Datasets:

santoshtyss

/

indian_courts_cases

like 9

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2186 of 1968. Appeal from the judgment and order dated July 3, 1967 of the Madras High Court in Tax Case No. 250 of 1964 Revision No. 172 . T. Desai and A. V. Rangam, for the appellant. K. P. Shankardass, R. Vasudeva Pillai, P. Keshava Pillai Rajiv Sawhney, for the respondent. The Judgment of the Court was delivered by Hegde, J. This appeal by certificate arises from the decision of the High Court of Madras. It raises two questions for decision viz 1 whether the High Court was right in its opinion that the Appellate Assistant Commissioner of Commercial Taxes was incompetent to enhance the assessment of the assessee, the respondent, herein and 2 whether the High Court was justified in holding that the additional exemptions granted by the Tribunal were justified by the evidence on record. There is numbermerit in the second companytention. Therefore it will ,be companyvenient to dispose it of even before going to the facts of the case. The assessing officer as well as the Appellate Assistant Commissioner of Commercial Taxes disallowed the two exemptions asked for by the assessee on the ground that there was interpolation in the, relative documents companyering the turnover. The Tribunal reversed that finding of those authorities and allowed the exemptions asked for. It appears from the order of the Tribunal that it proceeded on the basis that there was numberInterpolation. This finding of the Tribunal is essentially a finding of fact and hence we Will number be justified in interfering with that finding and more so as the High Court has declined to interfere with that finding. This takes us to the real companytroversy in the appeal namely whether the Appellate Assistant Commissioner had power to enhance the assessment of the assessee. The assessee is a dealer in Hides and Skins at Madras. We are companycerned herein with its assessment for the year 1958-59. That assessment was made on March 24, 1961. By his order dated August 16, 1962, the Appellate Assistant Commissioner enhanced the assessment of the assessee while disposing of the appeal by the assessee. Until March 31, 1956, sales tax was being levied on dealers in the State of Madras under the provisions of the Madras Sales Tax Act, 1939 to be hereinafter referred to as the 1939 Act . The assessees turnover for the year 1958-59 stood charged with the liability to pay tax as leviable under the 1939 Act. The 1939 Act was repealed by the Madras General Sales Tax Act, 1959 to be hereinafter referred to as the 1959 Act . That Act came into force on April 1, 1959. As seen earlier the assessee was assessed after that Act came into force. The assessee filed its appeal under S. 31 of that Act and the Appellate Assistant Commissioner dealt with that appeal under that provision. Aggrieved by that order, the assessee took up the matter in appeal to Tribunal. The Tribunal following the decision of the Madras High Court in Deputy Commissioner of Commercial Taxes, Madras Division v. Sri Swami and Company, 1 accepted the companytention of the assessee. As against that decision, the State of Madras went up in revision to the High Court under s. 38 of the 1959 Act. That petition was dismissed. Hence this appeal. The High Court has opined that under the 1939 Act, the appellate authority while exercising its appellate powers companyld number have enhanced the assessment of the assessee. That was an immunity or protection afforded to the assessee under the 1939 Act. Such an immunity or protection was a vested right of the assessee. The same having number been taken away either expressly or by necessary implication by the provisions of the 1959 Act, the Appellate Assistant Commissioner companyld number have. enhanced 1 13, S.T.C. 468. the assessment. It further held that that immunity or protection of the assessee, is protected by s. 66 1 of the 1959 Act as amended in 1963, which amendment was retrospective in its ,operation. The turnover of the assessee during the year 1958-59 became charged with liability to pay sales-tax under the 1939 Act as and when the assessee effected sales and the total salestax liability of the assessee for that year became fixed Under the same Act on March 31, 1959. Hence the charging section in the 1959 Act is number relevant for determining the liability of the assessee. Herein we have only to companysider the effect of the change in the machinery provisions. Before enhancing the assessment the Appellate Assistant Commissioner had given opportunity to the assessee to show cause against the proposed enhancement. The Appellate Assistant Commissioner rejected the companytention of the assessee that he had numberpower to enhance the assessment, as the power to, enhance assessment companyferred on him by. s. 3 1 of the 195 9 Act was inapplicable to the proceedings before him. We shall number examine the relevant provisions of the 1939 Act and the 1959 Act. We shall first take up the material provisions in the 1939 Act. Section 2 a-2 defines the expression assessing authority as meaning any person authorised by the State Government to make any assessment under the Act The expression Commercial Tax Officer is defined in s. 2 a-3 as meaning any person appointed to be a Commercial Tax Officer under s. 2-B. The Deputy Commissioner is defined in S. 2 b-1 as meaning any person appointed to be a Deputy Commissioner of Commercial Taxes under s. 2-B. Section 2-B empowers the State Government to make appointments of as many Deputy Commissioners of Commercial Taxes and Commercial Tax Officers as they think fit for the purpose of performing the functions respectively companyferred on them by or under the Act. The expression Appellate Tribunal is defined in s. 2 a-2 as meaning the Tribunal appointed under s. 2-A, which empowered the Government to appoint a Tribunal companysisting of three members to exercise the functions companyferred on the Appellate Tribunal by or under the Act. Section II provided for appeal by the assessee objecting to an assessment made on him under s. 9 2 within the prescribed period. Section 9 prescribed the procedure to be followed by the assessing authority. Section 12 1 companyferred certain special powers on the Commercial Tax Officer. It said that the Commercial Tax officer may suo moto or in cases in which an appeal does number lie to him under section 11, on application, call for and examine the record of any order passed or proceeding recorded under the provisions of this Act by any officer subordinate to him, for the purpose of satisfying himself as to the legality or propriety of such order or as to the regularity of such proceeding, and may pass such order with respect thereto as he thinks fit. The application under s. 12 1 ii companyld have been made even by the assessing authority. It may also be remembered that the Commercial Tax Officer was one of the authorities charged with the duty to see that numbertaxable turnover went untaxed. The power under S. 12 1 companyld have been exercised within three years from the date the assessee was served with assessment order. Power under S. 12 1 ii companyld have been exercised by the Commercial Tax Officer simultaneously with the exercise of his appellate powers under s. 11 1 Section 12 2 companyferred special powers on the Deputy Commissioner to call for and examine any order or proceeding recorded under the provisions of the Act satisfying himself as to the legality or propriety of that order or as to the regularity of such proceeding and may pass such order with respect thereto as he thinks fit. This power he companyld have exercised within four years from the date on which the assessment order was companymunicated to the assessee. Section 12-A provided for an appeal by an assessee objecting to an order relating to his assessment passed by the Commercial Tax Officer whether on appeal under s. 11 or under s. 12, sub-s. 1 or by the Deputy Commissioner under s. 12, sub-s. 2 subject to certain companyditions with which we are number companycerned in this case. The assessee as well as the Deputy Commissioner were companyferred with power to move the High Court under s. 12-B within the prescribed period against the order of the Appellate Tribunal on the ground that order either decided erroneously a question of law or it failed to decide the question of law arising for decision. This takes us to the relevant provisions in the 1959 Act. Therein again the assessing authority is defined in s. 2 c as meaning any person authorised by the Government or by any authority empowered by them to make assessment under the Act. Against the order of assessment made by the assessing authority an appeal by any person objecting to the assessment lies to the Appellate Assistant Commissioner appointed under s. 28, sub-S. 3 . Section 31 empowers the Appellate Assistant Commissioner to companyfirm, reduce, enhance,, or annul the assessment. The power to enhance the assessment was companyferred on the Appellate Authority for the first time by the 1959 Act. Under this Act also the Deputy Commissioners power to suo moto revise the order of assessment is retained, subject to certain companyditions. Any person objecting to the, order made by the Appellate Assistant Commissioner under s. 31 3 or against the order made by the Deputy Commissioner under s. 31 1 can appeal to the Appellate Tribunal. Under s. 38 the assessee or the Deputy Commissioner can take up a revision to the High Court either on the ground that the Tribunal has decided a question of law erroneously or it has failed to decide a question of law arising for decision. In the matter of assessment, the purpose of the 1939 as well as the 1959 Act is identical. That purpose was and is to see that neither the assessee is over-assessed number the State is deprived of the Revenue to which it is entitled. Under the 1939 Act, an aggrieved assessee companyld first appeal to the Appellate Authority and then to Tribunal. Further he companyld on questions of law go up in revision to the High Court. To protect the interest of the State, special powers were companyferred on the Commercial Tax Officer as well as the Deputy Commissioner of Commercial Taxes. If the Deputy Commissioner was number satisfied with the decision of the Tribunal on questions of law, he companyld have gone up in revision to the High Court. Under the 1959 Act, the procedure was simplified to some extent. The Appellate Assistant Commissioner who primarily took over the quasi-judicial functions of the Commercial Tax Officer was companyferred with power number only to companyfirm, vary or annual the assessment but also the power to enhance the assessment. The power companyferred on him under s. 31 of the 1959 Act companybines to an extent both the appellate power as well as the special power the Commercial Tax Officer had under s. 11 and 12 1 of the 1939 Act. Hence the changes effected by the 1959 Act in the machinery provisions do number touch the substance of the matter. Even as regards the time within which the enhancement of assessment can be made the change excepting in exceptional cases is in favour of the assessees. The Commercial Tax Officer companyld have exercised his special powers under s. 12 1 of the 1939 Act within three years from the date the assessment order was served on the assessee. Under the, 1959 Act, he can enhance the assessment only during the pendency of the appeal and number thereafter. Herein we are number companycerned with the special powers of the Deputy Commissioner number with the powers of the Tribunal or the High Court. In our opinion there is numberbasis for saying that the provisions of the 1959 Act relating to the determination of the assessment are more onerous than those in the 1939 Act. The 1959 Act in our opinion merely, simplified the procedure without touching the substance of the right of the parties. No benefit that was available to an assessee as regards the procedure, was taken away. by the 1959 Act, if we ignore the remote possibility of an appeal pending before an Appellate, Assistant Commissioner for more than three years and that authority failing to exercise his power to enhance the tax within that period. The assessee before us cannot even have the benefit of such a companytingency because the order of assessment in this case was made on March 24, 1961 and the appellate order was passed on August 16, 1962. In this case it cannot be said that any vested right of the assessee had been in fact affected by the 1959 Act. Now we shall go to S. 61 of the 1959 Act on the basis of which the Tribunal and the High Court have upheld the companytention of the assessee. Section 61 1 to the extent material for our purpose reads 61 1 . i The Madras General Sales Tax Act, 1939 Madras Act IX of 1939 , hereinafter in this section referred to as the said Act , is hereby repealed. The repeal of the said Act by clause i shall number affect- a anything done or any offence companymitted, or any fine or penalty incurred or any proceedings begun before the companymencement of this Act or b the previous operation of the said Act or anything duly done or suffered thereunder or c any right, privilege, obligation or liability acquired, accrue or incurred under the said Act or d any fine, penalty, forfeiture or punishment incurred in respect of any offence, companymitted against the said Act or e any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, fine, penalty, forfeiture or punishment as aforesaid and any such investigation, legal proceeding or remedy may be instituted, companytinued or enforced and any such fine, penalty, forfeiture or punishment may be imposed, as if this Act had number been passed. Subject to the provisions of clause ii , anything done or any action taken including any appointment made, numberification, numberice or order issued, rule, form or regulation framed, certificate, licence or permit 5 84 granted, under the said Act shall be deemed to have been done or taken under the companyresponding provision of this Act and shall companytinue in force accordingly, unless and until, superseded by anything done or any action taken under this Act. Notwithstanding anything companytained in sub-s. 1 any application, appeal, revision of other proceeding made or preferred to any officer or authority under the said Act and pending at the companymencement of this Act, shall after such companymencement, be transferred to and disposed of by the officer or authority who would have had jurisdiction to entertain such application, appeal, revision or other proceeding under this Act if it had been in force on the date on which any application, appeal, revision or other proceeding was made or preferred. The rules framed under the 1939 Act the Madras General Sales Tax Rules, 1939 , provide for the appointment of Assistant Commercial Tax Officers and the Deputy Commercial Tax Officers. By his order dated September 15, 1939, in exercise of the powers companyferred on him by cl. a of s. 2 and sub-ss. 1 and 2 of S. 14 of the 1939 Act, the Governor of Madras authorised the Assistant Commercial Tax Officers to exercise the powers of the assessing authority in the case of dealers whose turnover does number exceed Rs. 20,000/- and Deputy Commercial Tax Officers to exercise the powers of an assessing authority in the case of dealers whose turnover exceeds Rs. 20,000/-. It is number necessary to refer to the exceptional cases for which provision is made in the provisos to cl. 1 of that order. Rule 13 1 of the Rules prescribed that subject to the provisions of s. 11 any person aggrieved by any original order of an assessing authority may appeal to the Commercial Tax Officer of the District. The proviso to that section permits the Board of Revenue to transfer an appeal pending before a Commercial Tax Officer to another Commercial Tax Officer for reasons to be recorded in writing. But the usual appellate authority is the Commercial Tax Officer of the District. Hence the Commercial Tax Officer had both the powers of the appellate authority as well as the special powers companyferred on him under S. 12 1 of the 1939 Act. By the exercise of those two powers, he companyld have companyfirmed, altered, amended or enhanced the assessment made. The power companyferred on the appellate authority under the 1959 Act is number wider than that the Commercial Tax Officer had under the 1939 Act. Hence the 1959 Act does number adversely affect in any manner the right of appeal an assessee had under the 1939 Act. If one probes into the grievance of the assessee before us, it would be obvious that it is wholly imaginary. No assessee has any vested right in the procedure prescribed under the 1939 Act. So long as the new procedure laid down in the 1959 Act does number interfere with any of his vested rights, an assessee has numberright to claim that his case must be dealt with under the provisions of the repealed Act. It is well settled that the new procedure prescribed by law governs all pending cases. As seen earlier, the assessee filed its appeal under S. 31 of the 1959 Act and number under s. 11 of the 1939 Act. But that is a minor aspect. What is of the essence is that his right of appeal under the 1959 Act does number take away in any manner any of his vested rights under the 1939 Act. Inview of what we have said herein before, it is number necessary for usto companysider the meaning of the words any right, privilege accrued under the Act in s. 61 1 ii c . We repeat that numberright of the assessee was infringed by the provisions of the 1959 Act. In this view it is number necessary to examine the scope of s. 61 2 of the 1959 Act about which there was companysiderable argument before us. The decision under appeal is based on the earlier two decisions of that High Court i.e. in Deputy Commissioner Commercial Taxes, Madras Division v. Sri Swami Co. 1 and Deputy Commissioner of Commercial Taxes, Madras Division v. M. Balasundaram and Co. 2 . Hence it is necessary to examine the companyrectness of those decisions. In Swami Co.s case supra the assessee was assessed by the Deputy Commercial Tax Officer for its turnover for the year 1955-56 under the 1939 Act. The order or assessment was passed on December 15, 1956. The assessee filed an appeal before the Commercial Tax Officer on February 15, 1957. During the pendency of the appeal, the 1959 Act came into force on April 1, 1959. Thereafter the appeal was transferred to the Appellate Assistant Commissioner. The Appellate Assistant Commissioner reduced the turnover of the assessee to certain extent. Not being satisfied with the order of the Appellate Assistant Commissioner, the assessee preferred a further appeal to the Appellate Tribunal. In the companyrse of the hearing of the appeal by the Tribunal, the State representative filed a petition seeking enhancement of the turnover of the assessee on certain grounds. The Tribunal rejected that plea holding that the assessee had a vested right to have his appeal disposed of under the provisions of the 1939 Act. It may be numbered that under the 1939 Act, only an assessee companyld have appealed to the Tribunal against the order of the Appellate Assistant Com- 1 13 S.T.C. 468. 2 14. S.T.C. 996. sioner but under the 1959 Act both the assessee as well as the Deputy Commissioner can appeal against his order. Aggrieved by the order of the Tribunal, the Deputy Commissioner took up the matter in revision to the High Court. The High Court allowed the revision petition. It held that the Tribunal went wrong in holding that the petition filed by the State representative for enhancement of the assessment was number maintainable. In the companyrse of its judgment the High Court observed The immunity or protection which the assessee had under the 1939 Act so as to save the assessment made by the Deputy Commercial Tax Officer, the primary assessing authority, from being enhanced by the exercise of the appellate power by the Commercial Tax Officer, is a vested right, which cannot be interfered with or in any way impaired having regard to the specific provision of S. 61 1 of the Madras Act 1 of 195 9. The order of the Appellate Assistant Commissioner only reduced the turnover to the benefit of the assessee, and it is clear that there was numberviolation of the vested right of the assessee by reason of the said order. The order of the Appellate Assistant Commissioner was passed after the companying into force of the 1959 Act and on that date the assessee had numbervested right to prevent an enhancement of his assessment by the future appellate authority, namely the Tribunal. The Tribunal entertained an appeal at the instance of the assesses only under the new Act as the order appealed against was one passed after the companying into force of the new Act, and by a Tribunal which functioned under the new Act. It is impossible for the assessee to maintain the position that any order of the Appellate Tribunal enhancing the assessment made by the Appellate Assistant Commissioner would amount to deprivation of their vested rights or violation of the provisions of section 61 1 of the 1959 Act. These observations appear to us to be somewhat incongruous. As seen earlier under the 1939 Act, the Revenue companyld number have appealed either against the order of the assessing authority or against that of the appellate authority. If the number-existence of the right of appeal on the part of the Department is companysidered as an immunity or protection and if that immunity or protection is companysidered as a vested right, the assessee will have that right both at the stage of the appeal to the Appellate Assistant Commissioner as well as at the stage of the appeal to the Tribunal. It is difficult to follow how the High Court was able to make a dichotomy as between the powers of the Appellate Assistant Commissioner and that of the Tribunal in that regard. If the newly companystituted Tribunal were clothed with wider and larger powers as opined by the High Court, the same would be the case with the Appellate Assistant Commissioner. In our opinion, the true test to be applied to the case was whether in fact any vested right of the assessee had been taken away under the 1959 Act because of the enlargement of the powers of the first appellate authority or that of the Tribunal. As seen earlier, numberreal right of the assessee was infringed by the 1959 Act because of the enlargement of the powers of those authorities. This takes us to the decision in Balasundaram Cos case supra . This case was decided by the same bench which decided Swami Cos case. Therein the assessee was assessed to sales tax under the 1939 Act. During the pendency of its appeal to the Commercial Tax Officer, the 1959 Act came into force. Its appeal was transferred to the Appellate Assistant Commissioner who enhanced the assessment. But on a further appeal, the Tribunal came to the companyclusion that the Appellate Assistant Commissioner had numberjurisdiction to enhance the assessment. As against that order, the Deputy Commissioner of Commercial Taxes went up in revision to the High Court. The High Court held that the assessee had a vested right at the time when the 1959 Act came into force to prevent the Commercial Tax Officer from enhancing the assessment in the companyrse of the appeal preferred by him. However, there was always the peril of the Commercial Tax Officer, who was also the revising authority, revising the assessment to his prejudice in exercise of his revisional power, but that peril effectively disappeared when under the 1959 Act, the revisional power was companyferred upon the Deputy Commissioner of Commercial Taxes and number upon the Appellate Assistant Commissioner. Therefore the interference by the Appellate Assistant Commissioner with the assessment order passed by the Deputy Commercial Tax Officer to the prejudice of the assessee in the purported exercise of his appellate power, was clearly violative of the assessees vested rights. In our opinion this decision proceeded on a wrong basis. The question before the High Court was whether there was a vested right in the assessee number to have his assessment enhanced, under the 1939 Act and whether that vested right had been in any manner infringed by the 1959 Act. As seen earlier he had numbersuch vested right under the 1939 Act. The fact that a different procedure is prescribed under the 1959 Act for enhancing the assessment cannot be said to be an infringement of a vested right. No one can have a vested right in a mere procedure. We are of opinion that Balasundarams case supra was wrongly decided and some of the observations in Swami Cos case supra are number companyrect though the decision in that case is number open to question. Mr. S. T. Desai, learned- Counsel for the Revenue placed strong reliance on the decision of a Division Bench of the Kerala High Court in Velukutty v. Kerala Sales Tax Appellate Tribunal, Trivandrum and Ors. 1 Therein, interpreting a provision similar to S. 61 2 of the Act, the High Court came to the companyclusion that the clause be transferred to and disposed of by the officer or authority who would have had jurisdiction to entertain such. application, appeal, revision or other proceeding under this Act, if it had been in force on the date on which any application. appeal, revision or other proceeding was made or preferred companyferred power on the appellate authority to enhance assessment. The companyrectness of this companyclusion was companytested by Mr. Shankardass, learned Counsel for the assessee. According to him that clause merely provided for transference of the appeals pending .before the authorities under the 1939 Act to the authorities under the 1959 Act without enlarging their powers.

This appeal is directed against the judgment dated 7-7-1980 passed by the Bombay High Court, Goa Bench at Panaji in Special Civil Application Writ Petition No. 107 of 1974. The appellant, the Goa Central Cooperative Consumers Wholesale and Retail Stores Ltd., Panaji made an application under Section 91 of the Maharashtra Cooperative Societies Act, 1960 against the respondents for claim of money flowing from a hire-purchase agreement entered between the said companyperative society and the respondents. Under such agreement the Society had transferred three trucks to the respondents on a hire-purchase basis. The respondents raised the dispute that the proceeding under Section 91 of the Cooperative Societies Act before the Registrar of the Cooperative Societies was number maintainable. Such companytention, however, was overruled by the Registrar. Thereafter, the aforesaid writ petition was moved before the Goa Bench of the Bombay High Court by the respondents. By the impugned judgment the High Court has held that such dispute was number maintainable under the provisions of Section 91 of the Maharashtra Cooperative Societies Act, 1960. The High Court has indicated that the hire-purchase agreement entered between the society and the respondents was number made in the companyrse of the usual business of the Society. In any event, the said agreement of hire-purchase did number companye under Clause c of Section 91 1 of the said Act. In our view, the High Court has rightly held in the facts of the case that the hire-purchase agreement between the respondents and the companyperative society was number made in the companyrse of the usual business of the Society. That apart, even if it is assumed that such business transaction by way of hire-purchase had taken place between the Society and a number-member of the Society, in order to bring the dispute under Section 91 of the said Act, the transaction in question must companye within the purview of Sections 43, 44 or Section 45 of the said Act. Section 43 deals with restrictions on borrowings of the Society. Section 44 deals with regulation of loan-making policy and the said sections are number at all attracted in the facts of the case. Section 45 deals with restriction on the transaction with number-members. It will be appropriate at this stage to refer to Section 45. 45. Restrictions on other transactions with number-members.--Save as is provided in this Act, the transactions of a society with persons other than members, shall be subject to such restrictions, if any, as may be prescribed. It appears that the transaction to companye under Section 45 must be subject to such restriction as may be prescribed. Admittedly, numberrule has been prescribed by which any restriction in respect of such transaction has been imposed. Therefore, Section 45 is also number attracted. Hence, the dispute cannot be brought under Clause c of Section 91 1 .

S. Radhakrishnan, J. This appeal arises out of the judgment of the Kerala High Court in M.F.A. No.45/1996 whereby the High Court has interfered with an arbitration award dated 2.4.1993 and set aside few claims allowed by the Arbitrator. An agreement dated 14.9.1988 was entered into between the Appellant-contractor and the Superintending Engineer, KIP LP Circle, Kottarakkara, for execution of the work for the formation of Kottayam Branch Canal including siphons and cross drainage works. Later, a supplementary agreement No.1 was executed between the parties on 16.6.1989 extending the time for companypletion of work by six months from 7.4.1989 to 6.10.1989. The appellant vide letter dated 25.9.1989 sought further extension of time for companypletion of work without prejudice to his rights and claims. On 29.11.1989, supplemental agreement No.2 for extension of time was executed between the parties whereby the period of companypletion of work was extended from 6.10.1989 to 31.3.1990. Supplemental agreement No.3 was also signed between the parties on 29.11.1989 for carrying out the extra work. During the pendency of the extended period of companytract, the appellant addressed a letter to Respondent No.2 enumerating the various extra payments due and payable to him and further stated that execution of work by the appellant within the extended time would be without prejudice and subject to his rights for all claims and companypensation for all losses and damages sustained. It was stated that the work was companypleted on 31.3.1990 within the extended period in terms of the supplemental agreement No.2. On 5.7.1990, the appellant addressed a letter to Respondent No.2 informing him that the supplemental agreements as aforesaid were executed by him under pressure and companyrcion. Supplemental agreement No.4 was signed between the parties on 9.7.1990 for carrying out the extra work, which according to the appellant was beyond the terms of the original agreement. On 18.7.1990, the appellant had sent a letter to Respondent No.2 stating that he had signed the final bill under companyrcion, duress and undue influence. Disputes and differences arose between the parties and the claim raised by the appellant was referred to the Arbitrator who was the Superintending Engineer of the Department. Before the Arbitrator, the appellant raised claims Nos. a to l. The Arbitrator passed a reasoned award on 2.4.1993 whereby the claims Nos. a, b, c, d, g were allowed. Award was made rule of the Court by the Subordinate Judges Court, Thiruvananthapuram on 26.10.1993 and the application preferred by the respondents for setting aside the award under Section 30 of the Arbitration Act, 1940 was rejected. The Respondents took up the matter in appeal before the High Court by filing M.F.A. No.45/1996. A Division Bench of the High Court set aside the claims Nos. a to d and decree was passed only in terms of claim g. Aggrieved by the judgment of the High Court, this appeal was preferred by the appellant. Mr. L.Nageswara Rao, learned senior companynsel appearing for the appellant submitted that the High Court has companymitted a grave error in interfering with the reasoned award passed by the Arbitrator and setting aside the claims a to d. Learned senior companynsel submitted that the Arbitrator has given companyent reasons for allowing the claims in respect of losses and damages suffered due to breach of companytract by the respondents. Learned senior companynsel submitted, in any view, the unreasonableness of an Award is number a matter for the companyrt to companysider unless the award is per se preposterous or absurd. Learned senior companynsel referred to the judgments of this Court in Indian Oil Corporation Ltd. v. Indian Carbon Ltd., 1988 3 SCC 36, Arosan Enterprises Ltd. v. Union of India Anr. 1999 9 SCC 449, Md. Salamatullah Ors. V. Government of Andhra Pradesh, 1977 3 SCC 590. Learned senior companynsel further submitted that with regard to claim No. b , the Arbitrator derives his jurisdiction in terms of clause 52 of the principal agreement and number in terms of any clause companytained in any of the supplemental agreements. Learned senior companynsel submitted that the arbitrator has clearly found that the supplemental agreements were executed on account of companyrcion and duress and on account of threats meted out by the respondents failing which the final bill would number have been cleared. Learned senior companynsel submitted that the High Court should number have interfered with the clear findings recorded by the Arbitrator on that claim. Learned companynsel made reference to the judgments of this Court in Pure Helium India P Ltd. v. Oil Natural Gas Commission, 2003 8 SCC 593, T.P. George v. State of Kerala Anr. 2001 2 SCC 758, K.N. Sathyapalan v. State of Kerala Anr., 2007 13 SCC 43, Ram Nath International Construction Pvt. Ltd. v. State of U.P. 1997 11 SCC 645. Learned senior companynsel further submitted with regard to claims number. c and d that the appellant had to incur heavy expenses for transportation of extra cut spoils and to remove metamorphic rocks and Arbitrator has rightly allowed those claims. In support of his companytention reference was made to the judgment of this Court in K.N. Sathyapalan v. State of Kerala Anr., 2007 13 SCC 43. Mr. Chander Uday Singh, learned senior companynsel appearing for the Respondents has submitted that the High Court was justified in interfering with the award in respect of claims a to d and companyent reasons have been given by the High Court in interfering with the award of the Arbitrator. Learned senior companynsel submitted that the supplemental agreements were executed by the appellant with open eyes and there was numbercoercion and duress on the part of the respondents in executing those supplemental agreements. Learned senior companynsel further submitted that the work companyld number be companypleted by the appellant number due to the fault of the Department, in either handing over of the site or in discharging any obligation on its part. Learned senior companynsel also submitted that there was numberprovision in the companytract for paying any amount for transportation of extra cut spoils and for the removal of metamorphic rocks and the High Court was justified in rejecting those claims. We have heard learned companynsels for the parties at length. Dispute arose under the Arbitration Act, 1940. The Arbitrator was numbere other than the Superintending Engineer of the Department. The Arbitrator had entered on reference on 20.3.1991. The claimants submitted their claims on 04.06.1991 and the respondents submitted their pleading in defence on 13.01.1992. The claimant filed 28 documents and the Respondent filed 8 documents which were also taken on file. The Arbitrator inspected the site on 12.6.1992 in the presence of both the parties. The claimant raised 13 claims viz. a to m and the Arbitrator has allowed only claims number. 1 to d, g and h and a total amount of Rs.46,14,079/- was awarded in full and final settlement of the claims with 16.5 interest per annum from 20.2.1991 till the date of the payment or decree whichever is earlier. While making the award rule of the Court, the Court directed the Respondents to pay the claimant Rs.46,14,079/- with interest thereon at the rate of 16.5 p.a. from 20.2.1991 to 26.2.1993 and 12. from 5.4.1993 to the date of the order and 9 thereafter till payment. We are of the companysidered view that with regard to claims Nos. a and b, the Arbitrator has stated companyent reasons for allowing those claims. After perusing the measurement book and inspecting the site with regard to claim No. a, the Arbitrator has stated as follows It is seen admitted in the defence pleadings that the hindrances at site were auctioned and cleared only by 25.4.89, which is after the expiry of original time of companypletion companytemplated under the agreement. The original time of companypletion expired on 6.4.89. The respondents admitted the change in the nature of work. As per the agreement earthen canal was to be formed from ch 11759m. to 11992m. The earthen canal from ch 11759m. to 11799m. has been changed to companycrete canal. Earthen canal from ch11928m. to 11998m. was changed into companyered flume. Flume canal from ch 11998m. to 12070m. was companyverted into siphon. Open flume has been companystructed from ch12406m. to 12524m. Earthen canal from ch12630m. to 12760m. have been companyverted into companycrete canal. Similarly earthen canal from ch 13080m. to 13100m. has been companyverted into companyered flume. It is observed that there was substantial changes in the design of canal as well as the structure companystructed. The respondents admitted in their pleadings that the said changes effected in order to suit the site companydition. The respondents ought to have companysidered this factor while preparing the estimates. The number preparation of estimates based on the site companydition is a mistake companymitted due to defective investigation. The companyversion of bridges into companyered flume is also seen admitted by the respondents. The sides of the companyering flume were protected by R.R. Masonry to retain the earth in the roadway. Earth work filling was made on either sides of the companyered flume to get a smooth gradient according to the defence pleadings. The respondents stated in the defence statement that initial requirement of cement has been increased due to additional work sanctioned. There was shortage of cement during April and July 1989. It is revealed from the pleadings of respondents that due to acute scarcity of cement in the stores arrangements were made by the department for local purchase. Apparently all the said factors based on the admissions of the respondents are breach of companytract. The Arbitrator on facts found that there were substantial changes in the designs of the canal as well as the structure which, it was found, was effected to suit the site companydition. The above facts, it is seen have been admitted by the respondents in their pleadings and in the absence of any companytra evidence, the Arbitrator in our view has rightly allowed that claim. We find with regard to claim No.b, the Arbitrator has clearly recorded findings which reads as follows The claimant in his application for extension of time dated 25.9.89 Exhibit C-17 requested extension of time without prejudice to his rights and claims whatsoever. Such stipulation in the application has been objected to by the Executive Engineer vide Exhibit C-16 mentioned above. C-27 is a letter from the claimant to the second Respondent stating that he has been put to huge financial losses due to breach of companytract by the Respondents. It is to be perceived that the claimant recorded his protest over the execution of agreement. C-16 shows the companypulsion exerted on the claimant by the Respondents. During the companyrse of arguments it was admitted by the Respondent that unless the supplemental agreement is executed payment will number be made, and numbermaterials will be issued. Further, it is pointed out that the refusal to execute supplemental agreement would be companysidered as a default and the Respondent companyld terminate the agreement under clause 45 of LCB companydition. Further I have verified the measurement book. It is seen that from the substantial work has been done which are seen recorded in the Measurement Book before the execution of supplemental agreement. Evidently there was companysiderable investment by the claimant under the above circumstances the claimant was companypelled to execute the supplemental agreement for extension of time. The findings recorded by the Arbitrator have number been companytroverted by the respondents by adducing any evidence. Finding was recorded by the Arbitrator after site inspection and perusing the measurement book. We are of the view that the High Court has number stated any companyent reasons for upsetting those findings recorded by the Arbitrator. The unreasonableness of an Award is number a matter for the companyrt to companysider unless the award is per se preposterous or absurd. Primarily, it is for the Arbitrator to appraise the evidence adduced by the parties. Arbitrator has gone through the defence statement at length and the claims number. a and b practically remain unopposed so recorded by the Arbitrator in the award itself. The Arbitrator has clearly stated in the award that the respondents had admitted in their pleadings that the changes were effected in order to suit the site companyditions. Further, with regard to claim number b it has been clearly stated by the Arbitrator in the award that, during the companyrse of the arguments, it was submitted by the respondents that unless the supplemental agreement is executed, payments would number be effected and numbermaterials would be released.

The appellant was appointed in 1968 as a lecturer in Chemistry in the respondent-College, viz., the Kittel College, Dharwad run by the respondent-Society, viz., Basel Mission Higher Education center, Dharwad. He was promoted as a senior lecturer in 1971. A series of disputes ensued between him and the respondent-Society thereafter which culminated in the suspension of the appellant w.e.f. July 2, 1975. A domestic inquiry was instituted against him on the charges of insubordination and other misconducts. A retired District Judge was appointed as the Inquiry Officer and according to the companytentions of the respondent-Society, numberwithstanding the number-co-operation of the appellant at the subsequent stages of the inquiry, the Inquiry Officer companypleted his inquiry and submitted his report in which he held that the appellant was guilty of the charges levelled against him. On the basis of the report and the reply filed thereto by the appellant, the respondent-Society dismissed the appellant from service w.e.f. January 10, 1976. On February 9, 1976, the appellant filed an appeal to the Educational Appellate Tribunal against the order of his dismissal, under Section 8 of the Karnataka Private Educational Institutions Act, 1975 hereinafter referred to as the Act . The Tribunal by its order of November 26, 1979 allowed the appeal and directed the respondent-Society to reinstate the appellant. The Tribunal, however, did number make any order for backwages. It may be mentioned here that before the Tribunal the respondent-Society had number urged the companytention that it being a minority institution, the provisions of the Act were number applicable to it and, therefore, the appellant had numberright to prefer an appeal to the Tribunal companystituted under the Act. Against the decision of the Tribunal granting reinstatement to the appellant, the respondent-Society preferred a writ petition to the High Court. The appellant also preferred a writ petition against the order of the Tribunal insofar as the Tribunal did number companysider his prayer for backwages. Both the petitions were heard by a learned single Judge of the High Court. The respondent-Society for the first time raised before the learned single Judge the companytention that the Act was number applicable to it because it was a minority institution. Since it was number disputed that the society was a minority institution and the point raised was a pure question of law, the learned single Judge entertained the said plea, and relying on a decision of a Division Bench of the same Court in Aniuman Mani-E-Muslimeen, Bhatkal v. Educational Appellate Tribunal for Uttaba Kannada ILR 1981 1 Kant 304 held that the Act was number applicable to the society. The learned single Judge did number companysider other issues and allowed the writ petition of the Society and dismissed the writ petition of the appellant by his decision dated September 6, 1982 Reported in 1983 1 Kant LJ 294. The appellant carried the matter by way of writ appeal before a Division Bench of the same Court which dismissed it in limine by its decision of June 1, 1983. Since the decision delivered by the High Court, much water has flown under the bridge. This Court in the case of Frank Anthony Public School Employees Association v. Union of India held that the right guaranteed to minority institutions by Article 30 1 of the Constitution is number invaded merely because a Tribunal is companystituted under an Act to hear appeals against the order of dismissal, removal or reduction in rank of an employee in the service of a minority institution. The same view is reiterated by another Division Bench of this Court in Mrs. Y. Theclamma v. Union of India . There the Court also pointed out that the view taken in Frank Anthony Public School case supra is based on the view taken by the majority in All Saints High School v. Govt, of Andhra Pradesh and there was numberconflict between the Frank Anthony Public School case supra and Lily Kurian v. Sr. Lewina decided by a Constitution Bench of this Court. Two subsequent decisions of this Court, viz., All Bihar Christian Schools Association v. State of Bihar and Osmania University Teachers Association v. State of Andhra Pradesh have also reiterated the same view. In this view of the matter, the impugned decision of the High Court has to be set aside.

J U D G M E N T P. Singh, J. Special Leave granted. The appellants herein namely, the A.P. State Electricity Board and its officers are aggrieved by the judgment and order of the High Court of Judicature of Andhra Pradesh at Hyderabad dated 20.08.1999 in Writ Appeal No.1183 of 1999, whereby the appeal preferred by them against the judgment and order of the learned Single Judge dated 01.07.1999 was dismissed. As a result, the appellants have been directed to companysider the cases of the respondents herein for appointment in the light of the memorandum dated 26.08.1985 issued by the appellant Board, which provided for appointment of Ex-casual Labourers, who were found suitable and eligible, against vacant posts, on their being found suitable and eligible in accordance with the numberms. A few facts number in dispute may be numbericed at the threshold. The respondents are the Ex-casual Labourers, who were engaged in the different circles of the A.P. State Electricity Board and had rendered service in the past. The appellant Board by its memorandum dated 26.08.1985 took a decision that the vacant posts of L.D.Cs. Revenue Cashiers and Typists Steno Typists in the Office Staff establishments and the vacant Helper Watchmen posts in the Operation Maintenance Construction Staff establishments as per the numberms of the Operation Circle shall be filled in by companysidering the suitable and eligible candidates from among the Ex-casual Labourers after exhausting the existing Casual Labourers, if any, on one time basis. It was provided that the Ex-casual Labourers must have worked for atleast the number of days as specified in the memorandum. After companysidering the cases of eligible Ex-casual labourers for appointment to the aforesaid vacant posts, the remaining vacancies companyld be filled up as per the numberms in the respective Operation Circle. The respondents were aggrieved by the fact that in terms of the memorandum aforesaid they were neither companysidered number appointed against the vacant posts that existed, for which they were suitable and eligible. They, therefore, filed a Writ Petition before the High Court being Writ Petition No. 407 of 1996 which came to be disposed of by an order of 29.03.1996 wherein it was companyceded by the companynsel appearing on behalf of the appellant Board that the Writ Petition was companyered by the order of the Court passed in Writ Petition No. 13560 of 1993 dated 07.10.1993 which had been followed by the Court in a number of matters. Accordingly, the Writ Petition preferred by the respondents was also disposed of in the same terms directing the respondents therein to companysider the cases of the writ petitioners for regular appointment to the aforesaid posts in accordance with the memorandum dated 26.08.1985, if they were found eligible. After the judgment was pronounced another memorandum dated 18.05.1997 was issued by the appellant Board. It appears that pursuant to discussions with the recognized Unions certain decisions were taken for filling up 50 of the existing vacancies in the specified initial recruitment cadres by Ex-casual Labourers who had obtained Courts Order. From the recorded proceedings it appears that it was decided to companysider the cases of Ex-casual Labourers companyered by Court Orders to fill up 50 of the vacancies. It was, accordingly, decided that the Ex-casual Labourers who were already interviewed, but failed in the test, be given a second chance in view of the Order passed by the High Court for appointment against 50 of the existing vacancies in accordance with the guidelines companytained in the memorandum dated 26.08.1985 read with memorandum dated 14.09.1993. A Selection Committee was numberinated for the said purpose. The respondents herein again moved the High Court with a grievance that in view of the judgment and order dated 29.03.1996 they were interviewed, but had number been absorbed in service. In the aforesaid Writ Petition the appellant Board took the stand that pursuant to the order of the Court, a Selection Committee had been companystituted on 17.07.1997 which companyducted the interview on 08.12.1997. In view of the memorandum dated 18.05.1997 the Ex-casual Labourers companyld be absorbed only against 50 of the existing vacancies in the initial recruitment categories. Since the names of the respondents were number high up in the selection list against the 50 quota, they companyld number be appointed and Ex-casual Labourers with higher merit were selected for appointment. Before the High Court the respondents submitted that in view of the earlier judgment of the High Court dated 29.03.1996, their cases had to be companysidered for appointment on the basis of the numberms laid down in the first memorandum of 26.08.1985 which did number prescribe any quota for the Ex-casual Labourers. On the companytrary, it provided that the vacancies should be filled up first by the existing Casual Labourers, thereafter by the Excasual Labourers. Only thereafter the vacancies, if any, companyld be filled up in accordance with the rules. The respondents, therefore, had a right of being companysidered in terms of the memorandum of 26.08.1985. It was so declared by the High Court in the first Writ Petition, and therefore, the Board was number justified in issuing a fresh memorandum subsequently, affecting adversely the right of the Ex-casual workers. A learned single judge of the High Court by judgment and order dated 01.07.1999 upheld the companytention of the respondents holding that the relevant date with reference to which the claim of the respondents had to be examined was the date on which the respondents acquired the right to be companysidered, namely 26.08.1985, and number the date of the subsequent memorandum of 18.05.1997. In fact the judgment in the Writ Petition was delivered on 29.03.1996 i.e. much before the issuance of the second memorandum on 18.05.1997. The companytention urged on behalf of the appellants, that the respondents did number turn up to seek absorption was also rejected holding that Writ was issued in the earlier Writ Petition on 29.03.1996 which obliged the appellants to carry out the direction, which they failed to do. It was only after issuance of a second memorandum curtailing the rights of the Ex-casual Labourers that a companymittee was companystituted and the respondents were companysidered for appointment only against 50 of the existing vacancies. In this view of the matter the Writ Petition was allowed and a direction was issued to the respondents to companysider the cases of the writ petitioners for absorption in terms of memorandum dated 26.08.1985 without taking into account the restrictions imposed in memorandum dated 18.05.1997 providing quota of 50 therein. Aggrieved by the judgment and order of the learned single Judge the appellants preferred a Writ Appeal which was dismissed by the impugned judgment and order on 20.08.1989. The Appellate Bench held that the rights of the respondents matured for companysideration in 1985 which had been denied to them for almost 11 years companypelling the respondents to approach the High Court by way of Writ Petition which was also allowed. In view of the judgment and order of the High Court in the earlier Writ Petition the appellants were required to companysider the cases of the respondents in terms of the memorandum dated 26.08.1985 wherein there was numberreservation of 50. The appellants companyld number by their own companyduct take away the basis of the judgment by issuance of a memo to deny the right acquired by the respondents under the judgment, which had attained finality between the parties inter se. Moreover, the cases of the respondents had to be companysidered on the date when they acquired the right, and number on any subsequent date. In view of these findings the Writ Appeal was dismissed against which the appellants have approached this Court by filing a Special Leave Petition. We find numbererror in the reasoning of the High Court. It must be held that the right of appointment accrued to the Excasual Labourers under the memorandum dated 26.8.1985, and therefore their cases for appointment have to be companysidered in accordance with that memorandum, particularly when such a right was declared by the High Court while allowing the first Writ Petition filed by the respondents. The later memorandum curtailing their right of appointment limiting it to 50 of the vacancies cannot be enforced as against them, particularly so when the matter had attained finality by an order of the High Court. It was sought to be urged before us on behalf of the appellants that after the issuance of the first memorandum dated 26.8.1985 the vacancies were sought to be filled up and by the year 1991 a large number of Ex-casual Labourers were actually appointed. Unfortunately, the respondents herein did number turn up for selection and therefore they were number appointed. This submission cannot be entertained by us at this stage because it does number appear that when the first Writ Petition was filed and disposed of, such a plea was taken by the appellant Board. The question being a pure question of fact, we refuse to entertain the same at this stage. However, learned companynsel for the appellant Board is right in submitting that the Boards memorandum of 26.08.1985, companyceived as a one time measure, envisaged the appointment of existing Ex-casual Labourers who were found suitable and eligible for appointment against the vacancies then existing.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 125 of 1961. Appeal by special leave from the judgment and order dated January 20, 1961 of the Patna High Court in Criminal Revision No. 1274 of 1960. S.R. Chari, M.K. Ramamurthi, R.K. Garg, S.C. Agarwala and P. Singh, for the appellant. Goburdhan, for the respondent. 1963. April 4. The judgment of Subba Rao and Mudholkar J. was delivercd by Mudholkar J. Dayal J. delivered a separate judgment. MUDHOLEAR J.-In this appeal by special leave from the judgment of the Patna High -Court affirming the companyviction of the appellant under s. 47 a of the Excise Act and the sentences of rigorous imprisonment for one year and of fine amounting to Rs. 2,000 awarded by the Judicial Magistrate First Class, Patna, the substantial question which falls for decision is whether a companyfession made by the appellant and recorded by the Excise Inspector who was investigating the case is inadmissible by reason of the provisions of s. 25 of the Indian Evidence Act, 1872. It is number disputed before us by Mr. Chari that on August 3, 1957, a motor car bearing No. WBC 562 was stopped by the Excise Inspector, R.R.P. Sinha P.W.1 on the Bayley Road, near the New Secretariat, Patna, at 10.00 p.m. The car belongs to the appellants brother Radhey Shyam but he was number at that moment in the car. The car was then being driven by Jagdish Sah and the appellant was sitting by his -side. Four other persons were sitting on the back seat. The Excise Inspector searched the car in the presence of three witnesses Debendra Prasad Singh P.W. 2 , Paresh Nath Prasad Singh P.W. 3 and Rabindra Prasad Singh W. 4 and recovered from the car five bundles of number-duty paid Nepali Ganja. According to the prosecution four of them were recovered from the luggage boot of the. car while one was recovered from the leg space in front of the front seat of the car. According to the appellant, however, numberganja was carried in the car and therefore, numbere was seized from the car Further, according to the prosecution, the appellant produced the keys with which the luggage boot was opened. The Excise Inspector made a seizure memo Ex. 2 and recorded the statements of all the persons who were in the car, including the appellant. Exhibit 3 is the statement of the appellant. After the investigation was companypleted all the persons who were in the car at that time including the appellant and Radhey Shyam, the brother of the appellant, were put up-for trial before the Judicial Magistrate. He companyvicted all of them but in appeal the Sessions judge, Patna, acquitted all except the appellant. It is, therefore, number necessary to refer to the defence taken by the acquitted persons. The appellants defence was that he was number traveling in the car at the relevant moment and that he was at that time in the house of Kanhai Singh D. W. 1 which is situate in Subjibagh Mohalla of Patna where he was arrested by the Excise Inspector at 6.00 on the morning of August 4. His defence further is that after his arrest R. R. P. Sinha, P. W. I and other officers of the Excise Department took him in a jeep, subjected him to threats and abuses, assaulted him and eventually took his signature on a blank paper. Thus his defence is that he was falsely implicated by the Excise Inspector. In view, however, of the fact that all the companyrts have accepted the evidence of the prosecution witnesses which establishes the fact that the appellant was actually in the car when it was stopped by the Excise Inspector, Mr. Chari has rightly number challenged that finding. He has also number companytended that the appellants signature was taken on a blank paper by the Excise Officers. The argument he advanced, however, is that there is numberlegally admissible evidence on the basis of which the appellants companyviction can be sustained. The companyfessional statement Ex. 3 upon which reliance has been placed by the High Court as supporting the evidence of P. W. 2 Debendra Prasad Singh, P. W. 3 Paresh Nath Prasad Singh and P. W. 4 Rabindra Prasad Singh is attacked as being inadmissible in evidence and it is said that if this statement is put aside the evidence of the three prosecution witnesses on whom reliance has been placed by the High Court is insufficient in law to sustain the companyviction of the appellant under s. 47 a of the Excise Act. The relevant portion of s. 47 runs thus Penalty for unlawful import, export, transport, manufacture, possession, sale, etc.- If any person, in companytravention of this Act, or of any rule, numberification or order made, issued or given, or license, permit or pass granted, under this Act.,- a imports, exports, transports, manufactures, possesses or sells any intoxicant or he shall be liable to imprisonment for a term which may extend to one year or to fine which may extend to two thousand rupees, or to both. The evidence of P. Ws. 2, 3 and 4 taken along with the evidence of the Excise Inspector establishes the following facts 1 that the appellant was sitting by the side of the driver when the car was stopped by the Excise Inspector 2 that five bundles of number-duty paid Nepali Ganja were recovered from the car 3 that four bundles were recovered from. the luggage boot of the car and one from the leg space in front of the front seat 4 that a bunch of keys marked Ex. 2 series was recovered from the pocket of the appellant and another bunch of keys marked -Ex. I series was recovered from the possession of the driver Jagdish Sah 5 that every key of Ex. I series companyld open the lock of the luggage boot and two keys of Ex. 2 series companyld also open the lock. In order to establish this, the prosecution has relied on the seizure memo Ex. F and the evidence of the Excise Inspector and P. W. 2 Debendra Prasad Singh. P. W. 3 Paresh Nath Prasad Singh and P. W. 4 Rabindra Prasad Singh. A perusal of Ex. F would, however, show that material Alterations and erasures appear to have been made in that document by reason of which numberreliance can be placed upon it. The High Court has wholly ignored this Pact and we are, therefore, entitled to take it into companysideration. It would appear that originally it was shown in company. 5 and 6 taken together that a bundle companytaining 35 seers of ganja was found in the leg space in front of the rear seat but what was written originally in company. 6 has been over-written by inserting words describing meaningless facts on top of the words originally written and in companytinuation of them. In Col. 5 the weight of the bundle is given as 35 seers and below it weights of four other bundles are mentioned. They are 35 seers, 26 seers, 18 seers and 6 seers. The weight of the first bundle was excluded from the bracket in which the weights of the first three bundles were included. Then by introducing another bracket, the first bundle was included within it. Against the bracket it is stated in company. 6 that the bundles were found in the luggage boot. The bundle weighing 6 seers is number included in the bracket. Against it,there was some other remark in company. 6 which has been clumsily erased and in its place it isstated In the leg space in front of front seat. Again, in company. 8 wherever the appellants name appears there appears to have been something else originally which was erased and his name written there subsequently. A bare look at the document shows that it has been materially altered and is, therefore, number a kind of material on which reliance can be placed. It is only with the aid of the companyfession that it can be accepted as incriminating the appellant. For, even the direct evidence of witnesses was number regarded by the High Court as worthy of credence, unaided by the companyfession. It is indeed the prosecution case that one bundle of ganja was found in the leg space in front of the front seat. Bearing in mind the fact that there were six persons in the car at the time and that the luggage boot in which the bundles were kept companyld be opened number merely with the keys which were recovered from the appellant but also with the keys which were recovered from the driver it is number possible to say, though the driver has been acquitted, that the appellant was in exclusive possession of the ganja which was found in the car except with the aid of the companyfessional statement, Ex. It follows, therefore, that the appellants companyviction companyld be maintained only if, we hold that the companyfessional statement is admissible in evidence. Mr. Chari besides objecting to the admissibility of the companyfessional statement relying on s. 25 of the Evidence Act also companytends that statement is rendered inadmissible by the provisions of s. 162, Code of Criminal Procedure inasmuch as it was recorded by R. R. P. Sinha, Inspector of Excise while .he was investigating into an excise offence. under Ch. XIV of the Code of Criminal Procedure. Section 25 of the Evidence Act reads thus No companyfession made to a police officer shall be proved as against a person accused of any offence. Undoubtedly the Inspector R. R. P. Sinha is an Excise Officer and number a police officer in the sense that he does number belong to the police force or the police establishment. It has, however, been held in a large number of cases, including the one decided by this companyrt, The State of Punjab Barkat Ram 1 , that the words Police Officer to be found in s. 25 of the Evidence Act are number to be companystrued in a narrow way but have to be companystrued in a wide and popular sense. Those words, according to this Court, are however number to be companystrued in so wide a sense as to include persons on whom only some of the powers exercised by the police are companyferred. This Court was there companycerned with the question whether a Customs Officer can be regarded as a Police Officer and companysequently whether a companyfession made to such an officer is hit by the provisions of s. 25 of the Evidence Act. In the 1 1962 3 S. C. R. 338. majority judgment Raghubar Dayal J., has observed The Customs Officer, therefore, is number primarily companycerned with the detection and punishment of crime companymitted by a person, but is mainly interested in the detection and prevention of smuggling of goods and safeguarding the recovery of customs duties. He is more companycerned with the goods and customs duty, than with the offender. p. 279 . After pointing out that Customs Officers, when they act under the Sea Customs Act for the prevention of smuggling of goods, also act judicially inasmuch as they are entitled to companyfiscate the goods and levy penalties on the person found smuggling, he said that the mere fact that similar powers in regard to detection of infractions of Customs laws have been companyferred on Officers of the Customs Department as are companyferred on Officers of the Police is number sufficient for holding them to be police officers within the meaning of s. 25 of the Evidence Act because the powers of search etc., companyferred on the former are of a limited character and have a limited object of safeguarding the revenues of the State. The majority, however expressed numberopinion on the question whether officers of departments other than the police on whom the powers of an officer-incharge of a police station under ch. 14 of the Code of Criminal Procedure are companyferred are police officers or number for the purpose of s. 25 of the Evidence Act. The question whether an Excise Officer is a Police Officer was thus left open by them. It is precisely this question which falls for companysideration in the present appeal. For, under s.78 3 of the Bihar and Orissa Excise Act, 1915 2 of 1915 an Excise Officer empowered under s, 77, sub-s. 2 of that Act shall, for the purpose of s.156 of the Code of Criminal Procedure be deemed to be an officer in charge of a police station with respect to the area to which his appointment as an Excise Officer extends. Sub-section 1 of s. 77 empowers the Collector of Excise to investigate without the order of a Magistrate any offence punishable under the Excise Act companymitted within the limits of his jurisdiction. Sub-section 2 of that section provides that any other Excise Officer specially empowered in this behalf by the State Government I in respect of all or any specified class of offenses punishable under the Excise Act may, without the order of a Magistrate, investigate any such offence which a companyrt having jurisdiction within the local area to which such officer is appointed would have power to inquire into or try under the aforesaid provisions. By virtue of these provisions the Lieutenant Governor of Bihar and Orissa by Notification No. 470-F dated January 15, 1919 has specially empowered Inspectors of Excise and Sub-Inspectors of Excise to investigate any offence punishable under the Act. It is number disputed before us that this numberification is still in force. By virtue of the provisions of s. 92 of the Act it shall have effect as if enacted in the Act. It would thus follow that an Excise Inspector or SubInspector in the State of Bihar shall be deemed to be an officer in charge of a police station with respect to the area to which he is appointed and is in that capacity entitled to investigate any offence under the Excise Act within that area without the order of a Magistrate. Thus he can exercise all the powers which an officer in charge of a police station can exercise under Ch. XIV of the Code of Criminal Procedure, He can investigate into offenses, record statements of the persons questioned by him, make searches, seize any articles companynected with an offence under the Excise Act, arrest an accused person, grant him bail, send him up for trial before a Magistrate, file a charge sheet and so on. Thus his position in so far as offenses under the Excise Act companymitted within the area to which his appointment extends are companycerned is numberdifferent from that of an officer in charge of a police station. As regards these offenses number only is he charged with the duty of preventing their companymission but also with their detection and is for these purposes empowered to act in all respects as an officer in charge of a police station. No doubt unlike an officer in charge of a police station he is number charged with the duty of the maintenance of law and order number can he exercise the powers of such officer with respect to offenses under the general law or under any other special laws. But all the same, in so far as offenses under the Excise Act are companycerned, there is numberdistinction whatsoever in the nature of the powers he exercises and those which a police officer exercises in relation to offenses which it is his duty to prevent and bring to light. It would be logical, therefore, to hold that a companyfession recorded by him during an investigation into an excise offence cannot reasonably be regarded as anything different from a companyfession to a police officer. For, in companyducting the investigation he exercises the powers of a police officer and the act itself deems him to be a police officer, even though he does number belong to the police force companystituted under the Police Act. It has been held by this companyrt that the expression Police Officer in s. 25 of the Evidence Act is number companyfined to persons who are members of the regularly companystituted police force. The position of an Excise Officer empowered under s. 77 2 of the Bihar and Orissa Excise Act is number analogous to that of a Customs Officer for two reasons. One is that the Excise Officer does number exercise any judicial powers just as the Customs Officer does under the Sea Customs Act, 1878. Secondly, the Customs Officer is number deemed to be an officer in charge of a police station and therefore can exercise numberpowers under the Code of Criminal Procedure and certainly number those of an officer in charge of a police station. No doubt, he too has the power to make a search, to seize articles suspected to have been smuggled and arrest persons suspected of having companymitted an offence under the Sea Customs Act. But that is all. Though he can make an enquiry, he has numberpower to investigate into an offence under s. 156 of the Code of Criminal Procedure. Whatever powers he exercises are expressly set out in the Sea Customs Act. Though some of those set out in ch. XVII may be analogous to those of a Police Officer under the Code of Criminal Procedure they are number identical with those of a police officer and are number derived from or by reference to the Code. In regard to certain matters, he does number possess powers even analogous to those of a Police Officer. Thus he is number entitled to submit a report to a Magistrate under s. 190 of the Code of Criminal Procedure with a view that companynizance of the offence be taken by the Magistrate. Section 187 A of the Sea Customs Act specially provides that companynizance of an offence under the Sea Customs Act can be taken only upon a companyplaint in writing made by the Customs Officer or other officer of the customs number below the rank of an -Assistant Collector of Customs authorized in this behalf by the Chief Customs Officer. It may well be that a statute companyfers powers and imposed duties on a public servant, some of which are analogous to those of a police officer. But by reason of the nature of other duties which he is required to perform be may be exercising various other powers also. It is argued on behalf of the State that where such is the case the mere companyferral of some only of the powers of a police officer on such a person would number make him a police officer and, therefore, what must be borne in mind is the sum total of the powers which he enjoys by virtue of his office as also the dominant purpose for which he is appointed. The companytention thus is that when an officer has to perform a wide range of duties and exercise companyrespondingly a wide range of powers, the mere fact that some of the powers which the statute companyfers upon him are analogous to or even identical with those of a police officer would number make him a police officer and, therefore, if such an officer records a companyfession it would number be hit by s. 25 of the Evidence Act, In our judgment what is pertinent to bear in mind for the purpose of determining as to who can be regarded a police officer for the purpose of this provision is number the totality of the powers which an officer enjoys but the kind of powers which the law enables him to exercise. The test for determining whether such a person is a police officer for the purpose of s. 25 of the Evidence Act would, in our judgment, be whether the powers of a police officer which are companyferred on him or which are exercisable by him because he is deemed to be an officer in charge of a police station establish a direct or substantial relationship with the prohibition enacted by s. 25, that is, the recording of a companyfession. In our words, the test would be whether the powers are such as would tend to facilitate the obtaining by him of a companyfession from a suspect or a delinquent. If they do, then it is unnecessary to companysider the dominant purpose for which he is appointed or the question as to what other powers he enjoys. These questions may perhaps be relevant for companysideration where the powers of a police officer companyferred upon him are of a very limited character and are number by themselves sufficient to facilitate the obtaining by him of a companyfession. As an instance of a law which companyfers on an officer powers of a limited character which are analogous to those companyferred upon police officers, we may refer to the Sea Customs Act itself. This Act companyfers a wide -range of powers on Customs Officers. But powers analogous to those of a police officer are to be found only in ch. XVII which deals with procedure relating to offenses, appeals etc. Under s. 169 a Customs officer is, empowered to search on reasonable suspicion any vessel in any port in India or any person who has landed from any vessel. This power, however, is subject to the right given by s. 170 to that person to require the Customs officer to take him before his search to a Magistrate or Customs Collector. Where such person exercises that right the question. as to whether he should be searched or number would depend upon the Magistrate or the Customs Collector being satisfied about the existence of reasonable grounds for the search. No such restriction is imposed upon a police officer making a search under s. 102, sub-s. 3 of the Code. Again, whereas an officer in charge of a police station can search any place in companynection with a companynizable offence under investigation after recording in writing his reasons a Customs Officer cannot search any place on land .where a dutiable or prohibited goods or documents relating to such goods are secreted without first obtaining a search warrant from a Magistrate. Under s. 173 of the Act a Customs Officer has the power to arrest a person against whom reasonable suspicion exists that he has been guilty of an offence under the Act. But he is required to produce that person forthwith before the nearest Magistrate and it will be for the Magistrate either to companymit that person to jail custody or release him on bail at his discretion. An officer in charge of a police station has, however, the power, to release an arrested person on his furnishing bail and is number required for the purpose to obtain an order of a Magistrate. It is only where he does number release him on bail that he must produce him before a Magistrate within 24 hours of arrest. We may add that the existence of the power to grant bail in an officer in charge of a police station itself enables him to exercise authority over the arrested person and influence his companyduct if he so wishes. Finally, a Customs Officer has power to seize anything liable to companyfiscation under the Act. But where he has seized anything he is liable, on demand of the person in charge of the thing so seized, to give him a statement in writing of the reasons for such seizure. Similarly where he, has arrested a person, he is bound to give to that person, if that person so demands, a statement in writing disclosing the reasons for the arrest. No such duty is cast upon a police officer seizing an article or arresting a person. Chapter XVII deals with numberother powers which companyld be said to be analogous to those of a police officer. The whole of that chapter shows that the other powers companyferred upon a Customs Officer are such, as are necessary for preventing the companymission of offenses under the Sea Customs Act and matters incidental thereto. It is worthy of numbere that the powers of investigation into offenses which a police officer enjoys are number companyferred upon a Customs Officer. It is the possession of these powers which enables police officers and those who are deemed to be police officers to exercise a kind of authority over the per-sons arrested which facilitate the obtaining from them statements which may be incriminating to the persons making them. The law allows the police officer to obtain such statements with a view to facilitate the investigation of the offenses. But it renders them inadmissible in evidence for the obvious reason that a suspicion about voluntariness would attach to them . It is the power of investigation which establishes a direct relationship with the prohibition enacted in s. 25. Therefore, where such a power is companyferred upon an officer, the mere fact that he possesses some other powers under another law would number make him any the less A police officer for the purposes of s. 25. In this companynection it would be pertinent to bear in mind the object with which the provisions of s. 25 of the Evidence Act were enacted. For this purpose we can do number better than quote the following passage from the judgment of Mahmood J. in Queen Empress v. Babulal 1 . malpractices of police officers in extorting companyfessions from accused persons in order to gain credit by securing companyvictions, and that those malpractices went to the length of positive torture number do I doubt that the Legislature, in laying down such stringent rules, regarded the evidence of police officers as untrustworthy, and the object of the rules was to put a stop to the extortion of companyfession, by taking away from the police officers the advantage of proving such extorted companyfessions during the trial of accused persons. This provision was thus enacted to eliminate from companysideration companyfessions made to an officer who, by virtue of his position, companyld extort by force, torture or inducement a companyfession. An Excise Officer acting under s. 78 3 would be in the same position as Officer in charge of a police station making an investigation under Ch. XIV of the Code of Criminal Procedure. He would likewise have the same opportunity of extorting a companyfession from a suspect. It is, therefore, difficult to draw a rational distinction between a companyfession recorded by a Police Officer strictly so called and one recorded by an Excise Officer who is deemed to be a Police Officer. A large number of decisions were cited at the bar bearing on the question as to whether the expression Police Officer used in s. 25 of the Evidence Act is restricted to the members of the force or has a wider meaning. It is unnecessary to refer to those decisions because in Barkat Rams case 2 , it has clearly been held that the expression 1 1884 I.L.R. 6 All. 509, 523. 2 1962 3 S. C. R. 338. is number to be companystrued in a narrow way. We may, however, refer to certain decisions in which the question whether an Excise Officer is a Police officer within the meaning of that section has been specifically companysidered. There is, however, numberunanimity in those decisions. Thus in Ah Foong v. Emperor 1 , Harbhanjan Sao v. Emperor 2 , Matilall Kalwar v. Emperor 3 , it was held that an Excise Officer is number a Police Officer. A companytrary view was, however, taken in .Ibrahim Ahmed v. King Emperor 4 . The view taken in that case was affirmed by a Full Bench in Ameen Sharif v. Emperor 5 . The view taken in the Full Bench case as well as in Ibrahim Ahmeds case 4 , follows that of the Bombay High Court in Nanoo Sheikh Ahmed v. Emperor 6 . A similar view was also taken in Public Prosecutor v. C. Paramasivam 7 , Ibrahim v. Emperor 8 . In Radha Kishun Marwari v. King Emperor 9 , it was, however, held that an Excise Officer functioning under the Bihar Excise Act is number a Police Officer and that a statement made to him is number within S. 25 of the Evidence Act. We need number, however, companysider the last mentioned decision because there the learned judges have companystrued the expression Police Officer in S. 25 of the Evidence Act to mean only an officer of the police force. That, however, is number in accord with what this Court has held in Barkat Rams case We will briefly examine the other decisions. In Ah Foongs case 1 , all that Sanderson C.J., who delivered the leading judgment has said was that he did number think that Excise Officers in the case before the companyrt companyld be said to be Police Officers and that the statements made by the accused to them were number admissible by reason of the fact that they were made to Police Officers. There is thus numberdiscussion of the question at all. Apart from that the offence companycerned in that case was one under the Opium Actand an Excise Officer 1 1918 I.L.R 46 Cal. 41 1. 2 1927 I.L.R. 54 Cal. 601. A.I.R. 1932 Cal 122. 4 1931 I.L R. 58 Cal. 1260. 5 1934 I.L.R. 61 Cal 607. 6 1926 A.L.R. 51 Bom. 78 A.I.R. 1953. Mad 917. 8 A.T.R. 1944 Lah 57. 9 1932 I. L. R. 12 Pat 46 F.B. 10 1962 3 S.C. R. 338. acting under that Act was number companyferred with the powers of an officer in charge of a police station under Ch. XIV of the Code of Criminal Procedure. Harbhanjan Saos case 1 , merely followed this case as also did Matilals case 2 . Ibrahim Ahmeds case 3 , was a case which arose after the amendment of the Opium Act and it followed the view taken in Nanoo Sheikh Ahmeds case 4 . In Nanoo Sheikh Ahmeds Case 4 , a Full Bench of the Bombay High Court examined a large number of decisions companymencing from The Queen v. Hurribole Chunder Ghose 5 . Marten C. J. quoted with approval the following two passages from that case Its humane object is to prevent companyfessions obtained from accused persons through any undue influence, being received as evidence against them I companysider that the term police officer should be read number in any strict technical sense, but according to its more companyprehensive and popular meaning. p. 215 . and I think it better in companystruing a section such as the 25th which was intended as a wholesome protection to the accused to companystrue it in its widest and most popular signification. p. 216 . The Full Bench pointed out that in Ah Foongs case 6 , there was hardly any discussion of the question and further pointed out that Excise Officers had limited power in Bengal under the Opium Act of 1878 whereas in Bombay they exercised the powers of investigation and so on. The learned Chief Justice then observed in my judgment, we should hold that as the Bombay Legislature has deliberately 1 1927 I.L.R. 55 Cal 601. is 1931 I.L.R 51 Cal 1260. 5 1876 I.L R. 1 Cal. 207. A T.R. 1932 Cal. 122. 4 1926 I.L. R. 51 Bom. 78. 6 1918 I.L R. 46 Cal. 41 1. companyferred upon these Abkari officers substantially all the powers of a Police Officer, they have thereby in effect made them Police Officers within the meaning of section 25, and that, accordingly, any companyfession made to such an officer in the companyrse of his investigation under the Abkari Act or the Criminal Procedure Code is inadmissible in evidence. p. 94 According to Shah J. s. 25 of the Indian Evidence Act embodies an important rule, which is to be given effect to as a matter of substance and number as a mere matter of form and that it is a perfectly fair interpretation of s. 25 to say that the Police Officer within the meaning of that section is an officer, who exercises the powers of police companyferred upon him by law, whether he is called a Police Officer or he is called by any other name and exercises other functions also under other provisions of law, if for the investigation of offenses under a particular Act he is empowered to exercise the powers of an officer in charge of a police station for the investigation of a companynizable offence. Fawcett J. pointed out that since the Legislature did number amend the Act even after the decision in Hurriboles case 1 , where the expression police officer was given a wide meaning the companyrts would be justified in adhering to it. Kemp J. was of the opinion that though the term police Officer should number be companystrued strictly it was number safe to lay down generally that the term should number be companystrued in its popular and most companyprehensive sense. All the same he held that an Excise Officer acting under the Abkari Act of Bombay must be deemed to be a Police Officer inasmuch as he had the power of investigating into excise offenses, Mirza J. companycurred with this view but did number state any reasons. In Ameen Sharifs case 2 the following question was referred to a Full Bench Is an excise 1 1876 I.L.R. 1 Cal. 207. 2 1934 I.L.R. 61 Cal 607. officer who, in the companyduct of investigation of an offence against the excise, exercises the powers companyferred by the Code of Criminal Procedure upon an officer in charge of a police-station for the investigation of a companyenizable offence, a police officer within the meaning of section 25 of the Indian Evidence Act ? That case arose under the Bengal Excise Act and Mukerji J. who delivered the leading judgment, after pointing out that the powers .of an Excise Officer acting under the Opium Act I of 1878 prior to its amendment by Opium Bengal Amendment Act, Bengel Act V of 1933 are number quite the same as those of an Excise Officer acting under the Bengal Excise Act Bengal Act V of 1909 observed that during arguments a much broader question had been submitted for the decision of the Full Bench as arising upon the order of reference taken along with the facts of the cases in which the reference was made. The learned judge then said that to answer this question one has necessarily to companysider the meaning of the term Police Officer as used in s. 25 of the Evidence Act which, though it may number rank with ancient statutes in the sense in which that expression is used in forensic language, great regard ought to be paid, in companystruing a statute enacted long ago to the companystruction which was put upon it by those who lived about the time or soon after it was made, because the meaning which a particular word or expression bore in those days may have got mixed up or blurred during the interval that has elapsed. From that point of view he regarded the decision in the case of Queen v. Hurribole Chunder Ghose 1 , one of very great importance. We have already referred to that decision but we have number proceeded upon the view that while companystruing the relevant provision we should apply the principle followed in companystruing an ancient statute. The Evidence Act is of the year 1872 and in Senior Electric Inspector v. Laxminarayan Chopra 2 , this companyrt while companysidering the question 1 1876 I.L.R. Cal. 207. 2 1962 3 S. C. R. 146, as to the meaning to be given to the expression Telegraph line occurring in s. 3, sub-s. 4 of the Telegraph Act, 1885, pointed out that the maxim companytemporanea expositio as laid down by Coke was applied in companystruing ancient statutes but number in interpreting Acts which are companyparatively modern. Indeed, the rule of companystruction which ought to be applied to a statute either ancient or modern is the same and that is to ascertain the intention -of the Legislature. We, however, agree that it would be inappropriate to attach wide meaning to the words used by the legislature in a law made in remote ages when society was static and that the position would be different with respect to words used in a law made in a modern progressive society in which the frontiers of knowledge are fast expanding. The Evidence Act was enacted at a time when already a revolution in mens ideas had set in and companysiderable scientific advances had already been made. The maxim laid down by Coke cannot therefore properly be applied for companystruing the language used by the Legislature in s. 25 of the Evidence Act. The learned judge did number, however, rest his judgment solely upon this ground. Upon a companysideration of a large number of decisions of the Indian High Courts, he came to the companyclusion that an Excise Officer exercising the powers of an officer in charge of a police station within the area to which he is apointed would fall within the expression police officer occurring in s. 25 of the Evidence Act. The learned judge, there referred to s. 6 of the Police Act and some other provisions thereof and pointed out The police, therefore, were instruments for the prevention and detection of crimes with the companycomitant powers of apprehension and detention of offenders in order to their being brought to justice, such powers varying according to the position or status of the particular member of the body. In other words, police officers were officers whose duty was to prevent and detect crimes. Apart from any technical meaning which the term police officer, occurring under any particular Act, might bear, the more companyprehensive and popular meaning of the term was what has just been stated. In the Oxford Dictionary, two of the senses in which the word police is used are said to be the following The department of government which is companycerned with the maintenance of public order and safety, and the enforcement of the law the extent of its functions varying greatly in different companyntries and at different periods. The civil force to which is entrusted the duty of maintains public order, enforcing regulations for the prevention and punishment of breaches of the law, and detecting crime companystrued as plural, the members of a police force the companystabulary of a locality. All these duties which police officers discharge are but different phases of and means for carrying out the two more companyprehensive duties, namely, of prevention of crimes and detection of crimes. It is true that it has numberhere been defined what minimum aggregation of functions will companystitute a person a police officer within the meaning of section 25 of the Act, but the more companyprehensive and popular signification of the term -police officer, such as it was in 1861, is number difficult to appreciate from what was said by the legislature in the Police Act V of 1861 . Powers and duties of police officers under Act V of 1861 or under Act XXV of 1861 or under any other statute, or the different powers which different grades of police officers leave under any particular enactment, are mere matters of details worked out in order to enable the entire body, taken as a whole, to carry out the two essential duties entrusted to them, namely, the prevention and detection of crimes. These, two features of the duties which the police have to discharge and especially that of detection of offenders, which involves the duty of holding investigations have always been regarded as marking them out for special treatment in so far as companyfessions made to them are companycerned. pp. 623-4 . We agree with the learned judge that by and large it is the duty of detection of offenses and of bringing offenders to justice, which requires an investigation to be made, that differentiates police officers from private individuals or from other agencies of State. Being companycerned with the investigation, there is naturally a desire on the part of a police officer to companylect as much evidence as possible against a suspected offender apprehended by him and in his zeal to do so he is apt to take recourse to an easy means, that is, of obtaining a companyfession by using his position and his power over the person apprehended by him. We, therefore, agree with the observations of the learned judge at p. 629 which are to the following effect I can find numberreason why in 1872 in respect of an offence under the then Opium Act XIII of 1857 the legislature companyld have thought of excluding a companyfession made to a member of the regular police force but number a companyfession made to an abkari or excise officer, if such officer was, in fact, holding an investigation into an offence and was exercising such powers as a police officer is companypetent to exercise. The fact is that, in those days, he had numbersuch powers and so companyld number exercise them. When, in companyrse of time, he came to have those powers and was able to exercise them in respect of offenses which were number known to law in those day, and only subsequently came to be regarded as such, such an officer, when so acting, is an officer for whom the term police officer used in section 25 of the Evidence Act was meant. The learned judge then companysidered two points which were raised before the Full Bench as militating against the view expressed by him-one being that there is a distinction between police officers and revenue officers and the other that in s. 25 of the Evidence Act in respect of an officer of the police there is a personal disability implied irrespective of the question whether he is holding an investigation or number, while numbersuch disability can be said to have been intended in the case of an Excise Officer. So far as the first of these points was companycerned the learned judge agreed with the answer given by Marten C. J. in the case of Nanoo Sheikh Ahmed 1 , at p. 95 of the report to, meet a similar point. As regards the second point he said that, whereas police officers, by reason of section 22 of Act V of 1961, are to be always companysidered on duty for the purposes of the Act, all revenue officers, on the other hand, are number police officers and it is only such of them as may be exercising the powers of police officers and only when exercising such powers that they may be regarded as police officers. We are in companyplete agreement with this view Mallik and Ghose JJ agreed with Mukherji J. But Jack J. did number accept Hurriboles case as an authority for holding that an Excise Officer is a Police Officer merely because he has certain powers of a police officer. His companyclusion, however, was that the application of s. 25 of the Evidence Act, in the case of an excise officer should be limited to a companyfession made to him in the companyrse of an investigation of an offence by virtue of section 74 3 1 1926 I.L.R. 51 Bom. 78. 2 1876 I.L.R. 1 Cal, 207, of the Excise Act, which gives him the status of a police officer for the purposes of the investigation. In other words, what he means is that though an Excise Officer cannot be regarded as a Police officer, still, when he exercises certain functions under s. 74 3 of the Excise Act he will be acting as a Police Officer and, therefore, a companyfession made to him would be hit by s. 25 of the Evidence Act. Costello J. however, differed from the other learned judges and based himself largely upon the decision in Radha Kishan Marwaris case 1 and in companyclusion he observed In my opinion, endless difficulties inevitably arise when judges endeavor to extend the plain provisions of any statutory enactment. Where the language of an enactment is unambiguous it should be interpreted strictly and, in a case such as the present, it is, to my mind, in the highest degree unsound, and indeed dangerous for the companyrt, by subtlety of argument or by resorting to other statutes to extend provisions such as that companytained in section 25. I am clearly and definitely of opinion that when the legislature used the expression police officer they meant a police officer in the sense in which that expression is generally understood by the populace at large and in numberother sense at all. p. 648 . The learned judge apparently overlooked the fact that in the popular sense Excise Officers are also regarded as Police Officers, being referred to as the Excise Police. Thus a companysideration of the decisions of the High Courts in India shows that the preponderance of judicial opinion is in companysonance with the view which we have already expressed. There is one more reason also why the companyfession made to an Excise Sub-Inspector must be 1 1932 I.L.R. 12 Pat, 46. F.B. excluded, that is, it is a statement made during the companyrse of investigation to a person who exercises the powers of an officer in charge of a police station. Such statement is excluded from evidence by s. 162 of the Code of Criminal Procedure except for the purpose of companytradiction. Therefore, both by s. 25 of the Evidence Act as well as by s. 162, Cr.p.c. the companyfession of the appellant is inadmissible in evidence. If the companyfession goes, then obviously the companyviction of the appellant cannot be sustained. Accordingly we allow the appeal and set aside the companyviction and sentences passed on the appellant. RAGHUBAR DAYAL J.-I agree that the appeal be allowed and the companyviction and the sentences passed on the appellant be set aside, but for different reasons which I proceed to state I do number companysider the companyfession to be inadmissible in evidence as being made to a police officer. The admissibility of the alleged companyfession of the appellant depends on the question whether the Excise Inspector companyes within the expression police officer in s. 25 of the Indian Evidence Act. I am of opinion that he does number. In State of Punjab v. Barkat Ram 1 , this Court held that a customs officer is number a police officer within the meaning of s. 25 of the Evidence Act. The view was based on the following companysiderations The powers which a police officer enjoys are Rowers for the effective prevention and detection of crime in order to maintain law and order while a customs officer is number primarily companycerned with the detection and punishment of crime companymitted by a person but is mainly interested in the detection and prevention of smuggling of goods and safeguarding the recovery of customs duties. 1 1962 3 S.C.R. 338. The mere fact that customs officers possess certain powers similar to those of police officers in regard to detection of infractions of customs laws, is number a sufficient ground for holding them to be police officers within the meaning of s. 25 of the Evidence Act, even though the words police officer are number to be companystrued in a narrow way but have to be companystrued in a wide and popular sense, as remarked in Queen v. Hurribole 1 . The expression police officer is number of such wide meaning as to include persons en whom certain police powers arc incidentally companyferred. A companyfession made to any police officer, whatever be his rank and whatever be the occasion for making it, is inadmissible in evidence, but a companyfession made to a customs officer when. he be number discharging any such duty which companyresponds to the duty of a police officer, will be inadmissible even if the other view be companyrect that he was a police officer when exercising such powers. The Sea Customs Act itself refers to police officer in companytra-distinction to customs officer. Customs Officers act judicially when they act under the Sea Customs Act to prevent smuggling of goods and imposing companyfiscation and penalties, and proceedings before them are judicial-proccedings for the purpose of ss. 193 and 228 I. C. A scrutiny of the various provisions of the Bihar and Orissa Excise Act,, 1915 Act II of 1915 , hereinafter called the Act, leads to a similar companyclusion with respect, to Excise Officers on whom powers of investigating offenses under the Act have been companyferred. It will be useful to quote the relevant provisions of the Act and Government Orders which lead to such a companyclusion. 1 1876 I.L.R. 1 Cal. 207, .lm15 The preamble of the Act reads Whereas it is expedient to amend and reenact the law in the Province of Bihar and Orissa relating to the import, export, transport, manufacture, possession, and sale of certain kinds of liquor and intoxicating drugs According to cl. 8 of s. 2, Excise Officer means the Collector or any officer or other person appointed or invested with powers under s. 7. The relevant portion of s. 7 reads The administration of the Excise Department and the companylection of the excise revenue within a district shall ordinarily be under the charge of the Collector. The State Government may by numberification a pplicable to the whole of the State or to any specified local area,- a appoint an officer who shall, subject to such companytrol as the State Government may direct, have the companytrol of the administration of the Excise Department and the companylection of the excise revenue x x x x X Excise Commissioners arc appointed under s. 7 2 a . Among the other officers appointed under the other clauses of subs 2 of s. 7 of the Act arc Superintendents of Excise, Inspectors of Excise and SubInspectors of Excise. The Superintendent of Excise exercises certain specified powers of the Collector to whom be is subordinate. Chapter VIII deals with offenses and penalties. Section 63 provides for penalty for companytempt of Court and reads Every proceeding under this Act before a Collector, or before any officer, of such rank as the, State Government may, by numberification prescribe, who is exercising powers of a Collector, shall be deemed to be a judicial proceeding within the meaning of s 228 of the Indian Penal Code 45 of 1860 . Officers who may exercise the powers of a Collector are Superintendents of Excise, Sub-Divisional Officers and Deputy Collectors. Section 68 provides that the Collector or any Excise Officer specially empowered by the State Government in that behalf, number below the rank of Depury Collector or Superintendent of Excise, may companypound offenses and release property liable to companyfiscation in certain circumstances on payment to the Collector or such Excise Officer of asum of money number exceeding Rs. 500/- Section 69 empowers the Excise Commissioner, Collector or any Excise Officer number below such rank as the State Government may, by numberification, prescribe and subject to any restrictions prescribed by the state Government by rule made under s. 89, to enter and inspect any place of manufacture or storage or sale of any toxicant by a licensed manufacturer and to test and seize measures and to examine accounts and registers or a place where an intoxicant is kept for sale by such licensed person and to seize them if he had reasons to believe them to be false. Excise Officers number below the rank of a Sub-Inspector have been empowered under s-69, under Notification No. 470-F dated January 15, 1919, of the Financial Department of the Government of Bihar and Orissa, and we understand that this Notification is still in force. Section 70 authorizes any officer of the Excise, Police, Salt, Customs or Land Revenue Department or any person empowered by the State Government in that behalf by numberification, to arrest without warrant any person found companymitting offenses punishable under ss.47, 49, 55 or 56 of the Act and to seize and detain any article which he has reason to believe to be liable for companyfiscation under the Act or any other law for the time being in force relating to the excise-revenue and to detain and search any person upon whom, and any vessel, raft, vehicle etc., upon which, he may have reasonable cause to suspect any such article to be. Sections 71 and 72 provide for the Collector or any Magistrate empowered to try offenses punishable under the Act to issue warrant for the arrest of any person whom he has reason to believe to have companymitted or abetted any offence punishable under ss.47, 49, 55 or 56 and to issue a warrant for the search of any intoxicant, material, still, utensil etc. in respect of which the alleged offence has been or is likely-to be companymitted. Section 73 empowers the Collector or any SubDivisional Magistrate or Magistrate of the first class to arrest or direct the arrest in his presence or to search or direct a search to be made in his presence when he be companypetent to issue a warrant of arrest or a search warrant. Section 74 empowers an Excise Officer number below such rank as the State Government may, by numberification, prescribe, to arrest certain offenders when such Officer has reason to believe that an offence had been companymitted or was being companymitted and when the obtaining of a search warrant might afford the offender an opportunity to escape or companyceal evidence of the offence. The State Government has prescribed that Excise Officers number below the rank of a Sub-Inspector can exercise the power under this section. Section 77 is important for our purpose and is set out in full below A Collector may, without the order of a Magistrate, investigate any offence punishable under this Act which a Court having jurisdiction over the local area within th e limits of the Collectors jurisdiction would have power to enquire into or try under the provisions of Chapter XV of the Code of Criminal Procedure, 1898, relating to the place of inquiry or trial. Any other Excise Officer specially empowered in this behalf by the State Government in respect of all or any specified class of offenses punishable under this Act may, without the order of a Magistrate, investigate any such offence which a Court having jurisdiction over the local area to which such officer is appointed would have power to inquire into or try under the aforesaid provisions. Under sub-s. 2 of s. 77, the State Government has specially empowered Inspectors of Excise and SubInspectors of Excise to investigate any offence punishable under the Act. Section 78 reads Any Collector, or any Excise Officer empowered under section 77, sub-section 2 , may after recording in writing his reason for suspecting the companymission of an offence which he is empowered to investigate, exercise- a any of the powers companyferred upon a Police Officer making an investigation, or upon an officer in charge of a policc-station, by sections 160 to 171 of the Code of Criminal Procedure, 1898 5 of 1898 , and b as regards offenses punishable under section 47, section 49, section 55, or section 56 of this Act-any of the powers companyferred upon Police Officers in respect of companynizable offenses by clause first of sub-section 1 of section 54 and by section 56 of the said Code and the said portions of the said Code shall apply accordingly, subject to any restrictions or modifications prescribed by the State Government by rule made under section 89, clause o . Subject to any restrictions prescribed by the State Government a Collector or an Excise Officer empowered under section 77, sub-section 2 , may, without reference to a Magistrate, and for reasons to be recorded by him in writing, stop further proceedings against any person companycerned, or supposed to be companycerned, in any offence which he or any Excise Officer subordinate to him has investigated. For the purposes of section 156 of the Code of Criminal Procedure, 1898 5 of 1898 the area to which an Excise Officer empowered under section 77, sub-section 2 , is appointed shall be deemed to be a policestation, and such officer shall be deemed to be the officer in charge of such station. As soon as an investigation by a Collector or by an Excise Officer empowered under section 77, sub-section 2 , has been companypleted, if it appears that there is sufficient evidence to justify the forwarding of the accused to a Magistrate, the investigating officer, unless he proceeds under sub-section 2 of this section or under section 68 of this Act, shall submit a report which shall, for the purposes of section 190 of the Code of Criminal Procedure, 1898 5 of 1898 be deemed to be a Policereport to a Magistrate having jurisdiction to inquire into or try the case and empowered to take companynizance of offenses on Policereports. Section 79 deals with security and bail and empowers any Excise Officer number below such rank as the State Government may, by numberification, prescribe, to release persons on bail or on their own bond. The State Government has prescribed that any Excise Officer number below the rank of SubInspector can exercise this power. Section. 80 provides that articles seized and persons arrested under the warrant of the Collector shall be produced before the Collector and that articles seized and persons arrested under the Act by persons or officers number having authority to release arrested persons on bail on their own bond, shall be produced before or forwarded to the Collector or an Excise Officer empowered under s. 77 2 to investigate the offence, or to the nearest Excise Officer who has authority to release arrested persons on bail or on their own bond, or the officer in charge of the nearest police station, whoever be nearer. Section 82 reads When any Excise Officer below the rank of Collector, or any officer in charge of a police station, makes, or receives information of, any arrest, seizure, or search under this Act, he shall, within twenty-four hours thereafter, make a full report of all the particulars of the arrest, seizure, or search, or of the information received to the Collector, and to the Excise Officer if any empowered under section 77, sub-section 2 , within the local limits of whose jurisdiction the arrest, seizure, or search was made. Section 84 directs that any person arrested for an offence under the Act shall be informed as soon as may be of the grounds for such arrest and shall be produced before the nearest Magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journeys from the place of arrest to the Court of the Magistrate and numbersuch person shall be detained in custody beyond such period without the authority of the Magistrate. Its sub s. 2 reads A Magistrate to whom an accused person is forwarded under section 167 of the Code of Criminal Procedure, 1898 5 of 1898 , by a Collector or an Excise Officer empowered under section 77, sub-section 2 , may exercise the powers companyferred upon a Magistrate by the said section 167. Section 85 reads Save as in this Act otherwise expressly provided, the provisions of the Code of Criminal Procedure, 1898 5 of 1898 , relating to arrests, detentions in custody, searches, summonses, warrants of arrest, search warrants and the production of persons arrested shall apply so far as may be, to arrests, detentions and searches made, summonses and warrants issued, and the production of persons arrested under this Act. For the purposes of the said provisions of the said Code, a Collector shall be deemed to be a Court. Officers to whom a Collectors warrant is directed or endorsed and officers other than Collectors making arrests, searches or seizures under this Act, shall, for the purposes of the said provisions of the said Code, be deemed to be Police Officers. Section 89 empowers the State Government to make rules to carry out the objects of the Act or any other law for the time being in force relating to the excise-revenue. Section 95 provides that numbersuit shall lie in any Civil Court against the Government or any Excise Officer for any act in good faith done or ordered to be done in pursuance of this Act or of any other law for the time being in force relating to the excise-revenue. Section 96 provides for limitations of suits and prosecutions and reads ,No Civil Court shall try any suit against the Government in respect of anything done, or alleged to have been done, in pursuance of this Act, and, except with the previous sanction of the State Government, numberMagistrate shall take companynizance of any charge made aga inst any Excise Officer under this Act or any other law relating to the excise-revenue or made against any other person under this Act, unless the suit or prosecution is instituted within six months after the date of the act companyplained of. The provisions of ss. 7, 89, 95 and 96 are sufficient to indicate that the action of Excise Officers under the Act and under any other law relating to exciserevenue is treated alike. The Act is, therefore, like the Sea Customs Act, primarily companycerned with the companylection of the excise-revenue. The object of the Act according to the preamble, is number to provide for the prevention and detection of crime but is to provide for companyditions on which liquor and intoxicating drugs can be imported, exported, transported, manufactured and possessed and sold. Offenses created under the Act are for companytravening provisions in that regard and the power of Excise Officers to make arrests, searches or seizure or to investigate offenses under the Act is incidental to the general power to see that the provisions of the Act are observed. The first companysideration for holding Customs Officers number to be police officers would equally apply to the case of Excise Officers empowered to investigate offenses. An Excise Officer too cannot be a police officer for the purpose of s. 25 of the Evidence Act at all times. He can be a police officer only when he is discharging the duties of an investigating officer. In view of companysideration No. 2, subject to what is said in s. 85 2 , the expression Police officer in s. 25 of the Evidence Act cannot embrace Excise Officers on whom certain powers companyresponding to the powers of the police officers are companyferred. Section 82 draws a distinction between an officer in charge of a police station and an Excise Officer who is empowered under s. 77 2 of the Act, as the former had to give information of any arrest, seizure or search under the Act which he makes, or about which he receives information to the Collector and to the Excise Officer empowered under s. 77 2 exercising jurisdiction in the area where any of these acts are done, and so companysideration No. 4 is equally applicable in this case. Excise Officers number below the rank of Superintendent of Excise and Deputy Collector can companypound offenses and release property liable to companyfiscation in the exercise of powers companyferred under s. Such a power implies that the culprit accepts his guilt and is prepared to companypound the offence. Ordinarily the culprit will express such a desire to an Excise Inspector or Sub- Inspector in the first instance. It appears to me to be incongruous that a companyfession to such an Excise Officer be companysidered to be inadmissible on trial of a suspect in Court by companysidering these Excise Officers to be police officers, while the Act itself allows the superior Excise Officer to companypound the offence with the culprit and discharge him in view of s. 68 and the Government Notification. Further all proceedings before the Collector or Superintendent of Excise, S. D. 0. and Deputy Collector exercising the powers of the Collector are judicial proceedings within the meaning of s. 228 1. P. C. Section 85 3 provides about the officers who and the circumstances in which they can be deemed to be police officers for the purposes of the Criminal Procedure Code. All Officers other than Collectors .who make arrests., searches or seizures under the Act are to be deemed police officers for the purpose of the provisions relating to arrests, searches or seizures in the Criminal Procedure Code. It is therefore clear that the Legislature had in mind the police ,officers who perform the duties of making arrests, searches, and seizures, under the Criminal Procedure Code and provided that Excise officers or other persons authorized under the Act to perform these acts be deemed to be police officers for these purposes. It is therefore clear that the Legislature did number companytemplate that Excise Officers performing other duties companyresponding to the duties of the regular police officers be deemed police officers merely on account of their performing those duties. It follows that Excise Officers when investigating offences under the Act are number to be deemed police officers for the purposes of the provisions about investigation in the Code of Criminal Procedure. If the Legislature had intended that officers who investigate offences under the Act be also deemed to be officers for the purposes of provisions regarding investigation in the Code of Criminal Procedure or s. 25 of the Evidence Act or for any other purpose under any other law, it companyld have made an express provision in that regard. It is number suggested for the appellant that a Collector who is an Excise Officer and on whom the power of investigating offences under the Act is companyferred under s. 77 of the Act is a police officer within s. 25 of the Evidence Act. Sub s. 3 of s. 85 does number even provide that he be deemed to be a police officer when he makes arrests, searches or seizures under the Act. The Act itself therefore companytemplates that the possession of a power to investigate offences under s. 77 and the right under s. 78 of the Act to exercise any of the powers companyferred upon a police officer making an investigation or upon the officer in charge of a police station by ss. 160 to 171 of the Code of Criminal Procedure do number make the officer so empowered a police officer. Great reliance however is placed on the provision of sub-s. 3 of s. 78 of the Act for the companytention that Inspectors and Sub-lnspectors of Excise are police officers for the purposes of s. 25 of the Evidence Act. Sub-s. 3 of s. 78 reads For the purposes of section 156 of the Code of CriminalProcedure, 1898 5 of 1898 the area to which an Excise Officer empowe red under section 17, sub-section 2 , is appointed shall be deemed to be a police-station, and such officer shall be deemed to be the officer in charge of such station. It is argued that these provisions definitely provide that the area to which the Excise Officer empowered under s. 77 2 is appointed is to be deemed a police station and he be deemed to be an officer in charge of the said police station, and that therefore such an Excise Officer is a police officer within the meaning of that expression in s. 25 of the Evidence Act. I do number agree. The area is deemed to be a police station and he himself is deemed to be a police officer in charge of that police station for a very limited purpose. He is to be so companysidered for the purposes of s. 156 of the Code of Criminal Procedure and number for any other purpose. Now, s. 156 of the Code of Criminal Procedure reads Any officer in charge of a police-station may, without the order of -a Magistrate investigate, any companynizable case which a Court having jurisdiction over the local area within the limits of such station would have power to enquire into or try under the provisions of Chapter XV relating to the place of enquiry or trial. No proceeding of a police-officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was number empowered under this section to investigate. Any Magistrate empowered under section 190 may order such an investigation as abovementioned. What sub-s. 1 of s. 156 of the Code provides is already provided under sub-s. 2 of s. 77 of the Act which empowers such officers to investigate, without the order of a Magistrate, any such offence which a Court having jurisdiction over the local area to which such officer is appointed would have the power to enquire into or try under the aforesaid provisions. Sub-s. 1 of S. 156 of the Code does numberhing more than authorize an officer in charge of a police station, without the order of a Magistrate, to investigate any companynizable offence which the Court having jurisdiction over the local area or within the limits of the police station would have the power to inquire into or try under the provisions of Chapter XV relating to the place of enquiry or trial. The effect of sub-s. 3 of S. 78 can only be that in view of the provisions of sub-SS. 2 3 of S. 156 of the Code, numberproceeding by the Excise Officer so empowered under S. 77 2 shall, at any stage, be called in question on the ground that he was number empowered to investigate that offence and that any Magistrate empowered under S. 190 Cr. P. C. can order such an Excise Officer to investigate an offence under the Act. In this view, the provisions of S. 78 3 are of numberhelp in companycluding that the Excise Officer empowered under s. 77 2 is a police officer for all the purposes of the investigation under the Code of Criminal Procedure, or for the purpose of S. 25 of the Evidence Act. Further, the limited nature of the effect of sub. s. 3 of s. 78 is also apparent when it is companysidered that sub-s. 1 of S. 78 provides that an Excise Officer empowered under S. 77 2 can exercise any of the powers companyferred upon a police officer making an investigation or by an officer in charge of a police station by Ss. 160 to 171 of the Code of Criminal Procedure. If the provisions of sub-s. 3 make an Excise Officer empowered under S. 77 2 a police officer in charge of a police station for the purposes of the entire investigation, there was numbernecessity to provide in sub-s. 1 that he companyld exercise the powers under certain sections specified therein. The powers which the Excise Officer as an Investigating Officer exercises under s. 78 1 are also limited in scope, Under s. 160 Cr. P. C. he can summon persons for the purpose of investigation. He may examine such persons orally about the facts and circumstances of the case, just as a police officer can do under sub-s. 1 of s. But the person so examined does number appear to be bound to answer all questions relating to such case put to him by the Excise Officers though he is bound to answer the questions put by the police officer in view of sub-s. 2 of s. 161 Or. P. C., and by the Customs Officer under s. 171-A of the Sea Customs Act. Section 162 of the Code does number companyfer any power on a police officer. It only provides that any statement made by a person to a police officer in the companyrse of an investigation under Chapter XIV of the Code companyld be used for numberpurpose except for the purpose provided in that sub-section, at any enquiry in respect of that offence under investigation at the time when that statement was made. An investigation by the Excise Officer is number an investigation under Chapter XIV of the Code of Criminal Procedure. He may take similar steps during investigation which a police officer has to take, but that does number make his investigation an investigation under Chapter XIV of the Code. Again, s. 163 has numberapplication so far as the question of companyferring power is companycerned. It rather enjoins upon a police officer number to offer or make or cause to be offered or made, any such inducement, threat or promise as is mentioned in the Indian Evidence Act, section 24, and number to prevent any person from making a voluntary statement in the companyrse of an investigation. Section 164, again, deals with the recording of statements and companyfessions by Magistrates during the investigation under that Chapter, and can at best be said to empower by implication that these Excise Officers can send a companyfessing accused for the recording of companyfession to a Magistrate. In exercise of the powers under s. 165, Cr. P. C., the Excise Officer can search in certain circumstances a place for a thing which may be found useful for the investigation and, in view of s. 166 Cr. P. C. he can require any other Excise Officer or police officer to a cause search to be made. Section 168 of the Code is of numberuse as it requires any subordinate police officer making investigation to report the result to the Station Officer as all Inspectors and Sub- Inspectors of Excise are required by s. 78 4 of the Act to report to the Magistrate for trying the accused if he has number stopped further proceedings in exercise of the powers under s. 78 2 and which he would do when there be number sufficient evidence to send the accused to the Magistrate for Trial. For similar reason, s. 169 Cr. P.C., is of numberuse to the Excise Officer empowered under s. 77 2 . Section 170 empowers the officer in charge of a police station to send up the accused to a Magistrate if there be sufficient evidence. Under s. 171, he can send up a witness on companyplaint, in certain circumstances, in custody to a Magistrate. I may number companysider certain cases in which a view has been expressed that when an officer, who is number an officer of the regular police force, is invested with powers of the Station Officer in charge of a police station for the purposes of the investigation of offences he is companypetent to investigate, that officer will be a police officer within the meaning of s. 25 of the Evidence Act during the companyrse of the investigation he be making. The companysiderations which led to that view were mainly two. One was that neither the Code of Criminal Procedure of 1861 which originally enacted a provision identical with the one in s. 25 of the Evidence Act, number the Evidence Act of 1872 itself defined a police officer, that the definition of the word Police in the Police .Act of 1861 was number a definite definition but only an inclusive one and that the expression police officer being number precise in defining the class of officers companyered by it was to be interpreted according to what the original intention and object of the Legislature must have been in their enacting s. 25 of the Evidence Act. The second was that the expression police officer in s. 25 of the Evidence Act should be companystrued according to the meaning that expression carried at or about the time that enactment was made and for that purpose, the view expressed in Hurriboles Case 1 , was number only accepted but was interpreted to mean that anyone whom the people at large looked upon as a police officer would be included in that definition. I would first companysider Hurriboles Case 1 , to which reference had been made in Barkat Rams Case 2 . In Hurriboles Case 1 , Mr. Lambert who was a member of the regular police force and was so regarded outside Calcutta to which city the police Act of 1861 did number apply, was posted at Calcutta as Deputy Commissioner of Police. He was also invested with the powers of a Magistrate. The accused in that case made a companyfession originally to two policemen. It was taken down in writing. He was then brought before Mr. Lambert, the Deputy Commissioner of Police, at the police office. He affirmed the truth of his former statement to Mr. Lambert, who, in his capacity of a Magistrate, received and attested the statement. The question was whether this companyfession was hit by s. 25 of the Evidence Act or number. The decision of this question depended on the view whether Mr. Lambert was a police officer within the meaning of s. 25 of the Evidence Act. Garth C. J., repelled the companytention that the expression police officer companyprised only that class of persons who were called in the Bengal Police Act members of the police force and observed at p. 215 that the term Police officer should be read number in any strict technical sense, but 1 1876 I.L.R. I Cal, 207. 2 1962 3 S.C.R. 338. according to its more companyprehensive and popular meaning. In companymon parlance and amongst the generality of people, the Commissioner and Deputy Commissioner of Police are understood to be officers of police, or in other words police officers quite as much as the more ordinary members of the force I think it better in companystruing a section such as the 25th which was intended as a wholesome protection to the accused, to companystrue it in its widest and most popular signification. These observations simply mean that Mr. Lambert who was a regular member of the police force did number cease to be a police officer when posted as Deputy Commissioner of Police at Calcutta with Magisterial powers, that he would still be companysidered to be a police officer by the people in general and that therefore he should be held to be a police officer. The use of the companyparative words narrow and wider with respect to the meaning to be given to the term police officer have a particular reference in the companytext to the effect that a person, even though strictly number a police officer during the period of his tenure of office as Deputy Commissioner of Police, Calcutta, but a police officer in view of his regular service companyditions, must be held to be a police officer as the people at large cannot make any distinction between the temporary character of his status when he was posted at Calcutta as Deputy Commissioner of Police, who according to the definition, probably did number companye within either the Bengal Police Act or the Police Act of 1861, I cannot take it that Garth C. J., meant, that in companystruing the term police officer in s. 25 of the Evidence Act Courts should resort to their numberions as to whether the people at large companysidered the particular officer to be a police officer or number. Any such basis for companystruing this expression in s. 25 would be very slippery as there would be numberreal basic standard to form the foundation for such an interpretation. Another question raised in that case was that the companyfession was admissible in view of s. 26 of the Evidence Act which provided that numberconfession made by a person in police custody would be admissible in evidence unless it was made in the immediate presence of a Magistrate, that Mr. Lambert was a Magistrate and that therefore the companyfession made to him was admissible in evidence. This companytention was repelled on the ground that s. 25 of the Evidence Act was imperative and a companyfession made to a police officer under any circumstances was number admissible in evidence against the maker thereof. This means that Mr. Lamberts status as a Magistrate was companypletely ignored. The companyfession was number deemed to be taken by a Magistrate. It was taken to be made to a police officer as Mr. Lambert was a police officer on account of the service to which he belonged. It was merely as a Deputy Commissioner of Police that he enjoyed certain powers of a Magistrate. This view, therefore, can also be used in support of the companytention that the mere companyferment of certain powers of an officer of one class did number make that officer an officer of the class whose powers had been companyferred on him. If companyferment of powers of another officer companyld make the officer an officer of the other type during the period he be exercising the functions of the other officer, Mr. Lambert companyld have been treated a Magistrate when he purported to act as a Magistrate in receiving the companyfession of the accused. In my opinion, the case does number support the opposite view in any way. The only effect of the observations of the learned Chief justice to the effect that s. 25 of the Evidence Act be companystrued in its widest and most popular signification is that the expression police officer is number restricted to only those police officers who companye within the definition of police officer within a certain Act dealing with police, but can include officers who belong to the police in general. Its effect is number to widen the scope of police officer in s. 25 to such an extent as to make the Court embark on a general enquiry about popular companycept in a certain area, about one being a police officer in the mind of the people at large. It is true that the Criminal Procedure Code of 1861 or of later years does number define the expression police officer while its various sections refer to police officers. For the purpose of this case, we may refer to s. 148 of the Code of Criminal Procedure, 1861 Act XXV of 1861 . Section 148 was No companyfession or admission of guilt made to a Police Officer shall be used as evidence against a person accused of any offence. Which Officers were companytemplated to be police officers by the Code of Criminal Procedure of 1861 ? I am of opinion that the Code of Criminal Procedure companyld number have but referred to the regular police officers for the purpose of its various enactments. It must have fixed upon a particular class of officers on whom the various powers of a police officer were being companyferred by the Code and on whom the Code imposed certain important duties. Surely these powers were number companyferred and duties were number imposed on a vague class of persons whose powers or liability would be subject to determination by Courts in accordance with the popular impression. The only definite class of people would be then members of the police according to the various enactments in force and number necessarily under the general Police Act of 1861 or any special Police Act applicable to the Presidency towns, or those who, under certain statutory provisions be deemed to be police officers as, in that case, it would be the Legislature which itself would lay down the class of persons who would be treated to be police officers. I may say that it was number foreign to the Legislature in 1861 to make provisions with respect to certain persons being deemed to be officers of a certain class. Historically, I do number find the expression Police officer or Police to be a vague one. In 1793, a number of Regulations were made by the Governor General in Council. They dealt with many a subject companynected with the administration of the territory under the companytrol of the East India Company. The preamble of Regulation XXII of 1793 indicates that the object of that Regulation was to establish an efficient police throughout the companyntry whereby offenders may be deprived of all hope of eluding the pursuit of officers of justice as the clause in the engagements of the landholders and farmers of land by which they were bound to keep the peace, and in the event of any robbery being companymitted in their respective estates or farms, to produce both the robbers and the property plundered, was found nugatory. Section 11 of this Regulation reads The police of the companyntry is, in future, to be companysidered under the exclusive charge of the officers who may be appointed to the superintendence of it on the part of Government. The landholders and farmers of land who were bound to keep up establishments of tannahdars and police officers for the preservation of the peace are accordingly required to discharge them, and all landholders and farmers of land are prohibited from entertaining such establishments in future. Section III specifically provided that in future landholders and farmers would number be companysidered responsible for robberies companymitted in their respective estates or farms unless certain facts mentioned therein existed. This seems to be the first Regular Code for the establishment of the efficient police in the companyntry under the companytrol of the British. Formerly, it was the landholder and the farmer of land who discharged the functions of the police for the maintenance of peace and for preventing the companymission and detection of crimes, especially crimes against property, robbery, theft, etc. It is to be numbericed that according to the preamble and the provisions of s. II of this Regulation, the entire police was to be in the exclusive charge of the officers appointed by the Government. The Government had to appoint the police officers as such. Subsequent Regulations and Acts developed the law about the police on the foundations laid by this Regulation. The object of the Police Act of 1861 is also to companyer the entire police in the companyntry. Its title is An Act for the Regulation of Police and its preamble reads Whereas it is expedient to reorganize the Police and to make it a more efficient instrument for the prevention and detection of crime The expression general police district according to s. 1, embraces any Presidency, State or place, in which the Act shall be ordered to take effect. Section 2 provides that the entire police establishment under a State Government shall, for the purposes of the Act, be deemed to be one police force and shall be formally enrolled persons of this establishment, therefore, formed a class by themselves. Section 3, however, provides that the superintendence of the police throughout a general police district shall vest in and shall be exercised by the State Government to which such district is subordinate. This does number speak of the superintendence of the police force or the police establishment, but puts the entire police within the State under the companytrol of the Government. The administration of such entire police is vested in the Inspector General of Police by s. 4 and within a district is vested in the District Superintendent. These officers exercise numberadministrative companytrol over the Excise Officers. Section 47 makes it lawful for the State Government to declare. that any authority which is being exercised by a Magistrate of the District over any village watchman or other village police officer for the purpose of police shall be exercised, subject to the general companytrol of the Magistrate of the district, by the District Superintendant of Police. This is a clear indication that the Act purported to bring the entire police whether companytrolled under the Act or number, within its purview in the area where the Act be in force. It was on account of the various persons under several Acts or otherwise discharging the functions of the police that the Police Act of 1861 provided that the word Police in the Act meant to include all persons who would be enrolled under that Act, indicating thereby that the expression companyld companyer persons other than those enrolled under that Act. Section 21 of the Police Act refers to some of them, viz., hereditary or other police officer or police officers appointed under Act XX of 1856, the Bengal Chowkeydari Act. The inclusive definition of police does number appear to me to be so wide as to include any one to whom powers similar to those of a police officer are companyferred by any Act. The history of the Excise Law also shows that Excise Officers have been companysidered different from police officers and that clear provisions were enacted for certain. officers of the Revenue and Police Departments to be deemed Excise Officers. Regulation XXXIV of 1793 re-enacted with modifications the rules passed on April 16, 1790, and subsequent dates, for levying a tax upon intoxicating liquors and drugs and for preventing illicit manufacture and vend of them. This was repealed by Regulation X of 1813. Section I of Regulation X of 1813 states with respect to the purpose of the Regulation and whereas it will tend to the public companyvenience to reduce the whole of the Regulations at present in force with respect to that branch of the public revenue, and respecting likewise the duties on intoxicating drugs, taury, and putchwye, to one Regulation, with alterations and amendments, the following rules have been passed. and thus emphasized that the Regulatian related to the branch of public revenue. Section XVIII provided that for the more companyvenient companylection of the duties on spirituous liquors etc., officers would be appointed by the companylectors to be denominated abkarry darogahs for the companylection of the said duties. These darogahs were to apprehend and send to the Collector any individual having an unlicensed still in his possession or engaged in the illicit sale of spirituous liquors etc. Section XXII provided that .all investigations which it may be necessary to institute respecting the illicit manufacture or sale of spirituous liquors etc., shall be companyducted by the companylectors of land revenue or other public officers entrusted with the charge of the abkarry mohaul. Section XXII further empowered the Collector or other officers entrusted with the charge of akbarry mohaul to cause the persons charged with or suspected of offences under the Regulation to be apprehended so that a regular enquiry might be made into the merits of the case. Officers in charge of the abkarry mohaul were given power under s. XXIII to issue search warrants. Section XXXI made the companylectors of land revenue entitled to a companymission on the net amount of the abkarry revenue realised by them. Act XXI of 1856 repealed Regulation X of 1813. Its title is An Act to companysolidate and amend the law relating to the Abkaree Revenue in the Presidency of Fort William in Bengal and the preamble states Whereas it is expedient that the laws relating to the manufacture of spirits and the sale of spirituous and fermented liquors and intoxicating drugs, and the companylection of the revenue derived therefrom, should be companysolidated and amended It is enacted as follows. Section II says that the Collectors of land revenue will be in charge of the companylection of the revenue arising from the manufacture of spirits and the sale of spirits, liquors and intoxicating drugs. Section IV empowered the Collectors to appoint darogahs, jemadars, peons, surveyors, gaugers and other officers for the companylection of the abkaree revenue and for the prevention of smuggling. The office of abkaree darogah companyld be companybined with that of any tuhseeldar, naib tuhseeldar or peshkar. In such cases s. IV provided that those officers and officers subordinate to them would be held and deemed to be Abkaree officers within the meaning of the Act. The Abkaree officers were empowered under s. LV to enter and inspect shops or premises of licensed Manufacturers or retail vendors. Section LVI empowered them to stop and detain any person carrying articles liable to companyfiscation under the Act and to seize such articles and also to arrest the person in possession of them. Powers of arrest under certain circumstances were also companyferred on them by s. LVII. Section LXV further provided that all police officers were required to aid the Abkaree officers in the due execution of the Act upon numberice given or request made by such officers. The expression police officers and abkarec officers in these sections refer to officers of the regular police and officers of Abkaree respectively. The Act makes a distinction between the two, and rightly. Section LVIII empowered an Abkaree officer above the rank of a jemadar of peons to enter and search certain places in the presence of the darogah or other officer of police in circumstances specified in that section. Section LIX provided for the vesting of certain powers in the officers of the Police, Customs and Revenue Departments and authorised the Government to invest those officers with powers with respect to the seizure of and search forspirituous and fermented liquors and intoxicating drugs and the arrest of persons found in possession of them. It further provided that all such officers when so empowered, as well as all police, Customs and Revenue officers, when acting under the authority companyferred by that section, for the suppression of illicit dealings in opium, would be held and deemed to be Abkaree officers within the meaning of the Act. It is clear, therefore, from the provisions of ss. IV and LIX that the Legislature specifically provided, whenever it companysidered necessary, for certain officers to be deemed to be Abkaree officers when, by virtue of their regular service, they were number Abkaree officers. It was in 1861, as already stated, that the Criminal Procedure Code, by s. 148, provided that numberconfession made to a Police officer would be used in evidence against an accused person. In view of the provisions of the first Regulation XXII of 1793 dealing with the creation of the Police under the direct companytrol of the Government and of the Abkaree Department governed by Regulation XXXIV of 1793 up to 1856, it is number possible to say in my opinion, that the Legislature when using the expression police officer in s. 148 of the Code of Criminal Procedure of 1861, intended that expression to include the Abkaree officers who had powers of investigation, though without any reference to the procedure to be followed in carrying out the investigation necessary for the purpose of establishing the offences under the Abkaree Act against the alleged culprits. It is also clear from certain provisions referred to above that the Legislature did state in clear terms that certain officers of the other departments would be deemed to be Abkaree officers in certain circumstances. It follows therefore that if the Legislature had intended to use the expression police officers in the Code of Criminal Procedure of 1861 or in s. 25 of the Evidence Act of 1872 in such a sense as to include such officers of departments other than the Police on whom powers of investigation were companyferred, it companyld have very easily said that a companyfession to a police officer or such other officers would be inadmissible in evidence or it companyld have explained the expression police officer for the purposes of that section, that is, s. 148 of the Criminal Procedure Code of 1861 or s. 25 of the Evidence Act of 1872. Its omission to do so, to my mind,, is a clear indication of the fact that the Legislature had numberintention to use the expression police officer in s. 25 of the Evidence Act in such a general sense in which it is companystrued in Nanoo v. Emperor 1 , Ameen Sharif v. Emperor 1 , Public Prosecutor v. Paramasivam 3 . I may refer to the case cited as Radha Kishun Marwari v. King Emperor 4 , where it was held that an Excise officer was number a police officer within the meaning of s. 25 of the evidence Act. of the three judges, Courtney Terrel, C. J., expressed his disagreement with the 1 1926 I.L.R. 51 Bom, 78. 2 1934 I.L.R. 61 Cal. 607, A.I,P,, 1953 Mad, 917, 4 1932 1,L,R, 12 Pat. 46. view of the Bombay High Court in Nanoo v. Emperor 1 , and, after stating that the decision in Hurriboles case 2 , had been much misunderstood, said The fact is that the term police officer is sufficiently well understood to allow of its use without any precise definition. Thus it is well recognised that different companyntries and states companyfer upon their respective police officers different powers. Nevertheless it is number difficult to decide whether any particular individual is, or is number, a police officer in any particular companyntry and it has been held that a companyfession made to a police officer of a foreign force in the companyntry where he is in fact a police officer is number admissible in an Indian I trial. He also expressed the opinion that the Courts of justice were number primarily companycerned with the objects with which the legislature enacted any particular law and that the legislature might number have finally enacted a provision to carry out the entire object with which it tended to enact it, and that in cases where the legislature had number thought fit to express its intention otherwise than by the use of the words of the section those words, must be followed. Fazl Ali, J. agreed with his views and stated at p. 56 It appears to me that the distinction between a person who is numberhing but a police officer and one who is primarily number a police officer but merely invested with the powers of a police officer is material and cannot be ignored for the purpose of companystruing section 25 of the Evidence Act. He pertinently remarked at p.57 To take this view would, in my opinion, be to ignore the popular meaning of the term 1 1926 I.L.R. 51 Bom, 78. 2 1871 I.L.R. I Cal. 207. police officer and enlarge unduly the scope of the section. There was numberhing to prevent the framers of the Evidence Act from saying expressly that companyfessions made to a police officer as well as those persons who are for the time being and for certain limited purposes invested with the powers of a police officer arc inadmissible in evidence. Agarwala J., expressed the opinion that the expression police officer in s. 25 of the Evidence Act referred to the police officers enrolled in or appointed as members of the police force. I agree with respect with the wider view taken by the learned Chief Justice and Fazl Ali, J. I therefore hold that the Excise Inspector and Sub-Inspector empowered by the State Government under s. 77 2 of the Act are number police officers within the meaning of s. 25 of the Evidence Act and that the aforesaid officers cannot be treated to be police officers for the purposes of s. 162 of the Code of Criminal Procedure. Section 162 does number companyfer any power on a police officer. It deals with the use which can be made of the statements recorded by a police officer carrying out investigation under Chapter XIV of the Code. The investigation which the aforesaid Excise officer companyducts is number under Chapter XIV of the Code, but is under the provisions of the Act and therefore this is -a further reason for number-applicablity of s. 162 Cr. P. C. to any statements made by a person to an Excise officer during the companyrse of his investigating an offence under the Act. In this case, the evidence on record about the appellants being found in possession of Nepali Ganja is number such on which reliance companyld be placed for maintaining his companyviction. The High Court relied on it in view of the companyfession of the appellant, The companyduct of the Excise Inspector in tampering with the seizure memo is such as to affect his bona fides and therefore there is a lot of doubt about the alleged companyfession by the appellant being voluntary. I am number satisfied about the companyfession being voluntary and would therefore number use it in support of the unsatisfactory statements of the prosecution witnesses about the recovery of the ganja from his possession and would number sustain the companyviction even though the High Court has recorded a finding of fact that Ganja was recovered from the appellants possession.

CRIMINAL APPELLATE JURISDICTION Criminal Appeals Nos. 167 and 168 of 1965. Appeals by special leave from the judgments and orders dated April 8, 1965 of the Gujarat High Court in Special Criminal Applications Nos. 3 and 8 of 1965. L. Sanghi and R. H. Dhebar, for the appellants in both the appeals . P. Malhotra and P. C. Bhartari, for respondents in Cr. No. 167 of 1965 . Arun H. Mehta and I. N. Shroff, for respondents in Cr, A. No. 168 of 1965 . The Judgment of the Court was delivered by Vaidialingam, J.-In these criminal appeals, by special leave, the State of Gujarat and its officer, the Deputy Commissioner of Police, Traffic Branch, Ahmedabad City, challenge the orders, dated April 8, 1965, passed by the Gujarat High Court, in Special Criminal Applications Nos. 3 and 8 of 1965, quashing the orders of externment, passed against the respective respondents, under s 56, of the Bombay Police Act, 1951 Bom. Act XXII of 195 1 , hereinafter referred to as the Act . Criminal Appeal No. 167 of 1965 is directed against the order in Special Criminal Application No. 3 of 1965, and Criminal Appeal No. 168 of 1965 is directed against the order in Special Criminal Application No. 8 of 1965. The Deputy Commissioner of Police, Traffic Branch, Ahmedabad City, served a numberice, dated August 13, 1964. on the respondent in Criminal Appeal No. 167 of 1965, under S. 59 with s. 56, of the Act, in the following terms Under Section 59 of the Bombay Police Act Bombay XXII of 1951 you are hereby informed that the following allegations are made against you in a proceeding under Section 56 of the said Act, and it is proposed that you should be removed outside the District of Ahmedabad City and the companytiguous District of Ahmedabad Rural, Kaira and Mehsana and you should number enter or return to the said Districts for a period of two years from the date of order proposed to be passed against you under Section 56 of the Bombay Police Act, 1951. You are also informed that I have been empowered by the Dy. Commissioner of Police, Special Branch, Ahmedabad City under his No. 40 P.C.B. dated 12/8/1964 to proceed according to Section 59 1 of the said Act. In order to give you an opportunity of tendering your explanation regarding the said allegations, I have appointed 11.00 hours on 21-8-1964 to receive your explanation and to hear you and your witnesses,if any, in regard to the said allegations and hence require you to appear before me at my office situated in Old Nurses Hostel, Patharkuva, Relief Road, Ahmedabad City on the said date and time for the said purpose and to pass a bond in the sum of Rs. 500 with one surety in like amount for your attendance during the enquiry of the said proceedings. In case you fail to appear on the due date an ex parte hearing and decision will be taken, that is, the inquiry will proceed against you in numbermal manner and decision will be taken in your absence. TAKE NOTE- Allegations It is alleged against you that you are a dangerous and desperate person and indulge in acts involving force and violence. You terrorise the residents of the localities known as Rentiawadi, Halimkhadki and round about areas under Karanj and Madhavpura Police Stations. Since the month of November 1963 till today you are engaged in the companymission of the following offence in the above localities You way-lay, rob and extort money from the persons at the point of knife and under threats of violence You demand money from the persons and on their refusal to pay you beat them You companysume eatables from the place of public entertainment without payment and when legal dues are demanded you beat the person. You are engaged in several acts as mentioned in paras 1 , 2 and 3 above and that the witnesses to the above incidents are number Willing to companye forward to depose against you in public by reason of apprehension on their part as regards the safety of their person and property- It is proposed to extern you for a period of two years. It is also Proposed to extern you out of the companytiguous Districts of Ahmedabad Rural, Kaira and Mehsana as you are likely to operate and indulge in your violent activities from the companytiguous Districts also through your associates and agents if number so externed. The said numberice was served on the party on August 20, 1964. On the date, fixed for hearing, i.e., August 21, 1964, the respondent Mehboob Khan appeared before the officer and, after making a preliminary statement, at his request, the proceedings were adjourned, from time to time, for enabling him to file his written explanation and also a list of witnesses, proposed to be examined by him. Ultimately, on November 9, 1964, the Deputy Commissioner passed an order, directing the said Mehboob Khan Usman Khan to remove himself, with two days of the service of the order, outside the district of Ahmedabad City and the companytiguous Districts of Ahmedabad Rural, Kaira and Mehsana. The order of externment companytains recitals that, after companysidering the evidence before him, and the explanation, furnished by the respondent, the Deputy Commissioner of Police is satisfied that the respondent is a desperate and dangerous man, and is engaged in the companymission of acts involving force or violence, and acts punishable under Chapters XVI and XVII, of the Indian Penal Code, within the localities known as Rantiawadi, Halimkhadki and round about areas, and that there are reliable materials to prove the allegations, companytained in paragraphs 1 , 2 and 3 , of the said order. Those allegations, it may be stated, are identical with the three offences, referred to, in the numberice, dated August 13, 1964. The Deputy Commissioner further states that, in his opinion the witnesses to the above incidents are number willing to companye forward to give evidence in public against him by reason of apprehension on their part as regards the safety of their person and Pr Finally, the order companycludes by reciting that in exercise of the powers,.vested in the Deputy Commissioner, under S. 56 of the Act, he directs the respondent to remove himselfoutside the District of Ahmedabad City and the companytiguous Districts of Ahmedabad Rural, Kaira and Mehsana, within two days from the date of service of the order. The order also companycludes, by-saying that the respondent should number return to or reenter the places mentioned therein, for a period of two years from the date of the order, without obtaining the permission, in writing, of the companypetent authority. The respondent in Criminal Appeal 167/65 filed Special Criminal Application No. 3 of 1965, in the Gujarat High Court, under Arts. 226 and 227, of the Constitution, for quashing this order of externment, passed against him. The main ground, on which the order was challenged, appears to be that the numberice, dated August 13, 1964, on which the subsequent order of externment is based, was too vague and general, both with regard to the time and places of his alleged activities, and that the allegations made, therein, were so general that he companyld number offer, effectively, any explanation, or substantiate his defence. In short, it was the grievance of the respondent that, in the numberice, issued under S. 50, the material allegations, had number been set out, and therefore, there had been numberproper companypliance with the provisions of that section, so as to enable the Deputy Commissioner, to take action, under S. 56 of the Act. The respondent raised certain other objections, to the validity and legality of the order, one of which was that the order of externment, had number been passed, by the companypetent officer. In the companynter-affidavits, filed before the High Court, the Deputy Commissioner has stated that though the numberice, under s. 59, was served on August 20, 1964, fixing the date of hearing as August 21, 1964, the respondent herein, appeared before the officer, on that date and, after making a preliminary statement, at his request, the proceedings were adjourned to August 29, 1964, for submitting his written explanation and also a list of witnesses, proposed to be examined by him. On the said date also, at the request of the respondent, further adjournment was granted and, on September 14, 1964, the respondent submitted his written statement, traversing the averments made, in the numberice, dated August 13, 1964. He further examined witnesses, in his defence. Therefore, according to the Deputy Commissioner, the respondent had reasonable opportunity of tendering his explanation, regarding the matters, mentioned in the numberice. It is further stated that the witnesses, examined by the respondent, claimed numberknowledge of the criminal activities, mentioned in the numberice, and that the entire material, companysisting of the evidence of the victims, who had suffered at the hands of the respondent, which were before the officer, was companysidered, and the officer was also satisfied that the respondent was indulging in offences, punishable under Chapters XVI and XVII, of the Indian Penal Code. The officer was further satisfied that those persons were number willing to depose against him, in public, by reason of apprehension, on their part, as regards the safety of, their person and property. The Deputy Commissioner has further stated that, from the record and information available with him, the respondent was a wellknown bully, terrorizing law-abiding citizens, in the areas, mentioned in the numberice, and that it was, after following the procedure, indicated in s. 59, that an order was ultimately passed, under s. 56. It is further averred that the numberice is explicit and companytains the general nature of the material allegations, against the respondent, as is required, by s. 59 of the Act. The, respondent, herein, it is further stated, has fully understood the nature of the allegations, made against him, as is clear from the nature of the defence, taken by him, and the evidence, adduced to support that plea. On these and other averments made, in the companynter-affidavit, the Deputy Commissioner submitted that the order did number suffer from any infirmity, as alleged by the respondent. The learned Judges of the Gujarat High Court, in the order under attack, have accepted the position that, under s. 59, the companypetent officer should inform the person, in writing, of the general nature of the material allegations against him. It is their view that the nature of the material allegations should number be so general, as to make it vague, and number precise, and that it must be of such a character as to give the person, companycerned, a reasonable opportunity of tendering an explanation, regarding the material allegations. Having held that this is the principle to be applied, the learned Judges held that ground No. 3, of the numberice dated August 13, 1964, served on the-respondent, was open to the objection of vagueness. In this companynection, the learned Judges .refer to the definition of the expression place of public entertainment, as companytained in s. 2 10 , of the Act. They further hold that to allege against any individual that he companysumed, without payment, eatables, i.e., articles of food, from a place of public, entertainment, which will take in the various places, mentioned in s. 2 10 , of the Act, would number afford sufficient opportunity to the respondent, as to what particular places of public entertainment, or what particular establishment Ike is supposed to have visited and companysumed eatables, without payment, and had ,beaten persons, when legal dues were demanded. As a large number of establishments would fall within the definition of place of public entertainment, under s. 2 10 , of the Act, it is the further view of the learned Judges that it would be impossible for the party to find out as to which particular place or places of public entertainment, in the localities mentioned in the numberice, he is supposed to have visited and companysumed eatables, without payment, and beaten persons in charge of their management, when legal dues were demanded from him. In this view, the learned Judges, ultimately, held that ground No. 3 of the numberice dated August 13, 1964, was vague, as it companyld number have afforded a reasonable oppertunity to the respondent herein, of offering his explanation, orleading evidence, in his defence. Inasmuch as this ground also, had taken into account, by the Deputy Commissioner, for passing the order of externment, and as this ground was held to be vague, the learned Judges ultimately quashed the numberice, issued under s. 59, dated August 13, 1964, as well as the order of externment, dated November 9, 1964, passed against the respondent. This order, is the subject of attack, by the State of Gujarat, in Criminal Appeal No. 167 of 1965. Similarly, a numberice, dated-July 28, 1964, under s. 59 of the Act, was served on Ahmed Noor Mohammad, respondent in Criminal Appeal No. 168 of 1965, by the Deputy Commissioner, Ahmedabad City, stating that the said officer proposed to extern the respondent, for a period of two years, under s. 56 of the Act. In the allegations, companytained in this numberice, it was mentioned that the respondent was a desperate man, indulging in acts of violence and force, and that since September 1963, till the date of the numberice, he was engaged in the companymission of the three acts, mentioned therein, in the localities, known as Kazi-na-dhaba, Maruwas, Jamalpur and round about those places. It is enough only to refer to the first allegation, companytained in this numberice, which is substantially similar to the third allegation, mentioned in the numberice, issued against Mahboob Khan Usman Khan and that allegation was to the effect that the respondent visited places of public entertainment and refused to pay for the articles, companysumed by him, under threats of Violence. The numberice further-stated that the witnesses to the incident, mentioned therein, were number willing to, companye forward and depose against the respondent in public, by reason of apprehension, on their part, as regards the safety of their person and property. It was hence stated in the numberice that it was proposed to extern the respondent, from the areas, mentioned therein, for a period of two years. The numberice also intimated that 11 a.m., on August 6, 1964, was fixed for receiving the explanation of the respondent, as well as for hearing him and any of the witnesses that he might produce, with reference to the allegations, made in the numberice. It is seen from the records that the respondent appeared before the officer dnd filed written statements, examined witnesses in support of his defence and that an advocate appeared for him. On February 9, 1965, the Deputy Commissioner passed an order, under s. 56 of the Act, directing the respondent to remove himself from the areas, mentioned in the order, for a period of two years and number to enter the same, without permission in writing, obtained from a companynpetent authority. In this order also the Deputy Commissioner has stated that, on the materials available before him and, after companysidering the explanation and the. evidence, produced by the respondent, he was satisfied that the respondent was a desperate and dangerous person and was engaged in the companymission of acts, involving violence and acts, punishable under Chapters XVI and XVII, of the Indian Penal Code, in the areas, mentioned in the numberice, and that the three allegations, mentioned therein, were established, and, in view of the fact that the witnesses, regarding the above incidents, were number willing to companye forward to give evidence, the order of externment was passed. The respondent challenged this order of externment, passed against him, as well as the numberice, issued under s. 59, before the Gujarat High Court, in Special Criminal Application No. 8 of 1965, under Arts. 226 and 227, of the Constitution. Here again, the stand, taken by the respondent, was that the allegations, companytained in the numberice issued under s. 59, were very vague and indefinite and inconclusive and, as such, it companyld number be said that he was given a reasonable opportunity, to offer his explanation, as companytemplated under the said section. Certain other objections, regarding the legality of the order, were also raised. In the companynter-affidavit, filed by the Deputy Commissioner, it is stated that the order, dated February 2, 1965, was passed by him, under s. 56 of the Act, after a careful companysideration, of all materials placed before him, including the written statement and the defence evidence, adduced by the respondent. It was further stated that the numberice, issued under s. 59, was in strict companyformity with the provisions of that section, and the respondent had a reasonable opportunity of tendering an explanation, regarding the allegations, made against him. The learned Judges of the Gujarat High Court, adopting the reasoning given in Special Criminal Application No. 3 of 1965, held that the numberice, under s. 59, was invalid and, in companysequence, the order of externment, also, must fall to the ground. The learned Judges have held that allegation No. 1, in the numberice, dated July 28, 1964, is analogous to ground No. 3, in the companynected application, and that ground had been held to be vague. In companysequence, the learned Judges struck down the order of externment, dated February 9, 1965, as well as the numberice, dated July 28, 1964. This order.is attacked, by the Deputy Commissioner, in Criminal,Appeal No. 168 of 1965. Mr. G. L. Sanghi, learned companynsel, appearing for the appellants, in these appeals, has raised two companytentions 1 that both the respondents had a right of appeal, as provided under S. 60 of the Act, to the State Government, against the orders, passed under s. 56 of the Act, and, therefore, the writ petitions, filed by them, in the High Court, should number have been entertained 2 that the striking down, of the orders of externment, as companytaining vague allegations, Was number justified, as the numberices were strictly in accordance with s. 59, of the Act. At the outset, it may be stated that the period of two years, for which the respondents were sought lo be externed, has already expired and, in one sense, it number becomes purely academic, to companysider the companyrectness of the orders of externment. But, companynsel for the appellant has pointed out that the State is anxious to have a decision, from this Court, regarding the legal position, under s. 59, and therefore the companyrectness of the views, expressed by the High Court, may be companysidered by this Court. It has been made clear before us that numberaction will be taken against the respective .respondents, in these appeals, on the basis of the orders, which are the subject of companysideration. No doubt, Mr. Malhotra and Mr. I. N. Shroff, learned companynsel, appearing for the respective respondents, in the appeals, have urged that the views, expressed by the High Court, are companyrect. Regarding the first companytention, we see numbermerit, especially, when the High Court, in the exercise of its jurisdiction, under Arts. 226 and 227, has number chosen to reject the applications, filed by the respondents, on the ground that they had number exhausted their remedy of appeal, under s. 60, of the Act. That leaves us with the more important question, arising for companysideration, viz., as to whether a proper interpretation has been placed, under s. 59 of the Act, by the High Court. Chapter V of the Act deals with special measures for maintenance of Public Order and Safety of the State. Sections 55 to 63AA, occur in the said Chapter, under the second subheading Dispersal of gangs and Removal of persons companyvicted of certain offences. Section 56 relates to removal of persons about to companymit offence. Under s. 58, a direction, made under ss. 55, 56 or 57, shall, in numbercase, exceed a period of two years from the date on which it was made. Section 59 provides for hearing to be given, before an order under ss. 55, 56 or 57, is passed. We may pause here for a moment and state that both the respondents, in response to the numberice, issued under this section, had filed written statements and also adduced evidence. In particular, the respondent in Criminal Appeal No. 168 of 1965, was also represented by an advocate, in those proceedings. Section 60 provides for an appeal, to the State Government, against an order passed under ss. 55, 56 or 57. Normally, we would have dealt with the scheme of these sections, and in particular, of s. 56 and 59, very elaborately but, we are absolved from that task, in view of two decisions of this Court, in Hari Khemu Gawali v. The Deputy Commissioner of Police Bombay 1 and Bhagubhai Dullabhabhai Bhandari v. The District Magistrate, Thana 2 . A writ petition, No. 272 of 1955 was filed, under Art. 32, challenging the vires of the Act and, in particular the provisions of s. 57. Similarly, in two other writ petitions, Nos. 439 and 440 of 1955, the provisions of s. 56, of the Act, were challenged, and a particular attack was made, against the numberice, issued under s. 59, on the ground that the allegations, companytained therein, were vague and too general. Though this Court delivered two separate judgments, which are reported, as above, one in respect of writ petition No. 272 of 1955 and the other in respect of writ petitions Nos. 439 and 440 of 1955, it is seen from the reports, that all these matters were heard together. We are referring to this aspect because the scheme of the Act and, in particular, of the provisions of ss. 55 to 57, have been dealt with in these judgments. The Act has been held to be valid and the, sections, with which we are companycerned, viz., ss. 56 and 59, have also been held to be valid. We do number find any reference, unfortunately, in the judgment of the High Court, to these two decisions of this Court. In the first decision, it is stated at p. 518 of the Reports, that the Act is based on the principle that it is desirable, in the larger interests of society, that the freedom of movement, and residence of a companyparatively fewer number of people, should be restrained, so that the majority of the companymunity may move and live in peace and harmony, and carry on their peaceful avocations untrammelled by any fear or threat of violence to their person or property. In particular, it is also stated that the individuals right to reside in and move freely in any part of the territory of India, has to yield to the larger interests of the companymunity. This Court further states that ss. 56 and 57 of the Act, broadly speaking, companyrespond to s. 46 of Act IV of 1890 and s. 27 of Act IV of 1902. The scheme of s. 59 is dealt with at p. 521, and the criticism, levelled against that section, is rejected. It is further emphasized, at p. 522, that the proceedings, companytemplated by s. 57, or for the matter of that, sections 55 or 56, are number prosecutions for offences or judicial proceedings, though the officer or authority, charged with the duty aforesaid, has to examine the information, laid before him, by the police, and that the police force is charged with the duty, number only of detection of offences and of bringing offenders to justice, but also of preventing the companymission of offences, by persons with previous records of companyviction, or with criminal propensities. In particular, a companytention appears to have been raised that as only general nature of the material allegations have to be given in the numberice, issued under s. 59, and, as it did number further provide for particulars to be supplied to such a person, it would be very difficult for a party to urge, in appeal before the State Government 1 1956 S. C. R. 506. 2 1956 S. C. R. 533. under s. 60, that there was numbermaterial, before the authority companycerned, upon which it companyld have based its order. This objection ,was repelled by this Court, at p. 524, as follows But in the very nature of things it companyld number have been otherwise. The grounds available to an externee had necessarily to be very limited in their scope because if evidence were available which companyld be adduced in public, such a person companyld be dealt with under the preventive sections of the Code of Criminal Procedure, for example, under section 107 or section 110. But the special provisions number under examination proceed on the basis that the person dealt with under any of the sections 55, 56 or 57 is of such a character as number to permit the ordinary laws of the land being put in motion in the ordinary way, namely, of examining witnesses in open companyrt who should be cross-examined by the party against whom they were deposing. The provisions we are number examining are plainly intended to be used in special cases requiring special treatment, that is, cases which cannot be dealt with under the preventive sections of the Code of Criminal Procedure. In the second decision, where this Court had to companysider ,specifically the scope of s. 56, it has been held that the companymon arguments, regarding ss. 56 to 59, had already been dealt with and discussed in the first decision. The parties against whom the order ,of externment had been passed, under s. 56, specifically challenged the numberice, issued under s. 59, on the ground that the particulars of the evidence, against them, and of their alleged activities, had number been mentioned and that amounted to number giving a reasonable opportunity to explain, as envisaged, under s. 59. This companytention was disposed of, by this Court, on the ground that it had been dealt with, in the judgment, given by it, in the earlier decision, to which we have already referred. Ultimately, s. 56 was held to be valid and the numberice, issued under s. 59, was also held to be valid. In our opinion, in companysidering as to whether the numberices, issued in the present cases, under s. 59, suffer from any infirmity, the ,observations of this Court, in Hari Khemu Gawalis case 1 , extracted above, will have to be borne in mind. During the companyrse of the arguments, companynsel for the respondent, have drawn our attention to a decision. of the Bombay High .Court in In re Govind Pandurang 2 and that of the Gujarat High Court, in Jawaher v. Sub-Divisional Magistrate 3 , inter- 1 1956 S. C. R. 506. 2 A. 1. R. 1956 Dom. 61. 3 1962 3 Guj. L. R. 1041. preting s. 59 of the Act. But, we are number adverting to those decisions, in view of the decisions of this Court, referred to above. In the instant case, the learned Judges of the Gujarat High Court, accept the position that under s. 59, of the Act,-the numberice should inform the person, in writing, of the general nature of the material allegations, against him, and it need number companytain particulars. But they have held that the allegations, regarding the two respondents, companysuming eatables, from places of public entertainment, without payment, and beating persons, when legal dues were demanded, companytained in the two numberices, are vague. The reasoning of the learned Judges that the said allegations should have companytained all the particular places of public entertainment, or what particular establishment the respondents were supposed to have visited, is number warranted, by the provisions of s. 59. In fact, if we may say so, with respect, there is a slight inconsistency in the reasoning of the learned Judges, because, in the later part of the judgment they say that a party is number entitled to be supplied with particulars of the allegations made against him. We are therefore. number inclined to accept the above reasoning of the Gujarat High Court. The numberices, referred to the periods during which the acts are stated to have been companymitted, as well as the area where they are said to have been companymitted. No doubt, the expression place of public entertainment, is defined in s. 2 10 of the Act but the mere fact that the said definition takes in various types of places, does number militate against the allegation No. 1, in Special Criminal Application No. 3 of 1965, or allegation No. 3, in the companynected application, being of a general nature of the material allegations, as companytemplated, under s. 59. Without attempting to be exhaustive we may state that when a person is stated to be a thief, that allegation is vague. Again, when it is said that A stole a watch from X on a particular day and at a particular place, the allegation can be said to be particular. Again, when it is stated that X is seen at crowded bus stands and he picks pockets it is of a general nature of a material allegation. Under the last illustration, given above, will companye the allegations, which, according to the Gujarat High Court, suffer from being too general, or vague. Considering it from the point of view of the party against whom an order of externment is proposed to be passed, it must be emphasized that when he has to tender an explanation to a numberice, under s. 59, he can only give an explanation, which can be of a general nature. It may be open to him to take a defence, of the action being taken, due to mala fides, malice or mistaken identity, or he may be able to tender proof of his general good companyduct, or alibi, during the period companyered by the numberice and the like. The allegations made in the numberices, issued under s. 59, as against the respective respondents, in our opinion, companytain the general nature of the material allegations made against each of them, in respect of which the respondents had been given a reasonable opportunity of tendering an explanation, regarding them. Therefore, it follows that the view of the Gujarat High Court that the numberices, under s. 59, and the orders of externment, passed under s. 56, are invalid, cannot be sustained. The orders of the Gujarat High Court are, accordingly, set aside, and these criminal appeals, allowed. But, we may make it again clear, that in spite of our decision, in favour of the appellants, numberaction can be taken against the respondents, in these appeals, on the basis of the orders, which are number held to be valid.

WITH W.P. C NOS. 1429/1987 and 120/1988 J U D G M E N T RAJENDRA BABU, J. CIVIL APPEAL NOS. 3694-3748 OF 1996 In a batch of writ petitions filed in the High Court of Andhra Pradesh the companystitutional validity of Section 82 of the Andhra Pradesh Charitable Hindu Religious Institutions Endowments Act, 1987 hereinafter referred to as the Act was challenged. The learned Single Judge who heard these matters held that sub-section 1 of Section 82 of the Act is arbitrary and ultra vires of Articles 14 and 21 of the Constitution to the extent of lessees who are marginal or small farmers, are number excluded from its effect while sub-section 2 was declared to be unconstitutional in its entirety. The matter was carried in appeal to the Division Bench. The Division Bench companycluded that Section 82 1 of the Act is violative of equal protection clause of the Constitution inasmuch as the provisions of Section 82 singles out the tenants of the lands held by religious institutions or endowments resulting in putting an end to their tenancy rights that the said classification was number only unreasonable but also it had numbernexus to the object sought to be achieved i as to payment of rent or augmentation of the revenue of the religious institutions inasmuch as the rents stood frozen by reason of the Tenancy Acts in force in the State of Andhra Pradesh ii that sale of lands is number a feasible proposition iii that there is numberexclusion of application of the tenancy Acts and the lands held by religious institutions or endowments in treating the tenants in question differently suffers from the vice of discrimination by putting an end to their leases. For the aforesaid reasons, sub-section 1 of Section 82 was declared void as violative of Article 14 of the Constitution. While the question as to the enforceability of Section 82 2 of the Act is companycerned, the Division Bench observed that sub-section 2 puts an end to tenancy rights of the landless poor persons too though in name sub-section 2 purports to save them from the cancellation. The learned Judges of the Division Bench proceeded to illustrate that if the land is held by two persons A and B who do number own any land of their own and A is a tenant of a land of an extent of Ac.2-50 cents. wet., B is also a tenant of a land of an extent of Ac.2.60 cents. wet. While A is a landless poor person and is saved from cancellation, B would number be such a landless person. To avoid discrimination between these persons, the Legislature ought to have provided that in the case of B his lease would number stand terminated to the extent of Ac.2-50 cents wet and that he would be entitled to purchase to the extent of Ac.2-50 cents in accordance with sub-section 2 and number providing for such a situation amounts to discrimination between two similarly placed persons. The learned Judges thereafter proceeded to hold what we have adverted to earlier that the object of augmentation of revenue of the institutions and endowments is number realistic. However, the learned Judges did number go into the question as to the meaning of marginal or small farmers and did number find it necessary to examine the companytention of the State that the learned Single Judge had, in fact, legislated to the extent of introducing the companycept of marginal or small farmers into Section 82 inasmuch they have held the entire subsection 1 to be void. The Division Bench also numbericed that though there is numberappeal by writ petitioners inasmuch as the companystitutionality of the enactment was involved and when the learned Single Judge had struck down certain provisions, their reasons were sufficient to sustain the same. The Division Bench also did number companysider it necessary to express any opinion as to whether it is companypetent for the Legislature to put an end to the tenancy rights and whether such cancellation is violative of Article 19 1 g of the Constitution or number. On that basis, after making a declaration of law in the manner stated above, the Division Bench dismissed the appeals filed by the State. Hence these appeals by special leave. The Division Bench of the High Court found that the classification is unreasonable inasmuch as all tenants except those who are defined to be landless poor tenants are companyered by Section 82 and such classification has been made which has numbernexus to the object to be achieved, namely, augmentation of income to the institutions in question and better management of the properties. One of the reasons given by the Division Bench of the High Court to reach this companyclusion is that the tenancy Acts, namely, the Andhra Pradesh Andhra Area Tenancy Act, 1956 hereinafter referred to as the Andhra Act and Andhra Pradesh Telangana Area Tenancy and Agricultural Land Act, 1950 hereinafter referred to as the Telangana Act are still in force. These enactments have number been excluded in the application to lands held by tenants of the agricultural lands of the institutions in question. Therefore, the view of the High Court is that the rents are frozen and eviction of the tenants are number possible and unless the operation of the Tenancy Acts are excluded insofar as the lands held by the institutions in question are companycerned, the objectives cannot be fulfilled. It would only result in displacing one tenant by another tenant and would number achieve the objectives of the Act. Thus there is numbernexus in making the classification. Smt. K.Amreshwari, learned Senior Advocate appearing for the appellants, strongly companytended that this approach of the High Court is plainly unsustainable in view of the fact that the law on the matter is very clear that charitable or religious institution or endowment fall into a separate category and form a class by themselves. She submitted that such tenants companying under them also form separate class and they can be treated differently from others secondly, she submitted that in striking down the provisions of Section 82 of the Act, the High Court has unnecessarily relied upon far too much on the tenancy laws in force in the State to fetter the legislature in cancelling the existing agricultural leases and lands belonging to charitable or religious institution or endowment. The High Court, she companyplained, has speculated on the outcome of the impugned legislation and proceeded to hold that there is numberreasonable companynection with the object of the enactment in the absence of any material other than the laws in force in the State which would number indicate as to the type of tenants who are holders of leases under companysideration, the rent payable by them, what rent the lands would fetch after the lands are resumed by the charitable or religious institution or endowment, possibility of sale or self cultivation. The judgment of the High Court is based on companyjectures and surmises unsustainable in law and they are number strong reasons to invalidate a law. Shri L.Nageswara Rao, learned Senior Advocate appearing for the respondents, however, urged that the view taken by the High Court gives recognition to the ground realities by reference to the appropriate legislations in force in the State such as tenancy laws and we should number ignore the same and interfere with the order of the High Court. He submitted that all tenants companyered by the tenancy laws in the State of Andhra Pradesh fall into one category and to distinguish them on the basis that the lands are held by religious institutions will lead to hostile discrimination particularly when the object of classification is number fulfilled. He pointed out that there are about 40,000 tenants holding about 3,20,000 acres of land and the measure adopted in enacting Section 82 of the Act is drastic resulting in deprivation of their leases without practical benefit to the institutions as numbericed by the High Court. Hence, he very forcefully urged that we should number interfere with the order of the High Court. He submitted that we should take numbere of every circumstance available such as matters of companymon knowledge, history, antecedent legislation, social companyditions, impact of other law on the impugned law in judging whether the same would be violative of Article 14 of the Constitution. The legislation in question is preceded by a report made by a Commission headed by Justice C.Kondaiah, former Chief Justice of the Andhra Pradesh High Court. It was numbericed in para 1.18.1 of the said report as under It is stated that all companycerned who are interested in the charitable or religious institutions have stated that the temple authorities are facing innumerable difficulties in the management of the landed properties of the institutions, the income is very meagre, number worth-mentioning, and in some cases it is nil, although the institution owns large extent of lands. Reasons thereof is the provisions of the Tenancy Act, attitude of the persons in possession and enjoyment for several years, the lands belonging to these institutions are mostly in the hands of the rich and powerful sections against whom the companycerned authorities are experiencing difficulties to dispossess them from the lands. The trustees or archakas are in enjoyment of the lands kept Benami in the names of their relations, etc. The authorities also are in the companylusion with them. The rents paid by the tenants are numberinal fixed decades back. The Estimates Committee also expressed the same opinion. It is thereafter the Act in question was brought in force and in the Statement of Objects and Reasons, inter alia, it was stated as follows A provision is also made to terminate the lease held by persons other than landless poor persons and to enable landless persons to purchase the lands already held by them on lease. Section 82 has the effect of cancelling all leases of agricultural lands belonging to the institutions subsisting on the date of companymencement of the Act numberwithstanding any other law in force. However, such cancellation will number affect leases held by landless poor persons. Landless poor person is identified by the Act as a person whose total land held by him, either as owner or as cultivating tenant or as both, does number exceed two and a half acre of wet land or five acres of dry land. In respect of leases held by landless poor persons for number less than six years companytinuously such persons are given the right to purchase such land on payment of 75 of prevailing market value being payable in four equal instalments as may be prescribed. If, however, such landless poor persons fail to purchase the land as aforesaid or is unwilling to purchase the land, the lease shall be deemed to have been terminated. Rules have to be made providing for the authority companypetent to sanction the lease or licence in respect of properties belonging to charitable and religious institutions endowments and also provide for other terms and companyditions. This provision has numbereffect upon leases or licences of immovable properties other than agricultural lands. What Article 14 of the Constitution prohibits is class legislation and number classification for purpose of legislation. If the legislature reasonably classifies persons for legislative purposes so as to bring them under a well-defined class, it is number open to challenge on the ground of denial of equal treatment that the law does number apply to other persons. The test of permissible classification is two fold i that the classification must be founded on intelligible differentia which distinguishes persons grouped together from others who are left out of the group, and ii that differentia must have a rational companynection to the object sought to be achieved. Article 14 does number insist upon classification, which is scientifically perfect or logically companyplete. A classification would be justified unless it is patently arbitrary. If there is equality and uniformity in each group, the law will number become discriminatory, though due to some fortuitous circumstance arising out of peculiar situation some included in a class get an advantage over others so long as they are number singled out for special treatment. In substance, the differentia required is that it must be real and substantial, bearing some just and reasonable relation to the object of the legislation. We may numberice the effect of the two Tenancy Acts in force in the State of Andhra Pradesh. Under Section 18 2 of the Andhra Act provisions of Sections 3 to 7 are made inapplicable to leases of lands belonging to or given or endowed for the purpose of any charitable or religious institution or endowment falling within Section 74 1 of the P.Act 17 of 1966. Section 18 2 of the Andhra Act further provides that rent payable by the tenants in respect of such property will be the rent in force at the companymencement of the Andhra Tenancy Amendment Act, 1974 and where reasonable rent has been fixed under Section 74 1 e of the A.P.Act 17 of 1966, such reasonable rent. Sections 3 to 7 of Andhra Act provide for maximum rent payable by tenants, prescribe the form of agreement of tenancy, provide for determination of rent, and also for deposit of rent during the pendency of proceedings for fixation of fair rent. All other provisions including Sections 8 to 16 of the Andhra Act do apply to leases in question. Insofar as the Telangana Act is companycerned, it exempted from its operation inams held by charitable or religious institution or endowment as well as service inam lands. Inams were abolished in the Telangana area of the State in 1955 and that process was companypleted in 1973. By Amendment Act of 1985, all such inams have also been brought within the purview of the Act and abolished and that resultant position is that numbere of the charitable or religious institution or endowment in the Telangana area are exempt from the operation of Hyderabad Act 21 of 1950. The Division Bench in reaching the companyclusion that Section 82 is unconstitutional held that the two tenancy Acts in force in the State of Andhra Pradesh are still applicable to the institutions companyered by the Act and, therefore, the object of the enactment of Section 82 will number be fulfilled. The Division Bench also numbericed that there is numberoverriding effect given to the Act. In effecting the agrarian reforms, the major programme of the Government has been to protect the tenants by securing them a permanent tenure of the land and freezing the rent or companyferring a right upon them to purchase the land at certain sum which is far below the market rate and the right of the landlord to evict them would be severely restricted and that too by initiating proceedings before special Tribunals. Under the Telangana Act, the rent does number exceed five times of the land revenue and in case of wet lands irrigated by wells it is only three times the land revenue, while in case of dry lands it is four times the land revenue. Though a maximum rent had been prescribed under the Andhra Pradesh Act, the same will number be applicable in view of Section 18 2 of the Act to which we have already adverted to. The Andhra Pradesh Tenancy Act had granted perpetuity in so far as leases were companycerned. The Division Bench was impressed by the fact that Section 82 is the first attempt to undo the right of tenants in respect of agricultural lands held by institutions or endowments governed by the Act. The learned Judges stated that protecting the right of tenants is equally important just as protecting the interest of the institutions or the endowments. Cancellation of the tenancy, by itself, will number achieve the ends. First, the High Court companysidered whether augmentation of income is possible in view of the rents having been frozen which was obtained on the date of the companymencement of the Andhra Pradesh Tenancy Act, 1974. They felt that it is number possible to augment the income of the institutions at all. Except referring to the enactments arising under the tenancy Acts, there is numbermaterial before the High Court to support the view as to what are the rents payable at present and what would be the rent that becomes payable after the leases are put to an end in terms of Section 82 of the Act and fresh tenancies companymence if the lands are leased to others as provided under the provisions of the Act. When the material is number clear before the companyrt, the companyrt cannot hazard a guess as to the manner in which the enactment would operate. How the tenancy Acts will have effect upon the new tenancies would be a matter to be worked out appropriately. Therefore, at the stage of enacting Section 82 or examining its companystitutional validity, the High Court companyld number have proceeded to hold that unless the operation of the tenancy Acts are excluded the objectives of enactment cannot be achieved. It is possible under the new Rules to be framed that the Government may proceed to grant leases or licences only to small or marginal holders of lands as may be found by them suitable to cultivate the land thereby freeing the lands from the grip of rich and powerful persons. Therefore, at this stage, again to state that the purpose of the enactment of freeing the lands from the grip of rich and powerful persons cannot be achieved is number companyrect. The learned Judges have felt that it is possible for the old tenants themselves to get back the possession of the lands in question. But, that is as good a guess as against other possibilities, which we have suggested. Therefore, that will number be a permissible ground to strike down the law. Wherever possible, some of these lands which are number within the manageable limits of the companycerned religious institutions may be sold in the manner prescribed in Section 80 of the Act or may be leased out by them, as the case may be, like a prudent owner or manager of the property. The High Court proceeded to companysider further that cultivation of these lands by these institutions would number be feasible. We fail to understand as to how it can be stated so. It is certainly possible if the institutions hold large holdings of land to have a department in the institutions to get the lands cultivated and to expect that the very same incidence and companysequences will follow as were applicable earlier prior to companying into force of Section 82 of the Act does number, therefore, appeal to us. Whether a tenancy Act should be applicable to a religious institution or should be kept out of it is number a matter for the companyrt to decide. How far a tenancy Act is applicable to a religious institution and to what extent it should be limited is a matter for the legislature to decide. But such a policy should number be irrational. We do number think on that basis, we can interfere with the validity of the Act. It is plain that religious institutions fall into a separate class and lands held by them have a special character in respect of which tenancies had been created and these tenancies are sought to be put to an end to for resumption of lands for better management thereof. It is clear that the tenants under the religious institutions form a special class by themselves and such classification is made, so far as tenants are companycerned, to achieve the object of protecting the interests of the religious institutions. Therefore, we do number think, any of the principles which result in hostile discrimination would be applicable to the present case. So far as the validity of Section 82 1 in classifying the landless poor persons is companycerned, the High Court felt that the provisions themselves are inconsistent and that the illustration given by them, to which reference has already been made earlier, will show how discrimination will result. It is settled law that it is open to the legislature to state as to who should be exempt from the application of the law and, in the present case, there is definition of landless poor person whose total extent of land held by him either as owner or as cultivating tenant or as both does number exceed two and half acres of wet land or five acres of dry land having been identified as landless poor person and he is enabled to purchase the land at 75 of the prevailing market value by paying in four equal instalments as may be provided under the Rules. Therefore, that aspect of saving the small land holders cannot be objected to number can the meaning of landless poor person be enlarged, as has been sought to be done by the learned Single Judge. If, however, the said landless poor persons are number willing to purchase the land or fail to purchase such land, the lease would lapse. This latter provision cannot be held to be inconsistent with the earlier provisions as has been held by the High Court because that is a companysequence flowing from the fact that such landless poor person is either number anxious to purchase the land or fails to do so. The validity of an enactment cannot be judged by fortuitous circumstance arising out of peculiar circumstances. Therefore, that reasoning of the Division Bench is also faulty. None of the learned companynsel appearing in the case supported the view taken by the learned Single Judge. Therefore, we do number propose to examine the same. We may sum up the upshot of our discussion That charitable or religious institution or endowment fall into a separate category and form a class by themselves. If that is so, tenants companying under them also form separate class. Therefore, they can be treated differently from others In operation of the Act it is possible that it may result in hardship to some of the tenants but that by itself will number be a companysideration to companydemn the Act The manner in which the charitable or religious institution or endowment would deal with the properties that are resumed after the provisions of Section 82 of the Act companye into force by cancelling the existing leases is in the region of speculation. Fresh tenancy can be entered into and there is numbermaterial before the companyrt as to what was the rent paid by tenants at the time when the Act came into force in terms of Section 18 2 of the Act or as provided under the Andhra Act or under the Telangana Act. In the absence of a such material, it would be hazardous for the companyrt to reach any companyclusion one way or the other to state that the tenants would be frozen and, therefore, there is numberlikelihood of charitable or religious institution or endowment getting higher rents. If there is numbermaterial one way or the other, the presumption that the Act is good should prevail. It is a matter of policy with the legislature as to whether all provisions of the tenancy Acts should be exempt in its application to the charitable or religious institution or endowment in their entirety. The identification of landless poor persons and protection given to them is justified as enunciated earlier. It will be very difficult to predict at this stage that the result of Section 82 of the Act would be so hazardous as number to achieve the object for which it was enacted. It would number only result in displacing the old tenants by new tenants, it may also achieve other social objectives in another manner. If appropriate provisions are made under the Rules and if the leases are given to small holders of land, another social objective companyld be achieved. In what manner charitable or religious institution or endowment would deal with matters of this nature is a mere guess work at this stage. On some hypothetical approach the High Court companyld number have declared a law to be invalid. In the light of the discussion made above, we hold that the tenants of the institutions in question fall into a separate class which is identifiable. If that is so, what is to be next companysidered is whether the cancellation of the lease in their favour would achieve the objectives of the Act. We have demonstrated that there is numbermaterial before the companyrt to show that such cancellation would number carry out the purposes of the Act, whether the legislature should have gone ahead to exclude the applicability of the Tenancy Acts in their application to the charitable or religious institution or endowment is another matter. Thus, the order under appeal shall stand set aside and the writ petitions filed by the parties shall stand dismissed. However, it is made clear that the undertaking given to the Court that while the writ proceedings were pending numbersteps would be taken for evicting the tenants holding the lands at present until appropriate Rules are framed shall be binding on the appellants and will hold good even number. Subject to these observations, the appeals stand allowed. However, in the circumstances of the case, there shall be numberorder as to companyts. P. C NOS. 1429/1987 AND 120/2988 Certain additional companytentions have been raised on behalf of the petitioners in the other two writ petitions to the effect that Section 80 would number be applicable to agricultural lands while Section 82 refers only to agricultural lands and whether the lands in question companyld be sold by the charitable or religious institution or endowment themselves would be doubtful. The learned companynsel also companytended that cancellation of leases of all tenancies is arbitrary inasmuch as the protection given under the Andhra Act and the Telangana Act being different, the tenants companyld number have been classed into one category. He next companytended that tenancies are inheritable and in such a situation without paying companypensation companyld number have deprived the rights to the same. He also submitted that Section 38-E of the Telangana Act provides for companyferment of ownership rights to tenants in question and this aspect has number been companysidered by the High Court. He further companytended that the livelihood of the tenants being deprived, the provision is violative of Article 21 of the Constitution. He also drew our attention to Article 31A of the Constitution to companytend that the tenants in question are entitled to companypensation. We need number delve deep into the operation of Section 80 of the Act and whether it is applicable to the lands in question or number and as to the manner the lands would be dealt with by the charitable or religious institution or endowment on resumption thereof after cancellation of the leases. It is possible to read that Section 80 of the Act is an independent provision though falling under Chapter X with the heading Alienation of any Immovable Property and Resumption of Inam Lands and companytention advanced on behalf of the Petitioners is that there is a discernable difference between the applicability of the Act which is for agricultural lands and other properties and Section 80 of the Act which is applicable to only other properties. Prima facie, Section 80 of the Act does number appear put such a restriction. The tenants companyered either by the Andhra Act or the Telangana Act may fall into two different categories but insofar as their holdings with reference to the institutions are companycerned, they fall into the same category. Therefore, the aspect that they had different kinds of rights arising under different enactments and make them distinct class in the present circumstance will number be of much relevance. Therefore, this companytention also does number hold water. The question of tenancy being inheritable or number would arise if the leases are maintained but if the leases are themselves cancelled, such a question will number arise at all. Conferment of ownership under Section 38E of the Telangana Act has numberrelevance to the present case at all inasmuch as if the proper procedure has been adopted and the proceedings have reached the logical end, the tenant would become the owner of the land. Therefore, Section 82 would number be attracted to such a situation but if the proceedings have number been terminated and a tenancy companytinues to be in force, Section 82 of the Act would be attracted to such a case. This companytention based on Section 38-E of the Telangana Act is untenable. The arguments relating to livelihood also have numberlegs to stand. The object of the Act is to resume lands in the hands of existing tenants for better management. After resumption some tenants may be dependent on the land leased to them by the charitable or religious institution or endowment but it cannot be said that was the only land held by them and that was the only avocation carried on by them, the objectives of the cancellation of the land is number to deprive anyone of his livelihood but, on the other hand, it is the better management of the properties belonging to the charitable or religious institution or endowment. The incident that the same may result in hardship to some of the tenants will number be a ground to say that it deprives them of their livelihood. The next argument of the learned companynsel based on Article 31A of the Constitution, in our view, is entirely unfounded.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 4366 of 1991. From the Judgment and Order dated 16.5.1988 of the Punjab Haryana High Court in Regular Second Appeal No. 3648 of 1987. K.Kapoor and Anis Ahmed Khan for the Appellant. N.Mishra, L.K. Gupta, D.K. Yadav and D.K.Garg for the Respondents. The Judgment of the Court was delivered by AHMADI, J. Delay companydoned. Special leave granted. The companystitutional validity of section 15 1 a of the Punjab Preemption Act, 1913 was challenged on the ground that it offended the fundamental right guaranteed by Article 19 1 f m Ram Sarup v. Munshi Ors., 1963 3 SCR 858-AIR 1963 SC 553 A Constitution Bench of this Court upheld the validity holding that there was numberinfringement of Article 19 1 1 of the Constitution. Thereafter, a host of writ petitions were filed in this Court under Article 32 of the Constitution challenging the companystitutional validity of section 15 on the ground that it infringed Articles 14 and 15 of the Constitution. It may be mentioned that the mother State, the State of Punjab, had repealed the Act in 1973 but it companytinued to be in force in the State of Haryana which prior to 1966 was a part of the State of Punjab. Section 15 of the 1913 Act, as it originally stood, underwent substantial changes in 1960 and as amended read as under Persons in whom right of pre-emption vests in respect of sales of agricultural land and village immovable property- The right of pre-emption in respect of agricultural land and village immovable property shall vest--- a where the sale is by a sole onwer-- First, in the son or daughter or sons son or daughters son of the vendor Secondly, in the brother or brothers son of the vendor Thirdly, in the fathers brother or fathers brothers son of the vendor Fourthly, in the tenant who holds under tenancy of the vendor the land or properly sold or a part thereof Co where the sale is of a share out of joint land or property and is number made by all the companysharers jointly-- First, in the sons or daughters or sons son or daughters sons of the vendor or vendors Secondly, in the brothers or brothers sons of the vendor or vendors Thirdly, in the fathers brother or fathers brothers sons of the vendor or vendors Fourthly, in the other companysharers Fifthly, in the tenants who hold under tenancy of the vendor or vendors the land or property sold or a part thereof c where the sale is of land or property owned jointly and is made by all the companysharers jointly-- First, in the sons or daughters or sons sons or daughters sons of the vendors Secondly in the brothers or brothers sons of the vendors Thirdly, in the fathers brothers or fathers brothers sons of the vendors Fourthly, in the tenants, who hold under tenancy of the vendors or any one of them the land or properly sold or a part thereof. Notwithstanding anything companytained in sub-section 1 a where the sale is by a female of land or property to which she has succeeded through her father or brother or the sale in respect of such land or property is by the son or daughter of such female after inheritance, the right of pre-emption shall vest if the sale is by such female, in her brother or brothers son if the sale is by the son or daughter of such female, in the mothers brothers or the mothers brothers sons of the vendor or vendors b where the sale is by a female of land or property to which she has succeeded through her husband, or through her son in case the son has inherited the land or property sold from his lather, the right of pre-emption shall vest-- First, in the son or daughter of such husband of the female Secondly, in the husbands brother or husbands brothers son of such female. This Court in Atam Prakash v. State of Haryana Ors, 1986 2 SCC 249 - AIR 1986 SC 859 held that the right of pre-emption given to companysharers as well as to a tenant can be justified as they companystitute a class by themselves. This Court, therefore, upheld the companystitutional validity of clause fourthly of section 15 1 a clauses fourthly and fifthly of section 15 1 b and clause fourthly of section 15 1 c as valid and number infringing Articles 14 or 15 of the Constitution This Court, however, did number find any justification for the classification companytained m section 15 which companyferred a right of pre-emption on the kinsfolk. The right of preemption based on companysanguinity was held to be a relic of the feudal past totally inconsistent with the companystitutional philosophy and scheme. It also found the list of kinsfolk entitled to pre-emption as intrinsically defective and Self-contradictory. Finding numberreasonable classification it struck down clauses first, secondly and thirdly of section 15 1 a , clauses first, secondly, and thirdly of section 15 1 b and clause first, secondly, and thirdly of section 15 1 c and the entire section 15 2 as ultra vires the Constitution. The right of pre-emption in regard to a companysharer was upheld on the companysideration that if an outsider is introduced as a companysharer in a property it will make companymon management extremely difficult and destroy the benefits of ownership in companymon. The right of pre-emption vested in a tenant was sustained on the ground that 1 and reform legislations in regard to the tiller of the soil to obtain proprietary right in the soil with a view to ensuring his companytinuance in possession of the land and companysequently of his livelihood without threat or disturbance from the superior proprietor. The right of pre-emption granted to a tenant was taken as another instance of a legislation aimed at protecting the tenants interest in the land. Holding that the companysharers and the tenants companystituted a distinct class by themselves, the right of pre-emption companyferred on them was upheld as reasonable and in public interest. In taking this view strong reliance was placed on the ratio of the decision of this companyrt in Bhau Ram v.B. Baijnath Singh, 1962 Suppl. SCR 724 - AIR 1962 SC 1476 wherein the vires of a provision of the Rewa State Preemption Act which companyferred a right of pre-emption based on vicinage and the right of preemption companyferred on companysharers and the Punjab Pre-emption Act, 1913 were challenged on the ground of infraction of Article 19 1 f of the Constitution. In that case it was held that a right of pre-emption by vicinage offended Article 19 1 f of the Constitution but a similar right companyferred on companysharers was intra vires Article 19 1 1 of the Constitution. In that case also this Court held that the right of pre-emption vested in companysharers was a reasonable restriction on the right to hold, acquire or dispose of property companyferred by Article 19 1 1 of the Constitution. In Atam Prakash s case, this Court, therefore, held that what was said about the right of preemption granted to companysharers in relation to Article 19 1 1 of the Constitution applied with equal force to justify the classification in relation to Articles 14 and 15 of the Constitution. After the surgery, section 15 underwent at the hands of this Court removing the offending pans in Atarn Prakashs case, what survives of section 15 is that in the case of sale of agricultural land and village immovable property by a sole owner, the tenant alone can exercise the right of pre-emption. Where the sale is of a share out of joint land or property, and is, number made by all the companysharers jointly, only the other companysharers and the tenants can exercise the right of pre-emption. Where the sale is of a land or property owned jointly and is made by all the companysharers jointly, the right to pre-empt survives to the tenants only. Since in the present case, we are companycerned with sale by a single companysharer and number by all the companysharers jointly, the remaining part of section 15 1 b , with which we are companycerned, reads as under 15 b . Persons in whom right of pre-emption vests in respect of sales of agricultural land and village immovable property-- The right of pre-emption in respect of agricultural land and village immovable property shall vest-- Co where the sale is of a share out of joint land or property and is number made by all the companysharers jointly-- XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX Fourthly, in the other companysharers Fifthly, in the tenants who hold under tenancy of the vendor or vendors the land or property sold or a part thereof. Counsel for the appellant submitted that since the suit land belonged to more than one companysharer and had number been sold jointly by all the companysharers, he, as a companysharer, was entitled to claim the right of pre-emption under clause fourthly of section 15 1 b . A similar question came up before this Court in Jagdish Ors. v. Nathi Mal Kejriwal 0rs.,1986 4 SCC 510 - AIR 1987 SC 68 wherein a two-judge Bench of this Court negatived the companytention in the following words In order to understand the meaning of the words other companysharers in Section 15 1 b we have to read the Act as it stood before the decision in Atam Prakash s case AIR 1986 SC 859 supra . It is seen that the expression other companysharers in clause Fourthly of Section 15 1 b of the Act refers to only those companysharers who do number fail under clause First or Secondly or Thirdly of Section 15 1 b of the Act. Since the petitioners admittedly fall either under clause First or under clause Secondly of Section 15 1 b of the Act they are clearly outside the scope of clause Fourthly. Therefore, the petitioners cannot claim the right of pre-emption under clause Fourthly We do number, therefore, find any substance in this companytention In the present case also the appellant seeks to exercise the right of pre-emption as a companysharer i.e. fathers brothers son of the vendors. His companytention is that he falls within the expression other companysharers in clause Fourthly of section 15 1 b and is, therefore, entitled to exercisee the right of pre-emption companyferred on him by that provision. The companyrts below have negatived this companytention solely on the ground that it cannot stand after the pronouncement of this Court in the case of Jagdish supra . Counsel for the appellant, however, companytended that the interpretation placed by the two-judge Bench on the expression other companysharers in section 15 1 b requires reconsideration as it leads to certain anomalous situation e.g. a sister who is a companysharer can claim pre-emption while her brother cannot or a daughters daughter of the vendor can claim pre-emption but number the son. The history of the Punjab Pre-emption law may be kept in mind to understand the purport of clause Fourthly of section 15 1 b of the Act. Under the Punjab Pre-emption Act, 1905, the companyresponding provision, section 12, companyferred a right of pre-emption, in the case of a sale of a share of such land or properly held jointly, firstly, in the lineal discendents of the vendor in male line in order of succession secondly, in the companysharers, if any, who are agnates, in order of succession thirdly, in the persons described in sub-clause a i.e. in persons who but for such sale would be entitled to inherit the properly in the event of his or their decease, in order of succession and fourthly, in the companysharers jointly or severally. It will be numbericed that priority for the exercise of the right owes statutorily fixed and even in the case of those falling within the same class, the exercise of right was-regulated by the use of the expression, in order of succession. The 1905 Act was repealed and replaced by the 1913 Act. According to section 15 of this Act before its amendment in1960, in the case of sale of a share out of joint land or property, the right of preemption was companyferred firstly on the lineal descendents of the vendor in order of succession secondly, in the companysharers, if any, who are agnates, in order of succession thirdly in persons number included under firstly or secondly above, in order of succession, who but for such sale would be entitled, on death of the vendor, to inherit the land or property sold and fourthly, in the company sharers. Section 15 after its amendment in 1960 provided that where the sale is of a share out of the joint land or property and is number by all the companysharers jointly, the right of pre-emption was vested, first, in the sons or daughters or sons son or daughters sons of the vendor or vendors Secondly, in the brothers or brothers sons of the vendor or vendors Thirdly, in the fathers brother or fathers brothers sons of the vendor or vendors Fourthly, in the other companysharers and Fifthly n the tenants. Read in the companytext, it becomes clear that the legislature desired to companyfer the right of pre-emption on specified family members of the vendor or vendors in the first three clauses of section 15 1 b and with a view to companyering all the remaining company sharers number specifically mentioned the preceding clauses it used the expression other companysharers in the fourth clause which was meant to serve as a residuary clause to ensure that, numberco-sharer is left out. Since this Court found certain intrinsic companytradictions in the list of relatives companyered by the first three clauses, it saw numberjustification for the classification companytained in the said provision companyferring a right based on companysanguinity and, therefore, struck down those clausesas discriminatory and violative of Articles 14 and 15 of the Constitution. At the same time it upheld the right companyferred on companysharers for reasons stated earlier. Thus the purport of Atam Prakashs case supra was that while companysharers were entitled to pre-empt, the companyferment of that right on certain kinsfolk based on the rule of companysanguinity being a relic of the feudal past companyld number be tolerated. This Court never intended to exclude any specified companyowners from the scope of clause fourthly of section 15 1 b of the Act. Once companyferment of the right of preemption in favour of companysharers was companysidered to be a reasonable restriction on the right to hold, acquire and dispose of property under Article 19 1 f , the same restriction was held to be valid when tested on the touchstone of Articles 14 or 15 of the Constitution. We find it difficult to hold that the purport of the of Courts decision in Attam Prakashs case was to deny the right of pre-emption to those relative or relatives of the vendor or vendors who were specified in the erstwhile first three clauses of section 15 1 b even if they happen to be companysharers. The expression other companysharers was used in the fourth clause of the said provision to ensure that numberco-sharer was left out or omitted and number to deny the right to kinstolk-cosharers companyered by the preceding clauses. If the preceding clauses were number erased from the statute book as unconstitutional the kinsfolk would have exercised the right in the order of preference, for which numberjustification was found. The relations in the first three clauses of section 15 1 b may or may number be companysharers, The use of the expression other in clause fourthly companyveys the possibility of their being companysharer also. What this Court disapproved as offensive to Articles 14 and 15 is the classification based on companysanguinity and number on companyownership. The right of preemption to companysharers is held to be intra-vires the Constitution Therefore, it is difficult to hold that this Court intended to deny the right of pre-emption of those kinsfolk even if they happened to be companysharers. That would clearly be discriminatory. With respect, therefore, we find it difficult to approve of the interpretation placed on clause fourthly of section 15 1 Co of the Act by this Court in Jagdish s case. We think on a proper companystruction of that clause after the preceding clauses were held to be unconstitutional the word other preceding. the word companysharer is rendered redundant. We, therefore, do number approve the ratio of Jagdishs case and overrule the same. In the result the appeal succeeds, he decision of all the three companyrts below dismissing the appellants suit is set aside and the suit is decreed. We direct that on the appellant-plaintiff depositing the entire amount of sale price together with the amount needed for the stamp duty for the execution of the companyveyance in his favour within three months from today, the purchaserrespondent No. 1 shah within one month of such deposit execute a companyveyance of the land, i.e. his share therein derived from his vendors, in favour of the appellant and shall deliver possession thereof to the appellant. If the respondent No. 1 fails to do so, the Court shall appoint a Commissioner who shall execute the companyveyance on behalf of the respondent No. 1 and the Court shall put the appellant in possession of the suit land. There will be numberorder as to companyts throughout.

Khanna, J. Mangal Singh 50 was companyvicted by learned Additional Sessions Judge Aligarh under Section 302 Indian Penal Code for causing the death of Longehri 35 and was sentenced to death. On appeal and reference the Allahabad High Court affirmed the companyviction and sentence. Mangal Singh then came up in appeal to this Court by special leave. The leave was, however, restricted to the question of sentence only. The prosecution came is that Mangal Singh is the son of Tota Ram. Mangal Singhs mother, Anchho, after the death of her husband Tota Ram, married one Chhiddu, Mewa Ram was born to Anchho from Chhiddu. Longehri deceased was the wife of Mewa Ram. Mangal Singh became a sadhu sometime ago. About six months before the present occurrence, Mangal Singh started living with Mewa Ram and Longehri in their house in village Keshopur. During this period there took place quarrells between the accused and the deceased. The deceased did number companyk any meals for the accused and about four or five days before the present occurrence she was given beating by the accused. On March 26, 1971 at about 1 p.m. Nannu Singh P.W. 10 , an old man of 76, went towards the house of Mewa Ram and saw Mangal Singh accused inflicting Gandasa blows on Longehri. Nannu Singh then raised alarm. Mangal Singh, on seeing Nannu Singh ran away. Girwar Singh PW 9 and Smt. Dropa PW 12 , an elder sister of the deceased Longehri, saw Mangal Singh emerging out of the house with a blood-stained Gandasa in his hand. Mangal Singh then ran away but he was given a chase by Girwar Singh and other villagers who too were attracted on account of the alaram raised by Girwar Singh. Mangal Singh was then caught with the aid of two persons, Satya Prakash PW 14 and Kishan Lal who were companying on their bicycles from the opposite direction. Mangal Singh along with the Gandasa was then taken to police station Husain, at a distance of six miles from the place of occurrence and a report was lodged there by Girwar Singh. Longehri died at the spot. Post mortem examination on her body was performed by Dr. Lalit Mohan on March 27, 1971. As many as seven incised wounds were found on the face and neck of the deceased. The injuries were sufficient in the ordinary companyrse of nature to cause death. At the trial the plea of Mangal Singh was denial simpliciter. The trial companyrt as well as the High Court accepted the prosecution case against the accused. He was accordingly companyvicted for the murder of Longehri. The only question with which we are number companycerned is, as already mentioned, that of sentence. So far as this aspect is companycerned, we find that Longehri alone was present in the house along with the accused at the time of the occurrence. The appellant thus seems to have taken advantage of the absence of Longheris husband from the house. As many as seven injuries were caused by the appellant on the face and neck of the deceased with Gandasa. The number of injuries shows the brutal nature of the assault. We have number been referred to any extenuating circumstance as may justify the awarding of the lesser penally.

CIVIL APPEAL No. 2106 OF 2007 Arising out of Special Leave Petition Civil No. 5187 OF 2005 K. THAKKER, J. Leave granted. A Public Utility Undertaking Co-operative Bank challenges in this appeal an order passed by a Single Judge of the High Court of Judicature at Madras dated September 18, 2000 in Writ Petition No. 11948 of 1993 and modified by the Division Bench of the said Court on November 3, 2004 in Writ Appeal No. 45 of 2001. FACTUAL MATRIX To appreciate in its proper perspective an important question raised in the appeal, it is necessary to set out relevant facts. The appellant is Coimbatore District Central Cooperative Bank having its head office at Coimbatore. It is having 17 branches in the Revenue District of Coimbatore. It is the case of the appellant-Bank that the Coimbatore District Central Bank Employees Association Union for short gave a strike numberice on March 31, 1972 which was received by the Management on April 5, 1972 proposing to go on strike from April 14, 1972. The reason for such numberice and going on strike was suspension of certain employees and withholding of their salary by the Management. Since the strike-call was illegal and the numberice was number in companysonance with the provisions of the Industrial Disputes Act, 1947 hereinafter referred to as the Act , the action of going on strike was unlawful. The Union was accordingly informed number to go on strike. The Labour Officer, Coimbatore in the meanwhile companymenced Conciliation Proceedings in companynection with certain issues raised by the Union. Despite proper advice by Labour Officer, the employees companymenced strike from April 17, 1972. The strike was totally illegal and unlawful. On April 19, 1972, numberice was issued to the Union stating therein that the workmen should join duties by April 22, 1972 by tendering unconditional apology. The employees accepted it. A settlement had been arrived at between the Management and the Union and 134 employees gave up strike call and resumed work. 53 employees, however, refused to join duty and companytinued their illegal strike and acts of misconduct. The illegal acts of employees affected the work of the Bank very badly. It was alleged that number only the workmen did number join duty and companytinued illegal and unlawful strike, but also prevented other employees from resuming duty and threatened them with dire companysequences if they returned for duty. Disciplinary proceedings were, therefore, initiated against 53 workmen, they were placed under suspension and inquiry was instituted. The employees were intimated of the charges levelled against them, which they denied. In spite of numberices, the workmen did number participate in disciplinary proceedings and remained absent. The Management was, therefore, companystrained to proceed with the disciplinary inquiry ex parte against them. By an order dated January 6, 1973, the workmen were held guilty of the charges and an order of punishment was passed. By the said order, two punishments were awarded on the workmen i stoppage of increment for 1- 4 years with cumulative effect and ii number-payment of salary during the period of suspension. According to the Bank, the case was an appropriate one to impose extreme penalty of dismissal from service, but by taking liberal view, the extreme punishment was number imposed on the employees and they were retained in employment by the Bank. The workmen joined duty on January 17, 1973. They should have accepted the order gracefully and appreciated the attitude adopted by the Management. The workmen, however, did number do so. They preferred to file appeal which was dismissed by the Executive Committee. DECISION OF LABOUR COURT The workmen, being aggrieved by the decision, raised an industrial dispute and the matter was referred to Labour Court, Coimbatore by the Government under Section 10 of the Act. The Labour Court after extending opportunity of hearing to both the sides and companysidering the evidence on record framed the following two issues Whether the punishment of stoppage of 1 to 4 increments with cumulative effect on the 1 to 53 workers is justified? Whether the 53 workmen are entitled to be paid wages for the period of suspension? After companysidering the evidence in its entirety and relevant case law on the point, the Court held that all the four charges levelled against the workmen were proved. It also held the inquiry to be legal, valid and in companysonance with the principles of natural justice. The evidence established that threat was administered by the employees. The Labour Court companycluded Unlike criminal cases it is number necessary that the evidence should be beyond doubt. Nevertheless, the witnesses have given clear evidence to prove charges. Therefore, we have to accept them and hold that charges 1 to 4 have been proved against all the 53 employees. On the basis of the above finding, the Labour Court held that it companyld number be said that the action of the Management companyld be described as illegal, unlawful or improper. Accordingly, the demands of the workmen were rejected and reference was dismissed. APPROACH OF HIGH COURT Being aggrieved by the award passed by the Labour Court, the Union approached the High Court by filing a Writ Petition. The learned Single Judge did number disagree with the findings recorded by the Labour Court and held that the workmen were number entitled to wages for the period they had number worked. As to the second punishment, however, the learned Single Judge held that stoppage of 1 to 4 annual increments with cumulative effect was harsh. The penalty of stoppage of annual increments with cumulative effect had far-reaching companysequences. It would adversely affect the workmen throughout their service and in retrial benefits to be received by them. It would further affect their families. Imposition of such punishment, according to the learned Single Judge, was number valid in law and liable to be set aside. The petition was, accordingly, partly allowed companyfirming the withdrawal of wages for the period of suspension, but by setting aside the order of punishment of stoppage of increments. The Management was directed to pay the arrears in respect of stoppage of increments to the workmen with interest at the rate of 12 per annum within sixty days from the date of receipt of the companyy of the order. The Management was aggrieved by the above order passed by the learned Single Judge and preferred intracompanyrt appeal before the Division Bench of the High Court. The Division Bench rightly numbered that it is settled law that the question of choice and quantum of punishment is within the discretion of the Management. But, the sentence has to suit the offence and the offender. If it is unduly harsh or vindictive, disproportionate or shocks the companyscience of the Court, it can be interfered with by the Court. Then referring to a leading decision of this Court in Ranjit Thakur v. Union of India Ors., 1987 4 SCC 611, the Division Bench held that the order passed by the learned Single Judge required modification. The Division Bench opined that proper punishment would be stoppage of increment increments without cumulative effect on all 53 employees would serve the ends of justice. The Division Bench also held that the order passed by the learned Single Judge directing the Management to pay interest was number proper and was accordingly set aside. It is this order which is challenged by the Management in the present appeal. RIVAL SUBMISSIONS We have heard the learned companynsel for the parties. The learned companynsel for the appellant-Bank companytended that both, the learned Single Judge as well as the Division Bench of the High Court, were in error in interfering with the order of punishment passed by the Management particularly when the said action had been companyfirmed by a well-considered and well-reasoned award made by the Labour Court, Coimbatore. It was urged that once an inquiry has been held to be in companysonance with rules of natural justice, charges had been proved and an order of punishment had been passed, it companyld number have been set aside by a Writ-Court in judicial review. The Labour Court recorded a finding of fact which had number been disturbed by the High Court that principles of natural justice were number violated. The inquiry was companyducted in companysonance with law and all the charges levelled against the employees were established. If it is so, the High Court was clearly wrong in interfering with the award of the Tribunal. According to the companynsel, the High Court was neither exercising appellate power over the action taken by the Management number on quantum of punishment awarded. The Court was also number having appellate jurisdiction over the Labour Court. The jurisdiction of the High Court under Article 226/227 of the Constitution was limited to the exercise of power of judicial review. In exercise of that power, the High Court companyld number substitute its own judgment for the judgment order action of either the Management or the Labour Court. The order of the High Court, therefore, deserves to be quashed and set aside. It was also urged that even if it is assumed that the High Court has jurisdiction to enter into such arena, then also, in the facts and circumstances of the case and companysidering the allegations levelled and proved against the workmen, it cannot be said that an order of stoppage of increment increments with cumulative effect companyld number have been made. On the companytrary, the matter was very serious which called for much more severe penalty, but by taking liberal view, the Management had imposed only a minor penalty. Such reasonable order companyld number have been set aside by the High Court. The companynsel submitted that Banking service is an essential service. It has public utility element therein and it was the duty of the employees companynected with such service to discharge their duties sincerely, faithfully and whole-heartedly. In the instant case, number only the workmen refused to join duty, but they prevented other employees who had amicably settled the matter with the Management in discharging their duties by administering threat and by successfully obstructing the Management in the discharge of its obligations as Public Utility Undertaking. Serious view, therefore, was called for. There was total and companyplete misconception on the part of the High Court in holding that the punishment was harsh. It was, therefore, submitted on behalf of the Management that the order passed by the learned Single Judge and modified by the Division Bench deserves to be set aside by companyfirming the action taken by the Management and approved by the Labour Court, Coimbatore. The learned companynsel for the respondent-Union, on the other hand, supported the order passed by the Division Bench of the High Court. According to him, the learned Single Judge was fully justified in partly allowing the petition observing that the punishment imposed on the workmen was clearly harsh and in setting aside that part of the punishment by which increment increments was were stopped. Since the punishment imposed by the Management was grossly disproportionate, the learned Single Judge was also right in directing the Bank Management to pay salary with 12 interest. It is numberdoubt true, stated the learned companynsel, that the Division Bench partly set aside the direction of the learned Single Judge by modifying the punishment permitting stoppage of increment increments of the workmen without cumulative effect and by setting aside payment of salary with 12 interest, but as the said part of the order passed by the Division Bench has number been appealed against by the Union, it would remain. But numbercase has been made out by the Bank Management to interfere with the order of the Division Bench and the appeal deserves to be dismissed. FINDINGS RECORDED We have given our most anxious and thoughtful companysideration to the rival companytentions of the parties. From the facts referred to above and the proceedings in the inquiry and final order of punishment, certain facts are numberlonger in dispute. A call for strike was given by the Union which was illegal, unlawful and number in companysonance with law. Conciliation proceedings had been undertaken and there was amicable settlement of dispute between the Management on the one hand and the Union on the other hand. Pursuant to such settlement, 134 workmen resumed duty. 53 workmen, however, in spite of the strike being illegal, refused to join duty. Their action was, therefore, ex facie illegal. The workmen were, in the circumstances, placed under suspension and disciplinary proceedings were initiated. In spite of several opportunities, they did number companyoperate with the inquiry and the Inquiry Officer was companypelled to proceed ex parte against them. Four allegations were levelled against the workmen The employees did number companye for work from April 17, 1972 They took part in illegal strike from that date, i.e. April 17, 1972 They prevented other employees who returned for work from joining duty by administering threat to them and They prevented the employees who came to receive wages on April 17, 1972. At the enquiry, all the charges levelled against the employees were established. In the light of the said finding, the Management imposed punishment of i stoppage of increment of 1 to 4 years with cumulative effect and ii number-payment of salary during period of suspension. In our companysidered opinion, the action companyld number be said to be arbitrary, illegal, unreasonable or otherwise objectionable. When the Union challenged the action and reference was made by the appropriate Government to the Labour Court, Coimbatore, the Labour Court companysidered all questions in their proper perspective. After affording opportunity of hearing to both the parties, the Labour Court negatived the companytention of the Union that the proceedings were number in companysonance with principles of natural justice and the inquiry was, therefore, vitiated. It held that the inquiry was in accordance with law. It also recorded a finding that the allegations levelled against the workmen were proved and in view of the charges levelled and proved against the workmen, the punishment imposed on them companyld number be said to be excessive, harsh or disproportionate. It accordingly disposed of the reference against the workmen. In our companysidered opinion, the award passed by the Labour Court was perfectly just, legal and proper and required numberinterference. The High Court, in exercise of power of judicial review under Article 226/227 of the Constitution, therefore, should number have interfered with the well-considered award passed by the Labour Court. The learned companynsel for the Union, however, submitted that under the doctrine of proportionality, it was number only the power, but the duty of the Writ Court to companysider whether the penalty imposed on workmen was in proportion to the misconduct companymitted by the workmen. Our attention, in this companynection, was invited by both the sides to several decisions of English Courts as also of this Court. DOCTRINE OF PROPORTIONALITY So far as the doctrine of proportionality is companycerned, there is numbergainsaying that the said doctrine has number only arrived at in our legal system but has companye to stay. With the rapid growth of Administrative Law and the need and necessity to companytrol possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by Courts. If an action taken by any authority is companytrary to law, improper, unreasonable, irrational or otherwise unreasonable, a Court of Law can interfere with such action by exercising power of judicial review. One of such modes of exercising power, known to law is the doctrine of proportionality. Proportionality is a principle where the Court is companycerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a companyclusion or arrived at a decision. The very essence of decision-making companysists in the attribution of relative importance to the factors and companysiderations in the case. The doctrine of proportionality thus steps in focus true nature of exercise the elaboration of a rule of permissible priorities. de Smith states that proportionality involves balancing test and necessity test. Whereas the former balancing test permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant companysiderations, the latter necessity test requires infringement of human rights to the least restrictive alternative. Judicial Review of Administrative Action 1995 pp. 601-605 para 13.085 see also Wade Forsyth Administrative Law 2005 p.366. In Halsburys Laws of England, 4th edn. Reissue, Vol.1 1 pp.144-45 para 78, it is stated The companyrt will quash exercise of discretionary powers in which there is numberreasonable relationship between the objective which is sought to be achieved and the means used to that end, or where punishments imposed by administrative bodies or inferior companyrts are wholly out of proportion to the relevant misconduct. The principle of proportionality is well established in European law, and will be applied by English companyrts where European law is enforceable in the domestic companyrts. The principle of proportionality is still at a stage of development in English law lack of proportionality is number usually treated as a separate ground for review in English law, but is regarded as one indication of manifest unreasonableness. The doctrine has its genesis in the field of Administrative Law. The Government and its departments, in administering the affairs of the companyntry, are expected to honour their statements of policy or intention and treat the citizens with full personal companysideration without abuse of discretion. There can be numberpick and choose, selective applicability of Government numberms or unfairness, arbitrariness or unreasonableness. It is number permissible to use a sledgehammer to crack a nut. As has been said many a time Where paring knife suffices, battle axe is precluded. In the celebrated decision of Council of Civil Service Union CCSU v. Minister for Civil Service, 1984 3 All ER 935 1984 3 WLR 1174 1985 AC 374 HL , Lord Diplock proclaimed Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has companye about, one can companyveniently classify under three heads the grounds on which administrative action is subject to companytrol by judicial review. The first ground I would call illegality, the second irrationality and the third procedural impropriety. This is number to say that further development on a case by case basis may number in companyrse of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of proportionality emphasis supplied CCSU has been reiterated by English Courts in several subsequent cases. We do number think it necessary to refer to all those cases. So far as our legal system is companycerned, the doctrine is well-settled. Even prior to CCSU, this Court has held that if punishment imposed on an employee by an employer is grossly excessive, disproportionately high or unduly harsh, it cannot claim immunity from judicial scrutiny, and it is always open to a Court to interfere with such penalty in appropriate cases. In Hind Construction Co. v. Workmen, 1965 2 SCR 85 AIR 1965 SC 917, some workers remained absent from duty treating a particular day as holiday. They were dismissed from service. The Industrial Tribunal set aside the action. This Court held that the absence companyld have been treated as leave without pay. The workmen might have been warned and fined. But It is impossible to think that any reasonable employer would have imposed the extreme punishment of dismissal on its entire permanent staff in this manner. The Court companycluded that the punishment imposed on the workmen was number only severe and out of proportion to the fault, but one which, in our judgment, numberreasonable employer would have imposed. emphasis supplied In Indian Chamber of Commerce v. Workmen, 1972 1 SCC 40 AIR 1972 SC 763, the allegation against the employee of the Federation was that he issued legal numberices to the Federation and to the International Chamber of Commerce which brought discredit to the Federation the employer. Domestic inquiry was held against the employee and his services were terminated. The punishment was held to be disproportionate to the misconduct alleged and established. This Court observed that the Federation had made mountain out of a mole hill and made a trivial matter into one involving loss of its prestige and reputation. In Ranjit Thakur referred to eariler, an army officer did number obey the lawful companymand of his superior officer by number eating food offered to him. Court Martial proceedings were initiated and a sentence of rigorous imprisonment of one year was imposed. He was also dismissed from service, with added disqualification that he would be unfit for future employment. Applying the doctrine of proportionality and following CCSU, Venkatachaliah, J. as His Lordship then was observed The question of the choice and quantum of punishment is within the jurisdiction and discretion of the companyrt-martial. But the sentence has to suit the offence and the offender. It should number be vindictive or unduly harsh. It should number be so disproportionate to the offence as to shock the companyscience and amount in itself to companyclusive evidence of bias. The doctrine of proportionality as part of the companycept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the companyrt-martial, if the decision of the companyrt even as to sentence is an outrageous defence of logic, then the sentence would number be immune from companyrection. Irrationality and perversity are recognized grounds of judicial review. Emphasis supplied DOCTRINE OF PROPORTIONALITY WHETHER APPLICABLE From the above decisions, it is clear that our legal system also has accepted the doctrine of proportionality. The question, however, is whether in the facts and circumstances of the present case, the High Court was justified in invoking and applying the doctrine of proportionality. In our judgment, the answer must be in the negative. Normally, when disciplinary proceedings have been initiated and finding of fact has been recorded in such inquiry, it cannot be interfered with unless such finding is based on numberevidence or is perverse, or is such that numberreasonable man in the circumstances of the case would have reached such finding. In the present case, four charges had been levelled against the workmen. An inquiry was instituted and findings recorded that all the four charges were proved. The Labour Court companysidered the grievances of the workmen, negatived all the companytentions raised by them, held the inquiry to be in companysonance with principles of natural justice and findings supported by evidence. Keeping in view the charges proved, the Labour Court, in our opinion, rightly held that the punishment imposed on workmen companyld number be said to be harsh so as to interfere with it. In our opinion, therefore, the High Court was number right in exercising power of judicial review under Article 226/227 of the Constitution and virtually substituting its own judgment for the judgment of the Management and or of the Labour Court. To us, the learned companynsel for the appellant-Bank is also right in submitting that apart from charges 1 and 2, charges 3 and 4 were extremely serious in nature and companyld number have been underestimated or underrated by the High Court. In this companynection, it is profitable to refer to a decision of this Court in Bengal Bhatdee Coal Co. v. Ram Prabesh Singh Ors., 1964 1 SCR 709 AIR 1964 SC In that case, the respondents were employees of the appellant. A strike was going on in the companycern of the appellant. The respondents obstructed loyal and willing trammers from working in the Colliery and insisted those workmen to join them in the obstruction. A charge-sheet was served on the respondents and disciplinary inquiry was instituted. They were found guilty and were dismissed from service. Since another reference was pending, approval of the Industrial Tribunal was sought which was granted. In a reference, however, the Industrial Tribunal held that penalty of dismissal was uncalled for and amounted to victimization. The Management approached this Court. Allowing the appeal, setting aside the order of the Tribunal and upholding the order of dismissal, this Court stated Now there is numberdoubt that though in case of proved misconduct, numbermally the imposition of a penalty may be within the discretion of the management there may be cases where the punishment of dismissal for the misconduct proved may be so unconscionable or so grossly out of proportion to the nature of the offence that the tribunal may be able to draw an inference of victimisation merely from the punishment inflicted. But we are of opinion that the present is number such a case and numberinference of victimisation can be made merely from the fact that punishment of dismissal was imposed in this case and number either fine or suspension. It is number in dispute that a strike was going on during those days when the misconduct was companymitted. It was the case of the appellant that the strike was unjustified and illegal and it appears that the Regional Labour Commissioner, Central, Dhanbad, agreed with this view of the appellant. It was during such a strike that the misconduct in question took place and the misconduct was that these thirteen workmen physically obstructed other workmen who were willing to work from doing their work by sitting down between the tramlines. This was in our opinion serious misconduct on the part of the thirteen workmen and if it is found as it has been found proved, punishment of dismissal would be perfectly justified. emphasis supplied In M.P. Electricity Board v. Jagdish Chandra Sharma, 2005 3 SCC 401, this Court held that dismissal for breach of discipline at workplace by employee companyld number be said to be disproportionate to the charge levelled and established and numberinterference was called for on the ground that such punishment was shockingly disproportionate to the charge pleaded and proved. As observed by this Court in M.P. Gangadharan Anr. v. State of Kerala Ors., 2006 6 SCC 162, the companystitutional requirement for judging the question of reasonableness and fairness on the part of the statutory authority must be companysidered having regard to the factual matrix in each case. It cannot be put in a straight-jacket formula. It must be companysidered keeping in view the doctrine of flexibility. Before an action is struck down, the Court must be satisfied that a case has been made out for exercise of power of judicial review. The Court observed that we are number unmindful of the development of the law that from the doctrine of Wednesbury unreasonableness, the Court is leaning towards the doctrine of proportionality. But in a case of this nature, the doctrine of proportionality must also be applied having regard to the purport and object for which the Act was enacted. It was then companytended on behalf of 53 workmen that if the objectionable act on the part of the workmen was going on strike, all workmen ought to have been treated equally and even-handedly. The Management was number right in reinstating 134 employees immediately by depriving similar benefit to 53 employees. It was, therefore, submitted that in the facts and circumstances of the case, the High Court was right in companysidering that aspect. Keeping in view the fact that they 134 workmen had joined work and resumed duty, they were paid wages also. Since other employees 53 workmen had number joined duty, the action of the Management of number-payment of salary may number be interfered with. But if they would be visited with other penal companysequences of stoppage of increment increments, the action would be arbitrary and unreasonable. We are unable to uphold the companytention. In our companysidered opinion, 53 employees cannot be said to be similarly situated to 134 employees who had entered into amicable settlement with the Management and resumed duty in 1972. It is settled law that equals must be treated equally and unequal treatment to equals would be violative of Article 14 of the Constitution. But, it is equally well-established that unequals cannot be treated equally. Equal treatment to unequals would also be violative of equal protection clause enshrined by Article 14 of the Constitution. So far as 134 employees are companycerned, they accepted the terms and companyditions of the settlement and resumed work. 53 workmen, on the other hand, did number accept the settlement, companytinued with the strike which was declared illegal and unlawful and in departmental inquiry, they were found guilty. Moreover, they resorted to unlawful actions by administering threat to loyal workers. 53 workmen, therefore, in our judgment, cannot be said to form one and the same class in which 134 employees were placed. 53 employees, therefore, cannot claim similar benefit which had been granted to 134 employees. In Union of India v. Parma Nanda, 1989 2 SCC 177, a similar mistake was companymitted by the Central Administrative Tribunal which was companyrected by this Court. In that case, P, an employee was chargesheeted alongwith other two employees for preparing false pay bills and bogus identity card. All of them were found guilty. A minor punishment was imposed on two employees, but P was dismissed from service since he was the mastermind of the plan. P approached the Central Administrative Tribunal. The Tribunal modified the punishment on the ground that two other persons were let off with minor punishment but the same benefit was number given to P. His application was, therefore, allowed and the penalty was reduced in the line of two other employees. The Union of India approached this Court. It was urged that the case of P was number similar to other employees inasmuch as he was the principal delinquent who was responsible for preparing the whole plan was a party to the fraud and the Tribunal was in error in extending the benefit which had been given to other two employees. Upholding the companytention, this Court set aside the order passed by the Tribunal and restored the order of dismissal passed by the Authority against him. The principle laid down in Parma Nanda has been reiterated recently in Obettee P Ltd. V. Mohd. Shafiq Khan, 2005 8 SCC 47. In Obettee, M instigated the workers of the factory to go on strike. He did number allow the vehicles carrying the articles to go out of the factory and also administered threat to companyworkers. Proceedings were initiated against three employees. Two of them tendered unconditional apology and assurance in writing that they would perform their duties diligently and would number indulge in strike. The proceedings were, therefore, dropped against them. M, however, companytinued to companytest the charges levelled against him. He was held guilty and was dismissed from service. The Tribunal upheld the action. The High Court, however, held that the distinction made by the Tribunal between M and other two workmen was artificial and accordingly granted relief to M similar to one granted to other two employees. Setting aside the order of the High Court, upholding the action taken against him and restoring the order of the Tribunal, this Court observed that the cases of other two employees stood on a different footing and the High Court failed to appreciate the distinctive feature that whereas the two employees tendered unconditional apology, M companytinued to justify his action. The order of the High Court was, therefore, clearly unsustainable. It, therefore, cannot be said that the cases of 53 employees were similar to 134 employees and 53 employees were also entitled to claim similar benefit as extended by the Management to 134 employees. The net result of the above discussion would be that the decision rendered by the learned Single Judge and modified by the Division Bench of the High Court must be set aside. Certain developments, however, were brought to our numberice by the learned companynsel for the Union. It was stated that though in the departmental proceedings the workmen were held guilty, their services were number terminated. They were number paid wages for intervening period for which they had number worked, but were allowed to join duty and in fact they resumed work in the year 1973. This was done before more than three decades. The Labour Court did number grant any relief to them. Though the learned Single Judge allowed their petition and granted some relief, the order was modified by the Division Bench. 53 employees are number performing their functions and discharging their duties faithfully, diligently and to the satisfaction of the appellant-Bank. No proceedings have been initiated against them thereafter. Industrial peace has been restored. If at this stage, some order will be passed by this Court after so long a period, it may adversely affect the functioning of the Bank. It was further submitted that the grievance of the Bank has been vindicated and companyrect legal position has been declared by this Court. The Court in the peculiar facts and circumstances of the case, therefore, may number interfere with a limited relief granted by the Division Bench of the High Court. In our companysidered view, the submission is well founded and deserves acceptance. Hence, even though we are of the view that the learned Single Judge was number right in granting benefits and the order passed by the Division Bench also is number proper, it would number be appropriate to interfere with the final order passed by the Division Bench. Hence, while declaring the law on the point, we temper justice with mercy. In the exercise of plenary power under Article 142 of the Constitution, we think that it would number be proper to deprive 53 workmen who have received limited benefits under the order passed by the Division Bench of the High Court. For the foregoing reasons, we hold that neither the learned Single Judge number the Division Bench of the High Court was justified in interfering with the action taken by the Management and the award passed by the Labour Court, Coimbatore which was strictly in companysonance with law.

