contested, that the Constitution controls any
legislative Act repugnant to it; or, that the legislature may alter the Constitution by
an ordinary Act.
Between these alternatives there is no middle ground. The Constitution is either a
superior paramount law, unchangeable by ordinary means, or it is on a level with
ordinary legislative Acts, and, like other Acts, is alterable when the legislature shall
please to alter it. If the former part of the alternative be true, then a legislative Act
contrary to the Constitution is not law; if the latter part be true, then written
constitutions are absurd attempts, on the part of the people, to limit a power in its
own nature illimitable.
Certainly all those who have framed written constitutions contemplate them as
forming the fundamental and paramount law of the nation, and, consequently, the
theory of every such government must be, that an Act of the Legislature, repugnant
to the Constitution, is void. This theory is essentially attached to a written
constitution, and is consequently to be considered, by this court, as one of the
fundamental principles of our society".
272. It is because a Constitution Amendment Act can amend the Constitution and is not a
law that art. 368 avoids all reference to law making by the Parliament. As soon as a bill is

passed in conformity with art. 368 the Constitution stands amended in accordance with the
terms of the bill.
273. The power of amending the Constitution is not an ordinary law making power. It is to
be found in art. 368 and not in articles 245, 246 and 248 and the Seventh Schedule.
274. Nor is the procedure for amending the Constitution under art. 368 an ordinary law
making procedure. The common feature of the amending process under art. 368 and the
legislative procedure is that a bill must be passed by each House of Parliament and
assented to by the President. In other respects the amending process under art. 368 is very
different from the ordinary legislative process. A constitution amendment Act must be
initiated by a bill introduced for that purpose in either House of Parliament. The bill must
be passed in each House by not less than two thirds of the members present and voting, the
requisite quorum in each House being a majority of its total membership; and in cases
coming under the proviso, the amendment must be ratified by the legislature of not less
than one half of the States. Upon the bill so passed being assented to by the President, the
Constitution stands amended in accordance with the terms of the bill. The ordinary
legislative process is much easier. A bill initiating a law may be passed by a majority of the
members present and voting at a sitting of each House or at a joint sitting of the Houses,
the quorum for the meeting of either House being one tenth of the total number of members
of the House. The bill so passed on being assented to by the President becomes a law. A bill
though passed by all the members of both Houses cannot take effect as a Constitution
amendment Act unless it is initiated for the express purpose of amending the Constitution.
275. The essence of a written Constitution is that it cannot be changed by an ordinary law.
But most written Constitutions provide for their organic growth by constitutional
amendments. The main method of constitutional amendments are (1) by the ordinary
legislature but under certain restrictions, (2) by the people through a referendum, (3) by a
majority of all the units of a Federal State; (4) by a special convocation see C.F. Strong
Modern Political Institutions, 5th Edition, pp. 133-4, 146. Our Constitution has by
article 368 chosen the first and a combination of the first and the third methods.
276. The special attributes of constitutional amendment under art. 368 indicate that it is not
a law or a legislative act. Moreover it will be seen presently that the Constitution makers
could not have intended that the term "law" in art. 13(2) would include a constitutional
amendment under art. 368.
277. If a constitutional amendment creating a new fundamental right and incorporating it in
Part III were a law, it would not be open to the Parliament by a subsequent constitutional
amendment to abrogate the new fundamental right for such an amendment would be
repugnant to Part III. But the conclusion is absurd for the body which created the right can
surely take it away by the same process.

278. Shri A. K. Sen relied upon a decision of the Oklahoma Supreme Court in Riley v.
Carter 88 A.L.R. 1068, where it was held that for some purposes the Constitution of a State
was one of the laws of the State. But even in America, the term "law" does not ordinarily
include the Constitution or a constitutional amendment. In this connection, I will read the
following passage in Corpus Juris Secundum, Vol. XVI Title Constitutional Law Art. 1,
p.20 :
The term `constitution' is ordinarily employed to designate the organic law in
contradistinction to the term `law', which is generally used to designate statutes or legislative
enactments. Accordingly, the term `law' under this distinction does not include a
constitutional amendment. However, the term `law' may, in accordance with the context in
which it is used, comprehend or included the constitution or a constitutional provision or
amendment. A statute and a constitution, although of unequal dignity, are both `laws', and rest
on the will of the people".
279. In our Constitution, the expression "law" does not include either the constitution or a
constitutional amendment. For all these reasons we must hold that a constitutional
amendment under art. 368 is not a law within the meaning of art. 13(2).
280. I find no conflict between articles 13(2) and 368. The two articles operate in different
fields. Art. 13(2) operates on laws; it makes no express exception regarding a constitutional
amendment, because a constitutional amendment is not a law and is outside its purview.
Art. 368 occupies the field of constitutional amendments. It does not particularly refer to
the articles in Part III and many other articles, but on its true construction it gives the
power of amending each and every provision of the Constitution and necessarily takes in
Part III. Moreover, art. 368 gives the power of amending itself, and if express power for
amending the provisions of Part III were needed, such a power could be taken by an
amendment of the article.
281. It is said that the non-obstante clause in art. 35 shows that the article is not amendable.
No one has amended art. 35 and the point does not arise. Moreover, the non-obstante clause
is to be found in articles 258(1), 364, 369, 370 and 371A. No one has suggested that these
articles are not amendable.
282. The next contention is that there are implied limitations on the amending power. It is
said that apart from art. 13(2) there are expressions in Part III. which indicate that the
amending power cannot touch Part III. Part III is headed "fundamental rights". The right to
move the Supreme Court for enforcement of the rights conferred by this Part is guaranteed
by art. 32 and cannot be suspended except as otherwise provided for by the Constitution (art. 32(4)). It is said that the terms "fundamental" and "guarantee" indicate that the rights
conferred by Part III are not amendable. The argument overlooks the dynamic character of
the Constitution. While the Constitution is static, it is the fundamental law of the country,
the rights conferred by Part III are fundamental, the right under art. 32 is guaranteed, and

the principles of State policy enshrined in Part IV are fundamental in the governance of the
country. But the Constitution is never at rest; it changes with the progress of time.
Art. 368 provides the means for the dynamic changes in the Constitution. The scale of
values embodied in Parts III and IV is not immortal. Parts III and IV being parts of the
Constitution are not immune form amendment under art. 368.
283. Demands for safeguards of the rights embodied in Part III and IV may be traced to the
Constitution of India Bill 1895, the Congress Resolutions between 1917 and 1919, Mrs.
Beasant's Commonwealth of India Bill of 1925, the Report of the Nehru Committee set up
under the Congress Resolution in 1927, the Congress Resolution of March 1931 and the
Sapru Report of 1945. The american bill of rights, the constitutions of other countries, the
declaration of human rights by the United Nations and other declarations and charters gave
impetus to the demand. In this back-ground the Constituent Assembly embodied in
preamble to the Constitution the resolution to secure to all citizens social, economic and
political justice, liberty of thought, expression, belief, faith and worship, equality of status
and opportunity and fraternity assuring the dignity of the individual and the unity of the
nation and incorporated safeguards as to some human rights in Parts III and IV of the
Constitution after separating them into two parts on the Irish model. Part III contains the
passive obligations of the State. It enshrines the right of life, personal liberty, expression,
assembly, movement, residence, avocation, property, culture and education, constitutional
remedies, and protection against exploitation and obnoxious penal laws. The State shall not
deny these rights save as provided in the Constitution. Part IV contains the active
obligations of the State shall secure a social order in which social, economic and political
justice shall inform all the institutions of national life. Wealth and its source of production
shall not be concentrated in the hands of the few but shall be distributed so as to subserve
the common good, and there shall be adequate means of livelihood for all and equal pay for
equal work. The State shall endeavour to secure the health and strength of workers, the
right to work, to education and to assistance in cases of want, just and humane conditions
of work, a living wage for workers, a uniform civil code, free and compulsory education
for children. The State shall take steps to organize village panchayats, promote the
educational and economic interests of the weaker sections of the people, raise the level of
nutrition and standard of living, improve public health, organize agricultural and animal
husbandry separate the judiciary from executive and promote international peace and
security.
284. The active obligations of the State under Part IV are not justiciable. If a law made by
the state in accordance with the fundamental directives of Part IV comes in conflict with
the fundamental rights embodied in Part III, the law to the extent of repugnancy is void.
Soon after the Constitution came into force, it became apparent that laws for agrarian and
other reforms for implementing the directives of Part IV were liable to be struck down as
they infringed the provisions of Part III. From time to time constitutional amendments were
proposed with the professed object of validating these laws, superseding certain judicial

interpretations of the Constitution and curing defects in the original Constitution. The First,
Fourth, Sixteenth and Seventeenth Amendments made important changes in the
fundamental rights. The First amendment introduced clause (4) in art. 15 enabling the State
to make special provisions for the benefit of the socially and educationally backward class
of citizens, the scheduled castes and the scheduled tribes in derogation of
articles 15 and 29(2) with a view to implement Art. 46 and to supersede the decision in
State of Madras v. Champakam MANU/SC/0007/1951
: [1951]2SCR525 ,

substituted a new cl.(2) in art. 19with retrospective effect chiefly with a view to bring in
public order within the permissible restrictions and to supersede the decisions in Romesh
Thappar v. State of Madras MANU/SC/0007/1950
: 1950CriLJ1525 , Brij

Bhushan v. State of Delhi MANU/SC/0015/1952

: 1952CriLJ1373 , amended

clause (6) of art. 19 with a view to free state trading monopoly from the test of
reasonableness and to supersede the decision in Moti Lal v. Government of State of Uttar
Pradesh I.L.R. [1951] 1 All. 269. Under the stress of the First amendment it is now
suggested that Champakam's case MANU/SC/0007/1951
: [1951]2SCR525 ,

Romesh

Thappar's

case MANU/SC/0007/1950

1950CriLJ1525

and

Motilal's I.L.R. [1951] 1 All. 269 case were wrongly decided, and the amendments of
articles 15 and19 were in harmony with the original Constitution and made no real change
in it. It is to be noticed however that before the First amendment no attempt was made to
overrule these case, and but for the amendments, these judicial interpretations of the
Constitution would have continued to be the law of the land. The Zamindari Abolition Acts
were the subject of bitter attack by the zamindars. The Bihar Act though protected by
clause 6 of art. 31 from attack under art. 31 was struck down as violative of Art. 14 by the
Patna High Court (see State of Bihar v. Maharajadhiraj Sri Kameshwar Singh, while the
Uttar Pradesh Act (see Raja Surya Pal Singh v. The State of U.P.) and the Madhya Pradesh,
Act (see Vishweshwar Rao v. State of Madhya Pradesh MANU/SC/0020/1952
:

[1952]1SCR1020 , though upheld by the High Courts were under challenge in this Court.
The First amendment therefore introduced art. 31A, 31B and the Ninth Schedule with a
view to give effect to the policy of agrarian reforms, to secure distribution of large blocks
of land in the hands of the zamindars in conformity with art. 39, and to immunize specially

13 State Acts form attack under Part III. The validity of the First Amendment was upheld in
Sri Sankari Prasad Singh Deo's caseMANU/SC/0013/1951
: [1952]1SCR89 . The

Fourth amendment changed art. 31(2) with a view to supersede the decision in State of
West Bengal v. Bela Banerjee MANU/SC/0017/1953
: [1954]1SCR558 and to

provide that the adequacy of compensation for property compulsorily acquired would not
be justiciable, inserted Clause (2A) in art. 31 with a view to supersede the decisions in the
State of West Bengal v. Subodh Gopal Bose MANU/SC/0018/1953
:

[1954]1SCR587 , Dwarka Das Shrinivas v. Sholapur Spinning and Weaving Co., Ltd.,
MANU/SC/0019/1953
: [1954]1SCR674 , Saghir Ahmad v. The State of Uttar

Pradesh[1954] S.C.R. 1218, and to make it clear that clauses (1) and (2) of art. 31 relate to
different subject-matters and deprivation of property short of transference of ownership or
with to possession to the State should not be treated as compulsory acquisition of property.
The Fourth amendment also amended art 31A with a view to protect certain laws other than
agrarian laws and to give effect to the policy of fixing ceiling limits on land holdings and
included seven more Acts in the Ninth Schedule. One of the Acts (item 17) though upheld
in Jupiter General Insurance Co. v. Rajgopalan MANU/PH/0002/1952
, was the

subject

of

criticism

in

Dwarka

Das's

case MANU/SC/0019/1953

[1954]1SCR674 . The Sixteenth amendment amended clauses (2), (3) and (4) of art. 19 to
enable the imposition of reasonable restrictions in the interest of the sovereignty and
integrity of India. The Seventeenth amendment amended the definition of estate in
art. 31A with a view to supersede the decisions in Karimbil Kunhikoman v. State of
Kerala MANU/SC/0095/1961
: [1962] Supp. 1 S.C.R. 829 and A. P.

Krishnaswami Naidu v.State of Madras MANU/SC/0039/1964

: [1964]7SCR82

and added a proviso to art. 31A and included 44 more Acts in the Ninth Schedule, as some
of the Acts had been struck down as unconstitutional. The validity of the Seventeenth

amendment

was

upheld

in

Sajjan

Singh's

case MANU/SC/0052/1964

[1965]1SCR933 . Since 1951, numerous decisions of this Court have recognised the
validity of the First, Fourth and Seventeenth amendments. If the rights conferred by Part III
cannot be abridged or taken away by constitutional amendments, all these amendments
would be invalid. The Constitution makers could not have intended that the rights
conferred by Part III could not be altered for giving effect to the policy of Part IV. Nor was
it intended that defects in Part III could not be cured or that possible errors in judicial
interpretations of Part III could not be rectified by constitutional amendments.
285. There are other indications in the Constitution that the fundamental rights are not
intended to be inviolable. Some of the articles make express provision for abridgement of
some of the fundamental rights by law (see articles 16(3), 19(1) to
(6), 22(3), 23(2), 25(2), 28(2), 31(4) to (6), 33, 34). Articles 358 and 359enable the
suspension of fundamental rights during emergency. Likewise, art. 368 enables amendment
of the Constitution including all the provisions of Part III.
286. It is argued that the preamble secures the liberties grouped together in Part III and as
the preamble cannot be amended, Part III is not amendable. The argument overlooks that
the preamble is mirrored in the entire Constitution., If the rest of the Constitution is
amendable, Part III cannot stand on a higher footing. The objective of the preamble is
secured not only by Part III but also by Part IV and art. 368. The dynamic character of Part
IV may require drastic amendments of Part III by recourse to art. 368. Moreover the
preamble cannot control the unambiguous language of the articles of the Constitution, see
Wynes, Legislative Executive and Judicial Powers in Australia, third edition, pp. 694-5; in
Re Berubari Union & exchange of Enclaves MANU/SC/0049/1960
:

[1960]3SCR250 . The last case decided that the Parliament can under art. 368 amend
art. 1 of the Constitution so as to enable the cession of a part of the national territory to a
foreign power. The Court brushed aside the argument that "in the transfer of the areas of
Berubari to Pakistan the fundamental rights of thousands of persons are involved". The
case is an authority for the proposition that the Parliament can lawfully make a
constitutional amendment under art. 368authorising cession of a part of the national
territory and thereby destroying the fundamental rights of the citizens of the affected
territory, and this power under art. 368 is not limited by the preamble.
287. It is next argued that the people of India in exercise of their sovereign power have
placed the fundamental rights beyond the reach of the amending power. Reliance is placed

on the following passage in the judgment of Patanjali Sastri, J., in A. K. Gopalan v. The
State of Madras MANU/SC/0012/1950
: 1950CriLJ1383 :

There can be no doubt that the people of India have, in exercise if their sovereign will as
expressed in the Preamble, adopted the democratic ideal which assures to the citizen the
dignity of the individual and other cherished human values as a means to the full evolution
and expression of his personality, and in delegating to the Legislature the executive and the
Judiciary their respective powers in the Constitution, reserved to themselves certain
fundamental rights, so-called, I apprehend, because they have been retained by the people and
made paramount to the delegated powers, as in the American Model".
288. I find nothing in the passage contrary to the view unequivocally expressed by the
same learned Judge in Sri Sankari Prasad Singh Deo'sMANU/SC/0013/1951
:

[1952]1SCR89 case that the fundamental rights are amendable. The power to frame the
Constitution was vested in the Constituent Assembly by s. 8(1) of the Indian Independence
Act, 1947. The Constitution though legal in its origin was revolutionary in character and
accordingly the Constituent Assembly exercised its powers of framing the Constitution in
the name of the people. The objective resolution of the Assembly passed on January 22,
1947, solemnly declared that all power and authority of severing independent India, its
constituent parts, and organs and the Government were derived from the people. The
permeable to the Constitution declares that the people of India adopts, enacts and gives to
themselves the Constitution. In form and in substance the Constitution emanates from the
people. By the Constitution the people constituted themselves into a republic. Under the
Republic all public is derived from the people and is exercised by functionaries chosen
either directly or indirectly by the people. The Parliament can exercise only such powers as
are delegated to it under the Constitution. The people acting through the Constituent
Assembly reserved for themselves certain rights and liberties and ordained that they shall
not be curtailed by ordinary legislation. But the people by the same Constitution also
authorised the Parliament to make amendments to the Constitution. In the exercise of the
amending power the Parliament has ample authority to abridge or take away the
fundamental right under Par III.
289. It is urged that the word 'amend' imposes the limitation that an amendment must be an
improvement of the Constitution. Reliance is placed on the dictum in Livermore v. E. C.
Waite 102 Cal. 113-25 L.R.A. 312 : "On the other hand, the significance of the term
'amendment; implies such an addition or change within the lines of the original instrument
as will effect an improvement, or better carry out the purpose for which it was framed".
Now an attack on the eighteenth amendment of the U.S. Constitution based on this passage

was brushed aside by the U.S. Supreme Court in the decision in the National Prohibition
(Rhode Island v. Palmer -(sic) case. The decision totally negatived the contention that "an
amendment must be confined in its scope to an alteration or improvement of that which is
already contained in the Constitution and cannot change its basic structure, include new
grants of power to the federal Government nor relinquish in the State those which already
have been granted to it", see Cooley on Constitutional Law, Chapter III, Art. 5. pp. 46 &
47. I may also read a passage from Corpus Juris Secundum Vol. XVI, title 'Constitutional
Law, p. 26 thus : "The term 'amendment' as used in the constitutional article giving
Congress a power of proposal includes additions to as well as corrections of, matters
already treated, and there is nothing there which suggests that it is used in a restricted
sense".
290. Article 368 Indicates that the term "amend" means "change". The proviso is expressed
to apply to amendments which seek to make any "change" in certain articles. The main part
of art. 368 thus gives the power to amend or to make changes in the Constitution. A change
is not necessarily an improvement. Normally the change is made with the object of making
an improvement, but the experiment may fail to achieve the purpose. Even the plain
dictionary meaning of the word "amend" does not support the contention that an
amendment must take an improvement, see Oxford English Dictionary where the word
"amend" is defined thus : "4 to make professed improvement (in a measure before
Parliament); formally to alter in detail, though practically it may be to alter its principle so
as to thwart it". The 1st, 4th, 16th and 17th Amendment Act made changes in Part III of the
Constitution. All the changes are authorized by art. 368.
291. It is argued that under the amending power, the basic features of the Constitution
cannot be amended. Counsel said that they could not give an exhaustive catalogue of the
basic features, but sovereignty, the republican form of government the federal structure and
the fundamental right were some of the features. The Seventeenth Amendment has not
derogated from the sovereignty, the republican form of government and the federal
structure, and the question whether they can be touched by amendment does not arise for
decision. For the purposes of these cases, it is sufficient to say that the fundamental rights
are within the reach of the amending power.
292. It is said that in the course of the last 16 years there have been numerous amendments
in our Constitution whereas there have been very few amendments of the American
Constitution during the last 175 years. Our condition is not comparable with the American.
The dynamics of the social revolution in our country may require more rapid changes.
Moreover every part of our Constitutions is more easily amendable than the American.
Alan Gledhill in his book "The Republic of India", 1951 Edition, pp. 74 & 75, said :
"The Indian Founding Fathers were less determined than were their American predecessors to
impose rigidity on their Constitution...... The Indian Constitution assigns different degrees of

rigidity to its different parts, but any part of it can be more easily amended than the American
Constitution".
293. It is said that the Parliament is abusing its power of amendment by making too many
frequent changes. If the Parliament has the power to make the amendments, the choice of
making any particular amendment must be left to it. Questions of policy cannot be debated
in this Court. The possibility of abuse of a power is not the test of its existence. In Webb v.
Outrim [1907] A.C. 81, Lord Hobhouse said, "If they find that on the due construction of
the Act a legislative power falls within s. 92, it would be quite wrong of them to deny its
existence because by some possibility it may of be abused, or limit the range which
otherwise would be open to the Dominion Parliament". With reference to the doctrine of
implied prohibition against the exercise of power ascertained in accordance with ordinary
rules of construction, Knox C.J., in the Amalgamated Society of Engineers v. The Adelaide
Steamship Company Limited and others 28 C.L.R. 129, said, "It means the necessity of
protection against the aggression of some outside and possibly hostile body. It is based on
distrust, lest powers, if once conceded to the least degree, might be abused to the point of
destruction. But possible abuse of power is no reason in British law for limiting the natural
force of the language creating them".
294. The historical background in which the Constitution was framed shows that the ideas
embodied in Part III were not intended to be immutable. The Constituent Assembly was
composed of representatives of the provinces elected by the members of the lower houses
of the provincial legislatures and representatives of the Indian States elected by electoral
colleges constituted by the rules. The draft Constitution was released on February 26, 1948.
While the constitution was on the anvil, it was envisaged that future Parliaments would be
elected on the basis of adult suffrage. Such a provision was later incorporated in art. 326 of
the Constitution. In a special article written on August 15, 1948, Sir B. N. Rau remarked :
"It seems rather illogical that a constitution should be settled by simple majority by an
assembly elected indirectly on a very limited franchise and that it should not be capable of
being amended in the same way by a Parliament elected - and perhaps for the most part
elected directly by adult suffrage", (see B. N. Rau India's Constitution in the making, 2nd
Edition p. 394).
295. The conditions in India were rapidly changing and the country was in a state of flux
politically and economically. Sir B. N. Rau therefore recommended that the Parliament
should be empowered to amend the Constitution by its ordinary law making process for at
least the first five years. Earlier, para 8 of the Suggestions of the Indian National Congress
of May 12, 1946 and para 15 of the Proposal of the Cabinet Mission of May 16, 1946 had
recommended similar powers of revision by the Parliament during the initial years or at
stated intervals. The Constituent Assembly did not accept these recommendations. On
September 17, 1949 an amendment (No. 304) moved by Dr. Deshmukh providing for

amendment of the Constitution at any time by a clear majority in each house of Parliament
was negatived. The Assembly was conscious that future Parliaments elected on the basis of
adult suffrage would be more representative, but they took the view that art. 368 provided a
sufficiently flexible machinery for amending all parts of the Constitution. The Assembly
never entertained the proposal that any part of the Constitution including Part III should be
beyond the reach of the amending power. As a matter of fact, Dr. Deshmukh proposed an
amendment (No. 212) prohibiting any amendment of the rights with respect to property or
otherwise but on September 17, 1949 he withdrew this proposal (see Constituent Assembly
Debates Vol. IV pp. 1642-43).
296. The best exposition of the Constitution is that which it has received from
contemporaneous judicial decisions and enactments. We find a rare unanimity of view
among judges and legislators from the very commencement of the Constitution that the
fundamental rights are within the reach of the amending power. No one in the Parliament
doubted this proposition when the Constitution First Amendment Act of 1951 was passed.
It is remarkable that most of the members of this Parliament were also members of the
Constituent Assembly. In S. Krishnan and Others v. The State of Madras
MANU/SC/0008/1951
: [1951]2SCR621 , a case decided on May 7, 1951, Bose,

J. said :
"My concept of a fundamental right is something which Parliament cannot touch save by an
amendment of the Constitution".
297.

In

Sri

Sankari

Prasad

Singh

Deo's

case MANU/SC/0013/1951

[1952]1SCR89 , decided on October 5, 1951, this Court expressly decided that

fundamental rights could be abridged by a constitutional amendment. This view was acted
upon in all the subsequent decisions and was reaffirmed in Sajjan Singh's
caseMANU/SC/0052/1964
: [1965]1SCR933 . Two learned Judges then expressed

some doubt but even they agreed with the rest of the court in upholding the validity of the
amendments.
298. A static system of laws is the worst tyranny that any constitution can impose upon a
country. An unamendable constitution means that all reform and progress are at a standstill. If Parliament cannot amend Part III of the Constitution even by recourse to art. 368,
no other power can do so. There is no provision in the Constitution for calling a convention
for its revision or for submission of any proposal for amendment to the referendum. Even if

power to call a convention or to submit a proposal to the referendum be taken by

amendment of art. 368, Part III would still remain unamendable on the assumption that a
constitutional amendment is a law. Not even the unanimous vote of the 500 million citizens
or their representatives at a special convocation could amend Part III. The deadlock could
be resolved by revolution only. Such a consequence was not intended by the framers of the
Constitution. The Constitution is meant to endure.
299. It has been suggested that the parliament may provide for another Constituent
Assembly by amending the Constitution and that Assembly can amend Part III and take
away or abridge the fundamental rights. Now if this proposition is correct, a suitable
amendment of the Constitution may provide that the Parliament will be the Constituent
Assembly and thereupon the Parliament may amend Part III. If so, I do not see why under
the Constitution as it stands now, the Parliament cannot be regarded as a recreation of the
Constituent Assembly for the special purpose of making constitutional amendments under
art. 368, and why the amending power cannot be regarded as a constituent power as was
held in Sri Sankari Prasad Singh Deo's MANU/SC/0013/1951
: [1952]1SCR89

case.
300. The contention that the constitutional amendments of Part III had the effect of
changing articles 226 and 245 and could not be passed without complying with the proviso
to art. 368 is not tenable. A constitutional amendment which does not profess to amend
Art. 226 directly or by inserting or striking words therein cannot be regarded as seeking to
make any change in it and thus falling within the constitutional inhibition of the proviso.
Art. 226 gives power to the High Court throughout the territories in relation to which it
exercises jurisdiction to issue to any person or authority within those territories directions,
orders and writs for the enforcement of any of the rights conferred by Part III and for any
other purpose. The Seventeenth Amendment made no direct change in Art. 226. It made
changes in Part III and abridged or took away some of the rights conferred by that Part. As
a result of the changes, some of those rights no longer exist and as the High Court cannot
issue writs for the enforcement of those rights its Power under Art. 226 is affected
incidentally. But an alteration in the area of its territories or in the number of persons or
authorities within those territories or in the number of enforceable rights under Part III or
other rights incidentally affecting the power of the High Court under Art. 226 cannot be
regarded as an amendment of that article.
301. Art. 245 empowers the Parliament and the Legislatures of the States to make laws
subject to the provisions of the Constitution. This power to make laws is subject to the
limitations imposed by Part III. The abridgement of the rights conferred by Part III by the
Seventeenth Amendment necessarily enlarged the scope of the legislative power, and thus

affected Art. 245 indirectly. But the Seventeenth amendment made no direct change in
Art. 245 and did not amend it.
302. Art. 31B retrospectively validated the Acts mentioned in the Ninth Schedule
notwithstanding any judgment decree or order of any court though they take away or
abridge the rights conferred by Part III. It is said that the Acts are still-born and cannot be
validated. But by force of Art. 31B the Acts are deemed never to have become void and
must be regarded as valid from their inception. The power to amend the Constitution
carries with it the power to make a retrospective amendment. It is said that art. 31B amends
art. 141 as it alters the law declared by this Court on the validity of the Acts. This argument
is baseless. As the Constitution is amended retrospectively, the basis upon which the
judgments of this Court were pronounced no longer exists, and the law declared by this
Court can have no application. It is said that art. 31B is a law with respect to land and other
matters within the competence of the State Legislature, and the Parliament has no power to
enact such a law. The argument is based on a misconception. The Parliament has not passed
any of the Acts mentioned in the Ninth Schedule. Art. 31B removed the constitutional bar
on the making of the Acts. Only the Parliament could remove the bar by the Constitution
amendment. It has done so by art. 31B. The Parliament could amend each article in Part III
separately and provide that the Acts would be protected from attack under each article.
Instead of amending each article separately, the Parliament has by art. 31B made a
comprehensive amendment of all the articles by providing that the Acts shall not be
deemed to be void on the ground that they are inconsistent with any of them. The Acts as
they stood on the date of the Constitution Amendments are validated. By the last part of
Art. 31B the competent legislatures will continue to retain the power to repeal or amend the
Acts. The subsequent repeals and amendments are not validated. If in future the competent
legislature passes a repealing or amending Act which is inconsistent with Part III it will be
void.
303. I have, therefore, come to the conclusion that the First, Fourth, Sixteenth and
Seventeenth Amendments are constitutional and are not void. If so, it is common ground
that these petitions must be dismissed.
304. For the last 16 years the validity of constitutional amendments of fundamental rights
have been recognized by the people and all the organs of the government including the
legislature, the judiciary and the executive. Revolutionary, social and economic changes
have taken place on the strength of the First, Fourth and Seventeenth Amendments. Even if
two views were possible on the question of the validity of the amendments, we should not
now reverse our previous decisions and pronounce them to be invalid. Having heard
lengthy arguments on the question I have come to the conclusion that the validity of the
constitutional amendments was rightly upheld in Sri Sankari Prasad Singh

Deo's MANU/SC/0013/1951

Singh's MANU/SC/0052/1964

[1952]1SCR89

and

Sajjan

: [1965]1SCR933 cases and I find no reason for

over-ruling them.
305. The First, Fourth and Seventeenth amendment Acts are subjected to bitter attacks
because they strike at the entrenched property rights. But the abolition of the zamindari
was a necessary reform. It is the first Constitution Amendment Act that made this reform
possible. No legal argument can restore the outmoded feudal zamindari system. What has
been done cannot be undone. The battle for the past is lost. The legal argument necessarily
shifts. The proposition now is that the Constitution Amendment Acts must be recognized to
be valid in the past but they must be struck down for the future. The argument leans on the
ready made American doctrine of prospective overruling.
306. Now the First, Fourth, Sixteenth and Seventeenth Amendment Acts take away and
abridge the rights conferred by Part III. If they are laws they are necessarily rendered void
by art. 13(2). If they are void, they do not legally exist from their very inception. They
cannot be valid from 1951 to 1967 and invalid thereafter. To say that they were valid in the
past and will be invalid in the future is to amend the Constitution. Such a naked power of
amendment of the Constitution is not given to the Judges. The argument for the petitioners
suffers from the double fallacy, the first that the Parliament has no power to amend Part III
so as to abridge or take away the entrenched property rights, and the second that the Judges
have the power to make such an amendment.
307. I may add that the First and the Fourth amendments are valid, the Seventeenth must
necessarily be valid. It is not possible to say that the First and Fourth amendments though
originally invalid have now been validated by acquiescence. If they infringed art. 13(2),
they were void from their inception. Referring to the 19th amendment of the U.S.
Constitution, Brandies, J. said in Leser v. Garnett 258 US 130 : 66 L.Ed. 505 :
"This Amendment is in character and phraseology precisely similar to the 15th. For each the
same method of adoption was pursued. One cannot be valid and the other invalid. That the
15th is valid, although rejected by six states, including Maryland, has been recognized and
acted on for half a century...... The suggestion that the 15th was incorporated in the
Constitution, not in accordance with law, but practically as a war measure, which has been
validated by acquiescence, cannot be entertained".
308. Moreover the Seventeenth amendment has been acted upon and its validity has been
upheld by this Court in Sajjan Singh's case. If the First and the Fourth Amendments are
vandated by acquiescence, the Seventeenth is equally validated.

309. Before concluding this judgment I must refer to some of the speeches made by the
members of the Constituent Assembly in the course of debates on the draft Constitution.
These speeches cannot be used as aids for interpreting the Constitution. See State of
Travancore-Cochin and others v. The Bombay Co. Ltd. MANU/SC/0068/1952
:

[1952]1SCR1112 . Accordingly, I do not rely on the, as aids to construction. But I propose

to refer to them as Shri A. K. Sen relied heavily on the speeches of Dr. B. R. Ambedkar.
According to him, the speeches of Dr. Ambedkar show that he did not regard the
fundamental rights as amendable. This contention is not supported by the speeches. Sri Sen
relied on the following passage in the speech of Dr. Ambedkar on September 17, 1949 :"We divide the articles of the Constitution under three categories. The first category
is the one which consists of articles which can be amended by Parliament by a bare
majority. The second set of articles are articles which require two-thirds majority. If
the future Parliament wishes to amend any particular article which is not mentioned
in Part III or art. 304, all that is necessary for them is to have two-thirds majority.
They can amend it.
Mr. President : Of Members present.
Yes. Now, we have no doubt put articles in a third category where for the purposes
of amendment the mechanism is somewhat different or double. It requires twothirds majority plus ratification by the States". (Constituent Assembly Debates Vol.
IX, p. 1661).
310. I understand this passage to mean that according to Dr. Ambedkar an amendment of
the articles mentioned in Part III and 368 requires two-thirds majority plus ratification by
the States He seems to have assumed (as reported) that the provisions of Part III fall within
the proviso to art. 368. But he never said that Part III was not amendable. He maintained
consistently that all the articles of the Constitution are amendable under art. 368. On
November 4, 1948, he said :
"The second means adopted to avoid rigidity and legalism is the provision for
facility with which the Constitution could be amended. The provisions of the
Constitution relating to the amendment of the Constitution divide the Articles of
the Constitution into two groups. In the one group are placed Articles relating to (a)
the distribution of legislative powers between the center and the States, (b) the
representation of the States in Parliament (c) the powers of the Courts. All other
Articles are placed in another group. Articles placed in the second group cover a
very large part of the Constitution and can be amended by Parliament by a double
majority, namely, a majority of not less than two-thirds of the members of each
House present and voting and by a majority of the total membership of each House.

The amendment of these Articles does not require ratification by the States. It is
only in those Articles which are placed in group one that an additional safeguard of
ratification by the States is introduced. One can therefore safely say that the Indian
Federation will not suffer from the faults of rigidity or legalism. Its distinguishing
feature is that it is a flexible Federation.
The provisions relating to amendment of the Constitution have come in for a
virulent attack at the hands of the critics of the Draft Constitution. It is said that the
provisions contained in the Draft make amendment difficult. It is proposed that the
Constitution should be amendable by a simple majority at least for some years. The
argument is subtle and ingenious. It is said that this Constituent Assembly is not
elected on adult suffrage while the future Parliament will be elected on adult
suffrage and yet the former has been given the right to pass the Constitution by a
simple majority while the latter has been denied the same right. it is paraded as one
of the absurdities of the Draft Constitution. I must repudiate the charge because it is
without foundation. To know how simple are the provisions of the Draft
Constitution in respect of amending the Constitution one has only to study the
provisions for amendment contained in the American and Australian Constitutions.
Compared to them those contained in the Draft Constitution will be found to be the
simplest. The Draft Constitution has eliminated the elaborate and difficult
procedures such as a decision by a convention or a referendum. The Powers of
amendment are left with the Legislatures Central and Provincial. It is only for
amendments or specific matters - and they are only few, that the ratification of the
State Legislatures is required. All other Articles of the Constitution are left to be
amended by parliament. The only limitation is that it shall be done by a majority of
not less than two-thirds of the members of each House present and voting and a
majority of the total membership of each House. It is difficult to conceive a simpler
method of amending the Constitution." (Constituent Assembly Debates Vol. 7, pp.
35-6, 43-4).
311. On December 9, 1948, Dr. Ambedkar said with reference to art. 32 :
"The Constitution has invested the Supreme Court with these rights and these writs could not
be taken away unless and until the Constitution itself is amended by means left open to the
legislature". (Constituent Assembly Debates Vol. 7, 953).
312. On November 25, 1949, Dr. Ambedkar strongly refuted the suggestion that
fundamental rights should be absolute and unalterable. He said :
"The condemnation of the Constitution largely comes from two quarters, the Communist
Party and the Socialist Party ....... The second thing that the Socialists want is that the
Fundamental Rights mentioned in the Constitution must be absolute and without any
limitations so that if their Party comes into power, they would have the unfettered freedom

not merely to criticize, but also to overthrow the State ........ Jefferson, the great American
statesman who played so great a part in the making of the American Constitution, has
expressed some very weighty views which makers of Constitution can never afford to ignore.
In one place he has said :- 'We may consider each generation as a distinct nation, with a right,
the will of the majority, to bind themselves, but none to bind the succeeding generation, more
than the inhabitants of another country. In another place, he has said : 'The idea that
institutions established for the use of the nation cannot be touched or modified, even to make
them answer their end, because of rights gratuitously supposed in those employed to manage
the min the trust for the public, may perhaps be a salutary provision against the abuses of a
monarch, but is most absurd against the nation itself. Yet our lawyers and priests generally
inculcate this doctrine, and suppose that preceding generations held the earth more freely than
we do; had a right to impose laws on us, unalterable by ourselves, and that we, in the like
manner, can make laws and impose burdens on future generations, which they will have no
right to alter; in fine, that the earth belongs to the dead and not the living. I admit that what
Jefferson has said is not merely true, but is absolutely true. There can be no question about it.
Had the Constituent Assembly departed from this principle laid down by Jefferson it would
certainly be liable to blame, even to condemnation. But I ask, has it ? Quite the contrary. One
has only to examine the provision relating to the amendment of the Constitution. The
Assembly has not only refrained from putting a seal of finality and infallibility upon this
Constitution by denying to the people the right to amend the Constitution as in Canada or by
making the amendment of the Constitution subject to the fulfilment of extraordinary terms
and conditions as in America of Australia but has provided a most facile procedure for
amending the Constitution. I challenge any of the critics of the Constitution to prove that any
Constituent Assembly anywhere in the world has, in the circumstances in which this country
finds itself, provided such a facile procedure for the amendment of the Constitution. If those
who are dissatisfied with the Constitution have only to obtain a 2/3 majority and if they
cannot obtain even a two-thirds majority in the parliament elected on adult franchise in their
favour, their dissatisfaction with the Constitution cannot be deemed to be shared by the
general public". (Constituent Assembly Debates Vol. II. pp. 975-6).
313. On November 11, 1948, Pandit Jawahar Lal Nehru said :
"And remember this, that while we want this Constitution to be as solid and as permanent a
structure as we can make it, nevertheless there is no permanence in Constitutions. There
should be a certain flexibility. If you make anything rigid and permanent, you stop a Nation's
growth, the growth of living vital organic people. Therefore it has to be flexible".
(Constituent Assembly Debates Vol. 7, p. 322).
314. The views of Jefferson echoed by Ambedkar and Nehru were more powerful
expressed by Thomas Paine in 1791 :

"There never did, there never will, and there never can, exist a parliament, or any description
of men, or any generation of men, in any country, possessed of the right or the power of
binding and controlling posterity to the 'end of time', or of commanding for ever how the
world shall be governed, or who shall govern it; and therefore all such clauses, acts or
declarations by which the makers of them attempt to do what they have neither the right nor
the power to do, nor take power to execute, are in themselves null and void. Every age and
generation must be as free to act for itself in all cases as the ages and generations which
preceded it. The vanity and presumption of governing beyond the grave is the most ridiculous
and insolent of all tyrannies. Man has no property in man; neither has any generation a
property in the generations which are to follow. The parliament of the people of 1688 or of
any other period, had no more right to dispose of the people of the present day, or to bind or
to control them in any shape whatever, than the parliament or the people of the present day
have to dispose of, bind or control those who are to live a hundred or a thousand years hence.
Every generation is, and must be, competent to all the purposes which its occasions require. It
is the living, and not the dead, that are to be accommodated. When man ceases to be, his
power and his wants cease with him; and having no longer any participation in the concerns
of this world, he has no longer any authority in directing who shall be its governors, or how
its government shall be organized, or how administered". (See 'Rights of Man' by Thomas
Paine, unabridged edition by H. B. Bonner, pp. 3 & 4).
315. For the reasons given above, I agree with Wanchoo, J. that the writ petitions must be
dismissed.
316. In the result, the writ petitions are dismissed without costs.
Ramaswami, J.
317. I have perused the judgment of my learned Brother Wanchoo, J. and I agree with his
conclusion that the Constitution (Seventeenth Amendment) Act, 1964 is legally valid, but
in view of the importance of the constitutional issues raised in this case I would prefer to
state my own reasons in a separate judgment.
318. In these petitions which have been filed under Art. 32 of the Constitution a common
question arises for determination, viz., whether the Constitution (Seventeenth Amendment)
Act, 1964 which amends Art. 31-A and 31-B of the Constitution is ultra vires and
unconstitutional.
319. The petitioners are affected either by the Punjab Security of Land Tenures Act, 1954
(Act X of 1953) or by the Mysore Land Reforms Act (Act 10 of 1962) as amended by Act
14 of 1965 which were added to the 9th Schedule of the Constitution by the impugned Act
and their contention is that the impugned Act being unconstitutional and invalid, the
validity of the two Acts by which they are affected cannot be saved.