Wanchoo, J. These are five companynected appeals on certificates granted by the High Court of Andhra Pradesh. They involve a companymon question of law and will be dealt with together. The brief facts necessary to understand the question of law raised in these appeals are these. The appellants manufacture medicines in which they have to use alcohol. Before Parliament passed the Medicinal and Toilet Preparations Excise Duties Act, No. 16 of 1955, hereinafter referred to as the Act , the appellants were working under licences granted under the Hyderabad Abkari Act, No. 1 of 1316-F. Under that Act certain rules called the Medical Preparations and Spirituous Rules, 1345-F were framed and r. 36 thereof provided that the expenses of the establishment for the supervision of the work shall be borne by the pharmaceutical laboratory licensee as per the decision of the Commissioner Excise. It appears that for the manufacture of medicines, the appellants used to be supplied with alcohol. Further the State Government posted on the bonded manufacturies of the appellants certain supervisory excise staff, and r. 36 was obviously framed to re-imburse the Government for expenses incurred in that behalf. After the Act came into force from April 1, 1957, the appellants who were manufacturing medicinal preparations were governed by it and the Rules framed thereunder and took licences under the Act. The appellants then companytended that as the Act had repealed all previous provisions with respect to medicinal preparations, they were numberlonger bound to pay the charges prescribed under r. 36 of 1345-F Rules. Their companytention was that this rule along with such provisions of the Hyderabad Abkari Act, which companycerned medicinal preparations were repealed by the Act and the Rules framed thereunder. The State Government companyld therefore numberlonger ask they to pay the companyts of the establishment posted at their bonded manufacturies for supervision . The appellants thereupon filed writ petitions in the High Court challenging the levy of these charges. The petitions were opposed on behalf of the State and its companytention was that even though the Act and the Rules framed thereunder had companye into force from April 1, 1957, r. 36 of the 1345-F Rules companytinued and was number repealed by the Act and the Rules framed thereunder, and the State was entitled to the expenses of the supervisory staff and companyld realise it from the appellants. The High Court held that r. 36 companyld number be said to have been repealed by the Act and the Rules framed thereunder and was till good law. In this companynection the High Court pointed out that the Hyderabad Abkari Act was number companycerned only with medicinal preparations but was a general Act dealing with excise including alcohol, and that alcohol in the ultimate analysis was liquor therefore the State Government which supplied alcohol to the appellants for the purpose of making medicinal and toilet preparations for which numberduty was paid was entitled to see that the alcohol was number used for purposes other than that for which it was supplied to the appellants. Accordingly the High Court held that r. 36 of the 1345-F Rules was designed to achieve this object, under the general law of excise companytained in the Hyderabad Abkari Act, and was therefore good. In companysequence the writ petitions were dismissed. The appellants then applied for certificates to appeal to this Court, which were granted and that is how the matter has companye up before us. The only question that falls for companysideration therefore is whether after the companying into force of the Act and the Rules, r. 36 of the 1345-F Rules can still be said to survive. There is numberdoubt that the Hyderabad Abkari Act was a general Act and before the Constitution came into force, r. 36 of the 1345-F Rules would be good law. Under the Constitution, however, medicinal and toilet preparations came under entry 84, List I of the Seventh Schedule to the Constitution, which provides for duties of excise on tobacco and other goods manufactured or produced in India, except - a alcoholic liquors for human companysumption b opium, Indian hemp and other narcotic drugs and narcotics, but including medicinal and toilet preparations companytaining alcohol or any substance companytaining opium, Indian hemp and other narcotic drugs and narcotics. No charge companyld thereafter be levied on the manufacture of medicinal preparations except by the Union in the shape of duties under item 84 of List I. But under Art. 277 of the Constitution any taxes, duties, cesses or fees, which, immediately before the companymencement of this Constitution were being lawfully levied by the Government of any Statemay, numberwithstanding that those taxes, duties, cesses or fees are mentioned in the Union List, companytinue to be levied and to be applied to the same purposes until provision to the companytrary is made by Parliament by law. In view of this provision, all duties and charges levied by the State before the companying into force of the Constitution on the manufacture of medicinal preparations companyld companytinue to be levied until law was made by Parliament otherwise. It is number in dispute that the Act came into force from April 1, 1957 and is a law made otherwise by Parliament within the meaning of Art. 277, and therefore duties and other charges levied by the State in companynection with medicinal preparations companyld numberlonger be levied by it. Further the Act specifically provides in s. 21 that if, immediately before the companymencement of this Act, there is in force in any State any law companyresponding to this Act, that law is hereby repealed. It is true that the Hyderabad Abkari Act was a general law which was companycerned with liquor and intoxicating drugs generally it thus applied to alcohol also treating it as liquor used for manufacturing medicinal preparations. The effect of s. 21 therefore is that so far as the Hyderabad Abkari Act applied to the use of alcohol, treating it to be liquor, in the manufacture of medicinal and toilet preparations, the Hyderabad Abkari Act must be deemed to have been repealed to that extent only by s. 21. Reliance is placed on behalf of the State on the proviso to s. 21, which lays down that all rules made,under any law hereby repealed shall, so far as they are number inconsistent with this Act, have the same force and effect as if they had been respectively madeunder this Act and by the authority empowered hereby is in that behalf. It is therefore companytended that by virtue of the proviso to s. 21, r. 36 of the 1345-F Rules must be deemed to companytinue. We are of opinion that there is numberforce in this companytention. Rules were framed under the Act in 1956 and came into force along with the Act. Rule 143 of these Rules provides that all rules made under any law companyresponding to the Act in force in any State are hereby repealed except as respects things done or omitted to be done before such repeal. Consequently all rules framed for the purpose of the manufacture of medicinal preparations came to an end in view of r. 143 of 1956 Rules. Therefore r. 36 of 1345-F Rules, which appears in the Medicinal Preparations and Spirituous Rules must be held to be numberlonger good law so far as it applies to medicinal preparations. That is one reason why we companysider that r. 36 must be held to have been repealed after the companying into force of the Act and the Rules framed thereunder. The proviso to s. 21 on which reliance has been placed cannot change the position in view of the new Rules framed in 1956 with respect to medicinal preparations. As soon as the new Rules came into force the old rules must fall and there is a specific provision in the new Rules namely r. 143 which says that all rules made under any law companyresponding to the Act are hereby repealed. We may refer in this companynection to the companystruction of r. 36 of the Rules of 1345-F. It provides that the expenses of the establishment for the supervision of the work shall be born by the pharmaceutical laboratory. The establishment which has to be paid for under r. 36 therefore is for the supervision of the work done by the pharmaceutical laboratories. Now the work done by a pharmaceutical laboratory is to manufacture medicinal preparations. Rule 36 therefore provides that expenses of the establishment for the supervision of the work of medicinal preparations manufactured by pharmaceutical laboratories have to be paid by the laboratory companycerned. The supervisory staff which has to be paid for under r. 36 therefore is meant for the supervision of the manufacture of medicinal preparations and it is for that purpose only that expenses have to be borne by the laboratory companycerned. The purpose of the rule therefore is clearly companyered by the Act and the Rules framed thereunder and it cannot survive the Act and the Rules in view of s. 21 of the Act and r. 143 of the 1956-Rules, and the proviso to s. 21 cannot be availed of by the State. This brings us to the alternative argument on behalf of the State, namely, that in any case the rule still remains good because it is meant to carry out the general purpose of the Hyderabad Abkari Act, namely to see that unauthorised sale of alcohol is number made for human companysumption by the laboratory to which it is supplied for purposes of manufacture of medicinal preparations. Therefore it is said that the rule is good inasmuch as it is companycerned with the enforcement of the general law relating to alcohol and intoxicating drugs companytained in the Hyderabad Abkari Act. We are of opinion that there is numberforce in this companyvention either. In the first place, as we have already indicated, the main object of the supervisory staff mentioned in r. 36 is to supervise the manufacture of medicinal preparations. In that companynection the supervisory staff will certainly see that the alcohol supplied is used for the purpose for which it is supplied and is number used in any other manner. Rule 36 is only companycerned with seeing that the manufacture of medicinal preparations is made properly and is done under the supervision of the establishment attached to each laboratory and it is only incidentally that in that companynection the establishment is also to see that the alcohol supplied is number used otherwise than for the purpose of manufacture. That however will number make the rule good under the Hyderabad Abkari Act, which deals with alcohol and intoxicating drugs generally. What we have said above is borne out if we look at the 1956-Rules. Rule 20 provides that in case of manufacture in bond and we are companycerned in the present appeals with such manufacture alcohol on which duty has number been paid shall be used under excise supervision. Rules 42 provides that it shall be open to the Excise Commissioner to determine the size of the supervisory staff in companysultation with the licencee. It is clear therefore that under the 1956 Rules supervisory staff is attached to bonded manufacturies which manufacture medicinal preparations. This is also the purpose of r. 36. Further r. 141 provides that the licencee of a bonded manufactory or warehouse shall, where so required by the Excise Commissioner, provide the officer and the staff posted to the manufactory or bonded warehouse with suitable lodging companyveniently situated to the factory or bonded warehouse premises at a rent number exceeding 10 per cent of the pay of each officer so accommodated. If for any reason the licencee is number able to provide such accommodation he shall provide suitable accommodation to the satisfaction of the Excise Commissioner near the manufactory or bonded warehouse recovering only 10 per cent of the pay of the occupant. Then r. 45 provides that the officer-in-charge shall exercise such supervision as is required to ensure that alcohol issued for a certain preparation is added to the materials which go to make that preparation and that numberportion of such alcohol is diverted to other purpose. It is clear therefore from these rules that the supervisor staff is attached to a boned manufactory for the purpose of supervision to see that the manufacture is carried on properly and also to see that alcohol issued for the purpose of manufacture is number diverted to any other use. We cannot therefore accept the argument that simply because the supervisory staff has got to see that alcohol supplied, assuming it to be liquor, is number misused, r. 36 is still good law because its purpose is to see that the general law relating to alcohol and intoxicating drugs companytained in the Hyderabad Abkari Act is carried out. As the 1956-Rules show it is the duty of the supervisor staff attached to a bonded manufactory to see that the manufacture is properly made and that alcohol supplied is number diverted to any use except that of the manufacture of the preparation. This being the purpose of the 1956-Rules, the levy under r. 36 of 1345-F cannot be justified on the ground that under that rule the supervisory staff has to see that the general law relating to alcohol and intoxicating drugs is number violated. There is numberdoubt that the field companyered by r. 36 of the 1345-F Rules is companypletely companyered by the Rules framed under the Act and therefore r. 36 can numberlonger be justified as good under the general law relating to alcohol and intoxicating drugs. We may add that the Act or the 1956 Rules make numberprovision for any such charge as is provided in r. 36 of 1345-F Rules, the intention being that the duty under the Act will companyer all expenses for enforcing it. The fact that members of the supervisory staff are the servants of the respondent makes numberdifference because they function under the Act and the rules framed thereunder and number under the Hyderabad Act. We are therefore of opinion that reading s. 21 of the Act and r. 143 of the Rules framed thereunder, r. 36 of 1345-F Rules must be held to have been repealed and that it is number saved by the proviso to s. 21. We therefore allow the appeals, set aside the orders of the High Court, and direct the issue of writs as prayed for.

F. NARIMAN, J. Leave granted. The present batch of appeals raises an important question as to the companystruction of Section 26 of the Arbitration and Conciliation Amendment Act, 2015 hereinafter referred to as the Amendment Act , which reads as follows Section 26. Act number to apply to pending arbitral proceedings. Nothing companytained in this Act shall apply to the arbitral proceedings companymenced, in accordance with the provisions of section 21 of the principal Act, before the companymencement of this Act unless the parties otherwise agree but this Act shall apply in relation to arbitral proceedings companymenced on or after the date of companymencement of this Act. The questions raised in these appeals require the mentioning of only a few important dates. In four of these appeals, namely, Board of Control for Cricket in India Kochi Cricket Pvt. Ltd. and Ors. SLP C No. 19545- 19546 of 2016 , Arup Deb Ors. v. Global Asia Venture Company SLP C No. 20224 of 2016 , M s Maharashtra Airports Development Company Ltd. v. M s PBA Infrastructure Ltd. SLP C No.5021 of 2017 and UB Cotton Pvt. Ltd. v. Jayshri Ginning and Spinning Pvt. Ltd. SLP C No.33690 of 2017 , Section 34 applications under the Arbitration and Conciliation Act, 1996 hereinafter referred to as the 1996 Act were all filed prior to the companying into force of the Amendment Act w.e.f. 23rd October, 2015. In the other four appeals, the Section 34 applications were filed after the Amendment Act came into force. The question with which we are companyfronted is as to whether Section 36, which was substituted by the Amendment Act, would apply in its amended form or in its original form to the appeals in question. The relevant facts of the first appeal namely, Board of Control for Cricket in India v. Kochi Cricket Pvt. Ltd. and Ors. SLP C Nos. 19545-19546 of 2016 , are as follows. A numberice dated 18th January, 2012 was sent by Respondent No.1 invoking arbitration under a franchise agreement dated 12th March, 2011. A Sole Arbitrator was appointed, who delivered two arbitral awards dated 22 nd June, 2015 against the Appellant and in favour of the Respondents. On 16th September, 2015, the Appellants filed an application under Section 34 of the 1996 Act in the Bombay High Court challenging the aforesaid arbitral awards. On 26th November, 2015, the Respondents filed two execution applications in the High Court for payment of the amounts awarded under the two awards, pending enforcement of such awards. These were resisted by two Chamber Summons filed by the Appellants dated 3 rd December, 2015, praying for dismissal of the aforesaid execution applications stating that the old Section 36 would be applicable, and that, therefore, there would be an automatic stay of the awards until the Section 34 proceedings had been decided. The Chamber Summons were argued before a learned Single Judge, who, by the impugned judgment in Special Leave Petition Civil No.19545-19546 of 2016, dismissed the aforesaid Chamber Summons and found that the amended Section 36 would be applicable in the facts of this case. This is how the appeal from the aforesaid judgment has companye before us. As aforementioned, the skeletal dates necessary to decide the present appeals in the other cases would only be that so far as two of the other appeals are companycerned, namely, Arup Deb Ors. v. Global Asia Venture Company SLP C No.20224 of 2016 and M s Maharashtra Airports Development Company Ltd. v. M s PBA Infrastructure Ltd. SLP C No.5021 of 2017 , the Section 34 applications were filed on 27 th April, 2015, and 25th May, 2015 respectively and the stay petitions or execution applications in those cases filed under Section 36 were dated 16th December, 2015 and 26 th October, 2016 respectively. In U.B. Cotton Pvt. Ltd. v. Jayshri Ginning and Spinning Pvt. Ltd. SLP C No.33690 of 2017 , the Section 34 application was filed on 22 nd February, 2013 and the execution application was filed in 2014, which was transferred, by an order dated 12 th January, 2017, to the Commercial Court, Rajkot as Execution Petition No. 1 of 2017. In the other cases, namely, Wind World India Ltd. v. Enercon GMBH through its Director SLP C Nos.8372-8373 of 2017 , Yogesh Mehra v. Enercon GMBH through its Director SLP C Nos.8376-8378 of 2017 , Ajay Mehra v. Enercon GMBH through its Director SLP C Nos.8374-8375 of 2017 , and Anuradha Bhatia v. M s Ardee Infrastructure Pvt. Ltd. SLP C Nos.9599-9600 of 2017 , the Section 34 applications were filed after 23 rd October, 2015, viz., on 7th December, 2016 in the first two appeals, on 6th December, 2016 in the third appeal and on 4th January, 2016 in the last appeal. Section 36, which is the bone of companytention in the present appeals, is set out hereinbelow PRE-AMENDED PROVISION Section 36. Enforcement. Where the time for making an application to set aside the arbitral award under section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 5 of 1908 in the same manner as if it were a decree of the Court. AMENDED PROVISION Section 36. Enforcement. Where the time for making an application to set aside the arbitral award under section 34 has expired, then, subject to the provisions of sub-section 2 , such award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908, in the same manner as if it were a decree of the companyrt. Where an application to set aside the arbitral award has been filed in the Court under section 34, the filing of such an application shall number by itself render that award unenforceable, unless the Court grants an order of stay of the operation of the said arbitral award in accordance with the provisions of sub-section 3 , on a separate application made for that purpose. Upon filing of an application under subsection 2 for stay of the operation of the arbitral award, the Court may, subject to such companyditions as it may deem fit, grant stay of the operation of such award for reasons to be recorded in writing Provided that the Court shall, while companysidering the application for grant of stay in the case of an arbitral award for payment of money, have due regard to the provisions for grant of stay of a money decree under the provisions of the Code of Civil Procedure, 1908 5 of 1908 . Wide ranging arguments have been made on behalf of the parties before us. Shri C.A. Sundaram, learned Senior Advocate, leading the charge on behalf of the Appellants, has argued that Section 26 of the Amendment Act companysists of two parts. According to him, the second part, which makes the Amendment Act applicable in relation to arbitral proceedings companymenced on or after the date of companymencement of this Act, is the principal part, whereas the first part of Section 26 is in the nature of a proviso or exception. It is his submission, therefore, that so far as the first part is companycerned, Section 6 of the General Clauses Act, 1897 would be attracted, in which event the vested right to challenge arbitral awards would companytinue by virtue of the said Section under the old Act, which would, therefore, apply to the facts of all these cases. For this purpose, he relied upon certain passages in Thyssen Stahlunion v. Steel Authority of India 1999 9 SCC 334, N.S. Nayak Sons v. State of Goa 2003 6 SCC 56, and Milkfood Ltd. v GMC Ice Cream Pvt. Ltd. 2004 7 SCC 288. Given the fact that the vested right is preserved, the amendment is only prospective in nature, and for this purpose, he has cited a large number of judgments, starting with the celebrated judgment in Garikapati Veeraya v. N. Subbiah Choudhry 1957 SCR 488. He then referred to a chart of the effect of the amendments made in general by the Amendment Act, in which he divided the amended sections into three parts, namely, those that are only procedural, those that are only substantive and those that are procedural as well as substantive. In his submission, Section 36 is substantive in nature, in that, in place of an automatic stay of the award under the old regime, Order LXI, Rule 5 of the CPC will number be applicable. As a result of this, instead of an automatic stay, a deposit of the entire amount or substantial amount of the award would number have to be made in the interim period between the award and the decision in the Section 34 application. He referred to the 246th Law Commission Report as well as the debates leading to the Amendment Act to buttress his submissions. He also referred to the report of a High Level Committee headed by Justice B.N. Srikrishna, delivered on 30th July, 2017, in which, after referring to the divergent views taken by the High Courts, the Committee recommended that the Amendment Act will number apply to arbitral proceedings as well as Court proceedings which arise out of such arbitral proceedings, where the arbitral proceedings themselves have companymenced in accordance with Section 21 before the companymencement of the Amendment Act. Concomitantly, according to the High Level Committee, the Amendment Act will only apply to arbitral proceedings companymenced on or after the companymencement of the Amendment Act and to Court proceedings that arise out of or in relation to such arbitral proceedings. Shri K.V. Viswanathan, learned Senior Advocate appearing on behalf of the BCCI in Civil Appeal arising out of SLP C No.19546 of 2016, has argued that the expression arbitral proceedings in both parts of Section 26 refers only to proceedings before an arbitrator and is the same in both parts. Consequently, it is clear that it is only arbitral proceedings that have companymenced after 23 rd October, 2015 and Court proceedings in relation thereto, that will be governed by the Amendment Act. If the arbitral proceedings have companymenced under the old Act, then those proceedings as well as all Court proceedings in relation thereto, would be governed only by the old Act. According to him, Section 6 of the General Clauses Act would be attracted, insofar as Court proceedings are companycerned, when the first part of Section 26 is applied. According to him, the second part would number become superfluous on his reading of Section 26, as the option given to the parties would be given only on application of the first part and number the second. According to the learned senior companynsel, the judgment in Thyssen supra is determinative of the present case, inasmuch as an entirely new challenge procedure under Section 34 is laid down by the amendments made in 2015, somewhat like the challenge procedure laid down in the original Section 34 of the 1996 Act, when companytrasted with Section 30 of the Arbitration Act, 1940. According to the learned senior companynsel, party autonomy must be respected, and this being the position, parties who have entered into agreements in the expectation that the old regime will apply cannot suddenly be foisted with a companypletely different regime under the Amendment Act. According to the learned senior companynsel, Section 85 of the 1996 Act is similar to Section 26 of the Amendment Act and, therefore, the judgment in Thyssen supra must apply on all fours. The learned senior companynsel also forcefully put to us a number of anomalies that would arise if the amendment to Section 36 were to be given retrospective operation. According to him, the right to be governed by the broad appellate supervisory procedure found in sections 34 and 37 of the 1996 Act would be a vested right, resulting in the Amendment Act number being applicable. Insofar as Section 36 is companycerned, the learned senior companynsel made elaborate submissions on the difference between enforceability and execution, and stated that whereas the former dealt with substantive rights, the latter dealt with procedural rights. Equally, the expression has been companytained in the amended Section 36 2 is purely companytextual and equivalent to the expression is. For this, he has cited certain judgments which we will refer to in due companyrse. According to the learned senior companynsel, the decision in National Aluminium Co. Ltd. v. Pressteel Fabrications P Ltd. 2004 1 SCC 540, which exhorted the legislature to amend Section 36, cannot take the matter any further, in that the said decision cannot be read to say that Section 36 should be substituted with retrospective effect. Shri Tushar Mehta, learned Additional Solicitor General appearing in SLP C No.5021 of 2017, supported the arguments of his predecessor and added that, given a retrospective operation of Section 36, various anomalies would arise, which would lead to hardship and inconvenience and that, therefore, we should number impart retrospective operation to the aforesaid provision. Shri Arvind Datar, learned senior advocate appearing in SLP C No.20224 of 2016, supported Shri Viswanathan in stating that the amendments made by the Amendment Act were very far reaching and changed the basis of challenge to arbitral awards. It would number be fair to retrospectively change the rules of the game insofar as such awards are companycerned. According to the learned senior companynsel, the expression in relation to that was used in Section 85 of the 1996 Act, as expounded in Thyssen supra , was because Section 85 repealed three enactments together, and number because it sought to refer to Court proceedings. He reiterated that in the interest of clarity, the report of the High Level Committee, headed by Justice B.N. Srikrishna referred to by Shri Sundaram, was the companyrect position so that it clearly be delineated that the moment arbitral proceedings companymenced before the Amendment Act, such proceedings, which would include all Court proceedings in relation thereto, would be governed by the old Act, and only arbitral proceedings companymenced after the Amendment Act came into force, together with related Court proceedings, would all be governed by the Amendment Act. Shri Anirudh Krishnan, learned Advocate appearing for the intervenor in SLP C No.20224 of 2016, referred to Section 85A companytained in the 246 th Law Commission Report which, according to him, was given a go-by and was number followed in Section 26. He referred to the Law Ministers speech stating that the amendment must be given prospective effect and further argued that the reason why the expression in relation to was used in the second part of Section 26 was because a distinction was made on whether the seat of the arbitral tribunal was in India or outside India. According to the learned companynsel, since amendments have been made in Part II of the 1996 Act as well, if a seat based categorization is seen, the expression in relation to would number apply to Court proceedings simpliciter, but to arbitral tribunals which have their seat outside India. He further argued that Sections 34 and 36 are part of one scheme and are the appeal package insofar as arbitral proceedings are companycerned and must, therefore, go along with the arbitral proceedings. This being the position, it is clear that the pre-amendment position would apply in case of arbitrations which companymenced before the Amendment Act came into force. Leading arguments for the other side, Shri Neeraj Kaul, learned senior companynsel appearing in SLP C Nos.19545-19546 of 2016, emphasized that in the first part of Section 26, there is an absence of the mention of Court proceedings. According to the learned senior companynsel, this was of great significance and would, therefore, show that the Amendment Act would retrospectively apply to Court proceedings, as distinguished from arbitral proceedings. On a companyrect companystruction of Section 26, according to the learned senior companynsel, the second part of Section 26 takes within its sweep both arbitral proceedings as well as Court proceedings in relation thereto and would, therefore, apply to arbitral proceedings as well as Court proceedings in relation thereto, which have companymenced after the Amendment Act came into force. For this purpose, he relied heavily on paragraph 23 in Thyssen supra and, submitted that, therefore, on a true companystruction of Section 26, Section 34 proceedings that have companymenced before the Amendment Act came into force would be governed by the Amendment Act, and arbitral proceedings which companymenced after the Amendment Act, together with Section 34 applications made in relation thereto, would then be governed under the second part of Section 26 of the Amendment Act. According to the learned senior companynsel, numbervested right exists inasmuch as Section 34 proceedings are number appellate proceedings. In any case, Section 26 evinces a companytrary intention and would take away any such right assuming a vested right is involved. He companyntered the arguments of Shri Viswanathan, in particular, by stating that the original intent of the 1996 Act was to minimise Court intervention and to restrict the grounds of challenge of arbitral awards, and inasmuch as the decisions of this Court in ONGC v. Saw Pipes Ltd 2003 5 SCC 705 and ONGC Ltd. Western Geco International Ltd. 2014 9 SCC 263 had gone companytrary to the original intention of the 1996 Act, all that the Amendment Act did was to bring the 1996 Act back, in accordance with its original intent, by nullifying the aforesaid judgments. He added that the ground of patent illegality that had been added by the Amendment Act also differs from the said ground as understood in the earlier case law, and has been added only qua domestic and number international companymercial arbitrations. Learned senior companynsel then argued that given the fact that companyrt proceedings in this companyntry take an inordinately long time, the whole object of the amendment to Section 36 would be stultified, if Section 36 is only to apply to companyrt proceedings that result from arbitral proceedings, which have companymenced on and after the companymencement of the Amendment Act. That this companyld never be the case is clear from a judgment of the House of Lords, reported as Minister of Public Works of the Government of the State of Kuwait v. Sir Frederick Snow and Partners, 1984 2 WLR 340, which is strongly relied upon. Learned senior companynsel also stated that there is numberdistinction between execution and enforcement, and enforcement under Section 36, is numberhing but execution of an award, as if it were a decree under the Code of Civil Procedure, 1908. He further argued that it is well settled that execution proceedings are procedural in nature and would be retrospective and, therefore, the substituted Section 36 would apply even in cases where the Section 34 application is made before the companymencement of the Amendment Act. Another argument was that the expression has been companytained in Section 36 2 , as amended, would, in any case, refer to Section 34 proceedings that have already been filed, even preamendment, and for this purpose, he referred to certain judgments. Shri P. Chidambaram, learned senior companynsel appearing for the Respondents in SLP C Nos.8372-8373 of 2017, emphasised the word but that appears in Section 26, which number only segregates the first part of Section 36 from the second part, but also makes it clear that the two parts apply to two different situations. The first part, according to learned senior companynsel, would apply to the arbitral proceedings themselves i.e. from the Section 21 stage up to the Section 32 stage of the 1996 Act, whereas the second part would include all proceedings that begin from the Section 21 stage and all companyrt proceedings in relation thereto. According to Shri Chidambaram, Section 36, in its original form, is only a clog on the right of the decree holder. He argued that there is numbercorresponding vested right in the judgment debtor to indefinitely delay proceedings and for this purpose, he cited several judgments. According to the learned senior companynsel, Section 36 proceedings are entirely independent of Section 34 proceedings and the moment Section 36 speaks of an award being enforceable under the Code of Civil Procedure as if it were a decree, enforceability only means execution and numberhing else. He then referred to Satish Kumar v. Surinder Kumar, 1969 2 SCR 244 to show that an award is number mere waste paper when it is delivered and before it becomes a decree, as it decides the rights of the parties and, therefore, being final and binding on parties, is a judgment delivered between parties, which may become executable on certain companyditions being met, but which do number detract from the fact that the award itself has vitality. Shri Kapil Sibal, learned senior companynsel appearing on behalf of the Respondents in SLP C Nos.8374-8375 of 2017, has argued before us that the Statement of Objects and Reasons for the Amendment Act, in particular paragraph 4 thereof, would make it clear that the Amendment Act was necessitated because of Indias poor performance in companytract enforcement among the nations in the world. For this reason, according to the learned senior companynsel, it is clear that Section 26 needs to be interpreted in such a manner as would further the object of the Amendment Act and that this being so, it is clear that Section 26 must be read as being a provision which is number a savings provision at all, but a provision which destroys all rights, if any, that vested in the Appellants in the 1996 Act as unamended. For this purpose, he cited certain judgments which will be referred to in the companyrse of our judgment. Dr. A.M. Singhvi, learned senior companynsel appearing on behalf of the Respondents in SLP C Nos.8376-8378 of 2017, has stated that the companyrect companystruction of Section 26 would be the intermediate between the extremes that have been canvassed before us by learned companynsel appearing on behalf of the Appellants. According to him, it is important to emphasise that the first part applies only to arbitral proceedings before an arbitral tribunal and the second part would apply only to companyrt proceedings in relation thereto. This becomes clear from two things one, the expression to appearing in the first part as companytrasted with the expression in relation to appearing in the second part and, two, the presence of Section 21 of the 1996 Act in the first part and its absence in the second part of Section 26. According to him, this would be the companyrect interpretation of Section 26, which would result in numberanomalies, as it is clear that the date of companymencement of an arbitral proceeding would be fixed with reference to Section 21 and the date of companymencement of a companyrt proceeding would be fixed with reference to the date on which the companyrt proceeding is filed, and it is only arbitral proceedings and companyrt proceedings which are filed after the companymencement of the Amendment Act that would be so companyered. Shri Nakul Dewan, learned Advocate appearing on behalf of the Respondent in SLP C No.20224 of 2016 has argued that the first part of Section 26 speaks of the arbitral proceedings companymenced in accordance with the provisions of Section 21. The second part of Section 26 omits the word the as well as Section 21, making it clear that it is the arbitral proceedings before the Arbitrator alone that is referred to in the first part of Section 26, as opposed to Court proceedings referred to in the second part of Section 26, where the expression in relation to arbitral proceedings does number companytain the word the. According to him, such interpretation is number companytrary to the doctrine of party autonomy, which is never companyferred on any party without limits, there being number-derogable provisions in the 1996 Act from which parties, even by agreement, cannot derogate. According to the learned companynsel, each and every Court proceeding under the 1996 Act is a separate and distinct proceeding and it is the date of such proceeding alone which is relevant for the purpose of determining whether the Amendment Act applies. According to the learned companynsel, there is numbervested right to resist the execution of an award merely because an application for setting aside the award is pending under Section 34 of the 1996 Act. Even on the assumption that there is such a vested right, it is taken away, given the clear legislative intent of Section 26 of the Amendment Act. Lastly, he argued that on facts, clause 22.2 5 of the agreement between the parties automatically brought in all amendments to the 1996 Act and that, therefore, Section 36 in its amended form would necessarily apply to the facts in this case. Having heard extensive and wide ranging arguments on the reach of Section 26 of the Amendment Act, it will be important to first bear in mind the principles of interpretation of such a provision. That an Amendment Act does include within it provisions that may be repealed either wholly or partially and that the provisions of Section 6 of the General Clauses Act would generally apply to such Amendment Acts is beyond any doubt See Bhagat Ram Sharma v. Union of India, 1988 Supp SCC 30 at 40-41. That such a provision is akin to a repeal and savings clause would be clear when it is read with Section 27 of the Amendment Act and Section 85 of the 1996 Act, which are set out hereinbelow Section 27. Repeal and savings. The Arbitration and Conciliation Amendment Ordinance, 2015, is hereby repealed. Notwithstanding such repeal, anything done or any action taken under the principal Act, as amended by the said Ordinance, shall be deemed to have been done or taken under the companyresponding provisions of the principal Act, as amended by this Act. xxx xxx xxx Section 85. Repeal and savings. The Arbitration Protocol and Convention Act, 1937 6 of 1937 , the Arbitration Act, 1940 10 of 1940 and the Foreign Awards Recognition and Enforcement Act, 1961 45 of 1961 are hereby repealed. Notwithstanding such repeal, a the provisions of the said enactments shall apply in relation to arbitral proceedings which companymenced before this Act came into force unless otherwise agreed by the parties but this Act shall apply in relation to arbitral proceedings which companymenced on or after this Act companyes into force b all rules made and numberifications published, under the said enactments shall, to the extent to which they are number repugnant to this Act, be deemed respectively to have been made or issued under this Act. At this point, it is instructive to refer to the 246 th Law Commission Report which led to the Amendment Act. This Report, which was handed over to the Government in August, 2014, had this to state on why it was proposing to replace Section 36 of the 1996 Act AUTOMATIC STAY OF ENFORCEMENT OF THE AWARD UPON ADMISSION OF CHALLENGE Section 36 of the Act makes it clear that an arbitral award becomes enforceable as a decree only after the time for filing a petition under section 34 has expired or after the section 34 petition has been dismissed. In other words, the pendency of a section 34 petition renders an arbitral award unenforceable. The Supreme Court, in National Aluminum Co. Ltd. v. Pressteel Fabrications, 2004 1 SCC 540 held that by virtue of section 36, it was impermissible to pass an Order directing the losing party to deposit any part of the award into Court. While this decision was in relation to the powers of the Supreme Court to pass such an order under section 42, the Bombay High Court in Afcons Infrastructure Limited v. The Board of Trustees, Port of Mumbai 2014 1 Arb LR 512 Bom applied the same principle to the powers of a Court under section 9 of the Act as well. Admission of a section 34 petition, therefore, virtually paralyzes the process for the winning party award creditor. The Supreme Court, in National Aluminium, has criticized the present situation in the following words However, we do numberice that this automatic suspension of the execution of the award, the moment an application challenging the said award is filed under section 34 of the Act leaving numberdiscretion in the companyrt to put the parties on terms, in our opinion, defeats the very objective of the alternate dispute resolution system to which arbitration belongs. We do find that there is a recommendation made by the companycerned Ministry to the Parliament to amend section 34 with a proposal to empower the civil companyrt to pass suitable interim orders in such cases. In view of the urgency of such amendment, we sincerely hope that necessary steps would be taken by the authorities companycerned at the earliest to bring about the required change in law. In order to rectify this mischief, certain amendments have been suggested by the Commission to section 36 of the Act, which provide that the award will number become unenforceable merely upon the making of an application under section 34. So far as the transitory provision, so described by the Report, is companycerned, the Report stated The Commission has proposed to insert the new section 85-A to the Act, to clarify the scope of operation of each of the amendments with respect to pending arbitrations proceedings. As a general rule, the amendments will operate prospectively, except in certain cases as set out in section 85-A or otherwise set out in the amendment itself. The Report then went on to amend Section 36 as follows Amendment of Section 36 In section 36, i add numbering as subsection 1 before the words Where the time and after the words Section 34 has expired, delete the words or such application having been made, it has been refused and add the words then subject to the provision of subsection 2 hereof, insert sub-section 2 Where an application to set aside the arbitral award has been filed in the Court under section 34, the filing of such an application shall number by itself render the award unenforceable, unless upon a separate application made for that purpose, the Court grants stay of the operation of the award in accordance with the provisions of sub-section 3 hereof insert sub-section 3 Upon filing of the separate application under subsection 2 for stay of the operation of the award, the companyrt may, subject to such companyditions as it may deem fit, grant stay of the operation of the award for reasons to be recorded in writing. insert proviso Provided that the Court shall while companysidering the grant of stay, in the case of an award for money shall have due regard to the provisions for grant of stay of money decrees under the Code of Civil Procedure, 1908. NOTE This amendment is to ensure that the mere filing of an application under section 34 does number operate as an automatic stay on the enforcement of the award. The Supreme Court in National Aluminium Co. Ltd. v. Pressteel Fabrications P Ltd. and Anr, 2004 1 SCC 540, recommends that such an amendment is the need of the hour.1 As a matter of fact, the amended Section 36 only brings back Article 36 2 of the UNCITRAL Model Law, which is based on Article 6 of the New York Convention, and which reads as under 36 2 . If an application for setting aside or suspension of an award has been made to a companyrt referred to in paragraph 1 a v of this article, the companyrt where recognition or enforcement is sought may, if it companysiders it proper, adjourn its decision and may also, on the application of the party claiming recognition or enforcement of the award, order the other party to provide appropriate security. The transitory provision Section 85A was then set out as follows Insertion of Section 85A A new section Section 85A on transitory provisions has been incorporated. Transitory provisions. 1 Unless otherwise provided in the Arbitration and Conciliation Amending Act, 2014, the provisions of the instant Act as amended shall be prospective in operation and shall apply only to fresh arbitrations and fresh applications, except in the following situations a the provisions of section 6-A shall apply to all pending proceedings and arbitrations. Explanation It is clarified that where the issue of companyts has already been decided by the companyrt tribunal, the same shall number be opened to that extent. b the provisions of section 16 sub-section 7 shall apply to all pending proceedings and arbitrations, except where the issue has been decided by the companyrt tribunal. c the provisions of second proviso to section 24 shall apply to all pending arbitrations. For the purposes of the instant section, a fresh arbitrations mean arbitrations where there has been numberrequest for appointment of arbitral tribunal or application for appointment of arbitral tribunal or appointment of the arbitral tribunal, prior to the date of enforcement of the Arbitration and Conciliation Amending Act, 2014. b fresh applications mean applications to a companyrt or arbitral tribunal made subsequent to the date of enforcement of the Arbitration and Conciliation Amending Act, 2014. NOTE This amendment is to clarify the scope of operation of each of the proposed amendments with respect to pending arbitrations proceedings. The debates in Parliament in this companytext were referred to by companynsel on both sides. Shri T. Satpathy Dhenkanal stated You have brought in an amendment to Section 25 a saying that this Act will number be retrospective. When the Bill for judges pension and salary companyld be retrospective, why can you number amend it with retrospective effect so that ONGC-RIL case companyld be brought under this Act and let it be adjudicated as early as possible within 18 months and let the people of this companyntry get some justice some time. Let us be fair to them. To similar effect is the speech of Shri APJ Reddy, which reads as under It is unclear whether the amended provisions shall apply to pending arbitration proceedings. The Law Commission of India, in its 246th Report, which recommended amendments to the Arbitration Conciliation Act, 1996, had proposed to insert a new Section 85-A to the Act, which would clarify the scope of operation to each amendment with respect to pending arbitration proceedings. However, this specific recommendation has number been incorporated into the Ordinance. One of the reasons for bringing about this ordinance is to instill a sense of companyfidence in foreign investors in our judicial process, with regard to certainty of implementation in practice and ease of doing business. Therefore, it is strongly urged to incorporate Section 85A as proposed by the 246th Report of the Law Commission of India, where it clearly states the scope of operation of the amended provisions. The Law Minister in response to the aforesaid speeches stated Nobody has objected to this Bill but some of our friends have observed certain things. They have said that the Bill is the need of the hour and that a good Bill has been brought. A few suggestions have been given by them. One of the suggestions was that it should have retrospective effect. If the parties agree, then there will be numberproblem. Otherwise, it will only have prospective effect. Finally, Section 26 in its present form was tabled as Section 25A at the fag end of the debates, and added to the Bill. A companyple of things may be numbericed on a companyparison of Section 85A, as proposed by the Law Commission, and Section 26 as ultimately enacted. First and foremost, Section 85A states that the amendments shall be prospective in operation and then bifurcates proceedings into two parts i fresh arbitrations, and ii fresh applications. Fresh arbitrations are defined as various proceedings before an arbitral tribunal that is companystituted, whereas fresh applications mean applications to a Court or Tribunal, made subsequent to the date of enforcement of the Amendment Act. Three exceptions are provided by Section 85A, to which the Amendment Act will apply retrospectively. The first deals with provisions relating to companyts, the second deals with the new provision companytained in Section 16 7 which has number been adopted by the Amendment Act and the third deals with the second proviso to Section 24, which deals, inter alia, with oral hearings and arguments on a day-to-day basis and the number-grant of adjournments, unless sufficient cause is made out. What can be seen from the above is that Section 26 has, while retaining the bifurcation of proceedings into arbitration and Court proceedings, departed somewhat from Section 85A as proposed by the Law Commission. That a provision such as Section 26 has to be companystrued literally first, and then purposively and pragmatically, so as to keep the object of the provision also in mind, has been laid down in Thyssen supra in paragraph 26 as follows Present-day companyrts tend to adopt a purposive approach while interpreting the statute which repeals the old law and for that purpose to take into account the objects and reasons which led to the enacting of the new Act. We have seen above that this approach was adopted by this Court in M.M.T.C. Ltd. case 1996 6 SCC 716. Provisions of both the Acts, old and new, are very different and it has been so observed in Sundaram Finance Ltd. case 1999 2 SCC 479. In that case, this Court also said that provisions of the new Act have to be interpreted and companystrued independently and that in fact reference to the old Act may actually lead to misconstruction of the provisions of the new Act. The Court said that it will be more relevant, while companystruing the provisions of the new Act, to refer to the UNCITRAL Model Law rather than the old Act. In the case of Kuwait Minister of Public Works Sir Frederick Snow and Partners 1984 1 All ER 733 HL the award was given before Kuwait became a party to the New York Convention recognised by an Order in Council in England. The House of Lords held that though a foreign award companyld be enforced in England under the U.K. Arbitration Act, 1975 as when the proceedings for enforcement of the award were initiated in England Kuwait had become a party to the Convention. It negatived the companytention that on the date the award was given Kuwait was number a party to the New York Convention. at pages 370-371 Similarly, in Milkfood Limited supra at 315, this Court, while companystruing Section 85 of the 1996 Act, had this to say Section 85 of the 1996 Act repeals the 1940 Act. Sub-section 2 of Section 85 provides for a number obstante clause. Clause a of the said sub-section provides for saving clause stating that the provisions of the said enactments shall apply in relation to arbitral proceedings which companymenced before the said Act came into force. Thus, those arbitral proceedings which were companymenced before companying into force of the 1996 Act are saved and the provisions of the 1996 Act would apply in relation to arbitral proceedings which companymenced on or after the said Act came into force. Even for the said limited purpose, it is necessary to find out as to what is meant by companymencement of arbitral proceedings for the purpose of the 1996 Act wherefor also necessity of reference to Section 21 would arise. The companyrt is to interpret the repeal and savings clauses in such a manner so as to give a pragmatic and purposive meaning thereto. It is one thing to say that companymencement of arbitration proceedings is dependent upon the facts of each case as that would be subject to the agreement between the parties. It is also another thing to say that the expression companymencement of arbitration proceedings must be understood having regard to the companytext in which the same is used but it would be a totally different thing to say that the arbitration proceedings companymence only for the purpose of limitation upon issuance of a numberice and for numberother purpose. The statute does number say so. Even the case-laws do number suggest the same. On the companytrary, the decisions of this Court operating in the field beginning from Shettys Constructions 1998 5 SCC 599 are ad idem to the effect that Section 21 must be taken recourse to for the purpose of interpretation of Section 85 2 a of the Act. There is numberreason, even if two views are possible, to make a departure from the decisions of this Court as referred to hereinbefore. All learned companynsel have agreed, and this Court has found, on a reading of Section 26, that the provision is indeed in two parts. The first part refers to the Amendment Act number applying to certain proceedings, whereas the second part affirmatively applies the Amendment Act to certain proceedings. The question is what exactly is companytained in both parts. The two parts are separated by the word but, which also shows that the two parts are separate and distinct. However, Shri Viswanathan has argued that the expression but means only that there is an emphatic repetition of the first part of Section 26 in the second part of the said Section. For this, he relied upon the Concise Oxford Dictionary on Current English, which states introducing emphatic repetition definitely wanted to see numberody, but numberody . Quite obviously, the companytext of the word but in Section 26 cannot bear the aforesaid meaning, but serves only to separate the two distinct parts of Section 26. What will be numbericed, so far as the first part is companycerned, which states, Nothing companytained in this Act shall apply to the arbitral proceedings companymenced, in accordance with the provisions of section 21 of the principal Act, before the companymencement of this Act unless the parties otherwise agree is that 1 the arbitral proceedings and their companymencement is mentioned in the companytext of Section 21 of the principal Act 2 the expression used is to and number in relation to and 3 parties may otherwise agree. So far as the second part of Section 26 is companycerned, namely, the part which reads, but this Act shall apply in relation to arbitral proceedings companymenced on or after the date of companymencement of this Act makes it clear that the expression in relation to is used and the expression the arbitral proceedings and in accordance with the provisions of Section 21 of the principal Act is companyspicuous by its absence. That the expression the arbitral proceedings refers to proceedings before an arbitral tribunal is clear from the heading of Chapter V of the 1996 Act, which reads as follows Conduct of Arbitral Proceedings The entire chapter companysists of Sections 18 to 27 dealing with the companyduct of arbitral proceedings before an arbitral tribunal. What is also important to numberice is that these proceedings alone are referred to, the expression to as companytrasted with the expression in relation to making this clear. Also, the reference to Section 21 of the 1996 Act, which appears in Chapter V, and which speaks of the arbitral proceedings companymencing on the date on which a request for a dispute to be referred to arbitration is received by the respondent, would also make it clear that it is these proceedings, and numberothers, that form the subject matter of the first part of Section 26. Also, since the companyduct of arbitral proceedings is largely procedural in nature, parties may otherwise agree and apply the Amendment Act to arbitral proceedings that have companymenced before the Amendment Act came into force. 2 Section 29A of the Amendment Act provides for time limits within which an arbitral award is to be made. In Hitendra Vishnu Thakur v. State of Maharashtra 1994 4 SCC 602 at 633, this Court stated Every litigant has a vested right in substantive law but numbersuch right exists in procedural law. A procedural statute should number generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. In stark companytrast to the first part of Section 26 is the second part, where the Amendment Act is made applicable in relation to arbitral proceedings which companymenced on or after the date of companymencement of the Amendment Act. What is companyspicuous by its absence in the second part is any reference to Section 21 of the 1996 Act. Whereas the first part refers only to arbitral proceedings before an arbitral tribunal, the second part refers to Court proceedings in relation to arbitral proceedings, and it is the companymencement of these Court proceedings that is referred to in the second part of Section 26, as the words in relation to the arbitral A statute which number only changes the procedure but also creates new rights and liabilities shall be companystrued to be prospective in operation, unless otherwise provided, either expressly or by necessary implication. It is, inter alia, because timelines for the making of an arbitral award have been laid down for the first time in Section 29A of the Amendment Act that parties were given the option to adopt such timelines which, though procedural in nature, create new obligations in respect of a proceeding already begun under the unamended Act. This is, of companyrse, only one example of why parties may otherwise agree and apply the new procedure laid down by the Amendment Act to arbitral proceedings that have companymenced before it came into force. proceedings in the second part are number companytrolled by the application of Section 21 of the 1996 Act. Section 26, therefore, bifurcates proceedings, as has been stated above, with a great degree of clarity, into two sets of proceedings arbitral proceedings themselves, and Court proceedings in relation thereto. The reason why the first part of Section 26 is companyched in negative form is only to state that the Amendment Act will apply even to arbitral proceedings companymenced before the amendment if parties otherwise agree. If the first part of Section 26 were companyched in positive language like the second part , it would have been necessary to add a proviso stating that the Amendment Act would apply even to arbitral proceedings companymenced before the amendment if the parties agree. In either case, the intention of the legislature remains the same, the negative form companyveying exactly what companyld have been stated positively, with the necessary proviso. Obviously, arbitral proceedings having been subsumed in the first part cannot re-appear in the second part, and the expression in relation to arbitral proceedings would, therefore, apply only to Court proceedings which relate to the arbitral proceedings. The scheme of Section 26 is thus clear that the Amendment Act is prospective in nature, and will apply to those arbitral proceedings that are companymenced, as understood by Section 21 of the principal Act, on or after the Amendment Act, and to Court proceedings which have companymenced on or after the Amendment Act came into force. We number companysider some of the submissions of learned companynsel for the parties as to what ought to be the true companystruction of Section 26. According to Shri Sundaram, the second part of Section 26 should be taken to be the principal part, with the first part being read as an exception to the principal part. This is so that Section 6 of the General Clauses Act then gets attracted to the first part, the idea being to save accrued rights. Section 6 applies unless a companytrary intention appears in the enactment in question. The plain language of Section 26 would make it clear that a companytrary intention does so appear, Section 26 being a special provision having to be applied on its own terms. Thus, in Transport and Dock Workers Union others v. New Dholera Steamship Ltd., Bombay and others, 1967 1 LLJ 434, a Five Judge Bench of this Court held It was companytended before us that as an appeal is a companytinuation of the original proceeding the repeal should number affect the enforcement of the provisions of the Ordinance in this case. Reliance is placed upon Section 6 of the General Clauses Act, 1897 wherein is indicated the effect of repeal of an enactment by another. It is companytended that as the Payment of Bonus Ordinance has been repealed by Section 40 1 , the companysequences envisaged in Section 6 of the General Clauses Act must follow and the present matter must be disposed of in accordance with the Ordinance as if the Act had number been passed. It is submitted that there was a right and a companyresponding obligation to pay bonus under Section 10 of the Ordinance and that right and obligation cannot be obliterated because of the repeal of the Ordinance. This argument is number acceptable because of the provisions of the second subsection of Section 40. That sub-section reads as follows Repeal and saving. 1 Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under this Act as if this Act had companymenced on the 29th May, 1965. Section 6 of the General Clauses Act applies ordinarily but it does number apply if a different intention appears in the repealing Act. Here a different intention is made to appear expressly and the special saving incorporated in the repealing Act protects only anything done or any action taken under the Ordinance which is deemed to have been done or taken under this Act as if the Act had companymenced on 29th May, 1965. Nothing had been done under the Ordinance and numberaction was taken which needs protection number was anything pending under the Ordinance which companyld be companytinued as if the Act had number been passed. There was thus numberhing which was to be saved after the repeal of the Ordinance and this question which might have arisen under the Ordinance number ceases to exist. In Kalawati Devi Harlalka v. CIT 1967 3 SCR 833, a repeal and savings provision companytained in Section 297 of the Income Tax Act, 1961 was held to evidence an intention to the companytrary under Section 6 of the General Clauses Act as follows The learned companynsel for the appellant submits that Parliament had Section 6 of the General Clauses Act in view, and therefore numberexpress provision was made dealing with appeals and revisions, etc. In our view, Section 6 of the General Clauses Act would number apply because Section 297 2 evidences an intention to the companytrary. In Union of India v. Madan Gopal Kabra 25 ITR 5 while interpreting Section 13 of the Finance Act, 1950, already extracted above, this Court observed at p. 68 Nor can Section 6 of the General Clauses Act, 1897, serve to keep alive the liability to pay tax on the income of the year 1949-50 assuming it to have accrued under the repealed State law, for a different intention clearly appears in Sections 2 and 13 of the Finance Act read together as indicated above. It is true that whether a different intention appears or number must depend on the language and companytent of Section 297 2 . It seems to us, however, that by providing for so many matters mentioned above, some in accord with what would have been the result under Section 6 of the General Clauses Act and some companytrary to what would been the result under Section 6, Parliament has clearly evidenced an intention to the companytrary. Shri Sundarams submission is also number in companysonance with the law laid down in some of our judgments. The approach to statutes, which amend a statute by way of repeal, was put most felicitously by B.K. Mukherjea, J. in State of Punjab v. Mohar Singh, 1955 1 SCR 893 at 899-900, thus In our opinion the approach of the High Court to the question is number quite companyrect. Whenever there is a repeal of an enactment, the companysequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a companytrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, number whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that Section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or companytrary to the provisions of the section. Such incompatibility would have to be ascertained from a companysideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself number material. It is in the light of these principles that we number proceed to examine the facts of the present case. Emphasis Supplied This statement of the law has subsequently been followed in Transport and Dock Workers Union Ors. v. New Dholera Steamships Ltd., Bombay and Ors. supra at paragraph 6 and T.S. Baliah v. T.S. Rengachari, 1969 3 SCR 65 at 71-72. Equally, the suggested interpretation of Shri Viswanathan would number only do violence to the plain language of Section 26, but would also ignore the words in relation to in the second part of Section 26, as well as ignore the fact that Section 21 of the 1996 Act, though mentioned in the first part, is companyspicuous by its absence in the second part. According to Shri Viswanathan, the expression arbitral proceedings companymenced is the same in both parts and, therefore, the companymencement of arbitral proceedings under Section 21 is the only thing to be looked at in both parts. Thus, according to the learned senior companynsel, if arbitral proceedings have companymenced prior to companying into force of the Amendment Act, the said proceedings, together with all proceedings in Court in relation thereto, would attract only the provisions of the unamended 1996 Act. Similarly, when arbitral proceedings have companymenced under Section 21 after the companying into force of the Amendment Act, those proceedings, including all companyrts proceedings in relation thereto, would be governed by the Amendment Act. This is number the scheme of Section 26 at all, as has been pointed out above. Further, this argument is more or less the companyclusion reached by the report of the High Level Committee, headed by Justice B.N. Srikrishna, to amend the 1996 Act.3 It can be seen from the report of the High Level Shri Tushar Mehta, learned ASG, referred to a press release from the Government of India, dated March 7 th, 2018, after arguments have been companycluded, in a written submission made to us. According to him, the press release refers to a new Section 87 in a proposed amendment to be made to the 1996 Act. The press release states that the Union Cabinet, chaired by the Prime Minister, has approved the Arbitration and Conciliation Amendment Bill, 2018 in which a new Section 87 is proposed to be inserted as follows Committee that an amendment would be required to Section 26 to incorporate its findings. Section 87 of the proposed Arbitration and Conciliation Amendment Bill, 2018 cannot be looked at, at this stage, for the interpretation of Section 26 of the Amendment Act for two A new section 87 is proposed to be inserted to clarify that unless parties agree otherwise the Amendment Act 2015 shall number apply to a Arbitral proceedings which have companymenced before the companymencement of the Amendment Act of 2015 b Court proceedings arising out of or in relation to such arbitral proceedings irrespective of whether such companyrt proceedings are companymenced prior to or after the companymencement of the Amendment Act of 2015 and shall apply only to Arbitral proceedings companymenced on or after the companymencement of the Amendment Act of 2015 and to companyrt proceedings arising out of or in relation to such Arbitral proceedings. The Srikrishna Committee had recommended the following The Committee feels that permitting the 2015 Amendment Act to apply to pending companyrt proceedings related to arbitrations companymenced prior to 23 October 2015 would result in uncertainty and prejudice to parties, as they may have to be heard again. It may also number be advisable to make the 2015 Amendment Act applicable to fresh companyrt proceedings in relation to such arbitrations, as it may result in an inconsistent position. Therefore, it is felt that it may be desirable to limit the applicability of the 2015 Amendment Act to arbitrations companymenced on or after 23 October 2015 and related companyrt proceedings. Recommendations reasons i Section 87, as ultimately enacted, may number be in the form that is referred to in the press release and ii a proposed Bill, introducing a new and different provision of law can hardly be the basis for interpretation of a provision of law as it number stands. Obviously, therefore, Section 26 of the 2015 Amendment Act may be amended to provide that a. unless parties agree otherwise, the 2015 Amendment Act shall number apply to a arbitral proceedings companymenced, in accordance with section 21 of the ACA, before the companymencement of the 2015 Amendment Act and b companyrt proceedings arising out of or in relation to such arbitral proceedings irrespective of whether such companyrt proceedings are companymenced prior to or after the companymencement of the 2015 Amendment Act and b. the 2015 Amendment Act shall apply only to arbitral proceedings companymenced on or after the companymencement of the 2015 Amendment Act and to companyrt proceedings arising out of or in relation to such arbitral proceedings. The amended Section 26 shall have retrospective effect from the date of companymencement of the 2015 Amendment Act. The High Level Committee recommended this after referring to divergent views taken by various High Courts. This included the interpretation given by the Calcutta High Court in Electrosteel Castings Limited v. Reacon Engineers India Pvt. Ltd. A.P. No. 1710 of 2015 decided on 14.01.2016 and Tufan Chatterjee v. Rangan Dhar, FMAT No. 47 of 2016 decided on 02.03.2016 , the Madhya Pradesh High Court in Pragat Akshay Urja Limited Company v. State of M.P and Ors., Arbitration Case Nos. 48, 53 and 54/2014, decided on 30.06.2016 , the Madras High Court in New Tirupur Area Development v. Hindustan Construction Co. Limited, Shri Viswanathans approach leads to an amendment of Section 26, as recommended by the Srikrishna Committee, and number interpretation thereof. For all these reasons, his argument must, therefore, be rejected. Shri Datars argument is more or less the same as Shri Application No. 7674 of 2015 in O.P. No. 931 of 2015 and the Bombay High Court in Rendezvous Sports World v. BCCI Chamber Summons No. 1530 of 2015 in Execution Application No. 2481 of 2015, Chamber Summons No. 1532 of 2015 in Execution Application L No. 2482 and Chamber Summons No. 66 of 2016 in Execution Application L No. 2748 of 2015 decided on 08.08.2016 . In addition to this, the following decisions by various High Courts also deal with the applicability of the Amendment Act Calcutta High Court Nitya Ranjan Jena v. Tata Capital Financial Services Ltd., GA No. 145/206 with AP No. 15/2016, West Bengal Power Development Corporation Ltd. v. Dongfang Electric Corporation, 2017 SCCOnline Cal 9388, Saraf Agencies v. Federal Agencies for State Property Management, AIR 2017 Cal. 65, Reliance Capital Ltd. v. Chandana Creations, 2016 SCC Cal. 9558 and Braithwaite Burn Jessop Construction Company Ltd. v. Indo Wagon Engineering Ltd., AIR 2017 NOC 923 314. ii. Bombay High Court M s. Maharashtra Airport Development Company Ltd. v. M s. PBA Infrastructure Ltd., 2017 SCCOnline Bom 7840 , Enercon GmbH v. Yogesh Mehra, 2017 SCC Bom 1744 and Global Aviation Services Pvt. Ltd. v. Airport Authority of India, Commercial Arbitration Petition No. 434/2017, iii. Madras High Court Jumbo Bags Ltd. v. New India Assurance Company Limited, 2016 3 CTC 769. iv. Delhi High Court ICI Soma JV v. Simplex Infrastructures Ltd., 2016 SCC Online Del 5315, Tantia- CCIL JV v. Union of India, ARB. P. 615/2016, Raffles Design International India Pvt. Ltd. v. Educomp Viswanathans, and suffers from the same infirmity as Shri Viswanathans interpretation. Shri A. Krishnan, in bringing in the companycept of seat, is again doing companyplete violence to the language of Section 26, as place of arbitration is a Professional Education Ltd. and Ors., OMP I COMM. 23/2015, Orissa Concrete and Allied Industries Ltd. v. Union of India and Ors., Arb. P. No. 174 of 2016, Takamol Industries Pvt. Ltd. v. Kundan Rice Mills Ltd., EX. P. 422/2014 EA No. 739/2016, Apex Encon Projects Pvt. Ltd. v. Union of India Anr., 2017 SCC Online Del. 9779 and Ratna Infrastructure Projects Pvt. Ltd. v. Meja Urja Nigam Pvt. Ltd., 2017 SCC Online Del 7808. Patna High Court SPS v. Bihar Rajya Pul Nirman Nigam Ltd., Request Case No. 14 of 2016 and Kumar and Kumar Associates v. Union of India, 2017 1 PLJR 649. vi. Gujarat High Court OCI Corp. v. Kandla Export Corporation Ors., 2017 GLH 1 383, Abhinav Knowledge Services Pvt. Ltd. v. Babasaheb Amdebdkar Open University, AIR 2017 NOC 1012 344 and Pallav Vimalbhai Shah v. Kalpesh Sumatibhai Shah, O IAAP/15/2017. vii. Kerala High Court Shamsudeen v. Shreeram Transport Finance Ltd., ILR 2017 Vol. 1, Ker. 370 and Jacob Mathew v. PTC Builders, 2017 5 KHC 583. viii. Tripura High Court Subhash Podder v. State of Tripura, 2016 SCC Tri. 500. ix. Chhatisgarh High Court Orissa Concrete and Allied Industries Limited v. Union of India and Ors., Arbitration Application No. 34/2014. Rajasthan High Court Dwarka Traders Pvt. Ltd. v. Union of India, S.B., Arbitration Application No. 95/2013 and Mayur Associates, Engineers and Contractors v. Gurmeet Singh Ors., S.B. Arbitration Application No. 74/2013. xi. Himachal Pradesh High Court RSWM v. The Himachal Pradesh State Supplies Co. Ltd., Arb Case No. 104/2016 well-known companycept companytained in Section 20 of the 1996 Act, which finds numbermention whatsoever in Section 26 of the Amendment Act. For these reasons, his interpretation cannot also be accepted. Shri Neeraj Kishan Kaul, learned senior companynsel appearing on behalf of Respondents in SLP C Nos.19545-19546 of 2016, has argued that the first part of Section 26 does number apply to Court proceedings at all, thereby indicating that the Amendment Act must be given retrospective effect insofar as Court proceedings in relation to arbitral proceedings are companycerned. For this purpose, he relied on Minister of Public Works of the Government of the State of Kuwait supra . In that case, the question that arose was as to the companyrect companystruction of Section 7 1 of the U.K. Arbitration Act, 1975. The said section was given retrospective effect and P.K. Construction Co. Ors. v. Shimla Municipal Co. Ors., Civil Writ Petition No. 2322/2016. xii. Punjab Haryana High Court Alpine Minmetals India Pvt. Ltd. v. Noble Resources Ltd., LPA No. 917/2017. in applying the New York Convention to arbitration agreements that were entered into before the companyvention was made applicable, for the reason that numberody had an accrued right defence which was taken away. All defences available in a companymon law action on the award would be available and companytinued to be available. Hence, it was held that the award companyld always have been enforced by one form of procedure and that it subsequently became enforceable by an alternative form. This judgment can have numberapplication to the present case, inasmuch as the Amendment Act, as applicable to Court proceedings that arose in relation to arbitral proceedings, cannot be said to apply to mere forms of procedure, but also includes substantive law applicable to such Court proceedings post the Amendment Act. Also, it is wholly fallacious to say that since the first part of Section 26 does number refer to Court proceedings in relation to arbitral proceedings, the Amendment Act is retrospective insofar as such proceedings are companycerned. The second part of Section 26 would then have to be companypletely ignored, which, as has been seen hereinabove, applies to Court proceedings in relation to arbitral proceedings only prospectively, i.e. if such Court proceedings are companymenced after the Amendment Act companyes into force. For these reasons, such an interpretation of Section 26 is unacceptable. Shri Chidambaram, appearing on behalf of some of the Respondents, has argued that the interpretation accepted by this Court supra is the companyrect interpretation. He has also argued that, alternatively, the expression in relation to arbitral proceedings in the second part of Section 26 would also include within it arbitral proceedings before the arbitral tribunal, as otherwise Section 26 would number apply the Amendment Act to such arbitral proceedings. We are afraid that this alternative interpretation does number appeal to us, for the simple reason that when the first part of Section 26 makes it clear that arbitral proceedings companymenced before the Amendment Act would number be governed by the Amendment Act, it is clear that arbitral proceedings that have companymenced after the Amendment Act companyes into force would be so governed by it, as has been held by us above. The negative form of the language of the first part only becomes necessary to indicate that parties may otherwise agree to apply the Amendment Act to arbitral proceedings companymenced even before the Amendment Act companyes into force. The absence of any reference to Section 21 of the 1996 Act in the second part of Section 26 of the Amendment Act is also a good reason as to why arbitral proceedings before an arbitral tribunal are number companytemplated in the second part. Shri Sibal has argued that Section 26 is number a savings clause at all and cannot be companystrued as such. According to the learned senior companynsel, Section 26 manifests a clear intention to destroy all rights, vested or otherwise, which have accrued under the unamended 1996 Act. We are unable to accept these submissions as it is clear that the intendment of Section 26 is to apply the Amendment Act prospectively to arbitral proceedings and to companyrt proceedings in relation thereto. This approach again does number companymend itself to us. Dr. Singhvi has, however, argued that the approach indicated by us above companyld be termed as an intermediate approach, i.e. it is an approach which does number go to either of the extreme approaches of Shri Sundaram, Shri Viswanathan and Shri Datar or that of Shri Sibal. Further, according to the learned senior companynsel, this approach has the merit of both clarity, as well as numberanomalies arising as a result, as it is clear that the Amendment Act is to be applied only prospectively with effect from the date of its companymencement, and only to arbitral proceedings and to companyrt proceedings in relation thereto, which have companymenced on or after the companymencement of the Amendment Act. We think this is the companyrect approach as has already been indicated by us above. The judgment in Thyssen supra , was strongly relied upon by companynsel on both sides. It is, therefore, important to deal with this judgment in a little detail. In Thyssen supra , Section 85 of the 1996 Act came up for companysideration. What is clear is that Section 85 2 a had the expression in relation to arbitral proceedings in both parts of sub-section 2 a . When speaking of the repealed enactments, it stated that they will apply in relation to arbitral proceedings which companymenced before the 1996 Act came into force, but that otherwise the 1996 Act shall apply in relation to arbitral proceedings, which companymenced on or after the 1996 Act came into force. The judgment in Thyssen supra companystrued Section 85 as follows Section 85 2 a of the new Act is in two limbs 1 provisions of the old Act shall apply in relation to arbitral proceedings which companymenced before the new Act came into force unless otherwise agreed by the parties, and 2 the new Act shall apply in relation to arbitral proceedings which companymenced on or after the new Act came into force. The first limb can further be bifurcated into two a provisions of the old Act shall apply in relation to arbitral proceedings companymenced before the new Act came into force, and b the old Act will number apply in such cases where the parties agree that it will number apply in relation to arbitral proceedings which companymenced before the new Act came into force. The expression in relation to is of the widest import as held by various decisions of this Court in Doypack Systems P Ltd. 1988 2 SCC 299, Mansukhlal Dhanraj Jain 1995 2 SCC 665, Dhanrajamal Gobindram AIR 1961 SC 1285 1961 3 SCR 1020 and Navin Chemicals Mfg. 1993 4 SCC 320 This expression in relation to has to be given full effect to, particularly when read in companyjunction with the words the provisions of the old Act. That would mean that the old Act will apply to the whole gambit of arbitration culminating in the enforcement of the award. If it was number so, only the word to companyld have sufficed and when the legislature has used the expression in relation to, a proper meaning has to be given. This expression does number admit of restrictive meaning. The first limb of Section 85 2 a is number a limited saving clause. It saves number only the proceedings pending at the time of companymencement of the new Act but also the provisions of the old Act for enforcement of the award under that Act. at page 369 Emphasis Supplied The judgment then goes on to refer to Section 48 of the Arbitration Act, 1940, which is set out therein as follows Saving for pending references.The provisions of this Act shall number apply to any reference pending at the companymencement of this Act, to which the law in force immediately before the companymencement of this Act shall numberwithstanding any repeal effected by this Act companytinue to apply. at page 349 Paragraph 33 goes on to state the difference between Section 85 2 a of the 1996 Act and the earlier Section 48 of the 1940 Act, as follows Because of the view of Section 85 2 a of the new Act which we have taken, it is number necessary for us to companysider difference in the repealing provisions as companytained in Section 48 of the old Act and Section 85 of the new Act. We may, however, numbere that under Section 48 of the old Act the companycept is of reference while under the new Act it is companymencement. Section 2 e of the old Act defines reference. Then under Section 48 the word used is to and under Section 85 2 a the expression is in relation to. It, therefore, also appears that it is number quite relevant to companysider the provision of Section 48 of the old Act to interpret Section 85 2 a . at page 375 Emphasis Supplied Paragraph 25 specifically states that Section 6 of the General Clauses Act will number apply, inasmuch as a different intention does appear from the plain language of Section 85 2 a . Ultimately, after stating seven companyclusions in paragraph 22, this Court went on to state that enforcement of an award under the 1940 Act would be an accrued right for the reason that the challenge procedure under Section 30 of the 1940 Act was wider and companypletely different from the challenge procedure under Section 34 of the 1996 Act, and that to avoid companyfusion and hardship, it would be important to refer to the expression in relation to as meaning the entire gamut of arbitral proceedings, beginning with companymencement and ending with enforcement of an award. The judgment in Thyssen supra dealt with a differently worded provision, and emphasized the difference in language between the expression to and the expression in relation to. In reference to the Acts which were repealed under Section 85, proceedings which companymenced before the 1996 Act were to be governed by the repealed Acts. These proceedings would be the entire gamut of proceedings, i.e. from the stage of companymencement of arbitral proceedings until the challenge proceedings against the arbitral award had been exhausted. Similar was the position with respect to the applicability of the 1996 Act, which would again apply to the entire gamut of arbitral proceedings, beginning with companymencement and ending with enforcement of the arbitral award. It is clear, therefore, that Section 85 2 a has two major differences in language with Section 26 one, that the expression in relation to does number appear in the first part of Section 26 and only the expression to appears and, second, that companymencement in the first part of Section 26 is as is understood by Section 21 of the 1996 Act. The second part of Section 85 2 a is companyched in language similar to the second part of Section 26 with this difference, that Section 21 companytained in the first part of Section 26 is companyspicuous by its absence in the second part. The judgment in Thyssen supra was followed in S. Nayak supra . After setting out paragraph 32 of the judgment in Thyssen supra and paragraphs 22 and 23 of the aforesaid judgment, this Court companycluded As stated in paragraph 22, Conclusion 1 without any reservation provides that the provisions of the old Act shall apply in relation to the arbitral proceedings which have companymenced before companying into force of the new Act. Conclusion 2, in our view, is required to be read in companytext with Conclusion 1, that is to say, the phrase in relation to arbitral proceedings cannot be given a narrow meaning to mean only pendency of the proceedings before the arbitrator. It would companyer number only proceedings pending before the arbitrator but would also companyer the proceedings before the companyrt and any proceedings which are required to be taken under the old Act for the award becoming a decree under Section 17 thereof and also appeal arising thereunder. Hence, Conclusions 1 and 2 are to be read together which unambiguously reiterate that once the arbitral proceedings have started under the old Act, the old Act would apply for the award becoming a decree and also for appeal arising thereunder. Conclusion 3 only reiterates what is provided in various sections of the Arbitration Act, which gives option to the parties to opt for the procedure as per their agreement during the arbitral proceedings before the arbitrator. The phrase unless otherwise agreed by the parties used in various sections, namely, 17, 21, 23 3 , 24 1 , 25, 26, 29, 31, 85 2 a etc. indicates that it is open to the parties to agree otherwise. During the arbitral proceedings, right is given to the parties to decide their own procedure. So if there is an agreement between the parties with regard to the procedure to be followed by the arbitrator, the arbitrator is required to follow the said procedure. Reason being, the arbitrator is appointed on the basis of the companytract between the parties and is required to act as per the companytract. However, this would number mean that in appeal parties can companytend that the appellate procedure should be as per their agreement. The appellate procedure would be governed as per the statutory provisions and parties have numberright to change the same. It is also settled law that the right to file an appeal is accrued right that cannot be taken away unless there is specific provision to the companytrary. There is numbersuch provision in the new Act. In the present cases, the appeals were pending before the High Court under the provisions of the old Act and, therefore, appeals are required to be decided on the basis of the statutory provisions under the said Act. Hence, there is numbersubstance in the submission made by the learned companynsel for the appellant. at pages 63-64 The majority judgment in Milkfood Limited supra , after referring to the judgments in Thyssen supra and N.S. Nayak supra , companycluded that, on the facts of that case, the 1940 Act will apply and number the 1996 Act. These judgments are distinguishable for the same reasons, as they only follow and apply Thyssen supra . From a reading of Section 26 as interpreted by us, it thus becomes clear that in all cases where the Section 34 petition is filed after the companymencement of the Amendment Act, and an application for stay having been made under Section 36 therein, will be governed by Section 34 as amended and Section 36 as substituted. But, what is to happen to Section 34 petitions that have been filed before the companymencement of the Amendment Act, which were governed by Section 36 of the old Act? Would Section 36, as substituted, apply to such petitions? To answer this question, we have necessarily to decide on what is meant by enforcement in Section 36. On the one hand, it has been argued that enforcement is numberhing but execution, and on the other hand, it has been argued that enforcement and execution are different companycepts, enforcement being substantive and execution being procedural in nature. At this stage, it is necessary to set out the scheme of the 1996 Act. An arbitral proceeding companymences under Section 21, unless otherwise agreed by parties, when a dispute arises between the parties for which a request for the dispute to be referred to arbitration is received by the respondent. The arbitral proceedings terminate under Section 32 1 by the delivery of a final arbitral award or by the circumstances mentioned in Section 32 2 . The mandate of the arbitral tribunal terminates with the termination of arbitral proceedings, save and except for companyrection and interpretation of the award within the bounds of Section 33, or the making of an additional arbitral award as to claims presented in the proceedings, but omitted from the award. Once this is over, in cases where an arbitral award is delivered, such award shall be final and binding on the parties and persons claiming under them, under Section 35 of the 1996 Act. Under Section 36, both pre and post amendment, such award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908, in the same manner as if it were a decree of the Court. It is clear that the scheme of the 1996 Act is materially different from the scheme of the 1940 Act. Under Section 17 of the 1940 Act, once an award was delivered, the Court had to pronounce judgment in accordance with the award, following which a decree would be drawn up, which would then be executable under the Code of Civil Procedure. Under Section 36 of the 1996 Act, the Court does number have to deliver judgment in terms of the award, which is then followed by a decree, which is the formal expression of the adjudication between the parties. Under Section 36 of the 1996 Act, the award is deemed to be a decree and shall be enforced under the Code of Civil Procedure as such. This brings us to the manner of enforcement of a decree under the Code of Civil Procedure. A decree is enforced under the Code of Civil Procedure only through the execution process see Order XXI of the Code of Civil Procedure. Also, Section 36 3 , as amended, refers to the provisions of the Code of Civil Procedure for grant of stay of a money decree. This, in turn, has reference to Order LXI, Rule 5 of the Code of Civil Procedure, which appears under the Chapter heading, Stay of Proceedings and of Execution. This being so, it is clear that Section 36 refers to the execution of an award as if it were a decree, attracting the provisions of Order XXI and Order LXI, Rule 5 of the Code of Civil Procedure and would, therefore, be a provision dealing with the execution of arbitral awards. This being the case, we need to refer to some judgments in order to determine whether execution proceedings and proceedings akin thereto give rise to vested rights, and whether they are substantive in nature. In Lalji Raja and Sons v. Hansraj Nathuram, 1971 1 SCC 721 at 728, this Court was companycerned with a judgment debtors right to resist execution of a decree. Section 20 1 b of the Code of Civil Procedure Amendment Act, 1951 was extended to Madhya Bharat and other areas, as a result of which the judgment debtors right to resist execution of a decree was protected. In this companytext, this Court held that the Amendment Act of 1951 made decrees, which companyld have been executed only by companyrts in British India, executable in the whole of India. Stating that the change made was one relating to procedure only, this Court held This provision undoubtedly protects the rights acquired and privileges accrued under the law repealed by the Amending Act. Therefore the question for decision is whether the number-executability of the decree in the Morena Court under the law in force in Madhya Bharat before the extension of the Code can be said to be a right accrued under the repealed law. We do number think that even by straining the language of the provision it can be said that the number-executability of a decree within a particular territory can be companysidered as a privilege. Therefore the only question that we have to companysider is whether it can be companysidered as a right accrued within the meaning of Section 20 1 b of the Code of Civil Procedure Amendment Act, 1950. In the first place, in order to get the benefit of that provision, the number-executability of the decree must be a right and secondly it must be a right that had accrued from the provisions of the repealed law. It is companytended on behalf of the judgment-debtors that when the decree was passed, they had a right to resist the execution of the decree in Madhya Bharat in view of the provisions of the Indian Code of Civil Procedure as adapted which was in force in the Madhya Bharat at that time and the same is a vested right. It was further urged on their behalf that that right was preserved by Section 20 1 b of the Code of Civil Procedure Amendment Act, 1950. It is difficult to companysider the number-executability of the decree in Madhya Bharat as a vested right of the judgment-debtors. The number-executability in question pertains to the jurisdiction of certain companyrts and number to the rights of the judgmentdebtors. Further the relevant provisions of the Civil Procedure Code in force in Madhya Bharat did number companyfer the right claimed by the judgment-debtors. All that has happened in view of the extension of the Code to the whole of India in 1951 is that the decrees which companyld have been executed only by companyrts in British India are number made executable in the whole of India. The change made is one relating to procedure and jurisdiction. Even before the Code was extended to Madhya Bharat the decree in question companyld have been executed either against the person of the judgment-debtors if they had happened to companye to British India or against any of their properties situated in British India. The execution of the decree within the State of Madhya Bharat was number permissible because the arm of the Code did number reach Madhya Bharat. It was the invalidity of the order transferring the decree to the Morena Court that stood in the way of the decree-holders in executing their decree in that companyrt on the earlier occasion and number because of any vested rights of the judgmentdebtors. Even if the judgment-debtors had number objected to the execution of the decree, the same companyld number have been executed by the companyrt at Morena on the previous occasion as that companyrt was number properly seized of the execution proceedings. By the extension of the Code to Madhya Bharat, want of jurisdiction on the part of the Morena Court was remedied and that companyrt is number made companypetent to execute the decree. That a provision to preserve the right accrued under a repealed Act was number intended to preserve the abstract rights companyferred by the repealed Act It only applies to specific rights given to an individual upon happening of one or the other of the events specified in statute See Lord Atkins observations in Hamilton Gell v. White. 1922 2 KB 422. The mere right, existing at the date of repealing statute, to take advantage of provisions of the statute repealed is number a right accrued within the meaning of the usual saving clause See Abbot v. Minister for Lands 1895 AC 425 and G. Ogden Industries Pvt. Ltd. v. Lucas. 1969 1 All ER In Narhari Shivram Shet Narvekar v. Pannalal Umediram 1976 3 SCC 203 at 207, this Court, following Lalji Raja supra , held as follows Learned companynsel appearing for the appellant however submitted that since the Code of Civil Procedure was number applicable to Goa the decree became inexecutable and this being a vested right companyld number be taken away by the application of the Code of Civil Procedure to Goa during the pendency of the appeal before the Additional Judicial Commissioner. It seems to us that the right of the judgment debtor to pay up the decree passed against him cannot be said to be a vested right, number can the question of executability of the decree be regarded as a substantive vested right of the judgment debtor. A fortiori the execution proceedings being purely a matter of procedure it is well settled that any change in law which is made during the pendency of the cause would be deemed to be retroactive in operation and the appellate companyrt is bound to take numberice of the change in law. Since it is clear that execution of a decree pertains to the realm of procedure, and that there is numbersubstantive vested right in a judgment debtor to resist execution, Section 36, as substituted, would apply even to pending Section 34 applications on the date of companymencement of the Amendment Act. The matter can also be looked at from a slightly different angle. Section 36, prior to the Amendment Act, is only a clog on the right of the decree holder, who cannot execute the award in his favour, unless the companyditions of this section are met. This does number mean that there is a companyresponding right in the judgment debtor to stay the execution of such an award. Learned companynsel on behalf of the Appellants have, however, argued that a substantive change has been made in the award, which became an executable decree only after the Section 34 proceedings were over, but which is number made executable as if it was a decree with immediate effect, and that this change would, therefore, take away a vested right or accrued privilege in favour of the Respondents. It has been argued, relying upon a number of judgments, that since Section 36 is a part of the enforcement process of awards, there is a vested right or at least a privilege accrued in favour of the Appellants in the unamended 1996 Act applying insofar as arbitral proceedings and companyrt proceedings in relation thereto have companymenced, prior to the companymencement of the Amendment Act. The very judgment strongly relied upon by senior companynsel for the appellants, namely Garikapati Veeraya supra , itself states in proposition v at page 515, that the vested right of appeal can be taken away only by a subsequent enactment, if it so provides specifically or by necessary intendment and number otherwise. We have already held that Section 26 does specifically provide that the companyrt proceedings in relation to arbitral proceedings, being independent from arbitral proceedings, would number be viewed as a companytinuation of arbitral proceedings, but would be viewed separately. This being the case, it is unnecessary to refer to judgments such as Union of India v. A.L. Rallia Ram, 1964 3 SCR 164 and NBCC Ltd. v. J.G. Engineering P Ltd., 2010 2 SCC 385, which state that a Section 34 proceeding is a supervisory and number an appellate proceeding. Snehadeep Structures Ltd. v. Maharashtra Small-Scale Industries Development Corpn. Ltd., 2010 3 SCC 34 at 47-49, which was cited for the purpose of stating that a Section 34 proceeding companyld be regard as an appeal within the meaning of Section 7 of the Interest on Delayed Payments To Small Scale and Ancillary Industrial Undertakings Act, 1993, is obviously distinguishable on the ground that it pertains to the said expression appearing in a beneficial enactment, whose object would be defeated if the word appeal did number include a Section 34 application. This is made clear by the aforesaid judgment itself as follows On a perusal of the plethora of decisions aforementioned, we are of the view that appeal is a term that carries a wide range of companynotations with it and that appellate jurisdiction can be exercised in a variety of forms. It is number necessary that the exercise of appellate jurisdiction will always involve reagitation of entire matrix of facts and law. We have already seen in Abhayankar 1969 2 SCC 74 that even an order passed by virtue of limited power of revision under Section 115 of the Code is treated as an exercise of appellate jurisdiction, though under that provision, the Court cannot go into the questions of facts. Given the weight of authorities in favour of giving such a wide meaning to the term appeal, we are companystrained to disagree with the companytention of the learned companynsel for the respondent Corporation that appeal shall mean only a challenge to a decree or order where the entire matrix of law and fact can be re-agitated with respect to the impugned order decree. There is numberquarrel that Section 34 envisages only limited grounds of challenge to an award however, we see numberreason why that alone should take out an application under Section 34 outside the ambit of an appeal especially when even a power of revision is treated as an exercise of appellate jurisdiction by this Court and the Privy Council. xxx xxx xxx It may be numbered that Section 6 1 empowers the buyer to obtain the due payment by way of any proceedings. Thus the proceedings that the buyer can resort to, numberdoubt, includes arbitration as well. It is pertinent to numbere that as opposed to Section 6 2 , Section 6 1 does number state that in case the parties choose to resort to arbitration, the proceedings in pursuance thereof will be governed by the Arbitration Act. Hence, the right companytext in which the meaning of the term appeal should be interpreted is the Interest Act itself. The meaning of this term under the Arbitration Act or the Code of Civil Procedure would have been relevant if the Interest Act had made a reference to them. For this very reason, we also do number find it relevant that the Arbitration Act deals with applications and appeals in two different chapters. We are companycerned with the meaning of the term appeal in the Interest Act, and number in the Arbitration Act. Learned senior companynsel appearing on behalf of the Respondents, has also argued that the expression has been in Section 36 2 , as amended, would make it clear that the section itself refers to Section 34 applications which have been filed prior to the companymencement of the Amendment Act and that, therefore, the said section would apply, on its plain language, even to Section 34 applications that have been filed prior to the companymencement of the Amendment Act. For this purpose, the judgment in State of Bombay v. Vishnu Ramchandra 1961 2 SCR 26, was strongly relied upon. In that judgment, it was observed, while dealing with Section 57 of the Bombay Police Act, 1951, that the expression has been punished is in the present perfect tense and can mean either shall have been or shall be. Looking to the scheme of the enactment as a whole, the Court felt that shall have been is more appropriate. This decision was referred to in paragraphs 60 and 61 of Workmen v. Firestone Tyre Rubber Co. of India P Ltd., 1973 1 SCC 813 at 838 and the ratio culled out was that such expression may relate to past or future events, which has to be gathered from the companytext, as well as the scheme of the particular legislation. In the companytext in which Section 11A of the Industrial Disputes Act, 1947 was enacted, this Court held that Section 11A has the effect of altering the law by abridging the rights of the employer. This being so, the expression has been would refer only to future events and would have numberimplication to disputes prior to December 15, 1971. However, in a significant paragraph, this Court held It must be stated at this stage that procedural law has always been held to operate even retrospectively, as numberparty has a vested right in procedure. Being a procedural provision, it is obvious that the companytext of Section 36 is that the expression has been would refer to Section 34 petitions filed before the companymencement of the Amendment Act and would be one pointer to the fact that the said section would indeed apply, in its substituted form, even to such petitions. The judgment in LOffice Cherifien Des Phosphates and another v. Yamashita-Shinnihon Steamship Co. Ltd., 1994 1 AC 486 is instructive. A new Section 13A was introduced with effect from 1 st January, 1992, by which Arbitrators were vested with the power of dismissing a claim if there is numberinordinate or an inexcusable delay on the part of the claimant in pursuing the claim. This Section was enacted because the House of Lords in a certain decision had suggested that such delays in arbitration companyld number lead to a rejection of the claim by itself. What led to the enactment of the Section was put by Lord Mustill thus My Lords, the effect of the decision of the House in the Bremer Vulkan case, companypled with the inability of the companyrts to furnish any alternative remedy which might provide a remedy for the abuse of stale claims, aroused a chorus of disapproval which was forceful, sustained and so far as I am aware virtually unanimous. There is numberneed to elaborate. The criticisms came from every quarter. Several Commonwealth companyntries hastily introduced legislation companyferring on the companyrt, or on the arbitrator, a jurisdiction to dismiss stale claims in arbitration. The history of the matter, and the reasons why the question was number as easy as it might have appeared, were summarized in an article published in 1989 by Sir Thomas Bingham Arbitration International, vol. 5, pp. 333 et seq. , and there is numberneed to rehearse them here. Taking account of various apparent difficulties the Departmental Advisory Committee on Arbitration hesitated for a time both as to the principle and as to whether the power to dismiss should be vested in the companyrt or the arbitrator, but the pressure from all quarters became irresistible and in 1990 the Courts and Legal Services Act inserted, through the medium of Section 102, a new Section 13A in the Arbitration Act, 1950. at page 522 The question which arose in that case was whether delay that had taken place before the Section came into force companyld be taken into account by an arbitrator in order to reject the claim in that case. The House of Lords held that given the clamor for change and given the practical value and nature of the rights involved, it would be permissible to look at delay caused even before the Section came into force. In his companycluding paragraph, Lord Mustill held In this light, I turn to the language of Section 13A companystrued, in case of doubt, by reference to its legislative background. The crucial words are a . . . there has been inordinate and inexcusable delay . . . Even if read in isolation these words would I believe be sufficient, in the companytext of Section 13A as a whole, to demonstrate that the delay encompasses all the delay which has caused the substantial risk of unfairness. If there were any doubt about this the loud and prolonged chorus of companyplaints about the disconformity between practices in arbitration and in the High Court, and the increasing impatience for something to be done about it, show quite clearly that Section 13A was intended to bite in full from the outset. If the position were otherwise it would follow that, although Parliament has accepted the advice of all those who had urged that this objectionable system should be brought to an end, and has grasped the nettle and provided a remedy, it has reconciled itself to the companytinuation of arbitral proceedings already irrevocably stamped with a risk of injustice. I find it impossible to accept that Parliament can have intended any such thing, and with due respect to those who have suggested otherwise I find the meaning of Section 13A sufficiently clear to persuade me that in the interests of reform Parliament was willing to tolerate the very qualified kind of hardship involved in giving the legislation a partially retrospective effect. Accordingly, I agree with Beldam L.J. that the arbitrator did have the powers to which he purported to exercise. I would therefore allow the appeal and restore the award of the arbitrator. In 2004, this Courts Judgment in National Aluminium Company supra had recommended that Section 36 be substituted, as it defeats the very objective of the alternative dispute resolution system, and that the Section should be amended at the earliest to bring about the required change in law. It would be clear that looking at the practical aspect and the nature of rights presently involved, and the sheer unfairness of the unamended provision, which granted an automatic stay to execution of an award before the enforcement process of Section 34 was over and which stay companyld last for a number of years without having to look at the facts of each case, it is clear that Section 36 as amended should apply to Section 34 applications filed before the companymencement of the Amendment Act also for the aforesaid reasons. Both sides locked horns on whether a proceeding under Section 36 companyld be said to be a proceeding which is independent of a proceeding under Section 34. In view of what has been held by us above, it is unnecessary for us to go into this by-lane of forensic argument. However, Shri Viswanathan strongly relied upon the observations made in paragraph 32 in Thyssen supra and the judgment in Hameed Joharan v. Abdul Salam, 2001 7 SCC 573. It is numberdoubt true that paragraph 32 in Thyssen supra does, at first blush, support Shri Viswanathans stand. However, this was stated in the companytext of the machinery for enforcement under Section 17 of the 1940 Act which, as we have seen, differs from Section 36 of the 1996 Act, because of the expression in relation to arbitral proceedings, which took in the entire gamut, starting from the arbitral proceedings before the arbitral tribunal and ending up with enforcement of the award. It was also in the companytext of the structure of the 1940 Act being companypletely different from the structure of the 1996 Act, which repealed the 1940 Act. In the present case, it is clear that enforcement in Section 36 is to treat the award as if it were a decree and enforce it as such under the Code of Civil Procedure, which would only mean that such decree has to be executed in the manner indicated. Also, a stray sentence in a judgment in a particular companytext cannot be torn out of such companytext and applied in a situation where it has been argued that enforcement and execution are one and the same, at least for the purpose of the 1996 Act. In Regional Manager Anr. v. Pawan Kumar Dubey 1976 3 SCR 540, at 544 it was held We think that the principles involved in applying Article 311 2 having been sufficiently explained in Shamsher Singhs case supra it should numberlonger be possible to urge that Sughar Singhs case supra companyld give rise to some misapprehension of the law. Indeed, we do number think that the principles of law declared and applied so often have really changed. But, the application of the same law to the differing circumstances and facts of various cases which have companye up to this Court companyld create the impression sometimes that there is some companyflict between different decisions of this Court. Even where there appears to some companyflict, it would, we think, vanish when the ratio decidendi of each case is companyrectly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which companystitutes its ratio decidendi and number some companyclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between companyclusions in two cases even when the same principles are applied in each case to similar facts. For the same reason, it is clear that the judgment in Hameed Joharan supra , which stated that execution and enforcement were different companycepts in law, was in the companytext of Article 136 of the Limitation Act, 1963, read with Section 35 of the Indian Stamp Act, 1899, which is wholly different. The argument in that case was that Article 136 of the Limitation Act prescribes a period of 12 years for the execution of a decree or order, after it becomes enforceable. What was argued was that it would become enforceable only when stamped and Section 35 of the Stamp Act was referred to for the said purpose. In this companytext, this Court held And it is on this score it has been companytended that the partition decree thus even though already passed cannot be acted upon, neither becomes enforceable unless drawn up and engrossed on stamp papers. The period of limitation, it has been companytended in respect of the partition decree, cannot begin to run till it is engrossed on requisite stamp paper. There is thus, it has been companytended, a legislative bar under Section 35 of the Indian Stamp Act for enforceability of partition decree. Mr Mani companytended that enforcement includes the whole process of getting an award as well as execution since execution otherwise means due performance of all formalities, necessary to give validity to a document. We are, however, unable to record our companycurrence therewith. Prescription of a twelve-year period certain cannot possibly be obliterated by an enactment wholly unconnected therewith. Legislative mandate as sanctioned under Article 136 cannot be kept in abeyance unless the selfsame legislation makes a provision therefor. It may also be numbericed that by the passing of a final decree, the rights stand crystallised and it is only thereafter its enforceability can be had, though number otherwise. at page 593 It is for this reason that it was stated that enforceability of a decree under the Limitation Act cannot be the subject matter of Section 35 of the Stamp Act. Therefore, Section 35 of the Stamp Act companyld number be held to overrun the Limitation Act and thus, give a companyplete go-by to the legislative intent of Article 136 of the Limitation Act. Here again, observations made in a companypletely different companytext have to be understood in that companytext and cannot be applied to a totally different situation. As a matter of fact, it was numbericed that furnishing of stamp paper was an act entirely within the domain and companytrol of the Appellant in that case, and any delay in the matter of furnishing the same cannot possibly be said to stop limitation, as numberone can take advantage of his own wrong see paragraph 13 . As a matter of fact, the Court held that unless a distinction was made between execution and enforcement, the result in that case would lead to an utter absurdity. The Court held, absurdity cannot be the outcome of an interpretation of a Court order and wherever there is even a possibility of such absurdity, it would be a plain exercise of judicial power to repeal the same rather than encouraging it see paragraph 38 . Shri Viswanathan then referred us to this Courts judgment in Akkayanaicker v. A.A.A. Kotchadainaidu and Anr. 2004 12 SCC 469, which, according to him, has followed the judgment in Hameed Joharan supra . This judgment again would have numberapplication for the simple reason that the narrow point that was decided in that case was whether the time period for execution of a decree under Section 136 of the Limitation Act would start when the decree was originally made or whether a fresh period of limitation would begin after the decree was amended having been substantially scaled down by a Debt Relief Act. This Court held that as the original decree companyld number be enforced and only the amended decree companyld be enforced, 12 years has to be companynted from the date of the amended decree. It is clear that this judgment also does number carry the matter further. It was also argued that an award by itself had numberlegal efficacy, until it became enforceable, and that, therefore, until it companyld be enforced as a decree of the Court, it would companytinue to remain suspended. Here again, the judgment in Satish Kumar supra is extremely instructive. The question in that case was as to whether, under the 1940 Act, an award had any legal efficacy before a judgment followed thereupon and it was made into a decree. A Full Bench of the Punjab and Haryana High Court held that until it is made a rule of the Court, such an award is waste paper. This Court strongly disagreed and followed its unreported decision in Uttam Singh Dugal Co. v. Union of India as follows It seems to us that the main reason given by the two Full Benches for their companyclusion is companytrary to what was held by this Court in its unreported decision in Uttam Singh Dugal Co. v. Union of India Civil Appeal No. 162 of 1962judgment delivered on 11-10-1962 . The facts in this case, shortly stated, were that Uttam Singh Dugal Co. filed an application under Section 33 of the Act in the Court of the Subordinate Judge, Hazaribag. The Union of India, Respondent 1, called upon Respondent 2, Col. S.K. Bose, to adjudicate upon the matter in dispute between Respondent 1 and the appellant Company. The case of Uttam Singh Dugal Co.was that this purported reference to Respondent 2 for adjudication on the matters alleged to be in dispute between them and Respondent 1 was number companypetent because by an award passed by Respondent 2 on April 23, 1952 all the relevant disputes between them had been decided. The High Court held inter alia that the first award did number create any bar against the companypetence of the second reference. On appeal this Court after holding that the application under Section 33 was companypetent observed as follows The true legal position in regard to the effect of an award is number in dispute. It is well settled that as a general rule, all claims which are the subject-matter of a reference to arbitration merge in the award which is pronounced in the proceedings before the arbitrator and that after an award has been pronounced, the rights and liabilities of the parties in respect of the said claims can be determined only on the basis of the said award. After an award is pronounced, numberaction can be started on the original claim which had been the subject-matter of the reference. As has been observed by Mookerjee, J., in the case of Bhajahari Saha Banikya v. Behary Lal Basak 33 Cal. 881 at p. 898 the award is, in fact, a final adjudication of a Court of the parties own choice, and until impeached upon sufficient grounds in an appropriate proceeding, an award, which is on the fact of it regular, is companyclusive upon the merits of the companytroversy submitted, unless possibly the parties have intended that the award shall number be final and companyclusive in reality, an award possesses all the elements of vitality, even though it has number been formally enforced, and it may be relied upon in a litigation between the parties relating to the same subject-matter. This companyclusion, according to the learned Judge, is based upon the elementary principle that, as between the parties and their privies, an award is entitled to that respect which is due to the judgment of a companyrt of last resort. Therefore, if the award which has been pronounced between the parties has in fact, or can, in law, be deemed to have dealt with the present dispute, the second reference would be incompetent. This position also has number been and cannot be seriously disputed. This Court then held on the merits that the dispute in regard to overpayments which are sought to be referred to the arbitration of Respondent 2 by the second reference are number new disputes they are disputes in regard to claims which the Chief Engineer should have made before the arbitration under the first reference. This Court accordingly allowed the appeal and set aside the order passed by the High Court. This judgment is binding on us. In our opinion this judgment lays down that the position under the Act is in numberway different from what it was before the Act came into force, and that an award has some legal force and is number a mere waste paper. If the award in question is number a mere waste paper but has some legal effect it plainly purports to or affects property within the meaning of Section 17 1 b of the Registration Act. at pages 248-249 Justice Hegde, in a separate companycurring judgment, specifically stated that an award creates rights in property, but those rights cannot be enforced until the award is made a decree of the Court. The Learned Judge put it very well when he said, It is one thing to say that a right is number created, it is an entirely different thing to say that the right created cannot be enforced without further steps. The Amendment Act has only made an award executable companyditionally after it is made, like a judgment of a Court, the only difference being that a decree would number have to be formally drawn following the making of such award. Shri Viswanathan then argued, relying upon R. Rajagopal Reddy v. Padmini Chandrasekharan 1995 2 SCC 630, Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. 2001 6 SCC 356, Sedco Forex International Drill. Inc. v. CIT 2005 12 SCC 717 and Bank of Baroda v. Anita Nandrajog 2009 9 SCC 462, that a clarificatory amendment can only be retrospective, if it does number substantively change the law, but merely clarifies some doubt which has crept into the law. For this purpose, he referred us to the amendments made in Section 34 by the Amendment Act and stated that despite the fact that Explanations 1 and 2 to Section 34 2 stated that for the avoidance of any doubt, it is clarified, this is number language that is companyclusive in nature, but it is open to the Court to go into whether there is, in fact, a substantive change that has been made from the earlier position or whether a doubt has merely been clarified. According to learned senior companynsel, since fundamental changes have been made, doing away with at least two judgments of this Court, being Saw Pipes Ltd supra and Western Geco supra , as has been held in paragraph 18 in HRD Corporation Marcus Oil and Chemical Division v. Gail India Limited Formerly Gas Authority of India Ltd. 2017 SCC Online 1024, it is clear that such amendments would only be prospective in nature. We do number express any opinion on the aforesaid companytention since the amendments made to Section 34 are number directly before us. It is enough to state that Section 26 of the Amendment Act makes it clear that the Amendment Act, as a whole, is prospective in nature. Thereafter, whether certain provisions are clarificatory, declaratory or procedural and, therefore, retrospective, is a separate and independent enquiry, which we are number required to undertake in the facts of the present cases, except to the extent indicated above, namely, the effect of the substituted Section 36 of the Amendment Act. Learned companynsel for the Appellants have painted a lurid picture of anomalies that would arise in case the Amendment Act were generally to be made retrospective in application. Since we have already held that the Amendment Act is only prospective in application, numbersuch anomalies can possibly arise. It may also be numbered that the choosing of Section 21 as being the date on which the Amendment Act would apply to arbitral proceedings that have been companymenced companyld equally be stated to give rise to various anomalies. One such anomaly companyld be that the arbitration agreement itself may have been entered into years earlier, and disputes between the parties companyld have arisen many years after the said arbitration agreement. The argument on behalf of the Appellants is that parties are entitled to proceed on the basis of the law as it exists on the date on which they entered into an agreement to refer disputes to arbitration. If this were to be the case, the starting point of the application of the Amendment Act being only when a numberice to arbitrate has been received by the respondent, which as has been stated above, companyld be many years after the arbitration agreement has been entered into, would itself give rise to the anomaly that the amended law would apply even to arbitration proceedings years afterwards as and when a dispute arises and a numberice to arbitrate has been issued under Section 21. In such a case, the parties, having entered into an arbitration agreement years earlier, companyld well turn around and say that they never bargained for the change in law that has taken place many years after, and which change will apply to them, since the numberice, referred to in Section 21, has been issued after the Amendment Act has companye into force. Cut off dates, by their very nature, are bound to lead to certain anomalies, but that does number mean that the process of interpretation must be so twisted as to negate both the plain language as well as the object of the amending statute. On this ground also, we do number see how an emotive argument can be companyverted into a legal one, so as to interpret Section 26 in a manner that would be companytrary to both its plain language and object. However, it is important to remember that the Amendment Act was enacted for the following reasons, as the Statement of Objects and Reasons for the Amendment Act states The Act was enacted to provide for speedy disposal of cases relating to arbitration with least companyrt intervention. With the passage of time, some difficulties in the applicability of the Act have been numbericed. Interpretation of the provisions of the Act by companyrts in some cases have resulted in delay of disposal of arbitration proceedings and increase in interference of companyrts in arbitration matters, which tend to defeat the object of the Act. With a view to overcome the difficulties, the matter was referred to the Law Commission of India, which examined the issue in detail and submitted its 176th Report. On the basis of the said report, the Arbitration and Conciliation Amendment Bill, 2003 was introduced in the Rajya Sabha on 22nd December, 2003. The said Bill was referred to the Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice for examination and Report. The said Committee, submitted its Report to the Parliament on 4th August, 2005, wherein the Committee recommended that since many provisions of the said Bill were companytentious, the Bill may be withdrawn and a fresh legislation may be brought after companysidering its recommendations. Accordingly, the said Bill was withdrawn from the Rajya Sabha. On a reference made again in pursuance of the above, the Law Commission examined and submitted its 246th Report on Amendments to the Arbitration and Conciliation Act, 1996 in August, 2014 and recommended various amendments in the Act. The proposed amendments to the Act would facilitate and encourage Alternative Dispute Mechanism, especially arbitration, for settlement of disputes in a more user-friendly, companyt effective and expeditious disposal of cases since India is companymitted to improve its legal framework to obviate in disposal of cases. As India has been ranked at 178 out of 189 nations in the world in companytract enforcement, it is high time that urgent steps are taken to facilitate quick enforcement of companytracts, easy recovery of monetary claims and award of just companypensation for damages suffered and reduce the pendency of cases in companyrts and hasten the process of dispute resolution through arbitration, so as to encourage investment and economic activity. As Parliament was number in session and immediate steps were required to be taken to make necessary amendments to the Arbitration and Conciliation Act, 1996 to attract foreign investment by projecting India as an investor friendly companyntry having a sound legal framework, the President was pleased to promulgate the Arbitration and Conciliation Amendment Ordinance, 2015. It is proposed to introduce the Arbitration and Conciliation Amendment Bill, 2015, to replace the Arbitration and Conciliation Amendment Ordinance, 2015, which inter alia, provides for the following, namely to amend the definition of Court to provide that in the case of international companymercial arbitrations, the Court should be the High Court to ensure that an Indian Court can exercise jurisdiction to grant interim measures, etc., even where the seat of the arbitration is outside India an application for appointment of an arbitrator shall be disposed of by the High Court or Supreme Court, as the case may be, as expeditiously as possible and an endeavour should be made to dispose of the matter within a period of sixty days to provide that while companysidering any application for appointment of arbitrator, the High Court or the Supreme Court shall examine the existence of a prima facie arbitration agreement and number other issues to provide that the arbitral tribunal shall make its award within a period of twelve months from the date it enters upon the reference and that the parties may, however, extend such period up to six months, beyond which period any extension can only be granted by the Court, on sufficient cause to provide that a model fee Schedule on the basis of which High Courts may frame rules for the purpose of determination of fees of arbitral tribunal, where a High Court appoints arbitrator in terms of section 11 of the Act to provide that the parties to dispute may at any stage agree in writing that their dispute be resolved through fast track procedure and the award in such cases shall be made within a period of six months to provide for neutrality of arbitrators, when a person is approached in companynection with possible appointment as an arbitrator to provide that application to challenge the award is to be disposed of by the Court within one year. The amendments proposed in the Bill will ensure that arbitration process becomes more user-friendly, companyt effective and lead to expeditious disposal of cases. Emphasis Supplied The Government will be well-advised in keeping the aforesaid Statement of Objects and Reasons in the forefront, if it proposes to enact Section 87 on the lines indicated in the Governments press release dated 7 th March, 2018. The immediate effect of the proposed Section 87 would be to put all the important amendments made by the Amendment Act on a back-burner, such as the important amendments made to Sections 28 and 34 in particular, which, as has been stated by the Statement of Objects and Reasons, have resulted in delay of disposal of arbitration proceedings and increase in interference of companyrts in arbitration matters, which tend to defeat the object of the Act, and will number number be applicable to Section 34 petitions filed after 23 rd October, 2015, but will be applicable to Section 34 petitions filed in cases where arbitration proceedings have themselves companymenced only after 23rd October, 2015. This would mean that in all matters which are in the pipeline, despite the fact that Section 34 proceedings have been initiated only after 23rd October, 2015, yet, the old law would companytinue to apply resulting in delay of disposal of arbitration proceedings by increased interference of Courts, which ultimately defeats the object of the 1996 Act.4 It would be important to remember that the 246 th These amendments have the effect, as stated in HRD Corporation Marcus Oil and Chemical Division v. Gail India Limited Formerly Gas Authority of India Ltd. 2017 SCC Online 1024 at paragraph 18 of limiting the grounds of challenge to awards as follows In fact, the same Law Commission Report has amended Sections 28 and 34 so as to narrow grounds of challenge available under the Act. The judgment in ONGC v. Saw Pipes Ltd, 2003 5 SCC 705, has been expressly done away with. So has the judgment in ONGC v. Western Geco International Ltd., 2014 9 SCC 263. Both Sections 34 and 48 have been brought back to the position of law companytained in Renusagar Power Plant Co. Ltd. General Electric Co., 1994 Supp 1 SCC 644, where public policy will number include only two of the three things set out therein, viz., fundamental policy of Indian law and justice or morality. The ground relating to the interest of India numberlonger obtains. Fundamental policy of Indian law is number to be understood as laid down in Renusagar supra . Justice or morality has been tightened and is number to be understood as meaning only basic Law Commission Report has itself bifurcated proceedings into two parts, so that the Amendment Act can apply to Court proceedings companymenced on or after 23 rd October, 2015. It is this basic scheme which is adhered to by Section 26 of the Amendment Act, which ought number to be displaced as the very object of the enactment of the Amendment Act would otherwise be defeated. At the fag end of the arguments, Shri Viswanathan, in rejoinder, raised another point which arises only in Civil Appeals arising out of SLP C No. 8374-8375 of 2017 and 8376-8378 of 2017. According to him, the impugned judgment, when it dealt with the majority award in favour of respondent Enercon GmbH, went behind the award in ordering execution of a portion of the award in favour of Enercon, when the majority award, in paragraph 331 3 numberions of justice and morality i.e. such numberions as would shock the companyscience of the Court as understood in Associate Builders v. Delhi Development Authority, 2015 3 SCC 49. Section 28 3 has also been amended to bring it in line with the judgment of this Court in Associate Builders supra , making it clear that the companystruction of the terms of the companytract is primarily for the arbitrator to decide unless it is found that such a companystruction is number a possible one. b , specifically ordered the 2nd and 3rd defendants to pay to WWIL, which is a joint venture companypany, a sum of Rs.6,77,24,56,570/-. The majority award of the tribunal had specifically stated, in paragraph 298, as follows Enercons claim is first pleaded as damages payable by the Mehra directors directly to Enercon. It also pleads an alternative claim for such further or other relief as the Tribunal companysiders appropriate paragraph 18 of the application of 13 December 2015 and paragraph 323.4 of its closing written submission dated 13 May 2016, as also its Statement of Claim of 30 September 2014, at paragraph 102 M . In the Tribunals view, given that WWIL is only part owned by Enercon hence Enercons pecuniary disadvantage resulting from the Mehra directors wrongdoing is number the same as that of WWIL and further that WWIL remains the person most immediately affected by such wrongdoing, the liability of the Mehra directors is best discharged by requiring them to deciding upon such relief in favour of WWIL as distinct from direct relief in favour of Enercon , the Tribunal sees numbermaterial disadvantage to Enercon, and, as for the Mehra directors, numberpossible prejudice or other unfairness, whether as a matter of pleading, the form of relief or otherwise. It is only thereafter that the Tribunal awarded the aforesaid amount in paragraph 331 3 b as follows Jointly and severallyto pay to WWIL the sum of INR 6,772,456,570, being the profit made by Vish Wind on the sale of allotment rights to WWIL in the years ending 31 March 2011 and 2012 together with interest thereon at the rate of 3 over European Central Bank rate from those dates until the date of this Award. To pay to the Claimants their legal and other companyts in the sum of 3,794,970. It is thus Shri Viswanathans companytention that it is the decree holder alone who can execute such decree in its favour, and that in the present case it is WWIL who is the decree holder, insofar as paragraph 331 3 b is companycerned and, that, therefore, Enercons Chamber Summons, to execute this portion of the award, is companytrary to the Code of Civil Procedure as well as a number of judgments companystruing the Code. On the other hand, the submission of the other side is that the Mehra brothers, who are the 2 nd and 3rd defendants in the arbitration proceedings, are in companytrol and management of WWIL, and have wrongfully excluded Enercon from such companytrol and management. WWIL, therefore, will never put this decree into execution. This being so, the interest of justice requires that we should number interfere with the High Court judgment as there is numberperson that would be in a position to enforce the award apart from Enercon. We are of the opinion that even though the High Court may number be strictly companyrect in its appreciation of the law, yet it has attempted to do justice on the facts of the case as follows These last words are important. If what Mr. Mehta says is companyrect and the decree was in favour of WWIL and number Enercon, that necessarily posits a rejection of Enercons claim for damages and, therefore, a material disadvantage to Enercon. But this is number what the Arbitral Tribunal did at all. It accepted Enercons plea. It accepted its argument that the Mehras were guilty of wrongdoing. It accepted that the Mehras were liable to make good any advantage or benefit they have received. The Arbitral Tribunal merely changed the vehicle or direction by which that recompense, restitution or recovery was to be made. The numberenclature is immaterial. Given the nature of disputes, indeed, WWIL companyld never put this decree into execution. It never sought this relief.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1526 of 1978. Appeal by Special Leave from the Judgment and Order dated 9-8-1977 of the Himachal Pradesh High Court in Civil Revision No. 68 of 1976. K. Bhatt and Mrs. Krishna Bhatt for the Appellant. Hardev Singh for the Respondent. The Judgment of the Court was delivered by KRISHNA IYER, J. A small event may mark a great portent as this tiny proceeding for eviction, from a mini-shop, of a little man, will presently disclose. The appellant, a harijan by birth and a companybler by vocation, was a petty tenant of the eastern half of a shop in Ram Bazar, Simla. The original landlord passed away and his sons, the respondents, stepped into his shoes as legal representatives. He filed a petition for eviction of the appellant-tenant under S.13 2 ii b of the East Punjab Urban Rent Restriction Act, 1949, as applied to Himachal Pradesh on the ground that the premises were being used for purpose other than the one for which they were let out. The Rent Controller having held in favour of the land-lord, an eviction order ensued. The appellate authority reversed this finding and dismissed the petition for eviction. The High Court, in revision, reversed the appellate decision and restored the Rent Controllers order. The companybler-appellant, in the last lap of litigation, has landed in this Court. The poverty of the appellant is reflected in the chequered career of the case in this Court where it was dismissed more than once for default in payment but ultimately, thanks to the persistence of the appellant, he got this Courts order to pay the balance amount extended. He companyplied with that direction and thus companyld number be priced out of the justice market, if we may use that expression. The short point for adjudication is as to whether the respondent land-lord made out the statutory ground for eviction, of having diverted the building for a use radically different from the one for which it was let, without his companysent. There is numbercase of written companysent put forward by the tenant. But he companytested the land-lords claim by asserting that there was numberspecific companymercial purpose inscribed in the demise and, therefore, it was number possible to postulate a diversion of purpose. Secondly, he urged that, even assuming that the letting was for a companymercial purpose, the fact that he had companyked his food or stayed at night in the rear portion of the small shop did number offend against S. 13 2 ii b of the Act. S.13 2 ii b reads used the building for a purpose other than that for which it was leased The factual matrix may be shortly projected for as Mr. Justice Cardozo luminously stated. More and more we lawyers are awaking to a perception of the truth that what divides and distracts us in the solution of a legal problem is number so much uncertainty about the law as uncertainty about the facts-the facts which generate the law. Let the facts be known as they are, and the law will sprout from the seed and turn its branches toward the light. 1 A companybler-the appellant-was the lessee of a portion of a shop in Ram Bazar, Simla, since 1963, on an annual rent of Rs. 300/- i.e. Rs. 25/- per month . Ex. P. 1, the lease deed, disclosed numberpurpose but inferentially it has been held by the High Court that the lease being of a shop the purpose must have been companymercial. Possible number necessarily sure. The actual life-situations and urban companyditions of India, especially where poor tradesmen like companyblers, candle-stick makers, cycle repairers and tanduri bakers, take out small spaces on rent, do number warrant an irresistible inference that if the lease is of a shop the purpose of the lease must be companymercial. It is companymon knowledge that in the small towns-why, even in the big cities-little men plying little crafts and possessing little resources taken on lease little work places to trade and to live, the two being interlaced for the lower, larger bracket of Indian humanity. You struggle to make a small income and work late into the right from early in the morn and, during intervals, rest your bones in the same place, drawing down the shutters of the shop for a while. The primary purpose is to ply a petty trade, the secondary but necessary incident is to sleep in the same place since you can hardly afford anything but a pavement for the creature needs of companyking food, washing yourself, sleeping for a time and the like. The life style of the people shapes the profile of the law and number vice-versa. Law, number being an abstraction but a pragmatic exercise, the legal inference to be drawn from a lease deed is companyditional by the prevailing circumstances. The intention of parties from which we spell out the purpose of the lease is to be garnered from the social milieu. Thus viewed, it is difficult to hold, especially when the lease has number spelt it out precisely, that the purpose was exclusively companymercial and incompatible with any residential use, even of a portion. Two rules must be remembered while interpreting deeds and statutes. The first one is In drafting it is number enough to gain a degree of precision which a person reading in good faith can understand, but it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand. 1 The second one is more important for the Third World companyntries. Statutory companystruction, so long as law is at the service of life, cannot be divorced from the social setting. That is why, welfare legislation like the one with which we are number companycerned, must be interpreted in a Third World perspective. We are number on the Fifth Avenue or Westend of London. We are in a hilly region of an Indian town with indigents struggling to live and huddling for want of accommodation. The law itself is intended to protect tenants from unreasonable eviction and is, therefore, worded a little in favour of that class of beneficiaries. When interpreting the text of such provisions-and this holds good in reading the meaning of documents regulating the relations between the weaker and the stronger companytracting parties-we must remember what is an earlier decision of this Court, has been observed 1 Where doubts arise the Gandhian talisman becomes a tool of interpretation Whenever you are in doubt apply the following test. Recall the face of the poorest and the weakest man whom you may have seen, and ask yourself, if the step you companytemplate is going to be of any use to him. If we remember these two rules, the companyclusion is easy that there is numberexclusiveness of purpose that can be spelt out of the lease deed. That knocks at the bottom of the case of the land-lord. The circumstances are clearer as we proceed further. For well over a decade the tenant have been in occupation, companybling and sleeping, in the same place on working days, but going home on days when the shop is closed. Indeed, the pathetic genesis of the residential user cannot be lost sight of. The companyblers wife became mentally deranged and he companyld number leave her at home lest she should prove a danger to herself and to others around. Being a harijan companybler he companyld number hire servants and so, in despair, he took his insane wife to the place where he was toiling on leather. He worked in the shop, companyked food for his wife, slept there at night and thus managed to survive although she died a little later. A bed by night and a chest of drawers by day is number unusual even in England, as those who have read Goldsmith know. The dual uses of accommodation are companymon enough and, in this case, the land-lord himself appears to have understood it that way. The evidence shows that the sympathetic father of the respondents had number objected to the petitioner living in the premises and had even provided a sink in the shop to facilitate such user. Not that oral permission to divert the user to a different purpose is sufficient in the face of the statutory requirement of written companysent but that circumstance of the land-lords acquiescence over a long stretch of time reinforces the case of the tenant that the purpose was two-fold. The companymon experience of life lends credence to this case and numbere but those who live in ivory towers can refuse to look at the raw realities of life while administering justice. We are in the field of Poverty Jurisprudence. It is impossible to hold that if a tenant who takes out petty premises for carrying on a small trade also stays in the rear portion, companyks and eats, he so disastrously perverts the purpose of the lease. A different purpose in the companytext is number minor variations but majuscule in mode of enjoyment. This is number a case of a man switching over to a canteen business or closing down the companybler shop and companyverting the place into a residential accommodation. On the other hand, the companymon case is that the companybler companytinued to be companybler and stayed in the shop at night on days when he was running his shop but left for his home on shop holidays. A sense of proportion in social assessment is of the judicial essence. The irresistible inference, despite the ingenious argument to the companytrary, is that the provision of S.13 2 ii has number been attracted. We are companyforted in the thought that our companyclusion is a realistic one, as is apparent from a subsequent amendment to the definition of numberresidential building which reads thus d number-residential building means a building being used,- mainly for the purpose of business or trade or partly for the purpose of business or trade and partly for the purpose of residence, subject to the companydition that the person who carries on business or trade in the building resides there Provided that if a building is let out for residential and number-residential purpose separately to more than one person, the portion thereof let out for the purpose of residence shall number be treated as a numberresidential building. Explanation.-Where a building is used mainly for the purpose of business or trade, it shall be deemed to be a number-residential building even though a small portion thereof is used for the purpose of residence. Shri Bhatt raised an argument that this provision was applicable to pending proceedings. We do number have to investigate into that question in the view we have already taken and numbere the amendment only to indicate that the legislature, in its realism, has veered round expressly to approve de jure what is the de facto situation prevailing in the urban areas of Himachal Pradesh. In this view, the appeal is allowed with companyts. The tenant shall number be ejected. If he has been, as in this case it is stated he has been, the tenant shall be restituted into possession by the trial companyrt under S. 144, C.P.C.

NAGAPPAN, J. Leave granted. These two appeals are preferred against the companymon judgment dated 2.4.2014 of the High Court of Uttarakhand at Nainital, in Criminal Appeal No. 68 of 2003 and Criminal Appeal No. 96 of 2003. Both the appellants were accused number. 1 and 2 in S. T. No. 80 of 1998 on the file of Additional Sessions Judge Fast Track Court Almora and they were tried for the offences under Section 307 and 452 of Indian Penal Code. The Trial Court found them guilty of both the charges and sentenced them each to undergo 7 years rigorous imprisonment and pay a fine of Rs. 5000/- and in default to undergo imprisonment for six months for the offence under Section 307 IPC and further sentenced them each to undergo rigorous imprisonment for period of 3 years and pay a fine of Rs. 1000/- with default sentence for the offence under Section 452 IPC. Aggrieved by the companyviction and sentence both the accused preferred independent criminal appeals and they were heard together and the High Court dismissed both the appeals by the impugned judgment. The said judgment is under challenge number. When these appeals by way of special leave petitions came up for preliminary hearing before us on different dates, we issued numberice to the Respondent-State limited to the extent that instead of companyviction of the petitioners under Section 307 of IPC, whether the companyviction would have been either under Section 323 or under Section 325 of the IPC. We have accordingly heard learned companynsel for the parties on that limited extent. Both the appellants and the deceased were employed as Firemen at the Fire Station Headquarter, Bageshwar. PW1 Munnu Lal, Fire Station Officer, resided at the distance of about 300 yards in a rented accommodation provided by his landlord PW2 Ratan Singh. On the occurrence night at about 1 a.m. three accused, who were Firemen, came to his residence, knocked his door and PW1 Munnu Lal switched on the light and opened the door and the accused barged in with lathis and indiscriminately beat him with lathis. PW1 Munnu Lal screamed and on hearing the cry PW2 Ratan Singh and another tenant came and witnessed the occurrence and on their intervention the assailants left the spot. On the information given by PW2 Ratan Singh, the SHO of local police station rushed there and took PW1 Munnu Lal to the local government hospital. PW3 Dr. N. D. Punetha examined PW1 Munnu Lal and found 18 injuries including fractures of wrist bones in both the hands. He was shifted to District Headquarter Hospital and thereafter to the Medical College Hospital, Allahabad. On the companyplaint of landlord PW2 Ratan Singh, F.I.R. came to be registered and after investigation, charge sheet was filed against all the accused. The case was companymitted to sessions and during its pendency, one of the accused Hukam Singh died and the charges against him stood abated. The remaining two were tried and companyvicted for the offences as stated supra. The learned senior companynsel appearing for the appellants companytended that the overt acts of the appellants were companymitted number with the intention to cause death of the victim and it would number attract the offence under Section 307 IPC and it may fall under either Section 323 or Section 325 of the Indian Penal Code. Per companytra, the learned companynsel appearing for the respondent- State companytended that the appellants as a revenge for recording their absence from duty by PW1 Munnu Lal at the Fire Station, entered his house in the midnight and attacked him with lathis with the intention to companymit murder and the companyrts below have rightly companyvicted them for the offence under Section 307 IPC and the companyviction and the sentence are sustainable. To justify a companyviction under Section 307 IPC the Court has to see whether the act was done with the intention to companymit murder and it would depend upon the facts and circumstances of the case. Although the nature of injuries caused may be of assistance in companying to a finding as to the intention of the accused, such intention may also be gathered from the circumstances like the nature of weapons used, parts of the body where the injuries were caused, severity of the blows given and motive, etc. Just before the occurrence PW1 Munnu Lal came to the Fire Station for surprise check and recorded the absence of the accused in the general diary and returned home. Within few minutes the appellants accused armed with lathis went to his house and indiscriminately beat him with lathis causing injuries in neck, chest, hands, buttocks and thighs. PW3 Dr. N.D. Punetha mentioned in her report that injury number.11, 17 and 18 are grievous in nature. In fact the grievous injuries are the fractures of wrist bones in both the hands. Though the injuries caused were 18 in number they were number on vital parts of the body. It is true that the appellants had acted in a state of fury but it cannot be said that they caused those injuries with the intention to cause death. The appellants are number liable to be companyvicted for the offence under Section 307 IPC and at the same time for having voluntarily caused grievous hurt they are liable to be punished under Section 325 of the Indian Penal Code. Both the companynsel appearing for the appellants submitted that the occurrence had taken place in the year 1998 when all the accused were in their mid 20s and they have been dismissed from service and both the appellants have undergone about 17 months rigorous imprisonment and the sentence may be reduced.

civil appellate jurisdiction civil appeal number. 1339-40 of 1988. from the judgment dated 7.7.1987 of the madras high court in w.p. number. 9781 and 10545 of 1986. l. sanghi p.p. rao r. mohan r. perumal v. krishna- murthy m.n. krishnamani v. sekhar k.v. vishwanathan t. raja s.r. setia p. chaudhary a. mariarputham and m.a. krishnamurthy for the appearing parties. the judgment of the companyrt was delivered by jagannatha shetty j. in these appeals by special leave the legality of the judgment of the madras high companyrt dated 7 july 1987 quashing the promotions made to the cadre of professors in law companyleges in the state of tamil nadu has been called into question. the appeals arise in the following circumstances during the period from 197 1 to 1982 the government appointed temporary junior professors in different law companyleges in the state. the appointments were made under rule 10 a i 1 of the tamil nadu state and subordinate services rules 1955 viz. the. preliminary and the general rules hereinafter called the rules . in 1979 the state public service company- mission invited applications for regular appointment of junior professors. the temporary junior professors and others applied for the posts. the public service companymission selected 25 candidates out of whom 21 were already working as temporary junior professors. the selected candidates were arranged in the list called approved list. in the order of merit. the list was prepared by the public service company- mission on 16 august 1983. it was approved by the government on 9 december 1983. on 27 june 1985 the state government made an order regularising the services of those 21 junior professors. their services were regularised with effect from the dates of original appointments as temporary junior professors. on 10 september 1986 some of the junior professors were promoted and appointed as professors in the law companyleges. that. promotion was challenged before the madras high companyrt on the ground that the claim of the seniors has been over- looked it was urged before the high companyrt that once the temporary services have been regularised retrospectively with effect from the date of entry in the service the seniority should be reckoned by giving the benefit of regu- larised service numberwithstanding the ranking in the approved list prepared by the public service companymission. the high companyrt accepted that plea and queshed the promotion of professors and directed the government to make a proper order of promotion in the light of the views expressed in the judgment. the companyrectness of the judgment of the high companyrt has been assailed in these appeals. we must first outline the necessary statutory provisions bearing on the question raised. section 10 a i 1 provides as follows temporary appointments a i 1 where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service class or category and there would be undue delay in making such appointment in accordance with these rules and the special rules the ap- pointing authority may temporarily appoint a person otherwise than in accordance with the said rules. rule 22 so far as relevant reads reservation of appointments--where the spe- cial rules lay down that the principle of reservation of appointments shall apply to any service class or category selection for appointment thereto shall with effect on and from the 7th june 197.1 in cases such selec- tion is made by the companymission and 8th numberem- ber 1971 in other cases be made on the following basis-- the unit of selection for appointment for the purpose of this rule shall be one hun- dred of which eighteen shall be reserved for the scheduled castes and the scheduled tribes and thirty-one shall be reserved for the backward classes and the remaining fifty-one shall be filled on the basis of merit. the claims of members of the scheduled castes and the scheduled tribes and the back- ward classes shall also be companysidered for the fifty-one appointments which shall be filled on the basis of merit and where a candidate belonging to a scheduled caste scheduled tribe or back ward class is selected on the basis of merit the number of posts reserved for the scheduled castes and the scheduled tribes or for the backward classes as the case may be shall number in any way be affected. xxxxx xxxx xxxx rule 23 so far. as material is as follows 23 a i date of companymencement of probation of persons first appointment temporarily--if a person appointed temporarily either under sub-rule a or sub-rule. d of rule 10 to fill a vacancy in any service class or cate- gory otherwise than in accordance with the rules governing appointment thereto such vacancy being a vacancy which may be filled by direct recruitment is subsequently appointed to the service class or category in accord- ance with the rules he shall companymence his probation if any in such category either from the date of his first temporary appoint- ment or from such subsequent date as the appointing authority may determine. xxxxx xxxxx xxxxx provided that on the date so determined the person possesses all the qualifications pre- scribed for appointment to the service class or category as the case may be. a person who companymences probation under clause i shall also be eligible to draw increments in the time scale of pay applicable to him from the date of companymencement of his probation. where companymencement of probation is ordered from a date earlier than the date of the order and if this has number been enabled by relaxation of any rule he shall draw incre- ments including arrears in the time-scale of pay applicable to him from such earlier date. the appointing authority shall include a provision to this effect while issuing orders in all such cases. rule 35 omitting immaterial words is in these terms 35 a the seniority of a person in a service class or cate- gory or grade shall unless he has been reduced to a lower rank as a punishment be determined by the rank obtained by him in the list of approved candidates drawn up by the n.p.s.c. or other appointing authority as the case may be subject to the rule of reser- vation. where it applies. the date of company- mencement of his probation shall be the date on which he joins duty irrespective of his seniority. it is under these rules the public service companymission invit- ed applications for selecting candidates for direct recruit- ment to the cadre of assistant professors in law. the public service companymission prepared the list of selected candidates by following the reservation provided under rule 22. the list was approved by the state government. rule 35 a states that seniority of a person be determined by the rank obtained by him in the list of approved candidates drawn by the public service companymission subject to rule of reservation where it applies. the companytention urged for the respondents is. that since their temporary service as junior professors were regula- rised the regularised service should companynt for the purpose of determining their seniority and number the rankings in the select list approved by the government. we find little substance in it. the order of regularisation is in these terms order dated 27.6.1985 in g.o ms. number 2288 education dated 9.12.1983 the government approved the selection made by the tamil nadu public serv- ice companymission of the 25 candidates mentioned therein for appointment by direct recruitment as junior professor in the tamil nadu legal educational servicethese 25 candidates were appointed temporarily as from their taking charge in g.o. ms. number 897 education dated 11.7. 1984. the government have however decided to appoint them regularly with effect from the dates on which they were declared fully qualified to hold the post of junior professor in the law companyleges in tamil nadu prior to their selection by the tamil. public. service. companymission and appointment as junior profes- sorsin law companyleges with reference to their selection. the government accordingly direct that the services of the 21 individuals men- tioned in the annexure to this order as junior profes- sors in the tamil nadu legal educational service be regularised with retrospective effect from the dates numbered against them. the inter-se seniority of the 21 candi- dates.indicated in the annexure is in accord- ance with the seniority fixed by the tamil nadu public service companymission. the inter-se seniority position will number be affected in any way with reference to the dates of regulari- sation mentioned in companyumn 3 of the annexure. under rule 23 a ii of the general rules for state and subordinate services the incum- bents are eligible for increments from the date of their regularisation as they are fully qualified to hold the post on that date. the increments already sanctioned to them for their services as temporary. junior professors prior to regular appointment is ratified. xxxxx xxxxx the first paragraph of the order refers to the selection of 25 candidates by the public service companymission for ap- pointment as junior professors in the law companyleges and their appointment with effect from their taking charges. the second paragraph of the order deals with the regularisa- tion of the services of/21 candidates out of 25 appointed. the government directed that the services of the 21 junior professors specified in the order be regularised with retro- spective effect from the date numbered against them. in the third paragraph it is stated that the inter-se seniority of the 21 candidates is in accordance with the seniority fixed by the public service companymission and the inter-se seniority position will number be affected in any way with reference to the dates of regularisation of their services. the paragraph four of the order deals with the rights of the candidates to draw increments under rule 23 a ii in the service rendered as temporary junior professors. the high companyrt has stated that rule 35 a companyld number have been properly invoked by the state government after the regularisation of he services of the candidates and it would be against the very companycept of order of regularisa- tion. it has been pointed out that by regularisaion the period of temporary service has been companyverted into a period of regular service and a deeming fiction is introduced that the candidates whose services have been regularised retro- spectively must be treated for all purposes as being in regular service from the respective dates of regularisation. in our opinion the view. expressed by the. high companyrt number only runs companynter to the terms of the order of the. regularisation but also is inconsistent with statutory principle of determining seniority under rule 35 a . in the first place the order of regularisation of the services of the candidates expressly states that the inter se seniority of the candidates would be in accordance with the rankings in the approved list prepared by the public service companymis- sion and will number be affected in any way by the date of regularisation of services. when the order of regularisa- tion of temporary service itself denies such service for the purpose of determining seniority the companyrt cannumber companynt that service for the purpose of seniority. secondly rule 3.5 a provides for determining the inter-se seniority of the candidates selected by the public service companymission. it states that the seniority of a person in a service class or category or trade shall be determined unless he has been reduced to a lower rank as a punishment by the rank ob- tained by him in the list of approved candidates drawn by the public service companymission or other appointing authority as the case may be. since the parties in these cases ap- peared for selection before the public service companymission for regular recruitment as junior professors the list of approved candidates prepared by the public service companymis- sion in the order.of merit and accepted by the government should be the basis for determining their inter-se seniori- ty. it is number open to the parties to claim that their tempo- rary service as junior professors upon regularisation should be companynted for the purpose of determining the seniority in the cadre. there is numberrule supporting such companytention. the services rendered in the temporary post is available either for earning increments or for companymencement of probation. that would be clear from rule 23 a . companysistent with the rule 23 a the government in the order of regularisation has directed that the incumbents are eligible for increments from the date of their regularisation as they are fully qualified to hold the post on that date. the increments already sanctioned to them during their services as tempo- rary junior professors prior to.regular appointment has been ratified by the said order. the high companyrt was plainly in error in ignumbering the statutory rules and the terms and conditions of the order of regularisation of services. apart from that rule 10 a i 1 provides for making of temporary appointments when it is necessary in the public interest to do so owing to an emergency which has arisen for filling a vacancy immediately. such appointments are made otherwise than in accor- dance with the procedure prescribed under the rules. in the instant case the respondents were appointed temporarily and otherwise than in accordance with the rules. they were later selected along with others for direct recruitment.by the public service companymission. they were number entitled to count their temporary service for seniority. in a.p.m. mayakutty etc v. secretary public service department etc. 1977 2 scr 937 at 942 this companyrt observed that the serv- ices rendered by the applicants under rule 10 a i 1 cannumber be companysidered for the purpose of seniority as such appointment is a matter of stop-gap emergency or fortuitous arrangement.

civil appellate jurisdiction civil appeal number 2021 of 1969. appeal by special leave from the judgment and order dated 15th january 1969 of the punjab and haryana high court in s.a. number 905 of 1963. k. garg for the appellants. hardev singh for respondent number 1. s. bindra and t. s. arora for respondent number 2. the judgment of the companyrt was delivered by untwalja j.-this appeal arises out of an unfortunate litigation where the plaintiff appellant in this appeal has got to fail in this companyrt too on some technical grounds. one sardar balwant singh died on 10th march 1955 leaving only three sons according to the case of appellants namely the two appellants and respondent number 2. respondent number 1 claimed to be a fourth son of balwant singh entitled to 1/4th share in the property left by him. the appellants filed suit number 41 of 1958 in the companyrt of sub judge bassi. the civil companyrt on the objection of respondent number 1 framed a preliminary issue whether the said companyrt was companypetent to try the suit or was it a matter which companyld be decided only by the settlement companymissioner. by order dated 7.7.1958 the learned subordinate judge decided that the civil companyrt had numberjurisdiction to try this suit and directed the return of the plaint for presentation to the proper revenue companyrt. when the appellants filed their claim in the revenue companyrt their petition was returned holding that the revenue companyrt had numberjurisdiction to try it. thereupon the appellants instituted suit number 13 of 1960 in the companyrt of sub judge first class bassi on 2-4-1960. this suit has failed throughout on the ground of res judicata. the high companyrt has affirmed the dismissal on the view that the decision dated 7-7-1958 given by the civil companyrt in suit number 41 of 1958 on the point of civil companyrts jurisdiction to try the suit will operate as res judicata. in our opinion the high companyrt is right. the learned companynsel for the appellants submitted that the appellants were driven from pillar to post for the redress of their grievances. when they instituted the suit in civil companyrt that companyrt held that it had numberjurisdiction to try it. when the suit was filed in the revenue companyrt the said companyrt took a companytrary view. where companyld the appellants then go? we do sympathise with the appellants dilemma but they were wrongly advised to do as they did. either they ought to have followed the matter in the first civil suit and insisted up to the end that the suit was triable by a civil companyrt or they would have taken the matter further before the higher authorities and companyrt from the order of the revenue companyrt and persisted that the matter whether the civil companyrt had jurisdiction to decide the dispute between the parties or number was res judicata the revenue companyrt had numberjurisdiction to go behind the decision of the civil court. the appellants did neither. it is unfortunate that due to the wrong paths which they followed under wrong advice they have ultimately to fail on the technical ground of res judicata but there is no way out. it was pointed out by lord russell of killowen upendra nath bose v. lall and others 1 that there companyld be res judicata in regard to the question of lack of jurisdiction of the civil companyrt to try a matter but- a companyrt which declines jurisdiction cannumber bind the parties by its reasons for declining jurisdiction such reasons are number decisions and are certainly number decisions by a companyrt of companypetent jurisdiction. vide page 225 . the above passage does number help the appellants rather goes against them. mr. garg had also placed reliance upon a single judge decision of the allahabad high companyrt in jwala debi v. amir singh 2 wherein the learned judge observed at page 132- looked at closely a question of jurisdiction alongwith it may be raised by the defendant is a question that virtually arises between the plaintiff and the companyrt itself. the plaintiff invokes the jurisdiction of the companyrt. the defendant may or may number appear. if the companyrt finds that it has numberjurisdiction to entertain the plaint it will order the return of it for presentation to the proper companyrt. the defendant if he appears and if he so chooses may point out to the court that it has numberjurisdiction. a decision on the question of jurisdiction does number affect in any way the status of the parties or the right of one party to obtain redress against the other. the fact that a decision as to jurisdiction is number binding on the parties in a subsequent litigation will be apparent from this.

CIVIL APPELLATE JURISDICTION Appeal Civil Appeal No. 32 of 1950 , from a judgment and order of the High Court of Judicature at Madras dated 5th January, 1948, reversing an order of the District Judge of East Tanjore in an application under s. 47 and O. XXI, r. 2, of the Civil Procedure Code. K. Kesava Aiyangar T. K. Sundararaman, with him for the appellants. Ramachandra Aiyar for the respondent. 1951. March 5. The judgment of the Court was delivered by MUKHERJEA J.--This appeal is on behalf of the decreeholders in a mortgage suit and it is directed against a judgment and order of a Division Bench of the Madras High Court dated January 5, 1948, by which the learned Judges reversed, on appeal, an order of the District Judge of East Tanjore made in a proceeding under section 47 and Order 21, rule 2, of the Civil Procedure Code. The material facts are number in companytroversy and may be briefly stated as follows. The appellants before us are the representatives of three original plaintiffs who, as mortgagees, instituted a suit being O.S. No. 30 of 1934 in the Court of the District Judge, East Tanjore, for enforcement of a mortgage, against the present respondent, who was defendant No. 1 in the suit, and six other persons. The mortgage bond, upon which the suit was brought, was executed by defendant No. 1 for himself and his minor undivided brother, the defendant No. 2, and also as authorised agent on behalf of defendants 3 to 7 who were interested in a joint family business. The suit was companytested by all the defendants except defendant No. 1, against whom it proceeded ex parte, and there was a preliminary decree passed on May 15,1937, by which a sum of RS. 1,08,098 was directed to be paid by defendant No.1 and defendants 3 to 7, in default of which the plaintiffs were declared entitled to apply for a final decree for sale of the mortgaged properties, and the suit was dismissed against defendant No. 2. Against this decree, two appeals were taken to the Madras High Court, one by defendants 3 to 7--being Appeal No. 48 of 1938--who companytended that the mortgage was number binding on them or on their shares in the joint family property and the other by the plaintiffs--being Appeal No. 248 of 1938 --who challenged the propriety of the judgment of the trial judge in so far as it dismissed their claim against defendant No. 2. During the pendency of these appeals, the Madras Agriculturists Relief Act Act IV of 1938 came into force and applications were made by defendants 2 to 7 to the High Court, praying that in the event of a decree being passed against them, the decretal debt might be scaled down in accordance with the provisions of the Act. The defendant No. 1, who did number appear at any stage of the proceeding, did number make any such application. The High Court forwarded these applications to the lower companyrt for enquiry into the matter and for return, with its finding on the question as to whether the applicants were agriculturists, and if so, to what extent, the decretal dues should be scaled down. The District Judge, after making enquiries, submitted a finding that the applicants were agriculturists and that the debt, if scaled down, would amount to Rs. 49,255 with interest thereupon at 6 per annum from 1st of October, 1937, exclusive of companyts. On receipt of this finding, the appeals were set down for final hearing and by their judgment dated March 23, 1942, the learned Judges of the High Court accepted the finding of the companyrt below and held that defendants 2 to 7 were entitled to have the debts scaled down but as numberapplication had been made on behalf of defendant No. 1, he was held entitled to numberrelief under the Act. A decree was drawn up in accordance with the judgment. The amount due by defendants 2 to 7 was stated to be Rs. 49,255 with interest thereon at 6 per annum while, so far as defendant No. 1 was companycerned, the decree of the trial judge was affirmed subject to a slight modification regarding the rate of interest. The defendant No. 1 thereupon filed an application in the companyrt of the District Judge, East Tanjore, claiming relief under the Agriculturists Relief Act alleging that he too was an agriculturist and hence entitled to the benefits of the Act. The application was dismissed on February 25, 1943, on the ground that as the decree had already been passed by the High Court definitely negativing his claim to any relief under the Agriculturists Relief Act, such application was number entertainable by the lower companyrt. The next step taken by the defendant No. 1 was to file an application in the High Court itself, praying for setting aside the ex parte decree which excluded him from the benefits of Act IV of 1938. This application was rejected by the High Court on December 13, 1943. As numberpayment was made in accordance with the preliminary decree passed by the High Court, a final decree in terms of the same was passed by the District Judge on September 25, 1943. Proceedings for execution of this final decree were started on August 16, 1944, in E.P. 2 of 1945 of the companyrt of the District Judge, East Tanjore. Two lots of the mortgaged properties were put up to sale and purchased by the decree-holders for a total sum of Rs. 12,005 on July 15, 1946. The sale was companyfirmed on August 17, 1946, and part satisfaction of the decree was entered for that amount. Apparently, certain terms of settlement were thereafter offered by the judgment-debtors. The estate of the decree-holders was in the hands of the Receivers and from the Receivers report dated January 10, 1947, it appears that the Receivers agreed with the sanction of the companyrt, to receive Rs. 24,000 only from or on behalf of defendant No. 2 and release him and his share of the mortgaged property from the decretal charge. Likewise, the Receivers were agreeable to receive Rs. 48,000 from defendants 3 to 7 and to release them and their properties from the decretal debt. With regard to defendant No. 1, the proposal, which seems to have been accepted by the Receivers, was that the amount payable by him under the decree was to be settled at Rs. 37,500 and one Yacob Nadar would pay this amount on his behalf on companysideration of the decree against defendant No. 1 being assigned to him by the Receivers excluding the rights of the latter to execute the decree against defendants 2 to 7 as scaled down by the High Court. The records of the execution case show that on January 20, 1947, a sum of Rs. 24,000 was paid on behalf of defendant No. 2 and his properties, namely, lots 2 and 6 were exonerated from the decree. On January 27, 1947, a sum of Rs. 30,000 was paid by defendants 3 to 7 and on February 17 following, they paid a further sum of Rs. 18,610-12-0. These three amounts aggregated to Rs. 72,610-12-0. Nothing was done towards the payment of the sum of Rs. 37,500 by defendant No. 1 or by Yacob Nadar, but on March 6, 1947, the defendant No. 1 deposited in companyrt a sum of Rs. 3,215 and put in a petition under section 47 and Order 21, rule 2, Civil Procedure Code, praying that as the amount thus deposited together with the payments already made companypletely wiped off the amount due under the decree as scaled down by the High Court in favour of defendants 2 to 7, full satisfaction of the decree might be recorded exonerating the mortgaged properties and also the defendant No. 1 himself from any further liability in respect of the decretal debt. The position taken up by defendant No. 1, in substance, was that the mortgage debt was one and indivisible and even though different amounts were mentioned as payable by two groups of defendants in the decree, the decree-holders were bound under the terms of the decree to release the entire mortgaged property even on payment of the amount directed to be paid by defendants 2 to 7. In other words, even though the defendant No. 1 s application for relief under the Madras Agriculturists Relief Act was expressly rejected and he was held liable for the entire amount of the mortgage debt, he would still be entitled to avail himself of the benefit of the scaling down of the decree in favour of defendants 2 to 7. This companytention was negatived by the District Judge, but was accepted by the High Court on appeal, who allowed the application of defendant No. 1 and directed that the companyrt below should enter up full satisfaction of the mortgage decree. It is against this judgment that the decree-holders have companye up on appeal to this companyrt. The learned Judges of the High Court observed at the outset that in the working of the Madras Agriculturists Relief Act alongside the provisions of the Transfer of Property Act several curious and numberel situations had arisen for which it was number possible always to find logical solutions. They then proceeded to discuss the various decisions of the Madras High Court which had a bearing on this point and the companyclusion which they reached may be summed up in their words as follows-- It is numberdoubt somewhat odd that when a person is declared liable to pay a larger amount he should on payment or tender of a smaller amount get his property exonerated from liability but this is inherent in and arises out of the proposition established by the decisions already dealt with, namely, that by the application of the principle of unity and indivisibility of a mortgage decree a numberagriculturist can indirectly get relief which he cannot directly get. It seems to us that the High Courts approach to the case has number been a proper one and the companyclusion it has reached cannot be supported in law. The learned Judges appear to have overlooked the fact that they were sitting only as an executing companyrt and their duty was to give effect to the terms of the decree that was already passed and beyond which they companyld number go. It is true that they were to interpret the decree, but under the guise of interpretation they companyld number make a new decree for the parties. As said above, the mortgage decree was scaled down by the High Court in favour of defendants 2 to 7 only and the amended decree directs that the said defendants do pay into companyrt the sum of Rs. 49,255 with certain interest and companyts on payment of which the plaintiff was to bring into companyrt all the documents in his power or possession relating to the mortgage and reconvey or retransfer the property if so required. So far as defendant No. 1 is companycerned, the decree states in clear and express terms that he is to pay the sum of Rs. 1,05,000 and odd and it is on payment of this sum only that redemption would be allowed of the mortgaged property. If the decision of the High Court is companyrect, this direction in the decree would be manifestly unmeaning and without any effect. What is said, however, on behalf of the respondent is that he is number claiming any benefit in violation of this clause. By virtue of the decree against defendants 2 to 7 being satisfied, the entire mortgaged property would, by force of the very decree, be freed from the debt and if the respondent gets any benefit thereby, such benefit would be merely incidental or companysequential in its nature. The High Court agreed in substance with this companytention and based its decision entirely upon the view that by operation of the principle of indivisibility of the mortgage decree, a number-agriculturist debtor, whose debt has number been scaled down under the provisions of the Agriculturists Relief Act, may indirectly get the benefit of the relief which has been granted to his agriculturist companydebtor under the provisions of the Act. The general law undoubtedly is that a mortgage decree is one and indivisible and exceptions to this rule are admitted in special circumstances where the integrity of the mortgage has been disrupted at the instance of the mortgagee himself e.g., when there is severance of the interests of the mortgagors with the companysent of the mortgagee or a portion of the equity of redemption is vested in the latter. It is to be numbered, however, that the Madras Agriculturists Relief Act is a special statute which aims at giving relief number to debtors in general but only to a specified class of debtors, viz., those who are agriculturists as defined in the Act. To this extent it trenches upon the general law and section 7 of the Act expressly provides that numberwithstanding any law, custom, companytract or decree of companyrt to the companytrary, all debts payable by an agriculturist at the companymencement of this Act shall be scaled down in accordance with the provisions of this chapter. Thus in case of a mortgage debt when the loan has been advanced to more than one person, if one of the debtors happens to be an agriculturist while others are number, the agriculturist debtor would certainly be entitled to have his debts scaled down under the provisions of the Act in spite of the provision of general law which prevents a mortgagor from denying the liability of the interest which he owns in the mortgaged property to satisfy the entire mortgage debt. There is, therefore, numberhing wrong in law in scaling down a mortgage decree in favour of one of the judgment debtors, while as regards others the decree is kept intact. The Madras High Court expressly adopted this view in Rainier v. Srinivasiah 1 , which is one of the 1 1940 2 M. 39 decisions referred to in the judgment appealed from. The fact that in that case it was a puisne mortgagee and number a mortgagor whose application for relief under section 19 of the Madras Agriculturists Relief Act was allowed, does number make any difference in principle. The puisne mortgagee was made a party defendant in the suit instituted by the first mortgagee to recover his dues and as the puisne mortgagee was liable to pay the debt due to the first mortgagee, he was held to be a debtor and hence entitled to claim the benefit of section 19 of the Agriculturists Relief Act. It may be mentioned here that section 14 of the Madras Agriculturists Relief Act which provides for separation of a debt incurred by a Hindu family, some members of which are agriculturists while others are number, affords a clear indication that the splitting up of a debt in such circumstances is quite in accordance with the scheme of the Act. The catena of cases upon which the learned Judges of the High Court relied in support of their decision seems to proceed on a different principle altogether and whether that principle is right or wrong, it has, in our opinion, numberapplication to a case like the present. In this class of cases, the mortgagors were agriculturists and hence entitled to have their debts scaled down under the Agriculturists Relief Act, but there were purchasers of the mortgaged property who were number agriculturists, and the question arose whether a purchaser companyld get the benefit of the debt scaled down in favour of the original debtors. This question was answered in the affirmative. The reason for taking this view was thus given by the learned Judges in Arunachalam Pillai Seetharam 1 , where the purchase of the equity of redemption was at an execution sale-- When the 12th respondent purchased the properties in companyrt auction, he took them subject to the burden of the appellants mortgage and if the burden is by reason of the provisions of s. 8 refer.red to above reduced without payment, the purchase proves to that 1 1941 1 M.L.J. 561 extent an advantageous one, and there is numberhing in the Act to deprive him of the fruits of his. lucky purchase, even though he is number an agriculturist. He gets the benefit of the scaling down number because the provisions of the Act apply to him, for obviously they do number, but because such benefit is a necessary incident of his purchase under the general law and the Act does number deprive him of it. A somewhat different reason was assigned in Pachigola v. Karatam 1 which however was a case where a portion of the. equity of redemption was transferred to a purchaser by a private sale. It was held that the companyrt by allowing the mortgagor to redeem the mortgage sale was number companyferring on the purchaser, a number-agriculturist, the benefit of the Act, as he would have to refund to his vendor the purchase money reserved with him which as a result of the scaling down he would number have to pay to the mortgagee. In both these cases, the question was raised in the proceeding for scaling down of the decree under the provisions of the Agriculturists Relief Act itself and number at the execution stage. There is however the case of Subramanian v. Ramachandra 2 , where the question arose in companyrse of execution proceedings and a purchaser of a portion of the equity of redemption was held to be entitled to the benefit of the scaled down decree in favour of the mortgagors, although his own application for relief under the Act was refused. It is number necessary for purposes of this case to express any opinion as to the companyrectness or otherwise of these decisions. It is enough to say that the ratio decidendi in all these cases is number applicable to the case before us. In the present case there is numberpurchaser of the mortgaged property and companysequently there is numberquestion of the purchaser, who is number an agriculturist himself, being entitled to the benefit of a decree which has been scaled down in favour of the agriculturist mortgagor. Here the judgment-debtors are the mortgagors themselves and according to the plain provisions of the Agriculturists Relief Act there companyld 1 1949 1 M.L.J. 506. 2 1946 2 M. L. J. 429. number be any objection to a decree for reduced amount being passed against an agriculturist debtor, while the same relief is number given to his companydebtors who do number fulfil that description. Some exception companyld undoubtedly be taken to the form and wording of the decree that has been passed in the present case. The decree, in our opinion, should number only have stated the amount payable by defendant No. 1 and that by defendants 2 to 7 separately but should have expressly directed ,that on payment of the amount directed to be paid by defendants 2 to 7 their interest alone in the mortgaged property would number be liable to be sold. The further direction should have been that in case they did number pay this amount, the whole of the mortgaged property including their interest would be sold for the entirety of the mortgage debt for which defendant No. 1 was made liable. It is true that the decree companytains numbersuch clear directions but reading the decree as a whole and having regard to the actual decision in the case, this must be taken to be its plain implications. The-subsequent agreement between the parties arrived at in companyrse of the execution proceedings by which the decreeholders agreed to release the interest of defendant No.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2269 of 1972. From the Judgment and Order dated 9-5-1972 of the Allahabad High Court in Special Appeal No. 125/70 . P. Goyal, G.S. Chatterlee and Shree Pal Singh, for the Appellants Other than 2nd appellant . M. Jain and S.K. Jain, for the Appellant No. 2. M. Tarkunde, Yatindra Singh, Deepal Gupta, Najahad Hussain, S.S. Khanduja, Urea Dutta and Miss Manik Tarkunde, for Respondents Nos. 1, 4, 5, 7 and 8. K. Mehta, for Respondents Nos. 11--12. The Judgment of the Court was delivered by CHANDRACHUD, J.--This appeal by certificate raises a question as regards the validity of a will executed by an eighty year old woman five days before her death. The testatrix Jaggo Bai had a muchmarried son called Beni Chand, the last of whose three marriages has given birth to this long litigation. Beni Chands first wife, Chameli Bai, died leaving behind Respondents 3, 5, 6, 7 and 8 as her heirs. His second wife Kamla Kunwar is Respondent 1. Respondent 4 is her daughter and respondents 9 and 10 are her grand-daughters. Beni Chand had numbermale issue from his two wives and therefore, in 1928, he gambled for a ion by marrying Ved Kumari. That marriage created dissensions in the family, partly because Ved Kumari belonged to a different caste but more substantially because the entry of yet another woman in the household was like a last straw. On October 26, 1961 Jaggo Bai made a will disinheriting her son Beni Chand and the children born of Ved Kumari, and bequeathing her extensive properties to the progeny born of Chameli Bai and to Kamla Kunwar and her progeny. Jaggo Bai died on October 31, 1961. Kamla Kunwar who was appointed under Jaggo Bais will as an executrix filed a petition in the Allahabad High Court for probate of the will. Beni Chand filed a caveat companytending that the will was a forgery and was prepared in companylusion with one Dwijendra Nigarm, an advocate, while Jaggo Bai was lying in an unconscious state. A learned single Judge of the High Court dismissed the petition on the ground that the propounder of the will had failed to explain the suspicious circumstances surrounding the execution of the will. That judgment was reversed in appeal by a Division Bench of the High Court, which upheld the validity of the will. This appeal by certificate is directed against the appellate judgment of the High Court. There is numbergainsaying the fact that the execution of the will is shrouded in circumstances which require a companyent explanation, particularly as the testatrix was advanced in age and the provisions of the will are prima facie unnatural. But, we do number see enough reason for rejecting the companyclusion of the High Court that the executrix who propounded the will has offered a satisfactory explanation of those circumstances. The relations between Jaggo Bai and her son Beni Chand were strained beyond words. A long span of over 30 years following upon Beni Chands marriage with Ved Kumari is littered with ,a spate of litigations between the mother and son. Beni Chand gave to his mother a good look of law and law companyrts, civil and criminal. Exasperated by his unfilial companytumacy, Jaggo Bai executed a gifit deed of her Stridhan properties excluding him scrupulously from her bounty. Later, she executed a document of a testamentary nature disinheriting him. These instruments were on persuasion cancelled but Beni Chand did number mend his ways. On October 26, 1961 when the impugned will was executed by Jaggo Bai, a litigation was still pending between the mother and son, and just 3 or 4 days before the execution of the will, the eighty year old Jaggo Bai had to appear in the Court. In this background, the fact that Jaggo Bai did number give any part of her properties to Beni Chand cannot be described as unnatural. Add to that the stark fact that the testatrix while disinheriting Beni Chand, bequeated the entire property to his wife, Kamla Kunwar, the children born of her and to the progeny born of Beni Chands first wife Chameli Bai. Jaggo Bai. never reconciled herself to Beni Chands third marriage with Ved Kumari and she excluded that branch from the bequest. It is alleged that Dwijendra Nigam, an advocate, companyspired with Jaggo Bais pro-deceased daughterss son Ratan Lal to forge the will. But from the long and varied cross--examination of Nigam it is difficult to discover any reason why he should do so. He received numberbenefit under the will and had numberinterest either in seeing that the progeny born of Beni Chands first two wives should get the property or in ensuring that Beni Chand, Ved Kumari and their children should be left out. It is significant that Beni Chand who alleged by his caveat that Nigam was the villain of the piece, did number file any affidavit in support of his caveat and what is more important, he did number enter the witness-box to substantiate his accusation. The charge that Nigam and Ratan Lal forged the will is thus left to chance and guess-work. As for Ratan Lal, who is respondent 2 to this appeal, he admitted the execution of the will though it was against his interest to do so. If the will is set aside, Beni Chand and Ratan Lal will each be entitled on intestacy to a moiety in Jaggo Bais estate, which was her Stridhana property. Ratan Lal gets numberhing under the will of his grand-mother Jaggo Bai. These features of the case dispel the suspicion arising out of the circumstances that the testatrix was at the threshold of death when she made the will, that she was far too advanced in age to bring to bear an independent judgment on the disposal of her property and that she disinherited her only son under her will. It has to be mentioned that though over eighty years of age, Jaggo Bai was number an invalid, that just a few days before her death she had appeared in the companyrt in a case relating to Zamindari Bonds between her and Beni Chand, that a criminal case launched by Beni Chand against her was defended by her Zealously leading to an order of companyposition two or three months before her death and that in spite of the unkind cuts that Beni Chand had inflicted on her she wanted to try and help him at one stage. In an old letter Ex. 161-Ga which she wrote to him, she said plaintively Now have a short span of life. I shall number be companying to see what happens hereafter. Please do number injure my heart. Come back at once . These entreaties fell on deaf ears. Beni Chand dragged his mother from pillar to post over a companyrse of twenty years and he never came back. He lived separately from her and did number bother to attend to her even when she was dying. He awoke to his son-ship only when it came to claiming the mothers estate. Two circumstances would appear to have influenced the judgement of the learned Single Judge in ho1ding that the will was number proved to be Last will and testament of Jaggo Bai. The first circumstance is that the thumb-mark which Jaggo Bai is alleged to have made on the will does number bear the usual endorsement that it is of the left or the right thumb and secondly that neither of the two attesting witnesses was examined to prove the formal execution of the will. The Division Bench of the High Court, sitting in appeal against the judgment of the learned Single Judge, has accepted the explanation offered by Shri Nigam that the endorsement remained to be made through inadvertence. Nigam had numberpersonal interest in the matter and the explanation, being unmotivated, companyld reasonably be accepted. The learned judges also accepted the evidence of the Advocate that he himself held the right hand of Jaggo Bai and took the impression of that thumb on the will. That meets the argument that an impression admitted to be of Jaggo Bais left thumb does number tally with the one on the will. The two will number tally since the two thumbs would have different characteristics. The will was executed in triplicate, one companyy of which was deposited with the District Registrar on October 28, 1961, that is, two days after the will was executed. It is difficult to believe that a practising advocate would run the risk of depositing a forged will with a public official while the testatrix was still alive. Beni Chand lived in the same town as his mother, though separately from her and it is impossible in the very nature of things that as alleged by him, Nigam and Ratan Lal took the thumb impression of Jaggo Bai while she was lying unconscious. Jaggo Bai might lose her companysciousness but she was possessed of a large estate and in the numbermal companyrse of human affairs, she would,. while unconscious, be surrounded by a large number of close relatives of which there were many in the town of Banda in which she lived. To think that Nigam companyld steal a thumbimpression of the dying woman puts a strain on ones credulity, particularly when he stood to gain numberhing and Ratan Lal, the alleged companyonspirator, would be better off without the will. It is a strange plea that Ratan Lal who, on intestacy, stood to gain a one-half share in his grand-mothers estate chose to exclude himself by fabricating the will. There is some evidence that a portion of Jaggo Bais right thumb was mutilated but on examination of the relevant circumstances in that behalf, the Division Bench of the High Court has rejected the suggestion that the right thumb of the testatrix was so badly damaged as to be incapable of producing an impression. With these plain findings of fact, we see numberreason for interfering by going into minute details of the evidence. There is numbersubstance in the grievance that the proof of the will in this case is incomplete for want of an attesting witnesss evidence. Section 68 of the Evidence Act deals with proof of the execution of documents required by law to be attested. It provides that such documents shall number be used as evidence until at least one attesting witness has been called to prove the execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. Since by section 63 of the Succession Act, 1975 a will has to be attested by two or more witnesses, section 68 of the Evidence Act would companye into play and therefore it was incumbent on the propounder of the will to examine an attesting witness to prove due execution of the will. But this argument overlooks that Dwijendra Nigam is himself one of the three persons who made their signatures below the thumb impression of Jaggo Bai. None of the three is described in the will as an attesting witness but such labelling is by numberstatute necessary and the mere description of a signatory to a testamentary document as an attesting witness cannot take the place of evidence showing due execution of the document. By attestation is meant the signing of a document to signify that the attestor is a witness to the execution of the document and by section 63 c of the Succession Act, an attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant regards the execution of the document. Nigams evidence shows that he and the other two witnesses saw the testatrix putting her thumb-mark on the will by way of execution and that they all signed the will in token of attestation in the presence of the testatrix, after she had affixed her thumb-mark on the will. The question which number arises for companysideration, on which the Letters Patent Court differed from the learned Single Judge of the High Court, is whether the execution of the will by Jaggo Bai is proved satisfactorily. It is well-settled that the onus probandi Iies in every case upon the party propounding a will, and he must satisfy the companyscience of the Court that the instrument so propounded is the last will of a free and capable testator. 1 By free and capable testator is generally meant. that the testator at the time when he made the will had a sound and disposing state of mind and memory. Ordinarily, the burden of proving the due execution of the will is discharged if the propounder leads evidence to show that the will bears the signature or mark of the testator and that the will is duly attested. For proving attestation, the best evidence would naturally be of an attesting witness and indeed the will cannot be used as evidence unless at least one attesting witness, depending on availability, has been called for proving its execution as required by section 68 of the Evidence Act. But where, as in the instant case, the circumstances surrounding the execution of the will are shrouded in suspicion, it is the duty and the function of the propounder to remove that suspicion by leading satisfactory evidence. The testatrix was advanced in age being past eighty years of age, the will companytains provisions which are prima facie unnatural since the only son is disinherited under it and the testatrix died five days after making the will. There can be numberdispute that these are gravely suspicious circumstances. But the propounder has, in our opinion, offered an explanation of these circumstances which ought to satisfy a prudent mind. Ultimately, that is the test to adopt for one cannot insist on mathematical proof even where the circumstances attendant on the execution of the will raise a suspicion as regards its due execution. The burden in testamentary cases is of a different order than in other cases in the sense that an attesting witness must be called, wherever possible, to prove execution, the propounder must remove the suspicion, if any, attaching to the execution of the will and if there be any doubt regarding the due execution, he must satisfy the companyscience of the companyrt that the testator had a sound and disposing state of mind and memory when he made the will. Reasonable scepticism, number an obdurate persistence in disbelief number a resolute and impenetrable incredulity is demanded of the testamentary judge He is never required to close his mind to the truth. 2 Gajendragadkar J. who spoke for the Court in Iyengars case 3 numbericed these See Jarrman on Wills 6th Ed., D- 50 and H. Venkatachala lyengar v.B.N. Thijmajamma Ors. 1959 Suppo. 1 CR. 426. See Harmes v. Hinksen 1946 50 O.W.N. 895 per Lord Du Parcq. 3 1959 Supp. 2 S.CR. 426. 446. observations of Lord Du Parcq with approval and said It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect. Bearing these principles in mind and giving equal weightage to openness and vigilance, the position emerging from the evidence may be briefly summed up thus Beni Chands behaviour was far too unfilial and remorseless for him to find a place in the affections of his mother Jaggo Bai. He had bruised her so badly that she companyld number possibly reward him with a precious inheritance. But she gave her estate number to strangers but to his children born of the first two wives and to the second wife Kamla Kunwar. She also gave him a personal right of residence in one of the houses. Shri Nigam, the advocate, had numberpersonal motive or bias to hatch a companyspiracy to forge the will. He received numberbenefit under the will, directly or indirectly. And Ratan Lal was the least suitable companyconspirator because, he stood to lose under the will what he would have got without it. He would have been an equal sharer with Beni Chand in Jaggo Bais estate under section 15 1 a of the Hindu Succession Act, 1956. The entire property companyprised in the will was Jaggo Bais Stridhana. The will was read out to Jaggo Bai and in spite of her advanced years she was in a sound state of mind and body. The chosen few do possess that privilege. Thus the executrix has successfully discharged what, in the circumstances, was a heavy onus of proving the due execution of the will and of offering a satisfactory explanation of the suspicious circumstances surrounding the will. We are in agreement with the Division Bench of the High Court, which was companyscious of the special rules governing proof of testamentary instruments, that the will propounded by the executrix is the last will and testament of Jaggo Bai, made while she was in a sound and disposing state of mind and memory. Beni Chand who opposed the grant of probate to his wife Kamla Kunwar died during the pendency of the appeal in this Court. He is number represented by his legal representatives almost all of whom supported the grant of probate. The one person from amongst the heirs of Beni Chand who stoutly pressed this appeal is Vikram Chander, one of the sons of Beni Chand, born of his third wife Ved Kumari. While Kamla Kunwars appeal was pending before the Division Bench of the High Court, Beni Chand alienated some of the properties included in the will to a person called Sadhu Prasad. The alienation was purportedly made on the basis that the learned Single Judge of the High Court had set aside the will and had refused to grant the probate to the executrix. The alienee Sadhu Prasad is also an appellant before us, having joined Beni Chand in filing the appeal. We have had the benefit of the arguments advanced by Mr. Jain on behalf of the alienee but numberhing that he has urged is enough to upset the view taken by the Division Bench of the High Court. The only argument advanced by Mr. Jain to which reference need be made is that even alienees are entitled to citations in probate proceedings and in the absence of such citations the grant of probate is vitiated. In support of this submission reliance is placed on a judgement of the Madhya Pradesh High Court in Banwarilal Shriniwas v. Kumari Kusum Bai and Ors. C It was held in that case that any interest, however slight, and even the bare possibility of an interest is sufficient to entitle a party to oppose the grant of probate. A purchaser, therefore, who acquires an interest in the estate of the testator by reason of a transfer by his heirs must be cited in testamentary proceedings. We will assume without affirming that this is the true position in law but the important distinction is that the alienee in the instant case is a transferee pendeme lite who purchased some of the properties included in Jaggo Bais will while the Letters Patent Appeal was pending in the Allahabad High Court. In the very nature of things numbercitation companyld be issued to him prior to the companymencement of the probate proceedings. In fact, we felt that the alienee had numberright to be heard in this appeal. Nevertheless, we heard his companynsel on the point whether the executrix has established the will. One reason why we heard the alienee is that he should number be able to raise any objection later that the decision in these proceedings is for some reason or the other number binding upon him. The property included in the will is for the time being in the possession of a Receiver appointed by the Court. Since we have upheld the will, the Receiver shall have to hand over the property to the executrix, Kamla Kunwar, who is respondent 1 to this appeal. We however direct that the Receiver shall companytinue in possession Of the property for a period of 4 months from today and hand it over to respondent 1 on the expiry of that period. The alienee Sadhu Prasad may, if so advised, file a suit within that period for such relief as he is advised to seek and obtain interim orders, if he may, within that period as regards the possession of the property alienated to him. Subject to such orders, if any, the Receiver shall hand over the property to respondent 1, Kamla Kunwar. Mr. Tarkunde who appears on behalf of respondents 1, 4, 5, 7 and 8 made a statement before us on the companyclusion of the arguments in the appeal that even if we uphold the validity of the will, his clients would be willing to make an ex-gratia payment to 4 out of the 5 children born to Beni Chand from Ved Kumari. Two daughters Subhashni Seth and Chander Rekha and three sons, Pratap Chander, Vikram Chander and Khem Chander were born to Beni Chand from Ved Kumari. Mr. Tarkunde has given an undertaking to this Court on behalf of his clients that they shall pay a sum of Rs. 20,000/- to each of the two daughters, Subhashni Seth and Chander Rekha and a similar amount to each of the two sons, Pratap Chander and Khem Chander. Under this arrangement, numberamount whatsoever shall be payable to Vikram Chander and number certainly to the alienee Sadhu Prasad. According to the undertaking, the aforesaid amount totalling Rs. 80,000/- shall be paid to the four persons mentioned above within one year of the date on which respondent 1 obtains actual possession of the properties included in the will, which were alienated ,by Beni Chand. Mr. Tarkunde also agrees and undertakes on behalf of A.I.R. 1973 M.P. 69. clients that in the event that the aforesaid amount or any part of it is number paid as stipulated, the persons to whom the amount is payable, or any one or more of them, shall be entitled to recover it in execution of this judgment as if there were a decree in favour of each of them in the sum of Rs. 20,000/-.

RAVINDRA BHAT, J. The Municipal Corporation of Greater Mumbai hereafter MCGM appeals under Section 62 of the Insolvency and Bankruptcy Code, 2016 hereafter IBC or the Code against the order of the National Company Law Appellate Tribunal hereafter variously NCLAT and the Appellate Tribunal , rejecting its plea Signature Not Verified NATARAJANwith respect to a resolution plan approved by the National Company Digitally signed by R Date 2019.11.16 124818 IST Reason Law Tribunal NCLT under the provisions of that Code. MCGM owns inter alia, Plot Nos. 155156, 162 and 168 all plots hereafter called the lands in village Marol, Andheri East Mumbai. By a companytract dated 20th December, 2005 SevenHills Healthcare P. Ltd. the companypany facing insolvency proceedings, hereafter SevenHills agreed to develop these lands which were to be leased to it for 30 years and companystruct a 1500 bed hospital. MCGM stipulated several companyditions, including that 20 of the beds had to be reserved for use by the economically deprived, and that SevenHills had to companyplete the companystruction in 60 months excluding monsoons . The sixtymonth period ended on 24 th April, 2013 the project however, was number companypleted. In terms of Clause 15 g , the lease deed had to be executed within a month after companypletion. However, the deed was number executed as the project was number companypleted. Further, SevenHills had to pay lease rent at the annual rate of 10,41,04,000. MGCM alleges that there were defaults in these payments. In these circumstances, MCGM issued a show cause numberice on 23rd January, 2018, proposing termination of the companytract agreement. It is submitted that SevenHills owed MCGM an amount of 76,05,07,780. On the strength of the companytract, SevenHills had borrowed from banks and financial institutions. It had created security by way of mortgage of the said lands, citing Clause 5, which enabled the creation of such encumbrances. SevenHills inability to repay its debts led to the initiation of insolvency proceedings by Axis Bank. On 13th March, 2018, before the period given by MCGMs show cause numberice ended, the Petition CP IB No. 282/7/HBD/2017 was admitted by the Hyderabad Bench of the NCLT. The first respondent was appointed as the Resolution Professional hereafter RP this was approved by the Committee of Creditors CoC as required by the Code, on 12 April, 2018. A publication for expression of interest EOP was issued on 14 May, 2018 later, on 25th June, 2018 and 16th July, 2018, the terms of the Request for Proposal RFP and criteria for evaluation of RFPs received were approved. As a result of the RFP published, a resolution plan was submitted by Dr. Shettys New Medical Centre SNMC . After discussion with the CoC, a revised RFP was submitted by the RP. The revised resolution plan was approved by the CoC on 4th September, 2018. The resolution plan projected infusion of over 1000 crores by SNMC. That amount was to be borrowed for this purpose, SevenHills properties movable and immovable, were proposed to be secured by hypothecation and mortgage respectively. Operational creditors were to be paid off to the extent of 75. Further, the plan proposed payout to the tune of 102.3 crores to MCGM as against its total claim of 140.88 crores, and also companymitted to honouring the terms of the agreement entered into by SevenHills and providing 20 of the beds of the hospital to be companystructed to the poor and weaker sections of society. The networth certificate furnished by SNMC indicated that it possessed sufficient funds. MCGM filed an application I.A. No. 207/ 2018 claiming that it ought to be declared as a Financial Creditor and a Member of the Committee of Creditors. It made several submissions, which indicated that subject to stipulations with respect to companypletion of the hospital project in a timebound manner, and subject to SNMC providing 20 beds in the companypleted hospital, for use by the economically weaker sections and at the disposal of MCGM and, lastly subject to clearing its MCGMs claims to the tune of 140.88 crores, it was agreeable to the resolution plan. However, later during the proceedings, it opposed the resolution plan, arguing that being a public body as well as a planning authority, it had to companyply with the provisions of the Mumbai Municipal Corporation Act, 1888 MMC Act , which meant that all action and approval had to be taken by the Improvement Committee of the Corporation. It was also stated that the show cause numberice SCN dated 23 rd January, 2018 had been already issued by MCGM proposing to terminate the companytract with SevenHills to which there was numberresponse and that in the absence of a lease, the provisions of Section 14 1 d of the Code companyld number prevent the MCGM from terminating the agreement. Another argument made was that the period of CIRP in the case began on 13 th March, 2018 when the petition was admitted and the period of 270 days expired on 8 th September, 2018 an extension of 90 days provided in Section 12 3 was granted by the Adjudicating Authority on 4 th September, 2018 and the extended period came to an end on 7th December, 2018 thus the CIRP has lapsed by efflux of time. The NCLT, after companysidering the views of the RP, MCGM, the creditors and SNMC, held that It may be relevant to numbere here that the Application for approval of the resolution plan was filed on 07.09.2018. The MCGM at a belated stage has companye up with its objections to the Resolution Plan with the companytention that it is undisputed owner of the plot on which one of the hospitals of the Corporate Debtor in Mumbai is built. The various objections raised by MCGM as enumerated hereinabove at a belated stage are neither tenable number acceptable. It is clear from the record that MCGM is taking a stand which is totally companytrary to its own decisions and factual submissions. The final prayer of MCGM is to reject the resolution plan and order for liquidation of the Corporate Debtor. The RP in his submissions has clearly pointed out as to why the averments of MCGM are erroneous and incorrect. For the sake of briefness, the submissions made by RP as stated supra are number discussed in detail once again. This Adjudicating Authority is of the view that the companytentions raised by MCGM cannot be accepted due to the companyflicting and companytradictory stands taken by it in the companyrse of hearings. Further, the companytention of MCGM relating to expiry of the period of 270 days is untenable and unacceptable for the reason that the Application by the Resolution Professional for the approval of the Resolution Plan has been made well before the expiry of the period of CIRP and the same is in accordance with the provisions of the Code. Therefore, the objections raised by the MCGM are hereby rejected. The NCLT also held that the plan filed along with the application met the requirements of Section 30 2 of the Code, and Regulations 37, 38, 38 IA and 39 4 of IBBI CIRP Regulations, 2016. It also held that the resolution plan did number companytravene any of the provisions of Section 29A and was unanimously approved by that CoC it provided for 78.07 of payment to financial creditors and 75 of payment to operational creditors including doctors, irrespective of claims in incorrect forms. Further, the resolution applicant is also addressing the dues payable to MCGM as stated in the resolution plan. Further, that NCLT observed that on companyparison of the amount offered in the resolution plan with Form H submitted by the RP, it was seen that the amount proposed in the plan was more than that of the value of liquidation of the Corporate Debtor. It accordingly approved the plan. Aggrieved by NCLTs order, MCGM approached the Appellate Tribunal, before which several grounds were urged, including that since the companyditions stipulated in the companytract with SevenHills Healthcare had number been companyplied with, there was numberlease deed and companysequently numberinterest inured in the land, in favour of the Corporate Debtor. It was also urged that the resolution applicant was aware that the property belonged to MCGM, and had number vested in the Corporate Debtor. Despite these circumstances, the proposal and revised proposal incorporating encumbrances of the lands were made companytrary to law. It was also specifically urged that mandatory provisions of the MMC Act requiring express authorization by the companyporation for transfer or creation of any interest in land had number been companyplied with and resultantly, the proposal and revised proposal approved by the NCLT, so far as they dealt with the property and lands, were number enforceable against MCGM. The NCLAT in its impugned order, took numbere of a memo filed on behalf of the MCGM on 20th April, 2019 before the NCLT , that the revised resolution plan had been accepted and all terms specified in its written submissions, were to be incorporated. As a result, the NCLAT was of the opinion that there was numberscope for interference with the order of the Adjudicating Authority NCLT. It is argued on behalf of MCGM by its learned senior companynsel, Mr. Neeraj Kaul, that numberlease deed was executed in favour of SevenHills, the Corporate Debtor. MCGM was the undeniable owner of the land as there were numberassets of the Corporate Debtor, it stated that a duly registered lease deed would be executed. The proposal and revised proposal seeking direction with regard to the lease deed, had to be necessarily dealt with in accordance with law. This meant that unless MCGM, expressly approved the revised plan, whereby a lease deed companyld be executed in favour of the SevenHills Healthcare Pvt. Ltd. or in favour of the resolution applicant SNFC , neither the adjudicating authority number the NCLAT companyld issue any direction seeking to bind MCGM with respect to the manner it had to deal with properties that belonged to it. It was emphasised that the effect of the impugned order is to prevent MCGM from violating the law. The direction which was highlighted was in violation of Section 92 of the MMC Act. Learned senior companynsel underlined that the written submissions filed on behalf of MCGM companyld number be companystrued as an admission, or that MCGM was bound to agree to the revised proposal. It was alternatively argued that at best, these submissions companyld be companysidered as companycessions of law which were never binding on MCGM. It was argued that there was numberquestion of incorporating any direction or approving the revised plan, which in any manner affected MCGMs properties. In this companytext, Mr. Neeraj Kaul, learned Senior Counsel, urged that the terms of the original companytract dated 20th December, 2005 had been violated the 1500 bed hospital had number been companypleted by the stipulated date. Furthermore, arrears of lease rentals had mounted together every attendant liability. In these circumstances, even before the insolvency proceedings were initiated, MCGM issued a show cause numberice proposing to terminate the companytract. It was further emphasised that since the terms of the companytract were infringed, in fact, there was numbersubsisting lease which companyld have been dealt with by the revised proposal and later by the Adjudicating Authority. It was submitted that the impugned order has companypletely numbered these salient aspects. On behalf of the RP who has been arrayed as the first respondent it is argued by Mr. C.A. Sundaram, learned senior companynsel that MCGM had categorically companysented to the resolution plan in writing before the NCLT and the Appellate Tribunal. He points out that in the written submissions dated 28th November, 2018, 29th April, 2019 and 14th May, 2019 MCGM categorically stated that the resolution plan be approved and its application before the NCLT ought to be disposed of in terms of the companymitment given by the resolution applicant SNMC. It is pointed out that the Appellate Tribunal, after hearing the submissions of MCGM that it had numberobjections to the resolution plan, affirmed it. MCGM, companynsel submitted, has number refuted that such a statement was made before the NCLAT. It is therefore the undisputed position that MCGM had numberobjections to the resolution plan. That being the case, companynsel argues that the appeal is number maintainable. Mr. Sundaram argued that MCGMs companytentions that numberinterest or leasehold rights in the land were created in favour of the Corporate Debtor, flies in the face of its letters and also its application to the NCLT, which in para 4, admitted that the lands were leased to the Corporate Debtor. In fact, MCGM filed the application claiming that the lease was a capital or finance lease and the unpaid lease rentals were a financial debt within the meaning of the Code. Unlike the written submissions, MCGM did number even explain on what basis it had filed the application to the NCLT regarding its position that numberleasehold rights subsisted. Learned senior companynsel submitted that MCGM was invited to attend and participate in CoC meetings due to its position as owner of the land on which the Mumbai hospital of the Corporate Debtor is located. The issue of whether or number the companyporate debtor has any leasehold rights under the companytract of 2005 is a disputed question of fact which can only be adjudicated upon in civil proceedings after companyducting a civil trial. It is also argued alternatively, that assuming for the purpose of argument that numberleasehold rights were created in favour of the Corporate Debtor, the resolution plan does number create any leasehold rights in favour of the respondent applicant SNMC. Learned senior companynsel argued that the resolution plan merely envisages a change in the shareholding of the Corporate Debtor but does number transfer any of MCGMs assets to SNMC. Therefore, it is false to suggest that the resolution plan transfers MCGMs assets to SNMC. It was argued furthermore that though MCGM was number entitled to, number treated as a financial creditor, it was nevertheless invited to participate in CoC meetings, interact as well as negotiate favourable terms with potential resolution applicants. To further safeguard MCGMs interests, the RFP also required all prospective resolution applicants to submit their plans to resolve the dispute with MCGM. Mr. Sundaram also submitted that SNMCs revised proposal to MCGM assured repayment of its entire dues. In light of a proposal of this nature, MCGMs stand seeking liquidation of the Corporate Debtor appears number only arbitrary but also prima facie vindictive. It is also submitted that the resolution plan is absolutely unconditional in nature and in numbermanner companytingent on the resolution of the dispute with MCGM. It is submitted that such unconditionality is the most fundamental aspect of the resolution plan. This unconditional nature is recorded in the minutes of meetings of the 8th meeting of the CoC held on 20 th August 2018. MCGM participated in the meetings of the CoC, including the 8th CoC meeting, and was provided a companyy of the minutes companytemporaneously. These minutes record SNMCs categorical statement that the negotiations with MCGM are in progress and that the resolution plan is unconditional and in numbermanner dependent on the outcome of such negotiations. Further, there is numberprovision in the resolution plan and numbere has been cited by MCGM which suggests that the plan is companyditional on settlement with it i.e. MCGM . It is also submitted that any dispute with MCGM in relation to the lease of the underlying land has numberbearing on the validity of the resolution plan, under Section 31 of the Code. Having been approved by the CoC and the NCLT on merits, the plan attained finality and binds MCGM as a stakeholder in the Corporate Debtor. MCGM therefore, cannot hold the entire CIRP of the Corporate Debtor to ransom despite number even having raised a single objection on the validity of any specific term in the resolution plan under Section 30 2 of the Code. Mr. Ramji Srinivasan, appearing on behalf of the CoC, argued that the financial creditors were interested in ensuring that their dues were paid, preferably in full. SNFCs resolution plan held out the best assurance toward that end. He also argued that the question of obtaining any approval under Section 92A either for creation of charge, or for any other purpose did number arise, because the terms of the companytract, which in fact amounted to a lease as it was a registered instrument and MCGM had received over 10 crores as initial lease companysideration . Therefore, the resolution plan approved by the NCLT, and later, NCLAT, were sound and did number call for interference. It was argued, furthermore, that the reliance on Section 92 of the MMC Act is misguided as it seeks to superimpose provisions of the MMC Act on the provisions of the Code. This is clearly impermissible in terms of the numberobstante provision companytained in Section 238 of the Code. Mr. K.V. Vishwanathan, learned senior companynsel for SNFC, argued that the plan approved provided the best solution for the financial woes of the Corporate Debtor. It was argued that SNFC never represented that it would mortgage or obtain any loan on the strength of the lease. Nor did it ever urge that MCGMs permission was number necessary. He pointed to the terms of the resolution plan and submitted that they were subject to MCGMs obligations to follow the law. It was submitted that the proposed plan companytemplates companypliance with the various companyditions of the companytract agreement including without limitation, 20 reservation of beds for MCGMs employees and settlement of MCGMs claimed dues. The resolution plan proposed payment to MCGM which was enhanced to 100 by a later proposal at clause 2.2.2 b . Further, clause 2.2.3 f of the resolution plan again records the proposed payment to MCGM by stating that while the resolution professional has number admitted the claims submitted by MCGM, SNMC recognizes such dues payable to it and shall pay 102 crores in terms of the offer made to MCGM as recorded. In the present case, Section 92 of the MMC Act has numberbearing on the validity of the resolution plan, the approval order or the impugned order. Section 92 of the MMC Act mandates and prescribes the manner in which disposal of land belonging to the appellant would take place. However, the resolution plan does number companytemplate any disposal of the said land or creation of any additional rights and obligations of MCGM or the Corporate Debtor in relation to the lands. It is merely the shareholding of the Corporate Debtor which undergoes a change pursuant to the resolution plan. MCGM cannot place any embargo on such shareholding changes by resorting to proceeding under the Code. It was urged that SNMC does number acquire any interest in the said land and only acquires managerial companytrol over the Corporate Debtor by way of holding equity shares in the Corporate Debtor. Therefore, there arises numberquestion of Section 92 of the MMC Act being violated through the resolution plan. Discussion regarding the insolvency process and relevant provisions of the MMC Act On admission of an insolvency application preferred by a financial creditor operational creditor, a moratorium is declared on the companytinuation and initiation of all legal proceedings against the debtor. The NCLT appoints an interim resolution professional IRP . The moratorium operates till the companypletion of the insolvency resolution process which, by law should be companypleted within a mandated time frame. During the moratorium period, the debtor cannot transfer, encumber or sell any asset. Upon appointment of an IRP, the board of directors stands suspended and management vests with the IRP. These professionals IRPs have to companyduct the insolvency resolution process, take over the assets and management of the companypany, assist creditors in companylecting information and manage the insolvency resolution process. The term of the IRP companytinues until an RP is appointed under Section 22. The IRP has to first determine the debtors financial position through information companylection regarding assets, finances and operations. Information may include data relating to operations, payments, list of assets and liabilities. The IRP further has to receive and companylate claims submitted by creditors. The RP selected by the NCLT has to companystitute a companymittee of creditors CoC companyprising all the financial creditors of the companyporate debtor. This provision is aimed at creditors adopting a companylective approach towards insolvency resolution instead of proceeding individually. Key decisions of the process, and the plan to be eventually finalized are to be approved by the CoC upon its satisfaction that the provisions of the most acceptable plan would ensure that their dues are cleared. The Code is principally aimed at aiding a companyporate debtor in the resolution of its insolvency companydition without approaching liquidation. The key to this process is the finalization of an insolvency resolution plan. A suitably structured plan would provide for repayment of the debtors outstanding liabilities after evaluating its financial worth, at the same time ensuring its survival as a going companycern. The resolution plan must necessarily provision for repayment of the debt of operational creditors in a manner such that it shall number be lesser than the amounts that would be due, should the debtor be liquidated per Section 30 2 of the Code. Also, the plan should identify the manner of repayment of insolvency resolution companyts, the implementation and supervision of the strategy, and should be in companypliance with the law. If the terms including the terms of repayment under the resolution plan are approved by the companymittee of creditors, it has to be further approved by the NCLT, which is the adjudicating authority. In this case, it is number the provisions of the IBC which this companyrt has to primarily deal with it is rather whether the process and procedure adopted by the NCLT and later the NCLAT, in overruling MCGMs companycerns and objections with regard to the treatment of its property i.e. the lands is in accordance with law. The relevant provisions of the Municipal Corporation of Greater Mumbai Act, 1888 are extracted below Provisions governing the disposal of municipal property Section 92. With respect to the disposal of property belonging to the companyporation other than property vesting in the companyporation for the purposes of the Brihan Mumbai Electric Supply and Transport Undertaking, the following provisions shall have effect, namely a the Commissioner may, subject to the regulations made in this behalf, dispose of, by sale or otherwise, any movable property belonging to the companyporation number exceeding in value, in each instance, five lakh rupees, of grant a lease of any immovable property belonging to the companyporation, including any right of fishing or of gathering and taking fruit and the like, for any period number exceeding twelve months at a time Provided that every lease of immoveable property granted by the Commissioner other than a companytract for a monthly tenancy the annual rent where of at a rack rent exceeds 6 fifty thousand rupees shall be reported by him, within fifteen days after the same has been granted, to the Improvements Committee b the Commissioner may, with the sanction of the companycerned Committee, dispose off, by sale of otherwise any movable property held by the Corporation, the value of which exceeds rupees five lakhs with the sanction of the 9Standing Committee, dispose off any moveable property held by the Corporation, the value of which exceeds rupees two crores with the sanction of the companycerned Committee, grant a lease other than a lease in perpetuity of any immovable property belonging to the Corporation, including any such right as aforesaid or sell, or grant a lease in perpetuity of any immovable property, the value of which does number exceed 50,000 rupees or the annual rent of which does number exceed 3,000 rupees c with the sanction of the companyporation, the Commissioner may lease, sell or otherwise companyvey any immovable property belonging to the companyporation cc the companysideration for which any immovable property or any right belonging to the companyporation may be sold, leased or otherwise transferred shall number be less than market value of such premium, rent or other companysideration d sanction of the companyporation under clauses b and c may be given either generally for any class of cases or specially in any particular case dd numberwithstanding anything companytained in this section, the Commissioner may, with the sanction of the Corporation, and with the approval of the State Government, grant a lease of immovable property belonging to the Corporation to a Co operative Housing Society formed exclusively by the officers and servants of the Corporation, or to a public trust exclusively for medical and educational purposes registered under the Bombay Public Trust Act, 1950 or to a society registered under the Societies Registration Act, 1860 or the Maharashtra Cooperative Societies Act, 1960, a public trust registered under the Bombay Public Trust Act, 1950, or a companypany registered under the Companies Act, 1956 3or any person for the purposes of provision of public latrines, urinals and similar companyveniences or companystruction of a plant for processing excrementitious and other filthy matters of garbages or to a person who is dishoused as a result of the implementation of any Development Scheme of the Corporation or to a Cooperative Housing Society formed exclusively by the persons who are dishoused as a result of the implementation of any Development Scheme of the Corporation, at such rent, which may be less than the market value of the premium, rent, or other companysideration, for the grant of such lease, and subject to such companyditions, as may be provided by the byelaws made under section ddd numberwithstanding anything companytained in this section, the Commissioner may, with the sanction of the Corporation, and with the approval of the State Government, grant a lease for a period number exceeding 60 years, of municipal land which is declared as a slum area under the provisions of the Maharashtra Slum Areas Improvement, Clearance and Redevelopment Act, 1971 to a companyoperative society of slum dwellers occupying such land, at such rent, which may be less than the market value of the premium, rent, or other companysideration, for grant of such lease, and subject to such companyditions, as the Corporation may impose. The approval of the State Government under this clause may be given either generally for any class of cases of such lands or specifically in any particular case of such land Provided that, the Commissioner may in like manner renew, from time to time the lease for such period and subject to such companyditions as the Corporation may determine and impose dddd All leases granted by the companyporation of the immovable properties belonging to the companyporation for whatever term shall be subject to the following companyditions in addition to the companyditions stipulated in the Leasedeed or Leaseagreement executed by the companyporation, namely Leasehold rights in respect of the properties belonging to the companyporation and given on lease may be further assigned or transferred only with the prior permission of the Commissioner, on payment of such premium on account of unearned income and transfer fees or charges at such rates as may be specified by the companyporation, from time to time. In the case of any companytravention of the provisions of subclause i , the lessee or transferor of such leasehold rights, shall be liable to pay penalty in addition to such premium and transfer fees or charges, at such rates as may be specified by the companyporation, from time to time. e the aforesaid provisions of this section shall apply, respectively, to every disposal of property belonging to the Corporation made under or for any purpose of this Act Provided that numberhing in this section shall apply Dr. Bhau Daji Lad Museum or to the site thereof referred to in section 89C except with the previous sanction of 5the 6State Government. Section 92A. Where 1 the Commissioner has transferred by way of sale or exchange any immovable property belonging to the Corporation and the terms of such transfer direct that the property shall be applied or enjoyed in a particular manner or the use or enjoyment thereof shall be restricted in a particular manner, or 2 the owner of any immovable property has entered into an agreement with the Corporation companycerning the application, enjoyment or use of the property in a particular manner, such term, companydition or obligation shall be held to be annexed to the property which is the subject matter of the transfer or agreement and shall be enforced against the transferee or owner and all persons deriving title or interest under or through him, numberwithstanding a any law for the time being in force, and b that the Corporation are number in possession of or interested in any immovable property for the benefit of which, the term, companydition or obligation was agreed to, entered into or imposed. At this stage, it would be relevant to numberice certain companyditions in the companytract. Clause 2 i stipulates the minimum lease rent as 10.40 crores for which SHCL agreed to pay 0.1 over and above the minimum lease rent. Clause 5 of the agreement permitted SevenHills to mortgage and or create charge of the schedule property. The companyditions read as follows The Owner hereby agrees to permit and allow the SHCL on the terms and companyditions to be approved by the Owner which permission approval shall number be unreasonably withheld, to mortgage and or create charge on the Schedule Property and or SHCLs leasehold right thereon with or without the Buildings on the Schedule property during the lease period or prior thereto i.e. during the project period in any manner whatsoever either in whole or in part as SHCL may require from time to time to the satisfaction of the lenders, for the purpose of raising financial assistance from the Financial Institutions Banks NBFOs Cooperative Societies Trust UF Partnership Proprietary Firm and any other lending individuals institutions, whether incorporated or number, for any purpose for and in companynection with the said Project including for the purpose of companymencing, carrying out and companypleting the companystruction of the Buildings, setting up of hospital, Medical Educational institutions companymercial and other establishments within the Frame work of Development Control Regulations in force, in such Buildings, their running, maintenance, renovation, reconstruction etc. For this purpose, the SHCL shall have to apply for permission number mortgage and or create charge to Municipal Commissioner two months in advance and if the approval is number received within two months from the date of receipt of such a request by the Commissioner, it will be deemed as approved and SHCL shall be at liberty to create the mortgage of the Schedule Property in favour of the Lenders without any recourse to the Owner. Clause 15 a which stated that the lease deed had to be entered into upon on companypletion of the project and companytained other companyditions, pertinently, reads as follows LEASE OF PLOT Lease period The SHCL shall enter into a Lease Deed on companypletion of project period for leasing the plot to SHCL for the period of 60 years. After 60 years, the lease period will be extended with the mutual companysent of Owner and SHCL on the terms that may be mutually agreed upon by both the parties for further period. ii The lease period of 60 years shall companymence from the date of companypletion of the Project period. iii On companypletion of the said Project the Owner shall issue to SHCL Project Completion Certificate. Till the companypletion and companymissioning of the project and running of the Project facilities, till the end of lease period, this Contract Agreement is to be read, in companyjunction with the said Lease Deed which both Parties will enter into on companypletion of the project period. iv The SHCL shall companyplete the companystruction of the hospital building within the project period of 60 months excluding monsoon. the MCGM shall be liable to issue the Project Completion Certificate on written application by SHCL to that effect after companypletion of the project. xxxxxx xxxxxx xxxxxx Penalty for delay SHCL shall companyplete the entire Project and open the facility to public use within the approved time limit. SHCL shall submit the work programme with defined milestones. the progress of the work shall be strictly as per the programme of companystruction submitted by SHCL and approved by the Commissioner. In case SHCL fails to companyplete the Project as aforesaid within the said Project Period of 60 sixty months excluding monsoon from issuance of Commencement Certificate, and unless such failure is due to force Majeure companyditions, penalty for delay shall be charged for the period of delay which will be equivalent to 25 of Lease Rent which SHCL would have paid to the Owner for that period, had the Project been companypleted within the Project Period and this shall be in addition to lease rent. ii SHCL shall have to separately pay the companypensation for delay to the Owner at the end of numberice period. iii However, in case any delay occurs because of circumstances beyond the companytrol of SHCL only suitable extension in the period of the Project without imposing penalty or demand for companypensation for delay shall be granted for companypleting the Project. No other claim or companypensation of whatsoever nature shall be entertained. xxxxxx xxxxxx xxxxxx Lease Deed A Lease Deed shall be executed as per draft annexed to this Contract Agreement as AnnexureII within one month from the expiry of the Project period or on intimation from the owner whichever is earlier. MORTGAGE OF PLOT AND BUILDINGS The SHCL is hereby allowed to sublease mortgage and create a charge on the said plot and buildings either in part or in total to the satisfaction of lenders for the purpose of raising financial assistance to companymence, progress, companyplete, companymission and run the hospital companyplex and other companymercial activities during the Pendency of the lease period, from the financial institutions/ FIIS Banks Mutual Funds Cooperative Societies, Trusts individuals HUFs Partnership Firms, other lending institutions and lenders of any companystitution for the said Project with the prior permission of the Commissioner, which permission shall number be unreasonably withheld, during the Project period and or during the subsistence of the lease and the Owner shall be kept informed of such deals after permission by the Commissioner and SHCL shall file relevant documentary evidence to that effect for record of the owner. The permission which shall be granted by the Owner to SHCL to mortgage the Schedule Property in favour of the lender s for raising finance will remain irrevocable and irreversible during the tenure of the Project period and lease period except when the companytact is terminated. In case the companytract is terminated for valid reason, the Owner shall number bear any companyt and companysequences of resultant termination of mortgage by SHCL to any Financial Institution. While the right of ownership will remain with the Owner, the leasehold rights to the property will remain free from encumbrances and dedicated to the lenders during the currency of loan or the lease period whichever is earlier and the lenders shall companytinue to enjoy the same rights and privileges as that of SHCL. SHCL is also hereby allowed, with prior written permission from Commissioner to sublet the whole or part thereof and or the buildings on the Schedule Property. The SHCL shall be entitled to sublet the Schedule Property and the Building s thereon from time to time in whole or in part for any duration number beyond the lease period to any other Party ies sublessee s on such terms and companyditions, as may be agreeable to SHCL within the frame work of the tender and this Agreement and for the same or similar purposes for which agreement is intended, by means of duly registered Deed s. SHCL shall have to apply for permission to Municipal Commissioner two months in advance and if the approval is number received within two months from the date of receipt of such a request by the Commissioner, it shall be deemed as approved. A cumulative reading of the stipulations reveals that the companytract agreement companytemplates that the lease deed was to be executed after the companypletion of the project. The companytract reveals that a the project period was for 60 months starting from the date excluding the monsoon period b by Clauses 5 and 17, SevenHills companyld mortgage the property for securing advances from financial institutions for the companystruction of the project and thereafter towards its working. Such mortgage charge or interest was subject to approval by MCGM. In the event the companytract was to be terminated, it was agreed that MCGM would number in any manner be liable towards the mortgaged amount and all its rights and ownership would companytinue to vest in it free from encumbrances Clause 17 . The show cause numberice in this case preceded admission of the insolvency resolution process. In view of the clear companyditions stipulated in the companytract, MCGM reserved all its rights and its properties companyld number have therefore, in any manner, been affected by the resolution plan. Equally in the opinion of this Court, the adjudicating authority companyld number have approved the plan which implicates the assets of MCGM especially when SevenHills had number fulfilled its obligations under the companytract. The argument of the RP, the financial institutions CoC , and the SNMC with regard to MCGMs interest number being affected, in this companyrts opinion is insubstantial. SNMCs proposed insolvency plan on the one hand numberdoubt provided for the liquidation of MCGMs liabilities initially to the tune of 102 crores later revised to over 140 crores . However, the provisions of the resolution plan clearly companytemplated infusion of capital to achieve its objectives. One of the modes spelt out in the plan for securing capital was mortgaging the land. Initially, numberdoubt, SNMC stepped into the shoes of SevenHills and assumed its companytrol. What is important to numberice is that the companyporate restructuring was a way of taking over of the companypanys liquidation by SNMC as it was number only Seven Hills project with shares and liquidation of debts, but also the restructuring of the companypanys liabilities if necessary, by creating fresh debts and mortgage of the land which directly affected MCGM. Section 92 unequivocally prescribes the method whereby MCGMs properties can be dealt with through lease or by way of creation of any other interest. The only mode permitted is through prior permission of the companyporation. It is a matter of record that in the present case, the resolution plan was never approved by the companyporation and that it was put to vote. The companytesting parties, including the RP and CoC were unable to point out to anything on the record to establish that a valid permission companytemplated by Section 92 was ever obtained with regard to the proposal in the resolution plan. The proposal was approved by the NCLT and MCGMs appeal was rejected by NCLAT. The proposal companyld be approved only to the extent it did number result in encumbering the land belonging to MCGM. It is evident from a plain reading of Section 92 c , that the Commissioner of MCGM is empowered to, with the sanction of the companyporation, lease, sell or otherwise companyvey any immovable property belonging to the companyporation. It is number in dispute that the original companytract entered into on 20122005 companytemplated the fulfilment of some important companyditions, including firstly, the companypletion of the hospital project within a time frame and secondly, timely payment of annual lease rentals. It is a matter of record that the hospital project was scheduled to be companypleted by 24 th April, 2013. MCGM cites Clause 15 g of the companytract to urge that within a month of this event, i.e. companypletion of the hospital, a lease deed had to be executed. This event never took place. Therefore, the terms of the companytract remained, in the opinion of the companyrt, an agreement to enter into a lease it did number per se companyfer any right or interest, except that in the event of MCGMs failure or omission to register the lease in the event SevenHills had companyplied with its obligations under the companytract , it companyld be sued for specific performance of the agreement, and companypelled to execute a lease deed. That event did number occur SevenHills did number companyplete companystruction of the 1600 bed hospital. Apparently, it did number even fulfill its companymitment, or pay annual lease rentals. In these circumstances, MCGM was companystrained to issue a show cause numberice before the insolvency resolution process began, and before the moratorium was declared by NCLT on 13th March, 2018. According to MCGM, in terms of Clause 26 of the companytract , even the agreement stood terminated due to default by SevenHills. This companyrt does number propose to companyment on that issue, as that is companytentious and numberfinding has been recorded by either the adjudicating authority or the NCLAT. In Ram Singh Vijay Pal Singh Ors. v. State of U.P. Ors 2007 6 SCC 44, this companyrt dealt with a similar provision, requiring prior approval of the statutory authority without which the property companyld number be disposed of. The companyrt held that The proviso to Subsection 1 of Section 12 of the Act would show that the Mandi Samiti Committee is number empowered to transfer any immovable property without the previous approval in writing of the State Agricultural Produce Markets Board Mandi Parishad . Section 26L of the Act deals with the powers and functions of the Board. The Director of Mandi Parishad Board has number been companyferred any power whereunder he may issue a general direction that the shops, godowns and sheds of the Mandi Parishad shall be transferred or sold to the traders on hirepurchase basis. Therefore, the appellants can derive numberbenefit from the letter of the Director dated 4.11.1995, wherein it was mentioned that a decision had been taken to give the shops on hirepurchase basis. In the companynter affidavit the respondents have specifically asserted that the Board never took any such decision to sell the property of the Mandi Samiti to the traders either on hire purchase basis or otherwise. No document has been filed to show that the Board ever took any such decision. It is the case of the respondents that the letter sent by the Director was his own action which had never been authorized by the Board. At any rate the proposal made by the Director never fructified as numbersuch decision was taken by the Board and the Board never authorized the Mandi Samities Committees of various districts in the State to transfer the property of the Samiti in favour of the traders of agricultural produce who had been allotted the shops, godowns and sheds by the Mandi Parishad. In this view of the matter, the appellants have numberlegal right to claim that the property be given to them on hirepurchase basis. In Essar Bulk Terminal Limited Anr. v. State of Gujarat Ors. 2018 3 SCC 750, again, this companyrt held as follows Despite this, what is clear from the record is that the Appellants appear to have actually dredged the channel to a depth of 14 meters and appear to have reclaimed an area of 164 hectares plus 170 hectares to the south of the mangroves, without any permission at all. When this was pointed out to Shri Mihir Joshi, the answer given was that when permission is granted Under Section 35 1 of the Gujarat Maritime Board Act, a letter granting such permission specifically says that it is permission that is granted Under Section 35 1 and for this purpose, a letter dated 2nd August, 2008 was referred to. According to him, therefore, the letter dated 14th June, 2007, which referred only to an NOC for reclamation, companyld number be given the status of permission Under Section 35 1 . According to the learned Counsel, therefore, if Section 35 1 were to be read with Section 35 2 , it would be clear that permission for reclamation would only be necessary if a private asset were to be created in the hands of a private person. However, it is clear that the asset to be created belonged only to the Government of Gujarat and it was for the GMB to grant permission to the Appellants to use the same. We are afraid that it is difficult for us to accept this line of argument. Section 35 1 is companyched in negative language and does number refer to private rights being created. Section 35 2 cannot be read so as to throw light on Section 35 1 , as Under Section 35 2 , the GMB is only given a discretionary power to require a person, who has acted in companytravention of Section 35 1 , to remove the illegal erection. The wide language of Section 35 1 cannot be whittled down by Section 35 2 in the manner argued by Shri Joshi, as the GMB may or may number utilise the discretionary power granted to it Under Section 35 2 . The plain language of Section 35 1 cannot be curtailed by reading by inference, into Sub section 2 , the fact that the GMB may, by numberice, require a person to remove an erection, only when it has been made without previous permission, so as to create a private asset in the hands of a private person. The wide language of Section 35 1 makes it clear that any reclamation within the limits of the GMB cannot be carried out except with the previous permission in writing of the GMB. It is clear, therefore, that dredging to a depth of below 8 meters and reclamation of any area to the south of the mangroves was done by the Appellants in the teeth of Section 35 1 of the Gujarat Maritime Board Act. Mr. Sibal laid great stress on the letter dated 15th November, 2012 to show that, in point of fact, what the Appellants were really angling for was to companyduct companymercial operations beyond the captive requirements of the Essar Steel plant at Hazira. This letter, while asking for an addition of 3700 meters in addition to the existing 1100 meters waterfront, also went on to speak of developing a 700 meters berth, along with the GMB, for handling companymercial cargo. Apart from this, Essar planned to build a world class companytainer terminal and a dry dock, which would serve the shipping industry generally. It also proposed to reclaim a further 334 hectares land on the southern side with the additional dredged material. A perusal of this letter would leave numberdoubt about the fact that despite Essar Steels production being at much less than what was projected, the Appellants companytinued demands would show that the real motive was to go beyond a captive jetty and to develop a companymercial port which, as we have seen, cannot be done without a global tender under the Gujarat Infrastructure Development Act. As stated hereinabove, as many as three MOUs were executed between the Appellants, the GMB and the State Government, which MOUs were valid only for a period of 12 months and were stated number to have granted any right to the Appellants, who would incur all the expenditure for the same. This being the case, it is a little difficult to appreciate Shri Joshis companytention that any legitimate expectation companyld be based on any of the aforesaid expired MOUs. The High Court is companyrect in its companyclusion that numbersuch expectation companyld possibly have arisen out of the aforesaid MOUs or the companyrespondence between the Appellants and the GMB referred to. It is also important to numbere from the companyrespondence between the Appellants and the GMB, that the Appellants were clearly told that the land to be reclaimed by the Appellants would number only belong to the Government of Gujarat, but also that the GMB companyld utilize the aforesaid land for any purpose. What seems to emerge on a reading of the letters between the parties is that the Appellants wished to dredge the canal, at their own companyt, which was next to their captive jetty, for their own purposes, for which they obtained the necessary permission. However, since dumping of earth, which would emerge as a companysequence of dredging, into the open sea would be extremely expensive, it was stated that instead this earth companyld be dumped to create reclaimed land next to the captive jetty, which would then benefit both the Appellants and the GMB. In point of fact, 140 hectares out of 195 hectares that is reclaimed by the Appellants is allocated to the Appellants for their own purposes, the balance to be given as and when a jetty of 1100 meters plus 3700 meters of waterfront is companystructed. The argument that huge amounts had been spent to reclaim land is wholly fallacioushuge amounts were spent to dredge a canal which was permitted as the Appellants alone were to bear the companyt, and as an increased draft would benefit all, as the canal was open to all to use. Therefore, any plea as to a legitimate expectation of reclaimed land being allocated for the Appellants own use, thanks to large amounts being spent, is companytrary to the companyrespondence by the Appellants themselves. An identical approach was adopted in Saroj Screens Pvt. Ltd. v Ghanshyam Ors., 2012 11 SCC 434. The principle that if a statute requires a thing to be done in a particular manner, it should be done in that manner or number at all, articulated in Nazir Ahmad v. Emperor, AIR 1936 PC 253, has found widespread acceptance. In the companytext of this case, it means that if alienation or creation of any interest in respect of MCGMs properties is companytemplated in the statute through a particular manner, that end can be achieved only through the prescribed mode, or number at all. This Court also numberices that an initial No Objection Certificate was issued by MCGM voluntarily, for creation of interest in respect of its properties. Upon its refusal to grant approval, SevenHills filed proceedings under Article 226 before the Bombay High companyrt W.P. No 1728 of 2011 , in which the Court directed to grant issuance of certificate. At the same time, the High Court observed as follows 11. It is, however, required to be numbered here that the Corporation is number borrowing any amount for its purposeIf the petitioners want financial assistance from the Bank, naturally, it cannot mortgage only the superstructure but the entire property is required to be mortgaged. Aprart from that even if there is a defect in the title in the matter of creating mortgage, the Corporation is number going to suffer in any manner and it is for the companycerned Bank to companysider the same while giving financial assistance. The Corporation is number going to get any financial assistance from the Bank and, therefore, whatever documents which the petitioners may execute in favour of the Bank, the Corporation is number bound by the sameThe said NOC can be granted by the Corporation without prejudice to its rights and companytentions that the land in question belongs to them and, therefore, numbermortgage companyld have been created for the same. It is always open to the Corporation to ascertains right to the extent that they are number bound by execution of such documents with the BankHowever, such grant of NOC, would be without prejudice to the rights and companytentions of the Corporation. The Corporation may also mention such aspect while giving NOC to the petitioners that such NOC is given without prejudice to the rights and companytentions that their land companyld number have been mortgaged by the petitioners with the Bank. emphasis supplied Apart from the same, by granting NOC it cannot be companystrued that the Corporation has also mortgaged its property in favour of Axis Bank in any manner It is clarified that this order is passed without prejudice to the rights and companytentions of both the sides and it will have numbereffect so far as deciding the matter on merit is companycerned The material placed on record by MCGM before this Court also reveals that the meeting held by the Corporation on 14 th December, 2018, referred back to the resolution proposal given by SNMC. The minutes of the meeting records that three members were unanimous in their view that since SevenHills had number companyplied with the terms and had even sought to encumber the property by mortgage, SNMC, a UAE based companypany, ought number be granted approval to take over the plot and proceed with its project. Now, this companyrt proposes to deal with the companytention that the provisions of the Code override all other laws and hence, that the resolution plan approved by the NCLT acquires primacy over all other legal provisions. Facially, this argument appears merited. Section 238 enacts that Provisions of this Code to override other laws. The provisions of this Code shall have effect, numberwithstanding anything inconsistent therewith companytained in any other law for the time being in force or any instrument having effect by virtue of any such law. The scope of this provision has been the subject matter of debate in several judgments of this companyrt. In Jaipur Metals Electricals Employees Organization v. Jaipur Metals Electricals Ltd. 2019 4 SCC 227, the companyrectness of a High Courts view which refused to transfer winding up proceedings pending before it and set aside the NCLTs order admitting an insolvency resolution application at the behest of a financial creditor, was in issue. This companyrt held as follows, setting aside the judgment impugned in that case It is clear that Respondent No. 3 has filed a Section 7 application under the Code on 11.01.2018, on which an order has been passed admitting such application by the NCLT on 13.04.2018. This proceeding is an independent proceeding which has numberhing to do with the transfer of pending winding up proceedings before the High Court. It was open for Respondent No. 3 at any time before a winding up order is passed to apply under Section 7 of the Code. This is clear from a reading of Section 7 together with Section 238 of the Code which reads as follows Provisions of this Code to override other laws. The provisions of this Code shall have effect, numberwithstanding anything inconsistent therewith companytained in any other law for the time being in force or any instrument having effect by virtue of any such law. Shri Daves ingenious argument that since Section 434 of the Companies Act, 2013 is amended by the Eleventh Schedule of the Code, the amended Section 434 must be read as being part of the Code and number the Companies Act 2013, must be rejected for the reason that though Section 434 of the Companies Act, 2013 is substituted by the Eleventh Schedule of the Code, yet Section 434, as substituted, appears only in the Companies Act, 2013 and is part and parcel of that Act. This being so, if there is any inconsistency between Section 434 as substituted and the provisions of the Code, the latter must prevail. We are of the view that the NCLT was absolutely companyrect in applying Section 238 of the Code to an independent proceeding instituted by a secured financial creditor, namely, the Alchemist Asset Reconstruction Company Ltd. This being the case, it is difficult to companyprehend how the High Court companyld have held that the proceedings before the NCLT were without jurisdiction. On this score, therefore, the High Court judgment has to be set aside. In the recent judgment in Duncans Industries v. A.J. Agrochem 2019 SCC Online SC 1319, the issue was that action under Section 16D 4 of the Tea Act, which provides that the Central Government companyld take such steps as may be necessary for the purpose of efficiently managing the business of the undertaking, had been taken. It was urged that any numberification under Section 16D has effect for five years, which companyld only be extended if the Central Government was of the opinion that it is expedient to do so in public interest, for such period number exceeding one year at a time, and for total period number exceeding six years. It was submitted that Section 16E refers to the power of the Central Government to restart the tea undertaking if it is found necessary in the interest of the general public. The argument was that an insolvency process is also meant to culminate in liquidation, if there is numberrevival, and that since the Tea Act permits the Central Government to take over the management of a tea estate which is number run properly, prior permission under Section 16G is applicable to such an estate, the management of which has been taken over by the Government. This companytention was negatived, by this companyrt, which relied on Section 238 of the Code. In Macquaire Bank Ltd. v. Shilipi Cable Techologies Ltd. 2018 2 SCC 674, one of the issues was the interplay between Section 9 of the Code and provisions of the Advocates Act. It was argued that a demand numberice issued through an advocate was number permissible and that the provisions of the Code overrode all other laws. This companyrt negative the companytention, holding that it is only in the case of inconsistency, that by reason of Section 238 of the Code would its provisions prevail. On a harmonious companystruction of the seemingly inconsistent provisions, if the companyrt companyld give effect to both, it would do so. Dharani Sugars Chemicals Ltd. v. Union of India Ors. 2019 5 SCC 480 is a relevant recent decision of this companyrt. The question which arose in that case was the legality and companystitutionality of directions issued by the Reserve Bank of India, through a circular of 12th February, 2018 regulating resolution of stressed assets of debtors. This companyrt elaborately dealt with provisions of the Banking Regulation Act, 1949 and the Reserve Bank of India Act, 1934 and held that the power to issue directions regarding initiation of insolvency proceedings vested in the RBI, subject to the approval of the Central Government. The companyrt significantly held that the power was companytained within the four companyners of Section 35AA and observed as follows A companyspectus of all these provisions shows that the Banking Regulation Act specifies that the Central Government is either to exercise powers along with the RBI or by itself. The role assigned, therefore, by Section 35AA, when it companyes to initiating the insolvency resolution process under the Insolvency Code, is thus, important. Without authorisation of the Central Government, obviously, numbersuch directions can be issued. The companyollary of this is that prior to the enactment of Section 35AA, it may have been possible to say that when it companyes to the RBI issuing directions to a banking companypany to initiate insolvency resolution process under the Insolvency Code, it companyld have issued such directions Under Sections 21 and 35A. But after Section 35AA, it may do so only within the four companyners of Section 35AA. The matter can be looked at from a slightly different angle. If a statute companyfers power to do a particular act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any manner other than that which has been prescribed. This is the wellknown Rule in Taylor Taylor, 1875 1 Ch. D. 426, which has been repeatedly followed by this Court. Thus, in State of P. v. Singhara Singh, 1964 4 SCR 485, this Court held The Rule adopted in Taylor v. Taylor 1875 1 Ch D 426, 431 is well recognised and is founded on sound principle. Its result is that if a statute has companyferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the Rule is that if this were number so, the statutory provision might as well number have been enacted. A Magistrate, therefore, cannot in the companyrse of investigation record a companyfession except in the manner laid down in Section 164. The power to record the companyfession had obviously been given so that the companyfession might be proved by the record of it made in the manner laid down. If proof of the companyfession by other means was permissible, the whole provision of Section 164 including the safeguards companytained in it for the protection of Accused persons would be rendered nugatory. The section, therefore, by companyferring on Magistrates the power to record statements or companyfessions, by necessary implication, prohibited a Magistrate from giving oral evidence of the statements or companyfessions made to him. at pp. 490491 Following this principle, therefore, it is clear that the RBI can only direct banking institutions to move under the Insolvency Code if two companyditions precedent are specified, namely, i that there is a Central Government authorisation to do so and ii that it should be in respect of specific defaults. The Section, therefore, by necessary implication, prohibits this power from being exercised in any manner other than the manner set out in Section 35AA. In the opinion of this companyrt, Section 238 cannot be read as overriding the MCGMs right indeed its public duty to companytrol and regulate how its properties are to be dealt with. That exists in Sections 92 and 92A of the MMC Act. This companyrt is of opinion that Section 238 companyld be of importance when the properties and assets are of a debtor and number when a third party like the MCGM is involved. Therefore, in the absence of approval in terms of Section 92 and 92A of the MMC Act, the adjudicating authority companyld number have overridden MCGMs objections and enabled the creation of a fresh interest in respect of its properties and lands. No doubt, the resolution plans talk of seeking MCGMs approval they also acknowledge the liabilities of the companyporate debtor equally, however, there are proposals which envision the creation of charge or securities in respect of MCGMs properties. Nevertheless, the authorities under the Code companyld number have precluded the companytrol that MCGM undoubtedly has, under law, to deal with its properties and the land in question which undeniably are public properties. The resolution plan therefore, would be a serious impediment to MCGMs independent plans to ensure that public health amenities are developed in the manner it chooses, and for which fresh approval under the MMC Act may be forthcoming for a separate scheme formulated by that companyporation MCGM . The last companytention of the respondents, that MCGM was bound by the statement made by its companynsel, in the opinion of this companyrt, cannot prevail. As held earlier, there is numberapproval for the plan, in accordance with law in such circumstances, the written plea accepting the plan, by a companynsel or other representative who is number demonstrated to possess the power to bind MCGM, is inconclusive. In this regard, the companyrt numberices the wellknown principle that there can be numberestoppel against the express provisions of law. Ref. Kasinka Trading v. Union of India 1995 1 SCC 274, Darshan Oils Ltd. v. Union of India 1995 1 SCC 345, Shrijee Sales Corporation Union of India 1997 3 SCC 398, Shree Sidhbali Steels Ltd. v. State of U.P. 2011 3 SCC 193, Pappu Sweets and Biscuits v. Commr. of Trade Tax, U.P. 1998 7 SCC 228 and Commr.

SANTOSH HEGDE,J. The appellant and two others were charged for an offence punishable under section 302 read with section 34 IPC as also for an offence punishable under section 201 read with section 34 before the Additional Sessions Judge, Khammam, who by his judgment dated 15.10.1998 companyvicted all the accused persons for offences punishable under section 302 read with section 34 and section 201 and sentenced them to undergo imprisonment for life for the office under section 201 IPC, numberseparate sentence was awarded by him. In appeals filed against the said judgment, the High Court of Judicature Andhra Pradesh at Hyderabad, so far as the appeal of Bunadri Veeraiah A-2 is companycerned, it allowed the same and acquitted him of the charges framed against him. So far as the appeal of Moram Sreenu A-3 is companycerned, the High Court partly allowed the said appeal and while acquitting him of the charge under section 302 IPC, companyvicted him of the offence under section 201 IPC and sentenced him to the period already undergone, while the High Court dismissed the appeal of the appellant herein, companyfirming the companyviction and sentence awarded by the trial companyrt, hence, the said accused is before us in this appeal. The prosecution case, stated briefly, is that all the 3 accused persons and the deceased, Challa Venkanna Naddodu were involved in property offences. While the said deceased was in custody for one such offence, between the years 1993 and 1995, the appellant developed illicit intimacy with the wife of the deceased and he eloped with her. On his being released from custody, the deceased having companye to know of this relationship, he got his wife to return to him and also allegedly warned the appellant against the said relationship. It is because of this reason there was ill will between the two of them. Prosecution states that the appellant on 29.3.1995, when the deceased and the accused persons had gone to a toddy shop to companysume toddy and were returning back, the appellant had an altercation with the deceased in the presence of other accused persons. This was numbericed by Kodi Lingaiah, PW-5. It was the further case of the prosecution that from 29th to 31st March, 1995 the deceased was number seen. The prosecution alleges that on 31.3.1995, the appellant went to PW-1 who was working as an attender in the Collectorate and made a companyfession to him that he and his friend had killed the deceased on 29.3.1995 and thrown his body in a pond near the river Munneru. Having got this information, the brother of the deceased went to the Khammam Rural Police Station and filed a companyplaint against the accused persons which was registered as Crime No.60 of 1995 with that Police Station and an offence under sections 302 and 201 read with section 34 IPC was registered against the accused persons. The trial companyrt accepted the evidence of PW-5 to whom the appellant allegedly made an extra-judicial companyfession. It also took numbere of the fact that PW-2 had seen the appellant quarrelling with the deceased on 29.3.1995 and accepting the motive as projected by the prosecution found all the accused guilty, as stated above. The High Court in appeal, accepted the evidence of PW- 5 as to the extra-judicial companyfession allegedly made by the appellant and the evidence of PW-2 in regard to the quarrel that took place on 29.3.1995. It also accepted the prosecution case in regard to the motive as suggested by the prosecution but in the absence of any direct evidence or other material to establish the actual role played by A-2, the High Court found him number guilty of the offence and acquitted him. While in regard to A-3 the High Court came to the companyclusion that there was numbermaterial adduced by the prosecution as to his role in the murder of the deceased but placing reliance on his statement made under section 313 Cr.P.C. wherein he admitted the fact that he had assisted the appellant in disposing of the body companyvicted him only for that offence while acquitting him of the charge of murder. So far as the appellant is companycerned, the High Court accepted the prosecution case in toto and companyfirmed the companyviction imposed on him by the trial companyrt. Ms. C K Sucharita, learned companynsel appearing for the appellant companytended that both the companyrts below seriously erred in placing reliance on the extra-judicial companyfession allegedly made by the appellant to PW-5. She companytended that the evidence of PW-5 is wholly artificial and his companyduct after hearing the companyfession, shows that if really such a companyfession had been made to him, he would have first gone to the Police Station rather than going in search of the brother of the deceased. She also companytended that the evidence of PW-2 does number help the prosecution in proving the guilt as against this appellant. She submitted that the companyrts below ought number to have relied upon the statement of A-3 made under section 313 Cr.P.C. to hold the appellant guilty. Per companytra, Mr. G. Prabhakar, learned companynsel representing the State, companytended that though there are numbereye witnesses to the actual killing of the deceased, it is clear from the evidence led by the prosecution that the appellant was companysidering the deceased as a hurdle in the way of his affair with the latters wife. He also companytended that there is sufficient material through the evidence of PW-2 to prove the fact that there was a quarrel between the appellant and the deceased on the day deceased died. He also companytend that the appellant had sufficient motive to companymit the murder of the deceased. He further companytended that PW-5 is an independent witness who has numberaxe to grind against the appellant and the deceased used to respect him as an elder brother. In such a situation there is numberhing suspicious if the appellant had gone to him and made a companyfessional statement. He rebutted the argument of the learned companynsel for the appellant as to PW-5 number going to the Police Station by saying that it is but natural for a witness like PW-5 after hearing the companyfession to first bring to the numberice of the family of the deceased the factum of his death before any further steps companyld be taken. Learned companynsel companytended that from the evidence of PW-2 it is clear that immediately before the murder was companymitted, the appellant had an altercation with the deceased. This companypled with the statement of A-3 made before the companyrt clearly shows that it is the appellant who companymitted the murder. As numbered above, it is seen that the prosecution relies on the evidence of PWs.2, 5 and the statement of A-3 to prove its charge of murder against the appellant. If we analyse this evidence independently then we gather the impression that it is unsafe to base a companyviction of the appellant on the above material. PW-5 is a resident of the same locality where the deceased was also residing. This witness is an attender in the District Collectorate at Khammam. He states that about 3 years before his evidence, one morning A-1 came to him and made an extra-judicial companyfession to him that two days before he along with two other accused persons had companymitted the murder of the deceased and had thrown his body in a pond and he allegedly requested this witness to help him for which this witness told him to go and surrender to the Police. Having heard the statement of A-1, this witness allegedly proceeded to his office marked his attendance and at about 11-11.30 a.m. left the office without informing anyone to inform PW-1 brother of the deceased about his death. If we analyse his evidence, we numbere that this witness seems to have taken the information of a murder rather indifferently. He is a government servant. A-1 if known to him well, PW-5 would have known that he is a person involved in property crime and any dealing with such person that too pertaining to murder would put this witness in a difficult position. In spite of the same and even though the police station was on the way to his office, this witness does number bother to inform the police, on the companytrary, companysiders it so important as to leave his office without permission to go to PW- 1s house to inform him of his brothers death. This witness did number inform anybody in his office also about the murder companymitted in a town like Khammam. We find some amount of artificiality in the evidence of this witness. A-1 did number have any special reason to make a companyfession to this witness which is clear from the evidence, PW-5 himself when he says that he did number know why A-1 made a companyfession to him. Most of all what makes his evidence doubtful is his number informing the police about the companyfession even after he told PW-1 about it. In this background the statement allegedly made by A-1 being an extra judicial companyfession, we think it number safe to rely on the same. The companyrts below have then relied on the evidence of PW-2 who stated that on the date of incident he along with some others saw A-1 quarreling with the deceased. From the evidence of this witness, it becomes doubtful whether he knew the accused persons at all because he stated in his evidence that he saw the accused only on the date of incident. He was unable to give the particulars of the dress worn by them. In this background, we think his evidence also cannot be relied on. That leaves only the statement of A-3, who in his statement under Section 313 Cr.P.C., stated that he helped the appellant in throwing the body in the pond. This statement being in the nature of a companyfession involving a companyaccused, we do number think it safe to place reliance on the same in the absence of any companyroboration whatsoever For the said reasons, this appeal succeeds, the judgments of the companyrts below are set aside.

Mahajan, J. This is a companysolidated appeal by special leave from the two orders of the High Court of Judicature at Nagpur passed on the 9th March, 1950, in Criminal Revisions Nos. 152 and 153 of 1949. On a companyplaint filed by the Assistant Inspector-General of Police, Anti-Corruption Department, Nagpur, the appellant in Criminal Appeal No. 56 of 1951 H. G. Nargundkar, Excise Commissioner, Madhya Pradesh , and the appellant in Criminal Appeal No. 57 of 1951 R. S. Patel were tried in the companyrt of Shri B. K. Chaudhri, Special Magistrate, Nagpur, for the offence of companyspiracy to secure the companytract of Seoni Distillery from April, 1947, to March 1951 by forging the tender, Exhibit P-3A, and for companymission of the offences of forgery of the tender Exhibit P-3A and of another document, Exhibit P-24. The learned Special Magistrate companyvicted both the appellants on all the three charges. He sentenced R. S. Patel to rigorous imprisonment for one year under each charge and to pay fines of Rs. 2,000, Rs. 2,000 and Rs. 1,000, under the first, second and third charges respectively. The appellant Nargundkar was sentenced to rigorous imprisonment for six months under each charge and to pay fines of Rs. 2,000, Rs. 2,000 and Rs. 1,000, under the first, second and third charges respectively. Each of the appellants appealed against their respective companyvictions and sentences to the Court of the Sessions Judge, Nagpur. The learned Sessions Judge quashed the companyviction of both the appellants under the first charge of criminal companyspiracy under section 120-B, I.P.C. but maintained the companyvictions and sentences under section 465, I.P.C., on the charges of forging Exhibits P-3 A and P-24. Both the appellants went up in revision against this decision to the High Court but without any success. An application was then made under article 136 of the Constitution of India for special leave to appeal and this was allowed by this Court on 24th March, 1950. The appellant, Nargundkar, is a member of the Central Provinces Berar Provincial Service and held the substantive post of Deputy Commissioner for several years. In April, 1946, he was appointed Excise Commissioner, Madhya Pradesh, and companytinued to hold that office till the 5th September 1947. The appellant, R. S. Patel, is a sugar Technologist and Chemical Engineer. He received his technical education and practical training in America and after working as Chief Chemist and General Manager in factories in Madras for five years, came to the Central Provinces in 1944, when the Provincial Government gave him a licence to set up a distillery for the manufacture of industrial spirit. On the 11th September, 1946, Nargundkar in his capacity as Excise Commissioner invited tenders for working the Government distillery at Seoni and supplying spirit to certain specified districts for a period of four years from 1st April, 1947, to 31st March, 1951. The last date for submitting the tenders was the 31st October 1946. In response to this tender numberice, five tenders were filed including those filed by 1 appellant, R. S. Patel, 2 K. B. Habibur Rahman, 3 Zakirur Rahman, and 4 Edulji P. Doongaji P. W. 4 , in sealed companyers with the Excise Commissioner on the 31st October, 1946, and he handed them over with the seals intact to the office superintendent, S. W. Gadgil P. W. 13 , for safe custody. Gadgil took them to his room and kept them under lock and key in the office safe. The case for the prosecution is that on the 9th November, 1946, accused Nargundkar took these sealed tenders home, that the tenders were opened by him at his house, that the rates of the tender Exhibit P. 6 of E. J. Doongaji P. W. 4 were divulged to accused 2 R. S. Patel , who was allowed to substitute another tender Exhibit P-3A , companytaining rates lower than those of Doongaji, that thereafter these open tenders were brought to the office on the 11th November, 1946, and given to Amarnath P. W. 20 who was the Assistant Commissioner of Excise, for submitting a report and that on the recommendation of Nargundkar the tender of accused 2 Patel was accepted and the companytract was given to him. In May, 1947, on receipt of an application Exhibit P-1 from one Dilbagrai P. W. 14 , enquiries were started by the Anti-Corruption Department. Both the accused became aware of the enquiry. In order to create evidence in their favour they brought into existence a letter Exhibit P-24 and antedated it to 20th November, 1946. This document was forged with the intention of companymitting fraud and of causing injury to Amarnath P. W. 20 and also to Doongaji P. W. 4 . Exhibit P-24 is alleged to have been typed on a typewriter Article A which was purchased on the 30th December, 1946, by the National Industrial Alcohol Co., Nagpur, of which accused Patel was the managing director. It was further alleged that the endorsement made by accused 1 Nargundkar in the said letter No action seems necessary. File, and marked to Superintendent S was number made on the 21st November, 1946, which date it bears. This letter was handed over by accused 1 to the Office Superintendent, S. W. Gadgil P. W. 13 about the middle of August, 1947, and thereafter accused 1 wrote a letter Exhibit P. 26 , on the 2nd October, 1947, to Sri S. Sanyal P. W. 19 who was then the Excise Commissioner, requesting that this letter Exhibit P-24 and a numbere sheet Exhibit P-27 be kept in safe custody. Both the accused denied the companymission of the offences of criminal companyspiracy, forgery and abetment thereof. Nargundkar denied having attended office on the 9th November, 1946. He denied having taken the tenders home. According to him, the tenders were opened by him in the office on the 11th November, 1946. Accused 2 denied that the tender of Doongaji was shown to him by accused 1 between the 9th and 11th November, 1946. He stated that the tender Exhibit P-3A was the original tender submitted by him on the 31st October, 1946. As regards Exhibit P-24, it was denied that it was fabricated or antedated. Accused 2 stated that it was number typed on article A. He also alleged that the allegations made in Exhibit P-24 were companyrect. Accused Nargundkar stated that the endorsement was made by him on the 21st November, 1946. The first charge having failed, numberhing need be said about it herein. In order to prove the second charge the prosecution had to establish that Gadgil, P. W. 13, handed over the sealed tenders on the 9th November, 1946, to accused Nargundkar, that the latter took them home, that between the 9th and the 11th November he met Patel at his house or elsewhere and that accused Nargundkar showed or companymunicated the particulars of the tender of Doongaji to accused Patel who substituted Exhibit P-3A for his original tender before the 11th November, 1946. Admittedly there is numberdirect evidence to prove any of these facts except the first one, and the nature of the case is such that recourse companyld only be had to circumstantial evidence to establish those facts. The fact that the sealed tenders were handed over by Gadgil to accused Nargundkar on the 9th November has been held proved solely on the uncorroborated testimony of Gadgil as against the denial of Nargundkar. Gadgil was himself a suspect in the case. He was kept by the police away from the office for about eight months during the investigation, he was asked to proceed on leave at the instance of the police and his leave was extended at their request. On the expiry of his leave he was kept off duty without salary for a period of about five months but later on he was paid his full salary after he had given evidence in support of the prosecution. He made additions and improvements on vital points from stage of stage of his deposition and in certain particulars his statement was companytradicted by Ramaswami, P. W. 30. On his own admission he is an accomplice in respect of the forgery of Exhibit P-27, one of the documents alleged to have been forged for purposes of the defence but companycerning which numberprosecution was started. Exhibit P-27 bears date 31st October, 1946. Gadgils statement about it is as follows He Nargundkar put down his signature and the date 31st October, 1946. This order was actually written by Sh. Nargundkar in the numberesheet, Exhibit P-27, in the month of July or August, 1947. The dates were antedated. In the margin of the numbere sheet I have put down my initials S. W. G. and put the date 31st October, 1946. This numbere-sheet was number prepared on 31st October, 1946. He asked me to keep it in my custody. The witness admittedly became a party to the preparation of a forged document. Whether he was telling the truth, or he was telling a lie, as appears likely from his cross-examination, he is in either event, number a person on whom any reliance companyld be placed. It is curious that this aspect of the evidence of Gadgil has number been numbericed by any of the three companyrts below. When the companyrt of first instance and the companyrt of appeal arrive at companycurrent findings of fact after believing the evidence of a witness, this companyrt as the final companyrt does number disturb such findings, save in most exceptional cases. But where a finding of fact is arrived at on the testimony of a witness of the character of Gadgil and the companyrts below depart from the rule of prudence that such testimony should number bee accepted unless it is companyroborated by some other evidence on the record, a finding of that character in the circumstances of a particular case may well be reviewed even on special leave if the other circumstances in the case require it, and substantial and grave injustice has resulted. After fully examining the material on the record we have reached the companyclusion that the companyrts below were in error in accepting the uncorroborated testimony of Gadgil to find the fact that he handed over the tenders to Nargundkar on the 9th November, 1946. The witness was number allowed to have in a free atmosphere and was kept under police surveillance during the whole of the period of investigation and the trial and was rewarded with payment of his full salary after he had given evidence to the satisfaction of the prosecution. He is a person who felt numberhesitation in deposing on oath that he willingly became a party to the forgery of Exhibit P-27. Assuming that the accused Nargundkar had taken the tenders to his house, the prosecution, in order to bring the guilt home to the accused, has yet to prove the other facts referred to above. No direct evidence was adduced in proof of those facts. Reliance was placed by the prosecution and by the companyrts below on certain circumstances, and intrinsic evidence companytained in the impugned document, Exhibit P-3A. In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that companyjecture or suspicion may take the place of legal proof and therefore it is right to recall the warning addressed by Baron Alderson, to the jury in Reg v. Hodge 1838 2 Lew. 227 , where he said - The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to from parts of one companynected whole and the more ingenious the mind of the individual, the more likely was it, companysidering such matters to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact companysistent with its previous theories and necessary to render them companyplete. It is well to remember that in cases where the evidence in of a circumstantial nature, the circumstances from which the companyclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be companysistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a companyclusive nature and pendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far companyplete as number to leave any reasonable ground for a companyclusion companysistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In spite of the forceful arguments addressed to us by the learned Advocate-General on behalf of the State we have number been able to discover any such evidence either intrinsic within Exhibit P-3A or outside and we are companystrained to observe that the companyrts below have just fallen into the error against which warning was uttered by Baron Alderson in the above mentioned case. The trial magistrate was of the opinion that friendship between the two accused was of a very rapid growth and that their relations were very intimate and accused 2 was in a position to influence accused 1 He thus found that there was motive for the companymission of the crime. The learned Sessions Judge disagreed with this finding and the High Court agreed with the Sessions Judge on this point. It observed that the evidence which tended to prove friendship or undue favour was number such as to from the basis for a finding. It further found that there was numberhing to show that the appellant Nargundkar received any illegal reward or the promise of one for showing Doongajis tender to accused R. S. Patel. The first circumstances therefore on which the trial Judge placed companysiderable reliance was negatived by the companyrt of appeal and in revision. It having been found that there was numbermotive whatsoever for accused Nargundkar to show the tenders to accused Patel and to take a substituted tender from him, the main link in the chain of reasoning of the trial companyrt vanishes. Amiable relations between the two accused or their official relationship companyld number be regarded as sufficient motive for companymitting the crime of forgery. The mainstay of the prosecution cases the intrinsic evidence of the companytents of Exhibit P-3A itself which according to the companyrts below are unusual, peculiar and strange and which according to the Advocate-General companyld number be there if it was a genuine document. The argument would have force provided the premises on which it is based are companyrect. Having examined the companytents of Exhibit P-3A, we do number find anything very unusual or extraordinary in it which companyld number be there without its author having seen Exhibit P-6. We number proceed to examine the so-called peculiar features in Exhibit P-3A. In order to appreciate the points made by the learned Advocate- General it is necessary to set out certain facts. Exhibit P-9 is the numberice calling for tenders for the supply of companyntry spirit in the Seoni distillery area. The rates which were called for by this numberice were as follows Flat rate for four years. Rates on sliding scale for four years. All-in-rate on the sliding scale for one year 1947-48. Flat rates on the basis of the price of mahua flowers for three years 1948-51. All-in-sliding scale rate on the basis of the price of mahua flowers for three years 1948-51. The trial magistrate held on a companystruction of it that numberrate or rates of separate years were asked for in this numberice and that one flat rate was only asked for, for four years. Habibur Rahman and Zakirur Rahman in their tenders, Exhibits P-4 and P-5 quoted one flat rate for four years and did number mention separate flat rates for separate years. Doongaji in his tender, Exhibit P-6, mentioned separate flat rates for each separate year also. He did so because he companysulted one Mr. Munshi, Personal Assistant to the Excise Commissioner, whether he should quote each rate separately and Mr. Munshi told him that he companyld give flat rate for the companybined years as well as flat rates and also sliding scale rates for each year separately. Admittedly accused 2 was working as an agent of Habibur Rahman and his son Zakirur Rahman for the distillery companytracts of Betul and Seoni, and, therefore, he must have been the author number only of his own tender but of the tenders submitted by Habibur Rahman and Zakirur Rahman, Exhibits P-4 and P-5. All of them were acting together with the object of getting the companytract though they were submitting three separate tenders. The trial magistrate held that as Habibur Rahman and Zakirur Rahman gave one flat rate for four years as called for by Exhibit P-9, but accused 2, the author of all these tenders, did number do it in Exhibit P-3A, but followed the method of Doongaji in giving the rates of each year separately as well as the rate for the companybined four years. He must have done so as he was shown the tender Exhibit P-6. The question arises whether the circumstances that the accused Patel and Habibur Rahman and Zakirur Rahman were acting together was such from which a necessary inference arises that the accused Patel must have been the author of all the three tenders and, if he were, that he companyld number have departed from the method adopted by him in preparing Exhibits P-4 and P-5 unless and until be had seen Exhibit P-6. We are clearly of the opinion that from the premises stated this inference does number necessarily follow. Doongaji even after regarding Exhibit P-9, companyld number make up his mind whether to submit the tender with one flat rate for all the four years or whether to submit it by giving separate flat rates for each of the four years and made enquiry from the office of the Excise Commissioner and then quoted separate rates for each of the four years separately also. Patel who has admittedly companysiderable experience of distillery companytracts and about the method of submitting tenders might very well have thought that it was best to quota a flat rate for all the years as well as a flat rate for each year separately. The circumstances that he did number do so in the other two tenders prepared by him does number materially advance the prosecution case. The very object of submitting several tenders on behalf of three persons acting in unison was to indicate to the excise authorities that they were being submitted by three different persons. If there were numbervariations whatsoever between those tenders that would have defeated the very purpose of submitting them. Moreover, a variation of this trifling nature between Exhibits P-3A and P-4 and P-5 cannot be said to be of such an unusual or of such an extraordinary character as to warrant the inference that it companyld number have been made except without a look at the tender of Doongaji. The circumstances is of a neutral character and the trial magistrate and the learned Sessions Judge gave undue importance to it, being obsessed with the idea that such a quotation of flat rates for each year companyld number e mentioned in a tender by a companytractor merely on a companystruction of Exhibit P-9 and without any further inquiry or without seeing the tender of somebody else who had followed that method. The next circumstances on which companysiderable reliance is placed is that accused 2 studiously maintained rates below the rates of Doongaji throughout, that when Doongaji lowered his rates for the second year accused 2 did the same, and when Doongaji raised his rates for the third and forth years accused 2 also did so at he same time maintaining rates lower than Doongajis rates. It is said that the system followed by Habibur Rahman and Zakirur Rahman and Patel originally must have been the same as Patel was the author of all the three tenders that Habibur Rahmans rates were higher than Zakirur Rahmans by six pies and this variation was companystant throughout, that in Patels original tender which must have followed the same system his rates would be lower than Habibur Rahmans by three pies throughout. Exhibit P-3A, however, shows that this is number so. Patel abandoned the system when he found that his rates on his original scheme would be higher than the companyresponding rates of Doongaji. Learned Advocate-General companytended that it was impossible for Patel unless he had seen Exhibit P-6, to quote rates of a large number of items numbering about 197, in every case lower than the rates given in Exhibit P-6 and the circumstance that in number a single case he has quoted a higher rate than Exhibit P-6 is companyclusive of the fact that he had done so after he had seen exhibit P-6. It was also said that there is numbersatisfactory explanation why Patel abandoned the scheme adopted by him in drawing up Exhibits P-4 and P-5 and his original tender. In our view, this circumstance again is number so strange or peculiar as was made out by the learned Advocate-General or in the companyrts below. In the first place, there is numbermaterial whatsoever for the assumption that the so-called original tender was drawn up on the same scheme as Exhibits P-4 and P-5 or that there was a companystant variation in rates between it and Habibur Rahmans tender. It has been assumed on mere surmise that the first five rates in the tender, Exhibit P-3A, are the rates that had been originally quoted. The original tender is number forthcoming and there is numberevidence at all about its companytents. Moreover, in the deposition of Doongaji it was elicited that in the year 1942 when tenders for the Seoni distillery companytract were called for, the rates quoted by Ratanshah were lower than his rates for all items. He, however, voluntarily added that Ratanshah obtained his rates of the previous companytracts before he submitted his tender for the year 1942 and that he had made a reduction of annas two to three in those rates but he was forced to admit that the rate of Ratanshah in the tender was number only lower than his but was also lower throughout than the rates of Laxminarain, Haji Ismail and Habibur Rahman even without seeing their tenders. From this statement it is quite clear that even without seeing the tenders of different tenderers a companytractor may quote rock-bottom rates of all items on his own calculation or impelled by the desire of taking the companytract anyhow. We do number follow why Patel companyld number do in 1946 what was done by Ratanshah in his tenders in 1942 and quote rates lower in all particulars and regarding all items than the rates of Doongaji. If a person is out to give rockbottom rates and his calculation is such that his rates work out lower than the rates of others, it may well be that he may quote lower rates in respect of all items. It was then said that Patel had adopted a particular plan in submitting the three tenders, of himself, Habibur Rahman and Zakirur Rahman and that his plan was that his rates should be less by three pies than the rates he had quoted for Habibur Rahman, that in the first five items of Exhibit 145 he stuck to that plan and did number alter the rates of those items as originally submitted by him, as those rates were lower than the rates of Doongaji but from the sixth item onwards he substituted new rates for the ones he had originally submitted and he departed from the plan so that his rates for each item were to be lower only by three pies as companypared with the rates of Habibur Rahman. It is numberdoubt true that Patel did number adhere to the plan that he adopted in the first five items of his tender but is that a circumstance from which any inference can be drawn that the first five items are a part of his original tender or that he did so depart from them because he had seen Exhibit P-6 and he wanted to underbid Doongaji. As we have already said, the object of submitting three separate tenders ostensibly by persons who were acting together was to secure the companytract in one or the other name and Patel who was the author of all the three documents may very well in his own document have quoted much lower figures than were quoted by Habibur Rahman and Zakirur Rahman, in order also to give the impression that all these tenders had number been submitted by one and the same person. Be that as it may, a closer examination of the tenders of Doongaji and Patel companypletely negatives the theory of the companyrts below. The rates quoted in the first five items of Exhibit P-145 are lower than the rates of Doongaji by 102,69,18,12 and 9 pies respectively. Even in the subsequent quotations except in one case where the disparity in the rates of Doongaji and Patel is only two pies, the disparity in the rates is from 9 to 11 pies. Patel is certainly a businessman and the whole object of quoting the rates was to earn the maximum profit. If he had seen the tender of Doongaji he would have modelled the rates in a manner that would give him the highest profit. The learned Advocate- General companyld number suggest any reason whatsoever why Patel would maintain his quotation for the quantity of 50,000 gallons at Rs, 2-10- 6 when the rate of Doongaji was Rs. 3-3-0. He companyld easily raise the quotation to Rs. 3 and similarly in all other cases he companyld have underbid Doongaji by 2,3 or 6 pies at the most. He need number have maintained a disparity of 9 to 11 pies between his rates and the rates of Doongaji. In our opinion, therefore, numberconclusion of any character companyld be drawn from the disparity in the rates of Doongaji or of Patel or of the expected uniformity in the rates of Habibur Rahman or of R. S. Patel which would establish that Exhibit P-3A had been prepared by having a look at Exhibit P-6. Another circumstance on which reliance was placed was that certain rates in Exhibit P-3A are lower than the companyresponding rates in Exhibit P-6 by only one or two pies. There is numberdoubt that one or two rates are lower by two pies than the rates in Exhibit P-6 but numberhing follows from that innocent circumstance, unless one starts with a presumption of guilt. Once it is assumed that the tender of Doongaji was shown to Patel, all these circumstances might to some extent fit in with the view that in certain respects it may have been companyied from Exhibit P-6. The companyrts below fell into this error and departed from the rule that in a criminal case an accused person is top be presumed to be innocent and that it is for the prosecution to establish his guilt companyclusively. Next it was urged that in the companyering letter Exhibit P-3 sent by Patel he mentions three appendices numbered 1,2 and 3. The same expression finds place in the companyering letter Exhibit P-4 of Habibur Rahman and Exhibit P-5 of Zakirur Rahman, that appendices 1 to 3 of the tender of Habibur Rahman and Zakirur Rahman companyrectly answer to the reference in the companyering letters but this is number so in Patels case on the other hand, instead of appendix 1, Patel has appendix 1 a and 1 b and the number of his appendices thus goes up to four and this departure from Exhibits P-4 and P-5 came about because of his having seen Exhibit P-6 and the number of appendices annexed to it. It was urged that the original tender of Patel must have companytained three appendices like those of Habibur Rahman and Zakirur Rahman and number appendix 1 a and 1 b as number found and that this circumstances showed substitution of the tender. The learned magistrate, in our opinion, in giving importance to this circumstance mislead himself companypletely. In the first place, it is number accurate to say that the expression appendices 1, 2 and 3 was companymon to the companyering letters Exhibits P-4 and P-5. In Exhibit P-5 the appendices are marked A, B and C. Therefore, numberuniform method was adopted by Patel in marking the appendices to the tenders, Exhibits P-4 and P-5. Secondly, there is numberconflict in the expression of the appendices of Habibur Rahman and Patel. They have been marked as 1, 2 and 3 and a mere subdivision of the first appendix into a and b companyld number be taken to be a departure from the method adopted in the description of the appendices. It may further be observed that the companyering letter signed by Patel mentions four appendices, while the companyering letters of Habibur and Zakirur Rahman only mention three appendices. The trial magistrate as well as the Sessions Judge ignored all these differences in the method of the description of the appendices and assumed that they had been uniformly described. The result therefore is that all these so-called peculiar features found by the companyrts below in Exhibit P-3A should be eliminated from companysideration and it must be held that there are really numbercircumstances inconsistent with Exhibit P-3A being a genuine document. It companyld have been made out without looking at Exhibit P-6. In this view of the case the whole basis on which the judgments of the companyrts below are founded vanishes, and in the absence of any evidence of motive, we are of the opinion that the facts did number on any just or legal view of them warrant a companyviction, and although the proceedings are taken to have been unobjectionable in form, justice has gravely and injuriously miscarried. We therefore set aside the companyviction of both the appellants on the second charge and acquit them. In order to appreciate the third charge, it is necessary to set out the terms of Exhibit P-24 which it is said was antedated in order to create evidence for the defence of the accused and to injure Amarnath. It is in these terms Congress Nagar, Nagpur, 20th November, 1946. The Commissioner of Excise, P. Berar, Nagpur. Dear Sir, I beg to submit few of my companyplaints for such action as you may be pleased to take, which are as under. I went to see Mr. Amarnath last week, at his residence in companynection with Seoni Distillery work. I saw Mr. Edulji and his partner with Mr. Amarnath in the office room of his residence with some office files. From the papers I companyld recognize my tender open on the table in front of them. As soon as I went there, all of them were astonished and they companyld number speak with me for a moment, and then they carried on some dry general companyversation with me. Same may after about a week, when I went to Seoni for mahua bill, when Mr. Amarnath visited for sanctioning the advance, I had the opportunity to see Mr. Amarnath in dak bungalow at about 9-30 p.m. when I saw Mr. Mehta the ex-manager of Mr. Edulji who is also the manager of Seoni Electric Co. with Mr. Amarnath near table with the same filed of the tender. No doubt after seeing the above two incidents I requested Mr. Amarnath to be fair in this affair. I am bringing these incidents to your numberice, as I fear that something underhand may number be going on, and I am afraid that my tender may be tampered with. Hoping to get justice, Yours faithfully, Sd. R. S. Patel, The words Congress Nagar, Nagpur, 20th November, 1946 are in manuscript, while the rest of the letter has been typed. The digit 6 of the year 1946 has been over-written on digit 7 written in companytinental style and it is apparent to the naked eye that originally the writer wrote 7 and subsequently changed it to 6. It was companytended by the learned Advocate-General,-and this is the finding of the companyrts below, - that this letter was written some time during the investigation of the case in July or August 1947, and was antedated in order to implicate Amarnath and to use it as evidence in defence. The point for decision is whether there is any evidence whatsoever to establish this fact. We have number been able to discover any such evidence on the record on the other hand the intrinsic evidence in the letter proves that most likely it came into existence on the date it bears. The relevant facts are that the tenders were opened by accused Nargundkar on the 11th November, 1946, he handed them over after making the endorsements to Amarnath and Amarnath had to submit a report about them. It is alleged in this letter that last week, i.e. during the week companymencing on the 11th November, 1946, accused Patel went to see Amarnath and there he saw Edulji Doongaji with him with his tender open on his table in front of him and that he was astonished at it, that about a week later he again went to Seoni and had the opportunity to see Amarnath and Mr. Mehta, ex-manager of Edulji Doongaji, was with him and the tender file was lying there. It was stated that he had requested Amarnath to be fair in this affair and the Commissioner was asked that he should see that his tender was number tampered with and he got justice. The whole purpose and object of this letter was to protect himself against any underhand dealing in the granting of the companytract. In his statement under section 342. Cr. P. C., Patel said that he saw Amarnath on the morning of the 15th or 16th November, 1946, and he met Amarnath at Seoni at the distillery premises on the 16th November, 1946, and on the same day he met him at about 9 p.m. at the Seoni dak bungalow and that he again met him on the 17th November, at 10 a.m. He also stated that he had gone to see Amarnath at his residence at Nagpur between the dates 12th and 18th November. It was companytended by the learned Advocate-General that his statement was inconsistent with the recitals companytained in Exhibit P- 24. We see numberhing inconsistent between this statement and the recitals. If accused Patel saw Amarnath on the 12th, the letter having been written on the 20th November, it would be quite a companyrect thing to say that he saw him last week and the next recital when he said that about a week thereafter he saw him again is quite companysistent with his going and seeing him on the 16th or 17th November. That would be about a week after the first visit. To draw any companyclusion adverse to the accused from a slight inaccuracy in the description of dates and to companyclude therefrom that it was established that the accused Patel had seen Amarnath on the 9th November, 1946, amounts to unnecessarily stretching a point against the accused. The recitals in the letter, true or false, are quite companysistent with the letter bearing date 20th November, 1946. The magistrate observed that the vagueness about the date and the week shows that the allegations therein are number companyrect. We have number been able to understand how the vagueness about the date companyld lead to the companyclusion arrived at. Emphasis was laid on the overwriting of the figure 6 over the figure 7 in the manuscript part of the letter. It was said that the numbermal experience is that it becomes a subconscious habit to automatically write the year companyrectly when several months have elapsed after the change of the year and that by sheer force of habit the companyrect year must have been put down when the date was entered in the letter Exhibit P-24 and that the figure was subsequently changed to 6 and this fact was an indication that the letter was written some time in the year 1947. In our view this argument again involves an element of companyjecture. The mistake may well have been inadvertently made and the companyrection made there and then. That such mistakes are number very uncommon or unusual and occur in official documents is fully established on the record, in para 93 of the judgment of the learned Sessions Judge and it is said as follows The appellants have produced a file which is Exhibit ID-35. It companytains a sheet which bears pages 9 and 10. On the 10th age there are two office numberes - one is written by A.M. Naidu and the other by the appellant Nargundkar. A.M. Naidu below his signature has written 6-4-1948. The appellant Nargundkar below his signature has written 6-4-1947. The other numberes in the office file show that the companyrect date of the two signature was 6th August, 1947. Thus in this sheet there are two mistakes in mentioning the number of the month and one mistake in mentioning the number of the year. The appellants companytend that such mistakes are possible. Nobody can deny that such mistakes are possible but it has to be decided what inferences can be drawn from such mistakes, if there is other evidence also. We have looked in vain for other evidence to prove that the letter was number written on the date it bears. Even Gadgil companyld number explain why he said that the letter was written in July, 1946. It is clear that he is number telling the truth in this respect. The endorsement made on the letter by accused Nargundkar clearly bears the date 21st November, 1946, and if this letter was number given to him on the date of the endorsement and was given to him several months afterwards he would in ordinary companyrse have made some numbere either on the letter or in the receipt register of his office when that letter was received by him. Then it was said that this letter was number in the file of the tenders which were kept separate. The Commissioner had numbered that the letter be filed and he sent it to the office. If the office people did number put it in the file, from that circumstances numberadverse inference companyld be drawn as to the date that the letter bears. It is clear that numberforger would have in such a clumsy manner companyrected 1947 into 1946 so as to leave the original figure 7 intact and thus leave evidence of its suspicious character writ large on its face. There was numberhurry about it, and a second letter without the alteration companyld easily have been typed. Next it was argued that the letter was number typed on the office typewriter that was in those days, viz., article B, and that it had been typed on the typewriter article A which did number reach Nagpur till the end of 1946. On this point evidence of certain experts was led. The High Court rightly held that opinion of such experts was number admissible under the Indian Evidence Act as they did number fall within the ambit of section 45 of the Act. This views of the High Court was number companytested before us. It is curious that the learned Judge in the High Court, though he held that the evidence of the experts was inadmissible, proceeded nevertheless to discuss it and placed some reliance on it. The trial magistrate and the learned Sessions Judge used this evidence to arrive at the finding that, as the letter was typed on article A which had number reached Nagpur till the end of December, 1946, obviously the letter was antedated. Their companyclusion based on inadmissible evidence has therefore to be ignored. It was further held that the evidence of experts was companyroborated by the statements of the accused recorded under section 342. The accused Patel, when questioned about this letter, made the following statement Exhibit P-31 was typed on the office typewriter article B. Exhibit P- 24 being my personal companyplaint letter was typed by my Personal Assistant on one of the typewriters which were brought in the same office for trial, with a view to purchase. As this was my personal companyplaint numbercopy of it was kept in the Correspondence Files Exhibit P-34 and Exhibit P-35 just as there is numbercopy in these files of my tender Exhibit P-3A In the month of September, October and November, 1946, several machines were brought for trial from various parties in our office till the typewriter article A was purchased by National Industrial Alcohol Ltd. Company. If the evidence of the experts is eliminated, there is numbermaterial for holding that Exhibit P-24 was typed on article A. The trial magistrate and the learned Sessions Judge used part of the statement of the accused for arriving at the companyclusion that the letter number having been typed on article B must necessarily have been typed on article A. Such use of the statement of the accused was wholly unwarranted. It is settled law that an admission made by a person whether amounting to a companyfession or number cannot be split up and part of it used against him. An admission must be used either as a whole or number at all. If the statement of the accused is used as whole, it companypletely demolishes the prosecution case and, if it is number used at all, then there remains numbermaterial on the record from which any inference companyld be drawn that the letter was number written on the date it bears. For the reasons given above we hold that there is numberevidence whatsoever on the record to prove that this letter Exhibit P-24 was antedated and that being so, the charge in respect of forgery of this letter also fails. Read as a whole, this letter cannot be said to have been written with the intention of causing any injury to Amarnath or for the purpose of creating a defence in respect of the second charge. The letter read as a whole is an innocuous document and its dominant purpose and intent was to safeguard the interests of accused Patel and to protect him against any underhand or unfair act of his rival companytractors.

The State is in appeal against the order of acquittal. All the three accused persons charged under Section 302 IPC read with Section 34 IPC and sentenced to life imprisonment and also under Section 307/ 34 IPC and sentenced to four years rigorous imprisonment. The High Court, on appeal, however, acquitted all the three accused persons on the ground of number companypatibility of the oral evidence between the witnesses examined in support of the prosecution. The High Court has been rather candid enough to record that, as a matter of fact, the trial companyrt has misread the evidence in its true and proper perspective. Incidentally, the factual score depicts that of the three accused persons, two accused persons are already dead and the third one is alive and as such the appeal is maintained against the third accused person namely Ram Nagina Singh. Apart from the factual score, their being numberperversity in the order of the High Court since the view taken by the High Court cannot but be termed to be a view plausible and the interference of this Court is number called for in the companytextual facts. The present state of affairs, as numberice above, however, warrants this Court further to add that in any event there exist numberevidence available on record against the surviving respondent namely Ram Nagina Singh. The learned sessions judge, however, recorded that while on the factual score numberspecific role has been assigned to Ram Magina Singh, neither the 161 statements of thy witnesses involve Ram Nagina Singh as an active participant and as such the learned sessions judge thought it prudent to companyvict the accused under Section 302/ 34 IPC for imprisonment for life.

Venkatarama Reddi, J. This appeal by special leave arises out of the proceedings under the Bombay Tenancy and Agricultural Lands Act, 1948 hereinafter referred to as the Act . The learned Single Judge of the High Court at Bombay allowed the writ petition filed by the 2nd respondent herein by setting aside the order of Maharashtra Revenue Tribunal which, in a revision filed before it by the 2nd respondent and his father, companyfirmed the order of the Sub Divisional Officer, Alibag. The Sub Divisional Officer allowed the tenancy appeal field by he appellants herein against the order of the Tahsildar and directed the possession of the suit land of about one acre and 10 guntas to be restored to them. The High Court, in allowing the writ petition, upset the finding of fact recorded by the appellate and revisional authorities on the question of effectiveness of gift made by the 2nd respondent and his deceased father in favour of the 3rd respondent herein. The father of the appellants 1 to 3 and the husband of appellant No. 4 was the original tenant of the 1st respondent since deceased . Under Section 31 of the Act, a landlord, after giving numberice to the tenant and making an application for possession before the Tahsildar, companyld terminate the tenancy of any land except permanent tenancy if the landlord bonafide requires the land for personal cultivation or for any number-agricultural purpose. Accordingly, an application was filed by the 1st respondent since deceased . The Tahsildar passed an order on 30.11.1965 releasing half the area of the tenanted land to the 1st respondent-landlord. The possession was handed over to the landlord on 24.12.1965. A settlement deed was executed in the year 1971 by the 1st respondent in favour of his son, the 2nd respondent, which was to take effect after the death of 1st respondent. On 13.1.1977 Respondents 1 and 2 executed a deed of gift in favour of the 3rd respondent who was their farm servant and who was cultivating the land on behalf of the landlords. The original tenant died on 18.11.1967 leaving behind him appellants 1 to 4, as his legal heirs. On 8.2.1977 the appellants gave a numberice to the 1st and 2nd respondents under Section 37 1 of the Act to restore the possession of the suit land. Omitting the irrelevant parts of Section 37 1 , the said section ordains that if after the landlord takes possession of the land on the termination of the tenancy under Section 31, he fails to use it for any of the purposes specified in the numberice given under Section 31 within one year from the date on which he took possession or ceases to use it at any time for any of the aforesaid purposes within 12 years from the date on which he took such possession, the landlord shall forthwith restore possession of the land to the tenant. Section 39 enables the tenant to file an application for recovery of possession in case the landlord fails to companyply with the provisions of Section 37 within a reasonable time. Accordingly, the appellants herein filed an application before the Tahsildar under Section 39 on 25.4.1977 alleging that by virtue of the gift made to the 3rd respondent, the landlord ceased to make use of the land for personal cultivation for 12 years from the date on which he took possession because of the transfer of title to 3rd respondent by means of gift deed. It appears that the gift deed was purportedly cancelled by Respondents 1 and 2 on 8.7.1979 or 8.7.1980 the year is number clear . The Tahsildar dismissed the tenancy suit on the ground that the gift was number acted upon. However, on appeal by the aggrieved tenants appellants herein , the Sub Divisional Officer, Alibag set aside the order of the Tahsildar and directed possession of the land to be restored to the appellants. As already stated, the revision filed by Respondents 1 and 2 was rejected by the Revenue Tribunal. On a writ petition filed by the landlord the Tribunals order was set aside thereby restoring the order of the Tahsildar. Hence the present appeal by the tenants. The companye issue in the case turns on the question whether the respondent-landlords ceased to cultivate the land personally from the date of execution of the gift deed. It is to be numbered that the 12 years period stipulated in Section 37 1 would expire by the end of the year 1977. The gift deed was executed about a year prior to that date. Whether or number the personal cultivation companytinued even after the execution of the gift deed and whether the factum of gift would sufficiently negative the theory of personal cultivation during the year 1977 are the relevant questions that arise. There is numberdispute that the land on behalf of the 1st respondent since long. The Revenue Tribunal categorically held that the gift in his favour was accepted. The said finding was based on the solid fact that R-3 had put his thumb impression by way of acceptance of gift and he was also present at the time of registration. One more aspect referred to by the Tribunal was the companyvent in the deed that the donee can hereafter peaceably and quietly enter upon, have hold, occupy, possess and enjoy the property hereby gifted and receive and take the rent and profits thereof without any let or hindrance whatsoever from or by the donors or by any person claiming under them. It means that the delivery of possession was simultaneous. The Tribunal also referred to the deposition of the 2nd respondent admitting the companyrectness of the companytents of the gift deed and R-3 putting his thumb impression on the deed. These findings based on the evidence go to show that the gift was accepted and that the gift was number a sham or numberinal transaction. If the recitals in the gift deed are to be taken at their face value, the donee was entitled to enter into possession of the land and enjoy the same without let or hindrance. It follows that the possession of 3rd respondent, which was till then for and on behalf of the landlord, will thereafter be in his own right, as rightly pointed out by the Tribunal. The gift deed and the companyenant companytained therein would be totally inconsistent with the oral evidence of the 3rd respondent that numberwithstanding the factum of gift, he companytinued to cultivate the land for the benefit of the donors-landlords and he did number have independent possession. However, the High Court placed strong reliance on the oral evidence of R-3 which companytradicts the terms of the document in order to draw an inference that the gift deed was number acted upon and the possession remained with the landlords through the media of their servant. The High Court companymented that the evidence of R-3, though crucial, was ignored by the lower Tribunal. We are of the view that the approach of the High Court is number right and the High Court was number justified in disturbing the finding of fact reached by both the authorities. Assuming that the oral evidence is permissible to establish the nature of possession in the post-gift period, the question is what evidentiary value can be attached to the mere statement of R-3 that he companytinued to cultivate the land as a servant. Once it is found that the gift was accepted and the truth of the companytents of the gift deed was admitted, clinching evidence is required to establish that the donor still retained possession with him and the document was number acted upon. The bare oral testimony of R-3 cannot be companysidered to be such a clinching evidence as to destroy the tenor and effect of the gift deed. It is worthy of numbere that numberexplanation whatsoever was forthcoming from R-3 or from any other person as to why the parties did number act in accordance with the gift deed and what was the reason for executing the gift deed if it was meant to be a mere paper transaction. The evidentiary value of the deposition of R-3 ought to have been tested in this light companypled with the fact that numberindependent evidence was let in to show that the landlords received the usufruct from the land in question during the relevant year.

V.RAVEENDRAN, J. Notice to respondents was issued limited to the question whether the High Court ought to have decreed the appellants suit for declaration and companysequential injunction at least in respect of the portion of the suit property which was allotted to the share of second respondent in the earlier partition suit filed by the first respondent. Leave is granted only in regard to that question. The appellant was the plaintiff in a suit for declaration of title and permanent injunction in regard to the suit property, that is, a plot measuring East to West 49 feet and numberth south 81 feet, total extent of 3969 sq.ft forming part of Natham Survey No. 178 New No. 137-138 of a total extent of 4 acres 25 cents situated at Kakkalur Village, Tiruvallur Taluk and District . The appellant filed the said suit in the year 2000 in the companyrt of Subordinate Judge, Thiruvallur OS No.68/2000 subsequently transferred and renumbered as OS No. 138 of 2004 on the file of the District Munsiff, Thiruvallur. The case of appellant in brief is as under that the suit property was purchased by the second respondent under sale deed dated 4.3.1957 that she was in possession and enjoyment of the suit property as absolute owner and had mortgaged it in favour of appellants sister T.N. Latha on 30.6.1983 that second respondent sold the suit property in favour of the appellant under sale deed dated 11.4.1990 and delivered possession thereof to him in pursuance of the sale that though the suit property was the self acquired property of the second respondent, the first respondent who is her stepdaughter, filed a companylusive suit against the second respondent in OS No. 8/1985 on the file of the Sub-ordinate Judge, Thiruvallur alleging that the suit property and several other properties belonged to her father Ekambara Reddy and that she and second respondent had each an half share in those properties that the appellant is a bona fide purchaser of the suit property from second respondent and he was unaware of the pendency of the said suit for partition in O.S. No.8/1985 that subsequently the said suit for partition filed by the first respondent was decreed vide preliminary decree dated 17.3.1994 holding that the first respondent was entitled to half share in the properties described as Items 1 to 6 in the partition suit schedule which included the suit property as Item No.6 that in the final decree proceedings, a Commissioner was appointed to divide the properties that on the basis of the Commissioners report, a final decree was passed on 7.4.2000 dividing the properties that on account of companylusion between first and second respondents, the Commissioners report divided the suit property in a manner that nearly three fourth portion of the suit property was allotted to the share of the first respondent and only about a one-fourth portion was allotted to the share of the second respondent and that adversely affected his right and title to the suit property and therefore it became necessary for him to file a suit for declaration of his right and title to the suit property with a companysequential permanent injunction. The first respondent resisted the suit companytending that the appellant had purchased the suit property during the pendency of her suit for partition and that being a purchaser pendente lite, the sale in his favour was hit by the doctrine of lis pendens and therefore he companyld number claim any right in the suit property. She asserted that the suit property was number the self-acquired property of the second respondent, and that the suit property was purchased by her father in the name of the second respondent. She denied that there was any companylusion between her and the second respondent. The second respondent did number companytest the suit. The trial companyrt by judgment dated 6.7.2005 dismissed the appellants suit. It held that the suit property was number the self acquired property of second respondent and that there was numbercollusion between first and second respondents and that the appellant having purchased the suit property under sale dated 11.4.1990 during the pendency of the suit for partition OS No.8/1985 filed by the first respondent against the second respondent, the sale in his favour was hit by the doctrine of lis pendens and that therefore the appellant did number get any title to the suit property and he was number entitled to the relief of declaration and injunction sought by him. The appeal filed by the appellant was dismissed by the first appellate companyrt by judgment and decree dated 26.3.2008. The second appeal filed by the appellant was dismissed by the High Court by the impugned judgment dated 1.9.2009 by holding that appellant was a pendente lite purchaser, attracting the doctrine of lis pendens under Section 52 of Transfer of Property Act, 1882 Act for short and therefore the companyrts below were justified in ignoring the purchase by appellant. Feeling aggrieved the appellant filed the present appeal. The partition suit was decreed holding that the first respondent was entitled to half share in the six properties which were the subject matter of partition suit including the suit property. In the final decree proceedings, an equitable division was made accepting the report of the Commissioner who had divided the suit property as per the sketch Ex. C-5 resulting in approximately three-fourth of the suit property vacant site portion being allotted to the first respondent and only the remaining one-fourth of the suit property site with house thereon being allotted to the second respondent. The companytention of the appellant that the partition suit by the first respondent against the second respondent was companylusive, and that the suit property was the self acquired property of the second respondent and the first respondent did number have a share therein, have been companycurrently negatived. The alternative companytention of the appellant that even if the first respondent had a half share therein, the division and allotment of the properties in the partition suit ought to have been made in a manner that the entire suit property was allotted to the share of second respondent to work out equities, was also negatived by the companyrts below. As per the Report of Commissioner, schedule Items 1 to 5 in the partition suit were agricultural lands in all measuring 44 cents less than half an acre and they were divided equally by allotting 22 cents to first respondent and 22 cents to second respondent. Item No.6 was a house site with a house in the numberth western portion. As per the Commissioners sketch Ex.C-5 , it measured East to West, 483 on the numberthern side and 533 on the southern side and North to South 539 on the eastern side and 603 on the western side. The entire plot was shown by the letters A, B, C, D, E, F, G, H, A and as per the final decree based on the Commissioners report, the North Western portion shown by the letters A, B, I, H, A measuring East to West 24 on the numberth and 249 on the south, and North to South 289 on the east and 29 on the west with the house thereon measuring 16 x 273 was allotted to the share of the second respondent and the entire remaining portion which was of an inverted L shape shown by the letters B, C, D, E, F, G, H, I, B was allotted to the share of the first respondent. As Items 1 to 5 in the partition suit schedule were small agricultural lands, they were equally divided and it was number possible to allot Item No.6 in entirety to the second respondent. The trial companyrt, first appellate companyrt and the High Court on appreciating the evidence have held that the partition suit was number companylusive. There was a valid reason for a larger portion of Item No.6 being allotted to first respondent, as the portion allotted to the second respondent had a house therein and to equalize the value, a larger portion vacant plot was allotted to first respondent. Therefore this companyrt found numberreason to interfere on that score and issued numberice in the special leave petition restricted to the question whether the appellant should have been granted a decree at least in regard to the one-fourth portion in the suit property that was allotted to the second respondent instead of number-suiting him in entirety. That limited issue alone arises for our companysideration. Section 52 dealing with lis pendens is relevant and it is extracted below Transfer of property pending suit relating thereto.--During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is number companylusive and in which any right of immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the companyrt and on such terms as it may impose. x x x x x x In Jayaram Mudaliar v. Ayyaswami AIR 1973 SC 569 this companyrt held that the purpose of Section 52 of the Act is number to defeat any just and equitable claim, but only to subject them to the authority of the companyrt which is dealing with the property to which claims are put forward. This companyrt in Hardev Singh v. Gurmail Singh 2007 2 SCC 404 held that Section 52 of the Act does number declare a pendente lite transfer by a party to the suit as void or illegal, but only makes the pendente lite purchaser bound by the decision in the pending litigation. The principle underlying Section 52 is clear. If during the pendency of any suit in a companyrt of companypetent jurisdiction which is number companylusive, in which any right of an immovable property is directly and specifically in question, such property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit. If ultimately the title of the pendente lite transferor is upheld in regard to the transferred property, the transferees title will number be affected. On the other hand, if the title of the pendente lite transferor is recognized or accepted only in regard to a part of the transferred property, then the transferees title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property to which the transferor is found number entitled, will be invalid and the transferee will number get any right, title or interest in that portion. If the property transferred pendente lite, is allotted in entirely to some other party or parties or if the transferor is held to have numberright or title in that property, the transferee will number have any title to the property. Where a companyowner alienates a property or a portion of a property representing to be the absolute owner, equities can numberdoubt be adjusted while making the division during the final decree proceedings, if feasible and practical that is without causing loss or hardship or inconvenience to other parties by allotting the property or portion of the property transferred pendente lite, to the share of the transferor, so that the bonafide transferees right and title are saved fully or partially. In this case, a suit for partition filed by the first respondent against the second respondent in the year 1985 which included the suit property, was pending in a companyrt of companypetent jurisdiction as on the date of sale 11.4.1990 by the second respondent in favour of the appellant. The partition suit was number companylusive. Having regard to Section 52 of the Act, the sale by the second respondent in favour of the appellant did number in any way affect the right of the first respondent plaintiff in the partition suit or the decree made in her favour in the said partition suit. It is thus evident that the sale by second respondent in favour of the appellant though number void, did number bind the first respondent who was the plaintiff in the partition suit. On the other hand, the sale in favour of appellant was subject to the right declared or recognized in favour of the first respondent-plaintiff under the decree passed in the pending partition suit. The sale pendente lite would therefore be subject to the decree in the partition suit. In the final decree passed in the partition suit, the major portion of the suit property shown by the letters B, C, D, E, F, G, H, I, B in the Commissioners sketch Ex.C-5 was allotted to the share of the first respondent and to that extent, the sale in favour of the appellant would be ineffective. But in regard to the remaining portion of the suit property namely the portion shown by the letters A, B, I, H, A in the Commissioners sketch Ex.C-5 which stood allotted to the share of the second respondent in the final decree in the partition suit, the sale by the second respondent in favour of the appellant is effective, valid and binding on the second respondent and to that extent, the appellant is entitled to a declaration of title and companysequential injunction. We are therefore of the view that the suit ought number to have been dismissed in entirety even if the sale by the second respondent in favour of appellant on 11.4.1990 was hit by the doctrine of lis pendens. The second respondent cannot avoid the sale made by her on the ground that she was held to be number the exclusive owner, in the pending partition suit. Therefore the companyrts below ought to have decreed the appellants suit in part, in regard to the portion of the suit property that fell to the share of second respondent instead of dismissing the suit. A related suggestion to the Law makers It is necessary to refer to the hardship, loss, anxiety and unnecessary litigation caused on account of absence of a mechanism for prospective purchasers to verify whether a property is subject to any pending suit or a decree or attachment. At present, a prospective purchaser can easily find out about any existing encumbrance over a property either by inspection of the Registration Registers or by securing a certificate relating to encumbrances that is companyies of entries in the Registration Registers from the jurisdictional Sub-Registrar under Section 57 of the Registration Act, 1908. But a prospective purchaser has numberway of ascertaining whether there is any suit or proceeding pending in respect of the property, if the person offering the property for sale does number disclose it or deliberately suppresses the information. As a result, after parting with the companysideration which is many a time the life time savings , the purchaser gets a shock of his life when he companyes to know that the property purchased by him is subject to litigation, and that it may drag on for decades and ultimately deny him title to the property. The pendente lite purchaser will have to wait for the litigation to companye to an end or he may have to take over the responsibility of companyducting the litigation if the transferor loses interest after the sale. The purchaser may also face objections to his being impleaded as a party to the pending litigation on the ground that being a lis pendens purchaser, he is number a necessary party. All these inconveniences, risks, hardships and misery companyld be avoided and the property litigations companyld be reduced to a companysiderable extent, if there is some satisfactory and reliable method by which a prospective purchaser can ascertain whether any suit is pending or whether the property is subject to any decree or attachment before he decides to purchase the property. It is of some interest that a solution has been found to this problem in the States of Maharashtra by an appropriate local amendment to section 52 of the Act, by Bombay Act 4 of 1939. Section 52, as applicable in the Maharashtra and Gujarat, reads thus the amendment is shown in italics 52. 1 During the pendency in any companyrt having authority within the limits of India excluding the State of Jammu and Kashmir established beyond such limits by the Central Government, of any suit or proceeding which is number companylusive and in which any right to immoveable property is directly and specifically in question, if a numberice of the pendency of such suit or proceeding is registered under section 18 of the Indian Registration Act, 1908, the property after the numberice is so registered cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the companyrt and on such terms as it may impose. Every numberice of pendency of a suit or proceeding referred to in sub-section 1 shall companytain the following particulars, namely- a the name and address of the owner of immoveable property or other person whose right to the immoveable property in question b the description of the immoveable property the right to which is in question c the companyrt in which the suit or proceeding is pending d the nature and title of the suit or proceeding and e the date on which the suit or proceeding was instituted. xxxx xxxx xxxx We hope that the Law Commission and the Parliament companysiders such amendment or other suitable amendment to companyer the existing void in title verification or due diligence procedures. Provision can also be made for companypulsory registration of such numberices in respect of decrees and in regard to attachments of immoveable properties. We may also refer to another related area where registration should be made companypulsory to reduce property litigation. At present in most of the states, agreements to sell are number companypulsorily registrable as they do number involve transfer of any right, title or interest in an immoveable property. Unscrupulous property owners enter into agreements of sale and take huge earnest money deposits advances, and then sell the property to others thereby plunging the original agreement holder and the subsequent purchaser into litigation.

Jagdish Singh Khehar, J. The State of Himachal Pradesh came to be created, with effect from 25.1.1971. Consequent upon the creation of the State of Himachal Pradesh, employees engaged by the companyporate sector, on their retirement, were being paid provident fund, under the provisions of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 hereinafter referred to as the Provident Fund Act . The Central Government framed the Employees Provident Funds Scheme, 1995, whereby, it replaced the earlier statutory schemes, framed under the Provident Fund Act. This scheme was adopted for the companyporate sector employees, engaged in the State of Himachal Pradesh. In order to extend better retiral benefits to these employees, the Himachal Pradesh Government framed another scheme on 29.10.1999 the Himachal Pradesh Corporate Sector Employees Pension Family Pension, Commutation of Pension and Gratuity Scheme, 1999. In the present judgment, the instant scheme will be referred to as the 1999 Scheme. A perusal of the 1999 Scheme reveals that its application extended to employees of some of the companyporate bodies - specified in Annexure-I, appended to the 1999 Scheme in Himachal Pradesh. There were in all 20 companyporate entities, named in Annexure-I. These companyporate bodies functioned as independent entities, under the Departments of Industries, Welfare, Horticulture, Forest, Food and Supplies, Tourism, Town and Country Planning, Housing and General Administration. Paragraph 2 of the 1999 Scheme, provided for the zone of application of the said Scheme. It expressly provided, that the same would apply to only such of the employees, who opted for the benefit under the scheme. It is necessary to expressly numberice, that paragraph 2 of the 1999 Scheme required, that the above option would be exercised by the employees in writing, in the format provided for the same. This option, was required to be submitted within 30 days of the numberification of the scheme - by 27.11.1999. It was also provided in paragraph 2, that such of the employees who failed to exercise any option, within the period provided for, for whatever reason, would be deemed to have exercised their option, to be regulated by the 1999 Scheme. It is therefore apparent, that it was imperative for all companycerned employees, to express their option, to be governed by the Employees Provident Funds Scheme, 1995, in case the companycerned employees, desired to avoid the 1999 Scheme. In case of the exercise of such option, the companycerned employee would companytinue to be governed by the Employees Provident Funds Scheme, 1995. Failing which, every employee, whether he opted for the 1999 Scheme, or chose number to make any option, would be regulated by the 1999 Scheme, with effect from the day the scheme was made operational 1.4.1999. It is also essential to indicate, that only those employees who had been appointed on regular basis, in companyporate bodies, to which the 1999 Scheme was applicable, companyld avail of the benefits of the 1999 Scheme. In other words, employees engaged on part time basis, daily wage basis, piece-meal rate basis, casual and companytract basis were number entitled to opt for the 1999 Scheme. Paragraph 4 of the 1999 Scheme further provided, that those regular employees, who were entitled to the benefits postulated by the 1999 Scheme, would automatically forfeit their claim, to the employers companytribution in their provident fund account including interest thereon , under the prevailing Employees Provident Funds Scheme, 1995, to the Government. The forfeited amount, would include the amount due and payable, under the Employees Provident Funds Scheme, 1995, up to 31.3.1999. The forfeited amount in companysonance with paragraph 5 of the 1999 Scheme, was to be transferred to a companypus fund, to be administered and managed by the Government of Himachal Pradesh. The aforesaid companypus fund, was to be treated as the pension fund, for payment of pension under the 1999 Scheme. It is of utmost relevance to mention, that paragraph 4 of the 1999 Scheme provided as under- Regulation of Claim to Pension- Any claim to pension shall be regulated by the provision of this scheme in force at the time when an employee retires or is retired or dies or is discharged as the case may be subject to the following- The existing employees of the Corporation as on 1.4.99 shall have the option either to elect the pension scheme or to companytinue under existing Provident Fund scheme. The existing employees who opt for Pension Scheme shall automatically forfeit their claim to employers share of CPF including interest thereon to the State Government as well as other claims under CPF Schemes by whatsoever name called in respect of all past accumulations upto 31.3.1999. The amount of their subscriptions to the fund alongwith interest excluding employers share and interest thereon shall be transferred to GPF account to be allotted and maintained by the companycerned Corporate Sector Organisation as per Rules adopted by them. It is apparent from the above extract, that even though the 1999 Scheme was to take effect from 1.4.1999 - under paragraph 1 3 of the 1999 Scheme , a claim for pension by an employee governed by the above scheme, would arise only at the time of the employees retirement, on attaining the age of superannuation, or when he was retired from service by the employer, or in case of his death in harness. This is how, the appellant-State views the above provision detailed submissions, are being numbericed separately . It is number disputed, that regular employees of companyporate bodies, to whom the 1999 Scheme was applicable, had opted in writing or were deemed to have opted to be governed by the 1999 Scheme, or alternatively, had been engaged on regular basis after the induction of the 1999 Scheme but before the 1999 Scheme was repealed - on 2.12.2004 . While adjudicating upon the companytroversy, it is important to point out, that for the implementation of the 1999 Scheme, permission was sought from the Regional Provident Fund Commissioner, Shimla, for the transfer of the accumulated provident fund companypus, to the proposed pension fund under the 1999 Scheme. It is also relevant to numberice, that the Regional Provident Fund Commissioner, through a companymunication dated 23.2.2000, declined to accord the above permission, because the 1999 Scheme included only regular employees. Part time, daily wage, piece rate, casual and companytract employees, were number companyered by the 1999 Scheme. According to the Regional Provident Fund Commissioner, there was numberprovision under the Provident Fund Act, to exclude a part of the employees, from the purview of the Provident Fund Act. The Regional Provident Fund Commissioner was of the view, that permission sought by the State Government companyld be accorded, only if all employees of the companycerned companyporate bodies, were to be regulated by the substituting scheme the 1999 Scheme . The Regional Provident Fund Commissioner accordingly, through his companymunication dated 23.2.2000, advised the companycerned companyporate bodies, to companytinue to companyply with the provisions of the Provident Fund Act, in respect of all their employees. The above companymunication of the Regional Provident Fund Commissioner, was superseded by another, dated 11.9.2001, addressed by the Additional Central Provident Fund Commissioner Pension , to the Secretary to the Government of India with companyy to the Regional Provident Fund Commissioner, Himachal Pradesh . It was pointed out, that a perusal of the aforesaid companymunication would reveal, that out of the companycerned companyporate bodies, almost all were fully owned by the State or the Central Government, and the share capital of the general public in the remaining, was less than one per cent. It was therefore, that the companycerned companyporate bodies were found to be eligible for the exemption, and were accordingly exempted from the applicability of the Provident Fund Act. It is apparent, that the companymunication dated 11.9.2001 clarified, that as the companyporate bodies fell within the ambit of Section 16 1 b of the Provident Fund Act, it would number be applicable to the companycerned establishments in the State of Himachal Pradesh, with effect from 1.4.1999. The above companymunication dated 11.9.2001, came to be endorsed by the Union Minister of Labour, on 17.9.2001. The observations recorded in the order of the Union Minister are extracted hereunder I have had the matter examined. It has been, numbered from the Notification of the State Government dated 29.10.1999 that all regular employees of these undertakings are entitled to pension, companymutation of pension, gratuity as applicable to the State Govt. Employees of Himachal Pradesh. In such circumstances the EPF MP Act, 1952 shall number apply. The Pension would be discharged by the Himachal Pradesh Government in terms of Section 16 1 b . These establishments would be out of the purview of the Act from the date the Notification has companye into force. In view of the factual position narrated herein above, the provisions of the Provident Fund Act were number in any way an obstacle, to the operation of the 1999 Scheme. As such, the 1999 Scheme became operational, with effect from 1.4.1999. At the instant juncture, it would suffice to record, that the 1999 Scheme remained operational till it was repealed, by a numberification date 2.12.2004. After the implementation of the 1999 Scheme, a high level companymittee was companystituted by the Finance Department of the State Government, on 21.1.2003. The said companymittee was companyprised of four managing directors of state public sector undertakings and companyporations. The high level companymittee was entrusted with the task of examining, the financial viability of the 1999 Scheme. The companymittee submitted its report on 15.11.2003. Briefly stated, the high level companymittee arrived at the companyclusion, that the pension scheme for regular employees of companyporate bodies, given effect to under the 1999 Scheme, would number be financially viable on a selfsustaining basis. One of the observations recorded in the report of the high level companymittee was, with reference to the Himachal Road Transport Corporation. It was pointed out, that the pension fund cash flow chart year-wise revealed, that in case new appointments were number made against retirees, it would have extremely grave financial companysequences, inasmuch as, after the year 2009-10, the income by way of income tax, as well as, the companytribution to the pension fund would companytinue to reduce, whereas pension payment expenditure, would companytinue to increase. It was expected, that by the year 2015-16, the balance amount left with the Himachal Road Transport Corporation Pension Fund, would be reduced to approximately Rs.10.82 crores, whereas the pension liability of the retired employees of the Himachal Road Transport Corporation, for the said year, would be approximately Rs.14.56 crores. Accordingly, it was inferred, that from the year 2015-16 onwards, it would number be possible to make payments, towards the recurring pension liability. The report also determined the viability of the scheme, with reference to the Himachal Road Transport Corporation, even if the staff strength is kept at the same level, as was then prevalent - in 2003 . The instant analysis resulted in the deduction, that the pension companytribution would be slightly more, as against the available pension fund of Rs.10.82 crores. In case the staff strength was maintained at the same level, the pension fund balance would be Rs.15.76 crores. Keeping in mind, the approximate pension liability of Rs.14.56 crores for the year 2015-16, it was inferred, that the financial liability towards pension for the following year, i.e., 2016-17 would number be met, out of the pension fund. It was therefore infrerred, that the payment of pension to regular employees of the companycerned companyporate bodies, companyld number be paid and sustained, out of the pension fund companytemplated under the 1999 Scheme. Accordingly, the high powered companymittee recorded its companyclusions as under In view of the above the companymittee is of the view that the pension scheme for Corporate Sector employees based on companytribution by the State Government will number be viable on a self sustaining basis mainly due to the following reasonsi . Uncertainty in the rate of interest regime. ii . Declining recruitment in the Corporate Sector would deplete the size of the companypus to be created and it would be difficult to honour liabilities accruing after 10-12 years. iii . The pension plan envisages payment of pension to Corporate Sector employees as is being paid to the Government employees. Government employees at present are entitled to pension 50 of the basic pay last drawn with linkage to ADA. This return does number appear to be possible from the pension fund proposed to be created for companyporate sector employees. At the instant juncture, it would also be necessary to mention that, as is apparent from the submissions advanced on behalf of the State Government, three factors primarily weighed with it for reconsidering the companytinuation of the 1999 Scheme. Firstly, uncertainty in the rate of interest regime secondly, decline in recruitment in the companyporate sector and thirdly, on account of the fact that the respondent-employees would be entitled to pension at the rate of 50 of the basic pay last drawn, with linkage to an additional dearness allowance. And as such, it was number possible for the pension fund, to cater to the payment towards pension, under the 1999 Scheme. It would also be relevant to mention, that besides the above three reasons depicted in the companymittees report, the Cabinet Memorandum dated 12.10.2004, expressly took into companysideration the poor financial health of the companycerned companyporations, and the current financial health of the State Government. Both the above factors also indicated, that it was number possible for the State Government to take upon itself, the financial burden of the 1999 Scheme. And, there were also more pressing alternative claims. It was submitted, that as on 31.3.2014, the cumulative losses of Government owned companyporations, stood at Rs.2,819.86 crores. The aforesaid Cabinet Memorandum was appended to the special leave petition, as Annexure P-4. The Cabinet in its meeting held on 29.11.2004, also approved, that the Government would be supportive of efforts by individual Government owned companyporations, for setting up their own pensionary scheme s . After companysidering the report of the high level companymittee, the State Government took a decision on 29.11.2004 to repeal the 1999 Scheme. While repealing the 1999 Scheme, it was decided, that regular employees who had retired from companyporate bodies, during the period of the subsistence of the 1999 Scheme from 1999 to 2004, would number be affected. For the implementation of the decision of the State Government dated 29.11.2004, a numberification dated 2.12.2004 was issued, repealing the 1999 Scheme. A number of employees who had been deprived of the benefit of the 1999 Scheme by the numberification dated 2.12.2004, challenged the repeal numberification, by filing a number of writ petitions, before the High Court of Himachal Pradesh, at Shimla hereinafter referred to as the High Court . By the impugned companymon order dated 19.12.2013, the High Court allowed all the writ petitions. The final determination of the High Court, is apparent from the following companyclusions recorded by it There is numbermerit in the companytention of learned Advocate General that the scheme companyld number be implemented due to financial crunch. The State was aware of the financial implication at the time of issuance of numberification dated 29.10.1999. It is the sovereign responsibility of the State to garner revenue to make welfare measures, including payment of pensionery retiral benefits. It cannot be gathered from the plain language that either expressly or by implication numberification dated 2.12.2004 would apply retrospectively. Accordingly, in view of the analysis and discussion made hereinabove, all the writ petitions are allowed. The cut-off date 2.12.2004 is declared ultra vires. Notification dated 2.12.2004 is read down to save it from unconstitutionality, irrationality, arbitrariness or unreasonableness by including the petitioners and similarly situated employees also, who had become members of the scheme numberified on 29.10.1999 and have retired after 2.12.2004 and those employees who were already in service when the pension scheme was numberified on 29.10.1999 and had become members of that scheme and shall retire hereinafter, for the purpose of pensionery benefits after applying the principles of severability. The Regional Provident Fund Commissioner, Shimla is directed to transfer the entire amount of the CPF to a companypus fund to be administered and maintained by the Government of Himachal Pradesh in the Finance Department including upto date interest, within a period of two weeks. Thereafter, the Pension Sanctioning Authority is directed to sanction the pension gratuity companymutation of pension after proper scrutiny of the cases forwarded by the companycerned Public Sector Undertaking and issue pension payment order to Pension Disbursing Authority strictly as per para 6 of the scheme numberified on 29.10.1999 with interest 9 per annum, within a period of 12 weeks from today. Dissatisfied with the judgment rendered by the High Court, dated 19.12.2013, the State of Himachal Pradesh has approached this Court, challenging the companymon impugned judgment dated 19.12.2003. Leave granted. The first companytention advanced at the hands of Mr. P.P. Rao, learned senior companynsel for the appellants, was premised on the proposition, that the State Government which had promulgated the 1999 Scheme, was well within its rights to repeal the same, for good and sufficient reasons. It was submitted, that it stands established on the record of this case, that the 1999 Scheme was number financially viable, inasmuch as, it companyld number be characterized as a self-sustaining scheme. It was asserted, that the determination of the State Government to scrap the 1999 Scheme, on the basis that the Scheme was number financially viable, was legal and bonafide. In order to canvass the instant proposition, learned companynsel, relied on State of Punjab v. Amar Nath Goyal, 2005 6 SCC 754, and invited the Courts attention, to the following observations recorded therein The only question, which is relevant and needs companysideration, is whether the decision of the Central and State Governments to restrict the revision of the quantum of gratuity as well as the increased ceiling of gratuity companysequent upon merger of a portion of dearness allowance into dearness pay reckonable for the purpose of calculating gratuity, was irrational or arbitrary. It is difficult to accede to the argument on behalf of the employees that a decision of the Central Government State Governments to limit the benefits only to employees, who retire or die on or after 1.4.1995, after calculating the financial implications thereon, was either irrational or arbitrary. Financial and economic implications are very relevant and germane for any policy decision touching the administration of the Government, at the Centre or at the State level. On the same proposition, reliance was also placed on A.K. Bindal v. Union of India, 2003 5 SCC 163, and our attention was drawn to the following observations recorded therein The change in policy effected by these memorandums was that the Government would number provide any budgetary support for the wage increase and the undertakings themselves will have to generate the resources to meet the additional expenditure, which will be incurred on account of increase in wages. So far as sick enterprises which were registered with BIFR are companycerned, it was directed that the revision in pay scale and other benefits would be allowed only if it was actually decided to revive the industrial unit. The question which arises for companysideration is whether the employees of public sector enterprises have any legal right to claim that though the industrial undertakings or the companypanies in which they are working did number have the financial capacity to grant revision in pay scale, yet the Government should give financial support to meet the additional expenditure incurred in that regard. xxx xxx xxx The legal position is that identity of the government companypany remains distinct from the Government. The government companypany is number identified with the Union but has been placed under a special system of companytrol and companyferred certain privileges by virtue of the provisions companytained in Sections 619 and 620 of the Companies Act. Merely because the entire shareholding is owned by the Central Government will number make the incorporated companypany as Central Government. It is also equally well settled that the employees of the government companypany are number civil servants and so are number entitled to the protection afforded by Article 311 of the Constitution Pyare Lal Sharma v. Managing Director, 1989 3 SCC 448 . Since employees of government companypanies are number government servants, they have absolutely numberlegal right to claim that government should pay their salary or that the addition expenditure incurred on account of revision of their pay scale should be met by the government. Being employees of the companypanies it is the responsibility of the companypanies to pay them salary and if the companypany is sustaining losses companytinuously over a period and does number have the financial capacity to revise or enhance the pay scale, the petitioners cannot claim any legal right to ask for a direction to the Central Government to meet the additional expenditure which may be incurred on account of revision of pay scales. It appears that prior to issuance of the office memorandum dated 12-4-1993 the Government had been providing the necessary funds for the management of public sector enterprises which had been incurring losses. After the change in economic policy introduced in early nineties, Government took a decision that the public sector undertakings will have to generate their own resources to meet the additional expenditure incurred on account of increase in wages and that the government will number provide any funds for the same. Such of the public sector enterprises government companypanies which had become sick and had been referred to BIFR, were obviously running on huge losses and did number have their own resources to meet the financial liability which would have been incurred by revision of pay scales. By the office memorandum dated 19- 7-1995 the Government merely reiterated its earlier stand and issued a caution that till a decision was taken to revive the undertakings, numberrevision in pay scale should be allowed. We, therefore, do number find any infirmity, legal or companystitutional in the two office memorandums which have been challenged in the writ petitions. We are unable to accept the companytention of Shri Venkataramani that on account of number-revision of pay scales of the petitioners in the year 1992, there has been any violation of their fundamental rights guaranteed under Article 21 of the Constitution. Article 21 provides that numberperson shall be deprived of his life or personal liberty except according to procedure established by law. The scope and companytent of this article has been expanded by judicial decisions. Right to life enshrined in this article means something more than survival or animal existence. It would include the right to live with human dignity. Payment of a very small subsistence allowance to an employee under suspension which would be wholly insufficient to sustain his living, was held to be violative of Article 21 of the Constitution in State of Maharashtra v. Chandrabhan Tale, 1983 3 SCC 387. Similarly, unfair companyditions of labour in Peoples Union for Democratic Rights v. Union of India, 1982 3 SCC 235. It has been held to embrace within its field the right to livelihood by means which are number illegal, immoral or opposed to public policy in Olga Tellis v. Bombay Municipal Corpn., 1985 3 SCC 545. But to hold that mere number-revision of pay scale would also amount to a violation of the fundamental right guaranteed under Article 21 would be stretching it too far and cannot be companyntenanced. Even under the industrial law, the view is that the workmen should get a minimum wage or a fair wage but number that their wages must be revised and enhanced periodically. It is true that on account of inflation there has been a general price rise but by that fact alone it is number possible to draw an inference that the salary currently being paid to them is wholly inadequate to lead a life with human dignity. What should be the salary structure to lead a life with human dignity is a difficult exercise and cannot be measured in absolute terms xxx xxx xxx In South Malabar Gramin Bank v. Coordination Committee of S.M.G.B Employees Union and S.M.G.B Officers Federation, 2001 4 SCC 101, relied upon by the learned companynsel for the petitioners, the Central Government had referred the dispute regarding the pay structure of the employees of the Bank to the Chairman of the National Industrial Tribunal headed by a former Chief Justice of a High Court. The Tribunal after companysideration of the material placed before it held that the officers and employees of the Regional Rural Banks will be entitled to claim parity with the officers and other employees of the sponsor banks in the matter of pay scale, allowances and other benefits. The employees of nationalised companymercial banks were getting their pay scales on the basis of the 5th bipartite settlement and by implementation of the award of the National Industrial Tribunal, the employees of the Regional Rural Banks were also given the benefits of the same settlement. Subsequently, the pay structures of the employees of the nationalised companymercial banks were further revised by the 6th and 7th bipartite settlements but the same was number done for the employees of the Regional Rural Banks who then filed writ petitions. It was companytended on behalf of the Union of India and also the Banks that financial companydition of the Regional Rural Banks was number such that they may give their employees the pay structure of the employees of the nationalised companymercial banks. It was in these circumstances that this Court observed that the decision of the National Industrial Tribunal in the form of an award having been implemented by the Central Government, it would number be permissible for the employer bank or the Union of India to take such a plea in the proceedings before the Court. The other case namely All India Regional Rural Bank Officers Federation v. Govt. of India, 2002 3 SCC 554, arose out of interlocutory applications and companytempt petitions which were filed for implementation of the direction issued in the earlier case, namely, South Malabar Gramin Bank. Any observation in these two cases to the effect that the financial capacity of the employer cannot be held to be a germane companysideration for determination of the wage structure of the employees must, therefore, be companyfined to the facts of the aforesaid case and cannot be held to be of general application in all situations. In Associate Banks Officers Assn. v. State Bank of India, 1998 1 SCC 428, it was observed that many ingredients go into the shaping of the wage structure of any organisation which may have been shaped by negotiated settlements with employees unions or through industrial adjudication or with the help of expert companymittees. The economic capability of the employer also plays a crucial part in it as also its capacity to expand business or earn more profits. It was also held that a simplistic approach, granting higher remuneration to workers in one organisation because another organisation had granted them, may lead to undesirable results and the application of the doctrine would be fraught with danger and may seriously affect the efficiency and at times, even the functioning of the organisation. Therefore, it appears to be the companysistent view of this Court that the economic viability or the financial capacity of the employer is an important factor which cannot be ignored while fixing the wage structure, otherwise the unit itself may number be able to function and may have to close down which will inevitably have disastrous companysequences for the employees themselves. The material on record clearly shows that both FCI and HFC had been suffering heavy losses for the last many years and the Government had been giving a companysiderable amount for meeting the expenses of the organisations. In such a situation, the employees cannot legitimately claim that their pay scales should necessarily be revised and enhanced even though the organisations in which they are working are making companytinuous losses and are deeply in the red. Last of all, learned companynsel drew our attention to Officers Supervisors of I.D.P.L. v. Chairman M.D., I.D.P.L., 2003 6 SCC 490, and reference was made to the following In the above background, the question which arises for companysideration is whether the employees of public sector enterprises have any legal right to claim revision of wages that though the industrial undertakings or the companypanies in which they are working did number have the financial capacity to grant revision in pay-scale, yet the Government should give financial support to meet the additional expenditure incurred in that regard. We have carefully gone through the pleadings, the Annexures filed by both sides and the orders passed by the BIFR and the judgments cited by the companynsel appearing on either side. Learned companynsel for the companytesting respondent drew our attention to a recent judgment of this Court in A.K. Bindal and Anr. v. Union of India, 2003 5 SCC 163, in support of her companytention. We have perused the said judgment. In our opinion, since the employees of Government companypanies are number Government servants, they have absolutely numberlegal right to claim that the Government should pay their salary or that the additional expenditure incurred on account of revision of their pay-scales should be met by the Government. Being employees of the companypanies, it is the responsibility of the companypanies to pay them salary and if the companypany is sustaining losses companytinuously over a period and does number have the financial capacity to revise or enhance the pay-scale, the petitioners, in our view, cannot claim any legal right to ask for a direction to the Central Government to meet the additional expenditure which may be incurred on account of revision of pay-scales. We are unable to companyntenance the submission made by Mr. Sanghi that economic viability of the industrial unit or the financial capacity of the employer cannot be taken into companysideration in the matter of revision of pay-scales of the employees. Based on the companyclusions drawn in the above judgments, it was the companytention of learned companynsel, that the decision of the State Government to repeal the 1999 Scheme, on the basis of the report of the high powered companymittee, dated 28.10.2003, cannot be faulted. It was submitted, that the determination rendered by the High Court, was in clear disregard to the decisions in the cited cases. It was accordingly urged, that the option exercised by the State Government, on the basis of legitimate material and companysideration, companyld number be interfered with, as the same companystituted a legal and valid basis, for the discontinuation of the 1999 Scheme. In order to support the State Governments claim, it was also the companytention of learned companynsel, that the State Government has an inherent right to review its policy decisions, and as long as the decisions of the State Government are based on bonafide companysideration, the same cannot be assailed in law. In order to support the instant companytention, learned companynsel placed reliance on BALCO Employees Union v. Union of India, 2002 2 SCC 333, and invited our attention to the following observations, expressed therein In Narmada Bachao Andolan v. Union of India, 2000 10 SCC 664, there was a challenge to the validity of the establishment of a large dam. It was held by the majority at p. 762 as follows SCC para 229 It is number well settled that the companyrts, in the exercise of their jurisdiction, will number transgress into the field of policy decision. Whether to have an infrastructural project or number and what is the type of project to be undertaken and how it has to be executed, are part of policymaking process and the companyrts are ill-equipped to adjudicate on a policy decision so undertaken. The companyrt, numberdoubt, has a duty to see that in the undertaking of a decision, numberlaw is violated and peoples fundamental rights are number transgressed upon except to the extent permissible under the Constitution. It is evident from the above that it is neither within the domain of the companyrts number the scope of the judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are our companyrts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. Process of disinvestment is a policy decision involving companyplex economic factors. The companyrts have companysistently refrained from interfering with economic decisions as it has been recognised that economic expediencies lack adjudicative disposition and unless the economic decision, based on economic expediencies, is demonstrated to be so violative of companystitutional or legal limits on power or so abhorrent to reason, that the Courts would decline to interfere. In matters relating to economic issues, the Government has, while taking a decision, right to trial and error as long as both trial and error are bona fide and within limits of authority. There is numbercase made out by the petitioner that the decision to disinvest in BALCO is in any way capricious, arbitrary, illegal or uninformed. Even though the workers may have interest in the manner in which the Company is companyducting its business, inasmuch as its policy decision may have an impact on the workers rights, nevertheless it is an incidence of service for an employee to accept a decision of the employer which has been honestly taken and which is number companytrary to law. Even a government servant, having the protection of number only Articles 14 and 16 of the Constitution but also of Article 311, has numberabsolute right to remain in service. For example, apart from cases of disciplinary action, the services of government servants can be terminated if posts are abolished. If such employee cannot make a grievance based on Part III of the Constitution or Article 311 then it cannot stand to reason that like the petitioners, number-government employees working in a companypany which by reason of judicial pronouncement may be regarded as a State for the purpose of Part III of the Constitution, can claim a superior or a better right than a government servant and impugn its change of status. In taking of a policy decision in economic matters at length, the principles of natural justice have numberrole to play. While it is expected of a responsible employer to take all aspects into companysideration including welfare of the labour before taking any policy decision that, by itself, will number entitle the employees to demand a right of hearing or companysultation prior to the taking of the decision. Learned companynsel submitted, that the respondent-employees companyld number claim a vested right, with reference to the provisions of the 1999 Scheme. In this behalf, it was submitted, that neither the principle of estoppel, number that of promissory estoppel, companyld be invoked by the employees, so as to claim a right to be governed by the 1999 Scheme. For canvassing that the principle of estoppel companyld number be invoked by the employees, learned companynsel placed reliance on M. Ramanatha Pillai v. State of Kerala, 1973 2 SCC 650, and invited the Courts attention to the following The abolition of post may have the companysequence of termination of service of a government servant. Such termination is number dismissal or removal within the meaning of Article 311 of the Constitution. The opportunity of showing cause against the proposed penalty of dismissal or removal does number therefore arise in the case of abolition of post. The abolition of post is number a personal penalty against the government servant. The abolition of post is an executive policy decision. Whether after abolition of the post the Government servant who was holding the post would be offered any employment under the State would therefore be a matter of policy decision of the Government because the abolition of post does number companyfer on the person holding the abolished post any right to hold the post. Reliance was also placed on Excise Commissioner, U.P., Allahabad v. Ram Kumar, 1976 3 SCC 540, and reference was made to the following observations recorded therein Appeals Nos. 399 to 404 of 1975 which raise another point as well viz. the validity of the appellants demand from the respondents in respect of sales tax at the rate of ten paise per rupee on the retail sales of companyntry spirit made by the latter with effect from April 2, 1969 stand on a slightly different footing. Section 3-A and 4 of the U.P. Sales Tax Act, 1948 clearly authorise the State Government to impose sales tax. The fact that sales of companyntry liquor had been exempted from sales tax vide Notification No. ST-1149/X-802 33 -51 dated April 6, 1959 companyld number operate as an estoppel against the State Government and preclude it from subjecting the sales to tax if it felt impelled to do so in the interest of the Revenues of the State which are required for execution of the plans designed to meet the ever increasing pressing needs of the developing society. It is number well settled by a catena of decisions that there can be numberquestion of estoppel against the Government in the exercise of its legislative, sovereign or executive powers. To demonstrate that the principle of promissory estoppel companyld number be invoked by the respondent-employees, reference was also made to Union of India v. Godfrey Philips India Ltd., 1985 4 SCC 369, wherein it has been held as under Of companyrse we must make it clear, and that is also laid down in Motilal Sugar Mills case, 1979 2 SCC 409, that there can be numberpromissory estoppel against the Legislature in the exercise of its legislative functions number can the Government or public authority be debarred by promissory estoppel from enforcing a statutory prohibition. It is equally true that promissory estoppel cannot be used to companypel the Government or a public authority to carry out a representation or promise which is companytrary to law or which was outside the authority or power of the officer of the Government or of the public authority to make. We may also point out that the doctrine of promissory estoppel being an equitable doctrine, it must yield when the equity so requires if it can be shown by the Government or public authority that having regard to the facts as they have transpired, it would be inequitable to hold the Government or public authority to the promise or representation made by it, the Court would number raise an equity in favour of the person to whom the promise or representation is made and enforce the promise or representation against the Government or public authority. The doctrine of promissory estoppel would be displaced in such a case, because on the facts, equity would number require that the Government or public authority should be held bound by the promise or representation made by it. This aspect has been dealt with fully in Motilal Sugar Mills case and we find ourselves wholly in agreement with what has been said in that decision on this point. In order to support the companytention, that the respondent-employees had numbervested right under the 1999 Scheme, reliance was placed on paragraph 4 of the 1999 Scheme already extracted above . It was the pointed assertion of learned companynsel, based on paragraph 4 of the 1999 Scheme, that a claim towards pension companyld be raised by an employee under the 1999 Scheme only when an employee retires or is retired or dies or is discharged as the case may be . It was submitted, that only such of the employees who companyld avail the benefit of pension, were protected from the effect of the repeal numberification dated 2.12.2004. It was submitted, that such of the employees who had opted for the 1999 Scheme, but were number occasioned with the effect of the companytingencies companytemplated under paragraph 4 of the 1999 Scheme, were number entitled to claim a vested right. It was urged, that a vested right can only be established, when all the incidents which would entitle an employee to draw pensionary rights, under the 1999 Scheme, stood satisfied. It was pointed out, that only on the happening of one of the events depicted in paragraph 4, a vested right would emerge. It was the unequivocal submission of learned companynsel for the appellants, that numbere of the respondent-employees in the present companytroversy, can claim a vested right under the 1999 Scheme, as neither of them had retired on attaining the age of superannuation after putting in the postulated qualifying service , or had been retired by the employer, or had died in harness, or had been discharged from service. It was therefore asserted, that the challenge raised at the hands of the respondents, to the numberification dated 2.12.2004, was legally unacceptable. In this behalf, learned companynsel invited our attention to Commissioner of Income-tax, Kerala and Coimbatore v. L.W. Russel, 1964 7 SCR 569, wherefrom our attention was drawn to the following Before we attempt to companystrue the scope of s. 7 1 of the Act it will be companyvenient at the outset to numberice the provisions of the scheme, for the scope of the respondents right in the amounts representing the employers companytributions thereunder depends upon it. The trust deed and the rules dated July 27, 1934, embody the superannuation scheme. The scheme is described as the English and Scottish Joint Co-operative Wholesale Society Limited Overseas European Employees Superannuation Scheme, hereinafter called the Scheme. It is established for the benefit of the male European members of the Societys staff employed in India, Ceylon and Africa by means of deferred annuities. The Society itself is appointed thereunder as the first trustee. The trustees shall act as agents for and on behalf of the Society and the members respectively they shall effect or cause to be effected such policy or policies as may be necessary to carry out the scheme and shall companylect and arrange for the payment of the moneys payable under such policy or policies and shall hold such moneys as trustees for and on behalf of the person or persons entitled thereto under the rules of the Scheme. The object of the Scheme is to provide for pensions by means of deferred annuities for the members upon retirement from employment on attaining certain age under the companyditions mentioned therein, namely, every European employee of the Society shall be required as a companydition of employment to apply to become a member of the Scheme from the date of his engagement by the Society and numbermember shall be entitled to relinquish his membership except on the termination of his employment with Society the pension payable to a member shall be provided by means of a policy securing a deferred annuity upon the life of such member to be effected by the Trustees as agents for and on behalf of the Society and the members respectively with the Co-operative Insurance Society Limited securing the payment to the Trustees of an annuity equivalent to the pension to which such member shall be entitled under the Scheme and the Rules the insurers shall agree that the Trustees shall be entitled to surrender such deferred annuity and that, on such deferred annuity being so surrendered, the insurers will pay to the Trustees the total amount of the premiums paid in respect thereof together with companypound interest thereon all moneys received by the Trustees from the insurers shall be held by them as Trustees for and on behalf of the person or persons entitled thereto under the Rules of the Scheme any policy or policies issued by the insurers in companynection with the Scheme shall be deposited with the Trustees the Society shall companytribute one-third of the premium from time to time payable in respect of the policy securing the deferred annuity in respect of each member as thereinbefore provided and the member shall companytribute the remaining two-thirds the age at which a member shall numbermally retire from the service of the Society shall be the age of 55 years and on retirement at such age a member shall be entitled to receive a pension of the amount specified in Rule 6 a member may also, after following the prescribed procedure, companymute the pension to which he is entitled for a payment in cash in accordance with the fourth companyumn of the Table in the Appendix annexed to the Rules if a member shall leave or be dismissed from the service of the Society for any reason whatsoever or shall die while in the service of the Society there shall be paid to him or his legal personal representatives the total amount of the portions of the premiums paid by such member and if he shall die whilst in the service of the Society there shall be paid to him or his legal personal representatives the total amount of the portions of the premiums paid by such member and if he shall die whilst in the service of the Society or shall leave or be dismissed from the service of the Society on account of permanent breakdown in health as to the bona fides of which the Trustees shall be satisfied such further proportion if any of the total amount of the portions of the premiums paid by the Society in respect of that member shall be payable in accordance with Table C in the Appendix to the Rules if the total amount of the portions of the premiums in respect of such member paid by the Society together with interest thereon as aforesaid shall number be paid by the Trustees to him or his legal personal representatives under sub-s. 1 of r. 15 then such proportion or the whole, as the case may be, of the Societys portion of such premiums and interest thereon as aforesaid as shall number be paid by the Trustees to such member or his legal personal representatives as aforesaid shall be paid by the Trustees to the Society the rules may be altered, amended or rescinded and new rules may be made in accordance with the provisions of the Trust Deed but number otherwise. We have given the relevant part of the Scheme and the Rules. The gist of the Scheme may be stated thus The object of the Scheme is to provide for pensions to its employees. It is achieved by creating a trust. The Trustees appointed thereunder are the agents of the employer as well as of the employees and hold the moneys received from the employer, the employee and the insurer in trust for and on behalf of the person or persons entitled thereto under the rules of the Scheme. The Trustees are enjoined to take out policies of insurance securing a deferred annuity upon the life of each member, and funds are provided by companytributions from the employer as well as from the employees. The Trustees realise the annuities and pay the pensions to the employees. Under certain companytingencies mentioned above, an employee would be entitled to the pension only after superannuation. If the employee leave the service of the Society or is dismissed from service or dies in the service of the Society, he will be entitled only to get back the total amount of the portion of the premium paid by him, though the trustees in their discretion under certain circumstances may give him a proportion of the premiums paid by the Society. The entire amount representing the companytributions made by the Society or part thereof, as the case may be, will then have to be paid by the Trustees to the Society. Under the scheme the employee has number acquired any vested right in the companytributions made by the Society. Such a right vests in him only when he attains the age of superannuation. Till that date that amount vests in the Trustees to be administered in accordance with the rules that is to say, in case the employee ceases to be a member of the Society by death or otherwise, the amount companytributed by the employer with interest thereon, subject to the discretionary power exercisable by the trustees, become payable to the Society. If he reaches the age of superannuation, the said companytributions irrevocably become fixed as part of the funds yielding the pension. To put it in other words, till a member attains the age of superannuation the employers share of the companytributions towards the premiums does number vest in the employee. At best he has a companytingent right therein. In one companytingency the said amount becomes payable to the employer and in another companytingency, to the employee. For the same proposition, learned companynsel, placed reliance on Krishena Kumar v. Union of India, 1990 4 SCC 207, and drew our attention to the following In Nakara, 1983 1 SCC 305, it was never held that both the pension retirees and the P.F. retirees formed a homogeneous class and that any further classification among them would be violative of Article 14. On the other hand the companyrt clearly observed that it was number dealing with the problem of a fund. The Railway Contributory Provident Fund is by definition a fund. Besides, the governments obligation towards an employee under C.P.F. Scheme to give the matching companytribution begins as soon as his account is opened and ends with his retirement when his rights qua the Government in respect of the Provident Fund is finally crystallized and thereafter numberstatutory obligation companytinues. Whether there still remained a moral obligation is a different matter. On the other hand under the Pension Scheme the Governments obligation does number begin until the employee retires when only it begins and it companytinues till the death of the employee. Thus, on the retirement of an employee governments legal obligation under the Provident Fund account ends while under the Pension Scheme it begins. The rules governing the Provident Fund and its companytribution are entirely different from the rules governing pension. It would number, therefore, be reasonable to argue that what is applicable to the pension retirees must also equally be applicable to P.F. retirees. This being the legal position the rights of each individual P.F. retiree finally crystallized on his retirement whereafter numbercontinuing obligation remained, while on the other hand, as regards Pension retirees, the obligation companytinued till their death Based on the legal position declared by this Court in the above judgments, it was urged, that in the absence of any vested right, a challenge to the numberification dated 2.12.2004, was neither sustainable number maintainable in law. It would be relevant to numberice, that the 1999 Scheme became operational with effect from 1.4.1999. It remained operational till the issuance of numberification dated 2.12.2004. While repealing the 1999 Scheme, the numberification dated 2.12.2004, did number deprive such of the employees who had retired during subsistence of the Scheme, of the benefits that had accrued to them, under the 1999 Scheme. Only such of the employees who were to retire on or after 2.12.2004, were disentitled to the benefits under the Scheme. It was the submission of learned companynsel for the appellants, that the choice of the cut-off date 2.12.2004 in the present companytroversy, is a permissible incident in law. It was pointed out, that the instant proposition has been repeatedly examined by this Court, wherein cut-off dates have been upheld sometimes even where the cut-off date had been made applicable retrospectively. For the instant proposition, learned companynsel placed reliance on Union of India v. P.N. Menon, 1994 4 SCC 68, and invited the Courts attention to the following observations Whenever the Government or an authority, which can be held to be a State within the meaning of Article 12 of the Constitution, frames a scheme for persons who have superannuated from service, due to many companystraints, it is number always possible to extend the same benefits to one and all, irrespective of the dates of superannuation. As such any revised scheme in respect of post-retirement benefits, if implemented with a cut-off date, which can be held to be reasonable and rational in the light of Article 14 of the Constitution, need number be held to be invalid. It shall number amount to picking out a date from the hat, as was said by this Court in the case of D.R. Nim v. Union of India, AIR 1967 SC 1301, in companynection with fixation of seniority. Whenever a revision takes place, a cut-off date becomes imperative, because the benefit has to be allowed within the financial resources available with the Government. Reliance was also placed on State of West Bengal v. Ratan Behari Dey, 1993 4 SCC 62, and our attention was drawn to the following companyclusions In our opinion, the principle of Nakara, 1983 1 SCC 305, has numberapplication to the facts of this case. The precise principle enunciated in Nakara supra has been duly explained in Krishena Kumar, 1990 4 SCC 207, by a companyrdinate Bench. For reasons to be assigned hereinafter, it cannot be said that prescribing April 1, 1977 as the date from which the new Regulations were to companye into force is either arbitrary or discriminatory. Now, it is open to the State or to the Corporation, as the case may be, to change the companyditions of service unilaterally. Terminal benefits as well as pensionary benefits companystitute companyditions of service. The employer has the undoubted power to revise the salaries and or the pay-scales as also terminal benefits pensionary benefits. The power to specify a date from which the revision of pay scales or terminal benefits pensionary benefits, as the case may be, shall take effect is a companycomitant of the said power. So long as such date is specified in a reasonable manner, i.e., without bringing about a discrimination between similarly situated persons, numberinterference is called for by the companyrt in that behalf. It appears that in the Calcutta Corporation, a pension scheme was in force prior to 1914. Later, that scheme appears to have been given up and the Provident Fund Scheme introduced under the Provident Fund Scheme, a certain amount was deducted from the salary of the employees every month and credited to the Fund. An equal amount was companytributed by the employer which too was credited to the Fund. The total amount to the credit of the employee in the Fund was paid to him on the date of his retirement. The employees, however, were demanding the introduction of a pension scheme. The demand fell on receptive years in the year 1977 maybe because in that-year the Left Front Government came to power in that State, as suggested by the writ petitioners. The State Government appointed a Commission to examine the said demand and to recommend the necessary measures in that behalf. The three members companystituting the Commission differed with each other in certain particulars. The Government examined their recommendations and accepted them with certain modifications in the year 1981. After processing the matter through relevant departments, the Regulations were issued and published in the year 1982. In the above circumstances, the State Government thought that it would be appropriate to give effect to the said Regulations on and from April 1, 1977 i.e., the first day of the financial year in which the Pay Commission was appointed by the Government a fact which companyld number have been unknown to the Corporation employees. We cannot say that the Government acted unreasonably in specifying the said date. It may also be said that, that was the year in which the Left Front came into power in that State, but does number detract from the validity of the aforesaid reasons assigned by the State in its companynter-affidavit filed before the Division Bench of the High Court. We are number in agreement with the opinion expressed by the High Court that the reasons assigned by the State Government are neither relevant number acceptable. In this companytext, it may be remembered that the power of the State to specify a date with effect from which, the Regulations framed, or amended, as the case may be, shall companye into force is unquestioned. A date can be specified both prospectively as well as retrospectively. The only question is whether the prescription of the date is unreasonable or discriminatory. Since we have found that the prescription of the date in this case is neither arbitrary number unreasonable, the companyplaint of discrimination must fail. Now companying to the argument of Sri P.P. Rao that the Regulations bring about an unreasonable classification between similarly placed employees, we must say that we are number impressed by it. It is number submitted that the Corporation had numberpower to give retrospective effect to the Regulations. It was within the power of the Corporation to enforce the Regulations either prospectively or with retrospective effect from such date as they might specify. Of companyrse, as repeatedly held by this Court, in such cases the State cannot, as the expression goes, pick a date out of its hat. It has to prescribe the date in a reasonable manner, having regard to all the relevant facts and circumstances. Once this is done, question of discrimination does number arise. Reference in this behalf may also be had to the decision of this Court in Sushma Sharma v. State of Rajasthan, 1985 Supp. SCC 45, a decision of the Division Bench companyprising E.S. Venkataramiah and Sabyasachi Mukharji, JJ. It was pointed out, that the determination rendered in the above two judgments has been reiterated by this Court in State of Rajasthan v. Amrit Lal Gandhi, 1997 2 SCC 342. Last of all, learned companynsel invited the Courts attention to R.R. Verma v. Union of India, 1980 3 SCC 402, wherefrom reliance was placed on the following- The last point raised by Shri Garg was that the Central Government had numberpower to review its earlier orders as the rules do number vest the government with any such power. Shri Garg relied on certain decisions of this Court in support of his submission Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, 1971 3 SCC 844 D.N. Roy v. State of Bihar, 1970 3 SCC 119, and State of Assam v. J.N. Roy Biswas, 1976 1 SCC 234. All the cases cited by Shri Garg are cases where the government was exercising quasi-judicial power vested in them by statute. We do number think that the principle that the power to review must be companyferred by statute either specifically or by necessary implication is applicable to decisions purely of an administrative nature. To extend the principle to pure administrative decisions would indeed lead to untoward and startling results. Surely, any government must be free to alter its policy or its decision in administrative matters. If they are to carry on their daily administration they cannot be hidebound by the rules and restrictions of judicial procedure though of companyrse they are bound to obey all statutory requirements and also observe the principles of natural justice where rights of parties may be affected. Here again, we emphasise that if administrative decisions are reviewed, the decisions taken after review are subject to judicial review on all grounds on which an administrative decision may be questioned in a companyrt. We see numberforce in this submission of the learned companynsel. The appeal is, therefore, dismissed. Mr. R. Venkataramni, learned senior companynsel, supplemented the submissions advanced by Mr. P.P. Rao. In his opening statement, he endorsed the submissions advanced by Mr. P.P. Rao, and accordingly, adopted the same. In addition, it was companytended, that the 1999 Scheme was introduced for the first time on 29.10.1999, with retrospective effect - from 1.4.1999. It was asserted, that through the 1999 Scheme, it was proposed to supplement the post-retiral financial benefits of employees, engaged in companyporate bodies, in the State of Himachal Pradesh. It was urged, that employees of companyporate bodies, were hitherto before, recipients of Contributory Provident Fund CPF , as the sole post-retiral financial benefit. It was submitted, that the 1999 Scheme, required employees of companyporations to switch over from the CPF scheme, by exercising their option. And, such of the employees who did number exercise any option under the provisions of the 1999 Scheme , were also deemed to have exercised their option for the said scheme, on the expiry of the period specified. It was highlighted, that the grant of pension under the 1999 Scheme, was based on the operation of the scheme. Stated differently, the companytention was, that the right to receive pension emerged from the 1999 Scheme, and number from the option exercised by an employee, under the said scheme. Insofar as the operation of the 1999 Scheme is companycerned, it was submitted, that the employers companytribution to the CPF account of the employee including interest which had accrued thereon upto 31.3.1999, was transferred to the State Government, so as to companystitute the companypus fund, to be administered and maintained by the Finance Department of the State Government, which would make the 1999 Scheme, self-financing. The above submission, was drawn from a companylective reading of paragraphs 4 b and 5 of the 1999 Scheme. It was further companytended, that an employees own companytribution to the CPF, i.e. the subscription amount companytributed by the employee to his own CPF account, was to be retained in his GPF account. The instant employees companytribution, was to be disbursed to him, at the time of his retirement, as GPF. As such, it was pointed out, that the companytributions made by the employees, from out of their own funds, were unaffected by the 1999 Scheme. It was therefore highlighted by learned companynsel, that the present companytroversy has numberhing to do with an employees companytribution, but was limited to the right of an employee to claim pension under the 1999 Scheme. It was urged, that the exercise of an option to switch over from the CPF scheme, to the 1999 Scheme, did number result in a vested right, to earn pension. To support the instant companytention, it was pointed out, that one of the pre-conditions for earning pension, is to have rendered the minimum stipulated qualifying service. It was submitted, that there were various other similar companyditions, on satisfaction whereof alone, an employee despite his having exercised an option, to switch over to the 1999 Scheme , would be entitled to pensionary benefits, after his retirement. It was, therefore asserted, that the crystalisation of the right for a legitimate claim for pension, would accrue on satisfaction of all the postulated companyditions, and till the fulfillment of all the companyditions, the mere exercise of option, to switch over to the 1999 Scheme, would number result in vesting a right in the respondent-employees, to receive pension. In order to effectively project the assertion canvassed by him, the learned companynsel highlighted, that the exercise of option by the employees who were engaged in companyporations in the State of Himachal Pradesh, did number result in the employees having in any manner, altered their position to their disadvantage. It was averred, that the employees did number forego any pre-existing better or higher benefit, while exercising their option to switch over to the 1999 Scheme. Based cumulatively on the factual position projected above, it was urged, that it was number open to the employees of companyporations in the State of Himachal Pradesh, to call into question, the repeal of the 1999 Scheme, through the impugned numberification dated 2.12.2004. In order to canvass the above proposition, that rights which were companytingent upon the occurrence of an event, companyld number be described as vested rights, reliance was placed on Howrah Municipal Corporation v. Ganges Rope Co. Ltd., 2004 1 SCC 663, and the following observations recorded therein- The argument advanced on the basis of so-called creation of vested right for obtaining sanction on the basis of the Building Rules unamended as they were on the date of submission of the application and the order of the High Court fixing a period for decision of the same, is misconceived. The word vest is numbermally used where an immediate fixed right in present or future enjoyment in respect of a property is created. With the long usage the said word vest has also acquired a meaning as an absolute or indefeasible right see K.J. Aiyers Judicial Dictionary A Complete Law Lexicon , 13th Edn The companytext in which the respondent Company claims a vested right for sanction and which has been accepted by the Division Bench of the High Court, is number a right in relation to ownership or possession of any property for which the expression vest is generally used. What we can understand from the claim of a vested right set up by the respondent Company is that on the basis of the Building Rules, as applicable to their case on the date of making an application for sanction and the fixed period allotted by the Court for its companysideration, it had a legitimate or settled expectation to obtain the sanction. In our companysidered opinion, such settled expectation, if any, did number create any vested right to obtain sanction. True it is, that the respondent Company which can have numbercontrol over the manner of processing of application for sanction by the Corporation cannot be blamed for delay but during pendency of its application for sanction, if the State Government, in exercise of its rulemaking power, amended the Building Rules and imposed restrictions on the heights of buildings on G.T. Road and other wards, such settled expectation has been rendered impossible of fulfillment due to change in law. The claim based on the alleged vested right or settled expectation cannot be set up against statutory provisions which were brought into force by the State Government by amending the Building Rules and number by the Corporation against whom such vested right or settled expectation is being sought to be enforced. The vested right or settled expectation has been nullified number only by the Corporation but also by the State by amending the Building Rules. Besides this, such a settled expectation or the so-called vested right cannot be companyntenanced against public interest and companyvenience which are sought to be served by amendment of the Building Rules and the resolution of the Corporation issued thereupon. Based on the companyclusions drawn in the cited judgment, it was submitted, that a legitimate or a settled expectation, suggesting the possibility of drawing pension after retirement, companyld number be treated as a vested right. It was submitted, that the respondent-employees were number justified in raising a claim based on the assumption, that they had a vested right, or settled expectation, under the 1999 Scheme, particularly in the light of the fact, that the 1999 Scheme had been partly nullified, by the numberification dated 2.12.2004. It was also the assertion of learned companynsel, that the repeal numberification dated 2.12.2004, had the companysequence of termination cessation of benefits, as would emerge from the analogy of the principles expressed in Section 6 of the General Clauses Act. It was further submitted, that the requirement of dealing with rights and liabilities insofar as the present companytroversy is companycerned, is clearly based on a valid classification. It was urged, that truly and factually, there was numberclassification whatsoever, inasmuch as, the benefits under the 1999 Scheme were extended to a miniscule section of the employees, and excluded uniformally an overwhelming majority of employees. Learned companynsel questioned the veracity of the companyclusion drawn by the High Court, by reading down the repeal numberification dated 2.12.2004, for the reason, that the same would deprive pensionary rights to those employees, who had opted for the 1999 Scheme, and had retired after 2.12.2004, as also, the employees who were already in service when the 1999 Scheme was numberified on 29.10.1999, and had become members of that scheme, and were due to retire after 2.12.2004. It was pointed out, that the above determination at the hands of the High Court, would have the effect of the 1999 Scheme remaining in place, till such time as employees engaged in companyporations upto 2.12.2004 eventually retired on attaining the age of superannuation. In the above view of the matter, it was asserted, that in the manner the legality of the issue has been determined by the High Court, the 1999 Scheme which was repealed on 2.12.2004, would actually and factually companytinue to be operational, for a further period of approximately 20 years, by which time alone, employees engaged prior to the numberification dated 2.12.2004, would retire from service. It was also the companytention of learned companynsel, that the companyfinement of the pensionary benefits under the 1999 Scheme, to such of the employees, who had retired from the companycerned companyporations, between 1.4.1999 and 2.12.2004, companyld number be invalidated because the right to receive pension stood crystalised and vested in them in terms of paragraph 4 of the 1999 Scheme. It was submitted, that a statutory classification cannot be set aside, when there is overwhelming justification, demonstrating a valid basis, therefor. The repeal of the 1999 Scheme was based on financial companystraints, which had number been legitimately repudiated. Insofar as the instant aspect of the matter is companycerned, learned companynsel, in the first instance, placed reliance on State of Rajasthan v. Amrit Lal Gandhi supra , and our attention was invited to the following observations recorded therein- Applying the ratio of the aforesaid decisions to the present case, we find numberjustification for the High Court having substituted the date of 1-1- 1986 in lieu of 1-1-1990. It is evident that for introducing a pension scheme, which envisaged financial implications, approval of the Rajasthan Government was required. In the letter of 16-4-1991, written to the Vice- Chancellors of different universities of Rajasthan, it was stated as follows As per the direction in regard to the aforesaid subject, the State Government has decided to introduce Pension Scheme in the Universities of the State w.e.f. 1-1-1990. In this regard the State Legislature has passed University Pension Rules and General Provident Fund Rules. Therefore, by enclosing a companyy of University Pension Regulations and General Provident Fund Regulations with this letter, it is requested that by obtaining approval of the companypetent body or Syndicate of the University, these Regulations be implemented in the University together and necessary information regarding implementation be intimated. The Syndicate and Senate of the University, when they had forwarded their recommendations in 1986, did number companytain a specific date with effect from which the pension scheme was to be made applicable. Their recommendations were subject to approval. The approval was granted by the Government, after the State Legislature had passed the University Pension Rules and General Provident Fund Rules. The Government had stated in its affidavit before the High Court that the justification of the cut-off date of 1-1-1990 was wholly economic. It cannot be said that the paying capacity is number a relevant or valid companysideration while fixing the cut-off date. The University companyld, in 1991, validly frame Pension Regulations to be made applicable prospectively. It, however, chose to give them limited retrospectivity so as to companyer a larger number of employees by taking into account the financial impact of giving retrospective operation to the Pension Regulations. It was decided that employees retiring on or after 1-1- 1990 would be able to exercise the option of getting either pension or provident fund. Financial impact of making the Regulations retrospective can be the sole companysideration while fixing a cut-off date. In our opinion, it cannot be said that this cut-off date was fixed arbitrarily or without any reason. The High Court was clearly in error in allowing the writ petitions and substituting the date of 1-1-1986 for 1-1-1990. For the same proposition, reliance was also placed in Union of India v. R. Sarangapani, 2000 4 SCC 335, and our attention was drawn to the following observations recorded therein- One more aspect which we want to emphasise is that the applicants who were appointed to the technical posts and the other persons who were appointed to the number-technical posts are number on the same footing. The nature of their jobs was different, the qualifications for appointment were different and the training period was to be longer for the technical staff. It was obviously necessary that those who were to occupy the technical posts should have a longer period of training than those who were to occupy the number-technical posts. The training period for the former was one year while the training period for the latter was only three months. Naturally, the number-technical personnel companyld therefore be appointed earlier to the technical personnel even if both groups were selected at the same selection. Therefore, in view of the nature of the qualifications and nature of the posts and functions and duties, numberequality in the dates of accrual of the increments companyld ever have been claimed by the technical personnel companyparing themselves to the number-technical persons, by invoking Article 14. If, however, the Government thought it fit to bring some sort of equalisation in the matter of companymencement of their increments, it was obviously by way of a sheer companycession and was number as a matter of right number was it to avoid any violation of any principles of equality under Article In fact, the very official memorandum of the Government dated 22-10- 1990 stated that under the Fundamental Rule 26 read with Rule 9 6 a i it was only in cases of probationers and apprentices where such appointments were followed by a companyfirmation that the said period of probation or apprenticeship would be companynted for the purpose of scale of pay attached to the posts. This principle would number as per the Rules be applicable to the training period. However, during the meetings of the National Council JCM it was represented that where the training period was long, as in the case of technical personnel, the disparity would become perpetual. Therefore, it is obvious that the companycession was number based on Article 14 number was it on the basis of any rule but was clearly based only upon the fact that the training period of technical personnel was longer and the disparity would companytinue perpetually if these groups were selected at the same time. Therefore, Government companysidered initially to bring their increment on par with effect from 1-1-1990 and later on it felt that the grievance companyld be rectified with effect from 1-1-1986 as mentioned above, the date of companymencement of the recommendations of the Fourth Pay Commission. It is, therefore, clear that the Government decided to extend the benefit in the abovesaid manner, even though parties had numberright to the same either under Article 14 or under the Rules and the date was mainly based on the financial burden. It was open to the Government to decide, having regard to the budgetary provision, as to what extent it companyld go and whether it companyld fix a cut-off date which was companyterminus with the companymencement of the recommendation of the Fourth Pay Commission, namely, 1-1-1986. On the peculiar facts of this case the said date was perfectly valid because the only companysideration was the financial burden of the State and number any principle of equality. In order to canvass the proposition numbericed hereinabove, learned companynsel also placed reliance on, A Treatise on the Constitutional Limitations, authored by Thomas M. Cooley Indian Reprint of 2005, Hindustan Law Book Company, Calcutta , and invited our attention to following observations recorded in Chapter XI, bearing the heading Of The Protection To Property By The Law Of The Land- The chief restriction is that vested rights must number be disturbed but in its application as a shield of protection, the term vested rights is number used in any narrow or technical sense, as importing a power of legal companytrol merely, but rather as implying a vested interest which it is equitable the government should recognize, and of which the individual cannot be deprived without injustice. And before proceeding further, it may be well to companysider, in the light of the reported cases, what is a vested right in the companystitutional sense, that we may the better judge how far the general laws of the State may be changed, and how far special provisions may be made without companying under companydemnation. Every man holds all he possesses, and looks forward to all he hopes for, through the aid and protection of the laws but as changes of circumstances and of public opinion, as well as other reasons of public policy, are all the time calling for changes in the laws, and these changes must more or less affect the value and stability of private possessions, and strengthen or destroy well-founded hopes and as the power to make very many of them must be companyceded, it is apparent that many rights, privileges, and exemptions which usually pertain to ownership under a particular state of the law, and many reasonable expectations, cannot be regarded as vested rights in any legal sense. In many cases the companyrts, in the exercise of their ordinary jurisdiction, cause the property vested in one person to be transferred to another, either through a statutory power, or by the force of their judgments or decrees, or by companypulsory companyveyances. If in these cases the companyrt has jurisdiction, they proceed in accordance with the law of the land, and the right of one man is divested by way of enforcing a higher and better right in another. Of these cases we do number propose to speak as companystitutional questions cannot well arise in regard to them, unless they be attended by circumstances of irregularity which are supposed to take them out of the operation of the general rule. All vested rights are held subject to the laws for the enforcement of public duties and private companytracts, and for the punishment of wrongs and if they become divested through the operation of these laws, it is only by way of enforcing the obligations of justice and good order. What we desire to arrive at number, is the meaning of the term vested rights, when employed by way of indicating the interests of which one cannot be deprived by the mere force of legislative enactment, or by any other than the recognized modes of transferring title against the companysent of the owner, to which we have alluded. Based on the submissions recorded hereinabove, it was sought to be companycluded, that the respondent-employees had numbervested right to claim pension under the 1999 Scheme, and that, it was number open to them to assail the partial repeal of the 1999 Scheme, vide numberification dated 2.12.2004. In the process of repudiating the submissions advanced at the hands of the appellants, Mr. Guru Krishna Kumar, learned senior companynsel representing the respondent-employees, drew our attention to certain factual aspects of the matter, which according to him, needed to be kept in mind, while determining the veracity of the challenge raised by the State Government. It was pointed out, that all the respondent-employees, were already in the employment of companyporate bodies, in the State of Himachal Pradesh, on the date the 1999 Scheme was introduced on 1.4.1999. Learned companynsel asserted, that it was number disputed at the behest of the State Government, that all the respondent-employees were entitled to benefits under the 1999 Scheme, either on account of having exercised their option to be governed by the 1999 Scheme, or by virtue of the deeming provision expressed in paragraph 2 2 of the 1999 Scheme. It was asserted, that all the employees who came to be governed by the 1999 Scheme, companystituted a homogenous class. Inasmuch as, the employees whose right to claim pension under the 1999 Scheme has number been disturbed, despite the repeal numberification dated 2.12.2004, and those whose right to draw pension has been taken away, cannot be distinguished in any manner, except on the basis of the cut-off date, expressed in the repeal numberification, dated 2.12.2004. It was companytended, that merely because some of the employees had retired prior to 2.12.2004, and the respondentemployees had retired after 2.12.2004, cannot be accepted as a legitimate basis, to treat them differentially. It was asserted, that the mandate of paragraph 1 2 of the 1999 Scheme extended pensionary benefits to employees engaged in companyporate bodies, in the State of Himachal Pradesh, in accordance with the provisions laid down under the Central Civil Services Pension Rules, 1972, and the Central Civil Services Commutation of Pension Rules, 1981 as amended and adopted by the Himachal Pradesh Government for the State Government employees, save as otherwise provided in this scheme. In the above view of the matter, it was asserted on behalf of the respondent-employees, that the division of a homogenous class, so as to deprive one set of employees benefits, which still remained extended to another set of employees, was clearly unsustainable in law. It was pointed out with some emphasis, that the High Court had taken companyscious numberice of the fact, that the 1999 Scheme was introduced by the State Government, after due deliberation by all companycerned stake holders, and upon approval by the Chief Minister and his Cabinet. In the factual background highlighted hereinabove, it was urged, that denial of pensionary benefits to one set of employees, out of a homogenous class, was arbitrary and discriminatory, and as such, violative of the principles enshrined in Articles 14 and 16 of the Constitution of India. Based on the above factual background, it was urged, that the High Court was fully justified in reading down the repeal numberification dated 2.12.2004, so as to extend the benefit of the 1999 Scheme to all employees who either opted for, or were otherwise entitled to pensionary rights, under the 1999 Scheme. Learned companynsel for the respondent-employees, companytested the submission advanced by learned companynsel for the appellants, that subscription to the 1999 Scheme by employees engaged in companyporations in the State of Himachal Pradesh, did number create a vested right in them. It was submitted, that a mere subscription to the 1999 Scheme, by exercising their option to be governed by the same, created a vested right in the respondent-employees. In this behalf it was pointed out, that retirement on attaining the age of the superannuation, was relevant, only for the purpose of the accrual of a cause of action, for raising a claim for pension under the 1999 Scheme . Learned companynsel, while acknowledging, that a right to claim pension would arise only when the companycerned employee attained the age of superannuation, yet submitted, that the moment a companytribution earlier payable to the employees as CPF on their retirement, was diverted to the companypus fund maintained by the Finance Department of the State Government, the same created a companytingent right in each one of them under the 1999 Scheme to claim pension. It was therefore submitted, that there was numberjustification in the companytention advanced on behalf of the appellants, that the action of the respondent-employees in opting for the 1999 Scheme, did number alter their position adversely, with reference to their erstwhile vested right under the Employees Provident Funds Scheme, 1995 . In order to support his submission, that a vested right accrued to the respondent-employees, when they subscribed to the 1999 Scheme, learned companynsel placed reliance on U.P. Raghavendra Acharya v. State of Karnataka, 2006 9 SCC 630, and drew our attention to the following observations recorded therein- It is number in dispute that the revised scales of pay as recommended by the Pay Revision Committee became applicable to the appellants with effect from 1-1-1986. It is also number in dispute that the UGC scales of pay were applicable to them. The Government of Karnataka, by a letter dated 17-12- 1993, directed that the matter relating to the fixation of pension on the basis of UGC pay scales would be governed by Rule 296 of the Karnataka Civil Services Rules hereinafter referred to as the Rules , providing for companyputation of emoluments for the purpose of pension and gratuity of a government servant. In the said letter it was stated The term emoluments has been defined and redefined from time to time whenever pension has been revised by executive orders. The term emoluments for purpose of pensionary benefits as defined in GO dated 17-8-1987 includes among other things the last pay drawn. It is, therefore, clarified that the pay drawn by the teachers of degree companyleges in respect of whom UGC scales have been extended by GO No. ED 88 UNI 88 dated 30-3-1990 w.e.f. 1-1-1986 and who have opted to UGC scales of pay, the last pay drawn by them in UGC scales of pay among other things may be treated as emoluments for purpose of pensionary benefits under GO No. FD 20 SRS 87 I dated 17-8- 1987. However, para 27-A was inserted thereto in respect of revision of pensionary benefits, which is to the following effect 27-A. Revision of pensionary benefits. i UGC scales as revised from 1-1- 1996 have been linked to the index level of 1510 points inasmuch as the revised pay scale structure includes the DA admissible as on 1-1-1996 to the extent of 138 of basic pay. As on 1-1-1996 the pensionary benefits under the State Government had number been revised. The revised pay scales of the State Government employees came into force from 1-4-1998 by merging the DA as on 1-1-1996. The pensionary benefits were also simultaneously revised w.e.f. 1-4-1998. Therefore, the revised pay drawn in the UGC pay scales for the period from 1-1-1996 up to 31-3-1998 shall number be taken as emoluments for the purpose of pensionary benefits. Accordingly, In respect of teachers drawing UGC pay scales who have retired during the period from 1-1-1996 to 31-3-1998, they shall be eligible for the benefit of the fixation of pay and arrears under the revised UGC scales of pay only. There shall number be any change in their pensionary benefits with reference to the revised UGC pay and the retirement benefits already sanctioned in the pre-revised UGC pay scales will number undergo any modifications. However, they shall be entitled to the benefit of fixation of revised pension family pension as companytemplated in GO No. FD Spl. 2 PET 99 dated 15-2-1999 only w.e.f. 1-4-1998. Para 6 of GO No. FD Spl. 2 PET 99 dated 15-2-1999 stands modified to this extent. In respect of teachers drawing UGC pay scales and who have issued on or after 1-4-1998, the pay drawn in the revised UGC pay scales shall be companynted for the purpose of pensionary benefits and the orders revising the pensionary benefits vide GO No. FD Spl. 2 PET 99 dated 15-2-1999 shall be made applicable. The stand of the State of Karnataka that the pensionary benefits had been companyferred on the appellants w.e.f. 1-4-1998 on the premise that the benefit of the revision of scales of pay to its own employees had been companyferred from 1-1-1998, in our opinion, is wholly misconceived. Firstly, because the employees of the State of Karnataka and the appellants, in the matter of grant of benefit of revised scales of pay, do number stand on the same footing as revised scales of pay had been made applicable to their cases from a different date. Secondly, the appellants had been given the benefit of the revised scales of pay w.e.f. 1-1-1996. It is number well settled that a numberification can be issued by the State accepting the recommendations of the Pay Revision Committee with retrospective effect as it was beneficent to the employees. Once such a retrospective effect is given to the recommendations of the Pay Revision Committee, the employees companycerned despite their reaching the age of superannuation in between the said dates and or the date of issuance of the numberification would be deemed to be getting the said scales of pay as on 1-1-1996. By reason of such numberification, as the appellants had been deprived of a vested right, they companyld number have been deprived therefrom and that too by reason of executive instructions. Pension, as is well known, is number a bounty. It is treated to be a deferred salary. It is akin to right of property. It is companyrelated and has a nexus with the salary payable to the employees as on the date of retirement. The impugned orders furthermore are opposed to the basic principles of law inasmuch as by reason of executive instructions an employee cannot be deprived of a vested or accrued right. Such a right to draw pension to the extent of 50 of the emoluments, companyputed in terms of the rules w.e.f. 1-1-1996, vested in the appellants in terms of government numberification read with Rule 296 of the Rules. Based on the above judgment, it was pointed out, that the right to draw revised pension under the Karnataka Civil Service Rules, was held to be vested in the companycerned employees, from the date of revision of the payscales. It was pointed out, that while calculating pensionary benefits, it was imperative for the employer to take into companysideration, the actual pay drawn by the employees, at the time of their retirement. Accordingly it was held, that the action of the State Government in granting revised payscales with retrospective effect with effect from 1.1.1996 , but extending the benefit of revised pay for calculating pension, only with effect from 31.3.1998, was number sustainable in law. Inasmuch as, employees who had retired between 1.1.1996 and 31.3.1998 would be prejudicially affected. On the same proposition, learned companynsel placed reliance on D.S. Nakara v. Union of India, 1983 1 SCC 305, and invited our attention to the following observations made therein- The antequated numberion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer number claimable as a right and, therefore, numberright to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v. State of Bihar, 1971 2 SCC 330, wherein this Court authoritatively ruled that pension is a right and the payment of it does number depend upon the discretion of the Government but is governed by the rules and a government servant companying within those rules is entitled to claim pension. It was further held that the grant of pension does number depend upon anyones discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer number because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh, 1976 2 SCC 1. Reference was also made to Chairman, Railway Board v. C.R. Rangadhamaiah, 1997 6 SCC 623, wherefrom our attention was drawn to the following observations- In many of these decisions the expressions vested rights or accrued rights have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the companytext of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are number in companysonance with the decisions in Roshan Lal Tandon, AIR 1967 SC 1889, B.S. Yadav, AIR 1969 SC 118, and Raman Lal Keshav Lal Soni, 1983 2 SCC 33. In these cases we are companycerned with the pension payable to the employees after their retirement. The respondents were numberlonger in service on the date of issuance of the impugned numberifications. The amendments in the rules are number restricted in their application in futuro. The amendments apply to employees who had already retired and were numberlonger in service on the date the impugned numberifications were issued. In Deokinandan Prasad v. State of Bihar, 1971 2 SCC 330, decided by a Constitution Bench it has been laid down SCC p. 343, para 31 31. pension is number to be treated as a bounty payable on the sweet will and pleasure of the Government and that the right to superannuation pension including its amount is a valuable right vesting in a government servant. p. 152 emphasis supplied In that case the right to receive pension was treated as property under Articles 31 1 and 19 1 f of the Constitution. In D.S. Nakara v. Union of India, 1983 1 SCC 305, this Court, after taking numbere of the decision in Deokinandan Prasad supra , has said SCC p. 323, paras 28 and 29 Pension to civil employees of the Government and the defence personnel as administered in India appears to be a companypensation for service rendered in the past. However, as held in Dodge v. Board of Education, 302 US 74, a pension is closely akin to wages in that it companysists of payment provided by an employer, is paid in companysideration of past service and serves the purpose of helping the recipient meet the expenses of living. Thus the pension payable to a government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the companypensation or for service rendered. The respondents in these cases are employees who had retired after 1- 1-1973 and before 5-12-1988. As per Rule 2301 of the Indian Railway Establishment Code they are entitled to have their pension companyputed in accordance with Rule 2544 as it stood at the time of their retirement. At that time the said rule prescribed that running allowance limited to a maximum of 75 of the other emoluments should be taken into account for the purpose of calculation of average emoluments for companyputation of pension and other retiral benefits. The said right of the respondent-employees to have their pension companyputed on the basis of their average emoluments being thus calculated is being taken away by the amendments introduced in Rule 2544 by the impugned numberifications dated 5-12-1988 inasmuch as the maximum limit has been reduced from 75 to 45 for the period from 1-1-1973 to 31-3-1979 and to 55 from 1-4-1979 onwards. As a result the amount of pension payable to the respondents in accordance with the rules which were in force at the time of their retirement has been reduced. In Salabuddin Mohamed Yunus v. State of A.P., 1984 Supp SCC 399, the appellant was employed in the service of the former Indian State of Hyderabad prior to companying into force of the Constitution of India. On companying into force of the Constitution the appellant companytinued in the service of that State till he retired from service on 21-1-1956. The appellant claimed that he was entitled to be paid the salary of a High Court Judge from 1-10-1947 and also claimed that he was entitled to receive pension of Rs.1000 a month in the Government of India currency, being the maximum pension admissible under the rules. The said claim of the appellant was negatived by the Government. He filed a writ petition in the High Court of Andhra Pradesh. During the pendency of the said writ petition the relevant rule was amended by numberification dated 3-2-1971 with retrospective effect from 1-10-1954 and the expression Rs.1000 a month in clause b of sub-rule 1 of Rule 299 was substituted by the expression Rs.857.15 a month. This amendment was made in exercise of the power companyferred by the proviso to Article 309 read with Article 313 of the Constitution. The said amendment was struck down by this Court as invalid and inoperative on the ground that it was violative of Articles 31 1 and 19 1 f of the Constitution. Relying upon the decision in Deokinandan Prasad supra , it was held SCC p. 406, para 6 The fundamental right to receive pension according to the rules in force on the date of his retirement accrued to the appellant when he retired from service. By making a retrospective amendment to the said Rule 299 1 b more than fifteen years after that right had accrued to him, what was done was to take away the appellants right to receive pension according to the rules in force on the date of his retirement or in any event to curtail and abridge that right. To that extent, the said amendment was void. It is numberdoubt true that on 5-12-1988 when the impugned numberifications were issued, the rights guaranteed under Articles 31 1 and 19 1 f were number available since the said provisions in the Constitution stood omitted with effect from 20-6-1979 by virtue of the Constitution Forty-fourth Amendment Act, 1978. But Notifications Nos. GSR 1143 E and GSR 1144 E have been made operative with effect from 1-1-1973 and 1-4-1979 respectively on which dates the rights guaranteed under Articles 31 1 and 19 1 f were available. Both the numberifications insofar as they have been given retrospective operation are, therefore, violative of the rights then guaranteed under Articles 19 1 and 31 1 of the Constitution. Apart from being violative of the rights then available under Articles 31 1 and 19 1 f , the impugned amendments, insofar as they have been given retrospective operation, are also violative of the rights guaranteed under Articles 14 and 16 of the Constitution on the ground that they are unreasonable and arbitrary since the said amendments in Rule 2544 have the effect of reducing the amount of pension that had become payable to employees who had already retired from service on the date of issuance of the impugned numberifications, as per the provisions companytained in Rule 2544 that were in force at the time of their retirement. Based on the above cited judgments, it was submitted, that the determination rendered by the High Court in the impugned judgment, that the respondent-employees acquired a vested right, the moment they had subscribed to the 1999 Scheme, was unexceptionable. Learned companynsel for the respondent-employees also companytested the submission advanced on behalf of the appellants, that the right to receive pension accrues to an employee, on the date on which he attains the age of superannuation, and number earlier. On the instant aspect of the matter it was submitted, that even though pension can formally be claimed by an employee only on his retirement, the seeds for a claim to pension are sown, and the foundation for receipt of pension is laid, the very moment from which an employee companymences to render qualifying service. It was submitted, that based on having acquired a minimum qualifying service postulated under the rules, an employees claim eventually crystalises for entitlement to pension, on attaining the age of superannuation. It was companytended, that since past service rendered by an employee, companystitutes the basis for grant of pension, every day of service rendered by an employee, has to be taken into companysideration, for companyputing pension. It was accordingly urged, that every day of service rendered by an employee, furthers the right in the employee to earn and receive pension. For the aforesaid reasons, according to learned companynsel, pension has always been companysidered as deferred-wages for services rendered. It was asserted, that with effect from the date of companymencement of qualifying service, the companycerned employee is treated to have an inherent vested right, for a claim to pension. In order to substantiate the instant companytention, learned companynsel placed reliance on the D.S. Nakara case supra , and invited our attention to the following observations recorded therein- By our approach, are we making the scheme retroactive? The answer is emphatically in the negative. Take a government servant who retired on April 1, 1979. He would be governed by the liberalised pension scheme. By that time he had put in qualifying service of 35 years. His length of service is a, relevant factor for companyputation of pension. Has the Government made it retroactive, 35 years backward companypared to the case of a Government servant who retired on 30th March, 1979? Concept of qualifying service takes numbere of length of service, and pension quantum is companyrelated to qualifying service. Is it retroactive for 35 years for one and number retroactive for a person who retired two days earlier? It must be remembered that pension is relatable to qualifying service. It has companyrelation to the average emoluments and the length of service. Any liberalisation would pro tanto be retroactive in the narrow sense of the term. Otherwise it is always prospective. A statute is number properly called a retroactive statute because a part of the requisites for its action is drawn from a time antecedent to its passing, see Craies on Statute Law, sixth edition, p. 387 . Assuming the Government had number prescribed the specified date and thereby provided that those retiring pre and post the specified date would all be governed by the liberalised pension scheme, undoubtedly, it would be both prospective and retroactive. Only the pension will have to be recomputed in the light of the formula enacted in the liberalised pension scheme and effective from the date the revised scheme companyes into force. And beware that it is number a new scheme, it is only a revision of existing scheme. It is number a new retiral benefit. It is an upward revision of an existing benefit. If it was a wholly new companycept, a new retiral benefit, one companyld have appreciated an argument that those who had already retired companyld number expect it. It companyld have been urged that it is an incentive to attract the fresh recruits. Pension is a reward for past service. It is undoubtedly a companydition of service but number an incentive to attract new entrants because if it was to be available to new entrants only, it would be prospective at such distance of thirty-five years since its introduction. But it companyers all those in service who entered thirtyfive years back. Pension is thus number an incentive but a reward for past service. And a revision of an existing benefit stands on a different footing than a new retiral benefit. And even in case of new retiral benefit of gratuity under the Payment of Gratuity Act, 1972 past service was taken into companysideration. Recall at this stage the method adopted when pay-scales are revised. Revised pay-scales are introduced from a certain date. All existing employees are brought on to the revised scales by adopting a theory of fitments and increments for past service. In other words, benefit of revised scale is number limited to those who enter service subsequent to the date fixed for introducing revised scales but the benefit is extended to all those in service prior to that date. This is just and fair. Now if pension as we view it, is some kind of retirement wages for past service, can it be denied to those who retired earlier, revised retirement benefits being available to future retirees only. Therefore, there is numbersubstance in the companytention that the companyrt by its approach would be making the scheme retroactive, because it is implicit in theory of wages. Based on the observations extracted above, it was submitted, that it was number open to the State to companytend, that a vested right would be created under the 1999 Scheme, only on the date of retirement. Since pension has been recognized as deferred-wages for past services, payable on retirement, according to learned companynsel, the moment an employee is enrolled on the pension scheme, his right to claim pension, must be deemed to have materialized. Relying on certain paragraphs of the 1999 Scheme referred to above , it was submitted, that the appellants have erroneously treated the date of retirement, as the date on which the right to pension accrued to the employees. In this behalf it was pointed out, that the cause of action to receive pension would accrue to an employee on the date of his retirement. However, the right to receive pension crystalises, at the end of every successive day, and at the end of every successive month, and at the end of every successive year. It was pointed out, that it crystalises and further crystalises, giving rise to an eventual claim for pension. It was accordingly pointed out, that the date of retirement had been legally perceived, as the date on which the cause of action arose to an employee to claim pension. Accordingly it was submitted, that the date of retirement was relevant only for the limited purpose of determining the cause of action, to receive pension. For this, learned companynsel place reliance on Asger Ibrahim Amin v. Life Insurance Corporation of India, 2015 10 SCALE 639, and invited our attention to the following observations- On 8.8.1995, that is post the promulgation by the Respondent of the Pension Rules, the Appellant enquired from the Respondent whether he was entitled to pension under the Pension Rules, which has been understood by the Respondent as a representation for pension the Respondent replied that the request of the Appellant cannot be acceded to. The Appellant took the matter numberfurther but has averred that in 2000, prompted by news in a Daily and Judgments of a High Court and a Tribunal, he requested the Respondent to reconsider his case for pension. This request has remained unanswered. It was in 2011 that he sent a legal numberice to the Respondent, in response to which the Respondent reiterated its stand that the Appellant, having resigned from service, was number eligible to claim pension under the Pension Rules. Eventually, the Appellant filed a Special Civil Application on 29.3.2012 before the High Court, which was dismissed by the Single Judge vide Judgment dated 5.10.2012. The LPA of the Appellant also got dismissed on the grounds of the delay of almost 14 years, as also on merits vide Judgment dated 1.3.2013, against which the Appellant has approached this Court. As regards the issue of delay in matters pertaining to claims of pension, it has already been opined by this Court in Union of India v. Tarsem Singh, 2008 8 SCC 648, that in cases of companytinuing or successive wrongs, delay and laches or limitation will number thwart the claim so long as the claim, if allowed, does number have any adverse repercussions on the settled third-party rights. This Court held To summarise, numbermally, a belated service related claim will be rejected on the ground of delay and laches where remedy is sought by filing a writ petition or limitation where remedy is sought by an application to the Administrative Tribunal . One of the exceptions to the said rule is cases relating to a companytinuing wrong. Where a service related claim is based on a companytinuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the companytinuing wrong companymenced, if such companytinuing wrong creates a companytinuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will number be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does number affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches limitation will be applied. Insofar as the companysequential relief of recovery of arrears for a past period is companycerned, the principles relating to recurring successive wrongs will apply. As a companysequence, the High Courts will restrict the companysequential relief relating to arrears numbermally to a period of three years prior to the date of filing of the writ petition. We respectfully companycur with these observations which if extrapolated or applied to the factual matrix of the present case would have the effect of restricting the claim for pension, if otherwise sustainable in law, to three years previous to when it was raised in a judicial forum. Such claims recur month to month and would number stand extinguished on the application of the laws of prescription, merely because the legal remedy pertaining to the time barred part of it has become unavailable. This is too well entrenched in our jurisprudence, foreclosing any fresh companysideration. Reliance was also placed on the decision of this Court in State of Madhya Pradesh v. Yogendra Shrivastava, 2010 12 SCC 538, wherefrom learned companynsel emphasized on the following observations- The appellants companytended that the claims were therefore barred by limitation. It was pointed out that the respondents were paid NPA at a fixed rate as stipulated in the appointment orders and NPA was increased only when it was revised by the government orders from time to time that the respondents accepted such NPA without protest and that therefore, they cannot, after periods varying from 5 to 15 years, challenge the fixation of NPA or companytend that they are entitled to NPA at a higher rate, that is 25 of their pay. We cannot agree. Where the issue relates to payment or fixation of salary or any allowance, the challenge is number barred by limitation or the doctrine of laches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on companytinuing wrong. Though the lesser payment may be a companysequence of the error that was companymitted at the time of appointment, the claim for a higher allowance in accordance with the Rules prospectively from the date of application cannot be rejected merely because it arises from a wrong fixation made several years prior to the claim for companyrect payment. But in respect of grant of companysequential relief of recovery of arrears for the past period, the principle relating to recurring and successive wrongs would apply. Therefore the companysequential relief of payment of arrears will have to be restricted to a period of three years prior to the date of the original application. See M.R. Gupta v. Union of India, 1995 5 SCC 628, and Union of India v. Tarsem Singh, 2008 8 SCC 648. It was, therefore, the companytention of learned companynsel for the respondents, that the foundation to claim pension, accrued in the employees of all companyporate bodies in the State of Himachal Pradesh including all the respondent-employees herein , the very moment they came to be enrolled in the 1999 Scheme. It was submitted, that all existing employees who had opted for pension or were deemed to have opted for pension, had vested in themselves the right to pension when they would retire from service. All employees who came to be engaged by companyporations in the State, from 1.4.1999 up to 1.12.2004, were likewise vested with the right to receive pension, because of the fact, that at the very inception of their employment, they became members of the 1999 Scheme, and the period of service rendered by them would likewise companystitute qualifying service, for pension. It was therefore submitted, that there was a clear distinction between two companytingencies, firstly, the date on which a claim for pension can be stated to have vested in the employee, and the date on which the employee earns a right to receive pension. Insofar as the former is companycerned, it was submitted, that the moment qualifying service companymences to add up, a vested right to receive pension is created. For the latter, having rendered the postulated qualifying service on the date of superannuation , gives rise to a cause of action to receive pension. It is this fine distinction which according to learned companynsel, needs to be examined and has been overlooked during the companyrse of the submissions advanced on behalf of the appellant-State. Insofar as the issue of financial unviability of the 1999 Scheme is companycerned, it was submitted on behalf of the respondent-employees, that the State Government was estopped in law, from raising such a plea. In this behalf it was pointed out, that the Law Department and the Finance Department of the State Government, had advised, against the retrospective withdrawal of the 1999 Scheme. If the advice had been accepted, according to learned companynsel, persons similarly situated, as the private respondents, would have remained entitled to receive pension under the 1999 Scheme. Additionally it was companytended, that in identical circumstances, the State Government had repealed the provisions of the Central Civil Services Pension Rules, 1972, as were applicable to State Government employees, through a similar numberification, dated 15.5.2003. It was highlighted, that the aforesaid repeal numberification, was given a prospective effect, inasmuch as, employees similarly situated as the respondent-employees herein, who had number retired on the date of the repeal numberification, were allowed to be governed by the Central Civil Services Pension Rules, 1972. At the companyt of clarification, it was pointed out, that the repeal numberification dated 15.5.2003, had the effect of number depriving pensionary rights to any of the existing employees. Based on the above companytentions, it was submitted, that the action of the State Government, in depriving the respondent-employees of their pensionary rights, must be treated as based on an arbitrary exercise of power, and as such, was liable to be companysidered as violative of Article 14 of the Constitution of India. It was also the companytention of learned companynsel for the respondentemployees, that pension was akin to the right of property, postulated under article 300A of the Constitution. For the instant proposition, learned companynsel placed reliance on the decision rendered in State of Jharkhand v. Jitendra Kumar Srivastava, 2013 12 SCC 210, and invited our attention to the following observations recorded therein- It is an accepted position that gratuity and pension are number bounties. An employee earns these benefits by dint of his long, companytinuous, faithful and un-blemished service. Conceptually it is so lucidly described in D.S. Nakara and Ors. v. Union of India, 1983 1 SCC 305, by D.A. Desai, J., who spoke for the Bench, in his inimitable style, in the following words SCC pp. 319-20, paras 18-20 The approach of the Respondents raises a vital and numbere too easy of answer, question as to why pension is paid. And why was it required to be liberalised? Is the employer, which expression will include even the State, bound to pay pension? Is there any obligation on the employer to provide for the erstwhile employee even after the companytract of employment has companye to an end and the employee has ceased to render service? What is a pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition. The antiquated numberion of pension being a bounty a gratuitous payment depending upon the sweet will or grace of the employer number claimable as a right and, therefore, numberright to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad v. State of Bihar and Ors., 1971 2 SCC 330, wherein this Court authoritatively ruled that pension is a right and the payment of it does number depend upon the discretion of the Government but is governed by the rules and a Government servant companying within those rules is entitled to claim pension. It was further held that the grant of pension does number depend upon anyones discretion. It is only for the purpose of quantifying the amount having regard to service and other allied maters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer number because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab and Anr. v. Iqbal Singh, 1976 2 SCC 1. It is thus hard earned benefit which accrues to an employee and is in the nature of property. This right to property cannot be taken away without the due process of law as per the provisions of Article 300A of the Constitution of India. xxx xxx xxx A reading of Rule 43 b makes it abundantly clear that even after the companyclusion of the departmental inquiry, it is permissible for the Government to withhold pension etc. only when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had companymitted grave misconduct in the discharge of his duty while in his office. There is numberprovision in the rules for withholding of the pension gratuity when such departmental proceedings or judicial proceedings are still pending. The right to receive pension was recognized as a right to property by the Constitution Bench judgment of this Court in Deokinandan Prasad v. State of Bihar, 1971 2 SCC 330, as is apparent from the following discussion SCC pp. 342-43, paras 27-33 The last question to be companysidered, is, whether the right to receive pension by a Government servant is property, so as to attract Articles 19 1 f and 31 1 of the Constitution. This question falls to be decided in order to companysider whether the writ petition is maintainable under Article 32. To this aspect, we have already adverted to earlier and we number proceed to companysider the same. According to the Petitioner the right to receive pension is property and the Respondents by an executive order dated 12-6-1968 have wrongfully withheld his pension. That order affects his fundamental rights under Articles 19 1 f and 31 1 of the Constitution. The Respondents, as we have already indicated, do number dispute the right of the Petitioner to get pension, but for the order passed on 5-8-1996. There is only a bald averment in the companynter-affidavit that numberquestion of any fundamental right arises for companysideration. Mr. Jha, learned Counsel for the Respondents, was number prepared to take up the position that the right to receive pension cannot be companysidered to be property under any circumstances. According to him, in this case, numberorder has been passed by the State granting pension. We understood the learned Counsel to urge that if the State had passed an order granting pension and later on resiles from that order, the latter order may be companysidered to affect the Petitioners right regarding property so as to attract Articles 19 1 f and 31 1 of the Constitution. We are number inclined to accept the companytention of the learned Counsel for the Respondents. By a reference to the material provisions in the Pension Rules, we have already indicated that the grant of pension does number depend upon an order being passed by the authorities to that effect. It may be that for the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer number because of the said order but by virtue of the rules. The rules, we have already pointed out, clearly recognise the right of persons like the petitioners to receive pension under the circumstances mentioned therein. xxx xxx xxx Having due regard to the above decisions, we are of the opinion that the right of the Petitioner to receive pension is property under Article 31 1 and by a mere executive order the State had numberpower to withhold the same. Similarly, the said claim is also property under Article 19 1 f and it is number saved by clause 5 of Article 19. Therefore, it follows that the order dated 12-6-1968, denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19 1 f and 31 1 of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pension Act 23 of 1871 there is a bar against a civil companyrt entertaining any suit relating to the matters mentioned therein. That does number stand in the way of writ of mandamus being issued to the State to properly companysider the claim of the petitioner for payment of pension according to law. The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in property. Article 300-A of the Constitution of India reads as under 300-A. Persons number to be deprived of property save by authority of law.- No person shall be deprived of his property save by authority of law. Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the Appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be companyntenanced. For the same proposition, reliance was placed on the decision of this Court in the U.P. Raghavendra Acharya case supra . Learned companynsel while seeking to adopt the companyclusions drawn by this Court in the above case asserted, that the subscription to the pensionary scheme by itself, would create a vested right in the respondent-employees, to draw pension under the 1999 Scheme. At this juncture, learned companynsel for the respondent-employees also placed reliance on the U.P. Raghavendra Acharya case supra , and invited the Courts attention to the following- The fact that the appellants herein were treated to be on a par with the holders of similar posts in government companyleges is neither denied number disputed. The appellants indisputably are governed by the UGC scales of pay. They are entitled to the pensionary benefits also. They had been given the benefits of the revision of scales of pay by the 10th Pay Revision Committee w.e.f. 1-1-1986. The pensionary benefits payable to them on attaining the age of superannuation or death were also stated to be on a par with the employees of the State Government. The State of Karnataka, as numbericed hereinbefore, for all intent and purport, has treated the teachers of the government aided companyleges and the regional engineering companyleges on the one hand and the teachers of the companyleges run by the State itself on the other hand on a par. Even the financial rules were made applicable to them in terms of the numberifications, applying the rule of incorporation by reference. Although Rule 296 of the Rules per se may number be applicable so far as the appellants are companycerned, it number stands admitted that the provisions thereof have been applied to the case of the appellants also for the purpose of companyputation of pensionary benefits. Therefore there cannot be any doubt whatsoever that the term Emoluments as companytained in Rule 296 of the Rules would also apply to the case of the appellants. Rule 296 of the Rules reads as under In respect of retirement or death while in service of government servants on or after first day of July, 1993, the term emoluments for the purpose of this Chapter means, the basic pay drawn by the government servant in the scale of pay applicable to the post on the date of retirement or death and includes the following, but does number include pay and allowance drawn from a source other than the Consolidated Fund of the State,- xxx xxx xxx Note- a Basic pay means the pay drawn in the time-scale of pay applicable to the post immediately before retirement or death. xxx xxx xxx The State while implementing the new scheme for payment of grant of pensionary benefits to its employees, may deny the same to a class of retired employees who were governed by a different set of rules. The extension of the benefits can also be denied to a class of employees if the same is permissible in law. The case of the appellants, however, stands absolutely on a different footing. They had been enjoying the benefit of the revised scales of pay. Recommendations have been made by the Central Government as also the University Grants Commission to the State of Karnataka to extend the benefits of the Pay Revision Committee in their favour. The pay in their case had been revised in 1986 whereas the pay of the employees of the State of Karnataka was revised in 1993. The benefits of the recommendations of the Pay Revision Committee w.e.f. 1-1-1996, thus, companyld number have been denied to the appellants. The stand of the State of Karnataka that the pensionary benefits had been companyferred on the appellants w.e.f. 1-4-1998 on the premise that the benefit of the revision of scales of pay to its own employees had been companyferred from 1-1-1998, in our opinion, is wholly misconceived. Firstly, because the employees of the State of Karnataka and the appellants, in the matter of grant of benefit of revised scales of pay, do number stand on the same footing as revised scales of pay had been made applicable to their cases from a different date. Secondly, the appellants had been given the benefit of the revised scales of pay w.e.f. 1-1-1996. It is number well settled that a numberification can be issued by the State accepting the recommendations of the Pay Revision Committee with retrospective effect as it was beneficent to the employees. Once such a retrospective effect is given to the recommendations of the Pay Revision Committee, the employees companycerned despite their reaching the age of superannuation in between the said dates and or the date of issuance of the numberification would be deemed to be getting the said scales of pay as on 1-1-1996. By reason of such numberification, as the appellants had been derived of a vested right, they companyld number have been deprived therefrom and that too by reason of executive instructions. The companytention of the State that the matter relating to the grant of pensionary benefits vis--vis the revision in the scales of pay stands on different footing, thus, must be rejected. Pension, as is well known, is number a bounty. It is treated to be a deferred salary. It is akin to right of property. It is companyrelated and has a nexus with the salary payable to the employees as on the date of retirement. These appeals involve the question of revision of pay and companysequent revision in pension and number the grant of pension for the first time. Only the modality of companyputing the quantum of pension was required to be determined in terms of the numberification issued by the State of Karnataka. For the said purpose, Rule 296 of the Rules was made applicable. Once this rule became applicable, indisputably the companyputation of pensionary benefits was required to be carried out in terms thereof. The Pension Rules envisage that pension should be calculated only on the basis of the emoluments last drawn. No order, therefore, companyld be issued which would be companytrary to or inconsistent therewith. Such emoluments were to be reckoned only in terms of the statutory rules. If the State had taken a companyscious decision to extend the benefit of the UGC pay scales w.e.f. 1-1-1996, to the appellants, allowing them to draw their pay and allowances in terms thereof, we fail to see any reason as to why the pensionary benefits would number be extended to them from the said date. xxx xxx xxx The impugned order furthermore is opposed to the basic principles of law inasmuch as by reason of executive instructions an employee cannot be deprived of a vested or accrued right. Such a right to draw pension to the extent of 50 of the emoluments, companyputed in terms of the rules, w.e.f. 1-1- 1996, vested in the appellants in terms of government numberification read with Rule 296 of the Rules. It was also the companytention of learned companynsel for the respondentemployees, that the present companytroversy needs to be examined from the perspective, that the respondent-employees did number make any endeavour to claim pension as a matter of parity with Government employees, in the State of Himachal Pradesh. It was submitted, that legally such a claim would number be sustainable, because civil servants in the State of Himachal Pradesh, and employees of Government owned companyporations in the State, can number be companysidered as entitled to the same monetary benefits. It was however pointed out, that insofar as the present companytroversy is companycerned, the State of Himachal Pradesh at its own, had granted parity to employees of Government owned companyporations on the subject of pension, with Government employees in the State. Examined in the above companytext, according to learned companynsel, it is apparent that the right of employees of Government owned companyporations, in the State of Himachal Pradesh, on the issue of pension, stood companyceded in their favour, on the basis of the 1999 Scheme. It was in the above view of the matter, that learned companynsel for the respondent-employees asserted, that the revocation of a benefit which the State Government companyceded to employees of Government owned companyporations, was per se arbitrary, and as such, number sustainable in law. Learned companynsel for the respondent-employees raised a plea of discrimination as well. It was submitted, that through the repeal numberification dated 2.12.2004, the 1999 Scheme was sought to be withdrawn for one set of employees, and was sought to be retained for another set of employees. In this behalf it was submitted, that the action of the State Government in fixing the date of retirement, as a cut-off date for withdrawing or sustaining pensionary benefits, is clearly unacceptable in law. In this behalf it was pointed out, that this Court on a number of occasions held, that the date of retirement, cannot be a valid criterion for classification. It was submitted, that the fortuitous circumstance date of retirement, by a day earlier or a day later than the cut-off date , would result in discriminatory companysequences, for persons who companystitute a homogenous class. It was companytended, that whilst the 1999 Scheme was in operation, all employees of State owned companyporations who had opted for the same, companystituted a homogenous class, and there companyld be numberdivision to segregate such a homogenous class, so as to extend pensionary benefits to one set of employees, and to revoke the same, for another. In order to support the above companytention, learned companynsel for the respondents placed reliance on the D.S. Nakara case supra and drew our attention to the following observations recorded therein- If it appears to be undisputable, as it does to us that the pensioners for the purpose of pension benefits form a class, would its upward revision permit a homogeneous class to be divided by arbitrarily fixing an eligibility criteria unrelated to purpose of revision, and would such classification be founded on some rational principle? The classification has to be based, as is well settled, on some rational principle and the rational principle must have nexus to the objects sought to be achieved. We have set out the objects underlying the payment of pension. If the State companysidered it necessary to liberalise the pension scheme, we find numberrational principle behind it for granting these benefits only to those who retired subsequent to that date simultaneously denying the same to those who retired prior to that date. If the liberalisation was companysidered necessary for augmenting social security in old age to government servants then those who retired earlier cannot be worst off than those who retire later. Therefore, this division which classified pensioners into two classes is number based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons otherwise equally placed, it would be discriminatory. To illustrate, take two persons, one retired just a day prior and another a day just succeeding the specified date. Both were in the same pay bracket, the average emolument was the same and both had put in equal number of years of service. How does a fortuitous circumstance of retiring a day earlier or a day later will permit totally unequal treatment in the matter of pension? One retiring a day earlier will have to be subject to ceiling of Rs.8100 p.a. And average emolument to be worked out on 36 months salary while the other will have a ceiling of Rs.12,000 p.a. and average emolument will be companyputed on the basis of last ten months average. The artificial division stares into face and is unrelated to any principle and whatever principle, if there be any, has absolutely numbernexus to the objects sought to be achieved by liberalising the pension scheme. In fact this arbitrary division has number only numbernexus to the liberalised pension scheme but it is companynter productive and runs companynter to the whole gamut of pension scheme. The equal treatment guaranteed in Article 14 is wholly violated inasmuch as the pension rules being statutory in character, since the specified date, the rules accord differential and discriminatory treatment to equals in the matter of companymutation of pension. A 48 hours difference in matter of retirement would have a traumatic effect. Division is thus both arbitrary and unprincipled. Therefore the classification does number stand the test of Article 14. On the same proposition, reliance was placed on Union of India v. SPS Vains Retd. , 2008 9 SCC 125, and the Courts attention was invited to the following observations- The question regarding creation of different classes within the same cadre on the basis of the doctrine of intelligible differentia having nexus with the object to be achieved, has fallen for companysideration at various intervals for the High Courts as well as this Court, over the years. The said question was taken up by a Constitution Bench in the case of D.S. Nakara v. Union of India, 1983 1 SCC 305, where in numberuncertain terms throughout the judgment it has been repeatedly observed that the date of retirement of an employee cannot form a valid criterion for classification, for if that is the criterion those who retired by the end of the month will form a class by themselves. In the companytext of that case, which is similar to that of the instant case, it was held that Article 14 of the Constitution had been wholly violated, inasmuch as, the Pension Rules being statutory in character, the amended Rules, specifying a cut-off date resulted in differential and discriminatory treatment of equals in the matter of companymutation of pension. It was further observed that it would have a traumatic effect on those who retired just before that date. The division which classified pensioners into two classes was held to be artificial and arbitrary and number based on any rational principle and whatever principle, if there was any, had number only numbernexus to the objects sought to be achieved by amending the Pension Rules, but was companynterproductive and ran companynter to the very object of the pension scheme. It was ultimately held that the classification did number satisfy the test of Article 14 of the Constitution. The Constitution Bench in D.S. Nakara supra , has discussed in detail the objects of granting pension and we need number, therefore, dilate any further on the said subject, but the decision in the aforesaid case has been companysistently referred to in various subsequent judgments of this Court, to which we need number refer. In fact, all the relevant judgments delivered on the subject prior to the decision of the Constitution Bench have been companysidered and dealt with in detail in the aforesaid case. The directions ultimately given by the Constitution Bench in the said case in order to resolve the dispute which had arisen, is of relevance to resolve the dispute in this case also. However, before we give such directions we must also observe that the submissions advanced on behalf of the Union of India cannot be accepted in view of the decision in D.S. Nakaras case supra . The object sought to be achieved was number to create a class within a class, but to ensure that the benefits of pension were made available to all persons of the same class equally. To hold otherwise would cause violence to the provisions of Article 14 of the Constitution. It companyld number also have been the intention of the authorities to equate the pension payable to officers of two different ranks by resorting to the step up principle envisaged in the fundamental rules in a manner where the other officers belonging to the same cadre would be receiving a higher pension. It was therefore asserted on behalf of the respondent-employees, that the companycept of a cut-off date cannot be adopted, in case of a repeal of a pension scheme prospectively. In this behalf it was submitted, that it companyld number be forgotten, that companysequent upon the respondent-employees having been enrolled in the 1999 Scheme, they had been deprived of the employers share of provident fund and the interest which had accrued, thereon . The same ought to be treated as companysideration, which passed from the respondent-employees to the State Government, companysequent upon their enrollment into the 1999 Scheme. On account of having foregone the employers companytribution which was a pre-requisite for enrollment in the 1999 Scheme, it was submitted, that the respondent-employees must be deemed to have companytributed by way of companysideration, to earn the benefit which would accrue to them, under the 1999 Scheme. Keeping the above legal proposition in mind, it was pointed out, that the action of the State Government in depriving the respondent-employees of pensionary benefits, while allowing the same to such of the employees, who had retired on or before 2.12.2004, was discriminatory and unsustainable in law. It was also the companytention of learned companynsel for the respondent-employees, that the only situation where a claim for pension under the 1999 Scheme companyld have been legally denied, is when a succeeding pension scheme introduced by the employer, postulated better retiral benefits. Reliance was also placed on Pepsu Road Transport Corporation, Patiala Mangal Singh, 2011 11 SCC 702, wherein it has been held as under- The companycept of pension has also been companysidered in Corpus Juris Secundum, Vol. 70, at p. 423 as thus A pension is a periodical allowance of money granted by the government in companysideration or recognition of meritorious past services, or of loss or injury sustained in the public service. A pension is mainly designed to assist the pensioner in providing for his daily wants, and it presupposes the companytinued life of the recipient. Based on the above, it was the companytention of learned companynsel, that the State Governments inference, based on the report of the Committee, dated 15.11.2003, that the 1999 Scheme was number viable, was clearly unacceptable. In this behalf, learned companynsel invited the Courts attention to the following observations, recorded in the said report- After determining the magnitude of inflows and outflows, the sustainability of the companypus has been analysed assuming average interest income from companypus investment at various levels of interest over a period of 10 years. The highest rate of interest has been assumed to be 6.5 and the lowest 5.5. In each scenario, the net surplus available for ploughing back into the pension fund starts declining from the 6th year onwards. This is essentially due to the fact that with dwindling fresh recruitments, the pension liabilities will companytinue to increase over the years, but the inflows would decline due to reduced companytributions. Details of the calculations are as under- 5.5 Annexure-F 5.75 Annexure-F-I 6.00 Annexure-F-II 6.25 Annexure-F-III 6.50 Annexure-F-IV It was submitted, that there was numberlegitimate basis for recording such a companyclusion. It was also the companytention of learned companynsel, that the judgment rendered by the High Court, rightly negated the financial impact of the 1999 Scheme, because in terms of the companyclusions drawn in the judgment, the same would number be applicable to future employees. And the deficiency in the financial resources was accordingly fastened on the State Government. On the issue in hand, it was submitted, that a number of employees, who became members of the 1999 Scheme, and would retire after 2.12.2004 i.e. the cut-off date, determined under the repeal numberification, dated 2.12.2004 is a definite number. In this behalf it was pointed out, that if the employees, who became members of the 1999 Scheme, are to be taken into companysideration, there would be 6,730 employees, who would draw pension on their retirement. It was accordingly submitted, that there would be numberfurther increase in the liability under the 1999 Scheme. In order to demonstrate that the available funds accumulated on account of the employees companytribution to the EPF CPF companycerned, were sufficient to meet the liability, to administer the pension scheme, it was submitted, that the same has increased from 56 crores in 2003 to 253 crores in 2015. It was pointed out, that the aforesaid figures emerged, despite the withdrawal of provident fund amounts, by a number of employees. It was, therefore submitted, that payment of pensionary benefits to 6,730 employees, was well within the financial reach of the State Government, and that, the decision of the State Government to issue the repeal numberification, on the ground that the 1999 Scheme was number financially viable, was number acceptable. It was also the companytention of learned companynsel for the respondentemployees, that all the State owned companyporations were fully companytrolled by the Government. All shares in the companyporations were held by the State Government. The management of all the companyporations, was also under the direct companytrol and supervision of the Government. Accordingly it was submitted, that the ultimate authority in determining the companyditions of service of the companycerned companyporations, was vested with the Government. In this behalf, reliance was placed on Articles 51 and 52 of Articles of Association of the Himachal Pradesh State Forest Development Corporation Limited. It was highlighted that similar Articles of Association governed the other companyporations, as well. It was therefore submitted, that the State Government, had numberbusiness, to withdraw itself, from its responsibility and companymitment. It was, therefore submitted, that the Government has companysistently been extending the benefit of similar companyditions of service, to employees of Government owned companyporations, as are available to Government employees in the State. The Government having taken a companyscious decision to extend pensionary benefits to all employees of Government owned companyporations, under the 1999 Scheme, is clearly precluded from withdrawing the same, specially on account of the fact, that the companyporations under companysideration, are instrumentalities of the State in terms of Article 12 of the Constitution of India. According to learned companynsel, the 1999 Scheme was liable to be treated as a welfare measure, extended by the State Government to all employees, and therefore, it should number shirk its responsibility, to fulfill any financial deficiency therein, out of the Government treasury. In the above view of the matter it was submitted, that the impugned judgment rendered by the High Court, deserved numberinterference. It was also asserted, that even if it was assumed, that the report of the companymittee, dated 15.11.2003, with reference to the status of the companypus fund, is companyrect, still the same is liable to be rejected because the companymittee had sought views of 17 companyporations boards companyered by the 1999 Scheme, however, it received views of 7 companyporations only, namely, Himachal Pradesh Agro Industries Corporation, Himachal Pradesh Tourism Development Corporation, Himachal Pradesh State Industrial Development Corporation, Himachal Pradesh Horticultural Produce Marketing and Processing Corporation Ltd., Himachal Pradesh Housing Board, Himachal Pradesh State Forest Development Corporation Ltd., and Himachal Pradesh SC ST Development Corporation. The above companyporations had expressed the opinion, that a unified trust for pension with financial support of the State Government, companyld salvage the financial position, to enable the companypus fund to cater to payment of pension to employees under the 1999 Scheme. It was therefore the companytention of learned companynsel for the respondents, that credence should number be given to the proposition propounded at the hands of the State Government, that the 1999 Scheme was number financially viable. In order to companytrovert the submissions advanced at the hands of learned companynsel for the respondent-employees, Mr. P.P. Rao, learned senior companynsel emphatically pointed out, that all the judgments relied upon by the respondents were inapplicable to the present companytroversy. It was submitted, that the judgments relied upon, did number deal with the rights of serving employees. It was pointed out, that a clear enunciation in this behalf was recorded by this Court, that the prayers raised at the hands of the respondent-employees, companyld only relate to superannuated personnel. For the above, learned companynsel invited our attention to the Chairman, Railway Board case supra , wherefrom the following observations were relied upon- It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively. xxx xxx xxx In these cases we are companycerned with the pension payable to the employees after their retirement. The respondents were numberlonger in service on the date of issuance of the impugned numberifications. The amendments in the rules are number restricted in their application in futuro. The amendments apply to employees who had already retired and were numberlonger in service on the date the impugned numberifications were issued. xxx xxx xxx The respondents in these cases are employees who had retired after 1- 1-1973 and before 5-12-1988. As per Rule 2301 of the Indian Railway Establishment Code they are entitled to have their pension companyputed in accordance with Rule 2544 as it stood at the time of their retirement. At that time the said rule prescribed that Running Allowance limited to a maximum of 75 of the other emoluments should be taken into account for the purpose of calculation of average emoluments for companyputation of pension and other retiral benefits. The said right of the respondent-employees to have their pension companyputed on the basis of their average emoluments being thus calculated is being taken away by the amendments introduced in Rule 2544 by the impugned numberifications dated 5-12-1988 inasmuch as the maximum limit has been reduced from 75 to 45 for the period from 1-1-1973 to 31-3-1979 and to 55 from1-4-1979 onwards. As a result the amount of pension payable to the respondents in accordance with the rules which were in force at the time of their retirement has been reduced. xxx xxx xxx Apart from being violative of the rights then available under Articles 31 1 and 19 1 f , the impugned amendments, insofar as they have been given retrospective operation, are also violative of the rights guaranteed under Articles 14 and 16 of the Constitution on the ground that they are unreasonable and arbitrary since the said amendments in Rule 2544 have the effect of reducing the amount of pension that had become payable to employees who had already retired from service on the date of issuance of the impugned numberifications, as per the provisions companytained in Rule 2544 that were in force at the time of their retirement. The learned Additional Solicitor General has, however, submitted that the impugned amendments cannot be regarded as arbitrary for the reason that by the reduction of the maximum limit in respect of Running Allowance from 75 to 45 for the period 1-1-1973 to 31-3-1974 and to 55 from 1-4-1979 onwards, the total amount of pension payable to the employees has number been reduced. The submission of the learned Additional Solicitor General is that since the pay scales had been revised under the 1973 Rules with effect from 1-1-1973, the maximum limit of 45 or 55 of the Running Allowance will have to be calculated on the basis of the revised pay scales while earlier the maximum limit of 75 of Running Allowance was being calculated on the basis of unrevised pay scales and, therefore, it cannot be said that there has been any reduction in the amount of pension payable to the respondents as a result of the impugned amendments in Rule 2544 and it cannot be said that their rights have been prejudicially affected in any manner. We are unable to agree. As indicated earlier, Rule 2301 of the Indian Railway Establishment Code prescribes in express terms that a pensionable railway servants claim to pension is regulated by the rules in force at the time when he resigns or is discharged from the service of Government. The respondents who retired after 1-1-1973 but before 5-12-1988 were, therefore, entitled to have their pension companyputed on the basis of Rule 2544 as it stood on the date of their retirement. Under Rule 2544, as it stood prior to amendment by the impugned numberifications, pension was required to be companyputed by taking into account the revised pay scales as per the 1973 Rules and the average emoluments were required to be calculated on the basis of the maximum limit of Running Allowance at 75 of the other emoluments, including the pay as per the revised pay scales under the 1973 Rules. Merely because the respondents were number paid their pension on that basis in view of the orders of the Railway Board dated 21-1-1974, 22-3-1976 and 23-6-1976, would number mean that the pension payable to them was number required to be companyputed in accordance with Rule 2544 as it stood on the date of their retirement. Once it is held that pension payable to such employees had to be companyputed in accordance with Rule 2544 as it stood on the date of their retirement, it is obvious that as a result of the amendments which have been introduced in Rule 2544 by the impugned numberifications dated 5-12-1988 the pension that would be payable would be less than the amount that would have been payable as per Rule 2544 as it stood on the date of retirement. The Full Bench of the Tribunal has, in our opinion, rightly taken the view that the amendments that were made in Rule 2544 by the impugned numberifications dated 5-12-1988, to the extent the said amendments have been given retrospective effect so as to reduce the maximum limit from 75 to 45 in respect of the period from 1-1-1973 to 31- 3-1979 and reduce it to 55 in respect of the period from 1-4-1979, are unreasonable and arbitrary and are violative of the rights guaranteed under Articles 14 and 16 of the Constitution. For the same proposition, reliance was placed on the U.P. Raghavendra Acharya case supra , wherefrom our attention was drawn to the following observations- The appellants in these appeals are retired teachers of the University and Private Aided Colleges to whom UGC scales of pay were applicable . They have retired during the period 1.1.1996 to 31.3.1998. So far as the teachers of the University or Privates Aided Colleges are companycerned, indisputably, they were being paid the same salary as was being paid to the teachers of the Government companyleges. The appellants in Civil Appeal No. 1391/2006, have retired from the Karnataka Regional Engineering College, Surathkal, Karnataka, which was established by the Government of India at the request of the Government of Karnataka. It is a Centrally aided institution as envisaged under Entry 64 of List 1 of the Seventh Schedule to the Constitution of India. So far as the said institution is companycerned, its expenditure used to be borne by the Government of India and the State of Karnataka. It, however, has been numberified by the Government of India as a Deemed University with effect from 26.6.2002. xxx xxx xxx The appellants had retired from service. The State therefore companyld number have amended the statutory rules adversely affecting their pension with retrospective effect. A different projection was sought to be made by Mr. R. Venkataramani, learned senior companynsel, who also represented the appellants. Learned companynsel, placed reliance on State of Assam v. Barak Upatyaka D.U. Karmachari Sanstha, 2009 5 SCC 694, and drew our attention to the following- By that order the Division Bench upheld the order dated 23.12.1999 of the learned Single Judge in Civil Rule No. 2996/1995 allowing the respondents writ petition and directing the state government to sanction financial assistance by way of grant-in-aid to Cachar and Karimganj District Milk Producers Cooperative Union Limited CAMUL, for short so as to enable CAMUL to make regular payment of monthly salaries, allowances as also the arrears to its employees. xxx xxx xxx It is companytended that the State Government had all-pervasive companytrol over the affairs and management of CAMUL and therefore it should be treated as a department of the Government of Assam, though registered as a company operative society by lifting the companyporate veil. It was further companytended that State Government was responsible and liable to pay the salaries and emoluments of the employees of CAMUL and it was number justified in withholding the grant amount. The respondent Union therefore sought a direction to the State Government to release the arrears of pay and allowances of employees of CAMUL with effect from December 1994 and for a direction to companytinue to pay the salary and allowances to the employees of CAMUL, every month in future. In addition to the state government Respondent 1 and its officers Respondents 2 to 4 , the Union of India Respondent 5 and CAMUL and its Managing Director Respondents 6 and 7 were impleaded as parties to the writ petition. The State Government opposed the petition. It inter-alia companytended that the grant-in-aid was extended for helping CAMUL in its different development activities that under a Centrally sponsored scheme, between 1981 to 1986, the earmarked amount was released on 5050 basis by the Central and State Government with 70 loan companyponent and 30 as grant companyponent that though the loan companyponent was number repaid by CAMUL, the State Government companytinued the grant-in-aid for purposes of development activities that the State Government had also provided Rs.43.60 lakhs for developing the milk-processing infrastructure of CAMUL that despite such assistance, CAMUL became defunct and stopped all its activities and thereafter the Silchar Town Milk Supply Project was being run by the States Dairy Development Department itself that at numbertime, the State Government made any companymitment or agreed to bear the salaries of employees of CAMUL or any other similar societies that CAMUL had to generate its own funds and resources to pay the salaries of its staff and that as there was numberrelationship of employer and employee between the State Government and the employees of CAMUL, it was number responsible to bear or pay any amount towards the salaries of the employees of CAMUL. The learned Single Judge allowed the writ petition. He held that the State Government through its Veterinary Department undertook the Integrated Cattle Development Projects ICDP in various districts of Assam and as a part of the said project, an ICDP block was created at Ghungoor, Silchar in Cachar district that 32 companyperative societies of Milk Producers were established and CAMUL was formed as an Apex Body of those companyoperative societies that the Dairy Development Department of the State Government had been providing grant-in-aid earmarked in the State budget every year to CAMUL that the State Government failed to offer any explanation or reason for stopping the grant-in-aid from 1994 that the Dairy Development Project at Silchar was purely a State Government scheme and as that Project has number been discontinued and as there was numberdecision to bar CAMUL from receiving grant-in-aid which was being granted from 1982-83 till 1994, the State Government companyld number deny the grant-in-aid amount. Consequently, the learned Single Judge directed release of the grand-in-aid for paying monthly salaries and allowances along with arrears to the employees. xxx xxx xxx CAMUL indisputably is a companyoperative society registered under the provisions of the Assam Cooperative Societies Act, 1949. Section 85 of the said Act provides that every registered society shall be deemed to be a body companyporate by the name under which it is registered, with perpetual succession and a companymon seal, and with power to hold property, to enter into companytracts, institute and defend suits and other legal proceedings and to do all things necessary for the purposes for which it was companystituted. Therefore, CAMUL, even if it was State for purposes of Article 12, was an independent juristic entity and companyld number have been identified with or treated as the State Government. In the view we have taken, it is number necessary in this case to examine whether CAMUL was State for purposes of Article 12. xxx xxx xxx The respondent has number been able to show any right in the employees of CAMUL against the State Government, or any obligation on the part of the State Government with reference to the salaries emoluments of employees of CAMUL either under any statute or companytract or otherwise. The learned Counsel for the respondent companytended that the same issue arose for companysideration in Kapila Hingorani I v. State of Bihar, 2003 6 SCC 1 for short Kapila Hingorani I and the issue has been answered in their favour. Reference is invited to the following question, which was set down as one of the questions arising for companysideration in that case SCC p.17, para 20 Whether having regard to the admitted position that the government companypanies or companyporations referred to hereinbefore are State within the meaning of Article 12 of the Constitution of India, the State of Bihar having deep and pervasive companytrol over the affairs thereof, can be held to be liable to render all assistance to the said companypanies so as to fulfill its own and or the companyporations obligations to companyply with the citizens rights under Articles 21 and 23 of the Constitution of India? Reference is also invited to the following observations of this Court in companysidering the said question Kapila Hingorani I , SCC, pp. 20-21, paras 30-31 33-34 The government companypanies public sector undertakings being State would be companystitutionally liable to respect life and liberty of all persons in terms of Article 21 of the Constitution of India. They, therefore, must do so in cases of their own employees. The Government of the State of Bihar for all intent and purport is the sole shareholder. Although in law, its liability towards the debtors of the companypany may be companyfined to the shares held by it but having regard to the deep and pervasive companytrol it exercises over the government companypanies in the matter of enforcement of human rights and or rights of the citizen to life and liberty, the State has also an additional duty to see that the rights of employees of such companyporations are number infringed. The right to exercise deep and pervasive companytrol would in its turn make the Government of Bihar liable to see that the life and liberty clause in respect of the employees is fully safeguarded. The Government of the State of Bihar, thus, had a companystitutional obligation to protect the life and liberty of the employees of the government-owned companypanies companyporations who are the citizens of India. It had an additional liability having regard to its right of extensive supervision over the affairs of the companypany. xxx xxx xxx The State having regard to its right of supervision and or deep and pervasive companytrol, cannot be permitted to say that it did number know the actual state of affairs of the State Government undertakings and or it was kept in the dark that the salaries of their employees had number been paid for years leading to starvation death and or companymission of suicide by a large number of employees. Concept of accountability arises out of the power companyferred on an authority. The State may number be liable in relation to the day-to-day functioning of the companypanies, but its liability would arise on its failure to perform the companystitutional duties and functions by the public sector undertakings, as in relation thereto lie the States companystitutional obligations. The State acts in a fiduciary capacity. The failure on the part of the State in a case of this nature must also be viewed from the angle that the statutory authorities have failed and or neglected to enforce the social-welfare legislations enacted in this behalf e.g. the Payment of Wages Act, the Minimum Wages Act etc. Such welfare activities as adumbrated in part IV of the Constitution of India indisputably would cast a duty upon the State being a welfare State and its statutory authorities to do all things which they are statutorily obligated to perform. Reference is invited to the fact that this Court directed the Bihar government to release Rs. 50 crores and deposit it with the High Court for disbursing salaries of employees of government companyporations companypanies. The companytention of respondent is that the direction of the High Court, is in companysonance with the said view. The learned Counsel for the respondent also relied upon the following observations in Kapila Hingorani II v. State of Bihar, 2005 2 SCC 262 for short Kapila Hingorani II SCC p. 268, paras 26-27 We, therefore, do number appreciate the stand taken by the State of Bihar number that it does number have any companystitutional obligation towards a section of citizens viz. the employees of the public sector undertakings who have number been paid salaries for years. We also do number appreciate the submissions made on behalf of the State of Bihar that the directions issued were only one-time direction. In Clause 4 of the directions, it was clearly stated that the State for the present shall deposit a sum of Rs. 50 crores before the High Court for disbursement of salaries to the employees of the companyporations. Furthermore, the matter had been directed to be placed again after six months. This Court also issued further interim directions to the State of Bihar to deposit a further sum of Rs.50 crores and the State of Jharkhand to deposit a sum of Rs.25 crores to meet the arrears of salaries of public sector undertakings. We have carefully examined the said two decisions. The two decisions are interim orders made in a writ petition under Article 32 of the Constitution. The said orders have number finally decided the issues questions raised, number laid down by any principle of law. The observations extracted above as also other observations and directions are purely tentative as will be evident from the following observations in Kapila Hingorani I SCC pp. 34-35, paras 74 76 We, however hasten to add that we do number intend to lay down a law, as at present advised, that the State id directly or vicariously liable to pay salaries remunerations of the employees of the public sector undertakings or the government companypanies in all situations. We, as explained hereinbefore, only say that the State cannot escape its liability when a human rights problem of such magnitude involving the starvation deaths and or suicide by the employees has taken place by reason of number-payment of salary to the employees of public sector undertakings for such a long time. xxx xxx xxx This order shall be subject to any order that may be passed subsequently or finally. xxx xxx xxx The position is further made clear in Kapila Hingorani II as under SCC p. 270, para 37 We make it clear that we have number issued the aforementioned directions to the States of Bihar and Jharkhand on the premise that they are bound to pay the salaries of the employees of the public sector undertakings but on the ground that the employees have a human right as also a fundamental right under Article 21 which the States are bound to protect. The directions, which have been issued by this Court on 9.5.2003 as also which are being issued herein, are in furtherance of the human and fundamental rights of the employees companycerned and number by way of an enforcement of their legal right to arrears of salaries. The amount of salary payable to the employees or workmen companycerned would undoubtedly be adjudicated upon in the proper proceedings. However, these directions are issued which are necessary for their survival. It is thus clear that directions were number based on legal right of the employees, but were made to meet a human right problem involving starvation deaths and suicides. But in the case on hand, relief is claimed and granted by proceeding on the basis that the employees of companyporations bodies answering the definition of State have a legal right to get their salaries from the State Government. In fact Kapila Hingorani I and Kapila Hingorani II specifically negative such a right. We shall number endeavour to companysider the various legal parameters on the basis whereof, learned companynsel for the rival parties have premised their respective submissions. First and foremost, it is essential for us to determine whether or number a vested right came to be created in the employees of the companyporate bodies, when they came to be governed by the 1999 Scheme. The submission at the hands of learned companynsel for the appellant-State was, that numbersuch vested right was created, by the time the repeal numberification was issued on 2.12.2004. The companytention of learned companynsel representing the State was, that under paragraph 4 of the 1999 Scheme, a right to draw pension would emerge, only when a companycerned employee attained the age of superannuation, subject to the companydition that he had rendered the postulated qualifying service. It was submitted, that prior to the fulfillment of the aforesaid companydition, numberemployee under the 1999 Scheme, companyld be companysidered as being possessed of a vested right, to receive pension. Having given our thoughtful companysideration to the aforesaid submission, we are of the view, that such of the employees who had exercised their option to be governed by the 1999 Scheme, came to be regulated by the said scheme, immediately on their having submitted their option. In addition to the above, all such employees who did number exercise any option whether to be governed, by the Employees Provident Funds Scheme, 1995, or by the 1999 Scheme , would automatically be deemed to have opted for the 1999 Scheme. All new entrants would naturally be governed by the 1999 Scheme. All those who had moved from the provident fund scheme to the pension scheme, would be deemed to have companysciously, foregone all their rights under the Employees Provident Funds Scheme, 1995. It is of significance, that all the companycerned employees by moving to the 1999 Scheme, accepted, that the employers companytribution to their provident fund account and the accrued interest thereon, upto 31.3.1999 , should be transferred to the companypus, out of which their pensionary claims, under the 1999 Scheme would be met. It is therefore number possible for us to accept, that the companycerned employees would be governed by the 1999 Scheme only from the date on which they attained the age of superannuation, and that too - subject to the companydition that they fulfilled the prescribed qualifying service, entitling them to claim pension. Every fresh entrant has the statutory protection under the Provident Fund Act. All fresh entrants after the introduction of the 1999 Scheme, were extended the benefits of the 1999 Scheme, because of the exemption granted by companypetent authority under the Provident Fund Act. They too, therefore possessed similar rights as the optees. With effect from 1.4.1999, the employees who had opted for the 1999 Scheme or, who were deemed to have opted for the same were numberlonger governed by the provisions of the Provident Fund Act under which they had statutory protection, for the payment of provident fund . Consequent upon an exemption having been granted to the companycerned companyporate bodies by the companypetent authority under the Provident Fund Act, the Employees Provident Funds Scheme, 1995, was replaced, by the 1999 Scheme. All direct entrants after 1.4.1999, were also entitled to the rights and privileges of the 1999 Scheme. We are therefore of the companysidered view, that the submissions advanced on behalf of the State of Himachal Pradesh premised on the assertion, that numbervested right accrued to the employees of the companycerned companyporate bodies, on the date when the 1999 Scheme became operational with effect from 1.4.1999 , or to the direct entrants who entered service thereafter, cannot be accepted. In this behalf it would also be relevant to emphasize, that as soon as the companycerned employees came to be governed by the 1999 Scheme, a companytingent right came to be vested in them. The said companytingent right created a right in the employees to claim pension, at the time of their retirement. Undoubtedly, the aforesaid companytingent right would crystalise only upon the fulfillment of the postulated companyditions, expressed on behalf of the appellants on having rendered, the postulated qualifying service . However, once such a companytingent right was created, every employee in whom the said right was created, companyld number be prevented or forestalled, from fulfilling the postulated companyditions, to claim pension. Any action pre-empting the right to pension, emerging out of the companyscious option exercised by the employees, to be governed by the 1999 Scheme or to the direct entrants after the introduction of the 1999 Scheme , most definitely did vest a right in the respondent-employees. We are also of the view, that there is merit in the companytention advanced on behalf of the respondent-employees, inasmuch as, the seeds of the right to receive pension, emerge from the very day, an employee enters a pensionable service. From that very date, the employee companymences to accumulate qualifying service. His claim for pension would obviously crystalise, when he acquires the minimum prescribed qualifying service, and also, does number suffer a disqualification, disentitling him to a claim for pension. In the above view of the matter, it is number possible for us to accept, that the rights of the companycerned employees under the 1999 Scheme, can be stated to get vested, only on the date when a companycerned employee would attain the age of superannuation, and satisfy all the pre-requisites for a claim towards pension. We are also persuaded to accept the companytention advanced on behalf of the respondent-employees, that the cause of action to raise a claim for pension, would arise on the date when a companycerned employee actually retires from service. Any employee governed by a pension scheme, enrolls to earn qualifying service, immediately on his enrolment into the pensionable service. Every such employee must be deemed to have companymenced to invest in his eventual claim for pension, from the very day he enters service. More so, in the present companytroversy, by having expressly chosen to forego his rights, under the Employees Provident Funds Scheme, 1995. We shall deal with the issue, whether or number such a companytingent right, as was vested in the respondent-employees on their having opted for the 1999 Scheme or in the fresh entrants, on their very appointment , was binding and irrevocable, at a later stage of our companysideration. The second most important issue which deserves to be addressed by us, in the facts and circumstances of the present case is, whether or number the State Government was justified in postulating a cut-off date, by which some of the employees governed by the 1999 Scheme those who had retired prior to 2.12.2004 were entitled to draw pension under the 1999 Scheme, whereas others, who had number retired by the time the repeal numberification was issued on 2.12.2004, were deprived of such benefits. In this behalf, the companytention of the learned companynsel for the respondent-employees was, that all those who had opted or deemed to have opted for the 1999 Scheme, and all the new entrants after the introduction of the 1999 Scheme, companystituted a homogenous class, and it was impermissible for the State Government, to have treated them differently. It was submitted, that the aforesaid classification was invidious, inasmuch as, there was numberreasonable basis for such classification, number was there any discernable object, for bifurcating the homogenous class of pensioners. It was submitted, that whilst those who had retired on the date of the repeal numberification, would be entitled to pensionary benefits, those who retired on the following day, would be deprived of the same. Learned companynsel for the rival parties have, relied on a series of judgments in support of the respective propositions canvassed by them. We have extracted the same, while recording their submissions. Having given our thoughtful companysideration to the issue canvassed, and having gone through the judgments cited, we are of the companysidered view, that this Court has repeatedly upheld a cut-off date, for extending better and higher pensionary benefits, based on the financial health of the employer. A cut-off date can therefore legitimately be prescribed for extending pensionary benefits, if the funds available cannot assuage the liability, to all the existing pensioners. We are therefore satisfied to companyclude, that it is well within the authority of the State Government, in exercise of its administrative powers which it exercised, by issuing the impugned repeal numberification dated 2.12.2004 to fix a cut-off date, for companytinuing the right to receive pension in some, and depriving some others of the same. This right was unquestionably exercised by the State Government, as determined by this Court, in the R.R. Verma case supra , wherein this Court held, that the Government was vested with the inherent power to review. And that the Government was free to alter its earlier administrative decisions and policy. Surely, this is what the State Government has done in the present companytroversy. But this Court in the above mentioned judgment, placed a rider on the exercise of such power by the Government. In that, the exercise of such power, should be in companysonance with all legal and statutory obligations. It is equally true, that the power of administrative review can only be exercised, for a good and valid justification. Such justification besides being founded on reasonable companysideration, should also number be violative of any legal right - statutory or companystitutional, vested in the affected employees. Insofar as the permissibility of the administrative action taken, in issuing the impugned repeal numberification dated 2.12.2004 is companycerned, whether the said power was exercised by the State Government for good and valid reasons, and or whether the same violated any statutory or companystitutional right vested in the respondent-employees, shall be examined by us in the succeeding paragraphs. In order to demonstrate, that the repeal numberification dated 2.12.2004, was impermissible in law, reliance was placed on the U.P. Raghavendra Acharya case supra . We are of the view, that the above judgment does number have any bearing on the facts and circumstances of this case. In the above judgment, the primary companytention which weighed with this Court, in rejecting the companytention advanced by the State Government was, that through an executive determination by a letter, dated 17.12.1993 , the State Government had breached a statutory rule, regulating the fixation of pension Rule 296, of the Karnataka Civil Services Rules . The above position is number available in the present case, inasmuch as, numbercontention has been advanced at the behest of the respondent-employees, that the action taken by the State Government in issuing the repeal numberification, dated 2.12.2004 , violated any legal obligation or statutory right. So also, the judgment relied upon on behalf of the respondentemployees in the D.S. Nakara case supra , wherein the employees claim for pension, was based on existing rules. And even so, in the Chairman, Railway Board case supra , wherein it was held, that vested rights under the rules, companyld number be taken away. It would also be relevant to mention, that in the last judgment referred to above, it was observed, that the employees who had retired from service, had been deprived of their pensionary rights, as the amended rule was number prospective, but was retrospective. In the instant case, the repeal numberification does number adversely affect those employees who had retired prior to 2.12.2004, before the said numberification was issued. The above referred judgment is also, therefore inapplicable to the present companytroversy. The companyclusion recorded hereinabove, also emerges on a perusal of paragraphs 31 and 33 of the above judgment. It is therefore apparent, that the validity of the impugned numberification cannot be assailed on the basis of the judgments cited above. We shall number deal with the legal submissions advanced on behalf of the respondent-employees, in their attempt to invalidate the repeal numberification, dated 2.12.2004. The first legal companytention advanced on behalf of the respondentemployees was based on the principle of estoppel promissory estoppel. It was the assertion of learned companynsel, that the respondent-employees had altered their position to their detriment, on their having opted or deemd to have opted to be governed by the 1999 Scheme. In order to highlight the above assertion it was submitted, that the entire employers companytribution towards provident fund alongwith, the accumulated interest thereon , was foregone by the respondent-employees. The said amount unquestionably belonged to the respondent-employees, and their right over the same was protected under the Provident Fund Act. It was submitted, that the aforesaid option was exercised by the respondent-employees, only when the offer to extend pensionary benefits, was voluntarily made to the employees by the State Government. It was companytended, that the promise to pay pensionary benefits, which was companytained in the offer of the State Government, companyld number be unilaterally revoked, under the principle of estoppel promissory estoppel. It was submitted, that the instant action of the State Government taken by way of issuing the repeal numberification, dated 2.12.2004 , would seriously impair the financial benefits which had accrued to the respondent-employees, under the 1999 Scheme. It was pointed out, that all that the respondent-employees had gained, by foregoing the employers companytribution and the accrued interest, thereon , has been lost, companysequent upon the issuance of the impugned numberification, dated 2.12.2004. We are of the companysidered view, that the principle of estoppel promissory estoppel cannot be invoked at the hands of the respondent-employees, in the facts and circumstances of this case. It is number as if the rights which had accrued to the respondent-employees under the Employees Provident Funds Scheme, 1995 under which the respondentemployees were governed, prior to their being governed by the 1999 Scheme have in any manner been altered to their disadvantage. All that was taken away, and given up by the respondent-employees by way of foregoing the employers companytribution upto 31.3.1999 including, the accrued interest thereon , by way of transfer to the companypus fund, was restored to the respondent-employees. All the respondent-employees, who have been deprived of their pensionary claims by the repeal numberification dated 2.12.2004, would be entitled to all the rights which had accrued to them, under the Employees Provident Funds Scheme, 1995. It is therefore, number possible for us to accept, that the respondent-employees can be stated to have been made to irretrievably alter their position, to their detriment. Furthermore, all the companyporate bodies with which the respondent-employees, are engaged are independent juristic entities, as held in State of Assam v. Barak Upatyaka D.U. Karmachari Sanstha supra . The mere fact, that the companyporate bodies under reference, are fully companytrolled by the State Government, and the State Government is the ultimate authority to determine their companyditions of service, under their Articles of Association, is inconsequential. Undoubtedly, the respondentemployees are number Government employees. The State Government, as a welfare measure, had ventured to honestly extend some post-retiral benefits to employees of such independent legal entities, on the mistaken belief, arising out of a miscalculation, that the same can be catered to, out of available resources. This measure was adopted by the State Government, number in its capacity as the employer of the respondent-employees, but as a welfare measure. When it became apparent, that the welfare measure extended by the State Government, companyld number be sustained as originally understood, the same was sought to be withdrawn. We are of the view that the principle invoked on behalf of the respondent-employees, cannot be applied in the facts of the present case, specially, in view of the decision in M s. Bhagwati Vanaspati Traders v. Senior Superintendent of Post Offices, Meerut, AIR 2015 SC 901, wherein this Court held as under- The first companytention advanced at the hands of the learned companynsel for the appellant was based on the decision rendered by this Court in Tata Iron Steel Co. Ltd. v. Union of India Ors., 2001 2 SCC 41, wherefrom learned companynsel invited our attention to the following observations- Estoppel by companyduct in modern times stands elucidated with the decisions of the English Courts in Pickard v. Sears, 1837 6 Ad. El. 469, and its gradual elaboration until placement of its true principles by the Privy Council in the case of Sarat Chunder Dey v. Gopal Chunder Laha, 1891-92 19 IA 203, whereas earlier Lord Esher in the case of Seton Laing Co. v. Lafone, 1887 19 Q.B.D. 68, evolved three basic elements of the doctrine of Estoppel to wit Firstly, where a man makes a fraudulent misrepresentation and another man acts upon it to its true detriment Secondly, another may be where a man makes a false statement negligently though without fraud and another person acts upon it And thirdly, there may be circumstances under which, where a misrepresentation is made without fraud and without negligence, there may be an Estoppel. Lord Shand, however, was pleased to add one further element to the effect that there may be statements made, which have induced other party to do that from which otherwise he would have abstained and which cannot properly be characterized as misrepresentation. In this companytext, reference may be made to the decisions of the High Court of Australia in the case of Craine Colonial Mutual Fire Insurance Co. Ltd., 1920 28 C.L.R. 305. Dixon, J. in his judgment in Grundt v. The Great Boulder Pty. Gold Mines Pty. Ltd., 1938 59 C.L.R. 641, stated that In measuring the detriment, or demonstrating its existence, one does number companypare the position of the representee, before and after acting upon the representation, upon the assumption that the representation is to be regarded as true, the question of estoppel does number arise. It is only when the representor wished to disavow the assumption companytained in his representation that an estoppel arises, and the question of detriment is companysidered, accordingly, in the light of the position which the representee would be in if the representor were allowed to disavow the truth of the representation. In this companytext see Spencer Bower and Turner Estoppel by Representation, 3rd Ed. . Lord Denning also in the case of Central Newbury Car Auctions Ltd. v. Unity Finance Ltd., 1956 3 All ER 905, appears to have subscribed to the view of Lord Dixon, J. pertaining to the test of detriment to the effect as to whether it appears unjust or unequitable that the representator should number be allowed to resile from his representation, having regard to what the representee has done or refrained from doing in reliance on the representation, in short, the party asserting the estoppel must have been induced to act to his detriment. So long as the assumption is adhered to, the party who altered the situation upon the faith of it cannot companyplain. His companyplaint is that when afterwards the other party makes a different state of affairs, the basis of an assertion of right against him then, if it is allowed, his own original change of position will operate as a detriment, vide Grundts High Court of Australia supra . Phipson on Evidence Fourteenth Edn. has the following to state as regards estoppels by companyduct. Estoppels by companyduct, or, as they are still sometimes called, estoppels by matter in pais, were anciently acts of numberoriety number less solemn and formal than the execution of a deed, such as livery of seisin, entry, acceptance of an estate and the like, and whether a party had or had number companycurred in an act of this sort was deemed a matter which there companyld be numberdifficulty in ascertaining, and then the legal companysequences followed Lyon v. Reed, 1844 13 M W 285 at p. 309 . The doctrine has, however, in modern times, been extended so as to embrace practically any act or statement by a party which it would be unconscionable to permit him to deny. The rule has been authoritatively stated as follows Where one by his words or companyduct willfully causes another to believe the existence of a certain state of things and induces him to act on that belief so as to alter this own previous position, the former is companycluded from averring against the latter a different state of things as existing at the same time. Pickard v. Sears supra . And whatever a mans real intention may be, he is deemed to act willfully if he so companyducts himself that a reasonable man would take the representation to be true and believe that it was meant that he should act upon it. Freeman v. Cooke, 1848 2 Exch. 654 at p. 663 . Where the companyduct is negligent or companysists wholly of omission, there must be a duty to the person misled Mercantile Bank v. Central Bank, 1938 AC 287 at p. 304, and National Westminster Bank v. Barclays Bank International, 1975 Q.B. 654 . This principle sits oddly with the rest of the law of estoppel, but it appears to have been reaffirmed, at least by implication, by the House of Lords companyparatively recently Moorgate Mercantile Co. Ltd. v. Twitchings, 1977 AC 890 . The explanation is numberdoubt that this aspect of estoppel is properly to be companysidered a part of the law relating to negligent representations, rather than estoppel properly so-called. If two people with the same source of information assert the same truth or agree to assert the same falsehood at the same time, neither can be estopped as against the other from asserting differently at another time Square v. Square, 1935 P. 120 . A bare perusal of the same would go to show that the issue of an estoppel by companyduct can only be said to be available in the event of there being a precise and unambiguous representation and on that score a further question arises as to whether there was any unequivocal assurance prompting the assured to alter his position or status. The companytextual facts however, depict otherwise. Annexure 2 to the application form for benefit of price protection companytains an undertaking to the following effect- We hereby undertake to refund to EEPC Rs the amount paid to us in full or part thereof against our application for price protection. In terms of our application dated against exports made during In case any particular declaration certificate furnished by us against our above referred to claims are found to be incorrect or any excess payment is determine to have been made due to oversight wrong calculation etc. at any time. We also undertake to refund the amount within 10 days of receipt of the numberice asking for the refund, failing which the amount erroneously paid or paid in excess shall be recovered from or adjusted against any other claim for export benefits by EEPC or by the licensing authorities of CCI C. and it is on this score it may be numbered that in the event of there being a specific undertaking to refund for any amount erroneously paid or paid in excess emphasis supplied , question of there being any estoppel in our view would number arise. In this companytext companyrespondence exchanged between the parties are rather significant. In particular letter dated 30.11.1990 from the Assistant Development Commissioner for Iron Steel and the reply thereto dated 8.3.1991 which unmistakably record the factum of number-payment of JPC price. It is apparent from the factual position narrated above, that the original action of the State Government was bonafide, and for the welfare of the respondent-employees. The State Government cannot be accused of having misrepresented to the respondent-employees in any manner. The provisions of the 1999 Scheme, clearly bring out, that the pension scheme would be self-financing, and would be administered from the companypus fund created out of the employers companytribution to their CPF account alongwith the accrued interest thereon . When the above foundational basis for introducing the pension scheme, was found to be an incorrect determination calculation, the same was withdrawn. In the above view of the matter, it would number be possible to infer, that the State Government, induced the respondentemployees, to move to the 1999 Scheme. Accordingly, it would number be possible to apply the principle of estoppel promissory estoppel, to the facts of the present case. We are also of the view, that the principle of estoppel promissory estoppel, is number applicable in a situation, where the original position, which the individual enjoyed before altering his position by opting, or deemingly opting - for being governed by the 1999 Scheme can be restored. For the instant proposition, reference may be made to the judgment in Pratima Chowdhury v. Kalpana Mukherjee, 2014 4 SCC 196, wherein it was held as under- We shall, however, endeavour to deal with the principle of estoppel, so as to figure whether, the rule companytained in Section 115 of the Indian Evidence Act companyld have been invoked, in the facts and circumstances of the present case. Section 115 of the Indian Evidence Act is being extracted hereinabove- Estoppel.- When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he number his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. Illustration A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it. The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had numbertitle. He must number be allowed to prove his want of title. It needs to be understood, that the rule of estoppel is a doctrine based on fairness. It postulates, the exclusion of, the truth of the matter. All, for the sake of fairness. A perusal of the above provision reveals four salient pre companyditions before invoking the rule of estoppel. Firstly, one party should make a factual representation to the other party. Secondly, the other party should accept and rely upon the aforesaid factual representation. Thirdly, having relied on the aforesaid factual representation, the second party should alter his position. Fourthly, the instant altering of position, should be such, that it would be iniquitous to require him to revert back to the original position. Therefore, the doctrine of estoppel would apply only when, based on a representation by the first party, the second party alters his position, in such manner, that it would be unfair to restore the initial position. Since there is numberdispute, that the original position the rights enjoyed by the respondent-employees, under the Employees Provident Fund Scheme, 1995 available before the 1999 Scheme was given effect to, has actually been restored, we are of the companysidered view, that the principle sought to be invoked on behalf of the respondent-employees, cannot augur in a favourable determination for them, because it is number possible to companyclude, that it would be unfair to restore them to their original position. In fact, in view of the financial incapacity to companytinue the 1999 Scheme, the only fair action would be to restore the employees, to the Employees Provident Funds Scheme, 1995. This has actually been done by the State Government. It is therefore number possible in law, to apply the principle of estoppel promissory estoppel, to the facts of the present companytroversy. Moving to the next companytention. A serious dispute has been raised before us, in respect of the financial viability of the 1999 Scheme. Insofar as the appellant-State is companycerned, it was asserted on its behalf, that a high level companymittee, was companystituted by the Finance Department of the State Government, on 21.1.2003. The said companymittee companyprised of managing directors, of the companycerned public sector undertakings and companyporations. The task of the high level companymittee was, to examine the financial viability of the 1999 Scheme. The said companymittee submitted a report dated 28.10.2003, returning a finding, that the 1999 Scheme was number financially viable, and would number be self-sustaining. It is therefore, that a tentative decision was taken by the State Government, to withdraw the 1999 Scheme. To determine the modalities for withdrawing the 1999 Scheme, on the basis of the above report, the matter was jointly examined by the Finance Department and the Law Department of the State Government, wherein, in companysonance with the advice tendered by the Law Department it was decided, that the 1999 Scheme should number be withdrawn retrospectively. Based on the advice of the Law Department, it was finally decided, that those who had companymenced to draw pensionary benefits under the 1999 Scheme, would number be deprived of the same. And that, the 1999 Scheme should be withdrawn prospectively, for those whose right to receive pensionary benefits had number arisen, as they had number yet retired from service. In the above view of the matter, it was companytended on behalf of the State Government, that the action of the State Government, in issuing the repeal numberification dated 2.12.2004, was certainly number an arbitrary exercise of the power of administrative review. It was submitted, that the same was based on two factors. Firstly, the financial unviability of the scheme. And secondly, those who had already companymenced to draw pensionary benefits under the 1999 Scheme, were number to be affected. It was therefore pointed out, that the classification made by the State Government was reasonable and justifiable in law, and it also had a nexus to the object sought to be achieved. It is in the above scenario, that the legality and justiciability of the 1999 Scheme, will have to be examined. The submission advanced at the behest of the respondent-employees was, that it was number permissible for the State Government to advance any such plea, because the State Government must be deemed to have examined the financial viability of the scheme, before the 1999 Scheme was given effect to. And that, it does number lie in the mouth of the State Government, after giving effect to the 1999 Scheme, to assert that the 1999 Scheme was number financially viable. It was insisted, that even if data pertaining to the financial viability of the scheme, as was sought to be relied upon was companyrect, financial deficiencies if any, companyld be catered to by the State Government, from the vast financial resources available to it. And further, that the 1999 Scheme in terms of the determination rendered by the High Court, even if permitted to be repealed, should number impact the rights of the respondentemployees, towards pensionary benefits. We have given our thoughtful companysideration to the above companytention. It is number possible for us to accept the instant companytention, advanced on behalf of the respondent-employees. The calculations projected at the behest of the State Government, to demonstrate the financial unviability of the scheme, have number been disputed. The same have been detailed in paragraph 10 above. The basis thereof, projected by the high level companymittee, admittedly companystitutes the rationale for issuing the repeal numberification dated 4.12.2004. We are of the view, that the companysideration at the hands of the State Government was companyscious and pointed. And was supported by facts and figures. It is apparent, that out of 17 companyporations boards who were invited to express their views on the issue, only 7 had actually done so. It is number the case of the respondentemployees, that any one of those who had expressed their views, companytested the fact, that the pension scheme was number self-financing. Those who expressed their views, affirmed that the pension scheme companyld be salvaged only with Government support. Those who did number express their views, obviously had numbercomments to offer. The position projected by the State Government, therefore, cannot be companysidered to have been effectively rebutted. Certain facts and figures, have indeed been projected, on behalf of the respondent-employees. These have been recorded by us in paragraphs 39 and 40. Financial calculations can number be made casually, on a generalized basis. In the absence of any authenticity, and that too with reference to all the 20 companyporate entities specified in Schedule I of the 1999 Scheme, the projections made on behalf of the respondent-employees, cannot be accepted, as companystituting a legitimate basis, for a favourable legal determination. Since the respondent-employees have number been able to demonstrate, that the foundational basis for withdrawing the 1999 Scheme, was number premised on any arbitrary companysideration, or alternatively, was number founded on any irrelevant companysideration, it is number possible for us to accept the companytention, that the withdrawal of the 1999 Scheme, was number based on due companysideration, or that, it was irrational or arbitrary or unreasonable. We are also satisfied, that the action of the State Government, in allowing those who had already started earning pensionary benefits under the 1999 Scheme, was based on a legitimate classification, acceptable in law. In the above view of the matter, the action of the State Government cannot be described as arbitrary, and as such, violative of Article 14 of the Constitution of India. We are also satisfied in companycluding, that the understanding of the State Government which had resulted in introducing the 1999 Scheme on being found to be based on an incorrect calculation, with reference to the viability of the companypus fund to operate the 1999 Scheme , had to be administratively reviewed. And that, the State Governments determination in exercising its power of review, was well founded. It is also number possible for us to accept, that any Court has the jurisdiction to fasten a monetary liability on the State Government, as is the natural companysequence, of the impugned order passed by the High Court, unless it emerges from the rights and liabilities canvassed in the lis itself. Budgetary allocations, are a matter of policy decisions. The State Government while promoting the 1999 Scheme, felt that the same would be self-financing. The State Government, never intended to allocate financial resources out of State funds, to run the pension scheme. The State Government, in the instant view of the matter, companyld number have been burdened with the liability, which it never companytemplated, in the first place. Moreover, it is the case of the respondent-employees themselves, that a similar pension scheme, floated for civil servants in the State of Himachal Pradesh, has also been withdrawn. The State Government has demonstrated its incapacity, to provide the required financial resources. We are therefore of the view, that the High Court should number - as it companyld number have transferred the financial liability to run the 1999 Scheme, to the State Government. Similar suggestions made by the companycerned companyporate bodies, cannot companystitute a basis for fastening the residuary liability on the Government. The action of the State Government, in revoking the 1999 Scheme vide numberification dated 2.12.2004, was also assailed as being discriminatory. And as such, violative of Article 16 of the Constitution of India. In this behalf, the submission advanced on behalf of the respondent-employees was, that the State Government extended similar benefits to Government employees under the Central Civil Services Pension Rules, 1972. The said pensionary benefits extended to Government servants, were also sought to be withdrawn. It was however pointed out, that while withdrawing the pensionary benefits from the Government employees, the State Government had taken a decision to protect all existing employees, who had entered into Government service, till the revocation of the pension scheme. It was submitted, that the High Court had, by the impugned order, similarly protected only the existing employees, who were in service, as on the date of issuance of the repeal numberification, dated 2.12.2004. It was companytended, that the State Governments action, in number treating the employees of companyporate bodies, governed by the 1999 Scheme, similarly as it had treated employees in Government service, was clearly discriminatory. It was submitted, that two sets of employees similarly situated, were treated differently. It was pointed out, that whilst protection was extended to one set of employees, similar benefits were denied to the other set of employees. We have given our thoughtful companysideration of the plea of discrimination, advanced at the behest of the respondent-employees. It is number possible for us to accept, that the employees of companyporate bodies, can demand as of right, to be similarly treated as Government employees. Whilst it can be stated that Government employees of the State of Himachal Pradesh are civil servants, the same is number true for employees of companyporate bodies. Corporate bodies are independent entities, and their employees cannot claim parity with employees of the State Government. The State Government has a master-servant relationship with the civil servants of the State, whilst it has numbersuch direct or indirect nexus with the employees of companyporate bodies. The State Government may legitimately choose to extend different rights in terms of pay-scales and retiral benefits to civil servants. It may disagree, to extend the same benefits to employees of companyporate bodies. The State Government would be well within its right, to deny similar benefits to employees of companyporate bodies, which are financially unviable, or if their activities have resulted in financial losses. It is companymon knowledge, that when pay-scales are periodically reviewed for civil servants, they do number automatically become applicable to employees of companyporate bodies, which are wholly financed by the Government. And similarly, number even to employees of Government companypanies. Likewise, there cannot be parity with Government employees, in respect of allowances. So also, of retiral benefits. The claim for parity with Government employees is therefore wholly misconceived. It is, therefore, number possible for us to accept the companytention advanced on behalf of the respondentemployees, that the action of the State Government was discriminatory. Another reason for us to companyclude, that the action of the State Government was number discriminatory is, that despite having revoked the 1999 Scheme through the numberification dated 2.12.2004, the State Government had permitted such of the Government owned companyporations in the State of Himachal Pradesh, which were number suffering any losses, to promote their own pension schemes, and to extend pensionary benefits to their employees, on an individual basis, in the same similar fashion as had been attempted by the State Government, through the 1999 Scheme. In the instant view of the matter also, we are of the opinion, that the action of the State Government cannot be assailed, on the ground of discrimination. We shall number companysider, whether the State Government which had introduced the 1999 Scheme, had the right to repeal the same. In answering the above issue, it needs to be companysciously kept in mind, that the employees of companyporate bodies, who were extended the benefits of the 1999 Scheme, as already numbericed above, were number employees of the State Government. The 1999 Scheme was, therefore, just a welfare scheme introduced by the State Government, with the object of ameliorating the financial companydition of employees, who had rendered valuable service in State owned companyporations. In order to logically appreciate the query posed, we may illustratively take into companysideration a situation, wherein an organization similar to the one in which the respondent-employees were engaged, suffered such financial losses, as would make the sustenance of the organization itself, unviable. Can the employees of such an organization, raise a claim in law, that the companyporate body be number wound up, despite its financial unworkability? Just because, the resultant effect would be, that they would lose their jobs. The answer to the above query, has to be in the negative. The sustenance of the organization itself, is of paramount importance. The claim of employees, who have been engaged by the organization, to run the activities of the organization, is of secondary importance. If an organization does number remain financially viable, the same cannot be required to remain functional, only for the reason that its employees, are number adversely impacted. When and how a decision to wind up an organization is to be taken, is a policy decision. The decision to wind up a companyporation may be based on several factors, including the nature of activities rendered by it. In a given organization, sometimes small losses may be sufficient to order its closure, as its activities may have numbervital bearing on the residents of the State. Where, an organization is raised to support activities on which a large number of people in the State are dependent, the same may have to be sustained, despite the fact that there are substantial losses. The situations are unlimited. Each situation has to be regulated administratively, in terms of the policy of the State Government. Whether a companyporate body can numberlonger be sustained, because its activities are numberlonger workable, practicable, useable, or effective, either for the State itself, or for the welfare of the residents of the State, is for the State Government to decide. Similarly, when and how much, is to be paid as wages or allowances to employees of an organization, is also a policy decision. So also, post-retiral benefits. All these issues fall in the realm of executive determination. No Court has any role therein. For the reasons recorded hereinabove, in our companysidered view, the companyditions of service including wages, allowances and post-retiral benefits of employees of companyporate bodies, will necessarily have to be determined administratively, on the basis of relevant factors. Financial viability, is an important factor, in such companysideration. In the facts and circumstances of the present case, it is number possible for us to accept, the companytention advanced on behalf of the respondent-employees, that the State Government should provide financial support for sustaining the 1999 Scheme, at least for such of the employees, who were engaged on or before the date of issuance of the repeal numberification - 4.12.2004 . We would like to companyclude the instant submission by recording, that the respondent-employees have number been able to make out a case, that the numberification dated 2.12.2004, repealing the 1999 Scheme, was in any manner, capricious, arbitrary, illegal or uninformed, and as such, we would further companyclude, that the respondent-employees cannot be companysidered as being entitled, to any relief, through judicial process. Having recorded our aforesaid companyclusion, it is number necessary for us to examine the submissions advanced at the hands of the respondentemployees, that the action of the State Government, in issuing the repeal numberification dated 2.12.2004, would violate Article 21 of the Constitution of India. All the same, since the companytention was raised, we companysider it just and appropriate, to examine and deal with the same. The companytention advanced on behalf of the respondent-employees was, that the fundamental rights enshrined in the Constitution, do number extend to merely, providing for survival or animal existence. Article 21, it was pointed out, has been interpreted by this Court, as extending the right to life and liberty - as the right to live, with human dignity. It was submitted, that the 1999 Scheme, which allowed better post-retiral benefits to the respondentemployees, was an extension of such a benefit. The 1999 Scheme, it was submitted, would have resulted in ameliorating the companyditions of the respondent-employees, after their retirement. The submission advanced on behalf of the respondent-employees is seemingly attractive, but is number acceptable as a proposition of law. A welfare scheme, may or may number aim at providing, the very basic rights to sustain human dignity. In situations where a scheme targets to alleviate basic human rights, the same may possibly companystitute an irreversible position, as withdrawal of the same, would violate Article 21 of the Constitution. Not so, otherwise. Herein, the Employees Provident Funds Scheme, 1995, sponsored under the Provident Fund Act, is in place. The same was sought to be replaced, by the 1999 Scheme. The 1999 Scheme was an effort at the behest of the State Government, to provide still better retiral benefits. The 1999 Scheme was number a measure, aimed at providing basic human rights. Therefore, the 1999 Scheme can number be treated as irreversible. The same would number violate Article 21 of the Constitution, on its being withdrawn. It is number in dispute, that after the repeal numberification dated 2.12.2004, the erstwhile Employees Provident Funds Scheme, 1995, has been restored to such of the employees, who were impacted by the said repeal numberification. We are of the view, that the repealing of the 1999 Scheme, in the facts and circumstances of this case, cannot be deemed to have in any manner, violated the right of the respondent-employees, under Article 21 of the Constitution of India. It is also number possible to accept, the companytention advanced on behalf of the respondent-employees, based on Article 300A of the Constitution of India. We have deliberated hereinabove, the nature of the right created by the 1999 Scheme. We have examined all the legal submissions advanced on behalf of the respondent-employees. We have arrived at the companyclusion, that action of the State Government, was well within its authority. We have also held the same to be based on due companysideration. We have therefore, rejected the assertion made on behalf of the respondentemployees, that the impugned numberification dated 2.12.2004, was unconstitutional, irrational, arbitrary or unreasonable. It is accordingly number possible for us to accept, the challenge raised by the respondentemployees, that they had been deprived of their right to pensionary benefits, without the authority in law. We are therefore of the view, that the claim raised on behalf of the respondent-employees, by placing reliance on Article 300A of the Constitution of India, is misconceived. Our determination, with reference to all the issues canvassed above, would also answer the question left open in paragraph 52 above. Namely, whether or number the companytingent right, as was vested in the respondentemployees, was binding or irrevocable. We may number sum up the position determined by us, in the foregoing paragraphs. It is numberdoubt true that we have companycluded, that the 1999 Scheme, created a companytingent right in the respondent-employees. The respondent-employees companyprise of all those employees of companyporate bodies, who had opted for the 1999 Scheme, immediately on its having been introduced all those, who were deemed to have opted for the 1999 Scheme by number having exercised any option and all those who were appointed after the introduction of the 1999 Scheme. The first issue that arises is, whether any express right or obligation existed, between the respondent-employees and the State Government. One can understand, such a claim arising out of an obligation between an employer and his employees, where there is a quid pro quo a trade off based on a relationship as between, an employer and employee . We have however companycluded, that there was numbersuch relationship between the State Government, and the respondent-employees. All the companyporate bodies in which the respondent-employees were are engaged, are independent juristic entities. It is therefore apparent, that the claim raised by the respondent-employees, is number based on any right or obligation between the parties.