320. The impugned Act consists of three sections. The first section gives its short title.
Section 2(i) adds a proviso to clause (1) of Art. 31-A after the existing proviso. This
proviso reads thus :
"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".
321. Section 2(ii) substitutes the following sub-clause for sub-clause (a) of clause (2) of
Art. 31-A :"(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;
(ii) 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;"
322. Section 3 amends the 9th Schedule by adding 44 entries to it.
323. In dealing with the question about the validity of the impugned Act, it is necessary to
consider the scope and effect of the provisions contained in Art. 368 of the Constitution,
because the main controversy in the present applications turns upon the decision of the
question as to what is the construction of that Article. Article 368 reads as follows :
"An amendment of this Constitution may be initiated only by the introduction of a
Bill for the purpose in either House of Parliament, and when the Bill is passed in
each house by a majority of the total membership of that House and by a majority
of not less than two-thirds of the members of that House present and voting, it shall
be presented to the President for his assent and upon such assent being given to the
Bill, the Constitution shall stand amended in accordance with the terms of the Bill.

Provided that if such amendment seeks to make any change in (a) Article 5, article 55, article 73, article 162 or article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article,
the amendment shall also require to be ratified by the Legislatures of not less than
one-half of the States by resolutions to that effect passed by those Legislatures
before the Bill making provision for such amendment is presented to the President
for assent".
324. It is necessary at this stage to set out briefly the history of Arts. 31-A and 31-B. These
Articles were added to the Constitution with retrospective effect by s.4 of the Constitution
(First Amendment) Act, 1951. Soon after the promulgation of the Constitution, the political
party in power, commanding as it did a majority of votes in the several State legislatures as
well as in Parliament, carried out radical measures of agrarian reform in Bihar, Uttar
Pradesh and Madhya Pradesh by enacting legislation which may be referred to as
Zamindari Abolition Acts. Certain zamindars, feeling themselves aggrieved, attacked the
validity of those Acts in courts of law on the ground that they contravened the fundamental
rights conferred on them by Part III of the Constitution. The High Court of Patna held that
the Act passed in Bihar was unconstitutional while the High Courts of Allahabad and
Nagpur upheld the validity of the corresponding legislature in Uttar Pradesh and Madhya
Pradesh respectively (See Kameshwar v. State of Bihar A.I.R. 1951 Pat. 91 and Surya Pal
v. U. P. Government) MANU/UP/0037/1951
: AIR1951All674 . The parties

aggrieved by these respective decisions had filed appeals by special leave before this
Court. At the same time, petitions had also been preferred before this Court under
Art. 32 by certain other zamindars, seeking the determination of the same issues. It was at
this stage that the Union Government, with a view to put an end to all this litigation and to
remedy what they considered to be certain defects brought to light in the working of the
Constitution, brought forward a bill to amend the Constitution, which, after undergoing
amendments in various particulars, was passed by the requisite majority as the Constitution
(First Amendment) Act, 1951 by which Arts. 31-A and 31-B were added to the
Constitution. That was the first step taken by Parliament to assist the process of legislation
to bring about agrarian reform by introducing Articles 31-A and 31-B. The second step in
the same direction was taken by Parliament in 1955 by amending Art. 31-A by the

Constitution (Fourth Amendment) Act, 1955. The object of this amendment was to widen
the scope of agrarian reform and to confer on the legislative measures adopted in that
behalf immunity from a possible attack that they contravened the fundamental rights of
citizens. In other words, the amendment protected the legislative measures in respect of
certain other items of agrarian and social welfare legislation, which affected the proprietary
rights of certain citizens. At the time when the first amendment was made, Art. 31B expressly provided that none of the Acts and Regulations specified in the 9th Schedule,
nor any of the provisions thereof, shall be deemed to be void or ever to have become void
on the ground that they were inconsistent with or took away or abridged any of the rights
conferred by Part III, and it added that notwithstanding any judgment, decree or order of
any Court or tribunal to the contrary, each of the said Acts and Regulations shall subject to
the power of any competent legislature to repeal or amend, continue in force. At this time,
19 Acts were listed in Schedule 9, and they were thus effectively validated. One more Act
was added to this list by the Amendment Act of 1955, so that as a result of the second
amendment, the Schedule contained 20 Acts which were validated.
325. It appears that notwithstanding these amendments, certain other legislative measures
adopted by different States for the purpose of giving effect to the agrarian policy of the
party in power, were effectively challenged. For instance the Karimbil Kunhikoman v.
State of Kerala MANU/SC/0095/1961
: [1962] 1 S.C.R. 829, the validity of the

Kerala Agrarian Relations Act (IV of 1961) was challenged by writ petitions filed under
Art. 32, and as a result of the majority decisions of this Court, the whole Act was struck
down. The decision of this Court was pronounced on December 5, 1961. In A. P.
Krishnaswami Naidu v. The State of Madras MANU/SC/0039/1964
:

[1964]7SCR82 , the constitutionality of the Madras Land Reforms (Fixation of Ceiling on

Land) Act (No. 58 of 1961) was the subject-matter of debate, and by the decision of this
Court pronounced on March 9, 1964, it was declared that the whole Act was invalid. It
appears that the Rajasthan Tenancy Act III of 1955 and the Maharashtra Agricultural Lands
(Ceiling and Holdings) Act 27 of 1961 had been similarly declared invalid, and in
consequence, Parliament though it necessary to make a further amendment in Art. 31-B so
as to save the validity of these Acts which had been struck down and of other similar Acts
which were likely to be challenged. With that object in view, the impugned Act has enacted
s. 3 by which 44 Acts have been added to Schedule 9. It is therefore clear that the object of
the First, Fourth and the Seventeenth Amendments of the Constitution was to help the State
Legislatures to give effect to measures of agrarian reform in a broad and comprehensive
sense in the interests of a very large section of Indian citizens whose social and economic
welfare closely depends on the pursuit of progressive agrarian policy.

326. The first question presented for determination in this case is whether the impugned
Act, in so far as it purports to take away or abridge any of the fundamental rights conferred
by Part III of the Constitution, falls within the prohibition of Art. 13(2) which provides that
"the State shall not make any law which takes away or abridges the rights conferred by this
Part and any law made in contravention of this clause shall to the extent of the
contravention be void". In other words, the argument of the petitioners was that the law to
which Art. 13(2) applies, would include a law passed by Parliament by virtue of its
constituent power to amend the Constitution, and so, its validity will have to be tested by
Art. 13(2) itself. It was contended that "the State" includes Parliament within Art.12 and
"law" must include a constitutional amendment. It was said that it was the deliberate
intention of the framers of the Constitution, who realised the sanctity of the fundamental
rights conferred by Part III, to make them immune from interference not only by ordinary
laws passed by the legislatures in the country but also from constitutional amendments. In
my opinion, there is no substance in this argument. Although "law" must ordinarily include
constitutional law, there is a juristic distinction between ordinary law made in exercise of
legislative power and constitutional law which is made in exercise of constituent power. In
a written, federal form of Constitution there is a clear and well-known distinction between
the law of the Constitution and ordinary law made by the legislature on the basis of
separation of powers and pursuant to the power of law-making conferred by the
Constitution (See Dicey on 'Law of the Constitution', Tenth Edn. p. 110, Jennings, 'Law
and the Constitution' pp. 62-64, and 'American Jurisprudence', 2nd Edn., Vol. 16, p. 181).
In such a written Constitution, the amendment of the Constitution is a substantive,
constituent act which is made in the exercise of the sovereign power which created the
Constitution and which is effected by a special means, namely, by a predesigned
fundamental procedure unconnected with ordinary legislation. The amending power under
Art. 368 is hence sui generis and cannot be compared to the law-making power of
Parliament pursuant to Art. 246 read with List I and III. It follows that the expression "law"
in Art. 13(2) of the Constitution cannot be construed as including an amendment of the
Constitution which is achieved by Parliament in exercise of its sovereign constituent
power, but must mean law made by Parliament in its legislative capacity pursuant to the
powers of law-making given by the Constitution itself under Art. 246read with Lists I and
III of the 7th Schedule. It is also clear, on the same line of reasoning, that 'law' in
Art. 13(2) cannot be construed so as to include 'law' made by Parliament under
Arts. 4, 169, 392, 5th Schedule Part D and 6th Schedule para 21. The amending power of
Parliament exercised under these Articles stands on the same pedestal as the constitutional
amendment made under Art. 368 so far as Art. 13(2) is concerned and does not fall within
the definition of 'law' within the meaning of this last article.
327. It is necessary to add that the definition of 'law' in Art. 13(3) does not include in terms
a constitutional amendment, though it includes "any Ordinance, order, bye-law, rule,
regulation, notification, custom or usage". It should be noticed that the language of
Art. 368 is perfectly general and empowers Parliament to amend the Constitution without

any exception whatsoever. Had it been intended by the Constitution-makers that the
fundamental rights guaranteed under Part III should be completely outside the scope of
Art. 368, it is reasonable to assume that they would have made an express provision to that
effect. It was stressed by the petitioners during the course of the argument that Part III is
headed as "Fundamental Rights" and that Art. 32 "guarantees" the right to move the
Supreme Court by appropriate proceedings for enforcement of rights conferred by Part III.
But the expression "fundamental" in the phrase "Fundamental Rights" means that such
rights are fundamental vis-a-vis the laws of the legislatures and the acts of the executive
authorities mentioned in Art. 12. It cannot be suggested that the expression "fundamental"
lifts the fundamental rights above the Constitution itself. Similarly, the expression
"guaranteed" in Art. 32(1) and 32(4) means that the right to move the Supreme Court for
enforcement of fundamental rights without exhausting the normal channels through the
High Courts or the lower courts is guaranteed. This expression also does not place the
fundamental rights above the Constitution.
328. I proceed to consider the next question arising in this case, viz., the scope of the
amending power under Art. 368 of the Constitution. It is contended on behalf of the
petitioners that Art. 368 merely lays down the procedure for amendment and does not vest
the amending power as such in any agency constituted under that article. I am unable to
accept this argument as correct. Part XX of the Constitution which contains only Art. 368 is
described as a Part dealing with the Amendment of the Constitution; and Art. 368 which
prescribes the procedure for amendment of the Constitution, begins by saying that an
amendment of this Constitution may be initiated in the manner therein indicated. In my
opinion, the expression "amendment of the Constitution" in Art. 368 plainly and
unambiguously means amendment of all the provisions of the Constitution. It is
unreasonable to suggest that what Art. 368 provides is only the mechanics of the procedure
to be followed in amending the Constitution without indicating which provisions of the
Constitution can be amended and which cannot. Such a restrictive construction of the
substantive part of Art. 368 would be clearly untenable. The significant fact that a separate
Part has been devoted in the Constitution for "amendment of the Constitution" and there is
only one Article in that Part shows that both the power to amend and the procedure to
amend are enacted in Art.368. Again, the words "the Constitution shall stand amended in
accordance with the terms of the Bill" in Art. 368 clearly contemplate and provide for the
power to amend after the requisite procedure has been followed. Besides, the words used in
the proviso unambiguously indicate that the substantive part of the article applies to all the
provisions of the Constitution. It is on that basic assumption that the proviso prescribes a
specific procedure in respect of the amendment of the articles mentioned in cls. (a) to (e)
thereof. Therefore it must be held that when Art. 368 confers on Parliament the right to
amend the Constitution the power in question can be exercised over all the provisions of
the Constitution. How the power should be exercised, has to be determined by reference to
the question as to whether the proposed amendment falls under the substantive part of
Art. 368, or whether it attracts the procedure contained in the proviso.

329. It was suggested for the petitioners that the power of amendment is to be found in
Arts. 246 and 248 of the Constitution read with item 97 of List I of the 7th Schedule. I do
not think that it is possible to accept this argument. Article 246 states that Parliament has
exclusive power to make laws with respect to matters enumerated in List I in the Seventh
Schedule, and Art. 248, similarly, confers power on Parliament to make any law with
respect to any matter not enumerated in the Concurrent List or State List. But the power of
law-making in Arts. 246 and 248 is "subject to the provisions of this Constitution". It is
apparent that the power of constitutional amendment cannot fall within these Articles,
because it is illogical and a contradiction in terms to say that the amending power can be
exercised and at the same time it is "subject to the provisions of the Constitution".
330. It was then submitted on behalf of the petitioners that the amending power under
Art. 368 is subject to the doctrine of implied limitations. In other words, it was contended
that even if Art. 368 confers the power of amendment, it was not a general but restricted
power confined only to the amendable provisions of the Constitution, the amendability of
such provision being determined by the nature and character of the respective provision. It
was argued, for instance, that the amending power cannot be used to abolish the compact of
the Union or to destroy the democratic character of the Constitution guaranteeing
individual and minority rights. It was said that the Constitution was a permanent compact
of the States, that the federal character of the States was indissoluble, and that the existence
of any of the States as part of the federal compact cannot be put an end to by the power of
amendment. It was also said that the chapter of fundamental rights of the Constitution
cannot be the subject-matter of any amendment under Art. 368. It was contended that the
preamble to the Constitution declaring that India was a sovereign democratic republic was
beyond the scope of the amending power. It was suggested that other basic features of the
Constitution were the Articles relating to distribution of legislative powers, the
Parliamentary form of Government and the establishment of Supreme Court and the High
Courts in the various States. I am unable to accept this argument as correct. If the
Constitution makers considered that there were certain basic features of the Constitution
which were permanent it is most unlikely that they should not have expressly said in
Art. 368 that these basic features were not amendable. On the contrary, the Constitutionmakers have expressly provided that Art. 368 itself should be amendable by the process
indicated in the proviso to that Article. This circumstance is significant and suggests that all
the articles of the Constitution are amendable either under the proviso to Art. 368 or under
the main part of that Article. In my opinion, there is no room for an implication in the
construction of Art. 368. So far as the federal character of the Constitution is concerned it
was held by this Court in State of West Bengal v. Union of India MANU/SC/0086/1962
: [1964]1SCR371 , that the federal structure is not an essential part of our

Constitution and there is no compact between the States and there is no dual citizenship in
India. It was pointed out in that case that there was no constitutional guarantee against the

alteration of boundaries of the States. By Art. 3 the Parliament is by law authorised to form
a new State by redistribution of the territory of a State or by uniting two or more States or
parts of States or by uniting any territory to a part of any State, to increase the area of any
State, to diminish the area of any State, to alter the boundaries of any State, and to alter the
name of any State. In In Re : The Berubari Union and Exchange of
Enclaves MANU/SC/0049/1960
: [1960]3SCR250 , it was argued that the Indo-

Pakistan agreement with regard to Berubari could not be implemented even by legislation
under Art. 368 because of the limitation imposed but he preamble to the Constitution and
that such an agreement could not be implemented by a referendum. The argument was
rejected by this Court and it was held that the preamble could not, in any way, limit the
power of Parliament to cede parts of the national territory. On behalf of the petitioners the
argument was stressed that the chapter on fundamental rights was the basic feature of the
Constitution and cannot be the subject of the amending power under Art. 368. It was
argued that the freedoms of democratic life are secured by the chapter on fundamental
rights and the dignity of the individual cannot be preserved if any of the fundamental rights
is altered or diminished. It is not possible to accept this argument as correct. The concepts
of liberty and equality are changing and dynamic and hence the notion of permanency or
immutability cannot be attached to any of the fundamental rights. The Directive Principles
of Part IV are as fundamental as the constitutional rights embodied in Part III and
Art. 37 imposes a constitutional duty upon the States to apply these principles in making
laws. Reference should in particular be made to Art. 39(b) which enjoins upon the State to
direct its policy towards securing that the ownership and control of the material resources
of the community are so distributed as best to subserve the common good. Art. 38 imposes
a duty upon the State to promote the welfare of the people by securing and protecting as
effectively as it may, a social order in which justice, social, economic and political, shall
inform all the institutions of the national life. I have already said that the language of
Art. 368 is clear and unambiguous in support of the view that there is no implied limitation
on the amending power. In principle also it appears unreasonable to suggest that the
Constitution-makers wanted to provide that the fundamental rights guaranteed by the
Constitution should never be touched by way of amendment. In modern democratic
thought there are two main trends - the liberal idea of individual rights protecting the
individual and the democratic idea proper proclaiming the equality of rights and popular
sovereignty. The gradual extension of the idea of equality from political to economic and
social fields in the modern State has led to the problems of social security, economic
planning and industrial welfare legislation. The implementation and harmonisation of these
somewhat conflicting principles is a dynamic task. The adjustment between freedom and
compulsion, between the rights of individuals and the social interest and welfare must
necessarily be a matter for changing needs and conditions. The proper approach is
therefore to look upon the fundamental rights of the individual as conditioned by the social

responsibility, by the necessities of the Society, by the balancing of interests and not as preordained and untouchable private rights.
331. As pointed out forcefully by Laski :
"The struggle for freedom is largely transferred from the plane of political to that of
economic rights. Men become less interested in the abstract fragment of political
power an individual can secure than in the use of massed pressure of the groups to
which they belong to secure an increasing share of the social product.
Individualism gives way before socialism. The roots of liberty are held to be in the
ownership and control of the instruments of production by the state, the latter using
its power to distribute the results of its regulation with increasing approximation to
equality. So long as there is inequality, it is argued, there cannot be liberty.
The historic inevitability of this evolution was seen a century ago by de
Tocqueville. It is interesting to compare his insistence that the democratization of
political power meant equality and that its absence would be regarded by the
masses as oppression with the argument of Lord Action that liberty and equality are
antitheses. To the latter liberty was essentially an autocratic ideal; democracy
destroyed individuality, which was the very pith of liberty, by seeking identity of
conditions. The modern emphasis is rather toward the principle that material
equality is growing inescapable and that the affirmation of personality must be
effective upon an immaterial plane. It is found that doing as once likes, subject only
to the demands of peace, is incompatible with either international or municipal
necessities. we pass from contract to relation, as we have passed from status to
contract. Men are so involved in intricate networks of relations that the place for
their liberty is in a sphere where their behavior does not impinge upon that selfaffirmation of others which is liberty".
(Encyclopaedia of the Social Sciences, Vol. IX, 445.).
332. It must not be forgotten that the fundamental right guaranteed by Art. 31, for instance,
is not absolute. It should be noticed that clause (4) of that Article provides an exception to
the requirements of Clause (2). Clause (4) relates to Bills of a State Legislature relating to
public acquisition which were pending at the commencement of the Constitution. If such a
Bill has been passed and assented to by the President, the Courts shall have no jurisdiction
to question the validity of such law on the ground of contravention of clause (2) i.e. on the
ground that it does not provide for compensation or that it has been enacted without a
public purpose. Clause (6) of the Article is another exception to clause (2) and provides for
ouster of jurisdiction of the Courts. While clause (4) relates to Bills pending in the State
Legislature at the commencement of the Constitution, clause (6) relates to Bills enacted by
the State within 18 months before commencement of the Constitution i.e., Acts providing
for public acquisition which were enacted not earlier than July 26, 1948. If the President

certifies such an Act within 3 months from the commencement of the Constitution, the
Courts shall have no jurisdiction to invalidate that Act on the ground of contravention of
clause (2) of that Article. similarly, the scheme of Art. 19 indicates that the fundamental
rights guaranteed by sub-cls. (a) to (g) of clause (1) can be validly regulated in the light of
the provisions contained in cls. (2) to (6) of Art. 19. In other words, the scheme of
Art. 19 is two-fold; the fundamental rights of the citizens are of paramount importance, but
even the said fundamental rights can be regulated to serve the interests of the general
public or other objects mentioned respectively in cls. (2) to (6) of Art. 19. It is right to state
that the purposes for which fundamental rights can be regulated which are specified in cls.
(2) to (6), could not have been assumed by the Constitution-makers to be static and
incapable of expansion. It cannot be assumed that the Constitution-makers intended to
forge a political strait jacket for generations to come. The Constitution-makers must have
anticipated that in dealing with socio-economic problems which the legislatures may have
to face from time to time, the concepts of public interest and other important considerations
which are the basis of cls. (2) to (6), may change and may even expand. As Holmes, J. has
said in Abrams v. United States 250 U.S. 616 : "the Constitution is an experiment, as all
life is an experiment". It is therefore legitimate to assume that the Constitution-makers
intended that Parliament should be competent to make amendments in these rights so as to
meet the challenge of the problems which may arise in the course of socio-economic
progress and development of the country. I find it therefore difficult to accept the argument
of the petitioners that the Constitution-makers contemplated that fundamental rights
enshrined in Part III were finally and immutably settled and determined once and for all
and these rights are beyond the ambit of any future amendment. Today at a time when
absolutes are discredited, it must not be too readily assumed that there are basic features of
the Constitution which shackle the amending power and which take precedence over the
general welfare of the nation and the need for agrarian and social reform.
333. In construing Art. 368 it is moreover essential to remember the nature and subjectmatter of that Article and to interpret it subjectae materies. The power of amendment is in
point of quality an adjunct of sovereignty. It is in truth the exercise of the highest sovereign
power in the State. If the amending power is an adjunct of sovereignty it does not admit of
any limitations. This view is expressed by Dicey in "Law of the constitution", 10th Edn., at
page 148 as follows :
"Hence the power of amending the constitution has been placed, so to speak, outside the
constitution, and that the legal sovereignty of the United States resides in the States'
governments as forming one aggregate body represented by three-fourths of the several States
at any time belonging to the Union".
334. A similar view is state by Lord Bryce in 'The American Commonwealth", Vol. 1, ch.
XXXII, page 366. Lester Bernhardt Orfield states as follows in his book. "The Amending
of the Federal Constitution" :

"In the last analysis , one is brought to the conclusion that sovereignty in the United
States, if it can be said to exist at all, is located in the amending body. The
amending body has often been referred to as the sovereign, because it meets the test
of the location of sovereignty. As Willoughby has said :
'In all those cases in which, owing to the distribution of governing power, there is
doubt as to the political body in which the Sovereignty rests, the test to be applied
is the determination of which authority has, in the last instance, the legal power to
determine its own competence as well as that of others'.
Applying the criteria of sovereignty which were laid down at the beginning of this
chapter, the amending body is sovereignty as a matter of both law and fact. Article
Five expressly creates the amending body. Yet in a certain manner of speaking the
amending body may be said to exist as a matter of fact since it could proceed to
alter Article Five or any other part of the Constitution. While it accrue that the
sovereign cannot act otherwise than in compliance with law, it is equally true that it
creates the law in accordance with which it is to act".
335. In the book "Constitutional Law of the United States", Hugh Evander Willis says that
the doctrine of amendability of the Constitution is based on the doctrine of the sovereignty
of the people and that it has no such implied limitations as that an amendment shall not
contain a new grant of power nor be in the form of legislation, nor change "our dual form
of government nor change the protection of the Bill of Rights, nor make any other change
in the Constitution". James G. Randall also enunciates the proposition that when a
constitutional amendment is adopted "it is done not by the 'general government', but by the
supreme sovereign power of the nation i.e., the people, acting through State Legislatures or
State conventions" and that "the amending power is equivalent to the Constitution-making
power and is wholly above the authority of the Federal Government" - ('Constitutional
Problems Under Lincoln', p. 395). The legal position is summarised by Burdick at page 48
of his treaties "The Law of the American constitution" as follows :
"The result of the National Prohibition Cases 253 U.S. 350 seems to be that there is no limit
to the power to amend the Constitution except that a State may not without its consent be
deprived of its equal suffrage in the Senate. To put the case most extremely, this means that
by action of two-thirds of both Houses of Congress and of the legislatures in three-fourths of
the States all of the powers of the national government could be surrendered to the States, or
all of the reserved powers of the States could be transferred to the federal government. It is
only public opinion acting upon these agencies which places any check upon the amending
power. But the alternative to this result would be to recognize the power of the Supreme
Court to veto the will of the people expressed in a constitutional amendment without any
possibility of the reversal of the court's action except through revolution".

336. The matter has been clearly put by George Vedel in Manuel Elementaire De Droit
Constitutional (Recueil Sirey) at page 117 as follows :
"Truly speaking no constitution prohibits for ever its amendment or its amendment
in all its aspects.
But it can prohibit for example, the amendment (revision) during a certain time (the
Constitution of 1791) or it can prohibit the amendment (revision) on this or that
point (as in the constitution of 1875) which prohibits amendment of the republican
form of Government and the present Constitution follows the same rule.
But this prohibition has only a political but no juridical value. In truth from the
juridical viewpoint a declaration of absolute constitutional immutability cannot be
imagined. The Constituent power being the supreme power in the state cannot be
fettered, even by itself. For example, article 95 of our constitution stipulates. "The
republican, form of Government cannot be the subject of a proposal for
amendment.
But juridically the obstacle which this provision puts in the way of an amendment
of the republican form of government can be lifted as follows.
It is enough to abrogate by way of amendment (revision) the article 95 cited above.
After this, the obstacle being removed, a second amendment can deal with the
republican form of Government.
In practice, this corresponds to the idea that the constituent assembly of today
cannot bind the nation of tomorrow".
337. In Re : The Berubari Union and Exchange of Enclaves MANU/SC/0049/1960
: [1960]3SCR250 , the argument of implied limitation was advanced by Mr. N. C.

Chatterji and it was contended that item No. 3 of the Indo Pakistan Agreement providing
for a division of Berubari Union between India and Pakistan was outside the power of
constitutional amendment and that the preamble to the Constitution did not permit the
dismemberment of India but preserved the integrity of the territory of India. the argument
was rejected by this Court and it was held that Parliament acting under Art. 368 can make a
law to give effect to and implement the Agreement in question or to pass a law amending
Art. 3 so as to cover cases of cession of the territory of India and thereafter make a law
under the amended Art. 3 to implement the Agreement.
338. There is also another aspect of the matter to be taken into account. If the fundamental
rights are unamendable and if Art. 368 does not include any such power it follows that the

amendment of, say, Art. 31 by insertion of Arts. 31-A and 31-B can only be made by a
violent revolution. It was suggested for the petitioners that an alteration of fundamental
rights could be made by convening a new Constituent Assembly outside the frame-work of
the present Constituent, but it is doubtful if the proceedings of the new Constituent
Assembly will have any legal validity, for the reason is that if the Constitution provides its
own method of amendment, any other method of amendment of the Constitution will be
unconstitutional and void. For instance, in George S. Hawke v. Harvey C. Smith, as
Secretary of State of Ohio 64 L.Ed. 871, it was held by the Supreme Court of the U.S.A.
that Referendum provisions of State Constitutions and statutes cannot be applied in the
ratification or rejection of amendments to the Federal Constitution without violating the
requirements of Article 5 of such Constitution and that such ratification shall be by the
legislatures of the several states, or by conventions therein, as Congress shall decide. It was
held in that case that the injunction was properly issued against the calling of a referendum
election on the act of the legislature of a state ratifying an amendment to the Federal
Constitution. If, therefore, the petitioners are right in their contention that Art. 31 is not
amendable within the frame-work of the present Constitution, the only other recourse for
making the amendment would, as I have already said, be by revolution and not through
peaceful means. It cannot be reasonably supposed that the Constitution-makers
contemplated that Art. 31 or any other article on fundamental rights should be altered by a
violent revolution and not by peaceful change. It was observed in Feigenspan v.
Bodine 264 Fed. 186 :
"If the plaintiff is right in its contention of lack of power to insert the Eighteenth Amendment
into the United States Constitution because of its subject-matter, it follows that there is no
way to incorporate it and others of like character into the national organic law, except through
revolution. This, the plaintiff concedes, is the inevitable conclusion of its contention. This, is
so startling a proposition that the judicial mind may be pardoned for not readily acceding to
it, and for insisting that only the most convincing reasons will justify its acceptance".
339. I am, therefore, of the opinion that the petitioners are unable to make good their
argument on this aspect of the case.
340. It was then contended for the petitioners that there would be anomalies if Art. 368 is
interpreted to have no implied limitations. It was said that the more important articles of
the Constitution can be amended by the procedure mentioned in the substantive part of
Art. 368 but the less important articles would require ratification by the legislatures of not
less than half of the States under the proviso to that Article. It was argued that the
fundamental rights and also Art. 32 could be amended by the majority of two-thirds of the
members of Parliament but Art. 226 cannot be amended unless there was ratification of the
legislatures of not less than half of the States. It was pointed out that Arts. 54 and 55 were
more difficult to amend but not Art. 52. Similarly, Art. 162 required ratification of the Sates
but not Art. 163 which related to the Council of Ministers to aid and advise the Governor in

the exercise of his functions. In my opinion the argument proceeds on a misconception.

The scheme of Art. 368 is not to divide the Articles of the Constitution into two categories,
viz., important and not so important Article. It was contemplated by the Constitutionmakers that the amending power in the main part of Art. 368 should extend to each and
every article of the Constitution but in the case of such articles which related to the federal
principles or the relation of the States with the Union, the ratification of the legislatures of
at least half the States should be obtained for any amendment. It was also contended that if
Art. 368 was construed without any implied limitation the amending power under that
Article could be used for subverting the Constitution. Both Mr. Asoke Sen and Mr.
Palkhiwala resorted to the method of reductio ad absurdem in pointing out the abuses that
might occur if there were no limitations on the power to amend. It was suggested that
Parliament may, by a constitutional amendment, abolish the parliamentary system of
government or repeal the chapter of fundamental rights or divide India into two States, or
even reintroduce the rule of a monarch. It is inconceivable that Parliament should utilise
the amending power for bringing about any of these contingencies. It is, however, not
permissible, in the first place, to assume that in a matter of constitutional amendment there
will be abuse of power and then utilise it as a test for finding out the scope of the amending
power. This Court has declared repeatedly that the possibility of abuse is not to be used as a
test of the existence or extent of a legal power [See for example, State of West Bengal
v. Union of India MANU/SC/0086/1962
: [1964]1SCR371 . In the second place,

the amending power is a power of an altogether different kind from the ordinary
governmental power and if an abuse occurs, it occurs at the hands of Parliament and the
State Legislatures representing an extraordinary majority of the people, so that for all
practical purposes it may be said to be the people, or at least the highest agent of the people
and one exercising sovereign powers. It is therefore anomalous to speak of 'abuse' of a
power of this description. In the last analysis, political machinery and artificial limitations
will not protect the people from themselves. The perpetuity of our democratic institutions
will depend not upon special mechanisms or devices, nor even upon any particular
legislation, but rather upon the character and intelligence and the goods conscience of our
people themselves. As observed by Frankfurter J. In American Federation of Labour v.
American Sash & Door Co. 335 U.S. 538 :
"But a democracy need rely on the courts to save it from its own unwisdom. If it is alert - and
without alterness by the people there can be no enduring democracy - unwise or unfair
legislation can readily be removed from the statute books. It is by such vigilance over its
representatives that democracy proves itself".
341. I pass on to consider the next objection of the petitioners that the true purpose and
object of the impugned Act was to legislate in respect of land and that legislation in respect
of land falls within the jurisdiction of State legislatures under Entry 18 of List II, and the

argument was that since the State Legislatures alone can make laws in respect of land,
Parliament had no right to pass the impugned Act. The argument was based on the
assumption that the impugned Act purports to be, and in fact is, a piece of land legislation.
It was urged that the scheme of Arts. 245 and 246 of the Constitution clearly shows that
Parliament has no right to make a law in respect of land, and since the impugned Act is a
legislative measure in relation to land, it is invalid. In my opinion, the argument is based
upon a misconception. What the impugned Act purports to do is not to make any land
legislation but to protect and validate the legislative measures in respect of agrarian
reforms passed by the different State Legislatures in the country by granting them
immunity from attack based on the plea that they contravene fundamental rights. The
impugned Act was passed by Parliament in exercise of the amending power conferred by
Art. 368 and it is impossible to accept the argument that the constitutional power of
amendment can be fettered by Arts. 245 and 246 or by the legislative Lists. It was argued
for the petitioners that Parliament cannot validate a law which it has no power to enact. The
proposition holds good where the validity of an impugned Act turns on whether the
subject-matter falls within or without the jurisdiction of the legislature which passed it. But
to make a law which contravenes the Constitution constitutionally valid is a matter of
constitutional amendment, and as such it falls within the exclusive power of Parliament and
within the amending power conferred by Art. 368. I am accordingly of the opinion that the
petitioners are unable to substantiate their argument on this aspect of the case. I should like
to add that in Lesser v. Garnett 258 U.S. 130, in National Prohibition Cases 253 U.S.
350 and in United States v. Sprague 282 U.S. 716, a similar argument was advanced to the
effect that a constitutional amendment was not valued if it was in the form of legislation.
But the argument was rejected by the Supreme Court of the U.S.A. in all the three cases.
342. It remains to deal with the objection of the petitioners that the newly inserted
articles 31-A and 31-B require ratification of the State legislatures under the proviso to
Art. 368 of the Constitution because these articles deprive the High Courts of the power to
issue appropriate writs under Art. 226 of the Constitution. I do not think there is any
substance in this argument. The impugned Act does not purport to change the provisions of
Art. 226 and it cannot be said even to have that effect directly or in any substantial
measure. It is manifest that the newly inserted articles do not either in terms or in effect
seek to make any change in Art. 226 of the Constitution. Article 31-A aims at saving laws
providing for the compulsory acquisition by the State of a certain kind of property from the
operation of article 13 read with other relevant articles in Part III, while article 31B purports to validate certain specified Acts and Regulations already passe,d which, but for
such a provision, would be liable to be impugned under Art. 13. It is therefore not correct
to say that the powers of High Courts to issue writs is, in any way affected. The jurisdiction
of the High Courts remains just the same as it was before. Only a certain category of cases
has been excluded from the purview of Part III and the High Courts can no longer
intervene, not because their jurisdiction or powers have been curtailed in any manner or to
any extent, but because there would be no occasion hereafter for the exercise of their power

in such cases. As I have already said, the effect of the impugned Act on the jurisdiction of
the High Courts under Art. 226 of the Constitution is not direct but only incidental in
character and therefore the contention of the petitioners on this point against the validity of
the impugned Act must be rejected.
343. It is well-settled that in examining a constitutional question of this character, it is
legitimate to consider whether the impugned legislation is a legislation directly in respect
of the subject-matter covered by any particular article of the Constitution or whether it
touches the said article only incidentally or indirectly. In A. K. Gopalan v. The State of
Madras MANU/SC/0012/1950
: 1950CriLJ1383 , Kania, C.J., had occasion to

consider the validity of the argument that the preventive detention order resulted in the
detention of the applicant in a cell, and so, it contravened his fundamental rights
guaranteed by Art. 19(1)(a), (b), (c), (d), (e) and (g). Rejecting this argument, the learned
Chief Justice observed that the true approach in dealing with such a question was only to
consider the directness of the legislation and not what will be the result of the detention
otherwise valid, on the mode of the detenu's life. On that ground alone, he was inclined to
reject the contention that the order of the detention contravened the fundamental rights
guaranteed to the petitioner under Art. 19(1). At page 100 of the report, Kania C.J., stated
as follows :
"As the preventive detention order results in the detention of the applicant in a cell it was
contended on his behalf that the rights specified in Article 19(1)(a), (b), (c), (d), (e), and (g)
have been infrigned. It was argued that because of his detention he cannot have a free right to
speech as and where he desired and the same argument was urged in respect of the rest of the
rights mentioned in sub-clauses (b), (c), (d), (e) and (g). Although this argument is advanced
in a case which deals with preventive detention, if correct, it should be applicable in the case
of punitive detention also to any one sentenced to a term of imprisonment under the relevant
section of the Indian Penal Code. So considered, the argument must clearly be rejected, In
spite of the saving clauses (2) to (6), permitting abridgement of the rights connected with
each of them, punitive detention under several sections of the Penal Code, i.e., for theft,
cheating, forgery and even ordinary assault, will be illegal. Unless such conclusion
necessarily follows from the article, it is obvious that such construction should be avoided. In
my opinion, such result is clearly not the outcome of the Constitution. The article has to be
read without any pre-conceived notions. So read, it clearly means that the legislation to be
examined must be directly in respect of one of the rights mentioned in the sub-clauses. If
there is a legislation directly attempting to control a citizen's freedom of speech or
expression, or his right to assemble peaceably and without arms, etc., the question whether
that legislation is saved by the relevant saving clause of article 19 will arise. If, however, the
legislation is not directly in respect of any of these subjects, but as a result of the operation of
other legislation, for instance, for punitive or preventive detention, his right under any of

these sub-clauses is abridged, the question of the application of article 19 does not arise. The
true approach is only to consider the directness of the legislation and not what will be the
result of the detention otherwise valid, on the mode of the detenu's life. On that short ground,
in my opinion, this argument about the infringement of the rights mentioned in
article 19(1) generally must fail. Any other construction put on the article, it seems to me,
will be unreasonable".
344. It is true that the opinion thus expressed by Kania, C.J. in the case of A. K. Gopalan
v. The State of Madras MANU/SC/0012/1950
: 1950CriLJ1383 , did not receive

the concurrence of the other learned Judges who heard the said case. Subsequently,
however, in Ram Singh & Others v. The State of Delhi & Anr. MANU/SC/0005/1951
: [1951]2SCR451 , the said observations were cited with approval by the Full

Court. The same principle was accepted by this Court in Express Newspapers (Pvt.) Ltd.
v. The Union of India MANU/SC/0157/1958
: (1961)ILLJ339SC , in the majority

judgment in Atiabari Tea Co. Ltd. v. The State of Assam MANU/SC/0030/1960

[1961]1SCR809 , and in Naresh Shridhar Mirajkar v. The State of Maharashtra

MANU/SC/0044/1966
: [1966]3SCR744 . Applying the same principle to the

present case, I consider that the effect of the impugned Act on the powers of the High
Court under Art. 226 is indirect and incidental and not direct. I hold that the impugned Act
falls under the substantive part of Art. 368 because the object of the impugned Act is to
amend the relevant Articles in Part III which confer fundamental rights on citizens and not
to change the power of the High Courts under Art. 226.
345. In this connection I should like to refer to another aspect of the matter. The question
about the validity of the Constitution (First Amendment) Act has been considered by this
Court in Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar
MANU/SC/0013/1951
: [1952]1SCR89 . In that case, the validity of the said

Amendment Act was challenged, firstly, on the ground that the newly inserted Arts. 31A and 31-B sought to make changes in Arts. 132 and 136 in Ch. IV of Part V and
Art. 226 in Ch. V of Part VI. The second ground was that the amendment was invalid

because it related to legislation in respect of land. It was also urged, in the third place, that
though it may be open to Parliament to amend the provisions in respect of fundamental
rights contained in Part III, the amendment made in that behalf would have to be tested in
the light of provisions of Art. 13(2) of the Constitution. The argument was that the law to
which Art. 13(2) applied would include a law passed by Parliament by virtue of its
constituent power to amend the Constitution, and so, its validity will have to be tested by
Art. 13(2)itself. All these arguments were rejected by this court and it was held in that case
that the Constitution (First Amendment) Act was legally valid. The same question arose for
consideration in Sajjan Singh v. State of Rajasthan MANU/SC/0052/1964
:

[1965]1SCR933 , with regard to the validity of the Constitution (Seventeenth Amendment)

Act, 1964. In that case, the petitioner in their Writ Petition in this Court contended that the
Constitution (Seventeenth Amendment) Act was constitutionally invalid since the powers
prescribed by Art. 226, which is in Ch. V, Part VI of the Constitution, were likely to be
affected by the Seventeenth Amendment, and therefore the special procedure laid down
under Art. 368 should have been followed. It was further contended in that case that the
decision of this Court in Sankari Prasad's MANU/SC/0013/1951
: [1952]1SCR89

case should be reconsidered. Both the contentions were rejected by this Court by a majority
Judgment and it was held that the Constitution (Seventeenth Amendment) Act amended the
fundamental rights solely with the object of assisting the State Legislatures to give effect to
the socio-economic policy of the party in power and its effect on Art. 226 was incidental
and insignificant and the impugned Act therefore fell under the substantive part of
Art. 368 and not attract the proviso to that article. It was further held by this Court that
there was no justification for reconsidering Sankari Prasad's MANU/SC/0013/1951
: [1952]1SCR89 case. On behalf of the respondents it was submitted by the

Additional Solicitor-General that this was a very strong case for the application of the
principle of stare decisis. In my opinion, this contention must be accepted as correct. If the
arguments urged by the petitioners are to prevail it would lead to the inevitable
consequence that the amendments made to the Constitution both in 1951 and in 1955
would be rendered invalid and a large number of decisions dealing with the validity of the
acts included in the 9th Schedule which were pronounced by this Court ever since the
decision in Sankari Prasad's MANU/SC/0013/1951
: [1952]1SCR89 case was

declared, would also have to be overruled. It was also pointed out that Parliament, the
Government and the people have acted on the faith of the decision of this Court in Sankari

Prasad's MANU/SC/0013/1951

: [1952]1SCR89 case and titles to property have

been transferred, obligations have been incurred and rights have been acquired in the
implementation of the legislation included in the 9th Schedule.
346. The effect of land reform legislation has been clearly summarised in Ch. VIII of Draft
Outline on Fourth Plan as follows :
"Fifteen years ago when the First Plan was being formulated, intermediary tenures
like zamindaris, jagirs and inams covered more than 40 per cent of the area. There
were large disparities in the ownership of land held under ryotwari tenure which
covered the other 60 per cent area; and a substantial portion of the land was
cultivated through tenants-at-will and share-croppers who paid about one-half the
produce as rent. Most holdings were small and fragmented. Besides, there was a
large population of land-less agricultural labourers. In these conditions the
principal measures recommended for securing the objectives of the land policy
were the abolition of intermediary tenures, reform of the tenancy system, including
fixation of fair rent at one-fifth to one-fourth of the gross produce, security of
tenure for the tenant, bringing tenants into direct relationship with the State and
investing in them ownership of land. A ceiling on land holding was also
recommended so that some surplus land may be made available for redistribution to
the landless agricultural workers. Another important part of the programme was
consolidation of agricultural holdings and increase in the size of the operational
unit to an economic scale through cooperative methods.
Abolition of Intermediaries. - During the past 15 years, progress has been made in
several directions. The programme for the abolition of intermediaries has been
carried out practically all over the country. About 20 million tenants of former
intermediaries came into direct relationship with the State and became owners of
their holdings. State Governments are now engaged in the assessment and payment
of compensation. There were some initial delays but a considerable progress has
been made in this direction in recent years and it is hoped that the issue of
compensatory bonds will be completed in another two years.
Tenancy Reform. - To deal with the problem of tenants-at-will in the ryotwari areas
and of sub-tenants in the zamindari areas, a good deal of legislation has been
enacted. Provisions for security of tenure, for bringing them into direct relation
with the State and converting them into owners have been made in several States.
As a result about 3 million tenants and sharecroppers have acquired ownership of
more than 7 million acres.