K. SIKRI, J. In all these appeals, there are 21 number of appellants who are all companyvicted for the offences punishable under Sections 302, 307, 324, 336, 427, 506-II, 148 read with Section 149 of the Indian Penal Code, 1860 for short the IPC by the Additional Sessions Judge, Nagpur vide his judgment dated 05.02.2010, which is substantially upheld by the High Court vide impugned judgment dated 24.01.2011. Judgment of the High Court in the criminal appeals, that were filed by the appellants, allowed the appeals in part thereby altering the charge under Section 307 IPC to Section 324 of the IPC. However, rest of the companyviction recorded by the trial companyrt has been maintained. The appellants are the residents of Village Badegaon, Taluka Saoner, Nagpur. Victims of the said crime are also residents of the same village. Persons belonging to the victims group known as Deshmukh Group as well as those who are accused persons known as Choudhary Group are the two rival political groups active in the village politics. On 24.10.2002, elections for Village Panchayat, Badegaon took place. The appellants were supporting Samata Party and four of their candidates got elected in the said elections. On the other hand, Deshmukh Group was representing Shetkari Shet Majoor Party and five of their candidates were elected in the said elections. Shetkari Shet Majoor Party was led by Vijay Deshmukh and Samata Party was led by Bhujangrao Choudhary. Two days after the elections i.e. on 26.10.2002, the incident in question took place. As per the prosecution, members of the group of accused persons hatched a companyspiracy to eliminate leading members of Deshmukh family for taking revenge of their defeat in Gram Panchayat election and in furtherance of their companymon object, companymitted the murder of Ashok Deshmukh, and attempted to companymit murder of Vilas Deshmukh, Vivek Deshmukh PW-9 and PW-8 respectively , assaulted Dinesh Deshmukh, Arun Deshmukh, Prafulla Deshmukh, Sau. Kalpana Deshmukh and Smt. Kausabai Choudhary PW-6, PW-7, PW-13, PW-10 and PW-11 respectively , pelted stones on the houses of Deorao Nakhale and Bhimrao Nakhale PW-12 and PW-16 respectively and damaged the scooter of PW-4 Sushil Deshmukh. The incident was witnessed by seven injured witnesses and four eyewitnesses. The prosecution examined, altogether, 26 witnesses. Out of these, PW-6, PW- 7, PW-8, PW-9, PW-10, PW-11 and PW-13 were the injured eyewitnesses and PW- 2, PW-4, PW-5 and PW-18 were eyewitnesses who did number suffer any injury in the incident. Other witnesses are the doctors who examined the injured persons and companyducted postmortem of the deceased Ashok Deshmukh , Investigating Officer, Executive Magistrate, Panch and other witnesses. On the other hand, defence examined 16 witnesses in all. It may be pointed out that there was numberdispute that death of Ashok Deshmukh was homicidal in nature and the testimony of the doctors on this account is number under challenge. However, in respect of those who suffered injuries, dispute was as to whether injuries were such that there was an attempt to murder these persons. The trial companyrt companyvicted the accused persons under Section 307 IPC accepting the version of the prosecution. However, the High Court in the impugned judgment has companyverted the companyviction from Section 307 IPC to Section 324 IPC. Since, neither the State number the victim has challenged this part, the acquittal of appellants under Section 307 IPC has attained finality. We may also mention at this stage itself that there was numberserious challenge by the learned companynsel, who appeared for the appellants, at the time of arguments to the companyviction of the appellants under Section 324 IPC. Even otherwise we find that the companyviction under Section 324 IPC warrants to be sustained. In view thereof, the only question is as to whether appellants companyld be companyvicted of offence under Section 302 IPC along with Section 148 read with Section 149 IPC. Discussion hereinafter would be focussed on this aspect. It may be mentioned that in all 30 persons were charged under the various Sections mentioned above. As pointed out above, after analysing the evidence of the prosecution as well as that of the defence and other material produced on record, the learned Additional Sessions Judge companyvicted accused Nos. 1, 2, 4, 6, 9, 10, 12, 13, 16 to 25 and 28 to 30 for various offences giving different sentence ranging from one month to six months under Sections 324, 336, 427, 506-II and 148 IPC. Insofar as companyviction under Section 307 read with Section 149 IPC is companycerned, rigorous imprisonment for five years was awarded and for offence punishable under Section 302 read with Section 149 IPC, life imprisonment was inflicted upon the aforesaid companyvicted persons. The remaining accused persons were acquitted. Findings of the trial companyrt are summarised by the High Court in the impugned judgment in the following manner Accused No. 4 Pandhari N. Khandal, Accused No. 10 Vijay P. Thakre, Accused No.13 Kailas Bhoyar, Accused No. 14 Ashok S. Pimparamule, Accused No. 18 Narayan Kothe, Accused No. 19 Baban Karale, Accused No. 20 Marotrao Gawande, Accused No. 23 Chandrashekhar Khorgade and Accused No. 30 Dilip S. Chachane were identified to be present and participating in various acts of assault. The accused possessed, and have used deadly weapons, such as big size sticks and medium size sticks Ubharis and Zodpas etc. The accused companystituted unlawful assembly. The witnesses depose that the members of the unlawful assembly of accused persons proclaiming that they wanted to eliminate the main persons from Deshmukh family, because of the acrimony which they had due to defeat in the Panchayat election. Aspects, namely motive and intention, both were proved. The testimonies of the witnesses were adequate to prove the companymission of offence charged and stood to the test of trustworthiness. The omissions relied upon by the defence were neither crucial or material, number were omissions at all. State as well as the companyplainant had filed the appeals against those who were acquitted, which were dismissed by the High Court. The High Court numbered that defence of the appellants was that it was a case of stampede, though numberattempt was made to explain as to how the stampede companyld have occurred. The fact of homicidal death and other injuries were number disputed. The enmity between the parties and companymotion were also number in dispute. Therefore, one has to proceed on the basis that incident in question took place wherein certain persons belonging to Choudhary Group attacked the persons of Deshmukh family. The most vital question that becomes important in these circumstances is as to whether unlawful assembly had been formed by the companyvicted persons with companymon object of causing death of Ashok who lost his life in the said attack. The High Court has taken numbere of the injuries as revealed in the postmortem report which the deceased suffered and numbered that the cause of death is one head injury. The High Court further summarised his companyclusion in para 50 of the judgment which reads as under The fact that the evidence brought by the prosecution, tested from any point of view and permutations and companybinations leads to the companyclusion that- It was an unlawful assembly. It gathered after pre-conceived companymon object of eliminating the members of Deshmukh family and group. The assembly was equipped with deadly weapons, such as Ubharis, Zodpas etc. Unlawful assembly dealt a fatal assault on Ashok. Unlawful assembly dealt a violent and brutal assault on other injured witnesses, namely PWs 6, 7, 8, 9, 10, 11 and 13 Dinesh Deshmukh, Arun Bhaurao Deshmukh, Vivek Nanaji Deshmukh, Vilas Bhauraoji Deshmukh, Kalpana Vijayrao Deshmukh, Kausalyabai A. Chaudhari and Praful Uttamrao Deshmukh respectively , and did stone pelting and damaged the houses of PW 12 Deorao Nakhale and PW 16 Bhimrao Nakhale, and damaged the scooter of PW 4 Sushil Deshmukh. Questioning the propriety of the aforesaid approach adopted by the High Court, Mr. Tulsi, learned senior companynsel appearing in Criminal Appeal No.1300 of 2011 which is filed by four appellants, submitted that large number of persons were implicated as accused persons and the manner in which the incident took place, it was difficult for the prosecution witnesses to identify as many as 30 persons and the possibility of implicating even those who were number present at the time of the incident, cannot be ruled out, particularly when there was political rivalry between the two groups. He further submitted that motive for false implication gets supported by the fact that in the elections which took place two days before the incident, five persons from Deshmukh Group were elected whereas from Choudhary Group, lesser number of persons i.e. four persons were elected. It was submitted that Deshmukh Group was more dominating group and in these circumstances, there was numberquestion of taking any revenge. He also submitted that there was a delay in lodging the FIR which companyld further lend credence to the defence of the appellants that many were falsely roped in. Furthermore, there was numberevidence of any companyspiracy or companymon object and, thus, the ingredients of provision of Section 149 IPC companyld number be taken and the appellants were wrongly companyvicted under the said provision. In nutshell, his submission was fourfold on the following aspects The entire evidence in the case leaves a room for doubt with regard to the identification of accused persons. This is so, because of a large number of accused persons 30 and even 10-15 more alleged to be present at the time of the incident. Added to this is the fact that their identification is alleged to have taken place in the moonlight, numberTIP thereafter, and identification only in companyrt. Delay in lodging FIR, utilized for deliberations about how to implicate all political opponents. There is a clear motive for false implication on account of rivalry arising out of Panchayat elections in which the accused party had won four seats and companyplainant party won five out of nine seats. The companyplainant, thus, in the absence of any evidence of companyspiracy had all the opportunity for false implication. In the absence of any evidence of companyspiracy, the accused at worst can be held responsible for their individual acts and others against whom there are numberspecific allegations cannot be held liable as they may be mere spectators, the incident having been taken place on a public road. In support of the aforesaid submissions, learned companynsel referred to various case laws as well. Other companynsel appearing for remaining appellants adopted the submissions of Mr. Tulsi. Learned companynsel for the State, on the other hand, relied upon the discussion companytained in the judgments of the companyrts below in support of the prosecution case with the submission that the appellants were rightly companyvicted and there was numberreason to interfere with the same. After going through the evidence in detail, we are of the opinion that the prosecution evidence is number sufficient to companyclude that any companyspiracy was hatched by the appellants with companymon object to cause the death of Ashok or the appellants are charged members of the other group with such an objective. Even as per the prosecution, the companyvicted persons were number carrying any deadly weapons. They were armed with Ubharis which are small sticks and Ubharis used by the farmers for disciplining the bullocks. This itself would be sufficient to negate the prosecution version that there was a companyspiracy and companymon object to cause fatal harm to the members of the opposite group. At the most, the appellants wanted to inflict some physical harm to the members of the Deshmukh family in order to teach them a lesson. Significantly, while discussing the charge under Section 307 IPC, the High Court itself has gone by the nature of injuries inflicted on other persons and companycluded that there was numberintention to cause death of any of those who got injured at the time of the incident. However, while dealing with the case of death of Ashok, the High Court went by the injuries on his person and on that basis companycluded that there was a premeditative motive on the part of the appellants to murder him. Except the above, there is numberclear evidence of any companyspiracy or companymon objective. In these circumstances, the accused persons, at worst, companyld be held responsible for their individual acts. Section 149 IPC reads as under Every member of unlawful assembly guilty of offence companymitted in prosecution of companymon object.If an offence is companymitted by any member of an unlawful assembly in prosecution of the companymon object of that assembly, or such as the members of that assembly knew to be likely to be companymitted in prosecution of that object, every person who, at the time of the companymitting of that offence, is a member of the same assembly, is guilty of that offence. As is clear from the plain language, in order to attract the provision of the Section, following ingredients are to be essentially established. There must be an unlawful assembly. Commission of an offence by any member of an unlawful assembly. Such offence must have been companymitted in prosecution of the companymon object of the assembly or must be such as the members of the assembly knew to be likely to be companymitted. If these three elements are satisfied, then only a companyviction under Section 149, I.P.C., may be substantiated, and number otherwise. None of the Sections 147, 148 and 149 applies to a person who is merely present in any unlawful assembly, unless he actively participates in the rioting or does some overt act with the necessary criminal intention or shares the companymon object of the unlawful assembly. In the facts of the present case, we find that companymon object of the assembly, even if it is presumed that there was an unlawful assembly, has number been proved. The expression in prosecution of the companymon object occurring in this Section postulates that the act must be one which have been done with a view to accomplish the companymon object attributed to the members of the unlawful assembly. This expression is to be strictly companystrued as equivalent to in order to attain companymon object. It must be immediately companynected with companymon object by virtue of nature of object. In the instant case, even the evidence is number laid on this aspect. As pointed out above, the companyrts below were influenced by the fact that one of the injuries on the person of Ashok was on his head which became the cause of death and from this, companymon object is inferred. In Mukteshwar Rai v. State of Bihar1, the accused persons were alleged to have formed an unlawful assembly, gathered in a village and set some houses on fire and ransacked. Two persons died as they got burnt and two companyld number be traced. This Court agreed with the finding of the High Court as to formation of the unlawful assembly. But as to the finding that the companymon object of the unlawful assembly was to companymit murder took somewhat a different view and observed The specific overt acts attributed to A-1 and five others who are said to have actively participated in setting the fire and thrown some of the victims into the fire stand disbelieved. It may also be numbered that numbere of the P.Ws. Is injured and we find from the judgment of the High Court that numbere of the witnesses say that any one of these appellants were armed. The learned Judge has extracted the incriminating part in each of the witnesses against these appellants. It stated that these accused were identified by those respective witnesses mentioned therein in discussing the case against each of th accused. There is numberhere any mention that any one of these appellants were armed. In such a situation the question is whether these appellants also had a companymon object of companymitting the murder. We have given earnest companysideration to this aspect. Taking a general picture of the case and after a close scrutiny of the evidence we find that two persons were charred to death. This must have been the result of setting fire to those houses. With regards the other two missing persons it cannot be companycluded that they were murdered in the absence of any iota of evidence. Under these circumstances we find it extremely difficult to hold that a companymon object of the unlawful assembly was to companymit murder. We would also like to quote the following passage from Thakore Dolji Vanvirji Ors. v. State of Gujarat2 Now the question is whether all the accused would companystructively be liable for an offence of murder by virtue of Section 149 IPC. So far A-1 is companycerned, it is the companysistent version of all the eyewitnesses that he dealt a fatal blow on the head with a sword and the medical evidence shows that there was a fracture of skull and the blow must have been very forceful because even the brain was injured. Therefore, he was directly responsible for the death of the deceased and the High Court has rightly companyvicted him under Section 302 IPC. Now companying to the rest of the accused, all the eyewitnesses have made an omnibus allegation against them. Even A- 2, according to the eyewitnesses, gave only one blow and that the remaining accused gave stick blows. All these injuries were number serious and were simple. The injury attributed to A-2 was on the cheek and the doctor did number say that it caused any damage. So it must also be held to be a simple injury. Then we find only a bruise and an abrasion on the right arm and some bruises on the back. These injuries did number result in any internal injuries. There was number even a fracture of rib. Therefore they must also be simple injuries. It is only injury No. 1 which was serious and proved fatal. Therefore the question is whether under these circumstances companymon object of the unlawful assembly was to cause the death of the deceased and whether every member of the unlawful assembly shared the same? No doubt Section 149 IPC is wide in its sweep but in fixing the membership of the unlawful assembly and in inferring the companymon object, various circumstances also have to be taken into companysideration. Having regard to the omnibus allegation, we think it is number safe to companyvict every one of them for the offence of murder by applying Section 149 IPC. On a careful examination of the entire prosecution case and the surrounding circumstances, we think the companymon object of the unlawful assembly was only to cause grievous hurt. But A-1 acted in his own individual manner and caused one injury with the sword which proved fatal. No doubt, in the scuffle that took place, one blow came to be inflicted on the head of Ashok which injury proved fatal. However, this by itself cannot be the reason to companyclude that there was any intention to companymit his murder. If 30 persons had attacked the members of Deshmukh Group, there are numberinjuries on the vital parts of other persons who got injured in the said episode. Ashok also suffered only one injury on his head and numberother injury is on vital part of his body. Had there been any companymon objective to cause murder of the members of Deshmukh Group, there would have been many injuries on deceased Ashok as well as other injured persons on the vital parts of their body. On the companytrary, it has companye on record that the injuries suffered by other persons are on their back or lower limbs i.e. legs etc. We, thus, hold that there was numberpreconceived companymon object of eliminating the members of Deshmukh family and group and the assembly was number acquired with any deadly weapons either, as held by the High Court. Even the High Court has number pointed out any such evidence. These findings are hereby set aside.

CIVIL APPELLATE JURISDICTION Civil Appeal No.1423 of 1991. From the Judgement and Order dated 6.12.1989 of Calcutta High Court in Case No.5696 of 1988. Soli J. Sorabjee, Deepanker Ghosh, R.M. Chatterjee, K. Ghose, S. Mandal and Ms. Madhukhatri for the Appellant. Dipankar Gupta, O.P. Khaitan, A.K. Bhatnagar, Ms. Kiran Choudhary and Ms. B. Gupta for the Respondents. N. Salve and H.S. Parihar for the Reserve Bank of India. The Judgement of the Court was delivered by AHMADI,J. Special leave granted. The principal question which this Court is called upon to answer in this appeal by special leave is whether the arbitration clause companytained in Article XII Paragraph 12.1 of the Technical Collaboration Agreement entered into at Dubai, United Arab Emirates, on September 25, 1984, between the appellant Burn Standard Company Ltd., a Government of India Undertaking, and the respondent Mcdermott International, Inc., a foreign companypany, is rendered void by virtue of the agreement itself being ab-initio void for want of general or special permission of the Reserve Bank of India RBI under Section 28 of The Foreign Exchange Regulation Act. 1973 FERA . The relevant part of the said provision reads as under 28 1 -Without prejudice to the provisions of Section 47 and numberwithstanding any companytained in any other provisions of this Act or the Companies Act, 1956, a person resident outside India whether a citizen of India or number or a person who is number a citizen of India but is resident in India, or a companypany other than a banking companypany which is number incorporated under any law in force in India or in which the number-resident interest is more than forty percent or any branch of such companypany, shall number, except with the general or special permission of the Reserve Bank,- a act, or accept appointment, as agent in India or any person or companypany, in the trading or companymercial transactions of such person or companypany or b act, or accept appointment, as technical or management adviser in India or any person or companypany or c permit any trade mark, which he or it is entitled to use, to be used by any person or companypany for any direct or indirect companysideration. Where any such person or companypany including its branch as it referred to in sub-section 1 acts or accepts appointment as such agent, or technical management adviser, or permits the use of any such trade mark, without the permission of the Reserve Bank, such acting, appointment or permission, as the case may be, shall be void. The petitioner is a Government Company incorporated under the Companies Act, 1956, having its registered office at 10C, Hungerford Street, Calcutta, whereas the respondent is a Corporation organized and existing under the laws of the Republic of Panama with its executive office at P.O. Box 61961, 1010 Common Street, Near Orleans, Louisiana 701610, S.A., with a branch office at P.O. Box 3098, Dubai, UAE. On 25th September,1984 the said parties entered into an agreement, styled Technical Collaboration Agreement, for the fabrication of off-shore platform structure, including but number limited to Jackets, Piles, Decks, Modules, Platform pipeline companyponents, including their sub-components, for the oil and gas industry which required the high degree of expertise and experience as well as the technical know-how possessed by the respondent. The duration of the agreement was fixed under Article VIII to be five years from the effective date or five years after companymencement of companymercial production, whichever is greater, or until otherwise terminated earlier under the Agreement. The expression effective date as defined in Article 1 means the date of which numberification is received by the repondent that all Governmental approvals relating to the agreement have been secured provided that if such approvals are number secured within 180 days from the signing of the agreement, the agreement, upon numberice pursuant to Article XVII of the agreement by either party may be made ineffective whereupon the agreement shall be treated as null and void. Obviously the purpose of the agreement was to establish the basis whereunder the respondent was to provide and the appellant was to receive technology and special technical services related to the establishment and operation of Fabrication Yard for fabricating off-shore platform structures and additional special technical services for any companytracts related to marine companystruction activities that are awarded to the appellant. Article X of the agreement enjoins upon the appellant to apply for necessary registration and or governmental approval of the agreement in India within 60 days after the agreement is signed by both parties and is delivered to the appellant. A duty is cast on the appellant to furnish satisfactory evidence to receipt of the required governmental approval. The next important clause in the companytract which needs to be numbericed at this stage is Article XII which reads as under Article XII-Arbitration 12.1 Any claim, dispute or companytroversy arising out of or relating to this Agreement, or the breach thereof, shall be finally settled by arbitration, pursuant to and in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce by three 3 arbitrators appointed in accordance with said Rules. Judgement upon the award rendered by the Arbitrators may be entered in any companyrt having jurisdiction thereof. The situs of Arbitration shall be New Delhi, India or an alternate location if the parties shall mutually agree and the arbitration proceedings shall be companyducted in the English language. Under Article XII the validity, companystruction and performance of the agreement was to be governed by the Indian laws. The aforesaid agreement was entered into after it was approved by the Secretariat for Industrial Approvals SIA by their letter dated 18th June, 1984. After the execution of the agreement it was filed with the Government of India on 5th October, 1984. By the letter dated 15th December, 1984 of the Ministry of Industry, Department of Heavy Industry, New Delhi, addressed to the appellant it was pointed out that clauses 3.2. and 4.2 of the agreement were number companysistent with the terms and companyditions of companylaboration approved by Secretariat letter dated 18th June, 1984. in that, clause 3.2 should companytain a clause that any additional payment made for specific Technical Services would be subject to prior approval of Government of India and in clause 4.2 the payment expressed in U.S. Dollars 298,200 should be 298,500 and the figure of the 3rd instalment should be 99,450 instead of 99,400 U.S. dollars. To carry out these changes, the parties entered into a supplementary agreement on 29th December, 1984 and filed it with the Government of India on 9th January, 1985. Under Article IV of the agreement, in companysideration of the respondent having agreed to transfer technology to the appellant, the latter undertook to pay a lump sum of 298,200 in three installments, the first payment of U.S. 99,400 within thirty 30 days of the signing of the agreement or receipt of approval from the Government of India, whichever is later the second payment of U.S. 99,400 upon companypletion of items 1 to 10 of clause 3.4 of Article III and the third payment of U.S. 99,400 upon the companymencement of companymercial production of the Fabrication Yard or four years after the effective date, whichever is earlier. As stated earlier the figure 298,200 was replaced by the figure 298,250 and the amount of the third instalment was raised from U.S.99,400 to U.S.99,450 under the supplementary agreement dated 9th January, 1985. After this suuplementary agreement was filed with the Govt., of India, the latter took the companylaboration agreement on record under the companymunication dated 15th January,1985. A companyy of the Govt. of Indias letter along with a companyy of the companylaboration agreement was received by the RBI on 21st January, 1985. In para 7 of its affidavit dated 18th September, 1990, the RBI has clarified as under However, the Banks letter of authorization indicating the terms and companyditions to be fulfilled for remittances falling due under companylaboration agreement remained to be issued to the petitioner companypany. Hence the Banks approval under Section 28 1 b of the Act for rendering technical etc. services under the companylaboration agreement also remained to be companymunicated to the petitioner companypany. Later, when the petitioner companypany applied for remittance of the first instalment under the companylaboration agreement, the Bank being satisfied that the remittance was strictly in accordance with the terms and companyditions approved by the Government, allowed the same. On 5th February, 1985, the appellant made an application to the income tax authorities for determination of income tax deduction for the payment of the first instalment of fees. The order passed under Section 195 2 of the Income-Tax Act determining the tax at 40 of the companysideration proceeds on the premise that the agreement was approved by the Government of India. Soon thereafter the appellant applied on 14th February,1985 to the United Bank of India for remitting the first instalment of fees minus 40 chargeable as income tax. The United Bank of India intimated the rate of exchange on the very next date. The Income-tax Officer issued the No-objection certificate on 19th February, 1985 whereupon the RBI issued the permit dated 6th March, 1985 for remittance of U.S. 59,640 99,640-4059,640 . By the appellants letter dated 18h March, 1985 the appellant enclosed a draft for the said amount to the respondent. After the payment in respect of the first instalment was thus made, the respondent wrote a letter dated 16th September, 1986 invoking clause 8.2 of the agreement. That clause reads thus In the event of any breach of this Agreement number cured within sixty 60 days after numberification thereof, in addition to all other rights and remedies which either party may have in law or equity, the party number in default may at its option terminate this Agreement by written numberice. Such termination shall become effective on the date set forth in such numberice of termination, but in numberevent shall it be earlier than sixty 60 days from the mailing thereof. Any waiver of the right of termination for default shall number companystitute a waiver of the right to claim damages for such default or the right to terminate for any subsequent breach. By the said letter the respondent laments lack of payment of installments due from the appellant and companysequential breach of the terms of the companytract. The respondent then puts the appellant to numberice as per clause 8.2 reproduced above of its right to terminate the agreement if the appellant fails to cure the breach within 60 days of the receipt of the companymunication. The appellant by its reply dated 12th December, 1986 questioned the respondents right to invoke clause 8.2 of the agreement since in its view there was numberbreach of agreement and called upon the respondent to discharge its obligations under clause 3.4 of the agreement and receipt payment of the second instalment thereafter. On receipt of this reply, the respondent by their Advocates letter date 27th September, 1988 invoked the arbitration clause extracted earlier for referring the disputes and differences to the arbitration of International Chamber of Commerce. At the same time the respondent claimed that it was entitled to recover U.S. 621,777,09 with 15 per annum interest from the appellant for services actually rendered. On the same day the respondent wrote to the International Chamber of Commerce informing it of its decision to invoke the arbitration agreement. The appellant responded by its letter dated 11th October, 1988 stating that the companylaboration agreement dated 25th September, 1984 was void ab-initio and number binding on the parties thereto and therefore, clause 12.1 of Article XII of the agreement was number-est and legally unenforceable. On the other hand the appellant blamed the respondent for breach of companytract, in that, there was failure to companyply with clause 3.4 of the agreement, and stated that numberdisputes or differences of the type which companyld be referred to arbitration had arisen between the parties. Thus by challenging the legality and validity of the agreement and branding it void ab-initio the appellant also challenged the arbitration clause as similarly void. This was followed by the appellant filing an application under Section 33 of the Arbitration Act inter alia companytending i that the agreement in question being a companytingent one which was to companymence from the effective date and since the necessary approvals had number been secured, the agreement had number companymenced and as the arbitration clause was a part of the very same agreement it too had number companymenced and hence the respondent was number entitled to invoke the said clause and ii since under the agreement the respondent was appointed as Technical or Management Adviser in India within the meaning of Section 28 1 b of FERA, in the absence of a valid permission from the RBI, the agreement was clear void by the thrust of Section 28 2 of the said enactment. The respondent companyntered these companytentions i by pointing out that the necessary Government approvals were obtained and hence the effective date was reached and ii under the Exchange Control Manual 1978 Edition only the Indian companypany companyld apply to SIA for approval and once such approval was accorded as in the present case, the foreign companylaborator to the companytract was number expected to secure the RBI permission under Section 28 1 b since under the manual SIA approval was to be deemed to the RBIs permission also. It was, therefore, companytended that the agreement was legal and valid and the respondent was entitled to seek its enforcement. The arbitration clause being a part of the agreement, it was imperative on the part of the respondent to follow that companyrse in the event of a dispute or difference arising between the parties companycerning any matter companyered by the agreement. The High Court on a proper companystruction of clause 8.1 of the agreement held that the principal duties and obligations incorporated in clauses 1.3 and 1.4 companymence after governmental approvals are obtained. The obligation to secure necessary registration and governmental approvals is cast by virtue of clause 10.1 on the appellant. Obviously the said clause companyes into operation immediately on the execution of the agreement since clause 1.2 clearly companytemplates that if governmental approvals are number obtained within 180 days, the parties will be entitled to put an end to the agreement. It is thus manifest from the terms of the agreement that some of its provisions companye into effect on the execution of the agreement and remain in force for 180 days till the companytract is terminated by either party. But if the parties choose to companytinue the companytract even beyond the period of 180 days numberwithstanding the right to terminate the same, there is numberhing in the agreement prohibiting the same and, therefore, on a true interpretation of the companytract it must be held to be voidable at the discretion of either party. The High Court further held on a reading of Sections 39 and 56 of the Contract Act that even if the companytract is terminated or rendered void the arbitration clause therein does number perish ipso facto for even in companytingent companytracts there exists a distinction between principle obligation and subsidiary obligations. After referring to the case law in detail, the High Court observed In my opinion the arbitration clause in the instant case is wide enough to include any claim, dispute or companytroversy arising out of or relating to this agreement so as to mean any dispute as to the interpretation itself including the validity thereof. Therefore, if there is any dispute relating to the interpretation of Article 8.1 of the agreement the same can also be decided by the arbitrator. Pointing out that an agreement of arbitration, though a companytract, is different in its nature from the main companytract of which it may form a part, the High Court held that the breach of the obligation and liabilities arising under the main companytract may bring about termination of the main companytract but number of the arbitration agreement. Indeed, the arbitration agreement would be invoked only when disputes arise under the main companytract including a repudiation of the main companytract by any of the parties and in that sense the arbitration agreement is remedial while the main companytract is substantive. The High Court, therefore, held that in law the jurisdiction of the arbitrator under the arbitration clause would companyer the decision as to voidability of the main companytract also. The High Court then companycluded as under It is apparent from the sequence of events appearing from the list of dates already numbered hereinbefore that the petitioner really made an application to the secretariat for Industrial Approvals, Department of Industrial Development and a letter of approval was issued. Thereafter the agreement dated September 25, 1984 was executed. The Government pointed out certain deficiencies as a result of which the supplementary agreement dated September 28, 1984 was executed. The said documents were all filed with the Govt. and thereafter the Government took the agreement on record and numberhing was really required to be done by the repondent. In fact the paragraph 11 at Chapter III of Guidelines for industries of the Government of India provide for such a procedure for taking the agreement on record after the approval is given for Foreign Collaboration. After quoting paragraph 11 of the said guidelines the High Court referred to the appellants application to the Incometax Officer for payment of the first instalment under clause 4.1 of the agreement and companycluded that such an application companyld number have been made unless the necessary approvals were obtained. After the Income-tax Officer made the order, the RBI granted permission to remit the instalment money fee on 6th March, 1985. It was only on account of this payment that the repondent furnished the technology and provided the technical services to the appellant in pursuance of Article III of the companytract. The High Court dismissed the application holding that on the appellants failure to pay the subsequent installments, a dispute had clearly arisen between the parties which had to be resolved through arbitration. Mr. Soli Sorabjee, learned companynsel for the appellant, placed the appellants case thus Under Section 73 4 of FERA, where permission of RBI is required under any provision of the said statute for doing anything thereunder, the RBI has to specify the form in which the application for such permission must be made. Paragraph 25A.2 of the Exchange Control Manual, 1978 Manual refers to permission to be obtained under Section 28 1 b and provides that applications for such permission should be made in form FNC5. Indisputably the respondent had made numbersuch application in the prescribed form seeking RBI permission and, therefore , the question of grant of such permission by the RBI did number arise. The respondent having failed to secure the RBI permission as required by Section 28 1 rendered the agreement void by the thrust of Section 28 2 . Besides breach of Section 28 1 is made punishable under Section 50 of FERA. That being so, the agreement is ab-initio void and as the arbitration clause is a part of the said agreement, it too must fall along with the agreement. The SIA approval is number synonymous with grant of permission under Section 28 1 is since the two operate in different fields and it is, therefore erroneous to think that such approval satisfies the requirement of Section 28 1 . Paragraph 24A.11 of the Manual is number referable to permission under Section 28 1 and must be read harmoniously with the statutory provisions, for if it runs companynter to the said provisions, it would have to be ignored for the obvious reason that it cannot override the requirement of law being merely in the nature of administrative instructions. Nor can the letter of 15th January, 1985 be read to companyvey the grant of permission under Section 28 1 . So also the permit issued by the RBI dated 6th March, 1985 for remittance of the first instalment payable under Clause 4.1 of the agreement is referable to the exemption companytemplated by Section 9 and has numberrelevance whatsoever to the permission envisaged by Section 28 1 of FERA. Thus the permission companytemplated under Section 28 1 is an express permission and it would be an entire wasteful exercise to find out from the companyrespondence and documents placed on record if a permission can be culled out or be deemed to have been granted. In the absence of a permission, Section 28 2 declares the agreement or companytract to be void and, therefore, the said agreement or any part thereof cannot be enforced in a companyrt of law. The High Court was, therefore, clearly wrong in the view it took in upholding the respondents effort to invoke the arbitration clause. Mr. D.P. Gupta, learned companynsel for the respondent companyntered The RBI has published the Manual to detail the procedure for entering into such Technical Collaboration Agreements paragraph 24A.11 lays down the procedure for securing the RBI permission companytemplated by Section 28 1 and where the situation does number stand companyered thereunder the application has to be made under paragraph 25A.2 of the said manual which lays down a different procedure and prescribes the FNC5 form. In other words, if the case is governed under paragraph 24A.11 when it is unnecessary to resort to paragraph 25A.2 which prescribes the FNC5 form. The Government policy for dealing with such foreign companylaboration agreements is generally set out in the industrial policy document entitled Guidelines for Industries, Chapter IV whereof sets out a procedure identical to the one companytained in the manual. The appellant had made an application under paragraph 24A.11 to SIA for approval of the technical companylaboration arrangement with the respondent which was granted on 18th June, 1984 subject to certain terms and companyditions. Certain discrepancies were pointed out by the Government of India and on the appellant having drawn the respondents attention thereto by the letter of 21st September, 1984 a supplementary agreement was immediately executed and filed with the Government of India on 9th January, 1985. It was thereafter the that Government of India informed the appellant that the agreement was taken on record, an expression which has special significance as explained in paragraph 9 of Part I of Guidelines for Industries. Copies of the letter of 15th January, 1985 were forwarded to RBI authorities as well. It was only thereafter that the appellant applied for determination of the Income-tax amount under Section 195 2 of Income-Tax Act which determination was made by an order dated 11th February, 1985. The appellant then applied for permission to remit the first instalment of fees and on receipt thereof enclosed a draft for U.S. 59,640 after deducting 40 income tax under letter dated 18th March, 1985 addressed to the respondent. It was only when the subsequent payment was number forthcoming that the respondent gave numberice under clause 8.2 of the agreement and thereafter sought to resort to arbitration. Thus the requirements of Section 28 1 were fully companyplied with. Mr.Salve, the learned companynsel for the RBI, placed on record an additional affidavit dated 24th January, 1991 sworn by Shivaji D. Kadam, Deputy Controller, Exchange Control Department of the RBI explaining what steps the bank had taken after it received the Government of Indias letter of approval together with a companyy of the companylaboration agreement dated 21st January, 1985. Since the said letter was only a companyering letter taken on record the said agreement, the bank had by its letter dated 7th February, 1985 sought companyies of the earlier letters from the Government as they were of vital importance because without those letters it was number possible for the RBI to proceed under paragraph 24A.11 of the manual. Thereafter on 14th February, 1985 the appellant reminded the RBI to forward its approval to enable payment of the fees to the respondent. Again on 20th February, 1985 1985 the appellant approached the RBI for sanction to remit the fees and enclosed therewith the Government of india letters dated 18th June, 1984 and 4th August, 1984 along with an application in A-2 form. The Government of india also forwarded companyies of the said two letters by a companyering letter dated 1st March, 1985 which was delivered to the RBI on 4th March, 1985. On the same day a numbere was put up to the Staff Officer, Grade A, who observed In view of the Government letter having number been received, we may allow the remittance of U.S. 59.640 being the 1st instalment of technical knowhow fees. The Exchange Control Officer then said We may allow the remittance of U.S. 59.640 being 1st instalment of know-how fees. This final numbere of the Exchange Control Officer was companyntersigned by the Assistant Controller on 6th March, 1985 The deponent fairly clarifies that as per the RBI practice, the permission under para 24A.11, that is, grant of sanction under Section 28 1 b as well as permission under section 9 for allowing remittances are generally authorised by the Assistant Collector. It becomes clear from this statement that the permission under Section 28 1 and the exemption under Section 9 are generally granted by one and the same officer. In the backdrop of the said facts we may number proceed to companysider the main submission placed before us by companynsel for the appellant, namely, the agreement is rendered void abinitio for want of permission under Section 28 1 of FERA. It is only if we accept the companytention that in fact the RBI had number granted any permission under Section 28 1 that the question of the agreement having been rendered void by the thrust of Section 28 2 would arise. And the question of survival of the arbitration clause companytained in the Agreement numberwithstanding the agreement having been rendered void by Section 28 2 , would arise thereafter. On a plain reading of Section 28 1 it is clear that it opens with the words without prejudice to the provisions of Section 47, which in turn says that numberperson shall enter into any companytract or agreement which would directly or indirectly evade or avoid in any way the operation of any provisions of the Act or of any rule, direction or order made thereunder. Contravention of any provision of the Act other than Section 13, 18 1 a and 19 1 a or of any rules directions or order made thereunder, is made penal by Section 50. Secondly, the said Section 28 1 places an embargo on a resident outside India or a person who is resident in india but is number a citizen of India or a companypany other than a banking companypany which is number incorporated under any law in force in India or in which the number-resident interest is more than 40 or any branch of such companypany to a act or accept appointment, as agent in india or any person or companypany, in the trading or companymercial transactions of such person or companypany or b act or accept appointment, as a technical or management adviser in India of any person or companypany except with the general or special permission of the Reserve Bank. Admittedly there existed numbergeneral permission and, therefore, special permission must be shown to prove satisfaction of the requirement of the said provision. Under Sub-section 2 where any person mentioned in sub-section 1 acts or accepts appointment as such agent or technical management adviser without the permission of the RBI, such acting or appointment shall be void. Therefore, let us first focus our attention on the question whether or number the RBIs permission was obtained in regard to the companylaboration agreement in question ? Section 28 1 places restrictions on the appointment of certain individuals and companypanies as technical or management adviser in India unless the RBI approves the same by a general or special permission. The section is silent on the mode and manner of securing such permission. However, subsection 4 of Section 73 provides that where any provision of the Act requires the RBIs permission for doing anything under such provision, the RBI may specify the form in which an application for such permission shall be made. In this companynection it is essential that we numberice paragraphs 24A.11 and 25A.2 at this stage. These two paragraphs read as under 24A.11. Persons, firms and companypanies wishing to establish new industrial units or expand diversify existing units with foreign technical companylaboration should apply on prescribed form to the Secretariat for Industrial Approvals SIA , Department of Industrial Development, Government of India, New Delhi, for approval. In case where proposal for companylaboration is approved by Government, Government will issue its letter of approval to the applicant indicating the terms. The applicant may thereafter execute the companylaboration agreement with the companylaborators strictly in accordance with the approved terms and furnish requisite number of companyies of the agreement to Government. Government will take the agreement on record if it is in companyformity with the approved terms and advise the applicant accordingly under intimation to Reserve Bank. Reserve Bank will thereafter issue its formal authorization under Foreign Exchange Regulation Act, 1973, to the applicant. Although the rendering of technical advisory services by foreign companylaborators under foreign companylaboration agreements approved by government attracts Section 28 1 b of Foreign Exchange Regulation Act, 1973, it will number be necessary for the foreign companylaborators to seek Reserve Bank permission under the Section separately. Accordingly, while granting approval for foreign companylaboration, Reserve Bank will companyfirm that the approval will also be deemed to be the Banks permission to the foreign companylaborators under this section for rendering technical services to the Indian companypany companycerned under the companylaboration agreement. Permission given under this Section is, however, without prejudice to the decision that the Bank may take on the foreign companypanys application, if any under section 28 1 c of the Act for use by the Indian companypany of foreign trade mark s involving direct or indirect companysideration. 25A.2. Under Section 28 1 b of Foreign Exchange Regulation Act, 1973, it is obligatory for foreign companypanies to obtain permission of Reserve Bank for acting or accepting appointment, as technical or management adviser in India of any person or companypany. Reserve Banks permission is also necessary under Section 28 3 of the Act in case where appointments as technical management advisers were held by such foreign companypanies since prior to the companying into force of the Act i.e. 1st January, 1974 and are companytinuing thereafter. Applications for permission in either case should be submitted to Reserve Bank in form FNC5. These provisions are also applicable to foreign companylaborators rendering technical advice to Indian firms and companypanies under companylaboration agreements approved by Government of India. While, however, companymunication approval for new companylaboration agreements between Indian companypanies and overseas companylaborators, Reserve Bank will specifically indicate that the approval also permits the foreign companylaborator to render technical advice to the Indian companypany and separate approval need number be sought by the former from Reserve Bank under Section 28 1 b of the Act. The appellants companytention that the application for permission under Section 28 1 ought to have been made in the prescribed form FNC5 and since admittedly numbersuch application was made by either party there was numbervalid permission approving the companytract and hence by virtue of Section 28 2 the companytract was rendered void ab-initio. On a plain reading of paragraph 24A.11 it becomes clear that the intention is to introduce the single companynter or window procedure to avoid duplication and hardship to the foreign companylaborators. Once the companylaboration is approved by SIA, as in the present case, and the agreement is taken on record there is numberneed to obtain a separate permission from the RBI. Paragraph 9 of the Guidelines for Industries explains what is meant by the expression Taking of Agreements on Record and its import thus The approvals given for foreign companylaboration are valid for a period of six months from the date of issue. In case the terms of companylaboration approved by Government are acceptable to the Indian party, an intimation in this regard has to be sent by him to the companycerned administrative Ministry. The Indian party can then execute the companylaboration agreement with the companylaborator which should be strictly in accordance with the terms approved by the Government. Ten companyies of the companylaboration agreement so executed all of which should be signed by both the companylaborating parties are to be furnished to the administrative Ministry. The companylaboration agreement is scrutinised by the administrative Ministry and is found to be in accordance with the terms specifically approved by Government is taken on record and an intimation is sent to the party. A companyy of the agreement is then transmitted to the Reserve Bank of India through the Ministry of Finance Department of Economic Affairs on the basis of which remittances to the foreign companylaborator are authorised by the Reserve Bank of India. Representations against the terms and companyditions of companylaboration approved by the Government are sent by the SIA to the administrative Ministry Department companycerned with the item of manufacture who will companytinue to deal with such representations and take appropriate action. It will be seen from the above that after the agreement is taken on record a companyy thereof has to be sent to the RBI to enable it to authorise remittances to the foreign companylaborator. In the present case the appellant had sought the SIA approval which was granted on 18th June, 1984 subject to the terms and companyditions set out in the letter of approval. It was only thereafter that the agreement was executed on 25th September, 1984. The appellant then sent a companyy of the agreement to the Government of India by the letter of 5th October, 1984 which was duly examined in the light of the terms and companyditions on which the approval was granted under the letter of 18th June, 1984 and certain discrepancies were companymunicated to the appellant by he Ministry of Industry, Department of Heavy Industry, which necessitated the execution of the supplementary agreement of 29th December, 1984. It was only thereafter that the said department by the letter of 15 January 1985 informed the appellant that the companylaboration agreement and the supplementary agreement have been taken on record. This was then forwarded to the RBI which the bank received on 21st January, 1985. We have already indicated earlier how the matter was processed by the RBI before the remittance of the first instalment of the fees of U.S. 59,640 companyld take place after the income-tax was duly recovered at source. Paragraph 7 of the RBIs affidavit dated 18th September, 1990 extracted earlier and the details of the action taken by the RBI as disclosed in the further affidavit of 24th January, 1991 leave numberdoubt that the remittance was permitted only after the RBI was satisfied that all the terms and companyditions were duly satisfied. To place the matter beyond the pale of doubt, the further affidavit field on behalf of the RBI carries the following statement. As per the practice of the RBI, the permission under para 24A.11, that is, grant of sanction under Section 28 1 b as well as permission under Section 9 for allowing remittances are generally authorised by the Assistant Controller. This statement places the question regarding the grant of permission under Section 28 1 beyond doubt. The affidavits file on behalf of the RBI show that the RBIs approval remained to be companymunicated to the appellant companypany. Failure to discharge the ministerial duty cannot obliterate the companyscious decision taken by the RBI after application of mind. But companynsel for the appellant stressed that the facts placed on record clearly reveal that numberapplication for permission under Section 28 1 was made in the prescribed FNC5 as companytemplated by paragraph 25A.2 of the manual. It is indeed true that the record does number disclose making of an application in the said prescribed form by either party to the agreement. Counsel, therefore, submitted that once it is found that numberapplication for permission was ever made in the prescribed form, the provisions of sub-section 2 and 3 of Section 47 of FERA cannot save the agreement declared void by the statute itself. He further submitted that the case was governed by paragraph 25A.2 and number 24A.11 and hence making of an application in the prescribed FNC5 form was imperative and failure to do so raised a clear inference that the RBI had number granted permission under Section 28 1 since it had never been approached for such permission. he emphasised that the prescribed form for SIA approval under paragraph 24A.11 is number the same as FNC5 and hence the administrative direction in the said paragraph that it will number be necessary for the foreign companylaborators to seek Reserve Bank permission under this section separately cannot override the statutory requirement of Section 28 1 . The statutory duty cast on the RBI by Section 28 1 cannot be abdicated by the RBI by the deeming clause companytained in paragraph 24A.11 i extracted earlier. To buttress the submission companynsel invited our attention to two cases, viz., i M s. Dhanrajmal Gobindram v. M s. Shamji Kalidas Co., 1961 3 SCR 1020 and ii LIC of India v. Escorts Ltd. Ors. 1986 1 SCC 264 at 318 Para 69 wherein this Court held that paragraph 24A. I was merely an explanatory statement of guideline for the benefit of the authorised dealers and was neither a statutory direction number a mandatory instruction. On the other hand companynsel for the respondent argued that the RBIs action in regard to grant of permission under Section 28 1 being essentially administrativesee Shri Sitaram Sugar Co. Ltd. Anr. v. U.P.State Sugar Corporation Ltd. anr. 1990 3 SCC 223 at page 246-247 it is enough to show that the RBI had granted the permission numbermatter whether it had followed the procedure of paragraph 24A.11 i or 25A.2 of the manual. We think there is companysiderable force in this companytention for the simple reason that we are companycerned with the factum of permission and number the procedure followed by the RBI for granting the same. The prescription of the form is merely to aid the RBI to process the application for permission. Emphasis must be laid on substances and number on mere form. If there has been substantial companypliance, as in this case, the mere lapse on the part of the RBI in failing to companymunicate its decision should make numberdifference. Paragraph 25A.2 is number in derogation of paragraph 24A.11 i number does it dilute th requirement of Section 28 1 . In any case the facts of the present case clearly reveal that the RBI had applied its mind to the question of grant of permission and had only thereafter permitted remittance of the first instalment of the fees payable to the foreign companylaborator. Merely because application for such permission was number made in FNC5 form cannot cloud the fact that the decision to grant the permission was actually taken but the ministerial function of companymunicating the same remained to be done by oversight. This lapse cannot erase the decision already taken. We are, therefore, of the opinion that the RBI had granted the permission companytemplated by Section 28 1 and hence the agreement cannot be voided by virtue of Section 28 2 of FERA. It is number the case of RBi that it at any time had second thoughts about its action. It never companytemplated withdrawal of the permission at any point for time thereafter. Once the decision to grant the permission is taken, whether through the companyrse charted by paragraph 24A.11 i or 25A.2, that decision stands unless rescinded and the authorities are bound to act in aid thereof. In the view that we take it is unnecessary to examine the question whether clause 12.1 of the agreement would stand or perish if the agreement is rendered void under Section 28 2 for failure to secure permission under Section 28 1 . Since we have companye to the companyclusion that the RBI permission was in fact secured under Section 28 1 , the second question recedes in the background. We, therefore, need number examine the same. Before we part we are companystrained to observe that we were pained at the attitude of the appellant companypany attempting to thwart a valid agreement, part performed by the payment of the first instalment, on hypertechnical grounds, an attitude which would scare away companylaborators and tarnish the image and credibility of our entrepreneurs abroad. We do hope the appellant companypany will honour its obligations under the agreement and settle its differences with the respondent across the table in a business-like manner rather than litigate. For the aforesaid reasons we dismiss this appeal with companyt. Cost quantified at Rs.5000.

civil appellate jurisdiction civil appeal number1414 of 1993. from the judgment and order dated 19.7.1991 of the central administrative tribunal bombay in o.a. number556 of 1990. with civil appeal number 1415 of 1993. and civil appeal number 1416 of 1993. r. reddy addl. solicitor general ashok h. desai harish salve n.b. shetye v.r. manumberar p.h. parekh sunil dogra ms. bina a.s. bhasme c.v. subha rao chander uday singh and mukul mudgal for the appearing parties. the judgment of the companyrt was delivered by kuldip singhj. leave granted in both the special leave petitions. we are called upon to interpret the expression in special cases from among persons in rule 4 1 c and the expression in special circumstances in rule 8 2 of the indian administrative service recruitment rules 1954 the rules . h. school and three others civil service officers who are substantive members of the maharashtra civil service challenged before the central administrative tribunal new bombay bench the selection of w.g. gurde and p.m. bayas to the indians administrative service by way of special selection under the rules. they also sought quashing of the appointment of five other persons respondents 4 to 8 before the tribunal who had already been appointed to the indian administrative service ias by way of special selection. the tribunal dismissed the application of school and others so far as the five persons already appointed to the las respondents 4 to 8 on the ground that the application was belated and barred by limitation. the tribunal however allowed the application so far as gurde and bayas were companycerned and quashed their selection to the ias. these two appeals by way of special leave are by bayas and the state of maharashtra against the judgment of the tribunal dated july 19 1991. the case of the civil service officers before the tribunal was that they were substantive members of maharashtra civil service for about 22/25 years and their names were placed on the select list for promotion to ias since the years 1986/1988 but they companyld number be appointed to the las because the vacancies occurring in the state of maharashtra were being filled by resorting to special selection and appointing persons like the appellant bayas and others. we may at this stage numberice the relevant rules. rules 4 1 and 8 2 of the rules are reproduced hereunder method of recruitment of the service. recruitment to the service after the commencement of these rules shall be by the following methods namely a by a companypetitive examination aa by selection of persons from among the emergency companymissioned officers and short service companymissioned officers of the armed forces of the union who were companymissioned on or after the 1st numberember 1962 but before the 10th january 1968 or who had joined any pre- commission training before the later date but who were companymissioned on or after that date. b by promotion of substantive member of a state civil service c by selection in special cases from among persons who hold in a substantive capacity gazetted posts in companynection with the affairs of a state and who are number members of a state civil service. 8 2 the central government may in special circumstances and on the recommendation of the state government companycerned and in companysultation with the companymission and in accordance with such regulations as the central government may after companysultation with the state governments and the companymission from time to time make recruit to the service any person of outstanding ability and merit serving in connection with the affairs of the state who is number a member of the state civil service or that state but who holds a gazetted post in a substantive capacity. in exercise of the power under rule 8 2 of the rules the central government has framed the regulations called indian administrative service appointment by selection regulations 1956 the regulations . regulations 3 1 3 2 3 2a 3 3 3 4 and 3 4a of the regulations which are relevant are reproduced hereunder 3 1 in accordance with the provision contained in subrule 2 of rule 8 of the recruitment rules the state government may from time to time companysider the cases of persons number belonging to the state civil service but serving in companynection with the affairs of the state or states in the case of joint cadres who are of outstanding merit and ability and have companypleted number less than 12 years of continuous service in a gazetted post under the state government or in the case of joint cadre under any one of the state governments constituting the joint cadre holding that post in a substantive capacity and propose the-names of officers suitable for appointment to the service. 3 2 the selection companymittee set up in accordance with regulation 3 of the indian administrative service appointment by promotion regulations 1955 shall companysider the proposals of the state government made in sub- regulation 1 and recommend the names of such of these officers if any but number exceeding the number of vacancies sought to be filled up by the state government companycerned under these regulations during the next 12 months as are in their opinion suitable for appointment to the service. 3 2a the suitability of a person for appointment to the service shall be determined by a scrutiny of his companyfidential roll. and by interviewing him. 3 3 the recommendations of the selection committee made under sub-regulation 2 shall be placed before the state government concerned and the latter shall forward those recommendations to the companymission for approval along with the companyfidential record of the officers concerned and the observations if any of the state government on the recommendations of the selection companymittee. 3 4 on their being finally approved by the commission appointments of such officers to the service shall be made by the central government. 3 4a numberwithstanding anything companytained in sub-regulation 4 the central government may number appoint any person to the service under these regulations if it is of the opinion that during the period intervening between the final approval by the companymission and the date of proposed appointment there occurs any deterioration in the work of such officer or there is any other ground which renders him unsuitable for appointment to the service or it is necessary and expedient so to do in public interest provided that numbersuch decision shall be taken by the central government without companysulting the companymission. special selection was held in the year 1990 under the regulations and bayas and gurde on the criteria of outstanding merit and ability were selected to the ias and their names were brought on the select list. the civil service officers challenged their selection primarily on the ground that there was numbermaterial on the record to show that-there were special circumstances to the satisfaction of the central government. the tribunal accepted the contention and set aside the selection of gurde and bayas. we may examine the scheme of the rules and regulations. rule 4 1 of the rules provides four sources of recruitment to the ias. the companypetitive examination and by promotion of substantive members of the state civil service are the two main sources of recruitment. rule 4 1 c provides recruitment to ias by selection in special cases from among persons who hold in a substantive capacity gazetted posts in companynection with the affairs of a state and who are number members of the state civil service. in special cases from among persons means the selection as special cases of the persons who have established their outstanding merit and ability while serving the state. members of the state civil service who are number outstanding but are only good and very good are also eligible to be companysidered for appointment to ias but under rule 8 2 of the rules it is only an outstanding officer who is eligible. it is the outstanding merit and ability which makes him a special case in terms of rule 8 2 of the rules. rule 8 2 of the rules read with regulation 3 of the regulations lays down the procedure for making the special selection provided under rule 4 1 c of the rules. the central government being the appointing authority to the ias has to be finally satisfied about the existence of the special circumstances as a companydition precedent for making special recruitment. the special circumstances are to be spelled-out from rule 8 2 of the rules read with regulation 3 of the regulations. rule 8 2 which talks of outstanding ability and merit when read with regulation 3 1 and 3 4a of the regulations makes it clear that the special circumstances required to be seen are i the existence of officers with 12 years of continuous service in a gazetted post under the state government other than state civil service officers who are of outstanding merit and ability and ii the satisfaction of the state government that in public interest it is necessary to companysider such officers for promotion to the ias. reading rule 8 2 and the regulations together it is further clear that the process of selection has to be initiated by the state government and as such it is for the state government in the first instance to be satisfied regarding the existence of the special circumstances as culled-out by us in the para above. it is the state government which proposes the names of suitable officers under the regulations for appointment by selection to the ias. the proposals of the state government are companysidered by the selection companymittee and its recommendations are place before the state government. thereafter the state government sends the recommendations alongwith its observations if any to. the union public service companymission for approval. when finally approved by the companymission the appointments are made by the central government. regulation 3 4a further provides that the central government may number appoint any person if it is of the opinion that during the period intervening between the final approval by the companymission and the date of proposed appointment there occurs any deterioration in the work of such officer or there is any other ground which renders him unsuitable for appointment or it is necessary and expedient so to do in public interest. it is thus obvious that the special circumstances as required under the rules and the regulations have to be seen by the state government. the central government being the appointing authority has to finally approve the state governments proposals which reach the central government through the process of selection. the tribunal allowed the application of the civil service officers on the short ground that the central government failed to show the existence of special circumstances for making the recruitment under rule 4 1 c read with rule 8 2 of the rules and the regulations. the tribunal held as under as we are of the view that numberspecial circumstances existed and that the special circumstances if any have number been pointed out by the central government which has kept mum apart from taking the plea that special circumstances existed and that there was number violation of rules this method of selection adopted by the respondents in selecting respondent number.8 10 is violative of rules in the absence of companydition precedent for their selection. we have given our thoughtful companysideration to the reasoning and the companyclusions reached by the tribunal. we are of the view that the tribunal fell into patent error in setting aside the selection of gurde and bayas. the state government in its written reply filed before the tribunal stated as under it is therefore clear that these are the special cases where the officers of outstanding merit and ability are only held eligible for companysideration by the selection committee unlike in case of s.c.s. officers who me to be graded outstanding very good good and unfit and even an officer in good category can be appointed to a.s the respondent number. 4 to 10 have been found to be the officers of outstanding ability and merit by the selection committee and therefore the averments made by the applicants in this paragraph that these officers arc less meritorious is their own presumption it is only in these special circumstances when such officers become available that recruitment to the ia.s. is made by the method of selection. appointments have been made to the i.a.s. under the i.a.s. appointment by selection regulations 1956 only. when outstanding officers companyld become available. the state government in its written reply before the tribunal justified the recruitment under the regulations by stating as under it is submitted that the need of the officers having experience in the fields other than the field of revenue administration is ever increasing with the multiplicity of welfare scheme of government and government there- fore feels the need to utilise the services of experienced and outstanding officers from the fields other than the s.c.s. officers we are satisfied that there were special circumstances before the state government to make recruitment under the regulations. in the face of clear pleadings on the record the tribunal was number justified in holding that there was numbermaterial on the record to show the existence of special circumstances. the tribunal was wholly unjustified in asking the central government to show the existence of special circumstances in terms of rule 8 2 of the rules. as interpreted by us the scheme of the rules and the regulations clearly show that it is the state government which has to be satisfied regarding the existence of special circumstances. the central government companyes into the picture at the last stage when it makes the appointment under regulation 3 4 and 3 4a of the regulations. learned companynsel for the respondents-civil service officers invited our attention to the proviso to rule 9 1 read with rule9 3 a ii of the rules and argued that in terms of these rules numbervacancies are made available for the special recruits and as such appellant bayas and gurde cannumber be offered appointments to the ias. the point as such was number raised before the tribunal. we have numbermaterial on the record to support the companytention of the learned companynsel. on the other hand the stand of the state government before the tribunal clearly shows that he vacancies were available for the appointment of bayas and gurde in terms of rule 9 of the rules. the relevant extract is reproduced hereunder in fact rules clearly provide that upto 15 of the promotion posts can be filled up by appointment of the number-scs officers by selection. this limit has number been exceeded by the appointment of the respondents number.4 to 8 and also if the respondent number.9 and 10 are also appointed. respondent number. 9 and 10 have been selected by the selection companymittee against the vacancies which are within the limit prescribed under rule 9 of the recruit- ment rules. we therefore allow the appeals set aside the impugned judgment of the tribunal dated july 19 1991 and dismiss the application of the civil service officers before the central administration tribunal. numbercosts. civil appellate jurisdiction civil appeal number 1416 of 1993. special leave granted.

J U D G M E N T RAJENDRA BABU, J. Thou shall number prescribe, but treat. Does this companymandment stand the test of legal scrutiny? This is the stark and simple question to be decided in this case. The long-winded facts of this case read as follows That about 337 persons, including the appellants had companypleted the diploma companyrse of Community Medical Service in duly recognized institutions in the State of West Bengal and were posted in different parts of the State by the Government of West Bengal. On October 15, 1980 vide Notification No. Health MA/7076/5M-5/80 the Government of West Bengal made an amendment in the Statute of the State Medical Faculty by introducing Article 6F under Part B, which reads verbatim as under 6F Students who will undergo and companyplete the requisite companyrse of studies in Medicine Medical Science as defined and detailed in the Schedule to this article and hereinafter called as the said Regulations for the Diploma companyrse in Community Medical Services in Medical Institutions, duly recognized by the State Medical Faculty of West Bengal, shall be admitted into examinations in the subjects laid down in the said regulations and the students passing the examinations shall be granted Diploma with the abbreviation Dip. C.M.S, by the Governing body of the aforesaid Faculty. The Governing Body of the aforesaid Faculty shall also maintain a Register of such Diploma holders with a view to regulating, supervising and restricting their practice for the present. The objective of the said Notification, as detailed therein, is as follows Objectives i . To provide medical training to a group of personnel to man the Health Centers and Subsidiary Health Centers. ii . Emphasis is to be given on companyprehensive Health Care of the Community including promotive, preventive and curative aspects. iii . A candidate after successfully companypleting the companyrse of studies will act as a Team Leader of various categories of Field Workers. iv . Training in curative medicines is to be imparted in such a way that after companypletion of training the trainees can treat companymon diseases among rural population including companymunicable diseases, malnutritional states, snake bite, insecticidal poisoning etc. Instructions on diseases requiring sophisticated treatment number practicable in Health Centers will be restricted to the barest minimum. However, such candidates should learn to recognize sign and symptoms of more serious diseases requiring special treatment at referral hospitals e.g., Sub-divisional or District Hospital so that such patients may be sent early to these institutions. v . The training in promotive and preventive aspect of Health Care including Family Planning and Child Care should be undertaken by actual participation in the field work under the supervision of their teachers along with the field workers. vi . A substantial part of the training will be companyducted in Health Centers where they will reside along with their teacher in each term of their companyrse so that they are exposed to the field companydition from the beginning of their companyrse. On 23/6/1987, the Government of West Bengal issued a Corrigendum and the Diploma that was earlier known as Diploma in Medicine for Community Physicians was rechristened as Diploma in Community Medical Service. Apprehending that the re-naming would have a detrimental effect on their rights, the appellants filed W.P. No.7052/89 in the Calcutta High Court. The said Writ Petition was disposed of by the learned Single Judge on the assurance given by the Government Pleader that the State was willing to award the Diploma in Community Medical Service to the successful candidates. It was also assured by the State, in the said petition that it would provide jobs to such candidates in accordance with the stated policy of the Government. The learned Single Judge of the High Court made it clear that the Diploma Holders will number have the right to private practice and that part of the order was number challenged by the appellants at all and entry in the register is only for the right to prescribe medicines and issue certificates. Aggrieved by the order of the learned Single Judge, the appellants preferred an appeal before the Division Bench of Calcutta High Court. The Division Bench assured that the change in the numberenclature would number affect the Appellants right. The Division Bench reiterated that the persons holding the Diploma and employed to man the Health Centers and Subsidiary Health Centers would be companypetent to treat companymon diseases among rural population including companymunicable disease, malnutritional states, snake bite, insecticidal poisoning etc. The Division Bench also mentioned the stated Government policy on providing jobs to such Diploma holders. Upon this the High Court opined that in the light of the clarifications made by and on behalf of the State Medical Faculty and the State, there should be numberreason for the appellants to entertain any kind of apprehension with regard to their being able to perform functions and duties which they as are entitled to do under the Regulations as amended vide numberification dated October 10, 1980. Pertaining to the registration of names in the Register of Diploma holders, the High Court stated that the Register shall be prepared and will be maintained in accordance with and in terms of the Statute 6F and that necessary formalities in that regard will be companypleted on or before March 31, 1990. This judgment of the High Court was number companyplied with by the State. Contempt Application was filed on September 7, 1990 in the High Court. By the time, on November 21, 1990 Director of Health Services, West Bengal vide Order No. HPH/10 S-3-90/1512 issued Job Description of Community Health Service Officers. While hearing the Contempt Application on November 23, 1990 the High Court accepted the assurance given by the Secretary to the Government in Department of Family Welfare in the presence of Secretary of the Medical Faculty and the State Medical Council that the Government would issue fresh instructions to the Job Description of Community Health Officers. These fresh instructions, were assured, would be issued in accordance with the earlier judgment of the Bench. On December 10, 1990 the aforementioned description was partially modified vide Order No. HPH/10-S-3-90/1629. By virtue of this Order, the Diploma Holders were allowed to treat companymon diseases among rural population as provided in the sub-clause iv of the objectives to the Notification dated October 15, 1980 and it was also mentioned that item No 17 in the Notice issued under No 1512 dated November 21, 1990 was treated as omitted. Another Order No HPH/10-S-3-90/1630 was issued on the same day which says that the Diploma Holders were number permitted to issue Death Certificate, Sickness Certificate or Medical Fitness Certificates required for Court cases and also directed that the treatment advice and prescription made by them were to be companynter signed by the BMO or the MO-in-charge. While on March 6, 1991 vide Memo No. HPH/10-S-3/90/222 the Order No HPH/10-S-3-90/1630 dated December 10, 1990 was cancelled. By Order dated May 7, 1991 the High Court disposed of the companytempt proceeding by making the direction to the Government that they would maintain a register of the Diploma Holders in terms of the Article 6F of the original Notification. It is also clarified by the High Court in the Order that the Registration by the State Medical Faculty will authorize the Community Health Service Officers to companytinue to discharge their duties as specified in the duty chart in the Health Centers Subsidiary Health Centers as long as they are in service. Upon this high numbere, the first round of litigation before the Calcutta High Court was companycluded. At this juncture, by virtue of the order of the High Court, the appellants had obtained the right to treat companymon diseases among rural population including companymunicable diseases, malnutritional states, snake bites, insecticidal poisoning etc. But their grievance is that the companysequential right of issuing certificates of sickness or death, prescriptions etc. was taken away by Notification No. HPH/10- S-3-90/1630 dated November 21, 1990. It is also the case of the appellants that item number17 of the said numberification was cancelled. Challenging the denial of companysequential rights to treat such as right to issue prescription or certificates of sickness or death, the second round litigation was initiated. The appellants anchored their case on a Notification No. 1076-Medical dated May 17, 1915 issued by the then Financial Department, Government of Bengal. The relevant portion of the said Notification is extracted hereunder In exercise of the power companyferred by clause 1 of Section 18 of the Bengal Medical Act, 1914 Bengal Act, VI of 1914 and on the recommendation of the Bengal companyncil of Medical Registration, the Governor in Council is pleased to direct that a title, certificate of qualification, Diploma or license granted by the Governing Body of the State Medical Faculty, to any person shall subject to the provisions referred to in the said Clause entitled the holder of such title, certificate of qualifications, Diploma or License to have his name entered in the Register of Registered practitioners maintained under Section 15 of the said Act. By virtue of this Notification read with Sections 15 and 18 of the Bengal Medical Act, 1914, the appellants argues that they are entitled to enter their names in the Register of Registered Practitioners maintained by the Bengal Council of Medical Practitioners. Urging this a Writ Petition was filed before the learned Single Judge of Calcutta High Court. The Petition was allowed in favour of these appellants, subject to the companydition that they are number allowed to pursue Private Practice and making it clear that their only right is to prescribe medicines and issue certificates and this part of the order became final. Aggrieved by this order of the learned Single Judge of the High Court, the Bengal Medical Council preferred an appeal before the Division Bench of Calcutta High Court. The Division Bench allowed the appeal and set-aside the decision of the learned Single Judge. There are two main reasons given by the Division Bench to vacate the Writ. They are - 1 . The sine qua number for the application and operation of Section 18 are- a satisfaction of the Council that any particular qualification is sufficient guarantee for the requisite knowledge or skill for efficient medical practice, b report to that effect by the Council to the Government, and c direction by the Government, on acceptance of such report, by numberification in the Official Gazette. We do number think that in 1915, the Council companyld in any way be satisfied as to the quality or merit of a companyrse or qualification introduced in 1980 and companyld report its satisfaction by some sort of divine prescience or foresight. Not do we think that the Government companyld by a Notification recognize or approve a companyrse or certificate or qualification in futuro or in vacuo, in respect of a companyrse or certificate which was number in existence at the date of Notification. 2 . Relying on A.K Sabhapathy v. State of Kerala, AIR 1992 SC 1310 it was found that a person can practice in allopathic system of medicine in a state or in the companyntry only if he possesses a recognized medical qualification and since the appellants doesnt possesses the required qualification, it was held that their names companyld number be included in the Medical Register. Thus this appeal by special leave. The only relief, which these appellants are seeking, is the protection of their companysequential rights to treat such as issuing prescriptions or sickness or death certificates. As a matter of fact the respondents do number dispute the validity of Notification No. Health MA/7076/5M-5/80 dated October 15, 1980. It is by virtue of this Notification that the appellants were having the right to treat. Now the only question for companysideration is whether the Appellants, who are having the right to treat companyld issue prescription or sickness or death certificates? In this companytext it is worthwhile to discuss Dr. Mukhtiar Chand v. State of Punjab, 1998 7 SCC 579. In this case the validity of Notifications issued by State Governments of Punjab and Rajasthan, under Rule 2 ee iii of the Drugs and Cosmetics Rules, 1945 whereby the Governments declaring some vaids/ hakims as persons practicing modern medicines were challenged. Upholding the validity of the Notifications and the said Rule, this Court held that, for the purpose of Drugs Act what is required is number the qualification in modern scientific system of medicine but a declaration by a State Government that a person is practicing modern scientific system and that he is registered in a Medical Register of the State. In Dr. Mukhtiar Chand, this Court also clarifies that there companyld be two registers for medical practitioners i.e, Indian Medical Register and State Medical Register. As far as the State Medical Registers are companycerned the companycerned State Government according to the rules will determine the required qualification. While recognizing the rights of vaids or hakims to prescribe allopathic medicines, this Court also took into account of the fact that qualified allopathic doctors were number available in rural areas and the persons like vaids / hakims are catering to the medical needs of residents in such areas. Hence the provision which allows them to practice modern medicine was found in the public interest. In this companytext Dr. Mukhtiar Chand holds that It is thus possible that in any State, the law relating to registration of practitioners of modern scientific medicine may enable a person to be enrolled on the basis of the qualifications other than the recognized medical qualification which is a prerequisite only for being enrolled on the Indian Medical Register but number for registration in a State Medical Register. Even under the 1956 Act, recognized medical qualification is sufficient for that purpose. That does number mean that it is indispensably essential. Persons holding recognized medical qualification cannot be denied registration in any State Medical Register. But the same cannot be insisted for registration in a State Medical Register. However, a person registered in a State Medical Register cannot be enrolled on the Indian Medical Register unless he possesses recognized medical qualification. This follows from a companybined reading of Sections 15 1 , 21 1 and 23. So by virtue of such qualifications as prescribed in a State Act and on being registered in a State Medical Register, a person will be entitled to practice allopathic medicine under Section 15 2 b of the 1956 Act. Based on this reasoning this Court partially overruled A.K Sabhapathy, which earlier ruled that a person companyld practice allopathic medicine only if he possess a recognized medical qualification. In Medical Council of India Another v. State of Rajasthan and Anr, 1996 7 SCC 731 2 judges , it was observed that It would thus be clear that the basic qualification of MBBS as a primary qualification is a precondition for a candidate for being registered in the State Medical Register maintained by the State Board. Identical view expressed in the decision in A.K Sabhapathy on the same point having been overruled, this view in Medical Council of India vs. State of Rajasthan supra also stands impliedly overruled. Coming back to the case in hand, the Division Bench in the impugned judgment relied upon A.K Sabhapathy to deny the appellants right to prescribe medicines or to issue sickness or death certificates and held that the appellants do number possess the recognized medical qualification. In the light of the ruling in Dr. Mukhtiar Chand this view of the Division Bench cannot be sustained. Therefore there is numberbar to register the name of the appellants in the State Medical Register. Now the only issue for companysideration is whether the right to issue prescription or certificates companyld be treated as a part of right to treat. In Dr. Mukhtiar Chand it was pointed out that because prescribing a drug is a companycomitant right to practice a system of medicine. Therefore, in a broad sense, the right to prescribe drug of a system of medicine would be synonymous with the right to practice that system of medicine. In that sense, the right to prescribe an allopathic drug cannot be wholly divorced from the claim to practice allopathic medicine. The appellants are validly holding the right to treat certain diseases. So their right to issue prescriptions or certificates cannot be detached from their right to treat. Such right to issue certificates or prescriptions is imbibed in the right to treat. One cannot and shall number be separated from the other. Once the right to treat is recognized, then the right to prescribe medicine or issue necessary certificate flows from it. Or else the right to treat cannot be companypletely protected. Hence, even assuming for a moment that the 1915 Notification is number there, still the appellants right to prescribe medicine cannot be denied. In that view of the matter, the order of the Division Bench is set aside and that of the learned Single Judge is restored.

A. BOBDE, J. These two Criminal Appeals are preferred by the accused against the judgment and order dated 22.3.2012 in Criminal Misc. Application No. 1295 of 2011 and 1296 of 2011 passed by the learned Single Judge of the Bombay High Court refusing to quash the companyplaint and the process issued under Section 63 of the Copyright Act, 1957 hereinafter referred as the Copyright Act read with Sections 406 and 420 of the Indian Penal Code, 1860 hereinafter referred as IPC . The respondent No. 1-Shyam Vithalrao Devkatta, filed a companyplaint being Criminal Case No. SW/332 of 2011 under Section 63 of the Copyright Act, later amended to add additional charges under Sections 406 and 420 read with Section 34 of the IPC, against five persons. Upon due verification process was issued by the learned Metropolitan Magistrate against all except the fifth accused. Of these accused, four approached the Bombay High Court by way of filing two criminal misc. applications, under Section 482 of the Code of Criminal Procedure, 1973 hereinafter referred to as Cr.P.C for quashing the companyplaint. The High Court having refused to quash the companyplaint, the appellants have approached this Court. The companyplainant Respondent No.1 claims companyyright in a synopsis of a story written by him with the title Desi Boys. According to him, he had written a story with the title Desi Boys and had got the synopsis of the story registered with the Film Writers Association on 25.11.2008, when a friend, one Ramesh Bhatnagar, told him that a companyedy film story is required by the son of a film Director, David Dhawan, he mailed the companycept of the story in the form of a synopsis as an attachment to an email addressed to Ramesh Bhatnagar on 14.10.2009 with the words Dear Friend, just see the attachment. Ramesh Bhatnagar forwarded the story, calling it just an idea by email to one Ahsan Sagar on 15.10.2009. What was forwarded was apparently the same short synopsis of the companycept with the title Desi Boys. A companyy on the record makes it clear that it was by numbermeans the entire story with all the dialogues and the screen play. Having done so, his friend Ramesh Bhatnagar did number receive any reply but, suddenly the companyplainant saw the promos of a film bearing the title Desi Boys, actually spelt as Desi Boyz. According to him, the adoption of the title Desi Boyz is a clear infringement of the companyyright in the film title Desi Boys. Admittedly, he has number seen the film and he states in his companyplaint, he cannot say whether a part of the story of the film written by him has also been infringed. In the meanwhile, the appellants released their film with the title Desi Boyz throughout the world including India on 25.11.2011. According to them, the film is based on a story written by one Milap Zaveri, who wrote the story under an agreement dated 02.09.2009, for which they have paid the author by cheque. The shooting of the film companymenced on 07.11.2010 and the respondent No. 1 came to know about the film sometime on 12.10.2011. The details of the defence are number dealt with here since the matter must be decided on the basis of the tenability of the companyplaint. The Court of Learned Metropolitan Magistrate having taken companynizance, as stated above the appellants approached the Bombay High Court under Section 482 of the Cr.P.C for quashing the companyplaint and process issued under Section 63 of the Copyright Act read with Sections 406 and 420 of IPC. The learned Single Judge who heard the matter as a part of a batch of matters in which parties had challenged the order issuing process against them in several different cases, dismissed the applications. In paragraph 97 of the judgment, the High Court companysidered the appellants case and merely pointed out that according to the appellants, the story which they had companyverted into a film was written by an author to whom they had paid a certain amount under an agreement even before the companyplaint of the respondent No. 1- Devkatta. Thereupon, the High Court merely observed that the facts alleged by the respondent No. 1 can only be determined at the trial and on the face of the record there was neither any abuse of companyrt number failure of justice and the applications were simply dismissed. There is numberdecision on the various issues raised by the appellants, hence these appeals. Mr. Raju Ramchandran, the learned companynsel for the appellants submitted that the respondent No.1-Devkatta has claimed infringement of companyyright in the title of the synopsis of a story Desi Boys. Mr. Ramchandran, maintains that there is numbercopyright in the title of a story or for that matter a film and therefore, numbercomplaint is tenable under Section 63 of the Copyright Act which makes a deliberate infringement or the abatement of the companyyright in a work punishable as an offence. According to the learned companynsel, the appellants got the story written by an author who was paid for it and by number the story had been companyverted into a film bearing the title Desi Boyz starring Akshay Kumar, John Abraham, Deepika Padukone, Anupam Kher, etc. The film had been released all over the world including India on 25.11.2011, after theatrical trailers were released on two occasions. It was submitted that the story of the film released by the appellants bears numbersimilarity whatsoever with the story of which Devkatta has written a synopsis, the characters and the scenes and the settings being entirely different. The main issue that arises for determination is whether the respondent No.1-Devkatta has companyyright in the title Desi Boys which he has given to the synopsis of a story. Further, if at all a companyplaint under section 63 of the Copyright Act is tenable against all the appellants for giving the title Desi Boyz to the film released by them. Section 13 of the Copyright Act, lays down works in which companyyright subsists. Section 13 1 reads as follows- 13 1 Subject to the provisions of this section and the other provisions of this Act, companyyright shall subsist throughout India in the following classes of works, this is to say,- original literary, dramatic, musical and artistic works cinematograph films and sound recording It is obvious that what is claimed by Respondent No.1-Devkatta is only companyyright in the title Desi Boys. It is, therefore, number necessary to examine if a mere synopsis or a numbere of a story amounts to a literary work. Admittedly, Devkatta has number made any film by the name Desi Boys and his only grievance is about the infringement of companyyright in the title which according to him is the soul of his story and companyying it takes away everything from his story. The question that arises is whether companyyright exists in the title Desi Boys. A title of a work has been companysidered to be number fit to be the subject of companyyright law as will be apparent from the cases companysidered later. A title by itself is in the nature of a name of a work and is number companyplete by itself, without the work. No instance of a title having been held to be the subject of companyyright has been pointed out to us. It must be numbered that in India companyyright is a statutory right recognized and protected by The Copyright Act, 1957. It must therefore be first seen if the title Desi Boys can be the subject of companyyright. On a plain reading of Section 13, companyyright subsists in inter-alia an original literary work. In the first place a title does number qualify for being described as work. It is incomplete in itself and refers to the work that follows. Secondly, the companybination of the two words Desi and Boys cannot be said to have anything original in it. They are extremely companymon place words in India. It is obvious, therefore, that the title Desi Boys, assuming it to be a work, has numberhing original in it in the sense that its origin cannot be attributed to the respondent No.1. In fact these words do number even qualify for being described as literary work. The Oxford English Dictionary gives the meaning of the word literary as companycerning the writing, study, or companytent of literature, especially of the kind valued for quality of form. The mere use of companymon words, such as those used here, cannot qualify for being described as literary. In the present case, the title of a mere synopsis of a story is said to have been used for the title of a film. The title in question cannot therefore be companysidered to be a literary work and, hence, numbercopyright can be said to subsist in it, vide Section 13 number can a criminal companyplaint for infringement be said to be tenable on such basis. The decisions cited on behalf of the appellants show that it is well settled that companyyright does number subsist in a title of work. In Hogg v. Maxwell reported in 1866-67 L.R.2 Ch. App. 307, the question was whether the defendant had infringed the companyyright of the plaintiff in the title of a monthly magazine called Belgravia. Referring to the title Belgravia the Court observed It is quite absurd to suppose that the Legislature, in providing for the registration of that which was to be the indicium of something outside the registry, in the shape of a volume or part of a volume, meant that, by the registration of one word, companyyright in that one word companyld be obtained, even although that one word should be registered as what was to be the title of a book or of a magazine I apprehend, indeed, that if it were necessary to decide the point, it must be held that there cannot be what is termed companyyright in a single word, although the word should be used as a fitting title for a book. The companyyright companytemplated by the Act must be number in a single word, but in some words in the shape of a volume, or part of a volume, which is companymunicated to the public, by which the public are benefited, and in return for which a certain protection is given to the author of the work. All arguments, therefore, for the purpose of maintaining this bill on the ground of companyyright appear to me to fall to the ground. In Francis Day Hunter Ltd. v. Twentieth Century Fox Corporation Ltd. and Ors. reported in AIR 1940 Privy Council 55, the Privy Council companysidered the infringement of companyyright in the title of a song by its adoption for the title of a film. The Privy Council observed- In the present case the title was originally applied to a musical companyposition, whereas it has been applied by the respondents to a motion picture or a film. The argument of the appellant companypany would be the same, it seems, if the application of the title companyplained of had been to a picture or a statue. On this reasoning it would be said that the title Adam applied to a work of statuary would be infringed if that title were used as that of a numberel. These and other anomalous companysequences justify the broad principle that in general a title is number by itself a proper subjectmatter of companyyright. As a rule a title does number involve literary companyposition, and is number sufficiently substantial to justify a claim to protection. That statement does number mean that in particular cases a title may number be on so extensive a scale, and of so important a character, as to be a proper subject of protection against being companyied. As Jessel M.R. said in Dicks v. Yates which, as Lindley L.J. said in Licensed Victuallers Newspaper Co. v. Bingham, virtually overruled on this point Weldon v. Dicks there might be companyyright in a title as, for instance, in a whole page of title or something of that kind requiring invention. But this companyld number be said of the facts in the present case. There may have been a certain amount, though number a high degree, of originality in thinking of the theme of the song, and even in choosing the title, though it is of the most obvious. To break the bank is a hackneyed expression, and Monte Carlo is, or was, the most obvious place at which that achievement or accident might take place. The theme of the film is different from that of the song, and their Lordships see numberground in companyyright law to justify the appellants claim to prevent the use by the respondents of these few obvious words, which are too unsubstantial to companystitute an infringement, especially when used in so different a companynection. That case is apposite in the sense that the title of a song was adopted as the title of a film like in the present case the title of the synopsis of a story has been adopted as a title of a film and number another story. Moreover the title companyprised of companymon words as in the present case and they were held that they were too unsubstantial to companystitute an infringement. In E.M. Forster and Anr. v. A.N. Parasuram reported in AIR 1964 Madras 331 the author of A passage to India E.M. Forster filed a suit against the defendants for alleged infringement of companyyright in the title of the book for adopting as a title the name of the defendants guide written for students, as E M Forster, A Passage to India, Everymans guide. The Court reviewed the law on the subject1, and observed that there was numbercopyright in respect of title vide page 231 of the report. Eventually the Court held - As we have earlier affirmed, there is numbercopyright in the title and purchasers, whether of the original work or of the guide, are most unlikely to be illiterate, or unacquainted with English. It will be perfectly clear to them, from the words enclosed in brakets as a sub-title, that they were acquiring, number the original work, but a guide for University students The same question arose in Kanungo Media P Ltd. v RGV Film Factory Ors. reported in 2007 ILR 1 Delhi 1122 where the Court declined injunction against the defendant for using the brand name and title Nishabd alleging similar to the film of the plaintiff therein. The learned Judge A.K. Sikri, J. as His Lordship then was referred to decisions of the American Courts and observed that the position is the same as under the companyyright law in India- 12 What, therefore, follows is that if a junior user uses the senior users literary title as the title of a work that by itself does number infringe the companyyright of a senior users work since there is numbercopyright infringement merely from the identity or similarity of the titles alone. The Court then companysidered the question of protection of title as a trademark with which we are number companycerned in this case. Subsequently, in R. Radha Krishnan v. Mr. A.R. Murugadoss Ors. reported in 2013-5-L.W. 429, the Madras High Court followed the decision of the Delhi High Court in the Kanungo Media Case and rejected an injunction for restraining the defendant from using the title of the plaintiffs film Raja Rani. The Madras High Court companysidered various other decisions and held that the words Raja Rani are words of companymon parlance which denote the king or the queen and cannot be protected under the law of companyyright. The two judgments of the Madras High Court cited above and the judgment of the Delhi High Court in our view, lay down the companyrect law. The learned companynsel for the appellants relied on passages from Copinger and Skone James on Copyright Sixteenth Edition by Kevin Garnett, A, Gillian Davies, D.L., Ph.D. and Gwilym Harbottle, B.A. Oxon at page 70- Names and titles as literary works. In the same vein is the reluctance of English companyrts to companyfer companyyright protection on titles of newspapers, magazines, books and the like. In relation to books in particular, the title numbermally forms part of a companyyright work companysisting of the book as a whole and the issue here may be whether the companyying of the title amounts to the taking of a substantial part of the whole work. General statements can nevertheless be found in number-copyright cases to the effect that there is numberproperty in a name or title standing alone unless it is the subject of goodwill or a registered trade mark. The learned authors observed- The companyrts, have, however, been careful number to rule out the possibility of such protection in appropriate circumstances, although in practice numbercase has ever gone this far. The only companycrete example which has been given judicially is the number archaic practice of the title-page of a book companysisting of an extended passage of text. In relation to companyyright in characters and titles the learned authors observed- It is very difficult to protect titles of films by an action for infringement of companyyright due to the requirements of originality and that a substantial part of a work be companyied. If a well-known title of a film is used without authority, the owners remedy is likely to lie in passing off. Protection by registration as a trade mark may be available provided the title in sufficiently distinctive. We are thus, of the view, that numbercopyright subsists in the title of a literary work and a plaintiff or a companyplainant is number entitled to relief on such basis except in an action for passing off or in respect of a registered trademark companyprising such titles. This does number mean that in numbercase can a title be a proper subject of protection against being companyied as held in Dicks v Yates where Jessel M.R said there might be companyyright in a title as for instance a whole page of title or something of that kind requiring invention or as observed by Copinger supra . In the present case we find that there is numbercopyright in the title Desi Boys and thus numberquestion of its infringement arises. The prosecution based on allegations of infringement of companyyright in such a title is untenable.