Ceiling on Holdings. - Laws imposing ceiling on agricultural holdings have been

enacted in all the States. In the former Punjab area, however, the State Government
has the power to settle tenants on land in excess of the permissible limit although it
has not set a ceiling on ownership. According to available reports over 2 million
acres of surplus areas in excess of the ceiling limits have been declared or taken
possession of by Government".
347. It is true that the principle of stare decisis may not strictly apply to a decision on a
constitutional point. There is no restriction in the Constitution itself which prevents this
Court from reviewing its earlier decisions or even to depart from them in the interest of
public good. It is true that the problem of construing constitutional provisions cannot be
adequately solved by merely adopting the literal construction of the words used in the
various articles. The Constitution is an organic document and it is intended to serve as a
guide to the solution of changing problems which the Court may have to face from time to
time. It is manifest that in a progressive and dynamic society the character of these
problems is bound to change with the inevitable consequence that the relevant words used
in the Constitution may also change their meaning and significance. Even so, the Court is
reluctant to accede to the suggestion that its earlier decisions should be frequently reviewed
or departed from. In such a case the test should be : what is the nature of the error alleged
in the earlier decision, what is its impact on the public good and what is the compelling
character of the considerations urged in support of the contrary view. It is also a relevant
factor that the earlier decision has been followed in a large number of cases, that titles to
property have passed and multitude of rights and obligations have been created in
consequence of the earlier decision. I have already dealt with the merits of the contention
of the petitioners with regard to the validity of the impugned Act and I have given reasons
for holding that the impugned Act is constitutionally valid and the contentions of the
petitioners are unsound. Even on the assumption that it is possible to take a different view
and to hold that the impugned Act is unconstitutional I am of opinion that the principle of
stare decisis must be applied to the present case and the plea made by the petitioners for
reconsideration of Sankari Prasad's MANU/SC/0013/1951
: [1952]1SCR89 case

and the decision in Sajjan Singh v. State of Rajasthan MANU/SC/0052/1964

[1965]1SCR933 , is wholly unjustified and must be rejected.

348. In Writ Petition No. 202 of 1966, it was contended by Mr. Nambyar that the
continuance of the Proclamation of Emergency under Art. 352 of the Constitution was a
gross violation of power because the emergency had ceased to exist. It was also contended
that Art. 358 should be so construed as to confine its operation only to legislative or
executive action relevant to the Proclamation of Emergency. It was submitted that the

Mysore State was not a border area and the land reform legislation of that State had no
relevant connection with the Proclamation of Emergency and the fundamental rights
conferred by Art. 19 cannot be suspended so far as the petitions are concerned. I do not
think that it is necessary to express any opinion on these points because the Writ Petition
must fail on the other grounds which I have already discussed above. It is also not
necessary for me to express an opinion on the doctrine of prospective overruling of
legislation.
349. For the reasons already expressed I hold that all these petitions fail and should be
dismissed, but there will be no order as to costs.
350. Petitions dismissed.

HIMAT SHAH V. COMMISSIONER OF POLICE, AHMEDABAD, AIR 1973 SC 87

S.M. Sikri, C.J.

1. This appeal by certificate granted by the Gujarat High Court raises an important question
as to the right of citizens in India to hold public meetings on public streets, and the
restrictions which can be placed on that right.
2. On August 30, 1969 the appellant made an application to the Police Commissioner.
Ahmedabad, for permission to hold a public meeting near Panch Kuva Darwaja,
Ahmedabad, on September 4, 1969 at 8.00 p.m. in connection with the All India students'
strike sponsored by All India Students Federation, to be organised on September 5, 1969.
3. On September 2, 1969, this permission was refused because the "application was not
sent 5 days before the day of the meeting as required by notification of the Commissioner
of Police. No. 982/66 dated February 15, 1966. "The appellant was also informed that
"holding a meeting with or without loudspeaker, without the permission, amounts to an
offence."
4. On August 30, 1969 the appellant had also applied for permission to hold another public
meeting on September 5, 1969. The Deputy Police Commissioner informed him on
September 2. 1969, that the permission "cannot be granted inasmuch as a meeting was held
on 7-8-69 under a similar permission whereafter certain elements had indulged in
rioteering and caused mischief to private and public properties, regarding which a crime
also has been registered". He was also informed that "in view of the present position, it is
not possible to grant such permission in order to maintain law and order." He was further
asked to note that "holding meeting with or without a loudspeaker without permission
amounts to an offence."
5. The appellant thereupon filed a petition under Article 226 of the Constitution, on
September 3, 1969, praying inter alia.
(1) to quash the orders mentioned above;
(2) to declare Section 33(o) read with Section 33(y) of the Bombay Police Act
(hereinafter called the Act) void;
(3) to declare the rules Nos. 7 to 11, 14 and 15 of the Rules for Processions and
Public Meetings hereinafter called the Rules) void; and

(4) to declare that the petitioner was entitled to hold public meetings on September
4, 1969 and September 5, 1969 without obtaining permission from the respondent.
6. By the time the case was heard, the two impugned orders had become infructuous by
lapse of time. The High Court, however, examined the other contentions raised before it
because it felt that the organization, of which the appellant was an office bearer, had to
organise meetings on a number of occasions and every time the question of applying for
permission would arise.
7. The relevant statutory provisions that applied to Ahmedabad are as follows :
Bombay Police Act, 1951
33(1) The Commissioner and the District Magistrate, in areas under their respective
charges or any part thereof, may make, alter or rescind rules or orders not
inconsistent with this Act for;
***
(n) licensing, controlling or, in order to prevent the obstruction, inconvenience,
annoyance, risk, danger or damage of the residents or passengers in the vicinity,
prohibiting the playing of music, the beating of drums, tom-toms or other
instruments and blowing or sounding of horns or other noisy instruments in or near
streets or public places;
(o) regulating the conduct of and behavior or action of persons constituting
assemblies and processions on or along the streets and prescribing in the case of
processions, the routes by which, the order in which and the times at which the
same may pass;
***
(y) prescribing the procedure in accordance with which any licence or permission
sought to be obtained or required under this Act should be applied for and fixing
the fees to be charged for any such licence or permission.
8. In exercise of the powers, conferred by Clauses (n), (o) and (y) of Sub-section (1) of
Section 33 of the Bombay Police Act, 1951 (Bom. Act XXII of 1951) read with
Section 4 of the Bombay State Commissioners of Police Act of 1959 (Bom. Act LVI of
1959), the Commissioner of Police, Ahmedabad City, with the previous sanction of the
Government of Gujarat, made the following rules for conduct, behavior and action of
persons desirous of conducting processions or holding or convening public meetings in the

areas covered by the Commissionerate of Police, Ahmedabad City. Rules (1) to (6) deal
with processions. Rule (6) may be reproduced.
6. Subject to the provisions of the foregoing rules and subject to the imposition of
such conditions as, may be deemed necessary, a permission shall be granted, unless
the officer concerned is of opinion that the procession proposed to be organised or
taken out shall be prohibited, in which case he shall forth with refer the application
together with his report thereon for the orders of the Commissioner of Police,
Ahmedabad City.
No permission shall be required for a bonafide religious or marriage procession
consisting of less than 100 or a funeral procession of a person who has died a
natural death.
9. Rules (7) to (13) deal with holding of public meetings. Rule (14) and Rule (15) apply to
both processions and public meeting. Rules (7), (8), (9), (11) and (14) are reproduced
below. Rule (15) makes the infringement of rules and conditions punishable.
(7). No public meeting with or without loudspeaker, shall be held on the public
street within the jurisdiction of the Commissionerate of the Police, Ahmedabad
City unless the necessary permission in writing has been obtained from the officer
authorised by the Commissioner of Police.
(8). The application for permission shall be made in writing and shall be signed by
the persons who intend to organise or promote such a meeting.
(9). The application shall be made to the officer authorised to issue permission not
less than 5 days before the time, at which the public meeting is to start.
(11). The applicant or his representative shall remain present during the Public
Meeting with the permission granted to him and shall produce the same for
inspection by any Police Officer whenever required.
(14). The organiser or organisers of the procession or the public meeting shall on
demand furnish a security of such amount as fixed by the Commissioner of Police
or any officer authorised by the Commissioner of Police in this behalf, for the due
observance of the conditions of the permission.
10. Before the High Court, it was urged on behalf of the appellant as follows :
(1). Sub-clause (o) of Section 33(1) of the Bombay Police Act does not empower
the Commissioner of Police to frame rules requiring any person to obtain prior

permission for holding a meeting and the rule so framed is in excess of the rule
making power and is Consequently invalid.
(2). Sub-clause (o) of Section 33(1) of the Bombay Police Act suffers from the vice
of excessive delegation of legislative powers, and is ultra vires Article 14 in that it
confers uncontrolled, naked and arbitrary powers on the Commissioner of Police to
grant or refuse permission at his sweet will and pleasure without laying down any
guiding principles.
(3). Sub-clause (o) of Section 33(1) and the Rules framed thereunder are ultra vires
Articles 19(1)(a) and 19(1)(b) inasmuch as they put a total ban on the fundamental
rights of freedom of speech and freedom to assemble peaceably; and even if it be
held that the rules put restriction on the exercise of the said fundamental rights, the
same are unreasonable.
11. The High Court held, regarding the first ground, that the word 'regulating' "implies
prohibition and, therefore, the rule providing for prior permission which may enable the
Commissioner of Police to prohibit a meeting from taking place would fall within the
ambit of Clause (o). The provision contained in Clause (y) would not abridge the meaning
of the word 'regulating' in Clause (o).
12. The second contention was repelled by the High Court on the ground that "a detailed
examination of the various provisions of the Act clearly indicates the policy underlying the
Act and provides clear guidance to the officers who have to exercise powers of framing
Rules conferred on them." The High Court observed that "it cannot be said that Clause (o)
confers naked, uncontrolled and arbitrary powers on the Commissioner of Police to grant
or refuse permission at his sweet will and pleasure."
13. Regarding the third ground it was held that, the Rules imposed reasonable restrictions
and were covered by Article 19(2).
14. The learned Counsel for the appellant submitted before us the following propositions :
(1) Rules 7, 13, 14 and 15 promulgated by the Commissioner of Police on October 21,
1965 are ultra vires Section 33(1)(o) of the Bombay Police Act, 1951, as in force in
Gujarat, inasmuch as the said provisions do not authorise framing of rules requiring the
prior permission for holding meetings.
(2) Section 33(1)(o) of the Act is unConstitutional as it infringes Article 19(1)(a) and (b).
The restrictions are wide enough to cover restrictions both within and without the limit of
permissible legislative action affecting such rights.

(3) In any event the section and the rules impose unreasonable restrictions on the
fundamental right guaranteed to the appellants under Article 19(1)(a) & (b) because
(a) the ambit of power conferred on the Executive is very large and uncontrolled;
(b) such power is open to be exercised arbitrarily;
(c) the restrictions imposed are excessive;
(d) the procedure and manner of imposition are not fair and just;
(e) there are no sufficient safeguards against the misuse of power conferred and
there is no right of representation;
(f) the section and the rules suffer from vagueness:
(g) the restrictions are not narrowly drawn to prevent the supposed evil and do not
satisfy the touchstone for legislation dealing with basic freedom, namely, precision;
(h) in delegating powers to the Executive to impose restrictions the legislature has
not provided adequate standards to pass scrutiny by accepted tests.
(4) The impugned section and rules violate Article 14 as they enable the authorities to
discriminate between persons without just classification.
(5) Section 33(1)(o) suffers from the vice of excessive delegation of legislative powers and
is therefore void.
15. Coming to the first point raised by the learned Counsel, it seems to us that the word
'regulating' in Section 33(o) would include the power to prescribed that permission in
writing should be taken a few days before the holding of a meeting on a public street.
Under Section 33(o) no rule could be prescribed prohibiting all meetings or processions.
The section proceeds on the basis that the public has a right to held assemblies and
processions on and along streets though it is necessary to regulate the conduct and behavior
or action of persons constituting such assemblies or processions in order to safeguard the
rights of citizens and in order to preserve public order. The word 'regulate', according to
Shorter Oxford Dictionary, means, "to control, govern, or direct by rule or regulations; to
subject to guidance or restrictions".
16. The impugned Rules do not prohibit the holding of meetings but only prescribe that
permission should be taken although it is not stated on what grounds permission could be
refused. We shall deal with this aspect a little later.

17. It was urged before us that according to the Common Law of England no one has a
right to hold a meeting on a highway and the same law prevails in India and, therefore, we
should read the word "regulating" to mean a right to prohibit the holding of a meeting also.
Reference was made to Halsbury, Third Edition, volume 19, where it is stated that "the
right of the public is a right to pass along a highway for the purpose of legitimate travel,
not to be on it except so far as their presence is attributed to a reasonable and proper use of
the highway as such. (page 73, para 107).
18. On page 276 it is stated that "the right of passage does not include the right to race
upon the highway, and to do so is an indictable nuisance, nor is there any right to organise
or take part in a procession or meeting which naturally results in an obstruction and is an
unreasonable user of the highway." In the footnote it is stated that "the right of the public
on the highway is a right of passage in a reasonable manner and there is no right to hold
meetings in the highway."
19. Reference was also made to Blackwell's Law of Meetings (9th edn. p. 5), wherein it is
stated as follows :
There appears to exist a view that the public has a right to hold meetings for
political and other purposes on the highway. This is an erroneous assumption. A
public highway exists for the purpose of free passage and free passage only, and for
purposes reasonably incidental to this right. There can be no claim on the part of
persons who desire to assemble for the purpose of holding a meeting to do so on
the highway. The claim is irreconcilable with the purpose for which a highway
exists.
20. It is further stated at p. 6 as follows :
Although there is no right on the part of the public to hold meetings on a highway,
a meeting is not necessarily unlawful because it is held on a highway. Thus, it has
been held that a meeting on a public highway may be a lawful meeting within
Section 1(1) of the Public Meeting Act 1908. Whether or not it is unlawful depends
upon the circumstances in which it is held, e.g., whether or not an obstruction is
caused. But the only clear right of the public on the highway is the right to pass and
re-pass over it, although many other things go by tolerance.
21. We may mention that Dicey took a slightly different position. According to Dicey'os
Law of the Constitution (Tenth Edition) pages 271-72 :
The right of assembling is nothing more than a result of the view taken by the
courts as to individual liberty of person and individual liberty of speech. There is
no special law allowing A, B and C to meet together either in the open air or
elsewhere for a lawful purpose, but the right of A to go where he pleases so that he

does not commit a trespass, and to say what he likes to B so that his talk is not
libellous or seditious, the right of B to do the like, and the existence of the same
rights of C, D, E and F, and so on ad infinitum, lead to the consequence that A, B,
C, D and a thousand or ten thousand other persons, may (as a general rule) meet
together in any place where otherwise they each have a right to be for a lawful
purpose and in a lawful manner. A has a right to walk down the High Street or to go
on to a common. B has the same right. C, D and all their friends have the same
right to go there also. In other words, A, B, C and D and ten thousand such, have a
right to hold a public meeting; and as A may say to B that he thinks an Act ought to
be passed abolishing the House of Lords, or that the House of Lords are bound to
reject any bill modifying the Constitution of their House, and as B may make the
same remarket to any of his friends, the result ensues that A and ten thousand more
may hold a public meeting either to support the Government or to encourage the
resistance of the Peers. Here then you have in substance that right of public
meeting for political and other purposes which is constantly treated in foreign
countries as a special privilege to be exercised only subject to careful restrictions.
22. It is not necessary to refer to the English authorities on the point because in India the
law has developed on slightly different lines, especially with regard to processions, and the
Statutes of the country have treated the right to take out processions and hold meetings on
streets in a similar fashion.
23. In Parthasaradiayyanagar v. Chinnakrishna Ayyangar (1882) I.L.R. Mad. 304; 309 it
was held that persons were "entitled to conduct religious processions through public streets
so that they do not interfere with the ordinary use of such streets by the public and subject
to such directions as the Magistrates' may lawfully give to prevent obstruction of the
thoroughfare or breaches of the public peace." Reference was made in this judgment (p.
306) to an earlier decision where the Sadar Court, in Appeal 141 of 1857 (M.S.D. 1857, p.
219) had declared that "the right to pass in procession through the public streets of a town
in such a way as the Magistrate might not object to as dangerous to the public safety, was a
right inherent in every subject of the state."
24. In Sundram Chetti v. The Queen (1883) I.L.R. Mad. 203, after referring to certain
orders of the Government and judicial opinion, the Court observed:
Both acknowledged the existence in every citizen of the right to use a public
highway for processional as well as for ordinary purposes. Both recognised in the
Magistrate a power to suspend and regulate, and in the police a power to regulate
the exercise of the right.
25. In Sadagopacharior v. A. Rama Rao (1903) I.L.R. Mad, 376, the head-note reads :

The right to conduct religious processions through the public streets is a right
inherent in every person, provided he does not, thereby, invade the rights of
property enjoyed by others, or cause a public nuisance or interfere with the
ordinary use of the streets by the public, and subject to directions or prohibitions
for the prevention of obstructions to thoroughfares or breaches of the peace.
26. In Vijiaraghava Chariar v. Emperor (1903) I.L.R. Mad 554 there was a difference of
opinion. Benson, J., observed at page 585 :
No doubt a highway is primarily intended for the use of individuals passing and repassing along it in pursuit of their ordinary avocations, but in every country, and
especially in India, highways have, from time immemorial, been used for the
passing and re-passing of processions as well as of individuals and there is nothing
illegal in a procession or assembly engaging in worship while passing along a
highway, any more than in an individual doing so.
27. Benson, J. further observed at p. 587, as follows :
The practice of using the public highways for religious processions has existed in
India for thousands of years. History, literature and tradition all tell us that religious
processions to the village shrines formed a feature of the national life from the very
earliest times. That alone is sufficient to raise a presumption that it is lawful and to
throw on those who allege it to be unlawful the onus of showing that it is forbidden
by law, but this it admittedly is not. The law recognizes the use of the highway by
processions as lawful, and gives the Magistrate and superior officers of police
power to direct the conduct of assemblies and processions through the public
streets and to regulate the use of music in connection with them, and to prevent
obstructions on the occasion of such assemblies and processions.... The law
recognises religious processions as lawful just as much as it recognizes other
processions It is more reasonable to suppose that he would dedicate the highway to
the purposes for which, in accordance with the custom of the country, it would be
required by the people. The penal law of India extends a special protection against
voluntary disturbances to all assemblies lawfully engaged in religious worship. A
procession is but an assembly in motion and if it is a religious procession, it is, in
my judgment, entitled to the special protection given by the Penal Code assemblies
lawfully engaged in religious worship.
28. We have referred to these cases in detail because they were approved of by the Privy
Council in Manzur Hasan v. Muhammed Zaman 52 I.A. 61. In that case the Privy Council
held :
In India, there is a right to conduct a religious procession with its appropriate
observances through a public street so that it does not interfere with the ordinary

use of the street by the public, and subject to lawful directions by the magistrates. A
civil suit for a declaration lies against those who interfere with a religious
procession or its appropriate observance.
29.

In

Chandu

Sajan

Patil

v. Nvahedehand

MANU/MH/0069/1950

AIR1950Bom192 . the Full Bench held that a citizen had an inherent right to conduct a
non-religious procession through a public road.
30. This Court followed the decision of the Privy Council in Shaikh Piru Bux v. Kalandi
Pati Civil Appeal No. 25 of 1966; Judgment dated October 29, 1968. It is true these
decisions primarily deal with processions but the statutes of the country, notably the Police
Acts, deal with assemblies and processions on the same basis, and as pointed out by
Benson, J., a procession is but an assembly in motion.
31. This Court considered the question of the right of citizens to carry on motor transport
business on highways in Saghir Ahmad v. State of U.P. MANU/SC/0110/1954
:

[1955]1SCR707 . The following passage from the judgment of Venkatarama Ayyar J., in
C.S.S. Motor Service v. State of Madras MANU/TN/0085/1953
: AIR1953Mad96

was approved :
The true position then is, that all public streets and roads vest in the State, but that
the State holds them as trustees on behalf of the public. The members of the public
are entitled as beneficiaries to use them as a matter of right and this right is limited
only by the similar rights possessed by every other citizen to use the pathways. The
State as trustees on behalf of the public is entitled to impose all such limitations on
the character and extent of the user, as may be requisite for protecting the rights of
the public generally; ...but subject to such limitations the right of a citizen to carry
on business in transport vehicles on public pathways cannot be denied to him on
the ground that the State owns the highways.
We are unable to appreciate how this passage militates against the contentions of the
appellant. The Court was not then concerned with the use of public streets for processions
or meetings.
32. It seems to us that it follows from the above discussion that in India a citizen had,
before the Constitution, a right to hold meetings on public streets subject to the control of
the appropriate authority regarding the time and place of the meeting and subject to

considerations of public order. Therefore, we are unable to hold that the impugned rules are
ultra vires Section 33(1) of the Bombay Police Act insofar as they require prior permission
for holding meetings.
33. This takes us to points (2) and (3) mentioned above. It is not surprising that the
Constitution-makers conferred a fundamental right on all citizens 'to assemble peaceably
and without arms'. While prior to the coming into force of the Constitution the right to
assemble could have been abridged or taken away by law, now that cannot be done except
by imposing reasonable restrictions within Article 19(3). But it is urged that the right to
assemble does not mean that that right can be exercised at any and every place. This Court
held in Railway, Board v. Narinjan Singh MANU/SC/0507/1969
:

(1969)IILLJ743SC ; 554. that there is no fundamental right for any one to hold meetings in
government premises. It was observed:
The fact that the citizens of this country have freedom of speech, freedom to
assemble peaceably and freedom to form associations or unions does not mean that
they can exercise those freedoms in whatever place they please.
34. This is true but nevertheless the State cannot by law abridge or take away the right of
assembly by prohibiting assembly on every public street or public place. The State can only
make regulations in aid of the right of assembly of each citizen and can only impose
reasonable restrictions in the interest of public order.
35. This Court in Babulal Parate v. State of Maharashtra MANU/SC/0155/1961

1961CriLJ16 ; 438. rightly observed :

The right of citizens to take out processions or to hold public meetings flows from
the right in Article 19(1)(b) to assemble peaceably and without arms and the right
to move anywhere in the territory of India.
36. If the right to hold public meetings flows from Article 19(1)(b) and Article 19(1)(d) it is
obvious that the State cannot impose unreasonable restrictions. It must be kept in mind that
Article 19(1)(b), read with Article 13, protects citizens against State action. It has nothing
to do with the right to assemble on private streets or property without the consent of the
owners or occupiers of the private property.
37. This leads us to consider whether Section 33(1)(o) of the Act and the rules violate
Article 19(1)(b). We do not think Article 19(1)(a) is attracted on the facts of the case.

38. We cannot appreciate how Section 33(1)(o) violates Article 19(1)(b). It enables the
Commissioner to make rules to regulate the assemblies and processions. Without such
rules, in crowded public streets it would be impossible for citizens to enjoy their various
rights. Indeed Section 33(1)(o) may be said to have been enacted in aid of the rights under
Article 19(1)(a) and 19(1)(d).
39. We may mention that the Sub-section has nothing to do with the formation of
assemblies and processions. It deals with persons as members of the assemblies and
processions.
40. The real point in this case is whether the impugned rules violate Article 19(1)(b). Rule
7 does not give any guidance to the officer authorised by the Commissioner of Police as to
the circumstances in which he can refuse permission to hold a public meeting. Prima facie,
to give an arbitrary discretion to an officer is an unreasonable restriction. It was urged that
the Marginal Note of Section 33-power to make rules for regulation of traffic and for
preservation of order in public place, etc.-will guide the officer. It is doubtful whether a
marginal note can be used for this purpose, for we cannot imagine the officer referring to
the marginal note of the section and then deciding that his discretion is limited, specially as
the marginal note ends with ' etcetera '. It is also too much to expect him to look at the
scheme of the Act and decide that his discretion is limited.
41. We may in this connection refer to Cox v. Louisiana 13 L. Ed. 2d. 471; 486 paras
15,16,17. After stating that "from all evidence before us it appears that the authorities in
Baton Rouge, permit or prohibit parades or street meetings in their completely uncontrolled
discretion" it was observed :
This Court has recognized that the lodging of such broad discretion in a public
official allows him to determine which expressions of view will be permitted and
which will not. This thus sanctions a device for the suppression of the
communication of ideas and permits the official to act as a censor. See Saia v. New
York, supra, 334 US 562, 92 L ed at 1578. Also inherent in such a system allowing
parades or meetings only with the prior permission of an official is the obvious
danger to the right of a person of group not to be denied equal protection of the
laws. See Niemotko v. Maryland, supra, 340 US 272, 95 L ed at 270, 277; cf. Yick
Wo. v. Hopkins, 118 US 356, 30 L ed 220, 6 S Ct 1064. It is clearly
unconstitutional to enable a public official to determine which expressions of view
will be permitted and which will not or to engage in invidious discrimination
among persons or groups either by use of a statute providing a system of broad
discretionary licensing power or, as in this case, the equivalent of such a system by
selective enforcement of an extremely broad prohibitory statute.
It is, of course, undisputed that appropriate, limited discretion, under properly
drawn statutes or ordinances, concerning the time, place, duration, of manner of use

of the streets for public assemblies may be vested in administrative officials,

provided that such limited discretion is "exercised with 'uniformity of method of
treatment upon the fact-s of each application, free from improper or inappropriate
considerations and from unfair discrimination' ...and with a systematic, consistent
and just order of treatment, with reference to the convenience of public use of the
highways " Cox v. New Hampshire, supra, 312 US 576, 85 L ed 105, AIR 133
1396. See Poulos v. New Hampshire, supra.
But here it is clear that the practice in Baton Rouge allowing unfettered discretion
in local officials in the regulation of the use of the streets for peaceful parades and
meetings is an unwarranted abridgment of appellant's freedom of speech and
assembly secured to him by the First Amendment, as applied to the States by the
Fourteenth Amendment.
42. These extracts clearly bring out the dangers of conferring arbitrary discretionary
powers.
43. We may make it clear that there is nothing wrong in requiring previous permission to
be obtained before holding a public meeting on a public street, for the right which flows
from Article 19(1)(b) is not a right to hold a meeting at any place and time. It is a right
which can be regulated in the interest of all so that all can enjoy the right.
44. In our view Rule 7 confers arbitrary powers on the officer authorised by the
Commissioner of Police and must be struck down. The other Rules cannot survive because
they merely lay down the procedure for obtaining permission but it is not necessary to
strike them down for without Rule 7 they cannot operate. Rule 14 and Rule 15 deal both
with processions and public meetings. Nothing we have said affects the validity of these
two rules as far as processions are concerned.
45. In view of this conclusion it is not necessary to decide the other points raised by the
learned Counsel for the appellants.
46. A number of other American cases were referred to in the course of arguments but we
do not find it useful to refer to all of them in detail. It is, however, interesting to note that in
the United States of America the right to use streets and parks and public places "has from
ancient time been a part of the privileges, immunities, rights and liberties of citizens. The
privilege of a citizen of the United States to use the streets and parks for communication of
views on national questions may be regulated in the interest of all; it is not absolute, but
relative, and must be exercised in subordination to the general comfort and convenience,
and in consonance with peace and good order; but it must not, in the guise of regulation, be
abridged or denied." (vide Roberts, J., in Hague v. C.l.O. 83 L. Ed. 1423. This passage was
cited with approval in Shuttlesworth v. Birmingham 22 L. Ed. 2nd, 162.

47. In the result we set aside the judgment of the High Court, allow the appeal and declare
that Rule 7 of the Rules framed by Commissioner of Police, Ahmedabad, is void as it
infringes Article 19(1)(b) of the Constitution. We need hardly say that it will be open to the
Commissioner of Police. Ahmedabad. to frame a proper rule or rules.
K.K. Mathew, J.
48. I agree with the conclusion of my Lord the Chief Justice but my reasons for that
conclusion are different.
49. The appellant filed an application under Article 226 of the Constitution in the High
Court of Gujarat at Ahmedabad, praying for a declaration that orders contained in
Annexures 'A' and 'B' to that application, by which the Deputy Commissioner of Police,
Special Branch Ahmedabad, the 2nd respondent, refused to grant permission to the
appellant to hold public meetings near Panch Kuva Darwaja on the 4th and 5th September,
1969, were invalid, and that Rules 7 to 11, 14 and 15 framed Under Section 33(1) of the
Bombay Police Act, 1951, as applied to Saurashtra area in Gujarat which prescribe the
requirement of prior permission and the method of applying for the same, etc., were ultra
vires' the Sub-section and violative of his fundamental right under Article 19(1)(a) and (b).
The Court found that the principal prayer in the application, namely, the challenge to the
validity of the two orders, had become infructuous by lapse of time as the dates on which
the intended meetings were to be held had long since passed but considered the question
whether Rules 7 to 11, 14 and 15 were intra vires Section 33(1)and whether they would
violate the fundamental rights of the applicant under Article 19(1)(a) and (b) of the
Constitution. The Court dismissed the application holding that the rules were intra vires the
Sub-section under which they were framed and that they did not violate the fundamental
rights of the petitioner under Article 19(1)(a) or (b). This appeal is by certificate from that
judgment.
50. Section 33(1)(o) of the Bombay Police Act, 1951, provides :
33(1) The Commissioner and the District Magistrate, in areas under their respective
charges or any part thereof, may make, alter or rescind rules or orders not
inconsistent with this Act for;
XXX
(o) regulating the conduct of and behavior or action of persons constituting
assemblies and processions on or along the streets and prescribing in the case of
processions, the routes by which, the order in which and the times at which the
same may pass;

51. Rule 7 of the Rules framed by the Commissioner of Police Under Section 33(1)
(o) provides :
7. No public meeting with or without loud-speaker, shall be held on the public
street within the jurisdiction of the Commissionerate of Police, Ahmedabad City
unless the necessary permission in writing has been obtained from the officer
authorised by the Commissioner of Police.
52. The appellant submitted that Section 33(1)(o) did not empower the Commissioner or
the District Magistrate to frame a rule requiring a person to obtain prior permission for
conducting a public meeting on a public street, as such a rule would imply that the
Commissioner or the District Magistrate has power to refuse permission for holding such a
meeting as a power to permit normally implies a power not to permit and so, the rule is
bad. (It was Under Rule 7 that the Commissioner refused permission to hold meetings on
the 4th and 5th September, 1969).
53. What the Sub-section provides is making of rules for 'regulating' the conduct and
behavior, or action of persons constituting assemblies. The Sub-section presupposes an
assembly and authorises the making of rule for regulating the conduct, behavior or action
of the persons who are members thereof. Rule 7 impliedly gives power to the
Commissioner to refuse permission to hold a public meeting and, when a meeting is
prohibited, there is no question of regulating the conduct, behavior or action of persons
constituting assembly, as, ex-hypothesi, no assembly has been constituted. The Sub-section
does not authorise framing of rules to regulate the conduct, behavior or action or persons
before an assembly is constituted. Before an assembly is constituted, every member of the
public is a potential member of it. because every such member, if he so choose, might
become a member of the assembly. Does, then, the Sub-section authorise the making of
rules to regulate the conduct, behavior or action of every such member, before he becomes
a member of the assembly? I think not.
54. A power to "regulate" does not normally include a power to prohibit (see Toronto v.
Virao [1896] A.C. 88, Ontario v. Canada [1896] A.C. 348. A power to regulate implies the
continued existence of that which is to be regulated (see Birmingham and Midland Motor
Omnibus Co. Ltd. v. Worcestershire County Council[1967] 1 W.LH. 409. If Rule 7
authorises the Commissioner to prohibit a public meeting, is it consistent with the Subsection which authorizes only "regulating the conduct...."? When the Legislature wanted to
give the rule making authority a power to frame rules prohibiting an activity, it has taken
care to do so by the appropriate word. For instance, Sub-section (p) of Section 33(1) speaks
of "prohibiting the hanging or placing of any cord or pole across a street....", Sub-Section
(q) of Section 33(1) relates to "prohibiting the placing of building materials in any street".
In these sub- sections, the word 'prohibit' is used to show that the rule making authority has
power to pass a rule prohibiting the activities therein mentioned. Similarly Sub-section (x)

of Section 33(1) provides for "regulating or prohibiting the sale of any ticket ". The
juxtaposition of these words is a further indication to show that the legislature intended
different connotations to the words. I am not saving that a power to regulate can never
include a power to prohibit. But the context here does not compel such a reading. Rule 7 is,
therefore, ultra vires the Sub-section. Even if the rule is ultra vires the Sub-section the
appellant will not be entitled to hold public meetings on the street in question unless the
appellant has the right in law to do so. It was, therefore, argued on behalf of the appellant
that every citizen has the fundamental right to hold public meetings on a public street.
55. The respondents, however, submitted that, in India, the law is, that there is no right, let
alone a fundamental one, to hold public meeting on public street. In Saghir Ahmad v. The
State of U.P. and Ors. [1965] 1 S.C.R. 707. this Court said :
According to English law, which has been applied all along in India, a highway has
its origin, apart from statute, in dedication, either express or implied, by the owner
of the land of a right of passage over it to the public and the acceptance of that right
by the public.
The only right acquired by the public is a right to pass and re-pass it at their pleasure for
the purpose of legitimate travel. In Ex- parte Lewis (1888) L R 21 Q.B.D. 191, Wills, J.
speaking for the Court said :
A claim on the part of persons so minded to assemble in any numbers, and for so long a time
as they please to remain assembled, upon a highway, to the detriment of others having equal
right, is in its nature irreconcilable with the right of free passage, and there is, so far as we
have been able to ascertain, no authority whatever in favour of it. It was urged that the right
of public meeting, and the right of occupying any unoccupied land or highway that might
seem appropriate to those of her Majesty's subjects who wish to meet there, were, if not
synonymous, at least correlative. We fail to appreciate the argument.
In Reg. v. Omninghame Graham and Burns (1886) C C L C 16. the Commissioner of
Police, in the exercise of his powers vested in him under the Metropolitan Police Act, 1839,
issued an order that "no organised procession shall be allowed to approach the Trafalgar
Square on Sunday the 13th instant". It was argued that he had no power to forbid an orderly
meeting. But Charles, J. in charging the jury said :
I can find no warrant for telling you that there is a right of public meeting either in Trafalgar
Square or any other public thoroughfare. So far as, I know the law of England, the use of
public thoroughfares is for people to pass and repass along them. That is the purpose for
which they are, as we say, dedicated by the owner of them to the use of the public, and they
are not dedicated to the public use for any other purpose that I know of than for the purpose
of passing and re-passing;

A meeting held on a highway, although it might be a trespass against the Authority in

which the highway is vested is not on that ground, wrongful against the members of the
public. As far as they are concerned the meeting is a wrong only if it is a nuisance. As the
public are entitled to the unobstructed use of the highway for passing and repassing, any
meeting which appreciably obstructs the highway would seem to constitute such a
nuisance. The test is whether it "renders the way less commodious than before to the
public". The fact that sufficient alternative passage space is left is no defence. "It is no
defence to show that .... though a part of the highway actually used by the passengers is
obstructed, sufficient available space is left. "Halsbury, Hailsham ed., Vol. xvi. P. 355.
Moreover, it is not necessary to prove that any one has been obstructed; the placing of
obstructions on a public road or street in a manner calculated to create an obstruction to
traffic is an offence although no person or carriage may have been actually obstructed. In
Gill v. Carson and Nield [1917] 2 K.B. 674 Viscount Reading, C.J. said :
In my judgment it is not necessary to prove that a person has been actually
obstructed, it is quite sufficient to prove circumstances from which the justices can
conclude that in the ordinary course persons may be obstructed, and that the actual
use of the road was calculated to obstruct even though no person was proved to
have been obstructed.
Applying these rules to the special facts of a public meeting in the highway, it would
appear that such a meeting, however reasonable and desirable its purposes may be, is a
nuisance if it causes any appreciable obstruction, and that it is not necessary to prove that
in fact, any one has been prevented from passing. In De Morgan v. Metropolitan Board of
Works [1880] 5 Q.B.D. 155. it was held that although there is a widespread belief that the
general public has a right to hold meeting on a common, no such right was known to the
law. When it was argued that such meetings were always permitted, Lush. J. is reported to
have said that "such uses did not constitute a right or prove anything more than an excused
or licensed trespass". It may be stated, therefore, that if every unlicensed public meeting is
a trespass as against a person or body of persons in whom the surface of the highway is
vested, then this obviously may limit the so called right of public meeting to the vanishing
point.
56. Dicey in his Law of the Constitution A.V. Dicey, Law of the Constitution, 10th ed.,
271-282. has observed :
A has a right to walk down the High Street or to go on to a common. B has the
same right. C, D and all their friends have the same right to go there also. In other
words, A, B, C and D, and ten thousand such, have a right to hold a public meeting;
It might not follow that because A, B, C, D, etc., have a right to walk down the High Street,
they have a legal right to hold a public meeting. Beatty v. Gillbanks[1882] 9 Q.B.D. 308.
which dicey cites as the leading case on the law of public meeting was not directly

concerned with this question as the appellants there who were leading a procession through
the street intended to hold their meeting on private premises. Dicey has himself pointed out
in the Appendix to the eighth edition of the book as follows : Appenx to Law of the
Constitution, 8th ed., Note V on "Question connected with the right of public meeting", pp.
498-499.
Does there exist any general right of meeting in public places? The answer is easy.
No such right is known to the law of England.
...But speaking in general terms the Courts do not recognise certain spaces as set
aside for that end. In this respect, again, a crowd of a thousand people stand in the
same position as an individual person. If A wants to deliver a lecture, to make a
speech, or to exhibit a show, he must obtain some room or field which he can
legally use for his purpose. He must not invade the rights of property-i.e., commit a
trespass. He must not interfere with the convenience of the public-i.e., create a
nuisance.
The notion that there is such a thing as a right of meeting in public places arises
from more than one confusion or erroneous assumption. The right of public
meeting-that is, the right of all men to come together in a place where they may
lawfully assemble for any lawful purpose, and especially for political discussion-is
confounded with the totally different and falsely alleged right of every man to use
for the purpose of holding a meeting any place which in any sense is open to the
public. The two rights, did they both exist, are essentially different, and in many
countries are regulated by totally different rules. It is assumed again that squares,
streets, or roads, which every man may lawfully use, are necessarily available for
the holding of a meeting. The assumption is false. A crowd blocking up a highway
will probably be a nuisance in the legal, no less than in the popular sense of the
term, for they interfere with the ordinary citizen's right to use the locality in the
way permitted to him by law. Highways, indeed, are dedicated to the public use,
but they must be used for passing and going along them, and the legal mode of use
negatives the claim of politicians to use a highway as a forum, just as it excludes
the claim of actors to turn it into an open air theatre. The crowd who collect, and
the persons who cause a crowd, for whatever purpose, to collect in a street, create a
nuisance.........
57. In Burden v. Rigler and Anr. [1911] L.R. 1 K.B. 337, the evidence showed that the
urban authority had tacitly licensed the meeting and so it was not a trespass as against
them. No evidence was also adduced that the meeting caused any appreciable obstruction
on the highway and so there was no proof of any nuisance. The Court held that the fact that
a public meeting is held upon a highway does not make the meeting unlawful whether it is
unlawful or not depends upon the circumstances in which it is held e.g., whether or not an

obstruction is caused. The Court further held that even though there is no right to hold a
meeting on a highway, i.e., no absolute legal right, it does not necessarily follow that, if a
meeting is held, it may not be lawful. And after referring to the decision in Ex-parte
Lewis [1965] 1 S.C.R. 707. already referred to. the Court said that the convenors of a
meeting cannot, under all circumstances, insist on holding a meeting.
58. In Harrison v. Duke of Rutland [1893] 1 Q.B. 142, C.A., Lord Esher, M. R. observed :
Highways are no doubt dedicated prima facie for the purpose of passage; but things
are done upon them by everybody which are recognised as being rightly done, and
as constituting a reasonable and usual mode of using a highway as such.
59. In Halsbury's Laws of England Hailsham Edition, Vol xvi, p. 362 "Highways". it is said
that it is a nuisance "to organise or take part in a procession or meeting which naturally
results in an obstruction and is an unreasonable use of the highway.
60. Public processions are prima facie legal. If A, B and C have each a right to pass and repass on the highway, there is nothing illegal in their doing so in concert, unless the
procession is illegal on some other ground (see Manzur Hasan v. Muhammed Zaman 52
I.A. 61 and Chandu Sajan Patil v. Nyshalchand MANU/MH/0069/1950
:

AIR1950Bom192 . "As the public interest is paramount, it is sometimes suggested that, on

the analogy of a public meeting, any procession which causes an appreciable obstruction to
the highway must be a public nuisance. This, however, is not so. As a public meeting is not
one of the uses for which the highway has been dedicated, it is a nuisance if it appreciably
obstructs the road. It is no defence to show that sufficient available space is left if a part of
the highway actually used by passengers is obstructed. But, and this is most important, in
the case of a procession, the test is whether in all the circumstances such a procession is a
reasonable user of the highway, and not merely whether it causes an obstruction. Thus to
take an obvious illustration, the temporary crowding in a street occasioned by people going
to a circus or leaving it is not a nuisance, for if such a temporary obstruction were not
permitted then no popular show could ever be held" (see Good-hart, Public Meetings and
Processions Cambridge Law journal (1936-38). 6, 171. The distinction between the use of
a highway to hold a public meeting and the use of it to conduct procession thereon is
pointed out by the author and he takes the view that no person has a right to use a highway
for holding public meeting even though no nuisance is created. According to him, under the
law, a person can use a highway for the purpose for which it has been dedicated i.e., to pass
and re-pass and any other unlicensed use, however desirable it may be from other
standpoints, is legally wrongful.
61. In Lowdens v. Keaveney (1903) 2 I.R. 82. Gibson, J. said that a procession is prima
facie legal and that it differs from "the collection of a stationary crowd'' but that a

procession may become a nuisance if the right is exercised unreasonably or with reckless
disregard of the rights of others.
62. Justice Holmes, while he was Chief Justice of the Massachusetts Supreme Court said :
For the legislature absolutely or conditionally to forbid public speaking in a
highway or public park is no more an infringement of the rights of a member of the
public than for the owner of a private house to forbid it in his house. When no
proprietary rights interfere, the legislature may and the right of the public to enter
upon the public place by putting an end to the dedication to public use. So it may
take the less step of limiting the public use to certain purposes.
This dictum was quoted and approved by the U. S. Supreme Court Davis v.
Massachusetts 167 U.S. 43 (1897). But later decisions of the U.S. Supreme Court have
politely distinguished the case. In Hague v. C.I.O.307 U. S. 496, 515-516, Justice Roberts,
speaking for the majority, said :
Wherever the title of streets and parks may rest, they have immemorially been held
in trust for the use of the public and time out of mind, have been used for purposes
of assembly, communicating thoughts between citizens, and discussing public
questions. Such use of the streets and public places has, from ancient times, been a
part of the privileges, immunities, rights and liberties of citizens. The privilege of a
citizen of the United States to use the streets and parks for communication of views
on national questions may be regulated in the interest of all; it is not absolute but
relative, and must be exercised in subordination to the general comfort and
convenience and in consonance with peace and good order; but it must not, in the
guise of regulation, be abridged or denied.
This dictum has been followed in Kunz v. New York 340 U.S. 290. and Shuttlesworth v.
Birmingham 394 U.S. 147.
63. Freedom of assembly is an essential element of any democratic system. At the root of
this concept lies the citizens' right to meet face to face with others for the discussion of
their ideas and problems-religious, political, economic or social. Public debate and
discussion take many forms including the spoken and the printed word, the radio and the
screen. But assemblies face to face perform a function of vital significance in our system,
and are no less important at the present time for the education of the public and the
formation of opinion than they have been in our past history. The basic assumption in a
democratic polity is that Government shall be based on the consent of the governed. But
the consent of the governed implies not only that the consent shall be free but also that it
shall be grounded on adequate information and discussion. Public streets are the 'natural'
places for expression of opinion and dissemination of ideas. Indeed it may be argued that

for some persons these places are the only possible arenas for the effective exercise of their
freedom of speech and assembly.
64. Public meeting in open spaces and public streets forms part of the tradition of our
national life. In the pre-Independence days such meetings have been held in open spaces
and public streets and the people have come to regard it as a part of their privileges and
immunities. The State and the local authority have a virtual monopoly of every open space
at which an outdoor meeting can be held. If, therefore, the State or Municipality can
Constitutionally close both its streets and its parks entirely to public meetings, the practical
result would be that it would be impossible to hold any open air meetings in any large city.
The real problem is that of reconciling the city's function of providing for the exigencies of
traffic in its streets and for the recreation of the public in its parks, with its other
obligations, of providing adequate places for public discussion in order to safeguard the
guaranteed right of public assembly. The assumption made by Justice Holmes is that a city
owns its parks and highways in the same sense and with the same rights a private owner
owns his property with the right to exclude or admit anyone he pleases. That may not
accord with the concept of dedication of public streets and parks. The parks are held for
public and the public streets are also held for the public. It is doubtless true that the State or
local authority can regulate its property in order to serve its public purposes. Streets and
public parks exist primarily for other purposes and the social interest promoted by
untrammelled exercise of freedom of utterance and assembly in public street must yield to
social interest which prohibition and regulation of speech are designed to protect. But there
is a Constitutional difference between reasonable regulation and arbitrary exclusion.
65. The framers of the Constitution were aware that public meetings were being held in
public streets and that the public have come to regard it as part of their rights and privileges
as citizens. It is doubtful whether, under the common law of the land, they have any such
right or privilege but. nobody can deny the de facto exercise of the right in the belief that
such a right existed. Communis error facit jus (common error makes the law). This error
was grounded on the solid substratum of continued practice over the years. The conferment
of a fundamental right of public assembly would have been an exercise in futility, if the
Government and the local authorities could legally close all the normal places, where
alone, the vast majority of the people could exercise the right. Our fundamental rights of
free speech and assembly are modelled on the Bill of Rights of the Constitution of the
U.S.A. [see Express Newspapers (Private) Ltd. and Anr. v. The Union of India and Ors.
MANU/SC/0157/1958
: (1961)ILLJ339SC ]. It would be relevant then to look to

the ambit and reach of those tights in the United States to determine their content and range
in India. On closer analysis, it will be found that the basis of Justice Roberts Dictum in
Hague v. C.l.O.307 U.S. 496 is the continued de facto exercise of the right over a number
of years. I think the same reasoning can be applied here.

66. The power of the appropriate authority to impose reasonable regulation in order to
assure the safety and convenience of the people in the use of public highways has never
been regarded as inconsistent with the fundamental right of assembly. A system of
licensing as regards the time and the manner of holding public meetings on public street
has not been regarded as an abridgement of the fundamental right of public assembly or of
free speech. But a system of licensing public meeting will be upheld by Courts only if
definite standards are provided by the law for the guidance of the licensing authority.
Vesting of unregulated discretionary power in a licensing authority has always been
considered as bad [see the cases on the point discussed in the concurring opinion of Justice
Frankfurter in Niemotko v. Maryland 340 U.S. 268.
67. If there is a fundamental right to hold public meeting in a public street, then I need
hardly say that a rule like Rule 7, which gives an unguided discretion, practically
dependent upon the subjective whim of an authority to grant or refuse permission to hold a
public meeting on public street, cannot be held to be valid. There is no mention in the rule
of the reasons for which an application for licence can be rejected. "Broad prophylactic
rules in the area of free expression and assembly are suspect. Precision of regulation must
be the touch stone in an area so closely touching our precious freedoms" [see NAACP v.
Button 371 U.S. 415 (1963).
68. I would allow the appeal.
M.H. Beg, J.
69. I have had the advantage of reading the judgments of My lord the Chief Justice and my
learned brother Mathew. I would like to indicate why, despite my difficulties, I conclude
that Rule 7 of the rules made Under Section 33(o) of the Bombay Police Act, 1961
(hereinafter referred to as 'the Act'), is void. The difficulties I refer to arise mainly from two
considerations : firstly, it is abundantly clear that there is no separate right of "public
meeting", let alone a Constitutional fundamental right so described, and, in any case, there
is no such right attached to public streets which are dedicated for the particular purpose of
passing and re-passing with which any recognition of a right to hold a meeting on a public
thoroughfare will obviously be in consistent; and, secondly, although Rule 7 apparently
gives a wide discretionary power to give or to refuse permission to hold a meeting on a
"public street", so that it is capable of being misused or so used as to enable unjustifiable
discrimination, yet, it is possible to find some guidance, as the High Court of Gujarat
found, in the pre-amble as well as in Section 33(o) of the Act. Therefore, it may be possible
to rely here, as the High Court had done, upon the presumption that even the apparently
wide discretionary powers vested by Rule 7 in the Commissioner of Police, a highly
responsible police officer, will not be abused. It is certainly arguable with some force that
the power of the High Court to strike down an improper exercise is a sufficient safeguard
against its misuse so that it may not be necessary to strike down Rule 7 at all. Furthermore,
in the case before us, a good enough reason was given by the Commissioner to justify a

refusal. We are, however, also concerned with the validity of Rule 7 which may be relied
upon for future refusals or grants of permission which will, it is urged, effect the
petitioner's rights.
70. There is doubt that a "public street", as it is commonly understood, is really dedicated
for the use of the public for the purpose of passing and re-passing on it and not for any
other purpose. In this respect, it appears to me that the law in this country, as laid down by
this Court in Saghir Ahmad v. State of U.P. MANU/SC/0180/1954
:

AIR1954SC720 and the Municipal Board, Manglaur v. Sri Mahadeoji Maharaj

MANU/SC/0299/1964
: [1965]2SCR242 , is not different from the Law in

England found stated in Halsbury's Laws of England Halsbury's Law of England. Third
Edn. Vol. 19. p. 73, as follows :
The right of the public is a right to 'pass along' a highway for the purpose of
legitimate travel, not to 'be on' it, except so far as their presence is attributable to a
reasonable and proper user of the highway as such.
71. A right to use a public highway for the purpose of carrying on transport business or
other forms of trade such as hawking, or, to take out a procession through it, is really
incidental to a reasonable user of the highway by the public. It would be fully covered by
the purpose for which the public road is deemed to be dedicated. But, as regards the
supposed right to hold a. "public meeting" on a highway, it appears to me that the
following observations from Blackwell's "Law of Meeting" (9th Edn. p. 5). could apply
equally well here :
There appears to exist a view that the public has a right to hold meetings for
political and other purposes on the highway. This is an erroneous assumption. A
public highway exists for the purpose of free passage only, and for purposes
reasonably incidental to this right. There can be no claim on. the part of persons
who desire to assembly for the purpose of holding a meeting to do so on the
highway. The claim is irreconcilable with the purpose for which a highway exists.
I do not find it possible to accept the view that a merely erroneous assumption can ever
form the basis of a right unless buttressed by something stronger.
72. No doubt a meeting held on a highway will not necessarily be illegal. It may be
sanctioned by custom or rest on permission, from an authority prescribed by statute, to put
a particular part of the public highway to an exceptional and extraordinary user for a
limited duration even though such user may be inconsistent with the real purpose for which

the highway exists. The right has, however, to be shown to exist or have a legal basis, in
every case in which a claim for its exercise is made, with reference to the particular part of
the highway involved.
73. The Privy Council pointed out, in Lakshmidhar Misra and Ors. v. Bangalal and Ors.
MANU/PR/0054/1949
, the right to user of a particular piece of land for a

particular purpose, such as holding a fair, may be part of the customary law of locality.
Thus, a customary right to use a highway for special purposes sometimes may exist
provided the ingredients of such a right are established although the customary right may
not consistent with the purpose for which the highway is dedicated. Proof of such a
customary right attaching to a particular part of a highway must, however, be a matter of
evidence in every case. It seems clear' to me that we are not concerned with 'such rights as
they were not set up anywhere in the case before us, and, even if such a right had been set
up, it could only be adjudicated upon satisfactorily in a civil suit.
74. No doubt Dicey's Law of the Constitution (10th Edn. p. 271-272) contains a passage
which deals with the right of a subject to pass through a highway and to proceed to "a
common" together with others in procession and to hold a public meeting for political or
other purposes without obtaining the prior permission of any authority to exercise such a
right. I am, however, unable to read into this passage the further right of holding a public
meeting on a highway or public street. It seems to me that what is referred to there is only
the right to pass through a public thoroughfare in order to proceed to and hold a meeting on
"a common". There may be a right of using "a common" for the purpose of holding public
meetings by custom.
75. In the Appendix to Dicey's "Law of the Constitution Dicey's Law of the
Constitution-"8th Edn. Note V on Questions connected with the right of public meeting", p.
498-499, the position under the English law is stated very clearly as follows :
Does there exist any general right of meeting in public places" The answer is easy.
No such right is known to the Law of England.
But speaking in general terms the courts do not recognise certain spaces as set aside
for that end. In this respect, again, a crowd of a thousand people stand in the same
position as an individual person. If A wants to deliver a lecture, to make a speech,
or to exhibit a show, he must obtain some room or field which he can legally use
for his purpose. He must not invade the rights of property-i.e. commit a trespass.
He must not interfere with the convenience of the public-i.e. create a nuisance.
The notion that there is such a thing as a right of meeting in public places arises
from more than one confusion or erroneous assumption. The right of public

meeting-that is, the right of all men to come together in a place where they may
lawfully assemble for any lawful purpose, and especially for political discussion-is
confounded with the totally different and falsely alleged right of every man to use
for the purpose of holding a meeting any place which in any sense is open to the
public. The two rights, did they both exist, are essentially different, and in many
countries are regulated by totally different rules. It is assumed again that squares,
streets, or roads, which every man may lawfully use, are necessarily available for
the holding of a meeting. The assumption is false. A crowd blocking up a highway
will probably be a nuisance in the legal, no less than in the popular sense of the
term, for they interfere with the ordinary citizen's right to use the locality in the
way permitted to him by law. Highways, indeed, are dedicated to the public use,
but they must be used for passing and going alone them, and the legal mode of use
negatives the claim of politicians to use a highway as a forum, just as it excludes
the claim of actors to turn it into an open-air theatre. The crowd who collect, and
the persons who cause a crowd, for whatever purpose, to collect in a street, create a
nuisance.
76. Dicey does deal with a "right of public meeting" as though it was an outcome of a right
of assembly. But, he assumes that an assembly, which is stationary, as distinct from one
which is moving, must be held at a place where there is otherwise a right to hold such an
assembly constituting a "public meeting". If the term "meeting" signified the mere meeting
of one citizen with another it could be said that such a meeting of many citizens on a
particular portion of a public highway is included within reasonable user of the public
highway for the purpose for which it was dedicated so long as it does not interfere
unreasonably with similar rights of others. The term "public meeting", however, is
generally used for a gathering of persons who stand or take their seats at a particular place
so as to be addressed by somebody who is heard by or expresses the feelings of the persons
assembled. If the term "meeting" were really confined to what may be called a moving
assembly or procession a right to hold it could be comprehended within the right to take
out a procession which should, it seems to me, be distinguished from what is commonly
understood as a right to hold a public meeting. Such a meeting, if held on a highway, must
necessarily interfere with the user of the highway by others who want to use it for the
purpose for which the highway must be deemed to be dedicated.
77. It is true that there is a well recognised right of taking out processions on public
thoroughfares in this country as an incident of the well understood right of their user by the
public. But, I find it very difficult to proceed further and to hold that such a right could be
extended and converted into a right to hold a public meeting on a thoroughfare. The right to
hold a public meeting may be linked with or even flow out of rights under Article 19(1)
(a) to express one's opinions and 19(1)(b) to assemble peaceably and without arms, just as
the right to take out processions or moving assemblies may spring from or be inextricably
connected with these rights, yet, inasmuch as the right to hold a meeting at a particular

place must rest on the proof of user of that place for the exercise of a fundamental right, it
appears to me that the right to such a user must be established in each particular case quite
apart from or independently of fundamental rights guaranteed by Article 19(1) of our
Constitution. It involves something more than the exercise of a fundamental right although
that something more may be necessary for and connected with the exercise of a
fundamental right.
78. In Hague v. C.I.O. 307 U.S. 496, 515-516, Roberts, J. no doubt spoke of the general
right of the public in America to use "streets and parks....for purposes of assembly,
communicating thoughts between citizens, and discussing public questions". But, I do not
find here a recognition of a right to hold a public meeting on a public thoroughfare. The
passage relied upon by the learned Counsel for the appellant from this case referred to
rights which could be exercised in "streets and parks". A natural interpretation of this
passage appears to me to be that whatever rights can be properly exercised by members of
the public on a public thoroughfare may be exercised 'there but the others could be
exercised in a park where a public meeting could he held. Whatever may be the law in
America, we have not been shown any authority for the proposition that there is an
unconditional right of holding a public meeting at every public place, much less on a public
thoroughfare or street in this country, as a necessary incident of the fundamental rights of
either free speech or of assembly.
79. If the position rested merely on the commonly accepted meaning of a "public street"
and the purposes for which it must be deemed to be dedicated it may have been possible to
argue that Rule 7 itself goes beyond the scope of the rule making power given by
Section 33(o) inasmuch as a stationary assembly, as a public meeting must necessarily be
so long as the assembly last, could not reasonably be within the purview of Sec. 33(o) of
the Act. But, the definition of the public street in Section 2, Sub-section 15 of the Act lays
down :
2(15) "Street" includes any highway, bridge, way over a causeway, viaduct, arch,
quay or wharf or any road, lane, footway, square, court, alley or passage accessible
to the public, whether a thoroughfare or not.
80. If we bear this definition in mind, it would appear that the public could conceivably
hold a meeting at a place falling under this definition of a street. If this is so, could the
Commissioner not be authorised to regulate it in the manner contemplated by Rule 7 ? I
think he could, provided there are sufficient safeguards against misuse of such a power.
81. Rule 7 is so worded as to enable the Commissioner to give or refuse permission to hold
a public meeting at a place falling within the definition of "a Street" without the necessity
of giving reasons for either a refusal or a permission. It will, therefore, be possible for him,
under the guise of powers given by this rule, to discriminate. If he chooses to give no
reasons either for giving the permission or for refusing it, it will not be possible for a High

Court or this Court to decide, without holding a trial and taking evidence, what those
reasons really are in a particular case. Such a wide power my even enable an exceptional
user of a public thoroughfare, completely inconsistent with the rights of the public to pass
or re-pass, to be made of it without sufficient justification for it. The Commissioner may
give permission to use a place for a public meeting on a public street, which may not be
suitable for it, to influential or powerful persons but deny it to others. Although, the right to
hold a public meeting at a public place may not be a Fundamental Right by itself, yet, it is
so closely connected with fundamental rights that a power to regulate it should not be left
in a nebulous state. It should be hedged round with sufficient safeguards against its misuse
even if it is to be exercised by the Commissioner of Police. He ought to be required to give
reasons to show why he refuses or gives the permission for such exceptional user of a
"street" as it is defined in the Act. The rule should make clear the circumstances in which
the permission may be given or refused. Therefore although I have had my serious doubts
as to whether we need declare Rule 7 invalid for a contravention of Article 19(1)(b) of the
Constitution, yet, on fuller consideration, I respectfully concur with My lord the Chief
Justice in declaring it invalid because it is capable of being used arbitrarily so as to
discriminate unreasonably and unjustiably and thus to affect the exercise of rights
conferred by Articles 19(1)(a) and (b) without sufficient means of control over possible
misuse of power. The Rule of law our Constitution contemplates demands the existence of
adequate means to check possibilities of misuse of every kind of power lodged in officials
of the State. I would prefer to strike it down for contravening Article 14 of the Constitution
although, if its repercussions on the rights guaranteed by Article 19(1)(a) and (b) were also
taken into account, it could be struck down as an unreasonable restriction on those rights as
well.
82. For the reasons given above, I respectfully agree with the order proposed by My lord
the Chief Justice.

INDIAN EXPRESS NEWSPAPERS (BOMBAY) PRIVATE LIMITED V UNION OF

INDIA, AIR 1986 SC 515

Venkataramiah, J.
1. The majority of Petitioners in these petitions filed under Article 32 of the Constitution
are certain companies, their shareholders and their employees engaged in the business of
editing, printing and publishing newspapers, periodicals, magazines etc. Some of them are
trust or other kinds of establishments carrying on the same kind of business. They consume
in the course of their activity large quantities of newsprint and it is stated that 60% of the
expenditure involved in the production of a newspaper is utilized for buying newsprint, a
substantial part of which is imported from abroad. They challenge in these petitions the
validity of the imposition of import duty on newsprint imported from abroad under
Section 12 of the Customs Act, 1962 (Act 52 of 1962) read with Section 2 and Heading
No. 48.01/21 Subheading No. (2) in the First Schedule to the Customs Tariff Act, 1975
(Act 51 of 1975) and the levy of auxiliary duty under the Finance Act, 1981 on newsprint
as modified by notifications issued under Section 25 of the Customs Act, 1962 with effect
from March 1, 1981.
2. The first set of writ petitions challenging the above levy was filed in May, 1981. At that
time under the Customs Act, 1962 read with the Customs Tariff Act, 1975 customs duty of
40% ad valorem was payable on newsprint. Under the Finance Act, 1981 an auxiliary duty
of 30% ad valorem was payable in addition to the customs duty. But by notifications issued
under Section 25 of the Customs Act, 1962 the customs duty had been reduced to 10% ad
valorem and auxiliary duty had been reduced to 5% ad valorem in the case of newsprint
used for printing newspapers, books and periodicals.
3. During the pendency of these petitions while the Customs Tariff Act, 1975 was amended
levying 40% ad valorem plus Rs. 1,000/- per MT as customs duty on newsprint, the
auxiliary duty payable on all goods subject to customs duty was increased to 50% ad
valorem. But by reason of notifications issued under Section25 of the Customs Act, 1962
duty at a flat rate of Rs. 550/- per MT and auxiliary duty of Rs. 275/- per MT are now
being levied on newsprint i.e. in all Rs. 825/- per MT is now being levied.
4. The Petitioners inter alia contend that the imposition of the import duty has the direct
effect of crippling the freedom of speech and expression guaranteed by the Constitution as
it has led to the increase in the price of newspapers and the inevitable consequence of
reduction of their circulation. It is urged by them that with the growth of population and
literacy in the country every newspaper is expected to register an automatic growth of at
least 5% in its circulation every year but this growth is directly impeded by the increase in

the price of newspapers. It is further urged that the method adopted by the Customs Act,
1962 and the Customs Tariff Act, 1975 in determining the rate of import duty has exposed
the newspaper publishers to Executive interference. The Petitioners contend that there was
no need to impose customs duty on newsprint which had enjoyed total exemption from its
payment till March 1, 1981, as the foreign exchange position was quite comfortable. Under
the scheme in force, the State Trading Corporation of India sells newsprint to small
newspapers with a circulation of less than 15,000 at a price which does not include any
import duty, to medium newspapers with a circulation between 15,000 and 50,000 at a
price which includes 5% ad valorem duty (now Rs. 275/- per MT) and to big newspapers
having a circulation of over 50,000 at a price which includes the levy of 15% ad valorem
duty (now Rs. 825/- per MT). It is stated that the classification of newspapers into big,
medium and small newspapers is irrational as the purchases on high seas are sometimes
affected by a publisher owning many newspapers which may belong to different classes.
The Petitioners state that the enormous increase in the price of newsprint subsequent to
March 1, 1981 and the inflationary economic conditions which have led to higher cost of
production have made it impossible for the industry to bear the duty any longer. Since the
capacity to bear the duty is an essential element in determining the reasonableness of the
levy, it is urged, that the continuance of the levy is violative of Article 19(1)(a) and
Article 19(1)(g) of the Constitution. It is suggested that the imposition of the levy on large
newspapers by the Executive is done with a view to stifling circulation of newspapers
which are highly critical of the performance of the administration. Incidentally the
Petitioners have contended that the classification of newspapers into small, medium and
big for purposes of levy of import duty is violative of Article 14 of the Constitution. The
Petitioners have appended to their petitions a number of annexure in support of their pleas.
5. On behalf of the Union Government a co inter-affidavit is filed. The deponent of the
counter-affidavit is R.S. Sidhu, Under Secretary to the Government of India, Ministry of
Finance, Department of Revenue. In paragraph 5 of the counter-affidavit it is claimed that
the Government had levied the duty in the public interest to augment the revenue of the
Government. It is stated that when exemption is given from the customs duty the Executive
has to satisfy itself that there is some other corresponding pubic interest justifying such
exemption and that in the absence of any such public interest the Executive has no power
to exempt and that it has to carry out the mandate of Parliament which has fixed the rate of
duty by the Customs Tariff Act, 1975. It is also claimed that the classification of
newspapers for purposes of granting exemption is done in the public interest having regard
to the relevant considerations. It is denied that the levy suffers from any mala fides. It is
pleaded that since every section of the society has to bear its due share of the economic
burden of the State, levy of customs duty on newsprint cannot be considered to be violative
of Article 19(1)(a) of the Constitution. But regarding the plea of the Petitioners that the
burden of taxation is excessive the counter-affidavit states that the said fact is irrelevant to
the levy of import duty on newsprint. In reply to the allegation of the Petitioners that there
was no valid reason for imposing the duty on the foreign exchange position was quite

comfortable, the Union Government has stated that the fact that the foreign exchange
position was comfortable was no bar to the imposition of import duty. It is further pleaded
that since the duty imposed is an indirect tax which would be borne by the purchaser of
newspaper, the Petitioner; cannot feel aggrieved by it.
II
A Brief History of the levy of Customs Duty on Newsprint.
6. In order to appreciate the various contentions of the parties it is necessary to set out
briefly the history of the levy of customs duty on newsprint in India
7. Even though originally under the Indian Tariff Act, 1934 there was a levy of customs
duty on imported paper, exemption had been granted for import of white, grey or unglazed
newsprint from the levy of any kind of customs duty in excess of 1.57 per cent ad valorem
but subsequently a specific import duty of Rs. 50/- per MT used to be levied on newsprint
imports up to 1966. The question of levy of customs duty on newsprint was examined by
the Inquiry Committee on Small Newspapers. In its Report submitted in 1965 that
Committee recommended total exemption of newsprint from customs duty because in 90%
of the countries in the world no such levy was being imposed because newspapers played a
vital role in a democracy. On the basis of the said recommendation the Government of
India abolished customs duty on newsprint altogether in the year 1966 in exercise of its
power under Section 25 of the Customs Act, 1962. The price of newsprint was Rs. 725/per MT during the year 1965-66 but there was a sudden spurt in its price in 1966-67 when
it rose to Rs. 1155/- per MT. During the period 1966-71 although almost all imported
goods suffered basic regulatory and auxiliary customs duty, there was no such levy on
newsprint in spite of severe foreign exchange crisis which arose on the devaluation of the
Indian Rupee in 1966. But on account of the financial difficulties which the country had to
face as a consequence of the Bangladesh War in 1971, a regulatory duty of 2 1/2% was
levied on newsprint imports to meet the difficult situation by the Finance Act of 1972. The
price of newsprint in the year 1971-72 was Rs. 1134/- per MT. The above 21/2% ad
valorem regulatory duty was abolished by the Finance Act of 1973 and was converted into
5% auxiliary duty by the said Act. This levy of 5% was on all goods including newsprint
imported into India. On April 1, 1974 under the Import Control Order issued under
Section 3 of the Imports and Exports (Control) Act, 1947, import of newsprint by private
parties was banned and its import was canalized through the State Trading Corporation of
India In 1975, the Customs Tariff Act, 1975 came into force. By this Act the Indian Tariff
Act, 1934 was repealed. Under Section 2 read with Heading No. 48.01/21 of the First
Schedule to the Customs Tariff Act, 1975, a levy of basic customs duty of 40% ad valorem
was imposed on newsprint. But in view of the exemption granted in the year 1966 which
remained in force, the imposition made by the Customs Tariff Act, 1975 did not come into
force. Only 5% auxiliary duty which was levied from April 1, 1973 continued to be in

operation. In the budget proposals of July, 1977, the 5% auxiliary duty was reduced to 2
1/2% but it was totally abolished by a notification issued under Section 25 of the Customs
Act on July 15, 1977. The notification dated July 15, 1977 reads as follows:
NOTIFICATION CUSTOMS GSR No.
In exercise of the powers conferred by Sub-section (1) of Section 25 of the
Customs Act, 1962 (52 of 1962). and in super session of the notification of the
Government of India in the Department of Revenue and Banking No. 72 Customs
dated the 18th June 1977, the Central Government, being satisfied that it is
necessary in the public interest so to do, hereby exempts newsprint, falling under
sub-heading (2) of Heading No. 48.01/21 of the First Schedule to the Customs
Tariff Act, 1975 (51 of 1975). when imported into India from the whole of that
portion of the duty of customs livable thereon, which is specified in the said First
Schedule.
Sd/(Joseph
Under-secretary to the Government of India

Dominic)

8. The price of newsprint during the year 1975-76 was Rs. 3,676/- per MT. The total
exemption from customs duty imposed on newsprint was in force till March 1, 1981. In the
meanwhile the Central Government notified increased salaries and wages to employees of
newspaper establishments in December. 1980 on the recommendations contained in the
Palekar Award. On March 1, 1981, the notification dated July 15,1977 issued under
Section 25(1) of the Customs Act, 1962 granting total exemption from customs duty was
superseded by the issue of a fresh notification which stated that the Central Government
had in the public interest exempted newsprint imported into India for printing of
newspapers, books and periodicals from so much of that portion of the duty of customs
livable thereon as was in excess of 10 per cent ad valorem. The effect of the said
notification was that publishers of newspapers had to pay ten per cent ad valorem customs
duty on imported newsprint. By another notification issued at about the same time auxiliary
duty imposed by the Finance Act of 1981 above 5 percent ad valorem was exempted in the
case of newsprint. The net result was that a total duty of 15 per cent ad valorem came to be
imposed on newsprint for the year 1981-82.
9. The explanation given by the Government in support of the above notification was as
follows:
Customs duly on newsprint:

Originally import of the newsprint did not attract any customs duty. The
rearmament of India abolished the custom duty on newsprint after the devaluation
of the rupee on the recommendation of the Inquiry Committee on Small
Newspapers (1965). She Committee had mentioned in its report that 90% of the
newsprint in international trade was tree from customs duty and had recommended
complete abolition of customs duty on newsprint. However, during the Bangladesh
crisis in 1971, a 2 1/2% ad valorem regulatory duty was imposed on newsprint
imposts. Subsequently this was abolished on April 1, 1973 and in its place a 5%
auxiliary customs duty on newsprint imports was proposed in the Union Budget
Proposals for 1973-74. While no customs duty was levied on newsprint because of
the exemption granted by Customs Notification No. 235/F No. 527/1/76-CUS (TU)
dated August 2, 1976 of the Department of Revenue and Banking, 5% auxiliary
duty was continued to be levied on imported newsprint till July 15, 1977 when the
Ministry of Finance, Department of Revenue by its Notification No. 148/F. No.
Bud (2) Cus/77 dated July 15, 1977 exempted newsprint from the whole of duty of
customs. Prior to this, the Ministry of Finance, Department of Revenue vide its
Customs Notification No. 72/F. No. Bud (2) Cus/77 dated June 18, 1977 had
reduced the auxiliary duty to 2 1/2%.
In the Budget proposals for the current year, the Minister of Finance has proposed a
customs duty of 15% on newsprint imports which has become effective from
March 1, 1981 because of the Customs Notification No. 24/F. No. Bud (Cus)/8J
dated March 1, 1981. This 15% customs duty constitutes 10% basic duty and 5%
auxiliary duty.
10. The price of imported newsprint in March 1, 1981 was Rs. 4,560/- per MT. The extract
from the speech of the Finance Minister in support of the imposition of a total 15% of duty
(10% basic duty and 5% auxiliary duty) on newsprint is given below:
The levy of 15 per cent customs duty on newsprint has understandably attracted a good deal
of comment both within the House and outside, As it has been explained in the Budget
speech, this levy is intended to promote a measure of restraint in the consumption of imported
newsprint and thus help in conserving foreign exchange. In the light of the observations made
by the How Members in the course of the General Debate on the Budget I had assured the
House that I would try to work out a scheme of providing relief to small and medium
newspapers about which Members had voiced their special concern. We have now worked
out the modalities of a scheme for affording relief to small and medium newspapers. Under
this Scheme, the State Trading Corporation would sell imported newsprint to small
newspapers at a price which would not include any amount relatable to import duty. Medium
newspapers will get their newsprint at a price which would include an amount relatable to
import duty of 5 per cent ad valorem Big newspapers would however, pay a price which will
reflect the full duty burden of 15 per cent ad valorem There is a definition of small medium

and big newspapers in the Press Council At the moment the present definition is that those
which have a circulation of 15,000 or less are classified as small, those with a circulation of
more than 15,000 but less than 50,000 are classified as medium and those with a circulation
of ever 50,000 are called big newspapers. There lore, the small newspapers with a circulation
of 15,000 and less will not pay any customs duty, those with a circulation between 15,000
and 50,000 will pay customs duty of 5 percent and with a circulation of over 50,000 will pay
15 per cent. Suitable financial arrangements will be worked out as between Government and
the State Trading Corporation to enable the STC to give effect to these concessions. As Hon.
Members are aware, the categorization of newspapers as small, medium and big in terms; of
circulation is already well understood in the industry and is being followed by the Ministry of
Information and Broadcasting for purpose of determining initial allocation of newsprint and
for setting the rates of growth of consumption of newsprint by various newspapers from year
to year. The State Trading Corporation will, for purposes of the present scheme, follow the
same categorization of newspapers into small, medium and big. These arrangements will, in
effect provide a relief of about Rs. 5.86 crores to small and medium newspapers.
11. The relevant provisions of the laws imposing customs duty and auxiliary duty on
newsprint which arise for consideration are these:
Section 12 of the Customs Act, 1962 reads:
12. Dutiable goods.- (1) Except as otherwise provided in this Act, or any other law
for the time being in force, duties of customs shall be levied at such rates as may be
specified under the Customs Tariff Act. 1975 (51 of 1975) or any other law for the
time being in force, on goods imported into or exported from India
(2)...
12. Section 2 of the Customs Tariff Act, 1975 reads:
2. Duties specified in the Schedules to be levied. - The rates at which duties of customs shall
be levied under the Customs Act, 1962, are specified in the First and Second Schedules.
13. The relevant part of Chapter 48 of the First Schedule to the Customs Tariff Act, 1975
which deals with import tariff read in 1981 thus:

Rate of duty

"Heading
No.

Sub-heading No.
description of article

and

Standard Preferential
Duration
when
rates Areas of
duty
are

protective

(1)

(2)

48.01/21

Newsprint
containing 40%
mechanical
wood
pulp
amounting to not less than 70
per cent of the fibre content
(excluding chrome, marble,
flint, poster, stereo and art
paper)

(2)

(3)

(4) (5)

__

14. Newsprint used by the Petitioners falls under sub- heading (2) of Heading No. 48.01/21
by which 40% ad valorem customs duty is levied on it. By the Finance Act of 1982 in
subheading No. (2) of Heading No. 48.01/21, for the entry in column (3), the entry "40%
plus Rs. 1,000/- per tonne" was substituted.
15. The relevant part of Section 44 of the Finance Act, 1982, which levied an auxiliary duty
of customs, read thus:
44.(1) In the case of goods mentioned in the First Schedule to the Customs Tariff Act, or in
that Schedule, as amended from time to time, there shall be levied and collected as an
auxiliary duty of customs an amount equal to thirty percent of the value of the goods as
determined in accordance with the provisions of Section 14 of the Customs Act 1962
(hereinafter referred to as the Customs Act)
16. The above rate of auxiliary duty was to be in force during the financial year 1982-83
and it was open to the Government to grant exemption from the whole or any part of it
under Section 25 of the Customs Act 1962.
17. Section 45 of the Finance Act 1983 imposed fifty per cent of the value of the goods as
auxiliary duty in the place of thirty per cent imposed by the Finance Act 1982.
18. But by notifications issued on February 28, 1982 under Section 25(2) of the Customs
Act. 1962 which were issued in super session of the notification dated March 1. 1981. Rs.
550 per rate of duty
Heading No.
Sub-heading No. and Standard description of article

Preferential Duration when rates Areas of duty are protective

(1)
(2)
(3)
(4)
(5)
48.01/21
(2) Newsprint containing mechanical wood pulp amounting to not less than 70 per
cent of the fibre content (excluding chrome, marble, flint, poster, stereo and art
paper)
40%
__
tonne was imposed as customs duty on newsprint and auxiliary duty was fixed at
Rs. 275/- per tonne. In all Rs. 825/- per tonne of newspaper has to be paid as duty.
The high seas sale price of newsprint had by that time gone up above Rs. 5,600/per tonne.
19. What is of significance is that when the Government was of the view that the total
customs duty of newsprint in the public interest should be not more than 15 percent and
when these writ petitions questioning even that 15 per cent levy were pending in this Court,
Parliament was moved by the Government specifically to increase the basic customs duty
on newsprint by Rs. 1,000/- per tonne by the Finance Act, 1982. Hence today if the
Executive Government withdraws the notifications issued under Section 25 of the Customs
Act, a total duty of 90 per cent plus Rs. 1,000/- per tonne would get clamped on imported
newsprint
20. The effect of the imposition of 15 per cent duty may to some extent have led to the
increase in the price of newspapers in 1981 and it resulted in the fall in circulation of
newspapers. On this point the Second Press Commission has made the following
observations in its Report (Vol 1 page 18):
Fall in circulation during 1981. 94. To examine recent trends in circulation and their
relationship to recent trends in the economic environment, the Commission's office undertook
an analysis of the Audit Bureau of Circulations (ABC) certificates for the period July 1980 to

June 1981. It was found that there was a decline in circulation in the period January-June
1981 compared to the previous six-month period in the case of dailies and periodicals.
21. The two important events which had taken place during the period between July, 1980
to June 1981 were the enforcement of the Palekar Award regarding die wages and salaries
payable in the newspaper industry and the imposition of the customs duty of 15% on the
imported newsprint. Under the newsprint policy of the Government there are three sources
of supply of newsprint - (i) high seas sales, (ii) sales from the buffer stock built up by the
State Trading Corporation which includes imported newsprint and (iii) newsprint
manufactured in India. Imported newsprint is an important component of the total quantity
of newsprint utilized by any newspaper establishment.
III
The Importance of Freedom of Press in a Democratic Society and the Role of Courts.
22. Our Constitution does not use the expression 'freedom of press' in Article 19 but it is
declared by this Court that it is included in Article 19(1)(a) which guarantees freedom of
speech and expression. (See Brij Bhushan v. State of Delhi, (MANU/SC/0007/1950
: 1950 SCR 605: AIR 1950 SC 129) and Bennett Coleman and Company v. Union

of India (MANU/SC/0038/1972

: (1973) 2 SCR 757: AIR 1973 SC 106).

23. The material part of Article 19 of the Constitution reads:

19. (1) All citizens shall have the right- (a) to freedom of speech and expression:...
(g) to practice any profession or to carry on any occupation, trade or business.
(2) Nothing in Sub-clause (a) of Clause (1) shall affect the operation of any existing
law, or prevent the State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said sub-clause
in the interests of the sovereignty and integrity of India, the security of the State,
friendly relations with foreign States, public order, decency or morality, or in
relation to contempt of Court, defamation or incitement to an offence.
(6) Nothing in Sub-clause (g) of the said clause shall affect the operation of any
existing law in so far as it imposes, or prevent the State from making any law
imposing in the interests of the general public, reasonable restrictions on the
exercise of the right conferred by the said sub-clause...