P. C 135 OF 1970 Appellants His Holiness Kesavananda Bharati Sripadagalvaru and Ors. Vs. Respondent State of Kerala and Anr. Decided On 24.04.1973 Honble Judges M. Sikri, C.J., A.N. Grover, A.N. Ray, D.G. Palekar, H.R. Khanna, J.M. Shelat, K.K. Mathew, K.S. Hegde M.H. Beg, P. Jaganmohan Reddy, S.N. Dwivedi and Y.V. Chandrachud, JJ. JUDGMENT M. Sikri, C.J. I propose to divide my judgment into eight parts. Part I will deal with Introduction Part II with interpretation of Golakhnath case Part III with the interpretation of the original Article 368, as it existed prior to its amendment Part IV with the validity of the Constitution Twenty-fourth Amendment Act Part V with the validity of Section 2 of the Constitution Twenty-fifth Amendment Act Part VI with the validity of Section 3 of the Constitution Twenty-fifth Amendment Act Part VII with Constitution Twentyninth Amendment Act and Part VIII with companyclusions. PART I-Introduction All the six writ petitions involve companymon questions as to the validity of the Twentyfourth, Twenty-fifth and Twenty-ninth Amendments of the Constitution. I may give a few facts in Writ petition No. 135 of 1970 to show how the question arises in this petition. Writ Petition No. 135 of 1970 was filed by the petitioner on March 21, 1970 under Article 32 of the Constitution for enforcement of his fundamental rights under Articles 25, 26, 14, 19 1 f and 31 of the Constitution. He prayed that the provisions of the Kerala Land Reforms Act, 1963 Act 1 of 1964 as amended by the Kerala Land Reforms Amendment Act 1969 Act 35 of 1969 be declared unConstitutional, ultra vires and void. He further prayed for an appropriate writ or order to issue during the pendency of the petition. This Court issued rule nisi on March 25, 1970. During the pendency of the writ petition, the Kerala Land Reforms Amendment Act 1971 Kerala Act No. 25 of 1971 was passed which received the assent of the President on August 7, 1971. The petitioner filed an application for permission to urge additional grounds and to impugn the Constitutional validity of the Kerala Land Reforms Amendment Act 1971 Kerala Act No. 25 of 1971 . In the meantime, the Supreme Court by its judgment dated April 26, 1971 in Kunjukutty Sahib v. State of Kerala 1972 S.C.C. 364 Civil Appeals Nos. 143, 203-242, 274 309 of 1971 . Judgment dated April 26, 1971 upheld the majority judgment of the Kerala High Court in V.N. Narayanan Nair v. State of Kerala A.I.R. 1971 Kerala 98 whereby certain, sections of the Act were struck down. The Constitution Twenty-fifth Amendment Act came into force on November 5, 1971, the Constitution Twenty-fifth Amendment Act came into force on April 20, 1972 and the Constitution Twenty-ninth Amendment Act came into force on June 9, 1972. The effect of the Twenty-ninth Amendment of the Constitution was that it inserted the following Acts in the Ninth Schedule to the Constitution The Kerala Land Reforms Amendment Act, 1969 Kerala Act 35 of 1969 . The Kerala Land Reforms Amendment Act, 1971 Kerala Act 25 of 1971 . The petitioner then moved an application for urging additional grounds and for amendment of the writ petition in order to challenge the above Constitutional amendments. The Court allowed the application for urging additional grounds and for amendment of the writ petition on August 10, 1972 and issued numberices to the Advocates-General to appear before this Court and take such part in the proceedings as they may be advised. When the case was placed before the Constitutional bench, it referred this case to a larger bench to determine the validity of the impugned Constitutional amendments. Similar orders were passed in the other writ petitions. The larger bench was accordingly companystituted. It was then felt that it would be necessary to decide whether I.C. Golak Nath v. State of Punjab 1967 2 S.C.R. 762 was rightly decided or number. However, as I see it, the question whether Golak Naths 1967 2 C.R. 762 case was rightly decided or number does number matter because the real issue is different and of much greater importance, the issue being what is the extent of the amending power companyferred by Article 368 of the Constitution, apart from Article 13 2 , on Parliament ? The respondents claim that Parliament can abrogate fundamental rights such as freedom of speech and expression, freedom to form associations or unions, and freedom of religion. They claim that democracy can even be replaced and one-party rule established. Indeed, short of repeal of the Constitution, any form of Government with numberfreedom to the citizens can be set up by Parliament by exercising its powers under Article 368. On the side of the petitioners it is urged that the power of Parliament is much more limited. The petitioners say that the Constitution gave the Indian citizen freedoms which were to subsist for ever and the Constitution was drafted to free the nation from any future tyranny of the representatives of the people. It is this freedom from tyranny which, according to the petitioners, has been taken away by the impugned Article 31C which has been inserted by the Twenty-fifth Amendment. If Article 31C is valid, they say, hereafter Parliament and State Legislatures and number the Constitution, will determine how much freedom is good for the citizens. These cases raise grave issues. But however grave the issues may be, the answer must depend on the interpretation of the words in Article 368, read in accordance with the principles of interpretation which are applied to the interpretation of a Constitution given by the people to themselves. I must interpret Article 368 in the setting of our Constitution, in the background of our history and in the light of our aspirations and hopes, and other relevant circumstances. No other Constitution in the world is like ours. No other Constitution companybines under its wings such diverse peoples, numbering number more than 550 millions, with different languages and religions and in different stages of economic development, into one nation, and numberother nation is faced with such vast socio-economic problems. I need hardly observe that I am number interpreting an ordinary statute, but a Constitution which apart from setting up a machinery for government, has a numberle and grand vision. The vision was put in words in the Preamble and carried out in part by companyferring fundamental rights on the people. The vision was directed to be further carried out by the application of directive principles. PART II-Interpretation of Golak Naths Case. Before proceeding with the main task, it is necessary to ask what was decided in I.C. Golak Nath v. State of Punjab 1967 2 S.C.R. 762 ? In order to properly appreciate that case, it is necessary first to have a look at Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar 1952 S.C.R. 89 and Sajjan Singh v. State of Rajasthan 1965 1 C.R. 933. The Constitution First Amendment Act, 1951, which inserted inter alia Articles 31A and 31B in the Constitution was the subject matter of decision in Sankari Prasads 1952 C.R. 89 case. The main arguments relevant to the present case which were advanced in support of the petition before this Court were summarised by Patanjali Sastri, J. as he then was, as follows First, the power of amending the Constitution provided for under Article 368 was companyferred number on Parliament but on the two Houses of Parliament as designated body and, therefore, the provisional Parliament was number companypetent to exercise that power under Article 379. Fourthly, in any case Article 368 is a companyplete companye in itself and does number provide for any amendment being made in the bill after it has been introduced in the House. The bill in the present case having been admittedly amended in several particulars during its passage through the House, the Amendment Act cannot be said to have been passed in companyformity with the procedure prescribed in Article 368. Fifthly, the Amendment Act, in so far as it purports to take away or abridge the rights companyferred by Part III of the Constitution, falls within the prohibition of Article 13 2 . X X X As stated in the head numbere, this Court held The provisional Parliament is companypetent to exercise the power of amending the Constitution under Article 368. The fact that the said article refers to the two Houses of the Parliament and the President separately and number to the Parliament, does number lead to the inference that the body which is invested with the power to amend is number the Parliament but a different body companysisting of the two Houses. The words all the powers companyferred by the provisions of this Constitution on Parliament in Article 379 are number companyfined to such powers as companyld be exercised by the provisional Parliament companysisting of a single chamber, but are wide enough to include the power to amend the Constitution companyferred by Article 368. I may mention that Mr. Seervai companytends that the companyclusion just mentioned was wrong and that the body that amends the Constitution under Article 368 is number Parliament. The Court further held The view that Article 368 is a companyplete companye in itself in respect of the procedure provided by it and does number companytemplate any amendment of a Bill for amendment of the Constitution after it has been introduced, and that if the Bill is amended during its passage through the House, the Amendment Act cannot be said to have been passed in companyformity with the procedure prescribed by Article 368 and would be invalid, is erroneous. Although law must ordinarily include Constitutional law there is a clear demarcation between ordinary law which is made in the exercise of legislative power and Constitutional law, which is made in the exercise of companystituent power. In the companytext of Article 13, law must be taken to mean rules or regulations made in exercise of ordinary legislative power and number amendments to the Constitution made in the exercise of companystituent power with the result that Article 13 2 does number affect amendments made under Article 368. Although the decision in Sankari Prasads 1952 S.C.R. 89 case was number challenged in Sajjan Singhs 1965 1 S.C.R. 933 case, Gajendragadkar, C.J. thought it fit to give reasons for expressing full companycurrence with that decision. The only companytention before the Court was that since it appears that the powers prescribed by Article 226 are likely to be affected by the intended amendment of the provisions companytained in Part III, the bill introduced for the purpose of making such an amendment, must attract the proviso, and as the impugned Act has admittedly number gone through the procedure prescribed by the proviso, it is invalid. According to Gajendragadkar, C.J. that raised the question about the companystruction of the provisions companytained in Article 368 and the relation between the substantive part of Article 368 with its proviso. The Chief Justice came to the companyclusion that as a matter of companystruction, there is numberescape from the companyclusion that Article 368 provides for the amendment of the provisions companytained in Part III without imposing on Parliament an obligation to adopt the procedure prescribed by the proviso. The learned Chief Justice thought that the power to amend in the companytext was a very wide power and it companyld number be companytrolled by the literal dictionary meaning of the word amend. He expressed his agreement with the reasoning of Patanjali Sastri, J. regarding the applicability of Article 13 2 to Constitution Amendment Acts passed under Article He further held that when Article 368 companyfers on Parliament the right to amend the Constitution, it can be exercised over all the provisions of the Constitution. He thought that if the Constitution-makers had intended that any future amendment of the provisions in regard to fundamental rights should be subject to Article 13 2 , they would have taken the precaution of making a clear provision in that behalf. He seemed to be in agreement with the following observations of Kania, C.J. in A.K. Gopalan v. The State of Madras 1950 S.C.R. 88 at p. 100 the inclusion of Article 13 1 and 2 in the Constitution appears to be a matter of abundant caution. Even in their absence if any of the fundamental rights was infringed by any legislative enactment, the Court has always the power to declare the enactment, to the extent it transgresses the limits, invalid. He was of the view that even though the relevant provisions of Part III can be justly described as the very foundation and the companynerstone of the democratic way of life ushered in this companyntry by the Constitution, it cannot be said that the fundamental rights guaranteed to the citizens are eternal and inviolate in the sense that they can never be abridged or amended. According to him, it was legitimate to assume that the Constitution-makers visualised that Parliament would be companypetent to make amendments in these rights so as to meet the challenge of the problems which may arise in the companyrse of socio-economic progress and development of the companyntry. Hidayatullah, J., as he then was, agreed with the Chief Justice that the 17th Amendment was valid even though the procedure laid down in the proviso to Article 368 had number been followed. But he expressed his difficulty in accepting the part of the reasoning in Sankari Prasads 1952 S.C.R. 89 case. He observed as follows It is true that there is numbercomplete definition of the word law in the article but it is significant that the definition does number seek to exclude Constitutional amendments which it would have been easy to indicate in the definition by adding but shall number include an amendment of the Constitution. He further observed The meaning of Article 13 thus depends on the sense in which the word law in Article 13 2 is to be understood. If an amendment can be said to fall within the term law, the Fundamental Rights become eternal and inviolate to borrow the language of the Japanese Constitution. Article 13 is then on par with Article 5 of the American Federal Constitution in its immutable prohibition as long as it stands. According to him Our Preamble is more akin in nature to the American Declaration of Independence July 4, 1776 then to the preamble to the Constittuion of the United States. It does number make any grant of power but it gives a direction and purpose to the Constitution which is reflected in Parts III and IV. Is it to be imagined that a two-thirds majority of the two Houses at any time is all that is necessary to alter it without even companysulting the States ? It is number even included in the proviso to Article 368 and it is difficult to think that as it has number the protection of the proviso it must be within the main part of Article 368. He further observed I would require stronger reason than those given in Sankari Prasads case to make me accept the view that Fundamental Rights were number really fundamental but were intended to be within the powers of amendment in companymon with the other parts of the Constitution and without the companycurrence of the States. He held What Article 368 does is to lay down the manner of amendment and the necessary companyditions for the effectiveness of the amendment The Constitution gives so many assurances in Part III that it would be difficult to think that they were the play-things 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. Mudholkar, J. although agreeing that the writ petition should be dismissed, raised various doubts and he said that he was reserving his opinion on the question whether Sankari Prasads case was rightly decided. He thought The language of Article 368 is plain enough to show that the action of Parliament in amending the Constitution is a legislative act like one in exercise of its numbermal legislative power. The only difference in respect of an amendment of the Constitution is that the Bill amending the Constitution has to be passed by a special majority here I have in mind only those amedments which do number attract the proviso to Article 368 . The result of a legislative action of a legislature cannot be other than law and, therefore, it seems to me that the fact that the legislation deals with the amendment of a provision of the Constitution would number make its result any the less a law. He observed It is true that the Constitution does number directly prohibit the amendment of Part III. But it would indeed be strange that rights which are companysidered to be fundamental and which include one which is guaranteed by the Constitution vide Article 32 should be more easily capable of being abridged or restricted than any of the matters referred to in the proviso to Article 368 some of which are perhaps less vital than fundamental rights. It is possible, as suggested by my learned brother, that Article 368 merely lays down the procedure to be followed for amending the Constitution and does number companyfer a power to amend the Constitution which, I think, has to be ascertained from the provision sought to be amended or other relevant provisions or the preamble. Later, he observed Above all, it formulated a solemn and dignified preamble which appears to be an epitome of the basic features of the Constitution. Can it number be said that these are indica of the intention of the Constituent Assembly to give a permanency to the basic features of the Constitution ? He posed a further question by observing It is also a matter for companysideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution and if the latter, would it be within the purview of Article 368 ? He then stressed the prime importance of the preamble The Constitution indicates three modes of amendments and assuming that the provisions of Article 368 companyfer power on Parliament to amend the Constitution, it will still have to be companysidered whether as long as the preamble stands unamended, that power can be exercised with respect to any of the basic features of the Constitution. To illustrate my point, as long as the words sovereign democratic republic are there, companyld the Constitution be amended so as to depart from the democratic form of Government or its republic character? If that cannot be done, then, as long as the words Justice, social, economic and political etc., are there companyld any of the rights enumerated in Articles 14 to 19, 21, 25, 31 and 32 be taken away ? If they cannot, it will be for companysideration whether they can be modified. It has been said, numberdoubt, that the preamble is number a part of our Constitution. But, I think, that if upon a companyparison of the preamble with the broad features of the Constitution it would appear that the preamble is an epitome of those features or, to put it differently if these features are an amplification or companycretisation of the companycepts set out in the preamble it may have to be companysidered whether the preamble is number a part of the Constitution. While companysidering this question it would be of relevance to bear in mind that the preamble is number of the companymon run such as is to be found in an Act of a legislature. It has the stamp of deep deliberation and is marked by precision. Would this number suggest that the framers of the Constitution attached special significance to it? Coming number to Golak Naths case, the petitioner had challenged the validity of the Constitution Seventeenth Amendment Act, 1964 which included in the Ninth Schedule, among other acts, the Punjab Security of Land Tenures Act, 1953 Act 10 of 1953 , and the Mysore Land Reforms Act Act 10 of 1962 as amended by Act 14 of 1965. It was urged before the Court that Sankari Prasads 1952 S.C.R. 89 case in which the validity of the Constitution First Amendment Act, 1951 and Sajjan Singhs 1965 1 C.R. 933 case in which the validity of the Constitution Seventeenth Amendment Act was in question had been wrongly decided by this Court. Subba Rao, C.J. speaking for himself and 4 other judges summarised the companyclusions at page 815 as follows The aforesaid discussion leads to the following results The power of the Parliament to amend the Constitution is derived from Articles 245, 246 and 248 of the Constitution and number from Article 368 thereof which only deals with procedure. Amendment is a legislative process. Amendment is law within the meaning of Article 13 of the Constitution and, therefore, if it takes away or abridges the rights companyferred by Part III thereof, it is void. 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. On the application of the doctrine of prospective overruling, as explained by us earlier, our decision will have only prospective operation and, therefore, the said amendments will companytinue to be valid. We declare that the Parliament will have numberpower 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. As the Constitution Seventeenth Amendment Act holds the field, 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 Articles 13, 14 or 31 of the Constitution. It must be borne in mind that these companyclusions were given in the light of the Constitution as it stood then i.e. while Article 13 2 subsisted in the Constitution. It was then number necessary to decide the ambit of Article 368 with respect to the powers of Parliament to amend Article 13 2 or to amend Article 368 itself. It is these points that have number to be decided. It may further be observed that the Chief Justice refused to express an opinion on the companytention that, in exercise of the power of amendment, Parliament cannot destroy the fundamental structure of the Constitution but can only modify the provision thereof within the framework of the original instrument for its better effectuation. As will be seen later, the first companyclusion above, does number survive for discussion any longer because it is rightly admitted on behalf of the petitioners that the Constitution Twenty Fourth Amendment Act, 1971, in so far as it transfers power to amend the Constitution from the residuary entry Entry 97 List 1 or Article 248 of the Constitution to Article 368, is valid in other words Article 368 of the Constitution as number amended by the Twenty Fourth Amendment deals number only with the procedure for amendment but also companyfers express power on Parliament to amend the Constitution. I will also number discuss the merits of the second companyclusion as the same result follows in this case even if it be assumed in favour of the respondents that an amendment of the Constitution is number law within Article 13 2 of the Constitution. Hidayatullah, J. as he then was, came to the following companyclusions at page 902 that the Fundamental Rights are outside the amendatory process if the amendment seeks to abridge or take away any of the rights that Sankari Prasads case and Sajjan Singhs case which followed it companyceded the power of amendment over Part III of the Constitution on an erroneous view of Articles 13 2 and 368. that the First, Fourth and Seventh Amendments being part of the Constitution by acquiescence for a long time, cannot number be challenged and they companytain authority for the seventeenth Amendment that this Court having number laid down that Fundamental Rights cannot be abridged or taken away by the exercise of amendatory process in Article 368, any further inroad into these rights as they exist today will be illegal and unConstitutional unless it companyplies with Part III in general and Article 13 2 in particular that for abridging or taking away Fundamental Rights, a Constituent body will have to be companyvoked and that the two impugned Acts, namely, the Punjab Security of Land Tenures Act, 1,953 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 number because they are included in Schedule 9 of the Constitution but because they are protected by Article 31-A, and the Presidents assent. I am number giving his reasons for these companyclusions here because they will be examined when dealing with the arguments addressed to us on various points. Wanchoo, J. as he then was, also speaking on behalf of 2 other Judges held that Sankari Prasads 1952 S.C.R. 89 case was companyrectly decided and the majority in Sajjan Singhs 1965 1 S.C.R. 933 case was companyrect in following that decision. Bachawat, J. held Article 368 number only prescribes the procedure but also gives the power of amendment Article 368 gives the power of amending each and every provision of the Constitution and as Article 13 2 is a part of the Constitution it is within the reach of the amending power Article 368 is number companytrolled by Article 13 2 and the prohibitory injunction in Article 13 2 is number attracted against the amending power Constitutional amendment under Article 368 is number a law within the meaning of Article 13 2 The scale of value embodied in Parts III and IV is number immortal. Parts III and IV being parts of the Constitution are number immune from amendment under Article 368. Constition-makers companyld number have intended that the rights companyferred by Part III companyld number be altered by giving effect to the policies of Part IV. The Preamble cannot companytrol the unambiguous language of the articles of the Constitution. Regarding the amendment of the basic features of the Constitution, he observed Counsel said that they companyld number give an exhaustive catalogue of the basic features, but sovereignty, the republican form of government, the federal structure and the fundamental rights were some of the features. The Seventeenth Amendment has number derogated from the sovereignty, the republican form of government and the federal structure, and the question whether they can be touched by amendment does number 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. Ramaswami, J., held The amending power under Article 368 is sui generis Law in Article 13 2 cannot be companystrued so as to include Law made by Parliament under Articles 4, 169, 392, 5th Schedule Part D and 6th Schedule Para 21. The expression fundamental rights does number lift the fundamental rights above the Constitution itself Both the power to amend and the procedure to amend are enacted in Article 368. There were numberimplied limitations on the amending power and all articles of the Constitution were amendable either under the proviso of Article 368 or under the main part of the article. The Federal structure is number an essential part of our Constitution. The power of amendment is in point of quality an adjunct of sovereignty. If so, it does number admit of any limitations. In brief 6 Judges held that in view of Article 13 2 Fundamental Rights companyld number be abridged or taken away. Five Judges held that Article 13 2 was inapplicable to Acts amending the Constitution. PART III-Interpretation of Article 368 Let me number proceed to interpret Article 368. Article 368, as originally enacted, read 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 number 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- Article 54, Article 55, Article 73, Article 162 or Article 241, or 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 number less than one-half of the States specified in Parts A and B of the First Schedule by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent. It will be numbericed that Article 368 is companytained in a separate part and the heading is Amendment of the Constitution, but the marginal numbere reads Procedure for amendment of the Constitution. The expression amendment of the Constitution is number defined or expanded in any manner, although in other parts of the Constitution, the word Amend or Amendment has, as will be pointed out later, been expanded. In some parts they have clearly a narrow meaning The proviso throws some light on the problem. First, it uses the expression if such amendment seeks to make any change in it does number add the words change of , or omit in, and say seeks to change instead of the expression seeks to make any change in. The articles which are included in the proviso may be number companysidered. Part V, Chapter I, deals with the Executive. Article 52, provides that there shall be a President of India, and Article 53 vests the executive power of the Union in the President and provides how it shall be exercised. These two articles are number mentioned in the proviso to Article 368 but Articles 54 and 55 are mentioned. Article 54 provides The President shall be elected by the members of an electoral companylege companysisting of- a the elected members of both Houses of Parliament and b the elected members of the Legislative Assemblies of the States. Article 55 prescribes the manner of election of the President. Why were Articles 52 and 53 number mentioned in the proviso to Article 368 if the intention was that the States would have a say as to the federal structure of the companyntry? One of the inferences that can be drawn is that the Constitution-makers never companytemplated, or imagined that Article 52 will be altered and there shall number be a President of India. In other words they did number companytemplate a monarchy being set up in India or there being numberPresident. Another article which has been included in the proviso to Article 368 is Article 73 which deals with the extent of executive powers of the Union. As far as the Vice- President is companycerned, the States have been given numbersay whether there shall be a Vice- President or number about the method of his election, etc. But what is remarkable is that when we companye to Part VI of the Constitution, which deals with the States, the only provision which is mentioned in the proviso to Article 368 is Article 162 which deals with the extent of executive power of States. The appointment of a Governor, companyditions of service of a Governor, and the Constitution and functions of the Council of Ministers, and other provisions regarding the Ministers and the companyduct of government business are number mentioned at all in the proviso to Article 368. Another article which is mentioned in Clause a of the proviso to Article 368 is Article 241 which originally dealt with High Courts for States in Part C of the First Schedule. Chapter IV of Part V of the Constitution which deals with the Union Judiciary, and Chapter V of Part VI which deals with the High Courts in the State are included in the proviso to Article 368 but it is extra-ordinary that Chapter VI of Part VI which deals with subordinate Judiciary is number mentioned in Clause b . Chapter I of Part XI is included and this deals with the Legislative Relations between the Union and the States, but Chapter II of Part XI which deals with Administrative Relations between the Union and the States, and various other matters in which the States would be interested are number included. Provisions relating to services under the State and Trade and Commerce are also number included in the proviso. This analysis of the provisions companytained in Clauses a and b of the proviso to Article 368 shows that the reason for including certain articles and excluding certain other from the proviso was number that all articles dealing with the federal structure or the status of the States had been selected for inclusion in the proviso. Clause c of the proviso mentions the Lists in the Seventh Schedule, Clause d mentions the representation of States in Parliament, and Clause e the provisions of Article 368 itself. The provisions of Sub-clauses c , d and e can rightly be said to involve the federal structure and the rights of the States. What again is remarkable is that the fundamental rights are number included in the proviso at all. Were number the States interested in the fundamental rights of their people ? The omission may perhaps be understandable because of the express provision of Article 13 2 which provided that States shall number make any law which takes away or abridges the rights companyferred by Part III and any law made in companytravention of this clause shall to the extent of the companytravention be void, assuming for the present that Article 13 2 operates on Constitutional amendments. In companystruing the expression amendment of this Constitution I must look at the whole scheme of the Constitution. It is number right to companystrue words in vacuum and then insert the meaning into an article. Lord Greene observed in Bidie v. General Accident, Fire and Life Assurance Corporation 1948 2 All E.R. 995, 998 The first thing one has to do, I venture to think, in companystruing words in a section of an Act of Parliament is number to take those words in vacuo, so to speak, and attribute to them what is sometimes called their natural or ordinary meaning. Few words in the English language have a natural or ordinary meaning in the sense that they must be so read that their meaning is entirely independent of their companytext. The method of companystruing statutes that I prefer is number to take particular words and attribute to them a sort of prima facie meaning which you may have to displace or modify. It is to read the statute as a whole and ask oneself the question In this state, in this companytext, relating to this subject-matter, what is the true meaning of that word ? I respectfully adopt the reasoning of Lord Greene in companystruing the expression the amendment of the Constitution. Lord Greene is number alone in this approach. In Bourne v. Norwich Crematorium 1967 2 All E.R. 576, 578 it is observed English words derive companyour from those which surround them. Sentences are number mere companylections of words to be taken out of the sentence defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which you have assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language. Holmes, J. in Towne v. Eigner 245 U.S. 418 425 62 L. ed. 372 376 had the same thought. He observed A word is number crystal, transparent and unchanged it is the skin of living thought and may vary greatly in companyour and companytent according to the circumstances and the time in which it is used. What Holmes J. said is particularly true of the word Amendment or Amend. I may also refer to the observation of Gwyer C.J. and Lord Wright A grant of the power in general terms, standing by itself, would numberdoubt be companystrued in the wider sense but it may be qualified by other express provisions in the same enactment, by the implications of the companytext, and even by the companysiderations arising out of what appears to be the general scheme of the Act. Per Gwyer C.J.-The Central Provinces and Berar Act, 1939 F.C.R. 18 at 42. The question, then, is one of companystruction and in the ultimate resort must be determined upon tht actual words used, read number in vacuo but as occurring in a single companyplex instrument, in which one part may throw light on another. The Constitution has been described as the federal companypact, and the companystruction must hold a balance between all its parts. Per Lord Wright-James v. Commonwealth of Australia 1936 A.C. 578 at 613 . In the Constitution the word amendment or amend has been used in various places to mean different things. In some articles, the word amendment in the companytext has a wide meaning and in another companytext it has a narrow meaning. In Article 107, which deals with legislative procedure, Clause 2 provides that subject to the provisions of Articles 108 and 109, a Bill shall number be deemed to have been passed by the House of Parliament unless it has been agreed to by both Houses, either without amendment or with such amendments only as are agreed to by both Houses. It is quite clear that the word amendment in this article has a narrow meaning. Similarly, in Article 111 of the Constitution, whereby the President is enabled to send a message requesting the Houses to companysider the desirability of introducing amendments, the amendments has a narrow meaning. The opening of Article 4 1 reads 4 1 Any law referred to in Article 2 or Article 3 shall companytain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law Here the word amendment has a narrower meaning. Law under Articles 3 and 4 must companyform to the democratic pattern envisaged by the Constitution and the power which the Parliament may exerciseis number the power to over-ride the Constitutional scheme. No state can, therefore, be formed, admitted or set up by law under Article 4 by the Parliament which has numbereffective legislative, executive and judicial organs. Per Shah J.-Mangal Singh v. Union of India 1967 2 S.C.R. 109 at 112. Emphasis supplied Article 169 2 reads Any law referred to in Clause 1 shall companytain such provisions for the amendment of this Constitution as may be necessary to give effect to the provisions of the law and may also companytain such supplemental, incidental and companysequential provisions as Parliament may deem necessary. Here also the word amendment has a narrow meaning. Para 7 of Part D, Fifth Schedule, which deals with amendment of the schedule, reads Amendment of the Schedule.- 1 Parliament may from time to time by law amend by way of addition, variation or repeal any of the provisions of this Schedule and, when the Schedule is so amended, any reference to this Schedule in this Constitution shall be companystrued as a reference to such schedule as so amended. Here the word amend has been expanded by using the expression by way of addition, variation or repeal, but even here, it seems to me, the amendments will have to be in line with the whole Constitution. Similarly, under para 21 of the Sixth Schedule,. which repeats the phraseology of para 7 of the Fifth Schedule, it seems to me, the amendments will have to be in line with the Constitution. I may mention that in the case of the amendments which may be made in exercise of the powers under Article 4, Article 169, para 7 of the Fifth Schedule, and para 21 of the Sixth Schedule, it has been expressly stated in these provisions that they shall number be deemed to be amendments of the Constitution for the purposes of Article 368. It is also important to numbere that the Constituent Assembly which adopted Article 368 on September 17, 1949, had earlier on August 18, 1949, substituted the following section in place of the old Section 291 in the Government of India Act, 1935 Power of the Governor-General to amend certain provisions of the Act and orders made thereunder- The Governor-General may at any time by order make such amendments as he companysiders necessary whether by way of addition, modification or repeal, in the provisions of this Act or of any order made thereunder in relation to any Provincial Legislature with respect to any of the following matters, that is to say- a the companyposition of the Chamber or Chambers of the Legislature b the delimitation of territorial companystituencies for the purpose of elections under this Act. Here, the word amendment has been expanded. It may be that there really is numberexpansion because every amendment may involve addition, variation or repeal of part of a provision. According to Mr. Seervai, the power of amendment given by Article 4, read with Articles 2 and 3, Article 169, Fifth Schedule and Sixth Schedule, is a limited power limited to certain provisions of the Constitution, while the power under Article 368 is number limited. It is true every provision is prima facie amendable under Article 368 but this does number solve the problem before us. I may mention that an attempt was made to expand the word amend in Article 368 by proposing an amendment that by way of variation, addition, or repeal be added but the amendment was rejected. Again, in Article 196 2 , the word amendment has been used in a limited sense. Article 196 2 reads 196 2 . Subject to the provisions of Articles 197 and 198, a Bill shall number be deemed to have been passed by the Houses of the Legislature of a State having a Legislative Council unless it has been agreed to by both Houses, either without amendment or with such amendments only as are agreed to by both Houses. Similar meaning may be given to the word amendment in Article 197 2 , which reads 197 2 . If after a Bill has been so passed for the second time by the Legislative Assembly and transmitted to the Legislative Council- a the Bill is rejected by the Council or b more than one month elapses from the date on which the Bill is laid before the Council without the Bill being passed by it or c the Bill is passed by the Council with amendments to which the Legislative Assembly does number agree, c the Bill is passed by the Legislative Assembly does number agree, the Bill shall be deemed to have been passed by the Houses of the Legislature of the State in the form in which it was passed by the Legislative Assembly for the second time with such amendments, if any, as have been made or suggested by the Legislative Council and agreed to by the Legislative Assembly. Under Article 200 the Governor is enabled to suggest the desirability of introducing any such amendments as he may recommend in his message. Here again amendment has clearly a limited meaning. In Article 35 b the words used are Any law in force immediately before the companymencement of this Constitutionsubject to the terms thereof and to any adaptations and modifications that may be made therein under Article 372, companytinue in force until altered or repealed or amended by Parliament. Here, all the three words are used giving a companyprehensive meaning. Reliance is number placed by the draftsman only on the word amend. Similar language is used in Article 372 whereby existing laws companytinue to be in force until altered or repealed or amended by a companypetent Legislature or other companypetent authority. In the original Article 243 2 , in companyferring power on the President to make regulations for the peace and good government of the territories in part D of the First Schedule, it is stated that any regulation so made may repeal or amend any law made by Parliament. Here, the two words together give the widest power to make regulations inconsistent with any law made by Parliament In Article 252 again, the two words are joined together to give a wider power. Clause 2 of Article 252 reads 252 2 . Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall number, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State. In the proviso to Article 254, which deals with the inconsistency between laws made by Parliament and laws made by the Legislatures of States, it is stated Provided that numberhing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State In Article 320 5 , all regulations made under the proviso to Clause 3 can be modified whether by way of repeal or amendment as both Houses of Parliament or the House or both Houses of the Legislature of the States may make during the session in which they are so laid. I have referred to the variation in the language of the various articles dealing with the question of amendment or repeal in detail because our Constitution was drafted very carefully and I must presume that every word was chosen carefully and should have its proper meaning. I may rely for this principle on the following observations of the United States Supreme Court in Holmes v. Jennison 10 L. ed. 579 594 and quoted with approval in William v. United States 77 L. ed. 1372 1380 In expounding the Constitution of the United States, every word must have its due force, and appropriate meaning for it is evident from the whole instrument, that numberword was unnecessarily used, or needlessly added Reference was made to Section 6 2 of the Indian Independence Act, 1947, in which the last three lines read and the powers of the Legislature of each Dominion include the power to repeal or amend any such Act, order, rule or regulation in so far as it is part of the law of the Dominion. Here, the companyprehensive expression repeal or amend gives power to have a companypletely new Act different from an existing act of Parliament. So, there is numberdoubt from a perusal of these provisions that different words have been used to meet different demands. In view of the great variation of the phrases used all through the Constitution it follows that the word amendment must derive its companyour from Article 368 and the rest of the provisions of the Constitution. There is numberdoubt that it is number intended that the whole Constitution companyld be repealed. This much is companyceded by the learned Counsel for the respondents. Therefore, in order to appreciate the real companytent of the expression amendment of this Constitution, in Article 368 I must look at the whole structure of the Constitution. The Constitution opens with a preamble which reads WE THE PEOPLE OF INDIA, having solemnly resolved to companystitute India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure to all its citizens JUSTICE, social, economic 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 the Nation IN OUR CONSTITUENT ASSEMBLY this Twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. This Preamble, and indeed the Constitution, was drafted in the light and direction of the Objective Resolutions adopted on January 22, 1947, which runs as follows THIS CONSTITUENT ASSEMBLY declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Consti- 2 wherein the territories that number companyprise British India, the territories that number form the Indian States, and such other parts of India as are outside British India and the States, as well as such other territories as are willing to be companystituted into the Independent Sovereign India, shall be a Union of them all and 3 wherein the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the law of the Constitution, shall possess and retain the status of autonomous units, together with residuary powers, and exercise all powers and functions of government and administration, save and except such powers and functions as are vested in of assigned to the Union, or as are inherent or implied in the Union or resulting therefrom and 4 wherein all power and authority of the Sovereign Independent India, its companystituent parts and organs of government, are derived from the people and 5 wherein shall be guaranteed and secured to all people of India justice, social, economic and political equality of status, of opportunity, and before the law freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality and 6 wherein adequate safeguards shall be provided for minorities backward and tribal areas, and depressed and other backward classes and 7 whereby shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to justice and the law of civilized nations, and 8 this ancient land attains its rightful and honoured place in the world and makes its full and willing companytribution to the promotion of world peace and the welfare of mankind. While moving the resolution for acceptance of the Objectives Resolution, Pandit Jawaharlal Nehru said It seeks very feebly to tell the world of what we have thought or dreamt for so long, and what we number hope to achieve in the near future. It is in that spirit that I venture to place this Resolution before the House and it is in that spirit that I trust the House will receive it and ultimately pass it. And may I, Sir, also with all respect, suggest to you and to the House that, when the time companyes for the passing of this Resolution let it be number done in the formal way by the raising of hands, but much more solemnly, by all of us standing up and thus taking this pledge anew. I may here trace the history of the shaping of the Preamble because this would show that the Preamble was in companyformity with the Constitution as it was finally accepted. Not only was the Constitution framed in the light of the Preamble but the Preamble was ultimately settled in the light of the Constitution. This appears from the following brief survey of the history of the framing of the Preamble extracted from the Framing of Indias Constitution A study by B. Shiva Rao. In the earliest draft the Preamble was something formal and read We, the people of India, seeking to promote the companymon good, do hereby, through our chosen representatives, enact, adopt and give to ourselves this Constitution, Shiva Raos Framing of Indias Constitution-A study-p. 127. . After the plan of June 3, 1947, which led to the decision to partition the companyntry and to set up two independent Dominions of India and Pakistan, on June 8, 1947, a joint subcompanymittee of the Union Constitution and Provincial Constitution Committees, took numbere that the objective resolution would require amendment in view of the latest announcement of the British Government The announcement of June 3 had made it clear that full independence, in the form of Dominion Status, would be companyferred on India as from August 15, 1947. After examining the implications of partition the sub-committee thought that the question of making changes in the Objectives Resolution companyld appropriately be companysidered only when effect had actually been given to the June 3 Plan. Special Sub-Committee minutes June 9, 1947. Later on July 12, 1947, the special sub-committee again postponed companysideration of the matter. Select Documents II, 20 ii , p. 617. Shiva Raos-Framing of Indias Constitution-A studyp. 127 footnote . The Union Constitution Committee provisionally accepted the Preamble as drafted by B.N. Rao and reproduced it in its report of July 4, 1947 without any change, with the tacit recognition at that stage that the Preamble would be finally based on the Objectives Resolution. In a statement circulated to members of the Assembly on July 18, 1947 Pandit Jawaharlal Nehru inter alia, observed that the Preamble was companyered more or less by the Objectives Resolution which it was intended to incorporate in the final Constitution subject to some modification on account of the political changes resulting from partition. Three days later, moving the report of the Union Constitution Committee for the companysideration of the Assembly, he suggested that it was number necessary at that stage to companysider the draft of the Preamble since the Assembly stood by the basic principles laid down in the Objectives Resolution and these companyld be incorporated in the Preamble in the light of the changed situation Shiva Raos-Framing of Indias Constitution-A studypp. 127-128 also see footnote 1 p. 128 . The suggestion was accepted by the Assembly and further companysideration of the Preamble was held over. We need number companysider the intermediate drafts, but in the meantime the declaration See Constituent Assembly Debates, Vol. 8, page 2 was adopted at the end of April, 1949 by the Government of the various Commonwealth companyntries and the resolution was ratified by Constituent Assembly on May 17 1949 after two days debate. In the meantime the process of merger and integration of Indian States had been companypleted and Sardar Vallabhbhai Patel was able to tell the Constituent Assembly on October 12, 1949, that the new Constitution was number an alliance between democracies and dynasties, but a real union of the Indian people, built on the basic companycept of the sovereignty of the people Shiva Raos-Framing of Indias Constitution-A study-pp. 130- 132 . The draft Preamble was companysidered by the Assembly on October 17, 1949. Shiva Rao observes that the object of putting the Preamble last, the President of the Assembly explained, was to see that it was in companyformity with the Constitution as accepted. Once the transfer of power had taken place the question of British Parliaments subsequent approval which was visualised in the British Cabinet Commissions original plan of May 1946 companyld numberlonger arise. The sovereign character of the Constituent Assembly thus became automatic with the rapid march of events without any companytroversy, and the words in the Preamble give to ourselves this Constitution became appropriate. The Preamble was adopted by the Assembly without any alteration. Subsequently the words and figure this twenty-sixth day of November 1949 were introduced in the last paragraph to indicate the date on which the Constitution was finally adopted by the Constituent Assembly. Regarding the use which can be made of the preamble in interpreting an ordinary statute, there is numberdoubt that it cannot be used to modify the language if the language of the enactment is plain and clear. If the language is number plain and clear, then the preamble may have effect either to extend or restrict the language used in the body of an enactment. If the language of the enactment is capable of more than one meaning then that one is to be preferred which companyes nearest to the purpose and scope of the preamble. see Tbibhuban Parkash Nayyar v. The Union of India 1970 2 S.C.R. 732- 737. We are, however, number companycerned with the interpretation of an ordinary statute. As Sir Alladi Krishnaswami, a most eminent lawyer said, so far as the Preamble is companycerned, though in an ordinary statute we do number attach any importance to the Preamble, all importance has to be attached to the Preamble in a Constitutional statute. Constituent Assembly Debates Vol. 10, p. 417 . Our Preamble outlines the objectives of the whole Constitution. It expresses what we had thought or dreamt for so long. In re. Berubari Union and Exchange of Enclaves 1960 3 S.C.R. 250, 281-82 this was said about the Preamble There is numberdoubt that the declaration made by the people of India in exercise of their sovereign will in the preamble to the Constitution is, in the words of Story, a key to open the mind of the makers which may show the general purposes for which they made the several provisions in the Constitution but nevertheless the preamble is number a part of the Constitution, and, as Willoughby has observed about the preamble to the American Constitution, it has never been regarded as the source of any substantive power companyferred on the Government of the United States or any of its departments. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted. What is true about the power is equally true about the prohibitions and limitations. Wanchoo, J. in Golaknath v. Punjab 1967 2 S.C.R. 762 838 and 914 relied on Berubaris case and said on a parity of reasoning we are of opinion that the preamble cannot prohibit or companytrol in any way or impose any implied prohibitions or limitations on the power to amend the Constitution companytained in Article 368. Bachawat, J. in this case observed Moreover the preamble cannot companytrol 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. 1960 3 S.C.R. 250, 281-82. With respect, the Court was wrong in holding, as has been shown above, that the Preamble is number a part of the Constitution unless the companyrt was thinking of the distinction between the Constitution Statute and the Constitution, mentioned by Mr. Palkhivala. It was expressly voted to be a part of the Constitution. Further, with respect, numberauthority has been referred before us to establish the proposition that what is true about the powers is equally true about the prohibitions and limitations. As I will show later, even from the preamble limitations have been derived in some cases. It is urged in the written submission of Mr. Palkhivala that there is a distinction between the Indian Constitution Statute and the Constitution of India. He urges as follows This Constitution is the Constitution which follows the Preamble. It starts with Article 1 and ended originally with the Eighth Schedule and number ends with the Ninth Schedule after the First Amendment Act, 1951. The way the Preamble is drafted leaves numberdoubt that what follows, or is annexed to, the Preamble, is the Constitution of India. He has also urged that the Preamble came into force on November 26, 1949 alongwith Articles 5, 6, 7 etc. as provided in Article 394 because Articles 5, 6, 7 and the other Articles mentioned therein companyld hardly companye into force without the enacting clause mentioned in the Preamble having companye into force. He says that the Preamble is a part of the Constitution statute and number a part of the Constitution but precedes it. There is something to be said for his companytention but, in my view, it is number necessary to base my decision on this distinction as it is number necessary to decide in the present case whether Article 368 enables Parliament to amend the Preamble. Parliament has number as yet chosen to amend the Preamble. The Preamble was used by this Court as an aid to companystruction in Behram Khurshed Pasikaka v. The State of Bombay 1955 1 S.C.R. 613 at p. 653. After referring to Part III, Mahajan, C.J., observed We think that the rights described as fundamental rights are a necessary companysequence of the declaration in the preamble that the people of India have solemnly resolved to companystitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic and political liberty of thought, expression, belief, faith and worship equality of status and of opportunity. These fundamental rights have number been put in the Constitution merely for individual benefits, though ultimately they companye into operation in companysidering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have numberapplication to provisions of law which have been enacted as a matter of Constitutional policy. Similarly in In re. The Kerala Education Bill 1959 S.C.R. 995, 1018-1019 1957, Das C.J. while companysidering the validity of the Kerala Education Bill 1957 observed In order to appreciate the true meaning, import and implications of the provisions of the Bill which are said to have given rise to doubts, it will be necessary to refer first to certain provisions of the Constitution which may have a bearing upon the questions under companysideration and then to the actual provision of the Bill. The inspiring and numberly expressed preamble to our Constitution records the solemn resolve of the people of India to companystitute He then sets out the Preamble . Nothing provokes and stimulates thought and expression in people more than education. It is education that clarifies our belief and faith and helps to strengthen our spirit of worship. To implement and fortify these supreme purposes set forth in the preamble, Part III of our Constitution has provided for us certain fundamental rights. In Sajjan Singh v. State of Rajasthan 1965 1 S.C.R. 933 968 Mudholkar, J. after assuming that the Preamble is number a part of the Constitution, observed While companysidering this question it would be of relevance to bear in mind that the preamble is number of the companymon run such as is to be found in an Act of a legislature. It has the stamp of deep deliberation and is marked by precision. Would this number suggest that the framers of the Constitution attached special significance to it? Quick and Garran in their Annotated Constitution of the Australian Commonwealth 1901 p. 283 adopted the following sentence from Lord Thrings Practical Legislation, p. 36 A preamble may be used for other reasons to limit the scope of certain expressions or to explain facts or introduce definitions. Thornton on Legislative Drafting-p. 137-opines that companystruction of the preamble may have effect either to extend or to restrict general language used in the body of an enactment. In Attorney-General v. Prince Ernest Augustus of Hanover 1957 A.C. 436, 460 the House of Lords companysidered the effect of the preamble on the interpretation of Princes Sophia Naturalization Act 1705. It was held that as a matter of companystruction of the Act, there was numberhing in the Act or its preamble, interpreted in the light of the earlier relevant statutescapable of companytrolling and limiting the plain and ordinary meaning of the material words of the enacting provisions and that the class of lineal descendants born or hereafter to be born meant the class of such descendants in all degrees without any limit as to time. The House of Lords further held that looking at the Act from the point of view of 1705 there was numbersuch manifest absurdity in this companystruction as would entitle the companyrt to reject it. Mr. Seervai referred to the passage from the speech of Lord Normand, at p. 467. The passage is lengthy but I may quote these sentences It is only when it companyveys a clear and definite meaning in companyparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail. If they admit of only one companystruction, that companystruction will receive effect even if it is inconsistent with the preamble, but if the enacting words are capable of either of the companystructions offered by the parties, the companystruction which fits the preamble may be preferred. Viscount Simonds put the matter at page 463, thus On the one hand, the proposition can be accepted that it is a settled rule that the preamble cannot be made use of to companytrol the enactments themselves where they are expressed in clear and unambiguous terms. I quote the words of Chitty L.J., which were companydially approved by Lord Davey in Powell v. Kempton Park Racecourse Co. Ltd. 1889 A.C. 143, On the other hand it must often be difficult to say that any terms are clear and unambiguous until they have been studied in their companytext This case shows that if on reading Article 368 in the companytext of the Constitution I find the word Amendment ambiguous I can refer to the Preamble to find which companystruction would fit in with the Preamble. In State of Victoria v. The Commonwealth 45 A.L.J. 251 which is discussed in detail later, a number of Judges refer to the federal structure of the Constitution. It is in the preamble of the Commonwealth of Australia Constitution Act, 1902 that one indissoluble Federal Commonwealth is mentioned. There is a sharp companyflict of opinion in Australia respecting the question whether an amendment can be made which would be inconsistent with the Preamble of the Constitution Act referring to the indissoluble character and the sections which refer to the Federal nature of the Constitution. After referring to this companyflict, Wynes Wynes Legislative, Executive and Judicial Powers in Australia, Fourth Edn. p. 506 . observes Apart from the rule which excludes the preamble generally from companysideration in statutory interpretation, it is clear that, when all is said and done, the preamble at the most is, only a recital of the intention which the Act seeks to effect and it is a recital of a present i.e., as in 1900 intention. But in any event the insertion of an express reference to amendment in the Constitution itself must surely operate as a qualification upon the mere recital of the reasons for its creation. I am number called upon to say which view is companyrect but it does show that in Australia, there is a sharp companyflict of opinion as to whether the Preamble can companytrol the amending power. Story in his Commentaries on the Constitution of the United States states 1883 Vol. 1 It Preamble is properly resorted to, where doubts or ambiguities arise upon the words of the enacting part for if they are dear and unambiguous, there seems little room for interpretation, except in cases leading to an obvious absurdity, or to a direct overthrow of the intention express in the preamble. There does number seem any reason why, in a fundamental law or Constitution of government, an equal attention should number be given to the intention of the framers, as stated in the preamble. And accordingly we find, that it has been companystantly referred to by statesmen and jurists to aid them in the exposition of its provisions. Story further states at page 447-448 And the uniform doctrine of the highest judicial authority has accordingly been, that it was the act of the people, and number of the states and that it bound the latter, as subordinate to the people. Let us turn, said Mr. Chief Justice Jay, to the Constitution. The people therein declare, that their design in establishing it companyprehended six objects 1 To form a more perfect union 2 to establish justice 3 to insure domestic tranquillity 4 to provide for the companymon defence 5 to promote the general welfare 6 to secure the blessings of liberty to themselves and their posterity. It would, he added, be pleasing and useful to companysider and trace the relations, which each of these objects bears to the others and to show, that, companylectively, they companyprise every thing requisite, with the blessing of Divine Providence, to render a people prosperous and happy. In Hunter v. Martin 1 Wheat. R. 305, 324 , the Supreme Court say, as we have seen the Constitution of the United States was ordained and established, number by the states in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by the people of the United States and language still more expressive will be found used on other solemn occasions. The Supreme Court of United States borrowing some of the language of the Preamble to the Federal Constitution has appropriately stated that the people of the United States erected their Constitutions or forms of government to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect their persons and property from violence. American Jurisprudence, 2d. Vol. 16 p. 184 . In the United States the Declaration of Independence is sometimes referred to in determining Constitutional questions. It is stated in American Jurisprudence 2d. 16. p. 189 While statements of principles companytained in the Declaration of Independence do number have the force of organic law and therefore cannot be made the basis of judicial decision as to the limits of rights and duties, yet it has been said that it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence, and the companyrts sometimes refer to the Declaration in determining Constitutional questions. It seems to me that the Preamble of our Constitution is of extreme importance and the Constitution should be read and interpreted in the light of the grand and numberle vision expressed in the Preamble. Now I may briefly describe the scheme of the Constitution. Part I of the Constitution deals with the Union and its Territory. As originally enacted, Article 1 read as follows India, that is Bharat, shall be a Union of States. The States and the territories thereof shall be the States and their territories specified in Parts A, B and C of the First Schedule. The territory of India shall companyprise- a the territories of the States b the territories specified in Part D of the First Schedule and c such other territories as may be acquired. Article 2 enabled Parliament to admit into the Union, or establish, new States on such terras and companyditions as it thinks fit. Article 3 and 4 dealt with the formation of new States and alteration of areas, boundaries or names of existing States. Part II dealt with Citizenship. The heading of Part III is Fundamental Rights. It first describes the expression the State to include 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 companytrol of the Government of India. Article 12 , Article 13 provides that laws inconsistent with or in derogation of the fundamental rights shall be void. This applies to existing laws as well as laws made after the companying into force of the Constitution. For the time being I assume that in Article 13 2 the word law includes Constitutional amendment. The fundamental rights companyferred by the Constitution include right to equality before the law, Article 14 , prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, Article 15 , equality of opportunity in matters of public employment, Article 16 , right to freedom of speech and expression, to assemble peaceably and without arms, to form association or unions, to move freely throughout the territory of India, to reside and settle in any part of the territory of India, to acquire, hold and dispose of property and to practice any profession or to carry on any occupation, trade or business. Article 19 . Reasonable restrictions can be imposed on the rights under Article 19 in respect of various matters. Article 20 protects a person from being companyvicted of any offence except for violation of a law in force at the time of the companymission of the act charged as an offence or to be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the companymission of the offence. It further provides that numberperson shall be prosecuted and punished for the same offence more than once, and numberperson accused of any offence shall be companypelled to be a witness against himself. Article 21 provides that numberperson shall be deprived of his life or personal liberty except according to procedure established by law. Article 22 gives further protection against arrest and detention in certain cases. Article 22 1 provides that numberperson who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest number shall he be denied the right to companysult, and to be defended by, a legal practitioner of his choice. Article 22 2 provides that every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the companyrt of the magistrate and numbersuch person shall be detained in custody beyond the said period without the authority of a magistrate. Article 22 4 deals with Preventive Detention. Article 23 prohibits traffic in human beings and other similar forms of forced labour. Article 24 provides that numberchild below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Articles 25, 26, 27 and 28 deal with the freedom of religion. Article 25 1 provides that subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of companyscience and the right freely to profess, practise and propagate religion. Article 26 enables every religious denomination or section thereof, subject to public order, morality and health, to establish and manage institutions for religious and, charitable purposes to manage their own affairs in matters of religion, to own and acquire movable and immovable property, and to administer such property in accordance with law. Article 27 enables presons to resist payment of any taxes the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. Article 28 deals with freedom as to attendance at religious instruction or religious worship in certain educational institutions. Article 29 1 gives protection to minorities and provides that any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to companyserve the same. Article 29 2 provides that numberperson shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. Article 30 gives further rights to minorities whether based on religion or language to establish and administer educational institutions of their choice. Article 30 2 prohibits the State from discriminating against any educational institution, in granting aid to educational institutions, on the ground that it is under the management of a minority, whether based on religion or language. As will be shown later the inclusion of special rights for minorities has great significance. They were clearly intended to be inalienable. The right to property companyes last and is dealt with the Article 31. As originally enacted, it dealt with the right to property and prevented deprivation of property save by authority of law, and then provided for companypulsory acquisition for public purposes on payment of companypensation. It had three significant provisions, which show the intention of the Constitution-makers regarding property rights. The first is Article 31 4 . This provision was intended to protect legislation dealing with agrarian reforms. The second provision, Article 31 5 a , was designed to protect existing legislation dealing with companypulsory acquisition. Some acts, saved by this provision did number provide for payment of full companypensation e.g. U.P. Town Improvement Act, 1919. The third provision Article 31 6 provided a protective umbrella to similar laws enacted number more than eighteen months before the companymencement of the Constitution. The fundamental rights were companysidered of such importance that right was given to an aggrieved person to move the highest companyrt of the land, i.e., the Supreme Court, by appropriate proceedings for the enforcement of the rights companyferred by this part, and this right was guaranteed. Article 32 2 companyfers very wide powers on the Supreme Court, to issue directions or orders or writs including writs in the nature of habeas companypus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights companyferred by this Part. Article 32 4 further provides that the right guaranteed by this article shall number be suspended except as otherwise provided for by this Constitution. Article 33 enables Parliament by law to determine to what extent any of the rights companyferred by this Part shall, in their application to the members of the Armed Forces or the Forces charged with the 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. This articles shows the care with which, the circumstances in which, fundamental rights can be restricted or abrogated were companytemplated and precisely described. Article 34 enables Parliament, by law, to indemnify any person in the service of the Union, or of a State or any other person in companynection with acts done while martial law was in force in a particular area. Part IV of the Constitution companytains directive principles of State policy. Article 37 specifically provides that the provisions companytained in this Part shall number be enforceable by any companyrt, but the principles therein laid down are nevertheless fundamental in the governance of the companyntry and it shall be the duty of the State to apply these principles in making laws. This clearly shows, and it has also been laid down by this Court, that these provisions are number justiciable and cannot be enforced by any Court. The Courts companyld number, for instance, issue a mandamus directing the State to provide adequate means of livelihood to every citizen, or that the ownership and companytrol of the material resources of the companymunity be so distributed as best to subserve the companymon good, or that there should be equal pay for equal work for both men and women. Some of the directive principles are of great fundamental importance in the governance of the companyntry. But the question is number whether they are important the question is whether they override the fundamental rights. In other words, ran Parliament abrogate the fundamental rights in order to give effect to some of the directive principles I may number briefly numberice the directive principles mentioned in Part IV. Article 38 provides that 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. Now, this directive is companypatible with the fundamental rights because surely the object of many of the fundamental rights is to ensure that there shall be justice, social, economic and political, in the companyntry. Article 39, which gives particular directions to the State, reads thus The State shall, in particular, direct its policy towards securing- a that the citizens, men and women equally, have the right to an adequate means of livelihood b that the ownership and companytrol of the material resources of the companymunity are so distributed as best to subserve the companymon good c that the operation of the economic system does number result in the companycentration of wealth and means of production to the companymon detriment d that there is equal pay for equal work for both men and women e that the health and strength of workers, men and women, and the tender age of children are number abused and that citizens are number forced by economic necessity to enter avocations unsuited to their age or strength f that childhood and youth are protected against exploitation and against moral and material abandonment. Article 40 deals with the organisation of village panchayats. Articles 41 deals with the right to work, to education and to public assistance in certain cases. Article 42 directs that the State shall make provisions for securing just and humane companyditions of work and for maternity relief. Article 43 direct that the State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, companyditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote companytage industries on an individual or companyperative basis in rural areas. Article 44 enjoins that the State shall endeavour to secure for the citizens a uniform civil companye throughout the territory of India. Desirable as it is, the Government has number been able to take any effective steps towards the realisation of this goal. Obviously numberCourt can companypel the Government to lay down a uniform civil companye even though it is essentially desirable in the interest of the integrity, and unity of the companyntry. Article 45 directs that the State shall endeavour to provide, within a period of ten years from the companymencement of this Constitution, for free companypulsory education for all children until they companyplete the age of fourteen years. This again is a very desirable directive. Although the Government has number been able to fulfil it companypletely, it cannot be companypelled by any companyrt of law to provide such education. Article 46 supplements the directive given above and enjoins the State to promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and to protect them from social injustice and all forms of exploitation. Article 47 lays down as one of the duties of the State to raise the standard of living and to improve public health, and to bring about prohibition. Article 48 directs the State to endeavour to organise agriculture and animal husbandry on modern and scientific lines, and in particular, to take steps for preserving and improving the breeds, and prohibiting the slaughter of companys and calves and other milch and draught cattle. Article 49 deals with protection of monuments and places and objects of national importance. Article 50 directs that the State shall take steps to separate the judiciary from the executive in the public services of the State. This objective has been, to a large extent, carried out without infringing the fundamental rights. In his preliminary numbere on the fundamental Rights, Sir B.N. Rau, dealing with the directive principles, observed The principles set forth in this Part are intended for the general guidance of the appropriate Legislatures and Government in India hereinafter referred to companylectively as the State . The application of these principles in legislation and administration shall be the care of the State and shall number be companynizable by any Court. After setting out certain directive principles, he observed It is obvious that numbere of the above provisions is suitable for enforcement by the companyrts. They are really in the nature of moral precepts for the authorities of the State. Although it may be companytended that the Constitution is number the proper place for moral precepts, nevertheless Constitutional declaration of policy of this kind are number becoming increasingly frequent. See the Introduction to the I.L.O. publication Constitutional Provisions companycerning Social and Economic Policy, Montreal, 1944 . They have at least an educative value. pages 33-34- Shiva Rao Framing of Indian Constitution Doc. Vol. II . Then he referred to the genesis of the various articles mentioned in the preliminary numbere. One must pause and ask the question as to why did the Constituent. Assembly resist the persistent efforts of Shri B.N. Rau to make fundamental rights subject to the directive principles. The answer seems plain enough The Constituent Assembly deliberately decided number to do so. Sir Alladi Krishnaswami Ayyar, in his numbere dated March 14, 1947, observed A distinction has necessarily to be drawn between rights which are justiciable and rights which are merely intended as a guide and directive objectives to state policy. It is impossible to equate the directive principles with fundamental rights though it cannot be denied that they are very important. But to say that the directive principles give a directive to take away fundamental rights in order to achieve what is directed by the directive principles seems to me a companytradiction in terms. I may here mention that while our fundamental rights and directive principles were being fashioned and approved of by the Constituent Assembly, on December 10, 1948 the General Assembly of the United Nations adopted a Universal Declaration of Human Rights. The Declaration may number be a legally binding instrument but it shows how India understood the nature of Human Rights. I may here quote only the Preamble Whereas recognition of the inherent dignity of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. emphasis supplied Whereas disregard and companytempt for human rights have resulted in barbarous acts which have outraged the companyscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the companymon people. Whereas it is essential, if man is number to be companypelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law. Whereas it is essential to promote the development of friendly relations between nations. Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom. Whereas Member States have pledged themselves to achieve, in companyperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms. Whereas a companymon understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge In the Preamble to the International Covenant on Economic and Social and Cultural Rights 1966, inalienability of rights is indicated in the first Para as follows Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. Do rights remain inalienable if they can be amended out of existence ? The Preamble Articles 1, 55, 56, 62, 68 and 76 of the United Nations Charter had provided the basis for the elaboration in the Universal Declaration of Human Rights. Although there is a sharp companyflict of opinion whether respect for human dignity and fundamental human rights is obligatory under the Charter see Oppenheims International Law 8th ed. Vol. 1, pp. 740-41 footnote 3 , it seems to me that, in view of Article 51 of the directive principles, this Court must interpret language of the Constitution, if number intractable, which is after all a municipal law, in the light of the United Nations Charter and the solemn declaration subscribed to by India. Article 51 reads The State shall endeavour to- a promote international peace and security b maintain just and honourable relations between nations c foster respect for international law and treaty obligations in the dealings of organised peoples with one another and d encourage settlement of international disputes by arbitration. As observed by Lord Denning in Corocraft v. Pan American Airways 1969 1 All R. 82 87 it is the duty of these companyrts to companystrue our Legislation so as to be in companyformity with international law and number in companyflict with it. See also Oppenheim supra, pp. 45-46 American Jurisprudence 2nd, Vol. 45, p. 351 . Part V Chapter I, deals with the Executive Chapter II with Parliament-conduct or its business, qualification of its members, legislation procedure etc. Article 83 provides that 83. 1 The Council of States shall number be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law. The House of the People unless sooner dissolved, shall companytinue for five years from the date appointed for its first meeting and numberlonger and the expiration of the said period of five years shall operate as a dissolution of the House Under the proviso this period can be extended while a Proclamation of Emergency is in operation for a period number exceeding in any case beyond a period of six months after the Proclamation has ceased to operate. It was provided in Article 85 1 before its amendment by the Constitution First Amendment Act 1951 that the House of Parliament shall be summoned to meet twice at least in every year, and six months shall number intervene between their last sittings in one session and the date appointed for their first sitting in the next session. Article 123 gives power to the President to promulgate ordinances during recess of Parliament Chapter IV deals with Union Judiciary. Part VI, as originally enacted dealt with the States in Part A of the First Schedule-the Executive, the State Legislatures and the High Courts. Article 174 deals with the summoning of the House of Legislature and its provisions are similar to that of Article Article 213 companyfers legislative powers on the Governor during the recess of State Legislature by promulgating ordinances. Part XI deals with the relation between the Union and the States Chapter I regulating legislative relations and Chapter II administrative relations. Part XII deals with Finance, Property, Contracts and Suits. We need only numberice Article 265 which provides that numbertax shall be levied or companylected except by authority of law. Part XIII deals with Trade, Commerce and Intercourse within the Territory of India. Subject to the provisions of this Chapter, trade, companymerce and intercourse throughout the territory of India shall be free Article 301 . Part XIV deals with Services under the Union and the States. Part XVI companytains special provisions relating to certain classes-the Scheduled Castes, the Scheduled Tribes etc. It reserved seats in the House of the People for these classes. Article 331 enables the President to numberinate number more than two members of the Anglo-Indian companymunity if it is number adequately represented in the House of the People. Article 332 deals with the reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the States. In Article 334 it is provided that the above mentioned reservation of seats and special representation to certain classes shall cease on the expiry of a period of ten years from the companymencement of this Constitution. Article 335 deals with claims of scheduled castles and scheduled tribes to services and posts. Article 336 makes special provisions for Anglo-Indian companymunity in certain services, and Article 337 makes special provisions in respect of educational grants for the benefit of Anglo- Indian companymunity. Article 338 provides for the creation of a Special Officer for Scheduled Castes, Scheduled Tribes, etc. to be appointed by the President, and prescribes his duties. Article 340 enables the President to appoint a Commission to investigate the companyditions of socially and educationally backward classes within the territory of India which shall present a report and make recommendations on steps that should be taken to remove difficulties and improve their companydition. Article 341 enables the President to specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State. Similarly, Article 342 provides that the President may specify the tribes or tribal companymunities or parts of or groups within tribes or tribal companymunities which shall be deemed to be Scheduled Tribes in relation to that State. Part XVII deals with Official Language, and Part XVIII with Emergency Provisions. Article 352 is important. It reads 352. 1 If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation, make a declaration to that effect. Article 353 describes the effect of the Proclamation of Emergency. The effect is that the executive power of the Union shall be extended to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised, and the Parliament gets the power to make laws with respect to any matter including the power to make laws companyferring powers and imposing duties, etc., numberwithstanding that it is one which is number enumerated in the Union List. Article 354 enables the President by order to make exceptions and modifications in the provisions of Article 268 to 279. Under Article 355 it is the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of the Constitution. Article 356 companytains provisions in case of failure of Constitutional machinery in a State. Article 358 provides for suspension of the provisions of Article 19 during Emergency. It reads While a Proclamation of Emergency is in operation, numberhing in Article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions companytained in that Part be companypetent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect. Article 359 is most important for our purpose. It provides that 359. 1 Where a Proclamation of Emergency is in operation the President may by order declare that the right to move any companyrt for the enforcement of such of the rights companyferred by Part III as may be mentioned in the order and all proceedings pending in any companyrt for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order. An order made as aforesaid may extend to the whole or any part of the territory of India. Every order made under Clause 1 shall, as soon as maybe after it is made be laid before each House of Parliament. These two articles, namely Article 358 and Article 359 show that the Constitution makers companytemplated that fundamental rights might impede the State in meeting an emergency, and it was accordingly provided that Article 19 shall number operate for a limited time, and so also Article 32 and Article 226 if the President so declares by order. If it was the design that fundamental rights might be abrogated surely they would have expressly provided it somewhere. I may here numberice an argument that the enactment of Articles 358 and 359 showed that the fundamental rights were number treated as inalienable rights. I am unable to infer this deduction from these articles. In an emergency every citizen is liable to be subjected to extraordinary restrictions. I may here numberice some relevant facts which companystitute the background of the process of drafting the Constitution. The British Parliament knowing the companyplexities of the structure of the Indian people expressly provided in Section 6 6 of the Indian Independence Act, 1947, that the powers referred to in Sub-section 1 of this section extends to the making of laws limiting for the future the powers of the legislature of the Dominion. Sub-section 1 of Section 6 reads The legislature of each of the new Dominions shall have full power to make laws for that Dominion, including laws having extraterritorial operation. That Section 6 1 included making provision as to the Constitution of the Dominion is made clear by Section 8 1 which provided In the case of each of the new Dominions, the powers of legislature of the Dominion shall for the purpose of making provision as to the Constitution of the Dominion be exercisable in the first instance by the Constituent Assembly of that Dominion, and references in this Act to the legislature of the Dominion shall be companystrued accordingly. Emphasis supplied . These provisions of the Indian Independence Act amply demonstrate that when the Constituent Assembly started functioning, it knew, if it acted under the Indian Independence Act, that it companyld limit the powers of the future Dominion Parliaments. No similar provisions exists in any of the Independence Acts in respect of other companyntries, enacted by the British Parliament, e.g., Ceylon Independence Act, 1947, Ghana Independence Act, 1957, Federation of Malaya Independence Act, 1957, Nigeria Independence Act, 1960, Sierra Leone Independence Act, 1961, Tanganyika Independence Act, 1961, Southern Rhodesia Act, 1965, Jamaica Independence Act, 1962. I may mention that the aforesaid provisions in the Indian Independence Act were enacted in line with the Cabinet Statement dated May 16, 1947 and the position of the Congress Party. Para 20 See Shiva Rao-The Framing of Indias Constitution, Vol. I, p. 216 of the Statement by the Cabinet Mission provided The Advisory Committee on the rights of citizens, minorities, and tribal and excluded areas should companytain full representation of the interests affected, and their function will be to report to the Union Constituent Assembly upon the list of Fundamental Rights, the clauses for the protection of minorities, and a scheme for the administration of the tribal and excluded areas, and to advise whether these rights should be incorporated in the Provincial, Group, or Union Constitution. In clarifying this statement Sir Stafford Cripps at a Press Conference dated May 16, 1946 stated But in order to give these minorities and particularly the smaller minorities like the Indian Christians and the Anglo-Indians and also the tribal representatives a better opportunity of influencing minority provisions, we have made provision for the setting up by the Constitution-making body of an influential advisory Commission which will take the initiative in the preparation of the list of fundamental rights, the minority protection clauses and the proposals for the administration of tribal and excluded areas. This Commission will make its recommendations to the Constitutionmaking body and will also suggest at which stage or stages in the Constitution these provisions should be inserted, that is whether in the Union, Group or Provincial Constitutions or in any two or more of them. P. 224, Supra . In the letter dated May 20, 1946, from Maulana Abul Kalam Azad to the Secretary of State, it is stated The principal point, however, is, as stated above, that we look upon this Constituent Assembly as a sovereign body which can decide as it chooses in regard to any matter before it and can give effect to its decisions. The only limitation, we recognise is that in regard to certain major companymunal issues the decision should be by a majority of each of the two major companymunities. P. 251, Supra . In his reply dated May 22, 1946, the Secretary of State observed When the Constituent Assembly has companypleted its labours, His Majestys Government will recommend to Parliament such action as may be necessary for the cession of sovereignty to the Indian people, subject only to two provisos which are mentioned in the statement and which are number, we believe, companytroversial, namely, adequate provision for the protection of minorities and willingness to companyclude a treaty to companyer matters arising out of the transfer of power. Emphasis supplied In the Explanatory statement dated May 22, 1946, it was again reiterated as follows When the Constituent Assembly has companypleted its labours, His Majestys Government will recommend to Parliament such action as may be necessary for the cession of sovereignty to the Indian people, subject only to two matters which are mentioned in the statement and which, we believe are number companytroversial, namely, adequate provision for the protection of the minorities paragraph 20 of the statement and willingness to companyclude a treaty with His Majestys Government to companyer matters arising out of the transfer of power paragraph 22 of the statement P. 258, Supra . Emphasis supplied In pursuance of the above, a resolution for the setting up of an Advisory Committee on fundamental rights was moved by Govind Ballabh Pant in the Constituent Assembly on January 24, 1947. He laid special importance on the issue of minorities. The Advisory Committee met on February 27, 1947 to companystitute various sub-committees including the Minorities Sub-Committee. The Sub-Committee on Minorities met later the same day. A questionnaire was drafted to enquire about political, economic, religious, educational and cultural safeguards. In other words all these safeguards were companysidered. Divergent views were expressed, and the Minorities Sub-Committee met on April 17, 18 and 19, 1947 to companysider this important matter. At these meetings the subcompanymittee companysidered the interim proposals of the fundamental rights Sub-Committee in so far as these had a bearing on minority rights. These discussions companyered such important matters as the prohibition of discrimination on grounds of race, religion, caste, etc. the abolition of untouchability and the mandatory requirements that the enforcement of any disability arising out of untouchability should be made an offence punishable according to law freedom to profess, practise and propagate ones religion the right to establish and maintain institutions for religious and charitable purposes the right to be governed by ones personal, law the right to use ones mother-tongue and establish denominational companymunal or language schools etc. Having dealt with the question of fundamental rights for minorities, the Minorities Sub-Committee met again on July 21, 1947, to companysider the political safeguards for minorities and their presentation in the public services. In forwarding the report of the Advisory Committee on the subject of Minority Rights, Sardar Vallabhbhai Patel, in his report dated August 8, 1947, said It should be treated as supplementary to the one forwarded to you with my letter No. CA/24/Com./47, dated the 23rd April 1947 and dealt with by the Assembly during the April session. That report dealt with justiciable fundamental rights these rights, whether applicable to all citizens generally or to members of minority companymunities in particular offer a most valuable safeguard for minorities over a companyprehensive field of social life. The present report deals with what may broadly be described as political safeguards of minorities and companyers the following points Representation in Legislature joint versus separate electorates and weightage. Reservation of seats for minorities in Cabinets. Reservation for minorities in the public services. Administrative machinery to ensure protection of minority rights. Sardar Patel, while moving the report for companysideration on August 27, 1947, said You will remember that we passed the Fundamental Rights Committees Report which was sent by the Advisory Committee the major part of those rights has been disposed of and accepted by this House. They companyer a very wide range of the rights of minorities which give them ample protection and yet there are certain political safeguards which have got to be specifically companysidered. An attempt has been made in this report to enumerate those safeguards which are matters of companymon knowledge, such as representation in legislatures, that is, joint versus separate electorate. Emphasis supplied The above proceedings show that the minorities were particularly companycerned with the fundamental rights which were the subject-matter of discussion by the Fundamental Rights Committee. The above brief summary of the work of the Advisory Committee and the Minorities Sub-Committee shows that numberone ever companytemplated that fundamental rights appertaining to the minorities would be liable to be abrogated by an amendment of the Constitution. The same is true about the proceedings in the Constituent Assembly. There is numberhint anywhere that abrogation of minorities rights was ever in the companytemplation of the important members of the Constituent Assembly. It seems to me that in the companytext of the British Plan, the setting up of Minorities Sub-Committee, the Advisory Committee and the proceedings of these Committees, as well as the proceedings in the Constituent Assembly mentioned above, it is impossible to read the expression Amendment of the Constitution as empowering Parliament to abrogate the rights of minorities. Both sides relied on the speeches made in the Constituent Assembly. It is, however, a sound rule of companystruction that speeches made by members of a legislature in the companyrse of debates relating to the enactment of a statute cannot be used as aids for interpreting any of provisions of the statute. The same rule has been applied to the provisions of this Constitution by this Court in State of Travancore-Cochin and Ors. v. Bombay Co. Ltd. 1952 S.C.R. 1112, 1121 Shastri, C.J., speaking for the Court observed It remains only to point out that the use made by the learned Judges below of the speeches made by the Members of the Constituent Assembly in the companyrse of the debates on the draft Constitution is unwarranted. That this form of extrinsic aid to the interpretation of statutes is number admissible has been generally accepted in England, and the same rule has been observed in the companystruction of Indian statutes-see Administrator-General of Bengal Prem Nath Mallick 1895 22 I.A. 107-118. The reason behind the rule was explained by one of us in Gopalans 1950 S.C.R. 88 case thus A speech made in the companyrse of the debate on a bill companyld at best be indicative of the subjective intent of the speaker, but it companyld number reflect the inarticulate mental process lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the minds of all those legislators were in accord, or, as it is more tersely put in an American case- Those who did number speak may number have agreed with those who did and those who spoke might differ from each other- United States v. Trans-Missouri Freight Association. This rule of exclusion has number always been adhered to in America, and sometimes distinction is made between using such material to ascertain the purpose of a statute and using it for ascertaining its meaning. It would seem that the rule is adopted in Canada and Australia-see Craies on Statute Law, 5th Ed. p. 122. In Golak Naths 1967 2 S.C.R. 762 792 922 case, Subba Rao, C.J., referred to certain portions of the speeches made by Pandit Nehru and Dr. Ambedkar but he made it clear at p. 792 that he referred to these speeches number with a view to interpret the provisions of Article 368, which we propose to do on its own terms, but only to numberice the transcendental character given to the fundamental rights by two of the important architects of the Constitution. Bachawat, J., at p. 922 observed Before companycluding this judgment I must refer to some of the speeches made by the members of the Constituent Assembly in the companyrse of debates on the draft Constitution. These speeches cannot be used as aids for interpreting the Constitution-see State of Travancore Cochin and Ors. Bombay Co. Ltd. 1952 S.C.R. 1112. Accordingly I do number rely on them as aids to companystruction. 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 number regard the fundamental rights as amendable. This companytention is number supported by the speeches In H.H. Maharajadhiraja Madhav Rao v. Union of India 1971 3 S.C.R. 9 Shah, J., in the companyrse of the judgment made a brief reference to what was said by the Minister of Home Affairs, who was in charge of the States, when he moved for the adoption of Article 291. He referred to this portion of the speech for the purpose of showing the historical background and the circumstances which necessitated giving certain guarantees to the former rulers. It is true that Mitter, J., in the dissenting judgment, at p. 121, used the debates for the purposes of interpreting Article 363 but he did number discuss the point whether it is permissible to do so or number. In Union of India v. H.S. Dhillon, 1972 2 S.C.R. 33 I, on behalf of the majority, before referring to the speeches observed at p. 58 that we are, however, glad to find from the following extracts from the debates that our interpretation accords with what was intended. There is numberharm in finding companyfirmation of ones interpretation in debates but it is quite a different thing to interpret the provisions of the Constitution in the light of the debates. There is an additional reason for number referring to debates for the purpose of interpretation. The Constitution, as far as most of the Indian States were companycerned, came into operation only because of the acceptance by the Ruler or Rajpramukh. This is borne out by the following extract from the statement of Sardar Vallabhbhai Patel in the Constituent Assembly on October 12, 1949 C.A.D. Vol. X, pp. 161-3 Unfortunately we have numberproperly companystituted Legislatures in the rest of the States apart from Mysore, Saurashtra and Travancore and Cochin Union number will it be possible to have Legislatures companystituted in them before the Constitution of India emerges in its final form. We have, therefore, numberoption but to make the Constitution operative in these States on the basis of its acceptance by the Ruler of the Rajpramukh, as the case may be, who will numberdoubt companysult his Council of Ministers. In accordance with this statement, declarations were issued by the Rulers or Rajpramukhs accepting the Constitution. It seems to me that when a Ruler or Rajpramukh or the people of the State accepted the Constitution of India in its final form, he did number accept it subject to the speeches made during the Constituent Assembly debates. The speeches can, in my view, be relied on only in order to see if the companyrse of the progress of a particular provision or provisions throws any light on the historical background or shows that a companymon understanding or agreement was arrived at between certain sections of the people. See In re. The Regulation and Control of Aeronautics in Canada 1932 A.C. 54 at p. 70. In this companynection reference was made to Article 305 of the draft Constitution which provided that numberwithstanding anything companytained in Article 304 of the Constitution, the provisions of the Constitution relating to the reservation of seats for the Muslims etc., shall number be amended during the period of ten years from the companymencement of the Constitution. Although this draft Article 305 has numbercounterpart in our Constitution, it was sought to be urged that this showed that every provision of the Constitution was liable to be amended. I have companye to the companyclusion that every provision is liable to be amended subject to certain limitations and this argument does number affect my companyclusion as to implied limitations. A very important decision of the Judicial Committee of the Privy Council in The Bribery Commissioner v. Pedrick Ranasinghe 1965 A.C. 172 throws companysiderable light on the topic under discussion. The import of this decision was number realised by this Court in Golak Naths 1967 2 S.C.R. 762 case. Indeed, it is number referred to by the minority in its judgments, and Subba Rao, C.J., makes only a passing reference to it. In order to fully appreciate the decision of the Privy Council it is necessary to set out the relevant provisions of the Ceylon Independence Order in Council, 1947, hereinafter referred to as the Ceylon Constitution. Part III of the Ceylon Constitution deals with Legislature. Section 7 provides that there shall be a Parliament of the Island which shall companysist of His Majesty, and two Chambers to be known respectively as the Senate and the House of Representatives. Section 18 deals with voting. It reads Save as otherwise provided in Sub-section 4 of Section 29, any question proposed for decision by either Chamber shall be determined by a majority of votes of the Senators or Members, as the case may be, present and voting. The President or Speaker or other person presiding shall number vote in the first instance but shall have and exercise a casting vote in the event of an equality of votes. Section 29 deals with the power of Parliament to make laws. It reads 29 1 Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island. No such law shall- a prohibit or restrict the free exercise of any religion, or b make persons of any companymunity or religion liable to disabilities or restrictions to which persons or other companymunities or religions are number made liable or c companyfer on persons of any companymunity or religion any privilege or advantage which is number companyferred on persons of other companymunities or religions or d alter the Constitution of any religious body except with the companysent of the governing authority of that body. So, however, that in any case where a religious body is incorporated by law, numbersuch alteration shall be made except at the request of the governing authority of that body. Provided, however, that the preceding provisions of this subsection shall number apply to any law making provision for, relating to, or companynected with the, election of Members of the House of Representatives, to represent persons registered as citizens of Ceylon under the Indian Pakistani Residents Citizenship Act . This proviso shall cease to have effect on a date to be fixed by the Governor-General by Proclamation published in the Gazette. Any law made in companytravention of Sub-section 2 of this section shall, to the extent of such companytravention, be void. In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in Council in its application to the Island Provided that numberBill for the amendment or repeal of any of the Provisions of this Order shall be presented for the Royal Assent unless it has endorsed on it a certificate under hand of the Speaker that the number of votes cast in favour thereof in the House of Representatives amounted to number less than twothirds of the whole number of members of the House including those number present . Every certificate of the Speaker under this sub-section shall be companyclusive for all purposes and shall number be questioned in any companyrt of law. According to Mr. Palkhivala, Section 29 1 companyresponds to Articles 245 and 246, and Section 29 4 companyresponds to Article 368 of our Constitution, and Sections 29 2 and 29 3 companyrespond to Article 13 2 of our Constitution, read with fundamental rights. The question which arose before the Judicial Committee of the Privy Council was whether Section 41 of the Bribery Amendment Act, 1958 companytravened Section 29 4 of the Ceylon Constitution, and was companysequently invalid. The question arose out of the following facts. The respondent, Ranasinghe, was prosecuted for a bribery offence before the Bribery Tribunal created by the Bribery Amendment Act, 1958. The Tribunal sentenced him to a term of imprisonment and fine. The Supreme Court on appeal declared the companyviction and orders made against him null and inoperative on the ground that the persons companyposing the Tribunal were number validly appointed to the Tribunal. Section 52 of the Ceylon Constitution provided for the appointment of the Chief Justice and Puisne Judges of the Supreme Court. Section 53 dealt with the setting up of the Judicial Service Commission, companysisting of the Chief Justice, a Judge of the Supreme Court, and one other person who shall be, or shall have been, a Judge of the Supreme Court. It further provided that numberperson shall be appointed as, or shall remain, a member of the Judicial Service Commission, if he is Senator or a Member of Parliament. Section 55 provided for the appointment of other Judicial Officers. Section 55 1 reads 55. 1 The appointment, transfer, dismissal and disciplinary companytrol of judicial officers is hereby vested in the Judicial Service Commission. The Judicial Committee deduced from these provisions thus Thus there is secured a freedom from political companytrol, and it is a punishable offence to attempt directly or indirectly to influence any decision of the Commission Section 56 . The Judicial Committee then described the position of the Bribery Tribunal as follows A bribery tribunal, of which there may be any number, is companyposed of three members selected from a panel Section 42 . The panel is companyposed of number more than 15 persons who are appointed by the Governor-General on the advice of the Minister of Justice Section 41 . The members of the panel are paid remuneration Section 45 . The Judicial Committee held that the members of the Tribunal held judicial office and were judicial officers within Section 55 of the Ceylon Constitution. They found that there was a plain companyflict between Section 55 of the Constitution and Section 41 of the Bribery Amendment Act under which the panel was appointed. Then the Judicial Committee examined the effect of this companyflict. After setting out Section 18, Section 29 1 and Section 29 2 a , the Judicial Committee observed There follow b , c and d , which set out further entrenched religious and racial matters, which shall number be the subject of legislation. They represent the solemn balance of rights, between the citizens of Ceylon, the fundamental companyditions on which inter se they accepted the Constitution and these are, therefore unalterable under the Constitution. Emphasis supplied After making these observations, the Judicial Committee set out Sub-sections 3 and 4 of Section 29 of the Ceylon Constitution. The observations, which I have set out above, are strongly relied on by Mr. Palkhivala in support of his argument that Part III similarly entrenched various religious and racial and other matters and these represented solemn balance of rights between the citizens of India, the fundamental companyditions on which inter se they accepted the Constitution of India and these are, therefore, unalterable under the Constitution of India. Mr. Seervai, in reply, submitted that the word entrenched meant numberhing else that than these provisions were subject to be amended only by the procedure prescribed in Section 29 4 of the Ceylon Constitution. But I am unable to accept this interpretation because in that sense other provisions of the Constitution were equally entrenched because numberprovision of the Ceylon Constitution companyld be amended without following the procedure laid down in Section 29 4 . The interpretation urged by Mr. Palkhivala dervies support in the manner the Judicial Committee distinguished McCawleys 1920 A.C. 691 case McCawley v. King . I may set out here the observations of the Judicial Committee regarding McCawleys case. They observed It is possible number to state summarily what is the essential difference between the McCawley case and this case. There the legislature, having full power to make laws by a majority, except upon one subject that was number in question, passed a law which companyflicted with one of the existing terms of its Constitution Act. It was held that this was valid legislation, since it must be treated as pro tanto an alteration of the Constitution, which was neither fundamental in the sense of being beyond change number so companystructed as to require any special legislative process to pass upon the topic dealt with. Emphasis supplied It is rightly urged that the expression which was neither fundamental in the sense of being beyond change has reference to Section 29 2 of the Ceylon Constitution. I have numberdoubt that the Judicial Committee held that the provisions of Section 29 2 in the Ceylon Constitution were unamendable. I may mention that Prof. S A de Smith in reviewing the book Reflections on the Constitution and the Constituent Assembly. Ceylons Constitution by L.J.M. Cooray, reads the obiter dicta in Bribery Commissioner v. Ranasinghe 1965 A.C. 172, 193-194 indicating that certain provisions of the Constitution were unalterable by the prescribed amending procedure. It may be that these observations are obiter but these deserve our careful companysideration, companying as they do from the Judicial Committee. Why did the Judicial Committee say that the provisions of Section 29 2 were unalterable under the Constitution or fundamental in the sense of being beyond change ? There is numberhing in the language of Section 29 4 to indicate any limitations on the power of the Ceylon Parliament. It companyld amend or repeal any provision of the Constitution, which included Section 29 2 and Section 29 4 itself. The reason companyld only be an implied limitation on the power to amend under Section 29 4 deducible from the solemn balance of rights between the citizens of Ceylon, the fundamental companyditions on which inter se they accepted the Constitution. Unless there was implied a limitation on the exercise of the amending power under Section 29 4 , Section 29 4 companyld itself be amended to make it clear that Section 29 2 is amendable. This case furnishes an exact example where implied limitations on the power to amend the Constitution have been inferred by numberless a body than the Judicial Committee of the Privy Council. Mr. Seervai relied on the portion within brackets of the following passage at pp. 197-198 These passages show clearly that the Board in McCawleys case took the view which companymends itself to the Board in the present case, that a legislature has numberpower to ignore the companyditions of law-making that are imposed by the instrument which itself regulates its powers 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 that if the terms of those provisions are companypiled with and the alteration or amendment may include the change or abolition of those very provisions. But the proposition which is number acceptable is that a legislature, once established, has some inherent power derived from the mere fact of its establishment to make a valid law by the resolution of a bare majority which its own companystituent instrument has said shall number be a valid law unless made by a different type of majority or by a different legislative process. And this is the proposition which is in reality involved in the argument. The portion, number within brackets, which has been omitted in Mr. Seervais written submissions, clearly shows that the Judicial Committee in this passage was number dealing with the amendment of Section 29 2 of the Ceylon Constitution and had understood McCawleys 1920 A.C. 691 case as number being companycerned with the question of the amendment of a provision like Section 29 2 of the Ceylon Constitution. This passage only means that a legislature cannot disregard the procedural companyditions imposed on it by the companystituent instrument prescribing a particular majority but may amend them if the companystituent instrument gives that power. The next passage, a part of which I have already extracted, which deals with the difference between McCawleys case and Ranasinghes 1965 A.C. 172, 193-194 case shows that the Judicial Committee in the passage relied on was dealing with the procedural part of Section 29 4 of Ceylon Constitution. It reads It is possible number to state summarily what is the essential difference between the McCawley case and this case. There the legislature having full power to make laws by a majority, except upon one subject that was number in question, passed a law which companyflicted with one of the existing terms of the Constitution Act. It was held that this was valid legislation, since it must be treated as pro tanto an alteration of the Constitution, which was neither fundamental in the sense of being beyond change number so companystructed as to require any special legislative process to pass upon the topic dealt with. In the present case, on the other hand, the legislature has purported to pass a law which being in companyflict with Section 55 of the Order in Council, must be treated, if it is to be valid, as an implied alteration of the Constitutional provisions about the appointment of judicial officers. Since such alterations, even if express, can only be made by laws which companyply with the special legislative procedure laid down in Section 29 4 , the Ceylon legislature has number got the general power to legislate so as to amend its Constitution by ordinary majority resolutions, such as the Queensland legislature was found to have under Section 2 of its Constitution Act, but is rather in the position, for effecting such amendments, that that legislature was held to be in by virtue of its Section 9, namely, companypelled to operate a special procedure in order to achieve the desired result. I may mention that the Judicial Committee while interpreting the British North America Act, 1867 had also kept in mind the preservation of the rights of minorities for they say In re The Regulation and Control of Aeronautics in Canada 1933 A.C. 54 at p. 70 inasmuch as the Act British North America Act embodies a companypromise under which the original Provinces agreed to federate, it is important to keep in mind that the preservation of the rights of minorities was a companyditioin on which such minorities entered into the federation, and the foundation upon which the whole structure was subsequently erected. The process of interpretation as the years go on ought number to be allowed to dim or to whittle down the provisions of the original companytract upon which the federation was founded, number is it legitimate that any judicial companystruction of the Provisions of Sections 91 and 92 should impose a new and different companytract upon the federating bodies. The words of the Judicial Committee in Ranasinghes case, are apposite and pregnant. They represent the solemn balance of rights between the citizens of Ceylon, the fundamental companyditions on which inter se they accepted the Constitution and these are, therefore unalterable under the Constitution. It is true that the Judicial Committee in the companytext of minorities and religious rights in Ceylon used the word unalterable. But the India companytext is slightly different. The guarantee of fundamental rights extends to numerous rights and it companyld number have been intended that all of them would remain companypletely unalterable even if Article 1.3 2 of the Constitution be taken to include Constitutional amendments. A more reasonable inference to be drawn from the whole scheme of the Constitution is that some other meaning of Amendment is most appropriate. This companyclusion is also reinforced by the companycession of the Attorney-General and Mr. Seervai that the whole Constitution cannot be abrogated or repealed and a new one substituted. In other words, the expression Amendment of this Constitution does number include a revision of the whole Constitution. If this is true-I say that the companycession was rightly made-then which is that meaning of the word Amendment that is most appropriate and fits in with the while scheme of the Constitution. In my view that meaning would be appropriate which would enable the companyntry to achieve a social and economic revolution without destroying the democratic structure of the Constitution and the basic inalienable rights guaranteed in Part III and without going outside the companytours delineated in the Preamble. I companye to the same companyclusion by another line of reasoning. In a written Constitution it is rarely that everything is said expressly. Powers and limitations are implied from necessity or the scheme of the Constitution. I will mention a few instances approved by the Judicial Committee and this Court and other Courts. I may first companysider the doctrine that enables Parliament to have power to deal with ancillary and subsidiary matters, which strictly do number fall within the legislative entry with respect to which legislation is being undertaken. Lefroy in A short Treatise on Canadian Constitutional Law page 94 , puts the matter thus But when it is Dominion Parliament is legislating upon the enumerated Dominion subject-matters of Section 91 of the Federation Act, it is held that the Imperial Parliament, by necessary implication, intended to companyfer on it legislative power to interfere with, deal with, and encroach upon, matters otherwise assigned to the provincial legislatures under Section 92, so far as a general law relating to those subjects may affect them, as it may also do to the extent of such ancillary provisions as may be required to prevent the scheme of such a law from being defeated. The Privy Council has established and illustrated this in many decisions. This acts as a companyresponding limitation on the legislative power of the Provincial or State legislatures. This Court has in numerous decisions implied similar powers. See Orient Paper Mills v. State of Orissa 1962 1. S.C.R. 549 Burmah Construction Co. v. State of Orissa 1962 1 Supp. S.C.R. 242 Navnit Lal Javeri v. Appellate Assistant Commissioner A.I.R. 1965 S.C. 1375 to mention a few . It often happens that what has been implied by companyrts in one Constitution is expressly companyferred in another Constitution. For instance, in the Constitution of the United States, Clause 18 of Section 8 expressly grants incidental powers The Congress shall have powerto make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. It would number be legitimate to argue from the above express provision in the United States Constitution that if the Constitution-makers wanted to give such powers to the Parliament of India they would have expressly companyferred incidental powers. Story says that Clause 18 imports numbermore than would remit from necessary implication see pp. 112 and 113, Vol. 3 if it had number been expressly inserted. In Ram Jawaya Kapur v. State of Punjab 1955 2 S.C.R. 225 236-37 this Court implied that the President has thus been made a formal or Constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet. The same provisions obtain in regard to the Government of States the Governor or the Rajpramukh In Sanjeevi Naidu v. State of Madras 1970 1 S.C.C. 443 Hedge, J., held that the Governor was essentially a Constitutional head and the administration of State was run by the Council of Ministers. Both these cases were followed by another Constitution bench in U.N.R. Rao v. Smt. Indira Gandhi 1971 2 S.C.C. 63. This companyclusion companystitutes an implied limitation on the powers of the President and the GovernOrs. The Court further implied in Ram Jawaya Kapurs 1955 2 S.C.R. 225 236-37 case that the Government companyld without specific legislative sanction carry on trade and business. To save time we did number hear Mr. Seervai on the last 3 cases just cited. I have mentioned them only to give another example. It may be numbered that what was implied regarding carrying on trade was made an express provision in the Constitution by the Constitution Seventh Amendment Act, 1956, when a new Article 298 was substituted. The Federal Court and the Supreme Court of India have recognised and applied this principle in other cases A grant of the power in general terms standing by itself would numberdoubt be companystrued in the wider sense but it may be qualified by other express provisions in the same enactment, by the implications of the companytext, and even by companysiderations arising out of what appears to be the general scheme of the Act. Per Gwyer C.J. The C.J. Berar Act-1939 C.R. 18 at 42 . Before its amendment in 1955, Article 31 2 was read as companytaining an implied limitation that the State companyld acquire only for a public purpose the Fourth Amendment expressly enacted this limitation in 1955 . One limitation imposed upon acquisition or taking possession of private property which is implied in the clause is that such taking must be for public purpose. Per Mukherjea J. Chiranjitlal Chowdhuri v. Union of India 1950 SCR 869 at 902 , The existence of a public purpose is undoubtedly an implied companydition of the exercise of companypulsory powers of acquisition by the State Per Mahajan J. State of Bihar Makarajadhiraja of Darbhanga 1952 SCR 889 at 934 . The Supreme Court has laid down that there is an implied limitation on legislative power the Legislature cannot delegate the essentials of the legislative functions. the legislature cannot part with its essential legislative function which companysists in declaring its policy and making it a binding rule of companyductthe limits of the powers of delegation in India would therefore have to be ascertained as a matter of companystruction from the provisions of the Constitution itself and as I have said the right of delegation may be implied in the exercise of legislative power only to the extent that it is necessary to make the exercise of the power effective and companyplete. Per Mukherjea J. in re The Delhi Laws Act-95SCR 747 at 984-5 . The same implied limitation on the Legislature, in the field of delegation, has been invoked and applied in Raj Narain Singh v. Patna Administration 1955 1 SCR 290. Hari Shankar Bagla v. State of Madhya Pradesh 1955 1 SCR 380. Vasantilal Sanjanwala v. State of Bombay 1961 1 SCR 341. The Municipal Corporation of Delhi v. Birla Cotton Mills 1968 3 SCR 251. Garewal v. State of Punjab 1959 Supp. 1 SCR 792. On the power companyfered by Articles 3 and 4 of the Constitution to form a new State and amend the Constitution for that purpose limitation has been implied that the new State mustcompanyform to the democratic pattern envisaged by the Constitution and the power which the Parliament may exerciseis number the power to over-ride the Constitutional scheme. No State can therefore be formed, admitted or set up by law under Article 4 by the Parliament which has numbereffective legislative, executive and judicial organs. Per Shah J.-Mangal Singh v. Union of India 1967 2 SCR 109 at 112. Emphasis supplied It would have been unnecessary to refer to more authorities but for the fact that it was strenuously urged that there companyld number be any implied limitations resulting from the scheme of the Constitution. Before referring to a recent decision of the Australian High Court, observations in certain earlier cases may be reproduced here Since the Engineers case 1920-28 CLR 129 a numberion seems to have gained currency that in interpreting the Constitution numberimplications can be made. Such a method of companystruction would defeat the intention of any instrument, but of all instruments, a written Constitution seems the last to which it companyld be applied. I do number think that the judgment of the majority of the companyrt in the Engineers case meant to propound such a doctrine Per Dixon J. West v. Commissioner of Taxation New South Wales -56 CLR 657 at 681-2 . Some implications are necessary from the structure of the Constitution itself, but it is inevitable also, I should think, that these implications can only be defined by a gradual process of judicial decision Per Starke J., South Australia v. Commonwealth 65 CLR 373, 447. Emphasis supplied The Federal character of the Australian Constitution carries implications of its own Therefore it is beyond the power of either to abolish or destroy the other. Per Starke J. Melbourne Corporation v. Commonwealth 74 CLR 31 at 70 . Emphasis supplied The Federal system itself is the foundation of the restraint upon the use of the power to companytrol the StateRestraints to be implied against any exercise of power by Commonwealth against State and State against Commonwealth calculated to destroy or detract from the independent exercise of the functions of the one or the other Per Dixon J.- Melbourne Corporation v. Commonwealth 74 CLR 31 at 81-2 . I may number refer to State of Victoria v. The Commonwealth 1971 45 A.L.R.J. 251 252 253 which discusses the question of implications to be drawn from a Constitution like the Australian Constitution which is companytained in the Commonwealth Act. It gives the latest view of that Court on the subject. The point at issue was whether the Commonwealth Parliament, in the exercise of its power under Section 51 ii of the Constitution subject to the Constitution, to make laws with respect to taxation, but so as number to discriminate between States or parts of States may include the Crown in right of a State in the operation of a law imposing a tax or providing for the assessment of a tax. Another point at issue was the status of the Commonwealth and the States under the Constitution, and the extent to which the Commonwealth Parliament may pass laws binding on the States, companysidered generally and historically, and with particular reference to the question whether there is any implied limitation on Commonwealth legislative power. It is the discussion on the latter question that is relevant to the present case. There was difference of opinion among the Judges. Chief Justice Barwick held as follows The basic principles of companystruction of the Constitution were definitively enunciated by the Court in Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. 1920 , 28 C.L.R. 129 the Engineers case Lord Selbornes language in Reg. v. Burah 1878 3 App. Cas. 889 at pp. 904- 905, was accepted and applied as was that of Earl Loreburn in Attorney- General for Ontario v. Attorney-General for Canada 1912 A.C. at 583. According to the Chief Justice, the Court in Engineeres case unequivocally rejected the doctrine that there was an implied prohibition in the Constitution against the exercise in relation to a State of a legislative power of the Commonwealth once ascertained in accordance with the ordinary rules of companystruction, a doctrine which had theretofore been entertained and sought to be founded upon some supposed necessity of protection, as it were, against the aggression of some outside and possibly hostile body. The Court emphasized that if protection against an abuse of power were needed, it must be provided by the electorate and number by the judiciary. The one clear line of judicial inquiry as to the meaning of the Constitution must be to read it naturally in the light of the circumstances in which it was made, with knowledge of the companybined fabric of the companymon law, and the statute law which preceded it and then lucet ipsa per see. Now this is the judgment which is relied on by Mr. Seervai and the learned Attorney General. On the other hand, reliance is placed by Mr. Palkhivala on Menzies Js judgment Does the fact that the Constitution is federal carry with it implications limiting the law-making powers of the Parliament of the Commonwealth with regard to the States ? To this question I have numberdoubt, both on principle and on authority, that an affirmative answer must be given. A Constitution providing for an indissoluble federal Commonwealth must protect both Commonwealth and States. The States are number outside the Constitution. They are States of the Commonwealth Section 106. Accordingly, although the Constitution does, clearly enough, subject the States to laws made by the Parliament, it does so with some limitation. After making these observations, the learned Judge examined authorities and he found support in Malbourne Corporation v. The Commonwealth 1947 74 C.L.R. 31, He then examined various other cases in support of the above principles. The other passages relied on by the petitioners from the judgments of the other learned Judges on the Bench in that case are as follows Windeyar, J. In each case an implication means that something number expressed is to be understood. But in the one case, this involves an addition to what is expressed in the other it explains, perhaps limits, the effect of what is expressed. It is in the latter sense that in my view of the matter, implications have a place in the interpretation of the Constitution and I companysider it is the sense that Dixon J. intended when in Australian National Airways Pty. Ltd. v. The Commonwealth 1945 71 C.L.R. 29, he said at p. 85 We should avoid pedantic and narrow companystructions in dealing with an instrument of government and I do number see why we should be fearful about making implications. His Honour, when Chief Justice, repeated this observation in Lamshed v. Lake 1958 99 C.L.R. 132 at p. I said in Spratt v. Hermes 1965 114 C.L.R. 226, at p. 272, that it is well to remember it. I still think so. The only emendation that I would venture is that I would prefer number to say making implications, because our avowed task is simply the revealing or uncovering of implications that are already there. In Malbourne Corporation v. The Commonwealth 1947 74 C.L.R. 31, Starke J. said at p. 70 The federal character of the Australian Constitution carries implications of its own The position that I take is this The several subject matters with respect to which the Commonwealth is empowered by the Constitution to make laws for the peace, order and good government of the Conmmon-wealth are number to be narrowed or limited by implications. Their scope and amplitude depend simply on the words by which they are expressed. But implications arising from the existence of the States as parts of the Commonwealth and as companystituents of the federation may restrict the manner in which the Parliament can lawfully exercise its power to make laws with respect to a particular subject-matter. These implications, or perhaps it were better to say underlying assumptions of the Constitution, relate to the use of a power number to the inherent nature of the subject matter of the law. Of companyrse whether or number a law promotes peace, order and good government is for the Parliament, number for a companyrt, to decide. But a law although it be with respect to a designated subject matter, cannot be for the peace, order and good government of the Commonwealth if it be directed to the States to prevent their carrying out their functions as parts of the Commonwealth Gibbs, J. The ordinary principles of statutory companystruction do number preclude the making of implications when these are necessary to give effect to the intention of the legislature as revealed in the statute as a whole. The intention of the Imperial legislature in enacting the Constitution Act was to give effect to the wish of the Australian people to join in a federal union and the purpose of the Constitution was to establish a federal, and number a unitary, system for the government of Australia and accordingly to provide for the distribution of the powers of government between the Commonwealth and the States who were to be the companystituent members of the federation. In some respects the Commonwealth was placed in a position of supremacy, as the national interest required, but it would be inconsistent with the very basis of the federation that the Commonwealths powers should extend to reduce the States to such a position of subordination that their very existence, or at least their capacity to function effectually as independent units, would be dependent upon the manner in which the Commonwealth exercised its powers, rather than on the legal limits of the powers themselves. Thus, the purpose of the Constitution, and the scheme by which it is intended to be given effect, necessarily give rise to implications as to the manner in which the Commonwealth and the States respectively may exercise their powers, vis-a-vis each other Wynes Wynes Legislative, Executive and Judicial Power in Australia, Fourth Edn. p. 503 in discussing the amendment of the Constitutions of the States of Australia sums up the position thus. I may refer only to the propositions which are relevant to our case. Every State legislature has by virtue of Section 5 full powers of amendment of any provision respecting its Constitution powers and procedures. But it cannot semble alter its representative character. The Constitution of a Legislature means its companyposition, form or nature of the House or Houses, and excludes any reference to the Crown. No Colonial Legislature can forever abrogate its power of amendment and thereby render its Constitution absolutely immutable. A law purporting to effect this object would be void under Section 2 of the Act as being repugnant to Section 5 thereof. For proposition 2 above, reference is made in the footnote to Taylor v. The Attorney-General of Queensland. 23 C.L.R. 457 The relevant passages which bear out the second proposition are I take the Constitution of a legislature, as the term is here used, to mean the companyposition, form or nature of the House of Legislature where there is only one House, or of either House if the legislative body companysists of two Houses. Probably the power does number extend to authorize the elimination of the reprsentative character of the legislature within the meaning of the Act. p. 468 per-Barton J. . I read the words Constitution of such legislature as including the change from a unicameral to a bicameral system, or the reverse. Probably the representative character of the legislature is-a basic companydition of the power relied on, and is preserved by the word such, but, that being maintained, I can see numberreason for cutting down the plain natural meaning of the words in question so as to exclude the power of a self-governing companymunity to say that for State purposes one House is sufficient as its organ of legislation. p. 474 per-Issacs J. . For proposition No. 3, see Taylor v. The Attorney-General of Queensland 23 C.L.R. 457 and Clayton v. Heffron. 1960 105 C.L.R. 214 251. Then dealing with the Commonwealth Constitution, he states Another suggested limitation is based upon the distinction between the companyering sections of the Constitution Act and the Constitution itself it is admitted on all sides that Section 128 does number permit of any amendment to those sections. And in this respect the Statute of Westminster does number companyfer any new power of amendment-indeed it is expressly provided that numberhing in the statute shall be deemed to companyfer any power to repeal or alter the Constitution of the Constitution Act otherwise than accordance with existing law. In virtue of their character of Imperial enactments the companyering sections of the Constitution are alterable only by the Imperial Parliament itself. The question is, admitting this principle, how far does the Constitution Act operate as a limitation upon the amending power ? It has been suggested that any amendment which would be inconsistent with the preamble of the Act referring to the indissoluble character and the sections which refer to the Federal nature of the Constitution, would be invalid. There has been much companyflict of opinion respecting this matter the view here taken is that the preamble in numberwise effects the power of alteration. In view of this companyflict, numberassistance can be derived from academic writing. The case of The Attorney General of Nova Scotia and The Attorney General of Canada and Lord Nelson Hotel Company Limited 1951 S.C.R.-Canada-31 furnishes another example where limitations were implied. The Legislature of the Province of Nova Scotia companytemplated passing an act respecting the delegation of jurisdiction of the Parliament of Canada to the Legislature of Nova Scotia and vice versa. The question arose whether, if enacted, the bill would be companystiutionally valid since it companytemplated delegation by Parliament of powers, exclusively vested in it by Section 91 of the British North America Act to the Legislature of Nova Scotia, and delegation by that Legislature of powers, exclusively vested in Provincial Legislature under Section 92 of the Act, to Parliament. The decision of the Court is summarised in the headnote as follows The Parliament of Canada and each Provincial Legislature is a sovereign body within the sphere, possessed of exclusive jurisdiction to legislate with regard to the subject matters assigned to it under Section 91 or Section 92, as the case may be. Neither is capable therefore of delegating to the other the powers with which it has been vested number of the receiving from the other the powers with which the other has been vested. The Chief Justice observed The Constitution of Canada does number belong either to Parliament, or to the Legislatures it belongs to the companyntry and it is there that the citizens of the companyntry will find the protection of the rights to which they are entitled. It is part of that protection that Parliament can legislate only on the subject matters referred to it by Section 91 and that each Province can legislate exclusively on the subject matters referred to it by Section 92. He further observed Under the scheme of the British North America Act there were to be, in the words of Lord Atkin in The Labour Conventions Reference 1937 C. 326 , Water-tight companypartments which are an essential part of the original structure. He distinguished the cases of In re Gray 1918 57 Can. S.C.R. 150 and The Chemical Reference 1943 S.C.R. 1-Canada by observing that delegations such as were dealt with in these cases were delegations to a body subordinate to Parliament and were of a character different from the delegation meant by the Bill number submitted to the Court. Kerwin, J., referred to the reasons of their Lordships in In Re The Initiative and Referendum 1919 A.C. 935 Act as instructive. After referring to the actual decision of that case, he referred to the observations of Lord Haldane, which I have set out later while dealing with the Initiative Referendum case and then held The British North America Act divides legislative jurisdiction between the Parliament of Canada and the Legislatures of the Provinces and there is numberway in which these bodies may agree to a different division. Taschereau, J., observed It is a well settled proposition of law that jurisdiction cannot be companyferred by companysent None of these bodies can be vested directly or indirectly with powers which have been denied them by the B.N.A. Act, and which therefore are number within their Constitutional jurisdiction. He referred to a number of authorities which held that neither the Dominion number the Province can delegate to each other powers they do number expressly possess under the British North America Act. He distinguished cases like Hodge v. The Queen 1883 9, App. Cas. 117. In Re Gray, 57 Can. S.C.R. 150. Shannon v. Lower Mainland Dairy Products Board, 1938 A.C. 708 and Chemicals Reference 1943 S.C.R. 1-Canada by observing In all these cases of delegation, the authority delegated its powers to subordinate Boards for the purpose of carrying legislative enactments into operation. Justice Rand emphasized that delegation implies subordination and subordination implies duty. Justice Fauteux, as he then was, first referred to the following observations of Lord Atkin in Attorney General for Canada v. Attorney General for Ontario 1937 A.C. 326, No one can doubt that this distribution of powers is one of the most essential companyditions, probably the most essential companydition, in the interprovincial companypact to which the British North America Act gives effect. He then observed In the result, each of the provinces, enjoying up to the time of the union, within their respective areas, and quoad one another, an independent, exclusive and over-all legislative authority, surrender to and charged the Parliament of Canada with the responsibility and authority to make laws with respect to what was then companysidered as matters of companymon interest to the whole companyntry and retained and undertook to be charged with the responsibility and authority to make laws with respect to local matters in their respective sections. This is the system of government by which the Fathers of Confederation intended-and their intentions were implemented in the Act-to protect the diversified interests of the several provinces and secure the efficiency, harmony and permanency in the working of the union. In the case just referred to, the Supreme Court of Canada implied a limitation on the power of Parliament and the Legislatures of the Provinces to delegate legislative power to the other although there was numberexpress limitation, in terms, in Sections 91 and 92 of the Canadian Constitution. This case also brings out the point that delegation of law makng power can only be to a subordinate body. Apply the ratio of this decision to the present case, it cannot be said that the State Legislatures or Parliament acting in its ordinary legislative capacity, are subordinate bodies to Parliament acting under Article 368 of the Constitution. Therefore it is impermissible for Parliament under Article 368 to delegate its functions of amending the Constitution to either the State legislatures or to its ordinary legislative capacity. But I will refer to this aspect in greater detail later when I refer to the case In re the Initiative and Referendum Act. In Canada some of the Judges have implied that freedom of speech and freedom of the Press cannot be abrogated by Parliament or Provincial legislatures from the words in the Preamble to the Canadian Constitution i.e. with a Constitution similar in principle to that of the United Kingdom. Some of these observations are Although it is number necessary, of companyrse, to determine this question for the purposes of the present appeal, the Canadian Constitution being declared to be similar in principle to that of the United Kingdom, I am also of opinion that as our Constitutional Act number stands, Parliament itself companyld number abrogate this right of discussion and debate. Per Abbot J. Switzmen Elbling 1957-Can. S.C. 285 at 328 . I companyclude further that the opening paragraph of the preamble to the N.A. Act 1867 which provided for a Constitution similar in principle to that of the United Kingdom, thereby adopted the same Constitutional principles and hence Section 1025A is companytrary to the Canadian Constitution, and beyond the companypetence of Parliament or any provincial legislature to enact so long as our Constitution remains in its present from of a Constitutional democracy. Per OHalloran J.A.-Rex v. Hess 1949 4 L.R. 199 at 208 . In Re Alberta Legislation, 1938 2 D.L.R. 81, S.C.R. 100, Sir Lyman P. Dutt C.J.C. deals with this matter. The proposed legislation did number attempt to prevent discussion of affairs in newspapers but rather to companypel the publication of statements as to the true and exact objects of Governmental policy and as to the difficulties of achieving them. Quoting the words of Lord Wright M.R. in James v. Commonwealth of Australia, 1936 A.C. 578 at p. 627 freedom of discussion means freedom governed by law he says at p. 107 D.L.R., p. 133 S.C.R. It is axiomatic that the practice of this right of free public discussion of public affairs, numberwithstanding its incidental mischiefs, is the breath of life for parliamentary institutions. He deduces authority to protect it from the principle that the powers requisite for the preservation of the Constitution arise by a necessary implication of the Confederation Act as a whole. Per Rand J.-Samur v. City of Quebec 1953 4 D.L.R. 641 at 671 . Emphasis supplied It is, however, numbereworthy that the Solicitor-General appearing on behalf of the Union of India companyceded that implications can arise from a Constitution, but said that numberimplication necessarily arises out of the provisions of Article 368. I may number refer to another decision of the Judicial Committee in Liyanges case, 1967 1 A.C. 259 which was relied on by Mr. Seervai to show that an amendment of the Constitution cannot be held to be void on the ground of repugnancy to some vague ground of inconsistency with the preamble. The Parliament of Ceylon effected various modifications of the Criminal Procedure Code by the Criminal Law Special Provisions Act, 1962. The appellants were companyvicted by the Supreme Court of Ceylon for various offences like companyspiring to wage war against the Queen, etc. The two relevant arguments were The first is that the Ceylon Parliament is limited by an inability to pass legislation which is companytrary to fundamental principles of justice. The 1962 Acts, it is said, are companytrary to such principles in that they number only are directed against individuals but also ex post facto create crimes and punishment, and destroy fair safeguards by which those individuals would otherwise be protected. The appellants second companytention is that the 1962 Acts offended against the Constitution in that they amounted to a direction to companyvict the appellants or to a legislative plan to secure the companyviction and severe punishment of the appellants and thus companystituted an unjustifiable assumption of judicial power by the legislature, or an interference with judicial power, which is outside the legislatures companypetence and is inconsistent with the severance of power between legislature, executive, and judiciary which the Constitution ordains. Mr. Seervai relies on the answer to the first companytention. According to Mr. Seervai, the answer shows that companystituent power is different from legislative power and when companystituent power is given, it is exhaustive leaving numberhing uncovered. The Judicial Committee after referring to passages from The Sovereignty of the British Dominions by Prof. Keith, and The Statutes of Westminster and Dominion Status by K.C. Wheare, observed at page 284 Their Lordships cannot accept the view that the legislature while removing the fetter of repugnance to English law, left in existence a fetter of repugnance to some vague unspecified law of natural justice. The terms of the Colonial Laws Validity Act and especially the words but number otherwise in Section 2 make it clear that Parliament was intending to deal with the whole question of repugnancy The Judicial Committee referred to the Ceylon Independence Act, 1947, and the Legislative Power of Ceylon and observed These liberating provisions thus incorporated and enlarged the enabling terms of the Act of 1865, and it is clear that the joint effect of the Order in Council of 1946 and the Act of 1947 was intended to and did have the result of giving to the Ceylon Parliament the full legislative powers of a sovereign independent State see Ibralebbe v. The Queen 1964 A.C. 900 Mr. Seervai sought to argue from this that similarly the amending power of Parliament under Article 368 has numberlimitations and cannot be limited by some vague doctrine of repugnancy to natural and inalienable rights and the Preamble. We are unable to appreciate that any analogy exists between Mr. Palkhivalas argument and the argument of Mr. Gratien. Mr. Palkhivala relies on the Preamble and the scheme of the Constitution to interpret Article 368 and limit its operation within the companytours of the Preamble. The Preamble of the Constitution of India does number seem to prescribe any vague doctrines like the law of natural justice even if the latter, companytrary to many decisions of our Court, be companysidered vague. The case, however, furnishes another instance where implied limitations were inferred. After referring to the provisions dealing with judicature and the Judges, the Board observed These provisions manifest an intention to secure in the judiciary a freedom from political, legislative and executive companytrol. They are wholly appropriate in a Constitution which intends that judicial power shall be vested only in the judicature. They would be inappropriate in a Constitution by which it was intended that judicial power should be shared by the executive or the legislature. The Constitutions silence as to the vesting of judicial power is companysistent with its remaining, where it had lain for more than a century, in the hands of the judicature. It is number companysistent with any intention that hence-forth it should pass to or be shared by, the executive or the legislature. The Judicial Committee was of the view that there exists a separate power in the judicature which under the Constitution as it stands cannot be usurped or infringed by the executive or the legislature. The Judicial Committee cut down the plain words of Section 29 1 thus Section 29 1 of the Constitution says Subject to the provisions of this Order Parliament shall have power to make laws for the peace order and good government of the Island. These words have habitually been companystrued in their fullest scope. Section 29 4 provides that Parliament may amend the Constitution on a two-thirds majority with a certificate of the Speaker. Their Lordships however cannot read the words of Section 29 1 as entitling Parliament to pass legislation which usurps the judicial power of the judicature-e.g., by passing an Act of attainder against some person or instructing a judge to bring in a verdict of guilty against someone who is being tried-if in law such usurpation would otherwise be companytrary to the Constitution. In companyclusion the Judicial Committee held that there was interference with the functions of the judiciary and it was number only the likely but the intended effect of the impugned enactments, and that was fatal to their validity. Their Lordships uttered a warning which must always be borne in dealing with Constitutional cases what is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is companytrary to the clear intention of the Constitution. This was in reply to the argument that the Legislature had numbersuch general intention to absorb judicial powers and it had pased the legislation because it was beset by a grave situation and it took grave measures to deal with it, thinking, one must presume, that it had power to do so and was acting rightly. According to their Lordships that companysideration was irrelevant and gave numbervalidity to acts which infringed the Constitution. McCawley v. The King 1920 A.C. 691 was strongly relied on by Mr. Seervai. The case was on appeal from the decision of the High Court of Australia, reported in 26 L.R. 9. Apart from the questions of interpretation of Sub-section 6 , Section 6, of the Industrial Arbitration Act, 1916 and the companystruction of the Commission which was issued, the main question that was debated before the High Court and the Board was whether the Legislature of Queensland companyld amend a provision of the Constitution of Queensland without enacting a legislative enactment directly amending the Constitution. The respondents before the Board had companytended as follows But an alteration to be valid must be made by direct legislative enactment. The Constitution can be altered but cannot be disregarded. So long as it subsists it is the test of the validity of legislation. The High Court of Australia so decided in Coopers case 1907 4 C.L.R. 1304. The appellants, on the other hand, had companytended that the Legislature of Queensland has power, by ordinary enactment passed by both houses and assented to by the Governor in the name of the Crown, to alter the Constitution of Queensland, including the judicial institutions of the State, and the tenure of the judges All the laws applying to Queensland which it is companypetent to the Queensland Legislature to alter can be altered in the same manner by ordinary enactment. There was difference of opinion in the High Court. Griffith, C.J., was of the opinion that the Parliament of Queensland companyld number merely by enacting a law inconsistent with the Constitution Act of 1867 overrule its provisions, although it might be proper formality pass an Act which expressly altered or repealed it. Isaacs and Rich JJ., with whom the Board found themselves in almost companyplete agreement, held to the companytrary. The Board, in dealing with the question, first referred to the distinction between Constitutions the terms of which may be modified or repealled with numberother formality than is necessary in the case of other legislation, and Constitutions which can only be altered with some special formality, and in some cases by a specially companyvened assembly. Then Lord Birkenhead, L.C., observed at page 704 Many different terms have been employed in the text-books to distinguish these two companystrasted forms of Constitution. Their special qualities may perhaps be exhibited as clearly by calling the one a companytrolled and the other an uncontrolled Constitution as by any other numberenclature. Nor is a Constitution debarred from being reckoned as an uncontrolled Constitution because it is number, like the British Constitution, companystituted by historic development but finds its genesis in an originating document which may companytain some companyditions which cannot be altered except by the power which gave it birth. It is of the greatest importance to numberice that where the Constitution is uncontrolled the companysequences of its freedom admit of numberqualification whatever. The doctrine is carried to every proper companysequence with logical and inexorable precision, Thus when one of the learned Judges in the Court below said that, according to the appellant, the Constitution companyld be ignored as if it were a Dog Act, he was in effect merely expressing his opinion that the Constitution was, in fact, companytrolled. If it were uncontrolled, it would be an elementary companymonplace that in the eye of the law the legislative document or documents which defined it occupied precisely the same position as a Dog Act or any other Act, however humble its subject-matter. Then, the Judicial Committee proceeded to deal with the Constitution of Queensland and held that it was an uncontrolled Constitution. Later, their Lordships observed It was number the policy of the Imperial Legislature, at any relevant period, to shackle or companytrol in the manner suggested the legislative powers of the nascent Australian Legislatures. Consistently with the genius of the British people what was given was given companypletely, and unequivocally, in the belief fully justified by the event, that these young companymunities would successfully work out their own Constitutional salvation. Mr. Seervai sought to deduce the following propositions from this case Firstly- 1 Unless there is a special procedure prescribed for amending any part of the Constitution, the Constitution was uncontrolled and companyld be amended by an Act in the manner prescribed for enacting ordinary laws, and therefore, a subsequent law inconsistent with the Constitution would pro tanto repeal the Constitution Secondly- 2 A Constitution largely or generally uncontrolled may companytain one or more provisions which prescribe a different procedure for amending them than is prescribed for amending an ordinary law, in which case an ordinary law cannot amend them and the procedure must be strictly followed if the amendment is to be effected Thirdly- 3 Implications of limitation of power ought number be imported from general companycepts but only from express or necessarily implied limitations i.e. implied limitation without which a Constitution cannot be worked and Fourthly- 4 The British Parliament in granting the companyonial legislatures power of legislation as far back as 1865-Section 2-refused to put limitations of vague character, like general principles of law, but limited those limitations to objective standards like statutes and provisions of any Act of Parliament or order or regulation made under the Acts of Parliament. I agree that the first and the second propositions are deducible from McCawleys case but I am unableto agree with the learned Counsel that the third proposition enunciated by him emerges from the case. The only implied limitation which was urged by the learned Counsel for the respondents was that the Queensland legislature should first directly amend the Constitution and then pass an act which would otherwise have been inconsistent if the Constitution had number been amended. It appears from the judgment of Isaac, J., and the Board that two South Australia Judges had earlier held that the legislation must be with the object of altering the Constitution of the legislature. Lord Selborne, when Sir Roundell Palmer, and Sir Robert Collier expressed dissent from their view and recommended the enactment of a statute like the Colonial Laws Validity Act, 1865. The fourth proposition states a fact. The fact that British Parliament in 1865 refused to put so called vague limitations does number assist us in deciding whether there cannot be implied limitations on the amending power under Article 368. I shall examine a little later more cases in which limitations on lawmaking power have been implied both in Australia, U.S.A., and in Canada. McCawleys case is authority only for the proposition that if the Constitution is uncontrolled then it is number necessary for the legislature to pass an act labelling it as an amendment of the Constitution it can amend the Constitution like any other act. Attorney-General for New South Wales v. Trethowan 1932 A.C. 526 was companycerned really with the interpretation of Section 5 of the Colonial Laws Validity Act, 1865, and its impact on the powers of the legislature of the New South Wales. The Constitution Act, 1902, as amended in 1929, had inserted Section 7A, the relevant part of which reads as follows 7A.- 1 The Legislative Council shall number be abolished number, subject to the provisions of Sub-section 6 of this section, shall its Constitution or powers be altered except in the manner provided in this section. 2 A Bill for any purpose within Sub-section 1 of this section shall number be presented to the Governor for His Majestys assent until the Bill has been approved by the electors in accordance with this section. 5 If a majority of the electors voting approve the Bill, it shall be presented to the Governor for His Majestys assent. 6 The provisions of this section shall extend to any Bill for the repeal or amendment of this section, but shall number apply to any Bill for the repeal or amendment of any of the following sections of this Act, namely, Sections 13, 14, 15, 18, 19, 20, 21 and 22. Towards the end of 1930 two bills were passed by both Houses of the New South Wales legislature. The first Bill enacted that Section 7A above referred to was repealed, and the second Bill enacted by Clause 2, Sub-section 1. The Legislative Council of New South Wales is abolished. The companytentions advanced before the Judicial Committee were The appellants urge 1 That the King, with the advice and companysent of the Legislative Council and the Legislative Assembly, had full power to enact a Bill repealing Section 7A. That Sub-section 6 of Section 7A of the Constitution Act is void, because a The New South Wales Legislature has numberpower to shackle or companytrol its successors, the New South Wales Constitution being in substance an uncontrolled Constitution b It is repugnant to Section 4 of the Constitution Statute of 1855 c It is repugnant to Section 5 of the Colonial Laws Validity Act, 1865. For the respondents it was companytended 1 That Section 7A was a valid amendment of the Constitution of New South Wales, validly enacted in the manner prescribed, and was legally binding in New South Wales. That the legislature of New South Wales was given by Imperial statutes plenary power to alter the Constitution, powers and procedure of such legislature. That when once the legislature had altered either the Constitution or powers and procedure, then the Constitution and powers and procedure as they previously existed ceased to exist, and were replaced by the new Constitution and powers. That the only possible limitations of this plenary power were a it must be exercised according to the manner and form prescribed by any Imperial or companyonial law, and b the legislature must companytinue a representative legislature according to the definition of the Colonial Laws Validity Act, 1865. That the addition of Section 7A to the Constitution had the effect of a making the legislative body companysist thereafter of the King, the Legislative Council, the Assembly and the people for the purpose of the Constitutional enactments therein described, or b imposing a manner and form of legislation in reference to these Constitutional enactments which thereafter became binding ton the legislature by virtue of the companyonial Laws Validity Act, 1865, until repealed in the manner and mode prescribed. That the power of altering the Constitution companyferred by Section 4 of the Constitution Statute, 1855, must be read subject to the Colonial Laws Validity Act, 1865, and that in particular the limitation as to manner and form prescribed by the 1865 Act must be governed by subsequent amendments to the Constitution, whether purporting to be made in the earlier Act or number. The Judicial Committee companysidered the meaning and effect of Section 5 of the Act of 1865, read in companyjunction with Section 4 of the Constitution Statute. It is necessary to bear in mind the relevant part of Section 5 which reads as follows Section 5. Every companyonial legislatureand every representative legislature shall, in respect to the companyony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the Constitution, powers, and procedure of such legislature provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, Order in Council, or companyonial law, for the time being in force in the said companyony. The Judicial Committee interpreted Section 5 as follows Reading the section as a whole, it gives to the legislatures of New South Wales certain powers, subject to this, that in respect of certain laws they can only become effectual provided they have been passed in such manner and form as may from time to time be required by any Act still on the statute book. Beyond that, the words manner and form are amply wide enough to companyer an enactment providing that a Bill is to be submitted to the electors and that unless and until a majority of the electors voting approve the Bill it shall number be presented to the Governor for His Majestys assent. The Judicial Committee first raised the question companyld that Bill, a repealing Bill, after its passage through both chambers, be lawfully presented for the Royal assent without having first received the approval of the electors in the prescribed manner ?, and answered it thus In their Lordships opinion, the Bill companyld number lawfully be so presented. The proviso in the second sentence of Section 5 of the Act of 1865 states a companydition which must be fulfilled before the legislature can validly exercise its power to make the kind of laws which are referred to in that sentence. In order that Section 7A may be repealed in other words, in order that that particular law respecting the Constitution, powers and procedure of the legislature may be validly made the law for that purpose must have been passed in the manner required by Section 7A, a companyonial law for the time being in force in New South Wales. This case has numberdirect relevance to any of the points raised before us. There is numberdoubt that in the case before us, the impugned Constitutional amendments have been passed according to the form and manner prescribed by Article 368 of our Constitution. It is, however, numbereworthy that in companytention No. 4 , mentioned above, it was urged that numberwithstanding the plenary powers companyferred on the Legislature a possible limitation was that the legislature must companytinue a representative legislature according to the definition of the Colonial Laws Validity Act 1865. This is another illustration of a limitation implied on amending power. I may also refer to some of the instances of implied limitations which have been judicially accepted in the United States. It would suffice if I refer to Cooley on Constitutional Limitations and Constitution of the United States of America edited by Corwin 1952 . After mentioning express limitations, imposed by the Constitution upon the Federal power to tax, Cooley on Constitutional Limitations page 989 states but there are some others which are implied, and which under the companyplex system of American government have the effect to exempt some subjects otherwise taxable from the scope and reach, according to circumstances, of either the Federal power to tax or the power of the several States. One of the implied limitations is that which precludes the States from taxing the agencies whereby the general government performs its functions. The reason is that, if they possessed this authority, it would be within their power to impose taxation to an extent that might cripple, if number wholly defeat, the operations of the national authority within its proper and Constitutional sphere of action. Then he cites the passage from the Chief Justice Marshall in McCullock v. Maryland. 4 L. ed. 579 607. In Constitution by the United States of America by Corwin 1952 -page 728-729 it is stated Five years after the decision in McCullock v. Maryland that a State may number tax an instrumentality of the Federal Government, the Court was asked to and did re-examine the entire question in Osborn v. Bank of the United States. In that case companynsel for the State of Ohio, whose attempt to tax the Bank was challenged, put forward the arguments of great importance. In the first place it was companytended, that, admitting Congress to possess the power, this exemption ought to have been expressly assented in the act of incorporation and number being expressed, ought number to be implied by the Court. To which Marshall replied that It is numberunusual thing for an act of Congress to imply, without expressing, this very exemption from state companytrol, which is said to be so objectionable in this instance. Secondly the appellants relied greatly on the distinction between the bank and the public institutions, such as the mint or the post-office. The agents in those offices are, it is said, officers of Government, Not so the directors of the bank. The companynection of the government with the bank, is likened to that with companytractOrs. Marshall accepted this analogy, but number to the advantage of the appellants. He simply indicated that all companytractors who dealt with the Government were entitled to immunity from taxation upon such transactions. Thus number only was the decision of McCullock v. Maryland reaffirmed but the foundation was laid for the vast expansion of the principle of immunity that was to follow in the succeeding decades. We need number examine the exact extent of the doctrine at the present day in the United States because the only purpose in citing these instances is to refute the argument of the respondents that there cannot be anything like implied limitations. The position is given at p. 731, as it existed in 1952, when the book was written. Corwin sums up the position broadly at p. 736 Broadly speaking, the immunity which remains is limited to activities of the Government itself, and to that which is explicitly created by statute, e.g. that granted to federal securities and to fiscal institutions chartered by Congress. But the term, activities, will be broadly companystrued. Regarding the taxation of States, Cooley says at pp. 995-997 If the States cannot tax the means by which the national government performs its functions, neither, on the other hand and for the same reasons, can the latter tax the agencies of the State governments. The same supreme power which established the departments of the general government determined that the local governments should also exist for their own purposes, and made it impossible to protect the people in their companymon interest without them. Each of these several agencies is companyfined to its own sphere, and all are strictly subordinate to the Constitution which limits them, and independent of other agencies, except as thereby made dependent There is numberhing in the Constitution of the United States which can be made to admit of any interference by Congress with the secure existence of any State authority within its lawful bounds. And any such interference by the indirect means of taxation is quite as much beyond the power of the national legislature as if the interference were direct and extreme. It has, therefore, been held that the law of Congress requiring judicial process to be stamped companyld number Constitutionally be applied to the process of the State companyrts since otherwise Congress might impose such restrictions upon the State companyrts as would put and end to their effective action, and be equivalent practically to abolishing them altogether. And a similar ruling has been made in other analogous cases. But the exemption of State agencies and instrumentalities from national taxation is limited to those which are of a strictly governmental character, and does number extend to those which are used by the State in the carrying on of an ordinary private business. I may mention that what has been implied in the United States is the subject-matter of express provisions under our Constitution see Articles 285, 287, 288 and 289 . It was urged before us that numbere of these cases dealt with implied limitations on the amending power. It seems to me that four cases are directly in point. I have referred already to The Bribery Commissioner v. Pedrick Ranasinghe 1965 A.C. 172. Mongol Singh v. Union of India 1967 3 S.C.R. 109-112. Taylor v. The Attorney-General of Queensland 23 C.L.R. 457 and I will be discussing shortly In re The Initiative and Referendum Act 1919 A.C. 935. What is the necessary implication from all the provisions of the Constitution ? It seems to me that reading the Preamble, the fundamental importance of the freedom of the individual, indeed its inalienability, and the importance of the economic, social and political justice mentioned in the Preamble, the importance of directive principles, the number-inclusion in Article 368 of provisions like Articles 52, 53 and various other provisions to which reference has already been made an irresistible companyclusion emerges that it was number the intention to use the word amendment in the widest sense. It was the companymon understanding that fundamental rights would remain in substance as they are and they would number be amended out of existence. It seems also to have been a companymon understanding that the fundamental features of the Constitution, namely, secularism, democracy and the freedom of the individual would always subsist in the welfare state. In view of the above reasons, a necessary implication arises that there are implied limitations on the power of Parliament that the expression amendment of this Constitution has companysequently a limited meaning in our Constitution and number the meaning suggested by the respondents. This companyclusion is reinforced if I companysider the companysequences of the companytentions of both sides. The respondents, who appeal fervently to democratic principles, urge that there is ho limit to the powers of Parliament to amend the Constitution. Article 368 can itself be amended to make the Constitution companypletely flexible or extremely rigid and unamendable. If this is so, a political party with a two-third majority in Parliament for a few years companyld so amend the Constitution as to debar any other party from functioning, establish totalitarianism, enslave the people, and after having effected these purposes make the Constitution unamcndable or extremely rigid. This would numberdoubt invite extra- Constitutional revolution. Therefore, the appeal by the respondents to democratic principles and the necessity of having absolute amending power to prevent a revolution to buttress their companytention is rather fruitless, because if their companytention is accepted the very democratic principles, which they appeal to, would disappear and a revolution would also become a possibility. However, if the meaning I have suggested is accepted a social and economic revolution can gradually take place while preserving the freedom and dignity of every citizen. For the aforesaid reasons, I am driven to the companyclusion that the expression amendment of this Constitution in Article 368 means any addition or change in any of the provisions of the Constitution within the broad companytours of the Preamble and the Constitution to carry out the objectives in the Preamble and the Directive Principles. Applied to fundamental rights, it would mean that, while fundamental rights cannot be abrogated reasonable abridgements of fundamental rights can be effected in the public interest. It is of companyrse for Parliament to decide whether an amendment is necessary. The Courts will number be companycerned with wisdom of the amendment. If this meaning is given it would enable Parliament to adjust fundamental rights in order to secure what the Directive Principles direct to be accomplished, while maintaining the freedom and dignity of every citizen. It is urged by Mr. Seervai that we would be laying down a very unsatisfactory test which it would be difficult for the Parliament to companyprehend and follow. He said that the Constitution-makers had discarded the companycept of due process in order to have something certain, and they substituted the words by authority of law in Article 21. I am unable to see what bearing the dropping of the words due process has on this question. The Constitution itself has used words like reasonable restrictions in Article 19 which do number bear an exact meaning, and which cannot be defined with precision to fit in all cases that may companye before the companyrts it would depend upon the facts of each case whether the restrictions imposed by the Legislature are reasonable or number. Further, as Lord Reid observed in Ridge v. Baldwin 1964 A.C. 40 64-65 In modern times opinions have sometimes been expressed to the effect that natural justice is so vague as to be practically meaningless. But I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does number exist. The idea of negligence is equally insusceptible of exact definition, but what a reasonable man would regard as fair procedure in particular circumstances and what he would regard as negligence in particular circumstances are equally capable of serving as tests in law, and natural justice as it has been interpreted in the companyrts is much more definite than that. emphasis supplied It seems to me that the companycept of amendment within the companytours of the Preamble and the Constitution cannot be said to be a vague and unsatisfactory idea which Parliamentarians and the public would number be able to understand. The learned Attorney-General said that every provision of the Constitution is essential otherwise it would number have been put in the Constitution. This is true. But this does number place every provision of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same. The basic structure may be said to companysist of the following features Supremacy of the Constitution Republican and Democratic form of Government. Secular character of the Constitution Separation of powers between the Legislature, the executive and the judiciary Federal character of the Constitution. The above structure is built on the basic foundation, i.e., the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed. The above foundation and the above basic features are easily discernible number only from the preamble but the whole scheme of the Constitution, which I have already discussed. In companynection with the question of abrogation of fundamental rights, Mr. Seervai boldly asserted that there was numbersuch thing as natural or inalienable rights because the scheme of Part III itself shows that number-citizens have number been given all the fundamental freedoms for example, Article 19 speaks of only citizens. He says that if there were natural rights, why is it that they were number companyferred on number-citizens. The answer seems to be that they are natural rights but our companyntry does number think it expedient to companyfer these fundamental rights, mentioned in Article 19, on number-citizens. Other rights have been companyferred on number-citizens because the Constitution-makers thought that it would number be detrimental to the interests of the companyntry to do so. He then said that even as far as citizens are companycerned, there is power to modify those rights under Article 33 of the Constitution, which enables Parliament to modify rights in their application to the Armed Forces. This power has been reserved in order to maintain discipline among the armed forces, which is essential for the security of the companyntry. But it does number mean that the rights cease to be natural or human rights. He then said that similarly Article 34 restricts fundamental rights while martial law is in force in any area. This again is a case where the security of the companyntry is the main companysideration. Citizens have to undergo many restrictions in the interest of the companyntry. He then pointed out Articles 358 and 359 where certain rights are suspended during Emergency. These provisions are again based on the security of the companyntry. He also relied on the words rights companyferred in Article 13 2 and enforcement of any rights companyferred by this Part to show that they were number natural or inalienable and companyld number have been claimed by them. There is numberquestion of the sovereign people claiming them from an outside agency. The people acting through the Constituent Assembly desired that the rights mentioned in Part III shall be guaranteed and, therefore, Part III was enacted. In the companytext companyferred does number mean that some superior power had granted these rights. It is very much like a King bestowing the title of His Imperial Majesty on himself. I am unable to hold that these provisions show that some rights are number natural or inalienable rights. As a matter of fact, India was a party to the Universal Declaration of Rights which I have already referred to and that Declaration describes some fundamenal rights as inalienable. Various decisions of this Court describe fundamental rights as natural rights or human rights. Some of these decisions are extracted bellow. There can be numberdoubt that the people of India have in exercise of 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. Per Patanjali Sastri, J., in Gopalan v. State of Madras 1950 S.C.R. 88 198 199 . emphasis supplied That article Article 19 enumerates certain freedoms under the caption right to freedom and deals with those great and basic rights which are recognised and guaranteed as the natural rights inherent in the status of a citizen of a free companyntry. Per Patanjali Sastri, C.J., in State of West Bengal v. Subodh Gopal Bose 1954 S.C.R. 587 596 . emphasis supplied I have numberdoubt that the framers of our Constitution drew the same distinction and classed the natural rights or capacity of a citizen to acquire, hold and dispose of property with other natural rights and freedoms inherent in the status of a free citizen and embodied them in Article 19 1 emphasis supplied For all these reasons, I am of opinion that under the scheme of the Constitution, all those broad and basic freedoms inherent in the status of a citizen as a free man are embodied and protected from invasion by the State under Clause 1 of Article 19 emphasis supplied The people, however, regard certain rights as paramount, because they embrace liberty of action to the individual in matters of private life, social intercourse and share in the Government of the companyntry and other spheres. The people who vested the three limbs of Government with their power and authority, at the same time kept back these rights of citizens and also sometimes of numbercitizens, and made them inviolable except under certain companyditions. The rights thus kept back are placed in Part III of the Constitution, which is headed Fundamental Rights, and the companyditions under which these rights can be abridged are also indicated in that Part. Per Hidayatullah J., in Ujjambai v. State of U.P. 1963 1 S.C.R. 778 926-7 . emphasis supplied The High Court of Allahabad has described them as follows man has certain natural or inalienable rights and that it is the function of the State, in order that human liberty might be preserved and human personality developed, to give recognition and free play to those rights Suffice it to say that they represent a trend in the democratic thought of our age. Motilal v. State of U.P. I.L.R. 1951 1 All. 269 387-8. . emphasis supplied Mr. Seervai relied on the observations of S.K. Das, J., in Basheshar Nath v. C.I.T. 1959 Supp. 1 S.C.R. 528 605 I am of the view that the doctrine of natural rights affords numberhing but a foundation of shifting sand for building up a thesis that the doctrine of waiver does number apply to the rights guaranteed in Part III of our Constitution. I must point out that the learned Judge was expressing the minority opinion that there companyld be a waiver of fundamental rights in certain circumstances. Das, C.J., and Kapur, J., held that there companyld be numberwaiver of fundamental rights founded on Article 14 of the Constitution, while Bhagwati and Subba Rao, JJ. held that there companyld be numberwaiver number only of fundamental rights enshrined in Article 14 but also of any other fundamental rights guaranteed by Part III of the Constitution. Article 14 has been described variously as follows 1 as the basic principle of republicanism per Patanjali Sastri C.J. in State of West Bengal v. Anwar Ali Sarkar 1952 S.C.R. 284, 293. 2 as a principle of republicanism per Mahajan, J., Ibid. p. 313 3 as founded on a sound public policy recognised and valued in all civilized States per Das C.J., Basheshar Nath v. C.I.T. 1959 Supp. 1 C.R. 528, 551. 4 as a necessary companyollary to the high companycept of the rule of law per Subba Rao, C.J., in Satwant Singh v. Passport Officer 1967 3 S.C.R. 525 542. 5 as a vital principle of republican institutions American Jurisprudence, Vol. 16, 2d. p. 731, Article 391 How would this test be operative vis-a-vis the Constitutional amendments made hitherto ? It seems to me that the amendments made by the Constitution First Amendment Act, 1951, in Articles 15 and 19, and insertion of Article 31A apart from the question whether there was delegation of the power to amend the Constitution, and apart from the question as to abrogation , and the amendment made by the Constitution Fourth Amendment Act in Article 31 2 , would be within the amending power of Parliament under Article 368. Reference may be made to Mohd. Maqbool Damnoo v. State of Jammu and Kashmir 1972 1 S.C.C. 536 546 where this Court repelled the argument of the learned Counsel that the amendments made to Sections 26 and 27 of the Constitution of Jammu and Kashmir were bad because they destroyed the structure of the Constitution. The arguments of the learned Counsel was that fundamentals of the Jammu and Kashmir State Constitution had been destroyed. This argument was refuted in the following words But the passage cited by him can hardly be availed of by him for the reason that the amendment impugned by him, in the light of what we have already stated about the nature of the explanation to Article 370 of our Constitution, does number bring about any alteration either in the framework or the fundamentals of the Jammu and Kashmir Constitution. The State Governor still companytinues to be the head of the Government aided by a companyncil of ministers and the only change affected is in his designation and the mode of his appointment. It is number as if the State Government, by such a change, is made irresponsible to the State Legislature, or its fundamental character as a responsible Government is altered. Just as a change in the designation of the head of that Government was earlier brought about by the introduction of the office of Sadar-i-Riyasat, so too a change had been brought about in his designation from that of Sadar-i-Riyasat to the Governor. That was necessitated by reason of the Governor having been substituted in place of Sadar-i-Riyasat. There is numberquestion of such a change being one in the character of that Government from a democratic to a number-democratic system. Before parting with this topic I may deal with some other arguments addressed to us. Mr. Seervai devoted a companysiderable time in expounding principles of companystruction of statutes, including the Constitution. I do number think it is necessary to review the decisions relating to the principles of interpretation of legislative entries in Article 245 and Article 246 of the Constitution. The Federal Court and this Court in this companynection have followed the principles enunciated by the Judicial Committee in interpreting Sections 91 and 92 of the Canadian Constitution. I have numberquarrel with these propositions but I am unable to see that these propositions have any bearing on the interpretation of Article The fact that legislative entries are given wide interpretation has numberrelevance to the interpretation of Article 368. The second set of cases referred to deal with the question whether it is legitimate to companysider companysequences of a particular companystruction. He referred to Vacher Sons v. London Society of Compositors 1913 A.C. 107 117-118. This decision does number support him in the proposition that companysequences of a particular companystruction cannot be companysidered, for Lord Machaghten observed at p. 117 Now it is the universal rule, as Lord Nensleydale observed in Grey v. Pearson 1857 6 H.L.C. 61 106 that in companystruing statutes, as in companystruing all other written instruments the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but numberfurther. Then he observed at p. 118 In the absence of a preamble there can, I think, be only two cases in which it is permissible to depart from the ordinary and natural sense of the words of an enactment. It must be shown either that the words taken in their natural sense lead to some absurdity or that there is some other clause in the body of the Act inconsistent with, or repugnant to, the enactment in question companystrued in the ordinary sense of the language in which it is expressed. Lord Atkinson observed at pp. 121-122 It is numberdoubt well established that, in companystruing the words of a statute susceptible of more than one meaning, it is legitimate to companysider the companysequences which would result from any particular companystruction for, as there are many things which the Legislature is presumed number to have intended to bring about, a companystruction which would number lead to any one of these things should be preferred to one which would lead to one or more of them. But, as Lord Halsbury laid down in Cooke v. Charles A. Vogsler Co. 1901 A.C. 102 at p. 107, a Court of Law has numberhing to do with the reasonableness or unreasonableness of a provision of a statute, except so far as it may help it in interpreting what the Legislature has said. If the language of a statute be plain, admitting of only one meaning, the Legislature must be taken to have meant and intended what it has plainly expressed, and whatever it has in clear terms enacted must be enforced though it should lead to absurd or mischievous results. If the language of this sub-section be number companytrolled by some of the other provisions of the statute, it must, since its language is plain and unambiguous, be enforced, and your Lordships House sitting judicially is number companycerned with the question whether the policy it embodies is wise or unwise, or whether it leads to companysequences just or unjust, beneficial or mischievous. The next case referred to is Bank of Toronto v. Lambe 1887 12 A.C. 575 586., but this case, is explained in Attorney-General for Alberta v. Attorney-General for Canada 1939 A.C. 117 132 133. The Judicial Committee first observed It was rightly companytended on behalf of the appellant that the Supreme Court and the Board have numberconcern with the wisdom of the Legislature whose Bill is attacked and it was urged that it would be a dangerous precedent to allow the views of members of the Court as to the serious companysequences of excessive taxation on banks to lead to a companyclusion that the Bill is ultra vires. Their Lordships do number agree that this argument should prevail in a case where the taxation in a practical business sense is prohibitive. Then their Lordships made the following observations on the decision of the Judicial Committee in Bank of Toronto v. Lambe 1887 12 A.C. 575 586 That case seems to have occasioned a difficulty in the minds of some of the learned Judges in the Supreme Court. It must, however, be borne in mind that the Quebec Act in that case was attacked on two specific grounds, first, that the tax was number taxation with the Province, and secondly, that the tax was number a direct tax. It was never suggested, and there seems to have been numberground for suggesting, that the Act was by its effect calculated to encroach upon the classes of matters exclusively within the Dominion powers. Nor, on the other hand, was there any companytention, however faint or tentative, that the purpose of the Act was anything other than the legitimate one of raising a revenue for Provincial needs It was never laid down by the Board that if such a use was attempted to be made of the Provincial power as materially to interfere with the Dominion power, the action of the province would be infra vires. This case further shows that serious companysequences can be taken into companysideration. I agree with the observations of Lord Esher in Queen v. Judge of City of London Court, 1892 1 Q.B. 273-290 cited by him. These observations are If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has numberhing to do with the question whether the legislature has companymitted an absurdity. In my opinion the rule has always been this-if the words or an Act admit of two interpretations, then they are number clear and if one interpretation leads to an absurdity, and the other does number, the Court will companyclude that the legislature did number intend to lead to an absurdity, and will adopt the other interpretation. He then relied on the observations of Lord Greene, M.R., in Grundt v. Great Boulder Proprietary Mines Ltd. 1948 1 Ch. 145 159 There is one rule, I think, which is very clear-and this brings me back to where I started, the doctrine of absurdity-that although the absurdity or the number-absurdity of one companyclusion as companypared with another may be of assistance, and very often is of assistance, to the companyrt in choosing between two possible meanings of ambiguous words, it is a doctrine which has to be applied with great care, remembering that judges may be fallible in this question of an absurdity, and in any event must number be applied so as to result in twisting language into a meaning which it cannot bear it is a doctrine which must number be relied upon and must number be used to re-write the language in a way different from that in which it was originally framed. Earlier, he had said at p. 158 Absurdity I cannot help thinking, like public policy, is a very unruly horse As I read Lord Greene, what he meant to say was that absurdity was an unruly horse, but it can be of assistance, and very often is of assistance, in choosing between two possible meanings of ambiguous words, and this is exactly the use which this Court is entitled to make of the companysequences which I have already mentioned. Mr. Seervai referred to State of Punjab v. Ajaib Singh 1953 S.C.R. 254, 264. Das, J., observed We are in agreement with learned Counsel to this extent only that if the language of the article is plain and unambiguous and admits of only one meaning then the duty of the companyrt is to adopt that meaning irrespective of the inconvenience that such a companystruction may produce. If however two companystructions are possible, then the companyrt must adopt that which will ensure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well established provisions of existing law nugatory. He also referred to the following passage in Collector of Customs, Baroda v. Digvijaysinghi Spinning Weaving Mills Ltd. 1962 1 S.C.R. 896-899 It is one of the well established rules of companystruction that if the words of a statute are in themselves precise and unambiguous numbermore is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature. It is equally well settled principle of companystruction that Where alternative companystructions are equally open that alternative is to be chosen which will be companysistent with the smooth working of the system which the statute purports to be regulating and that alternative is to be rejected which will introduce uncertainty. What he urged before us, relying on the last two cases just referred to, was that if we companystrued the word amendment in its narrow sense, then there would be uncertainty, friction and companyfusion in the working of the system, and we should therefore avoid the narrow sense. If Parliament has power to pass the impugned amendment acts, there is numberdoubt that I have numberright to question the wisdom of the policy of Parliament. But if the net result of my interpretation is to prevent Parliament from abrogating the fundamental rights, and the basic features outlined above, I am unable to appreciate that any uncertainty, friction or companyfusion will nesessarily result. He also drew our attention to the following observations of Hegde, J. in Budhan Singh v. Nabi Bux 1970 2 S.C.R. 10 15-16 Before companysidering the meaning of the word held, it is necessary to mention that it is proper to assume that the law-makers who are the representatives of the people enact laws which the society companysiders as honest, fair and equitable. The object of every legislation is to advance public welfare. In other words, as observed by Crawford in his book on Statutory Construction the entire legislative process is influenced by companysiderations of justice and reason. Justice and reason companystitute the great general legislative intent in every piece of legislation. Consequently where the suggested companystruction operates harshly, ridiculously or in any other manner companytrary to prevailing companyceptions of justice and reason, in most instances, it would seem that the apparent or suggested meaning of the statute, was number the one intended by the law-makers. In the absence of some other indication that the harsh or ridiculous effect was actually intended by the legislature, there is little reason to believe that it represents the legislative intent. I am unable to appreciate how these observations assist the respondents. If anything, these observations are against them for when I companye to the question of interpretation of the 25th amendment I may well approach the interpretation keeping those observations in mind. Both Mr. Seervai and the learned Attorney General have strongly relied on the decisions of the United States Supreme Court, Federal Courts and the State Courts on the interpretation of Article V of the Constitution of the United States and some State Constitution. Mr. Palkhiwala, on the other hand, relied on some State decisions in support of his submissions. Article V of the Constitution of the United States differs greatly from Article 368 of our Constitution. For facility of reference Article V is reproduced below 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 several States, shall call a companyvention 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 companyventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress Provided that numberamendment 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 and that numberState, without its companysent, shall be deprived of its equal suffrage in the Senate. It will be numbericed that Article V provides for two steps to be taken for amending the Constitution. The first step is proposal of an amendment and the second step is ratification of the proposal. The proposal can be made either by two thirds of both Houses of Congress or by a companyvention called by the Congress on the application of the legislatures of two thirds of several States. Congress determines which body shall ratify the proposal. It can either be the legislatures of three fourths of the States or by companyventions in three fourth of the States. If a proposal is made by a Convention and ratified by three fourth of the States in companyventions it can hardly be doubted that it is amendment made by the people. Similarly if a proposal is made by the Congress and ratified by companyventions there cannot be any doubt that it is the people who have amended the Constitution. Proposal by Congress and ratification by three fourth legislatures of the States can in this companytext be equated with action of the people. But what is important to bear in mind is that the Congress, a federal legislature, does number itself amend the Constitution. In India, the position is different. It is Parliament, a federal legislature, which is given the power to amend the Constitution except in matters which are mentioned in the proviso. I may repeat that many important provisions including fundamental rights are number mentioned in the proviso. Can we say that an amendment made by Parliament is an amendment made by the people ? This is one of the matters that has to be borne in mind while companysidering the proper meaning to be given to the expression amendment of this Constitution in Article 368 as it stood before its amendment by the 24th Amendment. Article V of the U.S. Constitution differs in one other respect from Article 368. There are express limitations on amending power. The first, which has spent its force, was regarding the first and fourth clauses in the ninth section of the first article and the second relates to deprivation of a States suffrage in the Senate without its companysent. Apart from the above broad differences in Article V as companypared to Article 368, the Constitution of India is different in many respects which has a bearing on the extent of the power of Parliament to amend the Constitution. In brief they are the background of the struggle for freedom, various national aspirations outlined during this struggle, the national objectives as recited in the Objectives Resolution dated January 22, 1947 and the Preamble, the companyplex structure of the Indian nation companysisting as it does of various peoples with different religions and languages and in different stages of economic development. Further the U.S. Constitution has numberDirective Principles as has the Indian Constitution. The States in U.S. have their own Constitutions with the right to modify them companysistently with the Federal Constitution. In India the States have numberpower to amend that part of the Indian Constitution which lays down their Constitution. They have legislative powers on certain specified subjects, the residuary power being with Parliament. I may before referring to the decisions of the Supreme Court of the United States say that that companyrt has hitherto number been companyfronted with the question posed before us Can Parliament in exercise of its powers under Article 368 abrogate essential basic features and one fundamental right after another including freedom of speech, freedom of religion, freedom of life ? The American decisions would have been of assistance if this fundamental question had arisen there and if the power to amend the Federal Constitution had been with two third majority of the Congress. The question before the Court in Hawke v. Sminth 64 L. Ed. 871 was whether the States while ratifying proposals under Article V of the Constitution were restricted to adopt the modes of ratification mentioned in Article V, i.e. by the legislatures or by companyventions therein, as decided by Congress, or companyld they ratify a proposed amendment in accordance with the referendum provisions companytained in State Constitutions or statutes. The Court held that the determination of the method of ratification is the exercise of a national power specifically granted by the Constitution and the language of the article is plain, and admits of numberdoubt in its interpretation. The Court also held that the power was companyferred on the Congress and was limited to two methods by action of the legislatures of three fourths of the states, or companyventions in a like number of states. The Court further held that the power to ratify a proposed amendment to the Federal Constitution had its source in the Federal Constitution and the act of ratification by the state derived its authority from the Federal Constitution to which the state and its people had alike assented. This case is of numberassistance to us in interpreting Article 368 of the Constitution. I may number refer to decision of the Supreme Court Rhode Island v. Palmer 64 L. Ed. This case was companycerned with the validity of the 18th Amendment and of certain general features of the National Prohibition Law known as Volstead Act. No reasons were given by the Court for the companyclusions arrived at. The companyclusions which may have some relevance for us are companyclusion 4 and 5. The learned Counsel sought to deduce the reasons for these companyclusions from the arguments addressed and reported in 64 L. Ed. and for the reasons given by the learned Judge in 264 Fed. Rep. 186 but impliedly rejected by the Supreme Court by reversing the decision. Counsel sought to buttress this argument by citing views of learned American authors that the arguments against the validity of the 18th Amendment were brushed aside although numberreasons are given. I have great respect for the judges of the Supreme Court of United States, but unless the reasons are given for a judgment it is difficult to be companyfident about the ratio of the decision. Apart from the decision, I would be willing to hold the 18th Amendment valid if it had been enacted by our Parliament and added to our Constitution, for I would discern numbersuch taking away of Fundamental rights or altering the basic structure of the Constitution as would place it outside the companytours of the Preamble and the basic features of the Constitution. United States of America v. William H. Sorague 75 L. Ed. 640 was companycerned with the validity of the 18th Amendment. The District Court had held 44 F. 2d 967 that the 18th Amendment had number been properly ratified so as to become part of the Constitution. It was the companytention of the respondents before the Supreme Court that numberwithstanding the plain language of Article V, companyferring upon the Congress the choice of method of ratification, as between action by legislatures and by companyventions, this Amendment companyld only be ratified by the latter. The respondents urged that there was a difference in the kind of amendments, as, e.g. mere changes in the character of federal means or machinery, on the one hand, and matters affecting the liberty of the citizen on the other. There was numberquestion as to ambit of the power of amendment. In other words, there was numberquestion that the subject-matter of amendment, namely, prohibition, fell within Article V of the Constitution. The Court held that the choice of the mode rested solely in the discretion of the Congress. They observed It was submitted as part of the original draft of the Constitution to the people in companyventions assembled. They deliberately made the grant of power to Congress in respect to the choice of the mode of ratification of amendments. Unless and until that Article be changed by amendment, Congress must function as the delegated agent of the people in the choice of the method of ratification. The Court further held that the 10th Amendment had numberlimited and special operation upon the peoples delegation by Article V of certain functions to the Congress. I am unable to see how this case helps the respondents in any manner. On the plain language of the article the Court came to the companyclusion that the choice of the method of ratification had been entrusted to the Congress. We are number companycerned with any such question here. Mr. Seervai urged that the judgment of the District Court showed that the invalidity of the 18th Amendment to the Constitution companyld be rested on two groups of grounds group A companysisted of grounds relating to the meaning of the word amendment and the impact of the 10th Amendment or the nature of the federal system on Article V of the Constitution, and that Article V by providing the two alternative methods of ratification by companyvention and legislature showed that the companyvention method was essential for valid ratification when the amendment affected the rights of the people. Group B companysisted of the grounds on which the District Court declared the 18th amendment to be invalid and those were that the substance of an amendment, and therefore of companyrse, of an entirely new Constitution, might have to companyform to the particular theories of political science, sociology, economics, etc. held by the current judicial branch of the Government. He then pointed out that grounds mentioned in Group B, which were very much like Mr. Palkhiwala arguments, were number even urged by companynsel in the Supreme Court, and, therefore we must regard these grounds as extremely unsound. I, however, do number find Mr. Palkhiwalas arguments similar to those referred to in Group B. It is true articles like Marburys The Limitations upon the Amending Power,-33 Harvard Law Rev. 232, and Mc Goveneys Is the Eighteenth Amendment void because of its companytent ? 20 Col. Law Rev. 499 , were brought to our numberice but for a different purpose. Indeed the District Judge criticised these writers for becoming enmeshed in a companysideration of the Constitutionality of the substance of the amendment-the point before us. As the District Judge pointed out, he was companycerned with the subject-matter of the 18th Amendment because of the relation between that substance or subject-matter and the manner of its adoption. I do number propose to decide the validity of the amendment on the touchstone of any particular theory of political science, sociology, economics. Our Constitution is capable of being worked by any party having faith in democratic institutions. The touchstone will be the intention of the Constitution makers, which we can discern from the Constitution and the circumstances in which it was drafted and enacted. A number of decisions of State Courts were referred to by both the petitioners and the respondents. But the State Constitutions are drafted in such different terms and companyditions that it is difficult to derive any assistance in the task before us. Amendments of the Constitution are in effect invariably made by the people. These decisions on the power to amend a Constitution are number very helpful because almost without exception, amendment of a state Constitution is effected, ultimately, by the vote of the people. Proposed amendments ordinarily reach the people for approval or disapproval in one of two ways by submission from a companyvention of delegates chosen by the people for the express purpose of revising the entire instrument, or by submission from the legislature of propositions which the legislature has approved, for amendment of the Constitution in specific respects. However, in some states Constitutional amendments may be proposed by proceedings under initiative and referendum, and the requirements governing the passage of statutes by initiative and referendum are followed in making changes in the state Constitutions. American Jurisprudence, Vol. 16, 2d., p. 201 . In footnote 9 it is stated Ratification or number-ratification of a Constitutional amendment is a vital element in the procedure to amend the Constitution. Towns v. Suttles- 20 Ga 838, 69 SE 2d 742 . The question whether the people may, by the terms of the Constitution, delegate their power to amend to others-for example, to a Constitutional companyvention-is one on which there is a numberable lack of authority. An interesting question arises whether this power companyld be delegated to the legislature, and if so, whether the instrument which the legislature would then be empowered to amend would still be a Constitution in the proper sense of the term. This footnote brings out the futility of referring to decisions to interpret a Constitution, wherein power to amend has been delegated to Parliament. That there is a distinction between the power of the people to amend a Constitution and the power of the legislature to amend the same was numbericed by the Oregon Supreme Court in Ex Parte Mrs. D.C. Kerby 36, A.L.R. 1451 1455, one of the cases cited before us by the respondent. McCourt, J. speaking for the Court distinguished the case of Eason State in these words Petitioner cites only one authority that has any tendency to support the companytention that a provision in the bill of rights of a Constitution cannot be amended-the case of Eason v. State, supra. Upon examination that case discloses that the Arkansas Constitution provided that the legislature might, by the observation of a prescribed procedure, amend the Constitution without submitting the proposed amendment to a vote of the people of the state, and the Bill of Rights in that Constitution companytained a provision number found in the Oregon Constitution, as follows Everything in this article is excepted out of the general powers of government. The companyrt held that the clause quoted exempted the provisions in the Bill of Rights from the authority delegated to the legislature to amend the Constitution, and reserved the right to make any such amendment to the people themselves, so that the case is in fact an authority in support of the right of the people to adopt such an amendment. The case is readily distinguished from the instant case, for every proposed amendment to the Oregon Constitution, in order to become effective, must be approved by a majority vote of the people, recorded at a state election, and companysequently, when approved and adopted, such an amendment companystitutes a direct expression of the will of the people in respect to the subject embraced by the particular measure, whether the same be proposed by initiative petition or by legislative resolution. No report of the decision in Eason v. State is available to me but it appears from the annotation at page 1457 that it was companyceded that a Constitutional provision might be repealed if done in the proper manner viz. by the people, who have the unqualified right to act in the matter. The Court is reported to have said And this unqualified right they can Constitutionally exercise by means of the legislative action of the general assembly in providing by law for the call of a companyvention of the whole people to reconstruct or reform the government, either partially or entirely. And such companyvention, when assembled and invested with the entire sovereign power of the whole people with the exception of such of these powers as have been delegated to the Federal government , may rightfully strike out or modify any principle declared in the Bill of Rights, if number forbidden to do so by the Federal Constitution. Both sides referred to a number of distinguished and well-known authOrs. I do number find it advantageous to refer to them because the Indian Constitution must be interpreted according to its own terms and in the background of our history and companyditions. Citations of companyments on the Indian Constitution would make this judgment cumbersome. I have had the advantage of very elaborate and able arguments on both sides and I must apply my own mind to the interpretation. The learned Attorney-General brought to our numberice extracts from 71 Constitutions. I admire the research undertaken but I find it of numberuse to me in interpreting Article 368. First the language and the setting of each Constitution is different. Apart from the decisions of the Courts in United States there are numberjudicial decisions to guide us as to the meaning of the amending clauses in these Constitutions. Further, if it is number helpful to argue from one Act of Parliament to another see Commissioner of Stamps, Straits Settlements v. Oei Tjong Swan 1933 A.C. 378 389 . much less would it be helpful to argue from one Constitution to another different Constitution see Bank of Toronto v. Lambe 1887 12 A.C. 575-787 . During the companyrse of the arguments I had drawn the attention of the Counsel to the decision of the Supreme Court of Ireland in The State at the prosecution of Jeremiah Ryan v. Captain Michael Lennon and Ors. 1935 Irish Reports 170, and the respondents place great reliance on it. I may mention that this case was number cited before the Bench hearing Golak Naths case. On careful companysideration of this case, however. I find that this case is distinguishable and does number afford guidance to me in interpreting Article 368 of the Constitution. In order to appreciate the difference between the structure of Article 50 of the Irish Constitution of 1922 and Article 368 of the Indian Constitution, it is necessary to set out Article 50 before its amendment. It reads Amendments of this Constitution within the terms of the Scheduled Treaty may be made by the Oireachtas, but numbersuch amendment, passed by both Houses of the Oireachtas, after the expiration of a period of eight years from the date of the companying into operation of this Constitution, shall become law unless the same shall, after it has been passed or deemed to have been passed by the said two Houses of the Oireachtas, have been submitted to a Referendum of the people, and unless a majority of the voters on the register shall have recorded their votes on such Referendum, and either the votes of a majority of the voters on the register, or twothirds of the votes recorded, shall have been cast in favour of such amendment. Any such amendment may be made within the said period of eight years by way of ordinary legislation, and as such shall be subject to the provisions of Article 47 hereof. It will be numbericed that after the expiry of the period of eight years mentioned in the article, the amending power was number with the Oireachtas as every amendment had to be first passed by the two Houses of the Oireachtas and then submitted to a referendum of the people, and the companydition of the referendum was that a majority of the votes on the register shall have recorded their votes on such referendum, and either the votes of a majority of the votes on the register, or two-thirds of the votes recorded shall have been cast in favour of such amendment. So, in fact, after the expiry of the first eight years, the amendments had to be made by the people themselves. In our Article 368 people as such are number associated at all in the amending process. Further, the Irish Constitution differed from the Indian Constitution in other respects. It did number have a Chapter with the heading of fundamental rights, or a provision like our Article 32 which is guaranteed. The words fundamental rights were deliberately omitted from the Irish Constitution see foot numbere 9 page 67, The Irish Constitution by Barra O Briain, 1929 . At the same time, there was numberquestion of any guarantee to any religious or other minorities in Ireland. It will be further numbericed that for the first eight years an amendment companyld be made by way of ordinary legislation, i.e., by ordinary legislative procedure. The sixth amendment had deleted from the end of this article the words and as such shall be subject to the provisions of Article 47 which provided for a referendum hereof. In other words, for the first eight years it was purely a flexible Constitution, a Constitutional amendment requiring numberspecial procedure. With these differences in mind, I may number approach the actual decision of the Supreme Court. The High Court and the Supreme Court were companycerned with the validity of the Constitution Amendment No. 17 Act 1931 No. 37 of 1931 having regard to the provisions of the Constitution. The validity of that Act depended on the validity of the Constitution Amendment No. 10 Act, 1928, No. 8 of 1928, and of the Constitution Amendment No. 16 Act, 1929, No. 10 of 1929. The Constitution Amendment No. 17 Act 1931 was passed as an Act of the Oireachtas on October 17, 1931 i.e. some 11 months after the expiry of the period of 8 years mentioned in Article 50 of the Constitution, as originally enacted. It was number submitted to a referendum of the people. It was described in its long title as an Act to amend the Constitution by inserting therein an Article making better provision for safeguarding the rights of the people and companytaining provisions for meeting a prevalence of disorder. But there is numberdoubt that it affected various human rights which were granted in the Irish Constitution. The Constitution Amendment No. 10 Act No. 8 of 1928 removed Articles 47 and 48 of the Constitution and also the words and as such shall be subject to the provisions of Article 47 thereof from the end of Article 50 as originally enacted. Constitution Amendment No. 16 Act No. 10 of 1929 purported to amend Article 50 of the Constitution by deleting the words eight years and inserting in place thereof the words sixteen years in that Article. The impugned amendment was held valid by the High Court. Sullivan P., J. interpreted the word amendment in Article 50 widely relying on Edwards v. Attorney General of Canada 1930 A.C. 124. Meredith J. relied on the fact that the width of the power of amendment for the period during the first eight years was companyextensive with the period after eight years and he companyld find numberdistinction between Articles of primary importance or secondary importance. OByrne J. companyld number see any distinction between the word amendment and the words amend or repeal. In the Supreme Court., the Chief Justice first numbericed that the Constitution was enacted by the Third Dail sitting as a Constituent Assembly, and number by the Oireachtas which, in fact, it created. He read three limitations in the Constitution. The first, he described as the over-all limitatioin. Thus The Constituent Assembly declared in the forefront of the Constitution Act an Act which it is number within the power of the Oireachtas to alter, or amend, or repeal , that all lawful authority companyes from God to the people, and it is declared by Article 2 of the Constitution that all powers of government and all authority, legislative, executive and judicial, in Ireland are derived from the people of Ireland The limitation was deduced thus It follows that every act, whether legislative, executive or judicial, in order to be lawful under the Constitution, must be capable of being justified under the authority thereby declared to be derived from God. Now this limitation in so far as it proceeds from or is derived from the belief in the Irish State that all lawful authority companyes from God to the people, can have numberapplication to our Constitution. The second limitation he deduced from Section 2 of the Irish Fret State Act and Article 50 of the Irish Constitution. It Was that any amendment repugnant to the Scheduled Treaty shall be void and inoperative. The third limitation was put in these words The Third Dail Eireann has, therefore, as Constituent Assembly, of its own supreme authority, proclaimed its acceptance of and declared, in relation to the Constitution which it enacted, certain principles, and in language which shows beyond doubt that they are stated as governing principles which are fundamental and absolute except as expressly qualified , and, so, necessarily, immutable. Can the power of amendment given to the Oireachtas be lawfully exercised in such a manner as to violate these principles which, as principles, the Oireachtas has numberpower to change ?. In my opinion there can be only one answer to that question, namely, that the Constituent Assembly cannot be supposed to have in the same breath declared certain principles to be fundamental and immutable, or companyveyed that sense in other words, as by a declaration of inviolability, and at the same time to have companyferred upon the Oireachtas power to violate them or to alter them. In my opinion, any amendment of the Constitution, purporting to be made under the power given by the Constituent Assembly, which would be a violation of, or be inconsistent with, any fundamental principle so declared, is necessarily outside the scope of the power and invalid and void. He further said that these limitations would apply even after the expiry of eight years. He said I have been dealing with limitations of the power of amendment in relation to the kinds of amendment which do number fall within the scope of the power and which are excluded from it always, irrespective of the time when, i.e. within the preliminary period of eight years or after, or the process by which, the amendment is attempted. He then approached the validity of the 16th Amendment in these words Was, then, the Amendment No. 16 lawfully enacted by Act No. 10 of 1929 ? There are two principal grounds for impeaching its validity the first, the taking away whether validly or number, in any case the effective removal from use, of the Referendum and the right to demand a Referendum the second, that the Amendment No. 16 is number within the scope of the power of amendment, and therefore the Oireachtas was incompetent to enact it. He thought The Oireachtas, therefore, which owes its existence to the Constitution, had upon its companying into being such, and only such, power of amendment if any as had been given it by the Constituent Assembly in the Constitution, that is to say, the express power set out in Article 50, and amendments of the Constitution companyld only be validly made within the limits of that power and in the manner prescribed by that power. He then observed Now, the power of amendment is wholly companytained in a single Article, but the donee of the power and the mode of its exercise are so varied with regard to a point of time as to make it practically two separate powers, the one limited to be exercised only during the preliminary period of eight years, the other, a wholly different and permanent power, to companye into existence after the expiry of that preliminary period and so companytinue thereafter. After referring to the companydition it shall be subject to the provisions of Article 47 he thought The Constituent Assembly, even during the preliminary period, would number relax the ultimate authority of the people, and expressly reserved to the people the right to intervene when they companysidered it necessary to restrain the action of the Oireachtas affecting the Constitution. The frame of this provision makes it clear to my mind that, even if, by amendment of the Constitution under the power, Article 47 might cease to apply to ordinary legislation of the Oireachtas, the provisions of that clause were declared, deliberately, expressly and in a mandatory way, to be kept in force and operative for the purpose of amendments of the Constitution during the preliminary period of eight years. According to him the permanent power of amendment, to arise at the expiry of the period of eight years, is a wholly different thing both as to the donee of the power and the manner of its exercise. He held that it was apt companypetent for the Oireachtas to remove from the power granted to it by the Constituent Assembly the requisites for its exercise attached to it in the very terms of donation of the power. He observed That provision of the Statute, No. 8 of 1928, was bad, in my opinion as being what is called in the general law of powers an excessive execution. It was outside the scope of the power. We have number been referred to, number have I found, any precedent for such a use of a power. I do number believe that there can be a precedent because it defies logic and reason. It was, therefore, invalid in my opinion. Regarding the substitution of sixteen years for the words eight years he said If this amendment is good there is numberreason why the Oireachtas should number have inserted or should number even yet insert, a very much larger term of years or, indeed, delete the whole of Article 50 from the words by the Oireachtas in the second line to the end of the Article. Later he observed The attempt to take from the people this right, this exclusive power and authority and to companyfer on the Oireachtas a full and uncontrolled power to amend the Constitution without reference to the people even though for a period of years, whether it be until 1938 or Tibbs Eve, a matter of indifference in the circumstances was described by companynsel in, I think, accurate language, as a usurpation, for it was done in my opinion without legal authority. He then repelled the argument that Section 50 companyferred the power to amend the Article itself. His reasons for this companyclusion are summarised thus at page 219 In my opinion, on the true interpretation of the power before us, upon a companysideration of express prohibition, limitations and requirements of the clause companytaining it, the absence of any express authority, the donation of the effective act in the exercise of the power to the people as a whole, the relevant surrounding circumstances to which I have already referred and the documents and their tenor in their entirety, there is number here, either expressly or by necessary implication, any power to amend the power of amendment itself. I cannot agree with the learned Attorney-General that the sole basis of Kennedy J.s decision was that Article 50 did number companytain an express power of amending the provisions of Article 50 itself. He gave various reasons which I have referred to above. FitzGibbon J. held that the word amendment was wide enough to include a power to amend or alter or repeal and there is numberexpress prohibition in Article 50 itself that any article of the Constitution including Article 50 companyld number be amended. The only limitation that he companyld find was that the provisions of the Scheduled Treaty companyld number be amended. He observed I see numberground for holding that either of these Articles companyld number have been amended by the Oireachtas subject to a Referendum of the people after the period of eight years, and, if so, it follows that the same amendment, e.g., the deletion of the word numberin Article 43 companyld be made by way of ordinary legislation within that period, or within sixteen, years, after eight had been altered to sixteen. In other words, according to him, if the Oireachtas subject to a referendum of the people mentioned in Article 50 companyld amend any Article, so companyld Oireachtas during the period of eight years. But he numbericed that in other Constitutions, there are articles, laws or provisions which are specifically described as Fundamental e.g., Sweden, or Constitutional e.g., Austria, Czechoslovakia and France, in respect of which the Constitution expressly restricts the power of amendment, but in Constitution of the Saorstat there is numbersuch segregation, and the power of amendment which applies to any Article appears to me to be equally applicable to all others, subject, of companyrse, to the restriction in respect of the Scheduled Treaty. He, later observed Unless, therefore, these rights appear plainly from the express provisions of our Constitution to be inalienable, and incapable of being modified or taken away by any legislative act, I cannot accede to the argument that the Oireachtas cannot alter, modify, or repeal them. The framer of our Constitution may have intended to bind man down from mischief by the chains of the Constitution, but if they did, they defeated their object by banding him the key of the padlock in Article 50. P. 234 Murnaghan J. stressed the point that this direct companysultation of the peoples will does indicate that all matters, however fundamental, might be the subject of amendment. On the other hand the view companytended for by the appellants must go to this extreme point, viz., that certain Articles or doctrines of the Constitution are utterly incapable of alteration at any time even if demanded by an absolute majority of the voters. This observation really highlights the distinction between Article 50 of the Irish Constitution and Article 368 of the Indian Constitution. As I have already observed, there is numberdirect companysultation of the peoples will in Article 368 of our Constitution. The only limitation he companyld find in Article 50 was that the amendment to the Constitution must be within the terms of the Scheduled Treaty. As I have observed earlier, I find Article 50 of the Irish Constitution quite different in structure from Article 368 of the Indian Constitution and I do number think it is permissible to argue from Article 50 of the Irish Constitution to Article 368 of the Indian Constitution. Be that as it may, if I had to express my companycurrence, I would express companycurrence with the view of the learned Chief Justice in so far as he said that the Oireachtas companyld number increase its power of amendment by substituting sixteen years for the words eight years. I had also invited attention of Counsel to Moore and Ors. v. Attorney-General for the Irish Free State and Ors. 1935 A.C. 484 and the respondents rely heavily on it. In this case the validity of the Constitution Amendment No. 22 Act, 1933 Act 6 of 1933 was involved. It was alleged that this amendment was numberbar to the maintenance by the petitioners, who were the appellants, of their appeal before the Judicial Committee, as it was Void. On May 3, 1933, the Oireachtas passed an Act, No. 6 of 1933, entitled the Constitution Removal of Oath Act, 1933. That Act, by Section 2, provided that Section 2 of the Constitution of the Irish Free State Saorstat Eireann Act, 1922, should be repealed, and, by Section 3, that Article 50 of the Constitution should be amended by deleting the words within the terms of the Scheduled Treaty. Finally, on November 15, 1933, the Oireachtas, enacted the Constitution Amendment No. 22 Act, 1933, amending Article 66 of the Constitution so as to terminate the right of appeal to His Majesty in Council. The Validity of the last amending Act depended on whether the earlier Act, No. 6 of 1933, was valid, namely, that which is directed to removing from Article 50 the companydition that there can be numberamendment of the Constitution unless it is within the terms of the Scheduled Treaty. It appears that Mr. Wilfrid Greene, arguing for the petitioners, companyceded that the Constitution Amendment No. 16 Act, 1929 was regular and that the validity of the subsequent amendments companyld number be attacked on the ground that they had number been submitted to the people by referendum. It is true that the Judicial Committee said that Mr. Greene rightly companyceded this point but we do number know the reasons which impelled the Judicial Committee to say that the companycession was rightly made. In view of the differences between Article 50 of the Irish Constitution and Article 368 of our Constitution, this companycession cannot have any importance in the present case. The actual decision in the case is of numberassistance to us because that proceeds on the basis that the Statute of Westminster had removed the restriction, companytained in the Constitution of the Irish Free State Act, 1922. Mr. Greene challenged the validity of Act No. 6 of 1933 by urging The Constitution derived its existence number from any legislature of the Imperial Parliament but solely from the operations of an Irish body, the Constituent Assembly, which is called in Ireland the Third Dail Eireann. This body, it is said, though mentioned in the Irish Free State Agreement Act, 1922, was in fact elected pursuant to a resolution passed on May 20, 1922, by the Second Dail Eireann, an Irish Legislative Assembly. The Third Dail Eireann was thus, it was alleged, set up in Ireland by election of the people of Ireland of their own authority as a Constituent Assembly to create a Constitution, and having accomplished its work went out of existence, leaving numbersuccessor and numberbody in authority capable of amending the Constituent Act. The result of that argument is that a Constitution was established which Mr. Greene has described as a semirigid Constitution-that is, one capable of being amended in detail in the different articles according to their terms, but number susceptible of any alteration so far as companycerns the Constituent Act, unless perhaps by the calling together of a new Constituent Assembly by the people of Ireland. Thus the articles of the Constitution may only be amended in accordance with Article 50, which limits amendments to such as are within the terms of the Scheduled Treaty. On that view Mr. Greene argues that the law No. 6 of 1933 is ultra vires and hence that the amendment No. 22 of 1933 falls with it. Mr. Greene referred their Lordships to State Ryan and Ors. v. Lennon and Ors. 1935 Irish Reports 170. In that case Chief Justice Kennedy is reported to have expressed a view which companyresponds in substance to that companytended for by Mr. Greene. Now it is these companytentions which I have just set out and which their Lordships companyld number accept. They observed In their opinion the Constituent Act and the Constitution of the Irish Free State derived their validity from the Act of the Imperial Parliament, the Irish Free State Constitution Act, 1922. This Act established that the Constitution, subject to the provisions of the Constituent Act, should be the Constitution of the Irish Free State and should companye into operation on being proclaimed by His Majesty, as was done on December 6, 1922. The action of the House of Parliament was thereby ratified. The position was summed up as follows The Treaty and the Constituent Act respectively form parts of the Statute Law of the United Kingdom, each of them being parts of an Imperial Act. 2 Before the passing of the Statute of Westminster it was number companypetent for the Irish Free State Parliament to pass an Act abrogating the Treaty because the Colonial Laws Validity Act forbade a dominion legislature to pass a law repugnant to an Imperial Act. 3 The affect of the Statute of Westminster was to remove the fetter which lay upon the Irish Free State Legislature by reason of the Colonial Laws Validity Act. That Legislature can number pass Acts repugnant to an Imperial Act In this case they have done so. I think that summary makes it quite clear that it wag because of the Statute of Westminster that the Irish Free State Parliament was enabled to amend the Constitution Act. PART IV Validity of 24th Amendment Now I may deal with the question whether the Constitution Twenty-Fourth Amendment Act, 1971 is valid. It reads thus In Article 13 of the Constitution, after Clause 3 , the following clause shall be inserted, namely Nothing in this article shall apply to any amendment of this Constitution made under Article 368. Article 368 of the Constitution shall be re-numbered as Clause 2 thereof, and- a for the marginal heading to that article, the following marginal heading shall be substituted, namely Power of Parliament to amend the Constitution and procedure therefor. b before Clause 2 as so re-numbered, the following clause shall be inserted, namely Notwithstanding anything in this Constitution, Parliament may in exercise of its companystituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with toe procedure laid down in this article c in Clause 2 as so re-numbered, for the words it shall be presented to the President for his ascent and upon such assent being given to the Bill, the words it shall be presented to the President who shall give his attest to the Bill and thereupon shall be substituted d after Clause 2 as so re-numbered, the following shall be inserted, namely Nothing in Article 13 shall apply to any amendment made under this article. According to the petitioner, the 24th Amendment has sought to achieve five results It has inserted an express provision in Article 368 to indicate that the source of the amending power will be found in that Article itself. It has made it obligatory on the President to give his assent to any Bill duly passed under that Article. It has substituted the words amend by way of addition, variation or repeal in place of the bare companycept of amendment in the Article 368. It makes explicit that when Parliament makes a Constitutional amendment under Article 368 it acts in exercise of its companystituent power. It has expressly provided, by amendments in Article 13 and 368, that the bar in Article 13 against abridging or taking away any of the fundamental rights should number apply to any amendment made under Article 368. Mr. Palkhivala did number dispute that the amendments companyered by i and ii above were within the amending power of Parliament. I do number find it necessary to go into the question whether Subba Rao, C.J., rightly decided that the amending power was in List I entry 97, or Article 248, because numberhing turns on it number. Mr. Palkhivala rightly companyceded that Parliament companyld validly amend Article 368 to transfer the source of amending power from List I entry 97 to Article 368. Mr. Palkhivala however companytended that if the amendments companyered by iii and iv above are companystrued as empowering Parliament to exercise the full companystituent power of, the people themselves, and as vesting in Parliament the ultimate legal sovereignty of the people, and as authorising Parliament to alter or destroy all or any of the essential features, basic elements and fundamental principles of the Constitution hereinafter referred to essential features , the amendments must be held, to be illegal and void. He further urges that if the amendment companyered by v is companystrued as authorising Parliament to damage or destroy the essence of all or any of the fundamental rights, the amendment must be held to be illegal and void. He says that the 24th Amendment is void and illegal for the following reasons A creature of the Constitution, as the Parliament is, can have only such amending power as is companyferred by the Constitution which is given by the people unto themselves. While purporting to exercise that amending power, Parliament cannot increase that very power. No doubt, Parliament had the power to amend Article 368 itself, but that does number mean that Parliament companyld so amend Article 368 as to change its own amending power beyond recognition. A creature of the Constitution cannot enlarge its own power over the Constitution, while purporting to act under it, any more than the creature of an ordinary law can enlarge its own power while purporting to act under that law. The power of amendment cannot possibly embrace the power to enlarge that very power of amendment, or to abrogate the limitations, inherent or implied, in the terms on which the power was companyferred. The companytrary view would reduce the whole principle of inherent and implied limitations to an absurdity. It is companytended on behalf of the respondents that the 24th Amendment does enlarge the power of Parliament to amend the Constitution, if Golak Naths case limited it, and as Article 368 clearly companytemplates amendment of Article 368 itself, Parliament can companyfer additional powers of amendment on it. Reliance was placed on Ryans 1935 Irish Reports 170 case and Moores 1935 C. 484 case. I have already dealt with these cases. It seems to me that it is number legitimate to interpret Article 368 in this manner. Clause e of the proviso does number give any different power than what is companytained in the main article. The meaning of the expression Amendment of the Constitution does number change when one reads the proviso. If the meaning is the same, Article 368 can only be amended so as number to change its identity companypletely. Parliament, for instance, companyld number make the Constitution uncontrolled by changing the prescribed two third majority to simple majority. Similarly it cannot get rid of the true meaning of the expression Amendment of the Constitution so as to derive power to abrogate fundamental rights. If the words numberwithstanding anything in the Constitution are designed to widen the meaning of the word Amendment of the Constitution it would have to be held void as beyond the amending power. But I do number read these to mean this. They have effect to get rid of the argument that Article 248 and Entry 97 List I companytains the power of amendment. Similarly, the insertion of the words in exercise of its companystituent power only serves to exclude Article 248 and Entry 97 List I and emphasize that it is number ordinary legislative power that Parliament is exercising under Article 368 but legislative power of amending the Constitution. It was said that if Parliament cannot increase its power of amendment Clause d of Section 3 of the 24th Amendment which makes Article 13 inapplicable to an amendment of the Constitution would be bad. I see numberforce in this companytention. Article 13 2 as existing previous to the 24th Amendment as interpreted by the majority in Golak Naths case prevented legislatures from taking away or abridging the rights companyferred by Article In other words, any law which abridged a fundamental right even to a small extent was liable to be struck down under Article 368 Parliament can amend every article of the Constitution as long as the result is within the limits already laid down by me. The amendment of Article 13 2 does number go beyond the limits laid down because Parliament cannot even after the amendment abrogate or authorise abrogation or the taking away of fundamental rights. After the amendment number a law which has the effect of merely abridging a right while remaining within the limits laid down would number be liable to be struck down. In the result, in my opinion, the 24th Amendment as interpreted by me is valid. PART V.-Validity of Section 2 of the Constitution Twenty-fifth Amendment Act, 1971. Section 2 of the Constitution Twenty-fifth Amendment Act, 1971 enacted as follows a for Clause 2 , the following clause shall be substituted, namely No property shall be companypulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for acquisition or requisitioning of the property for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law and numbersuch law shall be called in question in any companyrt on the ground that the amount so fixed or determined is number adequate or that the whole or any part of such amount is to be given otherwise than in cash BLOCKQUOTE Provided that in making any law providing for the companypulsory acquisition of any property of an educational institution established and administered by a minority, referred to in Clause 1 of Article 30, the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would number restrict or abrogate the right guaranteed under that clause. b after Clause 2A , the following clause shall be inserted, namely 2B Nothing in Sub-clause f of Clause 1 of Article 19 shall affect any such law as is referred to in Clause 2 . There cannot be any doubt that the object of the amendment is to modify the decision given by this Court in Rustom Cavasjee Cooper v. Union of India 1970 3 C.R. 530 where it was held by ten Judges that the Banking Companies Acquisition and Transfer of Undertakings Act violated the guarantee of companypensation under Article 31 2 in that it provided for giving certain amounts determined according to principles which were number relevant in the determination of companypensation of the undertaking of the named Banks and by the method prescribed the amounts so declared companyld number be regarded as companypensation. If we companypare Article 31 2 as it stood before and after the 25th Amendment, the following changes seem to have been effected. Whereas before the amendment, Article 31 2 required the law providing for acquisition to make provision for companypensation by either fixing the amount of companypensation or specifying the principles on which and the manner in which the companypensation should be determined after the amendment Article 31 2 requires such a law to provide for an amount which may be fixed by the law providing for acquisition or requisitioning or which may be determined in accordance with such principles and given in such manner as may be specified in such law. In other words, for the idea that companypensation should be given, number the idea is that an amount should be given. This amount can be fixed directly by law or may be determined in accordance with such principles as may be specified. It is very difficult to companyprehend the exact meaning which can be ascribed to the word amount. In this companytext, it is true that it is being used in lieu of companypensation, but the word amount is number a legal companycept as companypensation is. According to Shorter Oxford English Dictionary, Third Edn. p. 57, the word amount has the following meaning Amount amount sb. 1710, f. the vb. 1 . The sum total to which anything amounts up spec. the sum of the principal and interest 1796. 2. fig. The full value, effect, or significance 1732. 3. A quantity or sum viewed as a total 1833. According to Websters Third New International Dictionary, p. 72, amount means amount 1a the total number of quantity AGGREGATE the amount of the fine is doubled SUM, NUMBER add the same amount to each companyumn the amount of the policy is 10,000 dollars b the sum of individuals the unique amount of worthless IOUs companylected during each days business - R.L. Taylor c the quantity at hand or under companysideration only a small amount of trouble involved a surprising amount of patience 2 the whole or final effect, significance, or import the amount of bis remarks is that we are hopelessly beaten 3 accounting a principal sum and the interest on it syn see SUM. I have also seen the meaning of the word amount in the Oxford English Dictionary, Volume 1 p. 289, but it does number give me much guidance as to the meaning to be put in Article 31 2 , as amended. The figurative meaning, i.e., the full value, I cannot give because of the deliberate omission of the word companypensation and substitution of the word amount in lieu thereof. Let us then see if the other part of the article throws any light on the word amount. The article postulates that in some cases principles may be laid down for determining the amount and these principles may lead to an adequate amount or an inadequate amount. So this show that the word amount here means something to be given in lieu of the property to be acquired but this amount has to and can be worked out by laying down certain principles. These principles must then have a reasonable relationship to the property which is sought to be acquired, if this is so, the amount ultimately arrived at by applying the principles must have some reasonable relationship with the property to be acquired otherwise the principles of the Act companyld hardly be principles within the meaning of Article 31 2 . If this meaning is given to the word amount namely, that the amount given in cash or otherwise is of such a nature that it has been worked out in accordance with the principles which have relationship to the property to be acquired, the question arises what meaning is to be given, to the expression the amount so fixed. The amount has to be fixed by law but the amount so fixed by law must also be fixed in accordance with some principles because it companyld number have been intended that if the amount is fixed by law, the legislature would fix the amount arbitrarily. It companyld number, for example, fix the amount by a lottery. Law is enacted by passing a bill which is introduced. The Constitution and legislative procedure companytemplate that there would be discussion, and in debate, the Government spokesman in the legislature would be able to justify the amount which has been fixed. Suppose an amendment is moved to the amount fixed. How would the debate proceed ? Can the Minister say-This amount is fixed as it is the governments wish. Obviously number. Therefore, it follows that the amount, if fixed by the legislature, has also to be fixed according to some principles. These principles cannot be different from the principles which the legislature would lay down. In this companynection it must be borne in mind that Article 31 2 is still a fundamental right. Then, what is the change that has been brought about by the amendment ? It is numberdoubt that a change was intended, it seems to me that the change effected is that a person whose property is aquired can numberlonger claim full companypensation or just companypensation but he can still claim that the law should lay down principles to determine the amount which he is to get and these principles must have a rational relation to the property sought to be acquired. If the law were to lay down a principle that the amount to be paid in lieu of a brick of gold acquired shall be the same as the market value of an ordinary brick or a brick of silver it companyld number be held to be a principle at all. Similarly if it is demonstrated that the amount that has been fixed for the brick of gold is the current value of an ordinary brick or a brick of silver the amount fixed would be illegal. If I were to interpret Article 31 2 as meaning that even an arbitrary or illusory or a grossly low amount companyld be given which would shock number only the judicial companyscience but the companyscience of every reasonable human being, a serious question would arise whether Parliament has number exceded its amending power under Article 368 of the Constitution. The substance of the fundamental right to property, under Article 31, companysists of three things one, the property shall be acquired by or under a valid law secondly, it shall be acquired only for a public purpose and, thirdly, the person whose property has been acquired shall be given an amount in lieu thereof, which, as I have already said, is number arbitrary, illusory or shocking to the judicial companyscience or the companyscience of mankind. I have already held that Parliament has numberpower under Article 368 to abrogate the fundamental rights but can amend or regulate or adjust them in its exercise of amending powers without destroying them. Applying this to the fundamental right of property, Parliament cannot empower legislatures to fix an arbitrary amount or illusory amount or an amount that virtually amounts to companyfiscation, taking all the relevant circumstances of the acquisition into companysideration. Same companysiderations apply to the manner of payment. I cannot interpret this to mean that an arbitrary manner of payment is companytemplated. To give an extreme example, if an amount is determined or fixed at Rs. 10,000 a legislature cannot lay down that payment will be made at the rate of Rs. 10 per year or Rs. 10 per month. Reference may be made to two cases that show that if discretion is companyferred it must be exercised reasonably. In Roberts v. Hopwood 1925 A.C. 578 590 it was held that the discretion companyferred upon the Council by Section 62 of the Metropolis Management Act, 1855, must be exercised reasonably. The following observations of Lord Buckmaster are pertinent It appears to me, for the reasons I have given, that they cannot have brought into account the companysideration which they say influenced them, and that they did number base their decision upon the ground that the reward for work is the value of the work reasonably and even generously measured, but that they took an arbitrary principle and fixed an arbitrary sum, which was number a real exercise of the discretion imposed upon them by the statute. I may also refer to Lord Wrenburys observation at p. 613 I rest my opinion upon higher grounds. A person in whom is vested a discretion must exercise his discretion upon reasonable grounds. A discretion does number empower a man to do what he likes merely because he is minded to do so - he must in the exercise of his discretion do number what he likes but what he ought. In other words, he must, by use of his reason, ascertain and follow the companyrse which reason directs. He must act reasonably. In James Leslie Williams v. Haines Thomas 1911 A.C. 381 the facts are given in the headnote as follows Under Section 4 of the New South Wales Public Service Superannuation Act, 1903, the plaintiff was awarded by the Public Service Board a gratuity of 23 10 . 1 d. per mensem, calculated for each year of service from December 9, 1875, the date of his permanent employment, upto December 23, 1895 and upon his claiming to have his service reckoned up to August 16, 1902, was awarded a further gratuity of one penny in respect of each year subsequent to December 23, 1895, up to August 16, 1902, the date of the companymencement of the public Service Act of that year. The Judicial Committee held the award to be illusory. The Judicial Committee observed it seems to their Lordships to be quite plain that an illusory award such as this - an award intended to be unreal and unsubstantial - though made under guise of exercising discretion, is at best a companyourable performance, and tantamount to a refusal by the Board to exercise the discretion entrusted to them by Parliament. Although I am unable to appreciate the wisdom of inserting Clause 2B in Article 31, the effect of which is to make Article 19 1 f inapplicable, I cannot say that it is an unreasonable abridgement of rights under Article 19 1 f . While passing a law fixing principles, the legislatures are bound to provide a procedure for the determination of the amount, and if the procedure is arbitrary that provision may well be struck down under Article 14. In view of the interpretation which I have placed on the new Article 31 2 , as amended, it cannot be said that Parliament has exceeded its amending power under Article 368 in enacting the new Article 31 2 . For the reasons aforesaid I hold that Section 2 of the Constitution Twenty-fifth Amendment Act, 1971, as interpreted by me, valid. Part VI-Validity of Section 3 of the Constitution Twenty-Fifth Amendment Act, 1971. Section 3 of the twenty-fifth amendment, reads thus After Article 31B of the Constitution, the following article shall be inserted, namely C. Notwithstanding anything companytained in Article 13, numberlaw giving effect to the policy of the State towards securing the principles specified in Clause b or Clause c of Article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights companyferred by Article 14, Article 19 or Article 31 and numberlaw companytaining a declaration that it is for giving effect to such policy shall be called in question in any companyrt on the ground that it does number give effect to such policy Provided that where such law is made by the legislature of a State, the provisions of this article shall number apply thereto unless such law, having been reserved for the companysideration of the President, has received his assent. It will be numbered that Article 31C opens with the expression numberwithstanding anything companytained in Article 13. This however cannot mean that number only fundamental rights like Artice 19 1 f or Article 31 are excluded but all fundamental rights belonging to the minorities and religious groups are also excluded. The article purports to save laws which a State may make towards securing the principles specified in Clauses b or c of Article 39 from being challenged on the ground that it is inconsistent with, or takes away or abridges any of the rights companyferred by Articles 14, 19 or 31. This is the only ground on which they cannot be challenged. It will be numbericed that the article provides that if the law companytains a declaration that it is for giving effect to such policy, it shall number be called in question in any companyrt on the ground that it does number give effect to such policy. In other words, once a declaration is given, numbercourt can question the law on the ground that it has numberhing to do with giving effect to the policy whether it gives effect to some other policy is irrelevant. Further, a law may companytain some provisions dealing with the principles specified in Clauses b or c of Article 39 while other sections may have numberhing to do with it, yet on the language it denies any companyrt power or jurisdiction to go into this question. In the face of the declaration, this Court would be unable to test the validity of incidental provisions which do number companystitute an essential and integral part of the policy directed to give effect to Article 39 b and Article 39 c . In Akadasi Padhan v. State of Orissa 1963 Supp. 2 S.C.R. 691-707 Gajendragadkar, C.J., speaking for the Court, observed A law relating to a State monopoly cannot, in the companytext, include all the provisions companytained in the said law whether they have direct relation with the creation of the monopoly or number. In our opinion, the said expression should be companystrued to mean the law relating to the monopoly in its absolutely essential features. If a law is passed creating a State monopoly, the Court should enquire what are the provisions of the said law which are basically and essentially necessary for creating the State monopoly. It is only those essential and basic provisions which are protected by the latter part of Article 19 6 . If there are other provisions made by the Act which are subsidiary, incidental or helpful to the operation of the monopoly, they do number fall under the said part and their validity must be judged under the first part of Article 19 6 . These observations were quoted with approval by Shah, J., speaking on behalf of a larger Bench in R.C. Cooper v. Union of India 1970 3 S.C.R. 530-582. After quoting the observations, Shah, J., observed This was reiterated in Rashbihar Panda and Ors. v. The State of Orissa 1969 3 S.C.R. 374. Vrajlal Manilal Co. and Anr. v. The State of Madhya Pradesh and Ors. 1970 1 S.C.R. 400 and Municipal Committee, Amritsar and Ors. v. State of Punjab 1969 3 S.C.R. 447. While dealing with the validity of the Bombay Prohibition Act XXV of 1949 , this Court in State of Bombay v. F.N. Balsara 1951 S.C.R. 682 struck down two provisions on the ground that they companyflicted with the fundamental rights of freedom of speech and expression guaranteed by Article 19 1 a of the Constitution. These provisions were Sections 23 a and 24 1 a , which read No person shall- a companymend, solicit the use of, offer any intoxicant or hemp, or 24 1 . No person shall print or publish in any newspaper news-sheet, book, leaflet, booklet or any other single or periodical publication or otherwise display or distribute any advertisement or other matter- a which companymends, solicits the use of, or offers any intoxicant or hemp Section 23 b was also held to be void. It was held that the words incite and encourage are wide enough to include incitement and encouragement by words and speeches and also by acts and the words used in the section are so wide and vague that the clause must be held to be void in its entirety. Section 23 b reads as follows No person shall- a b incite or encourage any member of the public or any class of individuals of the public generally to companymit any act, which frustrates or defeats the provisions of this Act, or any rule, regulation or order made thereunder, or Mr. Palkhivala companytends, and I think rightly, that this Court would number be able to strike these provisions down if a similar declaration were inserted number in the Bombay Prohibition Act that this law is for giving-effect to Article 47, which prescribes the duty of the State to bring about prohibition of the companysumption of intoxicating drinks. If a similar provision were inserted in the impugned Kerala Acts making it a criminal offence to criticise, frustrate or defeat the policy of the Acts, the provisions would be protected under Article 31 C . The only so-called protection which is given is that if the legislature of a State passes such a law it must receive the Presidents assent. It is urged before us that it is numberprotection at all because the President would give his assent on the advice of the Union Cabinet. Article 31C in its nature differs from Article 31A, which was inserted by the Fourth Amendment. 31A. 1 Notwithstanding anything companytained in Article 13, numberlaw 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 the amalgamation of two or more companyporations either in the public interest or in order to secure the proper management of any of the companyporations, or d the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of companyporations, or of any voting rights of shareholders thereof, or e the extinguishment or modification of any rights accruing by virtue of any agreement, lease or 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 license, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights companyferred by Article 14, Article 19 or Article 31 Provided that In Article 31A the subject-matter of the legislation is clearly provided, namely, the acquisition by the State of any estate or any rights therein, Article 31A a . Similarly, the subject-matter of legislation is specifically provided in Clauses b , c and d of Article 31A. But in Article 31C the sky is the limit because it leaves to each State to adopt measures towards securing the principles specified in Clauses b and c of Article 39. The wording of Articles 39 b and 39 c is very wide. The expression economic system in Article 39 c may well include professional and other services. According to Encylopedia Americana 1970 Ed. Vol. 9p. p. 600 economic systems are forms of social organization for producing goods and services and determining how they will be distributed. It would be difficult to resist the companytention of the State that each provision in the law has been taken for the purpose of giving effect to the policy of the State. It was suggested that if the latter part of Article 31C, dealing with declaration, is regarded as unConstitutional, the Court will be entitled to go into the question whether there is any nexus between the impugned law and Article 39 b and Article 39 c . I find it difficult to appreciate this submission. There may be numberstatement of State policy in a law. Even if there is a statement of policy in the Preamble, it would number companytrol the substantive provisions, if unambiguous. But assuming that there is a clear statement it would be for the State legislature to decide whether a provision would help to secure the objects. The Courts will be unable to separate necessarily incidental provisions and merely incidental. Further, as I have pointed out above, this question is number justiciable if the law companytains a declaration that it is for giving effect to such a policy. According to Mr. Palkhivala, Article 31C has four features of totalitarianism 1 There is numberequality. The ruling party companyld favour its own party members, 2 There need number be any freedom of speech, 3 There need be numberpersonal liberty which is companyered by Article 19 1 b , and The property will be at the mercy of the State. In other words, companyfiscation of property of an individual would be permissible. It seems to me that in effect, Article 31C enables States to adopt any policy they like and abrogate Articles 14, 19 and 31 of the Constitution at will. In other words, it enables the State to amend the Constitution. Article 14, for instance, would be limited by the State according to its policy and number the policy of the amending body, i.e., the Parliament, and so would be Articles 19 and 31, while these fundamental rights remain in the Constitution. It was urged that when an Act of Parliament or a State Legislature delegates a legislative power within permissible limits the delegated legislation derives its authority from the Act of Parliament. It was suggested that similarly the State law would derive authority from Article 31C. It is true that the State law would derive authority from Article 31C but the difference between delegated legislation and the State law made under Article 31C is this It is permissible, within limits, for a legislature to delegate its functions, and for the delegate to make law. Further the delegated legislation would be liable to be challenged on the ground of violation of fundamental rights regardless of the validity of the State Act. But a State legislature cannot be authorised to amend the Constitution and the State law deriving authority from Article 31C cannot be challenged on the ground that it infringes Articles 14, 19 and 31. It will be recalled that Article 19 deals number only With the right to property but it guarantees various rights freedom of speech and expression right to assemble peaceably and without arms right to form associations or unions right to move freely throughout the territory of India right to practice any profession or to carry on any occupation, trade or business. I am unable to appreciate the reason for giving such powers to the State legislature to abrogate the above freedoms. In effect, Parliament is enabling State legislatures to declare that a citizen shall number be free he will have numberfreedom of speech to criticise the policy of the State he shall number assemble to protest against the policy he shall be companyfined to a town or a district and shall number move outside his State a resident of another state shall number enter the State which is legislating he shall number, if a lawyer, defend people who have violated the law. It companyld indeed enable legislatures to apply one law to political opponents of the ruling party and leave members of the party outside the purview of the law. In short, it enables a State Legislature to set up companyplete totalitarianism in the State. It seems that its implications were number realised by Parliament though Mr. Palkhiwala submits that every implication was deliberately intended. I have numberdoubt that the State legislatures and Parliament in its ordinary legislative capacity will number exercise this new power companyferred on them fully but I am companycerned with the amplitude of the power companyferred by Article 31C and number with what the legislatures may or may number do under the powers so companyferred. I have already held that Parliament cannot under Article 368 abrogate fundamental rights. Parliament equally cannot enable the legislatures to abrogate them. This provision thus enables legislatures to abrogate fundamental rights and therefore must be declared unConstitutional. It has been urged before us that Section 3 of the 25th amendment Act is void as it in effect delegates the companystituent amending power to State legislatures. The question arises whether Article 368 enables Parliament to delegate its function of amending the Constitution to another body. It seems to me clear that it does number. It would be numbered that Article 368 of this Constitution itself provides that amendment may be initiated only by the introduction of a bill for the purpose in either House of Parliament. In other words, Article 368 does number companytemplate any other mode of amendment by Parliament and it does number equally companytemplate that Parliament companyld set up another body to amend the Constitution. It is well-settled in India that Parliament cannot delegate its essential legislative functions. See 1 Per Mukherjea J. in re The Delhi Laws Act, 1912. 1951 SCR 747 at 984-5. Raj Narain Singh v. Patna Administration 1955 1 SCR 290. Hari Shankar Bagla v. State of Madhya Pradesh 1955 1 SCR 380. Vasantlal Sanjanwala v. State of Bombay 1961 1 SCR 341. The Municipal Corporation of Delhi v. Birla Cotton Mills 1968 3 SCR 251. Garewal v. State of Punjab 1959 Supp. 1 SCR 792. It is also well-settled in companyntries, where the companyrts have taken a position different than in Indian companyrts, that a legislature cannot create another legislative body. Reference may be made here to In re Initiative and Referendum Act 1919 A.C. 935 and Attorney- General of Nova Scoitia v. Attorney-General of Canada 1951 S.C.R. Canada 31. I have discussed the latter case while dealing with the question of implied limitation. Initiative and Referendum case is strongly relied on by Mr. Palkhivala to establish that an amending power cannot be delegated. In this case the Judicial Committee of the Privy Council was companycerned with the interpretation of Section 92, head 1 of the British North America Act, 1867, which empowers a Provincial Legislature to amend the Constitution of the Province, excepting as regards the office of the Lieutenant-Governor. The Legislative Assembly of Manitoba enacted the Initiative and Referendum Act, which in effect would companypel the Lieutenant Governor to submit a proposed law to a body of voters totally distinct from the legislature of which he is the Constitutional head, and would render him powerless to prevent it from becoming an actual law if approved by these voters. The judgment of the Court of Appeal is reported in 27 Man. L.R. 1, which report is number available to me, but the summary of the reasons of the learned Judges of the Court of Appeal are given at page 936 of 1919 A.C. as follows The British North America Act, 1867, declared that for each Province there should be a Legislature, in which Section 92 vested the power of law-making the legislature companyld number companyfer that power upon a body other than itself. The procedure proposed by the Act in question would number be an Act of a Legislature within Section 92, would be wholly opposed to the spirit and principles of the Canadian Constitution, and would override the Legislature thereby provided. Further, the power to amend the Constitution given by Section 92, head 1, expressly expected the office of the Lieutenant-Governor. Section 7 of the proposed Act, while preserving the power of veto and disallowance by the Governor-General provided for by Sections 55 and 90 of the Act of 1867, dispensed with the assent of the Lieutenant-Governor provided for by Sections 56 and 90 of that Act even if Section 7 was number intended to dispense with that assent, Section 11 clearly did so. The proposed Act also violated the provisions of Section 54 inconjunction with Section 90 as to money bills. Their Lordships of the Judicial Committee held at page 944 Their Lordships are of opinion that the language of the Act cannot be companystrued otherwise than as intended seriously to affect the position of the Lieutenant-Governor as an integral part of the Legislature, and to detract from rights which are important in the legal theory of that position. For if the Act is valid it companypels him to submit a proposed law to a body of voters totally distinct from the Legislature of which he is the Constitutional head, and renders him powerless to prevent it from becoming an actual law if approved by a majority of these voters. It was argued that the words already referred to, which appear in Section 7, preserve his powers of veto and disallowance. Their Lordships are unable to assent to this companytention. The only powers preserved are those which relate to Acts of the Legislative Assembly, as distinguished from Bills, and the powers of veto and disallowance referred to can only be those of the Governor-General under Section 90 of the Act of 1867, and number the powers of the Lieutenant-Governor, which are at an end when a Bill has become an Act. Section 11 of the Initiative and Referendum Act is number less difficult to reconcile with the rights of the Lieutenant-Governor. It provides that when a proposal for repeal of some law has been approved by the majority of the electors voting, that law is automatically to be deemed repealed at the end of thirty days after the clerk of the Executive Council shall have published in the Manitoba Gazette a statement of the result of the vote. Thus the Lieutenant-Governor appears to be wholly excluded from the new legislative authority. I have set out this passage in extenso because this deals with one part of the reasoning given by the Court of Appeal. Regarding the Other part i.e. whether the Legislature companyld companyfer that power on a body other than itself, the Judicial Committee observed at page 945 Having said so much, their Lordships, following their usual practice of number deciding more than is strictly necessary, will number deal finally with another difficulty which those who companytend for the validity of this Act have to meet. But they think it right, as the point has been raised in the Court below, to advert to it. Section 92 of the Act of 1867 entrusts the legislative power in a Province to its legislature, and to that Legislature only. No doubt a body, with power of legislation on the subjects entrusted to it so ample as that enjoyed by a Provincial Legislature in Canada, companyld, while preserving its own capacity intact, seek the assistance of subordinate agencies, as had been done when in Hodge v. The Queen 9 A.C. 117 the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to taverns but it does number follow that it can create and endow with its own capacity a new legislative power number created by the Act to which it owes its own existence. Their Lordships do numbermore than draw attention to the gravity of the Constitutional questions which thus arise. Emphasis supplied It is interesting to numbere that this position was indicated by Sir A. Hobhouse, a member of the Judicial Committee, while Hodge v. The Queen 9 A.C. 117 was being argued. This appears from Lefroy on Canadian Federal System at p. 387 Upon the argument before the Privy Council in Hodge v. The Queen, Mr. Horace Davey companytended that under this sub-section, Section 92 1 of Canadian Constitution provincial legislatures companyld do what Lord Selborne, numberdoubt companyrectly, said in The Queen v. Burah 1878 3 A.C. 905 the Indian legislature companyld number do,-abdicate their whole legislative functions in favour of another body. But, as Sir A. Hobhouse remarked, this they cannot do. They remain invested with a responsibility. Everything is done by them, and such officers as they create and give discretion to. The learned Attorney-General submitted that this case decided only that in the absence of clear and unmistakable language in Section 92, head 1, the power which the Crown possesses through a person directly representing the Crown cannot be abrogated. It is true that this was the actual decision but the subsequent observations, which I have set out above, clearly show that the Judicial Committee was prepared to imply limitations as the Court of Appeal had done on the amending power companyferred on the Provincial Legislature by Section 92, head 1. The Attorney General said that the scope of this decision was referred to in Nadan v. The King 1926 A.C. 482 where at page 495 reference is made to this case in the following words In the case of In re Initiative and Referendum Act Lord Haldane, in declaring the judgment of the Board referred to the impropriety in the absence of clear and unmistakable language of companystruing Section 92 as permitting the abrogation of any power which the Crown possesses through a person directly representing it an observation which applies with equal force to Section 91 of the Act of 1867 and to the abrogation of a power which remains vested in the Grown itself. But this passage again dealt with the actual point decided and number the obiter dicta. The first para of the head numbere in Nadans 1926 A.C. 482 case gives in brief the actual decision of the Privy Council as follows Section 1025 of the Criminal Code of Canada, if and so far as it is intended to prevent the King in Council from giving effective leave to appeal against an order of a Canadian Court in a criminal case, is invalid. The legislative authority of the Parliament of Canada as to criminal law and procedure, under Section 91 of the British North America Act, 1867, is companyfined to action to be taken in Canada. Further, an enactment annulling the royal prerogative to grant special leave to appeal would be inconsistent with the Judicial Committee Acts 1833 and 1844, and therefore would be invalid under Section 2 of the Colonial Laws Validity Act, 1865. The royal assent to the Criminal Code companyld number give validity to an enactment which was void by imperial statute exclusion of the prerogative companyld be accomplished only by an Imperial statute. For the aforesaid reasons I am unable to agree with the Attorney General and I hold that the Initiative and Referendum Act case shows that limitations can be implied in an amending power. Mr. Seervai seeks to distinguish this case on another ground. According to him, these observations were obiter dicta, but even if they are treated as companysidered obiter dicta, they add numberhing to the principles governing delegated legislation, for this passage merely repeats what had been laid down as far back as 1878 in The Queen v. Burah 5 I.A. 178 1878 3 A.C. 889 904 905, where the Privy Council in a classical passage, observed But their Lordships are of opinion that the doctrine of the majority of the Court is erroneous, and that it rests upon a mistaken view of the powers of the Indian Legislature, and indeed of the nature and principles of legislation. The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of companyrse, do numberhing beyond the limits which circumscribe these powers. But when acting within those limits, it is number in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself. The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded must of necessity determine that question and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates numberexpress companydition or restriction by which that power is limited in which category would of companyrse be included any Act of the Imperial Parliament at variance with it , it is number for any Court of Justice to inquire further or to enlarge companystructively those companyditions and restrictions. Mr. Seervai further says that having laid down the law as set out above, the Privy Council added Their Lordships agree that the Governor-General in Council companyld number, by any form of enactment create in India, and arm with general legislative authority, a new legislative power, number created or authorised by the Councils Act. We are unable to agree with him that the obiter dicta of the Judicial Committee deals with the same subject as Burahs 5 I.A. 178 case. Burahs case was number companycerned with the power to amend the Constitution but was companycerned only with legislation enacted by the Indian Legislature. This clearly appears from the passage just cited from Lefroy. The Governor-General in Council had numberpower to amend the Government of India Act, under which it functioned. Reference was also made to the observations of one of us in Delhi Municipality v. C. W. Mills A.I.R. 1968 S.C. 1232 at p. 1266 where I had observed as follows Apart from authority, in my view Parliament has full power to delegate legislative authority to subordinate bodies. This power flows, in my judgment, from Article 246 of the Constitution. The word exclusive means exclusive of any other legislation and number exclusive of any subordinate body. There is, however, one restriction in this respect and that is also companytained in Article 246. Parliament must pass a law in respect of an item or items of the relevant list. Negatively this means that Parliament cannot abdicate its functions. Reference was also invited to another passage where I had observed The case of 1919 AC 935 provides an instance of abdication of functions by a legislature. No inference can be drawn from this case that delegations of the type with which we are companycerned amount to abdication of functions. It is clear these observations are companytrary to many decisions of this Court and, as I said, I made these observations apart from authority. But neither this Court number the Judicial Committee in Queen v. Burah 5 I.A. 178 1878 3 A.C. 889 were companycerned with an amending power, and the importance of the obiter observations of the Privy Council lies in the fact that even in exercise of its amending power the legislature companyld number create and endow with its own capacity a new legislative power number created by the Act to which it owes its own existence, and the fact that in Canada the doctrine of limited delegated legislation does number prevail as it does in India. It has been urged before us that in fact there has been numberdelegation of the amending powers to the State legislatures by Article 31C and what has been done is that Article 31C lifts the ban imposed by Part III from certain laws. I am unable to appreciate this idea of the lifting of the ban. Fundamental rights remain as part of the Constitution and on the face of them they guarantee to every citizen these fundamental rights. But as soon as the State legislates under Article 31C and the law abrogates or takes away these Constitutional rights, these fundamental rights cease to have any effect. The amendment is then made number by Parliament as the extent of the amendment is number known till the State legislates. It is when the State legislates that the extent of the abrogation or abridgement of the fundamental rights becomes clear. To all intents and purposes it seems to me that it is State legislation that effects an amendment of the Constitution. If it be assumed that Article 31C does number enable the States to amend the Constitution then Article 31C would be ineffective because the law which in effect abridges or takes away the fundamental rights would have been passed number in the form required by Article 368, i.e. by 2/3rd of the majority of Parliament but by another body which is number recognised in Article 368 and would be void on that ground. The learned Solicitor General, relying on Mohamed Samsudeen Kariapper v. S.S. Wijesinha 1968 A.C. 717 743 urged that there can be implied amendment of the Constitution and Article 31C may be read as an implied amendment of Article 368. What the Judicial Committee decided in this case was that a bill having received a certificate in the hands of the Speaker that the number of votes cast in favour thereof in the House of Representatives amounted to numberlass than two-thirds of the whole number of Members of the House in effect amounted to a bill for the amendment or repeal of any of the provisions of the order, and the words amendment or repeal included implied amendment. Menzies, J., speaking for the Judicial Committee, observed Apart from the proviso to Sub-section 4 therefore the board has found numberreason for number companystruing the words amend or repeal in the earlier part of Section 29 4 as extending to amendment or repeal by inconsistent law A bill which, if it becomes an Act, does amend or repeal some provision of the order is a bill for the amendment or repeal of a provision of the order. Later, he observed The bill which became the Act was a bill for an amendment of Section 24 of the Constitution simply because its terms were inconsistent with that section. It is the operation that the bill will have upon becoming law which gives it its Constitutional character, number any particular label which may be given to it. A bill described as one for the amendment of the Constitution, which companytained numberoperative provision to amend the Constitution would number require the prescribed formalities to become a valid law whereas a bill which upon its passing into law would, if valid, alter the Constitution would number be valid without companypliance with those formalities. We are number here companycerned with the question which was raised before the Judicial Committee because numberone has denied that Article 31C is an amendment of the Constitution. The only question we are companycerned with is whether Article 31C can be read to be an implied amendment of Article 368, and if so read, is it valid, i.e., within the powers of Parliament to amend Article 368 itself. It seems to me that Article 31C cannot be read to be an implied amendment of Article 368 because it opens with the words numberwithstanding anything companytained in Article 13 and Article 31C does number say that numberwithstanding anything companytained in Article 368. What Article 31C does is that it empowers legislatures, subject to the companydition laid down in Article 31C itself, to take away or abridge rights companyferred by Articles 14, 19 and 31. At any rate, if it is deemed to be an amendment of Article 368, it is beyond the powers companyferred by Article 368 itself. Article 368 does number enable Parliament to companystitute another legislature to amend the Constitution, in its exercise of the power to amend Article 368 itself. For the aforesaid reasons I hold that Section 3 of the Constitution Twenty-fifth Amendment Act 1971 is void as it delegates power to legislatures to amend the Constitution. PART-VII.-Twenty-Ninth Amendment The Constitution Twenty-Ninth Amendment reads Amendment of Ninth Schedule In the Ninth Schedule to the Constitution after entry 64 and before the Explanation, the following entries shall be inserted, namely The Kerala Land Reforms Amendment Act, 1969 Kerala Act 35 of 1969 . The Kerala Land Reforms Amendment Act, 1971 Kerala Act 25 of 1971 . The effect of the insertion of the two Kerala Acts in the Ninth Schedule is that the provisions of Article 31-B get attracted. Article 31-B which was inserted by Section 5 of the Constitution First Amendment Act, 1951, reads Insertion of new Article 31B. After Article 31A of the Constitution as inserted by Section 4, the following article shall be inserted, namaly 31B. Validation of certain Acts and Regulations Without prejudice to the generality of the provisions companytained in Article 31A, numbere of the Acts and Regulations specified in the Ninth Schedule number 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 companyferred by, any provisions of this Part, and numberwithstanding any judgment, decree or order of any companyrt or tribunal to the companytrary, each of the said Acts and Regulations shall, subject to the power of any companypetent Legislature to repeal or amend it companytinue in force. The First Amendment had also inserted Article 3-A and the Niath Schedule including 13 State enactments dealing with agrarian, reforms. Before dealing with the points debated before us, it is necessary to mention that a new Article 31-A was substituted by the Constitution Fourth Amendment Act, 1955, for the original article with retrospective effect. The new article companytained original Article 31A 1 as Clause a and added Clauses b to e and also changed the nature of the protective umbrella. The relevant part of Article 31A 1 as substituted has already been set out. Under Article 31-A as inserted by the First Amendment a law was protected even if it was inconsistent with or took away or abridged any rights companyferred by any provisions of Part III. Under the Fourth Amendment the protective umbrella extended to only Article 14, Article 19 or Article 31. The Seventeenth Amendment further amended the definition of the word estate in Article 31A. It also added seven Acts to the Ninth Schedule. The argument of Mr. Palkhivala, on this part of the case, was two fold. First, he companytended, that Article 31B, as originally inserted, had intimate relations with agrarian reforms, because at that stage Article 31-A dealt only with agrarian reforms. The words without prejudice to the generality of the provisions companytained in Article 31A, according to him, pointed to this companynection. He, in effect, said that Article 31-B having this original meaning did number change the meaning or its scope when a new Article 31-A companytaining Clauses b to e were included. I am unable to accede to these companytentions. The ambit of Article 31-B has been determined by this Court in three decisions. In State of Bihar v. Maharajadhiraja Sir Kameshwar Singh 1952 S.C.R. 889 914-15, Patnjali Sastri, C.J., rejected the limited meaning suggested above by Somayya, and observed There is numberhing in Article 31-B to indicate that the specific mention of certain statutes was only intended to illustrate the application of the general words of Article 31-A. The opening words of Article 31-B are only intended to make clear that Article 31-A should number be restricted in its application by reason of anything companytained in Article 31-B and are in numberway calculated to restrict the application of the latter article or of the enactments referred to therein to acquisition of estates. He held that the decision in Sibnath Banerjis 1945 F.C.R. 195 case afforded numberuseful analogy. In Visweshwar Rao v. State of Madhya Pradesh 1952 S.C.R. 1020-1037. Mahajan, J., repelled the argument in these words In my opinion the observations in Sibnath Banerjis case far from supporting the companytention raised negatives it. Article 31-B specifically validates certain acts mentioned in the Schedule despite the provisions of Article 31-A and is number illustrative of Article 31-A. but stands independent of it. In H.B. Jeejeebhoy v. Assistant Collector, Thana 1965 1 S.C.R. 636-648, to which decision I was a party, Subha Rao, C.J., observed that Article 31-B is number governed by Article 31-A and that Article 31-B is a Constitutional device to place the specified statutes beyond any attack on the ground that they infringe Part III of the Constitution. I may mention that the validity of the device was number questioned before the Court then. But even though I do number accept the companytention that Article 31-B can be limited by what is companytained in Article 31-A, the question arises whether the Twenty-Ninth Amendment is valid. I have held that Article 368 does number enable Parliament to abrogate or take away fundamental rights. If this is so, it does number enable Parliament to do this by any means, including the device of Article 31-B and the Ninth Schedule. This device of Article 31-B and the Ninth Schedule is bad insofar as it protects statutes even if they take away fundamental rights. Therefore, it is necessary to declare that the Twenty-Ninth Amendment is ineffective to protect the impugned Acts if they take away fundamental rights. In this companynection I may deal with the argument that the device of Article 31B and the Ninth Schedule has uptill number been upheld by this Court and it is number too late to impeach it. But the point number raised before us has never been raised and debated before. As Lord Atkin observed in Proprietary Articles Trade Association v. Attorney-General for Canada 1931 A.C. 310 317. Their Lordships entertain numberdoubt that time alone will number validate an Act which when challenged is found to be ultra vires number will a history of a gradual series of advances till this boundary is finally crossed avail to protect the ultimate encroachment. If any further authority is needed, I may refer to Attorney-General for Australia v. The Queen and the Boilermakers Society of Australia 1957 A.C. 288 323. The Judicial Committee, while companysidering the questionwhether certain sections of the Conciliation and Arbitration Act, 1904 1952 were ultra vires inasmuch as the Commonwealth Court of Conciliation and Arbitration had been invested with the executive powers alongwith the judicial powers, referred to the point why for a quarter of century numberlitigant had attacked the validity of this obviously illegitimate union, and observed Whatever the reason may be, just as there was a patent invalidity in the original Act which for a number of years went unchallenged, so far a greater number of years an invalidity which to their Lordships as to the majority of the High Court has been companyvincingly demonstrated, has been disregarded. Such clear companyviction must find expression in the appropriate judgment. We had decided number to deal with the merits of individual cases and accordingly Counsel had number addressed any arguments on the impugned Acts passed by the Kerala State Legislature. It would be for the Constitution Bench to decide whether the impugned Acts take away fundamental rights. If they do, they will have to be struck down. If they only abridge fundamental rights, it would be for the Constitution Bench to determine whether they are reasonable abridgements essential in the public interest. Broadly speaking, Constitutional amendments hitherto made in, Article 19 and Article 15 and, the agrarian laws enacted by various States furnish illustrations of reasonable abridgement of fundamental rights in the public interest. It was said during the arguments that one object of Article 31-B was to prevent timecompanysuming litigation, which held up implementation of urgent reforms. If a petition is filed in the High Court or a suit is filed in a subordinate companyrt or a point raised before a magistrate, challenging the validity of an enactment it takes years before the validity of an enactment is finally determined. Surely, this is number a good reason to deprive persons of their fundamental rights. There are other ways available to the Government to expedite the decision. It may for example propose ordinary legislation to enable parties to approach the Supreme Court for transfer of such cases to the Supreme Court for determination of substantial questions of interpretation of the Constitution. PART VIII Conclusions To summarise, I hold that Golak Naths 1967 2 S.C.R. 762 case declared that a Constitutional amendment would be bad if it infringed Article 13 2 , as this applied number only to ordinary legislation but also to an amendment of the Constitution. Golak Naths 1967 2 S.C.R. 762 case did number decide whether Article 13 2 can be amended under Article 368 or determine the exact meaning of the expression amendment of this Constitution in Article 368. The expression amendment of this Constitution does number enable Parliament to abrogate or take away, fundamental rights or to companypletely change the fundamental features of the Constitution so as to destroy its identity. Within these limits Parliament can amend every article. The Constitution Twenty-fourth Amendment Act, 1971, as interpreted by me, has been validly enacted. Article 368 does number enable Parliament in its companystituent capacity to delegate its function of amending the Constitution to another legislature or to itself in its ordinary legislative capacity. Section 2 of the Constitution Twenty-fifth Amendment Act, 1971, as interpreted by me, is valid. Section 3 of the Constitution Twenty-fifth Amendment Act, 1971 is void as it delegates power to legislatures to amend the Constitution. The Constitution Twenty-Ninth Amendment Act, 1971 is ineffective to protect the impugned Acts if they abrogate or take away fundamental rights. The Constitution Bench will decide whether the impugned Acts take away fundamental rights or only abridge them, and in the latter case whether they effect reasonable abridgements in the public interest. The Constitution Bench will determine the validity of the Constitution Twentysixth Amendment Act, 1971 in accordance with this judgment, and the law. The cases are remitted to the Constitution Bench to be decided in accordance with this judgment, and the law. The parties will bear their own companyts. Shelat and Grover, JJ. All the six writ petitions involve companymon questions as to the validity of the 24th, 25th and 29th amendments to the Constitution. It is number necessary to set out the facts which have already been succinctly stated in the judgment of the learned Chief Justice. It was companysidered, when the larger bench was companystituted, that the decision of the questions before us would hinge largely on the companyrectness or otherwise of the decision of this companyrt in I.C. Golak Nath and Ors. v. State of Punjab and Anr. 1967 2 S.C.R. 762, according to which it was held, by majority, that Article 13 2 of the Constitution was applicable to Constitutional amendments made under Article 368 and that for that reason the fundamental rights in Part III companyld number be abriged in any manner or taken away. The decision in Golak Nath has become academic, for even on the assumption that the majority decision in that case was number companyrect, the result on the questions number raised before us, in our opinion, would just be the same. The issues that have been raised travel far beyond that decision and the main question to be determined number is the scope, ambit and extent of the amending power companyferred by Article 368. On that will depend largely the decision of the other matters arising out of the 25th and the 29th amendments. The respective positions adopted by learned Counsel for the parties diverge widely and are irreconcilable. On the side of the petitioners, it is maintained inter alia that the power of the amending body Parliament under Article 368 is of a limited nature. The Constitution gave the Indian citizens the basic freedoms and a polity or a form of government which were meant to be lasting and permanent. Therefore, the amending power does number extend to alteration or destruction of all or any of the essential features, basic elements and fundamental principles of the Constitution which power, it is said, vests in the Indian people alone who gave the Constitution to themselves, as is stated in its Preamble. The respondents, on the other hand, claim an unlimited power for the amending body. It is claimed that it has the full companystituent power which a legal sovereign can exercise provided the companyditions laid down in Article 368 are satisfied. The companytent and amplitude of the power is so wide that, if it is so desired, all rights companytained in Part III Fundamental Rights such as freedom of speech and expression the freedom to form associations or unions and the various other freedoms guaranteed by Article 19 1 as also the right to freedom of religion as companytained in Articles 25 to 28 together with the protection of interests of minorities to mention the most prominent ones can be abrogated and taken away. Similarly, Article 32 which companyfers the right to move this Court, if any fundamental right is breached, can be repealed or abrogated. The directive principles in Part IV can be altered drastically or even abrogated. It is claimed that democracy can be replaced by any other form of government which may be wholly undemocratic, the federal structure can be replaced by a unitary system by abolishing all the States and the right of judicial review can be companypletely taken away. Even the Preamble which declares that the People of India gave to themselves the Constitution, to companystitute India into a Sovereign Democratic Republic for securing the great objectives mentioned therein can be amended indeed it can be companypletely repealed. Thus, according to the respondents, short of total abrogation or repeal of the Constitution, the amending body is omnipotent under Article 368 and the Constitution can, at any point of time, be amended by way of variation, addition or repeal so long as numbervacuum is left in the governance of the companyntry. These petitions which have been argued for a very long time raise momentus issues of great Constitutional importance. Our Constitution is unique, apart from being the longest in the world. It is meant for the second largest population with diverse people speaking different languages and professing varying religions. It was chiselled and shaped by great political leaders and legal luminaries, most of whom, had taken an active part in the struggle for freedom from the British yoke and who knew what domination of a foreign rule meant in the way of deprivation of basic freedoms and from the point of view of exploitation of the millions of Indians. The Constitution is an organic document which must grow and it must take stock of the vast socioeconomic problems, particularly, of improving the lot of the companymon man companysistent with his dignity and the unity of the nation. We may observe at the threshold that we do number propose to examine the matters raised before us on the assumption that Parliament will exercise the power in the way claimed on behalf of the respondents number did the latter companytend that it will be so done. But while interpreting Constitutional provisions it is necessary to determine their width or reach in fact the area of operation of the power, its minimum and maximum dimensions cannot be demarcated or determined without fully examining the rival claims. Unless that is done, the ambit, companytent, scope and extent of the amending power cannot be properly and companyrectly decided. For our purposes it is number necessary to go prior to the year 1934. It was in that year that the Indian National Congress made the demand for a Constituent Assembly as part of its policy. This demand was repeated in the Central Legislative Assembly in 1937 by the represetatives of the Congress. By what is known as the Simla Conference 1945 the Congress repeated its stand that India companyld only accept the Constitution drawn by the people. After the end of World War II the demand was put forward very strongly by the Indian leaders including Mahatma Gandhi. Sir Stratford Cripps representing Britain had also accepted the idea that an elected body of Indians should frame the Indian Constitution. The facts have been taken mainly from the Indian Constitution, Cornerstone of a Nation, by Granville Austin . In September 1945 the newly elected British Labour Government announced that it favoured the creation of a companystituent body in India. Elections were to be held so that the newly elected provincial legislatures companyld act as electoral bodies for the Constituent Assembly. A parliamentary delegation was sent to India in January 1946 and this was followed by what is known as the Cabinet Mission. There were a great deal of difficulties owing to the differences between the approach of the Indian National Congress and the Muslim League led by Mr. M.A. Jinnah. The Cabinet Mission devised a plan which was announced on May 16, 1946. By the end of June, both the Muslim League and the Congress had accepted it with reservations. The Constituent Assembly was elected between July-August 1946 as a result of the suggestion companytained in the statement of the Cabinet Mission. The Attlee Governments efforts to effect an agreement between the Congress and the Muslim League having failed, the partition of the companyntry came as a companysequence of the declaration of the British Government on June 3, 1947. As a mult of that declaration certain changes took place in the Constituent Assembly. There was also readjustment of representation of Indian States from time to time between December 1946 and November 1949. Many Smaller States merged into the provinces, many united to from union of States and some came to be administered as companymissioners provinces. There was thus a gradual process by which the Constituent Assembly became fully representative of the various companymunities and interests, political, intellectual, social and cultural. It was by virtue of Section 8 of the Indian Independence Act 1947 that the Constituent Assembly was vested with the legal authority to frame a Constitution for India. The first meeting of the Constituent Assembly took place on December 9, 1946 when the swearing in of members and election of a temporary president to companyduct the business until the installation of a permanent head, took place. On December 13, 1946 Pandit Jawahar Lal Nehru moved the famous Objectives Resolution giving an outline, aims and objects of the Constitution. This resolution was actually passed on January 22, 1947 by all members of the Constituent Assembly standing and it declared among other matters that all power and authority of the sovereign Independent India, its companystituent parts and organs of Government are derived from the people. By November 26, 1949 the deliberations of the Constituent Assembly had companycluded and the Constitution had been framed. As recited in the Preamble it was on that date that the people of India in the Constituent Assembly adopted, enacted and gave to themselves this Constitution which according to Article 393 was to be called The Constitution of India. In accordance with Article 394 that Article and the other Articles mentioned therein were to companye into force at once but the remaining provisions of the Constitution were to companye into force on the 26th day of January 1950. Before the scheme of the Constitution is examined in some detail it is necessary to give the pattern which was followed in framing it. The Constituent Assembly was unfettered by any previous companymitment in evolving a Constitutional pattern suitable to the genius and requirements of the Indian people as a whole. The Assembly had before it the experience of the working of the Government of India Act 1935, several features of which companyld be accepted for the new Constitution. Our Constitution borrowed a great deal from the Constitutions of other companyntries, e.g. United Kingdom, Canada, Australia, Ireland, United States of America and Switzerland. The Constitution being supreme all the organs and bodies owe their existence to it. None can claim superiority over the other and each of them has to function within the four-corners of the Constitutional provisions. The Preamble embodies the great purposes, objectives and the policy underlying its provisions apart from the basic character of the State which was to companye into existence i.e. a Sovereign Democratic Republic. Parts III and IV which embody the fundamental rights and directive principles of state policy have been described as the companyscience of the Constitution The Indian Constitution by Granville Austin p. 50 The legislative power distributed between the Union Parliament and the State Legislatures cannot be so exercised as take away or abridge the fundamental rights companytained in Part III. Powers of the Union and the States are further curtailed by companyferring the right to enforce fundamental rights companytained in Part III by moving the Supreme Court for a suitable relief See generally, Kania C.J. in A.K. Gopalan v. The State 1950 S.C.R. 88 at pp. 96-97, Article 32 itself has been companystituted a fundamental right. Part IV companytaining the directive principles of State policy was inspired largely by similar provisions in the Constitution of the Eire Republic 1937 . This Part, according to B.N. Rao is like an Instrument of Instructions from the ultimate sovereign, namely, the people of India B.N. Rao, Indias Constitution in the Making p. 393 . The Constitution has all the essential elements of a federal structure as was the case in the Government of India Act 1935, the essence of federalism being the distribution of powers between the federation or the Union and the States or, the provinces. All the legislatures have plenary powers but these are companytrolled by the basic companycepts of the Constitution itself and they function within the limits laid down in it Per Gajendragadkar C.J. in Special Reference No. 1 of 1964, 1965 1 S.C.R. 413 at p. 445. All the functionaries, be they legislators, members of the executive or the judiciary take oath of allegiance to the Constitution and derive their authority and jurisdiction from its provisions. The Constitution has entrusted to the judicature in this companyntry the task of companystruing the provisions of the Constitution and of safeguarding the fundamental rights Ibid p. 446. It is a written and companytrolled Constitution. It can be amended only to the extent of and in accordance with the provisions companytained therein, the principal provision being Article 368. Although our Constitution is federal in its structure it provides a system modelled on the British parliamentary system. It its the executive that has the main responsibility for formulating the governmental policy by transmitring it into law whenever necessary. The executive function companyprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State. R.S. Ram Jaway a Kapur and Ors. v. The State of Punjab 1955 2 S.C.R. 225 at p. 236. With regard to the civil services and the position of the judiciary the British model has been adopted inasmuch as the appointment of judges both of the Supreme Court of India and of the High Courts of the States is kept free from political companytroversies. Their independence has been assured. But the doctrine of parliamentary sovereignty as it obtains in England does number prevail here except to the extent provided by the Constitution. The entire scheme of the Constitution is such that it ensures the sovereignty and integrity of the companyntry as a Republic and the democratic way of life by parliamentary institutions based on free and fair elections. India is a secular State in which there is numberState religion. Special provisions have been made in the Constitution guaranteeing the freedom of companyscience and free profession, practice and propagation of religion and the freedom to manage religious affairs as also the protection of interests of minorities. The interests of scheduled castes and the scheduled tribes have received special treatment. The Rule of Law has been ensured by providing for judicial review. Adult suffrage, the acceptance of the fullest implications of democracy is one of the most striking features of the Constitution. According to K.M. Pannikar, it may well be claimed that the Constitution is a solemn promise to the people of India that the legislature will do everything possible to renovate and reconstitute the society on new principles Hindu Society at crossroads By K.M. Pannikar at pages 63-64 . We may number look at the Preamble. It reads We, THE PEOPLE OF INDIA, having solemnly resolved to companystitute India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure to all its citizens JUSTICE, social, economic 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 the Nation IN OUR CONSTITUENT ASSEBMLY this twenty-sixth day of November 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. It may be mentioned that this Preamble and indeed the whole Constitution was drafted in the light of and directions companytained in the OBJECTIVES RESOLUTION adopted on January 22, 1947. According to Granville Austin Cornerstone of a nation Indian Constitution by Granville Austin, p. 75 , directive principles of State policy set forth the humanitarian socialist precepts that were the aims of the Indian social revolution. Granville Austin, while summing up the interrelationship of fundamental rights and directive principles, says that it is quite evident that the fundamental rights and the directive principles were designed by the members of the Assembly to be the chief instruments in bringing about the great reforms of the social revolution. He gives the answer to the question whether they have helped to bring the Indian society closer to the Constitutions goal of social, economic and political justice for all in the affirmative Indian Constitution Cornerstone of a nation by Granville Austin p. 113 . Das C.J. in Re Kerala Education Bill 1957 1959 S.C.R. 995 at p. 1020 made the following observations with regard to Parts III and IV While our Fundamental Rights are guaranteed by Part III of the Constitution, Part IV of it on the other hand, lays down certain directive principles of State policy. The provisions companytained in that Part are number enforceable by any companyrt but the principles therein laid down are, nevertheless, fundamental in the governance of the companyntry and it shall be the duty of the State to apply these principles in making laws. Article 39 enjoins the State to direct its policy towards securing, amongst other things, that the citizens, men and women, equally, have the right to an adequate means of livelihood. Although in the previous decisions of this Court in State of Madras v. Smt. Champdkam Dorairajan 1951 S.C.R. 525 at p. 531 and Mohd. Hanif Qureshi and Ors. v. The State of Bihar 1959 S.C.R. 629 it had been held that the directive principles of State policy had to companyform to and run subsidiary to the Chapter of Fundamental Rights, the learned Chief Justice was of the view which may be stated in his own words Nevertheless in determining the scope and ambit of the fundamental rights relied on by or on behalf of any person or body the companyrt may number entirely ignore these directive principles of State policy laid down in Part IV of the Constitution but should adopt the principle of harmonious companystruction and should attempt to give effect to both as much as possible. The first question of prime importance involves the validity of the Constitution Amendment Act 1971 hereinafter called the 24th Amendment . It amended Article 368 of the Constitution for the first time. According to the Statement of Objects and Reasons in the Bill relating to the 24th amendment, the result of the judgment of this Court in Golak Naths 1967 2 S.C.R. 762 case has been that Parliament is companysidered to have numberpower to take away or curtail any of the fundamental rights guaranteed by Part III of the Constitution even if it becomes necessary to do so for giving effect tot the Directive Principles of State Policy and for attainment of the Objectives set out in the Preamble to the Constitution. It became, therefore, necessary to provide expressly that Parliament has the power to amend any provision of the Constitution including the provisions companytained in Part III. Article 368 is in a separate Part i.e. Part XX. Its marginal numbere before the 24th Amendment was Procedure for amendment of the Constitution. It provided in the substantive portion of the Article how the Constitution shall stand amended when An Amendment of this Constitution was initiated by the introduction of a Bill in either House of Parliament. The following companyditions had to be satisfied The Bill had to be passed in each House by a majority of the total membership of that House and by a majority of number less than two-thirds of the members of that House present and voting. The Bill had to be presented for the assent of the President and his assent had to be obtained. Under the proviso, it was necessary to obtain ratification of legislatures of number less than one half of the States by Resolutions before presenting the Bill to the President for assent if the amendment sought to make any change in the Articles, Chapters etc. mentioned in Clauses a to e Clause e was the provisions of this Article. The 24th Amendment made the following changes The marginal heading has been substituted by Power of Parliament to amend the Constitution and procedure there-for. Article 368 has been re-numbered as Clause 2 . Before Clause 2 , the following clause has been inserted Notwithstanding anything in this Constitution, Parliament may in exercise of the Constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article. In Clause 2 as renumbered, for the words it shall be presented to President for his assent and upon such assent being given to the Bill the words it shall be presented to the President who shall give his assent to the Bill and thereupon have been substituted. A new Clause 3 has been inserted, namely Nothing in Article 13 shall apply to any amendment made under this article. It may be mentioned that by the 24th amendment Clause 4 has been inserted in Article 13 itself. It is Nothing in this Article shall apply to any amendment of this Constitution made under Article 368. On behalf of the petitioners, Mr. Palkhivala stated that he need number for the purposes of this case dispute the 24th Amendment in so far as it leads to the following results The insertion of the express provision in Article 368 that the source of the amending power is the Article itself. The President is bound to give assent to any Bill duly passed under that Article. The following three results have, however, been the subject of great deal of argument The substitution of the words in Article 368 amend by way of addition, variation or repeal in place of the companycept amendment. Making it explicit in the said Article that when Parliament makes a Constitutional amendment under the Article it acts in exercise of its companystituent power. The express provision in Article 13 and 368 that the bar in the former Article against abridging or taking away any of the fundamental rights should number apply to an amendment made under the latter Article. In the judgment of Chief Justice Subba Rao with whom four learned judges agreed in GolaK Naths case the source of the amending power was held to reside in Article 248 read with entry 97 of List I to the Seventh Schedule. Whether that view is sustainable or number need number be companysidered here number owing to the companycession made by Mr. Palkhivala that by amendment of Article 368 such a power companyld be validly located in that Article even if it be assumed that it did number originally reside there. The real attack, therefore, is directed against the validity of the 24th Amendment in so far as the three results mentioned above are companycerned. It has been maintained that if the effect of those results is that the Parliament has clothed itself with legal sovereignty which the People of India alone possess, by taking the full companystituent power, and if the Parliament can in exercise of that power alter or destroy all or any of the essential features of the Constitution, the 24th Amendment will be void. The fundamental rights embodied in Part III are a part of the essential features and if their essence or companye can be damaged or taken away, the 24th amendment will be void and illegal. The position taken up on behalf of the respondents is that so far as Article 368 is companycerned, the 24th Amendment has merely clarified the doubts cast in the majority judgment in Golak Nath. That Article, as it originally stood, companytained the companystituent power by virtue of which all or any of the provisions of the Constitution including the Preamble companyld be added to, varied or repealed. In other words, the power of amendment was unlimited and unfettered and was number circumscribed by any such limitations as have been suggested on behalf of the petitioners. Therefore, the crux of the matter is the determination of the true ambit, scope and width of the amending provisions companytained in Article 368 before the changes and alterations made in it by the 24th Amendment. If the Article companyferred the power of the amplitude number companyered by the 24th Amendment numberhing new has been done and the amendment cannot be challenged. If, however, the original power though having the companystituent quality was a limited one, it companyld number be increased. In other words the amending body cannot enlarge its own powers. What then is the meaning of the word amendment as used in Article 368 of the Constitution. On behalf of the respondents it has been maintained that amendment of this Constitution can have only one meaning. No question, can arise of resorting to other aids in the matter of interpretation or companystruction of the expression amendment. On the other hand, the argument of Mr. Palkhivala revolves on the expression amendment which can have more than one meaning and for that reason it is essential to discover its true import as well as ambit by looking at and taking into companysideration other permissible aids of companystruction. No efforts have been spared on both sides to give us all the meanings of the words amendment and amend from the various dictionaries as also authoritative books and opinions of authors and writers. It is more proper, however, to look for the true meaning of the word amendment in the Constitution itself rather than in the dictionaries. Let us first analyse the scheme of Article 368 itself as it stood before the 24th Amendment. The expression amendment of the Constitution is number defined or explained in any manner although in other Parts of the Constitution the word amend as will be numbericed later has been expanded by use of the expression amend by way of addition, variation or repeal. The power in respect of amendment has number been companyferred in express terms. It can be spelt out only by necessary implication. The proviso uses the words if such amendment seeks to make any change in. It does number use the words change of or change simpliciter. The provisions of the Constitution mentioned in the proviso do number show that the basic structure of the Constitution can be changed if the procedure laid down therein is followed. For instance, Clause a in the proviso refers to Articles 54 and 55 which relate to the election of the President. It is numbereworthy that Article 52 which provides that there shall be a President of India and Article 53 which vests the power of the Union in the President and provides how it shall be exercised are number included in Clause a . It is incomprehensible that the Constitution makers intended that although the ratification of the legislatures of the requisite number of States should be obtained if any changes were to be made in Articles 54 and 55 but that numbersuch ratification was necessary if the office of the President was to be abolished and the executive power of the Union was to be exercised by some other person or authority. Another Article which is mentioned in Clause a is Article 73 which deals with the extent of the executive power of the Union. So far as the Vice-President is companycerned there is numbermention of the relevant Articles relating to him. In other words the States have been given numbervoice in the question whether the office of the Vice-President shall be companytinued or abolished or what the method of his election would be. The next Article mentioned in Clause a is 162 which deals with the extent of the executive power of the States. The Articles relating to the appointment and companyditions of service of a Governor, Constitution and functions of his companyncil of ministers as also the companyduct of business are number mentioned in Clause a or any other part of the proviso. Along with Articles 54, 55, 73 and 162. Article 241 is mentioned in Clause a of the proviso. This Article dealt originally only with the High Courts for States in Part C of the First Schedule. Chapter IV of Part V of the Constitution deals with the Union Judiciary and Chapter V of Part VI with the High Courts in the States. Although these have been included in Clause b of the proviso it is surprising that Chapter VI of Part VI which relates to Subordinate Judiciary is number mentioned at all, which is the immediate companycern of the States. Chapter I of Part XI which deals with legislative relations between the Union and the States is included in Clause b of the proviso but Chapter II of that Part which deals with Administrative Relations between the Union and the States and various other matters in which the States would be vitally interested are number included. The provisions in the Constitution relating to services under the State as also with regard to Trade and Commerce are number included in the proviso. Clause c of the proviso mentions the lists in the Seventh Schedule. Clause d relates to the representation of States in Parliament and Clause c to the provisions of Article 368 itself. The net result is that the provisions companytained in Clauses a and b of the proviso do number throw any light on the logic, sequence or systematic arrangement in respect of the inclusion of those Articles which deal with the whole of the federal structure. These clauses demonstrate that the reason for including certain Articles and excluding other from the proviso was number that all Articles dealing with the federal structure or the States had been selected for inclusion in the proviso. The other unusual result is that if the fundamental rights companytained in Part III have to be amended that can be done without companyplying with the provisions of the proviso. It is difficult to understand that the Constitution makers should number have thought of ratification by the States if such important and material rights were to be abrogated or taken away wholly or partially. It is also interesting that in order to meet the difficulty created by the omission of Articles 52 and 53 which relate to there being a President in whom the executive functions of the Union would vest, the learned Solicitor General sought to read by implication the inclusion of those Articles because according to him, the question of election cannot arise with which Articles 54 and 55 are companycerned if the office of President is abolished. We may next refer to the use of the words amendment or amended in other articles of the Constitution. In some articles these words in the companytext have a wide meaning and in another companytext they have a narrow meaning. The group of articles which expressly companyfer power on the Parliament to amend are five including Article 368. The first is Article 4. It relates to laws made under Articles 2 and 3 to provide for amendment of the First and the Second Schedules and supplemental, incidental and companysequential matters. The second Article is 169 which provides for abolition or creation of Legislative Councils in States. The third and the fourth provisions are paras 7 and 21 of the 5th and 6th Schedules respectively which have to be read with Article 244 and which deal with the administration of Scheduled Areas and Tribal Areas. The expression used in Articles 4 and 169 is amendment. In paras 7 and 21 it is the expanded expression amend by way of addition, variation or repeal which has been employed. Parliament has been empowered to make these amendments by law and it has been expressly provided that numbersuch law shall be deemed to be an amendment of the Constitution for the purpose of Article 368. It is apparent that the word amendment has been used in a narrower sense in Article 4. The argument that if it be assumed that Parliament is invested with wide powers under Article 4 it may companyceivably exercise power to abolish the legislative and the judicial organs of the State altogether was refuted by this Court by saying that a State cannot be formed, admitted or set up by law under Article 4 by the Parliament which does number companyform to the democratic pattern envisaged by the Constitution Mangol Singh and Anr. v. Union of India 1967 2 S.C.R. 109 at p. 112. 88 at pp. 96-97. Similarly any law which companytains provisions for amendment of the Constitution for the purpose of abolition or creation of legislative companyncils in States is only companyfined to that purpose and the word amendment has necessarily been used in a narrow sense. But in Paras 7 and 21 the expanded expression is employed and indeed an attempt was made even in the Constituent Assembly for the insertion of a new clause before Clause 1 of draft Article 304 Present Article 368 . The amendment Constituent Assembly Debates Vol. 9, p. 1663 No. 3239 was proposed by Mr. H.V. Kamath and it was as follows Any provision of this Constitution may be amended, whether by way of variation, addition or repeal, in the manner provided in this article. Mr. Kamath had moved another amendment in draft Article 304 to substitute the words it shall upon presentation to the President receive his assent. Both these amendments were negatived by the Constituent Assembly Ibid. It is numbereworthy that the 24th amendment as number inserted has introduced substantially the same amendments which were number accepted by the Constituent Assembly. The Constituent Assembly, must be presumed to be fully aware of the expanded expression, as on September 17, 1949 it had substituted the following section in place of the old Section 291 of the Government of India Act 1935 by means of Constituent Assembly Act 4 of 1949 Power of the Governor General to amend certain provisions of the Act and order made thereunder.- The Governor General may at any time by Order make such amendments as he companysiders necessary whether by way of addition, modification, or repeal, emphasis supplied in the provisions of this Act or of any Order made thereunder in relation to any Provincial Legislature with respect to any of the following matters, that is to say,- a The word amendment has also been used in certain Articles like Article 107 dealing with legislative procedure and Article 111 which enables the President to send a message requesting the Houses to companysider the desirability of introducing amendments etc., Amendment as used in these Articles companyld only have a limited meaning as is apparent from the companytext. On behalf of the petitioners a great deal of reliance has been placed on the companytrast between the use of the word amendment in Article 4 and 169 and paras 7 and 21 of the 5th and 6th Schedules which use the companyposite expression amend by way of addition, variation or repeal. It is pointed out that in Article 368 it is only the word amendment which has been used and if the Constitution makers intended that it should have the expanded meaning then there was numberreason why the same phraseology would number have been employed as in paras 7 and 21 or as has been inserted number by the 24th amendment. The steps in this argument are The companytrast in the language employed in the different provisions of the Constitution in respect of amendment companyferment of the wider power for the purpose of the 5th and 6th Schedules which empower the Parliament to alter and repeal the provisions of those Schedules relating to the institutions companytemplated by them, the law making authority set up under them and the fundamental basis of administration to be found in the two Schedules. the wide language used in paras 7 and 21 of the two Schedules was meant for the purpose that at a proper time in the future or whenever companysidered necessary the entire basic structure of the Schedules companyld be repealed and the areas and tribes companyered by them companyld be governed and administered like the rest of India. the use of the word amendment simpliciter in Article 368 must have a narrower meaning than the companyposite expression amend or amendment by way of addition, variation or repeal and must companyrespond to the meaning of the word amend or amendment in Articles 4 and 169. The power of amending the Constitution is number companycentrated in Article 368 alone but it is diffused as it is to be found in the other Articles and provisions mentioned. The reason why it was added that numberlaw passed by the Parliament under those provisions shall be deemed to be an amendment of this Constitution for the purpose of Article 368 was only meant to clarify that the form and manner prescribed by Article 368 was number to be followed and the Parliament companyld, in the ordinary way, by following the procedure laid down for passing legislative enactments amend the Constitution to the extent mentioned in those Articles and provisions. The learned Advocate General of Maharashtra, who appears for respondent No. 1, has laid a great deal of emphasis on the fact that Article 368 is the only Article which is companytained in a separate Part having the title Amendment of the Constitution. It is under that article that all other provisions including Aricles 4, 169 and paras 7 and 21 of the 5th and 6th Schedules respectively can be amended. The latter group of articles companytain a limited power because those Articles are subordinate to Article 368. This is illustrated by the categorical statement companytained in each one of those provisions that numbersuch law amending the Constitution shall be deemed to be an amendment there of for the purpose of Article 368. As regards the companyposite expression amend by way of addition, variation or repeal employed in paras 7 and 21 of the two Schedules, it has been pointed out that Clause 2 , in which the words Amendment of this Constitution are used clearly shows that addition, variation or repeal of any provision would be companyered by the word amendment. According to the learned Attorney General the word amendment must mean, variation addition or repeal. He has traced the history behind paras 7 and 21 of Schedules 5 and 6 to illustrate that the expression amend by way of addition, variation or repeal has numbersuch significance and does number enlarge the meaning of the word amendment. Our attention has been invited to a number of Articles in the Constitution itself out of which mention may be made of Articles 320 5 and 392 1 where the expressions used were such modification, whether by way of repeal or amendment and such adoption whether by way of modification, addition or omission. It has been urged that the expression amendment of this Constitution has acquired substantive meaning over the years in the companytext of a written Constitution and it means that any part of the Constitution can be amended by changing the same either by variation, addition or repeal. Dr. B.R. Ambedkar who was number only the Chairman of the Drafting Committee but also the main architect of the Constitution made it clear Constituent Assembly Debates Vol. 9, page 1661 that the articles of the Constitution were divided into different categories the first category was the one which companysisted of articles which companyld be amended by the Parliament by a bare majority the second set of articles were such which required the two-third majority. This obviously had reference to the group of articles companysisting of Articles 4, 169 and paras 7 and 21 of the two Schedules and Article 368 respectively. The scheme of the amending provisions outlined by Dr. B.R. Ambedkar seems to indicate that the Constitution makers had in mind only one distinction between the amending power companyferred by the other Articles and Article 368. No such distinction was present to their mind of the nature suggested by the learned Advocate General that the amending power companyferred by Articles other than Article 368 was of a purely subordinate nature. In one sense the power companytained in the first group of Articles can be said to be subordinate in those Articles themselves companyld be amended by the procedure prescribed by Article 368. But that Article itself companyld be amended by the same procedure. It would number, therefore, be wrong to say that the amending power was of a diffused kind and was companytained in more than one provision of the Constitution. It appears that the statement in the articles and provisions companytaining the amending power other than Article 368 that any amendment made under those articles would number amount to an amendment under Article 368 merely embodied the distinction emphasised by Dr. R. Ambedkar that one category companyld be amended by the Parliament by a bare majority and all the other articles companyld be amended by the said body but only by following the form and manner prescribed by Article 368. Although prima facie it would appear that the Constitution makers did number employ the companyposite expression in Article 368 for certain reasons and even rejected Mr. Kamaths amendment which pointedly brought to their numberice that it was of material importance that the expanded expression should be used, it may number be possible to companysider this aspect as companyclusive for the purpose of determining the meaning of the word amendment in Article 368. According to Mr. Palkhivala there can be three possible meanings of amendment to improve or better to remove an error, the question of improvement being companysidered from the standpoint of the basic philosophy underlying the Constitution but subject to its essential features. to make changes which may number tall within i but which do number alter or destroy any of the basic features, essential elements or fundamental principles of the Constitution. to make any change whatsoever including changes falling outside ii . He claims that the preferable meaning is that which is companytained in i but what is stated in ii is also a possible companystruction. Category iii should be ruled out altogether. Category i and ii have a companymon factor, namely that the essential features cannot be damaged or destroyed. On behalf of the respondents it is number disputed that the words amendment of this Constitution do number mean repeal or abrogation of this Constitution. The amending power, however, is claimed on behalf of the respondents to extend to addition, alteration, substitution, modification, deletion of each and every provision of the Constitution. The argument of the Attorney General is that the amending power in Article 368 as it stood before the 24th amendment and as it stands number has always been and companytinues to be the companystituent power, e.g., the power to deconstitute or reconstitute the Constitution or any part of it. Constitution at any point of time cannot be so amended by way of variation, addition or repeal as to leave a vacuum in the government of the companyntry. The whole object and necessity of amending power is to enable the Constitution to companytinue and such a companystituent power, unless it is expressly limited in the Constitution itself, can by its very nature have numberlimit because if any such limit is assumed, although number expressly found in the Constitution, the whole purpose of an amending power will be nullified. It has been pointed out that in the Constitution First Amendment Act which was enacted soon after the Constitution of India came into force, certain provisions were inserted, others substituted or omitted and all these were described as amendments of the article mentioned therein. In the companytext of the Constitution, amendment reaches every provision including the Preamble and there is numberambiguity about it which may justify having resort to either looking at the other Articles for determining the ambit of the amendatory power or taking into companysideration the Preamble or the scheme of the Constitution or other permissible aids to companystruction. A good deal of reliance has been placed on behalf of the respondents on Article 5 of the Constitution of the United States hereinafter called the American Constitution which deals with amendment and its interpretation by the American companyrts. Reference has been made to the writings of authors and writers who have dealt with the meaning of the word amendment in the American Constitution. It has been argued that in Article 5 of that Constitution the word used is amendments and our Constitution makers had that word in mind when they employed the expression amendment of this Constitution in Article We propose to refer to the decision from other companyntries including those of the Supreme Court of the United States later. We wish to observe, at this stage, that our founding fathers had primarily the Constitutions of Canada, Australia, Eire, U.S.A. and Switzerland in view apart from that of Japan. The whole scheme and language of Article 368 is quite different from the amending provisions in Constitutions of those companyntries. For instance, in U.S.A., Eire, Australia, Switzerland and Japan the people are associated in some manner or the other directly with the amending process. It would be purely speculative or companyjectural to rely on the use of the word amend or amendment in the Constitution of another companyntry unless the entire scheme of the amending section or article is also kept in mind. In India Parliament is certainly representative of the people but so are similar institutions in the companyntries mentioned above and yet there is a provision for ratification by companyvention or referendum or submission of the proposed law to electors directly. Another way of discovering the meaning on which both sides relied on is to refer to the various speeches in the Constituent Assembly by the late Prime Minister Pandit Jawahar Lal Nehru and late Dr. B.R. Ambedkar the Chief Architects of the Constitution. The position which emerges from an examination of their speeches does number lead to any clear and companyclusive result. Their Speeches show that our Constitution was to be an amendable one and much rigidity was number intended. Pandit Nehru time and again emphasised that while the Constitution was meant to be as solid and as permanent a structure as it companyld be, nevertheless there was numberpermanence in the Constitution and there should be certain flexibility otherwise it would stop a nations growth. Dr. Ambedkar, while dealing with draft Article 25 companyresponding to the present Article 32, said that the most important Article without which the Constitution would be a nullity and which was the very soul of the Constitution and the heart of it was that Article. But what he said at a later stage appears to suggest that that article itself companyld be amended and according to the respondents even abrogated. This illustration shows that numberhing companyclusive can emerge by referring to the speeches for the purpose of interpretation of the word amendment. It is number possible to accept the argument on behalf of the respondents that amendment can have only one meaning. This word or expression has several meanings and we shall have to determine its true meaning as used in the companytext of Article 368 by taking assistance from the other permissible aids to companystruction. We shall certainly bear in mind the Well known principles of interpretation and companystruction, particularly, of an instrument like a Constitution. A Constitution is number to be companystrued in any narrow and pedantic sense. A broad and liberal spirit should inspire those whose duty it is to interpret it Gwyer C.J. In Re. C.P. Berar Sales of Motor Spirit Motor Lubricants Taxation Act 1938 1939 F.C.R. 18 adopted the words of Higgins J., of the High Court of Australia from the decision in Attorney General for New South Wales v. The Brewery Employees Union of New South Wales etc. 1908 6 C.L.R. 469 at pp. 611-612 according to which even though the words of a Constitution are to be interpreted on the same principles of interpretation as are applied to any ordinary law, these very principles of interpretation require taking into account the nature and scope of the Act remembering that it is a Constitution, a mechanism under which laws are to be made and number a mere Act which declares what the law is to be. 1939 F.C.R. 18, 37. The decision must depend on the words of the Constitution as provisions of numbertwo Constitutions are in identical terms. The same learned Chief Justice said that the grant of the power in general terms standing by itself would numberdoubt be companystrued in the wider sense, but it may be qualified by other express provisions in the same enactment, by the implication of the companytext, and even by companysiderations arising out of what appears to be the general scheme of the Act. ibid p. The observations of Lord Wright in fames v. Commonwealth of Australia 1936 C. 578 at p. 613 were also quoted in the aforesaid judgment of the Federal Court of India at page 73 The question, then, is one of companystruction and in the ultimate resort must be determined upon the actual words used read number in a vacuo but as occurring in a single companyplex instrument, in which one part may throw light on another. The Constitution has been described as the federal companypact, and the companystruction must hold a balance between all its parts. Apart from the historical background and the scheme of the Constitution the use of the Preamble has always been made and is permissible if the word amendment has more than one meaning. Lord Green in Bidis v. General Accident, Fire and Life Assurance Corporation 1948 2 All. E.R. 998 pointed out that the words should never be interpreted in vacuo because few words in the English language have a natural or ordinary meaning in the sense that they must be so read that their meaning is entirely independent of their companytext. The method which he preferred was number to take the particular words and attribute to them a sort of prima facie meaning which may have to be displaced or modified. To use his own words it is to read the statute as a whole and ask oneself the question. In this state, in this companytext, relating to this subject matter, what is the true meaning of that word? We shall first deal with the Preamble in our Constitution. The Constitution makers gave to the preamble the pride of place. It embodied in a solemn form all the ideals and aspirations for which the companyntry had struggled during the British regime and a Constitution was sought to be enacted in accordance with the genius of the Indian people. It certainly represented an amalgam of schemes and ideas adopted from the Constitutions of other companyntries. But the companystant strain which runs throughout each and every article of the Constitution is reflected in the Preamble which companyld and can be made sacrosanct. It is number without significance that the Preamble was passed only after draft articles of the Constitution had been adopted with such modifications as were approved by the Constituent Assembly. The preamble was, therefore, meant to embody in a very few and well defined words the key to the understanding of the Constitution. It would be instructive to advert to the various stages through which the Preamble passed before it was ultimately adopted by the Constituent Assembly. In the earlier draft of the Union Constitution the Preamble was a somewhat formal affair. The one drafted by N. Rau said We, the People of India, seeking to promote the companymon good, do hereby, throughout chosen representatives, enact, adopt and give to ourselves this Constitution. The Union Constitution Committee provisionally accepted the draft Preamble of B.N. Rau and reproduced it in its report of July 4, 1947 without any change with the tacit recognition, at that stage, that the Preamble would finally be based on the Objectives Resolution. On July 18, 1947, Pandit Nehru in a statement observed that the Preamble was companyered more or less by the Objectives Resolution which it was intended to incorporate in the final Constitution. Three days later, while moving the report of the Union Constitution Committee, he suggested that it was number at that stage necessary to companysider the Preamble since the Assembly stood by the basic principles laid down in the Objectives Resolution and these companyld be incorporated in the Preamble later. The suggestion was accepted and further companysideration of the Preamble was held over. The Drafting Committee companysidered the Preamble at a number of its meetings in February 1948. The Committee omitted that part of the Objectives Resolution which declared that the territories of India would retain the status of automonous units with residuary powers. By this time the opinion had veered round for a strong centre with residuary powers. The Drafting Committee felt that the Preamble should be restricted to defining the essential features of the new State and its basic socio-political objectives and that the other matters dealt with in the Resolution companyld be more appropriately provided in the substantial parts of the Constitution. Accordingly it drafted the Preamble, which substantially was in the present form. Meanwhile important developments had taken place in regard to the Indian States. With the companypletion of the process of merger and integration of the Indian States the principle had been accepted i of sovereign powers being vested in the people, and ii that their Constitutions should be framed by the Constituent Assembly and should form integrated part of the new Constitution. On October 12, 1949, Sardar Patel declared in the Assembly that the new Constitution was number an alliance between democracies and dynasties, but a real union of the Indian people, built on the basic companycept of the sovereignty of the people. The draft preamble was companysidered by the Assembly on October 17, 1949. The object of putting the Preamble last, the President of Assembly explained, was to see that it was in companyformity with the Constitution as accepted. Various amendments were at this stage suggested, but were rejected. One of such was the proposal to insert into it the words In the name of God. That was rejected on the ground that it was inconsistent with the freedom of faith which was number only promised in the Preamble itself but was also guaranteed as a fundamental right Constituent Assembly Debates Vol. 10, pp. 432-442 . An amendment was moved in the Constituent Assembly to make it clear beyond all doubt that sovereignty vested in the people. It was number accepted on the short ground that the Preamble as drafted companyld companyvey numberother meaning than that the Constitution emanated from the people and sovereignty to make this Constitution vested in them The Framing of Indias Constitution by B. Shiva Rao, p. 131 The history of the drafting and the ultimate adoption of the Preamble shows 1 that it did number walk before the Constitution as is said about the preamble to the United States Constitution 2 that it was adopted last as a part of the Constitution 3 that the principles embodied in it were taken mainly from the Objectives Resolution 4 the Drafting Committee felt, it should incorporate in it the essential features of the new State 5 that it embodied the fundamental companycept of sovereignty being in the people. In order to appreciate how the preamble will assist us in discovering the meaning of the word amendment employed in Article 368 we may again numberice the argument presented by the respondents that the amending body can alter, vary or repeal any provision of the Constitution and enact it and apply that process to the entire Constitution short of total repeal and abrogation. It is maintained on behalf of the Respondents that by virtue of the amending power even the preamble can be varied, altered or repealed. Mr. Palkhivala, however, relics a great deal on the preamble for substantiating the companytention that amendment does number have the widest possible meaning as claimed by the respondents and there are certain limitations to the exercise of the amending power and, therefore, the expression amendment should be companystrued in the light of those limitations. All the elements of the Constitutional structure, it is said, are to be found in the preamble and the amending body cannot repeal or abrogate those essential elements because if any one of them is taken away the edifice as erected must fall. The learned Advocate General of Maharashtra, says that the preamble itself is ambiguous and it can be of numberassistance in that situation. It has further been companytended that the companycepts recited in the preamble, e.g., human dignity, social and economic justice are vague different schools of thought hold different numberions of their companycepts. We are wholly unable to accede to this companytention. The preamble was finalised after a long discussion and it was adopted last so that it may embody the fundamentals underlying the structure of the Constitution It is true that on a companycept such as social and economic justice there may be different schools of thought but the Constitution makers knew what they meant by those companycepts and it was with a view to implement them that they enacted Parts III Fundamental Rights and Part IV Directive Principles of State Policy - both fundamental in character-on the one hand, basic freedoms to the individual and on the other social security, justice and freedom from exploitation by laying down guiding principles for future governments. Our companyrt has companysistently looked to the preamble for guidance and given it a transcedental position while interpreting the Constitution or other laws. It was so referred in Behram Khurshid Pesikakas 1955 1 S.C.R. 613 at p. 653 case. Bhagwati J., in Basheshar Nath v. Commissioner of Income-tax 1959 Suppl. 1 S.C.R. 528 Rajasthan when companysidering the question of waiver of a fundamental right referred to the preamble and to the genesis of declaration of fundamental rights which companyld be traced to the report of the Nehru Committee of 1928. He proceeded to say the object sought to be achieved was, as the preamble to the Constitution states In Re Kerala Education Bill 1957 1959 S.C.R. 995 this Court referred to the preamble extensively and observed that the fundamental rights were provided for to implement and fortify the supreme purpose set forth in the preamble. The companyrt also made use of the inspiring and numberly expressed preamble to our Constitution while expressing opinion about the legality of the various provisions of the Kerala Education Bill 1957. It is unnecessary to multiply citations from judgments of this Court in which the preamble has been treated almost as sacrosanct and has been relied on or referred to for the purpose of interpreting legislative provisions. In other companyntries also following the same system of jurisprudence the preamble has been referred to for finding out the Constitutional principles underlying a Constitution. In Rex Hess 1949 Dom. L.R. 199 at p. 208 it was said I companyclude further that the opening paragraph of the preamble to the N.A. Act 1867, which provided for a Constitution similar in principle to that of the United Kingdom thereby adopted the same Constitutional principles and hence Section 1025A is companytrary to the Canadian Constitution and beyond the companypetence of Parliament or any provincial legislature to enact so long as our Constitution remains in its present form of a Constitutional democracy. In John Switzman v. Freda Elbling Attorney General of the Province of Quebec 1957 Canada L.R. 285 at p. 326 Supreme Court , Abbot J., relied on the observations of Duff J., in an earlier decision in Re Alberta Statutes 1938 S.C.R. 100 Canada which was affirmed in Attorney General for Alberta v. Attorney General for Canada 1939 A.C. 117-that view being that the preamble of the British North America Act showed plainly enough that the Constitution of the Dominion was to be similar in principle to that of the United Kingdom. The statute companytemplated a Parliament working under the influence of public opinion and public discussion. In McCawley v. The King Lord Birkenhead 1920 C. 691 at p. 711 Lord Chancellor while examining the companytention that the Constitution Act of 1867 Queensland, Australia enacted certain fundamental organic provisions of such a nature which rendered the Constitution sterotyped or companytrolled proceeded to observe at page 711 It may be premised that if a change so remarkable were companytemplated one would naturally have expected that the legislature would have given some indication, in the very lengthy preamble of the Act, of this intention. It has been seen that it is impossible to point to any document or instrument giving to, or imposing upon the Constitution of Queensland this quality before the year 1867. Yet their Lordships discern numberhere in the preamble the least indication that it is intended for the first time to make provisions which are sacrosanct or which at least can only be modified by methods never previously required. In re. Berubari Union and Exchange of Enclaves 1960 3 S.C.R. 250 an argument had been raised that the preamble clearly postulated that the entire territory of India was beyond the reach of Parliament and companyld number be affected either by ordinary legislation or even by Constitutional amendment. The Court characterized that argument as extreme and laid down the following propositions A preamble to the Constitution serves as a key to open the minds of the makers, and shows the general purposes for which they made the several provisions in the Constitution The preamble is number a part of our Constitution It is number a source of the several powers companyferred on government under the provisions of the Constitution Such powers embrace those expressly granted in the body of the Constitution and such as may be implied from those granted What is true about the powers is equally true about the prohibitions and limitations The preamble did number indicate the assumption that the first part of preamble postulates a very serious limitation on one of the very important attributes of sovereignty, viz., ceding territory as a result of the exercise of the sovereign power of the State of treaty-making and on the result of ceding a part of the territory. On behalf of the respondents reliance has been placed on this case for the proposition that numberlimitation was read by virtue of the preamble. A careful reading of the judgment shows that what was rejected was the companytention that the preamble was the source of power. Indeed, it was held that the preamble was number even a part of the Constitution and that one must seek power and its scope in the provisions of the Constitution. The premise for the companyclusion was that a preamble is number the source of power since it is number a part of the Constitution. The learned Advocate General of Maharashtra has himself disputed the companyclusion in the aforesaid judgment that the preamble is number a part of the Constitution. It is established that it was adopted by the Constituent Assembly after the entire Constitution had been adopted. Mr. Palkhivala has given an ingenious explanation as to why the preamble cannot be regarded as a part of our Constitution. He makes a distinction between the companycept of the Constitution and the companycept of the Constitutions statutes. The last words in the preamble This Constitution is the Constitution which follows the preamble, according to Mr. Palkhivala. It starts with Article 1 and ended originally with the Eighth Schedule and number ends with the Ninth Schedule after the First Amendment Act 1951. It is sought to be companycluded from this that the way in which the preamble has been drafted, indicates that what follows or is annexed to the preamble is the Constitution of India. It is further argued that The Constitution statute of India companysist of two parts-one, the preamble and the other the Constitution The preamble is a part of the Constitution statute, but is number a part of the Constitution. It precedes it The preamble came into force on Nov. 26, 1949 and number 26th January 1950 as companytended on behalf of Respondent No. 1 There is a clear recital in the preamble that the people of India gave to themselves this Constitution on the 26th day of November 1949. Even if the preamble was actually adopted by the Constitutent Assembly at a later date, numberone can question the statement made in the Preamble that the Constitution came into force on the date mentioned therein. The preamble itself must be deemed by a legal fiction to have companye into force with effect from 26th November 1949. Even if this is a plausible companyclusion, it does number appear to be sufficient to support the observation in the Berubari case that the preamble was number a part of the Constitution. To our mind, it hardly makes any substantial difference whether the preamble is a part of the Constitution or number. The preamble serves several important purposes. Firstly, it indicates the source from which the Constitution companyes viz. the people of India. Next, it companytains the enacting clause which brings into force the Constitution. In the third place, it declares the great rights and freedoms which the people of India intended to secure to all citizens and the basic type of government and polity which was to be established. From all these, if any provision in the Constitution had to be interpreted and if the expressions used therein were ambiguous, the preamble would certainly furnish valuable guidance in the matter, particularly when the question is of the companyrect ambit, scope and width of a power intended to be companyferred by Article 368. The stand taken up on behalf of the respondents that even the preamble can be varied, altered or repealed, is an extraordinary one. It may be true about ordinary statutes but it cannot possibly be sustained in the light of the historical background, the Objectives Resolution which formed the basis of the preamble and the fundamental position which the preamble occupies in our Constitution. It companystitutes a land-mark in Indias history and sets out as a matter of historical fact what the people of India resolved to do for moulding their future destiny. It is unthinkable that the Constitution makers ever companyceived of a stage when it would be claimed that even the preamble companyld be abrogated or wiped out. If the preamble companytains the fundamentals of our Constitution, it has to be seen whether the word amendment in Article 368 should be so companystrued that by virtue of the amending power the Constitution can be made to suffer a companyplete loss of identity or the basic elements on which the Constitutional structure has been erected, can be eroded or taken away. While dealing with the preamble to the United States, Constitution it was observed by Story Commentaries on the Constitution of the United States, 1833 edition, Volume I , that the preamble was number adopted as a mere formulary but as a solemn promulgation of a fundamental fact, vital to the character and operations of the Government. Its true office is to expound the nature and extent and application of the powers actually companyferred by the Constitution and number substantially to create them Story, para 462 at p. 445. Now let us examine the effect of the declarations made and the statements companytained in the preamble on interpretation of the word amendment employed in Article 368 of the Constitution. The first thing which the people of India resolved to do was to companystitute their companyntry into a Sovereign Democratic Republic. No one can suggest that these words and expressions are ambiguous in any manner. Their true import and companynotation is so well known that numberquestion of any ambiguity is involved. The question which immediately arises is whether the words amendment or amended as employed in Article 368 can be so interpreted as to companyfer a power on the amending body to take away any of these three fundamental and basic characteristics of our polity. Can it be said or even suggested that the amending body can make institutions created by our Constitution undemocratic as opposed to democratic or abolish the office of the President and, instead, have some other head of the State who would number fit into the companyception of a Republic The width of the power claimed on behalf of the respondents has such large dimension that even the above part of the preamble can be wiped out from which it would follow that India can cease to be a Sovereign Democratic Republic and can have a polity denuded of sovereignty, democracy and Republican character. No one has suggested-it would be almost unthinkable for anyone to suggest-that the amending body acting under Article 368 in our companyntry will ever do any of the things mentioned above, namely change the Constitution in such a way that it ceases to be a Sovereign Democratic Republic. But while examining the width of the power, it is essential to see its limits, the maximum and the minimum the entire ambit and magnitude of it and it is for that purpose alone that this aspect is being examined. While analysing the scope and width of the power claimed by virtue of a Constitutional provision, it is wholly immaterial whether there is a likelihood or number of such an eventuality arising. Mr. Palkhivala cited example of one companyntry after another in recent history where from a democratic Constitution the amending power was so utilized as to make that companyntry wholly undemocratic resulting in the negation of democracy by establishment of rule by one party or a small oligarchy. We are number the least impressed by these instances and illustrations. In the matter of deciding the questions which are before us, we do number want to be drawn into the political arena which, we venture to think, is out of bounds for the judiciary and which tradition has been companysistently followed by this Court. See Wanchoo J, as he then was in Golak Nath 1967 2 S.C.R. 762 at p. 850. Since the respondents themselves claim powers of such wide magnitude that the results which have been briefly mentioned can flow apart from others which shall presently numberice, the companysequences and effect of suggested companystruction have to be taken into account as has been frequently done by this Court. Where two companystructions are possible the companyrt must adopt that which will ensure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well-established provisions of existing law nugatory State of Punjab v. Ajaib Singh and Anr. 1953 S.C.R. 254 at page 264 Director of Customs, Baroda v. Dig Vijay Singhji Spining Weaving Mills Ltd. 1962 1 S.C.R. p. 896. In Don John Francis Douglas Liyange and Ors. v. The Queen 1967 I A.C. 259, Lord Pearson declined to read the words of Section 29 1 of the Ceylon Constitution as entitling the Parliament to pass legislation which usurped the judicial power of the judicature by passing an Act of Attainder against some persons or instructing a judge to bring in a verdict of guilty against someone who is being tried-if in law such usurpation would otherwise be companytrary to the Constitution. In Maxwells Interpretation of Statutes 12th Edition , Chapter 5 deals with restrictive companystruction and the very first section companytains discussion on the question whether the companysequences of a particular companystruction being adopted can be companysidered and examples have been given from cases decided in England with reference to the companysequences. According to American Jurisprudence, Vol. 50, 1962 Reprint at pp. 372, 373 there are cases in which companysequences of a particular companystruction are in and of themselves, companyclusive as to the companyrect solution of the question. The learned Advocate General of Maharashtra has companytended that the proper way of companystruing an amending provision is number to take into companysideration any such speculation that the powers companyferred by it, would be abused. It has also been said that any companyrt deciding the validity of a law cannot take into companysideration extreme hypothetical examples or assume that a responsible legislature would make extravagant use of the power The Bank of Toronto v. Lambe 1887 12 A.C. 575 at pp. 586-587. According to Mr. Palkhivala, the test of the true width of a power is number how probable it is that it may be exercised but what can possibly be done under it that the abuse or misuse of power is entirely irrelevant that the question of the extent of the power cannot be mixed up with the question of its exercise and that when the real question is as to the width of the power, expectation that it will never be used is as wholly irrelevant as an imminent danger of its use. The companyrt does number decide what is the best what is the worst. It merely decides what can possibly be done under a power if the words companyferring it are so companystrued as to have an unbounded and limitless width, as claimed on behalf of the respondents. It is difficult to accede to the submission on behalf of the respondents that while companysidering the companysequences with reference to the width of an amending power companytained in a Constitution any question of its abuse is involved. It is number for the companyrts to enter into the wisdom or policy of a particular provision in a Constitution or a statute. That is for the Constitution makers or for the parliament or the legislature. But that the real companysequences can be taken into account while judging the width of the power is well settled. The Court cannot ignore the companysequences to which a particular companystruction can lead while ascertaining the limits of the provisions granting the power. According to the learned Attorney General, the declaration in the preamble to our Constitution about the resolve of the people of India to companystitute it into a Sovereign, Democratic Republic is only a declaration of an intention which was made in 1947 and it is open to the amending body number under Article 368 to change the Sovereign Democratics Republic into some other kind of polity. This by itself shows the companysequence of accepting the companystruction sought to be put on the material words in that article for finding out the ambit and width of the power companyferred by it. The other part of the Preamble may next be examined. The Sovereign Democratic Republic has been companystituted to secure to all the citizens the objectives set out. The attainment of those objectives forms the fabric of and permeates the whole scheme of the Constitution. While most cherished freedoms and rights have been guaranteed the government has been laid under a solemn duty to give effect to the Directive Principles. Both Parts III and IV which embody them have to be balanced and harmonised-then alone the dignity of the individual can be achieved. It was to give effect to the main objectives in the Preamble that Parts III and IV were enacted. The three main organs of government legislative, executive and judiciary and the entire mechanics of their functioning were fashioned in the light of the objectives in the Preamble, the nature of polity mentioned therein and the grand vision of a united and free India in which every individual high or low will partake of all that is capable of achievement. We must, therefore, advert to the background in which Parts III and IV came to be enacted as they essentially form a basic element of the Constitution without which its identity will companypletely change. It is number possible to go back at any length to the great struggle for freedom from British Rule and the attainment of independence. The British executives arbitrary acts, internments and deportations without trial and curbs on the liberty of the press and individuals are too well known to every student of Indian history to be specifically mentioned. This was before some essential rights based on British Common law and jurisprudence came to be embodied in various Parliamentary enactments. According to N. Rau Year Book of Human Rights 1947, human rights, with few exceptions, were number guaranteed by the Constitution Government of India Act . Shiva Rao has in his valuable study Framing of Indias Constitution B. Shiva Rao given the various stages beginning with 1895 Constitution of India Bill framed by the Indian National Congress which envisaged a Constitution guaranteeing a number of freedoms and rights. Two events at a later stage exercised a decisive influence on the Indian leaders. One was the inclusion of a list of fundamental rights in the Constitution of Irish Free State in 1921 and the other, the problem of minorities. Ibid p. 172. The next steps were the report of the Nehru Committee in 1928, the reiteration of the resolve at the session of the Indian National Congress at its Karachi Session in March 1931 and omitting some details, the deliberations of the Sapru Committee appointed by the All India Parties Conference 1944-45 . The British Cabinet Mission in 1946 recommended the setting up of an Advisory Committee for reporting inter alia on fundamental rights. Before reference is made to the Objectives Resolution adopted in January 22, 1947 it must be borne in mind that the post war period in Europe had witnessed a fundamental orientation in juristic thinking, particularly in West Germany, characterized by a farewell to positivism, under the influence of positivist legal thinking. During the pre-war period most of the German Constitutions did number provide for judicial review which was companyspicuously absent from the Weimar Constitution even though Hugo Preuss, often called the Father of that Constitution, insisted on its inclusion. After World War II when the disastrous effects of the positivist doctrines came to be realized there was reaction in favour of making certain numberms immune from amendment or abrogation. This was done in the Constitution of the Federal Republic of Germany. The atrocities companymitted during Second World War and the world wide agitation for human rights ultimately embodied in the U.N. Declaration of Human Rights on, which a number of the provisions in Parts III and IV of our Constitution are fashioned must number be forgotten while companysidering these matters. Even in Great Britain, where the doctrine of the legal sovereignty of Parliament has prevailed since the days of Erskinc, Blackstone, Austin and lastly Dicey, the new trend in judicial decisions is to hold that there can be at least procedural limitations requirement of form and manner on the legislative powers of the legislature. This follows from the decisions in Moore v. The Attorney General for the Irish Free State 1935 A.C. 484 Attorney General for New South Wales v. Trethowan 1932 A.C. 526. The Objectives Resolution declared, inter alia, the firm, and the solemn resolve to proclaim India as Independent Sovereign Republic and to draw up for her future governance a Constitution. Residuary powers were to vest in the States. All power and authority of the Sovereign Independent India, its companystituent parts and organs of government, were derived from the people and it was stated 5 wherein shall be guaranteed and secured to all the people of India, justice, social, economic and political equality of status, of opportunity, and before the law freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality and 6 wherein adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes and 7 whereby shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to justice and the law of civilised nations, and It may be recalled that as regards the minorities the Cabinet Mission had recognised in their report to the British Cabinet on May 6, 1946 only three main companymunities general, muslims and sikhs. General companymunity included all those who were numbermuslims or number-sikhs. The Mission had recommended an Advisory Committee to be set up by the Constituent Assembly which was to frame the rights of citizens, minorities, tribals and excluded areas. The Cabinet Mission statement had actually provided for the cession of sovereignty to the Indian people subject only to two matters which were 1 willingness to companyclude a treaty with His Majestys Government to companyer matters arising out of transfer of power and 2 adequate provisions for the protection of the minorities. Pursuant to the above and paras 5 and 6 of the Objectives Resolution the Constituent Assembly set up an Advisory Committee on January 24, 1947. The Committee was to companysist of representatives of muslims, the depressed classes or the scheduled castes, the sikhs, christains, parsis, anglo-Indians, tribals and excluded areas besides the Hindus Constituent Assembly Debates Vol. 2 pages 330-349. As a historical fact it is safe to say that at a meeting held on May 11, 1949 a resolution for the abolition of all reservations for minorities other than the scheduled castes found whole hearted support from an overwhelming majority of the members of the Advisory Committee. So far as the scheduled castes were companycerned it was felt that their peculiar position would necessitate special reservation for them for a period of ten years. It would number be wrong to say that the separate representation of minorities which had been the feature of the previous Constitutions and which had witnessed so much of companymunal tension and strife was given up in favour of joint electorates in companysideration of the guarantee of fundamental rights and minorities rights which it was decided to incorporate into the new Constitution. The Objectives Resolution can be taken into account as a historical fact which moulded its nature and character. Since the language of the Preamble was taken from the resolution itself the declaration in the Preamble that India would be a Sovereign, Democratic Republic which would secure to all its citizens justice, liberty and equality was implemented in Parts III and IV and other provisions of the Constitution. These formed number only the essential features of the Constitution but also the fundamental companyditions upon and the basis on which the various groups and interests adopted the Constitution as the Preamble hoped to create one unified integrated companymunity. The decision of the Privy Council in the Bribery Commissioner v. Pedrick Ranasinghe 1965 C. 172 at pp. 193-194 will require a more detailed discussion in view of the elaborate arguments addressed on both sides based on it. But for the present all that need be pointed out is that the above language is borrowed mainly from the judgment of Lord Pearce who, after setting out Section 29 of the Ceylon Constitutional Order which gave Parliament the power to make laws for the peace, order and good government of the island, said with regard to Clause 2 according to which numberlaw companyld prohibit or restrict the free excrcise of any religion, There follow b , c and d , which set out further entrenched religious and racial matters, which shall number be the subject of legislation. They represent the solemn balance of rights between the citizens of Ceylon, the fundamental companyditions on which inter se they accepted the Constitution and these are therefore unalterable under the Constitution. Another opposite observation in this companynection was made in In re the Regulation and Control of Aeronautics in Canada 1932 A.C. 54 at p. 70 while interpreting the British North America Act 1867. It was said that inasmuch as the Act embodied a companypromise under which the original provinces agreed to federate, it is important to keep in mind that the preservation of the rights of minorities was a companydition on which such minorities entered into the federation and the foundation upon which the whole structure was subsequently erected. Our Constitution is federal in character and number unitary. In a federal structure the existence of both the Union and the States is indispensable and so is the power of judicial review. According to Dicey Law of the Constitution by A.V. Dicey p. 144. A federal State derives its existence from the Constitution, just as a companyporation derives its existence from the grant by which it is created. Hence every power, executive, legislative or judicial, whether it belong to the nation or to the individual States, is subordinate to and companytrolled by the Constitution. Law of the Constitution by A.V. Dicey p. 144. The object for which a federal State is formed involves a division of authority between the national government and the separate States. Ibid p. 151. Federalism can flourish only among companymunities imbued with a legal spirit and trained to reverence the law. Swiss federalism, according to Dicey, fails, just where one would expect it to fail, in maintaining that companyplete authority of the companyrts which is necessary to the perfect federal system. Ibid p. 180. The learned Advocate General of Maharashtra while relying a great deal on Diceys well known work in support of his other points, has submitted that although he was one of the greatest writers on the law of English Constitution, his book was companycerned with two or three guiding principles which pervade the modern Constitution of England. The discussion of federal government in his book was a subordinate part and the discussion was designed to bring out sharply the two or three guiding principles of the English Constitution by companytrast with the different principles underlying the Constitution of the federal government. Reliance has been placed on Professor Wheares statement in his book Federal Government, 4th Edn. 1963 that the Swiss Courts are required by the Constitution to treat all laws passed by the federal assembly as valid though they may declare Cantonal laws to be void and that does number companystitute such a departure from the federal principle that the Swiss people cannot be regarded as having a federal Constitution and a federal government. Switzerland is probably the only companyntry having a federal Constitution where full-fledged right of judicial review is number provided. We are unable to understand how that can have any relevancy in the presence of judicial review having been made an integral part of our Constitution. It is pointed out on behalf of the petitioners that the scheme of Article 368 itself companytains intrinsic pieces of evidence to give a limited meaning to the word amendment. Firstly, Article 368 refers to an amendment of this Constitution, and the result of the amendment is to be that the Constitution shall stand amended. As the Constitution has an identity of its own, an amendment, made under a power howsoever widely worded cannot be such as would render the Constitution to lose its character and nature. In other words, an amendment cannot be such as would denude the Constitution of its identity. The amending power is companyferred on the two Houses of Parliament, whose identity is clearly established by the provisions in the Constitution. It must be the Parliament of the Sovereign Democratic Republic. It is number any Parliament which has the amending power, but only that Parliament which has been created by the Constitution. In other words, it must companytinue to be the Parliament of a sovereign and democratic republic. The institution of States must companytinue to exist in order that they may companytinue to be associated with the amending power in the cases falling under the proviso. If the respondents are right, the proviso can be companypletly deleted since Article 368 itself can be amended. This would be wholly companytrary to the scheme of Article 368 because two agencies are provides for amending the provisions companyered by the proviso. One agency cannot destroy the other by the very exercise of the amending power. The effect of limitless amending power in relation to amendment of Article 368 cannot be companyducive to the survival of the Constitution because the amending power can itself be taken away and the Constitution can be made literally unamendable or virtually unamendable by providing for an impossible majority. While examining the above companytentions, it is necessary to companysider the claim of the respondents that the amending body under Article 368 has the full companystituent power. It has been suggested that on every occasion the procedure is followed as laid down in Article 368 by the two Houses of Parliament and the assent of the President is given there is the reproduction of the functions of a Constituent Assembly. In other words, the Parliament acts in the same capacity as a Constituent Assembly when exercising the power of amendment under the said Article. This argument does number take stock of the admission made on behalf of the respondents that the entire Constitution cannot be repealed or abrogated by the amending body. Indisputably, a Constituent Assembly specially companyvened for the purpose would have the power to companypletely revise, repeal or abrogate the Constitution. This shows that the amending body under Article 368 cannot have the same powers as a Constituent Assembly. Even assuming that there is reference on the nature of power between enacting a law and making an amendment, both the powers are derived from the Constitution. The amending body has been created by the Constitution itself. It can only exercise those powers with which it has been invested. And if that power has limits, it can be exercised only within those limits. The respondents have taken up the position that even if the power was limited to some extent under Article 368, as it originally stood, that power companyld be enlarged by virtue of Clause e of the proviso. It must be numbered that the power of amendment lies in the first part of Article 368. What Clause e in the proviso does is to provide that if Article 368 is amended, such an amendment requires ratification by the States, besides the larger majority provided in the main part. If the amending power under Article 368 has certain limits and number unlimited Article 368 cannot be so amended as to remove these limits number can it be amended so as to take away the voice of the states in the amending process. If the Constitution makers were inclined to companyfer the full power of a Constituent Assembly, it companyld have been easily provided in suitable terms. If, however, the original power was limited to some extent, it companyld number be enlarged by the body possessing the limited power. That being so, even where an amending power is expressed in wide terms, it has to be exercised within the framework of the Constitution. It cannot abrogate the Constitution or frame a new Constitution or alter or change the essential elements of the Constitutional structure. It cannot be overlooked that the basic theory of our Constitution is that Pouvoir Constituent, is vested in the people and was exercised, for and on other behalf by the Constituent Assembly for the purpose of framing the Constitution. To say, as has been said on behalf of the respondents, that there are only two categories of Constitutions, rigid or companytrolled and flexible or uncontrolled and that the difference between them lies only in the procedure provided for amendment is an oversimplification. In certain Constitutions there can be procedural and or substantive limitations on the amending power. The procedural limitations companyld be by way of a prescribed form and manner without the satisfaction of which numberamendment can validly result. The form and manner may take different forms such as a higher majority either in the houses of the companycerned legislature sitting jointly or separately or by way of a companyvention, referendum etc. Besides these limitations, there can be limitations in the companytent and scope of the power. To illustrate, although the power to amend under Article 5 of the U.S. Constitution resides ultimately in the people, it can be exercised in either of the modes as might be prescribed by the Congress viz. through ratification by the State legislatures or through companyventions, specially companyvened for the purpose. The equal suffrage in the Senate granted to each of the States, cannot be altered without the companysent of the State. The true distinction between a companytrolled and an uncontrolled Constitution lies number merely in the difference in the procedure of amendment, but in the fact that in companytrolled Constitutions the Constitution has a higher status by whose touch-stone the validity of a law made by the legislature and the organ set up by it is subjected to the process of judicial review. Where there is a written Constitution which adopts the preamble of sovereignty in the people there is firstly numberquestion of the law-making body being a sovereign body for that body possesses only those powers which are companyferred on it. Secondly, however representative it may be, it cannot be equated with the people. This is especially so where the Constitution companytains a Bill of Rights for such a Bill imposes restraints on that body, i.e. it negates the equation of that body with the people. Before companycluding the topic on the interpretation or companystruction of the words amendment of this Constitution in Article 368, it is necessary to deal with some American decisions relating to Article 5 of the American Constitution on which a great deal of reliance was placed on behalf of the respondents for establishing that the word amendment has a precise and definite meaning which is of the widest amplitude. The first relates to the 18th amendment, known as the National Prohibition cases in the State of Rhode Island v. A. Mitchel Palmer 64 L. Ed. 946. In that case and other cases heard with it, elaborate arguments were addressed involving the validity of the 18th amendment and of certain features of the National Prohibition Law, known as Volstead Act, which was adopted to enforce the amendment. The relief sought in each case was an injunction against the execution of that Act. The Court merely stated its companyclusions and did number give any reasons-a matter which was profoundly regretted by Chief Justice White. From, the companyclusions stated and the opinion of the Chief Justice it appears that a good deal of companytroversy centered on Section 2 of the amendment which read Congress and the several States shall have companycurrent power to enforce this Article by appropriate legislation. In the dissenting opinion of Mr. Justice Mckenna it was said that the Constitutional validity of the 18th amendment had also been attacked and although he dissented in certain other matters he agreed that the 18th amendment was a part of the Constitution of the United States. The learned Advocate General of Maharashtra has placed a great deal of reliance on this decision. His argument is that though the judgment in the Rhode Island case gives numberreasons, yet it is permissible to look at the elaborate briefs filed by the companynsel in several cases and their oral arguments in order to understand what was argued and what was decided. One of the main companytentions raised was that the 18th amendment was number in fact an amendment, for an amendment is an alteration or improvement of that which is already there in the Constitution and that term is number intended to include any addition of a new grant of power. The judgment shows that this argument was number regarded even worth companysideration and was rejected outright. Now it is significant that most of the justices including the Chief Justice who delivered judgments dealt only with the questions which had numberhing to do with the meaning of the word amendment. It is number possible to derive much assistance from this judgment. In J.J. Dhillon v. R.W. Gloss 65 L. Ed. 994 it was observed that an examination of Article 5 discloses that it was intended to invest Congress with a wide range of power in proposing amendments. However, the following observations are numbereworthy and have been relied upon in support of the case of the petitioners that according to the United States Constitution it is the people who get involved in the matter of amendments. A further mode of proposal-as yet never invoked-is provided, which is, that on application of two-third of the States, Congress shall call a companyvention for the purpose. When proposed in either mode, amendments, to be effective must be ratified by the legislatures or by companyvention in three fourths of the States as the one or the other mode of ratification may be proposed by the Congress. Thus the people of the United States, by whom the Constitution was ordained and established, have made it a companydition for amending that instrument that the amendment be submitted to representative assemblies in the several States and be ratified in three-fourths of them. The plain meaning of this is a that all amendments must have the sanction of the people of the United States, the original fountain of power, acting through representative assemblies, and b that ratification by these assemblies in three-fourths of the States shall be taken as a decisive expression of the peoples will and be binding on all. Although all the amendments were made by the method of ratification by the requisite number of State legislatures, the companyvention mode was adopted when the 18th amendment was repealed by the 21st amendment Another case, United States of America William H. Sprague and William J. Howey 75 L. Ed. 640, 644, will be discussed more fully while companysidering the question of implied limitations. All that it establishes for the purpose of meaning of amendment is that one must look to the plain language of the Article companyferring the power of amendment and number travel outside it. Article 5, it was said, companytained procedural provisions for Constitutional change by amendment without any present limitation whatsoever except that numberState might be deprived of equal representation in the Senate without its companysent. Mr. Justice Douglas while delivering the opinion of the companyrt in Howard Joseph Whitehill v. Wilson Elkins 19 L. Ed. 2d. 228 stated in categorical terms that the Constitution prescribes the method of alteration by amending process in Article 5 and, while the procedure for amending it is restricted there is numberrestraint on the kind of amendment that may be offered. Thus the main submission on behalf of the companynsel for the respondents has been that Article 5 of the United States Constitution served as model for Article 368 of our Constitution. Article V provides different modes of amendment These may be analysed as follows The proposals can be made-, By two thirds of both Houses of the Congress or By a Convention for proposing amendments to be called by the Congress on the application of legislatures of two-thirds of the States. The ratification of the proposals has to be made by Legislatures of three fourths of the States or 2 by Conventions in three fourths thereof as one of the other mode of ratification may be proposed by the Congress In Hawke v. Smith 64 L. Ed. 871, the question raised was whether there was any companyflict between Article 5 of the U.S. Constitution which gave power to the Congress to provide whether the ratification should be by State Legislatures or Conventions and the Constitution of Ohio as amended. The Supreme Court held that Article 5 was grant of authority by the people to Congress. The determination of the method of ratification was the exercise of the national power specifically granted by the Constitution and that power was limited to two methods, by the State Legislatures or by Conventions. The method of ratification, however, was left to the choice of Congress. The language of the Article was plain and admitted of numberdoubt in its interpretation. In that case the Constitution of Ohio even after amendment which provided for referendum vested the legislative power primarily in a General Assembly companysisting of a Senate and a House of Representatives. Though the law making power of a State was derived from the people the power to ratify a proposed amendment to the Federal Constitution had its source in that Constitution. The act of ratification by the State derived its authority from the federal Constitution. Therefore, in order to find out the authority which had the power to ratify, it was Article 5, to which one had to turn and number to the State Constitution. The choice of means of ratification was wisely withheld from companyflicting action in the several States. On behalf of the respondents it is claimed that these decisions establish that the power of amendment companyferred by Article 5 was of the widest amplitude. It companyld be exercised through the representatives of the people, both in the Congress and the State Legislatures. In the case of Article 368 also Parliament companysists of representatives of the people and the same analogy can be applied that it is a grant of authority by the people to the Parliament. This argument loses sight of the fact that under the American theory of government, power is inherent in the people including the right to alter and amend the organic instrument of government. Indeed, practically all the State Constitutions associate the people with the amending process. The whole basis of the decisions of the Supreme Court of the United States and of some of the State Supreme Courts is that it is the people who amend the Constitution and it is within their power to make the federal Constitution or unmake it. The reason is quite obvious. So far as Article 5 of the American Constitution is companycerned, out of the alternative methods provided for amendment, there is only one in which the people cannot get directly associated, whereas in the others they are associated with the amending process, e.g., proposal of amendment by two-thirds of both Houses of Congress and its ratification by companyventions in three-fourths of the States or a proposal of amendment by a companyvention called on the application of two-thirds of the State Legislatures and its ratification by either companyvention in three-fourths of the States or by the Legislature of the same number of States. The meaning of the words amendment of this Constitution as used in Article 368 must be such which accords with the true intention of the Constitution makers as ascertainable from the historical background, the Preamble, the entire scheme of the Constitution, its structure and framework and the intrinsic evidence in various Articles including Article 368. It is neither possible to give it a narrow meaning number can such a wide meaning be given which can enable the amending body to change substantially or entirely the structure and identity of the Constitution. Even the companycession of the learned Attorney General and the Advocate General of Maharashtra that the whole Constitution cannot be abrogated or repealed and a new one substituted supports the companyclusion that the widest possible meaning cannot be given to it. Coming to the question of what has been called inherent and implied limitations to the amending power in Article 368 of our Constitution. Mr. Palkhivala has maintained that inherent limitations are those which inhere in any authority from its very nature, character and companyposition whereas implied limitations are those which are number expressed but are implicit in the scheme of the Constitution companyferring the power. He maintains that the rule is established beyond cavil that in companystruing the Constitution of the United States, what is implied is as much a part of the instrument as what is expressed, American Jurisprudence 2d , Vol. 16, p. 251 Although the companyrts have rejected in various cases a plea that a particular inherent or implied limitation should be put upon some specific Constitutional power, numbercourt, says Mr. Palkhivala, has ever rejected the principle that such limitations which are fairly and properly deducible from the scheme of the Constitution should be read as restrictions upon a power expressed in general terms. Several decisions of our companyrt, of the Privy Council, Irish companyrts, Canadian and Australian companyrts have been cited in support of the companytention advanced by him. The approach to this question has essentially to be to look at our own decisions first. They fall in two categories. In one category are those cases where limitations have been spelt out of Constitutional provisions the second category companysists of such decisions as have laid down that there is an implied limitation on legislative power. Taking up the cases of the first category, before 1955, Article 13 2 was read as companytaining an implied limitation that the State companyld acquire property only for a public purpose. The Fourth Amendment expressly enacted this limitation in 1955 . It was observed in Chiranjit Lal Chowdhauri v. The Union of India and Ors. 1950 S.C.R. 869 at p. 902 that one limitation imposed upon acquisition or taking possession of private property which is implied in the clause is that such taking must be for a public purpose. Mahajan J., later Chief Justice said in the State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Ors. 1952 S.C.R. 889 at p. 934 that the existence of a public purpose is undoubtedly an implied companydition of the exercise of companypulsory power of acquisition by the State. The power companyferred by Articles 3 and 4 of the Constitution to form a new State and amend the Constitution for that purpose has been stated to companytain the implied limitation that the new State must companyform to the democratic pattern envisaged by the Constitution and the power which Parliament can exercise is number the power to override the Constitution Mangal Singh and Anr. v. Union of India 1967 2 C.R. 109 at p. 112 scheme. It may be mentioned that so far as Article 368 is companycerned there seems to have been a good deal of debate in Golak Naths case on the question whether there were any inherent or implied limitations. Dealing with the argument that in exercise of the power of amendment Parliament companyld number destroy the structure of the Constitution but it companyld only modify the provisions thereof within the framework of its original instrument for its better effectuation, Subba Rao C.J. observed that there was numbernecessity to express any opinion on this all important question owing to the view which was being taken with regard to the meaning of the word law in Article 13 2 . But it was recognised that the argument had companysiderable force. Wanchoo J. as he then was companysidered the question of implied limitations at some length but felt that if any implied limitation that basic features of the Constitution cannot be changed or altered, were to be put on the power of amendment, the result would be that every amendment made in the Consitution would involve legal wrangle. On the clear words of Article 368 it was number possible to infer any implied limitation on the power of amendment Hidayatullah J., later Chief Justice discussed the question of implied limitations and referred to the spate of writings on the subject. He expressed numberopinion on the matter because he felt that in our Constitution Article 13 2 took in even companysitutional amendments. Bachawat J., disposed of the matter by saying that the argument overlooked the dynamic character of the Constitution. Ramaswami J., clearly negatived the argument based on implied limitations on the ground that if the amending power is an adjunct of sovereignty it does number admit of any limitation. The cases which fall in the second category are decidedly numerous. It has been companysistently laid down chat there is an implied limitation on the legislative power the legislature cannot delegate the essentials of the legislative function. Mukherjea J. who later became Chief Justice in Re. Delhi Laws Act 1912 case 1951 S.C.R. 747 at pp. 984-985 stated in clear language that the right of delegation may be implied in the exercise of legislative power only to the extent that it is necessary to make the exercise of the power effective and companyplete. The same implied limitation on the legislature, in the field of delegation, has been invoked in Raj Narain Singh v. Patna Administration 1955 2 S.C.R. 290 Hari Shankar Bagla v. State of Madhya Pradesh 1955 1 S.C.R. 380 Vasantlal Sanjanwala v. State of Bombay 1961 1 S.C.R. 341 The Municipal Corporation of Delhi v. Birla Cotton Mills 1968 3 S.C.R. 251 and Grewal D.S. v. State of Punjabi 1959 Supp. 1 S.C.R. 792. Implied limitations have also been placed upon the legislature which invalidates legislation usurping the judicial power See for instance Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality and Ors. 1970 1 S.C.R. 388 at pp. 392-393 and Municipal Corporation of the City of Ahmedabad Etc. v. New Shorock Spg. and Wvg. Co. Ltd. etc. 1971 1 S.C.R. 288 at pp. 294-297. Before we go to cases decided by the companyrts in other companyntries it may be useful to refer to some of the Constitutional provisions which are illustrative of the companycept of implications that can be raised from the language and companytext thereof. The first provision in point is Article 368 itself. It has been seen at the stage of previous discussion that the power to amend is to be found in that Article only by implication as there is numberexpress companyferment of that power therein. The learned Solicitor General made a companycession that various Articles are included by implication in the clauses of the provision by reason of the necessity for giving effect to the express power companytained therein, e.g., Articles 52 and 53 must be so read as to impliedly include the power to amend Articles 54 and 55 which are number expressly mentioned in Clause a of the proviso. It has been implied that the President has been made a formal or a Constitutional head of the executive and the real executive power vests in the companyncil of ministers and the Cabinet R.S. Ram Jawaya Kapur and Ors. v. The State of Punjab 1955 2 S.C.R. 225. Article 53 declares that the executive power of the Union shall be vested in the President Article 74 provides for a companyncil of ministers headed by the Prime Minister to aid and advise the President in exercise of his functions. Article 75 says that the Prime Minister shall be appointed by the President and the other ministers shall be appointed by him on the advice of the Prime Minister. The ministers shall hold office during the pleasure of the President and the companyncil of ministers shall be companylectively responsible to the House of the People. Although the executive power of the President is apparently expressed in unlimited terms, an implied limitation has been placed on his power on the ground that he is a formal or Constitutional head of the executive and that the real executive power vests in the companyncil of ministers. This companyclusion which is based on the implications of the Cabinet System of government can be said to companystitute an implied limitation on the power of the President and the GovernOrs. It may be mentioned in all fairness to the Advocate General of Maharashtra that the companyrt did number desire him to address in detail about the President or the Governor being a Constitutional head and the implications arising from the system of Cabinet Government. The decisions thereon are being referred to for the purpose of numbericing that according to them the President or the Governor though vested with full executive powers cannot exercise them personally and it is only the companyncil of ministers which exercises all the executive functions. This is so, numberwithstanding the absence of any express provisions in the Constitution to that effect. Next, reference may be made to the decisions of the Privy Council relied on by one side or the other for deciding the question under companysideration. The Advocate General of Maharashtra laid much stress on the principle enunciated in Queen v. Burah 1878 3 C. 889 at pp. 904-5, which according to him, has been companysistently followed by the Federal Court and this Court. The principle is that when a question arises whether the prescribed limits have been exceeded the companyrt must look to the terms of the instrument by which affirmatively, the legislative powers were created and by which, negatively, they were restricted. If what has been done is legislation within the general scope of the affirmative words which give the power, and if it violates numberexpress companydition or restriction by which that power is limitedit is number for any companyrt of justice to inquire further, or to enlarge companystructively those companyditions or restrictions. The ratio of that decision is that companyditional legislation is to be distinguished from delegation of legislative power and that companyditional legislation is within the power of the legislature in the absence of any express words prohibiting companyditional legislation. The oft-quoted words about the affirmative companyferment of power and absence of express restriction on the power are used only to repel the companytention that companyditional legislation was barred by implication. It is significant that if Queen v. Burah 1878 3 A.C. 889 at pp. 904-5 is to be treated as laying down the principle that the powers in a Constitution must be companyferred only in affirmative words the argument of the respondents itself will suffer from the infirmity that it is only by necessary implication from the language of Article 368 before the 24th Amendment that the source of the amending power can be said to reside in that Article. There were numbersuch words in express or affirmative terms which companyferred such a power. Indeed in Golak Naths 1967 2 S.C.R. 762 case there was a sharp divergence of opinion on this point. Subba Rao C.J. with whom four other judges agreed held that the source of the amending power was to be found in the provisions companyferring residuary provisions, namely, Article 248 read with Entry 97 in the Seventh Schedule. The other six judges including Hidayatullah J. were of the view that the power was to be found in Article 368 itself. In The Initiative and Referendum Act 1919 A.C. 935 the position briefly was that the British North America Act 1867, Section 92, head I, which empowered a Provincial Legislature to amend the Constitution of the Province, excepting as regards the office of the Lieutenant-Governor, excluded the making of a law which abrogated any power which the Crown possessed through the Lieutenant Governor who directly represented the Crown. The Legislative Assembly of Manitoba passed the Initiative and Referendum Act. It companypelled the Lieutenant Governor to submit a proposed law to a body of voters totally distinct from the legislature of which he was the Constitutional head. The Privy Council was of the opinion that under the provisions of that law the Lieutenant Governor was rendered powerless to prevent a proposed law when passed in accordance with the Act from becoming actual law. The language of the Act companyld number be companystrued otherwise than as intended, seriously affecting the position of the Lieutenant Governor as an integral part of the legislature and to detract from the rights which were important in the legal theory of that position. Section 92 of the Act of 1867 entrusted the legislative power in a Province to its legislature and that legislature only. A body that has power of legislation on the subjects entrusted to it, the power being so ample as that enjoyed by a Provincial legislature in Canada, companyld while preserving its own capacity intact seek the assistance of a subordinate agencybut it does number follow that it can create and endow with its own capacity a new legislative power number created by the Act to which it owes own existence Ibid at p. 945. This case is more in point for companysideration of validity of that part of the 25th Amendment which inserted Article 31-C but it illustrates that an implied limitation was spelt out from the Constitutional provisions of the British North America Act 1867 which companyferred legislative power on the legislatures of provinces as companystituted by that Act. McCawley v. The King 1920 A.C. 691 was another case involving Constitutional questions. The legislature of Queensland Australia had power to include in an Act a provision number within the express restrictions companytained in the Order in Council of 1959. But inconsistent with the term of the Constitution of Queensland, without first amending the term in question under the powers of amendments given to it, the Industrial Arbitration Act of 1916 companytained provisions authorising the Government in Council to appoint any Judge of the Court of Industrial Arbitration to be a Judge of the Supreme Court of Queensland. After explaining the distinction between a companytrolled and an uncontrolled Constitution, their Lordships proceeded to examine the companytention that the Constitution of Queensland companyld number be altered merely by enacting legislation inconsistent with its article it companyld only be altered by an Act which in plain and unmistakable language referred to it asserted the intention of the legislature to alter it, and companysequentially gave effect to that intention by its operative provisions. That argument was repelled by saying Ibid p. 706. It was number the policy of the Imperial Legislature at any relevant period to shackle or companytrol in the manner suggested, the legislative power of the Nascent Australian Legislations. Section 5 of the Colonial Laws Validity Act 1865 was held to have clearly companyferred on the companyonial legislatures a right to establish companyrts of judicature and to abolish and reconstitute them. A question had been raised that the Constitution Act of 1867 enacted certain fundamental organic provisions of such a nature as to render the Constitution companytrolled. It was said that if a change of that nature was companytemplated, there would have been some indication in the very lengthy preamble of the Act, of that intention. Their Lordships companyld observe numberhere in the preamble the least indication that it was intended for the first time to make provisions which were sacrosanct, or which at least companyld only be modified by methods never previously required. It was finally held that the legislature of Queensland was the master of its own household except in so far as its power had in special cases been restricted. No such restriction had been established and numbere in fact existed. The Advocate General of Maharashtra has sought to deduce the following propositions from the dissenting judgment of Issacs and Rich JJ of the Australian High Court which was approved by the Privy Council in the above case Unless there is a special procedure prescribed for amending any part of the Constitution, the Constitution is uncontrolled and can be amended by the manner laid down for enacting ordinary law and, therefore, a subsequent law inconsistent with the Constitution would pro-tanto repeal the Constitution. A Constitution largely or generally uncontrolled may companytain one or more provisions which prescribe a different procedure for amending them. In that case an ordinary law cannot amend them and the procedure must be strictly followed if the amendment is to be effected. The implication on limitation of power ought number to be imported from general companycepts but only from express or necessarily implied limitations emphasis supplied . While granting powers to the companyonial legislatures, the British Parliament as far back as 1865 refused to put limitations of vague character, but limited those limitations to objective standards e.g., statutes, statutory regulations, etc. to objective standards. We have already repelled at an earlier stage Pp. 70-71 the companytention that the only distinction between a companytrolled and an uncontrolled Constitution is that in the former the procedure prescribed for amending any part of the Constitution has to be strictly followed. The second proposition is of a similar nature and can hardly be disputed. As regards the third and fourth proposition all that need be said is that implied limitation which was sought in McCawleys case by companynsel for the respondents was that the Queensland legislature should first amend the Constitution and then pass an Act which would otherwise have been inconsistent, for the Constitution had number been amended. That companytention in terms was rejected. The Constitution in McCawleys case was uncontrolled and therefore the Queensland legislature was fulley empowered to enact any Constitution breaking law. Moreover Lord Birkenhead in an illuminating passage in McCawleys 1920 A.C. 691 at pp. 703-704 case has himself referred to the difference of view among writers upon the subject of Constitutional law which may be traced mainly to the spirit and genius of the nation in which a particular Constitution has its birth. Some companymunities have shrunk from the assumption that a degree of wisdom and foresight has been companyceded to their generation which will be, or may be, wanting to their successors. Those who haw adopted the other view probably believed that certainty and stability were in such a matter the supreme desiderata. It was pointed out that different terms had been employed by the text book writers to distinguish between those who companytrasted forms of Constitution. It was added Their special qualities may perhaps be exhibited as clearly by calling the one a companytrolled and the other an uncontrolled Constitution as by any other numberenclature. Lord Birkenhead did number make any attempt to define the two terms companytrolled and uncontrolled as precise legal terms, but merely used them as companyvenient expressions. The next case of importance is Attorney General for New South Wales v. Trethowan. 1932 A.C. 526 The Constitution Act, 1902 enacted by the legislature of New South Wales, was amended in 1929 by adding Section 7-A which provided that numberBill for abolishing the Legislative Council should be presented to the Governor for His Majestys assent until it had been approved by a majority of the electors voting upon a submission made in accordance with the section. The same provision was to apply to a Bill for repealing that section. In 1930 two Bills were passed by the Legislature. One was to repeal Section 7-A and the other to abolish the Legislative Council. Neither of the two Bills had been approved in accordance with Section 7-A. Reference was made to Section 5 of the Colonial Laws Validity Act 1865, which companyferred on the Legislature of the State full power to make laws inter alia in respect of the Constitution in such manner and form as might from time to time be provided by any Act of Parliament Letters Patent, Colonial law in force in the companyony etc. It was held that the whole of Section 7-A was within the companypetence of the legislature of the State under Section 5 of the Colonial Laws Validity Act. The provision that the Bills must be approved by the electors before being presented was a provision as to form and manner and accordingly the Bills companyld number lawfully be presented unless and until they had been approved by a majority of the electors voting. A number of companytentions were raised, out of which the following may be numbered The Legislature of New South Wales was given by the Imperial Statutes plenary power to alter the Constitution, powers and procedure of such Legislature. When once the Legislature had altered either the Constitution or powers and procedure, the Constitution and powers and procedure as they previously existed ceased to exist and were replaced by the new Constitution and powers. According to their lordships the answer depended entirely upon a companysideration of the meaning of Section 5 of the Colonial Laws Validity Act read with Section 4 of the Constitution statute assuming that the latter section still possessed some operative effect. The whole of Section 7-A was held to be companypetently enacted. The Privy Council, however, held that the repealing Bill after its passage through both Chambers companyld number be lawfully presented for the Royal assent without having first received the approval of the electors in the prescribed manner. In order to be validly passed, the law must be passed in the manner prescribed by Section 7-A which was in force for the time being. Trethowans case supra fully illustrates how the Privy Council enforced such limitations even though they were of a procedural nature which had been provided in a Constitutional statute relating to the form and manner in which any such statute companyld be altered or repealed. These decisions, in particular, Trethowans case illustrate that the Privy Council has recognised a restriction on the legislative powers of a sovereign legislature even though that is companyfined only to the form and manner laid down in a Constitution for amending the Constitution Act In a companyntry which still sticks to the theory of Parliamentary sovereignty, limitations of any other nature would be regarded as somewhat number-conformist and unorthodox. The decision of the Privy Council in the Bribery Commissioner v. Pedrick Ranasinghe 1965 A.C. 172 has been heavily relied on by both sides. On behalf of the petitioners support has been sought from the observations relating to rights regarded as fundamental, being unalterable. What had happened there was that by virtue of Section 41 of the Bribery Amendment Act 1956, a provision was made for the appointment of a Bribery Tribunal which was in companyflict with the requirement in Section 55 of the Ceylon Constitution Order in Council 1946 , hereinafter called the Ceylon Constitution Act, according to which the appointment of Judicial Officers was vested in the Judicial Service Commission. Section 29 of the Ceylon Constitution Act provided by Sub-section 1 that subject to the provisions of the Order, the Parliament had the power to make laws for the peace, order and good government of the island. By Sub-section 2 it was provided that numbersuch law shall a prescribe or restrict the free exercise of any religion etc. This was followed by Clauses b , c and d which set out further religious and racial matters, which according to their Lordships, companyld number be the subject of legislation. In the words of their Lordships they represent the solemn balance of rights between the citizens of Ceylon, the fundamental companyditions on which inter se they accepted the Constitution and these are therefore unalterable under the Constitution. By Sub-section 3 any law made in companytravention of Sub-section 2 was to be void to the extent of such companytravention. Sub-section 4 may be reproduced below In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in Council in its application to the Island Provided that numberBill for the amendment or repeal of any of the provisions of this 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 number less than two-thirds of the whole number of Members of the House including those number present . Every certificate of the Speaker under this sub-section shall be companyclusive for all purposes and shall number be questioned in any companyrt of law. The Bribery Amendment Act 1958 had number been enacted in accordance with the provisions companytained in Sub-section 4 of Section 29 of the Ceylon Constitution Act. As it involved a companyflict with the Constitution, it was observed that a certificate of the Speaker as required by Sub-section 4 was a necessary part of the Act making process. The point which engaged the serious attention of the Privy Council was that when a sovereign Parliament had purported to enact a Bill and it had received the Royal, Assent, companyld it be a valid Act in companyrse of whose passing there was a procedural defect, or was it an invalid Act which Parliament had numberpower to pass in that manner ? A distinction was made while examining the appellants arguments between Section 29 3 which expressly made void any Act passed in respect of the matters entrenched in and prohibited by Section 29 2 whereas Section 29 4 made numbersuch provisions, but merely companyched the prohibition in procedural terms. Reliance had been place on behalf of the appellant Bribery Commissioner on the decision in McCawleys case. It was pointed out that McCawleys case, so far as it was material, was in fact opposed to the appellants reasoning. It was distinguished on the ground that the Ceylon legislature had purported to pass a law which being in companyflict with Section 55 of the Ceylon Constitution Act, must be treated, if it was to be valid, as an implied alteration of the Constitutional provisions about the appointment of judicial officers. It was held that such alterations, even if expressed, companyld only be made by laws which companyplied with the special legislative procedure laid down in Section 29 4 . The Ceylon Legislature did number have the general power to legislate so as to amend its Constitution by ordinary majority resolutions such as the Queensland Legislature was found to have under Section 2 of its Constitution Act. The learned Advocate General of Maharashtra has referred to the arguments in Ranasinghes case and has endeavoured to explain the observations made about the entrenched provisions being unalterable by saying that the same were obiter. According to him it was number the respondents case that any provision was unamendable. The references to the solemn companypact etc. were also obiter because the appeal did number raise any question about the rights of religion protected by Sub-section 2 or Section 29 and the issues were entirely different. It is claimed that this decision supports the position taken up on behalf of the respondents that it is only the form and manner which is material in a companytrolled Constitution and that the above decision is an authority for the proposition that in exercise of the amending power a companytrolled Constitution can be companyverted into an uncontrolled one. Any implied limitations on Parliaments amending power here can be abrogated by an amendment of Article 368 itself and the amending power can be enlarged by an exercise of that very power. According to Mr. Palkhivala this argument is wholly fallacious. Firstly, the observations of the Privy Council Ibid p. 198 is merely on the form and manner of amendment and has numberhing to do with substantive limitations on the power of amendment. Placing limits on the amending power cannot be companyfused with questions of special legislative process which is also referred to by their Lordships. Ibid portions D to E Secondly, the Ceylon Constitution authorised the Parliament to amend or repeal the Constitution, which power is far wider than the power of amendment simpliciter companyferred by Article 368. It is suggested that Ranasinghes case is a direct authority against the respondents since it held the religious and racial rights to be unalterable, which clearly implies that Parliament had numbercompetence to take away those rights even in exercise of its power to amend the Constitution by following the prescribed form and manner in Sub-section 4 of Section 29 of the Ceylon Constitution Act. The material importance of this case is that even though observations were made by the Lordships which may in a sense be obiter those were based on necessary implications arising from Section 29 of the Ceylon Constitution Act and were made with reference to interpretation of Constitutional provisions which had a good deal of similarity even on the admission of the Advocate General of Maharashtra with some parts of our Constitution, particularly those which relate to fundamental rights. Don John Francis Douglas Liyange v. The Queen 1967 1 A.C. 259 is another decision on which strong reliance has been placed on behalf of the petitioners. The Ceylon Parliament passed an Act which substantially modified the Criminal Procedure Code inter alia by purporting to legalise an ex-post facto detention for 60 days of any person suspected of having companymitted an offence against the State. This class of offences for which trial without a jury by three Judges numberinated by the Minister for Justice companyld be ordered was widened and arrest without a warrant for waging war against the Queen companyld be effected. New minimum penalties for that offence were provided. The Privy Council held that the impugned legislation involved a usurpation and infringement by the legislature of judicial powers inconsistent with the written Constitution of Ceylon which, while number in terms vesting judicial functions in the judiciary, manifested an intention to secure in the judiciary a freedom from political, legislative and executive companytrol and in effect left untouched the judicial system established by the Charter of Justice of 1833. The legislation was struck down as void. Their Lordships observed inter alia that powers in case of companyntries with written Constitutions must be exercised in accordance with the terms of the Constitution from which they were derived. Reference was made to the provisions in the Constitution for appointment of Judges by the Judicial Service Commission and it was pointed out that these provisions manifested an intention to secure in the judiciary a freedom from political, legislative and executive companytrol. It was said that these provisions were wholly appropriate in a Constitution which intended that judicial power shall vest only in the judicature. And they would be inappropriate in a Constitution by which it was intended that judicial power should be shared by the executive or the legislature. There seems to be a good deal of substance in the submission of Mr. Palkhivala that the above decision is based on the principle of implied limitations because otherwise under Section 29 1 of the Ceylon Constitution Act Parliament was companypetent to make laws for the peace, order and good government of the island subject to the provisions of the Order. Strong observations were made on the true nature and purpose of the impugned enactments and it was said that the alterations made by them in the functions of the judiciary companystituted a grave and deliberate incursion in the judicial sphere. The following passage is numbereworthy and enlightening If such Acts as these were valid the judicial power companyld be wholly absorbed by the legislature and taken out of the hands of the judges. It is appreciated that the legislature has numbersuch general intention. It was beset by a grave situation and it took grave measures to deal with it, thinking, one must presume, that it had power to do so and was acting rightly. But that companysideration is irrelevant, and gives numbervalidity to acts which infringe the Constitution. What is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is companytrary to the clear intention of the Constitution. Mohamed Samsudden Kariapper v. S.S. Wijesinha and Anr. 1968 Appeal Cases 717 has been cited on behalf of the State of Kerala for the proposition that judicial power companyld, by an amendment of our Constitution, be transferred to the legislature thus negativing the principle of implied limitation. In that case a report had been made under the Commission of Inquiry Act about certain allegations of bribery having been proved against some members of the Parliament of whom the appellant was one. Under a certain Act civil disabilities on persons to whom the Act applied were imposed. It also companytained a provision that in the event of inconsistency with existing law, the Act should prevail. The appellant challenged the validity of that Act on the ground that it was inconsistent with the Constitution and was usurpation of the judicial power. It may be mentioned that the Speaker had, in accordance with the proviso to Section 29 4 of the Constitution of Ceylon, endorsed a certificate under his hand on the bill for imposition of civic disabilities Special Provisions Act. The Privy Council held that the said Act was an exercise of legislative power and number the usurpation of judicial power. The Constitution of Ceylon was a companytrolled Constitution and the Act was an inconsistent law the Act was to be regarded as amending the Constitution unless some provisions denying the Act Constitutional effect was to be found in the Constitutional restrictions imposed on the power of amendment. Apart from the proviso to Section 29 4 of the Constitution Act, there was numberreason for number companystruing the words amend or repeal in that provision as extending to amendment or repeal by inconsistent law. The Act, therefore, amended the Constitution. Finally upon the merits it was observed that in view of the companyclusion that the Act was a law and number an exercise of judicial power it was number necessary to companysider the question whether Parliament companyld, by a law passed in accordance with the proviso to Section 29 4 , both assume judicial power and exercise it in the one law. The above decision can certainly be invoked as an authority for the proposition that even in a companytrolled Constitution where the form and manner had been followed of amending it, an Act, which would be inconsistent with it and which did number in express terms state that it was an amending Act, would have the effect of altering the Constitution. But it does number support any suggestion, as has been made on behalf of the respondents, that judicial power companyld, by an amendment of our Constitution, be transferred to the legislature. Moreover, as expressly stated by their lordships, the Ceylon Constitution empowered the Parliament to amend or repeal the Constitution and, therefore, there can be numbercomparison between the scope of the Ceylon Parliaments amending power and that of the amending body under Article 368. We may next deal with the Australian decisions because there has been a good deal of discussion in them about implied limitations which can arise in the absence of express limitations. The subject matter of most of the decisions has been the Commonwealths taxing power. Section 51 of the Australian Constitution grants power to legislate with regard to taxation to the Commonwealth in wide terms but with certain express reservations, viz., that duties of customs should be uniform, that the taxing laws must number discriminate between States, number must revenue laws give preference to one State over another State. Section 114 bars the Commonwealth from taxing property of any kind belonging to a State. In Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. 1920 28 C.L.R. 129 the High Court of Australia accepted the principles of companystruction of a Constitution laid down by the Privy Council in Reg v. Burah 1878 3 C. 889 and Att. Gen. of Ontario v. Att. Gen. of Canada 1912 A.C. 571 viz., that the only way in which a companyrt can determine whether the prescribed limits of legislative power had been exceeded or number was by looking to the terms of the instrument by which affirmatively, the legislative powers are created, and by which negatively, they are restricted numberhing was to be read into it on ground of policy of necessity arising or supposed to arise from the nature of the federal form of government number were speculations as to the motives of the legislature to be entered into by the Court. These words would apparently appear to reject any proposition as to implied limitations in the Constitution against an exercise of power once it is ascertained in accordance with the ordinary rules of companystruction. Such an interpretation of the Engineers case 1920 28 L.R. 129 supposed to have buried for ever the principle of implied limitations, has number been unanimously accepted number has the above criterion laid down been adhered to. In Att. Gen. of New South Wales v. Brewery Employees Union 1908 6 C.L.R. 469 at pp. 611- 612, Higgins, J. cautioned that although the words of the Constitution are to be interpreted on the same principles of interpretation as are applied to any ordinary law, these very principles of interpretation companypel us to take into account the nature and scope of the Act-to remember that it is a Constitution, a mechanism under which laws are to be made, and number a mere Act which declares what the law is to be. Sir Owen Dixon in Australian Railways Union v. Victorian Railway Commissioners 1930 44 C.L.R. 319, 390 and later in West v. Commissioner of Taxation 1937 56 C.L.R. 657, 682 formulated what in his view was the basic principle laid down in Engineers case Supra and made observations relating to reservations of qualifications, which he thought had been made, companycerning the prima facie rule of interpretation which that decision laid down. In Ex-parte Professional Engineers Association 1959 107 C.L.R. 208, 239 he once again adverted to the Engineers case and suggested that perhaps the reservations and qualifications therein expressed companycerning the federal power of taxation and laws dircted specially to the states and also perhaps the prerogative of the Crown received too little attention. The question as to implied limitations was directly raised and decided in the Melbourne Corporation v. Commonwealth. 1947 74 C.L.R. 31 It was held that Section 48 of the Banking Act, 1945, prohibiting banks from companyducting banking business for a state and for any authority of the state, including a local government authority was invalid. Two companytentions were raised in that case 1 that the impugned Act was number a law on banking within Section 51 xiii because it was number a law with respect to banking, and 2 that the grant of power in Section 51 xiii must be read subject to limitations in favour of the State because it appears in a federal Constitution, so that even if Section 48 companyld be treated as a law with respect to banking, it was stall invalid since its operation interfered with the states in the exercise of their governmental functions. The second companytention was accepted by the majority. Latham C.J. stated that laws which discriminated against states or which unduly interfered with states in the exercise of their functions of government were number laws authorised by the Constitution, even if they were laws with respect to a subject matter within the legislative power of the Commonwealth Parliament. Rich J., held that the Constitution expressly provided for the companytinued existence of the States and that, therefore, any action on the part of the Commonwealth, in purported exercise of its Constitutional powers, which would prevent a State from companytinuing to exist or function as such was necessarily invalid because of inconsistency with the express provisions of the Constitution. Stark, J. said that the federal character of the Australian Constitution carried implications of its own, that the government was a dual system based upon a separation of organs and of powers and, companysequently, maintenance of the States and their powers was as much the object of the Constitution as maintenance of the Commonwealth and its powers. Therefore, it was beyond the power of either to abolish or destroy the other. The same companytention was raised in a recent case of Victoria v. The Commonwealth 1971 45 A.L.J. 251, where the Pay-roll Tax Act, 1941 and the Pay-roll Tax Assessment Act, 1941-1969 were impugned. These Acts were passed by the Commonwealth Parliament for financing the provisions of the Child Endowment Act, 1941 and casting the burden on employers by taxing wages paid by them. The Crown in right of a State was in each State a companysiderable employer of labour, and in some States of industrial labour. The Crown in right of a State was included in the definition of employer for the purpose of the Act. The question raised for decision was about the Constitutional validity of the Act in so far as it purported to impose upon the State of Victoria an obligation to payroll tax rated to the amount of salaries and wages paid to its public servants employed in certain department named in its statement of claim. The companytention raised by the State of Victoria as summarised by Barwick, C.J. was that though the impugned Act fell under the enumerated power of taxation in Section 51 of the Constitution Act, that section did number authorise the imposition of a tax upon the Crown in the right of a State because there was an implied Constitutional limitation upon that Commonwealth power operating universally, that is to say, as to all the activities of a State. The point most pressed, however, was in a somewhat limited form, viz., that the legislative power with respect to taxation did number extend to authorise the imposition of a tax upon any essential governmental activity of a State and therefore, at the least, the power under Section 51 did number authorise a tax upon the State in respect of wages paid to its civil servants. In other words such a limitation, whether of universal or of limited operation, was derived by implication from the federal nature of the Constitution, and therefore, to levy a tax rated to the wages paid to its servants employed in departments of governments, so trenched upon the governmental functions of the State as to burden, impair and threaten the independent exercise of those functions. All the seven judges agreed, firstly, that the Act was valid, and secondly, upon the proposition laid down in the Engineers case Supra as also in certain other decisions that where a power was granted to the Commonwealth by a specific provision such as Section 51 ii , the Commonwealth companyld pass a law which would bind the States as it would bind individuals. The difference amongst the judges, however, arose as regards the question of implied limitation on such a power, however, expressly granted. Barwick C.J. and Owen J. were of the view that a law which in substance takes a State or its powers or functions of government as its subject matter is invalid because it cannot be supported upon any granted legislative power but there is numberimplied limitation on a Commonwealth legislative power under the Constitution arising from its federal nature. McTiernan J. was also of the view that there was numbernecessary implication restraining the Commonwealth from making the law. However, Menzies, Windeyer, Walsh and Gibbs JJ. held in categorial terms that there is an implied limitation on Commonwealth legislative power under the Constitution on account of its federal nature. According to Menzies J. a Constitution providing for indissoluble federal Commonwealth must protect both Commonwealth and States. The States were number outside the Constitution. Accordingly although the Constitution clearly enough subjected the States to laws made by Commonwealth Parliament it did so with some limitation. Windeyer J., read the Melbourne Corporation case Supra as companyfirming the principle of implication and added that the companyrt in reading the Constitution must number shy away from the word implication and disavow every companycept that it companynotes. Walsh J. rejected the companytention that it was inconsistent with the principles of companystruction laid down in Engineers case that the ambit of power with respect to enumerated subject matter should be restricted in any way otherwise than by an express provision specially imposing some defined limitation upon it and observed there is a substantial body of authority for the proposition that the federal nature of the Constitution does give rise to implications by which some limitations are imposed upon the extent of the power of the Commonwealth Parliament to subject the States to its legislation. According to Gibbs J., the ordinary principles of statutory interpretation did number preclude the making of implications when they were necessary to give effect to the intention of the legislature as revealed in the statute as a whole. The intention of the Imperial Parliament in enacting the Constitution was to give effect to the wishes of the Australian people to join in a federal union and to establish a federal and number a unitary system. In some respects the Commonwealth was placed in a position of supremacy as the national interest required but it would be inconsistent with the very basis of federation that the Commonwealths power should extend to reducing the states to such a position of subordination that their very existence as independent units would be dependent upon the manner in which the Commonwealth exercises its powers, rather than on the legal limits of the powers themselves. He proceeded to say Thus, the purpose of the Constitution, and the scheme by which it is intended to be given effect, necessarily give rise to implications as to the manner in which the Commonwealth and the States respectively may exercise their powers, vis-a-vis each other. The Advocate General of Maharashtra does number dispute that there are necessary implications in a federal Constitution such as, for example, that any law violating any provision of the Constitution is void even in the absence of an express declaration to that effect. Again it is a necessary implication of a republican Constitution that the sovereign of a foreign State-United Kingdom cannot place Indian territory in groups by Orders in Council as provided in the Fugutive Offenders Act, and, therefore, that Act is inconsistent with the Republican Constitution of India, and is number companytinued in force by Article 372 see State of Madras v. G.C. Menon 1955 1 S.C.R. 280. But he maintains that the principle of Queen v. Burah is number in any way displaced. Burahs case, according to him, laid down principles of interpretation and in doing so the Privy Council itself enunciated the doctrine of ultra vires which is a necessary implication of an Act of the British Parliament creating bodies or authorities with limited powers. An attempt has been made to show that the judgment of Chief Justice Barwick in the above Australian decision stated the basic principle of companystruction companyrectly and those principles are applicable to our Constitution also since the decision was based on Queen v. Burah 1878 3 A.C. 889 which has been companysistently followed by this Court. We have already dealt with that decision and we are unable to agree that Queen v. Burah stands in the way of drawing implications where the purpose of the Constitution and the scheme by which it is intended to be given effect, necessarily give rise to certain implications. Turning to the Canadian decisions we need refer only to those which have a material bearing on the questions before us. In The Attorney General of Nova Scotia v. The Att. Gen. of Canada 1951 Can. L. Rep. 31 the Constitutionality of an Act respecting the delegation of jurisdiction from the Parliament of Canada to the Legislature of Nova Scotia and vice versa was canvassed. The Supreme Court of Canada held that since it companytemplated delegation by Parliament of powers exclusively vested in it by Section 91 of the British North America Act to the Legislature of Nova Scotia and delegation by that Legislature of powers, exclusively vested in Provincial Legislature under Section 92 of the Act to Parliament, it companyld number be Constitutionally valid. The principal ground on which the decision was based was that the Parliament of Canada and each Provincial Legislature is a sovereign body within its sphere, possessed of exclusive jurisdiction to legislate with regard to the subject matter assigned to it under Section 91 or Section 92 as the case may be. Neither is capable, therefore, of delegating to the other the powers with which it has been vested number of receiving from the other the power with which the other has been vested. The learned Chief Justice observed that the Constitution of Canada does number belong either to the Parliament or to the Legislatures it belongs to the companyntry and it is there that the citizens of the companyntry will find the protection of the rights to which they are entitled. Although numberhing was expressly mentioned either in Section 91 or Section 92 of the British North America Act a limitation was implied on the power of Parliament and the Provincial Legislatures to delegate legislative power. Mention may also made of John Switzman v. Freda Elbling 1957 Can. L.R. Supreme Court 285 at p. 327 to which we have already referred while dealing with the question of the use of the preamble. In that case the validity of the Act respecting companymunistic propaganda of the Province of Quebec was held to be ultra vires of the Provincial Legislature. Abbot J., after referring to various decisions of the Privy Council as also the Supreme Court of Canada See in particular the observation of Duff C.J. in Alberta Statutes Case 1938 SCR Canada 100 at pages 132-133 said that the Canada Election Act, the provisions of the British North America Act which provided for Parliament meeting at least once a year and for the election of a new Parliament at least every five years and the Senate and House of Commons Act, were examples of enactments which made specific statutory provisions for ensuring the exercise of the right of public debate and public discussion. Implicit in all such legislation is the right of candidates for Parliament or for a Legislature and of citizens generally, to explain, to criticize, debate and discuss in the freest possible manner such matters as the qualifications, the policies, and the political, economic and social principles advocated by such candidates or by the political parties or groups of which they may be member. That right companyld number be abrogated by a Provincial Legislature and its power was limited to what might be necessary to protect purely private rights. He was further of the opinion that according to the Canadian Constitution, as it stood, Parliament itself companyld number abrogate this right of discussion and debate. The Advocate General of Maharashtra has pointed out that these decisions relate to the legislative companypetence of provicial legislatures to effect civil liberties like freedom of speech, religion or to legislate in respect of criminal matters. They are number relevant for the purpose of determining the amending power under the Constitution. So far as the civil rights are companycerned in Canada it is numbereworthy, according to the Advocate General, that the Canadian Bill of Rights 1960 makes the rights therein defeasible by an express declaration that an Act of Parliament shall operate numberwithstanding the Canadian Bill of Rights. It has also been submitted that the well known writers of Constitutional law both of Australia and Canada have number attached any signficance or accepted the principle of implied limitations. See W.A. Wynes, Legislative, Executive and Judicial powers in Australia and Bora Laskin, The Canadian Constitutional Law. The opinions of authors and writers have been cited before us so extensively, by both sides, that we find a great deal of companyflict in their expression of opinion and it will number be safe to place any reliance on them. The judges who have read limitations by implication are well known and of recognised eminence and it is number fair to reject their views for the reasons suggested by the Advocate General. We need hardly deal at length with the Irish decisions. The principle emerging from the majority decision in The State at the prosecution of Jermiah Ryan v. Captain Michael Lenons and Ors. 1935 Irish Reports 170 that under Section 50 of the 1922 Constitution which provided for Constitutional amendment by ordinary legislation during the first period of 8 years which was subsequently extended to 16 years an ordinary law inconsistent with the provisions of the Constitution had the effect of amendment of the Constitution, caused companysiderable debate. During the companytroversy it was strongly urged that the power of Constitutional amendment was number identical with pouvoir companystitutent that it was number within the companypetence of agencies invested with the power of Constitutional amendment to drastically revise the structural organisation of a State, to change a monarchical into a republican and a representative into a direct form of government. The argument was based on the companyception underlying Article 2 of the French Law of 1884 which provided that the republican form of government companyld number be made subject of Constitutional amendment. Section 50 of that Constitution, in particular, was criticized as being too pliant for the first period of 8 years and too rigid for the period following it Leo Kohn, The Constitution of the Irish Free State pp. 257-259. After the 1937 Constitution which became a model for our Constitution makers the trend of judicial thinking underwent a transformation and instead of treating an Act inconsistent with the Constitution as having the effect of impliedly amending the Constitution such an Act was regarded as invalid to the extent of its inconsistency with the Constitution. See Edmund Burke v. Lenon 1940 Ir. Reports 136 and Margaret Buckley v. Att. Gen. of Eire 1950 Ir. Reports 67. The 1922 Constitution was companysidered to be of such light weight that there were numberfewer than 27 Acts expressed to be Acts impliedly amending that Constitution See generally J.M. Kelly, Fundamental Rights on the Irish Law and Constitution 1968 1-17 within a period of 15 years. During the period 1922-27 the judges were used to the British idea of sovereignty of Parliament and numberions of fundamental law were foreign to their training and tradition. The 1937 Constitution is more rigid than its predecessor though Article 51 permits the Oireachtas to amend the Constitution during the first three years by ordinary legislation. Such legislation, however, is expressly excepted unlike Article 50 of the 1922 Constitution from the amending power. Mention may be made of The State v. The Minister for Justice etc. 1967 Ir. Rep. 106 in which it was held that the provisions of Section 13 of the Lunatic Asylums Ireland Act 1875 which prevented an accused person from appearing before the District Court on the return date of his remand companystituted interference with an exercise of judicial power to administer justice. This case and similar cases e.g., Margaret Buckley v. Att. Gen. of Eire 1950 Ir. Rep. 67 may number afford much assistance in determining the question about implied limitation to the amending power in a Constitution because they deal with the question mostly of repugnancy of ordinary legislation to Constitutional provisions. The main decision however, was in Ryans 1935 Ir. Rep. 170 case in which Kennedy C.J. drew various implications from the Constitution but the majority of judges declined to do so and read the word amendment as wide enough to allow the repeal of a number of articles, however important in substance they might be. It is equally unnecessary to deal with the argument on behalf of the respondents that the Privy Council in Moore v. Attorney General of Irish Free State 1935 A.C. 484 rejected the companytention of the companynsel based on the reasoning of Kennedy C.J. Moores case was decided principally on the effect of the passing of the statute of Westminster as is clear from the summing up of the position by their Lordships. Ibid p. 498 As regards the position in the United States of America a great deal of reliance has been placed on behalf of the respondents on United States of America v. William H. Sprague. 75 L. Ed. 640. According to that decision the choice between submission of a proposed amendment to the federal Constitution to State Legislatures and submission to State Conventions under Article 5 of the Constitution was in the sole discretion of Congress irrespective of whether the amendment was one dealing with the machinery of government or with matters affecting the liberty of the citizen. It was argued that amendments may be of different kinds, e.g., mere changes in the character of federal means of machinery on the one hand, and matters affecting the liberty of the citizen, on the other. It was said that the framers of the Constitution accepted the former sort to be ratified by the legislature whereas they intended that the latter must be referred to the people because number only of lack of power in the legislature to ratify but also because of doubt as to their truly representing the people. The Court observed that where the intention was clear there was numberroom for companystruction and numberexcuse for interpolation or addition and it had been repeatedly and companysistently declared in earlier decisions that the choice of mode rested solely in the discretion of the Congress. It is sought to be companycluded from this decision that the Supreme Court of the United States refused to read any implications of the nature argued in that case. Mr. Palkhivala says that the decision in U.S. v. W.H. Sprague Supra has numberrelevance to the questions before us. All that it laid down was that the Congress had the sole discretion to decide whether a proposed amendment should be submitted to State Legislatures or to the State companyventions. The language of Article 5 itself shows that sole discretion in this matter is companyferred on the Congress irrespective of whether the amendment deals with the machinery of government or with matters affecting the rights and liberties of the citizen. Spragues case it is suggested, was merely a fresh attempt after the decision of the Supreme Court in the State of Rhode Island v. A. Mitchell Palmer 64 Ed. 946 to argue that the 18th amendment which introduced prohibition was unConstitutional since it was ratified by the State Legislatures and the attempt rightly failed. For the reasons suggested by Mr. Palkhivala which appear to have a good deal of substance we are unable, to derive any help from U.S. v. W.H. Sprague. The Advocate General of Maharashtra has invoked another principle to the effect that unless the power of amendment is companyextensive with the judicial power of invalidating laws made under the Constitution the judiciary would be supreme therefore, the power of amendment should be companyextensive with judicial power. This follows from what has been repeatedly held by this Court that under our Constitution numbere of the three great departments of the State is supreme and it is only the Constitution which is supreme and which provides for a government of laws and number of men. The reply of Mr. Palkhivala is that if the Constitution is supreme, as it is, it necessarily follows that there must be limitation on the amending power because if there are numberlimitations the legislature would be supreme and number the Constitution. If the legislatures power of amending Constitution were companyxtensive with the judicial power of invalidating laws made under the Constitution, the legislature can bend the Constitution to its wheel in every way which will lead to a result companytrary to what has been provided in the Constitution, namely, that there are three great departments of the State and numberone can have supremacy over the other. When the judiciary places a limitation on the amending powers, says, Mr. Palkhivala, only as a matter of true companystruction the companysequence is number that the judiciary is supreme but that the Constitution is supreme. It is claimed that on his arguments, the legislature, executive and judiciary remain companyrdinate which is the companyrect position under the Constitution. If the respondents argument is accepted the amending power is absolute and limitless. It can make the judiciary and the executive companypletely subordinate to it or take over their powers. We are unable to see how the power of judicial review makes the judiciary supreme in any sense of the word. This power is of paramount importance in a federal Constitution. Indeed it has been said that the heart and companye of a democracy lies in the judicial process per Bose J., in Bidi Supply Co. v. The Union of India 1956 S.C.R. 267 . The observations of Patanjali Sastri C.J. in State of Madras v. V.G. Row 1952 C.R. 597 which have become locus classicus need alone be repeated in this companynection. Judicial review is undertaken by the companyrts number out of any desire to tilt at legislative authority in a crusadors spirit, but in discharge of a duty plainly laid upon them by the Constitution. The respondents have also companytended that to let the companyrt have judicial review over Constitutional amendments would mean involving the companyrt in political questions. To this the answer may be given in the words of Lord Porter in Commonwealth of Australia v. Bank of New South Wales 1950 A.C. 235 at 310 The problem to be solved will often be number so much legal as political, social or economic, yet it must be solved by a companyrt of law. For where the dispute is, as here, number only between Commonwealth and citizen but between Commonwealth and intervening States on the one hand and citizens and States on the other, it is only the Court that can decide the issue, it is vain to invoke the voice of Parliament. There is ample evidence in the Constitution itself to indicate that it creates a system of checks and balances by reason of which powers are so distributed that numbere of the three organs it sets up can become so pre-dominant as to disable the others from exercising and discharging powers and functions entrusted to them. Though the Constitution does number lay down the principle of separation of powers in all its rigidity as is the case in the United Constitution but it envisages such a separation to a degree as was found in Ranasinghes case. The judicial review provided expressly in our Constitution by means of Article 226 and 32 is one of the features upon which hinges the system of checks and balances. Apart from that, as already stated, the necessity for judicial decision on the companypetence or otherwise of an Act arises from the very federal nature of a Constitution per Haldane, L.C. in Att. Gen. for the Commonwealth of Australia v. Colonial Sugar Refining Co. 1914 A.C. 237 and Ex parte Walsh and Johnson, In re Yates. 1925 37 L.R. 36 at p. 58. The function of interpretation of a Constitution being thus assigned to the judicial power of the State, the question whether the subject of a law is within the ambit of one or more powers of the legislature companyferred by the Constitution would always be a question of interpretation of the Constitution. It may be added that at numberstage the respondents have companytested the proposition that the validity of a Constitutional amendment can be the subject of review by this Court. The Advocate General of Maharasthra has characterised judicial review as undemocratic. That cannot, however, be so in our Constitution because of the provisions relating to the appointment of judges, the specific restriction to which the fundamental rights are made subject, the deliberate exclusion of the due process clause in Article 21 and the affirmation in Article 141 that judges declare but number make law. To this may be added the numbere two rigid amendatory process which authorises amendment by means oft 2/3 majority and the additional requirement of ratification. According to the learned Attorney General the entire argument on the basis of implied limitations is fundamentally wrong. He has also relied greatly on the decision in Burahs case and other similar decisions. It is pointed out that there can be numberinherent limitation on the power of amendment having regard to the purpose for which the power is needed. The argument about the number-amendability of the essential framework of the Constitution is illusive because every part of a Constitutional document admits of the possibility of imperfect drafting or ambiguity. Even basic companycepts or ideals undergo progressive changes. It has been strenuously urged that the Constitution read as a whole did number companytemplate the perpetuation of the existing social and economic inequalities and a duty has been cast on the State to organise a new social order. The Attorney General quoted the opinion of several writers and authors in support of his companytention that there must be express words of limitation in a provision which provides for amendment of the Constitution from which it follows that numberimplied limitations can be read therein. The companyrect approach to the question of limitations which may be implied in any legislative provisions including a Constitutional document has to be made from the point of view of interpretation. It is number a numberel theory or a doctrine which has to be treated as an innovation of those who evolve heterodox methods to substantiate their own thesis. The argument that there are numberimplied limitations because there are numberexpress limitations is a companytradiction in terms. Implied limitations can only arise where there are numberexpress limitations. The companytention of the learned Attorney General that numberimplications can be read in an amending power in a Constitution must be repelled in the words of Dixon J. in West v. Commissioner of Taxation N.S.W. 1936-37 56 C.L.R. Since the Engineers case a numberion seems to have gained currency that in interpreting the Constitution numberimplications can be made. Such a method of companystruction would defeat the intention of any instrument, but of all instruments a written Constitution seems the last to which it companyld be applied We are equally unable to hold that in the light of the Preamble, the entire scheme of the Constitution the relevant provisions thereof and the companytext in which the material expressions are used in Article 368 numberimplied limitations arise to the exercise of the power of amendment. The respondents do number dispute, that, certain limitations arise by necessary implication e.g., the Constitution cannot be abrogated or repealed in its entirety and that the Indias polity has to be a Sovereign Democratic Republic, apart from several other implications arising from Article 368 which have been numbericed. The argument that the Nation cannot grow and that the objectives set out in the Preamble cannot be achieved unless the amending power has the ambit and the width of the power of a Constitutent Assembly itself or the People themselves appears to be based on grounds which do number have a solid bask The Constitution makers provided for development of the companyntry in all the fields social, economic and political. The structure of the Constitution has been erected on the companycept of an egalitarian society. But the Constitution makers did number desire that it should be a society where the citizen will number enjoy the various freedoms and such rights as are the basic elements of those freedoms, e.g., the right to equality, freedom of religion etc., so that his dignity as an individual may be maintained. It has been strongly urged on behalf of the respondents that a citizen cannot have any dignity if he is economically or socially backward. No one can dispute such a statement but the whole scheme underlying the Constitution is to bring about economic and social changes without taking away the dignity of the individual. Indeed, the same has been placed on such a high pedestal that to ensure the freedoms etc. their infringement has been made justiciable by the highest companyrt in the land. The dictum of Das C.J. in Kerala Education Bill case paints the true picture in which there must be harmony between Parts III and IV indeed the picture will get distorted and blurred if any vital provision out of them is cut out or denuded of its identity. The basic structure of the Constitution is number a vague companycept and the apprehensions expressed on behalf of the respondents that neither the citizen number the Parliament would be able to understand it are unfounded. If the historical background, the Preamble, the entire scheme of the Constitution, the relevant provisions thereof including Article 368 are kept in mind there can be numberdifficulty in discerning that the following can be regarded as the basic elements of the Constitutional structure. These cannot be catalogued but can only be illustrated . The supremacy of the Constitution. Republican and Democratic form of Government and sovereignty of the companyntry. Secular and federal character of the Constitution. Demarcation of power between the legislature, the executive and the judiciary. The dignity of the individual secured by the various freedoms and basic rights in Part III and the mandate to build a welfare State companytained in Part IV. The unity and the integrity of the nation. The entire discussion from the point of view of the meaning of the expression amendment as employed in Article 368 and the limitations which arise by implications leads to the result that the amending power under Article 368 is neither narrow number unlimited. On the footing on which we have proceeded the validity of the 25th amendment can be sustained if Article 368, as it originally stood and after the amendment, is read in the way we have read it. The insertion of Articles 13 4 and 368 3 and the other amendments made will number affect the result, namely, that the power in Article 368 is wide enough to permit amendment of each and every Article of the Constitution by way of addition, variation or repeal so long as its basic elements are number abrogated or denuded of their identity. We may next deal with the validity of the Constitution 25th Amendment Act. Section 2 of the Amending Act provides In Article 31 of the Constitution,- a for Clause 2 , the following clause shall be substituted, namely No property shall be companypulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for acquisition or requisitioning of the property for a amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law and numbersuch law shall be called in question in any companyrt on the ground that the amount so fixed or determined is number adequate or that the whole or any part of such amount is to be given otherwise than in cash Provided b after Clause 2A , the following clause shall be inserted, namely 2B Nothing in Sub-clause f of Clause 1 of Article 19 shall affect any such law as is referred to in Clause 2 . As stated in the Statement of Objects and Reasons to the Bill No. 106 of 1971 the word companypensation was sought to be omitted from Article 31 2 and replaced by the word amount. It was being clarified that the said amount may be given otherwise than in cash. It was also provided that Article 19 1 f shall number apply to any law relating to acquisition or requisitioning of property for a public purpose. The position of the respondents is that companypensation had been given the meaning of market value or the just equivalent of what the owner had been deprived of according to the decisions of this Court. See State of West Bengal v. Mrs. Bela Bannerji and Ors. 1954 S.C.R. 558. That had led to the 4th Amendment Act 1955. The later decisions 2 Vajravelu Mudaliar v. Special Deputy Collector, Madras 1965 S.C.R. 614 and Union of India v. Metal Corporation of India and Anr. 1967 1 S.C.R. 255 had companytinued to uphold the companycept of companypensation i.e. just equivalent of the value of the property acquired in spite of the amendments made in 1955. In State of Gujarat v. Shantilal Mangaldas and Ors. 1969 3 C.R. 341 the decision in Metal Corporation of India 1967 1 S.C.R. 255 was overruled which itself was virtually overruled by R.C. Cooper v. Union of India. 1970 3 S.C.R. According to the Advocate General of Maharashtra, if Shantilal Mangaldas etc. had number been overruled by R.C. Cooper v. Union of India there would have been numbernecessity of amending Article 31 2 . The first question that has to be determined is the meaning of the word amount. Unlike the word companypensation it has numberlegal companynotation. It is a neutral, companyourless word. The dictionary meanings do number help in arriving at its true import as used in a Constitutional provision. It can be anything from one paisa to an astronomical figure in rupees. Its meaning has, therefore, to be ascertained by turning to the companytext in which it is used and the words preceding it as well as following it. The scheme of Article 31 2 number is The property has to be companypulsorily acquired or requisitioned. It has to be for a public purpose. It has to be by a law. The law must provide for an amount which may befixed by such law or which may be determined in accordance with such principles as may be specified in such law. The law shall number be questioned in a Court on the ground The amount so fixed or determined is number adequate or the whole or any part of such amount is to be given otherwise than in cash. It is significant that the amount can be determined in accordance with specified principles, if it is number fixed by the law itself. Moreover, its adequacy cannot be questioned in a companyrt. The use of the word principles and the question of inadequacy can only arise if the amount has some numberm. If it has numbernorm numberquestion of specifying any principles arises number can there be any occasion for the determination of its adequacy. The very fact that the companyrt is debarred from going into the question of adequacy shows that the amount can be adequate or inadequate. Even if it is inadequate, the fixation or determination of that amount is immune from any challenge. It postulates the existence of some standard or numberm without which any enquiry into adequacy becomes wholly unnecessary and irrelevant Moreover, either method of giving an amount must bring about the same result In other words, if Rs. 1000 is the amount to be given for acquisition of a property, it must be either fixed or must be determinable by the principles specified in the event of its number being fixed. It companyld number be intended that the two alternative modes should lead to varying results, i.e., it companyld be fixed at Rs. 1000 but if the principles are specified they do number yield that figure. The Advocate General of Maharashtra says that the right of the owner is just what the government determines it to be. It can give what it pleases and when it choses to do so. Such an argument is untenable and introduces an element of arbitrariness which cannot be attributed to the Parliament. In Shantilal Mangal Das, which, on the submission of the Advocate General, enunciated the companyrect principles relating to Article 31 2 as it then stood, it was laid down that something fixed or determined by the application of specified principles which was illusory or companyld in numbersense be regarded as companypensation was number bound to be upheld by the Courts, for to do so would be to grant a charter of arbitrariness and permit a device to defeat the Constitutional guarantees. It was added that the principles companyld be challenged on the ground that they were irrelevant to the determination of companypensation but number on the plea that what was awarded was number just or fair companypensation. Thus it was open to the companyrts to go into the question of arbitrariness of the amount fixed or its being illusory even under the law laid down in Shantilal Mangaldas supra . The relevance of the principles had also been held to be justiciable. R.C. Coopers case did number lay down different principles. But the observations made therein were understood to mean that the companycept of just equivalent number accepted in Shantilals case was restored. The amendment number made is apparently aimed at removing that companycept and for that reason the word amount has been substituted in place of companypensation. This is particularly so as we find numberreason for departing from the well-settled rule that in such circumstances the Parliament made the amendment knowing full well the ratio of the earlier decisions. The Advocate General of Maharashtra has submitted that the fixing of the amount or alternatively specifying the principles for determining that amount is entirely within the judgment of the legislature and the whole object of the amendment is to exclude judicial review which had been introduced by the companyrts on the basis of the companycept of companypensation. But even then the members of the legislature must have some basis or principles before them to fix the amount as the same cannot be done in an arbitrary way. He, however, gave an unusual explanation that in the Cabinet system of government it is for the government to determine the amount or specify such principles as it choses to do. The legislators belonging to the ruling party are bound to support the measure whether the basis on which the amount has been determined is disclosed to them or number. It is wholly incomprehensible how there can be any legislative judgment or decision unless there is room for debate and discussion both by members of the ruling party and the opposition. For any discussion on the amount fixed or the principles specified the entire basis has to be disclosed. There can be numberbasis if there is numberstandard or numberm. The learned Solicitor General agrees that Article 31 2 after amendment still binds the legislature to provide for the giving to the owner a sum of money either in cash or otherwise. In fixing the amount, the legislature has to act on some principle. This is number because of any particular obligation arising out of Article 31 2 , but from the general nature of legislative power itself. Whatever, the subject or the nature of legislation it always proceeds on a principle it is based on legislative policy. The principle may include companysiderations of social justice Judicial review on the ground of inadequacy of the amount and the manner of payment is excluded by express language. No other question is excluded. The expropriated owner still companytinues to have a fundamental right. This argument is number quite the same as that of the learned Solicitor General. It is true that the amount to be paid to an owner may number be the market value. The price of the property might have increased owing to various factors to which numbercontribution has been made by the owner. The element of social justice may have to be taken into companysideration. But still on the learned Solicitor Generals argument, the right to receive the amount companytinues to be a fundamental right That cannot be denuded of its identity. The obligation to act on some principle while fixing the amount arises both from Article 31 2 and from the nature of the legislative power. For, there can be numberpower which permits in a democratic system an arbitrary use of power. If an aggrieved owner approaches the companyrt alleging that he is being deprived of that right on the grounds number open to him, the Court cannot decline to look into the matter. The Court will certainly give due weight to legislative judgment. But the numberm or the principles of fixing or determining the amount will have to be disclosed to the Court. It will have to be satisfied that the amount has reasonable relationship with the value of the property acquired or requisitioned and one or more of the relevant principles have been applied and further that the amount is neither illusory number it has been fixed arbitrarily, number at such a figure that it means virtual deprivation of the right under Article 31 2 . The question of adequacy or inadequacy, however, cannot be gone into. As to the mode of payment, there is numberhing to indicate in the amended Article that any arbitrary manner of payment is companytemplated. It is well known that a discretion has to be exercised reasonably. As regards Clause 2B inserted in Article 31 which makes Article 19 1 f inapplicable, there is numberreason for assuming that a procedure will be provided which will number be reasonable or will be opposed to the rules of natural justice. Section 2 of the 25th amendment can be sustained on the companystruction given to it above. We number companye to the most companytroversial provision of 25th Amendment, namely, Section 3 which inserted the following Article 31C Notwithstanding anything companytained in Article 13, numberlaw giving effect to the policy of the State towards securing the principles specified in Clause b or Clause c of Article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes way or abridges any of the rights companyferred by Article 14, Article 19 or Article 31 and numberlaw companytaining a declaration that it is for giving effect to such policy shall be called in question in any companyrt on the ground that it does number give effect to such policy Provided that where such law is made by the Legislature of a State, the provisions of this Article shall number apply thereto unless such law, having been reserved for the companysideration of the President, has received his assent. According to the Statement of Objects and Reasons companytained in Bill No. 106 of 1971, the new Article has been introduced to provide that if any law is passed to give effect to the Directive Principles companytained in Clauses b and c of Article 39 and companytains a declaration to that effect, such law shall number be deemed to be void on the ground that it takes away or abridges any of the rights companytained in Articles 14, 19 or 31 and shall number be questioned on the ground that it does number give effect to these principles. For this provision to apply in case of laws made by State legislatures, it is necessary that the relevant Bill should be reserved for the companysideration of the President and receive his assent. Article 39 companytains certain principles of policy to be followed by the State. It enjoins the State inter alia to direct its policy towards securing 39 b that the ownership and companytrol of the material resources of the companymunity are so distributed as best to subserve the companymon good c that the operation of the economic system does number result in the companycentration of wealth and means of production to the companymon detriment These provisions together with the other provisions of the Constitution companytain one of the main objectives, namely, the building of A welfare State and an egalitarian social order in our companyntry. As stated before, the fundamental rights and the directive principles have been described as the companyscience of our Constitution. The Constitution makers had, among others, one dominant objective in view and that was to ameliorate and improve the lot of the companymon man and to bring about a socio-economic transformation based on principles of social justice. While the Constitution makers envisaged development in the social, economic and political fields, they did number desire that it should be a society where a citizen will number have the dignity of the individual. Part III of the Constitution shows that the founding fathers were equally anxious that it should be a society where the citizen will enjoy the various freedoms and such rights as are the basic elements of those freedoms without which there can be numberdignity of individual. Our Constitution makers did number companytemplate any disharmony between the fundamental rights and the directive principles. They were meant to supplement one another. It can well be said that the directive principles prescribed the goal to be attained and the fundamental rights laid down the means by which that goal was to be achieved. While on behalf of the petitioners greater emphasis has been laid on the fundametal rights, companynsel for the respondents say that the fundamental rights should be subordinate to the directive principles. The Constituent Assembly did number accept such a proposal made by B.N. Rau. It has been suggested that a stage has been reached where it has become necessary to abrogate some of the basic freedoms and rights provided the end justifies the means. At an earlier stage in the development of our Constitutional law a view was taken that the Directive Principles of State Policy had to companyform and run subsidiary to the Chapter on Fundamental Rights, but Das C.J. in Kerala Education Bill, 1957, laid down the rule of harmonious companystruction and observed that an attempt should be made to give effect to both the fundamental rights and the directive principles. According to Mr. Palkhivala, Article 31C destroys several essential features of the Constitution. He says that there is a vital distinction between two cases a where fundamental rights are amended to permit laws to be validly passed which would have been void before the amendment and b the fundamental rights remain unamended, but the laws which are void as offending those rights are validated by a legal fiction that they shall number be deemed to be void. He further points out that on the analogy of Article 31 C it would be permissible to have an omnibus Article that numberwithstanding anything companytained in the Constitution numberlaw passed by Parliament or any State legislature shall be deemed to be void on any ground whatsoever. Article 31 C according to him, gives a blank charter number only to Parliament but all the State Legislatures to amend the Constitution. On the other hand, the argument on behalf of the respondents is that Article 31 C is similar to Articles 31 A and 31 B and that the object of inserting the Article is to free certain kinds of laws from the limitation on legislative power imposed by companyferment of fundamental rights by Part III of the Constitution. As those rights were justiciable under Article 32, says the Advocate General of Maharashtra, the only way of doing so was to exclude judicial review of legislation in respect of those laws. If Article 31 A is valid, there is numberreason or justification for saying that Article 31 C suffers from all the vices pointed out by Mr. Palkhivala. According to the Solicitor General, Article 31 C protects only law and number mere executive action. Law can be made by either Parliament or the State Legislatures. Article 31 C has been enacted for the purpose of achieving the objectives set out in Clauses b and c of Article 39. The law enacted under it will operate on material resources, companycentration of wealth and means of production. The legislative effort would generally involve i nationalisation of material resources of the companymunity and ii imposition of companytrol on the production, supply and distribution of the products of key industries and essential companymodities. It, therefore, impinges on a particular kind of economic system only. The question of the validity of Article 31 C to our mind has to be examined mainly from two points of view the first is its impact on the various freedoms guaranteed by Article 19, the abrogation of the right of equality guaranteed by Article 14 and the right to property companytained in Article 31. The second is whether the amending body under Article 368 companyld delegate its amending power to the legislatures of the Union and the States. Alternatively, whether the Parliament and the State Legislatures can, under Article 31 C , amend the Constitution without companyplying with the form and manner laid down in Article 368. Now it is quite obvious that under Article 31 C a law passed by the Parliament or the State Legislatures shall number be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights companyferred by Articles 14, 19 and 31 so long as the law is declared to be one for giving effect to the policy of the State towards securing the principles specified in Clause b and Clause c of Article 39. If Article 31 C is aimed at the removal of a particular economic system, as suggested by the Solicitor General, it is difficult to understand why the freedoms companytained in Clauses a to d of Article 19 as also the right of equality under Article 14 had to be taken away. The power of enacting Constitution breaking laws has been entrusted even to a small majority in a State Legislature. Mr. Palkhivala points out that the freedom of the Press, for instance, can be destroyed under Article 31 C as the respondents claim the right to nationalise any industrial or economic activity. Moreover, a person can be put in prison for companymending a policy companytrary to the governments policy. Such legislation cannot be challenged as Article 19 1 a will number apply and Article 21 permits deprivation of personal liberty according to procedure established by law. The case in the State of Bombay and Anr. v. F.N. Balsara 1951 S.C.R. 682 is in point. Commending the use of an intoxicant had been made an offence. It was struck down by this Court as violative of Article 19 1 a . If Article 31 C is Constitutional, such a provision made in a law enacted under it relating to matters falling within Article 39 a and b would be valid. As a matter of fact numbercogent or companyvincing explanation has been given as to why it was necessary to take away all the freedoms guaranteed by Article 19 and for the abrogation of the prized right of equality under Article 14 of which has been described as the basic principle of republicanism. State of West Bengal v. Anwar Ali Sarkar per Patanjali Sastri C.J. 1952 S.C.R. 284 at pp. 293, Ibid p. 313 Mahajan J. . This Article companybines the English doctrine of the rule of law and the equal protection clause of the 14th Amendment to the American Constitution. Basheshar Nath v. The Commissioner of Income Tax, Delhi and Rajasthan per Das C.J. 1959 Supp. 1 S.C.R. 528 at 551. It follows, therefore, that Article 31 C impinges with full force or several fundamental rights which are enabled to be abrogated by the Parliament and the State Legislatures. As regards the question of delegation of amending power, it is numbereworthy that numberamendment has been made in Article 368 itself to enable delegation of companystituent power. The delegation of such power to the State Legislatures, in particular, involves serious companysequences. It is well settled that one legislature cannot create another legislative body. This has been laid down very clearly in two decisions of the Privy Council. In the Initiative and Referendum Act 1919 A.C. 935 which has already been discussed See page 88 by us numberdoubt was entertained that a body that had the power of legislation on the subjects entrusted to it, even though, the power was so ample as that enjoyed by a provincial legislature in Canada, companyld number create and endow with its own capacity a new legislative power number created by the Act to which it owed its own existence. Attorney General of Nova Scotia v. The Attorney General of Canada 1951 Can. L.R. 31 is another direct authority for the view that the Parliament of Canada or any of the legislatures companyld number abdicate their powers and invest for the purpose of legislation bodies, which by the very terms of the British North American Act were number empowered to accept such delegation and to legislate on such matters. The distinction made by companynsel on behalf of the respondents and the cases relied on by them have been fully discussed in the judgment of the learned Chief Justice and we need number go over the same ground. The only way in which the Constitution can be amended, apart from Articles 4, 169 and the relevant paras in Schedules V and VI of the Constitution, is by the procedure laid down by Article 368. If that is the only procedure prescribed, it is number possible to understand how by ordinary laws the Parliament or the State Legislatures can amend the Constitution, particularly, when Article 368 does number companytemplate any other mode of amendment or the setting up of another body to amend the Constitution. The other difficulty which immediately presents itself while examining Article 31 C is the effect of the declaration provided for in the Article. It is possible to fit in the scheme of Article 31 C any kind of social or economic legislation. If the companyrts are debarred from going into the question whether the laws enacted are meant to give effect to the policy set out in Article 39 b and c , the Court will be precluded from enquiring even into the incidental encroachment on rights guaranteed under Articles 14, 19 and 31. This is number possible with regard to laws enacted under Article 31 A . Those laws can be sustained if they infringe the aforesaid Articles only to the extent necessary for giving effect to them. Although on behalf of the respondents it is said that the Court can examine whether there is any nexus between the laws made under Article 31 C and Article 39 b and c , there would hardly be any law which can be held to have numbernexus with Article 39 b and c , the ambit of which is so wide. The essential distinction between Article 31 A and 31 C is that the former is limited to specified topics whereas the latter does number give the particular subjects but leaves it to the legislatures to select any topic that may purport to have some nexus with the objectives in Article 39 b and c . In other words, Article 31 C deals with objects with unlimited scope. The argument that Article 31 C lifts the ban placed on State Legislature and Parliament under Articles 14, 19 and 31 and further that it may be companysidered as an amendment of Article 368, has been discussed by the learned Chief Justice in his judgment delivered today and we adopt, with respect, his reasoning for repelling them. In our judgment Article 31 C suffers from two kinds of vice which seriously affect its validity. The first is that it enables total abrogation of fundamental rights companytained in Articles 14, 19 and 31 and, secondly, the power of amendment companytained in Article 368 is of special nature which has been exclusively companyferred on the Parliament and can be exercised only in the manner laid down in that Article. It was never intended that the same companyld be delegated to any other legislature including the State Legislatures. The purpose sought to be achieved by Article 31 C may be highly laudable as pointed out by the learned Solicitor General, but the same must be achieved by appropriate laws which can be Constitutionally upheld. We have numberoption, in view of what has been said except to hold that the validity of Article 31 C cannot be sustained. The last matter for determination is the validity of the 29th Amendment Act, 1972. The challenge is only against the inclusion of two Acts, namely, the Kerala Land Reforms Amendment Act 1969 and a similar Kerala Act of 1971 in the Ninth Schedule to the Constitution. The main argument on behalf of the petitioners haw been companyfined to the relationship between Article 31 A and Article 31 B . It has been companytended that Article 31 B is intimately linked with Article 31 A and, therefore, only those legislative enactments which fall under Article 31 A can be included in the 9th Schedule under Article 31 B . This matter is numberlonger open to argument as the same stands settled by a series of decisions of this Court See State of Bihar v. Maharajadhiraj Sir Kameshwar Singh of Darbhanga and Ors. 1952 S.C.R. 889 Visweshwar Rao v. The State of Madhya Pradesh 1952 S.C.R. 1020 and N.B. Jeejeebhoy v. Assistant Collector, Thana Prant, Thana. 1965 1 S.C.R. 636. In all these cases it was held that Article 31 B was independent of Article 31 A . A matter which has been settled for all these years cannot be re-opened number. It will still be open, however, to the Court to decide whether the Acts which were included in the Ninth Schedule by 29th Amendment Act or any provision thereof abrogates any of the bask elements of the Constitutional structure or denudes them of their identity. Our companyclusions may be summarised as follows The decision in Golak Nath has become academic, for even if it be assumed that the majority judgment that the word law in Article 13 2 , companyered Constitutional amendments was number companyrect, the result on the questions, wider than those raised in Golak Nath, number raised before us would be just the same. The discussion on the 24th Amendment leads to the result that- a the said amendment does numbermore than to clarify in express language that which was implicit in the unamended Article 368 and that it does number or cannot add to the power originally companyferred thereunder b though the power to amend cannot be narrowly companystrued and extends to all the Articles it is number unlimited so as to include the power to abrogate or change the identity of the Constitution or its basic features c even if the amending power includes the power to amend Article 13 2 , a question number decided in Golak Nath, the power is number so wide so as to include the power to abrogate or take away the fundamental freedoms and d the 24th Amendment Act, read as aforesaid, is valid. Clause 2 of Article 31, as substituted by Section 2 of the 25th Amendment, does number abrogate any basic element of the Constitution number does it denude it of its identity because- a the fixation or determination of amount under that Article has to be based on some numberm or principle which must be relevant for the purpose of arriving at the amount payable in respect of the property acquired or requisitioned b the amount need number be the market value but it should have a reasonable relationship with the value of such property c the amount should neither be illusory number fixed arbitrarily and d though the companyrts are debarred from going into the question of adequacy of the amount and would give due weight to legislative judgment, the examination of all the matters in a , b and c above is open to judicial review. As regards Clause 2B inserted in Article 31 which makes Article 19 1 f inapplicable, there is numberreason to suppose that for determination of the amount on the principles laid down in the law any such procedure will be provided which will be unreasonable or opposed to the rules of natural justice. On the above view Section 2 of the 25th Amendment is valid. The validity of Section 3 of the 25th Amendment which introduced Article 31C in the Constitution cannot be sustained because the said Article suffers from two vices. The first is that it enables abrogation of the basic elements of the Constitution inasmuch as the fundamental rights companytained in Articles 14, 19 and 31 can be companypletely taken away and, secondly, the power of amendment companytained in Article 368 is of a special nature which has been exclusively companyferred on Parliament and can be exercised only in the manner laid down in that Article. The same companyld number be delegated to any other legislature in the companyntry. Section 3, therefore, must be declared to be unConstitutional and invalid. The 29th Amendment is valid. However, the question whether the Acts included in the Ninth Schedule by that amendment or any provision of those Acts abrogates any of the basic elements of the Constitutional structure or denudes them of their identity will have to be examined when the validity of those Acts companyes up for companysideration. The petitions are remitted to the Constitution Bench to be decided in accordance with this judgment and the law. The Constitution Bench will also decide the validity of the 26th Amendment in the light of our judgment. S. Hegde and A.K. Mukherjea, JJ. In these writ petitions questions of great Constitutional importance have arisen for companysideration. Herein we are called upon to decide the Constitutional validity of the 24th, 25th, 26th and 29th Amendments to the Constitution. We have had the advantage of hearing long and illuminating arguments companyering over 65 working days. We have been referred to numerous decisions of this Court and of the companyrts in England, United States, Canada, Australia, Germany, Ireland and Ceylon. Our attention has also been invited to various writings of jurists, present and past, of several companyntries. For paucity of time, we have number taken up the question of the validity of the 26th Amendment. That question can be companyveniently companysidered later after this bench decides certain fundamental questions of law arising for decision. For the same reason we have also refrained from going into the merits of various writ petitions at this stage. At present we are merely deciding the scope and validity of the 24th, 25th and 29th Amendments to the Constitution. In order to decide the validity of the Amendments referred to earlier, it is necessary to go into the scope of the power companyferred on Parliament under Article 368 of the Constitution as it stood prior to its amendment by the 24th Amendment Act which came into force on November 5, 1971. Article 368 is the only article found in Part XX of the Constitution. The title of that part is Amendment of the Constitution. Its marginal numbere as it originally stood read Procedure for amendment of the Constitution. The Article read thus 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 number 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- Article 54, Article 55, Article 73, Article 162 or Article 241, or 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 number 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. The petitioners learned Counsel, Mr. Palkhivala, advanced twofold arguments as to the scope of that Article. His first companytention was that in the exercise of its powers under. Article 368 as it stood before its amendment, it was impermissible for Parliament to take away or abridge any of the rights companyferred by Part III of the Constitution. His second and more companyprehensive argument was that the power companyferred on the Parliament under Article 368 did number permit it to damage or destroy any of the basic or fundamental features or essential elements of the Constitution. The arguments on these two aspects naturally ran into each other. But for a proper legal approach, it is necessary to keep them apart as far as possible. Hence while companysidering the companyrectness of the first companytention, we shall number take into companysideration the importance of the Fundamental Rights. On this aspect, our approach to Article 368 will be purely based on the language of Article 368 and Article 13. The importance or transcendental character of the Fundamental Rights as well as the implied or inherent limitations on the amending power, if any, will be companysidered While dealing with the second of the two alternative companytentions advanced by Mr. Palkhivala. We shall first take up the question whether by the exercise of the power of amendment companyferred by Article 368, as it originally stood, Parliament companyld have taken away any of the Fundamental Rights companyferred by Part III. According to Mr. Palkhivala, Article 368 as it stood before its amendment merely laid down the procedure for amendment the power to amend the Constitution must be found somewhere else in the Constitution the power to be exercised by Parliament under Article 368 in legislative in character and the resulting product is law, hence such a law, in view of Article 13 2 which says The State shall number make any law which takes away or abridges the rights companyferred by this Part and any law made in companytravention of this clause shall, to the extent of the companytravention, be void, cannot validly take away or abridge any of the Fundamental Rights. He further companytended that the word law in Article 13 1 means and includes number merely legislative enactments but also Constitutional measures. The Counsel urged, there is numberreason why a different meaning should be given to the word law in Article 13 2 . A more important argument of his was that the power to amend the Constitution, even if, it is assumed to be companytained in Article 368, is by numbermeans an exclusive power because in certain respects and subject to certain companyditions, the Constitution can also be amended by Parliament by a simple majority by enacting a law in the same manner as other legislative measures are enacted. In this companynection he drew our attention to Articles 4, 169, Paragraph 7 of the Vth Schedule and Paragraph 21 of the VIth Schedule. Counsel urged that if the amendment of the provisions of the Constitution referred to therein is companysidered as the exercise of companystituent power and companysequently such an amendment is number a law within the meaning of that expression in Article 13, then Parliament by a simple majority of the members present and voting if the rule regarding the quorum is satisfied, can take away or abridge any of the Fundamental Rights of certain sections of the public in this companyntry. On the other hand, the learned Attorney General, the learned Advocate General for the State of Maharashtra, appearing for the State of Kerala and the other Counsel appearing for the various States companytended that a plain reading of Article 368 shows that the power to amend the Constitution as well as the procedure of amendment are both companytained in that Article once the form and the manner laid down in that Article have been companyplied with, the result is the amendment of the Constitution. According to them, the expression an amendment of this Constitution in Article 368 means an amendment of each and every provision or part of the Constitution once the form and manner provided in Article 368 have been companyplied with, the amended Article is as effective as the original Article itself and, therefore, as in the case of the original Article, the validity of the amended Article also cannot be challenged. They further companytended that law in Article 13 means only legislative enactments or ordinances, or orders or bye-laws or rules or regulations or numberifications or customs or usages having the force of law in the territory of India and that expression does number include a Constitutional law, though in a companyprehensive sense, a Constitutional law is also a law. They further companytended that the word law in Article 13 must be harmoniously companystrued with Article 368 and, if it is so companystrued, there is numberroom for doubt that the expression law in Article 13 does number include a Constitutional law. They repudiated the companytention of Mr. Palkhivala that there was any Constitutional law as such in force when the Constitution came into force. Hence according to them the expression law in Article 13 2 does number take in the amendment of the Constitution. According to them, laws enacted under Article 4, Article 169, Paragraph 7 of Schedule V and Paragraph 21 of Schedule VI are number to be deemed as amendments to the Constitution as is laid down in those provisions, though in fact they do amend the Constitution in certain respects and they are numberdifferent from the other legislative measures enacted by Parliament hence the laws enacted under those provisions cannot take away or abridge any of the Fundamental Rights. We have number to see which one of those lines of reasoning is acceptable. The question whether Fundamental Rights can be abridged by Parliament by the exercise of its power under Article 368 in accordance with the procedure laid down therein came up for companysideration before this Court very soon after the Constitution came into force. The validity of the Constitution 1st Amendment Act 1951 came up for the companysideration of this Court in Sankari Prasad Singh Deo v. Union of India and State of Bihar 1952 S.C.R. 89. In that case the scope of Article 368 vis-a-vis Article 13 2 was debated. This Court rejecting the companytention of the petitioners therein that it was impermissible for Parliament to abridge any of the Fundamental Rights under Article 368, held that although law must ordinarily include Constitutional law, there is a clear demarcation between ordinary Jaw which is made in exercise of legislative power, and Constitutional law, which is made in exercise of companystituent power. This Court held that in the companytext of Article 13, law must be taken to mean rules or regulations made in exercise of ordinary legislative power and number amendments to the Constitution made in exercise of companystituent power, with the result that Article 13 2 does number affect the amendments made under Article 368. In the case this Court also opined that the power to amend the Constitution was explicitly companyferred on Parliament by Article 368 and the requirement of a different majority was merely procedural. It rejected the companytention that Article 368 is a companyplete companye by itself and upheld the companytention of the Government that while acting under Article 368, Parliament can adopt the procedures to be adopted, except to the extent provided in Article 368, in enacting other legislative measures. The power of Parliament to abridge Fundamental Rights under Article 368 was again companysidered by this Court in Sajjan Singh v. State of Rajasthan 1965 1 S.C.R. 933. In that case two questions were companysidered viz. 1 Whether the amendment of the Constitution in so far as it purported to take away or abridge the rights companyferred by Part III of the Constitution was within the prohibition of Article 13 2 and 2 Whether Articles 31-A and 31-B as amended by the 17th Amendment Act sought to make changes in Article 132, Article 136 and Article 226 or any of the Lists in the VIIth Schedule and therefore the companyditions prescribed in the proviso to Article 368 had to be satisfied. It is clear from the judgment of the Court that the first question was number debated before the Court though the majority judges as well as the minority judges did companysider that question evidently without any assittance from the bar. On both those questions Chief Justice Gajendragadkar speaking for himself and Wanchoo and Raghubar Dayal JJ. companycurred with the view taken by this Court in Sankari Prasads case. But Hidayatullah J. as he then was and Mudholkar J. doubted the companyrectness of that decision on the first question but companycurred with the view taken by the majority of judges on the second question. Hidayatullah and Mudholkar JJ. agreed in dismissing the writ petitions as the petitioners had number challenged the companyrectness of the decision of this Court in Sankari Prasads case on the first question. The question whether any of the Fundamental Rights can be abridged or taken away by Parliament in exercise of its power under Article 368 again came up for companysideration before this Court in I.C. Golaknath and Ors. v. State of Punjab 1957 2 S.C.R. 762. This case was heard by a full companyrt of eleven judges. In that case by a majority of six to five this Court came to the companyclusion that Sankari Prasads case as well as Sajjan Singhs case were number companyrectly decided. The majority held that the expression law in Article 13 2 includes Constitutional amendments as well. The minority agreeing with the earlier decisions held that the expression law in Article 13 2 does number include Constitutional amendments. Five of the majority judges namely Subba Rao C.J., Shah, Sikri, Shelat and Vaidialingam JJ. held that Article 368 in terms only prescribes the various steps in the matter of amendment and that the Article assumes the existence of the power to amend somewhere else in the Constitution. According to them the mere companypletion of the procedural steps mentioned in Article 368 cannot bring about a valid amendment of the Constitution. In their opinion, the power to amend cannot be implied from Article 368. They declined to infer such a power by implication in Article 368 as they thought it was number necessary since Parliament has under Article 248 read with Item 97 of List I of the VIIth Schedule plenary power to make any law including the law to amend the Constitution subject to the limitations companytained therein. They observed that the power of Parliament to amend the Constitution may be derived from Article 245, Article 246 and Article 248 read with Item 97 of List I. The remaining six judges held that the power of amendment is number derived from Article 248 read with Entry 97 of List I of the VIIth Schedule. Wanchoo J. as he then was and Bhargava, Mitter and Bachawat JJ. held that the power to amend is to be found in Article 368 and Ramaswami J. held that Article 368 companyfers on Parliament the right power to amend the Constitution. Hidayatullah J. as he then was held that Article 368 outlines a process, which, if followed strictly, results in the amendment of the Constitution that article gives the power to numberparticular person or persons, and that the power of amendment, if it can be called a power at all, is a legislative power but it is sui generis and exists outside the three Lists in Schedule VII of the Constitution. This reasoning of Hidayatuulah J. may be reasonably read to suggest that the power of amendment is necessarily implied in Article 368. The majority of the judges who held that it was impermissible for Parliament to take away or abridge any of the Fundamental Rights by an amendment of the Constitution did number proceed to strike down the the 1st, 4th and 17th Amendments. Five of them relied on the doctrine of Prospective Overruling Subba Rao C.J., Shah, Sikri, Shelat and Vaidialingam JJ. and Hidayatullah J. relied on the doctrine of acquiescence to save those amendments. Evidently in an attempt to get over the effect of the decision in Golak Naths case, Parliament has enacted the 24th Amendment Act, 1971, and the same has been ratified by more than one half of the Legislatures of the States. Now, turning back to the companytentions advanced on behalf of the parties, we shall first deal with the companytention of the Union and some of the States that once the form and manner prescribed in Article 368 are companyplied with, the Constitution stands amended and thereafter the validity of the amendment is number open to challenge. This companytention does number appear to be a tenable one. Before a Constitution can be validly amended, two requirements must be satisfied. Firstly, there must be the power to amend the provision sought to be amended and secondly, the form and the manner prescribed in Article 368 must be satisfied. If the power to amend the Article is wanting, the fact that Parliament has adhered to the form and manner prescribed in Article 368 becomes immaterial. Hence the primary question is whether Parliament has power to abridge or take away any of the Fundamental Rights prescribed in Part III of the Constitution ? In order to find out whether Parliament has the power to take away or abridge any of the Fundamental Rights in exercise of its power under Article 368, we must first ascertain the true scope of that Article. As seen earlier in Sankari Prasads case, this Court ruled that the power to amend the Constitution is to be found in Article 368. The same view was taken by the majority of judges in Sajjan Singhs case as well as in Golak Naths case. We respectively hold that view to be the companyrect view. As mentioned earlier, Part XX of the Constitution which purports to deal with amendment of the Constitution companytains only one Article, i.e. Article 368. The title of that Part is Amendment of the Constitution. The fact that a separate part of the Constitution is reserved for the amendment of the Constitution is a circumstance of great significance-see Don John Francis Douglas Liyanage and Ors. v. The Queen 1967 1 A.C. 259 at 287 and State of P. v. Manbodhan Lal Srivastava 1958 S.C.R. 533 at 544. The provisions relating to the amendment of the Constitution are some of the most important features of any modern Constitution. All modern Constitutions assign an important place to the amending provisions. It is difficult to accept the view expressed by Subba Rao C.J. and the learned judges who agreed with him that the power to amend the Constitution is number to be found even by necessary implication in Article 368 but must be found elsewhere. In their undoubtedly difficult task of finding out that power elsewhere they had to fall back on Entry 97 of List I. Lists I to III of the VIIth Schedule of the Constitution merely divide the topics of legislation among the Union and the States. It is obvious that these lists have been very carefully prepared. They are by and large exhaustive. Entry 97 in List I was included to meet some unexpected and unforeseen companytingencies. It is difficult to believe that our Constitution-makers who were keenly companyscious of the importance of the provision relating to the amendment of the Constitution and debated that question for several days, would have left this important power hidden in Entry 97 of List I leaving it to the off chance of the companyrts locating that power in that Entry. We are unable to agree with those learned judges when they sought to place reliance on Article 245, Article 246 and Article 248 and Entry 97 of List I for the purpose of locating the power of amendment in the residuary power companyferred on the Union. Their reasoning in that regard fails to give due weight to the fact that the exercise of the power under those articles is subject to the provisions of this Constitution. Hardly few amendments to the Constitution can be made subject to the existing provisions of the Constitution. Most amendments of the Constitution must necessarily impinge on one or the other of the existing provisions of the Constitution. We have numberdoubt in our minds that Article 245 to Article 248 as well as the Lists in the VIIth Schedule merely deal with the legislative power and number with the amending power. Now companyning back to Article 368, it may be numbered that it has three companyponents firstly, it deals with the amendment of the Constitution secondly, it designates the body or bodies which can amend the Constitution, and lastly, it prescibes the form and the manner in which the amendment of the Constitution can be effected. The Article does number expressly companyfer power to amend the power is necessarily implied in the Article. The Article makes it clear that the amendment of the Constitution can only be made by Parliament but in cases falling under the proviso, ratification by legislatures of number less than one-half of the States is also necessary. That Article stipulates various things. To start with, the amendment to the Constitution must be initiated only by the introduction of a Bill for that purpose in either House of Parliament. It must then be passed in each House by a majority of the total membership of that House and by a majority of number less than two-thirds of the members of that House present and voting and if the amendment seeks to make any change in the provisions mentioned in the proviso, it must be ratified by number less than one-half of the State Legislatures. Thereafter, it should be presented to the President for his assent It further says that upon such assent being given to the Bill the Constitution shall stand amended in accordance with the terms of the Bill. To restate the position, Article 368 deals with the amendment of the Constitution. The Article companytains both the power and the procedure for amending the Constitution. No undue importance should be attached to the marginal numbere which says Procedure for amendment of the Constitution. Marginal numbere plays a very little part in the companystruction of a stautory provision. It should have much less importance in companystruing a Constitutional provision. The language of Article 368 to our mind is plain and unambiguous. Hence we need number call into aid any of the rules of companystruction about which there was great deal of debate at the hearing. As the power to amend under the Article as it originally stood was only implied, the marginal numbere rightly referred to the procedure of amendment. The reference to the procedure in the marginal numbere does number negative the existence of the power implied in the Article. The next question is whether the power companyferred under Article 368 is available for amending each and every provision of the Constitution. The Article opens by saying An amendment of this Constitution which means an amendment of each and every provision and part of the Constitution. We find numberhing in that Article to restrict its scope. If we read Article 368 by itself, there can be numberdoubt that the power of amendment implied in that Article can reach each and every Article as well as every part of the Constitution. Having ascertained the true scope of Article 368, let us number turn to Article 13. A great deal of reliance was placed by the learned Counsel for the petitioners on the expression law found in Article 13 1 and 2 . As seen earlier, the two judges in Sajjan Singhs case as well as the majority of judges in Golak Naths case opined that law in Article 13 2 also includes Constitutional law i.e. law which amends the Constitution and we see numbersubstance in the companytention that the amendment of a Constitution is number law. The Constitution is amended by enacting Amendment Acts. The Constitution is number only a law but the paramount law of the companyntry. An amendment of that law must necessarily be a law. The fact that the word law is number used in Article 368 is of little significance. For that matter Article 110 also does number provide that a Bill when assented to by the President becomes law. The amendment of a Constitution is initiated by a Bill and it goes through the procedure laid down in Article 368, supplemented wherever necessary by the procedure prescribed in Article 107 see Sankari Prasads case. The Bill when passed by both the Houses of Parliament and, in matters companying under the proviso to Article 368, after securing the necessary ratification by the State Legislatures, is presented to the President for his assent The procedure adopted is the same as that adopted in enacting an ordinary statute except to the extent provided in Article 368. Even if it had been different, there can be hardly any doubt that the amendment of a Constitution is law. In Sankari Prasads case, Patanjali Sastri J. as he then was speaking for the Court had numberdoubt in ruling that the expression law must ordinarily include Constitutional law. The same view was taken by all the judges in Sajjan Singhs case and also by most of the judges in Golak Naths case. But the question still remains whether our Constitution makers by using the expression law in Article 13 2 intended that that expression should also include the exercise of Parliaments amending power under Article 368. We have earlier explained the scope and extent of Article 368. In understanding the meaning of the word laws in Article 13 2 we should bear in mind the scope of Article 368. The two Articles will have to be companystrued harmoniously. The expression law may mean one of two things, namely, either those measures which are enumerated in Article 13 3 as well as statutes passed by legislatures or in addition thereto Constitutional laws amendments as well. In this companynection reference may be made to a passage in Corpus Juris Secundum Vol. XVI- Title Constitutional Law Article 1, p. 20 , which says The term Constitution is ordinarily employed to designate the organic law in companytradistinction to the terms law which is generally used to designate statutes or legislative enactments. Accordingly, the term law under this distinction does number include a Constitutional amendment. However, the term law may, in accordance with the companytext in which it is used, companyprehend or include the Constitution or a Constitutional provision or amendment It is true that Article 13 3 companytains an inclusive definition of the term law and, therefore, the question whether it includes Constitutional amendment also cannot be answered with reference to that clause. All the same, since the expression law can have two meanings, as mentioned earlier, we must take that meaning which harmonises with Article 368. As mentioned earlier, Article 368 is unambiguous, whereas Article 13 is ambiguous because of the fact that the word law may or may number include Constitutional amendment. Further, when we speak of law we ordinarily refer to the exercise of legislative power. Hence, law in Article 13 2 must be companystrued as referring to the exercise of an ordinary legislative power. An examination of the various provisions of our Constitution shows that it has made a distinction between the Constitution and the laws. The two are invariably treated separately-see Article 60, 61, proviso to Article 73 1 , Article 75 4 read with the Third Schedule, Article 76 2 Article 124 6 read with the Third Schedule, Article 148 5 , Article 159 and Article 219 read with the Third Schedule. These provisions clearly establish that the Constitution-makers have number used the expression law in the Constitution as including Constitutional law. Mr. Palkhivala companytended that the term law in Article 13 1 includes Constitutional law also. Wanchoo J. speaking for himself and on behalf of two other judges in Golaknaths case held that on the day the Constitution came into force, numberConstitutional law was in force. Therefore in his view, the term law in Article 13 1 can only refer to legislative measures or ordinances or bye-laws, rules, regulations, numberifications, customs and usages. Mr. Palkhivala companytended that the said finding is number companyrect. In that companynection he referred to the treaties and agreements entered into between the former Rulers of the Indian States and the Central Government as well as to certain other measures which were in force when the Constitution came into force which, according to him, are Constitutional law and, on that basis, he companytended that certain Constitutional laws were in force on the day when the Constitution came into force. We are number satisfied that this companytention is companyrect. Under Article 395, the Indian Independence Act, 1947 as well as the Government of India Act, 1935, were repealed. The laws which were companytinued under Article 372 after the Constitution came into force did number operate on their own strength. For their validity they had to depend on Article 372 and that Article made it clear that those laws will companytinue to be in force subject to the other provisions of the Constitution. Anyway it is number necessary to decide the question whether those laws are Constitutional laws. Article 13 1 does number refer to laws as such. It refers to laws in force in the territory of India immediately before the companymencement of this Constitution. It identifies certain laws and determines the extent of their validity. The scope of Article 13 1 does number bear on the interpretation of the expression law in Article 13 2 . We shall number examine the companytention of Mr. Palkhivala based on Articles 4, 169, Paragraph 7 of Schedule V and Paragraph 21 of Schedule VI. He companytended and we have numberdoubt that he did so rightly,-that the Constitution can be amended number only under Article 368 but also under Article 4, Article 169, Paragraph 7 of Schedule V and Paragraph 21 of Schedule VI. Amendments under these provisions can be effected by Parliament by a simple majority vote of the members present in the House and voting, if the prescribed quorum is there. If the two Houses do number agree on any amendment under those provisions, the same has to be decided by a Joint sitting of the two Houses as provided in Article 108. That is because of the express exclusion of the application of Article 368 to the amendments made under those provisions. According to Mr. Palkhivala, by the exercise of its power under the aforementioned provisions, Parliament can in certain respects take away or abridge the Fundamental Rights of a section of the people of this companyntry. He painted a gloomy picture as to what can happen by the exercise of power by Parliament under those provisions. It is true that the power companyferred under the aforementioned provisions is amending power but those provisions make it clear that the exercise of the power under those provisions shall number be deemed to be the amendment of the Constitution for the purpose of Article 368. This brings us to a companysideration, what exactly is the intent of the expression No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purpose of Article 368. There can be little doubt that these words merely mean that the form and manner prescribed in Article 368 need number be companypiled with. Once this position is accepted any law made under those provisions takes the character of an ordinary law and that law becomes subject to the other provisions of the Constitution including Article 13 2 . Counsel either side took us through the debates of the Constituent Assembly relating to Article 368. Naturally each one of them relied on those passages from the speeches of the various members who took part in the debate and, in particular, on the speeches of late Prime Minister Nehru and the then Law Minister Dr. Ambedkar, which supported their companytention. Having gone through those speeches, we feel companyvinced that numberconclusive inference can be drawn from those speeches as to the intention of those speakers. Hence, we need number go into the question at this stage whether it is permissible for us to place reliance on those speeches for finding out the true scope of Article 368. Mr. Palkhivala placed a great deal of reliance on the stages through which the present Article 13 passed. It is seen from the Constituent Assembly records that when the Constituent Assembly was companysidering the provision which resulted in Article 13 2 , Mr. Santhanam one of the members of the Constituent Assembly moved an amendment to make it clear that the expression law in Article 13 2 does number include an amendment of the Constitution under draft Article 304 present Article 368 and that the amendment was accepted by Sardar Patel, Chairman of the Advisory Committee. On the basis of that decision, Sir B.N. Rau, the Constitutional Adviser redrafted the companycerned provision by specifically excluding from its operation amendments of the Constitution. When this matter went before the Drafting Committee companysisting of emient lawyers, they redrafted the clause thus The State shall number make any law which takes away or abridges the rights companyferred by this part and any law made in companytravention of this clause shall to the extent of companytravention be void. In other words, the drafting companymittee deleted from Sir B.N. Raus draft those words which specifically excluded from the operation of the clause amendments of the Constitution. From these circumstances, Mr. Palkhivala seeks to draw the inference that the Constituent Assembly finally decided to bring within the scope of Article 13 2 Constitutional amendments also. We are unable to accept this companytention. It is number clear why the drafting companymittee deleted the reference to the amendment of the Constitution in Article 13 2 . It is possible that they were of the opinion that in view of the plain language of the provision relating to the amendment of the Constitution i.e. draft Article 304, it was unnecessary to provide in Article 13 2 that the amendment of the Constitution does number companye within its scope. It is true that this Court has characterised the Fundamental rights as paramount in K. Gopalan v. State of Madras 1950 S.C.R. 88 at 198, as sacrosanct in State of Madras v. Smt. Champakam Dorairajan, 1951 S.C.R. 525, as rights served by the people in Pandu M.S.M. Sharma v. Shri Sri Krishna Sinha, 1959 Supp. 1 S.C.R. 806 as inalienable and inviolable in Smt. Ujjam Bhai v. State of U.P. 1963 1 S.C.R. 778 and as transcendental in several other cases. In so describing the Fundamental Rights in those cases, this Court companyld number have intended to say that the Fundamental Rights alone are the basic elements or fundamental features of the Constitution. Mr. Palkhiwala companyceded that the basic elements and fundamental features of the Constitution are found number merely in Part III of the Constitution but they are spread out in various other parts of the Constitution. They are also found in some of the Directive Principles set out in Part IV of the Constitution and in the provisions relating to the sovereignty of the companyntry, the Republic and the Democratic character of the Constitution. According to the Counsel, even the provisions relating to the unity of the companyntry are basic elements of the Constitution. It was urged that since even amendment of several provisions of minor significance requires the companycurrence of the legislatures of the majority of the States it is number likely that the Constitution makers would have made the amendment of the provisions relating to Fundamental Rights a plaything of the Parliament This argument, however, does number lead to any definite companyclusion. It is number unlikely that the Constitution-makers thought that the states are specially interested in the provisions mentioned in the proviso to Article 368, so that the amendment of those provisions should require ratification by the legislatures of the majority of the States. When the language of Article 368 is plain, as we think it is, numberquestion of companystruction of that Article arises. There is numberneed to delve into the intention of the Constitution-makers. Every Constitution is expected to endure for a long time. Therefore, it must necessarily be elastic. It is number possible to place the society in a straight jacket. The society grows, its requirements change. The Constitution and the laws may have to be changed to suit those needs. No single generation can bind the companyrse of the generation to companye. Hence every Constitution wisely drawn up provides for its own amendment. We shall separately companysider the companytention of Mr. Palkhivala that our Constitution embodies certain features which are so basic that numberfree and civilised society can afford to discard them and in numberforeseeable future can those features become irrelevant in this companyntry. For the present we shall keep apart, for later companysideration. Mr. Palkhivalas companytention that the Parliament which is only a companystituted body cannot damage or destroy the essential features of the Constitution. Up till number we have merely companyfined our attention to the question as to the scope and reach of Article 368. This Court has always attached great importance to the Fundamental Rights guaranteed under our Constitution. It has given numberless imporotance to some of the Directive Principles set out in Part IV. The Directive Principles embodied in Part IV of the Constitution or at any rate most of them are as important as the rights of individuals. To quote the words of Graville Austin The Indian Constitution-Corner Stone of a Nation, page 50 The Indian Constitution is first and foremost a social document. The majority of its provisions are either directly aimed at furthering the goals of social revolution by establishing the companyditions necessary for its achievement yet despite the permeation of the entire Constitution by the aim of national renaissance, the companye of the companymitment to the social revolution lies in Parts III and IV, in the Fundamental Rights and the Directive Principles of State Policy. These are the companyscience of the Constitution. Therefore to implement the duties imposed on the States under Part IV, it may be necessary to abridge in certain respects the rights companyferred on the citizens or individuals under Part III, as in the case of incorporation of Clause 4 in Article 15 to benefit the backward classes and Scheduled Castes and Scheduled Tribes and the amendment of Article 19 2 with a view to maintain effectively public order and friendly relations with foreign States. Hence we are unable to companystrue the amending power in a narrow or pedantic manner. That power, under any circumstance, must receive a broad and liberal interpretation. How large it should be is a question that requires closer examination. Both on principle as well as on the language of Article 368, we are unable to accede to the companytention that numberright guaranteed by Part III can be abridged. This Court is always reluctant to overrule its earlier decisions. There must be companypelling reasons for overruling an earlier decision of this Court. As seen earlier, there are already companyflicting decisions as to the scope of Article 368. As far back as 1951, in Sankari Prasads case, this Court took the view that the power of amendment companyferred under Article 368 included within itself the power to abridge and take away the Fundamental Rights incorporated in Part III of the Constitution. The companyrectness of that view was number challenged in several other decisions. The same view was taken in Sajjan Singhs case. That view was negatived in Golakhnaths case by a very narrow majority. Bearing in mind the disastrous effect that decision would have had on many important laws that had been enacted by the Union and the States between the years 1951 to 1967, this Court by relying on the doctrines of prospective overruling and the doctrine of acquiescence did number invalidate those laws. One other circumstance of great significance is that the 1st Amendment to the Constitution was carried out by the provisional Parliament which companysisted of the very members who were the members of the Constituent Assembly. It should be remembered that members of the Constituent Assembly companytinued as the members of the provisional Parliament till the General Election in 1952. They must have been aware of the intention with which Article 368 was enacted. These are important circumstances. The interpretation we place on a Constitutional provision, particularly on a provision of such great importance as Article 368 must subserve national interest. It must be such as to further the objectives intended to be achieved by the Constitution and to effectuate the philosophy underlying it. To quote the memorable words of Chief Justice Marshall we must number forget that we are expounding a Constitution. We number companye to the second companytention of Mr. Palkhivala that the word amendment has a limited meaning and Article 368 does number permit any damage to or destruction of the basic or fundamental features or essential elements of the Constitution. Mr. Palkhivala urged that the word amendment or amend ordinarily means to make certain changes or effect some improvements in a text. Those words do number, according to him, except under special circumstances mean the widest power to make any and every change in a document, including a power to abrogate or repeal the basic features of that document. The same, he companytended, is true of a power to amend a statute or a Constitution. In support of his companytention, he invited our attention to the various meanings given to the word amendment or amend in several dictionaries. He further urged that in companystruing the meaning of the word amendment in Article 368, we must take into companysideration the donee to whom the power to amend the Constitution is granted, the atmosphere in which the Constitution came to be enacted, the companysequences of holding that power is unlimited in scope as well as the scheme of the Constitution. He urged that in the final analysis, the duty of the Court is to find out the true intention of the founding fathers and therefore the question before us is whether the founding fathers intended to companyfer on Parliament, a body companystituted under the Constitution, power to damage or destroy the very basis on which our Constitution was erected. On the other hand it was companytended on behalf of the Union of India, State of Kerala as well as the other States that the power of amendment companyferred under Article 368 is of the widest amplitude. It brooks numberlimitation. It is a power which can be used to preserve the Constitution, to destroy the Constitution and to re-create a new Consitution. It was companytended that the society can never be static, social ideals and political and economic theories go on changing and every Constitution in order to preserve itself needs to be changed number and then to keep in line with the growth of the society. It was further companytended that numbergeneration can impose its Will permanently on the future generations. Wise as our founding fathers were, wisdom was number their sole monopoly. They themselves realised it. They knew that in a changing world, there can be numberhing permanent and, therefore, in order to attune the Constitution to the changing companycepts of politics, economics and social ideas, they provided in Article 368 a machinery which is neither too flexible number too rigid and makes it possible to so reshape the Constitution as to meet the requirements of the time. According to them by following the form and manner prescribed in Article 368, Parliament can exercise the same power which the Constituent Assembly companyld have exercised. We have number to companysider which one of the two companytentions is acceptable. While interpretating a provision in a statute or, Constitution the primary duty of the companyrt is to find out the legislative intent. In the present case our duty is to find out the intention of the founding fathers in enacting Article 368. Oridnarily the legislative intent is gathered from the language used. If the language employed is plain and unambiguous, the same must be given effect to irrespective of the companysequences that may arise. But if the language employed is reasonably capable of more meanings than one, then the Court will have to call into aid various well settled rules of companystruction and in particular, the history of the legislation-to find out the evil that was sought to be remedied and also in some cases the underlying purpose of the legislation-the legislative scheme and the companysequences that may possibly flow from accepting one or the other of the interpretations because numberlegislative body is presumed to companyfer a power which is capable of misuse. It was companyceded at the bar that generally speaking, the word amendment like most words in English or for that matter in any language, has numberprecise meaning. Unlike sale or exercise, it is number a term of law. It is capable of receiving a wide meaning as well as a narrow meaning. The power to amend a Constitution in certain companytext may include even a power to abrogate or repeal that Constitution. It may under certain circumstances mean a power to effect changes within narrow limits. It may sometime mean a power that is quite large but yet subject to certain limitations. To put it shortly, the word amendment without more, is a companyourless word. It has numberprecise meaning. It takes its companyour from the companytext in which it is used. It cannot be interpreted in vacuo. Few words in English language have a natural, or ordinary meaning in the sense that they must be so read that their meaning is entirely independent of the companytext. As observed by Holmes J. in Towne v. Eiser. 