24. The freedom of press, as one of the members of the Constituent Assembly said, is one
of the items around which the greatest and the bitterest of constitutional struggles have
been waged in all countries where liberal constitutions prevail. The said freedom is attained
at considerable sacrifice and suffering and ultimately it has come to be incorporated in the
various written constitutions. James Madison when he offered the Bill of Rights to the
Congress in 1789 is reported as having said:
The right of freedom of speech is secured, the liberty of the press is expressly declared to be
beyond the reach of this Government
(See 1 Annals of Congress (1789-96) p. 141). Even where there are no written
constitutions, there are well established constitutional conventions or judicial
pronouncements securing the said freedom for the people. The basic documents of the
United Nations and of some other international bodies to which reference will be made
hereafter give prominence to the said right The leaders of the Indian independence
movement attached special significance to the freedom of speech and expression which
included freedom of press apart from other freedoms. During their struggle for freedom
they were moved by the American Bill of Rights containing the First Amendment to the
Constitution of the United States of America which guaranteed the freedom of the press.
Pandit Jawaharlal Nehru in his historic resolution containing the aims and objects of the
Constitution to be enacted by the Constituent Assembly said that the Constitution should
guarantee and secure to all the people of India among others freedom of thought and
expression. He also stated elsewhere that "I would rather have a completely free press with
all the dangers involved in the wrong use of that freedom than a suppressed or regulated
press" (See D. R Mankekar: The Press under Pressure (1973) p. 25). The Constituent
Assembly and its various committees and sub-committees considered freedom of speech
and expression which included freedom of press also as a precious right. The Preamble to
the Constitution says that it is intended to secure to all citizens among others liberty of
thought expression, and belief. It is significant that in the kinds of restrictions that may be
imposed on the freedom of speech and expression, any reasonable restriction impossible in
the public interest is not one enumerated in Clause (2) of Article 19. In Romesh Thappar v.
State of Madras, (MANU/SC/0006/1950
: 1950 SCR 594: AIR 1950 SC 124) and

Brij Bhushan's case (MANU/SC/0007/1950

: AIR 1950 SC 129) (supra) this Court

firmly expressed its view that there could not be any kind of restriction on the freedom of
speech and expression other than those mentioned in Article 19(2) and thereby made it
clear that there could not be any interference with that freedom in the name of public
interest Even when Clause (2) of Article 19 was subsequently substituted under the
Constitution (First Amendment) Act 1951 by a new clause which permitted the imposition

of reasonable restrictions on the freedom of speech and expression in the interests of

sovereignty and integrity of India the security of the State, friendly relations with foreign
States, public order, decency or morality in relation to contempt of Court defamation or
incitement to an offence, Parliament did not choose to include a clause enabling the
imposition of reasonable restrictions in the, public interest
25. Article 19 of the Universal Declaration of Human Rights. 1948 declares:
Every one has the right to freedom of opinion and expression, this right includes freedom to
hold opinions without interference and to seek, receive and impart information and ideas
through any media and regardless of frontiers.
26. Article 19 of the International Covenant On Civil and Political Rights, 1966 reads:
Article 19
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds, regardless
of frontiers, either orally, in writing or in print in the form of art or through any
other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this Article carries with
it special duties and responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (order public), or of
public health or morals.
27. Article 10 of the European Convention on Human Rights reads:
Article 10
1. Everyone has the right to freedom of expression This right shall include freedom
to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting, television or cinema
enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities
may be subject to such formalities, conditions, restrictions or penalties a, are

prescribed by lay and are necessary in a democratic society, in the interests of

national security, territorial integrity of public safety, for the prevention of disorder
or crime, for the protection of health or morals, for the protection of the reputation
or rights of others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of the judiciary.
28. The First Amendment to the Constitution of the United States of America declares:
Amendment 1Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or
the right of the people peaceably to assemble, and to petition the government for a redress of
grievances.
29. Frank C. Newman and Karel Vasak in their article on 'Civil and Political Rights' in the
International Dimensions of Human Rights (Edited by Karel Vasak) Vol. I state at pages
155-156 thus:
(ii) Freedom of opinion, expression, information and communication, A pre-eminent human
right, insofar as it allows everyone to have both an intellectual and political activity, freedom
of expression in the broad sense actually includes several specific rights, all linked together in
a ''continuum" made increasingly perceptible by modern technological advance. What is
primarily involved is the classic notion of freedom of opinion that is to say, the right to say
what one thinks and not to be harassed for one's opinions This is followed by freedom of
expression, in the limited sense of the term, which includes the right to seek, receive and
impart information and ideas, regardless of frontiers, either orally, in writing or in print, in the
form of art, or through any other media of one's choice. When freedom of expression is put to
use by the mass media, it acquires an additional dimension and becomes freedom of
information. A new freedom is being recognized which is such as to encompass the multiform
requirements of these various elements, while incorporating their at once individual and
collective character, their implications in terms of both "rights" and "responsibilities": this is
the right to communication, in connection with which UNESCO has recently undertaken
considerable work with a view to its further elaboration and implementation.
30. "Many Voices. One World" a publication of UNESCO which contains the Final Report
of the international Commission for the Study of Communication Problems, presided over
by Sean Mac Bride, in Part V thereof dealing with 'Communication Tomorrow' at page 265
emphasizes the importance of freedom of speech and press in the preservation of human
rights in the following terms:
IV. Democratization of Communication. Human Rights Freedom of speech, of the
press, of information and of assembly are vital for the realization of human rights.
Extension of these communication freedoms to a broader individual and collective
right to communicate is an evolving principle in the democratization process.

Among the human rights to be emphasized are those of equality for women and
between races Defence of all human rights is one of the media's most vital tasks.
We recommend:
52. All those working in the mass media should contribute to the fulfillment of
human rights, both individual and collective, in the spirit of the UNESCO
Declaration on the mass media and the Helsinki Final Act and the International Bill
of Human Rights. The contribution of the media in this regard is not only to foster
these principles, but also to expose all infringement, wherever they occur, and to
support those whose rights have been neglected or violated Professional
associations and public opinion should support journalists subject to pressure or
who suffer adverse consequences from their dedication to the defense of human
rights.
53. The media should contribute to promoting the just cause of peoples struggling
for freedom and independence and their right to live in the peace and equality
without foreign interference. This is especially important for all oppressed peoples
who, while struggling against colonialism, religious and racial discrimination, are
deprived of opportunity to make their voices heard within their own countries.
54. Communication needs in a democratic society should be met by the extension
of specific rights such as the right to be informed the right to inform, the right to
privacy, the right to participate in public communication - all elements of a new
concept, the right to communicate. In developing what might be called a new era of
social rights, we suggest all the implications of the right to communicate be further
explored.
Removal of Obstacles.
Communication, with its immense possibilities for influencing the minds and
behavior of people, can be a powerful means of promoting democratization of
society and of widening public participation in the decision-making process. This
depends on the structures and practices of the media and their management and to
what extent they facilitate broader access and open to communication process to a
free interchange of ideas, information and experience among equals, without
dominance of discrimination.
31. In today's free world freedom of press is the heart of social and political intercourse.
The press has now assumed the role of the public educator making formal and non-formal
education possible in a large scale particularly in the developing world, where television
and other kinds of modern communication are not still available for all sections of society.
The purpose of the press is to advance the public interest by publishing facts and opinions
without which a democratic electorate cannot make responsible judgments. Newspapers

being purveyors of news and views having a bearing on public administration very often
carry material which would not be palatable to governments and other authorities. The
authors of the articles which are published in newspapers have to be critical of the actions
of government in order to expose its weaknesses. Such articles tend to become an irritant or
even a threat to power. Governments naturally take recourse to suppress newspapers
publishing such articles in different ways. Over the years governments in different parts of
the world have used diverse methods to keep press under control They have followed
carrot-stick methods. Secret payments of money, open monetary grants and subventions,
grants of lands, postal concessions, Government advertisements, conferment of titles on
editors and proprietors of newspapers, inclusion of press barons in cabinet and inner
political councils etc. constitute one method of influencing the press. The other kind of
pressure is one of using force against the press. Enactment of laws providing for pre
censorship, seizures, interference with the transit of newspapers and demanding security
deposit imposition of restriction on the price of newspapers, on the number of pages of
newspapers and the area that can be devoted for advertisements, withholding of
Government advertisements, increase of postal rates, imposition of taxes on newsprint,
canalization of import of newsprint with the object of making it unjustly costlier etc. are
some of the ways in which Governments have tried to interfere with freedom of press. It is
with a view to checking such malpractices which interfere with free flow of information,
democratic constitutions all over the world have made provisions guaranteeing the freedom
of speech and expression laying down the limits of interference with it is, therefore the
primary duty of all the national Courts to uphold the said freedom and invalidate all laws or
administrative actions which interfere with it contrary to the constitutional mandate.
32. Thomas I. Emerson in his article entitled 'Towards a General Theory of the First
Amendment' (The Vale Law Journal Vol 72.877 at p. 906) while dealing with the role of
the judicial institutions In a democratic society and in particular of the apex Court of U.S.
A in upholding the freedom of speech and expression writes:
The objection that our judicial institutions lack the political power and prestige to perform an
active role in protecting freedom of expression against the will of the majority raises more
difficult questions. Certainly judicial institutions must reflect the traditions, ideals and
assumptions, and in the end must respond to the needs, claims and expectations, of the social
order in which they operate. They must not and ultimately cannot move too far ahead or lag
too far behind The problem for the Supreme Court is one of finding of the proper degree of
responsiveness and leadership or perhaps better, of short-term and long-term responsiveness.
Yet in seeking out this position the Court should not under estimate the authority and prestige
it has achieved over the years. Representing the "conscience of the community" it has come
to possess a very real power to keep alive and vital the higher values and goals towards which
our society imperfectly strives... Given its prestige, it would appear that the power of the
Court to protect freedom of expression is unlikely to be substantially curtailed unless the
whole structure of our democratic institutions is threatened.

33. What is stated above applies to the Indian Courts with equal force. In Romesh Thappars
case (MANU/SC/0006/1950
: AIR 1950 SC 124) (supra), Brij Bhushan's case

(MANU/SC/0007/1950

: AIR 1950 SC 129) (supra), Express Newspapers

(Private) Ltd v. Union of India, MANU/SC/0157/1958

: 1959 SCR 12:(AIR 1958

SC 578), Sakal Papers(P) Ltd v. Union of India (MANU/SC/0090/1961

: (1962) 3

SCR 842: AIR 1962 SC 305) and Bennett Coleman's case (MANU/SC/0038/1972

: AIR 1973 SC 106) (supra) this Court has very strongly pronounced in favour of the
freedom of press of these, we shall refer to some observations made by this Court in some
of them
34. In Romesh Thappars case (supra) this Court said at page 602 (of SCR):(at pp. 128-29
of MANU/SC/0006/1950
: AIR 1950 SC 124):

(The freedom)... lay at the foundation of ail democratic organizations, for without
free political discussion no public education, so essential for the proper functioning
of the processes of popular government, is possible. A freedom of such amplitude
might involve risks of abuse.
(But) it is better to leave a few of its noxious branches to their luxuriant growth,
than, by pruning them away, to injure the vigor of those yielding the proper fruits.
35. In Bennett Coleman's case MANU/SC/0038/1972

: 1973 (2) SCR 757: AIR

1973 SC 106) (supra) A.N. Ray. C.J. on behalf of the majority said at page 796:(at p. 129
of AIR) thus:
The faith of citizen is that political wisdom and virtue will sustain themselves in the
free market of ideas, so long as the channels of communication are left open The
faith in the popular Government rests on the old dictum ' let the people have the

truth and the freedom to discuss it and all will go well. The liberty of the press
remains an 'Ark of the Covenant' in every democracy
The newspapers give ideas. The newspapers give the people the freedom to find out
what ideas are correct.
36. In the very same case. Mathew, J. observed at page 818 (of SCR):(at page 143 of AIR):
The constitutional guarantee of the freedom of speech is not so much for the benefit
of the press as it is for the benefit of the public. The freedom of speech includes
within its compass the right of all citizens to read and be informed In Time v.
Hill; 1968 385 US 374the U.S. Supreme Court said:
The constitutional guarantee of freedom of speech and press are not for the benefit
of the press so much as for the benefit of all the people.
In Griswold v. Connecticut (1964) 381 US 479, 482 the U.S. Supreme Court was of
the opinion that the right of freedom of speech and press includes not only the right
to utter or to print, but the right to read.
Justice Mathew proceeded to observe (at pp. 819-820) (of SCR):(at pp. 143-144 of AIR):
Under Article 41 of the Constitution the State has a duty to take effective steps to
educate the people within limits of its available economic resources. That includes
political education also.
Public discussion of public issues together with the spreading of information and
any opinion on these issues is supposed to be the main function of newspaper. The
highest and lowest in the scale of intelligence resort to its columns for information.
Newspaper is the most potent means for educating the people as it is read by those
who read nothing else and in politics the common man gets his education mostly
from newspaper.
The affirmative obligation of the Government to permit the import of newsprint by
expanding foreign exchange in that behalf is not only because press has a
fundamental right to express itself, but also because the community has a right to
be supplied with information and the Government a duty to educate the people
within the limits of its resources. The Government may, under CI. 3 of the Imports
(Control) Order, 1955 totally prohibit the import of newsprint and thus disable any
person from carrying on a business in newsprint if it is in the general interest of the
public not to expend any foreign exchange on that score. If the affirmative
obligation to expend foreign exchange and permit the import of newsprint stems
from the need of the community for information and the fundamental duty of

Government to educate the people as also to satisfy the individual need for self
expression it is not for the proprietor of a newspaper alone to say that he will
reduce the circulation of the newspaper and increase its page level, as the
community has an interest in maintaining or increasing circulation of the
newspapers. It is said that a proprietor of a newspaper has the freedom to cater to
the needs of intellectual highbrows who may choose to browse in rich pastures and
for that he would require more pages for a newspaper and that it would be a denial
of his fundamental right if he were told that he cannot curtail the circulation and
increase the pages. A claim to enlarge the volume of speech by diminishing the
circulation raises the problem of reconciling the citizens' right to unfettered
exercise of speech in volume with the community's right to undiminished
circulation. Both rights fall within the ambit of the concept of freedom of speech as
explained above.
37. The Second Press Commission has explained the concept of freedom of press in its
Report (Vol. I. pp. 34-35) thus:
The expression 'freedom of the press' carries different meanings to different people.
Individuals, whether professional journalists or not, assert their right to address the
public through the medium of the press. Some people stress the freedom of the
editor to decide what's shall be published in his paper. Some others emphasize the
right of the owners to market their publication. To Justice Holmes, the, main
purpose of the freedom was to prevent all prior restraint on publication.
16. The theory is that in a democracy freedom of expression is indispensable as all
men are entitled to participate in the process of formulation of common decisions.
Indeed, freedom of expression is the first condition of liberty. It occupies a
preferred position in the hierarchy of liberties giving succor and protection to other
liberties. It has been truly said that it is the mother of all other liberties. The Press
as a medium of communication is a modern phenomenon. It has immense power to
advance or thwart the progress of civilization. Its freedom can be used to create a
brave new world or to bring about universal catastrophe.
17. Freedom of speech presupposes that right conclusions are more likely to be
gathered out of a multitude of tongues than through any kind of authoritative
selection. It rests on the assumption that the widest possible dissemination of
information from as many diverse and antagonistic: sources as possible is essential
to the welfare of the public. It is the function of the Press to disseminate news from
as many different sources and with as many different facts and colors as possible. A
citizen is entirely dependent on the Press for the quality, proportion and extent of
his news supply. In such a situation the exclusive and continuous advocacy of one
point of view through the medium of a newspaper which holds a monopolistic

position is not conducive to the formation of healthy public opinion. If the

newspaper industry is concentrated in a few hands, the chance of an idea
antagonistic to the idea of the owners getting access to the market becomes very
remote. But our constitutional law has been indifferent to the reality and
implication of non-governmental restraint on exercise of freedom of speech by
citizens. The indifference becomes critical when comparatively a few persons are
in a position to determine not only the content of information but also its very
availability. The assumption in a democratic set-up is that the freedom of the press
will produce a sufficiently diverse Press not only to satisfy the public interest by
throwing up a broad spectrum of views but also to fulfill the individual interest by
enabling virtually everyone with a distinctive opinion to find some place to express
it.
38. The Petitioners have heavily relied upon the decision of this Court in Sakal's case
(MANU/SC/0090/1961
: AIR 1962 SC 305) (supra) in which the constitutionality

of the Newspaper (Price and Page) Act, 1956 and the Daily Newspaper (Price and Page)
Order 1960 arose for consideration. The Petitioner in that petition was a private limited
company engaged in the business inter alia of publishing daily and weekly newspapers in
Marathi named 'Sakal' from Poona. The newspaper 'Sakal' had a net circulation of 52,000
copies on week days and 56,000 copies on Sundays. The daily edition contained six pages
a day, or five days in a week and four pages on one day. This edition was priced at 7 paise.
The Sunday edition consisted of ten pages and was priced at 12 paise. About 40% of the
space in the newspaper was taken up by the advertisements and the rest by news views and
other usual features. The Newspaper (Price and Page) Act. 1956 regulated the number of
pages according to the price charged, prescribed the number of supplements to be
published and prohibited the publication and sale of newspapers in contravention of the
Act. It also provided for the Regulation of the size and area of advertising matter contained
in a newspaper. Penalties were prescribed for contravention of that Act or the Order made
there under. As a result of the enforcement of that Act, in order to publish 34 pages on six
days in a week as it was doing then the Petitioner had to raise the price from 7 paise to 8
paise per day and if it did not wish to increase the price it had to reduce the total number of
pages to 24. The Petitioner which could publish any number of supplements as and when it
desired to do so before the Order impugned in that case was passed could do so thereafter
only with permission of the Government. The contention of the Petitioner in that case was
that the impugned Act and the impugned Order were pieces of legislation designed to
curtail the circulation of the newspaper as the increase in the price of the paper would
adversely affect its circulation and they directly interfered with the freedom of the press.
The validity of these pieces of legislation was challenged on the ground that they violated
Article 19(1)(a) of the Constitution. The Union Government contested the petition. It
pleaded that the impugned Act and the order had been passed with a view to preventing

unfair competition among newspapers and also with a view to preventing the rise of
monopolistic combines so that newspapers might have fair opportunities of free discussion.
It was also contended that the impugned Act and the impugned Order had been passed in
the public interest and the Petitioner's business being a trading activity falling under
Article 19(1)(g) of the Constitution any restriction imposed by the said Act and the Order
was protected by Article19(6) of the Constitution. This Court negativing the contention of
the Union Government observed at page 866 (of SCR):(at pp. 314-15 of AIR 1962 SC)
thus:
Its object thus is to regulate something which as already stated, is directly related to the
circulation of a newspaper. Since circulation of a newspaper is a part of the right of freedom
of speech the Act must be regarded as one directed against the freedom of speech. It has
selected the fact or thing which is an essential and basic attribute of the conception of the
freedom of speech viz.. the right to circulate one's views to all whom one can reach or care to
reach for the imposition of a restriction. It seeks to achieve its object of enabling what are
termed the smaller newspapers to secure larger circulation by provisions which without
disguise are aimed at restricting the circulation of what are termed the larger papers with
better financial strength. The impugned law far from being one, which merely interferes with
the right of freedom of speech incidentally does so directly though it seeks to achieve the end
by purporting to regulate the business aspect of a newspaper. Such a course is not permissible
and the courts must be ever vigilant in guarding perhaps the most precious of all the freedoms
guaranteed by our Constitution. The reason for this is obvious. The freedom of speech and
expression of opinion is of paramount importance under a democratic Constitution which
envisages changes in the composition of legislatures and Governments and must be
preserved. No doubt, the law in question was made upon the recommendation of the Press
Commission but since its object is to affect directly the right of circulation of newspapers
which would necessarily undermine their power to influence public opinion it, cannot but be
regarded as a dangerous weapon which is capable of being used against democracy itself.
39. Continuing further the Court observed at pages 867 and 868 thus:
It was argued that the object of the Act was to prevent monopolies and that
monopolies are obnoxious. We will assume that monopolies are always against
public interest and deserve to be suppressed. Even so, upon the view we have taken
that the intendment of the Act and the direct and immediate effect of the Act taken
along with the impugned order was to interfere with the freedom of circulation of
newspapers the circumstance that its object was to suppress monopolies and
prevent unfair practices is of no assistance.
The legitimacy of the result intended to be achieved does not necessarily imply that
every means to achieve it is permissible for even if the end is desirable and
permissible, the means employed must not transgress the limits laid down by the

Constitution if they directly impinge on any of the fundamental rights guaranteed

by the Constitution it is no answer when the constitutionality of the measure is
challenged that apart from the fundamental right infringed the provision is
otherwise legal.
40. We have so far seen the importance of the freedom of speech and expression which
includes the freedom of press. We shall now proceed to consider whether it is open to the
Government to levy any tax on any of the aspects of the press industry.
IV
Do newspapers have immunity from taxation?
41. Leaving aside small newspaper establishments whose circulation may be less than
about 10.000 copies a day, all other bigger newspaper establishments have the
characteristics of a large industry. Such bigger newspaper concerns are mostly situated in
urban areas occupying large buildings which have to be provided with all the services
rendered by municipal authorities. They employ hundreds of employees. Capital
investment in many of them is in the order of millions of rupees. Large quantities of
printing machinery are utilized by them a large part of which is imported from abroad.
They have to be provided with telephones, teleprinters, postal and telegraphic services,
wireless communication systems etc. Their newspapers have to be transported by roads,
railways and air services. Arrangements for security of their property have to be made. The
Government has to provide many other services to them.
All these result in a big drain on the financial resources of the State as many of these
services are heavily subsidized. Naturally such big newspaper organizations have to
contribute their due share to the public exchequer. They have to bear the common fiscal
burden like all others.
42. While examining the constitutionality of a law which is alleged to contravene
Article 19(1)(a) of the Constitution, we cannot no doubt, be solely guided by the decisions
of the Supreme Court of the United States of America. But in order to understand the basic
principles of freedom of speech and expression and the need for that freedom in a
democratic country we may take them into consideration. The pattern of Article 19(1)
(a) and of Article 19(1)(g) of our Constitution is different from the pattern of the First
Amendment to the American Constitution which is almost absolute in its terms. The rights
guaranteed under Article 19(1)(a)and Article 19(1)(g) of the Constitution are to be read
along with Clauses (2) and (6) of Article 19 which carve out areas in respect of which valid
legislation can be made. It may be noticed that the newspaper industry has not been granted
exemption from taxation in express terms. On the other hand Entry 92 of List I of the
Seventh Schedule to the Constitution empowers Parliament to make laws levying taxes on
sale or purchase of newspapers and on advertisements published therein.

43. It is relevant to refer here to a few extracts from the speech of Shri Deshbandhu Gupta
on the floor of the Constituent Assembly opposing the provisions in the Draft Constitution
which authorised the State Legislatures to levy sales tax on sale of newspapers and tax on
advertisements in newspapers. He said:
No one would be happier than myself and my friends belonging to the press, if the
House were to decide today that newspapers will be free from all such taxes. of
course that is what it should be because in no free country with a democratic
Government we have any such taxes as the sales tax or the advertisement tax.
I claim that newspapers do deserve a distinctive treatment. They are not an industry
in the sense that other industries are. This has been recognised all over the world.
They have a mission to perform. and I am glad to say that the newspapers in India
have performed that mission of public service very creditably and we have reason
to feel proud of it. I would, therefore, expect this House and my friend Mr. Sidhva
to bear it in mind at the time when, God forbid, any proposal comes before the
Parliament for taxation. That would be the time for them to oppose it.
Sir, after all, this is an enabling clause. It does not say that there shall be sales and
advertisement tax imposed on newspapers. It does not commit the House today to
the imposition of a tax on the sales of or a tax on advertisements published in
newspapers. All that we have emphasized is that newspapers as such should be
taken away from the purview of the provincial Governments and brought to the
Central List so that if at all at any time a tax is to be imposed on newspapers it
should be done by the representatives of the whole country realizing the full
implications of their action. It should not be an isolated act on the part of some
Ministry of some Province. That was the fundamental basis of our amendment
If today ail newspapers including those published from Delhi are opposing the
imposition of these taxes with one voice and demanding their inclusion in the
Central List they do so, not because it is a question of saving some money but
because the fundamental question of the liberty of the press is involved. By
advocating their transfer to the Central List we are prepared to run the risk of
having these taxes imposed in Delhi, and in other Provinces which have not sought
to impose such taxes so far. But we do not want to leave it to the Provinces so that
the liberty of the press remains unimpaired. We have faith in the Parliament; we
have faith in the collective wisdom of the country and we have no doubt that when
this matter is viewed in the correct perspective, there will be no such taxes imposed
on the newspapers, but we have not got that much faith in the Provincial Ministries.
It is in that hope and having a full realization of the situation that we have agreed,
as a matter of compromise or should I say as a lesser evil, to have these two taxes
transferred from the Provincial to the Central List.

(Vide Constituent Assembly Debates, Vol. IX, pp. 1175-1180 dated September 9, 1949).
44. Ultimately the power to levy taxes on the sale or purchase of newspapers and on
advertisements published therein was conferred on Parliament by Entry 92 of List I of the
Seventh Schedule to the Constitution. This shows the anxiety on the part of the framers of
our Constitution to protect the newspapers against local pressures. But they however, did
not agree to provide any constitutional immunity against such taxation. The power to levy
customs duties on goods imported into the country is also entrusted to Parliament by Entry
83 in List I of the Seventh Schedule to the Constitution.
45. On the power of the Government in the United States of America to levy taxes on and
to provide for the licensing of newspapers. Corpus Juris Secundum (Vol. 16) says at p.
1132 as follows:
213(13). Taxing and Licensing
The constitutional guaranties of freedom of speech and of the press are subject to
the proper exercise of the Government's power of taxation and reasonable license
fees may_ be imposed on trades or occupations concerned with the dissemination
of literature or ideas.
As a general rule the constitutional guaranties of freedom of speech and of the
press are subject to the proper exercise of the Government's power of taxation, so
that the imposition of uniform and non-discriminatory taxes is not invalid as
applied to persons or organizations engaged in the dissemination of ideas through
the publication or distribution of writing. The guaranty of freedom of the press does
not forbid the taxation of money or property employed in the publishing business
or the imposition of reasonable licenses and license fees on trades or occupations
concerned with the dissemination of literature or ideas.
A license or license tax to permit the enjoyment of freedom of speech and freedom
of press may not, however, be required as a form of censorship, and where the
purpose of the tax or license is not for revenue or for reasonable Regulation, but is
a deliberate and calculated device to prevent or to curtail the opportunity for, the
acquisition of knowledge by the people in respect of their governmental affairs the
statute or ordinance violates the constitutional guaranties, and particularly the
Fourteenth Amendment to the Federal Constitution. While an ordinance imposing a
tax on and requiring a license for the privilege of advertising by distributing books,
circulars, or pamphlets has been held valid and ordinance requiring the payment of
a license tax by street vendors or peddlers is invalid as applied to members of a
religious group distributing religious literature as part of their activities at least
where the fee is not merely a nominal one imposed to defray the cost of Regulation,
notwithstanding the ordinance is nondiscriminatory. A governmental Regulation

requiring a license to solicit for compensation, memberships in organizations

requiring the payment of dues is invalid where it fixes indefinite standards for the
granting of a license to an applicant. A provision of a retail sales tax act providing
that a retailer shall not advertise as to the non-collection of sales tax from
purchasers does not deprive retailers of the constitutional right of free speech.
46. The above subject is summarised in American Jurisprudence 2d (Vol. 16) at page 662
thus:
Speech can be effectively limited by the exercise of the taxing power. Where the
constitutional right to speak is sought to be deterred by a State's general taxing programme,
due process demands that the speech be unencumbered until the State comes forward with
sufficient proof to justify its inhibition. But constitutional guaranties are not violated by a
statute the controlling purpose of which is to raise revenue to help defray the current
expenses of State Government and State obligations, and which shows no hostility to the
press nor exhibits any purpose or design to restrain the press.
47. It may be mentioned here that the First Amendment to the Constitution of the United
States of America is almost in absolute terms. It says that the Congress shall make no law
abridging the freedom of the press. Yet the American Courts have recognised the power of
the State to levy taxes on newspaper establishments, of course, subject to judicial review
by courts by the application of the due process of law principle." Due process of law does
not forbid all social control; but it protects personal liberty against social control, unless
such social control is reasonable either because of a constitutional exercise of the police
power or of the power of taxation or of the power of eminent domain." If any legislation
delimiting personal liberty is held to be outside of all three of these categories, it is taking
away of personal liberty without due process of law and is unconstitutional. The police
power, taxation and eminent domain are all forms of social control which are essential for
peace and good Government. "The police power is the legal capacity of the sovereignty or
one of its governmental agents, to delimit the personal liberty of persons by means which
bear a substantial relation to the end to be accomplished for the protection of social
interests which reasonably need protection. Taxation is the legal capacity of sovereignty or
one of its governmental agents to exact or impose a charge upon persons or their property
for the support of the Government and for the payment for any other public purposes which
it may constitutionally carry out. Eminent domain is the legal capacity of sovereignty or
one of its governmental agents to take private property for public use upon the payment of
just compensation". It is under the above said sovereign power of taxation the Government
is able to levy taxes on the publishers of newspapers too, subject to judicial review by
Courts notwithstanding the language of the First Amendment which is absolute in terms. In
India too the power to levy tax even on persons carrying on the business of publishing
newspapers has got to be recognized as it is inherent in the very concept of Government.
But the exercise of such power should, however, be subject to scrutiny by courts. Entry 92

of List I of the Seventh Schedule to the Constitution expressly suggests the existence of
such power.
48. Thomas I. Emerson in his Article on the First Amendment (The Yale Law Journal, Vol.
72 at p. 941; has made certain relevant observations on the power of the State to impose
taxes and economic Regulations on newspaper industry. He says:
(a) Taxation and Economic Regulation Regular tax measures, economic
Regulations, social welfare legislation and similar provisions may, of course, have
some effect upon freedom of expression when applied to persons or organizations
engaged in various forms of communication. But where the burden is the same as
that borne by others engaged in different forms of activity the similar impact on
expression seems clearly insufficient to constitute an "abridging" of freedom of
expression. Hence a general corporate tax, wage and hour or collective bargaining
legislation, factory laws and the like are as applicable to a corporation engaged in
newspaper publishing as to other business organizations. On the other hand the use
of such measures as a sanction to diminish the volume of expression or control its
content would clearly be as impermissible an "abridgment" as direct criminal
prohibitions. The line may sometimes be difficult to draw the more so as the scope
of the Regulation is narrowed.
Two principles for delineating the bounds of "abridging" may be stated. First as a
general proposition the validity of the measure may be tested by the rule that it
must be equally applicable to a substantially larger group than that engaged in
expression. Thus a special tax on the press alone or a tax exemption available only
to those with particular political views or associations would not be permitted
second neither the substantive nor procedural provisions of the measure, even
though framed in general terms may place any substantial burden on expression
because of their peculiar impact in that area Thus the enforcement of a tax or
corporate registration statute by requiring disclosure of membership in an
association, where such disclosure would substantially impair freedom of
expression should be found to violate first amendment protection.
(Underlining by us).
49. This view appears to have been accepted by our Second Press Commission in its
Report (Vol. I) at page 35. The Commission observes:
21. Economic and tax measures legislation relating to social welfare and wages,
factory laws, etc. may have some effect upon freedom of the Press when applied to
persons or institutions engaged in various forms of communication. But where the
burden placed on them is the same as that borne by other engaged in different
forms of activity, it does not constitute abridgment of freedom of the Press. The use

of such measures, however to control the 'content' of expression would be clearly

impermissible.
50. In Alice Lee Grosjean v. American Press Company, (1936) 297 US 233: 80 Led 660 in
which the Appellants had questioned the constitutional validity of an Act of Louisiana
which required every person engaged in the business of selling or making any charge for,
advertising or for advertisements printed or published in any newspaper, periodical etc.
having a circulation of more than 20,000 copies per week to pay, in addition to all other
taxes, a license tax for the privilege of engaging in such business in the State of Louisiana
of two per cent (2%) of the gross receipts of such business the Supreme Court of the
United States observed at pages 668-669:
In the light of all that has now been said, it is evident that the restricted rules of the
English law in respect of the freedom of the press in force when the Constitution
was adopted were never accepted by the American colonists, and that by the First
Amendment it was meant to preclude the national government, and by the
Fourteenth Amendment to preclude the States from adopting any form of previous
restraint upon printed publications or their circulation including that which had
theretofore been effected by these two well known and odious methods
It is not intended by anything we have said to suggest that the owners of
newspapers are immune from any of the ordinary forms of taxation for support of
the government. But this is not an ordinary form of tax but one single in kind, with
a long history of hostile misuse against the freedom of the press.
The predominant purpose of the grant of immunity here invoked was to preserve an
untrammeled press as a vital source of public information. The newspapers,
magazines and other journals of the country, it is safe to say have shed and continue
to shed more light on the public and business affairs of the nation than any other
instrumentality of publicity; and since informed public opinion is the most potent
of all restraints upon misgovernment, the suppression or abridgment of the
publicity afforded by a free press cannot be regarded otherwise than with grave
concern. The tax here involved is bad not because it takes money from the pockets
of the appellees. If that were all a wholly different question would be presented. It
is bad because in the light of its history and of its present setting it is seen to be a
deliberate and calculated device in the guise of a tax to limit the circulation of
information to which the public is entitled in virtue of the constitutional guaranties.
A free press stands as one of the great interpreters between the government and the
people. To allow it to be fettered is to fetter ourselves.
(Underlining by us).

51. The levy imposed by Louisiana was quashed by the Supreme Court of the United States
of America in the above case on the ground that it violated the First Amendment to the
Constitution of the United States of America since it was of the view that the tax levied in
this case was a device to limit the circulation of information. The Court however, did not
say that no tax could be levied on the press in any event.
52. In Robert Murdock. Jr. v. Commonwealth of Pennsylvania (City of Jeannette), (1943)
319 US 105: 87 Law ed 1292 the Supreme Court of the United States of America declared
as unconstitutional and violative of the First Amendment to the Constitution of the United
States of America which guaranteed freedom of speech and expression, an ordinance which
imposed a license tax on persons canvassing for and soliciting within the city of Jeannette
orders for goods, paintings, pictures, wares or merchandise of any kind or persons
delivering such articles under orders so obtained or solicited. The Petitioners in that case
were 'Jehovah's Witnesses' who went about from door to door in the city of Jeannette
distributing literature and soliciting people to purchase certain religious books and
pamphlets. None of them obtained a license by paying the prescribed fee and they were
convicted for violating the Ordinance by the Superior Court of Pennsylvania the Supreme
Court of the United States of America quashed the conviction holding that the Ordinance
violated the First Amendment. Douglas, J. who wrote the majority opinion observed at
pages 1299 and 1300 thus:
In all of these cases the issuance of the permit or license is dependent on the
payment of a license tax and the license tax is fixed in amount and unrelated to the
scope of the activities of Petitioners or to their realized revenues. It is not a nominal
fee imposed as a regulatory measure to defray the expenses of policing the
activities in question. It is in no way apportioned. It is a flat license tax levied and
collected as a condition to the pursuit of activities whose enjoyment is guaranteed
by the First Amendment Accordingly, it restrains in advance those constitutional
liberties of press and religion and inevitably tends to suppress their exercise. That is
almost uniformly recognized as the inherent vice and evil of this flat license tax the
fact that the ordinance is "nondiscriminatory" is immaterial. The protection
afforded by the First Amendment is not so restricted. A license tax certainly does
not acquire constitutional validity because it classifies the privileges protected by
the First Amendment along with the wares and merchandise of hucksters and
peddlers and treats them all alike. Such equality in treatment does not save the
ordinance. Freedom of press freedom of speech, freedom of religion are in a
preferred position.
(Underlining by us).
53. Justice Reed who dissented from the majority observed at page 1306 thus:

It will be observed that there is no suggestion of freedom from taxation and this
statement is equally true of the other State constitutional provisions. It may be
concluded that neither in the State or the federal constitutional was general taxation
of church or press interdicted.
Is there anything in the decisions of this Court which indicates that church or press
is free from the financial burdens of government?
We find nothing. Religious societies depend for their exemptions from taxation
upon State constitutions or general statutes, not upon the Federal Constitution.
Gibbons v. District of Columbia, (1885) 116 US 404, 29 L ed 680, 6 S Ct 427. This
Court has held that the chief purpose of the free press guarantee was to prevent
previous restraints upon publication.
Near v. Minnesota, (1930) 283 US 697, 713, 75 L ed 1357, 1366, 51 S Ct 625. In Grosjean v.
American Press Company (1936) 297 US 233, 250, 80 L ed 660, 668, 56 S ct 444, it was said
that the predominant purpose was to preserve "an untrammeled press as a vital source of
public information." In that case, a gross receipts tax on advertisements in papers with a
circulation of more than twenty thousand copies per week was held invalid because "a
deliberate and calculated device in the guise of a tax to limit the circulation.
54. There was this further comment: 'It is not intended by anything we have said to suggest
that the owners of newspapers are immune from any of the ordinary forms of taxation for
support of the government. But this is not an ordinary form of tax but one single in kind
with a long history of hostile misuse against the freedom of the press." Id (1936) 297 US
250, 80 L ed 668, 56 S Ct 444.
It may be said however, that ours is a too narrow, technical and legalistic approach to the
problem of State taxation of the activities of church and press; that we should look not to
the expressed or historical meaning of the First Amendment but to the broad principles of
free speech and free exercise of religion which pervade our national way of life. It may be
that the Fourteenth Amendment guarantees these principles rather than the more definite
concept expressed in the First Amendment.
This would mean that as a Court we should determine what sort of liberty it is that the due
process clause of the Fourteenth Amendment guarantees against State restrictions on
speech and church.
Nor do we understand that the Court now maintains that the Federal Constitution frees
press or religion of any tax except such occupational taxes as those here levied. Incometaxes, ad valorem taxes even occupational taxes are presumably valid save only a license
tax on sales of religious books. Can it be that the Constitution permits a tax on the printing
presses and the gross income of a metropolitan newspaper but denies the right to lay an

occupational tax on the distributors of the same papers? Does the exemption apply to book
sellers or distributors of magazines or only to religious publications? And, if the latter, to
what distributors? Or to what books? Or is this Court saying that a religious practice of
book distribution is free from taxation because a State cannot prohibit the "free exercise
thereof and a newspaper is subject to the same tax even though the same Constitutional
Amendment says the State cannot abridge the freedom of the press? It has never been
thought before that freedom from taxation was a perquisite attaching to the privileges of
the First Amendment."
55. Justice Reed added at pages 1307 and 1308 thus:
It is urged that such a tax as this may be used readily to restrict the dissemination of
ideas. This must be conceded but the possibility of misuse does not make a tax
unconstitutional. No abuse is claimed here. The ordinances in some of these cases
are the general occupation license type covering many businesses. In the Jeannette
prosecutions, the ordinance involved lays the usual tax on canvassing or soliciting
sales if goods, wares and merchandise. It was passed in 1898. Every power of
taxation or Regulation is capable of abuse. Each one to some extent prohibits the
free exercise of religion and abridges the freedom of the press, but that is hardly a
reason for denying the power. If the tax is used oppressively the law will protect the
victims of such action.
(Underlining by us).
56. Justice Frankfurter who also dissented from the majority observed at pages 1310 and
1311 thus:
It cannot be said that the Petitioners are constitutionally exempt from taxation
merely because they may be engaged in religious activities or because such
activities may constitute an exercise of a constitutional right
Nor can a tax be invalidated merely because it falls upon activities which constitute
an exercise of a constitutional right. The First Amendment of course protects the
right to publish a newspaper or a magazine or a book. But the crucial question is how much protection does the Amendment give, and against what is the right
protected? It is certainly true that the protection afforded the freedom of the press
by the First Amendment does not include exemption from all taxation. A tax upon
newspaper publishing is not invalid simply because it falls upon the exercise of a
constitutional right. Such a tax might be invalid if it invidiously singled out
newspapers publishing for bearing the burdens of taxation or imposed upon them in
such ways as to encroach on the essential scope of a free press. If the Court could
justifiably hold that the tax measures in these cases were vulnerable on that ground,
I would unreservedly agree. But the Court has not done so, and indeed could not.

(Underlining by us).
57. In the above case it may be noticed that Douglas, J. who gave the majority opinion did
not say that no tax could be levied at all on a press, but he did not approve of a uniform
license tax unrelated to the scope of the activities of the persons who had to bear it. The
dissenting opinions have clearly stated that the press does not enjoy any immunity from
taxation. They, however, say that the taxation should not encroach upon the essential scope
of a free press.
58. We may usefully refer here to a passage in the foot-note given below the Essay No. 84
by Alexander Hamilton in 'The Federalist'. It reads:
It cannot certainly he pretended that any degree of duties, however low, would be an
abridgment of the liberty of the press. We know that newspapers are taxed in Great Britain,
and yet it is notorious that the press nowhere enjoys greater liberty than in that country and if
duties of any kind may be laid without a violation of that liberty, it is evident that the extent
must depend on legislative discretion regulated by public opinion.
59. At this stage we find it useful to refer to a decision of the Privy Council in Attorney
General v. Antigua Times Ltd., (1975) 3 All ER 81 where the Judicial Committee of the
Privy Council was called upon to decide about the validity of the imposition of a license
fee of $600 annually on the publisher of a newspaper under the Newspapers Registration
(Amendment) Act, 1971. Section 10 of the Constitution of Antigua read as follows:
10.(1) Except with his own consent, no person shall be hindered in the enjoyment
of his freedom of expression and for the purposes of this section the said freedom
includes the freedom to hold opinions and to receive and impart ideas and
information without interference, and freedom from interference with his
correspondence and other means of communication.
(2) Nothing contained in or done under the authority of any law shall be held to be
inconsistent with or in contravention of this section to the extent that the law in
question makes provision - (a) that is reasonably required - (i) in the interests of
defense, public safety, public order, public morality or public health; or (ii) for the
purpose of protecting the reputations, rights and freedoms of other persons or the
private lives of persons concerned in legal proceedings, preventing the disclosure
of information received in confidence, maintaining the authority and independence
of the Courts or regulating telephony, telegraphy, posts, wireless, broadcasting,
television or other means of communication public exhibitions or public
entertainments; or (b) that imposes restrictions upon public officers.
60. Lord Fraser who delivered the judgment of the Privy Council upheld the levy of the
license fee as being reasonably required in the interests of defense and for securing public

safety etc. referred to in Section 10(2)(a)(i) of the Constitution of Antigua. The learned
Lord observed in that connection thus:
Revenue requires to be raised in the interests of defense and for securing public
safety, public order, public morality and public health and if this tax was reasonably
required to raise revenue for these purposes or for any of them then S. IB is not to
be treated as contravening the Constitution.
In some cases it, may be possible for a Court to decide from a mere perusal of an
Act whet her it was or was not reasonably required. In other cases the Act will not
provide the answer to that question. In such cases has evidence to be brought
before the Court of the reasons for the Act and to show that it was reasonably
required. Their Lordships think that the proper approach to the question is to
presume until the contrary appears or is shown, that all Acts passed by the
Parliament of Antigua were reasonably required. This presumption will be rebutted
if the statutory provisions in question are, to use the words of Loulsy J. 'so arbitrary
as to compel the conclusion it does not involve an exertion of the taxing power but
constitutes in substance and effect the direct execution of a different and forbidden
power. If the amount of the license fee was so manifestly excessive as to lead to
The conclusion that the real reason for its imposition was not the raising of revenue
but the preventing of the publication of newspapers then that would justify the
conclusion that the law was not reasonably required for the raising of revenue.
In their Lordships opinion the presumption that the Newspapers Registration
(Amendment) Act, 1971 was reasonably required has not been rebutted and they do
not regard the amount of the license fee as manifestly excessive and of such a
character as to lead to the conclusion that S. IB was not enacted to raise revenue
but for some other purpose.
(Underlining by us)
61. Here again it is seen that the Privy Council was of the view that the law did not forbid
the levy of fee on the publisher of a newspaper but it would be open to challenge if the real
reason for its imposition was not the raising of revenue but the preventing of the
publication of newspaper.
62. At this stage it is necessary to refer to a forceful argument addressed before us. It was
urged on behalf of the Petitioners that the recognition of the power of the Government to
levy taxes of any kind on the newspaper establishments would being in the death-knell of
the freedom of press and would be totally against the spirit of the Constitution. It is
contended that the Government is likely to use it to make the press subservient to the
Government. It is argued that when once this power is conceded, newspapermen will have
to run after the Government and hence it ought not to be done. This raises a philosophical

question - Press v. Government. We do not think it is necessary for the press to be

subservient to the Government. As long as this Court sits' newspapermen need not have the
fear of their freedom being curtailed by unconstitutional means.
It is, however, good to remember some statements made in the past by some wise men
connected with newspapers in order to develop the culture of an independent press. Hazlitt
advised editors to stay in their garrets and avoid exposing themselves to the subtleties of
power. Waiter Lippman in his address to the International Press Institute some years ago
said that the danger to the independence and integrity of journalists did not come from the
pressures that might be put on them; it was that they might be captured and captivated by
the company they keep. Arthur Krock after 60 years of experience said that it 'is true that in
most cases the price of friendship with a politician is so great for any newspaperman to
pay'. A.P. Wadsworth of the Manchester Guardian said "that no editor should ever be on
personal terms with our leaders for fear of creating a false sense of relation of confidence.
James Margach says that 'when leading media figures see too much rather than too little of
Prime Ministers that the freedom of press is endangered'. Lord Salisbury told Buckle a
famous editor in England "You are the first person who has not come to see me in the last
few days who is not wanting something at my hands - place or decoration or peerage. You
only want information." Charles Mitchell wrote in Newspaper Directory' 'The Press has
now so great and so extensive an influence on public opinion that its conductors should be
GENTLEMEN in the true sense of the word. They should be equally above corruption and
intimidation incapable of being warped by personal considerations from the broad path of
truth and honour: superior to all attempts at misrepresenting or mystifying public events'. If
the press ceases to be independent the healthy influence of the press and public opinion
will soon be substituted by the traditional influences of landlordism and feudalism. The
press lords should endeavour to see that their interests do not come into conflict with their
duties. All this is said only to show that Government alone may not always be the culprit in
destroying the independence of the press. Be that as it may, it is difficult to grant that
merely because the Government has the power to levy taxes, the freedom of press would be
totally lost. As stated earlier the Court is always there to hold the balance even and to strike
down any unconstitutional invasion of that freedom.
63. Newspaper industry enjoys two of the fundamental rights namely the freedom of
speech and expression guaranteed under Article 19(1)(a) and the freedom to engage in any
profession, occupation, trade, industry or business guaranteed under Article 19(1)(g) of the
Constitution, the first because it is concerned with the field of expression and
communication and the second because communication has become an occupation or
profession and because there is an invasion of trade, business and industry into that field
where freedom of expression is being exercised. While there can be no tax on the tight to
exercise freedom of expression, tax is livable on profession, occupation, trade, business
and industry. Hence tax is livable on newspaper industry. But when such tax transgresses

into the field of freedom of expression and stifles that freedom, it becomes
unconstitutional. As long as it is within reasonable limits and does not impede freedom of
expression it will not be contravening the limitations of Article 19(2). The delicate task of
determining when it crosses from the area of profession, occupation, trade, business or
industry into the area of freedom of expression and interferes with that freedom is entrusted
to the Courts.
64. The Petitioners, however, have placed strong reliance on the Sakal's case
(MANU/SC/0090/1961
: AIR 1962 SC 305) (supra) and the Bennett Coleman's

case (MANU/SC/0038/1972

: AIR 1973 SC 106) (supra) in support of their case

that any tax on newsprint which is the most important component of a newspaper is
unconstitutional. They have drawn our attention to the following passage in the decision in
Sakal's case (supra) which is at page 863 (of SCR):(at pp. 313-314 of AIR):
It may well be within the power of the State to place in the interest of the general
public restrictions upon the right of a citizen to carry on business but it is not open
to the State to achieve this object by directly and immediately curtailing any other
freedom of that citizen guaranteed by the Constitution and which is not susceptible
of abridgment on the same grounds as are set out in Clause (6) of Article 19.
Therefore, the right of freedom of speech cannot be taken away with the object of
placing restrictions on the business activities of a citizen. Freedom of speech can be
restricted only in the interests of the security of the State, friendly relations with
foreign State, public order, decency or morality or in relation to contempt of Court
defamation or incitement to an offence. It cannot like the freedom to carry on
business be curtailed in the interest of the general public. If a law directly affecting
it is challenged it is no answer that the restrictions enacted by it are justifiable
under Clauses (3) to (6). For the scheme of Article 19 is to enumerate different
freedoms separately and then to specify the extent of restrictions to which they may
be subjected and the objects for securing which this could be done. A citizen is
entitled to enjoy each and every one of the freedoms together and CI. (1) does not
prefer one freedom to another. That is the plain meaning of this clause. It follows
from this that the State cannot make a law which directly restricts one freedom
even for securing the better enjoyment of another freedom. All the greater reason,
therefore, for holding that the State cannot directly restrict one freedom by placing
an otherwise permissible restriction on another freedom.
65. In Bennett Coleman's case (supra) the question which arose for consideration related to
the validity of a restriction imposed under the newsprint policy which had certain

objectionable features such as (i) that no newspaper or new edition could be started by a
common ownership unit even within the authorised quota of newsprint, (ii) that there was a
limitation on the maximum number of pages, no adjustment being permitted between
circulation and pages so as to increase pages (iii) that a big newspaper was prohibited and
prevented from increasing the number of pages, page area, and periodicity by reducing
circulation to meet the requirement even within its admissible quota etc. The majority held
that the fixation of page limit had not only deprived the Petitioners of their economic
vitality but also restricted their freedom of expression. It also held that such restriction of
pages resulted in reduction of advertisement revenue and thus adversely affected the
capacity of a newspaper to carry on its activity which is protected by Article 19(1)(a) of the
Constitution.
66. We have carefully considered the above two decisions. In the first case the Court was
concerned with the newspaper price-page policy and in the second the newsprint policy
imposed by the Government had been challenged. Neither of them was concerned with the
power of Parliament to levy tax on any goods used by the newspaper industry. As we have
observed earlier taxes have to be levied for the support of the Government and newspapers
which derive benefit from the public expenditure cannot disclaim their liability to
contribute a fair and reasonable amount to the public exchequer. What may, however, have
to be observed in levying a tax on newspaper industry is that it should not be an
overburden on newspapers which constitute the Fourth Estate of the country. Nor should it
single out newspaper industry for harsh treatment. A wise administrator should realise that
the imposition of a tax like the customs duty on newsprint is an imposition on knowledge
and would virtually amount to a burden imposed on a man for being literate and for being
conscious of his duty as a citizen to inform himself about the world around him. The public
interest in freedom of discussion (of which the freedom of the press is one aspect) stems
from the requirement that members of a democratic society should be sufficiently informed
that they may influence intelligently the decisions which may affect themselves'. (Per Lord
Simon of Glaisdale in Attorney General v. Times Newspapers, (1973) 3 All ER 54).
Freedom of expression as learned writers have observed, has four broad social purposes to
serve:(i) it helps an individual to attain self fulfillment (ii) it assists in the discovery of truth
(iii) it strengthens the capacity of an individual in participating in decision-making and (iv)
it provides a mechanism by which it would be possible to establish a reasonable balance
between stability and social change. All members of society should be able to form their
own beliefs and communicate them freely to others. In sum, the fundamental principle
involved here is the people's right to know. Freedom of speech and expression should,
therefore, receive a generous support from all those who believe in the participation of
people in the administration. It is on account of this special interest which society has in
the freedom of speech and expression that the approach of the Government should be more
cautious while levying taxes on matters concerning newspaper industry than while levying
taxes on other matters. It is true that this Court has adopted a liberal approach while
dealing with fiscal measures and has upheld different kinds of taxes levied on property,

business, trade and industry as they were found to be in the public interest. But in the cases
before us the Court is called upon to reconcile the social interest involved in the freedom of
speech and expression with the public interest involved in the fiscal levies imposed by the
Government specially because newsprint constitutes the body, if expression happens to be
the soul.
67. In view of the intimate connection of newsprint with the freedom of the press, the tests
for determining the vires of a statute taxing newsprint have, therefore, to be different from
the tests usually adopted for testing the vires of other taxing statutes. In the case of
ordinary taxing statutes, the laws may be questioned only if they are either openly
confiscatory or a colorable device to confiscate. On the other hand, in the case of a tax on
newsprint, it may be sufficient to show a distinct and noticeable burden someness, clearly
and directly attributable to the tax.
68. While we therefore, cannot agree with the contention that no tax can be levied on
newspapers industry, we hold that any such levy is subject to review by Courts in the light
of the provisions of the Constitution.
V
Are the impugned notifications issued under Section 25 of the Customs Act, 1962 beyond
the reach of the Administrative Law?
69. It is argued on behalf of the Government that a notification issued under Section 25
(1) of the Customs Act granting, modifying or withdrawing an exemption from duty being
in the nature of a piece of subordinate legislation, its validity cannot be tested by the Court
by applying the standards applicable to an administrative action. Reliance is placed on the
decision of this Court in Narinder Chand Hem Raj v. Lt. Governor, Administrator. Union
Territory, Himachal Pradesh, (MANU/SC/0620/1971
: (1972) 1 SCR 940: AIR

1971 SC 2399) in support of the above contention. In that case the Appellants were wine
merchants carrying on business in Simla. At the auction held for the purpose of granting
the privilege to sell the Indian made foreign liquor the Appellants were the highest bidders.
It appears that before the auction was held the Collector of Excise and Taxation had
announced that no sales tax would be liable to be paid on the sale of liquor and despite this
assurance the Government had levied and collected from the Appellants a certain amount
by way of sales tax. The Appellants prayed for the issue of a writ to the Government
restraining them from levying any sales tax and to refund what had been recovered from
them by way of sales tax already. It was contended on behalf of the Government of
Himachal Pradesh that non-collection of sales tax was possible only on the issue of a
notification by the Government pursuant to its statutory power under the Punjab General
Sales Tax Act which was in force in the area in question shifting 'liquor' which was in

Schedule 'A' to Schedule 'B' to the Punjab General Sales Tax Act and that such a
notification could not be issued because the Central Government had not given its requisite
approval. Hence it was urged by the Government that since sales tax had been imposed by
law on all items in Schedule 'A' it could not disobey the mandate of law. It further
contended that the Court could not issue a mandamus to the Government to issue a
notification to amend the Schedules to the statute as the act of issuing such a notification
was a legislative act and no writ could be issued to a legislative body or a subordinate
Legislative body to make a law or to issue a notification, as the case may be, which would
have the effect of amending a law in force,. This Court upheld the contention of the
Government. The Court said:
Our attention has not been drawn to any provision in that Act empowering the
Government to exempt any assesses from payment of tax. Therefore it is clear that
Appellant was liable to pay the tax imposed under the law. What the Appellant
really wants is a mandate from the court to the competent authority to delete the
concerned entry from Schedule A and include the same in Schedule B. We shall not
go into the question whether the Government of Himachal Pradesh on its own
authority was competent to make the alteration in question or not. We shall assume
for our present purpose that it had such a power. The power to impose a tax is
undoubtedly a legislative power. That power can be exercised by the legislature
directly or subject to certain conditions, the legislature may delegate the power to
some other authority. But the exercise of that power whether by the legislature or
by its delegate is an exercise of a legislative power. The fact that the power was
delegated to the executive does not convert that power into an executive or
administrative power. No Court can issue a mandate to a legislature to enact a
particular law. Similarly no court can direct a subordinate legislative body to enact
or not to enact a law which it may be competent to enact. The relief as framed by
the Appellant in his writ petition does not bring out the real issue calling for
determination. In reality he wants this Court to direct the Government to delete the
entry in question from Schedule A and include the same in Schedule B.
Article 265 of the Constitution lays down that no tax can be levied and collected
except by authority of law. Hence the levy of a tax can only be done by the
authority of law and not by any executive order. Unless the executive is specifically
empowered by law to give any exemption; it cannot say that it will not enforce the
law as against a particular person. No court can give a direction to a Government to
refrain from enforcing a provision of law. Under these circumstances, we must hold
that the relief asked for by the Appellant cannot be granted.
(Underlining by us).
70. The above decision does not in fact support the contention of the Government in the
cases before us. It is noteworthy that the Court in the passage extracted above has made a

distinction between the amendment of the Schedule to the Punjab General Sales Tax Act by
the issue of a notification by the Government of Himachal Pradesh in exercise of its power
delegated by the legislature and the power of that Government to grant exemption under a
power to grant exemption. In the present cases we are concerned with a power to grant
exemption conferred on Government by Section 25 of the Customs Act, 1962 and not with
a power to amend the Act by means of a notification. Moreover this was just a case relating
to business in liquor.
71. We shall assume for purposes of these cases that the power to grant exemption under
Section 25 of the Customs Act, 1962 is a legislative power and a notification issued by the
Government there under amounts to a piece of subordinate legislation. Even then the
notification is liable to be questioned on the ground that it is an unreasonable one. The
decision of this Court in Municipal Corporation of Delhi v. Birla Cotton, Spinning and
Weaving Mills, Delhi, (MANU/SC/0175/1968
: (1968) 3 SCR 251: AIR 1968 SC

1232) has laid down the above principle. In that case Wanchoo, C.J. while upholding
certain taxes levied by the Corporation of Delhi under Section 150 of the Delhi Municipal
Corporation Act, 1957 observed thus:
Finally there is another check on the power of the Corporation which is inherent in the matter
of exercise of power by subordinate public representative bodies such as Municipal Boards.
In such cases if the act of such a body in the exercise of the power conferred on it by the law
is unreasonable, the courts can hold that such exercise is void for unreasonableness. This
principle was laid down as far back as 1898 in Kruse v. Johnson, (1898) 2 QBD 91.
72. But it appears that the principle enunciated in Kruse v. Johnson. (1898) 2 QBD 91 is
not being applied so stringently in England now.
73. A piece of subordinate legislation does not carry the same degree of immunity which is
enjoyed by a statute passed by a competent legislature. Subordinate legislation may be
questioned on any of the grounds on which plenary legislation is questioned. In addition it
may also be questioned on the ground that it does not conform to the statute under which it
is made. It may further be questioned on the ground that it is contrary to some other statute.
That is because subordinate legislation must yield to plenary legislation. It may also be
questioned on the ground that it is unreasonable, unreasonable not in the sense of not being
reasonable, but in the sense that it is manifestly arbitrary. In England, the Judges would say
"Parliament never intended authority to make such rules. They are unreasonable and ultra
vires". The present position of law bearing on the above point is stated by Diplock L.J. in
Mixnam Properties Ltd. v. Chertsey U. D C,(1964) 1 QB 214 thus:
The various grounds upon which subordinate legislation has sometimes been said
to be void can. I think, today be properly regarded as being particular applications

of the general rule that subordinate legislation, to be valid, must be shown to be

within the powers conferred by the statute. Thus the kind of unreasonableness
which invalidates a bye-law is not the antonym of "reasonableness" in the sense of
which that expression is used in the common law, but such manifest arbitrariness,
injustice or partiality that a court would say: 'Parliament never intended to give
authority to make such rules; they are unreasonable and ultra vires.'
If the courts can declare subordinate legislation to be invalid for 'uncertainty,' as
distinct from unenforceable his must be because Parliament is to be presumed not
to have intended to authorize the subordinate legislative authority to make changes
in the existing law which are uncertain...
74. Prof. Alan Wharam in his Article entitled 'Judicial Control of Delegated Legislation,:
The Test of Reasonableness' in 36 Modern Law Review 611 at pages 622-23 has
summarised the present position in England as follows:
(i) It is possible that the courts might invalidate a statutory instrument on the
grounds of unreasonableness or uncertainty, vagueness or arbitrariness: but the
writer's view is that for all practical purposes such instruments must be read as
forming part of the parents statute subject only to the ultra vires test.
(ii) The courts are prepared to invalidate bye-laws, or any other form of legislation,
emanating from an elected, representative authority, on the grounds of
unreasonableness, uncertainty or repugnance to the ordinary law :but they are
reluctant to do so and will exercise their power only in clear cases.
(iii) The courts may be readier to invalidate bye-laws passed by commercial
undertakings under statutory power, although cases reported during the present
century suggest that the distinction between elected authorities and commercial
undertakings, as explained in Kruse v. Johnson, might not now be applied so
stringently.
(iv) As far as subordinate legislation of no statutory origin is concerned, this is
virtually obsolete, but it is clear from In re French Protestant Hospital (1951) Ch
567 that it would be subject to strict control.
(See also H.W. R. Wade: Administrative Law (5th Edn.) pp. 747-748).
75. In India arbitrariness is not a separate ground since it will come within the embargo of
Article 14 of the Constitution. In India any enquiry into the vires of delegated legislation
must be confined to the grounds on which plenary legislation may be questioned, to the
ground that it is contrary to the statute under which it is made, to the ground that it is

contrary to other statutory provisions or that it is so arbitrary that it could not be said to be
in conformity with the statute or that it offends Article 14 of the Constitution.
76. That subordinate legislation cannot be questioned on the ground of violation of
principles of natural justice on which administrative action may be questioned has been
held in Tulsipur Sugar Company Ltd. v. Notified Area Committee, Tulsipur,
(MANU/SC/0336/1980
: (1980) 2 SCR 1111: AIR 1980 SC 882): Rameshchandra

Kachardas Porwal v. State of Maharashtra, (MANU/SC/0033/1981

: (1981) 2 SCR

866: AIR 1981 SC 1127) and in Bates v. Lord Hailsham of St. Marylebone, (1972) 1 WLR
1373. A distinction must be made between delegation of a legislative function in the case of
which the question of reasonableness cannot be enquired into and the investment by statute
to exercise particular discretionary powers. In the latter case the question may be
considered on all grounds on which administrative action may be questioned, such as, nonapplication of mind taking irrelevant matters into consideration, failure to take relevant
matters into consideration, etc. etc. On the facts and circumstances of a case, a subordinate
legislation may be struck down as arbitrary or contrary to statute if it fails to take into
account very vital facts which either expressly or by necessary implication are required to
be taken into consideration by the statute or, say, the Constitution. This can only be done on
the ground that it does not conform to the statutory or constitutional requirements or that it
offends Article 14 or Article19(1)(a) of the Constitution. It cannot, no doubt be done
merely on the ground that it is not reasonable or that it has not taken into account relevant
circumstances which the Court considers relevant.
77. We do not, therefore find much substance in the contention that the courts cannot at all
exercise judicial control over the impugned notifications. In cases where the power vested
in the Government is a power which has got to be exercised in the public interest as it
happens to be here, the Court may require the Government to exercise that power in a
reasonable way in accordance with the spirit of the Constitution. The fact that a notification
issued under Section 25(1) of the Customs Act, 1962 is required to be laid before
Parliament under Section 159 thereof does not make any substantial difference as regards
the jurisdiction of the court to pronounce on its validity.
78. The power to grant exemption should however, be exercised in a reasonable way Lord
Greene M.R. has explained in Associated Provincial Picture Houses Ltd. v. Wednesbury
Corporation, (1948) 1 KB 223 what a 'reasonable way' means as follows:
It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers
familiar with the phraseology commonly used in relation to exercise of statutory discretions

often use the word "unreasonable" in a rather comprehensive sense. It has frequently been
used and is frequently used as a general description of the things that must not be done. For
instance, a person entrusted with a discretion must, so to speak, direct himself properly in
law. He must call his own attention to the matters which he is bound to consider. He must
exclude from his consideration matters which are irrelevant to what he has to consider. If he
does not obey those rules, he may truly be said, and often is said to be acting "unreasonably".
Similarly, there may be something so absurd that no sensible person could ever dream that it
lay within the powers of the authority. Warrington LJ. in Short v. Poole Corporation, (1926) 1
Ch 66 gave the example of the red-haired teacher dismissed because she had red hair. That is
unreasonable in one sense. In another sense it is taking into consideration extraneous matters.
It is so unreasonable that it might almost be described as being done in bad faith; and in fact,
all these things run into one another.
79. Hence the claim made on behalf of the Government that the impugned notifications are
beyond the reach of the administrative law cannot be accepted without qualification even
though all the grounds that may be urged against an administrative order may not be
available against them.
80. Now the notifications issued on March 1, 1981 and February' 28, 1982 under
Section 25 of the Customs Act, 1962 which grant exemptions from payment of certain duty
beyond what is mentioned in them are issued by the executive Government. They were
issued in substitution of earlier notifications which had granted total exemption. Such
notifications have to be issued by the Government after taking into consideration all
relevant factors which bear on the reasonableness of the levy on the newsprint.
The Government should strike a just and reasonable balance between the need for ensuring
the right of people to freedom of speech and expression on the one hand and the need to
impose social control on the business of publication of a newspaper on the other. In other
words, the Government must at all material times be conscious of the fact that it is dealing
with an activity protected by Article 19 (1)(a) of the Constitution which is vital to our
democratic existence. In deciding the reasonableness of restrictions imposed on any
fundamental right the Court should take into consideration the nature of the right alleged to
have been infringed, the underlying purpose of the restrictions imposed, the disproportion
of the imposition and the prevailing conditions at the relevant time including the social
values whose needs are sought to be satisfied by means of the restrictions. (See State of
Madras v. V.G. Rao, MANU/SC/0013/1952
: 1952 SCR 597:(AIR 1952 SC 196)).

The restriction in question is burden of import duty imposed on newsprint. Section 25 of

the Customs Act, 1962 under which the notifications are issued confers a power on the
Central Government coupled with a duty to examine the whole issue in the light of the
public interest. It provides that if the Central Government is satisfied that it is necessary in

the public interest so to do it may exempt generally either absolutely or subject to such
conditions goods of any description from the whole or any part of the customs duty
leviable thereon. The Central Government may if it is satisfied that in the public interest so
to do exempt from the payment of duty by a special order in each case under circumstances
of an exceptional nature to be stated in such order any goods on which duty is livable. The
power exercisable under Section 25 of the Customs Act, 1962 is no doubt discretionary but
it is not unrestricted. It is useful to refer here to the observations of Lord Denning M.R. in
Breen v. Amalgamated Engineering Union, (1971) 2 QB 175 at page 190 read thus:
The discretion of a statutory body is never unfettered. It is a discretion which is to be
exercised according to law. That means at least this the statutory body must be guided by
relevant considerations and not by irrelevant. If its decision is influenced by extraneous
considerations which it ought not to have taken into account then the decision cannot stand.
No matter that the statutory body may have acted in good faith nevertheless the decision will
be set aside. That is established by Pad-field v. Minister of Agriculture Fisheries and
Food. 1968 AC997 which is a landmark in modern administrative law.
81. In any event any notification issued under a statute also being a 'law' as defined under
Article 13(3)(a) of the Constitution is liable to be struck down if it is contrary to any of the
fundamental rights guaranteed under Part III of the Constitution.
VI
Has there been proper exercise of power under Section 25(1) of the Customs Act, 1962?
82. Freedom of Press as the Petitioners rightly assert means freedom from interference
from authority which would have the effect of interference with the content and circulation
of newspapers. The most important raw material in the production of a newspaper is the
newsprint. The cost and availability of newsprint determine the price, size and volume of
the publication and also the quantum of news, views and advertisements appearing therein.
It is not disputed that she cost of newsprint works out to nearly 60% of the cost of
production of newspaper. In the case of a big newspaper the realization by the sale of
newspaper is just about 40% of its total cost production. The remaining cost is met by
advertisements revenue which is about 40%, by revenue from waste sales and job work
which comes to about 5% and revenue from other sources such as the income from
properties and other investments of the newspaper establishment. These figures have been
derived from the statement furnished by one of the big newspapers. The case of all other
big newspapers may be more or less the same. The financial and other difficulties felt by
the newspaper presses in securing newsprint in recent years which have become an
international phenomenon are set out in the Final Report of the International Commission
for the Study of Communication Problems referred to above at p. 141 thus:

Extremely serious on an international scale has been the effect of high costs of important
materials or facilities Paper is a material consumed in vast quantities whose price in recent
years has spiraled out of proportion to the general world-wide inflation As for newsprint, its
price on world markets rose from a datum figure of 100 in 1970 to 329 in May 1977, and has
continued to rise since. A sad by-product of this situation has been the introduction of a
covert form of censorship, as some governments limit the import of newsprint, distribute it by
official allocation schemes, and use these schemes to discriminate against the opposition
newspapers.
83. In Chapter 4 of the same Report at page 100 the International Commission has
observed thus:
While newspapers which are commercial enterprises expect to sustain themselves
by sales and advertising, they are not always viable on this traditional basis Capital
and profits from other media and from business in general are often injected into
the newspaper industry. In many cases, the financing, or at least the deficits are
covered by governments or political bodies. Assistance from the State has taken
various forms, including tax concessions not enjoyed by other industries, reduced
postal and telephone rates, guaranteed Government advertising, and subsidies to the
price of newsprint. Although the press is suspicious of Government involvement in
its affairs, a desire to preserve variety by keeping the weaker papers alive has led to
consideration of various schemes. Direct grants to papers in need are made in seven
European nations.
Smaller newspapers and some parts of the "quality" or "specialized" press have
experienced difficulties from a contraction of operations and size, which has led to
limitations on the variety of information sources. This has induced many
governments to examine the possibility of subsidies to help keep newspapers alive
or to establish new ones, in monopoly circulation areas and to promote plurality
and variety in general.
84. If any duty is levied on newsprint by Government, it necessarily has to be passed on to
the purchasers of newspapers unless the industry is able to absorb it. In order to pass on the
duty to the consumer the price of newspapers has to be increased. Such increase naturally
affects the circulation of newspapers adversely.
85. In Sakal's case (MANU/SC/0090/1961

: AIR 1962 SC 305 at p. 312) (supra),

this Court has observed thus:

The effect of raising the selling price of newspaper has been considered by the Press
Commission. In paragraph 164 of the Report it is observed:

The selling price of a paper would naturally have an important effect on its
circulation. In this connection we have examined the effect of price-cuts adopted
by two English papers at Bombay on the circulation of those two papers as well as
of the leading paper which did not reduce its price. Prior to 27th October 1952,
Times of India which had the highest circulation at Bombay was being sold at Re.
0-2-6 while Free Press Journal and National Standard which rank next in
circulation were being sold for Re. 0-2-0. On 27th October 1952. Free Press
Journal reduced its price to Re. 0-1-0 and within a year had claimed to have
doubled its circulation. On 1st July, 1953, the National Standard was converted into
a Bombay edition of Indian Express with a selling price of Re. 0-1-6. Within six
months it too claimed to have doubled its circulation
During this period the Times of India which did not reduce its selling price
continued to retain its readership. Thus it would appear that Free Press Journal and
Indian Express by reducing their price have been able to tap new readership which
was latent in the market but which could not pay the higher prices prevailing
earlier.
Though the prices of newspapers appear to be on the low side it is a fact that even so many
people find it difficult to pay that small price. This is what has been pointed out by the
Press Commission in Para. 52 of its report. According to it the most common reason for
people in not purchasing newspapers is the cost of the newspaper and the inability of the
household to spare the necessary amount. This conclusion is based upon the evidence of a
very large number of individuals and representatives of Associations. We would, therefore,
be justified in relying upon it and holding that raising the price of newspaper even by a
small amount such as one np. in order that its present size be maintained would adversely
affect its circulation.
86. This is not a novel phenomenon. A stamp tax on newspapers came to be levied in
England in 1712. It virtually crippled the growth of the English press and thus became
unpopular. There was a lot of agitation against the said tax. But on its abolition in 1861, the
circulation of newspapers increased enormously. The following account found in the
Encyclopaedia Britannica (1962) VoL 16 at p. 339 is quite instructive:
Abolition of "Taxes on Knowledge".The development of the press was enormously assisted by the gradual abolition of
the "taxes on knowledge," and also by the introduction of a cheap postal system.
To Lord Lytton, the novelist and politician, and subsequently to Milner Gibson and
Richard Cobden, is chiefly due the credit of grappling with this question in
Parliament to secure first the reduction of the tax to a penny in 1836, and then its
total abolition in 1835. The number of newspapers established from the early part

of 1855, when the repeal of the duty had become a certainty, and continuing in
existence at the beginning of 1857. amounted to 107:26 were metropolitan and 81
provincial. The duties on paper itself were finally abolished in 1861.
The abolition of the stamp taxes brought about such reductions in the prices of
newspapers that they speedily began to reach the many instead of the few. Some
idea of the extent of the tax on knowledge imposed in the early 19th Century may
be gathered from the fact that the number of stamps issued in 1820 was nearly
29,400,000, and the incidence of the advertisement tax, fixed at 3s. 6d. in 1804,
made it impossible for the newspaper owner to pass on the stamp tax to the
advertiser. In 1828 the proprietors of the Times had to pay the State more than
68,000 in stamp and advertisement taxes and paper duty. But after the reduction of
the stamp tax in 1836 from four pence to one penny, the circulation of English
newspapers, based on the stamp returns, rose from 39,000,000 to 122,000,000 in
1854.
87. The Second Press Commission in its Report (Vol. II) at pages 182-183 has stated that
the figures of circulation of newspapers compiled by the Audit Bureau of Circulation
(ABC) for the period January to June 1981 indicated that the circulation of newspapers in
the period January to June 1981 was 1.9% lower than in the previous six months' period.
The decline in the circulation of dailies was more in the case of very big newspapers with
circulation of one lakh and above than in the case of smaller papers. The Commission said
that the decline in circulation would appear to be attributable mainly to two factors increase in the retail price of newspapers in September-October, 1980 and again in AprilMay, 1981 and that the increase in retail prices appeared to have become necessary
following continuing increase in newsprint prices in the last few years including levy of
import duty in 1981 and increase in wages and salaries cost on account of Palekar Award of
these factors which were responsible for increase in prices, the imposition of import duty
on newsprint was on account of State action. This aspect of the matter is not seriously
disputed by the Government.
88. The pattern of the law imposing customs duties and the manner in which it is operated
to a certain extent exposes the citizens who are liable to pay customs duties to the vagaries
of executive discretion. While Parliament has imposed duties by enacting the Customs Act.
1962 and the Customs Tariff Act. 1975, the Executive Government is given wide power by
Section 25 of the Customs Act, 1962 to grant exemptions from the levy of Customs duty. It
is ordinarily assumed that while such power to grant exemption is given to the Government
it will consider all relevant aspects governing the question whether exemption should be
granted or not. In the instant case in 1975 when the Customs Tariff Act 1975 was enacted.
40% ad valorem duty was levied on newsprint even though it had been exempted from
payment of such duty. If the exemption had not been continued, newspaper publishers had
to pay 40% ad valorem customs duty on the coming into force of the Customs Tariff Act.

1975. Then again in 1982 by the Finance Act, 1982 an extra levy of Rs. 1,000 per tonne
was imposed in addition to the original 40% ad valorem duty even though under the
exemption notification the basic duty had been fixed at 10% of the value of the imported
newsprint. No information is forthcoming from the Government as to whether there was
any material which justified the said additional levy. It is also not clear why this futile
exercise of levying an additional duty of Rs. 1,000 per tonne was done when under the
notification issued under Section 25 of the Customs Act, 1962 on March 1, 1981, which
was in force then customs duty on newsprint above 10% ad valorem had been exempted.
As mentioned elsewhere in the course of this judgment while levying tax on an activity
which is protected also by Article 19(l)(a) a greater degree of care should be exhibited.
While it is indisputable that the newspaper industry should also bear is due share of the
total burden of taxation along with the rest of the community when any tax is specially
imposed on newspaper industry, it should be capable of being justified as a reasonable levy
in court when its validity is challenged. In the absence of sufficient material, the levy of
40% plus Rs. 1,000 per tonne would become vulnerable to attack. If the levy imposed by
the statute itself fails, there would be no need to question the notifications issued under
Section 25 of the Customs Act, 1962. But having regard to the prevailing legislative
practice let us assume that in order to determine the actual levy we should take into
consideration not merely the rate of duty mentioned in the Customs Tariff Act, 1975 but
also any notification issued under Section 25 of the Customs Act, 1962 which is in force.
Even then the reasons given by the Government to justify the total customs duty of 15%
levied from March 1, 1981 or Rs. 825 per tonne as it is currently being levied appear to be
inadequate. In the Finance Minister's speech delivered on the floor of the Lok Sabha in
1981, the first reason given for the levy of 15% duty was that it was intended "to promote a
measure of restraint in the consumption of imported newsprint and thus help in conserving
foreign exchange". This ground appears to be not tenable for two reasons. In the counteraffidavit filed on behalf of the Government it is stated that the allegation that the position
of foreign exchange reserve is comfortable is irrelevant. This shows that nobody in
Government had even taken into consideration the effect of the import of newsprint on the
foreign exchange reserve before issuing the notifications levying 15% duty. Secondly no
newspaper owner can import newsprint directly. Newsprint import is canalized through the
State Trading Corporation. If excessive import of newsprint adversely affects foreign
exchange reserve, the State Trading Corporation may reduce the import of newsprint and
allocate lesser quantity of imported newsprint to newspaper establishments. There is,
however, no need to impose import duty with a view to curbing excessive import of
newsprint. In the Finance Minister's speech there is no reference to the capacity of the
newspaper industry to bear the levy of 15% duty. In the counter-affidavit it is asserted that
the extent of burden faced by the newspaper industry in India is irrelevant to the levy of
import duty on newsprint. This clearly shows again that the Government had not also
considered a vital aspect of the question before withdrawing the total exemption which was
being enjoyed by newspaper industry till March 1, 1981 and imposing 15% duty on
newsprint.

89. The Petitioners have alleged that the imposition of customs duty has compelled them to
reduce the extent of the area of the newspapers for advertisements which supply a major
part of the sinews of a newspaper and consequently has adversely affected their revenue
from advertisements. It is argued by them relying upon the ruling in Bennett Coleman's
case (MANU/SC/0038/1972
: (1973) 2 SCR 757: AIR 1973 SC 106) (supra) that

Article 19(1)(a) is infringed thereby. Our attention is drawn to the following passages in
Bennett Coleman's case (supra) which are at pages 777,778 and at page 782 (of SCR):(at
pp. 118 and 120-21 of AIR):
Publication means dissemination and circulation. The press has to carry on its
activity by keeping in view the class of readers, the conditions of labour, price of
material, availability of advertisements, size of paper and the different kinds of
news comments and views and advertisements which are to be published and
circulated. The law which lays excessive and prohibitive burden which would
restrict the circulation of a newspaper will not be saved by Article 19(2). If the area
of advertisement is restricted price of paper goes up. If the price goes up circulation
will go down. This was held in Sakal Paper's case (MANU/SC/0090/1961

: AIR 1962 SC 305) (supra) to be the direct consequence of curtailment of

advertisement. The freedom of a newspaper to publish any number of pages or to
circulate it to any number of persons has been held by this Court to be an integral
part of the freedom of speech and expression. This freedom is violated by placing
restraints upon it or by placing restraints upon something which is an essential part
of that freedom. A restraint on the number of pages, a restraint on circulation and a
restraint on advertisements would affect the fundamental rights under Article 19(1)
(a) on the aspects of propagation, publication and circulation.
The various provisions of the newsprint import policy have been examined to
indicate as to how the Petitioners' fundamental rights have been infringed by the
restrictions on page limit, prohibition against new newspapers and new editions.
The effect and consequence of the impugned policy upon the newspapers is directly
controlling the growth and circulation of newspapers. The direct effect is the
restriction upon circulation of newspapers. The direct effect is upon growth of
newspapers through pages. The direct effect is that newspapers are deprived of
their area of advertisement. The direct effect is that they are exposed to financial
loss. The direct effect is that freedom of speech and expression is infringed.