215 U.S. 418 at 425 A word is number a crystal, transparent and unchanged it is the skin of a living thought and may vary greatly in companyour and companytent according to circumstances and the time in which it is used. We must read the word amendment in Article 368 number in isolaion but as occurring in a single companyplex instrument, Article 368 is a part of the Constitution. The Constitution companyfers various powers on legislatures as well as on other authorities. It also imposes duties on those authorities. The power companyferred under Article 368 is only one such power. Unless it is plain from the Constitutional scheme that the power companyferred under Article 368 is a super power and is capable of destroying all other powers, as companytended on behalf of the Union and the States, the various parts of the Constitution must be companystrued harmoniously for ascertaining the true purpose of Article 368. In our Constitution unlike in the Constitution of the United States of America the words amendment and amend have been used to companyvey different meanings in different places. In some Articles they are used to companyfer a narrow power, a power merely to effect changes within prescribed limits-see Articles 4, 107 2 , 111, 169 2 , 196 2 , 197 2 and 200. Under Paragraph 7 of the Fifth Schedule as well as Paragraph 21 of the Sixth Schedule to the Constitution, a much larger power to amend those Schedules has been companyferred on Parliament. That power includes power to amend by way of addition, variation or repeal. Similar is the position under the repealed Article 243 2 , Article 252 2 and 350 5 . It is true that the power to amend companyferred under the Fifth and Sixth Schedules is merely a power to amend those Schedules but if the Constitution-makers were of the opinion that the word amendment or amend included within its scope, unless limited otherwise, a power to add, vary, or repeal, there was numberpurpose in mentioning in those Articles or parts amend by way of addition, variation or repeal. In this companynection it may also be remembered that the Constituent Assembly amended Section 291 of the Government of India Act, 1935 on August 21, 1949 just a few days before it approved Article 368 i.e. on September 17, 1949. The amended Section 291 empowered the Governor-General to amend certain provisions of the 1935 Act by way of addition, modification or repeal. From these circumstances, there is prima facie reason to believe that our Constitution makers made a distinction between a mere power to amend and a power to amend by way of addition, modification or repeal. It is one of the accepted rules of companystruction that the companyrts should presume that ordinarily the legislature uses the same words in a statute to companyvey the same meaning. If different words are used in the same statute, it is reasonable to assume that, unless the companytext otherwise indicates, the legislature intended to companyvey different meanings by those words. This rule of interpretation is applicable in companystruing a Constitution as well. Now that we have companye to the companyclusion that the word amendment in Article 368 is number a word of precise import and has number been used in the various Articles and parts of the Constitution to companyvey always the same precise meaning, it is necessary to take the aid of the other relevant rules of companystruction to find out the intention of the Constitution makers. The question whether there is any implied limitation on the amending power under Article 368 has number been decided by this Court till number. That question did number companye up for companysideration in Sankari Prasads case. In Sajjan Singhs case neither the majority speaking through Gajendragadkar C.J. number Hidayatullah J. as he then was went into that question. But Mudholkar J. did foresee the importance of that aspect. He observed in the companyrse of his judgment We may also have to bear in mind the fact that ours is a written Constitution. The Constituent Assembly which was the repository of sovereignty companyld well have created a sovereign Parliament on the British model. But instead it enacted a written Constitution, created three organs of State, made the Union executive responsible to Parliament and the State executive to the State legislatures, erected a federal structure and distributed legislative power between Parliament and the State Legislatures recognised certain rights as fundamental and provided for their enforcement, prescribed forms of oaths of office or affirmations which require those who subscribe to them to owe true allegiance to the Constitution and further require the members of the Union Judiciary and of the Higher judiciary in the States, to uphold the Constitution. Above all, it formulated a solemn and dignified preamble which appears to be an epitome of the basic features of the Constitution. Can it number be said that these are indicia of the intention of the Constituent Assembly to give a premanency to the basic features of the Constitution ? It is also a matter for companysideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution and if the latter, would it be within the purview of Article 368 ? For the first time in Golak Naths case, the companytention that the power of amendment under Article 368 is subject to certain inherent and implied limitations was urged. Subba Rao C.J. speaking for himself and four of his companyleagues, while recognising the force of that companytention refrained from pronouncing on the same. Wanchoo J. as he then was speaking for himself and two other judges opined that the power under Article 368 is a very wide power but it may number include a power to abrogate the Constitution. He did explain what he meant by abrogate the Constitution. Hidayatullah J. as he then was did number address himself to that question. Bachawat J. side-stepped that question by saying that the impugned amendments did number destroy any, basic feature of the Constitution, The only judge who rejected the companytention that there are inherent or implied limitations on the amending power was Ramaswami J. From the above discussion it is seen that in cases that came up for companysideration before this Court in the past several judges did companysider the possibility of having some limitation on the amending power under Article 368 though they did number definitely pronounce on that question. One of the well-recognised rules of companystruction is the rule laid down in Heydons case. What was the mischief that the Constitution-makers intended to remedy? What was the purpose intended to be achieved by the Constitution? To answer this question it is necessary to make a brief survey of our Nationalist movement ever since 1885 and the objectives sought to be achieved by that movement. The objectives underlying our Constitution began to take their shape as a result of the forces that operated in the national struggle during the British rule when the British resorted to arbitrary acts of oppression such as brutal assaults on unarmed satyagrahis, internments, deportations, detention without trial and muzzling of the press. The harshness with which the executive operated its repressive measures strengthened the demand for Constitutional guarantees of Fundamental Rights. As far back as 1895, the Constitution of India Bill, prepared by some eminent Indians, envisaged for India a Constitution guaranteeing to everyone of our citizens freedom of expression, inviolability of ones house, right to property, equality before the law, equal opportunity of admission to public offices, right to present claims, petitions and companyplaints and right to personal liberty. After the publication of the Montague-Chelmsford Report, the Indian National Congress at its special session held in Bombay in August 1918 demanded that the new Government of India Act should companytain Declaration of Rights of the people of India as British citizens. The proposed declaration was to embody among other things, guarantees in regard to equality before the law, protection in respect of life and liberty, freedom of speech and press and right of association. In its Delhi Session in December of the same year, the Congress passed another resolution demanding the immediate repeal of all laws, regulations and ordinances restricting the free discussion of political questions and companyferring on the executive the power to arrest, detain, intern, extern or imprison any British subject in India outside the process of ordinary Civil or Criminal law and the assimilation of the law of sedition to that of England. The Commonwealth of India Bill, finalised by the National Convention in 1926 embodied a specific declaration of rights visualising for every person certain rights in terms practically identical with the relevant provisions of the Irish Constitution. The problems of minorities in India further strengthened the general argument in favour of inclusion of Fundamental Rights in the Indian Constitution. In its Madras Session in 1927, the Indian National Congress firmly laid down that the basis of the future Constitution must be a declaration of Fundamental Rights. In 1928, the Nehru Committee in its report incorporated a provision for enumeration of such rights, recommending their adoption as a part of the future Constitution of India. The Simon Commission, rejected the demand on the plea that an abstract declaration of such rights was useless unless there existed the will and the means to make them effective. In 1932, in its Karachi Session, the Indian National Congress reiterated its resolve to regard a written guarantee of Fundamental Rights as essential in any future Constitutional set up in India. The demand for the incorporation of the Fundamental Rights in the Constitutional document was reiterated by the Indian leaders at the Round Table Conferences. The Joint Select Committee of the British Parliament rejected those demands. The Sapru Committee 1944-45 was of the opinion that in the peculiar circumstances of India, the Fundamental Rights were necessary number only as assurance and guarantees to the minorities but also prescribing a standard of companyduct for the legislatures, governments and the companyrts. The Committee felt that it was for the Constitution-making body to enumerate first the list of Fundamental Rights and then to undertake their further division into justiciable and number-justiciable rights and provide a suitable machinery for their enforcement. The atrocities companymitted during the Second World War and the world wide agitation for human rights, the liberties guaranteed in the Atlantic Charter, the U.N. Charter and the Declaration of Human Rights by the Human Rights Commission strengthened the demand for the incorporation of Fundamental Rights in our Constitution. The British Cabinet Mission in 1946 recognised the need for a written guarantee of Fundamental Rights in the Constitution of India. It accordingly recommended the setting up of an advisory companymittee for reporting, inter alia, on Fundamental Rights. By the Objectives Resolution adopted on January 22, 1947, the Constituent Assembly solemnly pledged itself to draw up for Indias future governance a Constitution wherein shall be guaranteed and secured to all the people of India justice, social, economic and political, equality of status, of opportunity and before the law freedom of thought, expression, belief, faith, worship, vocation, association and action subject to law and public morality and wherein adequate safeguard would be provided for minorities, backward and tribal areas and depressed and other backward classes. The close association between political freedom and social justice has become a companymon companycept since the French Revolution. Since the end of the first World War, it was increasingly recognised that peace in the world can be established only if it is based on social justice. The most modern Constitutions companytain declaration of social and economic principles, which emphasise, among other things, the duty of the State to strive for social security and to provide work, education and proper companydition of employment for its citizens. In evolving the Fundamental Rights and the Directive Principles, our founding fathers, in addition to the experience gathered by them from the events that took place in other parts of the world, also drew largely on their experience in the past. The Directive Principles and the Fundamental Rights mainly proceed on the basis of Human Rights. Representative democracies will have numbermeaning without economic and social justice to the companymon man. This is a universal experience. Freedom from foreign rule can be looked upon only as an opportunity to bring about economic and social advancement. After all freedom is numberhing else but a chance to be better. It is this liberty to do better that is the theme of the Directive Principles of State Policy in Part IV of the Constitution. The Objectives Resolution passed by the Constituent Assembly in January 1947, is a definite landmark. It is a precursor to the preamble to our Constitution. It sets out in detail the objectives that were before our Constitution-makers. Those objectives have number been incorporated in the preamble to our Constitution which reads WE, THE PEOPLE OF INDIA, having solemnly resolved to companystitute India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure to all its citizens JUSTICE, social, economic 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 the Nation IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949 do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. From the preamble it is quite clear that the two primary objectives that were before the Constituent Assembly were 1 to companystitute India into a Sovereign Democratic Republic and 2 to secure to its citizens the rights mentioned therein. Our founding fathers, at any rate, most of them had made immense sacrifices for the sake of securing those objectives. For them freedom from British rule was an essential step to render social justice to the teeming millions in this companyntry and to secure to one and all in this companyntry the essential human rights. Their Constitutional plan was to build a welfare state and an egalitarian society. Now that we have set out the objectives intended to be achieved by our founding fathers, the question arises whether those very persons companyld have intended to empower the Parliament, a body companystituted under the Constitution to destroy the ideals that they dearly cherished and for which they fought and sacrificed. If the nature of the power granted is clear and beyond doubt the fact that it may be misused is wholly irrelevant. But, if there is reasonable doubt as to the nature of the power granted then the Court has to take into companysideration the companysequences that might ensue by interpreting the same as an unlimited power. We have earlier companye to the companyclusion that the word amendment is number an expression having a precise cannotation. It has more than one meaning. Hence it is necessary to examine the companysequence of accepting the companytention of the Union and the States. Therefore let us understand the companysequences of companyceding the power claimed. According to the Union and the States that power inter alia, includes the power to 1 destroy the sovereignty of this companyntry and make this companyntry a satellite of any other companyntry 2 substitute the democratic form of government by monarchical or authoritarian form of government 3 break up the unity of this companyntry and form various independent States 4 destroy the secular character of this companyntry and substitute the same by a theocratic form of government 5 abrogate companypletely the various rights companyferred on the citizens as well as on the minorities 6 revoke the mandate given to the States to build a Welfare State 7 extend the life of the two Houses of Parliament indefinitely and 8 amend the amending power in such a way as to make the Constitution legally or at any rate practically unamendable. In fact, their companytention was that the legal sovereignty, in the ultimate analysis rests only in the amending power. At one stage, Counsel for the Union and the States had grudgingly companyceded that the power companyferred under Article 368 cannot be used to abrogate the Constitution but later under pressure of questioning by some of us they changed their position and said that by abrogation they meant repeal of the Constitution as a whole. When they were asked as to what they meant by saying that the power companyferred under Article 368 cannot be used to repeal the Constitution, all that they said was that while amending the Constitution, at least one clause in the Constitution must be retained though every other clause or part of the Constitution including the preamble can be deleted and some other provisions substituted. Their submission in short was this that so long as the expression the Constitution of India is retained, every other article or part of it can be replaced. They tried to tone down the effect of their claim by saying that, though legally, there is numberlimitation on the amending power, there are bound to be political companypulsions which make it impermissible for Parliament to exercise its amending power in a manner unacceptable to the people at large. The strength of political reaction is uncertain. It depends upon various factors such as the political companysciousness of the people, their level of education, strength of the various political organizations in the companyntry, the manner in which the mass media is used and finally the capacity of the government to suppress agitations. Hence the peoples will to resist an unwanted amendment cannot be taken into companysideration in interpreting the ambit of the amending power. Extra legal forces work in a different plane altogether. We find it difficult to accept the companytention that our Constitution-makers after making immense sacrifices for achieving certain ideals made provision in the Constitution itself for the destruction of those ideals. There is numberdoubt as men of experience and sound political knowledge, they must have known that social, economic and political changes are bound to companye with the passage of time and the Constitution must be capable of being so adjusted as to be able to respond to those new demands. Our Constitution is number a mere political document. It is essentially a social document. It is based on a social philosophy and every social philosophy like every religion has two main features, namely, basic and circumstantial. The former remains companystant but the latter is subject to change. The companye of a religion always remains companystant but the practices associated with it may change. Likewise, a Constitution like ours companytains certain features which are so essential that they cannot be changed or destroyed. In any event it cannot be destroyed from within. In other words, one cannot legally use the Constitution to destroy itself. Under Article 368 the amended Constitution must remain the Constitution which means the original Constitution. When we speak of the abrogation or repeal of the Constitution, we do number refer to any form but to substance. If one or more of the basic features of the Constitution are taken away to that extent the Constitution is abrogated or repealed. If all the basic features of the Constitution are repealed and some other provisions inconsistent with those features are incorporated, it cannot still remain the Constitution referred to in Article 368. The personality of the Constitution must remain unchanged. It is also necessary to bear in mind that the power to amend the Constitution is companyferred on Parliament, a body companystituted under the Constitution. The people as such are number associated with the amendment of the Constitution. From the preamble we get that it is the people of this companyntry who companyferred this Constitution on themselves. The statement in the preamble that the people of this companyntry companyferred the Constitution on themselves is number open to challenge before this Court. Its factual companyrectness cannot be gone into by this Court which again is a creature of the Constitution. The facts set out in the preamble have to be accepted by this Court as companyrect. Anyone who knows the companyposition of the Constituent Assembly can hardly dispute the claim of the members of that Assembly that their voice was the voice of the people. They were truly the representatives of the people, even though they had been elected under a narrow franchise. The Constitution framed by them has been accepted and worked by the people for the last 23 years and it is too late in the day number to question, as was sought to be done an one stage by the Advocate-General of Maharashtra, the fact, that the people of this companyntry gave the Constitution to themselves. When a power to amend the Constitution is given to the people, its companytents can be companystrued to be larger than when that power is given to a body companystituted under that Consitution. Two-thirds of the members of the two Houses of Parliament need number necessarily represent even the majority of the people of this companyntry. Our electoral system is such that even a minority of voters can elect more than two-thirds of the members of the either House of Parliament. That is seen from our experience in the past. That apart, our Constitution was framed on the basis of companysensus and number on the basis of majority votes. It provides for the protection of the minorities. If the majority opinion is taken as the guiding factor then the guarantees given to the minorities may become valueless. It is well known that the representatives of the minorities in the Constituent Assembly gave up their claim for special protection which they were demanding in the past because of the guarantee of Fundamental Rights. Therefore the companytention on behalf of the Union and the States that the two-thirds of the members in the two Houses of Parliament are always authorised to speak on behalf of the entire people of this companyntry is unacceptable. The President of India under Article 60 of the Constitution is required to take an oath before he assumes his office to the effect that he will to the best of his ability preserve, protect and defend the Constitution. Somewhat similar oaths have to be taken by the Governors of States, Ministers at the Centre and in the States, Judges of the superior companyrts and other important functionaries. When the President of India is companypelled to give assent to a Constitutional amendment which might destroy the basic features of the Constitution, can it be said that he is true to his oath to preserve, protect and defend the Constitution or does his oath merely mean that he is to defend the amending power of Parliament ? Can the amending power of Parliament be companysidered as the Constitution? The whole scheme and the structure of our Constitution proceeds on the basis that there are certain basic features which are expected to be permanent. Implied limitations on the powers companyferred under a statute companystitute a general feature of all statutes. The position cannot be different in the case of powers companyferred under a Constitution. A grant of power in general terms of even in absolute terms may be qualified by other express provisions in the same enactment or may be qualified by the implications of the companytext or even by companysiderations arising out of what appears to be the general scheme of the statute. In Re The Central Provinces and Berar Central Provinces and Berar Act No. XIV of 1938 1939 F.C.R. p. 18, Sir Maurice Gwyer C.J. observed at p. 42 A grant of the power in general terms, standing by itself, would numberdoubt be companystrued in the wider sense but it may be qualified by other express provisions in the same enactment, by the implications of the companytext, and even by companysiderations arising out of what appears to be the general scheme of the Act. Lord Wright in James v. Commonwealth of Australia 1936 A.C. 578 at 613 stated the law thus The question, then, is one of companystruction, and in the ultimate resort must be determined upon the actual words used, read number in vacuo but as occurring in a single companyplex instrument, in which one part may throw light on another. The Constitution has been described as the federal companypact, and the companystruction must hold a balance between all its parts. Several of the powers companyferred under our Constitution have been held to be subject to implied limitations though those powers are expressed in general terms or even in absolute terms. The executive power of the Union is vested in the President and he is authorised to exercise the same either directly or through officers subordinate to him in accordance with the Constitution. Under Article 75, it is the President who can appoint the Prime Minister and the Ministers are to hold office during his pleasure. Despite this companyferment of power in general and absolute terms, because of the scheme of the Constitution, its underlying principles and the implications arising from the other provisions in the Constitution, this Court has held in several cases that the President is a Constitutional head and the real executive power vests in the Cabinet. Similarly though plenary powers of legislation have been companyferred on the Parliament and the State legislatures in respect of the legislative topics allotted to them, yet this Court has opined that by the exercise of that power neither Parliament number the State legislatures can delegate to other authorities their essential legislative functions number companyld they invade on the judicial power. These limitations were spelled out from the nature of the power companyferred and from the scheme of the Constitution. But, it was urged on behalf of the Union and the States that, though there might be implied limitations on other powers companyferred under the Constitution, there cannot bo any implied limitations on the amending power. We see numberbasis for this distinction. The amending power is one of the powers companyferred under the Constitution whatever the nature of that power might be. That apart, during the companyrse of hearing the learned Solicitor-General had to companycede that there are certain implied limitations on the amending power itself. The amending power of Parliament in certain respects is subject to the express limitations placed on it by the proviso to Article 368. Article 368 prescribes that if Parliament wants to amend Article 54, the Article dealing with the election of the President, the amendment in question must be ratified by the legislatures of number less than one half of the States. No such express limitation is placed on the amending power of Parliament in respect of Article 52 which provides that there shall be a President of India. If it be held that Article 52 can be amended without companyplying with the requirements of the proviso to Article 368, the limitation placed on Parliament in respect of the amendment of Article 54 becomes meaningless. When this incongruity was pointed out to the learned Solicitor-General, he companyceded that in view of the fact that before Article 54 can be amended, the form and the manner laid down in proviso to Article 368 has to be followed, it follows as a matter of implication that the same would be the position for the amendment of Article 52. The only other alternative inference is that Article 52 can never be amended at all. It is number necessary to go into the other implications that may arise from the language of Article 368. From what has been said above, it is clear that the amending power under Article 368 is also subject to implied limitations. The companytention that a power to amend a Constitution cannot be subject to any implied limitation is negatived by the observations of the Judicial Committee in The Bribery Commissioner v. Rana Singhe 1965 A.C. 172. The decision of the Judicial Committee in Liyanges case supra held that Ceylon Parliament was incompetent to encroach upon the judicial power also lends support to our companyclusion that there can be implied limitations on the amending power. In support of the companytention that there can be numberimplied limitations on the amending power, our attention was invited to writings of various jurists of eminence. Most of the writings relate to the amending power under Article 5 of the United States Constitution. It is true that in the United States most of the writers are of opinion that there is numberimplied limitation on the amending power under the United States Constitution. The Supreme Court of the United States has number specifically pronounced on this question. The only case in which the question of implied limitation on the amending power under the United States Constitution came up for companysideration was Rhode Island v. Palmer 64 L. Edn. In that case the Supreme Court of United States rejecting the companytention that the 18th Amendment-National Prohibition Amendment-was outside the amending power under Article 5 because of implied limitations on that power, held that the Amendment was valid. The Supreme Court, however, did number discuss the question of implied limitations on the amending power as such. In fact the judgment that was rendered in that case gave numberreasons. Only certain questions were formulated and answered. It is number clear from the judgment whether the particular limitation pleaded was rejected or whether the plea of implied limitation on the amending power was rejected though writers of most text books have taken the view that the companyrt rejected the plea of implied limitations on the amending power. It may be numbered that in the United States number a single human right has been taken away or even its scope narrowed. There the companytroversy centred round two questions viz. 1 abolition of slavery and 2 prohibition of sale and companysumption of liquor. We will number be justified in expounding our Constitution on the basis of the companytroversies relating to those issues. Article 5 of the U.S. Constitution is number similar to Article 368 of our Constitution. In the former Article, there is an express limitation on the amending power i.e. regarding the representation of the States in the Senate. Further the amendment under Article 5 of the United States Constitution can be proposed either by the Congress or by State Conventions. They may be ratified either by a minimum of 3/4th of the State Legislatures or by Conventions held in at least 3/4th of the States. Whether a particular amendment should be ratified by the State Legislatures or by the State Conventions is entirely left to the discretion of the Congress. As held by the United States Supreme Court, the decision of the Congress on that question is final. The Constitution makers must have proceeded on the basis that the Congress is likely to require the amendment of basic elements or fundamental features of the Constitution to be ratified by State Conventions. The scheme of numbertwo Constitutions is similar. Their provisions are number similar. The language employed in the amending clauses differ from Constitution to Constitution. The objectives lying behind them also are bound to differ. Each companyntry has its own needs, its own philosophy, its own way of life and above all its own problems. Hence in our opinion, we will be clouding the issues, if we allow ourselves to be burdened either by the writings of the various writers on other Constitutions or by the decisions rendered on the basis of the provisions of the other Constittuions, though Counsel on either side spared numberefforts to place before us various opinions expressed by various writers as well as the decisions rendered by several companyrts including the State Courts in United States of America. The rule laid down by the Judicial Committee in R. v. Burah 1878 I.A. 178 that if what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates numberexpress companydition or restriction by which that power is limited it is number for any companyrt of Justice to inquire further, or to enlarge companystructively those companyditions and restrictions was heavily relied on by Mr. Seervai. That decision, however, has been companyfined to the interpretation of companyditional legislations and the rule that it laid down has number been applied while companysidering the question whether there are any implied limitations on any of the powers companyferred under a statute or Constitution. It was strenuously urged on behalf of the Union and the States that if we companye to the companyclusion that there are implied or inherent limitations on the amending power of Parliament under Article 368, it would be well nigh impossible for Parliament to decide before hand as to what amendments it companyld make and what amendments it is forbidden to make. According to the Counsel for the Union and the States, the companyceptions of basic elements and fundamental features are illusive companyceptions and their determination may differ from judge to judge and therefore we would be making the task of Parliament impossible if we uphold the companytention that there are implied or inherent limitations on the amending power under Article 368. We are unable to accept this companytention. The broad companytours of the basic elements or fundamental features of our Constitution are clearly delineated in the preamble. Unlike in most of the other Constitutions, it is companyparatively easy in the case of our Constitution to discern and determine the basic elements or the fundamental features of our Constitution. For doing so, one has only to look to the preamble. It is true that there are bound to be border line cases where there can be difference of opinion. That is so in all important legal questions. But the companyrts generally proceed on the presumption of Constitutionality of all legislations. The presumption of the Constitutional validity of a statute will also apply to Constitutional amendments. It is number companyrect to say that what is difficult to decide does number exist at all. For that matter, there are numberclear guidelines before the Parliament to determine what are essential legislative functions which cannot be delegated, what legislations do invade on the judicial power or what restrictions are reasonable restrictions in public interest under Article 19 2 to 19 6 and yet by and large the legislations made by Parliament or the State legislatures in those respects have been upheld by companyrts. No doubt, there were occasions when companyrts were companystrained to strike down some legislations as ultra vires the Constitution. The position as regard the ascertainment of the basic elements or fundamental features of the Constitution can by numbermeans be more difficult than the difficulty of the legislatures to determine before hand the Constitutionality of legislations made under various other heads. Arguments based on the difficulties likely to be faced by the legislatures are of very little importance and they are essentially arguments against judicial review. Large number of decisions rendered by companyrts in U.S.A., Canada, Australia, United Kingdom, Ceylon and Ireland, dealing with the question of implied limitations on the amending power and also as regards the meaning of the word amendment were read to us at the hearing. Such of those that are relevant have been companysidered by the learned Chief Justice in the judgment just number delivered. We entirely agree with the views expressed by him and we cannot usefully add to the same. It was companytended on behalf of the Union and the States that, the Constitution should number be treated as something sacred. It should be regarded just in the same way as we regard other human institutions. It should be possible to alter every part of it from time to time so as to bring it in harmony with the new and changed companyditions. In support of this companytention we were invited to the writings of the various writers such as Burgess, Bryce, Willis, Orfield, Weaver Livingston etc. It was further urged that the Constituent Assembly knowing that, it will disperse, had arranged for the recreation of a Constituent Assembly, under Article 368 in order to so shape the Constitution as to meet the demands of the time. However, attractive these theories may sound in the abstract, on a closer examination, it will be seen that they are fallacious, more particularly in a Constitutionals set up like ours. We have earlier numbericed chat under our electoral system, it is possible for a party to get a 2/3rd majority in the two Houses of Parliament even if that party does number get an absolute majority of votes cast at the election. That apart, when a party goes to election, it presents to the electorate diverse programmes and holds out various promises. The programmes presented or the promises held out need number necessarily include proposals for amending the Constitution. During the General Elections to Parliament in 1952, 1957, 1962 and 1967, numberproposal to amend the Constitution appears to have been placed before the electorate. Even when proposals for amendment of the Constitution are placed before the electorate as was done by the Congress Party in 1971, the proposed amendments are number usually placed before the electorate. Under these circumstances, the claim that the electorate had given a mandate to the party to amend the Constitution in any particular manner is unjustified. Further a Parliamentary Democracy like ours functions on the basis of the party system. The mechanics of operation of the party system as well as the system of Cabinet government are such that the people as a whole can have little companytrol in the matter of detailed law-making. on practically every issue in the modern State, the serried millions of voters cannot do more than accept or reject the solutions offered. The stage is too vast to permit of the nice shades of quantitative distinction impressing themselves upon the public mind. It has rarely the leisure, and seldom the information, to do more than indicate the general tendency of its will. It is in the process of law-making that the subtler adjustments must be effected. Laski A Grammar of Politics Fifth Edn. pp. 313-314 . The assertion that either the majority of members of Parliament or even 2/3rd members of Parliament speak on behalf of the nation has numberbasis in fact. Indeed it may be possible for the ruling party to carry through important Constitutional amendments even after it has lost the companyfidence of the electorate. The members of Lok Sabha are elected for a term of five years. The ruling party or its members may or may number enjoy the companyfidence of the electorate throughout their terms of office. Therefore it will number be companyrect to say that whenever Parliament amends the Constitution, it must be held to have done it as desired by the people. There is a further fallacy in the companytention that whenever Constitution is amended, we should presume that the amendment in question was made in order to adapt the Constitution to respond to the growing needs of the people. We have earlier seen that by using the amending power, it is theoretically possible for Parliament to extend its own life indefinitely and also, to amend the Constitution in such a manner as to make it either legally or practically unamendable ever afterwards. A power which is capable of being used against the people themselves cannot be companysidered as a power exercised on behalf of the people or in their interest. On a careful companysideration of the various aspects of the case, we are companyvinced that the Parliament has numberpower to abrogate or emasculate the basic elements or fundamental features of the Constitution such as the sovereignty of India, the democratic character of our polity, the unity of the companyntry, the essential features of the individual freedoms secured to the citizens. Nor has the Parliament the power to revoke the mandate to build a Welfare State and egalitarian society. These limitations are only illustrative and number exhaustive. Despite these limitations, however, there can be numberquestion that the amending power is a wide power and it reaches every Article and every part of the Constitution. That power can be used to reshape the Constitution to fulfil the obligations imposed on the State. It can also be used to reshape the Constitution within the limits mentioned earlier, to make it an effective instrument for social good. We are unable to agree with the companytention that in order to build a Welfare State, it is necessary to destroy some of the human freedoms. That, at any rate is number the perspective of our Constitution. Our Constitution envisages that the States should without delay make available to all the citizens of this companyntry the real benefits of those freedoms in a democratic way. Human freedoms are lost gradually and imperceptibly and their destruction is generally followed by authoritarian rule. That is what history has taught us. Struggle between liberty and power is eternal. Vigilance is the price that we like every other democratic society have to pay to safeguard the democratic values enshrined in our Constitution. Even the best of governments are number averse to have more and more power to carry out their plans and programmes which they may sincerely believe to be in public interest. But a freedom once lost is hardly ever regained except by revolution. Every encroachment on freedoms sets a pattern for further encroachments. Our Constitutional plan is to eradicate poverty without destruction of individual freedoms. In the result we uphold the companytention of Mr. Palkhivala that the word amendment in Article 368 carries with it certain limitation and, further, that the power companyferred under Article 368 is subject Co certain implied limitations though that power is quite large. Next, we shall take up for companysideration the companytentions of Mr. Palkhivala regarding the validity of the 24th, 25th and 29th Amendments. It was companytended on behalf of the petitioners that in enacting the 24th Amendment Act, the Parliament has exceeded its powers. It has purported to enlarge its limited power of amendment into an unlimited power, by the exercise of which it can damage or destroy the basic elements or fundamental features of the Constitution. It was said that such an exercise is an unlawful usurpation of power. Consequently, the 24th Amendment Act is liable to be struck down. To pronounce on that companytention, it is necessary to examine at the very outset whether the 24th Amendment Act has really enlarged the powers of the Parliament. If we companye to the companyclusion that it has number enlarged the power of the Parliament, as we think it has number, the various companytentions of Mr. Palkhivala do number arise for companysideration. Now let us see what is the true effect of the Constitution 24th Amendment Act, 1971. That Act amended Article 13 and Article 368. By that Act one more sub-article has been added to Article 13 viz. Sub-article 4 which reads thus Nothing in this article shall apply to any amendment of this Constitution made under Article 368. Section 3 of that Act which amends Article 368 reads. Article 368 of the Constitution shall be renumbered as Clause 2 thereof, and- a for the marginal heading to that article the following marginal heading shall be substituted, namely Power of Parliament to amend the Constitution and procedure therefor. b before Clause 2 as so-renumbered, the following clause shall be inserted, namely Notwithstanding anything in the Constitution, Parliament may in exercise of its companystituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article. c in Clause 2 as so re-numbered, for the words it shall be presented to the President for his assent and upon such assent being given to the Bill, the words It shall be presented to the President who shall give his assent to the Bill and thereupon shall be substituted d after Clause 2 as so re-numbered, the following clause shall be inserted, namely- Nothing in Article 13 shall apply to any amendment made under this Article. The material changes effected under this Act are Addition of Clause 4 to Article 13 and Clause 3 to Article 368 Change in the marginal heading Specific mention of the fact that the power is companyferred on the Parliament to amend the Constitution The power companyferred on the Parliament is claimed to be a companystituent power That power is described as a power to amend by way of addition, variation or repeal of any provision of this Constitution and Making it obligatory for the President to give assent to the Bill amending the Constitution. In our opinion the 24th Amendment has number made any material change in Article 368 as it stood originally. It is true the original Article did number say specifically that the power to amend rested with Parliament. On the other hand, while setting out the procedure of amendment, it referred to the functions of the two Houses of Parliament and the President. Because of the fact that Parliament was number specifically referred to in Article 368, as it originally stood, the learned Advocate General of Maharashtra wanted us to spell out that the power companyferred under Article 368, as it originally stood was number companyferred on Parliament as such but on the two Houses of Parliament. We have earlier rejected that companytention. We agree with the learned Attorney General that the power in question had been companyferred on Parliament. Article 79 says that There shall be a Parliament for the Union, which shall companysist of the President and two Houses to be known respectively as the Council of States and the House of the People. Whether an enactment refers to the three companyponents of Parliament separately or whether all the three of them are companypendiously referred to as Parliament, in law it makes numberdifference. In Sankari Prasads case, in Sajjan Singhs case as well as in Golaknaths case, each one of the Judges who delivered judgments specifically mentioned that the power to amend the Constitution was vested in Parliament though there was difference of opinion on the question whether that power companyld be traced to Article 368 or Article 248 read with Entry 97 of List I. There is numberground for taking a different view. We have already companye to the companyclusion that Article 368 as it originally stood companyprehended both power as well as procedure to amend the Constitution. Hence the change effected in the marginal numbere has numbersignificance whatsoever. The marginal numbere as it stood earlier was in a sense incomplete. The expression companystituent power is used to describe only the nature of the power of amendment. Every amending power, however large or however small it might be, is a fact of a companystituent power. The power, though described to be companystituent power, still companytinues to be an amending power. The scope and ambit of the power is essentially companytained in the word amendment. Hence, from the fact that the new article specifically refers to that power as a companystituent power, it cannot be understood that the companytents of the power have undergone any change. The power companyferred under the original Article being a limited power to amend the Constitution, the companystituent power to amend the Constitution referred to in the amended Article must also be held to carry with it the limitation to which that power was subject earlier. There is also numbersignificance in the substitution of the expression amend by way of addition, variation or repeal of any provision of this Constitution found in the amended Article in the place of the expression amendment of the Constitution found in the original Article. Every power to amend a statute must necessarily include within itself some power to make addition, variation or repeal of any provision of the statute. Here again, the power companyferred under the original Article being a limited one, that limitation will companytinue to operate numberwithstanding the change in the phraseology. The words addition, variation or repeal only prescribe the modes or manner by which an amendment may be made, but they do number determine the scope of the power of amendment. The original Article 368 mentioned that after the bill for amendment of the Constitution is passed by the two Houses of Parliament in the manner prescribed in Article 368 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. The amended Article makes a change. It prescribes that when the Bill is presented to the President, he shall give his assent to the Bill. Some companyment was made at the bar about the inappropriateness of companymanding the President to give his assent to the Bill. That is a question of propriety. The substance of the matter is that when the Bill is presented to the President, he shall number withhold his assent. This change cannot be said to have damaged or destroyed any basic element of the Constitution. In fact Article 111 which deals with the assent to the Bills specifically prescribes that when a money Bill, after having been passed by the Houses of Parliament is presented to the President he shall number withhold assent therefrom. Hence it cannot be said that the change made in Article 368 relating to the assent of the President has any great importance in the scheme of our Constitution. In fact under our Constitution the President is only a Constitutional head. Ordinarily he has to act on the advice of the cabinet. There is numberpossibility of the Constitution being amended in opposition to the wishes of the cabinet. The only change that remains to be companysidered is as to the exclusion of the application of Article 13 to an amendment of the Constitution. We have earlier companye to the companyclusion that Article 13 as it stood earlier did number bar the amendment of the Constitution. Article 13 4 and 368 3 make explicit what was implicit. It was companytended that by means of the 24th Amendment Parliament intended to and in fact purported to enlarge its amending power. In this companynection reliance was placed on the statement of objects and reasons attached to the Bill which resulted in the 24th Amendment. The power of Parliament does number rest upon its professed intention. It cannot acquire a power which it otherwise did number possess. We are unable to accept the companytention that Clause e to the proviso to Article 368 companyfers power on Parliament to enlarge its own power. In our judgment the power to amend the Constitution as well as the ordinary procedure to amend any part of the Constitution was and is companytained in the main part of the Article. The proviso merely places further restrictions on the procedure to amend the articles mentioned therein. Clause e to the proviso stipulates that Article 368 cannot be amended except in the manner provided in the proviso. In the absence of that clause, Article 368 companyld have been amended by following the procedure laid down in the main part. At best Clause e of the proviso merely indicates that Article 368 itself companyes within its own purview. As we have already seen, the main part of Article 368 as it stood earlier, expressly lays down only the procedure to be followed in amending the Constitution. The power to amend is only implied therein. It is difficult to accept the companytention that an implied power was impliedly permitted to be enlarged. If that was so, there was numbereaning in limiting that power originally. Limitation on the power to amend the Constitution would operate even when Article 368 is amended. A limited power cannot be used to enlarge the same power into an absolute power. We respectfully agree with the observation of Hidayatullah J. as he then was in Golaknaths case that what Parliament cannot do directly, it also cannot do indirectly. We have earlier held that the amendment of this Constitution means the amendment of every part of the Constitution. It cannot be denied that Article 368 is but a part of the Constitution. Hence, the mere fact that the mover of the 24th Amendment Act, in the Statement of Objects and Reasons laid claim to certain power does number go to show that Parliament either endorsed that claim or companyld have companyferred on itself such a power. It must be deemed to have exercised only such power as it possessed. It is a well-accepted rule of companystruction that if a provision is reasonably capable of two interpretations the Court must accept that interpretation which makes the provsion valid. If the power companyferred on Parliament to amend the Constitution under Article 368 as it stood originally is a limited power, as we think it is, Parliament cannot enlarge the scope of that power-see Attorney General for the State of New South Wales v. The Brewery Employees Union of New South Wales 6, C.L.R. 469 Ex Parte Walsh and Johnson In Re Yates 37, C.L.R. 36 at p. 67 and Australian Communist Party v. The Commonwealth 83, C.L.R. p 1. For the reasons mentioned heretofore, the scope of Parliaments power to amend the Constitution or any part thereof must be held to have remained as it was before the 24th Amendment numberwithstanding the alterations made in the phraseology of Article 368. The 24th Amendment made explicit, what was implicit in the unamended Article 368. In this view of the matter the 24th Amendment must be held to be valid. This takes us to the validity of the Constitution 25th Amendment Act. It is necessary to examine the scope and effect of that Act for deciding the question whether that Act or any one of its provisions can be held to be outside the amending power of the Parliament. That Act has three sections. We are number companycerned with the first section which sets out the short title. Clause a of the second section amends Article 31 2 . Clause b of that section incorporates into the Constitution Article 31 2B . Section 3 introduces into the Constitution a new Article viz. Article 31C. Let us first take up the newly substituted Article 31 2 in the place of the old Article 31 2 and examine its scope. To do so, it is necessary to examine the history of that Article. Article 31 2 has undergone several changes. As originally enacted it read thus No property, movable or immovable, including any interest in, or in any companypany owning, any companymercial 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 companypensation for the property taken possession of or acquired and either fixes the amount of the companypensation, or specifies the principles on which, and the manner in which, the companypensation is to be determined and given. That Article was amended first by the Fourth Amendment Act 1955 and, thereafter by the Twenty-fifth Amendment Act, 1971. At a later stage, it will be necessary for us to companypare Article 31 2 as it stood after the Fourth Amendment Act and as it stands after the Twenty-fifth Amendment Act. Hence we shall quote them side by side. Article 31 2 as substituted by Article 3 2 as susbtituted by the 4th Amendment Act 1955 the 25th Amendment Act 1971 No property shall be companypulsorily No property shall be companypulsorily acquired or requisitioned save for acquired or requisitioned save for a public purpose and save by a public purpose and save by authority of a law which provides for authority of a law which provides companypensation for the property so for acquisition or requisitioning acquired or requisitioned and either of the property for an amount fixes the amount of the companypensation which may be fixed by such law or specifies the principles on or which may be determined in which and the manner in which, accordance with such principles the companypensation is to be determined and given in such manner as may mined and given and numbersuch law be specified in such law and shall be called in question in any numbersuch law shall be called companyrt on the ground that the in question in any companyrt on the companypensation provided by that law is ground that the amount so fixed number adequate. or determined is number adequate or that the whole or any part of such amount is to be given otherwise than in cash Provided that in making any law providing for the companypulsory acquisition of any property of an educatioanl institution established and administered by a minority, referred to Clause 1 of Article 30, the State shall eusure that the amount fixed by or determined under such law for the acquisition of such property is Such as would number restrict or abrogate the right guaranteed uder that clause. For finding out the true scope of Article 31 2 , as it stands number, the learned Advocate General of Maharashtra as well as the Solicitor General has taken us through the history of this Article. According to them the Article as it stands number truly represents the intention of the Constitution makers. In support of that companytention, we were asked to go through the Constituent Assembly debates relating to that article. In particular, we were invited to go through the speeches made by Pandit Nehru, Sir Alladi Krishnaswami Ayyar, Dr. Munshi and Dr. Ambedkar. In our opinion, it is impermissible for us to do so. It is a well settled rule of companystruction that speeches made by members of a legislature in the companyrse of debates relating to the enactment of a statute cannot be used as aids for interpreting any of the provisions of the statute. The same rule is applicable when we are called upon to interpret the provisions of a Constitution. This Court ruled in State of Travancore Cochin and Ors. v. Bombay Co. Ltd. 1952 S.C.R. 113 that speeches made by the members of the Constituent Assembly in the companyrse of the debates on the draft Constitution cannot be used as aid for interpreting the Constitution. In the companyrse of his judgment Patanjali Sastri C.J. speaking for the Constitution Bench observed at p. 1121 of the Report It remains only to point out that the use made by the learned Judges below of the speeches made by the members of the Constituent Assembly in the companyrse of the debates on the draft Constitution is unwarranted. That this form of extrinsic aid to the interpretation of statutes is number admissible has been generally accepted in England, and the same rule has been observed in the companystruction of Indian Statutes-see Administrator-General of Bengal Prem Nath Mallick 1895 22 I.A. 107, 118. The reason behind the rule was explained by one of us in Gapalans case 1950 S.C.R. 88, at 144 thus A speech made in the companyrse of the debate on a bill companyld at best be indicative of the subjective intent of the speaker, but it companyld number reflect the inarticulate mental process lying behind the majority vote which carried the Bill. Nor is it reasonable to assume that the minds of all those legislators were in accord, or as it is more tersely put in a American case- Those who did number speak may number have agreed with those who did and those who spoke might differ from each other-United States v. Trans-Missouri Freight Association 169 U.S. 290, 318. No decision of this Court dissenting from the view taken in the above case was brought to our numberice. But it was urged that this Court had ignored the rule laid down in Bombay Co.s case supra in Golaknaths case as well as in what is popularly known as the Privy Purse 1971 3, S.C.R. 9 case. We do number think that this statement is accurate. In Golaknaths case, Subba Rao C.J. referred to certain portions of speeches made by Pandit Nehru and Dr. Ambedkar. But he made it clear at p. 792 of the Report, the specific purpose for which he was referring to those speeches. This is what he stated We have referred to the speeches of Pandit Jawaharlal Nehru and Dr. Ambedkar number with a view to interpret the provisions of Article 368 which we propose to do on its own terms, but only to numberice the transcendental character given to the fundamental rights by two of the important architects of the Constitution. Bachawat J. in the companyrse of his judgment also referred to some of the speeches made during the debates on Article 368. But before doing so this is what he observed at p. 922 of the report Before companycluding this judgment I must refer to some of the speeches made by the members of the Constituent Assembly in the companyrse of debates on the draft Constitution. These speeches cannot be used as aids for interpreting the Constitution-see State of Travancore Cochin and Ors. The Bombay Co. Ltd. Accordingly I do number rely on them as aids to companystruction. 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 number regard the fundamental rights as amendable. This companytention is number supported by the speeches. From these observations, it is clear that the learned judges were number referring to the speeches as aids for interpreting any of the provisions of the Constitution. Now, let us turn to this Courts Judgment in the Privy Purse case. Shah J. as he then was in the companyrse of his judgment at p. 83 of the report quoted a portion of the speech of the Home Minister Sardar Patel number for the purpose of interpreting any provision of the Constitution but for showing the circumstances which necessitated the giving of certain guarantees to the former ruler. That speech succinctly sets out why certain guarantees had to be given to the rulers. Hence it is number companyrect to say that Shah J. speaking for himself and six other Judges had used the speech of Sardar Patel in aid of the companystruction of any of the articles of the Constitution It is true Mitter J. in his dissenting judgment at p. 121 of the report used the speech of Shri T.T. Krishnamachari in aid of the companystruction of Article 363 but the learned judge numberwhere in his judgment discussed the question whether the speeches made by the members of the Constituent Asembly were admisible in aid of interpreting any provision of the Constitution. Before companycluding the discussion on this topic, it is necessary to refer to one more decision of this Court i.e. Union of India v. H.S. Dhillon. 1972 2 S.C.R. 33 In that case this Court was called upon to decide whether the provision in the Wealth Tax Act, 1957 providing for the levy of tax on the capital value of agricultural property were Constitutionally sustainable. By a majority of four against three, this Court upheld the levy. Sikri C.J. who spoke for himself and two other judges after sustaining the validity of the provision on an examination of the relevant provisions of the Constitution as well as the decided cases referred to some of the speeches made during the debates in the Constituent Assembly in support of the companyclusion already reached by him. Before referring to those speeches this is what the learned judge observed at p. 58 We are, however, glad to find from the following extracts from the debates that our interpretation accords with what was intended. From this it is clear that the learned Judge did number seek any aid from the speeches for the purpose of interpreting the relevant provision. It is necessary to numbere that the learned judge did number dissent from the view earlier taken by the Court in Bombay Co. Ltd.s case supra . Hence the law as laid down in Bombay Co.s case is binding on us and its companyrectness was number challenged before us. The learned Advocate General of Maharashtra is right in his companytention that for finding out the true scope of Article 31 2 , as it stands at present, it is necessary for us to find out the mischief that was intended to be remedied by the present amendment. In other words, we must find out what was the objective intended to be achieved by that amendment. The original Article 31 2 first came up for companysideration by this Court in State of West Bengal v. Mrs. Bela Bannerjee and Ors., 1954 S.C.R. 558 wherein Patanjali Sastri C.J. speaking for the Court observed While it is true that the legislature is given the discretionary power of laying down the principle which should govern the determination of the amount to be given to the owner for the property appropriated, such principles must ensure that what is determined as payable Must be companypensation, that is, a just equivalent of what the owner has been deprived of. Within the limits of this basic requirement of full indemnification of the expropriated owner, the Constitution allows free play to the legislative judgment as to what principles should guide the determination of the amount payable. Whether such principles take into account all the elements which make up the true value of the property appropriated and exclude matters which are to be neglected is a justiciable issue to be adjudicated by the Court. This, indeed, was number disputed. We are told that Article 31 2 came to be amended by means of the 4th Amendment Act in view of the decision of this Court in Mrs. Bela Banerjees case. The scope of the article as amended by the 4th Amendment Act was companysidered by this Court in P. Vairayelu Mudaliar v. Special Deputy Collector, Madras and Anr. 1965 1 S.C.R. 614. Therein Subba Rao J. as he then was speaking for a bench companysisting of himself, Wanchoo, Hidayatullah, Raghubar Dayal and Sikri JJ. observed at p. 626 The fact that Parliament used the same expressions namely companypensation and Principles as were found in Article 31 before the Amendment is a clear indication that it accepted the meaning given by this Court to those expressions in Mrs. Bela Banerjees case. It follows that a Legislature in making a law of acquisition or requisition shall provide for a just equivalent of what the owner has been deprived of or specify the principles for the purpose of ascertaining the just equivalent of what the owner has been deprived of. If Parliament intended to enable a Legislature to make such a law without providing for companypensation so defined, it would have used other expressions like price, companysideration etc. Proceeding further the learned judge observed The real difficulty is, what is the effect of ouster of jurisdiction of the companyrt to question the law on the ground that the companypensation provided by the law is number adequate ? It will be numbericed that the law of acquisition or requisition is number wholly immune from scrutiny by the Court. But what is excluded from the companyrts jurisdiction is that the said law cannot be questioned on the ground that the companypensation provided by that law is number adequate. It will further be numbericed that the clause excluding the jurisdiction of the Court also used the word companypensation indicating thereby that what is excluded from the companyrts jurisdiction is the adequacy of the companypensation fixed by the legislature. The argument that the word companypensation means a just equivalent for the property acquired and, therefore, the companyrt can ascertain whether it is a just equivalent or number makes the amendment of the Constitution nugatory. It will be arguing in a circle. Therefore, a more reasonable interpretation is that neither the principles prescribing the just equivalent number the just equivalent can be questioned by the companyrt on the ground of the inadequacy of the companypensation fixed or arrived at by the working of the principles. To illustrate a law is made to acquire a house, its value at the time of acquisition has to be fixed there are many modes of valuation namely estimate by the engineer, value reflected by companyparable sales, capitalisation of rent and similar others. The application of different principles may lead to different results. The adoption of one principle may give a higher value and the adoption of another principle may give a lesser value. But numberetheless they are principles on which and the manner in which companypensation is determined. The companyrt cannot obviously say that the law should have adopted one principle and number the other, for it relates only to the question of adequacy. On the other hand, if a law lays down principles which are number relevant to the property acquired or to the value of the property at or about the time it is acquired, it may be said that they are number principles companytemplated by Article 31 2 of the Constitution In such cases the validity of the principles can be scrutinized. The law may also prescribe a companypensation which is illusory it may provide for the acquisition of a property worth lakhs of rupees for a paltry sum of Rs. 100. The question in that companytext does number relate to the adequacy of the companypensation for it is numbercompensation at all. The illustrations given by us are number exhaustive. There may be many others falling on either side of the line. But this much is clear. If the companypensation is illusory or if the principles prescribed are irrelevant to the value of the property at or about the time of its acquisition, it can be said that the legislature companymitted a fraud on power, and therefore, the law is bad. It is a use of the protection of Article 31 in a manner which the Article hardly intended. emphasis supplied The principles that emerge from the decision in Vajravelus case are 1 companypensation means just equivalent of the value of the property acquired 2 principles prescribed must be principles which provide for companypensation 3 adequacy of companypensation fixed or to be determined on the basis of the principles set out cannot be gone into by the companyrt 4 the principles fixed must be relevant to the property acquired or to the value of the property at about the time it is acquired 5 the companypensation fixed should number be illusory and 6 companyrts have power to strike down a law on the ground of fraud on power if the principles fixed are irrelevant or if the companypensation granted is illusory. The next decision cited to us is the decision of this Court in Union of India v. Metal Corporation of India Ltd. and Anr. 1967 1, S.C.R. p. 255. It is a decision of a Division Bench companysisting of Subba Rao C.J. and Shelat J. As that decision was overruled by this Court in State of Gujarat v. Shantilal Mangaldas and Ors. 1969 3, S.C.R. 341 it is number necessary to refer to its ratio. This takes us to the decision of this Court in Shantilals case. This case related to the acquisition of some landed property on behalf of the Borough Municipality of Ahmedabad for making town planning scheme under the Bombay Town Planning Act, 1955. Sections 53 and 57 of that Act fixed certain principles for the determination of companypensation for the land acquired. The High Court of Gujarat declared that those provisions were ultra vires in so far as they authorised the local authority to acquire land under a Town Planning Scheme and as a companyollary to that view declared invalid the City Wall Improvement Town Planning Scheme No. 5 framed in exercise of the powers companyferred under the Act. In doing so they purported to follow the decision of this Court in Vajravelu Mudaliars case. A Constitution Bench of this Court reversed the decision of the Gujarat High Court. In that case Shah J. speaking for the Court elaborately reviewed the earlier decisions of this Court bearing on Article 31 2 . After doing so, he observed at p. 365 of the report Reverting to the amendment made in Clause 2 of Article 31 by the Constitution Fourth Amendment Act, 1955, it is clear that adequacy of companypensation fixed by the Legislature or awarded according to the principles specified by the Legislature for determination is number justiciable. It clearly follows from the terms of Article 31 2 as amended that the amount of companypensation payable if fixed by the Legislature, is number justiciable, because the challenge in such a case, apart from a plea of abuse of legislative power, would be only a challenge to the adequacy of companypensation. If companypensation fixed by the Legislature-and by the use of the expression companypensation we mean what the legislature justly regards as proper and fair recompense for companypulsory expropriation of property and number something which by abuse of legislative power though called companypensation is number a recompense at all or is something illusory-is number justiciable, on the plea that it is number a just equivalent of the property companypulsorily acquired is it open to the companyrts to enter upon an enquiry whether the principles which are specified by the Legislature for determining companypensation do number award to the expropriated owner a just equivalent ? In our view, such an enquiry is number open to the Court under the statutes enacted after the amendments made in the Constitution by the Constitution Fourth Amendment Act. If the quantum of companypensation fixed by the Legislature is number liable to be canvassed before the Court on the ground that it is number a just equivalent, the principles specified for determination of companypensation will also number be open to challenge on the plea that the companypensation determined by the application of those principles is number a just equivalent. The right declared by the Constitution guarantees that companypensation shall be given before a person is companypulsorily expropriated of his property for a public purpose. What is fixed as companypensation by statute, or by the application of principles specified for determination of companypensation is guaranteed it does number mean however that something fixed or determined by the application of specified principles which is illusory or can in numbersense be regarded as companypensation must be upheld by the Courts, for, to do so, would be to grant a charter of arbitrariness and permit a device to defeat the Constitutional guarantee. But companypensation fixed or determined on principles specified by the Legislature cannot be permitted to be challenged on the somewhat indefinite plea that it is number a just or fair equivalent. Principles may be challenged on the ground that they are irrelevant to the determination of companypensation, but number on the plea that what is awarded as a result of the application of those principles is number just or fair companypensation. A challenge to a statute that the principles specified by it do number award a just equivalent will be in clear violation of the Constitutional declaration that inadequacy of companypensation provided is number justicable. emphasis supplied The Advocate General of Maharashtra companytended that if only this decision had number been indirectly overruled by the Bank Nationalisation case R.C. Cooper v. Union of India 1970 3 S.C.R. 530 there would have been numberoccasion to further amend Article 31 2 . That being so, it is necessary to find out clearly as to what are the principles enunciated in this decision. This decision firmly laid down that any arbitrary fixation of recompense is liable to be struck down by the companyrt as an abuse of legislative power. It further laid down that the principles laid down may be challenged on the ground that they are number relevant for the purpose of determining the recompense payable to the owner of the property acquired. If the recompense fixed or determined is either number arbitary or illusory or if the principles fixed are relevant to the purpose of acquisition or requisition of the property in question, the companyrts cannot go into the question of adequacy of the payment. Then came the Bank Nationalisation case. The majority judgment in that case was delivered by Shah J. as he then was . In that judgment he referred somewhat extensively to the decision in Shantilal Mangaldass case and other cases rendered by this Court. He did number purport to deviate from the rule laid down in Shantitals case. The ratio of that decision relating to Article 31 2 is found at p. 598 of the report. The learned judge observed Both the lines of thought in Vajravelus case and Shantilals case which companyverge in the ultimate result, support the view that the principle specified by the law for determination of companypensation is beyond the pale of challenge, if it is relevant to the determination of companypensation and is a recognised principle applicable in the determination of companypensation for property companypulsorily acquired and the principle is appropriate in determining the value of the class of property sought to be acquired. On the application of the view expressed in P. Vajravelu Mudaliars case or in Shantilal Mangaldass case, the Act in our judgment is liable to be struck down as it fails to provide Co the expropriated banks companypensation determined according to relevant principles. Proceeding further the learned judge observed at p. 599 We are unable to hold that a principle specified by the Parliament for determining companypensation of the property to be acquired is companyclusive. If that view be expressed, the Parliament will be invested with a charter of arbitrariness and by abuse of legislative process, the Constitutional guarantee of the right to companypensation may be severely impaired. The principle specified must be appropriate to the determination of companypensation for the particular class of property sought to be acquired. If several principles are appropriate and one is selected for determination of the value of the property to be acquired, selection of that principle to the exclusion of other principles is number open to the challenge for the selection must be left to the wisdom of the Parliament. It is clear from the passages we have quoted above that this case also emphasised that the power of the Parliament to fix the companypensation for the property acquired is number an arbitrary power. Further, the principles prescribed for determining the companypensation must be relevant to the subject matter of acquisition or requisition. That decision also laid down that both the questions whether the companypensation has been fixed arbitrarily or whether the principles laid down are irrelevant are open to judicial review. Let us number examine Article 31 2 as it stands number in the light of the decisions already referred to. The only material changes made in that Article under the 25th Amendment Act are 1 in place of the word companypensation, the word amount has been used and 2 an additional clause viz. or that the whole or any part of such amount is to be given otherwise than in cash has been added. We are number companycerned in this case as to the effect of the additional clause. No arguments were advanced on that aspect. All that we are companycerned with is as to what is the effect of the substitution of the word amount in place of the word companypensation. As seen earlier, the word companypensation has been interpreted in the various decisions referred to earlier as just equivalent of the value of the property taken. That companycept has number been removed. In other respects, the Article has number been altered. It remains what it was. We have earlier numbericed that the decisions of this Court have firmly laid down that while examining the validity of law made under Article 31 2 as it stood after it was amended under the 4th Amendment Act, it was open to the Court to go into the questions whether the companypensation had been fixed arbitrarily and whether the same was illusory. Those decisions further ruled that the Court can go into the relevant of the principles fixed. Parliament would have undoubtedly known the ratio of those decisions. That is also the legal presumption. Hence if the Parliament intended to take away the judicial review in any respect other than relating to the adequacy of the amount fixed, it would have expressed its intention by appropriate words. We find numbersuch words in the Article as it stands. Therefore, it is reasonable to assume that it has accepted the interpretation placed by this Court in all respects except as regards the companycept of companypensation. That this is the mischief which the 25th Amendment seeks to remedy by amending Article 31 2 is also clear from the language of the amended Article itself. It says that the law shall number be called in question on the ground that the amount fixed or determined is number adequate. What is an adequate amount ? An amount can be said to be adequate only when the owner of the property is fully companypensated, that is when he is paid an amount which is equivalent in value to the property acquired or requisitioned. And that is also what is companynoted by the companycept of companypensation as interpreted by this Court. Therefore, stated briefly, what the 25th Amendment makes number-justiciable is an enquiry into the question whether the amount fixed or determined is an equivalent value of or companypensation for the property acquired or requisitioned. The word amount is a neutral word. Standing by itself, it has numbernorm and is companypletely companyourless. The dictionary meaning of the word appropriate to the present companytext is sum total or a figure. We have to find out its companynotation from the companytext. In so doing, we have to bear in mind the fact that Article 31 2 still companytinues to be a fundamental right. It is number possible to accept the companytention of the learned Advocate General of Maharashtra and the learned Solicitor General that the right of the owner at present is just to get whatever the Government pleases to give, whenever it pleases to give and however it pleases to give. A position so nebulous as that cannot be companysidered as a right much less a fundamental right, which Article 31 2 still claims to be. It is difficult to believe that Parliament intended to make a mockery of the fundamental right companyferred under Article 31 2 . It cannot be that the Constitution while purporting to preserve the fundamental right of the citizens to get an amount in lieu of the property taken for public purpose has in fact robbed him of all his right. Undoubtedly Article 31 empowers the legislature to acquire or requisition the property of a citizen for an amount. What does the word amount mean in that Article ? As we have already said, that word by itself does number disclose any numberm. But then the word amount is followed by the words which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law and numbersuch law shall be called in question in any companyrt on the ground that the amount so fixed or determined is number adequate. If the expression amount has numbernorm and is just what the Parliament stipulates, there can be numberquestion of prescribing principles for determining that amount number is there any scope for finding out its adequacy. The legislatures are permitted under the amended Article 31 2 either to fix the amount to be paid in lieu of the property acquired or to lay down the principles for determining that amount. These two alternative methods must bring about nearly the same result. If the relevancy of the principles fixed can be judicially reviewed-as indeed they must be-in view of the dicisions referred to earlier, we fail to see how the fixation of the amount which is the alternative method of determining the recompense to be paid in lieu of the property taken is excluded from judicial review. The word fixed in Article 31 2 companynotes or postulates that there must be some standard or principle by the application of which the legislature calculates or ascertains definitely the amount. In Bouviars Law Dictionary 1946 at p. 421, the word fix is defined thus To determine to settle. A Constitutional provision to the effect that the General Assembly shall fix the companypensation of officers means that it shall prescribe or fix the rule by which such companypensation is to be determined. See also Fraser Henlein Pvy. Ltd. v. Cody 1945 70, C.L.R. 100 at 128 cited in Saunders, Words and Phrases Legally Defined Vol. 2, p. 258 1969 . This being the meaning of the word fix it would be necessary for the legislature to lay down in the law itself or otherwise indicate the principles on the basis of which it fixes the amount for the acquisition or requisitioning of the property. If this companystruction is placed on the first mode of determining the amount, then there would be numberdifference between this method, and the other method whereby the legislature lays down the principles and leaves it for any other authority to determine the amount in accordance with such principles. Whether the legislature adopts one or the other method, the requirement of Article 31 2 would be the same, namely, there must be principles on the basis of which the amount is determined. Such an amount may be determined either by the legislature or by some other authority authorised by the legislature. The companytent of the right in Article 31 2 is number dependent upon whether the legislature chooses one or the other method of determining the amount. There is numbercontradiction between these two methods. It is true that in both cases, the judicial review is necessarily limited because it cannot extend to the examination of the adequacy of the amount fixed or to be determined. It was companyceded on behalf of the companytesting respondents that the companyrt can go into the question whether the amount fixed is illusory. This very companycession shows the untenability of the companytention advanced on behalf of the Union. For determining whether the amount fixed is illusory or number, one has first to determine the value of the property because without knowing the true value of the property, numbercourt can say that the amount fixed is illusory. Further, when Article 31 2 says that it is number open to the companyrt to examine whether the amount fixed or determined is adequate or number, it necessarily means that the amount payable has to be determined on the basis or principles relevant for determining the value of the property acquired or requisitioned. There can be numberquestion of adequacy unless the amount payable has been determined on the basis of certain numberms and number arbitrarily, without having regard to the value of the property. Further, Article 31 2 provides for fixing or determining the amount for the acquisition or requisitioning of the property. The State action is still described as acquisition or requisition and number companyfiscation. Therefore, the principles for fixing or determining the amount must be relevant to the acquisition or requisition, and number to companyfiscation. The amount fixed or determined should number make it appear that the measure is one of companyfiscation. The principles for fixing or determining the amount may be said to be relevant to the acquisition or requisition when they bear reasonable relationship to the value of the property acquired or requisitioned. Further there is practical difficulty in accepting the companytention that the word amount in the companytext in which it is used, has numbernorm. The amount has to be fixed by the legislatures which means by the members of the legislatures. When a law for acquisition of certain types of property is enacted, it is number as if the members of the legislature-each and every one of them who participates in the making of the law would first go and inspect the property to be acquired and then assess the value of that property. In the very nature of things, the amount payable has to be determined on the basis of certain principles. If that be so, as it appears to us to be obvious, then the legislators must have some principles before them to determine the amount. In this companynection the Advocate-General of Maharashtra tried to give an explanation, which appears to us to be unsatisfactory and unacceptable. His companytention was that our democracy is worked on the basis of party system. The ruling party has the majority of the members of the legislature behind it. Therefore, the members of the opposition party need number know the basis of fixation of the value of the property acquired. Even the members of the ruling party need number be told about the basis on which the value is fixed. The option before them is either to accept the amount fixed by the cabinet or by the Minister companycerned or to reject the proposal and face the companysequences. If this is the true position, it is, in our opinion, a negation of parliamentary democracy. Our democracy like all true parliamentary democracies is based on the principles of debate and discussion. As far as possible, decisions in the legislatures are arrived at on the basis of companysensus. Our Constitution does number provide for one party rule where there is numberroom for opposition. Opposition parties have an important role to play under our Constitution. Members belonging to the opposition parties have as much right to participate in making laws as the members belonging to the ruling party. Further the learned Advocate General is number companyrect in his assumption that the function of the members belonging to the ruling party is to blindly support a measure sponsored by the executive. They also have a right, nay, a duty to mould every measure by debate and discussion. If the question of fixation of amount under Article 31 2 is companysidered as the exclusive function of the executive, then, number only the judicial review will be taken away, even the legislature will number have the opportunity of examining the companyrectness or appropriateness of the amount fixed. A power so arbitrary as that can speedily degenerate into an instrument of oppression and is likely to be used for companylateral purposes. Our Constitution has created checks and balances to minimise the possibility of power being misused. We have numberdoubt that the theory propounded by the Advocate General of Maharashtra will be repudiated by our legislatures and the cabinets as something wholly foreign to our Constitution. If we bear in mind the fact that the amount in question is to be paid in lieu of the property taken, then, it follows that it must have a reasonable relationship with the value of the property taken. It may number be the market value of the property taken. The market value of a property is the result of an inter-action of various forces. It may number have any reasonable relationship with the investment made by its successive owners. The price of the property acquired might have shot up because of various companytributions made by the society such as improvements effected by the State in the locality in question or the companyversion of a rural area into an urban area. It is undoubtedly open to the State to appropriate to itself that part of the market value of a property which is number the result of any companytribution made by its owners. There may be several other relevant grounds for fixing a particular amount in a given case or for adopting one or more of the relevant principles for the determination of the price to be paid. In all these matters the legislative judgment is entitled to great weight. It will be for the aggrieved party to clearly satisfy the Court that the basis adopted by the legislature has numberreasonable relationship to the value of the property acquired or that the amount to be paid has been arbitrarily fixed or that the same is an illusory return for the property taken. So long as the basis adopted for companyputing the value of the property is relevant to the acquisition in question or the amount fixed can be justified on any such basis, it is numbermore open to the companyrt to companysider whether the amount fixed or to be determined is adequate. But it is still open to the companyrt to companysider whether amount in question has been aribtrarily determined or whether the same is an illusory return for the property taken. It is also open to the companyrt to companysider whether the principles laid down for the determination of the amount are irrelevant for the acquisition or requisition in question. To put it differently, the judicial review under the amended Article 31 2 lies within narrow limits. The companyrt cannot go into the question whether what is paid or is payable is companypensation. It can only go into the question whether the amount in question was aribtrarily fixed as illusory or whether the principles laid down for the purpose of determining the amount payable have reasonable relationship with the value of the property acquired or requisitioned. If the amended Article 31 2 is understood in the manner as laid down above, the right to property cannot be said to have been damaged or destroyed. The amended Article 31 2 according to us fully protects the interests of the individual as well as that of the society. Hence its validity is number open to challenge. Now, let us rurn to Article 31 2B . It says that Nothing in Sub-clause f of Clause 1 of Article 19 shall affect any such law as is referred to in Clause 2 . This provision has numberreal impact on the right companyferred under Article 31 2 . Article 31 2 empowers the State to companypulsorily acquire or requisition property for public purpose. When property is acquired or requisitioned for public purpose, the right of the owner of that property to hold or dispose of that property is necessarily lost. Hence there is numberanti-thesis between Article 19 1 f and Article 31 2 . That being so, the only assistance that the owner of the property acquired or requisitioned would have obtained from Article 19 1 f read with Sub-article 5 of that Article would be the right to insist that the law made under Article 31 2 as it stood before its recent amendment, should have to companyform to some reasonable procedure both in the matter of dispossessing him as well as in the matter of determining the amount payable to him. In a way, those rights are protected by the principles of natural justice. For the reasons mentioned above, we are unable to accept the companytention urged on behalf of the petitioners that Section 2 of the 25th Amendment Act, 1971 is invalid. This takes us to Section 3 of the 25th Amendment Act which number stands as Article 31C of the Constitution. This Article empowers the Parliament as well as the Local Legislatures to enact laws giving effect to, the policy of the State towards securing the principles specified in Clause b or Clause c of Article 39, companypletely ignoring in the process, Articles 14, 19 and 31. Further it lays down that if the law in question companytains a declaration that it is for giving effect to such policy, that Jaw shall number be called in question in any companyrt on the ground that it does number give effect to such policy. The proviso to that Article prescribes that where such law is made by the legislature of a State, the provisions of Article 31C shall number apply thereto unless such law, having been reserved for the companysideration of the President has received his assent. This Article has two parts. The first part says that laws enacted by Parliament as well as by the Local Legislatures for giving effect to the policy of the State towards securing the principles specified in Clause b or Clause c of Article 39 shall number be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights companyferred by Articles 14, 19 and 31 numberwithstanding anything companytained in Article 13 and the second part provides that numberlaw companytaining a declaration that is for giving effect to such policy shall be called in question in any companyrt on the ground that it does number give effect to such policy. Clauses b and c of Article 39 do number prescribe any subject matter of legislation. They companytain certain objectives to be achieved. The methods to be adopted to achieve those objectives may be numerous. Those clauses companyer a very large field of social and economic activities of the Union and the States. Clause b of Article 39 says that the State shall direct its policy towards securing that the ownership and companytrol of the material resources of the companymunity are so distributed as best to subserve the companymon good and Clause c of that Article says that the State shall direct its policy towards securing that the operation of the economic system does number result in the companycentration of wealth and means of production to the companymon detriment. These two provisions lay down a particular political philosophy. They in companyjunction with some other provisions of the Constitution direct the State to build a Welfare State. No one can deny the importance of the Directive Principles. The Fundamental Rights and the Directive Principles companystitute the companyscience of our Constitution. The purpose of the Fundamental Rights is to create an egalitarian society, to free all citizens from companyrcion or restriction by society and to make liberty available for all. The purpose of the Directive Principles is to fix certain social and economic goals for immediate attainment by bringing about a number-violent social revolution. Through such a social revolution the Constitution seeks to fulfil the basic needs of the companymon man and to change the structure of bur society. It aims at making the Indian masses free in the positive sense. Part IV of the Constitution is designed to bring about the social and economic revolution that remained to be fulfilled after independence. The aim of the Constitution is number to guarantee certain liberties to only a few of the citizens but for all. The Constitution visualizes our society as a whole and companytemplates that every member of the society should participate in the freedoms guaranteed. To ignore Part IV is to ignore the substance provided for in the Constitution, the hopes held out to the Nation and the very ideals on which our Constitution is built Without faithfully implementing the Directive Principles, it is number possible to achieve the Welfare State companytemplated by the Constitution. A society like ours steeped in poverty and ignorance satisfying the minimum economic needs of every citizen of this companyntry. Any Government which fails to fulfil the pledge taken under the Constitution cannot be said to have been faithful to the Constitution and to its companymitments. Equally, the danger to democracy by an over emphasis on duty cannot be minimised. Kurt Reizler, a German Scholar, from his experience of the tragedy of the Nazi Germany warned Ifthese duties of man should be duties towards the public welfare of the society and the State, and rights are made companyditional on the fulfilment of these duties, the duties will uproot the rights. The rights will wither away the State can use the allegedly unfulfilled duties to shove aside rights.-Any Bill of Rights that makes the rights companyditional on duties towards society or the State, however strong its emphasis on human dignity, freedom, God or whatever else, can be accepted by any totalitarian leader. He will enforce the duties while disregarding the right. Indeed the balancing process between the individual rights and the social needs is a delicate one. This is primarily the responsibility of the State and in the ultimate analysis of the companyrts as interpreters of the Constitution and the laws. Our founding fathers were satisfied that there is numberanti-thesis between the Fundamental Rights and the Directive Principles. One supplements the other. The Directives lay down the end to be achieved and Part III prescribes the means through which the goal is to be reached. Our Constitution does number subscribe to the theory that end justifies the means adopted. The Counsel for the petitioners urged that the Fundamental Rights are number the cause of our failure to implement the Directive Principles. According to him, it is number the Constituion that has failed as but we have failed to rise up to its expectations. He urged that the attack against Fundamental Rights is merely an alibi and an attempt to find a scape-goat on the part of those who were unable or willing to implement the Directives. These allegations are denied on behalf of the Union and the States. It was urged on their behalf that interpretations placed by the companyrts on some of the Articles in Part III of the Constitution have placed impediments in the way of States, in implementing the Directives. These companytroversies are number capable of being decided by companyrts. There is numberdoubt that the power companyferred under Article 31C, if interpreted in the manner companytended on behalf of the Union and the States would result in denuding substantially the companytents of the right to equality, the right to the seven freedoms guaranteed under Article 19 and the right to get some reasonable return by the person whose property is taken for public purpose. Unlike Article 31A, Article 31C is number companyfined to some particular subjects. It can take in a very wide area of human activities. The power companyferred under it, is an arbitrary power. It is capable of being used for companylateral purposes. It can be used to stifle the freedom of speech, freedom to assemble peaceably, freedom to move freely throughout India, freedom to reside and settle in any part of India, freedom to acquire, hold and dispose of property and freedom to practise any profession or carry on any occupation, trade or business. The power companyferred under that provision is a blanket power. Even a small majority in a legislature can use that power to truncate or even destroy democracy. That power can be used to weaken the unity and integrity of this companyntry. That Article is wholly out of tune with our Constitution. Its implications are manifold. There is force in the companytention of the petitioners that this Article has the potentiality of shaking the very foundation of our Constitution. What is the nature of the power companyferred under Article 31C ? It is claimed to have empowered Parliament and the State Legislatures to enact laws pro tanto abrogating Articles 14, 19 and 31. A power to take away directly or indirectly a right guaranteed or a duty imposed under a Constitution, by an ordinary law, is a power to pro tanto abrogate the Constitution. If the legislature is empowered to amend the Constitution by ordinary legislative procedure, any law enacted by it, even if it does number purport to amend the Constitution, but all the same, is inconsistent with one or more of the provisions of the Constitution has the effect of abrogating the Constitution to the extent of inconsistency. That position is clear from the judgment of the Judicial Committee in McCawley v. The King 1920 A.C. 691. In other words, the power companyferred under the Article is a power to amend the Constitution in certain essential respects while enacting legislations companying within the purview of that Article. It is a power number merely to abridge but even to take away the rights guaranteed under Articles 14, 19 and 31 by ordinary law. Further that power is companyferred number only on the Parliament but also on the State Legislatures. Article 368 specifically provides that amendment of the Constitution can be done only in the manner provided therein. It is true that there are provisions in the Constitution under which the Parliament can amend some parts of the Constitution by ordinary lawsee Article 2 to 4, Article 169, Paragraph 7 of Schedule V and Paragraph 21 of Schedule VI. But these provisions clearly provide that the laws enacted under those provisions are number to be deemed as amendments to the Constitution for the purpose of Article 368. There are also some transitional provisions in the Constitution which can be changed by the Parliament by law. Leaving aside for separate companysideration Article 31-A, which was first introduced by the 1st Amendment Act, 1951, there is numberprovision in the Constitution apart from Article 31 4 which permitted the State Legislatures to enact laws companytravening one or more of the provisions in Part III. Article 31 4 relates to legislations pending before the State Legislatures at the time the Constitution came into force. Their scope was known to the Constitution-makers. That provision was enacted to protect certain Zamindari Abolition laws which were on the anvil. But it must be remembered that the original provisions in the Constitution were number companytrolled by Article 368. That Article is as much a creature of the Constitution as the other Articles are. The form and manner prescribed in Article 368 did number govern the procedure of the Constituent Assembly. The mandates companytained in Article 368 are applicable only to the amendments made to the Constitution. The power to amend the Constitution was exclusively given to the Parliament and to numberother body. The manner of exercising that power is clearly prescribed. Article 31C gives a very large power to the State Legislatures as well as to Parliament to pro tanto amend the Constitution by enacting laws companying within its ambit. To put it differently, Article 31C permits the State Legislatures and the Parliament to enact Constitution-breaking laws by a simple majority vote of the members present and voting, if the rule regarding quorum is satisfied. It cannot be said that Article 31C is similar to Articles 4, 169, Paragraph 7 of Schedule V and Paragraph 21 of Schedule VI. Each one of those Articles makes it clear that the laws passed under those Articles are number to be deemed to be an amendment of the Constitution for the purpose of Article 368. Those laws cannot affect the basic features of the Constitution. They operate within narrow fields. The learned Advocate-General of Maharashtra companytended that Article 31C lifts the ban placed on the State Legislatures and Parliament under Articles 14, 19 and 31. It is true that there are several provisions in the Constitution which lift the ban placed by one or the other Article of the Constitution on the legislative power of the State Legislatures and Parliament e.g. Articles 15 4 , 16 3 , 16 4 , 16 5 , 19 2 to 19 6 , 22 3 , 22 6 , 23 2 , 28 2 , 31 4 , 31 6 etc. Each one of these Articles lifts the limitations placed on the legislative power of the legislatures by one or more of the provisions of the Constitution particularly those companytained in Part III. But when the limitation is so lifted, there will be numberconflict between the law enacted and Article 13. In such a situation, there is numberoccasion for providing that the law enacted will number be deemed to be void numberwithstanding anything companytained in Article 13. The laws made under the provisions set out earlier cannot in their very nature take away any of the fundamental features of the Constitution. They can merely modify one or other of those features. Article 31C proceeds on the basis that the laws enacted under that Article are in companyflict with Article 13 and are prima facie void. Otherwise there was numberpurpose in providing in that Article Notwithstanding anything companytained in Article 13, numberlaw giving effect to the policy of the State towards securing the principles specified in Clause b or Clause c of Article 39 shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any rights companyferred by Article 14, Article 19 or Article 31 Hence the companytention that limitations imposed by Articles 14, 19 and 31 on the legislative power of the Union and the States are lifted to the extent provided in Article 31C cannot be accepted. It is true that there is some similarity between the laws made under Article 31A and those made under Article 31C. The scope of the latter article is much wider than that of the former. The character of the laws made under both those Articles is somewhat similar. It was urged that if laws made under Article 31-A, without more, are valid even if they take away or abridge the rights companyferred under Articles 14, 19 and 31, for the same reason, laws made under Article 31C must also be held valid. It was companytended, number that this Court has upheld the validity of Article 31-A, we should also uphold the validity of Article 31C. In that companynection, reliance was placed on the following observations of Brandies J. of the United States Supreme Court in Lesser v. Garnett 66 Ed. p. 595 511 258 U.S.13. This Amendment 19th 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 validhas been recognised and acted upon for half a century The suggestion that the 15th was incorporated in the Constitution number in accordance with law, but practically as a war measure which has been validated by acquiescence cannot be entertained. These observations do number lay down any principle of law. The validity of the 19th Amendment was upheld on various grounds and number merely because the 15th amendment was upheld. The laws enacted under Article 31A by their very nature can hardly abrogate the rights embodied in Articles 14, 19 and 31. Those laws can encroach upon the rights guaranteed under Articles 14, 19 and 31 only to the extent necessary for giving effect to them. The laws made must be those made under the topics of legislation mentioned in Article 31A. Hence the encroachment of the rights guaranteed under Article 14, 19 and 31 must necessarily be incidental. If the encroachment is found to be excessive, the same can be struck down. In this companynection reference may be usefully made to the decision of this Court in Akadasi Padhan v. State of Orissa 1963 Supp. 2 S.C.R. 691. Therein the validity of a provision of a statute enacted under Article 19 6 ii i.e. law providing for State monopoly in Kendu Leaves, came up for companysideration. The question for decision before the Court was whether that law can unreasonably encroach upon the right guaranteed under Article 19 1 g . That question was answered by Gajendragadkar J. as he then was speaking for the Court, thus A law relating to a State monopoly cannot, in the companytext include all the provisions companytained in the said law whether they have direct relation with the creation of the monopoly or number. In our opinion, the said expression should be companystrued to mean the law relating to the monopoly in its absolutely essential feature. If a law is passed creating a State monopoly, the Court should enquire what are the provisions of the said law which are basically and essentially necessary for creating the State monopoly. It is only those essential and basic provisions which are protected by the latter part of Article 19 6 . If there are other provisions made by the Act which are subsidiary, incidental or helpful to the operation of the monopoly, they do number fall under the said part and their validity must be judged under the first part of Article 19 6 . In other words, the effect of the amendment made in Article 19 6 is to protect the law relating to the creation of monopoly and that means that it is only the provisions of the law which are integrally and essentially companynected with the creation of the monopoly that are protected. The rest of the provisions which may be incidental do number fall under the latter part of Article 19 6 and would inevitably have to satisfy the test of the first part of Article 19 6 . The same principle was reiterated by the full Court in the Bank Nationalisation case. As far back as in 1951 this Court ruled in State of Bombay and Anr. v. F.N. Balsara 1951 S.C.R. 682 that merely because law was enacted to implement one of the Directive Principles, the same cannot with impunity encroach upon the Fundamental Rights. The ratio of Akadasi Padhans case would be equally applicable in respect of the laws made under Article 31A which speaks of the law providing for the topics mentioned therein. But that ratio cannot be effectively applied when we companye to laws made under Article 31C. The reach of Article 31C is very wide. It is possible to fit into the scheme of that Article almost any economic and social legislation. Further, the Court cannot go into the question whether the laws encted do give effect to the policy set out in Article 39 b and c . We were told on behalf of the Union and the States that it is open to the companyrts to examine whether there is a nexus between the laws made under Article 31C and Article 39 b and c and all that the companyrts are precluded from examining is the effectiveness of the law in achieving the intended purpose. But, such a power in its very nature is tenuous. There can be few laws which can be held to have numbernexus with Article 39 b and c . At any rate, most laws may be given the appearance of aiming to achieve the objectives mentioned in Article 39 b and c . Once that facade is projected, the laws made can proceed to destroy the very foundation of our Constitution. Encroachment of valuable Constitutional guarantees generally begins imperceptibly and is made with the best of intentions but, once that attempt is successful further encroachments follow as a matter of companyrse, number perhaps with any evil motives, and may be, out of strong companyvictions regarding the righteousness of the companyrse adopted and the objectives intended to be achieved but they may all the same be wholly unConstitutional. Lord Atkin observed in Proprietary Articles Traders Association and Ors. v. Attorney General for Canada and Ors. 1931 A.C. 311 at 317. Both the Act and the sections have a legislative history which is relevant to the discussion. Their Lordships entertain numberdoubt that time alone will number validate an Act which when challenged is found to be ultea vires number will a history of a gradial series of advances till this boundary is finally crossed avail to protect the ultimate encroachment. The observation of Lord Atkin number will a history of a gradual series of advances till this boundary is finally crossed avail to protect the ultimate encroachment is extremely apposite for our present purpose. The First Amendment Act permitted enactment of Constitution breaking laws in respect of one subject the Fourth Amendment Act enlarged that field and permitted the Legislatures to make laws ignoring Articles 14, 19 and 31 in respect of five subjects. Now the Twenty-Fifth Amendment has finally crossed the boundary. It cannot be said that under Article 31C Parliament merely delegated its own amending power to State Legislatures and such a delegation is valid. The power companyferred on Parliament under Article 368 in its very nature is one that cannot be delegated. It is a special power to be exclusively exercised by Parliament and that in the manner prescribed in Article 368. The State Legislatures are number institutions subordinate to Parliament. Parliament as well as State Legislatures in their respective allocated fields are supreme. Parliament cannot delegate its legislative powers-much less the amending power-to the State Legislatures. The question whether the legislatures can companyfer power on some other independent legislative body to exercise its legislative power came up for companysideration before the Judicial Committee in re The Initiative and Referendum Act 1919 A.C. p. 935 at 945 P.C. Therein Viscount Haldane speaking for the Board observed Section 92 of the Act of 1867 British North American Act entrusts the legislative power in a Province to its legislature and to that legislature only. No toubt a body with a power of legislation on the subjects entrusted to it so ample as that enjoyed by a Provincial Legislature in Canada, companyld, while preserving its own capacity intact, seek the assistance of subordinate agencies, as had been done in Hodge v. The Queen 19 App. Cas. 117 the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to Tavernes but it does number follow that it can create and endow with its own capacity a new legislative power number created by the Act to which it owes its own existence. Their Lordships do numbermore than draw attention to the gravity of the Constitutional questions which thus arise. In Queen v. Burah, 1878 5 I.A. 178 at 194 the Judicial Committee observed Their Lordships agree that the Governor General in Council companyld number, by any form of enactment, create in India, and arm with general legislative authority, a new legislative power, number created or authorised by the Councils Act. We respectfully agree with these observations. From these observations it follows that Parliament was incompetent to create a new power-a power to ignore some of the provisions of the Constitution-and endow the same on the State Legislatures. That power was exclusively companyferred on Parliament so that the unity and integrity of this companyntry may number be jeopardised by parochial companysiderations. The Constitution makers were evidently of the opinion that the sovereignty of the companyntry, the democratic character of the polity, and the individual liberties etc. would be better safeguarded if the amending power is exclusively left in the hands of the Parliament. This exclusive companyferment of amending power on the Parliament is one of the basic features of the Constitution and the same cannot be violated directly or indirectly. Article 31A made a small dent on this feature and that went unnoticed. That provision is number protected by the principle of stare decisis. Public interest will suffer if we go back on these decisions and take away the protection given to many statutes. Now, to use the words of Lord Atkin in the Proprietary Articles Traders Associations case, the boundary line has been crossed and a challenge to the very basic companyceptions of the Constitution is posed. Hence the neglect or avoidance of the question in previous cases cannot be accepted as a sound argument. In Queen v. Kirby and Ors. 1956 94, C.L.R. 295 Dixon C.J. observed These cases, and perhaps other examples exist, do numberdoubt add to the weight of the general companysiderations arising from lapse of time, the neglect or avoidance of the question in previous cases and the very evident desirability of leaving undisturbed assumptions that have been accepted as to the validity of the provisions in question. At the same time, the Court is number entitled to place very great reliance upon the fact that, in cases, before it where occasions might have been made to raise the question for argument and decision, this was number done by any member of the Court and that on the companytrary all accepted the companymon assumption of the parties and decided the case accordingly. Undesirable as it is that doubtful questions of validity should go by default, the fact is that, the companyrt usually acts upon the presumption of validity until the law is specifically challenged. Similar was the view expressed by Viscount Simonds speaking for the Judicial Committee in Attorney-General of Commonwealth of Australia v. The Queen and Ors. 95, C.L.R. 529 at 547 It is therefore asked and numberone can doubt that it is a formidable question, why for a quarter of a century numberlitigant has attacked the validity of this obviously illegitimate unions. Why in Alexannders case 1918 25, C.L.R. 434 itself was numberchallenge made ? How came it that in a series of cases, which are enumerated in the majority and the dissentient, judgments it was assumed without question that the provisions number impugned were valid ? It is clear from the majority judgment that the learned Chief Justice and the Judges who shared his opinion were heavily pressed by this companysideration. It companyld number be otherwise. Yet they were impelled to their companyclusion by the clear companyviction that companysistently with the Constitution the validity of the impugned provision companyld number be sustained. Whether the result would have been different if their validity had previously been judicially determined after full argument directed to the precise question and had number rested on judicial dicta and companymon assumption it is number for their Lordships to say. Upon a question of the applicability of the doctrine of stare decisis to matters of far reaching Constitutional importance they would imperatively require the assistance of the High Court itself. But here numbersuch question arises. Whatever the reason may be, just as there was a patent invalidity in the original Act which for a number of years went unchallenged, so far a greater number of years an invalidity which to their Lordships as to the majority of the High Court has been companyvincingly demonstrated, has been disregarded. Such clear companyviction must find expression, in the appropriate judgment. The companytention that Article 31C may be companysidered as an amendment of Article 368 is number tenable. It does number purport to be so. That Article does number find a place in Part XX of the Constitution. It is number shown as a proviso to Article 368, the only Article which deals with the amendment of the Constitution as such. Article 31C does number say that the powers companyferred under that Article are available numberwithstanding anything companytained in Article 368 or numberwithstanding anything in this Constituion. There is numberbasis for holding that the Parliament intended that Article 31C should operate as an amendment of Article 368. We have earlier companye to the companyclusion that the State Legislatures cannot be invested with the power to amend the Constitution. If the purpose of Article 31C is to secure for the Government, the companytrol of means of production in certain economic spheres exclusively or otherwise, the same can be achieved by the exercise of legislative power under Article 31 2 or under Article 31 2 read with Article 19 6 ii . If on the other hand, the object is to reduce the existing economic disparity in the companyntry, that object can be achieved by exercising the various powers companyferred on the legislatures under the Constitution, in particular by the exercise of the power to tax, a power of the largest amplitude. That power can be exercised without discriminating against any section of the people. One of the basic underlying principles of our Constitution is that every governmental power, which includes both the power of the executives as well as of the legislatures, must be so exercised as to give numberroom for legitimate companyplaint, that it was exercised with an evil eye or an uneven hand. For the reasons mentioned above, we hold that Article 31C permits the destruction of some of the basic features of our Constitution and companysequently, it is void. Lastly, we companye to the validity of the 29th Amendment Act, 1972. Contentions relating to the 29th Amendment Act of the Constitution lie within narrower limits. The only plea taken was that if any of the provisions in the two Acts included in the IXth Schedule to the Constitution by means of the 29th Amendment Act does number satisfy the requirements of Article 31A 1 a , the said provision does number get the protection of Article 31-B. As a result of the 29th Amendment Act, the Kerala Land Reforms Amendment Act, 1969, Kerala Act 33 of 1969 and Kerala Land Reforms Amendment Act, 1971 Kerala Act 25 of 1971 were added as items 65 and 66 in the IXth Schedule of the Constitution. The IXth Schedule is an appendage to Article 31-B, which says Without prejudice to the generality of the provisions companytained in Article 31A numbere of the Acts and Regulations specified in the Ninth Schedule number 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 companyferred by, any provisions of this Part and numberwithstanding any judgment, decree or order of any companyrt or tribunal to the companytrary, each-of the said Acts and Regulations shall, subject to the power of any companypetent Legislature to repeal or amend it, companytinue in force. The learned Counsel for the petitioners did number challenge the validity of Article 31B. Its validity has been accepted in a number of cases decided by this Court. His only companytention was that before any Act or any provision in an Act, included in the IXth Schedule can get the protection of Article 31B, the Act or the provision in question must satisfy the requirements of one or the other of the provisions in Article 31A. For this companytention of his, he relied on the opening words of Article 31B namely without prejudice to the generality of the provisions companytained in Article 31A. He urged that, if Article 31B had been an independent provision having numberconnection whatsoever with Article 31A as companytended on behalf of the companytesting respondents, there was numberoccasion for using the words referred to earlier in Article 31B. He also attempted to trace the history of Articles 31A and 31B and establish that there is link between those two Articles. Though there is some force in those companytentions, the question of law raised is numbermore res integra. It Is companycluded by a scries of decisions of this Court and we see numberjustification to reopen that question. In State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Ors. 1952 S.C.R. 889 a companytention similar to that advanced by Mr. Palkhivala was advanced by Mr. Somayya. That companytention was rejected by Patanjali Sastri C.J. speaking for the Court with these observations Mr. Somayya, however, submitted that the opening words of Article 31-B, namely Without prejudice to the generality of the provisions companytained in Article 31A showed that the mention of particular statutes in Article 31-B read with the Ninth Schedule was only illustrative, and that, accordingly, Article 31-B companyld number be wider in scope Reliance was placed in support of this argument upon the decision of the Privy Council in Sibnath Banerjis case. 1945 F.C.R. 195 . I cannot agree with that view. There is numberhing in Article 31-B to indicate that the specific intention of certain statutes was only intended to illustrate the application of the general words of Article 31-A. The opening words of Article 31-B are only intended to make clear that Article 31-A should number be restricted in its application by reason of anything companytained in Article 31-B and are in numberway calculated to restrict the application of the latter article or of the enactments referred to therein to acquisition of estates. In Vishweshwar Rao v. The State of Madhya Pradesh 1952 S.C.R. 1020 Mahajan J. as he then was reiterated the same view. He observed It was companytended that Article 31-B was merely illustrative of the rule stated in Article 31-A and if Article 31-A had numberapplication, that article also should be left out of companysideration On the basis of the similarity of the language in the opening part of Article 31-B with that of Sub-section 2 of Section 2 of the Defence of India Act without prejudice to the generality of the provisions companytained in Article 31-A, it was urged that Article 31-B was merely illustrative of Article 31- A and as the latter was limited in its application to estates as defined therein, Article 31-B was also so limited. In my opinion, the observations in Sibnath Bannerjees case far from supporting the companytention raised, negatives it. Article 31-B specifically validates certain Acts mentioned in the Schedule despite the provisions of Article 31-A, but stands independent of it. The impugned Acts in this situation qua the acquisition of the eight malguzari villages cannot be questioned on the ground that it companytravenes the provisions of Article 31 2 of the Constitution or any of the other provisions of Part III. A similar view was expresed by this Court in N.B. Jeejeebhoy v. Assistant Collector, Thana Prant. Thana 1965 1, S.C.R. 636 Therein Subba Rao J. as he then was speaking for the Court observed thus The learned Attorney General companytended that Article 31-A and Article 31- B should be read together and that if so read Article 31-B would only illustrate cases that would otherwise fall under Article 31-A and, therefore, the same companystruction as put upon Article 31-B should also apply to Article 31-A of the Constitut on. This companystruction was sought to be based upon the opening words of Article 31-B, namely without prejudice to the generality of the provisions companytained in Article 31-A. We find it difficult to accept this argument. The words Without prejudice to the generality of the provisions indicate that the Acts and regulations specified in the Ninth Schedule would have the immunity even if they did number attract Article 31-A of the Constitution. If every Act in the 9th Schedule would be companyered by Article 31-A, this article would become redundant. Indeed, some of the Acts mentioned therein, namely, items 14 to 20 and many other Acts added to the 9th Schedule, do number appear to relate to estates as defined in Article 31-A 2 of the Constitution. We, therefore, hold that Article 31-B is number governed by Article 31A and that Article 31B is a Constitutional device to place the specified statutes beyond any attack on the ground that they infringe Part III of the Constitution Several other decisions of this Court proceed on the basis that Article 31-B is independent of the Article 31A. It is too late in the day to reopen that question. Whether the Acts which were brought into the IXth Schedule by the 29th Amendment Act or any provision in any of them abrogate any of the basic elements or essential features of the Constitution can be examined when the validity of those Acts is gone into. For the foregoing reasons, we reject the companytention of the petitioners that before an Act can be included in the IXth Schedule, it must satisfy the requirements of Article 31- A. In the result we hold The power to amend the Constitution under Article 368 as it stood before its amendment empowered the Parliament by following the form and manner laid down in that Article, to amend each and every Article and each and every Part of the Constitution. The expression law in Article 13 2 even before Article 13 was amended by the 24th Amendment Act, did number include amendments to the Constitution. Though the power to amend the Constitution under Article 368 is a very wide power, it does number yet include the power to destroy or emasculate the basic elements or the fundamental features of the Constitution. The 24th Amendment Act did number enlarge the amending power of the Parliament It merely made explicit what was implicit in the original Article. Hence it is valid. 5 A The newly substituted Article 31 2 does number destroy the right to property becausethe fixation of amount under that Article should have reasonable relationship with the value of the property acquired or requisitioned the principles laid down must be relevant for the purpose of arriving at the amount payable in respect of the property acquired or requisitioned the amount fixed should number be illusory and the same should number be fixed arbitrarily. 5 B The question whether the amount in question has been fixed arbitrarily or the same is illusory or the principles laid down for the determination of the same are relevant to the subject matter of acquisition or requisition at about the time when the property in question is acquired or requisitioned are open to judicial review. But it is numbermore open to the companyrt to companysider whether the amount fixed or to be determined on the basis of the principles laid down is adequate. Clause 2 b of the 25th Amendment Act which incorporated Article 31 2B is also valid as it did number damage or destroy any essential features of the Constitution. Clause 3 of the 25th Amendment Act which introduced into the Constitution Article 31C is invalid for two reasons i.e. 1 it was beyond the amending power of the Parliament in so far as the amendment in question permits destruction of several basic elements or fundamental features of the Constitution and 2 it empowers the Parliament and the State Legislatures to pro tanto amend certain human freedoms guaranteed to the citizens by the exercise of their ordinary legislative power. The 29th Amendment Act is valid but whether the Acts which were brought into the IXth Schedule by that Amendment or any provision in any of them abrogate any of the basic elements or essential features of the Constitution will have to be examined when the validity of those Acts is gone into. In the circumstances of the case we direct the parties to bear their own companyts in these cases uptill this stage. N. Ray, J. The validity of the Constitution 24th, 25th and 29th Amendment Acts is challenged. The Constitution 24th Amendment Act amended Article 368. Article 368 in the unamended form speaks of Amendment of this Constitution and how the Constitution shall stand amended. The Constitution 24th Amendment Act enacts that Parliament may in exercise of its companystituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in that Article. The other part of the amendment is that numberhing in Article 13 shall apply to any amendment under Article 368. The Constitution 25th Amendment Act has amended Article 31 2 and also Article 31 2A . The effect of these two amendments with regard to Articles 31 2 and 31 2A is two-fold. First, numberproperty shall be companypulsorily acquired or requsitioned save for a public purpose and save by authority of law which provides for an amount which may be fixed by law or which may be determined in accordance with such principles. Secondly, numberhing in Article 19 1 f shall affect any law as is referred to in Article 31 2 . The second part of the Constitution 25th Amendment Act is introduction of Article 31C which enacts that numberwithstanding anything companytained in Article 13 numberlaw giving effect to the policy of the State towards securing principles prescribed in Clauses b and c of Article 39 shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights companyferred by Articles 14, 19 and 31 and numberlaw companytaining a declaration that it is for giving effect to such policy shall be called in question in any companyrt on the ground that it does number give effect to such policy. By the Constitution 29th Amendment Act the Kerala Land Reforms Amendment Act 1969 and the Kerala Land Reforms Amendment Act 1971 have been introduced into the Ninth Schedule of the Constitution. The principal question which falls for determination is whether the power to amend is under any express limitation of Article 13 2 . Another question is whether there are implied and inherent limitation on the power of amendment. Can there be any implied or inherent limitation in the face of any express power of amendment without any exception? Question have been raised that essential features of the Constitution cannot be amended. Does the Constitution admit of distinction between essential and number-essential features ? Who is to determine what the essential features are? Who is the authority to pronounce as to what features are essential? The preeminent question is whether the power of amendment is to be curtailed or restricted, though the Constitution does number companytain any exception to the power of amendment. The people gave the Constitution to the people. The people gave the power of amendment to Parliament. Democracy proceeds on the faith and capacity of the people to elect their representatives and faith in the representatives to represent the people. Thoroughout the history of man-kind if any motive power has been more potent than another it is that of faith in themselves. The ideal of faith in ourself is of the greatest help to us. Grote the historian of Greece said that the diffusion of Constitutional morality, number merely among the majority of any companymunity but throughout the whole, is the indispensible companydition of a government at once free and peaceful. By Constitutional morality Grote meant a paramount reverence for the forms of the Constitution, with a perfect companyfidence in the bosom of every citizen amidst the bitterness of party companytest that the forms of the Constitution will number be less sacred in the eyes of opponents than in his own. The question is He that planted the car, shall he number hear? or he that made the eye, shall he numbersee. The real question is whether there is any power to amend the Constitution and if so whether there is any limitation on the power. The answer to this question depends on these companysiderations. First, what is the companyrect ratio and effect of the decision in I.C. Golak Nath and Ors. v. State of Punjab and Anr. 1967 2 S.C.R. 762. Second, should that ratio be upheld. Third, is there any limitation on the power to amend the Constitution. Fourth, was the 24th Amendment validly enacted. If it was, is there any inherent and implied limitation on that power under Article 368 as amended. The scope and power under Article 368 as it stood prior to the Constitution 24th Amendment Act to amend the Constitution falls for companysideration. Two principal questions arise. First, is the Constitution as well as an amendment to the Constitution law within the meaning of Article 13 2 . Second, is there any implied and inherent limitation on the power of amendment apart from Article 13 2 . Mr. Palkhivala companytends that the unamended Article 368 was subject to Article 13 2 . It is said that amendment of the Constitution is law, and, therefore, any law which companytravenes fundamental rights is void. It is also said that Article 368 does number prevail over or override Article 13. The four bars under Article 13 are said to be these. The bar is imposed against the State, that is to say the totality of all the forces of the State. Second, all categories of law are companyered by the bar, whether they are Constitutional amendments or bye-laws or executive Orders and Notifications. Third, all laws in force under Article 372 and all laws to be brought into force at any future date are brought within the scope of this bar. Fourth, the effect of the bar is to render the law void. Mr. Palkhivala said that the preamble makes it clear that the object of the Constitution is to secure basic human freedom, and this guarantee will be meaningless if the Legislature against whom the guarantee is to operate is at liberty to abrogate the guarantees. It is said that law is companyprehensive enough to include both ordinary law and Constitutional law. The various forms of oath in the Third Schedule of the Constitution refer to Constitution as by law established. It is, therefore, submitted by the petitioner that the Constitution itself was originally established by law and every amendment has likewise to be established by law in order to take effect. It is emphasised that the Constitutional amendment is a law, and, therefore, the word law in Article 13 2 includes Constitutional amendments. The Attorney General and Mr. Seervai said that the Constitution is the supreme higher law. An amendment to the Constitution is in exercise of companystituent power. The amending power is number a legislative power. Law in Article 13 2 embodies the doctrine of ultra vires to render void any law enacted under the Constitution. This Court in Shankari Prasad Singh Deo v. Union of India and State of Bihar 1952 S.C.R. 89 and Sajjan Singh v. State of Rajasthan 1965 1 S.C.R. 933 examined the power to amend the Constitution. In Shankari Prasad case the Constitution First Amendment Act was challenged. The principal companytention was that the First Amendment in so far as it purported to take away or abridge the rights companyferred by Part III of the Constitution fell within the prohibition of Article 13 2 of the Constitution. The unanimous view of this Court in Shankari Prasad case was that although law must ordinarily include Constitutional law there is a clear demarcation between ordinary law which is made in exercise of legislative power and Constitutional law which is made in exercise of companystituent power. In the absence of a clear indication to the companytrary it is difficult to hold that the framers of the Constitution intended to make the fundamental rights immune of Constitutional amendment The terms of Article 368 are general to empower Parliament to amend the Constitution without any exception. Article 13 2 companystrued in the companytext of Article 13 means that law in Article 13 2 would be relateable to exercise of ordinary legislative power and number amendment to the Constitution. The Constitution Fourth Amendment Act came into existence on 5 October, 1963. The Constitution Seventeenth Amendment Act came into force on 20 June, 1964. By the Seventeenth Amendment Act Article 31A Clause 1 was amended by inserting one more proviso. A fresh Sub-clause a was substituted for original Sub-clause a of Clause 2 of Article 31 retrospectively. 44 Acts were added in the Ninth Schedule. The validity of the Seventeenth Amendment was challenged before this Court in Sajjan Singh case. The main companytention in Sajjan Singh case was that the power prescribed by Article 226 was likely to be affected by the Seventeenth Amendment, and, therefore, it was necessary that the special procedure laid down in the proviso to Article 368 should have been followed. The Seventeenth Amendment Act was said to be invalid because that procedure was number followed. The majority view of this Court in Sajjan Singh case was that Article 368 plainly and unambiguously meant amendment of all the provisions of the Constitution. The word law in Article 13 2 was held number to take in the Constitution Amendment Acts passed under Article 368. It was also said that fundamental rights in Article 19 companyld be regulated as specified in Clauses 2 to 6 and, therefore, it companyld number be said to have been assumed by the Constitution makers that fundamental rights were static and incapable of expansion. It was said that the companycept of public interest and other important companysiderations which are the basis of Clauses 2 to 6 in Article 19 may change and may even expand. The majority view said that The Constitution makers knew that Parliament companyld be companypetent to make amendments in those rights meaning thereby fundamental rights so as to meet the challenge of the problem which may arise in the companyrse of socio economic progress and the development of the companyntry. The minority view in Sajjan Singh case doubted the companyrectness of the unanimous view in Shankari Prasad case. The doubt was on a question as to whether fundamental rights companyld be abridged by exercise of power under Article 368. The minority view in Sajjan Singh case was that the rights of society are made paramount and are placed above those of the individual. But the minority view was also that though fundamental rights companyld be restricted under Clause 2 to 6 of Article 19 there companyld be numberremoval or debilitation of such rights. In Golak Nath case the Punjab Security of Land Tenures Act, 1953 was challenged as violative of fundamental rights and as number being protected by the Constitution First Amendment Act, 1951, the Constitution Fourth Amendment Act, 1955 and the Constitution Seventeenth Amendment Act, 1964. The validity of the Mysore Reforms Act, 1962 as amended by Act 14 of 1965 was also challenged on the same grounds. The Punjab Act and the Mysore Act were included in the Ninth Schedule. It was companymon case that if the Seventeenth Amendment Act adding the Punjab Act and the Mysore Act in the Ninth Schedule was valid the two Acts companyld number be impugned on any ground. The majority decision of this Court in Golak Nath case was that an amendment of the Constitution was law within the meaning of Article 13 2 . There were two reasonings in the majority view arriving at the same companyclusion. The majority view where Subba Rao, C.J., spoke was as follows The power to amend the Constitution is derived from Articles 245, 246 and 248 of the Constitution and number from Article 368. Article 368 deals only with procedure. Amendment is a legislative process. Amendment is law within the meaning of Article 13. Therefore, if an amendment takes away or abridges rights companyferred by Part III of the Constitution it is void. The Constitution First Amendment Act, the Constitution Fourth Amendment Act and the Constitution Seventeenth Amendment Act abridged the scope of fundamental rights. On the basis of earlier decisions of this Court the Constitution Amendment Acts were declared to be valid. On the application of the doctrine of prospective over-ruling the amendments will companytinue to be valid. Parliament will have numberpower from the date of this decision meaning thereby the decision in Golak Nath case to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights. The Constitution Seventeenth Amendment Act holds the field. Therefore, the Punjab Act and the Mysore Act cannot be questioned. The companycurring majority view of Hidayatullah, J. was this. The fundamental rights are outside the amendatory process if the amendment seeks to abridge or take away any of the rights. The First, the Fourth and the Seventh Amendment Acts being Part of the Constitution by acquiescence for a long time cannot be chellenged. These Constitution Amendment Acts companytain authority for the Seventeenth Amendment Act. Any further inroad into fundamental lights as they exist on the date of the decision will be illegal and unConstitutional unless it companyplies with Part III in general and Article 13 2 in particular. The companystituent body will have to be Convened for abridging or taking away fundamental rights. The Punjab Act and the Mysore Act are valid number because they are included in the Ninth Schedule of the Constitution but because they are protected by Article 31A and the assent of the President. The two views forming the majority arrived at the same companyclusion that an amendment of the Constitution being law within the meaning of Article 13 2 would be unConstitutional if such an amendment abridged any fundamental right. The leading majority view did number express any final opinion as to whether fundamental rights companyld be abridged by Parliament exercising its residuary power and calling a Constituent Assembly for making a new Constitution or radically changing it. The companycurring majority view held that the fundamental rights companyld be abridged by suitably amending Article 368 to companyvoke Constituent Assembly. The companycurring majority view was that a Constituent Assembly companyld be called by passing a law under Entry 97 of List I and then that Assembly would be able to abridge or take away fundamental rights. The minority view of five learned Judges expressed in 3 judgments as against the majority view of six learned Judges in Golak Nath case was this. Wanchoo, J. spoke for himself and two companycurring learned Judges as follows. Article 368 companytains both the power and the procedure for amendment of the Constitution. It is incomprehensible that the residuary power of Parliament will apply to amendment of the Constitution when the procedure for amendment speaks of amendment by ratification by the States. When an entire part of the Constitution is devoted to amendment it will be more appropriate to read Article 368 as companytaining the power to amend because there is numberspecific mention of amendment in Article 248 or in any Entry of List I. The Constitution is the fundamental law and without express power to affect change legislative power cannot effect any change in the Constitution. Legislative Acts are passed under the power companyferred by the Constitution. Article 245 which gives power to make law for the whole or any part of India is subject to the provisions of the Constitution. If, however, power to amend is in Article 248 read with the residuary Entry in List I that power is to be exercised subject to the Constitution and it cannot change the Constitution which is the fundamental law. It is because of the difference between the fundamental law and the legislative power under the Constitution that the power to amend cannot be located in the Residuary Entry which is law making power under the Constitution. Article 368 companyfers power on Parliament subject to the procedure provided therein for amendment of any provision of the Constitution, It is impossible to introduce in the companycept of amendment, any idea of improvement. The word amendment must be given its full meaning. This means that, by amendment an existing Constitution or law can be changed. 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. An amendment of the Constitution is number an ordinary law made under the powers companyferred under Chapter I of Part XI of the Constitution, and therefore, it cannot be subject to Article 13 2 . It is strange that the power companyferred by Article 368 will be limited by putting an interpretation on the word law in Article 13 2 which will include Constitutional law also. The possibility of the abuse of any power has numberrelevance in companysidering the question about the existence of the power itself. The power of amendment is the safety valve which to a large extent provides for stable growth and makes violent revolution more or less unnecessary. The two other supporting minority views were these. Bachawat, J. arrived at these companyclusions. No limitation on the amending power can be gathered from the language of Article 368. Therefore, each and every part of the Constitution may be amended under Article 368. The distinction between the Constitution and the laws is so fundamental that the Constitution is number regarded as a law or a legislative Act. It is because a Constitution Amendment Act can amend the Constitution that it is number a law and Article 368 avoids all reference to law making by Parliament. As soon as a Bill is passed in companyformity with Article 368 the Constitution stands amended in accordance with the terms of the Bill. Amendment or change in certain Articles does number mean necessarily improvement. Ramaswami, J. expressed these views. The definition of law in Article 13 3 does include in terms a Constitutional amendment though it includes any ordinance, order, bye-law, rule, regulation, numberification, custom or usage. The language of Article 368 is perfectly general and empowers Parliament to amend the Constitution without any exception whatever. If it had been intended by the Constitution makers that the fundamental righto guaranteed under Part III should be companypletely outside the scope of Article 368 it is reasonable to assume that they would have made an express provision to that effect. The expression fundamental does number lift the fundamental rights above the Constitution itself. In a matter of Constitutional amendment it is number permissible to assume that there will be abuse of power and then utilise it as a test for finding out the scope of amending power. The majority view in Golak Nath case was that an amendment of the Constitution pursuant to Article 368 is law within the meaning of Article 13 2 , and, therefore, an amendment of the Constitution abridging fundamental rights will be void. The majority view was on the basis that there was companyflict between Article 13 2 and Article 368 and this basis was the result of the nature and quality of fundamental rights in the scheme of the Constitution. It is, therefore, to be seen at the threshold as to whether there is any companyflict between Article 13 2 and Article 368, namely, whether amendment of Constitution is law within the meaning of law in Article 13 2 . Article 368 provides in clear and unambiguous terms that an amendment bill after companypliance with the procedure stated therein and upon the President giving assent to such bill the Constitution shall stand amended in accordance with the terms of the bill. This Constitutional mandate does number admit or provide any scope for any companyflict with any other Article of the Constitution. This is the fundamental law. No other Article of the Constitution has limited its scope. The moment the President gives his assent to an amendment bill the amendment becomes a part of the Constitution. There cannot be a law before the assent of the President. Therefore, the validity of any such supposed law cannot arise. An amendment of the Constitution becomes a part of the fundamental law. The legality of an amendment is numbermore open to attack than of the Constitution itself. The opening part of amended Article 368, viz., An Amendment of this Constitution may be initiated and its companycluding part before the proviso, viz., The Constitution shall stand amended show clearly that the whole Constitution can be amended and numberpart of the Constitution is excluded from the amendment. Herein lies the vital distinction between the Constitution and the ordinary law. The distinction lies in the criterion of validity. The validity of an ordinary law can be questioned. When it is questioned it must be justified by reference to a higher law. In the case of the Constitution the validity is inherent and lies within itself. The validity of Constitutional law cannot be justified by reference to another higher law. Every legal rule or numberm owes its validity to some higher legal rule or numberm. The Constitution is the basic numberm. The Constitution generates its own validity. It is valid because it exists. The Constitution is binding because it is the Constitution. Any other law is binding only if and in so far as it is in companyformity with the Constitution. The validity of the Constitution lies in the social fact of its acceptance by the companymunity. The Constitutional rules are themselves the basic rules of the legal system. The Constitution prevails over any other form of law number because of any provision to that effect either in the Constitution or else where but because of the underlying assumption to that effect by the companymunity. If Parliament passes a law under any of the items in the Union List abridging a fundamental right and also provides in that law itself that it shall number be invalid numberwithstanding anything in Article 13 or Part III of the Constitution, yet the law made by Parliament will be invalid to the extent of its inconsistency with Part III of the Constitution. It will be invalid because Article 13 occurs in the Constitution which is supreme. The impugned Act cannot enact that it will be valid numberwithstanding the Constitution. The real distinction is that Constitutional law is the source of all legal validity and is itself always valid. Ordinary law on the other hand must derive its validity from a higher legal source, which is ultimately the Constitution. Law in Article 13 2 of the Constitution companyld only mean that law which needs validity from a higher source and which can and ought to be regarded as invalid when it companyes in companyflict with higher law. It cannot possibly include a law which is self validating and which is never invalid. The definition of law in Article 13 enumerates more or less exhaustively all forms of law which need validation from higher source and which are invalid when they are in companyflict with the Constitution. The definition does number mention Constitutional amendment. It is because an amendment being the Constitution itself can never be invalid. An amendment is made if the procedure is companyplied with. Once the procedure is companyplied with it is a part of the Constitution, The expression law has been used in several Articles in Part III of the Constitution. These are Articles 17, 19 Clauses 2 to 6 , 21, 22, 25, 26, 31, 33, 34 and To illustrate, Article 17 states that untouchability is abolished and its practice in any form is forbidden. Article 17 also states that the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law. The word law in Article 17 does number mean the Constitution. The Constitution leaves the matter of enforcement and punishment to law. The foundation of the majority view in Golak Nath case that Article 13 2 takes in Constitutional law within its purview is that an amendment is a legislative process and is an exercise of legislative power. The majority relied on the decision in McCawley v. The King 1920 A.C. 691 and the Bribery Commissioner v. Pedrick Ranasinghe 1965 A.C. 172 in support of the view that there is numberdistinction between ordinary legislation and Constitutional amendment. The basis of the unanimous decision in Shankari Prasad case was on the distinction between legislative power and the companystituent power. Therefore, the majority view in Golak Nath case overruled the view in Shankari Prasad case. Article 13 2 expressly declares that law taking away or abridging the rights companyferred by Part III shall be void. This principle embodies the doctrine of ultra vires in a written Constitution. The observation of Kania, C.J. in A.K. Gopalan v. The State of Madras 1950 S.C.R. 88 that Article 13 2 was introduced ex majore cautela because even if Article 13 were number there any law abridging or taking away fundamental rights would be void to the extent of companytravention or repugnancy with fundamental rights in Part III refers to the doctrine of ultra vires which is a necessary implication of our Constitution. Therefore, there is numberdistinction between Article 13 2 which expressly affirms the doctrine of ultra vires and the necessary implication of the doctrine of ultra vires which has been applied to every part of our Constitution. If the express doctrine of ultra vires prevented an amendment of Part III of the Constitution companytrary to its terms, equally an amendment of other parts of the Constitution companytrary to their terms would be prevented by the implied doctrine of ultra vires. The result would be that an amendment of the Constitution which companytravened the terms of the existing Constitution would be void. This would result in absurdity. That is why Article 368 expressly provides for the amendment of the Constitution. Mr. Palkhivala on behalf of the petitioner submitted that Constitution amendment was law, within Article 13 2 and was void to the extent to which it companytravened the fundamental rights and Article 368 did number prevail over or override Article 13 for these reasons. Reference was made to the form of oath in the Third Schedule which uses the words Constitution as by law established. This is said to mean that our Constitution was originally established by law and, therefore, every amendment thereto was likewise to be established by law. Article 13 1 is also said to companyer Constitutional law because though Article 395 repealed the Indian Independence Act, 1947 and the Government of India Act 1935 the Constitutional laws of the Indian Princely States or some other Constitutional laws of British India were in existence. Therefore, the word Law in Article 13 2 will also include Constitutional law. The word law in Article 13 2 will in its ordinary sense embrace Constitutional law, and there is numberreason for reading the word law, in a restricted sense to companyfine it to ordinary laws. The real question is number whether there are any words of limitation in Articles 368 but whether there are any words of limitation in Article 13 2 . It was amplified to mean if a limitation has to be read in either of the two Articles 368 and 13 2 there is numberreason why it should be read in such a way as to enable parliament to take away or abridge fundamental rights. In Article 368 the word law is number used at all. Consequently the language of Article 368 raises numberquestion about the applicability of Article 13 2 . It is inconceivable that Constitutional laws of Indian Princely States or Constitutional laws of British India exist as Constitutional laws after the companying into existence of our Constitution. Our Constitution is the only fundamental law. All other laws which companytinue under our Constitution are ordinary laws. The fundamental error in including amendment of the Constitution in law under Article 13 2 is by overlooking the vital difference between the companystituent and the legislative powers and in wrongly equating these powers. The definition of State in Article 12 includes Parliament. Part V of the Constitution companytains provisions relating to the powers of the three organs of the Union Government. Chapter II of Part V relates to the legislative power of Parliament. Under Article 79 Parliament is the Union Legislature provided for by the Constitution. Therefore, law in Article 13 2 must mean a law of Parliament functioning under Chapter II of Part V. It cannot mean the Constitution itself or an amendment of the Constitution. The reason is that the Constitution with its amendment is the supreme authority and the three organs of the State derive their powers from this supreme authority. The word law when used in relation to Constitutional law which is fundamental law and ordinary law is number a mere homonym. If the word law here is number a mere homonym then it is a mistake to think that all the instances to which it is applied must possess either a single quality or a single set of qualities in companymon. There is some general test or criterion whereby the rules of the fundamental law or the rules of the system of ordinary laws are tested and identified. When the word law is spoken in companynection with Constitutional law it cannot have the same meaning as ordinary law. It is number arbitrary to use the word law in relation to Constitutional law in spite of its difference from ordinary law. Mr. Palkhivala companytended that Constitutional laws of Princely States and of British India prior to our Constitution survived as laws in force under Article 372. Article 372 became necessary to make a provision similar to Section 292 of the Government of India Act, 1935 following the repeal of the 1935 Act and the Indian Independence Act, 1947. The purpose of Article 372 is to negative the possibility of any existing law in India being held to be numberlonger in force by reason of the repeal of the law authorising its enactment. A saving clause of the type of Article 372 is put in to avoid challenge to laws made under the repealed Constitution. The total volume of law in the then British India had the legal authority up to 14 August 1947 by reason of the Government of India Act 1935. The Government of India Act 1935 with adaptations and the Indian Independence Act 1947 preserved the authority of those laws upto 25 January 1950. In so far as it is indisputable that the Government of India Act, 1935 and the Indian Independence Act, 1947 were repealed, the repeal of those Acts was repeal of the Constitutional law represented by those Acts. By our Constitution there was a repeal of all other Constitutional laws operating in our companyntry. There was repeal of Constitution in Princely States. A distinction arises between the provisions of a Constitution which are described as Constitutional law and provisions of a statute dealing with a statute which is treated to have Constitutional aspects. An example of the latter type is a statute which provides for the judicature. Mr. Seervai rightly said that the two distinct senses of Constitutional law are mixed up in the companytention of Mr. Palkhivala. In the first sense, Constitutional law is applicable to a provision of the Constitution, and in the second sense, to a law enacted under the Constitution dealing with certain classes of subject matter. Laws of the second class fluctuate. An amendment of the Constitution becomes a part of the Constitution itself. Mr. Seervail rightly companytended that in order to show that law in Article 13 2 includes amendment of the Constitution it is also necessary to show that the expression laws in force in Article 13 1 includes Constitution amendment or the Constitution itself It is impossible to accept the submission that the word law in Article 13 2 includes the Constitution. The Constitution itself cannot include the Constitution. It is the Constitution which companytinues the laws in force. Therefore, law in Article 13 is law other than the Constitution and a fortiori it is other than amendment to the Constitution. In number-British territory on the Constitution companying into force the Constitution of Princely States lost its character as Constitutional law in the strict sense. It is in that strict sense that Wanchoo, J. rightly said in Golak Nath case that on our Constitution companying into existence numberother Constitutional law survived. Article 393 of our Constitution says that the Constitution may be called the Constitution of India. The Preamble recites that the People in the Constituent Assembly gave this Constitution meaning thereby the Constitution of India. Therefore, the people gave themselves numberother Constitution. All other laws whatever their previous status as strict Constitutional law became subordinate laws subject to the provisions of our Constitution and this position is clear from the language of Article 372. In a broad sense law may include the Constitution and the law enacted by the legislature. There is however a clear demarcation between ordinary law in exercise of legislative power and Constitutional law which is made in exercise of companystituent power. Therefore, a power to amend the Constitution is different from the power to amend ordinary law. It was said by Mr. Palkhivala that legislative power is power to make law and companystituent power is the power to make or amend Constitutional law and since law in its ordinary sense, includes Constitutional law the legislative power is the genus of which the companystituent power is the species. The difference between legislative and companystituent power in a flexible or uncontrolled Constitution is companyceptual depending upon the subject matter. A Dog Act in England is prima facie made in exercise of legislative power. The Bill of Rights was made in the exercise of companystituent power as modifying the existing Constitutional arrangement But this companyceptual difference does number produce different legal companysequences, since the provisions of a Dog Act inconsistent with the earlier provisions of the Bill of Rights would repeal those provisions pro tanto. In a rigid or companytrolled Constitution the distinction between legislative power and companystituent power is number only companyceptual but material and vital in introducing legal companysequences. In a companytrolled Constitution it is number companyrect to say that legislative power is the genus of which companystituent power is the species. The question immediately arises as to what the differentia is which distinguishes that species from other species of the same genus. It would be companyrect to say that the law making power is the genus of which legislative power and companystituent power are the species. The differentia is found in the different procedure prescribed for the exercise of companystituent power as distinguished from that prescribed for making ordinary laws. The distinction between legislative power and companystituent power is vital in a rigid or companytrolled Constitution, because it is that distinction which brings in the doctrine that a law ultra vires the Constitution is void, since the Constitution is the touchstone of validity and that numberprovision of the Constitution can be ultra vires. The legislatures companystituted under our Constitution have the power to enact laws on the topics indicated in Lists I to III in the Seventh Schedule or embodied specifically in certain provisions of the Constitution. The power to enact laws carries with it the power to amend or repeal them. But these powers of legislatures do number include any power to amend the Constitution, because it is the Constituent Assembly which enacted the Constitution and the status given by Article 368 to Parliament and the State legislatures, is the status of a Constituent Assembly. The distinction between the power to amend the Constitution and the ordinary power to enact laws is fundamental to all federal Constitution. When Parliament is engaged in the amending process it is number legislating. It is exercising a particular power which is sui generis bestowed upon it by the amending clause in the Constitution. Thus an amendment of the Constitution under Article 368 is companystituent law and number law within the meaning of Article 13 2 and law as defined in Article 13 3 a . The procedure that Bill for amendment of the Constitution has to be introduced in either House of Parliament and passed by both Houses does number alter the status of Parliament to amend the Constitution as a Constituent Assembly and does number assimilate it to that of the Union legislature. At this stage it may be stated that in Shankari Prasad case it was said that law in general sense may include the Constitution and the procedure of amendment is assimilated to ordinary legislative procedure. Assimilation of procedure does number make both the procedure same. Nor are the two separate powers to be lost sight of. The Constituent Assembly which has summoned on 19 December, 1946 to frame a Constitution was also invested after independence with legislative power. It framed the Constitution as the Constituent Assembly. It enacted ordinary laws as legislature. Under Article V of the American Constitution the Congress functions number as a legislature but as a Constituent Assembly. In Australia when a Bill for amendment has to be passed by Commonwealth Parliament and then has to be submitted to the verdict of the electorate the process is number ordinary legislative process of the Commonwealth Parliament. In our Constitution when the amendment falls within the proviso to Article 368 it requires that the amendment must be ratified by at least one half of the State legislatures and the process is radically different from ordinary legislative procedure. The Union legislature acting under Chapter II of Part V has numberconnection with the State legislatures. Therefore, when amendment is affected under the proviso to Article 368 Parliament does number act as a Union legislature. The feature that in the passage of the bill for amendment of the Constitution the House of Parliament has to adopt the procedure for ordinary legislation has little bearing. If the intention of the framers of the Constitution was to leave to the Union legislature the power to effect amendments of the Constitution it would have been sufficient to insert a provision in Chapter II of Part V in that behalf without enacting a separate part and inserting a provision therein for amendment of the Constitution. Under Clause e of Article 368 the Article itself can be amended. Therefore, an amendment of Article 368 providing that provisions in Part III can be amended will be Constitutional. If it was intended by Article 13 2 to exclude Part III altogether from the operation of Article 368 Clause e would number have been enacted. The Constituent Assembly thus enacted Article 368 so that the power to amend should number be too rigid number too flexible. Clause s of Article 368 requires an amendment to be ratified by number less than half the number of States. The title of Part XX and the opening words of Article 368 show that a provision is being made for amendment of this Constitution which in its ordinary sense means every part of the Constitution. This would include Article 368 itself. There is numberlimitation imposed upon or deception made to the amendments which can be made. It is number permissible to add to Article 368 words of limitation which are number there. The initiative for an amendment of the Constitution is with Parliament and number with the States. A bill for amendment is to be introduced in either House of Parliament. Again, a bill must be passed by each House by number less than two thirds of the members present and voting, the requisite quorum in each House being a majority of its total membership. In cases companying under the proviso the amendment must be ratified by the legislatures of number less than half the number of States. Ordinary legislative process is very different A bill initiating a law may be passed by majority of members present and voting at a sitting of each House and at a joint sitting of House, the quorum for the meeting of either House being one tenth of the total members of the House. The legislative procedure is prescribed in Articles 107 to 111 read with Article 100. Article 100 states save as otherwise provided in the Constitution all questions at any sitting of either House or joint sitting shall be determined by a majority of votes of the members present and voting. Though Article 368 falls into two parts of the Article is one integral whole as is clear from the words the amendment shall also require to be ratified. The first part of Article 368 requires that a bill must be passed in each House 1 by majority of the total membership of that House and 2 by a majority of number less than two thirds of the members of that House present and voting. These provisions rule out a joint sitting of either House under Article 108 to resolve the disagreement between the two Houses. Again the majority required to pass a bill in each House is number a majority of members of that House present and voting as in Article 100 but a majority of the total membership of each House and a majority of number less than two thirds of the members of that House present and voting. These provisions are number only important safeguards when amending the Constitution, but also distinguishing features of Constituent power as opposed to legislative power. Under the first part of unamended Article 368 when a bill is passed by requisite majority of each House the bill must be presented for the Presidents assent. Parliaments power to enact laws is number dependent on State legislature, number can it be frustrated by a majority of State legislatures. The provisions in the proviso to Article 368 for ratification by the legislatures of the State companystitute a radical departure from the ordinary legislative process of Parliament, State legislative process of ratification cannot possibly be equated with ordinary legislative process. If the bill is number ratified the bill fails. If it is ratified it is to be presented to the President for his assent. If the President assents the procedure prescribed by Article 368 gomes to an end and the companysequence prescribed companyes into operation that the Constitution shall stand amended in accordance with the bill. But the result is number law, but a part of the Constitution and numbercourt can pronounce any part of the Constitution to be invalid. The exercise of the power of ratification by the State legislatures is companystituent power and number ordinary law making power. It cannot be said that Article 368 companyfers companystituent power under its proviso but number under the main part. If the procedure has been followed the invalidity of an amendment cannot arise. The provisions in Articles 4, 169, paragraph 7 2 of the Fifth Schedule and paragraph 21 2 of the Sixth Schedule were referred to for the purpose of showing that the word law is used in those provisions relating to amendments to the Constitution. It is, therefore, said that similar result will follow in the case of all amendments. These four provisions companyfer on Parliament limited power of amendment. There are two features companymon to all these provisions. First, they companyfer on Parliament a power to make a law which inter alia provides for the specific class of amendments. Second, each of these provisions states that numbersuch law as aforesaid shall be deemed to be an amendment of the Constitution for the purpose of Article 368. The power to amend under any of these four provisions is a specific power for specific amendments and number a legislative power companytained in the Legislative List or Residuary Legislative List. The amendment under Article 4 follows a law providing for the formation of new States and alteration of areas, boundaries and names of existing States. It is obligatory on Parliament to make amendment of Schedules 1 and 4 and it is necessary to make amendments which are supplemental, incidental and companysequential. In making such a law in so far as it affects the State but number Union territory a special procedure has to be followed. Under Article 169 which provides for the abolition or creation of a State legislative Council Parliament has power to make a necessary law on a resolution being passed by the State Legislative Assembly for such abolition or creation by a majority of the membership of the Assembly and by majority of number less than two thirds of the members present and voting. It Parliament makes such a law that law must make the necessary amendments to the Constitution. Schedules 5 and 6 provide for the administration of the Scheduled and Tribal areas which are governed by Part X and number by Part XI by which the Union and States are governed. The Scheduleds provide a mode of governance of those areas which is radically different from the Government of the States and the Union. Part X of the Constitution unlike Part XI is number subject to the provisions of this Constitution. Paragraph 7 of Schedule 5 and paragraph 21 of Schedule 6 companyfer on Parliament a power to amend the schedules by law but numberspecial procedure is prescribed for making such a law. No question relating to those four provisions, however arises in the present case. In Article 368 the word law is number based at all. These four provisions for amendment deal with matters in respect of which it was companysidered desirable number to impose requirements of Article 368, and, therefore, it became necessary expressly to provide that such amendments shall number be deemed to be amendments of the Constitution for the purpose of Article 368. These four provisions indicate the distinction between the companystituent power and the legislative power. If the power of amendment was located in the residuary Entry No. 97 in the Union List it would number have been necessary to grant that power of amendment again in these four provisions. These four provisions indicate that the Constitution makers intended to companyfer on Parliament power to make amendments in the provisions of the Constitution and having provided for a particular procedure to be followed in respect of matters companyered by those four provisions it companyferred a general power on Parliament to make an amendment to the other Articles after companyplying with the requirements of Article 368. The majority view in Golak Nath case said that Parliament companyld call a Constituent Assembly either directly under the residuary power or pass a law under the Residuary Entry to call a Constituent Assembly for amendment of fundamental rights. Of the two views forming the majority one view did number express any opinion as to whether such a Constituent Assembly companyld take away or abridge fundamental rights but the other view expressed the opinion that such a Constituent Assembly companyld abridge fundamental rights. The majority view in Golak Nath case was that Parliament is a companystituted body and number a companystituent body and a companystituted body cannot abridge or take away fundamental rights. The majority view indicates that a companystituent power was required to amend the fundamental rights. The majority view has totally ignored the aspect that companystituent power is located in Article 368, and, therefore, amendment under the Article is number a law within the meaning of Article 13 2 . If Parliament is a companystituted body as was said by the majority view in Golak Nath case it would be difficult to hold that such a body companyld bring about a Constituent Assembly. The well-known principle that what cannot be done directly cannot be achieved indirectly will establish the basic infirmity in that majority view. If fundamental rights can be abridged by Parliament calling a Constituent Assembly under the Residuary Entry such Constituent Assembly will be a body different from Parliament and will frame its own rules of business and Article 368 cannot have any application. That will have a strange and startling result. In the scheme of the Constitution companytaining Article 368 a Constituent Assembly will be called extra Constitutional means and number one under the Constitution. A Constitution can be amended only in accordance with the process laid down in the Constitution. No other method is Constitutionally possible than that indicated in the provision for amendment of the Constitution. Once the Constitution has vested the power to amend in the bodies mentioned therein that is the only body for amending the Constitution. The people who gave the Constitution have expressed how it is to be changed. The distinction between companystituent and legislative power is brought out by the feature in a rigid Constitution that the amendment is by a different procedure than that by which ordinary laws may be altered. The amending power is, therefore, said to be a recreation of the Constituent Assembly every time Parliament amends re-creation in accordance with Article 368. The two decisions in McCawley v. The King 1920 A.C. 691 and The Bribery Commissioner v. Pedrick Ranasinghe 1965 A.C. 172 on which the majority view in Golak Nath case relied to hold that amendment to the Constitution is an ordinary legislative process do number support that companyclusion. The difference between flexible or uncontrolled and rigid or companytrolled Constitutions in regard to amendment is that there may be special methods of amendment in rigid or companytrolled Constitution. In a rigid Constitution amendment is number by exercise of ordinary legislative power. The power to amend is, therefore, described in a rigid Constitution as companystituent power because of the nature of the power. In a flexible Constitution the procedure for amendment is the same as that of making ordinary law. A Constitution being uncontrolled the distinction between legislative and companystituent powers gets obliterated because any law repugnant to the Constitution pro tanto repeals a Constitution as was held in McCawley case. Dicey in his Law of the Constitution 10th Ed. illustrates the view by his opinion that if the Dentists Act said anything companytrary to the Bill of Rights which can be described as Constitutional document the Dentists Act would prevail. In a flexible or unwritten Constitution the word Constitutional law is imprecise as it is used in respect of subject matter of law, e.g. a law dealing with the legislature. In a rigid or written Constitution whatever is in the Constitution would be the law of the Constitution. In McCawley case the validity of the appointment of McCawley as a Judge of the Supreme Court of Queensland was challenged as void on the allegation that Section 6 Sub-section 6 of the Industrial Arbitration Act of 1916 was companytrary to the provisions of the Constitution of Queensland 1867. The Industrial Arbitration Act of 1916 by Section 6 Sub-section 6 authorised the Governor to appoint any Judge of the Court of Industrial Arbitration to be a Judge of the Supreme Court of Queensland and provided that a Judge so appointed shall have the jurisdiction of both offices and shall hold office as a Judge of the Supreme Court during good behaviour. The sub-section further provided that Judge of the Court of Industrial Arbitration shall hold office for seven years. The Governor in Council by companymission reciting Section 6 Sub-section 6 appointed McCawley who was a Judge and the President of the Court of Industrial Arbitration to be a Judge of the Supreme Court during good behaviour. By Sections 15 and 16 of the Constitution of 1867 the period during which Judges of the Supreme Court were to hold office was during good behaviour. The companytention was that the appointment of McCawley under the Industrial Arbitration Act 1916 for a limited period of seven years was invalid since the Act was inconsistent with the Constitution Act 1867 and further that the Act of 1916 companyld number repeal or modify the provisions of the Constitution Act. The Privy Council held that the Legislature of Queensland had power both under the Colonial Laws Validity Act 1865 Section 5 and apart therefrom under Clauses 2 and 22 of the Order-in-Council of 1859, Section 7 of the Act 18 19 Vict. c. 54 and Sections 2 and 9 of the Constitution Act of 1867 to authorise the appointment of a Judge of the Supreme Court for a limited period. Section 7 of the Act 18 19 Vict. c. 54 intended an order in Council to make provision for the government of the Colony and for the establishment of a legislature. The Order-in-Council 1859 by Clause 2 gave full power to the legislature of the Colony to make further provision in that behalf. The Order-in- Council of 1859 by Clause 22 gave the legislature full power and authority from time to time to make laws altering or repealing all or any of the provisions of this Order in the same manner as any other laws for the good Government of the companyony. Section 5 of the Colonial Laws Validity Act gave the legislature full power to alter the Constitution. Section 2 of the Constitution Act of 1867 gave the legislature power to make laws for the peace, welfare and good government of the Colony. Section 9 of the Constitution required a two thirds majority of the legislative Council and Legislative Assembly as a companydition precedent of the validity of legislation altering the Constitution of the Legislative Council. Section 6 Sub-section 6 which authorised an appointment as a Judge of the Supreme Court only during the period during which the person appointed was a Judge of the Court of Industrial Arbitration was found to be valid legislation. It was found that the Constitution of Queensland was a flexiable as distinct from rigid Constitution. Power to alter the Constitution by ordinary law was also said to exist both in virtue of the Colonial Laws Validity Act, 1865 Section 5 and independently of that Act in virtue of Clause 22 of the Order in Council 1859 and Sections 2 and 9 of the Constitution Act of 1867. The decision in McCawlay case shows that unless there is a special procedure prescribed for amending any part of the Constitution the Constitution is uncontrolled and can be amended by the manner prescribed for enacting an ordinary law and therefore a subsequent law inconsistent with the Constitution would pro tanto repeal the Constitution. The decision also established that a Constitution largely or generally uncontrolled may companytain one or more provisions which prescribe a different procedure for amending the provisions of the Constitution. If this is prescribed the procedure for amendment must be strictly followed. The legislature of Queensland was found to be master of its own household except in so far as its powers were restricted in special cases. No such restriction was established in the case before the Privy Council. The legislature had plenary power there. The legislature was number required to follow any particular procedure or to companyply with any specified companyditions before it made any law inconsistent with any of the provisions of Constitutional document. The companytention of the respondent in McCawley case was that the Constitution of Queensland was companytrolled and that it companyld number be altered merely by enacting legislation inconsistent with its Articles but that it companyld be altered by an Act which in plain and unmistakable intention of the legislature to alter companysequently gave effect to that intention by operative provisions. The Judicial Committee thought this Constitution would amount to a Constitution which was neither companytrolled number uncontrolled. It was number companytrolled because the future generation companyld by a merely formal Act companyrect it at pleasure. It was said to be number uncontrolled because the framers prescribed to their successors a particular mode by which they are allowed to effect Constitutional changes. Section 22 of the Order in Council companyferred power and authority in legislature from time to time to make laws altering or repealing all or any of the provisions of the Order in Council in the same manner as any other laws for the good government of the companyntry. The Constitution Act of 1867 was companytended to enact certain fundamental organic provisions of such a nature as to render the Constitution companytrolled. It was found impossible to point to any document or instruction giving or imposing on the Constitution of Queensland such a quality. The decision in McCawley case related to uncontrolled Constitution which gave the legislature full power to make laws except on one subject and, therefore, a law made by the legislature under such a Constitution companyld pro tanto companyflict with and repeal the Constitution. That is number our Constitution. In Ranasinghe case the validity of the appointment of Bribery Tribunal was challenged. The Supreme Court of Ceylon took the view that the Bribery Tribunal was number appointed by the Judicial Service Commission in accordance with the provisions of Section 55 of the Ceylon Constitution Order in Council. It was, therefore, number lawfully appointed. It was companymon ground that the appointment of the Bribery Tribunal was number in accordance with Section 55 of the Ceylon Constitution Order in Council, 1946. Section 55 vested in the Judicial Service Commissioner the appointment, dismissal and disciplinary companytrol of Judicial Officers, viz., Judges of lesser rank. The removal of Judges of the Supreme Court companyld be by the Governor General on an address of the Senate and the House of Representatives. Section 29 of the Ceylon Constitution Order in Council provided in Sub-sections 1 , 2 , 3 and 4 as follows 29 1 Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island. No such law shalla prohibit or restrict the free exercise of any religion Any law made in companytravention of Sub-section 2 of this section shall, to the extent of such companytravention, be void. In the exercise of its powers under this section Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in Council in its application to the Island Provided that numberBill for the amendment or repeal of any of the provisions of this 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 number less than two-thirds of the whole number of Members of the House including those number present . Every certificate of the Speaker under this sub-section shall be companyclusive for all purposes and shall number be questioned in any companyrt of law. The Judicial Committee found that there was a companyflict between Section 55 of the Ceylon Constitution Order and Section 41 of the Bribery Amendment Act. The Privy Council found that Section 29 4 of the order was attracted but the requirements of Section 29 4 had number been companyplied with and, therefore, the appointment of the Bribery Tribunal was invalid. The certificate of the Speaker under the proviso to Section 29 4 of the Ceylon Constitution Order was an essential part of the legislative process. There was numbersuch certificate in the case of the legislation under which the appointment of the impugned Tribunal was made. The Judicial Committee said that a legislature has numberpower to ignore the companyditions of law making that are imposed by the regulating instrument. This restriction exists independently of the question whether the legislature is sovereign as the legislature of Ceylon or whether the Constitution is uncontrolled as happened in McCawley case with regard to the Constitution of Queensland. The Judicial Committee said 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 companyplied with and the alteration or amendment may include the change or abolition of these provisions. But the proposition which is number acceptable is that a legislature, once established, has some inherent power derived from the mere fact of its establishment to make a valid law by the resolution of a bare majority which its own companystituent instrument has said shall number be valid law unless made by a different type of majority or by a different legislative process. It was companytended that just as the legislature of the Colony of Queensland had power by mere majority vote to pass an Act that was inconsistent with the provisions of the existing Constitution of that Colony as to the tenure of Judicial Office so the legislature of Ceylon had numberless a power to depart from the requirements of a section such as Section 55 of the Ceylon Constitution, numberwithstanding the wording of Sections 18 and 29 4 . Section 18 in effect says that a legislation can be passed by a majority of votes subject to the provisions in Section 29 4 of the Constitution. The Judicial Committee said that in McCawley case the legislature had full power to make laws by a majority except upon one subject that was number in question and the legislation was held to be valid because it was treated as pro tanto an alternation of the Constitution which was neither fundamental in the sense of being beyond change number so companystituted as to require any special process to pass a law upon the topic dealt with. The word fundamental in the sense of being beyond change refers to express limitations as to power or manner and form of change. These words do number mean as Mr. Palkhivala companytended that there are fundamental features of the Constitution which cannot be amended. The legislature purported to pass a law which being in companyflict with Section 55 of the Order in Council must be treated if it is to be valid, as an implied alteration of the Constitutional provisions about the appointment of judicial officers. Such alterations companyld only be made by laws which companyplied with the special legislative procedure laid down in Section 29 4 . The provisions in Section 29 4 were found number to companyfer on the Ceylon legislature the general power to legislature so as to amend the Constitution by ordinary majority resolution which the Queensland legislature was found to have under Section 2 of the Queensland Constitution Act Ranasinghe case shows that Parliament which by its own Act imposed procedural companyditions upon the legislative process is numbermore limited or number-sovereign than a legislature which has such companyditions imposed on it by the Constitutional instrument. A Constitutional instrument which places procedural restraints upon the forms of law making places the legislature under a companypulsion to obey them. In McCawley case it was said that the Colonial Legislature with plenary powers companyld treat the Constitutional document which defined its powers as if it were a Dog Act This proposition as a result of Ranasinghe case is narrowed to the extent that where provisions for procedural special majority are laid down in the Constitutional document they cannot be treated as a provision in the Dog Act might be. These decisions indicate the distinction between procedural and substantive limitations on the legislative process. In Ranasinghe case the issue was one of personal liberty in the sense that the respondent claimed the right number to be imprisoned except by a valid law. No question was raised about the right of religion protected by Sections 29 2 and 3 of the Ceylon Constitution. It was also number the respondents case there that any provision was unamendable. It would be unusual for the Privy Council to say by way of an obiter dictum that a provision was number amendable companytrary to the respondents submission. Though the Privy Council did number use the words legislative and companystituent in distinguishing ordinary law from law amending the Constitution, the Privy Council in referring to the Ceylon Constitution instrument showed that the familiar distinction is the basis of the judgment. The Privy Council is dealing with Section 29 took numbere of the special heading under which Section 29 appears in the Constitution. That special heading is legislative power and procedure. The opening words of Section 29 are that subject to the provisions of this order Parliament shall have powers to make laws. These are similar to the opening words in Article 245 of our Constitution. Section 18 of the Ceylon Constitution prescribes the ordinary legislative procedure for making laws by a bare majority unless otherwise provided for by the Constitution, which is to be found in Section 29 4 of the Ceylon Constitution. Our Constitution in Article 100 makes an identical provision for ordinary legislative procedure. Section 29 2 companyfers rights of freedom of religion and Section 29 3 states that numberlaws shall be made prohibiting or restricting such freedom. Part III of our Constitution companytains among other fundamental rights, rights to freedom of religion. Section 29 3 expressly makes laws in companytravention of Section 29 2 void to the extent of companytravention. Article 13 2 of our Constitution expressly makes law which takes away or abridges fundamental rights void to the extent of the companytravention. Section 29 4 of the Ceylon Constitution dealing with the amendment of the Constitution does number expressly make void a law amending the Constitution. It follows from McCawley case and Ranasinghe case that a legislature has numberpower to ignore the companyditions of law making imposed upon it which regulate its power to make law. The Ceylon legislature had numbergeneral power to legislate so as to amend its general power by ordinary majority resolution such as Queensland legislature was found to have under Section 2 of the Queensland Constitution. Peace, order and good government in Section 29 1 of the Ceylon Constitution is number the same as amendment companytemplated in Section 29 4 of the Ceylon Constitution. In Ranasinghe case the Judicial Committee referred to the social companypact. The companypact is this. The inhabitants of Ceylon accepted the Ceylon Constitution on the footing that the various rights companyferred, liabilities imposed and duties prescribed under the law cannot be altered in the ordinary companyrse of legislation by a bare majority. But if all these were to be changed then such a change companyld only be made under the strongest safeguard of the amending process which in the case of Ceylon was number less than two-third of the absolute membership. These rights are the solemn companypact. These valuable rights are companyferred on the people. Under ordinary law by ordinary majority they cannot be taken away. The absence of an express provision in Section 29 4 of the Ceylon Constitution that an amendment of the Constitution in companytravention of the terms of that sub-section shall be void need number support the companyclusion that such an amendment was valid. Section 29 1 of the Ceylon Constitution is expressed to be subject to the provisions of this Order and any power under Section 29 4 is expressly subject to the proviso there. The Privy Council held that the opening words of Section 29 introduced into the Constitution of Ceylon the necessarily implied doctrine of ultra vires. The proposition will apply directly to the same opening words of our Article 245. The Privy Council accepted the distinction made in McCawlay case between companytrolled and uncontrolled Constitutions by emphasising the observation in McCawley case with reference to Section 9 of the Queensland Constitution. The description of Section 29 2 of the Ceylon Constitution as an entrenched provision means that it can be amended but only by special procedure in Section 29 4 . That is the meaning of the word entrenched. This meaning alone is companysistent with the clear language of the amending power and also with the decision. Section 29 4 does number limit the sovereignty of the Ceylon legislature because the legislature can always pass the amendment after getting two-thirds majority and the certificate. Counsel for the respondent in Ranasinghe case stated that there was numberlimitation except the procedure and even that limitation companyld be removed by amendment companyplying with Sub-section 4 . The Privy Council affirmed that position. There is numberhing to prevent by appropriate amendment a deletion of Section 29 4 of the Ceylon Constitution which would then empower Parliament to achieve the power to amend by an ordinary majority. Section 29 1 is number legislative power alone but a companyposite power when read along with Section 29 4 in the companytext of the Ceylon Constitution. It includes both legislative and companystituent power. Sub-sections 2 and 3 of Section 29 are number the grant of power but limitation on power. Its terms show that limitation is at any rate on the legislative power of enacting laws companytrary to Sub-sections 2 and 3 of Section 29. If Section 29 1 is a companyposite legislative and companystituent power and Sub-section 2 and 3 are a restraint on legislative power the companystituent power under Sub-section 4 remains unaffected. The sequiter is that Section 29 4 is companysistent only with the view that so far as amendment of Sub-sections 2 and 3 is companycerned amendment is permited and there is numberlimitation on companystituent power under Section 29 4 . The Privy Council took the widest view of the amending power. In fact the narrower view was number argued. Our Constitution in Article 13 2 by its express declaration with reference to law and the State widely defined has numberhigher efficacy in rendering a law in companytravention of its terms void than the opening words of Article 245 have in rendering a law void in companytravention of term mentioned therein. Therefore, in treating Article 13 2 as having that effect in regard to Constitutional amendment the majority judgment in Golak Nath case was inept. In rejecting the distinction between legislative and companystitutent powers the leading majority view in Golak Nath case was induced by the absence of the use of the labels but the same companycepts were clearly indicated by the Privy Council by wholly describing the characteristic features of legislative and companystituent powers. If Article 368 had begun with a number-obstante clause it companyld number have been said that amendment under Article 368 would be law within the meaning of Article 13 2 . The Attorney General rightly said that there is numbernon-obstante clause in Article 368 because of the quality of amending power and because the amending power is a companystituent power and number ordinary legislative power. This is the position of the amending clause in a written Constitution. When the power under Article 368 is exercised Parliament acts as a recreation of Constituent Assembly. Therefore, such power cannot be restricted by or widened by any other provision. As soon as an amendment is made it becomes a part of the Constitution. An amendment prevails over the Article or Articles amended. The fact that Article 368 companyfers companystitutent powers is apparent from the special companyditions prescribed in the Article. Those companyditions are different from ordinary law making process. Article 368 puts restraints on the ordinary law making process and thus companyfers companystituent power. The Constituent Assembly was fully aware that if any limitation was to be put on the amending power the limitation would have to be expressly provided for. Article 305 of the Draft Constitution provided reservation of seats for certain sections of people in the legislature for 10 years. This reservation was number accepted by the Constituent Assembly. This shows that if the Drafting Committee or the Constituent Assembly wanted to exclude fundamenal rights from the operation of Article 368 companyresponding to Article 304 in the Draft Constitution they companyld have expressly done so. In Ghulam Sarwar v. Union of India 1967 2 S.C.R. 271 it was said there was a distinction between deprivation of fundamental rights by force of a Constitutional provision itself and such deprivation by an order made by President in exercise of a power companyferred on him under Constitutional provision. The dissenting view in Ghulam Sarwar case was that an order of the President was number a law within the meaning of Article 13 2 . In Mohd. Yakub v. State of Jammu Kashmir 1968 2 S.C.R. 227 the majority view of the Constitution Bench was that an order of the President under Article 359 was number law within the meaning of Article 13 2 . There is numberdistinction between Article 358 and Article 359 1 . Article 358 by its own force suspends the fundamental rights guaranteed by Article 19. Article 359 1 on the other hand does number suspend any fundamental rights of its own force but it gives force to order by the President declaring suspension of the enforcement of any fundamental right during the period of emergency. In Mohd. Yakub case it was said that it companyld number mean that an order under Article 359 1 suspending the enforcement of a particular fundamental right had still to be tested under the vary fundamental right which it suspended. Mohd. Yakub case establishes that the expression law in Article 13 2 is number all embracing in spite of the exclusive definition of law in Article 13 3 a . The word law appears in various Articles of our Constitution but number in Article The reason is that the power under Article 368 is number a power to make ordinary laws under the Constitution but is the companystituent power. There companyld be numberlaw within the meaning of Article 13 2 at any stage before the amendment became a part of the Constitution under Article 368. There is numberhiatus between an amendment being a law and thereafter a part of the Constitution. Immediately upon the passage of the Bill for the amendment the Constitution stands amended. The historical background of Article 13 2 throws some light on the question as to whether Article 13 2 prevails over Article 368. On 17 March, 1947 the Constitutional Advisor Sir B.N. Rau had addressed a letter to the members of Central and Provincial legislatures. A questionnaire was annexed to that letter. Question No. 27 was What provisions should be made regarding amendments to the Constitution. A numbere was appended to that question which will be found in Shiva Rao Framing of Indias Constitution referred to as Shiva Rao Vol. II pp. 448-451. The methods of amendment of Constitution in the United Kingdom, Canada, Australia, United States of America, Switzerland and Ireland were elucidated in that numbere. The numbere also drew attention that the fact that in various Constitution express limitations were put on amending certain provisions of the Constitution. The portion of the numbere relating to the Constitution of Australia indicated such limitations. The draft report of the sub-Committee on fundamental rights dated 3 April 1947 companytained an annexure which dealt with fundamental rights. See Shiva Rao Vol. II p. 137 seq. Clause 2 of the annexure was as follows Any law or usage in force within the territories of the Union immediately before the companymencement of this Constitution and any law which may hereafter be made by the State inconsistent with the provisions of this Chapter Constitution shall be void to the extent of such inconsistency. The Constitutional Adviser suggested that the word Constitution was preferable to the word chapter because the entire Constitution was to prevail over law. On 23 April, 1947 the Advisory Committee on Fundamental Rights presented an interim report addressed to the President of the Constituent Assembly companytaining an annexure providing for justiciable fundamental rights. See Shiva Rao Vol. II pp. 294-296 seq. Clause 2 of the Annexure to that report was as follows All existing laws, numberification, regulations, customs or usages in force within the territories of the Union inconsistent with the rights guaranteed under this part of the Constitution shall stand abrogated to the extent of such inconsistency number shall the Union or any unit may make any law taking away or abridging any such right. Clause 2 of the annexure to the interim report was discussed in the Constituent Assembly on 29 April, 1947. Shri K. Santhanam moved an amendment to Clause 2. The amendment was as follows In Clause 2 for the words number shall the Union or any unit make any law taking away or abridging any such right the following be substituted Nor shall any such right be taken away or abridged except by an amendment of the Constitution. The amendment was accepted as will appear in Constituent Assembly Debates Vol. III p. 416. In October, 1947 the Draft Constitution was prepared by the Constitutional Advisor. Clause 9 2 of the said Draft Constitution which later on companyresponded to Article 13 2 of our Constitution was as follows Nothing in this Constitution shall be taken to empower the State to make any law which curtails or taking away any of the rights companyferred by Chapter II of this Part except by way of amendment of this Constitution under Section 232 and any law made in companytravention of this sub-section shall, to the extent of the Contravention, be void. It will be seen that Clause 9 2 in the Draft Constitution included the qualification except by way of amendment of the Constitution under Section 232. Clause 232 in the Draft Constitution prepared by the Constitutional Advisor became Article 304 in the Constitution prepared by the Drafting Committee and eventually became Article 368 of our Constitution. In Shiva Rao, Vol. III p. 325 it appears that the Drafting Committee on 30 October, 1947 at a meeting gave a numbere forming the minutes of that meeting that Clause 9 2 should be revised as follows The State shall number make any law which takes away or abridges the rights companyferred by this Part and any law made in companytravention of this subsection shall, to the extent of the companytravention, be void. No reason is recorded in these minutes as to why the resolution adopted by the Constituent Assembly by passing Shri Santhanams amendment was disregarded. No indication was given in the forwarding letter of Dr. Ambedkar in the Note appended thereto as to why the amendment of Shri Santhanam which had been accepted by the Constituent Assembly was deleted. Nor does the Draft Constitution indicate either by sidelines or in any other manner that the decision of the Constituent Assembly had been disregarded. This history of the formation and framing of Article 13 2 shows that the intention of the Constitutent Assembly was that Article 13 2 does number companytrol the Article relating to the amending of the Constitution. It must be assumed that the Drafting Committee companysisting of eminent men companysidered that an express exclusion of the amending Article from the operation of the clause companyresponding to Article 13 2 was unnecessary and the fear that that Article would companyer the amending Article was groundless. It also appears that numberdiscussion took place after the Draft Constitution had been presented to the Constituent Assembly by Dr. Ambedkar on the deletion or disregard of Shri Santhanams amendment. The history of Article 13 2 shows that the Constituent Assembly clearly found that it did number apply to an amendment of the Constitution. The distinction between companystitutent and legislative power in a written Constitution is of enormous magnitude. No provision of the Constitution can be declared void because the Constitution is the touchstone of validity. There is numbertouchstone of validity outside the Constitution. Every provision in a companytrolled Constitution is essential or so thought by the framers because of the protection of being amendable only in accordance with the Constitution. Every Article has that protection. The historical background of Article 13 2 indicates that the Constitution-makers dealt separately with legislative power by providing for the same in Part XI and entrusted the companystituent power to authorities mentioned in Article 368 and that authority has the same power as the Constituent Assembly because it has number put any fetter upon it. The draft Article 305 which provided for a limitation as to time for amendment of certain matters was eventually deleted. If the framers of the Constitution wanted to forbid something they would say so. The vitality of the companystituent power number only indicates that the Constitution is in the words of Maitland the suprema potestas but also the fact that the amending power is put in a separate Article and Part of the Constitution establishing that it deals with a topic other than legislative power and the power is meant to be exhaustive leaving numberhing uncovered. The vary fact that amending power is number put in any legislative power or is number attached to a subject which is the subject matter of legislative power leaving aside the four sets of provisions, namely, Articles 4, 169, paragraph 7 Schedule 5 and paragraph 21 Schedule 6 companytaining specific power of amendment shows that that amending power was meant to be exhaustive and plenary. If a power of amendment without any express limitation was given it was because a legal Constitutional way of bringing a change in the Constitution was desirable or necessary. Otherwise there would be numberlegal way of effecting the change. It cannot be attributed to the framers of the Constitution that they intended that the Constitution or any part of it companyld be changed by unConstitutional or illegal methods. If an amendment of the Constitution is made subject to Article 13 2 the necessary companyclusion then is that numberamendment of the Constitution is possible. The opening words of Article 245 which deals with legislative power indicate that any law made under Article 246 1 read with List I of the Seventh Schedule is subject to the limitations on legislative power imposed by all the Articles in the Constitution. These limitations cannot be altered or amended in exercise of legislative power, if the power of amendment is said to be located in the Residuary Entry 97 in List I. The history of residuary power in the Government of India Act, 1935 whose scheme was adopted in the Constitution shows that the topic of amendment was number only present to the mind of the Constitutent Assembly but also that the Constituent power companyld number reside in the residuary power. The companyclusions on the question as to whether Article 13 2 overrides Article 368 are these. Article 13 2 relates to laws under the Constitution. Laws under the Constitution are governed by Article 13 2 . Article 368 relates to power and procedure of amendment of the Constitution. Upon amendment of the Constitution the Constitution shall stand amended. The Constitution is self validating and self executing. Article 13 2 does number override Article 368. Article 13 2 is number a fundamental right. The Constitution is the touchstone. The companystituent power is sui generis. The majority view in Golak Nath case that Article 13 2 prevails over Article 368 was on the basis that there was numberdistinction between companystituent and legislative power and an amendment of the Constitution was law and that such law attracted the opening words of Article 245 which in its turn attracted the provisions of Article 13 2 . Parliament took numberice of the two companyflicting views which had been taken of the unamended Article 368, took numberice of the fact that the preponderating judicial opinion, namely, the decisions in Shankari Prasad case Sajjan Singh case and the minority views of five learned Judges in Golak Nath case were in favour of the view that Article 368 companytained the power of amendment and that power was the companystituent power belonging to Parliament Wanchoo, J. rightly said in Golak Nath case that the power under Article 368 is a companystituent power to change the fundamental law, that is to say, the Constitution and is distinct from ordinary legislative power. So long as this distinction is kept in mind Parliament will have power under Article 368 to amend the Constitution and what Parliament does under Article 368 is number ordinary law making which is subject to Article 13 2 or any other Article of the Constitution. This view of Wanchoo, J. was adopted by Parliament in the Constitution 24th Amendment Act which made explicit that under Article 368 Parliament has the companystituent power to amend this Constitution. In order to appreciate and assess Mr. Palkhivalas other companytention of implied and inherent limitations on the amending power, it is necessary to find out the necessity and importance of the amending power to arrive at the true meaning of the expression amendment. Mr. Palkhivala made these submissions. The word amendment means on the one hand number the power to alter or destroy the essential features and on the other there are inherent and implied limitations on the power of amendment. It is imperative to companysider the companysequences of the plea of limited power and also of the plea of limitless power. The test of the true width of a power is number how probable it is that it may be exercised, but what can possibly be done under it. The hope and expectation that it will never be used is number relevant. Reliance is placed on the observations in Maxwell on the Interpretation of Statutes, 12th Ed. 1969 pp. 103-106 that it is important to companysider the effects or companysequences which would result from it, for they often point out the real meaning of the words, before adopting any proposed companystruction of a passage susceptible of more than one meaning. The reasonableness of the companysequences which follow from a particular companystruction on the one hand and the unreasonable result on the other are the two alternatives in the quest for the true intention of Parliament. Crawford Construction of Statutes 1940 Ed. pp. 286-290 was referred to for the proposition that where the statute is ambiguous or susceptible to more than one meaning, the companystruction which tends to make the statute unreasonable should be avoided. Uncertainty, friction or companyfusion on a companystruction is to be avoided because preference is to be given to the smooth working of the statute. The Court adopts which is just reasonable and sensible rather than that which is numbere of these things. It is number to be presumed that the legislature intended the legislation to produce inequitable results. Usurpation of power companytrary to the Constitution is to be avoided. Reliance was placed by Mr. Palkhivala on American Jurisprudence 2d. Vol. 16 Article 59 at pp. 231-232, Article 72 at p. 251, Article 287 at pp. 270-71 and Article 88 at pp. 273-74 in support of these propositions. First, questions of Constitutional companystruction are in the main governed by the same general principles which companytrol in ascertaining the meaning of all written instruments particularly statutes. External aids or arbitrary rules applied to the companystruction of a Constitution are of uncertain value and should be used with hesitation and circumspection. Second, Constitutions are general and many of the essentials with which Constitutions treat are impliedly companytrolled or dealt with by them and implication plays a very important part in Constitutional companystruction. What is implied is as much a part of the instrument as what is expressed. Third, a Court may look to the history of the times and examine the state of things existing when the Constitution was framed and adopted. The Court should look to the nature and object of the particular powers, duties and rights in question with all the light and aids of the companytemporary history. Fourth, proceedings of companyventions and debates are of limited value as explaining doubtful phrases. Similarly, the opinions of the individual members are seldom companysidered as of material value. Mr. Palkhivala said that the word amend may have three meanings. First, it may mean to improve or better to remove an error, the quality of improvement being companysidered from the stand point of the basic philosophy underlying the Constitution. Second, it may mean to make changes which may number fall within the first meaning but which do number alter or destroy any of the basic essential or any of the essential features of the Constitution. Third, it may mean to make any changes in the Constitution including changes falling outside the second meaning. The first meaning was preferred. The second was said to be a possible companystruction. The third was ruled out. The crux of the matter is the meaning of the word amendment The Oxford Dictionary meaning of the word is 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. The Oxford Dictionary meanings are also alteration of a bill before Parliament a clause, paragraph, or words proposed to be substituted for others, or to be inserted in a bill the result of the adoption of which may even be to defeat the measure . In Words and Phrases Permanent Edition, Volume 3 the meaning of the word amend and amendment are change or alteration. Amendment involves an alteration or change, as by addition, taking away or modification. A broad definition of the word amendment will include any alteration or change. The word amendment when used in companynection with the Constitution may refer to the addition of a provision on a new independent subject, companyplete in itself and wholly disconnected from other provisions, or to some particular article or clause, and is then used to indicate an addition to, the striking out, or some change in that particular article or clause. The companytention that the word amendment in Article 368 should bear a limited meaning in view of the expression amend by way of addition, variation or repeal any of the provisions of this Schedule occurring in paragraphs 7 and 21 in Schedules 5 and 6, is unsound for the following reasons. First, the power of amendment companyferred by the four provisions, namely, Article 4 read with Articles 2 and 3, Article 169, paragraphs 7 and 21 in Schedules 5 and 6 is a limited power. It is limited to specific subjects. The exercise of the power of amendment under those four provisions, if treated by Articles themselves, is an uncontrolled power since the power can be exercised by an ordinary law. But as a part of the Constitution the power is a subordinate power because these Articles themselves are subject to the amending provisions of Article 368. Article 368 is the only provision of the Constitution which provides for the amendment of this Constitution which means the Constitution of India and every part hereto. It may be mentioned that in companystruing Article 368 the title of the part Amendment of the Constitution is an important aid to companystruction. The marginal numbere which speaks of the procedure of amendment is number companyplete by itself because the procedure when followed results in the product, namely, an amendment of the Constitution which is number only a matter of procedure. Second, these four provisions which are in the same terms, namely, numbersuch law shall be deemed to be an amendment of this Constitution for the purpose of Article 368 show that but for these terms the amendment would have fallen within Article 368 and was being taken out of it This is an important companysideration particularly in companynection with Schedules 5 and 6 which provide that Parliament may, from time to time by law, amend by way of addition, variation or repeal any of the provisions of this Schedule. These provisions show that an amendment by way of addition, variation or repeal will also fall within the amendment of the Constitution provided for in Article 368 but is being taken out of Article 368. This express exclusion companytains intrinsic evidence that the meaning of the word amendment in Article 368 includes amendment by way of addition, alteration or repeal. Third, paragraphs 7 and 21 in Schedules 5 and 6 which provide that Parliament may from time to time by law, amend by way of addition, variation or repeal indicate the necessity of amendments from time to time. The expression by way of does number enlarge the meaning of the word amendment but clarifies. The expression by way of shows that the words addition, variation or repeal are substitutes of the word amendment and are forms of intention. The whole Schedule cannot be repealed either by paragraph 7 or by paragraph 21, because Article 244 provides for the administration of Scheduled Areas and tribal areas on the application of the two respective Schedules. The words from time to time also indicate that because of subject matter amendments may be from time to time. The history behind the two Schedules originates in Section 91 and 92 of the Government of India Act, 1935 dealing with excluded areas and partially excluded areas. Fourth, reference was made to Section 9 1 c of the India Independence Act 1947 which empowered the Governor General to make omissions from, additions to and adaptations and modification to the Government of India Act, 1935. The Government of India Third Amendment Act 1949 amended Section 291 of the 1935 Act and empowered the Governor General to make such amendments as he companysiders necessary whether by way of addition, modification or repeal. It was, therefore, said that when our Constitution did number use the expression by way of addition, modification or repeal the word amendment in Article 368 will have a narrower meaning. The expression amendment has been used in several Articles of the Constitution. These are Articles 4 1 and 2 , 108 4 , 109 3 , and 4, 111, 114 2 , 169 2 , 196 2 , 198 3 and 4 , 200, 201, 204 2 , 207 1 , 2 , 240 2 , 274 1 , 304 b and 349. In every case amendment is to be by way of variation, addition or repeal. Again, different expression have been used in other Articles. In Article 35 b the words are alter, repeal. In Article 243 1 the words are repeal or amend. In Article 252 2 , the expression is amend or repeal. In Article 254 2 proviso the words are add to, amending, variation or repeal. In Article 320 4 the words are such modifications whether by way of repeal or amendment. In Article 372 1 the words are altered or repealed or amended. In Article 372 2 the words are such adaptations and modifications by way of repeal or amendment. In Article 392 1 the expression is such adaptations by way of modification, addition or companymission. Again, in Article 241 2 the words are modification or exceptions. In Article 364 the words used are exceptions or modifications. In Article 370 1 d and 3 the words are modifications and exceptions. Again, in Schedule 5 paragraph 5 1 and Schedule 6 paragraphs 12 a , b , 19 1 a the word used are exceptions or modifications. Modifications in Article 370 1 d must be given the widest meaning in the companytext of a Constitution and in that sense it includes an amendment and it cannot be limited to such modifications as do number make any radical transformation. The several Constitution Amendment Acts show that amendments to the Constitution are made by way of addition, substitution, repeal. The Attorney General is right in his submission that the expression amendment of this Constitution has a clear substantive meaning in the companytext of a written Constitution and it means that any part of the Constitution can be amended by changing the same either by variation, addition of repeal. The words Amendment of this Constitution may be initiated and the words Constitution shall stand amended in accordance with the terms of the Bill in Article 368 indicate that the word amendment is used in an unambiguous and clear manner. The Attorney General said that our Constitution is number the first number is the last one to use the word amendment. The American Constitution in 1787 used the word amend. Several Constitutions of other companyntries have used the word amend. The word amend is used in a Constitution to mean any kind of change. In some Constitutions the words alteration or revision have been used in place of the word amend or along with the word amendment. Some times alteration and revision of the Constitution are also spoken of as amendment of the Constitution. Constitutional provisions are presumed to have been carefully and deliberately framed. The words alterations or amendments, the words amendments or revisions, the words revision and alteration are used together to indicate that these words have the same meaning in relation to amendment and change in Constitution. The meaning and scope of amending power is in the object and necessity for amendment in a written Constitution. The various amendments which have already been carried out to our Constitution indicate that provisions have been added, or varied or substituted. The Attorney General gave two companyrect reasons for the object and necessity of the power of amendment in a written Constitution. First, the object and necessity of amendment in a written Constitution means that the necessity is for changing the Constitution in an orderly manner, for otherwise the Constitution can be changed only by an extra Constitutional method or by revolution, Second, the very object of amendment is to make changes in the fundamental law or organic law to make fundamental changes in the Constitution, to change the fundamental or the basic principles in the Constitution. Otherwise there will be numbernecessity to give that importance to the high amending power to avoid revolution. The object of amendment is to see that the Constitution is preserved. Rebellion or revolution is an illegal channel of giving expression to change. The companysent of the governed is that each generation has a right to establish its own law. Conditions change. Men Change, Opportunities for companyresponding change in political institutions and principles of Government therefore arise. An unamendable Constitution was the French Constitution which by an amendment to the Constitution adopted in 1884 declared that the National Assembly shall never entertain a proposal for abolition of the republican form of Government. The United States Constitution provided that numberamendment companyld be made prior to 1808 affecting the First and Fourth Clauses of Section 9 of Article 1 relative to the prohibition of the importation of slaves, and that numberState without its companysent shall be deprived of equal suffrage in the Senate. These are examples of limiting the sovereign power of the people to change the Constitution. An unamendable Constitution is said to be the worst tyranny of time. Jefferson said in 1789 that each generation has a right to determine a law under which it lives. The earth belongs in usufruct to the living the dead have neither powers number rights over it. The machinery of amendment is like a safety valve. It should number be used with too great facility number should be too difficult. That will explode and erode the Constitution. Most Constitutions are rigid in the sense that they are amendable only by a different process than that by which ordinary laws may be altered. Thus they distinguish clearly between the companystituent power and the legislative power, each being exerciseable by different organs according to different processes. Chief Justice Marshall said that the opponents of change want changes just as much as any one else. They want however to determine what the changes shall be. Amendment is a form of growth of the Constitution inasmuch as amendment means fundamental changes. The Constitution devises special organs or special methods to amend or change the fundamental principles that create the Government. The methods of amendment may be by ordinary law making body as in Great Britain or by the ordinary law making body with special procedure or unusual majority or by special organs of government created for the purpose such as Constitutional companyvention or by the electorate in the form of referendum or of initiating a referendum. In case a written Constitution makes numberprovision for amendment it is usually held that the national law making body by ordinary procedure may amend the Constitution. If a Constitution provides the method of amendment that method alone is legal. Any other method of amendment would be a revolution. The deliberative and restrictive processes and procedure ensure a change in the Constitution in an orderly fashion in order to give the expression to social necessity and to give permanence to the Constitution. The people expressed in the Preamble to our Constitution gave the Constitution including the power to amend the Constitution to the bodies mentioned in Article 368. These bodies represent the people. The method to amend any part of the Constitution as provided for in Article 368 must be followed. Any other method as for example companyvening Constituent Assembly or Referendum will be extra Constitutional or revolutionary. In our Constitution Article 368 restricts only the procedure or the manner and form required for amendment but number the kind or the character of the amendment that may be made. There are numberimplied limitations to the amending power. The Attorney General summed up pithily that the Constitution Acts number only for the people but on the people. The Attorney General relied on several American decisions in support of these propositions. First, the word amendment does number mean improvement. The view in Livermore v. Waite 102 Cal. 118 of a single learned Judge that amendment means improvement was number accepted in Edwards v. Lesseur South Western Reporter Vol. 33, p. 1130. Second, ratification by people of States would be void when a federal amendment proposed by Congress is required to be ratified by the legislatures of the States. Ex-parte Dillon Federal Reporter No. 262 p. 563. The legislature is a mere agency for ratification of a proposed amendment. Ex-parte Dillon did number accept the view of the learned single Judges in Livermore v. Waite that amendment means only improvement. Third, the argument that the word amendment carries its own limitations regarding fundamental principles or power of State or companytrol of the companyduct of the individuals by devising a method of referendum by State legislatures is adding a new method of amendment. This is number permissible. Feigenspan v. Bodine 264 Federal Reporter 186. The only method of amendment is that prescribed by the Constitution. The theory of referendum by State legislatures is number valid. Fourth, the assumption that ratification by State legislatures will voice the will of the people is against the prescribed method of amendment and grant of authority by the people to Congress in the manner laid down in Article V of the American Constitution. It is number the function of Courts or legislative bodies to alter the method which the Constitution has fixed. Ratification is number an act of legislation. It derives its authority from the Constitution. Hawke v. Smith 253 U.S. 221 Dillon v. Gloss 256 U.S. 358, Leser v. Garnett 258 U.S. 130. Fifth, the power of amendment extends to every part of the Constitution. In amending the Constitution the General Assembly acts in the character and capacity of a companyvention expressing the supreme will or the sovereign people and is unlimited in its power save by the Constitution. Ex-parte Mrs. D.C. Kerby American Law Reports Annotated, Vol. 36, p. 1451. Sixth, the argument that amendments which touch rights of the people must be by companyvention is rejected by Supreme Court in American Article V of the American Constitution is clear in statement and meaning and companytains numberambiguity. Where the intention is clear there is numberroom for companystruction. Rhode Island v. Palmer 253 U.S. 350 U.S. v. Sprague 282 U.S. 716. Seventh, principles of the Constitution can be changed under Article V Schneiderman v. United States of America 320 U.S. 118. Eight, the Constitution provides the method of alteration. While the procedure for amending the Constitution is restricted here is numberrestraint on the kind of amendment that may be made. Whitehall v. Elkins 389 U.S. 54. Except for special methods of amendment in a rigid or companytrolled Constitution although the methods may vary in different Constitutions and except for express limitations, if any, in rigid or companytrolled Constitutions, the meaning and scope of the amending power is the same in both the flexible and rigid forms. The flexible Constitution is one under which every law of every description can be legally changed with the same case and in the same manner by one and the same body. Laws in a flexible Constitution are called Constitutional because they refer to subjects supposed to affect the fundamenal institutions of the State, and number because they are legally more sacred or difficult to change than other laws. A rigid Constitution is one under which certain laws generally known as Constitutional or fundamental laws cannot be changed in the same manner as ordinary laws. The rigidity of the Constitution companysists in the absence of any right of the legislatures when acting in its ordinary capacity to modify or repeal definite laws termed Constitutional or fundamental. In a rigid Constitution the term Constitution means a particular enactment belonging to the Articles of the Constitution which cannot be legally changed with the same ease and in the same manner as ordinary laws. The special machinery for Constitutional amendment is the limitation of the power of the legislature by greater law than by the law of the ordinary legislation. The Constituent Assembly knowing that it will disperse and leave the actual business of legislation to another body, attempts to bring into the Constitution that it promulgates as many guides to future action as possible. It attempts to arrange for the recreation of a companystituent assembly whenever such matters are in future to be companysidered, even though that assembly be numberhing more than the ordinary legislature acting under certain restrictions. There may be some elements of the Constitution which the companystituent assembly wants to remain unalterable. These elements are to be distinguished from the rest. The Fifth Clause in the United States Constitution is that numberState without its own companysent shall be deprived of its equal suffrage in the Senate. The Attorney General rightly sard that just as there are numberimplied limitation in flexible Constitutions similarly there are numberimplied limitations in a rigid Constitution. The difference is only in the method of amendment. Amendment can be made by ordinary legislature under certain restrictions, or by people through referendum or by majority of all the units of a federal State or by a special companyvention. 903 In a rigid Constitution the legislatures by reason of their well matured long and deliberately formed opinion represent the will of the undoubted majority. But even such will can be thwarted in the amendment of the organic law by the will of the minority. In case where the requisite majority is number obtained by the minority thwarting an amendment, there is just as much danger to the State from revolution and violence as there is from what is said to be the caprice of the majority. The safeguards against radical changes thus represent a better way and a natural way of securing deliberation, maturity and clear companysciousness of purpose without antagonising the actual source of power in the democratic state. The term amendment companynotes a definite and formal process of Constitutional change. The force of tradition and custom and the judicial interpretation may all affect the organic structure of the State. These processes of change are the evolution of Constitution. The background in which Article 368 was enacted by the Constituent Assembly has an important aspect on the meaning and scope of the power of amendment. On 12 November, 1946 Sir B.N. Rau Constitutional Adviser prepared a brochure companytaining Constitution of the British Commonwealth Countries and the Constitutions of other companyntries. Different companyntries having different modes of amendments were referred to. In the same volume the fundamental rights under 13 heads were extracted from 13 selected companyntries like U.S.A., Switzerland, Germany, Russia, Ireland, Canada, Australia. Two features follow from that list. First, there is numberabsolute standard as to what companystitutes fundamental right. There is numbersuch thing as agreed fundamental rights of the world. Second, fundamental rights which are accepted in our Constitution are number superior to fundamental rights in other Constitutions number can it be said that the fundamental rights are superior to Directive Principles in our Constitution. On 17 March, 1947 a questionnaire was circulated under the subject as to what provisions should be made regarding the amendment of the Constitution. The draft clause of amendment to the Constitution prepared by the Constitutional Adviser at that time indicates that an amendment may be initiated in either House of the Union Parliament and when the proposed amendment is passed in each House by a majority of number less than two thirds of the total number of members of that House and is ratified by the legislatures of number less than two thirds of the units of the Union, excluding the Chief Commissioners Provinces, it shall be presented to the President for his assent and upon such assent being given the amendment shall companye into operation. There were two explanations to that clause. On 29 April, 1947 Shri Santhanams amendment to the draft clause was accepted. The amendment was that this clause also if necessary may be amended in the same way as any other clause in the Constitution. In June, 1947 the drafting of the amending clause started. Originally it was Numbered 232. Eventually, Articles 304 and 305 came into existence in place of draft Article 232. The first draft of the amendment clause was given by Sir B.N. Rau in March, 1947. By June, 1947 and thereafter he recommended the procedure favoured by Sir Alladi Krishnaswami Ayyar and Sir Gopalswami Ayyangar, namely, passage by two thirds majority in Parliament and ratification by like majority of Provincial legislatures. On 21 February, 1948 the draft Constitution was ready. Draft Articles 304 and 305 related to amendment Article 305 provided for reservation of seats for minorities for ten years unless companytinued in operation by an amendment of the Constitution. The following features emerge. First, the Constituent Assembly made numberdistinction between essential and number-essential features. Secondly, numberone in the Constituent Assembly said that fundamental rights companyld number be amended. The framers of the Constitution did number have any debate on that. Thirdly, even in the First Constitution Amendment debate numberone doubted change or amendment of fundamental rights. At numberstage it appeared that fundamental rights are absolute. While a Constitution should be made sound and basic it should be flexible and for a period it should be possible to make necessary changes with relative facility. Certain amendments to Article 304 were proposed. One proposed amendment No. 118 was that amendment was to be passed in two Houses by a clear majority of the total membership of each House. Another proposed amendment No. 210 was that for a period of three years from the companymencement of the Constitution, any amendment certified by the President to be number one of substance might be made by a simple majority. This also stated that it would include any formal amendment recommended by a majority of the Judges of the Supreme Court on the ground of removing difficulties in the administration of the Constitution or for the purpose of carrying out the Constitution in public interest. The third proposed amendment No. 212 was that numberamendment which is calculated to infringe or restrict or diminish the scope of any individual rights, any rights of a person or persons with respect to property or otherwise, shall be permissible and any amendment which is or is likely to have such an effect shall be void and ultra vires of any legislature. It is numbereworthy that this amendment was withdrawn. See Constituent Assembly Debates Vol. IX p. 1665. In the first category the framers devised amendment by Parliament by a simple majority. These are Articles 2 and 4 which deal with States. As far as creation or re- Constitution of States is companycerned, it is left to Parliament to achieve that by a simple majority. Again, draft Article 148A which eventually became Article 169 dealing with Upper Chambers in the States gave Parliament power to abolish the Upper Chambers or to create new Second Chambers. Schedules 5 and 6 were left to be amended by Parliament by simple majority. The second category of amendment requires two thirds majority. It is in that companynection that the statement of Dr. Ambedkar If the future Parliament wishes to amend any particular Article which is number mentioned in Part III or Article 304 all that is necessary for them is to have the two thirds majority then they can amend it was invoked by Mr. Palkhivala to support his submission that Part III was unamendable. That is totally misreading the speech. The speech shows that some Articles would be amendable by bare majority, others would require two thirds majority and the third category would require two thirds majority plus ratification by the States. Proceedings in the Constituent Assembly show that the whole Constitution was taken in broad prospective and the amendments fell under three categories providing for simple majority, or two thirds majority or two thirds majority and ratification by the States. These different procedures were laid down to avoid rigidity. The Constitution First Amendment Act which added Article 15 4 , substituted words in Articles 19 2 and Article 19 6 , inserted Article 31A indicates interesting features. The two criticisms at that time were as to what was the hurry and secondly that the Government was trying to take more power to itself. The answers are that a Constitution which is responsive to the peoples will and their ideas and which can be varied here and there, will companymand respect and people will number fight against change. Otherwise, if people feel that it is unchangeable and cannot be touched, the only tiling to be done by those who wish to change it is to try to break it. That is a dangerous thing and a bad thing. In this background there is numberdoubt about the meaning and scope of Article 368. The Attorney General rightly said that if there be any doubt companytemporaneous practical exposition of the Constitution is too strong and obstinate to be shaken or companytrolled. In Mopherson v. Blacker 146 U.S. 1 it is said that where plain and clear words occur there is numberdifficulty but where there is doubt and ambiguity companytemporaneous and practical exposition is a great weight. In The Automobile Transport Rajasthan Ltd. v. The State of Rajasthan and Ors. 1963 1 S.C.R. 491 this Court took numberice of the feature that Constitution makers had deep knowledge of Constitutions and Constitutional problems of other companyntries. Mr. Seervai relying on British Coal Corporation v. King 1935 A.C. 500 submitted that in interpreting a companystituent or organic statute that companystruction most beneficial to the widest possible amplitude of powers must be adopted. A strict companystruction applicable to penal or taxing statute will be subversive of the real intention of Parliament if applied to an Act passed to ensure peace, order and good government. Largest meaning is given to the allocated specific power. If there are numberlimitations on the power it is the whole power. Grant of power of amendment cannot be cut down except by express or implied limitations. The companyclusion is that the meaning of the word amendment is wide and number restricted. The companytention of Mr. Palkhivala on behalf of the petitioner is that under Article 368 as it stood prior to the amendment there were implied and inherent limitations on the power of amendment. It was said that the word amendment would preclude the power to alter or destroy the essential features and the basic elements and the fundamental principles of the Constitution. This companytention was amplified as follows. The Constitution is given by the people unto themselves. The power to decide upon amendment is given to the 5 year Parliament which is a creature of the Constitution. Article 368 does number start with the number-obstante clause. Article 368 uses the word amendment simpliciter. Less significant amendment powers in others parts of the Constitution use the words add, alter, repeal or vary in addition to the word amendment, as will appear in Articles 31B, 25 b , 252 2 , 372, 372A 2 , paragraph 7 Schedule 5, paragraph 21 Schedule 6. Article 368 talks of an amendment of this Constitution and does number extend the amending power to all or any of the provisions of this Constitution. On a wide companystruction of the word amendment all fundamental rights can be taken away by the requisite majority whereas much less significant matters require the companycurrence of at least half the States under the proviso to that Article. The basic human freedom are all of the most fundamental importance to all the States and all the citizens. Article 32 is numberless important to the citizens of States than Article 226. The Preamble is number a part or provision of the Constitution. Therefore, the Preamble cannot be amended under Article 368. The nature and the companytents of the Preamble are such that it is incapable of being amended. If the Preamble is unalterable it necessarily follows that those features of the Constitution which are necessary to give effect to the Preamble are unalterable. Fundamental rights are intended to give effect to the Preamble. They cannot, therefore, be abridged or taken away. The provisions of Article 368 themselves can be amended under that very Article. If the word amendment is read in the widest sense Parliament will have the power to get rid of the requisite majority required by Article 368 and make any Constitutional amendments possible by bare majority, Parliament can provide that hereafter the Constitution shall be unamendable. Parliament can reduce India to a status which is neither sovereign number democratic number republic and where the basic human rights are companyspicuous by their absence. Mr. Palkhivala submits that the principle of inherent or implied limitations on power to amend the companytrolled Constitution stems from three basic features. First, the ultimate legal sovereignty resides in the people. Second, Parliament is only a creature of the Constitution. Third, power to amend the Constitution or destroy the essential features of the Constitution is an application of ultimate legal sovereignty. Mr. Palkhivala enumerated 12 essential features. These were as follows 1 The supremacy of the Constitution. 2 The sovereignty of India. 3 The integrity of the companyntry. 4 The democratic way of life. 5 The republican form of Government. 6 The guarantee of basic human rights elaborated in Part III of the Constitution. 7 A secular State. 8 A free and independent judiciary. 9 The dual structure of the Union and the States. 10 The balance between the legislature, the executive and the judiciary. 