90. In meeting the above contention the Government relying on the decision in Hamdard
Dawakhana (Wakf) Lal Kuan, Delhi v. Union of India, (MANU/SC/0016/1959
:

(I960) 2 SCR 671: AIR 1960 SC 554) has pleaded in defense of its action that the right to
publish commercial advertisement is not part of freedom of speech and expression. We
have carefully considered the decision in Hamdard Dawakhana's case (supra). The main
plank of that decision was that the type of advertisement dealt with there did not carry with
it the protection of Article 19(1)(a). On examining the history of the legislation the
surrounding circumstances and the scheme of the Act which had been challenged there
namely the Drugs and Magic Remedies (Objectionable Advertisements) Act 1954 (21 of
1954) the Court held that the object of that Act was the prevention of self-medication and
self-treatment by prohibiting instruments which may be used to advocate the same or
which tended to spread the evil. The Court relying on the decision of the American
Supreme Court in Lewis J. Valentine v. F.J. Chrestensen,(1941) 86 Law Ed 1262 observed
at pp. 687-689 (of SCR):(at Pp. 563-64 of AIR) thus:
It cannot be said that the right to publish and distribute commercial advertisements
advertising an individual's personal business is a part of freedom of speech
guaranteed by the Constitution. In Lewis J. Valentine v. F.J. Chrestensen it was held
that the constitutional right of free speech is not infringed by prohibiting the
distribution in city streets of handbills bearing on one side a protest against action
taken by public officials and on the other advertising matter. The object of affixing
of the protest to the advertising circular was the evasion of the prohibition of a city
ordinance forbidding the distribution in the city streets of commercial and business
advertising matter. Mr. Justice Roberts delivering the opinion of the court said:
This Court has unequivocally held that the streets are proper places for the exercise
of the freedom of communicating information and disseminating opinion and that
though the States and municipalities may appropriately regulate the privilege in the
public interest they may not unduly burden or prescribe its employment in these
public thoroughfares. We are equally clear that the Constitution imposed no such
restraint on Government as respects purely commercial advertising. If the
Respondent was attempting to use the streets of New York by distributing
commercial advertising the prohibition of the Code provisions was lawfully
invoked against such conduct.
It cannot be said, therefore, that every advertisement is a matter dealing with freedom of
speech nor can it be said that it is an expression of ideas. In every case one has to see what
is the nature of the advertisement and what activity falling under Article 19(1) it seeks to
further. The advertisements in the instant case relate to commerce or trade and not to
propagating of ideas; and advertising of prohibited drugs or commodities of which the sale

is not in the interest of the general public cannot be speech within the meaning of freedom
of speech and would not fall within Article 19(1)(a). The main purpose and true intent and
aim, object and scope of the Act is to prevent self-medication or self-treatment and for that
purpose advertisements commending certain drugs and medicines have been prohibited.
Can it be said that this is an abridgement of the Petitioners' right of free speech? In our
opinion it is not just as in Chamarbaugwalla's caseMANU/SC/0020/1957
: 1957

SCR 930:(AIR 1957 SC 628) it was said that activities undertaken and carried on with a
view to earning profits e.g. the business of betting and gambling will not be protected as
falling within the guaranteed right of carrying on business or trade, so it cannot be said that
an advertisement commending drugs and substances as appropriate cure for certain
diseases is an exercise of the right of freedom of speech.
91. In the above said case the Court was principally dealing with the right to advertise
prohibited drugs, to prevent self-medication and self-treatment. That was the main issue in
the case. It is no doubt true that some of the observations referred to above go beyond the
needs of the case and tend to affect the right to publish all commercial advertisements.
Such broad observations appear to have been made in the light of the decision of the
American Court in Lewis J. Valentine v. F.J. Chrestensen (supra). But it is worthy of notice
that the view expressed in this American case has not been fully approved by the American
Supreme Court itself in its subsequent decisions. We shall refer only to two of them. In his
concurring judgment in William B. Cammarano v. United States of America, (1959) 358
US 498: 3 Law ed 2d 462 Justice Douglas said "Valentine v. Chrestensen
Held that business of advertisements and commercial matters did not enjoy the protection
of the First Amendment, made applicable to the States by the Fourteenth. The ruling was
casual, almost off hand. and it has not survived reflection". In Jeffrey Cole Bigelow v.
Commonwealth of Virginia, (1975) 421 US 809:44 Law ed 2d 600 at p. 610 the American
Supreme Court held that the holding in Lewis J. Valentine v. F.J. Chrestensen (supra) was
distinctly a limited one. In view of the foregoing, we feel that the observations made in the
Hamdard Dawakhana's case (supra) are too broadly stated and the Government cannot
draw much support from it. We are of the view that all commercial advertisements cannot
be denied the protection of Article 19(1)(a) of the Constitution merely because they are
issued by businessmen. In any event the Government cannot derive any assistance from
this case to sustain the impugned notifications.
92. It was next urged on behalf of the Government that the levy of customs duty on
newsprint was not strictly a levy on newsprint as such since though customs duties were
levied with reference to goods, the taxable event was the import of goods within the
customs barrier and hence there could be no direct effect on the freedom of speech and
expression by virtue of the levy of customs duty on newsprint. Reliance was placed in

support of the above

Act MANU/SC/0037/1963

contention on the decision in Re: Sea Customs

: (1964) 3 SCR 787: (AIR 1963 SC 1760). That

decision was rendered on a reference made by the President under Article 143 of the
Constitution requesting this Court to record its opinion on the question whether the Central
Government could levy customs duty on goods imported by a State. The contention of the
majority of the States in that case was that the goods imported by them being their property
no tax by way of customs could be levied by reason of Article 289 (1) of the Constitution
which exempted the property of a State from taxation by the Union. This Court (majority 5.
minority 4) held that in view of Clause (1) of Article 289 which was distinct from Clause
(2) thereof which provided that nothing in Clause (1) of Article 289 would prevent the
Union from imposing or authorising the imposition of any tax to such extent, if any as
Parliament might by law provide in respect of a trade or business of any kind carried on by
or on behalf of a State or any operations connected therewith or any property used or
occupied for the purposes of such trade or business or any income accruing or arising in
connection therewith and the other provisions of the Constitution which enabled the Union
to levy different kinds of taxes, customs duty levied on the importation of goods was only a
tax levied on international trade and not on property. The Court further held that the
immunity granted under Article 289 (1) in favour of States had to be restricted to taxes
levied directly on property and even though customs duties had reference to goods and
commodities they were not taxes on property and hence not within the exemption in
Article 289(1). The above decision is again of very little assistance to the Government
since it cannot be denied that the levy of customs duty on newsprint used in the production
of newspapers is a restriction on the activity of publishing a newspaper and the levy of
customs duties had a direct effect on that activity. There exists no analogy between
Article 289 (1) and Article19(1)' (a) and (2) of the Constitution. Hence the levy cannot be
justified merely on the ground that it was not on any property of the publishers of
newspapers.
93. Our attention has been particularly drawn to the statement of the Finance Minister that
one of the considerations which prevailed upon the Government to levy the customs duty
was that the newspapers contained 'piffles'. A 'piffle' means foolish, nonsense. It appears
that one of the reasons for levying the duty was that certain writings in newspapers
appeared to the Minister as 'piffles'. Such action is not permissible under our Constitution
for two reasons:(i) that the judgment of the Minister about the nature of writings cannot be
a true description of the writings and (ii) that even if the writings are piffles it cannot be a
ground for imposing a duty which will hinder circulation of newspapers. In this connection
it is useful to refer to the decision of the American Supreme Court in Robert E. Hannegan
v. Esquire, Inc. (1945) 327 US 146 in which it was held that a publication could not be
deprived of the benefit of second class mailing rates accorded to publications disseminating
"information of a public character or devoted literature, the sciences, arts, or some special

industry" because its contents might seem to the Postmaster General by reason of vulgarity
or poor taste, not to contribute to the public good. Justice Douglas observed in that decision
thus:
It is plain, as we have said that the favorable second-class rates were granted to periodicals
meeting the requirements of the fourth condition so that the public good might be served
through a dissemination of the class of periodicals described. But that is a far cry from
assuming that Congress had any idea that each applicant for the second-class rate must
convince the Postmaster General that his publication positively contributes to the public good
or public welfare. Under our system of Government there is an accommodation for the widest
varieties of tastes and ideas. What is good literature what has educational value, what is
refined public information what is good art varies with individuals as it does from one
generation to another. There doubtless would be a contrariety of views concerning Cervantes'
Don Quixote Shakespeare's Venus and Adonis or Zola's Nana. But a requirement that
literature or art conform to some norm prescribed by an official smacks of an ideology
foreign to our system. The basic values implicit in the requirements of the 4th condition can
be served only by uncensored distribution of literature. From the multitude of competing
offerings the public will pick and choose. What seems to one to be trash may have for others
fleeting or even enduring values.
94. Matters concerning the intellect and ethics do undergo fluctuations from era to era. The
world of mind is a changing one. It is not static. The streams of literature and of taste and
judgment in that sphere are not stagnant. They have a quality of freshness and vigour. They
keep on changing from time to time from place to place and from community to
community.
95. It is one thing to say that in view of considerations relevant to public finance which
require every citizen to contribute a reasonable amount to public exchequer customs duty is
livable even on newsprint used by newspaper industry and an entirely different thing to say
that the levy is imposed because the newspapers generally contain 'piffles'. While the
former may be valid if the circulation of newspapers is not affected prejudicially, the latter
is impermissible under the Constitution as the levy is being made on a consideration which
is wholly outside the constitutional limitations. The Government cannot arrogate to itself
the power to prejudge the nature of contents of newspapers even before they are printed.
Imposition of a restriction of the above kind virtually amounts to conferring on the
Government the power to precursor a newspaper. The above reason given by the Minister
to levy the customs duty is wholly irrelevant.
96. To sum up, the counter-affidavit filed on behalf of the Government in these cases does
not show whether the Government ever considered the relevant matters. It says that the
extent of burden on the newspaper industry imposed by the impugned levy is irrelevant. It
says that the position that foreign exchange reserve is comfortable is not relevant. It does

not say that the increasing cost of imported newsprint was taken into consideration. The
Finance Minister says that the levy was imposed because he found 'piffles' in some
newspapers. There is no reference to the effect of the implementation of the Palekar Award
on the newspaper, industry. It does not also state what effect it will have on the members of
the public who read newspapers and how far it will reduce the circulation of newspapers.
97. It is argued on behalf of the Government that the effect of the impugned levy being
minimal there is no need to consider the contentions urged by the Petitioners. As observed
by Lord Morris of Borth-Y-Gest in Dr. Paul Borg Olivier v. Dr. Anton Buttigieg, 1967 AC
115 (PC) a case from Malta, that where fundamental rights and freedom of the individual
are being considered, a Court should be cautious before accepting the view that some
particular disregard of them is of minimal account. The learned Lord observed in the above
case that there was always the likelihood of the violation being vastly widened and
extended with impunity. He also referred to the words of Portia "Twill be recorded for a
precedent, and many an error by the same example will rush into the State", and the
following passage from the American case i.e. Thomas v. Collins, (1944) 323 US 516):
The restraint is not small when it is considered what was restrained. The right is a national
right federally guaranteed. There is some modicum of freedom of thought speech and
assembly which all citizens of the republic may exercise throughout its length and breadth,
which no State nor all together, nor the nation itself can prohibit restrain or impede. If the
restraint were smaller than it is, it is from petty tyrannies that large ones take root and grow.
This fact can be more plain than when they are imposed on the most basic rights of all.
Seedlings planted in that soil grow great and growing break down the foundations of liberty.
98. In the above decision the Privy Council cited with approval the view expressed by this
Court in Romesh Thappar's case (MANU/SC/0007/1950
: AIR 1950 SC 129)

(supra) and the US Court in Martin v. City of Struthers, (1943) 319 US 141). The Privy
Council observed thus:
A measure of interference with the free handling of the newspaper and its free
circulation was involved in the prohibition which the circular imposed. It was said
in an Indian case (Romesh Thapper v. State of Madras):
There can be no doubt that freedom of speech and expression includes freedom of
propagation of ideas and that freedom is secured by freedom of circulation. 'Liberty
of circulation is as essential to that freedom as the liberty of publication. Indeed
without circulation the publication would be of little value.
99. Similar thoughts were expressed by Black, J. in his judgment in Martin v. City of
Struthers when he said:

Freedom to distribute information to every citizen wherever he desires to receive it is so

clearly vital to the preservation of a free society that, putting aside reasonable police and
health Regulations of time and manner of distribution it must be fully preserved.
100. We respectfully endorse the high principle expounded by the Privy Council in the
above case. Moreover in the absence of a proper examination of all relevant matters it is
not possible to hold that the effect of the levy is minimal. In fact the impact of the
impugned levy in these cases is not minimal at all. For example: The Tribune Trust has to
pay Rs. 18.7 lacs and The Statesman Ltd. has to pay Rs. 35.9 lacs by way of customs duty
on newsprint imported during 1983-84. Other big newspapers have also to pay large sums
by way of customs duty annually.
101. The question in the present cases is whether the tax has been shown to be so
burdensome as to warrant its being struck down? The Petitioners have succeeded in
showing a fall in circulation but whether it is a direct consequence of the customs levy and
the increase in price has not been duly established. It may be due to various circumstances.
The fall in circulation may be due to the general rise in cost of living and the reluctance of
people to buy as many newspapers as they used to buy before. It may be due to bad
management. It may be due to change of editorial policy. It may be due to the absence of
certain feature writers. It may be due to other circumstances which it is not possible to
enumerate. Except the synchronizing of time there is nothing to indicate that the slight fall
in circulation is directly due to the levy of customs duty. One curious feature of the case is
that the Petitioners have made no efforts to produce their balance sheets or profit and loss
statements to give us a true idea of how burdensome the customs levy really is. On the
other hand, the Government also has made no efforts to show the effect of the impact of the
levy on the newspaper industry as a whole. All these years, the very exemption which they
granted was an indication that the levy was likely to have a serious impact on the
newspaper industry. Even now the exemption given to the small and medium newspapers
shows that there is bound to be an impact. No effort has been made on the part of the
Government to show the precise nature of the impact. On the other hand the case of the
Government appears to be that such considerations are entirely irrelevant, though the
outstanding fact remains that for several years, the Government itself thought that the
newsprint deserved total exemption. On the material now available to us. while it is not
possible to come to the conclusion that the effect of the levy is indeed so burdensome as to
affect the freedom of the press, we are also not able to come to the conclusion that it will
not be burdensome. This is a matter which touches the freedom of the press which is, as we
said, the very soul of democracy. This is certainly not a question which should be decided
on the mere question of burden of proof. There are factors indicating that the present levy
is heavy and is perhaps heavy enough to affect circulation. On such a vital issue we cannot
merely say that the Petitioners have not placed sufficient material to establish the drop in
circulation is directly linked to the increase of the levy when, on the side of the
Government, the entire exercise is thought to be irrelevant. Hence there appears to be a

good ground to direct the Central Government to reconsider the matter afresh in the light of
what has been said here.
VII
Is the classification of newspapers made for the purpose of exemption violative of
Article 14?
102. We do not. however, see much substance in the contention of some of the Petitioners
that the classification of the newspapers into small medium and big newspapers for
purposes of levying customs duty is violative of Article 14 of the Constitution. The object
of exempting small newspapers from the payment of customs duty and levying 5% ad
valorem (now Rs. 275/- per MT) on medium newspapers while levying full customs duty
on big newspapers is to assist the small and medium newspapers in bringing down their
cost of production. Such papers do not command large advertisement revenue. Their area
of circulation is limited and majority of them are in Indian languages catering to rural
sector. We do not find anything sinister in the object nor can it be said that the classification
has no nexus with the object to be achieved. As observed by Mathew, J. in the Bennett
Coleman's case (MANU/SC/0038/1972
: AIR 1973 SC 106) (supra) it is the duty

of the State to encourage education of the masses through the medium of the press under
Article 41 of the Constitution. We, therefore, reject this contention.
VIII
Relief
103. Now arises the question relating to the nature of relief that may be granted in these
petitions. These cases present a peculiar difficulty which arises out of the pattern of
legislation under consideration. If the impugned notifications are merely quashed, they
being notifications granting exemptions, the exemptions granted under them will cease.
Will such quashing revive the notification dated July 15, 1977 which was in force prior to
March 1, 1981 under which total exemption had been granted? We do not think so. The
impugned notification dated March 1,1981 was issued in super session of the notification
dated July 15, 1977 and thereby it achieved two objects - the notification dated July
15,1977 came to be repealed and 10% ad valorem customs duty was imposed on newsprint.
Since the notification dated July 15, 1977 had been repealed by the Government of India
itself it cannot be revived on the quashing of the notification of March 1, 1981. The effect
of such quashing of a subsequent notification on an earlier notification in whose place the
subsequent notification was issued Has been considered by this Court in B.N. Tiwari v.

Union of India. (MANU/SC/0312/1964

: (1965) 2 SCR 421: AIR 1965 SC 1430).

In that case the facts were these: In 1952 a 'carry forward' rule governing the Central
Services was introduced whereby the unfilled reserved vacancies of a particular year would
be carried forward for one year only. In 1955 the above rule was submitted by another
providing that the unfilled reserved vacancies of a particular year would be carried forward
for two years. In T. Devadasan v. Union of India, (MANU/SC/0270/1963
: (1964)

4 SCR 680: AIR 1964 SC 179) the 1955 rule was declared unconstitutional. One of the
questions which arose for consideration in this case (Tiwaris case (supra)) was whether the
1952 rule had revived after the 1955 Rule was struck down. This Court held that it could
not revive. The following are the observations of this Court on the above question:
We shall first consider the question whether the carry forward rule of 1952 still
exists. It is true that in Devadasan's case, the final order of this Court was in these
terms:
In the result the petition succeeds partially and the carry forward rule as modified in 1955 is
declared invalid.
That however does not mean that this Court held that the 1952 rule must be deemed
to exist because this Court said that the carry forward rule as modified in 1955 was
declared invalid. The carry forward rule of 1952 was substituted by the carry
forward rule of 1955. On this substitution the carry forward rule of 1952 clearly
ceased to exist because its place-was taken by the carry forward rule of 1955. Thus
by promulgating the new carry forward rule in 1955, the Government of India itself
cancelled the carry forward rule of 1952. When therefore this Court struck down
the carry forward rule as modified in 1955 that did not mean that the carry forward
rule of 1952 which had already ceased to exist because the Government of India
itself cancelled it and had substituted a modified rule in 1955 in its place, could
revive. We are therefore of opinion that after the judgment of this Court in
Devadasan's case there is no carry forward rule at all, for the carry forward rule of
1955 was struck down by this Court while the carry forward rule of 1952 had
ceased to exist when the Government of India substituted the carry forward rule of
1955 in its place.

104. In Mehtab Majid and Company v. State of Madras, MANU/SC/0352/1962

1963 Supp (2) SCR 435 at page 446:(MANU/SC/0352/1962

: AIR 1963 SC 928 at

page 932) also this Court has taken the view that once an old rule has been substituted by a
new rule, it ceases to exist and it does not get revived when the new rule is held invalid.
105. The rule in Mohd. Shaukat Hussain Khan v. State of Andhra Pradesh,
(MANU/SC/0057/1974
: (1975) 1 SCR 429: AIR 1974 SC 1480) is inapplicable to

these cases. In that case the subsequent law which modified the earlier one and which was
held to be void was one which according to the court could not have been passed at all by
the State Legislature. In such a case the earlier law could be deemed to have never been
modified or repealed and would, therefore, continue to be in force. It was strictly not a case
of revival of an earlier law which had been repealed or modified on the striking down of a
later law which purported to modify or repeal the earlier one. It was a case where the
earlier law had not been either modified or repealed effectively. The decision of this Court
in Mulchand Odhavji v. Rajkot Borough Municipality MANU/SC/0348/1969
:

AIR 1970 SC 685 is also distinguishable. In that case the State Government had been
empowered by Section 3 of the Saurashtra Terminal Tax and Octroi Ordinance (47 of 1949)
to impose octroi duty in towns and cities specified in Schedule I thereof and Section 4
authorized the Government to make rules for the imposition and collection of octroi duty.
These rules were to be in force until the City Municipalities made their own rules. The
rules framed by the Municipality concerned were held to be inoperative. Then the question
arose whether the rule of the Government continued to be in force. The Court held:
The Government rules, however, were to cease to operate as the notification
provided from the date the said Municipality put into force their independent byelaws." It is clear beyond doubt that the Government rules would cease to apply
from the time the Respondent-Municipality brought into force its own bye-laws
and rules under which it could validly impose, levy and recover the octroi duly. The
said notification did not intend any hiatus when neither the Government rules nor
the municipal rules would be in the field. Therefore, it is clear that if the bye-laws
made by the Respondent-Municipality could not be legally in force for some reason
or the other, for instance for not having been validly made the Government rules
would continue to operate as it cannot be said that the Municipality had "put into
force their independent bye-laws". The trial Court, as also the District Court were,

therefore, perfectly right in holding that the Respondent-Municipality could levy

and collect octroi duty from the Appellant-firm under the Government rules. There
was no question of the Government rules being revived as in the absence of valid
rules of the Respondent-municipality they continued to operate. The submission of
counsel in this behalf therefore, cannot be sustained.
106. In the cases before us we do not have rules made by two different authorities as in
Mulchand's case (supra) and no intention on the part of the Central Govt. to keep alive the
exemption in the event of the subsequent notification being struck down is also established.
The decision of this Court in Koteswar Vittal Kamath v. K. Rangappa Baliga and
Company, (MANU/SC/0036/1968
: (1969) 3 SCR 40: AIR 1969 SC 504) does not

also support the Petitioners. In that case again the question was whether a subsequent
legislation which was passed by a legislature without competence would have the effect of
reviving an earlier rule which it professed to supersede. This case again belongs to the
category of Mohd. Shaukat Hussain Khan's case (MANU/SC/0057/1974
: AIR

1974 SC 1480) (supra). It may also be noticed that in Koteswar Vittal Kamath's case
(supra) the ruling in the case of Firm A.T.B. Mehtab Majid and Company
(MANU/SC/0352/1962
: AIR 1963 SC 928) (supra) has been distinguished. The

case of State of Maharashtra v. Central Provinces Manganese Ore Co, Ltd.,

(MANU/SC/0417/1976
: (1977) 1 SCR 1002: AIR 1977 SC 879) is again

distinguishable. In this case the whole legislative process termed substitution was abortive
because, it did not take effect for want of the assent of the Governor-General and the Court
distinguished that case from Tiwari's case (MANU/SC/0312/1964
: AIR 1965 SC

1430) (supra). We may also state that the legal effect on an earlier law when the later law
enacted in its place is declared invalid does not depend merely upon the use of words like,
'substitution' or 'super session'. It depends upon the totality of circumstances and the
context in which they are used.
107. In the cases before as the competence of the Central Government to repeal or annul or
supersede the notification dated July 15, 1977 is not questioned. Hence its revival on the
impugned notifications being held to be void would not arise. The present cases are
governed by the rule laid down in Tiwari's case (supra).

108. Hence if the notification dated July 15, 1977 cannot revive on the quashing of the
impugned notifications, the result would be disastrous to the Petitioners as they would have
to pay customs duty of 40% ad valorem from March 1, 1981 to February 28, 1982 and
400% ad valorem plus Rs. 1,000 per MT from March 1, 1982 onwards. In addition to it
they would also be liable to pay auxiliary duty of 30% ad valorem during the fiscal year
1982-83 and auxiliary duty of 50% ad valorem during the fiscal year 1983-84. They would
straightway be liable to pay the whole of customs duty and any other duty levied during the
current fiscal year also. Such a result cannot be allowed to ensue.
109. It is no doubt true that some of the Petitioners have also questioned the validity of the
levy prescribed by the Customs Tariff Act, 1975 itself. But we are of the view that it is
unnecessary to quash it because of the pattern of the legislative previsions levying customs
duty which authorize the Government in appropriate cases either to reduce the duty or to
grant total exemption under Section 25 of the Customs Act, 1962 having regard to the
prevailing circumstances and to vary such concessions from time to time. The
governmental practice in the matter of customs duties has made the law imposing customs
virtually a hovering legislation. Parliament expects the Government to review the situation
in each case periodically and to decide what duty should be levied within the limit
prescribed by the Customs Tariff Act, 1975. Hence the validity of the provision in the
Customs Tariff Act, 1975 need not be examined now. Since it is established that the
Government has failed to discharge its statutory obligations in accordance with law while
issuing the impugned notifications issued under Section 25 of the Customs Act, 1962 on
and after March 1, 1981 the Government should be directed to re-examine the whole issue
relating to the extent of exemption that should be granted in respect of imports of
newsprint alter taking into account ail relevant considerations for the period subsequent to
March 1, 1981. We adopt this course since we do not also wish that the Government should
be deprived of the legitimate duty which the Petitioners would have to pay on the imported
newsprint during the relevant period.
110. In the result, in view of the peculiar features of these cases and having regard to
Article 32 of the Constitution which imposes an obligation on this Court to enforce the
fundamental rights and Article 142 of the Constitution which enables this Court in the
exercise of its jurisdiction to make such order as is necessary for doing complete justice in
any cause or matter pending before it, we make the following order in these cases:
1. The Government of India shall reconsider within six months the entire question
of levy of import duty or auxiliary duty payable by the Petitioners and Ors. on
newsprint used for printing newspapers, periodicals etc, with effect from March 1,
1981. The Petitioners and Ors. who are engaged in newspaper business shall make
available to the Government all information necessary to decide the question.

2. If on such reconsideration the Government decides that there should be any

modification in the levy of customs duty or auxiliary duty with effect from March
1, 1981 it shall take necessary steps to implement its decision.
3. Until such redetermination of the liability of the Petitioners and Ors. is made, the
Government shall recover only Rs. 550 per MT on imported newsprint towards
customs duty and auxiliary duty and shall not insist upon payment of duty in
accordance with the impugned notifications. The concessions extended to medium
and small newspapers may however remain in force.
4. If, after such redetermination, it is found that any of the Petitioners is liable to
pay any deficit amount by way of duty, such deficit amount shall be paid by such
Petitioners within four months from the date on which a notice of demand is served
on such Petitioners by the concerned authority. Any bank guarantee or security
given by the Petitioners shall be available for recovery of such deficit amounts.
5. If, after such redetermination it is found that any of the Petitioners is entitled to
any refund, such refund shall be made by the Government within four months from
the date of such redetermination.
6. A writ shall issue to the Respondents accordingly in these cases. Parties shall,
however, bear their own costs.
111. The petitions are accordingly allowed.

KAMESHWAR PRASAD AND OTHERS VS. STATE OF BIHAR, AIR 1962 SC 1166

Ayyangar, J.
1. This appeal comes before us by virtue of a certificate of fitness granted under Art. 132 of
the Constitution by the High Court of Patna. The question involved in the appeal is a short
one but is of considerable public importance and of great constitutional significance. It is
concerned with the constitutional validity of r. 4-A, which was introduced into the Bihar
Government Servants' Conduct Rules, 1956, by a notification of the Governor of Bihar
dated August 16, 1957 and reads :
"4-A. - Demonstrations and strikes. No Government servant shall participate in any demonstration or resort to any form of strike
in connection with any matter pertaining to his conditions of service."
2. Very soon after this rule was notified the six appellants, the first of whom is the
President of the Patna Secretariat Ministerial Officers' Association and the others are
Assistants or Clerks under the Bihar State Government, filed on August 26, 1957, a petition
before the High Court of Patna under Art. 226 of the Constitution challenging the validity
of the rule on various grounds including inter alia that it interfered with the rights
guaranteed to the petitioners by sub-cls. (a), (b) and (c) of clause (1) of Art. 19 of the
Constitution of India and that in consequence the rule was in excess of the rule-making
power conferred by Art. 309of the Constitution which was the source of the authority
enabling service-rules to be framed. They prayed for an order restraining the respondentState from giving effect to the rule and to desist from interfering with the petitioners' right
to go on strike or to hold demonstrations. The learned Judges of the High Court who heard
the petition were of the opinion that the freedom guaranteed under Art. 19(1)(a) and 19(1)
(c) of the Constitution did not include a right to resort to a strike or the right to demonstrate
so far as servants of Government were concerned. The learned Judges however, further
considered the validity of the rule on the assumption that the freedoms enumerated in subcls. (a) and (c) of Art. 19(1) did include those rights. On this basis they held that the rule
impugned was saved as being reasonable restraints on these guaranteed freedoms. The
learned Judges therefore directed the petition to be dismissed, but on application by the
appellants they granted a certificate under Art. 132 of the Constitution to enable them to
approach this Court.
3. At this stage it is necessary to mention that a similar conclusion as the one by the High
Court of Patna now under appeal was reached by the learned Judges of the High Court of
Bombay before whom the constitutional validity of a rule in identical terms as r. 4A of the

Bihar Rules was impugned. The correctness of that decision is under challenge in this
Court in S.L.Ps. (Civil) Nos. 499 and 500 of 1961 and the appellants in that appeal sought
leave to intervene in this appeal and we have permitted them to do so, and we heard Mr.
Chari - learned Counsel for the interveners in further support of the appeal.
4. Before entering on a discussion of the arguments advanced before us it might be
convenient to state certain matters which are common ground and not in controversy :
(1) The impugned rule 4-A was framed under Art. 309 of the Constitution which
enacts, to quote the material words :
"309. Subject to the provisions of this Constitution, Acts of the appropriate Legislature may
regulate the recruitment, and conditions of service of persons appointed, to public services..."
and provision is made by the proviso to the Article for the Governors of States to make rules
until "provision in that behalf is made by or under an Act of the appropriate Legislature." We
are drawing attention to the Article under which the rule is made for the purpose of pointing
out that the rule-making power being subject to the Constitution, the validity of the rule
would have to be tested by the same criteria as are applicable to all laws and subordinate
legislation. In other words, if there are any constitutional limitations upon law making, such
of them as are appropriate to the subject dealt with by the rule would be applicable to them.
2) It would be seen that the rule prohibits two types of activities, both in connection
with matters pertaining to the conditions of service (i) the holding of
demonstrations, and (ii) resort to strikes to achieve the purpose indicated. This
Court had, in All India Bank Employees' Association v. National Industrial Tribunal
(C.A. 154 of 1961 (Not yet reported).) (Bank disputes Bombay etc.), to consider
the question as to whether the right to form an association guaranteed by Art. 19(1)
(c) involved or implied the right to resort to a strike and answered it in the negative.
In view of this decision learned Counsel for the appellants, as also Mr. Chari for the
interveners confined their arguments to the question of the legality of the provision
as regards the right "to hold demonstrations". The validity of the rule therefore in
so far as it prohibits strikes, is no longer under challenge.
5. The argument addressed to us on behalf of the appellants may be shortly stated thus :
The service-rule being one framed under Art. 309 is a "law" within the definition of
Art. 13(3) of the Constitution and it would have to be pronounced invalid to the extent that
it is inconsistent with the provisions of Part III of the Constitution of Art. 13(2).
Article 19(1) confers on all citizens the right by sub-clause (a) to freedom of speech and
expression, and by sub-clause (b) to assemble peacefully and without arms, and the right to
"demonstrate" would be covered by these two sub-clauses. By the mere fact that a person
enters Government service, he does not cease to be "a citizen of India", nor does that
disentitle him to claim the freedoms guaranteed to every citizen. In fact, Art. 33 which
enacts :

"Parliament may by law determine to what extent any of the rights conferred by this Part
shall, in their application to the members of the Armed Forces or the Forces charged with
maintenance of public order, be restricted or abrogated so as to ensure the proper discharge of
their duties and the maintenance of discipline among them."
6. obviously proceeds on the basis of persons in the service of Government being entitled
to the Protection of the fundamental rights guaranteed by Part III of the Constitution and is
inserted to enable special provision being made for the abrogation, if necessary, of the
guaranteed freedoms in the case of two special services only, viz., the army and the police
force. The approach to the question regarding the constitutionality of the rule should be
whether the ban that it imposes on demonstrations would be covered by the limitation of
the guaranteed rights contained in Art. 19(2) and 19(3). In regard to both these clauses the
only relevant criteria which has been suggested by the respondent-State is that the rule is
framed "in the interest of public order". A demonstration may be defined as "an expression
of one's feelings by outward signs." A demonstration such as is prohibited by, the rule may
be of the most innocent type - peaceful orderly such as the mere wearing of a badge by a
Government servant or even by a silent assembly say outside office hours - demonstrations
which could in no sense be suggested to involve any breach of tranquillity, or of a type
involving incitement to or capable of leading to disorder. If the rule had confined itself to
demonstrations of type which would lead to disorder then the validity of that rule could
have been sustained but what the rule does is the imposition of a blanket-ban on all
demonstrations of whatever type - innocent as well as otherwise - and in consequence its
validity cannot be upheld.
7. Before considering these arguments of learned Counsel it is necessary to deal with the
submission by Mr. Sen who appeared for the Union of India who intervened in this appeal
which, if accepted, would cut at the root of the entire argument for the appellant. He
endeavoured to persuade us to hold that though the power to frame Service Rules under
Art. 309 was subject to the Constitution with the result that the rules so framed ought not to
be contrary to any constitutional provision, still it did not follow that every one of the
fundamental rights guaranteed by Part III could be claimed by a Government servant. He
urged that as person voluntarily entered Government service he must by that very act to be
deemed to have consented to enter that service on such reasonable conditions as might be
framed for ensuring the proper working of the administrative machinery of the Government
and for the proper maintenance of discipline in the Service itself. Under Art. 310 every
office is held, subject to the provisions of the Constitution, at the pleasure of the President
or of the Governor as the case may be, and provided a rule regulating the conditions of
service was reasonable and was calculated to ensure the purposes above-named he
submitted that it is reasonableness and validity could not be tested solely by reference to
the criteria laid down in cls. (2), (3) or (4) of Art. 19.

8. In this connection we were referred to a few decisions of the American Courts for the
proposition that the constitutionality of special rules enacted for the discipline of those in
the service of Government had to be tested by criteria different from those applicable to
ordinary citizens. Thus in Ex Parte; Curtis 27 Law. Ed. 232, 106 U.S. 371 the
constitutionality of a law prohibiting officers or employees of the United States from
"requesting, giving to or receiving from any other officer or employee of the government
any money or property or other thing of value for political purposes," under a penalty of
being discharged and, on conviction fined, was upheld. In the majority Judgment which
was delivered by Waite, C.J., the reasonableness of such a rule is pointed out. It is however
manifest that no fundamental right could be claimed to have been infringed by the
provision there impugned. In United Public Workers v. Mitchell 91 Law. Ed. 754, 330 U.S.
75, which was another case to which our attention was invited, one of the questions raised
related to the validity of an Act of Congress (The Hatch Act, 1940) making it unlawful for
the employees in the Executive Branch of the Federal Government to take part in political
campaigns and making the same the basis for disciplinary departmental action. It was
contended that this was an interference with the right of free speech as well as with
political rights. Reed, J., who spoke for the majority observed :
"The interference with free expression has to be seen in comparison with the requirements of
orderly management of administrative personnel............ We accept appellant's contention that
the nature of political rights reserved to the people are involved. The right claimed as
inviolate may be stated as the right of a citizen to act as a party official or worker to further
his own political views. Thus we have a measure of interference by the Hatch Act and the
Rules with what otherwise would be the freedom of the civil servant under the First
Amendment. And, if we look upon due process as a guarantee of freedom in those fields,
there is a corresponding impairment of that right under the Fifth Amendment....... We do not
find persuasion in appellants' argument that such activities during free time are not subject to
regulation even though admittedly political activities cannot be indulged in during working
hours. The influence of political activity by government employees, if evil in its effects on the
service, the employees or people dealing with them, is hardly less so because that activity
takes place after hours...... It is accepted constitutional doctrine that these fundamental human
rights are not absolutes.......... The essential rights of the First Amendment are subject to the
elemental need for order without which the guarantees of civil rights to others would be a
mockery."
9. Mr. Sen also referred us to Mc Auliffe v. New Bedford (1892) 155 Mass. 216 which is
cited at p. 791 in 91 Law. Ed., in support of the position that servants of Government
formed a class and that conditions of service imposed upon them which are reasonable and
necessary to ensure efficiency and discipline cannot be questioned on the ground of their
contravening any constitutional guarantees. Mr. Sen drew our attention in particular to the
following passage in the judgment of Holmes, J. :

"There is nothing in the Constitution or the statute to prevent the city from attaching
obedience to this rule as a condition to the office of policeman, and making it part of the good
conduct required. The petitioner may have a constitutional right to talk politics, but he has no
constitutional right to be a policeman. There are few employments for hire in which the
servant does not agree to suspend his constitutional right of free speech, as well as of
idleness, by the implied terms of his contract. The servant cannot complain, as he takes the
employment on the terms which are offered him. On the same principle, the city may impose
any reasonable condition upon holding offices within its control. This condition seems to us
reasonable, if that be a question open to revision here (The Police Regulation prohibiting
members of the department from soliciting money etc., for political purposes)".
10. As regards these decisions of the American Courts, it should be borne in mind that
though the First Amendment to the Constitution of the United State reading "Congress
shall make no law.... abridging the freedom of speech..." appears to confer no power on the
Congress to impose any restriction on the exercise of the guaranteed right, still it has
always been understood that the freedom guaranteed is subject to the police power - the
scope of which however has not been defined with precision or uniformly. It is on the basis
of the police power to abridge that freedom that the constitutional validity of laws
penalising libels, and those relating to sedition, or to obscene publications etc., has been
sustained. The resultant flexibility of the restrictions that could be validly imposed renders
the American decisions inapplicable to and without must use for resolving the questions
arising under Art. 19(1) (a) or (b) of our Constitution wherein the grounds on which
limitations might be placed on the guaranteed right are set out with definiteness and
precision.
11. Learned Counsel invited our attention also to the decision of this Court in Balakotaiah
v. Union of India MANU/SC/0119/1957
: [1958]1SCR1052 to a similar effect.

But it must however, be noted that in Balakotaiah's case the validity of the rule was not
challenged.
12. In further support of his submission that the freedoms guaranteed to citizens by
Art. 19 cannot in their very nature, be applied to those who are employed in government
service our attention was invited to sub-cls. (d), (e) and (g) of clause (1). It was said that a
Government servant who was posted to a particular place could obviously not exercise the
freedom to move throughout the territory of India and similarly, his right to reside and
settle in any part of India could be said to be violated by his being posted to any particular
place. Similarly, so long as he was in government service he would not be entitled to
practice any profession or trade and it was therefore urged that to hold that these freedoms
guaranteed under Art. 19 were applicable to government servants would render public
service or administration impossible. This line of argument, however, does not take into

account the limitations which might be imposed on the exercise of these rights by cls. (5)
and (6) under which restrictions on the exercise of the rights conferred by sub-cls. (d) and
(g) may be imposed if reasonable in the interest of the general public.
13. In this connection he laid stress on the fact that special provision had been made in
regard to Service under the State in some of the Articles in Part III - such as for instance
Arts. 15, 16, and 18(3) and (4) - and he desired us therefrom to draw the inference that the
other Articles in which there was no specific reference to Government servants were
inapplicable to them. He realised however, that the implication arising from Art. 33 would
run counter to this line of argument but as regards this Article his submission was that it
was concerned solely to save Army Regulations which permitted detention in a manner
which would not be countenanced by Art. 22 of the Constitution. We find ourselves unable
to accept the argument that the Constitution excludes Government servants as a class from
the protection of the several rights guaranteed by the several Articles in Part III save in
those cases where such persons were specifically named.
14. In our opinion, this argument even if otherwise possible, has to be repelled in view of
the terms of Art. 33. That Article select two of the Services under the State-members of the
armed forces charged with the maintenance of public order and saves the rules prescribing
the conditions of service in regard to them - from invalidity on the ground of violation of
any of the fundamental rights guaranteed by Part III and also defines the purpose for which
such abrogation or restriction might take place, this being limited to ensure the proper
discharge of duties and the maintenance of discipline among them. The Article having thus
selected the Services members of which might be deprived of the benefit of the
fundamental rights guaranteed to other persons and citizens and also having prescribed the
limits within which such restrictions or abrogation might take place, we consider that other
classes of servants of Government in common with other persons and other citizens of the
country cannot be excluded from the protection of the rights guaranteed by Part III by
reason merely of their being Government servants and the nature and incidents of the
duties which they have to discharge in that capacity might necessarily involve restrictions
of certain freedoms as we have pointed out in relation to Art. 19(1)(e) and (g).
15. The first question that falls to be considered is whether the right to make a
"demonstration" is covered by either or both of the two freedoms guaranteed by Art. 19(1)
(a) and 19(1)(b). A "demonstration" is defined in the Concise Oxford Dictionary as "an
outward exhibition of feeling, as an exhibition of opinion on political or other question
especially a public meeting or procession". In Webster it is defined as "a public exhibition
by a party, sect or society..... as by a parade or mass-meeting". Without going very much
into the niceties of language it might be broadly stated that a demonstration is a visible
manifestation of the feelings or sentiments of an individual or a group. It is thus a
communication of one's ideas to others to whom it is intended to be conveyed. It is in effect
therefore a form of speech or of expression, because speech need not be vocal since signs

made by a dumb person would also be a form of speech. It has however to be recognised
that the argument before us is confined to the rule prohibiting demonstration which is a
form of speech and expression or of a mere assembly and speeches therein and not other
forms of demonstration which do not fall within the content of Art. 19(1)(a) or 19(1)(b). A
demonstration might take the form of an assembly and even then the intention is to convey
to the person or authority to whom the communication is intended the feelings of the group
which assembles. It necessarily follows that there are forms of demonstration which would
fall within the freedoms guaranteed by Art. 19(1)(a) and 19(1)(b). It is needless to add that
from the very nature of things a demonstration may take various forms; It may be noisy
and disorderly, for instance stone-throwing by a crowd may be cited as an example of a
violent and disorderly demonstration and this would not obviously be within Art. 19(1)(a)
or (b). It can equally be peaceful and orderly such as happens when the members of the
group merely wear some badge drawing attention to their grievances.
16. If thus particular forms of demonstration fall within the scope of Art. 19(1)(a) or 19(1)
(b), the next question is whether r. 4-A, in so far as it lays an embargo on any form of
demonstration for the redress of the grievances of Government employees, could be
sustained as falling within the scope of Art. 19(2) and (3).
These clauses run :
"19. (2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any
existing law, or prevent the State from making any law, in so far as such law
imposes reasonable restrictions on the exercise of the right conferred by the said
sub-clause in the interests of the security of the State, friendly relations with
foreign States, public order, decency or morality, or in relation to contempt of
court, defamation or incitement to an offence.
(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any
existing law in so far as it imposes, or prevent the State from making any law
imposing, in the interests of public order, reasonable restrictions on the exercise of
the right conferred by the said sub-clause."
17. The learned Judges of the High Court have, as stated earlier, upheld the validity of the
rule by considering them as reasonable restrictions in the interest of public order. In
coming to this conclusion the learned Judges of the High Court did not have the benefit of
the exposition of the meaning of the expression "in the interest of public order" in these
two clauses by this Court in Superintendent, Central Prison, Fatehgarh v. Ram Manohar
Lohia MANU/SC/0058/1960
: 1960CriLJ1002 . Speaking for the Court Subba

Rao, J., summarised his conclusion on the point in these terms :

"Public order (Art. 19(2) and (3)) is synonymous with public safety and tranquillity. It is the
absence of disorder involving breaches of local significance in contradistinction to national
upheavals such as revolution, civil strike, war affecting the security of the State."
18. The learned Judge further stated that in order that a legislation may be "in the interests
of public order" there must be a proximate and reasonable nexus between the nature of the
speech prohibited and public order. The learned Judge rejected the argument that the phrase
"in the interests of public order" which is wider than the words "for the maintenance of
public order" which were found in the Article as originally enacted - thereby sanctioned the
enactment of a law which restricted the right merely because the speech had a tendency
however remote to disturb public order. The connection has to be intimate, real and
rational. The validity of the rule now impugned has to be judged with reference to tests
here propounded.
19. If one had to consider the propriety of the rule as one intended to ensure proper
discipline apart from the limitations on law-making, in a Government servant and in the
context of the other provisions made for the making of representations and for the redress
of services, grievances, and apart from the limitations imposed by the Constitution there
could be very little doubt nor would it be even open to argument that the rule now
impugned was both reasonable and calculated to ensure discipline in the Services and in
that sense conducive to ensure efficiency in the Service. Based on this aspect of the
function of the rule the argument as regards Art. 19(2) & (3) was put on a twofold basis :
(1) that the maintenance of public order was directly dependent upon the existence of a
body of Government servants who were themselves subject to strict discipline. In other
words, the maintenance of discipline among Governments servants not only contributed to
the maintenance of public order but was a sine qua non of public order. (2) The other
aspect in which it was presented was the negative of the one just now mentioned that if
Government servants were ill-disciplined and were themselves to agitate in a disorderly
manner for the redress of their service grievances, this must lead to a demoralisation of the
public and would be reflected in the disappearance of public order.
20. We find ourselves unable to uphold this submission on behalf of the State. In the first
place we are not here concerned with any rule for ensuring discipline among the police,
which is the arm of the law primarily charged with the maintenance of public order. The
threat to public order should therefore arise from the nature of the demonstration
prohibited. No doubt, if the rule were so framed as to single out those types of
demonstration which were likely to head to a disturbance of public tranquillity or which
would fall under the other limiting criteria specified in Art. 19(2) the validity of the rule
could have been sustained. The vice of the rule, in our opinion, consists in this that it lays a
ban on every type of demonstration - be the same however innocent and however incapable
of causing a breach of public tranquillity and does not confine itself to those forms of
demonstrations which might lead to that result.

21. Learned Counsel for the respondent and those who supported the validity of the rule
could not suggest that on the language of the rule as it stood, it was possible to read it as to
separate the legal from the unconstitutional portion of the provision. As no such separation
is possible the entire rule has to be struck down as unconstitutional.
22. We have rejected the board contention that persons in the service of government form a
class apart to whom the rights guaranteed by Part III do not, in general, apply. By accepting
the contention that the freedoms guaranteed by Part III and in particular those in Art. 19(a)
(1) apply to the servants of government we should not be taken to imply that in relation to
this class of citizen the responsibility arising from official position would not by itself
impose some limitations on the exercise of their rights as citizens. For instance, s. 54(2) of
the Income-tax Act, 1922, enacts :
"If a public servant discloses any particulars contained in any such statement, return,
accounts, documents, evidence affidavit, deposition or record, he shall be punishable with
imprisonment which may extend to six months, and shall also be liable to fine."
23. Section 128(1) of the Representation of the People Act, 1951, enjoins on every officer,
clerk, agent, etc. who performs any duty in connection with the recording or counting of
votes at an election shall maintain the secrecy of the voting and shall not communicate to
any person any information calculated to violate such secrecy, and visits the breach of the
rule by punishment with imprisonment for a term which may extend to three months or
with fine. It cannot be contended that provisions on these or similar lines in these or other
enactments restrict the freedom of the officers etc. merely because they are prohibited from
communicating information which comes to them in the course of the performance of the
duties of their office, to others. The information having been obtained by them in the
course of their duties by virtue of their official position, rules or provisions of the law
prescribing the circumstances in which alone such information might be given out or used
do not infringe the right of freedom of speech as is guaranteed by the Constitution.
24. We would therefore allow the appeal in part and grant the appellants a declaration that
r. 4A in the form in which it now stands prohibiting "any form of demonstration" is
violative of the appellants' rights under Art. 19(1)(a) & (b) and should therefore be stuck
down. It is only necessary to add that the rule, in so far as it prohibits a strike, cannot be
struck down since there is no fundamental right to resort to a strike. As the appellants have
succeeded only in part, there will be no order as to costs in the appeal.
25. Appeal allowed in part.

KERALA STUDENT UNION V. SOJAN FRANCIS, 2004 (2) KLT 378

K.S. Radhakrishnan, J.
1. Article 19 of the Constitution of India is not a carte-blanche enabling any citizen to
exercise a fundamental right so as to encroach upon similar rights guaranteed to other
citizen.
2. Managements of various Educational Institutions, Principals, Teachers and parents are
aggrieved by the organizational activities of the various students organizations like SFI,
ABVP, AISF, NSC, PSU, KSU (I), KSC. MSF etc. within the college campus which
according to them violate the fundamental right guaranteed to the Managements under
Article 19(1)(g) of the Constitution of India. They are also concerned with the constant call
for strike, gherao, dharna etc. within the college campus disrupting the academic discipline.
Several writ petitions questioning the interference of those students organisations were
pending before this court when this court decided Sojan Francis's case, reported
in MANU/KE/0171/2003
. Those writ petitions were not taken up along with Sojan

Francis's case. Review petitions were filed by some of the students Organizations in Sojan
Francis's case. Consequently we posted all the writ petitions and review petitions together
for hearing.
3. This court in Sojan Francis v. M.G. University MANU/KE/0171/2003

upheld

guideline 9 of the College Calendar dealing with General Discipline by which political
activism was strictly banned by Management in the campus and students were forbidden to
organise or attend meetings other than the official ones within the campus. While
upholding Clause 9 relating to General Discipline, this court declared that the guideline
banning political activities within the college campus and forbidding the students from
organising or attending meetings other than the official ones within the campus is not
designed to prohibit any of the fundamental rights of the students guaranteed under
Article 19(1) (a) or (c) of the Constitution of India. This court held that educational
institution established either by minority or majority community have got the fundamental
rights guaranteed under Article 19(1)(g), 29 (1), (2) and 30 of Constitution of India, as the
case may be, and have the right to maintain discipline and orderly administration.
4. Students Organizations like Students Federation of India (SFI), Akhila Bharathiya
Vidyarthi Parishat (ABVP) having its Central Office at Mumbai, All India Students,

Federation (AISF) having its Head Office at Delhi, Nationalist Students Congress (NSC)
having its Head Office at New Delhi, Progressive Students Union (PSU), Kerala Students
Union (I) (KSU (I), Kerala Students Congress (KSC) and Muslim ' Students Federation
(MSF) have filed petitions for reviewing the judgment contending, inter alia, that Clause 9
is highly undemocratic, unreasonable and violative of Article 19(1) (a) and (c) of the
Constitution of India guaranteed to them. Few other organizations like AIDSO having its
Head Office at Calcutta got themselves impleaded and supported those organisations.
Contention was also raised that the judgment is vitiated by error apparent on the face of the
record and the question decided was not germane for deciding the issue raised before the
court.
5. Review petition was also filed by the organization of teachers by name Kerala Private
College Teachers Association aggrieved by some of the observation contained in the
judgment, though in principle they welcomed the judgment. Council of Principal's of
Colleges in Kerala (Principal's Council) and All Kerala Private College Management's
Association along with few Professors have also filed O.P.No 15204 of 1996 for a writ of
mandamus directing the State of Kerala and the various Universities in the State to take
appropriate steps to depoliticise the college campus and ensure peace and harmony in the
college campus. O.P. No. 20917 Of 1997 was filed by the Principal of St. Mary's College,
Manarcadu and the Secretary of the Council of Principals in Kerala seeking a declaration
that the formation or functioning of any politically based student Union or Association
inside the college campus is illegal and unconstitutional. Writ of mandamus was also
sought for against the State and its officers to see that only the Unions or Association
recognised by the University Statutes and free from politics alone are allowed to function
in the college campus. Principal of St. Thomas College, Pala and some of the professors of
that college also filed O.P. No. 14308 of 1998 seeking identical reliefs. O.P.No. 9216 of
1999 was also filed by the Principal of St. Thomas College, Pala and the Principal of Deva
Matha College, Kuravilangad seeking declaration to the effect that right to uninterrupted
higher education in a peaceful academic atmosphere in colleges is a fundamental right
guaranteed under Article 21 of the Constitution of India. O.P.No. 18249 of 2000 was also
filed by a retired school teacher and a social worker seeking direction to respondents 1 to 3
to issue necessary orders restraining all types of strikes, dharna and other political activities
in schools, colleges including professional colleges. Various other reliefs were also sought
for.
6. W.P.(C) No. 22347 of 2003 was filed by some students of T.K.M. College of Arts and
Science, Kollam seeking a writ of prohibition prohibiting political activities within the
college campus of T.K.M. College of Arts and Science of the various students Unions who
have filed review petitions against the judgment in Sojan Francis's case. They also sought
for a writ of mandamus to give adequate and effective police protection to them and other
non striking students and teaching and non teaching staff of the college and to the
properties of the college and educational institution. Parent Teachers Association of various

educational institutions got themselves impleaded and wanted total ban of the activities of
SFI, KSU, ABVP, etc. within the college campus.
7. Common issues have come up for consideration in all the above mentioned writ petitions
and the review petitions filed against the judgment in Sojan Francis's case. Since the issues
involved are of considerable general importance concerning the administration of the
educational institutions, Principals' authority and students discipline, we directed issuance
of notice to all the Universities in the State of Kerala. Permission was also given for
impleading of those who are interested in the proceedings before this court. State
Government as well as the Universities in the State of Kerala were also directed to file
detailed counter affidavit giving their suggestions and views so as to maintain discipline in
the campus of the various educational institutions in the State. Detailed counter affidavits
and reply affidavits have been filed by the parties interested in the proceedings. We heard
the matter at length and have given effective opportunity to either side to project their
views on the various issues involved for determination.
8. Right to education is a fundamental right guaranteed under the Constitution of India.
Right to uninterrupted education is also fundamental right guaranteed to every citizen of
India lest it may affect the right to live guaranteed under Article 21 of the Constitution of
India. Article 41 of the Constitution provides that the State shall within the limits of its
economic capacity and development make effective provision for securing the right to
work and education. Even though this right is not fundamental right, State by legislative or
administrative action provides facilities for education which stand conformed to equality
and rationality underlined under Article 14 of the Constitution. State as a body will not be
able to provide education to all within the economic constraints but the object and purpose
could be achieved by various private recognised educational institutions in the State. Under
Article 19(1)(g) the right of citizens to practice any profession or to carry on any
occupation, trade or business subject to limits as may be imposed by the State in the
interest of public welfare and other grounds enumerated in Clause (6) has been
safeguarded.
9. The Constitution Bench of the apex court in T.M.A. Pai Foundation and Ors. v. State of
Karnataka and Ors., MANU/SC/0905/2002
: (2002) 8 SCC 481, and later in

Islamic Academy of and Ors. v. State of Karnataka MANU/SC/0580/2003

: (2003)

6 SCC 697 : 2003 (3) KLT (SC) (SN) 88 held that the establishment and running of an
educational institution where a large number of persons are employed as teachers or
administrative staff, and an activity is carried on that results in the imparting of knowledge
to the students, must necessarily be regarded as an occupation. Court held, it is difficult to

comprehend that education, per se, will not fall under any of the four expressions in
Article 19(1)(g). Right to establish and maintain educational institutions may also be
sourced to Article 26(a), which grants, in positive terms, the right to every religious
denomination or any section thereof to establish and maintain institutions for religious and
charitable purposes, subject to public order, morality and health. Religious denominations
or sections thereof, which do not fall within the special categories carved out in
Articles 29(1) and 30(1), have the right to establish and maintain religious and educational
institutions. Educational institutions set up in the State by majority communities and the
minority communities have laid down various code of conduct to maintain discipline and
for proper maintenance of standard of education in the educational institutions
administered and managed by them. Constitutional provisions referred to herein before
would give educational institutions right to administer those institutions so that it could
maintain educational character and standard of such institutions. Rules and regulations
have also been laid down by them so as to ensure orderly and strict administration and to
secure its proper functioning as an educational institution and to ensure that funds are spent
for the betterment of the institution and also to secure interest of the students. Right to
administer educational institution cannot include right to maladminister and they cannot be
allowed to fall below the standards of excellence expected of educational institutions.
10. Educational institutions in the State like St. Thomas College, Pala which come under
the Mahatma Gandhi University and other institutions have laid down various code of
conduct in the college calendar, prospectus to maintain general discipline in the institutions
established and administered by them. Bone of contention in these cases is with regard to
the legality of some of the restrictions imposed, its enforceability and whether those
restrictions would make any inroad into the fundamental rights guaranteed to organizations
like SFI, ABVP, NSC etc. and their members students. We may first refer to some of the
relevant clauses under the heading "general discipline" in the college Calendar of St.
Thomas College, Palai.
General Discipline
...
...
7. Smoking, which is injurious to health, is strictly prohibited in the college
campus.
8. Do not disfigure the walls, doors, windows, furniture etc. with graffiti, bills,
engravings etc. Learning not to damage properly whether public or private is one of
the primary requirements for civilized behaviour.

9. "Political activism" is strictly banned in the campus. Students are forbidden to

organize or attend meetings other than the official ones. Students resorting to
strikes are strictly prohibited from entering the verandah of the building or the class
rooms.
Mar Athanasius College, Kothamangalam aided private educational institution, established
and administered by Jacobite Syrian Christian community, minority community entitled to
protection under Articles 19(1)(g) and 30(1) of the Constitution, issued notice dated
25.6.2003 laying down various rules and regulations in addition to the rules and regulations
already framed and issued in order to facilitate smooth and effective functioning of the
college. Relevant portions of the same are extracted below:
1. All students in the college shall co-operate with the College Authorities to ensure
maintenance of discipline in the College.
2. All strikes, demonstrations, agitations, dharnas, hartals and the like are banned in
the College campus. Students who violate the above rule are liable to be dismissed
from the College summarily.
3. Students are prohibited from taking part in any meeting in the College campus
unless such meetings are convened and organized by the College Authorities.
4. Political activities are completely banned in the College campus. Students
indulging in and involving themselves in any kind of political activity in the
College campus are liable to be summarily dismissed from the College.
5. No student shall bring into the College campus any banner, flag, board, notice,
pamphlet or other such material for purposes of any political activity.
6. No student shall indulge in any activity, which may cause disruption to classes or
disturbance in the college campus. If any student Violates the above regulation, he
is liable to be dismissed from the College summarily.
Principal of Sree Narayana College, Kollam issued a code of conduct for students which
stipulates that without the consent of the Principal no student organization shall hold any
meeting or collect any fund. Principal of Fathima Matha College, Kollam has stated, inter
alia, that no student organization shall arrange a meeting inside the campus without the
written permission of the Principal. Management of N.S.S. colleges in the State, S.N.D.P.
S.N. Trust, Muslim Educational Trust etc. have also laid down the code of conduct for their
Educational Institutions so as to curb political activities of the students organizations
within the college campus. Strike, gherao, dharna etc. within the campus are also banned.
Reason for laying down those codes of conduct, according to them, is because of the
insurmountable difficulties the Managements had to face for the last so many years due to

the interference of various students organizations like SFI, ABVP, KSU etc. in the college
campus. In order to maintain discipline and for the smooth administration of the
educational, institutions, according to the Management, it is highly necessary to lay down a
code of conduct for the students. Reasons which prompted them to lay down those codes of
conduct have been narrated in detail in page numbers 641 to 656 of Vol.III of the
Paperbook, pages 814 and 816 of Vol.III and pages 210 to 270 of Vol.1 and in other parts of
the paper books. Further it was also stated that many of the students organizations are
outfits of various political parties. SFI is the student wing of CPI (Marxist), ABVP is the
student wing of Bharatheeya Janatha Party (BJP), KSU (I) is the student wing of Indian
National Congress and so on. The Management and Principal of M.G. College, Trivandrum
have reported that ABVP has erected a permanent flag mast in the college campus in the
year 1997 and flag was hoisted in it. Principal, VTM N.S.S. Dhanuvachapuram has vide
letter dated 23.6.2003 reported that a room in the college building is forcibly occupied by
ABVP and they find it difficult to evict them. The Principal of N.S.S. College, Pandalam
vide letter dated 24.6.2003 has stated that in the college campus three or four students
organizations function, viz., SFI, ABVP, KSU and AISF are functioning with the support of
certain political parties. Office bearers from the various political parties used to visit the
campus. Several instances where students resort to criminal activities were also highlighted
including destruction of properties of the educational institutions. Instances were also
quoted where the Vice Chancellor, Registrar, Principal etc. have been gheraoed and kept
under captivity. Similar are the complaints of various Managements and the Principals of
the colleges which do not require further reiteration.
11. Counter affidavits have been filed by the Managements, Principals, Parent Teacher
Associations and others pointing out the various instances where students organizations
having allegiance to the various recognised political parties in the country as well as in the
State fight each other within the college campus to establish their superiority and
supremacy among student community and to inculcate their political ideology and
philosophy among the students in the college campus. They want to show their strength in
the college campus and to secure as many as students to their fold which affects academic
discipline of various educational institutions. Complaints have been raised by the
Managements that since most of the students Organizations are political outfits of various
political parties in the State political rivalries among political parties and among their
leaders has been led to clash among students Unions in the college campus which affects
the proper administration of the college loosing many working days causing detriment to
the rest of the students who are not members of any of the political organization or their
students wings. The activities of these organizations in the campus is a matter of high
tension, agony etc. not only to the Management, teaching and non teaching staff but to the
parents as well as to the students who are not members of any of these organizations.
Managements and the Principals of various colleges maintain the stand that they have got a
fundamental right to establish arid administer educational institutions under Article 19(1)
(a) of the Constitution of India and to lay down regulatory measures in the administration

of their educational institution and that the students organizations like SFL ABVP, KSU,
etc, have no legal right to interfere with the rights guaranteed to the Management under
Article 19(1)(g) of the Constitution of India.
12. Prominent students organizations who have filed review petitions in Sojan Francis's
case are also respondents in O.P.No 18249 of 2000 and in few other writ petitions. They
claimed to be independent organisations having no political affiliation. They submit that
they have a fundamental right to carry on their organizational activities in the various
educational institutions. Students organizations have been set up, according to them for the
welfare of the students community and to equip them as better citizens of the society and to
unite the students of our country for defending national independence and sovereignty of
the country and democracy and to equip the students to fight against corruption and
malpractice in all spheres of national life and especially in the field of education. Students
organizations like SFL, ABVP, etc, would maintain the stand that the restriction imposed
like Clause 9 under the head "General Discipline" and similar other provisions of various
prospects and college calendar would curb the organizational activities of students
organizations within the campus which would create a fetter on the fundamental right of
the students and their organization under Article 19(1) (a) and (c) of the Constitution of
India.
13. Various Universities in the State of Kerala have also filed detailed counter affidavits.
Registrar of the Mahatma Gandhi University has filed detailed counter affidavit. Campus
politics according to them has to be viewed more as a co-curricular activity than as a
political activity and what is to be totally banned in the campus is violence and not politics.
The Joint Registrar In-charge of Registrar of the University of Kerala has also filed counter
affidavit. It is stated that University does not interfere with the power of the Principal to
maintain discipline except when serious irregularities are reported to the University.
Further it is also stated that election to the College Union should be deemed as nonpolitical in every sense of the term and there is nothing in the ballot paper to suggest or
indicate their affiliation to any particular student organization or political party. Placing
reliance on the objectives of the College Unions and Bye-laws of the Kerala University it is
stated that the College Unions are not envisaged for political activities. Registrar of the
Kannur University has stated that the University is giving strict instructions to Principals of
colleges and code of conduct is formulated according to which persons who are not in the
role of the College register should not be allowed to take part in the propaganda work in
the college campus without the prior sanction of the Principal. Students should desist from
disfiguring the classrooms, compound walls and buildings in the college campus by pasting
of posters or writing on the walls as part of their election campaign.
14. Registrar of Cochin University of Science and Technology has also filed counter
affidavit wherein it is stated that the smooth conduct of the academic and administrative
activities have to be ensured by preventing students from entering into - unlawful incidents,

riots and violence and that majority of the student problems in the campus emanate from
issues unrelated to politics but conflicting interests between students organizations like
SFI, KSU, AISF etc. Many of the students conflict and problems, it is pointed out, erupt
inside the campus are just spill over what happened outside the campus in which outside
anti-social elements are also usually involved. Counter affidavit has also been filed by the
Registrar of Sree Sankaracharya University stating that no outsider be brought to the
campus for organizational activities. Counter affidavits and reply affidavits have also been
filed by various other Institutions, Principals, lecturers and others.
15. The Principal Secretary to Government, Higher Education Department has also filed
detailed counter affidavit stating that the Government are not in favour of prohibiting
campus politics, but they are in favour of controlling elections on political basis and
modifying the election system to the parliamentary model. Government it is stated want to
maintain strict discipline in the campus and focus on academic activities. Political
awareness has to be allowed and strengthened and suitable programmes should be designed
to achieve the said objectives. It is stated that political activity shall not be allowed in the
campus and demonstrations, campaigning etc. in the campus. Further it was stated that no
meeting shall be held inside campus without the permission of the Principal. Banners,
flags, posters etc. should not be allowed inside the campus and at the gates and on the
compound walls except in cases allowed by the Principal. Further it is stated that no
outsider should be invited into the college by any group of students without the consent of
the Principal. Further it is stated that specific conditions of admission and the terms of code
of conduct for students shall be included in the college calendar or equivalent document
being given to the students. Various other measures have also been suggested by the State
Government.
16. The basic question that has come up for consideration in all these cases and the review
petitions filed in Sojan Francis's case is whether educational Institution or the Principal, as
the case may be, could lay down Code of Conduct by which they could prohibit activities
indulged in by various students organizations like SFI, AB VP, KSU etc. within the campus
and whether such prohibition would amount to violation of Article 19(1)(a) and 19(1)(c) of
the Constitution of India, so far as those students organizations and their member students
are concerned. Further question is whether the students organizations like SFI, ABVP etc.
could meddle with the fundamental rights guaranteed to the educational institutions under
Article 19(1)(g), Article 29 and Article 30 of the Constitution of India by extending those
organisational activities within the college campus owned and administered by the
Managements. The legality of prohibiting all sorts of strike, dharna, gheraos, hartal etc.
within the campus is also an issue to be decided.
17. We may at the outset point out that there is a misconception among the review
petitioners and certain others that this court in Sojan Francis's case has totally prohibited
the students from indulging in political activities so as to affect the fundamental rights

guaranteed under Article 19(1)(a) and 19(1)(c) of the Constitution of India. While
interpreting Clause 9 of the General Discipline in Sojan Francis's case, we held as follows:
"We are of the view, guideline (9) banning political activities within the campus and
forbidding the students from organizing or attending meetings other than the official ones
within the campus is not designed to prohibit any of the fundamental rights of the students
guaranteed under Article 19(1)(a) or 19(1)(c). It is not a total prohibition of any fundamental
right, but only a reasonable restriction confined to college campus and the code of conduct
cannot be flouted in the name of any other freedom or the rights guaranteed under
Article 19(1)(a) or 19(1)(c). Once students are admitted to an educational institution they are
bound by the code of conduct laid down by the educational institutions through the
prospectus or college calendar and it is implicit that they should observe the code of conduct
necessary for the proper administration and management of the Institution. Restrictions are
only reasonable and designed to promote discipline in the educational institution so that the
objectives of the educational institution could be achieved and wisdom of laying down those
restrictions cannot be challenged by the student after getting admitted to the educational
institution".
Clause 9 of the General Discipline framed by St. Thomas College, Palai was upheld after
laying down the above principle and declared that it was open to the educational
institutions to prohibit political activities within the college campus and forbid students
from organizing or attending meetings other than the "official ones" within the college
campus and such a restriction would not violate Article 19(1) (a) or (c) of the Constitution
of India. In that case Sojan Francis was a second year B.A. Degree student with Politics as
main and History and Economics as subsidiaries. He was College Union Member and
Editor of the College Magazine and Area Committee Member of the Students Federation of
India. Placing reliance on Ext.P3 newspaper report dated 6.3.2003 Sojan Francis stated that
the action of the Principal in not permitting him to write the examination was politically
motivated so as to curb the activities of SFI in the college campus. In the reply affidavit
filed in W.A.No. 535 of 2003 he stated being a candidate of the S.F.L during the time of
college election he lost a few attendance. It is also stated that being a S.F.I. Union member
he had participated only in strikes called by the Union, Statewide or on regional basis and
on those days all the students were on strike. The question whether the conduct of Sojan
Francis in such circumstances would fall under Clause 9 of the General Discipline was also
mooted before this court. Principal of the College justified the action since Sojan Francis
lacked attendance due to his involvement in political activities of the S.F.I.
18. The question is whether the organizations like SFI, ABVP, etc. could widen their
organisational activities within the campus, so as to disrupt the general discipline in the
campus. The Management and the Principals of the various educational institutions are not
against the students advocating any political philosophy or ideology or discuss the same in
the various forums ear-marked for them by the University laws like College Unions,

Students Council as part of their co-curricular activities, but not through the students
organizations like SFI, ABVP, etc. within the campus with whom the Management has no
legal relationship. Sojan Francis has however no grievance against the judgment and has
not filed any review petition, but the students organizations like SFI, ABVP, etc. have come
up with a grievance that those restrictions would affect their organizational activities within
the campus.
19. Educational institutions imparting higher education in the State of Kerala are
established and maintained by the State Government, Universities, Corporate Educational
Agencies, individual management etc. State of Kerala have enacted various legislations
like Kerala University Act, 1974, Mahatma Gandhi University Act, 1981, Calicut
University Act, 1975, Cochin University of Science and Technology Act, 1971, Kannur
University Act, 1996, Sree Sankaracharya University Act, 1994 for establishing teaching
residential and affiliating Universities for the State of Kerala. Statutes, Ordinances, Rules
and Regulations have also been framed under the various University Acts to be followed by
the Managements, students, teachers and non teaching staff etc.
20. The first legislation enacted in the State of Kerala is the Kerala University Act, 1974.
We may now refer to some of the provisions of the said Act, Statutes and Ordinances with
particular reference to rights of the management, principals and students. There are large
number of affiliated colleges in the State coming under the direct supervision and control
of the Universities. Affiliated colleges are maintained by the minority communities as well
who are entitled to protection under Article 30 of the Constitution of India. "Affiliated
college" is defined under Section 2(2) of the Kerala University Act to mean college
affiliated to the University in accordance with the provisions of the Act and Statutes in
which instruction is provided in accordance with the provisions of the Statutes, Ordinances
and Regulations. Educational Agency has been defined in Section 2(9) of the Act to mean
person or body of persons who or which establishes and maintains private college or more
than one private college. Government college is defined in Section 2(11) to mean a college
maintained by the Government and affiliated to the University. Principal has been defined
under Section 2(15) to mean Head of the college. Private college is defined in
Section 2(16) to mean college maintained by an educational agency other than the
Government or the University and affiliated to the University. Student has been defined in
Section 2(24) to mean a part-time or full-time student receiving instruction or carrying on
research in any of the colleges or recognised institutions. Students Council has been
defined in Section 2(25) to mean Students' Council of the University. Section 5 of the
Kerala University Act confers the University to supervise and control the residence and
discipline of students of the University, colleges and recognised institutions and to make
arrangements for promoting their health and general welfare and exercise such control over
the students as will ensure their physical and moral well being.

21. The University laws also authorise the constitution of a Board to entertain and if it
thinks fit to adjudicate and to redress any grievances of the students of colleges, who may
for any reason be aggrieved otherwise than by an act of the court. It also enables the
University to institute and provide funds wherever necessary for the maintenance of
Students' Advisory Bureau, Employment Bureau, University Union for Students,
University Athletic Clubs, National Cadet-Corps, National Service Corps, Students
Cultural and Debating Societies and co-operative societies and other similar institutions for
promoting the welfare of the students and employees of the University. Section 16 of the
Act deals with authorities of the University like, Senate, Syndicate, Academic Council,
Faculties, Boards of Studies, Students' Council, Finance Committee and such other boards
or bodies of the Universities as may be declared by the Statutes to be authorities of the
University. Section 17 of the Act deals with Senate which consists of Chancellor and
Officers of the University including Chairman of the University Union, ex officio
members, ten members elected by the members of the General Council of the University
Union. Students also would get representation in the Syndicate provided they got elected in
the Senate. Section 29 of the Act deals with Students Council. Chairman of the University
Union being an ex officio member of the Students Council, three members elected from
among the full time students of the Departments of the University are also ex officio
members of Students Council. Section 30 enumerates duties and powers of the Council.
Chapter VIII of the Act deals with private colleges and affiliation of-colleges. Chapter VIII
of the Kerala University First Statutes deals with Students' Council. Statute 17 deals with
powers of Students Council which enables them to supervise and coordinate the activities
of the different students associations, societies and other organizations. Various other
powers have also been conferred with the Students' Council.
22. We have gone through the various University Acts, Statutes and Ordinances dealing
with affiliated colleges, government colleges etc. University legislations confer
considerable powers to students to exercise their freedom of speech and expression and to
assemble peacefully in the various statutory bodies established under the University
Statutes. The University laws are highly democratic and it permits, organisational activities
within the campus, through recognised forums like Students Council. College Council.
University Senate. Syndicate. University Union. Cultural and Debating Solution. Students
Advisory Bureau etc. Students could ventilate their grievances and express their views on
any political issue as a co-curricular activity through these forums within the campus,
thereby the rights of the students have been effectively safeguarded by the University laws
and statutes. Apex court in University of Delhi v. Anand Vardhan
ChandalMANU/SC/0560/1998
: (2000) 10 SCC 648) held that right to education

is a fundamental right but to participate in the Students Union activities at best is only a
statutory right and not a fundamental right guaranteed under Articles 21, 19(1) (a) or (c) of

the Constitution of India. Students could exercise only those statutory rights permitted by
the University law's within the campus of the institutions.
23. The Kerala University Act. Statutes. Ordinances and other legislations governing the
affiliated colleges and the educational agencies or the State Government have not
recognised SFI. KSU. ABVP. AISF. NSC. MSF etc. Organizations like SFI. ABVP. KSU
etc, are separate legal entities and there is no legal relationship between them and the
Management of an educational institution or the State Government. They have no
fundamental or other statutory rights to carry on their organizational activities within the
premises of an educational institution established and administered by various Educational
Agencies in the State as well as by the State Government. Educational institutions are not
interfering with the organizational activities of these organizations. Fundamental rights
guaranteed to educational institutions under Article 19(1)(g) to administer their colleges
cannot be interfered with by SFI, ABVP, KSU, etc. through their organizational activities
directly or through member students and such interference is illegal and could be
prevented. Political parties with whom, it is alleged that, the students organizations have
got allegiance are governed by the Representation of People Act, 1951. Section 29A provides for registration of an association or a body as a political party with Election
Commission. Section 29A(5) obliges every political parties to respect the fundamental
right of the citizens embodied in Part III of the Constitution which means they have to
respect the fundamental right of the Management of an educational institution. Full Bench
of this court in Bharatkumar v. State of Kerala 1997 (2) KLT 287 MANU/KE/0062/1997
: 1997 (2) KLJ 1 has recognised this principle affirmed by the apex court in

Communist Party of India (M) v. Bharatkumar MANU/SC/0823/1998

: (1998) 1

S.C.C. 201 : 1997 (2) KLT 1007 .

24. The apex court in Railway Board representing the Union of India v. Niranjan
Singh MANU/SC/0507/1969
: (1969) 1 SCC 502) held that the exercise of

freedom under Article 19(1) (a), (b) and (c) will come to an end as soon as the right of
someone else to hold his property intervenes. The validity of that limitation is inherent in
the exercise of tests prescribed by Sub-articles (2) and (3) of Article 19. The court held that
the contents of the freedoms guaranteed under Clauses (a), (b) and (c) of Article 19 do not
include the right to exercise them in the properties belonging to others. The Apex Court in
L.I.C of India v. Prof Manubhai D Shah MANU/SC/0032/1993
: (1992) 3 SCC

637) held that every right has a corresponding duty or obligation and so has the
fundamental right of speech and expression. The freedom conferred by Article 19(1)(a) is
therefore not absolute, it carries with it certain responsibilities towards fellow citizens and
society at large. A citizen who exercise this right must remain conscious that the fellow
citizen too has a similar right and the right must be so exercised as not to come in direct
conflict with the right of another citizen. Students organizations like SFI, ABVP, etc. have
therefore no legal right to interfere with the fundamental rights guaranteed to managements
of various educational institutions in the State under Article 19(1)(g) of the Constitution.
25. Discipline is the bedrock on which an educational system is founded. In common
parlance, discipline may be a state of order maintained by training and control a particular
system of regulation or conduct, instructions and exercise, designed to train to proper
conduct or action. Jurisprudentially examined it brings forth something more. "Obedientia
est legis essentia" obedience is the guiding force to sustain the law, rule, regulation or
custom. Principal is charged with a duty, to maintain the discipline. University Laws
including Mahatma Gandhi University Statutes have given considerable powers to the
Principals of educational institutions to enforce discipline in the college. Educational
Institutions can lay down code of conduct and guidelines to be enforced by the Principal of
the educational institution. The apex court in M.H. Devendrappa v. Karnataka State Small
Industries Development Corporation, MANU/SC/0132/1998
: (1998) 3 SCC 732),

while considering the scope of Rule 22 of the Service Rules held that a proper balancing of
interests of an individual as a citizen and the right of the State to frame code of conduct for
its employees in the interest of proper functioning of the State is required. Rules which are
directly linked to and are essential for proper discharge of duties of a public office would
be protected under Article 19(1)(g) of the Constitution in public interest. Reference may
also be made to the decision in P. Balakoliah v. Union of India (MANU/SC/0119/1957
: AIR 1958 S.C.232) and Kameshwar Prasad v. State of Bihar

(MANU/SC/0410/1962

: AIR 1962 S.C. 1166).

26. Statute 20 of Chapter 24 of the Kerala University First Statutes, 1977 states that every
college shall have duly constituted College Council properly representing the teaching staff
to advise the Principal in the internal affairs of the college. Statute 21 prescribes that in
every college the Principal shall be the Head of the college and shall be responsible for the
internal management and administration of the college. This unenviable position of the
Principal of the educational institution is recognised and reiterated by this court in several
decisions. But for the Principals vital and vibrant presence within the educational campus

no effective administration would be possible in an educational institution. Around the

Principal wheels the tone and temper of the institution, on him depends the continuity of its
traditions, the maintenance of discipline and the efficiency of its teaching, as stated by the
Full Bench of this court in Rt.Rev.Aldo Maria Patroni v. E.C. Kesavan and Ors. 1964
K.L.T. 791. Reference may also be made to the decision of this court in Thampan v.
Principal, Medical College 1979 K.L.T. 45 Unni Raja v. Principal, Medical College ILR
(1983) Ker 754 Hira Nath Mishra v. Principal, Medical College (MANU/SC/0044/1973
: AIR 1973 S.C. 1260). The Apex Court in Maharashtra State Board of Secondary

and Higher Secondary Education v. K.S. Gandhi and Ors., MANU/SC/0583/1991

: (1991) 2 SCC 716), held that teacher occupies pride of place next below the parents as he
or she imparts education and discipline in the students. On a proper balancing of individual
freedom of the citizen and proper functioning of an institution, the institution is entitled to
lay down their own code of conduct and the Principal of the educational institution has got
a duty and obligation to enforce the code of conduct laid down and has got the power to do
so and it is the legal obligation of the University authorities and the State Government to
give him all support to enforce discipline in the educational institution.
27. Principal, teaching faculty and the Managements while imparting education is
discharging a public duty and are regulated by rules and regulations of affiliating
Universities. Code of conduct laid down by various educational institutions includes
banning of strike, dharna, gherao etc. in the college campus violation of which would entail
disciplinary action against the students. State Government and the Universities in the
counter affidavit have stated that because of the strike, dharna, demonstration, agitation,
gherao etc. within the campus by students organizations like SFI, ABVP, KSU etc. and the
students in general several academic days have been lost and necessary measures are to be
taken to curb those activities. Collective bargaining, strike, go slow, dharna, agitation,
gherao, absenteeism etc. were alien to academic domain. Unfortunately now a days those
tendencies are on the rise and unless curbed it will engulf the entire system. The
relationship between teachers and students is solemn and sacred and the relationship is not
that of master and servant or employer and employee. Strike, dharnas, gherao, go slow and
absenteeism are weapons used by the labour force for establishing their demands under the
labour laws and they are not academic tools to be used against the teaching faculty or
against the management to vindicate the rights of the students. Such modes of bargaining
power is foreign to the relationship between teachers and students and the students and the
managements. University Statutes do not contemplate such modes of redressal though the
word "strike" finds it statutory expression under Section 2(q) of I.D. Act. University
Statutes enables constitution of Boards to redress the grievances of the students. Strikes,
gherao, dharna, bandh, etc. within the campus are illegal and do not have the support by

any law and could be prevented failing which disciplinary action could be taken against the
students.
28. The Apex Court in Ex.Capt. Harish Uppal v. Union of India MANU/SC/1141/2002
: (2003) 2 SCC 45 : 2003 (1) KLT 192 (SC) examined the rights of lawyers to

strike work and held that lawyers have no right to go on strike or give a call for boycott,
not even on a token strike and held them personally liable. Similar view was taken by the
apex court while dealing with bandh in Communist Party of India (M) v. Bharat
Kumar MANU/SC/0823/1998
: (1998) 1 SCC 201) (supra) : 1997 (2) KLT 1007

(SC) . So also in Rangarajan v. Government of Tamil NaduMANU/SC/0541/2003

: 2003 (3) KLT 86 where the Apex Court after following the earlier decisions held that
there is no fundamental right to go on strike by the government employees. Situation of the
students is worse since they are engaged in academic pursuit in an educational institution
governed by rules and regulations. We have therefore no hesitation to hold that students are
bound by the code of conduct laid down by the educational institutions in which they are
studying and the code of conduct banning strikes, bandhs, hartals, gheraros etc. in the
college campus is binding on them and could be enforced. Grievances of the students can
be redressed by the grievance forum to be established under the University Laws and
through other legal processes known to law.
29. Counsel on either side has argued at length on the meaning of the expression,
"politics", "political activism" and "political activities", placing reliance on various
authoritative text books and contended that students have got the freedom to indulge in
various political activities. The term "politics" was first used by Aristotle and called it as
"master of science". The word "politics" is derived from the Greek word polis meaning a
city. City was the State for Greeks and the subject that dealt with the City-State and its
problems was designated Politics. Some eminent political scientists like ' Harold Laski,
R.H. Solatu, Karl Deutsch and many others prefer the term Politics for the subject matter of
study. The term Politics has acquired a new meaning in the context of advancement of late
made in the "discipline of political science". Jouvenal Bertrand de Pure Theory of Politics
explains that political activity is the urge in the human person to control and dominate and
direct the wills of other individuals, which may assume many forms, but is manifest,
wherever men enter into group life, as they must. Lasswell and Kaplan in Power and
Society define "politics" as an imperial discipline on the study of the shaping and sharing
of power and as a political as, one performed in power prospectives. A judgment of the
Supreme Court of Pakisthan in M. Ismail Qureshi v. M. Awais Qasim 1993 S.C.M.R.

1781 was cited at the bar wherein the court held that those who "indulge in politics" in the
educational institutions being a very small minority violate several fundamental rights of a
vast majority of the students, their parents and guardians, besides of those who are
otherwise directly or indirectly linked or connected therewith. The court even directed that
at the time of admission to an educational institution, the student and his parents/guardian
shall give an undertaking that the student shall not "indulge in politics"; failing which, he
shall not be allowed admission. The court noticed that the dignity of the teachers, the
institution and the majority of students community has been severely adversely affected,
besides infringement of several other fundamental rights including those relating to
movement, expression, speech, freedom of assembly and above all the dignity of the
teachers and a large majority of the students gets violated in one or the other set of
circumstances.
30. We need not labour much on the meaning of the word "politics", "political activities" or
"political activism". The Managements have taken up a clear stand what is bothering them
and the teaching faculty is the interference of students organizations like SFI, ABVP, KSU,
etc. within the campus directly and through member students and also the constant strike,
dharna, gherao etc. indulged in by the students within the campus. Students can, according
to them, voice their opinion on any political issue in the various forums ear marked to them
under the University Statutes, but not through the organizations which have not been
recognised either by University Statutes, State Government or by the educational
institutions.
31. The Principal Secretary, Education, Government of Kerala in the counter affidavit has
suggested various measures to maintain discipline in the educational institutions in the
State. In sub para 3 of para 7 of the counter affidavit filed by the State Government it is
stated that political activity shall not be allowed in the campus and demonstration,
campaign, rioting etc. shall not be allowed. Further it is also stated no banners, flags,
posters etc. should be allowed inside the campus. Sub para (11) of para 7 it is stated that
specific conditions of admission and terms of a code of conduct shall be included in the
college calendar and an undertaking be obtained from the students and parents. The
Principal Secretary to Education Department also stated in the counter affidavit that the
Government would implement those measures based on the directions of this court.
Measures suggested by the State Government are to be welcomed while upholding the
right of the Managements to stall organizational activities of students organizations like
SFI, ABVP, KSU etc. directly or through their member students within the campus. Strike,
dharna, gherao etc. indulged in by the students within the campus can also be prevented
and State Government and the Universities have got a legal obligation to protect the rights
of not only the Management, Principal and the teaching faculty of the affiliating colleges
but also that of Government owned colleges and educational institutions and to take
appropriate measures to enforce those rights. In the decision of the Apex Court in Haripal

Singh v. Devinder Singh MANU/SC/0762/1997

: (1997) 6 SCC 660), Thomas, J.

in his inimitable style has highlighted the bane of campus politics which resulted in the
death of a student studying in the final year M.A. Economics. Measures suggested by the
State Government, in our view, would strengthen the Managements and Principals to
enforce the discipline.
32. We are therefore inclined to give a direction to the State Government and to all the
Universities in the State of Kerala to lay down appropriate rules and regulations in the light
of the declarations made by us before the commencement of the next academic year
relating to all the colleges including Government owned and affiliated colleges which will
be binding on all the students studying in those institutions. Rights of the private
Managements and the educational agencies in prohibiting the interference of students
organizations like SFI, ABVP, KSU etc. within the campus either directly or through their
member-students and also the prohibition of strike, gherao, dharna, bandh, hartal etc.
within the campus are also upheld. Review petitions are accordingly dismissed and the writ
petitions are disposed of as above. We make it clear we have not determined the rights of
the teacher vis-a-vis the Management in Sojan Francis's case, and the observations, if any,
made would be obiter.