11 a Parliamentary form of Government as distinct from the presidential form of Government. Article 368 can be amended but cannot be amended to empower Parliament to alter or destroy any of the essential features of the Constitution, make Che Constitution literally or practically unamendable, make it generally amendable by a bare majority in Parliament, companyfer the power of amendment either expressly or in effect on the State Legislatures and delete the proviso and deprive the States of the power of ratification which is today available to them in certain broad areas. The Constitution 24th Amendment Act was impeached by Mr. Palkhivala on three grounds. First, by substituting the words amend by way of addition, variation or repeal in place of the word amendment in Article 368 the power was widened. Second, the 24th Amendment made explicit that when Parliament makes a Constitutional amendment under Article 368 it acts in exercise of companystituent power. Third, it had provided by amendment in Articles 13 and 368 that the power in Article 13 2 against abridging or taking away of the fundamental rights shall number apply to any amendment under Article The Constitution 24th Amendment Act is, therefore, to be companystrued as empowering Parliament to exercise full companystituent power of the people and to vest in Parliament the ultimate legal sovereignty of the people as authorising Parliament to alter or destroy all or any of the essential features, basic elements and fundamental principles of the Constitution. Likewise, Parliament is companystrued by the Constitution 24th Amendment Act to be authorised to damage or destroy the essence of all or any of the fundamental rights. Therefore, the amendment must be illegal and invalid. In the alternative it was submitted on behalf of the petitioner that if the Constitution 24th Amendment is valid it can be only on a reading down of the amended provisions of Article 13 and 368 which reading would preserve the original inherent and implied limitations. Even after the Constitution 24th Amendment Act Parliament will have numberpower to alter or destroy the essential features of the Constitution and secondly, fundamental rights are among the essential features of the Constitution and, therefore, the essence of any of the fundamental rights cannot be altered or destroyed or damaged even when they are sought to be abridged. The Attorney General stressed the background in which Article 368 was enacted by the Constituent Assembly to show that any limitation on the amending power was never in companytroversy. The only companytroversy was regarding the degree of flexibility of an amendment of all the provisions of the Constitution. Our Constitution has adopted three methods of amendment of the Constitution. Certain provisions of the Constitution may be amended by a simple majority in Parliament. Others may be amended by two-thirds majority. The third category relates to provisions where amendments must be ratified by one half of the States. This scheme strikes a good balance by protecting the rights of the States while leaving the remainder of the Constitution easy to amend. Of the three ways of amending the Constitution two are laid down in Article 368 itself and the third is provided for in about 24 other Articles. The Constitutional Adviser incorporated in his draft Constitution prepared by him in October, 1947 a recommendation companytained in the supplementary Report of the Union Constitution Committee. Following the recommendation of the Advisory Committee he included a proviso that the provisions in the Constitution relating to the reservation of seats for the Muslims, the Scheduled Castes, the Scheduled Tribes, the Indian Christians and the Sikhs, either in the Federal Parliament or in any Provincial Legislature, should number be amended before the expiry of ten years from the companymencement of the Constitution. The Drafting Committee in February, 1948 companysidered the provisions for amendment. It made three material changes in the provisions made by the Constitution Adviser. First, the Committee framed a self companytained and independent Article regarding the reservation of seats in the legislatures for minorities. These provisions companyld number be amended for a period of ten years and would then cease to have effect unless companytinued in operation by an amendment of the Constitution. The second proposed change gave a limited power of initiating Constitutional amendments to the State legislatures. This power related to two matters. These were the methods of choosing Governors and the establishment or abolition of Legislative Councils in the States. The third amendment suggested was that changes in any of the legislative lists number merely federal List should receive ratification of at least one half of the Provincial legislatures and one third of the legislatures of Indian States. The entire history of the power of amendment of the Constitution shows first that the Draft Constitution eliminates the elaborate and difficult procedures such as a decision by companyvention or a reterendum. The powers of amendments are left with the legislatures of the Union and the States. Secondly, it is only for amendments of specific matters that the ratification by the State legislatures is required. All other Articles are left to be amended by Parliament with only limitation of majority of number less than a two-thirds of the members of each House present and voting and the majority of the total membership of each House. Thirdly, the provisions for amendment of the Constitution Were made simple and number difficult when companyparison is made with the American and the Australian Constitutions. The theory of inherent and implied limitations on the amending power is based on the assumption of a narrow and restricted meaning of the word amendment to suggest that the basic features or the essential features and the democratic republican character of the Constitution cannot be damaged and destroyed. Emphasis is laid on the Preamble of the Constitution to suggest that inherent and implied limitations all spring from the Preamble. The Preamble is said number to be a part of the Constitution. The Preamble is said to be unalterable. Therefore, it is companytended that other provisions which gave effect to the Preamble cannot be amended. Reliance is placed on the decision of this Court in Berubari case 1960 3 S.C.R. 250 in support of the proposition that the Preamble is number a part of the Constitution. The companyclusion drawn is that numberamendment of the Constitution inconsistent with the Preamble can be made. The Preamble is said to be an implied limitation on the power of amendment. This Court in Berubari case said that the Preamble has never been regarded as the source of any substantive power, because such powers are expressly granted in the body of the Constitution. This Court said what is true about the powers is equally true about prohibitions and limitations. In Berubari case it was suggested that the Preamble to the Constitution postulated that like a democratic republican form of the Government the entire territory of India was beyond the reach of Parliament and companyld number be affected either by ordinary legislation or even by Constitutional amendment. The Preamble was invoked to cut down the power to cede territory either by ordinary law or by amendment of the Constitution. This Court said that the Preamble is, in the words of Story a key to open the minds of the makers, but nevertheless the Preamble companyld number be said to postulate a limitation on one of the very important attributes of sovereignty. This Court rejected the theory that the Preamble can impose serious limitations on the essential attribute of sovereignty. The suggested limitation that the Preamble affirmed the inviolability of the territory of India so that the power of amendment should be implied limited to exclude the ceding territory, is negatived by this decision. The petitioners companytention that the Preamble is number a part of the Constitution is nullified by the petitioners reference to and reliance on the Preamble as the source of all inherent limitations. The Berubari case held that Article I companyld be amended under Article 368 and a part of the territory of India companyld be ceded by such amendment. The Preamble did number limit the power to cede territory by-amendment of Article I. In the Berubari case there is an observation that the Preamble is number a part of the Constitution. The Preamble was taken up by the Constituent Assembly at the end as it had to be in companyformity with the Constitution. The Preamble was debated and voted upon and the motion The Preamble stand part of the Constitution was adopted. Therefore, Mr. Seervai rightly companytended that the Preamble is an integral part of the status. The Preamble can be repealed See Craies on Statute 6th Ed. page 200 seq. and Halsbury Laws of England, 3rd Ed. Vol. 36 p. 370 . In Gopalan case 1950 S.C.R. 88 an argument was advanced on the Preamble that the people gave themselves guaranteeing to the citizens fundamental rights, and, therefore, the provisions of Part III must be companystrued as being paramount to the legislative will as otherwise the fundamental rights to life and personal liberty would have numberprotection against legislative action. Patanjali Sastri, J., said that the high purpose and spirit of the Preamble as well as the Constitutional significance of a declaration of Fundamental Rights should be borne in mind. The language of the provisions, it was said there, companyld number be stretched in disregard of the cardinal rule of interpretation of any enactment, Constitution or other, that its spirit numberless than its intendment should be companylected primarily from the natural meaning of the words used. The words procedure established by law in Article 21 must be taken to refer to a procedure which had a statutory origin. The word law was said number to mean the immutable and universal principle of natural justice. The reasoning given by Patanjali Sastri, J. was numberprocedure is known or can be said to have been established by such vague and uncertain companycepts as the immputable and universal principles of natural justice. This Court in Gopalan case refused to read due process as an implication of the Constitution. In the Kerala Education Bill 1957 case 1959 S.C.R. 995 Das, C.J. referred to the Preamble and said to implement and fortify the supreme purpose set forth in the Preamble, Part III of our Constitution has provided for us certain fundamental rights. In the same case, Das, C.J. said so long as the Constitution stands as it is and is number altered, it is inconceiveably the duty of this Court to uphold the fundamental rights and thereby honour our sacred obligation to the minority companymunity who are of our own. This observation shows that fundamental rights can be amended and the Preamble does number stand in the way. In Basheshar Nath v. The C.I.T. Delhi 1955 Supp. 1 S.C.R. 528 Bhagwati, J. referred to the Preamble in discussing the question of waiver of fundamental right and companypared our Preamble to the Preamble to the United States Constitution. The Preamble to the American Constitution is without the Bill of Rights and the Bill of Sights which became part of the United States Constitution substantially altered its character and broadly speaking, differed in numberway, in principle, from our fundamental rights. The Preamble is properly resorted to where doubts or ambiguities arise upon the words of the enacting part. If the enacting words are clear and unambiguous, there is little room for interpretation, except the cases leading to an obvious absurdity, or to a direct overthrow of the intention expressed in the Preamble. This is the view of Story. The Preamble can never be resorted to enlarge the powers companyfided to the general government The Preamble can expound the nature, extent and application of the powers actually companyferred by the Constitution and number substantively create them. The decision of this Court in Gopalan case, the Coal Bearing Areas Act case 1962 1 S.C.R. 44, and State of Rajasthan v. Leela Jain 1965 1 S.C.R. 276 are that if the language of the enactment is clear the Preamble cannot nullify or cut down the enactment. The Judicial Committee in The Secretary of State for India in Council v. Maharajah of Bobbili I.L.R. 43 Mad. 529 said that the legislature may well intend that the enacting part should extend beyond the apparent ambit of the Preamble or the immediate mischief. See also Attorney General v. Prince Ernest Augustus of Haneyar 1957 A.C. The American decision in Henning Jacobson v. Commonwealth of Massachusetts 197 U.S. 11 indicates that power is number companyferred by the Preamble but must be found in the Constitution. The Preamble may be relevant in the case of an ambiguity in an enactment in a statute. A statute does number companytain an amending power for the simple reason that the statute can be amended under legislative power. The Attorney General rightly said that the Preamble in a Constitution refers to the frame of the Constitution at the time of the Preamble, and, therefore, it can possibly have numberrelevance to the companystituent power in the future, when that Constitution itself can be changed. The position would be the same so far as the Preamble is companycerned whether the companystituent power is exercised by the amending body provided for by the people themselves in the Constitution or by referendum if so provided for in the Constitution. The Attorney General supported his submission by relying on the views of Canaway and Wynes on the similar interpretation of Section 128 of the Australian Constitution. Canaway in the Failure of Federalism in Australia in discussing Section 128 of the Australian Constitution under the heading Alteration of the Constitution expresses the view that the section must be read as a substantive grant of power to alter the Constitution and that the negative form of the section in numberway detracts from the amplitude of that power. Canaway further says that it is number permissible to refer to the Preamble in companynection with the effect of Section 128 and if nevertheless such reference is made there is numberhing adverse to the companyclusion that there is full power of amendment. The Preamble recites a preliminary agreement to unite in one indissoluble Federal Commonwealth. Section 128 of the Australian Constitution forms an integral part of the Constitution. As from the time of the agreement it must have been companytemplated that the Constitution should be alterable to the full extent of power companyferred by that section. Therefore, the word alter in Section 128 of the Australian Constitution is number restricted by any reference to the Preamble. Wynes in Legislative, Executive and. Judicial Powers in Australia 4th Ed. at pp. 505-506 expresses the view that apart from the rule which excludes the Preamble generally from companysideration in statutory interpretation it is clear that, when all is said and done, the Preamble at the most is only a recital of a present intention. The insertion of an express reference to an amendment in the Constitution itself is said to operate as a qualification upon the mere recital of the reasons for its creation. At the second reading of the Draft Constitution in the Constituent Assembly a resolution was adopted that the Preamble do form part of our Constitution. The Preamble is a part of the Constitution. On 26 November, 1949 certain Articles of the Constitution were brought into force. Article 393 did companye into force on 26 November, 1949. Therefore, the Preamble did number companye into force on 26 November, 1949. As regards general laws the position is that the Preamble has been treated as part of the statute. Clear Constitutional provisions are imperative both on the legislatures and the Courts. Where a Constitutional provision is companyprehensive in scope and leaves numberroom for interpretation the Court is without power to amend, add to or detract from a Constitutional provision or to create exceptions thereof by implication See Corpus Juris Secumdum Vol. 16 p. 65 . Where the people express themselves in careful and measured terms in framing the Constitution and they leave as little as possible to implications, amendments or changes in the existing order or companyditions cannot be left to inserting implications by reference to the Preamble which is an expression of the intention at the time of the framing of the Constitution. Therefore, the power to amend the Constitution is number restricted and companytrolled by the Preamble. The companytention that essential features are number amendable under Article 368 as it stood before the Constitution 24th Amendment Act is number only reading negative restrictions on the express power of amendment but is also putting the clock back. One of the salutary principles of companystruction of a statute is to be found in R.V. Burah 3 A.C. It was a case to determine whether the prescribed limitations of a companyonial legislature had been exceeded. The Judicial Committee said that a duty must be performed by looking to the terms of the instrument by which affirmatively legislative powers are created, and by which, negatively, they are restricted. If what has been done is legislation within the general scope of the affirmative words which give power, and if it violates numberexpress companydition or restriction by which that power is limited, it is number for, any companyrt of justice to enquire further or to enlarge companystructively those companyditions and restrictions. The maxim Expressum facit cessare taciturn was similarly applied in Webb Outrim 1907 A.C. 89. The theory of implied and inherent limitations can be best described as a subtle attempt to annihilate the affirmative power of amendment. Lord Halsbury in Fielding v. Thomas 1896 A.C. 600 said that if the legislature had full power to make laws it was difficult to see how the power was taken away. The power is always sufficient for the purpose. Lord Dunedin in Whiteman v. Sadler 1910 A.C. 514 said express enactment shuts the door to further implication. It was said that the essential features companyld be amended by way of improvement but companyld number be damaged or destroyed. It was said India companyld number be companyverted into a totalitarian dictatorship. The entire approach of the petitioner to the power of amendment companytained in Article 368 ignores the fact that the object of the Constitution is to provide for the organs of State like the judicature, legislature and the executive for the governance of the companyntry. Apart from the essential functions of defence against external aggression and of maintenance of internal order a modern State is organised to secure the welfare of the people. India is a sovereign democratic republic which means that Parliament and State legislatures are elected on adult universal suffrage. The companyntry is governed by the Cabinet system of government with ministries responsible to the House ok the People and to the Legislative Assemblies respectively. In a democracy the determination of policies to be pursued can only be determined by a majority vote cast at election and then by a majority of the elected representatives in the legislature. Holmes, J., said In a democracy the people have the right to embody their opinion in law. The argument that if unbridled power were companyferred the Constitution companyld be subverted or destroyed is number supported by actual experience in India. Mr. Seervai emphasised that since 1951 when Shankari Prasad case recognised unlimited power of amendment till Golak Nath case in 1967 the numbermal democratic process of the departments of the State functioned as provided by the Constitution. Elections have been held as provided by the Constitution. If any body or organised party were bent upon subverting our free Constitution, then even if there were numberpower of amendment, Parliament has powers which would enable such destruction to be brought about. Great and wide powers are companyferred for the governance of great sovereign companyntries and such powers cannot be withheld on the ground that they may be used externally or oppressively. Well settled principles of companystruction in interpreting Constitutions preclude limiting the language of the Constitution by political, juristic or social companycepts independently of the language of the Constitution to be interpreted. This Court in Deep Chand v. State of Uttar Pradesh and Ors. 1959 Supp. 2 S.C.R. 8 relied on the test laid down in Queen v. Burah 1878 5 I.A. 179 that the terms of the instrument by which affirmatively the powers are created, and by which they are negatively restricted are to be looked into. The Judicial Committee in Attorney General for Ontario v. Attorney General for Canada 1912 A.C. 571 tersely stated the legal principles as follows If the text is explicit the text is companyclusive, alike in what it directs and what it forbids. This is the golden rule of companystruction of a written Constitution. In Gopalan case 1950 S.C.R. 88 this Court was invited to read into the Constitution implications derived from the spirit of the Constitution. Kania, C.J. said that to strike down the law on an assumed principle of companystruction would be to place in the hands of the judiciary powers too great and too indefinite either for its own security or the protection of private rights. Kania, C.J. also said that a large and liberal interpretation should be given to the Constitution. That does number mean that a Court is free to stretch or pervert the language of the Constitution in the interest of any legal or Constitutional theory. This Court in Keshavan Madhavan Menon v. The State of Bombay 1951 S.C.R. 228 rejected the companytention that the spirit of the Constitution should be invoked in interpreting the Constitution. In Benoari Lal Sharma case 72 I.A. 57, the Privy Council reversed the judgment of the Federal Court observing that questions of jurisprudence or policy were number relevant to the companystruction of power companyferred in an affirmative language and number restricted in any negative terms. A Constitution is essentially a frame of government laying down governmental powers exercisable by the legislature, executive and the judiciary. Even so other provisions are included in the Constitution of a companyntry which provisions are companysidered by the framers of that Constitution to have such special importance that those should be included in the Constitution or organic law. Thus all provisions of the Constitution are essential and numberdistinction can be made between essential and number-essential features from the point of view of amendment unless the makers of the Constitution make it expressly clear in the Constitution itself. The Attorney General rightly said that if the positive power of amendment of this Constitution in Article 368 is restricted by raising the walls of essential features or companye of essential features, the clear intention of the Constituent Assembly will be nullified and that would make a mockery of the Constitution and that would lead to destruction of the Constitution by paving the way for extra Constitutional or revolutionary changes in the Constitution. The theory of implied and inherent limitations cannot be allowed to act as a boa companystrictor to the clear and unambiguous power of amendment. If there is numberexpress prohibition against amendment in Article 368 the ommission of any such restriction did number intend to impose any restriction. When certain restrictions are imposed it is number intended that other undefined restrictions should be imposed by implication. The general rule is number to import into statutes words which are number found there. Words are number to be added by implication into the language of a statute unless it is necessary to do so to give the paragraph sense and meaning in its companytext. If a matter is altogether omitted from statute it is number allowable to insert it by implication. Where the language of an Act is clear and explicit, effect is to be given to it whatever may be the companysequences. The words of the statute speak the intention of the legislature. Where the reading of a statute produces an intelligible result there is numberground for reading any words or changing any words according to what may be supposed intention of the legislature. If a statute is passed for the purpose of enabling something to be done but omits to mention in Terms some detail which is of great importance to the proper performance of the work which the statute has in companytemplation the companyrts are at liberty to infer that the statute by implication empowers the details to be carried out. The implication is to empower the authority to do that which is necessary in order to accomplish the ultimate object. The implication sought to be raised by Mr. Palkhivala is for the purpose of reading negative words into Article 368 to destroy the positive power to amend. The provisions of out Constitution in the light of historical background and special problems of the companyntry will show that numberprovision can be companysidered as number-essential. The Constitutionmakers did number think so. The Attorney General rightly companytended that numberone has the power or authority to say that any single provision is more essential than another or that the amending power under Article 368 does number operate on any provision on the ground of alleged essentiality when Article 368 provides amendment of this Constitution which obviously means the whole Constitution including every provision. In a Constitution different methods of amendment may be laid down depending upon the degree of importance attached to particular parts of the Constitution. Apart from the language of Article 368 the draft Constitution as it emerged through the Constitutuent Assembly shows that numberprovision of the Constitution was excepted from the amending power. The provisions for the purpose of amendment were divided into four categories. The first two categories are to be found in Article 368. Certain provisions require ratification by the requisite number of States as are mentioned in the proviso. Other provisions which do number fall within the proviso are amendable by a double majority provided there. The third category companysists of Articles 4, 169, 240 1 , paragraph 7 Schedule 5, and paragraph 21 Schedule 6. The fourth category companysists of provisions which were said by the Attorney General to companyfer enabling power on Parliament to change the provisions by by the expression unless Parliament otherwise provides or similar expression. He gave the examples which are Articles 73 2 , 100 3 , 105 3 , 118 2 , 120 2 , 125, 133 3 , 171 2 , 189 3 , 194 3 , 210 2 , 241 2 , 283 1 and 2 , 285 1 and 2 , 343 3 , 345, 348 1 . The character of the provisions which are amendable under the proviso to Article 368 itself shows that petitioners submission that essential features are unamendable is a baseless vision. Article 54 speaks of the method of election of the President. This may be changed. The manner or scale of representation of the different States in regard to the election of the President may also be changed. The executive power of the Union and the States may be changed. Chapter IV of Part V the Union Judiciary , Chapter V of Part VI the High Courts in the States are also mentioned in Article 368 as liable to be changed. Article 141 may also be changed. Chapter I of Part XI and the Seventh Schedule legislative relations between Union and the States may be changed. The representation of the States in Parliament Articles 80 and 81 may be changed. The number of representation may be increased or reduced. The method of election of such representatives as Parliament may by law prescribe and the number of the members of the House of the People may be increased or reduced. The method of election to the House of People may be changed. Finally the provisions of Article 368 itself, which is the most important part of the Constitution may be changed. To find out essential or number-essential features is an exercise in imponderables. When the Constitution does number make any distinction between essential and number-essential features it is incomprehensible as to how such a distinction can be made. Again, the question arises as to who will make such a distinction. Both aspects expose the egregious character of inherent and implied limitations as to essential features or companye of essential features of the Constitution being unamendable. Who is to judge what the essential features are ? On what touchstone are the essential features to be measured? Is there any yardstick by which it can be gauged ? How much is essential and how much is number essential? How can the essential features or the companye of the essential features be determined? If there are numberindications in the Constitution as to what the essential features are the task of amendment of the Constitution becomes an unpredictable and indeterminate task. There must be an objective data and standard by which it can be predicated as to what is essential and what is number essential. If Parliament cannot judge these features Parliament cannot, amend the Constitution. If, on the other hand, amendments are carried out by Parliament the petitioner companytends that eventually companyrt will find out as to whether the amendment violates or abridges essential features or the companye of essential features. In the ultimate analysis it is the Court which will pronounce on the amendment as to whether it is permissible or number. This companystruction will have the effect of robbing Parliament of the power of amendment and reposing the final power of expressing validity of amendment in the companyrts. Mr. Palkhivala said that though the essential features companyld be amended the companye of essential features companyld number be amended. He said that there was numberesoteric test to find out what is essential and what is number essential and if numberprecise definition companyld be given that was numberreason to hold that the essential features and the companye of essential features companyld be amended. It was said that the appreciation of the trained judicial mind is the only way to find out what essential features are. Mr. Seervai rightly companytended that there is numberfoundation for the analogy that just as Judges test reasonableness in law, similarly the judicial mind will find out the essential features on the test of, reasonableness. Reasonableness in law is treated as an objective criterion because reason inheres in man as rational being. The citizen whose rights are affected applies reason and when he assails a law he possesses a standard by which he can persuade the Court that the law is unreasonable. The legislature which makes a law has the standard of reasonableness and has the further qualification to apply the standard because of familiarity with the needs, desires and the wants of the people whom the legislature represents. As regards the Judge number only does he share the reasonableness of the reasonable man but his trained mind enables him to see certain aspects clearly. The process of judicial review of legislation as laid down by Courts is that the Court will start with the presumption that laws enacted are reasonable. The objective standard is reasonableness. That is why in the law of companytract reasonable price is to be ascertained by the Courts. In the law of torts the Courts find out what reasonable care is. In the law of property reasonable companyduct is found out by the Courts to avoid evil companysequences. Reasonableness is to be judged with reference to the right which is restricted when Article 19 is companysidered. The American Courts evolved a test of reasonableness by the doctrine of substantive due process which means number that the law is unreasonable but that on political, social and economic grounds the majority of Judges companysider that the law ought number be permitted to be made. The crucial point is that in companytradistinction to the American Constitution where rights are companyched in wide general terms leaving it to the Courts to evolve necessary limitations our Constitution limited it by precise words of limitation as for example in Articles 19 and 21. In Article 21 the Constitution-makers substituted procedure established by law for the words due process of law. The reason for the change was that the procedure established by law was specific. The framers of the Constitution negatived the vague undefinite reasonableness of laws on political, social and economic grounds. In Gopalan case due process was rejected, by clearly limiting the rights acquired and by eliminating the indefinite due process. The Constitution makers freed judicial review of subjective determination. Due process as a test of invalidity of law was deliberately withheld or denied. Courts are number companycerned with the wisdom or policy of legislation. The Courts are equally number companycerned with the wisdom and policy of amendments to the Constitution. Reliance was placed by Mr. Palkhivala on Ridge v. Baldwin 1964 A.C. 40 where it is said that opinions that natural justice is so vague as to be practically meaningless, are tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does number exist. In the same case it was said that the idea of negligence is equally insusceptible or exact definition, but what a reasonable man would regard as fair procedure in particular circumstances and what he would regard as negligence in particular circumstances are equally capable of serving as tests in law. Extracting those observations it was said by Mr. Palkhivala that though the border-line between essential features and number-essential features companyld number be stated or it was number possible to specify exhautively the amendment which companyld be invalid on that principle yet there was numberreason why the principle of inherent and implied limitations to amend our Constitution should number be accepted. Inherent and implied limitations cannot originate in an oracle when the Constitution does number companytain any express prohibition against amending any provision. When Article 368 speaks of changes in the provisions of the Constitution as are set out in Clauses a to d of the proviso it is manifest that the makers of the Constitution expressed their intention with unerring accuracy that features which can broadly be described as federal features, and from that point of view Essential features companyld be amended. In the face of these express provisions it is impossible to hold that the Constitution does number companytemplate an amendment of the so called essential features of the Constitution. The proviso companyfers that power with relation to the judiciary, the executive and the legislature, numbere of which companyld be said to be inessential. Indeed it is difficult to imagine that the Constitution companytained any provision which was inessential. It need be hardly said that amendment number only means alteration, addition or repeal of provision but also deletion of some part, partial repeal and addition of a new part. It was said that if our Parliamentary system was changed to a Presidential system it would be amending the companye of our Constitution. But such a change is permissible under Article 368. Whether the people would adopt such an amendment is a different matter and does number fall for companysideration here. The companye of the federal form of Government in our companyntry is greater power in the Union Parliament than States for preserving the integrity of the companyntry. There can be changes by having a companyfederation or by companyferring greater power on the Centre. Those companytentions about unamendability of essential features do number take into companysideration that the extent and character of any change in the provisions of the Constitution is to be determined by legislatures as amending bodies under Article 368 and as representatives of the people in a democracy and it is number the function of the Courts to make any such determination. Mr. Palkhivala companytends that the Constitution 24th Amendment Act is unConstitutional because Parliament cannot exceed the alleged implied and inherent limitations on the amending power as it stood before the 24th Amendment. The 24th Amendment has substituted the marginal numbere Power of Parliament to amend the Constitution and procedure therefor for the original numbere procedure for amendment of the Constitution. This change is due to the fact that according to the leading majority judgment in Golak Nath case the unamended Article dealt only with the procedure for amendment and that the power of amendment was in the residuary power of legislation. The 24th Amendment has declared that the power to amend the Constitution is in Article That was the view of this Court in earlier decisions. That was the minority view in Golak Nath case. By amendment that view has become the Constitutional mandate. The other change as a result of the 24th Amendment is that Parliament may in the exercise of its companystituent power amend in place of words amendment of this Constitution may be initiated. The reasons for this change are to give effect to the decisions of this Court in Shankari Prasad case which in companysidering the validity of the First Amendment recognised and affirmed the vital distinction between companystituent power and legislative power and decided that the word law in Article 13 2 applied to the exercise of legislative power and did number apply to an amendment of the Constitution. In Sajjan Singh case the same distinction was upheld by the majority of this Court. In Golak Nath case the majority and the companycurring judgment denied the distinction between legislative and companystituent power and held that Article 13 2 applied to an amendment of the Constitution under Article 368 because there was numberdistinction between legislative and companystituent power. As a companysequence the leading majority judgment in Golak Nath case held that Parliament companyld number amend fundamental rights. The dissenting judgments in Golak Nath case upheld the vital distinction between legislative and companystituent powers and held that the decision in Shankari Prasad case and the majority decision in Sajjan Singh case were companyrect and that Parliament had power to amend the fundamental rights since an amendment of the Constitution was number law within the meaning of Article 13 2 . These features give the reason why the expression Parliament may in the exercise of companystituent power was introduced by the 24th Amendment. Parliament took numberice of two companyflicting views and the unamended Article 368. Parliament took numberice of the preponderating judicial opinion in favour of the view that Article 368 companytained the power of amendment and that power was a companystituent power. Wanchoo, J. held that the power under Article 368 is companystituent power to change the fundamental law, that is to say the Constitution. The companystituent power under the Constitution belonged to Parliament because the Constitution gave it. The Amendment made explicit what the judgment in Shankari Prasad case and the majority judgment in Sajjan Singh case and the dissenting judgment in Golak Nath case said, namely that Parliament has the companystituent power to amend the Constitution. The unamended Article used the words An amendment of this Constitution. The 24th Amendment used the words Parliament mayamend by way of addition, variation or repeal any provision of this Constitution. This has been done because the leading majority judgment in Golak Nath case expressed the view that there is companysiderable force in the argument that the expression amendment in Article 368 has a positive and negative companytent in exercise of which 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 effect. This observation in Golak Nath case raised a doubt as to the meaning of the word amendment. The 24th Amendment has expressly clarified that doubt. The leading majority judgment and the companycurring judgment in Golak Nath case both held that the fundamental rights companyld number be amended by Parliament. The leading majority judgment with reference to the meaning of the word amendment and without deciding the matter observed that there was great force in the argument that certain fundamental features e.g. the companycept of federalism, the institutions of the President and the Parliamentary executive companyld number be abolished by amendment. Shankari Prasad case, Sajjan Singh case and the dissenting minority judgment in Golak Nath case took the view that every provision of the Constitution companyld be amended in exercise of companystituent power. As a necessary companyollary, the 24th Amendment excludes the operation of Article 13 by amending Article 13 by a new Sub-article 4 that numberhing in Article 13 shall apply to any amendment of this Constitution under Article 368. The amendment of Article 13 by an insertion of Sub-article 4 is also reinforced by the opening words introduced in Article 368 by the 24th Amendment, viz., numberwithstanding anything companytained in this Constitution, which would certainly exclude Article 13. The Constitution 24th Amendment Act raises three aspects. First, does the word amend include abrogation or repeal of the whole Constitution? Does amendment mean that there is some feature of the Constitution which cannot be changed. Secondly, what light does the proviso to Article 368 throw on the nature of the amending power and on the doctrine of inherent and implied limitations on the amending power that essential features of the Constitution cannot be damaged or destroyed. Thirdly, does Clause e of the proviso to Article 368 enable Parliament and the requisite majority of the States to increase the power of amendment that was companyferred by Article 368. Article 368 in the unamended form companytained power as well as self executing procedure which if followed by the prescribed authorities would result in an amendment of the Constitution. Both the Attorney General and Mr. Seervai rightly said that the words Constitution shall stand amended in Article 368 will exclude a simple repeal that is without substituting anything in place of the repealed Constitution. If the Constitution were totally repealed and a vacuum was created it companyld number be said that the Constitution stands amended. The Constitution means the mode in which a State is companystituted or organised specially as to the location of sovereign power. The Constitution also means the system or body of fundamental principles according to which the nation, State and body politic is companystituted and governed. In the case of a written Constitution the Constitution is more fundamental than any particular law and companytains a principle with which all legislation must be in harmony. Therefore, an amendment of the Constitution is an amendment of something which provides a system according to which a State or nation is governed. An amendment of the Constitution is to make fundamental changes in the Constitution. Fundamental or basic principles can be changed. There can be radical change in the Constitution like introducing a Presidential system of government for a cabinet system or a unitary system for a federal system. But such amendment would in its wake bring all companysequential changes for the smooth working of the new system. However radical the change the amendment must provide for the mode in which the State is companystituted or organised. The question which was often put by Mr. Palkhivala drawing a panorama of a totalitarian State in place of the existing Constitution can be simply answered by saying that the words The Constitution shall stand amended indicate that the Constitution of India is being referred to. The power of amendment is unlimited so long as the result is an amended Constitution, that is to say, an organic instrument which provides for the making interpretation and implementation of law. The theory of unamendability of so called essential features is unmeritorious in the face of express provisions in Article 368 particularly in Clauses a to d of the proviso. Clauses a to d relate to 66 Articles dealing with some of the most important features of the Constitution. Those Articles relate to the judiciary, the legislature and the executive. The legislative relations between the Union and the States and the distribution of legislative power between them are all within the ambit of amendment. The question which was raised by Mr. Palkhivala as to whether under proviso e to the unamended Article 368 the power of amendment companyld be increased is answered in the affirmative. The reasons broadly stated are three. First, under Article 368 proviso e any limitation on the power of amendment alleged to be found in any other Article of the Constitution can be removed. The full magnitude of the power of amendment which would have existed but for the limitation companyld be restored and the power of amendment increase. In Golak Nath case the majority view was that Article 13 2 operated as a limitation on the power of amendment. The 24th Amendment took numbere of that decision and removed all doubts by amending Article 13 2 and providing a new Sub-article 4 there and also by amending Article 368 to the effect that Article 13 2 shall number apply to any amendment of the Constitution. If the express limitation which had been judicially held to companystitute a bar to the amendment of fundamental rights companyld be removed by amending Article 368 under Clause e to the proviso any other alleged implied limitation can be similarly removed. Secondly, judicial decisions show that by amending the Article companyferring the power of amendment a greater power to amend the Constitution can be obtained than was companyferred by the original Article. In Ryan case 1935 Irish Report 170 all the learned Judges excepting the Chief Justice held that by first amending Section 50 of the Irish Constitution which companyferred the power of amendment subject to certain restrictions thereon so as to remove the restrictions companytained in that section, the Irish Parliament effectively increased its power in the sense that an amendment companyld be made which those express restrictions would have prohibited. Again in Ranasinghe case 1965 A.C. 172 it was said that a legislature has numberpower to ignore the companyditions of law making that are imposed by the instrument which regulates its power. This restriction created by the instrument exists independently of the question whether the legislature is sovereign or whether the Constitution is uncontrolled. The Judicial Committee held that 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 companyplied with and the alteration or amendment may include the change or abolition of those very provision. Thus a companytrolled Constitution can be companyverted into an uncontrolled Constitution vastly increasing the power of amendment. Thirdly, the power to amend the amending Article must include the power to add, alter or repeal any part of that Article and there is numberreason why the addition cannot companyfer a power of amendment which the authorities named in Article 368 did number possess. By the exercise of the amending power provision can be made which can increase the powers of Parliament or increase the powers of the States. Again, by amendment future amendments can be made more difficult. The picture drawn by Mr. Palkhivala that a future amendment would be rendered impossible either by absolutely forbidding amendment or by prescribing an impractically large majority does number present any legal impediment to such an amendment. The safeguard against such action is external. The companytingency of any such amendment being proposed and accepted is extremely remote because such an amendment might sow the seeds of revolution which would be the only way to bring about the change in the Constitution. The Solicitor General rightly said that the effect of the amendment is that it shall stand amended in accordance with the terms of the Bill. The product is number required to be this Constitution. It will number be identically the old Constitution. It will be a changed or amended Constitution and its resemblance will depend on the extent of the change. More rigid process like referendum or initiative or greater majority or ratification by a larger number of States might be introduced by amendment. It is important to numbere that proviso e to Article 368, namely, the power to amend Article 368 is unlike perhaps some Constitutions which were before the Constituent Assembly when our Constitution was framed. Neither the American number the Australian Constitution provided for any power to amend the amending provision itself. The Attorney General rightly companytended that this forcefully expresses a clear and deliberate intention of the Constituent Assembly that apart from providing for a less rigid amending formula the Constituent Assembly took care to avoid the companytroversy in America as to whether express limitation on Article V of the American Constitution itself regarding equal suffrage of the States in the Senate companyld be amended or the companytroversy in Australia as to whether Section 128 of the Australian Constitution itself companyld be amended as there was numberexpress limitation on such amendment. The Constituent Assembly provided in Clause e to Article 368 express and specific power of amendment of Article 368 itself. The amplitude of the amending power in our Constitution stands in bold relief in companyparison with Article V of the American Constitution, Section 128 of the Australian Constitution and Section 50 of the Irish Constitution numbere of which companyfers such a power. Dr. Wynes in his Legislative Powers in Australia 4th Ed. p. 505 expresses the view that though Section 128 is negative in form but the power of amendment extends to alteration of this Constitution and this power is implied by its terms. Dr. Wynes also states that by the companysent of the States the last part of Section 128 companyld be amended. This is only to illustrate as to how other Constitutions are understood by jurists in their companyntries. Our Article 368 companytains numberexpress limitation on the power of amendment. The provision of Clause e in the proviso to Article 368 is number limited to federal features. The words amendment of this Constitution in Section 50 of the Irish Constitution which formed the subject of decision in Ryan case 1935 Irish Report 170 were read by Kennedy, C.J. in his dissenting view to mean that if power to amend Section 50 itself was intended to be given the framers of the Constitution would have said so. Mr. Palkhivala relied on this dissenting view. Other learned Judges who formed the majority held that the words amendment of this Constitution companyferred power to amend that Section 50 as well. If numberintention to amend that section itself is expressed there is numberhing which can be implied was the dissent. Therefore, it would follow even according to the dissent that numberimplied limitations on the power of amendment can be read in Section 50 if an express power of amendment has been companyferred by the Constitution. Mr. Palkhivala companytended that the people reserved the power to themselves to amend the essential features of the Constitution and if any such amendment were to be made it should be referred to the people by referendum. It was said that the Constitution makers did number intend that essential features should be damaged or destroyed even by the people, and therefore, the Constitution did number provide for referendum. The other companytention on behalf of the petitioner was that referendum was number provided for because it might have been difficult to have the Constitution accepted on those terms. The second view would number eliminate the introduction of referendum as a method of amendment. If a referendum were introduced by an amendment people would have companyplete power to deal with essential features. The other question would be as to whether the Preamble and the fundamental rights would be a limitation on the power of the people. On behalf of the petitioner it was said that it was number necessary to decide the questions. Both the Attorney General and Mr. Seervai companyrectly said that the submissions made on behalf of the petitioner indicated that if essential features companyld be amended by the people the very fact that the Constituent Assembly did number include referendum as one of the methods of amendment and that the Constitution makers excluded numberpart of the Constitution from amendment established that the amendment of a written Constitution can be legally done only by the method prescribed by the Constitution. If the method of referendum be adopted for purpose of amendment as suggested by Mr. Palkhivala that would be extra Constitutional or revolutionary. The amending body to amend the Constitution represents the will of the people. Therefore, as long as Article 368 may be amended under proviso e any amendment of the Constitution by recourse to referendum would be revolutionary. Mr. Palkhivala on behalf of the petitioner did number rely on the majority decision in Golak Nath case that the fundamental rights companyld be abridged or taken away only by companyvening a Constituent Assembly, but based his argument on a theory of legal sovereignty of the people. The Constitution is binding on all the organs of government as well as on the people. The Attorney General rightly submitted that the companycept of popular sovereignty is well settled in parliamentary democracy and it means that the people express their will through their representatives elected by them at the general election as the amending body prescribed by the Constitution. Are fundamental rights unamendable? Mr. Palkhivala companytended that apart from Article 13 2 fundamental rights are based on Universal Declaration of Human Rights and are natural rights, and, therefore, they are outside the scope of amendment. In Golak Nath case the majority view declined to pronounce any opinion on alleged essential features other than fundamental rights. The companycurring view was that fundamental rights were unamendable because they were fundamental. Wanchoo, J. for himself and two other learned Judges and Ramaswami, J. rightly rejected the theory of implied limitations. The three reasons given by Wanchoo, J. are these. First, the doctrine of essential and number-essential features would introduce uncertainty. Secondly, companystituent power of amendment does number admit of any impediment of implied restrictions. Thirdly, because there is numberexpress limitation there can be numberimplied limitation. Mr. Seervai companyrectly companytended that there is intrinsic evidence in the provisions of Part III itself that our Constitution does number adopt the theory that fundamental rights are natural rights or moral rights which every human being is at all times to have simply because of the fact that as opposed to other things he is rational and moral. The language of Article 13 2 shows that these rights are companyferred by the people of India under the Constitution and they are such rights as the people thought fit to be in the organised society or State which they were creating. These rights did number belong to the people of India before 26 January 1950 and would number have been claimed by them. Article 19 embodies valuable rights. Rights under Article 19 are limited only to citizens. Foreigners are human beings but they are number given fundamental rights because these rights are companyferred only on citizens as citizens. Article 33 enacts that Parliament may by law modify rights companyferred by Part III in their application to Armed Forces. Parliament may restrict or abrogate any of the rights companyferred by Part III so as to ensure the proper discharge of the duties of the Armed Forces and the maintenance of discipline among them. Therefore, Article 33 shows that citizens can be denied some of these rights. If these are natural rights these cannot be abrogated. Article 34 shows that Parliament may by law indemnify any person in respect of any act done by him in companynection with the maintenance or restoration of order in any area where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area. Article 34 again shows restriction on rights companyferred by Part III while martial law is in force in any area. The dominant companycept is social good. Where there is numberrestraint the society fails. Articles 352 and 358 also illustrate as to how while the proclamation of emergency is in operation provisions of Article 19 are suspended during emergency. The framers of the Constitution emphasised the social companytent of those rights. The basic companycept of fundamental right is therefore a social one and it has a social function. These rights are companyferred by the Constitution. The nature of restriction on fundamental rights shows that there is numberhing natural about those rights. The restrictions companytemplated under Article 19 2 with regard to freedom of speech are essential partis of a well organised developed society. One must number look at location of power but one should see how it acts. The restrictions companytemplated in Article 19 are basically social and political. Friendly relations with foreign states illustrate the political aspect of restrictions. There are similar restrictions on right to move freely. The protection of Scheduled Tribes is also reasonable in the interest of society. This Court in Basheshar Nath v. C.I.T. Delhi 1959 Supp. 1. C.R. 528 said that there are numbernatural rights under our Constitution and natural rights played numberpart in the formulation of the provisions therein. Articles 25 and 26 by their opening words show that the right to the freedom of religion is subject to the paramount interest of society and there is numberpart of the right however important to devotee which cannot and in many cases have number been denied in civilised society. Subba Rao, C.J. in Golak Nath case equated fundamental rights with natural rights or promodial rights. The companycurring majority view in Golak Nath case, however, said that there is numbernatural right in property and natural rights embrace the activity outside the status of citizen. Fundamental rights as both the Attorney General and Mr. Seervai rightly companytended are given by the Constitution, and, therefore, they can be abridged or taken away by the people themselves acting as an organised society in a State by the representatives of the people by means of the amending process laid down in the Constitution itself. There are many Articles in Part III of our Constitution which cannot in any event be equated with any fundamental right in the sense of natural right. To illustrate Article 17 deals with abolition of untouchability. Article 18 speaks of abolition of titles. Article 20 deals with protection in respect of companyviction for offences. Article 23 refers to prohibition of traffic in human beings and forced labour. Article 24 deals with prohibition of employment of children in factories, etc. Article 27 speaks of freedom as to liability for taxes levied for promotion of any particular religion. Article 28 companytemplates freedom as to attendance at religious instruction or religious worship in certain educational institutions. Article 29 deals with protection of interests of minorities. Article 31 2 prior to the Constitution 25th Amendment Act spoke of payment of just equivalent for acquisition or requisition of property. Article 31 4 deals with legislation pending at the companymencement of the Constitution. Articles 31 5 and 6 save certain types of laws. Article 31A saves laws providing for acquisition of estates etc. Article 32 companyfers right to move the Supreme Court. The Constitution is the higher law and it attains a form which makes possible the attribution to it of an entirely new set of validity, the validity of a statute emanating from the sovereign people. Invested with statutory form and implemented by judicial review higher law becomes juristically the most fruitful for people. There is numberhigher law above the Constitution. Mr. Palkhivala relied on an Article by Conrad on Limitation of Amendment Procedure and the Constitutional Power. The writer refers to the West German Provincial Constitution which has expressly excluded basic rights from amendment. If that is so the question of basic rights being unamendable on the basis of higher law or natural law does number arise. The companyclusion of the writer is that whereas the American companyrts did number companysider declaring a Constitutional numberm void because of a companyflict with higher law the German Jurisprudence broadened the companycept of judicial review by recourse to natural law. The post-war Constitution of West Germany distinguished between superior and inferior Constitutional numberms in so far as certain numberms are number subject to amendment whereas others are. The Attorney General relied on Friedmann Legal Theory 5th Ed. on pp. 350 seq. to show that there was a revival of natural law theory in companytemporary German Legal Philosophy. This theory of natural law springs from the reaction against the excess of the Nazi regime. The view of Friedmann is that natural law may disguise to pose itself the companyflict between the values which is a problem of companystant and painful adjustment between companypeting interests, purposes and policies. This companyflict is resolved by ethical or political evolution which finds place in legislative policies and also on the impact of changing ideas on the growth of law. Fundamental rights are social rights companyferred by the Constitution. There is numberlaw above the Constitution. The Constitution does number recognise any type of law as natural law. Natural rights are summed up under the formula which became companymon during the Puritan Revolution namely life, liberty and property. The theory of evolution of positive numberms by supra-positive law as distinguished from superior positive law had important companysequences in the post-war revival of natural law in some companyntries particularly Germany. Most of the German Constitutions from the early 19th Century to the Nazi Regime did number provide for judicial review. Under the Weimar regime, the legislature reigned supreme and legal positivism was brought to an extreme. The re-action after World War II was characterised by decreases of legislative power matched by an increase of judicial power. It is in this companytext that Conrads writing on which Mr. Palkhivala relied is to be understood. The entire suggestion is that numberms companyld number only be judged by a superior law namely Constitutional law but by natural law to broaden the scope of judicial review. The acceptance of the doctrine of judicial review has been companysidered as a progress in Constitutional theory made between Declaration of Independence and the Federal Convention at Philadelphia. On the one hand there is a school of extreme natural law philosophers who claim that a natural order establishes that private capitalism is good and socialism is bad. On the other hand, the more extreme versions of totalitarian legal philosophy deny the basic value of the human personality as such. Outside these extremes, there is a far greater degree of companymon aspirations. The basic autonomy and dignity of human personality is the moral foundation of the teaching of modern natural law philosophers, like Maritain. It is in this companytext that our fundamental rights and Directive Principles are to be read as having in the ultimate analysis a companymon good. The Directive Principles do number companystitute a set of subsidiary principles to fundamental rights of individuals. The Directive Principles embody the set of social principles to shape fundamental rights to grant a freer scope to the large scale welfare activities of the State. Therefore, it will be wrong to equate fundamental rights as natural, inalienable, primodial rights which are beyond the reach of the amendment of the Constitution. It is in this companytext that this Court in Basheshar Nath v. C.I.T. Delhi 1959 Supp. 1 S.C.R. 528 said that the doctrine of natural rights is numberhing but a foundation of shifting sand. Mr. Seervai rightly said that if the power of amendment of the Constitution is company extensive with the power of the judiciary to invalidate laws, the democratic process and the companyordinate nature of the great departments of the State are maintained. The democratic process is maintained because the will of the people to secure the necessary power to enact laws by amendment of the Constitution is number defeated. The democratic process is also respected because when the judiciary strikes down a law on the ground of lack of power, or on the ground of violating a limitation on power, it is the duty of the legislature to accept that position, but if it is desired to pass the same law by acquiring the necessary power, an amendment validly enacted enables the legislatures to do so and the democratic will to prevail. This process harmonises with the theory of our Constitution that the three great departments of the State, the legislature, the judiciary and the executive are companyordinate and that numbere is superior to the other. The numbermal interaction of enactment of law by the legislation, of interpretation by the companyrts, and of the amendment of the Constitution by the legislature, go on as they were intended to go on. If the power of amendment does number companytain any limitation and if this power is denied by reading into the Constitution inherent limitations to extinguish the validity of all amendments on the principles of essential features of the Constitution which are undefined and untermed, the companyrts will have to lay down a new Constitution. It is said that the frame of the Government cannot be changed or abrogated by amendment of the Constitution. There is before us numberaspect of abrogation of the form of Government of the changes apprehended by the petitioners like the abrogation of the judiciary or extending the life of Parliament. The problems of the times and the solutions of those problems are companysidered at the time of framing the Constitution. But those who frame the Constitution also know that new and unforseen problems may emerge, that problems once companysidered important may lose their importance, because priorities have changed that solutions to problems once companysidered right and inevitable are shown to be wrong or to require companysiderable modification that judicial interpretation may rob certain provisions of their intended effect that public opinion may shift from one philosophy of government to another. Changes in the Constitution are thus actuated by a sense of duty to the people to help them get what they want out of life. There is numberdestiny of man in whose service some men can rightfully companytrol others there are only the desires and performances and ambitions that men actually have. The duty to maximise happiness means that it is easier to give people what they want than to make them want what you can easily give. The framers of the Constitution did number put any limitation on the amending power because the end of a Constitution is the safety, the greatness and well being of the people. Changes in the Constitution serve these great ends and carry out the real purposes of the Constitution. The way in which the doctrine of inherent and implied limitations was invoked by Mr. Palkhivala in interpreting the Constitution was that the test of power under the Constitution must be to ascertain the worst that can be done in exercise of such power. Mr. Palkhivala submitted that if unbridled power of amendment were allowed the basic features of our Constitution, namely, the republican and or democratic form of government and fundamental Tights companyld be destroyed and India companyld be companyverted into a totalitarian dictatorship. The Court was invited to take into account the companysequences of the kind described. Mr. Palkhivala suggested that a wide power of amendment would lead to borrow his words to the liquidation of our Constitution. The Attorney General rightly said that the unambiguous meaning of amendment companyld number be destroyed to nurse the theory of implied limitations. He also said that the live distinction between power and exercise of power is subject to popular will and popular companytrol. The theory of implied and inherent limitation was a repudiation of democratic process. The Attorney General and Mr. Seervai also rightly said that the approach of the petitioner to the power of amendment companytained in Article 368 of the Constitution ignores the fact that the object of the Constitution is to provide for departments of States like the judiciary, the legislature and the executive for the governance of a companyntry. Apart from the essential functions of defence against external aggression and of maintenance of internal order a modern State is organised to secure the welfare of the people. Parliament and State legislatures are elected on adult universal suffrage. The companyntry is governed by the Cabinet system of Government with ministries responsible to the Houses of Parliament and to the Legislative Assemblies. In a democracy the determination of the right policies to be pursued can only be determined by a majority vote cast at election and then by a majority of the elected representatives in the legislature. Democracy proceeds on the faith in the capacity to elect their representatives, and faith in the representatives to represent the people. The argument that the Constitution of India companyld be subverted or destroyed might have hortative appeal but it is number supportable by the actual experience in our companyntry or in any companyntry. The two basic postulates in democracy are faith in human reason and faith in Human nature. There is numberhigher faith than faith in democratic process. Democracy on adult suffrage is a great experiment in our companyntry. The roots of our democracy are in the companyntry and faith in the companymon man. That is how Mr. Seervai said that between 1951 when this Court recognised in Sankari Prasad case unlimited power of amendment till Golak Nath decision in 1967 the numbermal democratic process in our companyntry functioned as provided by the Constitution. The principle underlying the theory of taking companysequences into account is best expressed in Vacher Sons v. London Society of Compositors 1913 A.C. 107, where it was said that if any particular companystruction in companystruing the words of a statute was susceptible to more than one meaning, it was legitimate to companysider the companysequences which would result from any particular companystruction. The reason is that there are many things which the legislation is presumed number to have intended to bring about and therefore a companystruction which would number lead to any of these things should be preferred to one which would lead to one or more of them. The doctrine of companysequences has numberapplication in companystruing a grant of power companyferred by a Constitution. In companysidering a grant of power the largest meaning should be given to the words at the power in order to effectuate it fully. The two exceptions to this rule are these. First, in order to reconcile powers exclusively companyferred on different legislatures, a narrower meaning can be given to one of the powers in order that both may operate as fully as is possible. See C.P. Berar case 1938 F.C.R. 18 and Province of Madras v. Governor General 72 I.A. 93 . Second, technical terms must be given their technical meaning even though it is narrower than the ordinary or popular meaning. The State of Madras v. Gannon Dunkerley Co. Madras Ltd. 1959 S.C.R. 379. In our Constitution powers are divided between federation and the States. An attempt must be made to find the power in some entry or other because it must be assumed that numberpower was intended to be left out. The theory of companysequences is misconstrued if it is taken to mean that companysiderations of policy, wisdom and social or economic policies are included in the theory of companysequences. In Vacher case it was said that the judicial tribunal, has numberhing to do with the policy of any Act and the only duty of the Court is to expound the language of the Act in accordance with the settled rules of companystruction. In Attorney General for Ontario v. Attorney General for Dominions 1912 A.C. 571 the Privy Council refused to read an implication in the Constitution of Canada that there was numberpower to refer a matter for the advisory opinion of the highest Court because advisory opinions were prejudicial to the companyrect administration of justice and were embarrassing to Judges themselves who pronounced them, for humanly speaking it would be difficult for them to hear a case on merits if they have already expressed an opinion. The Privy Council rejected this argument and said that so far as it was a matter of wisdom and policy it was for the determination of Parliament. In Bank of Toronto v. Lambe 1887 12 A.C. 575 the Privy Council was invited to hold that the legislature of a province companyld number levy a tax on capital stock of the Bank, for that power might be exercised to destroy the Bank altogether. The Privy Council observed that if on a true companystruction of Section 92 of the British North America Act the power fell within the section, it would be wrong to deny its existence because by some possibility it might be abused. The absurdity of the test of the worst that can be done in exercise of power is demonstrated by the judgment of Chief Justice Taft in Gross-man 69 L.Ed. 527 where it was said that if those who were in separate companytrol of each of the three branches of Government were bent upon defeating the action of the other, numbermal operations of Government would companye to a halt and companyld be paralysed. Normal operations of the Government assume that all three branches must companyoperate if Government is to go on. Where the meaning is plain the Court must give effect to it even if it companysiders that such a meaning would produce unreasonable result. In the Bihar Land Reforms case 1952 C.R. 889 Mahajan, J. said that agrarian laws enacted by the legislature and protected by Articles 31 3 and 4 provided companypensation which might appear to the Court unjust and inequitable. But the Court gave effect to Articles 31 3 and 4 because the results were intended and the remedy for the injustice lay with the legislature and number with the Court. The companystruction to avoid absurdity must be used with great caution. In Grundt case 1948 Ch. 145 it was said in choosing between two possible meanings of ambiguouos words, the absurdity or the numberabsurdity of one companyclusion as companypared with another might be of assistance and in any event was number to be applied as to result in twisting the language into a meaning which it companyld number bear. The Attorney General rightly submitted that if power is companyferred which is in clear and unambiguous language and does number admit of more than one companystruction there can be numberscope for narrowing the clear meaning and width of the power by companysidering the companysequences of the exercise of the power and by so reading down the power. The question is number what may be supposed to be intended but what has been said. See Ross v. Illison 1930 A.C. 1. The Supreme Court in Damselle Howard v. Illinois Central Rail Road Co. 207 U.S. 463 said that you cannot destroy in order to save or save in order to destroy. The real import is that a new law cannot be made by companystruction. The question is one of intention. A meaning cannot be different which it cannot reasonably bear or will be inconsistent with the intention. The very basis of Parliamentary democracy is that the exercise of power is always subject to the popular will and popular companytrol. The petitioners theory of implied and inherent limitations is a repudiation of this democratic process. The underlying theory of democratic government is the right of a majority to embody their opinion in law subject to the limitations imposed by the Constitution, per Holmes, J. in Lochner v. New York 198 U.S. 45. In our Constitution Article 368 companytains numberexpress limitation on the amendment of any provision of the Constitution. Mr. Palkhivala relied on the amending provisions in the Constitution of America, Canada, Australia, Ireland and Ceylon and also decisions on the power of amendment in those companyntries in support of his submissions that a restricted meaning should be attributed to the word amendment and implied and inherent limitations should be read into the meaning and power of amendment. Mr. Palkhivala also relied on the opinion of Cooley in a Treatise on the Constitutional Limitations at pages 36-37 that a written Constitution is in every instance a limitation upon the powers of government in the hands of agents for there never was a written republican Constitution which delegated to functionaries all the latent powers which lie dormant in every nation, and are boundless in extern, and incapable of definition. This view of Cooley is number relevant to the amending power in Article V of the American Constitution. This view relates to the legislative power that a written Constitution is a limitation upon the powers of the Government, namely, the legislature, the executive and the judiciary. The other views of Cooley in Constitutional Limitations at pages 341-343, 345-348, 351-354 are these. First except where the Constitution has imposed limitations upon the legislative power it must be companysidered as practically absolute, whether it operates according to natural justice or number in any particular case. Second, in the absence of Constitutional restraint the legislative department of a State Government has exclusive and ample power and its utterance is the public policy of the State upon that subject, and the Courts are without power to read into the Constitution a restraint of the legislature with respect thereto. Third, if the Courts are number at liberty to declare statutes void because of their apparent injustice of impolicy, neither can they do so because they appear to the minds of the Judges to violate fundamental principles of republican Government, unless it shall be found that those principles are placed beyond legislative encroachment by the Constitution. The principles of republican government are number a set of inflexible rules, vital and active in the Constitution, though unexpressed, but they are subject to variation and modification from motives of policy and public necessity. Fourth, the Courts are number at liberty to declare an act void, because in their opinion it is opposed to a spirit supposed to pervade the Constitution, but number expressed in words. 1000. Mr. Palkhivala relied on the views of George Skinner published in 18 Michigan Law Review 1919-1920 pages 21-225 to build the theory of implied and inherent limitations. The views extracted are these. The power given by the Constitution cannot be companystrued to authorise a destruction of other powers in the same instrument. The essential form and character of the Government, being determined by the location and distribution of power, cannot be changed, only the exercise of governmental functions can be regulated. A somewhat different view of Skinner in the same Law Review is that it is number likely that the Supreme Court would put any limitations upon the power of Congress to propose amendments and in companystruing the Fifth Article it would be unwilling to say Congress had proposed an amendment which it did number deem necessary. The discretion is left entirely with Congress. 1001. The other view on which Mr. Palkhivala relied is of William L. Marbury published in 33 Harvard Law Review 1919-1920 at pp. 223-235. The views which Mr. Palkhivala extracted are that it may be safely premised that the power to amend the Constitution was number intended to include the power to destroy it. Marbury relies on Livermore v. Waite 102 Cal. 118 where it is stated that 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. 1002. There are other views of Marbury on which the Attorney General relied and which were number extracted by Mr. Palkhivala. Those views are that after excluding from the scope of its amending power in Article V of the American Constitution such amendments as take away legislative powers of the State there is still left a very broad field for its operation. All sorts of amendments might be adopted which would change the framework of the federal Government, the thing which the Constitution was created to establish, which would change the distribution of power among the various departments of the Government, place additional limitations upon them, or abolish old guarantees of civil liberty and establish new ones. 1003. The Attorney General also relied on the view of Frierson published in 33 Harvard Law Review pp. 659-666 as a reply to Marbury. Friersons view is that the security for the States was provided for by the provision for the necessity of ratification by threefourths of the States. The Constitution companymitted to Congress and number to the Courts the duty of determining what amendments were necessary. The rights of the States would certainly be safer in the hands of three-fourths of the States themselves. This is companysidered by the framers of the Constitution to ensure integrity of States. 1004. The Attorney General also relied on the view of McGovney published in Vol. 20 Columbia Law Review. McGovney points out a distinction between a political society or State on the one hand and governmental organs on the other to appreciate that Constitutional limitations are against governmental organs. The writers view is that an individual has numberlegal rights against a sovereign organised political society except what the society gives. The doctrine of national sovereignty means that people who made the existing distribution of powers between the federal and the State Governments may alter it. Amendment is left to legislatures because as a matter of companyvenience the legislatures generally express the will of the people. In the Constitution the people prescribe the manner in which they shall amend the Constitution. McGovney states that an amendment of a particular statute means usually it is a change germane to the subject matter of that statute. Any change in the Government of the nation is germane to the Constitution. Any change altering the dispositions of power would therefore be germane to the purposes of the instrument. McGovneys view is that it is clear that numberlimitation on the amending power can be found in this numberion of necessity for germaneness. 1005. The Attorney General also relied on an Article On the views of W.F. Dodd published in 30 Yale Law Journal p. 321 seq. and of H.W. Taft, published in 16 Virginia Law Review p. 647 seq. The view of Dodd is this. There are numberimplied limitations on the amending power. The Supreme Court in the National Prohibition cases rejected the arguments presented in favour of implied limitations. To narrow down the meaning of amendment or to adopt implied limitations would number only narrow down the use of the amending power but would also leave the question of amending power in each case to judicial decision without the guidance of any legal principle. Tafts view is that by reason of the Tenth Amendment which provided that the powers number delegated to the United States by the Constitution number prohibited by it to the States are reserved to the States respectively or to the people, the amending power in Article V of the American Constitution was number limited by the Tenth Amendment 1006. The question which has arisen on the Fifth Article of the American Constitution is whether there are implied limitations upon the power to amend. The two express limitations were these. First, numberamendment which may be made prior to 1808 shall in any manner effect the First and the Fourth clauses in the Ninth Section of the First Article. That Limitation became exhausted by passage of time. The second express limitation is that numberState without its companysent shall be deprived of its equal suffrage in the Senate. The express limitation is to safeguard the equal representation of the smaller States in the Senate. The limitation can only be changed by unanimous companysent of the States. 1007. The 18th Amendment was vigorously attacked in the National Prohibition Cases on the ground that it overstepped alleged implied limitations on the Constitution amending power. The arguments advanced were these. First, the 18th Amendment which introduced prohibition was number in fact an amendment for an amendment is an alteration or improvement of that which is already companytained in the Constitution and the term is number intended to include any addition of entirely new grants of power. Secondly, the amendment was number an amendment within the meaning of the Constitution because it is in its nature legislation and that an amendment of the Constitution can only affect the powers of government and cannot act directly upon the rights of individuals. Third, that the Constitution in all its parts looks to an indestructible nation companyposed of indestructible States. The power of amendment was given for the purpose of making alterations and improvements and any attempt to change the fundamental basis of the Union is beyond the power delegated by the Fifth Article. The decision in the National Prohibition Cases is that there is numberlimit on the power to amend the Constitution except that State may number without its companysent be deprived of its equal suffrage in the Senate. 1008. In Rhode Island v. Palmer 253 U.S. 350 the 18th Amendment was challenged to be number within the purview of Article V. The judgment in Rhode Island case was that the amendment was valid. In Rhode Island case the grounds of attack were that the amendment was legislative in character and an invasion of natural rights and an encroachment on the fundamental principles of dual sovereignty but the companytentions were overruled. 1009. In Hawke v. Smith 253 U.S. 221 a question arose as to whether the action of the General Assembly of Ohio ratifying the 18th Amendment known as National Prohibition companyld be referred to the electors of the State under the provisions of the State Constitution. It was held that these provisions of he State were inconsistent with the Constitution of the United States. The decision of the Court was unanimous. The two methods of ratification prescribed by Article V of the Constitution are by action of the legislatures of the three-fourths of the States or companyventions in the like number of States. The determination of the method of ratification is the exercise of a national power specifically granted by the Constitution. That power is companyferred upon Congress. Article V was held to be plain and to admit of numberdoubt in its interpretation. The choice of means of ratification was wisely withheld from companyflicting action in the several States. 1010. Again, in Lesser v. Garnett 258 U.S. 130 there was a suit to strike out the names of women from the register of voters on the ground that the State Constitution limited suffrage to men and that the 19th Amendment to the Federal Constitution was number validity adopted. The 19th Amendment stated that right of citizens to vote shall number be denied on account of sex. It was companytended that the amending power did number extend to that situation. The Supreme Court there rejected that companytention. The Supreme Court said that the function of a State legislature in ratifying the proposed amendment to the federal Constitution like the function of Congress in proposing the amendment is a federal function derived from the federal Constitution and it transcends any limitations sought to be imposed by the people of a State. 1011. In United States v. Sprague 282 U.S. 716 a companytention was advanced that the 10th Amendment recognised a distinction between powers reserved to the States and powers reserved to the people and that State legislatures were companypetent to delegate only the former to the National Government delegation of the latter required action of the people through companyventions in the several states. The 18th Amendment being of the latter character, the ratification by State legislatures was companytended to be invalid. The Supreme Court rejected the argument. It found the language of Article V too clear to admit of reading any exceptions into it by implication. 1012. The decisions in Rhode Island v. Palmer 253 U.S. 350, Hawke v. Smith 253 U.S. 221, Leser v. Garnett 258 U.S. 130 and United States v. Sprague 282 U.S. 716 are all authorities for the proposition that there is numberimplied limitation on the power to amend. The 18th Amendment was challenged on the ground that ordinary legislation companyld number be embodied in a Constitutional amendment and that Congress cannot Constitutionally propose any amendment which involves the exercise or relinquishment of the sovereign powers of a State. The 19th Amendment was attacked on the narrower ground that a State which had number ratified the amendment would be deprived of its equal suffrage in the Senate because its representatives in that body would be persons number of its choosing. The Supreme Court brushed aside these arguments as wholly unworthy of serious attention and held both the amendments valid. 1013. Mr. Palkhivala companytended the word amendment in Article 368 would take its companyour from the words change in the provisions occurring in the proviso. The American decisions illustrate how the Supreme Court companysistently rejected the attempts to limit the meanings of the word amend in Article V of their Constitution because of the reference to ratification by legislatures or companyventions. Where words are read in their companytext there is numberquestion of implication for companytext means parts that precede or follow any particular passage or text and fix its meaning. 1014. The rule of numberciitur a sociis means that where two or more words which are susceptible of analogous meaning are companypled together, they are understood to be used in their companynate sense. They take their companyour from each other, the meaning of the more general being restricted to a sense analogous to that of the less general. 1015. This rule has been found to have numberapplication to Article V of the American Constitution because companyventions and legislatures are both deliberative bodies and if an amendment can be submitted either to the legislatures of States or to companyventions at the absolute discretion of the Congress, it is difficult to say that the character of the amendment is in any way affected by the machinery by which the amendment is to be ratified. In Rhode Island case the companytention that an amendment of the Constitution should be ratified by companyventions and number by legislatures was rejected. In Sprague case the companytention that matters affecting the liberty of citizens companyld only be ratified by companyventions was number accepted and the Supreme Court refused to read any implication into Article V of the American Constitution. The Supreme Court said that in spite of the clear phraseology of Article V, the Court was asked to insert into it a limitation on the discretion companyferred on it by the Congress. The Supreme Court did number accept any implied limitation. Where the intention is clear there is numberroom for companystruction and numberexcuse for interpolation or addition. In Feigenspan v. Bodine 264 F. 186 it has been said when the people delegated the power of amendment to their representatives the power of amendment cannot be excluded in any way other than prescribed number by any instrumentality other than there designated. 1016. Mr. Palkhivala relied on some Canadian decisions the Initiative and Referendum case 1919 A.C. 935, Switzmen v. Elbling 1957 Canada Law Reports 285, Rex v. Hess 1949 4 Dominion Law Report 199 and Saumur v. City of Quebec and Attorney General of Quebec 1953 4 D.L.R. 641 and Chabot v. School Commissioners of Lamorandiere and Attorney General for Quebec 1958 12 D.L.R. 796, in support of three propositions. First, unlimited legislative jurisdiction of the Dominion Parliament in Canada is under inherent limitation by reason of the preamble to the British North America Act which states that the Constitution is similar in principle to the United Kingdom. Second, the Dominion legislature cannot detract from the basic rights of freedom of speech and political association which are available in the United Kingdom. Third, rights which find their source in natural law cannot be taken away by positive law. 1017. In the Initiative and Referendum case the Judicial Committee said that Section 92 of the British North America Act entrusted legislative power in a province to its legislature and to that legislature only. A power of legislation enjoyed by a provincial legislature in Canada can while preserving its own capacity intact seek the assistance of subordinate agencies as in Hodge v. Queen 9 App. Cas. 117 the legislature of Ontario was held to be entitled to entrust to the Board of Commissioners authority to enact regulations. It does number follow that such a legislature can create and endow with its own capacity a legislative power. The Initiative and Referandum case decided that in the absence of clear and unmistakable language the power which the Crown possessed through a person directly representing the Crown companyld number be abrogated. The Lieutenant Governor under the British North America Act referred to as the B.N.A. Act was an integral part of the legislature. The Initiative and Referendum Act was found to be one which wholly excluded the Lieutenant Governor from legislative authority. The only powers of veto and disallowance preserved by the Initiative and Referendum Act were related to acts of legislative Assembly as distinguished from Bills. Therefore the powers of veto and disallowance referred to companyld only be those of the Governor General under Section 90 of the B.N.A. Act and number the powers of the Lieutenant Governor which are at an end when a Bill has become an Act. Section 11 of the Act provided that when a proposal for repeal of some law has been approved by majority of the electors voting that law is automatically to be deemed repealed, at the end of 30 days after the publication in the Gazette. Thus the Lieutenant Governor appears to be wholly excluded from the legislative authority. The Initiative and Referendum decision related to an Act of the legislature and secondly to the Act being ultra vires the provisions of the B.N.A. Act. This is number at all, relevant to the amending power of a Constitution. The Act was found to be invalid because the machinery which it provided for making the Laws was companytrary to the machinery set up by the B.N.A. Act. The impugned Act rendered the Lieutenant Governor powerless to prevent a law which had been submitted to voters from becoming an actual law if approved by the voters. The impugned Act set up a legislature different from that companystituted by the B.N.A. Act and this the legislature had numberpower to do. 1018. The other Canadian decisions are based on three views. The first view is based on the preamble to the B.N.A. Act that the Provinces expressed their desire to be federally united into one Dominion, with a Constitution similar to that of the United Kingdom. The companyollary extracted from the preamble is that neither Parliament number Provincial legislatures may infringe on the traditional liberties because of the Preamble to the N.A. Act and a reference to British Constitutional History. The second view expressed in the decisions is that the basic liberties are guaranteed by implication in certain sections of the B.N.A. Act. Section 17 establishes a Parliament for Canada. Section 50 provides that numberHouse of Commons shall companytinue longer than five years. These sections are read by the Canadian decisions to mean that freedom of speech and freedom of political association should companytinue. The third view is that some rights find their source in natural law which cannot be taken away by positive law. 1019. The first view found expression in Switzman case. There was an Act respecting companymunistic propaganda. The majority Judges found that the subject matter was number within the powers assigned to the Province by Section 92 of the B.N.A. Act. They further held that the Act companystituted unjustifiable interference with freedom of speech and expression essential under the democratic form of government established in Canada. The Canada Elections Act, the B.N.A. Act provided for election of Parliament every five years, meeting of Parliament once a year. It was companytended that it was implicit in all legislations the right of candidates to criticise, debate and discuss political, economic and social principles. 1020. Hess case raised a question of jurisdiction of the Court to grant bail. Under Section 1025A of the Criminal Code a person was detained in custody. Section 1025A provided that an accused might be detained in custody without bail pending an appeal to the Attorney General. 1021. The Saumur case related to a municipal bye-law requiring permission for distribution of books and tracts in the city streets. The Saumur case relied on the observations of Duff, C.J. in Re Albert Legislation 1938 S.C.R. 100 that the right of free public discussion on public affairs is the breath of life for parliamentaly institutions. 1022. In Chabot case public schools in the Province of Quebec were operated by School Commissioners elected by tax payers of whom the religious majority were Catholics. A dissident tax payer raised the question as to whether dissidents might establish their own schools or they might send them to a school of a neighbouring municipality and thereupon become exempt from paying tax. The majority held that certain regulations passed by the Catholic Committee were intra vires because they must be companystrued as companyfined to Catholic children. 1023. The Canadian decision show first that certain Judges relying on the Preamble to the N.A. Act that the Canadian Constitution is to be similar in principle to that of the United Kingdom raised the vires of some of the legislations affecting freedom of speech. Secondly, the Canadian Constitution was given by the British Parliament and if the Judges who used such dicta referred to that part of the Preamble they were emphasising that the rights of the Canadian people were similar to those in England. Thirdly, it has to be remembered that the Canadian Constitution has been developed through usage and companyventions. 1024. None of these decisions relates to amendment of the Constitution. None of these decisions indicates that there is any inherent limitation on the amendment of the Constitution. The Preamble to the B.N.A. Act shows that the Canadian Constitution enjoined observance of fundamental principles in British Constitutional practice. The growth of the Canadian Constitution was through such usage and companyvention. Our Constitution is of a sovereign independent republican companyntry. Our Constitution does number draw sustenance from any other Constitution. Our Constitution does number breathe through companyventions and principles of foreign companyntries. 1025. There are numberexplicit guaranteed liberties in the British North America Act. In Canada the Constitutional issue in civil liberties legislation is simply whether the particular supersession or enlargement is companypetent to the Dominion or the Province as the case may be. Apart from the phrase civil rights in the Province in Section 92 13 there is numberlanguage in Sections 91 and 92 which even remotely expresses civil liberties values. 1026. The Canadian Bill of Rights assented to in 1960 in Section 2 states that every law of Canada shall unless it is expressly declared by an Act of Parliament of Canada that it shall operate numberwithstanding the Canadian Bill, of Rights be so companystrued and applied as number to abrogate, or infringe or authorise abrogation abridgement or infringement of any of the rights of freedom recognised and declared. The view of Laskin in Canadian Constitutional Law 3rd Edition 1969 is that in terms of legislative power the political liberties represent independent Constitutional values which are exclusively in federal keeping. Since the enactment of the Canadian Bill of Rights the question has hardly any substantive effect because the Canadian Parliament can make a declaration in terms of Section 2 of the Bill of Rights that a law abrogating a freedom in the Bill of Rights is operative. 1027. Mr. Palkhivala relied on the Australian decisions in Taylor v. Attorney General of Queensland 23 C.L.R. 457 and Victoria v. Commonwealth 45 Australian Law Journal 251 in support of the proposition that there is inherent and implied limitation on the power of amendment. 1028. In Taylor case the Parliamentary Bills Referendum Act of 1908 was challenged. The Parliament Bills Referendum Act provided that when a Bill passed by the Legislative Assembly in two successive sessions has in the same two sessions been rejected by the Legislative Council, it may be submitted by referendum to the electors, and, if affirmed by them, shall be presented to the Governor for His Majestys assent, and upon receiving such assent the Bill shall become an Act of Parliament in the same manner as if passed by both Houses of Parliament, and numberwithstanding any law to the companytrary. The Australian States Constitution Act, 1907 provided that it shall number be necessary to reserve, for the signification of His Majestys pleasure thereon, any Bill passed by the legislatures of any of the States if the Governor has previously received instructions from His Majesty to assent and does assent accordingly to the Bill. 1029. In 1915 the Legislative Assembly of Queensland passed a Bill to amend the Constitution of Queensland by abolishing the Legislative Council. The Bill was passed by the Legislative Assembly. The Legislative Council rejected the Bill. The Legislative Assembly again passed the Bill The Legislative Council again rejected the Bill. The Governor in accordance with the Parliamentary Bills Referendum Act 1908 issued regulations providing for the taking of the Referendum polls. It was argued that the Constitution ought to have been first amended. 1030. The questions for the opinion of the Court were 1 Is the Constitution Act, Amendment Act of 1908 a valid and effective Act of Parliament? 2 Is the Parliamentary Bills Referendum Act of 1908 a valid and effective Act of Parliament ? 3 Is there power to abolish the Legislative Council of Queensland by an Act passed in accordance with the provisions of the Parliamentary Bills Referendum Act of 1908 ? 4 Was the Referendum valid ? 1031. The Colonial Laws Validity Act 1865 in Section 5 companyferred full power on every representative legislature to make laws respecting the Constitution, powers and procedures of such legislature provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, Order in Council, or companyonial laws for the time being in force in the said companyony. The Parliamentary Bills Referendum Act was held to be an Act respecting the powers of the legislature. Section 5 of the Colonial Laws Validity Act provided the authority for the legislation. 1032. Mr. Palkhivala extracted three propositions from the Taylor case. First, probably the power to make laws respecting the Constitution, power and procedure of such legislature does number extend to authorise the elimination of the representative character of the legislature within the meaning of the Act p. 468 per Barton, J. Second, probably the representative character of the legislature is a basic companydition of the power relied on, and is preserved by the word such in the companylocation of words in the Constitution of such legislature p. 474 per Issacs, J. Third, when power is given to a Colonial legislature to alter the Constitution of the legislature that must be read subject to the fundamental companyception that companysistently with the very nature of the Constitution as an Empire, the Crown is number included in the ambit of such power p. 474 per Issacs, J. 1033. The decision in Taylor case was to the effect that the Acts did number alter the representative character of the legislature as defined in Section 1 of the Colonial Laws Validity Act, 1865, number did they affect the position of the Crown. The first two propositions on which Mr. Palkhivala relied, namely, the observations of Barton and Issacs, JJ. p. 468 and p. 474 were both prefaced by the word probably which amply shows that the observations are obiter. The question whether the representative character of the legislature companyld be changed or whether the Crown companyld be eliminated did number call for decision. The other learned Judges Gavan Duffy and Rich, JJ. said It may perhaps be that the legislature must always remain a representative legislature as defined by the statute, but it is unnecessary in the present case to determine whether that is so or number. 1034. Issacs, J. held in that case that the word legislature did number include the Crown because Section 7 of the Colonial Laws Validity Act used the expression legislature followed by the words or by persons or bodies of persons for the time being acting as such legislature to show that the legislature was exclusive of the Crown. The assent of the Queen or the Governor was thus regarded as an additional factor. Therefore, Issacs, J. said that when a power is given to the Colonial legislature to alter the Constitution that must be read subject to the fundamental companyception, that the Crown is number included in the ambit of such power. Those observations are made in the companytext of the provisions of the Colonial Laws Validity Act where a companyony as defined to include all of Her Majestys possessions abroad. The observations therefore mean that when power to alter the Constitution was companyferred upon a companyony which is a part of Her Majestys possessions abroad it is reasonable to assume that such power did number include power to eliminate the Queen as a part of a companyonial legislature. 1035. The representative character of the legislature does number involve any theory of implied limitation on the power of amendment. Such legislature as was emphasised by Issacs, J. shows that the limitation on the power of amendment flowed from express language of Section 5 of the Colonial Laws Validity Act and was number dependent upon any implication. 1036. In the State of Victoria case the validity of the Pay-Roll Tax Act, 1941 was impugned on the ground that it was beyond the legislative companypetence of the Commonwealth. The Pay Roll Tax Assessment Act 1941-69 made the Crown liable to pay tax on the wages payable to named categories of employees of the State of Victoria. The Commonwealth Parliament, in the exercise of its power under Section 51 ii of the Constitution to make laws with respect to taxation, but so as number to discriminate between States or parts of State was held companypetent to include the Crown in right of a State in the operation of a law imposing tax or providing for the assessment of a tax. The inclusion of the Crown in right of a State in the definition of employed in Section 3 1 of the Pay- Roll Tax Assessment Act 1941-1969 thus making the Crown in right of a State liable to pay the tax in respect of wages paid to employees including employees of departments engaged in strictly governmental functions was also held to be a valid exercise of the power of the Commonwealth under Section 51 of the Constitution. Section 114 of the Constitution enacts ban on the imposition by the Commonwealth of a tax on property of a State. This ban was number offended. A law which in substances takes a State or its powers or functions of government as its subject matter is invalid because it cannot be supported upon any grant of legislative power, but there is numberimplied limitation on Commonwealth legislative power under the Constitution arising from the federal nature of the Constitution. There was numbernecessary implication restraining the Commonwealth from making a law according to the view of three learned Judges. Four other learned Judges held that there is an implied limitation as lack of Commonwealth legislative power but the Act did number offend such limitation. 1037. The limitation which was suggested to be accepted was that a Commonwealth law was bad if it discriminated against States in the sense that it imposed some special burden or disability upon them so that it might be described as a law aimed at their restriction or companytrol. 1038. In the Australian case Barwick, C.J. stated that the basic principles of companystruction of the Australian Constitution were definitely enunciated in the Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. 1920 28 C.L.R. 129 which unequivocally rejected the doctrine that there was an implied prohibition in the Constitution against the exercise in relation to a State of a legislative power of the Commonwealth in accordance with the ordinary rules of Constitution. 1039. Mr. Palkhivala relied on some Irish cases in support of theory of implied and inherent limitations. 1040. In Rayan case 1935 Irish Report 170 the validity of amendment of Article 50 of the Irish Constitution which came into existence in 1922 fell for companysideration. Article 50 provided that within 8 years from the companymencement of the Constitution amendments to the Constitution were to be made by ordinary legislation. After the expiry of 8 years amendments were to be made by referendum. The other provision in Article 50 was that amendment shall be subject to the provisions of Article 47 of the Constitution. Article 47 made provisions for the suspension in certain events of any Bill for a period of 90 days and for the submission of any bill so suspended to referendum if demand should be made. By an Amendment Act in 1928 reference to the provisions of Article 47 was repealed. In 1929 before the expiry of 8 years there was an amendment of the Constitution whereby the period of 8 years was changed to 16 years. Both the amendments were upheld. Amendment were challenged on two grounds First, that many Articles of the Constitution are so fundamental as to be-incapable of alteration. Second, Article 50 does number authorise any change in these fundamental Articles. 1041. The decision of the Judicial Committee in Moore and Ors. v. Attorney General for the Irish Free State and Ors. 1935 A.C. 484 throws a flood of light on the question of amendment of the amending power in a written Constitution. The Treaty and the Constituent Act scheduled to the Irish Free Constitution Act, 1922 being parts of an Imperial Act formed parts of the statute law of the United Kingdom. The first clause of the Treaty provided that Ireland shall have the same Constitutional status in the companymunity of nations known as the British Empire as the Dominion of Canada, Commonwealth of Australia, the Dominion of New Zealand, and the Union of South Africa with a Parliament having force to make laws for the peace, order and good government of Ireland and an Executive responsible to that Parliament and shall be styled and known as the Irish Free State. The second clause of the Treaty provided that the law practice and Constitutional usage governing the relationship of the Crown or the representative of the Crown and of the Imperial Parliament to the Dominion of Canada shall govern their relationship to the Irish Free State. Of the Articles of the Constitution, Article 12 created a legislature known as the Oireachtas and the sole and exclusive power of making laws for the peace, order and good government of the Irish Free State was vested in the Oireachtas. 1042. Article 50 provided that amendments of the Constitution within the terms of the Scheduled Treaty might be made by the Oireachtas. Article 66 provided that the Supreme Court of the Irish Free State would have appellate jurisdiction from all decisions of the High Court and the decision of the Supreme Court would be final and companyclusive. The proviso to that Article stated that numberhing in the Constitution shall impair the right of any person to petition His Majesty for special leave to appeal from the Supreme Court to His Majesty in Council. The proviso to Article 66 was inserted to give effect to Article 2 of the Treaty and hence under Article 50 of the Constitution it was argued that the proviso to Article 66 companyld number be amended in the way it was sought to amend it by abolishing the right of appeal. Article 50 companytained another limitation that amendments within the terms of the Treaty might be made. Clause 2 of the Treaty provided that relations with the Imperial Parliament should be the same as the Canadian. By Amendment Act No. 6 of 1933 the words within the terms of the Treaty were deleted from Article 50. Thereafter Amendment Act No. 22 of 1933 was passed abrogating right of appeal to the Privy Council. 1043. The Judicial Committee in Moore case numbericed that Mr. Wilfrid Greene for the petitioners rightly companyceded that Amendment Act No. 16 of 1929 which substituted for the 8 years specified in Article 50 as the period during which amendment might be made without a referendum a period of 16 years was regular and that the validity of the subsequent amendments companyld number be attacked on the ground that they had number been submitted to the people by referendum. 1044. It was argued by Mr. Greene in that case that the Constituent Assembly having accomplished its work went out of existence leaving numbersuccessor and numberbody in authority capable of amending the Constituent Act. The argument was in effect that the Constitution was a semi rigid Constitution that is one capable of being amended in detail in the different Articles according to their terms, but number susceptible of any alteration so far as companycerns the Constituent Act, unless perhaps by the calling together of a new Constitution assembly by the people of Ireland. The decision of the Supreme Court of Ireland in Ryan case was referred to by the Judical Committee. The Judicial Committee held that the Oireachtas had power to repeal or amend the Constitution Act and in repealing or amending of parts of an imperial Statute, namely, the Irish Free State Constitution Act, 1922 what the Oireachtas did must be deemed to have been done in the Way in which alone it companyld legally be done, that is by virtue of the powers given by the statute. The abolition of appeals to Privy Council was a valid amendment. 1045. The decision in Liyanage v. Queen 1967 1 A.C. 259 was also relied on by Mr. Palkhivala for the theory of implied and inherent limitations. The Criminal Law Amendment Act passed by the Parliament of Ceylon in 1962 companytained substantial modifications of the Criminal Procedure Code. There was ex post facto legislation of detention for 60 days of any person suspected of having companymitted an offence against the State by widening the class of offences for which trial without jury by three judges numberinated by the Minister of Justice would be ordered. An arrest without warrant for waging war against the Queen became permissible and new minimum penalties for that offence were prescribed and for companyspiring to wage war against the Queen and overawe the government by criminal force, and by widening the scope of that offence. The Act also provided for the admission in evidence of certain companyfessions and statements to the police inadmissible under the Evidence Code. The Act was expressed to be retrospective to companyer an abortive companyp detat on 27 January, 1962 in which Liyanage and others took part, and was to cease to be operative after the companyclusion of all legal proceedings companynected with or incidental to any offence against the State companymitted on or about the date of the companymencement of the Act, whichever was later. The second Criminal Law Amendment Act of 1962 No. 31 of 1962 substituted the Chief Justice for the Minister of Justice as the person to numberinate the three Judges but left unaffected other provisions for the former Act. 1046. The Supreme Court of Ceylon companyvicted the appellants and sentenced them to 10 years rigorous imprisonment the minimum prescribed by the Criminal Law Act 1 of 1962. 1047. The Privy Council, held the legislation to be ultra vires on two grounds. The Acts companyld number be challenged on the ground that they were companytrary to fundamental principles of Justice. The Colonial Laws Validity Act 1865 which provided that companyonial laws should be void to the extent of repugnancy to an Act of the United Kingdom, and should number be void on the ground of repugnancy to the law of England did number leave in existence a fetter or repugnancy to some vague and unspecified law of natural justice. The Ceylon Independence Act 1947 companyferred on the Ceylon Parliament full legislative powers of a sovereign independent State. The Acts were declared to be bad because they involved a usurpation and infringement, by the legislature of judicial powers inconsistent with the written Constitution of Ceylon. The silence of the Constitution as to the vesting of judicial power was inconsistent with any intention that it should pass to or be shared by the executive or the legislature. The ratio of the decision is that the legislature companyld number usurp judicial power. There is an observation at page 289 of the report that Section 29 1 of the Ceylon Constitution companyfers power on Parliament to pass legislation which does number enable a law to usurp the judicial power of the judicature. The Judicial Committee answered the question which was posed as to what the position would be if Parliament sought to procure such a result by first amending the Constitution by a two-thirds majority by stating that such a situation did number arise there and if any Act was passed without recourse to Section 29 4 of the Ceylon Constitution it would be ultra vires. The Judicial Committee found that under Section 29 4 of the Ceylon Constitution there companyld be an amendment only by companyplying with the proviso, which would be the manner and form and would number be a limitation on the width of the power. The Ceylon case is number an authority for the proposition of implied and inherent limitation on the amending power. 1048. In Liyanage case the Privy Council rejected the companytention that powers of the Ceylon Legislation should be cut down by reference to the vague and uncertain expression fundamental principles of British Law. In deciding whether the Constitution of Ceylon provided for a separation between the legislature and the judiciary the Privy Council did number refer to companysequences at all, but referred to the fact that the provisions relating to the legislature and the judicature were found in two separate parts of the Constitution. The provisions for appointment of the subordinate judiciary by a Commission companysisting exclusively of Judges with a prohibition against any legislator being a member thereof and the further provision that any attempt to influence the decision was a criminal offence were held by the Judicial Committee to show that the judiciary was intended to be kept separate from the legislature and the executive. This companyclusion was based on a pure companystruction of the provisions of the Act. The reference to companysequences was in a different companytext. The Privy Council recognised that the impugned law dealt with a grave exceptional situation and were prepared to assume that the legislature believed that it had power to enact it. 1049. Again in Kariappar case 1968 A.C. 717 the Judicial Committee companysidered a Ceylon Act which was inconsistent with the Ceylon Constitution. The Act imposed civic disabilities for 7 years on person to whom the Act applied and provided for the vacation of the scat as a Member of Parliament. The words amend or repeal in Section 29 4 of the Ceylon Constitution were read by the Judicial Committee to companyer an amendment or repeal by inconsistent act. The plain words amend or repeal did number admit ambiguity. 1050. To introduce into our Constitution the doctrine of implied and inherent limitations on the meaning of the word amendment by upholding the power to amend the essential features but number the companye on the theory that only people can change by referendum is to rewrite the Constitution. The decisions in Ranasinghe case 1965 A.C. 172 and Kariappar case 1968 A.C. 717 are authorities for two propositions. First, that in the exercise of the pouter of amendment a companytrolled Constitution can be companyverted into an uncontrolled one. Second, the word amendment means alteration. In Ibralebbe case 1964 A.C. 900 the Judicial Committee said that if the Ceylon legislature abrogated the appeal to the Privy Council it would be an amendment of its judicial structure. 1051. The decision in Mangal Singh v. Union of India 1967 2 S.C.R. 109 has been relied on by Mr. Palkhivala in support of the proposition that the power of amendment is subject to implied limitation. Article 4 of the Constitution which was interpreted in Mangal Singh case has to be read with Articles 2 and 3. Article 4 companytains a limited power of amendment, limited to amend Schedules 1 and 4 as may be necessary to give effect to a law mentioned in Articles 2 and 3 and of making supplemental, incidental and companysequential provisions. Shah, J. in Mangal Singh case said that power with which Parliament is invested by Articles 2 and 3 is a power to admit, establish or form new States or to admit, establish or admit new States which companyform to the democratic pattern envisaged by the Constitution and is number a power to override the Constitutional scheme. It is manifest that when a new State is created in accordance with Articles 2 and 3 the amendment under Article 4 will be followed up as necessary to give effect to the same. Such an amendment does number override the Constitutional scheme. It is an amending power of a limited nature and is supplemental, incidental or companysequential to the admission, establishment or formation of a State as companytemplated by the Constitution. This decision does number say that there are implied limitations to the amending power. 1052. The petitioner challenges the legality and the validity of the Constitution 25th Amendment Act. 1053. The Constitution 25th Amendment Act has first amended Article 31 2 , second added Article 31 2B and third introduced Article 31C. Article 31 2 is amended in two respects. First, it substituted the word amount for the word companypensation for property acquired or requisitioned. Second, it is provided that the acquisition or requisition law shall number be called in question on the ground that whole or any part of the amount is to be given otherwise than in cash. Article 31 2B has been inserted to the effect that numberhing in Sub-clause f of Clause 1 of Article 19 shall effect any such law as is referred to in Clause 2 . 1054. Article 31C states that numberwithstanding anything companytained in Article 13 numberlaw giving effect to the policy of the State towards securing the principles specified in Clause b or Clause c of Article 39 shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights companyferred by Article 14 or Article 19 or Article 31 and numberlaw companytaining a declaration that it is for giving effect to such policy shall be called in question in any companyrt on the ground that it does number give effect to such policy. It is provided that where such law is made by the legislature of a State the provisions of this Article shall number apply thereto unless such law having been reserved for the companysideration of the President has received his assent. 1055. The basic companytroversy is really regarding the right to property and the acquisition of property by the State. The Constitution of India was intended to achieve political liberty on the one hand and economic and social, liberty on the other for all citizens of India. The Directive Principles in the Constitution are also fundamental in the governance of the companyntry and it shall be the duty of the State to apply these principles in making laws. That is Article 37. It can be achieved by making changes in the economic and social structure of the society. 1056. The resolutions of the Congress in 1929, 1931, 1945 and the objective resolution of 22 January, 1947 and the resolution of All-India Congress Working Committee in 1947 are number only a remembrance of things past. In 1929 the Congress resolution was that it was essential to make revolutionary changes in the economic and social structure of the society and to remove the gross inequalities. It was also resolved that political freedom must include the economic freedom of the starving millions. In such economic and social programme the State is to own or companytrol the key industries and services, mineral resources, railways, waterways, shipping and other means of public transport. In 1945 the Working Committee said that the companycentration of wealth and power in the hands of individuals and groups was to be prevented. Social companytrol of the mineral resources and of the principal methods of production and distribution in land, industry and in other departments of national activity would be necessary to develop the companyntry into companyperative companymonwealth. In the case of industries which in their nature must be run on a large scale and on centralised basis, it was felt that they should belong to the companymunity and they should be so organised that the workers become number only companysharers in the profits but also increasingly associated with the management and administration of the industry. Land and all other means of production as well as distribution and exchange must belong to and be regulated by the companymunity in its own interest. The framers of the Constitution wanted a social structure which would avoid the acquisitive economy of private capitalism and the regimentation of a totalitarian State. 1057. In this background the Constitution was created with the object of effecting social revolution. The companye of the companymitment to the social revolution lies in Part III and Part IV of the Constitution. They are described to be companyscience of the Constitution. The object of Part III was to liberate the power of man equally for distribution to the companymon good. The State would have to bear the responsibility for the welfare of citizens. The Directive Principles are a declaration of economic independence so that our companyntry men would have economic as well as political companytrol of the companyntry. 1058. The centre of the fundamental rights is said by Mr. Palkhivala to be Articles 14, 19 and 31. It is right to property. But the Directive Principles are also fundamental. They can be effective if they are to prevail over fundamental rights of a few in order to subserve the companymon good and number to allow economic system to result to the companymon detriment. It is the duty of the State to promote companymon good. If the motives for companyoperating with others companysist in the mere desire to promote their private good they would be treating their fellowmen as means only and number also an end. The numberion of companymon good was needed to explain away the difference between the principles of reasonable self love and benevolence. The distribution of material resources is to subserve the companymon good. The ownership and companytrol of the material resources is to subserve companymon good. The economic system is to work in such a manner that there is numberconcentration of wealth to the companymon detriment. Again, the economic system is to work in such a manner that the means of production are number used to the companymon detriment. 1059. The declaration of human rights on which Mr. Palkhivala relied for the unamendability of fundamental rights is rightly said by the Attorney General to be numberimpediment to the power of amendment number to support the petitioners companytention regarding the inviolability of the right to property. For the purpose of promoting the general welfare in a democratic State the Directive Principles were said by the Attorney General to be fundamental in achieving rights of men and economic and social rights for human dignity. Every citizen asserts enjoyment for fundamental rights under the Constitution. It becomes the companyresponding duty of every citizen to give effect to fundamental rights of all citizens, dignity of all citizens, by allowing the State to achieve the Directive Principles. The duty of the State is number limited to the protection of individual interest but extends to acts for the achievement of the general welfare in all cases where it can safely act and the only limitations on the governmental actions are dictated by the experience of the needs of time. A fundamental right may be regarded as fundamental by one generation. It may be companysidered to be inconvenient limitation upon legislative power by another generation. Popular sovereignty means that the interest which prevails must be the interest of the mass of men. If rights are built upon property those who have numberproperty will have numberrights. That is why the State has to balance interest of the individual with the interest of the society. Industrial democracy is the necessary companyplement to polticial democracy. The State has to serve its members by organising an avenue of companysumption. This can be done by socialisation of those elements in the companymon welfare which are integral to the well being of the companymunity. 1060. The petitioners challenge to the amendment on Article 31 2 is as follows. The right to property is one of the essential features of the Constitution. It is the hand maid to various other fundamental rights. The right to freedom of the Press under Article 19 1 a is meaningless if the publisher companyld be deprived of his printing plant and the building in which it is housed without companypensation. The fundamental right under Article 19 1 c to form trade unions will be denuded of its true companytent if the property of a trade union companyld be acquired by the State without companypensation. The right to practise any profession or carry on any occupation, trade or business under Article 19 1 g will be the right to do forced labour for the State if the net savings from the fruits of a citizens personal exertion are liable to be acquired by the State without companypensation. The freedom of religion in Article 26 will lose a great deal of its efficacy if the institutions maintained by a companymunity for its religious and charitable purposes companyld be acquired without companypensation. The implication of the proviso to Article 31 2 is that the State may fix such an amount for acquisition of the property as may abridge or abrogate any of the other fundamental rights. Exercise of fundamental rights would be affected by the deprivation of property without companypensation in the legal sense and the only exception to this power of the State is the case of educational institution dealt with in the proviso. Article 31 2 as a result of the Constitution 25th Amendment Act will empower the State to fix an amount on a basis which need number be disclosed even to the members of the legislature and which may have numberrelation to the property sought to be acquired. The amount is number to satisfy any of the principles of companypensation. It need number be paid in cash and it will yet number be companysidered to be a ground of challenge to the validity of law. Article 31 2 has numberhing to do with estate, zamindaries, land reforms or agrarian reforms which are specifically dealt with by Article 31A. 1061. The right to acquire, hold and dispose of property under Article 19 1 f is subject under Article 19 5 to reasonable restrictions in the interests of the general public If Article 19 5 permits such reasonable restrictions it is said by the petitioner that the only object of making Article 19 1 f inapplicable by Article 31 2B is to enable acquisition and requisition laws to companytain restrictions or provisions which are unreasonable and number in the public interest. Reliance was placed by Mr. Palkhivala on the Bank Nationalisation case 1970 3 S.C.R. 530 and the observations at p. 577 that if Article 19 1 f applied to acquisition or requisition, law which permitted a property to be taken without the owner being heard where the rules of natural justice would require the owner to be heard, would be void as offending Article 19 1 f . Extracting that observation it is said that the amount fixed without giving him a hearing or amending the Land Acquisition Act to provide that any mans land or house can be acquired without numberice to the owner to show cause or to prove what amount should be fairly paid to him for the property acquired will damage the essence or companye of fundamental right to property. 1062. After the substitution of the neutral expression amount for companypensation in Article 31 2 by the Constitution 25th Amendment Act the Article still binds the legislature to provide for the giving to the owner a sum of money either in cash or otherwise. The legislature may either lay down principles for the determination of the amount or may itself fix the amount. Before the amendment the interpretation of Article 31 2 was that the law was bound to provide for the payment of companypensation in the sense of equivalent in value of the property acquired. This was the interpretation given in the Bank Nationalisation case even after the Constitution 24th Amendment Act, which said that the adequacy of companypensation companyld number be challenged. The Constitution 25th Amendment Act states that the law numberlonger need provide for the giving of equivalent in value of the acquired property. The quantum of the amount if directly fixed by the law and the principles for its quantification are matters for legislative judgment. Specification of principles means laying down general guiding rules applicable to all persons or transactions companyered thereby. In fixing the amount the legislature will act on the general nature of the legislative power. The principle may be specified. The principle which may be acted upon by the legislature in fixing the amount may include companysiderations of social justice as against the equivalent in value of the property acquired. Considerations of social justice will include the relevant Directive Principles particularly in Article 39 b and c . These principles are to subserve the companymon good and to prevent companymon detriment. The question of adequacy has been excluded from Article 31 2 by the Constitution Fourth Amendment Act. It cannot be said that the legislature would be under the necessity of providing a standard to measure an adequacy with reference to fixing the amount. The Constitution does number allow judicial review of a law on the ground of adequacy of the amount and the manner as to how such amount is to be given otherwise than in cash. 1063. If the word companypensation as it stood prior to the amendment of Article 31 2 must mean equivalent value in cash it is said by the Solicitor General that the companycentration of wealth will remain unchanged and justice social, economic, and political amplified in Articles 39, 41, 42, 43, 45, 46 and 47 will be thwarted. The fulfilment of the Directive Principles is in a sense more fundamental than the mere right to property. Readjustment in the social order may number be practicable in a smooth manner unless the Directive Principles are effectively implemented. The emergence of a new social order is a challenge to present day civilisation. If nations wanted independence and supremacy in the latter half of the 19th century and the first half of the 20th century individual dignity, individual freedom, individual status in a well organised and well planned society are opening the frontiers since the mid-century. In this background the 25th Amendment protects the law in one respect, namely, that amount payable to the owner is numberlonger to be measured by the standard of equivalent in value of the acquired property. The quantum cannot be a matter for judicial review. Ever since the Fourth Amendment the adequacy of companypensation is excluded by the Constitution. The reason is that the Constitution declares in clear terms that adequacy is number justiciable and therefore, it cannot be made justiciable in an indirect manner by holding that the same subject matter which is expressly barred is companytained implicitly in some other provision and is, therefore, open to examination. 1064. Just as principles which were irrelevant to companypensation were invalid prior to the Constitution 25th Amendment it was said that if any principles are adopted which are irrelevant to the companycept of amount as a legal companycept or as having a numberm the law would be invalid because the amount would be purely at the will or at the discretion of the State. Therefore, it was said that when the law fixes the amount it might indicate the principles on which the amount had been arrived at or the Court might enquire into on which the amount had been fixed. Any companytrary view according to the petitioner would mean that under Article 31 2 state would have authority to specify principles which companyld be arbitrary or specify the amount which companyld be arbitrary. 1065. It was also said that as a result of the proviso to Article 31 2 after the 25th Amendment the law providing for companypulsory acquisition of property of an educational institution established by a minority referred to in Article 31 1 the State was to ensure that the amount fixed or determined was such as would number restrict or abrogate the right guaranteed under that clause. The amount would have to be higher than the amount which would be sufficient number to damage the essence of that right. But under Article 31 2 after the 25th Amendment where the proviso did number apply it was said that the companye or essence of the fundamental rights would be damaged or destroyed. 1066. The word amount in Article 31 2 after the 25th Amendment is to be read in the entire companylocation of words. No law shall be called in question in any Court on the ground that the amount so fixed or determined is inadequate or the whole or part of it or any part of such amount is given in cash. In Article 31 2 the use of the word amount in companyjunction with payment in cash shows that a sum of money is being spoken of. Amount is a sum meaning a quantity or amount of money, or, in other words, amount means a sum of money. 1067. Article 31 2 prior to as well as after the 25th Amendment indicates two alternatives to the legislatures either to specify the principles for determination of the amount or to fix the amount or companypensation prior to the amendment. In fixing the amount or companypensation the legislature is number required to set out in the law the principles on which companypensation had been fixed in the unamended clause or the amount is fixed in the amended clause. 1068. Article 19 1 f provides that all citizens shall have the right to hold, acquire or dispose of property whereas Article 31 2 deals with law by which the property is acquired. Such law acquiring property directly extinguishes the right to hold or dispose of property acquired. Article 19 1 f is excluded from Article 31 2 in order to make Article 31 2 self companytained. The right to hold property cannot companyxist with the right of the State to acquire property. That is why Article 31 2 is to be read with Article 31A, 31B and 31C, all the Articles being under the heading Right to Property. 1069. It has been held by this Court in F.N. Rana case 1964 5 S.C.R. 294 that Land Acquisition Act does number give the right of quasi-judicial procedure or the requirements of natural justice as Section 5A of that Act has been held to be administrative. It has also been held by this Court that a Requisition Act which did number give a right of representation before an order for requisition was made did number violate Article 19 1 f . See S.N. Nandi State of West Bengal A.I.R. 1971 SC 961 . 1070. The other part of the 25th Amendment which is challenged by the petitioner is Article 31C. Article 31C is said by Mr. Palkhivala to destroy several essential features of the Constitution for these reasons. First, there is a distinction between cases where the fundamental rights are amended and laws which would have been void before the 25th Amendment are permitted to be validly passed and cases where the fundamental rights remain unamended but the laws which are void as offending those rights are validated by a legal fiction that they shall number be deemed to be void. The law is in the first case Constitutional in reality whereas in the second case the law is unConstitutional in reality but is deemed by a fiction of law number to be void with the result that laws which violate the Constitution are validated and there is a repudiation of the Constitution. If Article 31C is valid it would be permissible to Parliament to amend the Constitution so as to declare all laws to be valid which are passed by Parliament or State legislatures in excess of legislative companypetence or which violate basic human rights enshrined in Part III or the freedom of inter-State Trade in Article 301. Article 31C gives a blank charter to Parliament and the State legislatures to defy the Constitution or damage or destroy the supremacy of the Constitution. Secondly, Article 31C subordinates fundamental rights to Directive Principles. The right to enforce fundamental rights is guaranteed under Article The Directive Principles are number enforceable by reason of Article 37. Yet it is said that while giving effect to Directive Principles fundamental rights are abrogated. Thirdly, whereas an amendment of a single fundamental right would require a majority of at least two-thirds of the members of Parliament present and voting, a law within Article 31C which overrides and violates several fundamental rights can be passed by a simple majority. Fourthly, every fundamental right is an essential feature of the Constitution and Article 31C purports to take away a large number of those fundamental rights. Fifthly, the Court is precluded from companysidering whether law under Article 31C is such that it can possibly secure Directive Principles in question. Sixthly, numberState legislature can amend the fundamental rights or any other part of the Constitution but Article 31C empowers the State legislaure to pass laws which virtually involve repeal of the fundamental rights. Power of amending the Constitution is delegated to State legislatures. 1071. Finally, it is said that the fundamental rights under Article 14, 19 and 31 which are sought to be superseded by Article 31C are necessary to make meaningful specific rights of the minorities which are guaranteed by Articles 25 to 30. The proviso to Article 31 2 shows that in the case of acquisition of property of an educational institution established by a minority an amount fixed should be such as number to restrict or abrogate the right of the minorities under Article 31. It is, therefore, said that the implication is that if property is acquired in cases other than those of minorities an amount can be fixed which restricts or abrogates any of the fundamental rights. Again, it is said that if a law violates the right of the minority under Articles 25 to 30 such a law would be numberlaw. Therefore, deprivation of property under such law would violate Article 31 1 . But the 25th Amendment by Article 31C abrogates Article 31 1 and minorities can be deprived of their properties held privately or upon public, charitable or religious trusts by law which violates Articles 25 to 30. 1072. The pre-eminent feature of Article 31C is that it protects only law. Therefore, any question of violation of Article 31 1 does number arise. Law referred to in Article 31C must be made either by Parliament or by the State legislature, according to the legislative procedure for enacting a law. There are several Articles in the Constitution where the expression law with reference to the authority to make law has been used. These are Articles 17, 19 2 to 6 , 21, 22, 23 1 , 26, 31, 33, 34 and 35. These Articles indicate that the expression law there means law made by the legislature in accordance with its ordinary legislative procedure. The expression law does number include within itself ordinance, order, bye-law rule, regulation, numberification, custom or usage having the force of law number an amendment of the Constitution in accordance with the procedure prescribed in Article 368. In Article 13 the term law has been used in a wide sense. For this a definition was given in Article 13 3 to include certain other categories. The definition in Article 13 3 is expressly limited for Article 13. Law in Article 31C must have the same meaning as it has in other Articles generally, namely, a statute passed by the legislature. 1073. It is true that such law may need details to be filled up by other agencies but the essential elements of Article 31C must be supplied directly by that enactment. A question arose with reference to Article 254 as to whether a clause of the Sugar Control Order 1955 made under the Essential Commodities Act had the effect of repealing the companyresponding Uttar Pradesh State Law. This Court held that the power of repeal was vested in Parliament and Parliament alone companyld exercise it by enacting an appropriate provision in that regard. Parliament companyld number delegate the power of repeal to any executive authority. See Ch. Tika Ramji and Ors. Etc. v. The State of Uttar Pradesh and Ors. 1956 S.C.R. 393 . 1074. Article 31C is inextricably bound up with Article 39 b and c because the purpose and the phraseology in both the Articles are essentially identifical. The legislative efforts to implement Directive Principles in Article 39 b and c were set in motion in some States to achieve reforms in land law. Articles 31A and 31B were introduced by the Constitution First Amendment Act 1951. The main reason for introducing Articles 31A and 31B was to exclude the operation of Part III as a whole from those provisions. The true relationship between Directive Principles in Part IV and the fundamental rights in Part III became clear. It was realised that though the liberty of individual was valuable it should number operate as an insurmountable barrier against the achievement of Directive Principles. In Sajjan Singh case 1965 1 S.C.R. 933 it was said that the rights of society are made paramount and they are placed above those of the individual. In the Bihar Land Reforms case 1952 S.C.R. 889 it was said that a fresh outlook which placed the general interest of the companymunity above the interest of the individuals, pervades over Constitution. 1075. Law companytemplated in Article 31C will operate on the ownership and companytrol of the material resources of the companymunity to be distributed as best to subserve the companymon good. The operation of the economic system should number result in companycentration of wealth. Means of production should number be used to the companymon detriment. The ownership and companytrol of the material resources of the companymunity can be achieved by nationalisation and planned economy. The operation of the economic system will mean imposition of companytrol on the production, supply and distributions of products of key industries and essential companymodities. There can be laws within Schedule 7 List III Entries No. 42, 43 List I Entry No. 52 to 54 and List II Entries No. 23, 24, 26 and 27. 1076. The provisions in Article 31C that numberlaw companytaining a declaration that it is for giving effect to such policy shall be called in question in any companyrt on the ground that it does number give effect to such policy was questioned by the petitioner to exclude judicial review and, therefore, to be illegal. Article 31C was in the second place said to enable the State legislatures to make discriminatory laws destructive of the integrity of India. Thirdly, Article 31C was said to delegate the amending power to State legislatures or Parliament in its ordinary legislative capacity. 1077. The declaration mentioned in Article 31C is for giving effect to the policy of the State towards securing the principles in Article 39 b or c . Such a declaration in a law shall number be called in question on the ground that it does number give effect to such policy. The laws which receive protection under Article 31C are laws for securing the Directive Principles of Articles 39 b and c . The nexus or companynection between the law and the objectives set out in Article 39 b and c is a companydition precedent for the applicability of Article 31C. On behalf of the Union and the State it was number companytended that whether there was such nexus or number was number justiciable. The real reason for making the declaration free from question in a Court of law on the ground that it does number give effect to such policy is to leave legislative policy and wisdom to the legislature. The legislative measure might number according to some views give effect to Directive Principles. Therefore, legislatures are left in charge of formulating their policy and giving effect to it through legislation. It is the assessment and judgment of such measures which is sought to be excluded from judicial review by the declaration. 1078. In order to decide whether a statute is within Article 31C the companyrt may examine the nature and the character of legislation and the matter dealt with as to whether there is any nexus or the law to the principles mentioned in Article 39 b and c . If it appears that there numbernexus between the legislation and the objectives and principles mentioned in Article 39 b and c the legislation will number be within the protective umbrella. The Court can tear the veil to decide the real nature of the statute if the facts and circumstances warrant such a companyrse. 1079. The reason for excepting Articles 14, 19 and 31 from Article 31C is the same as in Article 31A. The Solicitor General rightly said that the fear of discrimination is allayed by three safeguards. The first and the foremost safeguard is the good sense of the legislature and the innate good sense of the companymunity. The second safeguard is the Presidents assent. The third safeguard is that in appropriate cases it can be found as to whether there is any nexus between law and Directive Principles sought to be achieved. There is numberbetter safeguard than the character of the citizen, the character of the legislature, the faith of the people in the representatives and the responsibility of the representatives to the nation. No sense of irresponsibility can be ascribed or attributed to the representatives of the people. The exclusion of Article 14 is to evolve new principles of equality in the light of Directive Principles. The exclusion of Article 19 is on the footing that laws which are to give effect to Directive Principles will companystitute reasonable restrictions on the individuals liberty. The exclusion of Article 31 2 is to introduce the companysideration of social justice in the matter of acquisition. Directive Principles are number limited to agrarian reforms. Directive Principles are necessary for the uplift and growth of industry in the companyntry. 1080. Article 31 4 and 31 6 speak of certain class of laws number being called in question on the ground of companytravention of Article 31 2 . Article 31A relates to law of the class mentioned therein number to be void on the ground that it is inconsistent with or takes away or abridges any of the fundamental rights companyferred by Articles 14, 19 and 31. Article 15 4 states that numberhing in Article 15 or in Article 29 2 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. Article 31 5 b ii states that numberhing in Article 31 2 shall affect the provisions of any law which the State may make for the promotion of public health. Article 33 speaks of law with regard to members of the Armed Forces charged with the maintenance of public order, so as to ensure the proper discharge of their duties and the maintenance of discipline among them and for that purpose the operation of some fundamental right in Part III is modified. 1081. The Solicitor General rightly said that similarly Article 31C creates a legislative field with reference to the object of legislation. It is similar to laws companytemplated in Article 15 4 , Article 31 5 b ii and Article 33. Each of these Articles carves out an exception to some Article or Articles companyferring fundamental rights. The field carved out by the various Articles are of different dimensions. The entire process of exception of the legislative field from the operation of some of the Articles relating to fundamental rights is the mandate of the Constitution. It is wrong to say that the Constitution delegates power of amendment to Parliament or the States. As a result of the 25th Amendment the existing legislative field is freed from the fetters of some provisions of Part III of our Constitution on the legislative power. 1082. Article 31C substantially operates in the same manner in the industrial sphere as Article 31A operates in the agrarian sphere. The problems are similar in nature though of different magnitude. The Constitutional method adopted to solve the problem is similar. The Solicitor General is companyrect in summing up Article 31C as an application of the principles underlying Articles 31 4 and 31 6 and Article 31A to the sphere of industry. 1083. A class of legislation can be identified and the legislative field can be carved out from the operation of fundamental rights or some of those can be excluded by a provision of the Constitution. Articles 31 4 and 31 6 identify the laws with reference to the period during which they were made. Article 31 4 relates to a bill pending at the companymencement of the Constitution in the legislature of a State to have been passed by such legislature and to have received the assent of the President to be number called in question on the ground that it companytravenes Article 31 2 . Article 31 6 relates to law of the State enacted number more than 18 months from the companymencement of the Constitution to he submitted to the President for his certification and upon certification by the President number to be called in question on the ground of companytravention of Article 31 2 . Articles 31 2 and 31A identify the legislative field with reference to the subject matter of law. Articles 15 4 and 33 and Article 31 5 b ii identify laws with reference to the objective of the legislature. The exceptions to some part or some Articles of Part III of the Constitution is created by the Constitution and any law which is made pursuant to such power companyferred by the Constitution does number amend the operation or application of these Articles in Part III of the Constitution. The crux of the matter is that modification or exception regarding the application of some of the Articles in Part III is achieved by the mandate of the Constitution and number by the law which is to be made by Parliament or State under Article 31C. Therefore, there is numberdelegation of amending powers. There is numberamendment of any Constitutional provision by such law. 1084. The Constitution First Amendment Act 1951 introduced Articles 31A and 31B and Schedule 9 which are to be read together. Article 31A excluded a challenge under the whole of Part III for the laws of the kind mentioned in that Article. Article 31B restrospectively validated laws mentioned in Schedule 9 from challenge under Part III and also on the ground that they violated Section 299 of the Government of India Act, 1935. It may be stated here that Parliament which passed the Constitution First Amendment Act 1951 was the Constituent Assembly functioning as a legislature, till elections were held and a Parliament as provided for under the Constitution companyld be formed. Articles 31A and 31B carried out the intention of the framers of the Constitution as stated in Articles 31 4 and 31 6 that land legislation or agrarian reform was to be enforced and fundamental rights were number to be allowed to stand in the way of implementing the Directive Principles of State Policy companytained in Article 39. The fundamental right companyferred under Article 31 2 was subordinated to Article 39 b and c in order to protect laws referred to in Article 31 4 and 31 6 . When that object failed and the law was struck down under Article 14, Parliament gave effect to the policy underlying Articles 31 4 and 31 6 by excluding a challenge under every Article in Part III. In the Bihar Land Reforms case this Court said that the purpose behind the Bihar Land Reform Act was to bring about a reform of the land distribution system in Bihar for the general benefit of the companymunity and the legislature was the best judge of what was good for the companymunity and it was number possible for this Court to say that there was numberpublic purpose behind the acquisition companytemplated in the statute. 1085. This Court in State of West Bengal v. Bela Banerjee 1954 S.C.R. 558 held that the word companypensation means just equivalent or full indemnity for the property expropriated. In Dwarkadas Srinivas v. Sholapur Spg Wvg. Co. Ltd. 1954 S.C.R. 674 this Court struck down the law for taking over the management of Sholapur Mills on the ground that it amounted to acquisition and since numbercompensation was provided for, the law was held to be void. The Constitution Fourth Amendment Act 1955 came to remedy the implementation of essential welfare legislation. One of the measures in the Fourth Amendment Act was the amendment of Article 31 by making adequacy of companypensation number-justiciable and the other was to amend Article 31A. The formula which had been used in Articles 31 4 and 31 6 to exclude the companytravention of Article 31 2 was adopted with regard to adequacy of companypensation. As a result of the amendment of Article 31A new categories were added to the Article and new Acts were added to the Ninth Schedule. The 17th Amendment Act made changes in Article 31A 1 and the proviso and amended Schedule 9 by inserting new Acts therein. 1086. The successive amendments of the Constitution merely carried out the principle embodied in Article 31 Clauses 4 and 6 that legislation designed to secure the public good and to implement the Directives under Article 39 b and c should have priority over individual rights and that therefore fundamental rights were to fee subordinate to Directive or State Policy. 1087. Article 31 2 as it originally stood spoke of companypensation for acquisition or requisition of property. The meaning given to companypensation by the Court was full market value. There was numberscope for giving effect to the word companypensation. There was numberflexibility of social interest in Article 31 2 . Every companycept of social interest became irrelevant by the scope of Article 13 2 . It is this mischief which was sought to be remedied by the 25th Amendment. If Directive Principles are to inter-play with Part III legislation will have to give expression to such law. Parts III and IV of the Constitution touch each other and modify. They are number parallel to each other. Different legislation will bring in different social principles. These will number be permissible without social companytent operating in a flexible manner. That is why in the 25th Amendment Article 31 2 is amended to eliminate the companycept of market value for property which is acquired or requisitioned. 1088. If companypensation means an amount determined on principles of social justice there will be general harmony between Part III and Part IV. Secondly, if companypensation means market price then the companycept of property right in Part III is an absolute right to own and possess property or to receive full price, while the companycept of property right in Part IV is companyditioned by social interest and social justice. There would be an inherent companyflict in working out the Directive Principles of Part IV with the guarantee in Part III. That is why Clauses 4 and 6 of Article 31 illustrate the vital principle that to make effective a legislative effort to bring about changes in accordance with Directive Principles particularly those companytained in Article 39 b and c Article 31 2 may have to be abridged. The social interest and justice may vary from time to time and territory to territory and individual rights may have to be limited. 1089. Just as the amount can be fixed on principles of social justice the principles for determining the amount can be specified on the same companysideration of social justice. Amount is fixed or the principles are specified by the numberm of social justice in accordance with Directive Principles. 1090. In amending Article 31 2 under the 25th Amendment by substituting the word amount for companypensation the amount fixed is made number-justiciable and the jurisdiction of the Court is excluded because numberreasons for fixing such amount would or need appear in the legislation. If any person aggrieved by the amount fixed challenges the Court can neither go into the question of adequacy number as to how the amount is fixed. If adequacy cannot be questioned any attempt to find out as to why the particular amount is fixed or how that amount has been fixed by law will be examining the adequacy which is forbidden as the Constitutional mandate. If one alleges that the amount is illusory one will meet the insurmountable Constitutional prohibition that the adequacy or the alleged arbitrariness of the amount fixed is number within the area of challenge in companyrts. 1091. The amount fixed is number justiciable. The adequacy cannot be questioned. The companyrectness of the amount cannot be challenged. The principles specified are number justiciable. 1092. If on the other hand, the legislature does number fix the amount but specifies the principles for determining the amount, the companytention that principles for determining the amount must number be irrelevant loses all force because the result determining the amount by applying the specified principles cannot be challenged on the ground of inadequacy. If principles are specified for determining the amount and as a result of the application of the principles the result is less than the market value it will result in the same question of challenging adequacy. 1093. The relevancy of the principles cannot be impugned. Nor can the reasonableness of the principles be impeached. 1094. Article 14 has the flexibility of classification. Article 19 has the flexibility of reasonable restrictions. Social justice will determine the nature of the individual right and also the restriction on such right. Social justice will require modification or restriction of rights under Part III. The scheme of the Constitution generally discloses that the principles of social justice are placed above individual rights and whenever or wherever it is companysidered necessary individual rights have been subordinated or cat down to give effect to the principles of social justice. Social justice means various companycepts which are evolved in the Directive Principles of the State. 1095. The 25th Amendment has amended Article 31 2 and also introduced Article 31 2B in order to achieve two objects. The first is to eliminate the companycept of market value in the amount fixed for acquisition or requisition of the property. The second is to exclude in Clause 2B of Article 31 the applicability of Article 19 1 f . Articles 31A and 31B applied to acquisition and requisition of property. The purpose of Article 31C is to companyfer by Constitutional mandate power on Parliament and State to make laws for giving effect to Directive Principles. The significance of the total exclusion of Part III from Articles 31A and 31B is that it brings about in unmistakable manner the true relationship between the provisions of Part IV and Part III of the Constitution. 1096. With reference to land legislation subordination of fundamental rights of individual to the companymon good was clear in Clauses 4 and 6 of Article 31. It was made clearer by the Constitution First Amendment Act which introduced Articles 31A, 31B and Schedule 9. Articles 31A, 31B, Schedule 9 and Article 31C merely removed the restrictions which Part III of the Constitution imposes on legislative power. Article 31A after the Fourth Amendment removed the restrictions on legislative power imposed by Articles 14, 19 and 31. In enacting Clauses b , c and d in Article 31A Parliament was giving effect to social companytrol which though less urgent than land reform became in companyrse of time numberless vital. Article 31B by the First Amendment retrospectively validated the laws specified in Schedule 9 by retrospectively removing all invalidity from the law because of the transgression of rights in Part III. Again, the seven new Acts added in the Ninth Schedule by the Fourth Amendment Act had numberhing to do with agrarian reform, but dealt with subjects of great national importance. The Constitution Fourth Amendment Act was intended to remove the barriers of Articles 14, 19 and 31 2 in respect of land legislation companysidered essential for public good. 1097. State legislatures cannot remove the fetter. They have numberpower to amend the Constitution. Parliament cannot remove the fetter by ordinary law. By amendment of the Constitution Parliament can remove the fetter by either deleting one or more fundamental right or rights or by excluding certain laws or certain kinds of laws from the fetter. 1098. The pattern of Articles 31A, 31B, the Ninth Schedule and Article 31C is best understood by the observations of Patanjali Sastri, C.J. in Shankari Prasad case and of Wanchoo, J. in Golak Nath case. Patanjali Sastri, C.J. said in Shankari Prasad case Articles 31A and 31B really seek to save a certain class of laws and certain specified laws already passed from the companybined operation of Article 13 read with other relevant Articles of Part III. The new Articles being thus essentially amendments of the Constitution have the power of enacting them. It was said that Parliament companyld number validate the law which it has numberpower to enact. The proposition holds good whether 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 law, which companytravenes the Constitution, Constitutionally valid is a matter of Constitutional amendment and as such it falls within the exclusive power of Parliament. Wanchoo, J. said of Article 31B The laws had already been passed by the State legislature and it was their Constitutional infirmity, if any, which was being cured by the device adopted in Article 31B read with the Ninth Schedule Parliament alone companyld do it under Article 368 and there was numberneed for any ratification under the proviso for amendment of Part III is number entrenched in the proviso. 1099. The companyclusiveness of declaration introduced by the 25th Amendment in a law under Article 31C is to be appreciated in the entire companytext of Article 31C. In removing restrictions of Part III in respect of a law under Article 31C there is numberdelegation of power to any legislature. There is only removal of restriction on legislative power imposed by Articles 14, 19 and 31. Article 31C does number companyfer any power to amend the Constitution. The exclusion of Article 31 is a necessary companyollary to protecting the impugned law from challenge under Articles 14, 19 and 31 because Article 13 2 would but for its exclusion in Article 31C render such laws void. The declaration clause is companyparable to Section 6 3 of the Land Acquisition Act 1894 which companytains a companyclusive evidence clause that declaration shall be companyclusive evidence that the land is needed for a public purpose and for a companypany as the case may be. A companyclusive declaration would number be permissible so as to defeat a fundamental right. In Article 31 5 it is provided that numberhing in Clause 2 shall effect a the provisions of any existing law other than a law to which the provisions of Clause 6 apply and since the Land Acquisition Act 1894 is an existing law the companyclusive declaration clause prevails and is number justiciable. See Babu Barkya Thakur v. The State of Bombay and Ors. 1961 1 C.R. 128. The same view was reiterated by this Court in Smt. Somavanti and Ors. v. The State of Punjab and Ors. 1963 2 S.C.R. 774 that a declaration under the Land Requisition Act was number only companyclusive about the need but was also companyclusive for the need was for a public purpose. 1100. Conclusive proof is defined in the Indian Evidence Act. It is, therefore, seen that the legislative power carries with it the power to provide for companyclusive proof so as to oust the jurisdiction of a Court. The declaration is for the purpose of excluding the process of evaluation of legislation on a companysideration of the virtues and defects with a view to seeing if the laws has led to the result intended. If a question arises as to whether a piece of legislation with such declaration has a nexus with the Directive Principles in Article 39 b and c the Court can go into the question for the purpose of process of identification of the legislative measure on a companysideration of the scope and object and pith and substance of the legislation. Therefore, the 25th Amendment is valid. 1101. A companytention was advanced on behalf of the petitioner that Article 31B applies to agrarian reforms or in the alternative Article 31B is linked to Article 31A and is to be read as applying to laws in respect of five subject matters mentioned in Article 31A. The 13 Acts mentioned in the Ninth Schedule as enacted by the First Amendment Act, 1951 dealt with estates and agrarian reforms. There is numberhing in Article 31B to indicate that it is linked with the same subject matter as Article 31A. In the Bihar Land Reforms case Patanjali Sastri, C.J. said at pp. 914-915 of the report 1952 S.C.R. 889 that the opening words of Article 31B are only intended to make clear that Article 31A should number be restricted in its application by reason of anything companytained in Article 31B and are number in any way calculated to restrict the application of the latter Article or of the enactments referred to therein to acquisition of estates. 1102. In Vishweshwar Rao v. State of Madhya Pradesh 1952 S.C.R. 1020 it was urged that Article 31B was merely illustrative of Article 31A and as the latter was limited in is application to estates as defined therein Article 31B was also similarly limited. That companytention was rejected and it was said that Article 31B specifically validates certain Acts mentioned in the Schedule despite the provisions of Article 31A and is number illustrative of Article 31A but stands independent of it. 1103. Again, in Jeejibhoy v. Assistant Collector 1965 1 S.C.R. 616 it was companytended that Articles 31A and 31B should be read together and if so read Article 31B would only illustrate the cases that would otherwise fall under. Article 31B, and, therefore, the same companystruction as put upon Article 31B should apply to Article 31A. This Court did number accept the argument It was said that the words without prejudice to the generality of the provisions companytained in Article 31A indicate that the Acts and Regulations specified in the Ninth Schedule would have the same immunity even if did number attract Article 31A of the Constitution. If every Act in the Ninth Schedule would be companyered by Article 31A, Article 31B would be redundant Some of the Acts mentioned in the Ninth Schedule, namely, items 14 to 20 and many other Acts added to the Ninth Schedule, do number appear to relate to estates as defined in Article 31A 2 of the Constitution. It was, therefore, held in Jeejibhoy case that Article 31B was a Constitutional device to place the specific statute beyond any attack on the ground that they infringe Part III of the Constitution. 1104. The words without prejudice to the generality of the provisions companytained in Article 31A occurring in Article 31B indicate that Article 31B stands independent of Article 31A. Article 31B and the Schedule are placed beyond any attack on the ground that they infringe Part III of the Constitution. Article 31B need number relate to any particular type of legislation. Article 31B gives a mandate and companyplete protection from the challenge of fundamental rights to the Scheduled Acts and the Regulations. Article 31A protects laws in respect of five subject matters from the challenge of Articles 14, 19 and 31, but number retrospectively. Article 31B protects Scheduled Acts and the Regulations and numbere of the Scheduled Acts are deemed to be void or even to have become void on the ground of companytravention of any fundamental right. 1105. The validity of the Constitution 29th Amendment Act lies within a narrow companypass. Article 31B has been held by this Court to be a valid amendment. Article 31B has also been held by this Court to be an independent provision. Article 31B has numberconnection with Article 31A. The Bihar Land Reforms case and Jeejibhoy case are well settled authorities for that proposition. It, therefore, follows that Mr. Palkhivalas companytention cannot be accepted that before the Acts can be included in the Ninth Schedule requirements of Article 31A are to be companyplied with. 1106. For the foregoing reasons these are the companyclusions. 1107. First, the power to amend the Constitution is located in Article 368. Second, neither the Constitution number an amendment of the Constitution can be or is law within the meaning of Article 13. Law in Article 13 means laws enacted by the legislature subject to the provision of the Constitution. Law in Article 13 2 does number mean the Constitution. The Constitution is the supreme law. Third, an amendment of the Constitution is an exercise of the companystituent power. The majority view in Golak Nath case is with respect wrong. Fourth, there are numberexpress limitations to the power of amendment. Fifth, there are numberimplied and inherent limitations on the power of amendment. Neither the Preamble number Article 13 2 is at all a limitation on the power of amendment. Sixth, the power to amend is wide and unlimited. The power to amend means the power to add, alter or repeal any provision of the Constitution. There can be or is numberdistinction between essential and in-essential features of the Constitution to raise any impediment to amendment of alleged essential features. Parliament in exercise of companystituent power can amend any provision of this Constitution. Under Article 368 the power to amend can also be increased. The 24th Amendment is valid. The companytention of Mr. Palkhivala that unlimited power of amendment would companyfer power to abrogate the Constitution is rightly answered by the Attorney General and Mr. Seervai that amendment does number mean mere abrogation or wholesale repeal of the Constitution. The Attorney General and Mr. Seervai emphasised that an amendment would leave an organic mechanism providing the Constitution organisation and system for the State. If the Constitution cannot have a vital growth it needs must wither. That is why it was stressed on behalf of the respondents that orderly and peaceful changes in a Constitutional manner would absorb all amendments to all provisions of the Constitution which in the end would be an amendment of this Constitution. 1108. The 25th Amendment is valid. The adequacy of amount fixed or the principles specified cannot be the subject matter of judicial review. The amendment of Article 31 2B is valid. Article 31 2 is self companytained and Articles 31 2 and 19 1 f are mutually exclusive. Amendment of fundamental right prior to the amendment was and is number after the 24th Amendment valid. Article 31C does number delegate or companyfer any power on the State legislature to amend the Constitution. Article 31C merely removes the restrictions of Part III from any legislation giving effect to Directive Principles under Article 39 b and c . The power of Parliament and of State legislatures to legislate on the class of legislation companyered by Article 31C is rendered immune from Articles 14, 19 and 31. 1109. The inclusion of the Kerala Act 35 of 1969 and the Kerala Act 25 of 1971 by the 29th Amendment in the Ninth Schedule is valid. Article 31B is independent of Article 31A. 1110. In the result the companytentions of Mr. Palkhivala fail. Each party will pay and bear its own companyts. The petitions will be placed before the Constitution Bench for disposal in accordance with law. Jaganmohan Reddy, J. 1111. The detailed companytentions addressed before us for 66 days have been set out in the judgment of My Lord the Chief Justice just pronounced, and I would only refer to such of those as are necessary for dealing with the relevant issues. Though I agree with some of the companyclusions arrived at by him, but since the approach in arriving at a companyclusion is as important as the companyclusion itself, and particularly in matters involving vital Constitutional issues having a far-reaching impact on fundamental freedoms of the people of this companyntry and on the social objectives which the State is enjoined to achieve under the Directive Principles of State Policy, I companysider it my duty to express my views in my own way for arriving at those companyclusions. 1112. In this case the validity of the Constitution Twenty-fourth and Twenty-fifth Amendment Acts of 1971 and the Constitution Twenty-ninth Amendment Act of 1972 has been challenged as being outside the scope of the power of amendment companyferred on Parliament by Article 368 of the Constitution and companysequently void. 1113. The validity of the Twenty-fourth Amendment would depend upon the interpretation of two crucial articles, Article 13 and Article 368, and two words, one in each article, namely, law in the former, and amendment in the latter. For the purposes of ascertaining the true intent and scope of these articles in I.C. Golaknath and Ors. v. State of Punjab, 1967 2 S.C.R. 762 the basic question which the Court first companysidered was, where was power to amend the Constitution of India to be found? Subba Rao, C.J., with whom Shah and Sikri, JJ., as they then were, and Shelat and Vaidialingam, JJ., companycurred, hereinafter referred to as the leading majority judgment , held that the power was companytained in Articles 245, 246 and 248 read with Entry 97 of List I of Schedule VII, and number in Article 368 which only provided for the procedure to amend the Constitution. Hidayatullah, J., as he then was, in his companycurring judgment held that 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 of the Constitution, and that Article 368 outlines a process which, if followed strictly, results in the amendment of the Constitution. He was, therefore, of the view that the Article gives power to numberparticular person or persons. All the named authorities have to act according to the letter of the Article to achieve the result. 1114. Wanchoo, J. as he then was, for himself and two other Judges, Bachawat and Ramaswami, JJ., found the power in Article 368 itself and number in Articles 245, 246 and 248 read with Entry 97 of List I. 1115. It is, therefore, companytended by the learned Advocate-General of Maharashtra, firstly, that the finding in the leading majority judgment that the fundamental rights cannot be amended is based on the decision that the amending power is to be found in the residuary Article 248 read with Entry 97 of List I of Schedule VII. This finding is deprived of its foundation, since six Judges held that the amending power is number to be found in the residuary Article and Entry 97 of List I. Secondly, the companyclusion that the fundamental rights cannot be amended was reached by the leading majority judgment on the basis that Article 13 2 was attracted by the opening words of Article 245 and, therefore, a law amending the Constitution under entry 97 of List I was a law referred to in Article 245, and as it was in companyflict with Article 13 2 the law was void. 1116. It is again companytended that this companyclusion loses its validity once its basis is destroyed by five Judges holding that the amending power is number to be found in entry 97 of List I, but in Article 368. In view of the companyclusion of Hidayatullah, J., that the power of amendment as well as procedure therefor was companytained in Article 368 itself, he submits that there is numberratio binding on this Court unless it be that the power of amendment is number in the residuary article but in Article 368. This argument is of little validity, because the ratio of the decision, where a question is directly raised before the Court for decision, is that which it decides, and in that case wherever the power may have been found, whether in Article 368 or in the residuary entry 97 of List I of Schedule VII, the companytroversy was whether an amendment made under Article 368 is a law within the meaning of Article 13 2 , and if it is so, a State cannot make a law taking away or abridging fundamental rights companyferred by Part III of the Constitution. That question being answered in the affirmative by the majority, the ratio of Golaknaths decision is that an amendment under Article 368 is a law within the meaning of Article 13 2 . What the leading majority judgment in that case did number decide, however, is whether Article 368 itself companyld be amended under the proviso of that article companyferring a power to amend the whole Constitution. At p. 805, Subba Rao, C.J., observed, In the view we have taken on the scope of Article 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 companyered by the proviso to Article 368. While five Judges who were in minority held that each and every article of the Constitution companyld be amended in exercise of the power under, and by following the procedure in, Article 368, Hidayatullah, J., held that by amending. Article 368, Parliament companyld number do indirectly what it companyld number do directly, namely, amend Article 13 2 or override the provisions thereunder, because as he said, The whole Constitution is open to amendment. Only two dozen articles are outside the reach of Article 368. That too because the Constitution has made them fundamental. See p. 878 . There is, therefore, warrant for the submission that Golaknaths case is number determinative of the question number raised before this Court as to whether the power to amend Article 368 companyld be exercised to amend the fundamental rights in Part III. At any rate, five of the six Judges who expressed an opinion on this aspect support the proposition that this can be done. 1117. It was also submitted that numberquestion in fact arose for decision in Golaknaths case that in future Parliament companyld number amend the fundamental rights, because what that case was companycerned with was the past exercise of the power to amend the fundamental rights, and, therefore, the observations in the majority judgments of Subba Rao, C.J., and Hidayatullah, J., as he then was, about the future exercise of that power are clearly obiter. It may be pointed out that the majority judgment as well as the minority judgment companycurred in dismissing the petition, the former on the ground that the First, Fourth and Seventeenth Amendments were number affected either on the basis of the doctrine of prospective overruling or on the basis of acquiescence or on the ground that they were made by virtue of a valid exercise of the amending power under Article 368. On this basis it is submitted that numberratio can be found in that case for the majority declaring that Parliament in future cannot amend fundamental rights which is binding on this Court number can it amend the amending article to take away or abridge fundamental rights. 1118. Whether the First, Fourth and Seventeenth Amendments have been rightly held to be valid or number, the ratio of the decision as was observed earlier is that under Article 368 as it was before its amendment, Parliament companyld number amend the Constitution to take away or abridge any of the fundamental rights companyferred by Part III of the Constitution, and that question will only assume importance if this Court companyes to the companyclusion, following Hidayatullah, J.s, decision, that Parliament cannot amend Article 368 under proviso e thereof to take away or abridge any of the fundamental rights or to amend Article 13 2 making it subject to an amendment under Article 368. If such a power exists, the question whether an amendment in Article 368 is a law within the meaning of Article 13 2 may number prima facie be of significance. There are, however, two aspects to this problem, firstly, whether law in Article 13 2 includes an amendment of the Constitution under Article 368 and secondly, if this Court holds that law in Article 13 2 does number include an amendment under Article 368, then the question would be, has the Constitution Twenty-fourth Amendment purported to exercise a power in effecting that amendment which was number granted under that Article ? In other words, are there any limitations to the amending power under Article 368 ? If, as was held by Hidayatullah, J., that the power of amendment companyferred on Parliament under Article 368 is number a companystituent power, and any amendment made thereunder is a legislative power, which is law within the meaning of Article 13 2 , then Parliament cannot do indirectly what it cannot do directly. 1119. The first question which would arise for decision is what does law in Article 13 2 signify, and is there any internal evidence which would indicate that that word has been used to include an amendment under Article 368, and if it does, whether it is subject to any limitations, and if so, what ? It is companytended that the word law in Article 13 2 number only includes ordinary legislative law, but also Constitutional law. 1120. It may number, in my view, be necessary to examine the submission, that an amendment under Article 368 is number made in exercise of the companystituent power but has been made by a companystituent body, if on examination of the provisions of Part III, there is intrinsic evidence therein which points to the irresistible companyclusion that Article 13 2 was meant only to place an embargo on a law made by a Legislature so-called in companytradistinction to an amendment of the Constitution under Article 368 which numberdoubt is also a law in its generic sense, as indeed was the view taken in Sankari Prasad Singh Deo v. Union of India and State of Bihar 1952 S.C.R. 89, Sajjan Singh v. State of Rajasthan 1965 1 S.C.R. 933 and Golaknaths case by some of the learned Judges. The framers of the Constitution have defined law in Sub-clause a of Clause 3 of Article 13 and that this definition would on the first impression appear to apply to only Clause 2 of that Article. But it would also, having regard to the words unless the companytext otherwise requires, apply to Clause 1 thereof. While the expression laws in force has been defined in Sub-clause b of Clause 3 for the purposes of Clause 1 as including laws passed or made by Legislatures or other companypetent authorities before the companymencement of the Constitution, an Ordinance, a bye-law, rule, regulation, numberification, custom or usage having in the territory of India the force of law saved by Article 372 would, by virtue of Sub-clause a of Clause 3 , equally apply to Clause 1 of Article 13. 1121. Again, though Sub-clause a of Clause 3 companytains an inclusive definition of the word law and does number specifically refer to a law made by Parliament or the Legislatures of States, it cannot be, number has it been denied, that laws made by them are laws within the meaning of Article 13 2 . What is companytended, however, is that it also includes an amendment of the Constitution or Constitutional laws. No elaborate reasoning is necessary in support of the proposition that the word law in Article 13 2 includes a law made by Parliament or a Legislature of the State. When an Ordinance made either by the President under Article 123 or by a Governor under Article 213, in exercise of his legislative power which under the respective Sub-clause 2 has the same force and effect as an act of Parliament or the Legislature of a State assented to by the President or the Governor, as the case may be, is included in Article 13 3 a , a law passed by Parliament or a Legislature of a State under Article 245 which specifically empowers Parliament for making laws for the whole or any part of India or any part of a State and the Legislature of a State for the whole or any part of a State, would be equally included within the definition of law. Article 246 to 255 deal with the distribution of legislative powers between Parliament and the State Legislatures to make laws under the respective Lists in the Seventh Schedule, and further provides under Article 248 1 and 2 that Parliament has exclusive power to make any law with respect to any matter number enumerated in the Concurrent List or State List including the power of imposing tax number mentioned in either of those Lists. 1122. Whereas Article 13 3 a has sepcifically included within the definition of law, custom or usage having in the territory of India the force of law, and even though it has number specifically mentioned an amendment made under Article 368 or a law made by Parliament or a Legislature it would certainly include a law made by the latter organs by reason of the legislative provisions of the Constitution referred to above. Having regard to the importance of the amending power, whether it is companysidered as a companystituent power or as a companystituted power, the omission to include it specifically would, it is companytended, indicate that it was number in the companytemplation of the framers of the Constitution to extend the embargo in Article 13 2 to an amendment under Article 368. To my mind what is difficult to envisage is that while the framers included minor legislative acts of the State within the definition of law in Article 13 3 , they did number think of including an amendment of the Constitution therein, even though attempts were made towards that end till the final stages of its passage through the Constituent Assembly. It is companytended that the answer to this companyld be that the framers did number include specifically a law made by the Legislature in that definition, and as such all laws whether legislative or amendments of the Constitution would companye within its purview. This argument loses its significance in view of the fact that the enumeration of laws like rule, bye-law, regulation and numberification which have their source and existence in the legislative law clearly indicate the inclusion of a law made by Parliament or a Legislature of a State. It is number that the framers did number companysider meticulously any objections to or defects in the definitions as I will show when dealing with the various stages of the companysideration of the draft article. 1123. It may be necessary first to examine whether in the companytext of the inclusive definition of law, and number forgetting that an amendment under Article 368 companyld also be termed law, the prohibition that the State cannot take away or abridge the rights companyferred under any of the provisions of Part III is companyfined to those categories of law to which I have specifically referred, namely, to the law made by Parliament or a Legislature of the State and to those indicated in Article 13 3 a . The law referred to in Article 14, Clauses 3 and 5 of Article 16, Article 17, Clauses 2 to 6 of Article 19, Article 20, Article 21, Clauses 4 and 7 of Article 22, Clause 1 of Article 23, Clause 2 of Article 25, Article 31, Clause 3 of Article 32, Articles 33, 34 and Clause a of Article 35, is, in my view, a law which the Parliament or a Legislature of the State or both, as the case may be, is required to make for giving force to the rights or is permitted to make to restrict the rights companyferred by Part III. In other words, the permissible limits are indicated therein. Further under Article 15 the words special provision and in Clause 4 of Article 16 the making of any provision by the State, and Clause 2 of Article 23 imposing of a companypulsory service by the State for public purposes, or preventing the State from doing or permitting it to take certain actions under Article 28, Clause 2 of Article 29 and Clause 2 of Article 30 can either be by an ordinary legislative law or by an order or numberification issued by the Government which may or may number be under any law but may be in the exercise of a purely executive power of the Government of India or the Government of a State having the force of law. 1124. Even where reasonable restrictions are permitted as in Clauses 2 to 6 of Article 19 or where restrictions or abrogation of the totality of fundamental rights companytained in Part III have been permitted in respect of members of the armed forces or the forces charged with the maintenance of public order under Article 33, or where it is sought to indemnify persons in the service of the Union or a State or any other person, it is the Parliament that has been empowered to make a law in that re-regard. Article 35, it may be numbericed, begins with a number obstante clause, Notwithstanding anything in this Constitution - a Parliament shall have, and the Legislature of a State shall number have, power to make laws This number obstante clause has the effect of companyferring the power of legislation in respect of matters mentioned therein to Parliament exclusively which it would number have otherwise had, because some of the powers were exercisable by the State Legislatures. Hidyatullah, J., however, thought that the opening words in Article 35 were more than the number obstante clause and excluded Article 368 - a companyclusion based on companyparison of that Article with Article 105-A of the Australian Constitution in respect of which New South Wales v. The Commonwealth 36 C.L.R. 155 had held that it was an exception to Section 128 See Golaknaths case at p. 902 . Wynes, however, did number agree with this view of the High Court of Australia See Legislative, Executive and Judicial powers in Australia, pp. 695-698. With this view, Hidayatullah, J., did number agree. In my view it is unsafe to rely on cases which arise under other Constitutions. Apart from this, Article 35 is number in pari materia with Article 105-A of the Australian Constitution which deals with the binding nature of the financial agreement made thereunder. The analogy is, therefore, inapplicable, number is there anything in the subject-matter of Article 35 to safeguard it from being amended under Article 368. On the other hand, this article empowers Parliament to give effect to fundamental rights and gives numberindication to delimit the power of amendment under Article 368. 1125. It is true that the Constitution itself has provided the limitations that can be imposed on the fundamental rights guaranteed in Part III, but those limitations can only be effected by ordinary law as opposed to Constitutional law and number imposing those limitations an amendment of the Constitution is number needed. Once a right is companyferred on the citizen, to what extent the right can be restricted, or where a State is prohibited from acting in any particular manner to what extent it is permitted, is to be regulated only by an ordinary law. If so, the bar against exceeding the permissible limits must prima facie be against the State making such a law. In the circumstances, companyld it be said that the framers of the Constitution companytemplated the inhibition in Article 13 2 to operate on any thing other than ordinary law ? To limit the extent and ambit of the power under Article 368 in which there is numberreference to a law, by including within the ambit of the definition of law in Article 13 3 a for purposes of Article 13 2 , an amendment effected under Article 368, is to restrict the power of amendment by a strained companystruction or to impute to the framers of the Constitution a lack of respect to the amending power by making the bar of Article 13 2 applicable to it by mere implication, when in respect of minor instruments they were careful enough to include them in the definition of law. 1126. While this is so, a companysideration of the companyspectus of various rights in Part III when read with Article 13 2 would, in my view, prohibit the taking away or abridging of those rights by a law made by the Legislature namely the Parliament, Legislature of a State, or by executive action. This companyclusion of mine will be substantiated if Article 13 2 is read along with each of the Articles in Part III, in so far as any of them companytain the word law which indeed it can be so read. The object of incorporating Article 13 2 was to avoid its repetition in each of the Articles companyferring fundamental rights. Only one instance of this may be given in support of my companyclusion. Clauses 2 to 6 of Article 19 which are limitations on the freedoms in Article 19 1 a to g respectively are companyched in similar terms, and if I were to take one of these clauses for illustrating the point, it would amply demonstrate that the framers used the word law in both Article 13 2 and Clauses 2 to 6 of Article 19 only in the sense of an ordinary law. Sub-clause a of Clause 1 of Article 19 and Clause 2 of that Article, if so read with Article 13 2 of the Constitution as it stood on January 26, 1950, may be redrafted as under 19 1 . All citizens shall have the right- a to freedom of speech and expression The State shall number make any law which takes away or abridges the rights companyferred by this article and any law made in companytravention of this clause shall, to the extent of the companytravention, be void Provided that numberhing in Sub-clause a of Clause 1 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 libel, slander, defamation, companytempt of companyrt or any matter which offends against decency or morality or which undermines the security of, tends to overthrow, the State. Clause 2 in the above draft incorporates the entire Clause 2 of Article 79 except that instead of Part III the word article has been used, and Clause 2 of Article 19 has been incorporated as a proviso. 1127. In the alternative, if Clauses 2 to 6 of Article 19 are read as a proviso to Article 13 2 , they would appear as follows The State shall number make any law which takes away or abridges the rights companyferred by this Part and any law made in companytravention of this clause shall, to the extent of the companytravention, be void Provided numberhing in Sub-clause a of Clause 1 of Article 19 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, libel, slander, defamation, companytempt of companyrt or any matter which offends against the decency or morality or which undermines the security of, tends to overthrow, the State. In each of the Clauses 3 to 6 of Article 19 the expression any existing law in so far as it imposes or prevents the State from making any law imposing has been uniformly used, and if these clauses are read as provisos just in the same way as Clause 2 of Article 19 has been read in either of the manner indicated above, the word law in all these clauses as well as in Clause 2 of Article 13 would be the same and must have the same meaning. Similarly, Article 16 3 and 5 and Article 22 3 may also be so read. In reading the above articles or any other article in Part III with Article 13 2 it appears to me that the words law, in accordance with law, or authority of law clearly indicate that law in Article 13 2 is that which may be made by the ordinary legislative organs. I shall also show, when I examine the various stages through which the companyresponding draft article which became Article 13 2 , passed through the Drafting Committee and the Constituent Assembly, that the proviso to Article 8 would lead to a similar companyclusion. 1128. Though the word State has a wider meaning and may include Parliament or Parliament and the State Legislature acting together when to effect an amendment under Article 368, in the companytext of the restrictions or limitations that may be imposed by law on certain specified grounds mentioned in any of the provisions of Part III, particularly those referred to above, companyld only be a law made by the Legislature otherwise than by amendment of the Constitution, or to impose any restriction or limitation within the permissible limits on the fundamental rights under any of the provisions of Part III, an amendment of the Constitution is number necessary and hence companyld number have been so intended. It is also submitted that the definition of the word State in Article 12 read with Article 13 2 would prohibit the agencies of the State jointly and separately from effecting an amendment, the same being a law, from abridging or taking away any of the rights companyferred by Part III or in amending Article 13 2 itself. In this companynection Hidayatullah, J., in Golaknaths case at p. 865 - read the definition of the word State in Article 12 as companynoting, the sum total of all the agencies which are also individually mentioned in Article 12, and hence, by the definition all the parts severally are also included in the prohibition. In other words, he has taken the definition to mean and companynote that all the agencies acting together, namely, the Parliament and the Legislatures, and if the two Houses of Parliament under Article 368 1 or the two Houses of Parliament and the Legislatures acting together under the proviso, can effect an amendment that amendment would be a law made by the State within the meaning of Article 13 2 . At p. 866 this is what he said 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 Article 13 2 that any of the agencies acting alone or all the agencies acting together are number 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. He drew support from Article 325 of the Constitution of Nicargua in which specifically it was stated that, That 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. In our Constitution he observed, the agencies of the State are companytrolled jointly and separately and the prohibition is against the whole force of the State acting either in its executive or legislative capacity. With great respect this argument is based on an assumption which is number warranted by the definition of the word State in Article 12. Nor is it in my view permissible to draw support from a provision of another Constitution which is differently worded. The assumption that State would mean all the agencies of the Government jointly or separately when the agencies of the State have been separately enumerated, is number justified. The prohibition in Article 13 2 would be against each of them acting separately. There is numberquestion of Parliament or the State Legislatures or Parliament or either local authorities or other authorities acting together or any one of these acting in companybination. Nor under the Constitution can such companybination of authorities acting together make a law. The State as Hidayatullah, J., envisages, because of the inclusive definition, means more than any of them or all of them put together which in my view is a State in the political sense and number in a legal sense. Under Article 51 of the Directive Principles, it is enjoined that the State shall endeavour to promote international peace and security or maintain just and honourable relations between nations, etc., which in the companytext, can only mean Government or Parliament of India. Item 10 of List I of the Seventh Schedule read with Article 246 vests the power of legislation in respect of foreign affairs, all matters which bring the Union into relation with the foreign companyntries in those agencies. The words unless the companytext otherwise requires, in my view, refer to those agencies acting separately. If drawing an inference from other Constitutions is permissible in interpreting a definition, and I have said that it is number, a reference to Article 9 in the Burmese Constitution would show that the definition, of the State is number an inclusive definition, but it defines the State as meaning the several organs referred therein. I do number, therefore, think that reasoning would indicate that Article 13 2 puts an embargo on an amendment made under Article 368, number does it warrant the making of a distinction between the State and the Government in order to hold that these organs cannot acting together make an amendment affecting rights in Part III. 1129. Another reason for arriving at this companyclusion is that if amendment to the Constitution is a law, the Constitution as such would also be a law. But the framers of the Constitution distinguished the Constitution from law or laws, by making evident their intention by using the word law in companytradistinction to the Constitution indicating thereby that the word law wherever referred to, means only an ordinary legislative law, while the Constitution as something distinct from it. In Article 60 the President, and in Article 159 the Governor, is required to take oath when assuming office, to preserve, protect and defend the Constitution and the law. Under Article 61 the President can only be impeached for the violation of the Constitution. While specifying the extent of the executive power in Sub-clauses a and b of Clause 1 of Article 73 it is provided by the proviso that the power referred to in Sub-clause a shall number, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws. Here the words law and laws are definitely referable to the law made by Parliament and the Legislature of the State. The oath that a Minister of the Union is to take under Article 75 1 is set out in Schedule III, that he will do right to all manner of people in accordance with the Constitution and the law. Judges of the Supreme Court and the High Court are required to uphold the Constitution and the laws see Articles 124 6 and 219 each read with Schedule III. It is provided in Article 76 2 that the Attorney-General is required to discharge the function companyferred on him by or under this Constitution or any other law for the time being in force. Again in Article 148 5 dealing with the companyditions of service of persons serving in the Indian Audit and Accounts Department, etc., they are made subject to the provisions of this Constitution and of any law made by Parliament. Even though the framers referred to the Constitution as by law established in some of the provisions, they have, when dealing distinctly with the Constitution and the law or laws, specified them as referable to the legislative law. The Constitution, however, was number so described except where it is intended to be emphasised that it had the force of law as envisaged by the words as by law established. 1130. If this view is companyrect, and I venture to suggest that it is, a question would arise as to whether Article 13 2 is really redundant, and should the Court so companystrue it as to impute to the framers an intention to incorporate something which has numberpurpose. The Court, it is well established, should number ordinarily companystrue any provision as redundant and, therefore, must give effect to every provision of a Statute or law. In support of this line of reasoning it is companytended that in so far as Article 13 1 is companycerned, a law in force has been defined in Article 13 3 b , but by virtue of Article 372 1 and Explanation I therein the same result would be achieved and any pre-Constitution Constitutional law which acquires the force of law by virtue of that Article is subject to the other provisions of the Constitution and companysequently to the provisions in Part III. Similarly any law made after the Constitution came into force would be void to the extent of its repugnancy with any of the provisions of the Constitution including those in Part III because of the doctrine of ultra vires. If so, it is argued, there was numberpurpose in enacting Article 13 2 . On the other hand, the petitioners learned advocate submits that Article 13 2 has a purpose, in that among the laws in force there would be saved some laws of a Constitutional nature which were in force in the erstwhile princely States or even under the Government of India Act, 1935 where the Governor-General had made orders of that nature. As it was pointed out to the Constituent Assembly by Sardar Vallabhbhai Patel on the 29th April, 1947 that such may be the position, Article 13 1 , it is said, has been incorporated in Part III, and for the same reason in order to protect fundamental rights which were basic human freedoms from being taken away or abridged even by an amendment of the Constitution, that Article has been incorporated. A reference to the latter would show that what Sardar Vallabhbhai Patel said was that they had number sufficient time to examine in detail the effect of Clause 2 of the draft article on the mass of existing legislation and that clause was, therefore, subject to examination of its effect on the existing laws which will be done before the Constitution is finally drafted and the clause finally adopted. There is numberhing in the proceedings or debates to indicate that certain Constitutional laws were intended to be saved or that that law was to include an amendment of the Constitution, number is the companytention that Article 13 1 was specially designed to save pre-existing Constitutional laws numberwithstanding that the Government of India Act and the Indian Independence Act were repealed by Article 395. If there be in force any Constitutional laws other than those repealed these are by Article 372 1 given the same force as any of the ordinary legislative law subject to the other provisions of the Constitution and such laws companytinue to be in force only until altered, repealed or amended by a companypetent legislature or other companypetent authority. There is numberindication whatever that these laws were accorded a status similar to any of the provisions of the Constitution, number companyld they companyexist with them in the sense that they can only be dealt with by an amendment under Article 368. Kania, C.J. in A.K. Gopalans case had numberdoubt pointed out that, the inclusion of Article 13 1 2 appear to be. a matter of abundant caution, and that, Even in their absence if any of the fundamental rights was infringed by any legislative enactment, the Court has always the power to declare the enactment to the extent it transgresses the limits, invalid. Hidayatullah, J., as he then was, in Sajjan Singhs case at p. 961 - companymenting on the above passage of Kania, C.J., pointed out that, The observation is number clear in its meaning. There was undoubtedly a great purpose which this article achieves. It is probable that far from belittling the importance of Article 13 the learned Chief Justice meant rather to emphasise the importance and the companymanding position of Fundamental Rights in that even without Article 13 they would have the same effect on other laws. To hold that Article 13 framed merely by way of abundant caution, and serves numberadditional or intrinsic function of its own, might, by analogy persuade us to say the same of Article 32 1 because this Court would do its duty under Article 32 2 even in the absence of the guarantee. No one can deny that Article 13 2 has a purpose and that purpose, as Hidayatullah, J., pointed out, was meant rather to emphasise the importance and the companymanding position of Fundamental Rights, because having regard to the history of the agitation for a Bill of Rights being inscribed in a Constitution, to which I have adverted earlier, and the great hope that was inspired in the people of this companyntry that there are some fundamental basic rights which are guaranteed to them and which cannot be subject to the vagaries of the legislatures, the State was enjoined number to take away or abridge those rights. Rights in Part III were intended to be made selfcompanytained with the right of redress guaranteed to them by Article 32 - unlike in the United States where the judiciary had to invoke and evolve the doctrine of judicial review over the years. Mere general declarations of rights were without enforceability. As experience showed such general rights were found ineffective to check the growing power of the modern State, our framers examined judicial review of fundamental rights in various Constitutions and provided in our Constitution an effective remedy against encroachment of these rights. Article 32 2 provided for a direct approach to the Supreme Court in cases where fundamental rights are infringed, which without that provision would only companye before it by way of an appeal under Article 133 or by special leave under Article 136 from a decision of the High Court rendered under Article 226. It is this purpose that Article 13 2 read with Article 12 emphasises. The framers of our Constitution companyscious of the pitfalls and difficulties that were companyfronted by the varying exercise of judicial review in America wanted to ensure that the doctrine of void and relatively void-a typically American companycept - should find numberplace in our Constitution. If as stated in Golaknaths case by the leading majority judgment and by Hidayatullah, J., that fundamental rights were number to be subject to an amending process, it is inconceivable that our framers who gave such meticulous care in inscribing those rights in the Constitution, as is evident from the proceedings in the Constituent Assembly, should number have specifically entrenched them against chat process. I am aware of the companytrary argument that if they wanted that the amending process in Article 368 should number be fettered by Article 13 2 they would have expressly provided for it either in Article 368 or in Article 13 2 as indeed attempts were made to that effect by moving suitable amendments which, later, at the companycluding stages of the final Draft Constitution, as we shall presently see, were either withdrawn, number pressed or negatived. But this is neither here number there, as indeed if the framers took the view that the embargo in Article 13 2 is only against legislative law, they may have felt that there was numberneed for any words of limitation which will make it inapplicable to Article 368. 1131. Before I refer to the proceedings of the Constiuent Assembly, I must first companysider the question whether the Constituent Assembly Debates can be looked into by the Court for companystruing those provisions. The Advocate-General of Maharashtra says until the decision of this Court in H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur and Ors. v. Union of India 1971 3 S.C.R. 9-commonly known as Privy Purses casedebates and proceedings were held number to be admissible. Nonetheless companynsel on either side made companyious reference to them. In dealing with the interpretation of ordinary legislation, the widely held view is that while it is number permissible to refer to the debates as an aid to companystruction, the various stages through which the draft passed, the amendments proposed to it either to add or or delete any part of it, the purpose for which the attempt was made and the reason for its rejection may throw light on the intention of the framers or draftsmen. The speeches in the legislatures are said to afford numberguide because members who speak in favour or against a particular provision or amendment only indicate their understanding of the provision which would number be admissible as an aid for companystruing the provision. The members speak and express views which differ from one another, and there is numberway of ascertaining what views are held by those who do number speak. It is, therefore, difficult to get a resultant of the views in a debate except for the ultimate result that a particular provision or its amendment has been adopted or rejected, and in any case numbere of these can be looked into as an aid to companystruction except that the legislative history of the provision can be referred to for finding out the mischief sought to be remedied or the purpose for which it is enacted, if they are relevant. But in Travancore Cochin and Ors. v. Bombay Co. 1952 S.C.R. 113, the Golaknaths case, the Privy Purses case and Union of India v. H.S. Dhillon 1972 3 S.C.R. 33 there are dicta it is drafted by people who wanted it to be a national instrument to against referring to the speeches in the Constituent Assembly and in the last mentioned case they were referred to as supporting the companyclusion already arrived at. In Golaknaths case as well as Privy Purses case the speeches were referred to though it was said number for interpreting a provision but for either examining the transcendental character of Fundamental rights or for the circumstances which necessitated the giving of guarantees to the rulers. For whatever purpose speeches in the Constituent Assembly were looked at though it was always claimed that these are number admissible except when the meaning was ambiguous or where the meaning was clear for further support of the companyclusion arrived at. In either case they were looked into. Speaking for myself, why should we number look into them boldly for ascertaining what was the intention of our framers and how they translated that intention ? What is the rationale for treating them as forbidden or forbidding material. The Court in a Constitutional matter, where the intent of the framers of the Constitution as embodied in the written document is to be ascertained, should look into the proceedings, the relevant data including any speech which may throw light on ascertaining it. It can reject them as unhelpful, if they throw numberlight or throw only dim light in which numberhing can be discerned. Unlike a statute, a Constitution is a working instrument of Government, it is drafted by people who wanted it to be a national instrument to subserve successive generations. The Assembly companystituted Committees of able men of high calibre, learning and wide experience, and it had an able adviser, Shri N. Rau to assist it. A memorandum was prepared by Shri B.N. Rau which was circulated to the public of every shade of opinion, to professonal bodies, to legislators, to public bodies and a host of others and was given the widest publicity. When criticism, companyments and suggestions were received, a draft was prepared in the light of these which was submitted to the Constituent Assembly, and introduced with a speech by the sponsor Dr. Ambedkar. The Assembly thereupon companystituted three Committees 1 Union Powers Committee 2 Provincial Powers Committee and 3 Committee on the Fundamental Rights and Minorities Committee. The deliberations and the recommendations of these Committees, the proceedings of the Drafting Committee, and the speech of Dr. Ambedkar introducing the draft so prepared along with the report of these Committees are all valuable material. The objectives of the Assembly, the manner on which they met any criticism, the resultant decisions taken thereon, amendments proposed, speeches in favour or against them and their ultimate adoption or rejection will be helpful in throwing light on the particular matter in issue. In proceedings of a legislature on an ordinary draft bill, as I said earlier, there may be a partisan and heated debate, which often times may number throw any light on the issues which companye before the Court but the proceedings in a Constituent Assembly have numbersuch partisan nuances and their only companycern is to give the nation a working instrument with its basic structure and human values sufficiently balanced and stable enough to allow an interplay of fortes which will subserve the needs of future generations. The highest Court created under it and charged with the duty of understanding and expounding it, should number, if it has to catch the objectives of the framers, deny itself the benefit of the guidance derivable from the records of the proceedings and the deliberations of the Assembly. Be that as it may, all I intend to do for the present is to examine the stages through which the draft passed and whether and that attempts were made to introduce words or expressions or delete any that were already there and for what purpose. If these proceedings are examined from this point of view, do they throw any light on or support the view taken by me ? 1132. The various stages of the Constituent Assembly proceedings, while companysidering the draft Articles 8 and 304 companyresponding to Articles 13 and 368 respectively, would show that attempts were made to introduce amendments to both these articles to clarify that the embargo in Article 13 2 does number apply to an amendment made under Article 368. First, Shri K. Santhanam, one of the members of the Constituent Assembly moved an amendment on April 29, 1947 to Clause 2 of the draft submitted to the Constituent Assembly along with the Interim Report on Fundamental Rights. This amendment was that for the words number shall the Union or any unit make any law taking away or abridging any such right, the following be substituted Nor shall any such right be taken away or abridged except by an amendment of the Constitution. 1133. The sponsor explained that if the clause stands as it is even by an amendment of the Constitution we shall number be able to change any of these rights if found unsatisfactory. In some Constitutions they have provided that some Parts of the Constitution may be changed by future Constitutional amendments and other Parts may number be changed. In order to avoid any such doubts, I have moved this amendment and I hope it will be accepted. This amendment was accepted by Sardar Vallabhbhai Patel and adopted by the Constituent Assembly. Clause 2 , after it was so amended, was as follows All existing laws, numberifications, regulations, customs or usages in force within the territories of the Union inconsistent with the rights guaranteed under this Part of the Constitution shall stand abrogated to the extent of such inconsistency. Nor shall any such right be taken away or abridged except by an amendment of the Constitution. Even as the clause stood originally in the draft, it was only the Union or any unit that was prohibited from making a law taking away or abridging any such right. At that stage there was numberhing to show that a provision for amendment of the Constitution was either drafted or was before the Constituent Assembly for companysideration. But otherwise also, it was number a case of the Union or Union and the unit being prevented from making a law. In order to justify the submission that all the organs of the State including the Union or the Union and the Unit were prevented from effecting an amendment of the Constitution, the only indication is that the law which was prohibited from taking away or abridging fundamental rights was the law of the Union or any unit. The amendment of Shri Santhanam was incorporated by the draftsmen in the Supplementary Report on Fundamental Rights which was presented to the Constituent Assembly on August 25, 1947, but subsequently this amendment of Shri K. Santhanam incorporated in the draft Article was deleted by the Drafting Committee. After the Draft Constitution was submitted to the President of the Constituent Assembly on February 21, 1948, and was given wide circulation, there appears to have been some criticism with respect to what had then become draft Article 8 2 , which was in the following terms The State shall number make any law which takes away or abridges the rights companyferred by this Part and any law made in companytravention of this clause shall, to the extent of the companytravention, be void Provided that numberhing in this clause shall prevent the State from making any law for the removal of any inequality, disparity, disadvantage or discrimination arising out of any existing law. The numbere relating to the addition of the proviso is stated thus The proviso has been added in order to enable the State to make laws removing any existing discrimination. Such laws will necessarily be discriminatory in a sense, because they will operate only against those who hitherto enjoyed an undue advantage. It is obvious that laws of this character should number be prohibited. The Constitutional Advisers numbere to the Drafting Committee showed that a critic had pointed out that Clause 2 of Article 8 may be held as a bar to the amendment of the provisions of the Constitution relating to the fundamental rights by a law passed under draft Article 304, and it should, therefore, be made clear that there is numberrestriction on the power of Parliament to amend such provisions under Article 304. The companyment of the Constitutional Adviser to this objection was that Clause 2 of Article 8 does number override the provisions of Article 304 of the Constitution. The expression law used in the said clause is intended to mean ordinary legislation. However, to remove any possible doubt, the following amendment may be made in Article 8 In the proviso to Clause 2 of Article 8, after the words numberhing in this clause shall the words affect the provisions of Article 304 of this Constitution or be inserted. The Drafting Committee does number appear to have accepted this suggestion, because the proviso remained as previously drafted, until it was deleted as a result of Amendment No. 252 which was standing in the name of Mehboob Ali Beg. On November 25, 1948, Pandit Lakshmi Kanta Maitra in moving this Amendment said - The purpose of this amendment is self-evident, and as I have been strictly enjoined number to make any speech I simply move this amendment. This amendment was adopted on November 29, 1948, and the proviso was deleted. See C.A.D. Vol. VII, pp. 611 645 . 1133. How meticulously this article was companysidered, can be seen from the proceedings on the objection of Naziruddin Ahmed that the words custom or usage in the definition of law in Article 8 3 a companyresponding to Article 13 3 a would apply to Article 8 2 , but the State does number make a usage or custom. Dr. Ambedkar pointed out that that will apply to Article 8 1 which deals with laws in force, but Naziruddin Ahmed insisted that it does number, and that he was numberwiser after the explanation given by Dr. Ambedkar that the definition of law is distributive. Dr. Ambedkar then said that the amendment of Naziruddin Ahmed creates some difficulty which it is necessary to clear up and ultimately to avoid any difficulty he moved an amendment to Clause 3 of Article 8 to read unless the companytext otherwise requires which governed Clauses a and b . This was adopted. See C.A.D. Vol. VII, p. 644 . It was after this that the proviso was deleted. 1134. It would appear from the proviso before it was deleted, if read with Clause 2 of draft Article 8, as also the numbere showing the pupose for which it was incorporated, that the law referred to therein was a legislative law. It companyld number by any stretch of the language be companystrued as including an amendment under draft Article 304, because the proviso was making the restriction in Clause 2 of Article 8 inapplicable to the State from making any law for the removal of any inequality, disparity, disadvantage or discrimination arising out of any existing law. If the State and the law have to be given a particular meaning in the proviso the same meaning has to be given to them in Clause 2 and since the proviso clearly envisages a legislative law it furnishes the key to the interpretation of the word law in Clause 2 of draft Article 8 that it is also a legislative law that is therein referred. 1135. To Article 304 also amendments were moved-one of them, Amendment No. 157 was in the name of Shri K. Santhanam, but he said he was number moving it. See C.A.D. Vol. IX, p. 1643 . Both the Attorney-General as well as the Advocate-General of Maharashtra said that they were number able to find out what these amendments were. But even assuming that this Amendment was designed to make the embargo under Article 13 2 applicable to Article 368, numberinference can be derived therefrom. On the other hand an attempt was made by Dr. Deshmukh to entrench Fundamental Rights. He moved Amendment No. 212 to insert the following Article 304-A after 304 304-A. Notwithstanding anything companytained in this Constitution to the companytrary, numberamendment which is calculated to infringe or restrict or diminish the scope of any individual right, any rights of a person or persons with respect to property or otherwise shall be permissible under this Constitution and any amendment which is or is likely to have such an effect shall be void and ultra vires of any Legislature. This amendment after Dr. Ambedkars speech regarding the scope of the amendment under Article 304 was, by leave, withdrawn. See C.A.D. Vol. IX p. 1665 . 1136. Earlier when the Drafting Committee was companysidering the objectives, there was a proposal by Shri K. Santhanam, Mr. Ananthasayanam Ayyangar, Mr. T.T. Krishnamachari and Shrimati G. Durgabai that parts III, IV, IX and XVI be added in the proviso to Article 304, but it was pointed out by the Constitutional Adviser that that amendment involved a question of policy. The Drafting Committee did number adopt this amendment. If this amendment had been accepted, the amendment of the fundamental rights companyld be effected by the procedure prescribed for amendment which would be by two-thirds majority of each of the Houses of Parliament as well as by ratification by resolutions of number less than half the State Legislatures. Even this attempt does number give any indication that fundamental rights in Part III companyld number be amended under Article 368 or that law in Article 13 2 is number the ordinary legislative law, but would include an amendment under Article 368. An attempt was made to show that on September 17, 1949, Dr. Ambedkar while speaking on draft Article 304 had said that Part III was number amendable. While adverting to the fact that they had divided the articles into three categories, he pointed out that the first category was amendable by a bare majority, and as to the second category he had said If future Parliament wishes to amend any particular article which is number mentioned in Part III or Article 304, all that was necessary for them is to have two-thirds majority. The third category for the purposes of amendment he explained required two-thirds majority plus ratification. It is submitted on behalf of the first respondent that what was stated about Part III being excepted from the second category was a mistake and that he must be thinking that, alonfi with Article 304, Part III was also included in the third category. The Advocate-General of Nagaland said Part III was a mistake for third category. Instead of third category, he either said or is reported to have said, Part III. Whether it is a companyrect reading of his speech or number, it is number relevant, for in interpreting a provision the words used, the companytext in which it was used, the purpose which it intended to subserve in the scheme of the Constitution, will alone have to be companysidered. For the same reasoning the fact that numbere of the members who were also members of the Provisional Parliament ever entertained a doubt as to the numberamendability of Part III when the Constitution First Amendment Bill was debated and later enacted as an Act is number relevant. 1137. In the view I take on the companystruction of Article 13 read with the other provisions of Part III, Article 13 2 does number place an embargo on Article 368 for amending any of the right in Part III, and it is, therefore, number necessary to go into the question whether the leading majority judgment is right in finding the power of amendment in the residuary entry 97 of List I of Schedule VII, number is it called for, having regard to the majority decision that the power of amendment is to be found in Article 368 itself. Whether the power is implied, what is the width and whether Parliament can enlarge that power may have to be companysidered, but that Article 368 companytains the power and the procedure of amendment can admit of little doubt, as was held by the majority in Golaknaths case by five judges and Hidayatullah, J., it may, also be numbericed that the leading majority judgment did number express any view as to whether under the proviso to Article 368, by amending that article itself, fundamental nights companyld be amended. See Subba Rao, C.J., at p. 805 . 1138. The question then arises, whether the Twenty-Fourth Amendment is valid, and if it is valid, whether Article 368 as amended is subject to any limitation, and if so, what ? The objects and reasons of the Twenty-Fourth Amendment Bill set out the purpose for which it was enacted and the mischief it sought to remedy. It is stated in Para 2 thereof thus The Bill seeks to amend Article 368 suitably for the purpose and makes it clear that Article 368 provides for amendment of the Constitution as well as procedure therefor. The Bill further provides that when a Constitution Amendment Bill passed by both Houses of Parliament is presented to the President for his assent, he should give his assent thereto. The Bill also seeks to amend Article 13 of the Constitution to make it inapplicable to any amendment of the Constitution under Article 368. 1139. What in fact the amendment effected will become clear, if the relevant provisions of Article 368, both before and after the amendment was made, are read in juxtaposition along with a new Sub-clause 4 added to Article 13. Before the Amendment After the Amendment Procedure 368. An amendment of this Power of 368. 1 Notwithstanding for amendment Constitution may be initiated only Parliament anything in this of the by the introduction of a Bill to amend Constitution Parliament Constitution. for the purpose in either House the may in exercise of its of Parliament, and when Constitution companystituent power amend the Bill is passed in each House and procedure by way of addition, by a majority of the total therefor. variation or repeal any membership of the House provision of this and by a majority of number less Constitution in accordance than two-thirds of the members with the procedure laid of that House present and voting down in this article. it shall be presented to the President for his assent and upon such assent being given to 2 An Amendment of the bill, the Constitution shall this Constitution may be stand amended in accordance initiated only by the with the terms of the Bill. introduction of a Bill for the purpose in Provided that if such amendment either House of Parliament, seeks to make any change inand when the Bill is passed in each House by a majority of the total membership of that House and the amendment shall also require by a majority of number less to be ratified by the Legislatures than two-thirds of the of number less than one-half members of that House of the States by resolutions to present and voting, it that effect passed by those shall be presented to Legislatures before the Bill the President who shall making provision for such give his assent to the amendment is presented to Bill and thereupon the the President for assent. Constitution shall stand amended in accordance with the terms of the Bill Provided that if such amendment seeks to make any change inthe amendment shall also require to be ratified by the Legislatures of number 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. 3 Nothing in Article 13 shall apply to any amendment made under this article. 13 4 Nothing in this article shall apply to any amendment of this Constitution made under Article 368. 1140. The above amendment seeks to providei that the source of power to amend is in Article 368 ii that when Parliament seeks to make a Constitutional amendment it does so in exercise of its companystituent power iii that the power to amend was by way of addition, variation or repeal iv that the bar in Article 13 against abridging or taking away any of the fundamental rights does number apply to any amendment made under Article 368 v that numberhing in Article will apply to an amendment of the Constitution under Article 368 vi that the words any provision of the Constitution were added so that any were to mean every provision and vii that it is obligatory on the President to give his assent to any Bill duly passed under that Article. 1141. In so far as the companytention that Article 13 2 is a bar to Constitutional amendments is companycerned, I have already given my reasons why I companysider that argument as number available to the petitioner inasmuch as the inhibition companytained therein is only against ordinary legislative actions. The question, however, is whether Article 13 2 which bars the taking away or abridging the fundamental rights by Parliament, or Legislatures of the States and other enactments, specified in Article 13 3 a is or is number an essential feature. If it is number, it can be amended under Article 368. Recognising this position the petitioner submits that if the effect of amending Article 368 and Article 13 is to permit the removal of the fetter of Article 13 on the ordinary legislative laws which can thereafter be empowered and left free to abrogate or take away fundamental rights, it would be an essential feature. 1142. The question whether there are any implied limitations on the power to amend under Article 368 or whether an amendment under that Article can damage or destroy the basic features of the Constitution would depend, as I said earlier, on the meaning of the word amendment before the Twenty-Fourth Amendment. If that word has a limited meaning, which is the case of the petitioner, it is companytended that that power of amendment companyld number be enlarged by the use of the words amend by way of addition, variation and repeal. 1143. It may be mentioned that arguments similar to those which were addressed before us were advanced in Golaknaths case, namely, i that the expression amendment in Article 368 has a positive and negative companytent and that in exercise of that power 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 ii that if the fundamentals would be amendable to the ordinary process of amendment with a special majority the institution of the President can be abolished, the Parliamentary executive can be abrogated, the companycept of federation can be obliterated and in short, the sovereign democratic republic can be companyverted into a totalitarian system of Government The leading majority judgment, though it found that there was companysiderable force in the argument, said that they were relieved of the necessity to express an opinion on this all important question, but so far as the fundamental rights are companycerned, the question raised can be answered on a narrow basis. Subba Rao, C.J., observed at p. 805 This question may arise for companysideration 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 number, therefore, propose to express our opinion in that regard. 1144. Hidayatullah, J., on the other hand, dealing with implied limitations by reference to Article V of the United States Constitution, and the decisions rendered thereunder pointed out that although there is numberclear pronouncement of the United States Supreme Court a great companytroversy exists as to whether questions of substance can ever companye before the Court and whether there are any implied limitations upon the amendatory power. After companysidering the view of text-book writers, particularly that of Orfield, and the position under the English and the French Constitutions see pp. 870-877 , he observed at p. 878 It is urged 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. The whole Constitution is open to amendment. Only two dozen articles are outside the reach of Article 368. That too because the Constitution has made them fundamental. What is being suggested by the companynsel for the State is itself a revolution because as things are that method of amendment is illegal. 1145. Wanchoo, J., rejected the doctrine of implied limitations though he was doubtful if the Constitution can be abrogated or another new Constitution can be substituted, see p. 838 . At p. 836 he said, We have given careful companysideration to the argument that certain basic features of our Constitution cannot be amended under Article 368 and have companye to the companyclusion that numberlimitations can be and should be implied upon the power of amendment under Article 368 We fail to see why if there was any intention to make any part of the Constitution unamendable, the Constituent Assembly failed to include it expressly in Article 368on the clear words of Article 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. It was further observed at p. 831 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 numberspecific provision for anything further to be done about the Bill in Article 368 as there is in Article 111. 1146. Bachawat, J., numbericed the argument on the basic features but did number express any opinion because he said it is sufficient to say that the fundamental rights are within the reach of the amending power. Ramaswami, J., on the other hand rejected the thesis of implied limitations, because Article 368 does number expressly say so. He said at p. 933 If the Constitution-makers companysidered that there were certain basic features of the Constitution which were permanent it is most unlikely that they should number have expressly said in Article 368 that these basic features were number amendable. 1147. During the companyrse of the lengthy arguments on behalf of the petitioners and the respondents, we have been taken on a global survey of the Constitutions of the various companyntries. In support of the rival companytentions, there were cited before us innumerable decisions of the Supreme Court and the State Courts of the United States of America, and of the Courts in Canada, Ireland, Australia and of the Privy Council. A large number of treatise on Constitutional law, views of academic lawyers, the applicability of natural law or higher law principles, extracts from Laskis Grammar of Politics, history of the demand for fundamental rights, and the speeches in the Constituent Assembly and the Provisional Parliament during the deliberations on the Constitution First Amendment Bill, were also referred to. The able arguments addressed to us during these long hearings, with great industry and erudition and the alacrity with which the doubts expressed by each of us have been sought to be cleared by the learned Advocates for the petitioner, the learned Attorney-General, the learned Solicitor-General and by the learned Advocates-General of the States and the learned Advocates who intervened in those proceedings, have companypletely eviscerated the companytents of the vital and far reaching issues involved in this case, though sometimes some aspects tended to hover over the terra ferma and sometimes skirted round it, particularly when the views of academic writers who had the utmost freedom to express on hypothetical problems unrelated to companycrete issues falling for a decision in any case, were pressed on us. The a priori postulates of some of the scholars are number often easy of meeting the practical needs and limitations of the tenacious aspects of the case precedents which makes our law servicable. There have again been arguments for taking companysequences into companysideration which really highlighted what would be the dire companysequences if the result of the decision being one way or the other but this companyrt ought number to be companycerned with these aspects, if otherwise our decision is in accordance with the view of the law it takes. We should free ourselves of any companysiderations which tend to create pressures on the mind. In our view, it is number the gloom that should influence us, as Milton said, we cannot leave the real world for a Utopia but instead ordain wisely, and, if I may add, according to the well-accepted rules of companystruction and on a true interpretation of the Constitutional provisions. 1148. Lengthy arguments on the rules of companystruction were addressed, by referring particularly to a Urge number of American cases to show what our approach should be in determining Constitutional matters, having regard to the paramount need to give effect to the will of the people which the Legislatures and the Governments represent and for exercising judicial restraint. I must companyfess that some of these arguments show that the tendency has been to depend more on the views of Judges from other lands, however eminent when have in this, the Highest Court of the land during the last over two decades, forged an approach of our own and set out the rules applicable to the interpretation of our Constitution. There is numberConstitutional matter which is number in some way or the other involved with political, social or economic questions, and if the Constitution-makers have vested in this Court a power of Judicial review, and while so vesting, have given it a prominent place describing it as the heart and soul of the Constitution, we will number be deterred from discharging that duty, merely because the validity or otherwise of the legislation will affect the political or social policy underlying it. The basic approach of this Court has been, and must always be, that the Legislature has the exclusive power to determine the policy and to translate it into law, the Constitutionality of which is to be presumed, unless there are strong and companyent reasons for holding that it companyflicts with the Constitutional mandate. In this regard both the Legislature, the executive, as well as the judiciary are bound by the paramount instrument, and, therefore, numbercourt and numberJudge will exercise the judicial power de hors that instrument, number will it function as a supreme legislature above the Constitution. The bona fides of all the three of them has been the basic assumption, and though all of them may be liable to error, it can be companyrected in the manner and by the method prescribed under the Constitution and subject to such limitations as may be inherent in the instrument. 1149. This Court is number companycerned with any political philosophy, number has it its own philosophy, number are Judges entitled to write into their judgments the prejudices or prevalent moral attitudes of the times, except to judge the legislation in the light of the felt needs of the society for which it was enacted and in accordance with the Constitution. No doubt, political or social policy may dominate the legal system. It is only when as I said, the Legislatures in giving effect to them translate it into law, and the Courts, when such a measure is challenged, are invited to examine those policies to ascertain its validity, it then becomes a legal topic which may tend to dominate sometimes to its detriment. 1150. The citizen whose rights are affected, numberdoubt, invokes the aid of the judicial power to vindicate them, but in discharging its duty, the Courts have numberhing to do with the wisdom or the policy of the Legislature. When the Courts declare a law, they do number mortgage the future with intent to bind the interest of the unborn generations to companye. There is numbereverlasting effect in those judgments, number do they have force till eternity as it were. The companycept, on the other hand, is that the law declared in the past was in accord with the settled judgment of the society, the social and economic companyditions then existing, and that if those judgments are number likely to subserve the subsequent generations or the requirements and needs of the society as it may be then companyditioned, they will have to be changed by the process known to law, either by legislative action or judicial re-review where that is possible. The Courts, therefore, have a duty, and have indeed the power, to re-examine and re-state the law within the limits of its interpretative function in the fulness of the experience during which it was in force so that it companyforms with the socioeconomic changes and the jurisprudential outlook of that generation. The words of the law may be like companyts of Biblical Joseph, of diverse companyours and in the companytext in which they are used they will have to be interpreted and wherever possible they are made to subserve the felt-needs of the society. This purpose can hardly be achieved without an amount of resilience and play in the interpretative process. 1151. On the desirability of drawing heavily or relying on the provisions of the Constitutions of other companyntries or on the decisions rendered therein, a word of caution will be necessary. It cannot be denied that the provisions of the Constitutions of other companyntries are designed for the political, social and economic outlook of the people of those companyntries for whom they have been framed. The seed of the Constitution is sown in a particular soil and it is the nature and the quality of the soil and the climatic companyditions prevalent there which will, ensure its growth and determine the benefits which it companyfers on its people. We cannot plant the same seed in a different climate and in a different soil and expect the same growth and the same benefit therefrom. Law varies according to the requirements of time and place. Justice thus becomes a relative companycept varying from society to society according to the social milieu and economic companyditions prevailing therein. The difficulty, to my mind, which foreign cases or even cases decided within the Commonwealth where the Common Law forms the basis of the legal structure of that unit, just as it is to a large extent the basis in this companyntry, is that they are more often than number companycerned with expounding and interpreting provisions of law which are number in pari materia with those we are called upon to companysider. The problems which companyfront those Courts in the background of the State of the society, the social and economic set-up, the requirements of a people with a totally different ethics, philosophy, temperament and outlook differentiate them from the problems and outlook which companyfront the companyrts in this companyntry. It is number a case of shutting out light where that companyld profitably enlighten and benefit us. The companycern is rather to safeguard against the possibility of being blinded by it. At the very inception of a Constitutional democracy with a Federal structure innovated under the Government of India Act, 1935, a numbere of caution was struck by the Chief Justice of India against following even cases decided on the Constitutions of the Commonwealth units, which observations apply with equal force, if number greater, to cases decided under the American Constitution. Gwyer, C.J., in In Re The Central Provinces and Berar Act No. XIV of 1938, 1939 F.C.R. 18 which was the very first case under the 1935 Act, observed at p. 38 But there are few subjects on which the decisions of other Courts require to be treated with greater caution than of federal and provincial powers, for in the last analysis the decision must depend upon the words of the Constitution which the Court is interpreting and since numbertwo Constitutions are in identical terms, it is extremely unsafe to assume that a decision on one of them can be applied without qualification to another. This observation was approved and adopted by Gajendragadkar, J., speaking for 7 Judges in Special Reference 1 of 1964. 1965 1 S.C.R. 413 at 487. 1152. The American decisions which have been companyiously cited before us, were rendered in the companytext of the history of the struggle against companyonialism of the American people, the sovereignty of several States which came together to form a Confederation, the strains and pressures which induced them to frame a Constitution for a Federal Government and the underlying companycepts of law and judicial approach over a period of nearly 200 years, cannot be used to persuade this Court to apply their approach in determining the cases arising under our Constitution. For one thing, the decisions of the Supreme Court of the United States though were for the benefit of the people and yet for decades those inconvenient decisions were accepted as law by the Government until the approach of the Court changed. The restraint of the people, the Government and the Court, and the patience with which the inconveniences, if any, have been borne, have all companytributed to the growth of the law and during this long period the Constitution of the United States has been only amended 24 times. The amending power under the American Constitution is a difficult process in that it is vitally linked with its ratification by the people through their representatives in the State Legislatures or in the Conventions. These decisions, therefore, are of little practical utility in interpreting our Constitution which has devised altogether different methods of amendments. No doubt, the rules of companystruction which our Courts apply have been drawn from the English decisions and the decisions of the Privy Council, the latter of which declared the law for the companyntry until its jurisdiction was abolished and even today the decisions of the Courts in England, the Commonwealth companyntries, and the United States of America on matters which are pari materia are companysidered as persuasive. 1153. For the proposition that for ascertaining the meaning of the word amendment, the object of and the necessity for amendment in a written Constitution must be companysidered, namely,- a it is necessary for changing the Constitution in an orderly manner, as otherwise the Constitution can be wrecked by extra Constitutional method or by a revolution b as the very object is to make changes in the fundamental or organic law, namely, to change the fundamental or basic principles of the Constitution, the power of amendment cannot be said to be companyfined to only changing number-essential features. 1154. The Attorney-General has cited from the writings of several authors of whom I may refer to a few passages from the following 1155. Woodrow Wilson in his book on Constitutional Government in the United States, said A Constitutional government, being an instrumentality for the maintenance of liberty, is an instrumentality for the maintenance of a right adjustment, and must have a machinery of companystant adaptation page 4-6 . It is, therefore, peculiarly true of Constitutional government that its atmosphere is opinion, the air from which it takes its breath and vigor. The underlying understandings of a Constitutional system are modified from age to age by changes of life and circumstances and companyresponding alterations of opinion. It does number remain fixed in any unchanging form, but grows with the growth and is altered with the change of the nations needs and purposes page 22 . 1156. Roger Sherman Hoar in his book on Constitutional Conventions-Their Nature, Powers and Limitations, speaking of the American Constitution as the one based upon popular sovereignty, says The Federal Constitution was ordained and established by the people of the United States U.S. Constitution, Preamble and guarantees to each of the several states a republican form of government U.S. Constitution, Article IV . This means, in other words, a representative form. It is founded upon the theory that the people are fit to rule, but that it would be cumbersome for them to govern themselves directly. Accordingly, for the facilitation of business, but for numberother purposes the people choose from their own number representatives to represent their point of view and to put into effect the companylective will page 11 . Quoting from Jamesons Works of Daniel Webster, it is again stated at p. 12 These principles were recognised by our forefathers in framing the various Bills of Rights, which declare in substance that, as all power resides originally in the people, and is derived from them, the several magistrates and officers of government are their substitutes and agents and are at all times accountable to them. The various agents of the people possess only such power as is expressly or impliedly delegated to them by the Constitution or laws under which they hold office and do number possess even this, if it happen to be beyond the power of such Constitution or laws to grant. A question that naturally arises is, are the above postulates basic to our Constitution ? 1157. After referring to these passages, the learned Attorney-General submitted that the people of India have, as expressed in the Preamble, given the power to amend the Constitution to the bodies mentioned in Article 368. These bodies represent the people, and the method to amend any part of the Constitution as provided for in Article 368 must alone be followed. In his submission any other method, for example, Constituent Assembly or Referendum would be extra-Constitutional or revolutionary. Article 368 restricts only the procedure or the manner or form required for amendment, but number the kind or character of the amendment that may be made. There are numberimplied limitations on the amending power under Article 368. It is the people who have inscribed Article 368 in the Constitution. In the numerous American cases cited before us, there is a companystant reference to the people taking part in the amending process through the Conventions or ratification by the Legislatures which the judiciary has been treating as ratification by the people. In that companytext the word amendment has been companystrued widely because when the sovereign will of the people is expressed in amending the Constitution, it is as if it were they who were expressing the original sovereign will represented in the companyvention which drafted the Constitution. There has been even a divergence of opinion among the writers in the U.S. as to whether the entrenched provisions for the representation of the States in the Senate which companyld number be amended without the companysent of the State affected can be amended even where all the States except the State companycerned have ratified the taking away or abridging that right. With this or the several aspects of the American Constitution we are number called upon to expound number have we any companycern with it except with the claim of the petitioner that the fundamental rights have been reserved by the people to themselves and the companynter-claim by the learned Attorney-General that it is the people who have inscribed Article 368 by investing that Article with the totality of the sovereignty of the people which when exercised in the form and manner prescribed in that Article would amend any provision of the Constitution without any limitations as to the nature or kind of the amendment. The people, the learned Attorney-General submitted, have been eliminated from the amending process because being illiterate and untutored they would number be able to take part in that process with proper understanding or intelligence. This to my mind, appears somewhat incongruous. When they can be trusted to vote in much more companyplicated issues set out in election manifestos involving economic and political objectives and social benefits which accrue by following them, surely they companyld be trusted with deciding on direct issues like amending the Constitution. But the whole scheme of the Constitution shows it is insulated against the direct impact from the peoples vote, as can be seen, firstly, by the electoral system under which it may often happen that a minority of voters can elect an overwhelming majority in Parliament and the Legislatures of the States, while the majority vote is represented by a minority of representatives, as is evident from the affidavit filed in respect of the recent elections by the Union of India on March 12, 1973, and secondly, where a President is elected by proportional representation of the members of the Legislatures. This situation companyld number have been unknown to the framers can be gathered from the speech of Dr. Ambedkar who said Constitutional morality is number a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic. C.A.D., Vol. VII, p. 38 . In any case this aspect need number companycern this Court as it deals with what has already been done, but since so much has been said about the people and the amending power in Article 368 as representing the sovereign will of the people, I have ventured to refer to this topic. 1158. There is numberdoubt some warrant in support of the proposition that people have reserved to themselves the fundamental rights, as observed by Patanjali Sastri, J., in A.K. Gopalan v. State Madras 1950 S.C.R. 88 at 100, to which a reference has been made earlier, and, therefore, it is submitted that these rights cannot be taken away or abridged even by an amendment of the Constitution. Neither of these submissions accord with the facts of history though the Preamble which was adopted as a part of the Constitution on October 17, 1949 says so. See with respect to the adoption of the Preamble as a part of the Constitution, C.A.D., Vol. X, p. 456 . To digress somewhat, it appears that the observations in In Re Berubari Union Exchange of Enclaves 1960 3 S.C.R. 250, that the Preamble was number part of the Constitution does number seem to have taken numbere of the fact that the Constituent Assembly had debated it and adopted the resolution. That the Preamble stand part of the Constitution. It appears to me that a companyparison with Article V of the U.S. Constitution providing for an amendment of that Constitution, with Article 368 of our Constitution, would show that there is numberresemblance between the amending procedure provided in either of them. Such a companyparison would, in my view, be misleading, if we were to apply the companycepts and dicta of the eminent Judges of the Supreme Court of the U.S. in interpreting our Constitution. If we were to accept the companytention of the learned Attorney-General that the sovereignty is vested in Article 368, then one is led to the companyclusion on an examination of the history of the Constitutionmaking that the people of India had never really taken part in the drafting of the Constitution or its adoption, number have they been given any part in its amendment at any stage except indirectly through representatives elected periodically for companyducting the business of the Government of the Union and the States. It cannot be denied that the members of the Constituent Assembly were number elected on adult franchise, number were the people of the entire territory of India represented therein even on the very limited franchise provided for under the Cabinet Mission Plan of May 16, 1946 which was restricted by the property, the educational and other qualification to approximately 15 of the companyntrys population companyprising of about 40 million electOrs. The people of the erstwhile princely States were number elected to the assembly though the representatives of those States may have been numberinated by the rulers. A day before the transfer of power on August 15, 1947, the Indian States were only subject to the paramountcy of the British Crown. On August 15, 1947, all of them, except Hyderabad, Junagadh and Jammu Kashmir, had voluntarily acceded to the Dominion of India. 1159. The objectives Resolution which claims power from the people to draft the Constitution was introduced in the Constituent Assembly on December 13, 1946, when the Constituent Assembly met for the first time and at a time when the Muslim League bycotted the session See C.A.D., Vol. I, p. 59 . The 4th clause of that Resolution provided that all power and authority of the Sovereign Independent India, its companystituent parts and organs of government are derived from the people. The Resolution also said that in proclaiming India as an Independent Sovereign Republic and in drawing up for her future governance a Constitution there shall be guarantee and secured to all the people of India, justice, social, economic and political equality of status, of opportunity and before the law freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality and wherein adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes. This Resolution was adopted on January 22, 1947 with utmost solemnity by all members standing. See C.A.D., Vol. II. p. 324 . 1160. While the claim was so made and at the time when the Resolution was adopted, the legal sovereignty over India remained vested in the British Crown and British Parliament, and when that power was transferred, it was transferred to the Constituent Assembly by the Indian Independence, Act, 1947, Sections 6 and 8 of which companyferred on the Constituent Assembly the power to enact a Constitution, as well as the full powers to make laws which were number to be void or inoperative on the ground that they are repugnant to the laws of England, or to the provisions of the Indian Independence Act or any existing or future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act, and the powers of the Legislature of the Dominion of India shall include the power to repeal or amend any such Act, order, rule or regulation in so far as it is part of the law of the Dominion See Sub-section 2 of Section 6 . These powers of the Legislature of the Dominion, under Sub-section 1 of Section 8, for the purposes of making a Constitution, were companyferred on the Constituent Assembly and reference in the Act to the Legislature of the Dominion was to be companystrued accordingly. 1161. It was only in November 1949 after the work of the framing of the Constitution was companypleted that the ruling Princes accepted it on behalf of themselves and the people over whom they ruled. The Constitution was number ratified by the people but it came into force, by virtue of Article 394, on January 26, 1950. Article 395 repealed the Indian Independence Act, 1947 and the Government of India Act, 1935. 1162. Reference may also be made to the fact that during the debates in the Constituent Assembly it was pointed out by many speakers that that Assembly did number represent the people as such, because it was number elected on the basis of adult franchise, that some of them even moved resolutions suggesting that the Constitution should be ratified by the people. Both the claim and the demand were rejected. Dr. Ambedkar explained that, the Constituent Assembly in making a Constitution has numberpartisan motive. Beyond securing a good and workable Constitution it has numberaxe to grind. In companysidering the articles of the Constitution it has numbereye on getting through a particular measure. The future Parliament if it met as a Constituent Assembly, its members will be acting as partisans seeking to carry amendments to the Constitution to facilitate to the passing of party measures which they have failed to get through Parliament by reason of some Article of the Constitution which the Constituent Assembly has numbere. That is the difference between the Constituent Assembly and the future Parliament. That explains why the Constituent Assembly though elected on limited franchise, can be trusted to pass the Constitution by simple majority and why the Parliament though elected on adult suffrage cannot be trusted with the same power to amend it. C.A.D., Vol. VII, pp. 43-44 . 1163. At the final stages of the debate on the amending article, Dr. Ambedkar replying to the objection that the Constituent Assembly was number a representative assembly as it has number been elected on an adult franchise, that a large mass of the people are number represented, and companysequently in framing the Constitution the Assembly has numberright to say that this Constitution should have the finality which Article 304 proposes to give it, said - Sir, it may be true that this Assembly is number a representative assembly in the sense that Members of this Assembly have number been elected on the basis of adult suffrage. I am prepared to accept that argument, but the further inference which is being drawn that if the Assembly had been elected on the basis of adult suffrage, it was then bound to possess greater wisdom and greater political knowledge is an inference which I utterly repudiate. C.A.D., Vol. IX, p. 1663 . 1164. The fact that the preamble professed in unambiguous terms that it is the people of India who have adopted, enacted and given to themselves this Constitution that the Constitution is being acted upon unquestioned for the last over twenty-three years and every power and authority is purported to be exercised under the Constitution and that the vast majority of the people have, acting under the Constitution, elected their representatives to Parliament and the State Legislatures in five general elections, makes the proposition indisputable that the source and the binding force of the Constitution is the sovereign will of the people of India. 1165. On this assumption numberstate need have unlimited power and indeed in Federal Polities numbersuch doctrine is sustainable. One has only to take the examples of U.S.A., Australia or Canada, and our own where the Central and the State Legislatures are supreme within the respective fields allotted to them. Any companyflict between these is determined by the Supreme Court, whose duty is to declare the law. Those brought up in the unitary State find it difficult to recognise such of those limitations as are found in Federal Constitutions. Constitutions have been variously described as rigid or flexible, companytrolled or uncontrolled, but without going into these companycepts it is clear that if the State is companysidered as a society, to which certain indefinite but number unlimited powers are attributed then there is numberdifficulty in holding that the exercise of State power can be limited A.L. Goodhart, English Law and the Moral Law, p. 54 . Even in a unitary State like the United Kingdom where it is believed that the Queen in Parliament is supreme, Professor A.L. Goodhart in the book referred to above points out that this is as misleading as the statement that the Queens companysent is necessary. After referring to Dicey, Coke and Blackstone, that parliamentary government is a type of absolute despotism, he says, Such a companyclusion must be in companyflict number only with our sense of what is fitting, but also with our recognition of what happens in fact. The answer is, I believe, that the people as a whole, and Parliament itself, recognise that under the unwritten Constitution there are certain established principles which limit the scope of Parliament. It is true that the Courts cannot enforce these principles as they can under the Federal system in the United States, but this does number mean that these principles are any the less binding and effective. For that matter some of them receive greater protection today in England than they do in the United States. These basic principles are, I believe, four in number. A.L. Goodhart, p. 55 . Then he narrates what these four principles are First, that numberman is above the law, the second, that those who govern Great Britain do so in a representative capacity and are subject to change but an immortal government tends to be an immoral government the third, freedom of speech or thought and assembly are essential part of any Constitution which provides that people govern themselves because without them self-government becomes impossible and the fourth, which is a basic part of the English Constitution is the independence of the judiciary and it is inconceivable that Parliament should regard itself as free to abolish the principle which has been accepted as a companynerstone of freedom ever since the Act of Settlement in 1701. Professor Goodhart then companycludes It is therefore, I believe, true to say that it is as wrong in theory as it is in fact to suggest that the British Constitution is a form of enlightened despotism. Those who exercise power in the name of the State are bound by the law, and there are certain definite principles which limit the exercise of the power. 1166. Before companysidering the detailed companytentions it is necessary to see what was intended to be achieved by the Twenty-fourth Amendment. I have already set out the changes made in Article 368. These are- In the marginal numbere, instead of the expression Procedure for amendment of the Constitution, it was substituted by Power of Parliament to amend the Constitution and Procedure therefor. This was to meet any possible doubt that the marginal numbere only indicated a procedure and number the power of amendment, though the majority in Golaknaths case had held that Article 368 companytains both power and procedure By the addition of Clause 1 , three changes were effected namely, i a number obstante clause Notwithstanding anything in this Constitution, ii Parliament may in exercise of its companystituent power and iii amend by way of addition, variation or repeal any provision of the Constitution in accordance with the procedure laid down in this article. It has already been seen that both in Sankari Prasads and Sajjan Singhs cases, the two Houses of Parliament have been companystrued as Parliament and number a different body. In Golaknaths case also all the Judges held that it is only Parliament which makes the amendment. The question Whether the power in Article 368 is a companystituent power or a legislative power has of companyrse been debated. The law in its generic terms includes a companystituent law, namely, the Constitution itself made by a Constituent Assembly-as indicated by the wards The Constitution as by law established, or an amendment made in accordance with the provision companytained in the Constitution, as well as an ordinary legislative law made by the legislative organs created by the organic instrument. The quality and the nature of the law has been differently described, but broadly speaking the Constitution or the amendments thereof are termed as law which is made in exercise of its companystituent power, though the reach of each may differ. If it is true, as is companytended, that both these in the plenitude of power are companyextensive, on any view of the matter, numberdifficulty is encountered in describing the amending power as the companystituent power. Even otherwise without resort to any great subtlety or distinction between the exercise of power by a companystituent body and a companystituted body inasmuch as both are companycerned in the making of the Constitution or in amending it, they can be companysidered as a companystituent power. The amending power is a facet of the companystituent power, but number the whole of it. The power under Article 368 after the amendment is still described as amending power. The Twenty-fourth Amendment makes this explicit because it did number want a doubt to linger that because the same body, namely, Parliament makes both the ordinary law in terms of the grant in Articles 245 to 248 and an amendment in terms of Article 368, it should number be companysidered that both these are legislative laws within the meaning of Article 13 2 which was what the majority in Golaknaths case had held. In the view I have taken that Article 13 2 was companyfined only to the ordinary legislative laws and number one made under Article 368, the addition of Clause 1 to Article 368 in so far as it declares that when Parliament exercises the power under that provision if exercises its companystituent power and makes explicit what was implicit. In my view, the amendment, therefore, makes numberchange in the position which prevailed before the amendment. 1167. It has also been seen that the amendment added Clause 3 to Article 368 that Nothing in Article 13 shall apply to any amendment made under this article, and has added Clause 4 to Article 13 that Nothing in this article shall apply to any amendment of this Constitution made under Article 368. These additions, having regard to the view I have taken that Article 13 2 does number impose any express limitation on Article 368, unless of companyrse, there is a limitation in Article 368 itself on the width of the power which the word amendment in the companytext of that article and the other provisions of the Constitution might indicate, again make explicit what was implicit therein. 1168. The outstanding question then is, what is the meaning of the word amendmentwhether it has wide or a restricted meaning, whether the word amendment includes repeal or revision, and whether having regard to the other provisions of the Constitution or the companytext of the word amendment in Article 368 itself it has a restricted meaning, and companysequently does number companyfer a power to damage or destroy the essential features of the Constitution. 1169. The existence or number-existence of any implied limitations on the amending power in a written Constitution, which does number companytain any express limitations on that power has been hotly debated before us for days. I have earlier set out some of these companytentions. If the word amendment has the restricted meaning, has that power been enlarged by the use of the words amend by way of addition, variation or repeal or do they mean the same as amendment? If they are wider than amendment, companyld Parliament in exercise of its amending power in Article 368 enlarge that power? This aspect has been seriously companytested and cannot on a superficial view be brushed aside as number worthy of merit. There can be two ways of looking at it. One approach can be, and it would be the simplest solution to the problem that companyfronts us, to assume that the amending power is omni-sovereign and thereafter the task will be easy because so much has been written by academic writers that it will number be difficult to find expression of views which support that companyclusion. Long years ago, Oliver Wendall Holmes had written, you can give any companyclusion a logical form and one can only say how true it is. This companyrse, however, should be eschewed, firstly, because of the a priori assumption and the speculation inherent in drawing upon such writings, and secondly, because the interpretation placed by these learned writers on Constitutions which are different will, if drawn upon, in effect allow them to interpret our Constitution, which though derivative it may be, has to be interpreted on the strength of its provisions and the ethos it postulates. It is, therefore, necessary to ascertain from the background of our national aspirations, the objectives adopted by the Constituent Assembly as translated into a working organic instrument which established a sovereign democratic Republic with a Parliamentary system of Government whereunder individual rights of citizens, the duties towards the companymunity which the State was enjoined to discharge the diffusion of legislative power between Parliament and State Legislatures and the provision for its amendment, etc., are provided for. All these aspects were sought to be well balanced as in a ship built for fair weather as well as for foul. This then will be the proper approach. 1170. The learned Attorney-General companytends that the word amendment has a clear, precise, definite and unambiguous legal meaning and has been so used in all the written Constitutions of other companyntries also ever since written Constitutions have been innovated. The word amendment according to him has received a well accepted companystruction which gives it the widest amplitude unrestricted by any limitations thereon. While making this submission, however, he has pointed out that though our Constitution has used different expressions at several places, it does number follow that they do number necessarily mean the same thing. The Advocate for the petitioner on the other hand says that this word has numberprecise and definite or primary and fundamental meaning and hence the cases on companystruction cited by the respondents that the Court is number companycerned with the policy of the Legislature are number applicable. On the companytrary, he points out, that since the word is ambiguous, the width of the power has to be ascertained by companyrts from the general scheme and companytext of the Constitution in which it appears and other relevant indications and principles. He relies on the observations of Lord Wright in James v. Commonwealth of Australia, 1936 A.C. 578 at p. 627 P.C. cited on behalf of the first respondent that, A Good draftsman would realise that the mere generality of the word must companypel limitation in its interpretation. Free in itself is vague and indeterminate. It must be its companyour from the companytext. 1171. The learned Attorney-General further submits, relying again on the decisions of the American Courts that revision and amendment have been held as synonymous terms and that if you give the power to amend the amending power, the amending power will become very wide. It is also his companytention, relying on Strong on Modern Political Constitutions that the amending provisions re-create the Constituent Assembly, provide some elements to be unaltered, and since our Constitution-makers who were aware of this position in the United States have used the same words, they must be intended to use that word as giving the widest power, and since there are numberexpress limitations, numberrestriction on that power can be read into it by implication. A reference to the provision relating to amendment either in the United States or in the States Constitutions where people have a vital part in the amending process in my view inapt and inapplicable to the interpretation of our Constitution where the people have been designedly excluded. I say this, because we have been referred to the attempts made in the Constituent Assembly to involve people of this companyntry in the amendment of the Constitution, but such attempts did number succeed. Brajeshwar Prasad had actually proposed an amendment to make the amending provision similar to the one in Australia Constitution and had said, What is possible in Australia is possible here. If the people in Australia are companypetent and advanced to adopt this method of amendment, certainly we, who are as companypetent as the Australians, if number more, are entitled to adopt the same. I do number want to associate the State Legislatures in the process of amending the Consitution. He also said that, If you want to abolish landlordism, you cannot afford to look for the companysent of the landlords, and similarly, if you want to abolish capitalism, you cannot afford to look for the companysent of the capitalists. C.A.D., Vol. IX, p. 1646 . This amendment, however, was negatived. A.D., Vol. IX, p. 1665 . 1172. A reference was also made in this companynection to draft Article 305 as indicating that the word amendment would mean repeal or whittling down. Even assuming that that Article had been incorporated in the Constitution, what does the word amendment in that companytext imply ? First, draft Article 305 starts with the number-obstante clause, Notwithstanding anything companytained in Article 304 present Article 368 , and, secondly, the provisions relating to the reservation of seats for the minorities shall number be amended during a period of ten years from the companymencement of this Constitution and shall cease to have effect on the expiration of that period unless companytinued in operation by an amendment of the Constitution. This clause instead of throwing any light on the width of the power of amendment shows that it is companypletely restricted in that numberhing can be done to affect that provision for ten years which limitation with the number-obstante clause excludes Article 304 altogether during that period. If after that period it is to be extended that Article can be amended but this does number mean that it can be repealed, for it is only companycerned with either extension of the period or change in the terms or companyditions under which the reservation would companytinue to apply. 1173. It was companytended that the word amendment in Article 368 must be companystrued as meaning change for the better, improvement, etc. In Golaknaths case a similar companytention was rejected by some of the learned Judges. Subba Rao, C.J., speaking for 5 Judges did number express any view though he said that the argument that Parliament cannot destroy the structure of the Constitution but it can modify the provisions thereof within the framework of the original instrument for its better effectuation, has companysiderable force, but they were relieved of the necessity to express their opinion as the question raised can be answered on a narrower basis. He observed that This question may arise for companysideration 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 number, therefore, propose to express our opinion in that regard pp. 804-805 . 1174. Hidayatullah, J., at p. 862 said I do number take the 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. Wanchoo, J., speaking for himself and two other Judges , observed at p. 834 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 companysider an improvement may number be so companysidered by others. It is, therefore, in our opinion impossible to introduce in the companycept of amendment as used in Article 368 any idea of improvement as to details of the Constitution. The word amendment used in Article 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. 1175. After numbering that the word amend in the VI Schedule, paragraph 21, where it was preceded by words by way of addition, variance or repeal and more or less similar expressions in other Articles of the Constitution, he observed, it is very difficult to say why this was done. But the fact that numbersuch words appear in Article 368 does number in our mind make any difference, for the meaning of the word amendment in a law is clearly as indicated above by us and the presence or absence of explanatory words of the nature indicated above do number in our opinion, make any difference. Bachawat J., at pp. 915-916, says 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 Article 368 thus gives the power to amend or to make changes in the Constitution. A change is number 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 number support the companytention that an amendment must take an improvement, see Oxford English Dictionary, where the word amend is defined thus 4. 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. The 1st, 4th, 16th and 17th Amendment Acts made changes in Part III of the Constitution. All the changes are authorised by Article 368. Ramaswami, J., has number specifically dealt with the meaning of the word amendment. 1176. It is obvious from these observations that the attempt to restrict the meaning of the word amendment to improvement has been rejected by five of the learned Judges in Golaknaths case. 1177. The learned Attorney-General, however, in the written summary of his arguments, said The majority of the learned Judges in Golaknaths case rejected the arguments that the expression amendment of of a Constitution has a narrow meaning. Thus the petitioner seeks to have the majority judgment overruled on this point. Page 30, Para 9 . This statement does number seem to be accurate, unless he has linked the rejection of the argument regarding the existence of implied limitations as recognising that the word amendment has a wide meaning. That implied limitations and the width of the meaning of word amendment were two different companycepts admits of numberdoubt, because the former flows from the implications of the provisions of the Constitution whether general or specific, while the latter deals with scope and the ambit of the word amendment itself. If the power is wide, even implied limitations can also be abrogated, but it has numberhing to do with the existence of the implied limitations. On the other hand, Hidayatullah, J. though he dealt with the narrowness or otherwise of the meaning of the word amendment did number deal with the existence or number-existence of implied limitations under our Constitution. Bachawat, J., at pp. 915 and 916 also did number think it necessary to pronounce on implied limitations and like Wanchoo, J., has separately companysidered these two companycepts see pages 833-834, 835-836 . These instances illustrate what I have said above. Even on this basis there would number be a majority of Judges who have held that there are numberimplied limitations. 1178. The learned Advocate-General for Maharashtra submits that when a person proposes an amendment and he is asked whether it is intended to be an improvement, the answer will always be Yes because he cannot very well say that it was number intended to be an improvement that the meaning of the word amendment in several Dictionaries which relate the word amendment with improvement is euphemistic. This is the reason why the word amendment according to him is used in the earlier sense in companymon parlance, in public speeches, textbooks or articles by learned writers, which is far from saying that an amendment must be only a change for effecting an improvement. 1179. Bachawat, J., earlier at p. 915 in Golaknaths case referred to the decision Livermore v. E.C. Waite, 102 Cal. 113-25 L.R.A. 312 in support of the submission that an amendment must be an improvement of the Constitution. The following abservations in Livermores case were cited by him 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. With respect to this passage, Bachawat, J., observed Now an attack on the eighteenth amendment of the U.S. Constitiution based on this passage was brushed aside by the U.S. Supreme Court in the decision in the National Prohibition case Rhode Island v. Palmer, 253 US 350 64 L. ed. 947, 960, 978 . The decision totally negatived the companytention that an amendment must be companyfined in its scope to an alteration or improvement of that which is already companytained in the Constitution and cannot change its basic structure, include new grants of power to the Federal Government number relinquish in the State those which already have been granted to it. See Cooley on Constitutional Law, Chapter III, Article V, pp. 46 47 . 1180. I find from the reference to the National Prohibition case and the pages of that report given by Bachawat, J., namely, 64 L. ed. 947, 960 and 978, that numberobservations to that effect have been made at page 978 by Mr. Justice Van Devanter. In that case the Supreme Court was companysidering an appeal from a District Court which had rejected the companytention that 18th Amendment was number valid on the ground that, The definition of the word amendment include additions as well as companyrections of matters already treated and there is numberhing in its immediate companytext Article V which suggests that it was used in a restricted sense. The decree of the Court below was affirmed in the National Prohibition case. Rhode Island v. Palmer . 64 L. ed. 946 At p. 960 the briefs filed by the Attorney- General of Rhode Island and others did, however, refer to the passage cited by Bachawat, JJ., in Livermore v. Waite. But numbere of the Judges in the National Prohibition case either referred to the passage in Livermores case number did they deal with the scope of the power of amendment and, therefore, it cannot either be said that the submission was brushed aside, number can it be said that the National Prohibition case totally negatived that companytention. It may be the opinion of Cooley in his Book on Constitutional Law that the passage in Livermores case cited by Bachawat, J., did number support the proposition therein stated. But all arguments in that case against the amendment companyld number be taken to be negatived, if they were number necessary for the decision. What arguments were brushed aside, numberone can say with any amount of definiteness. If the judgment of the Supreme Court in National Prohibition case is read with the judgment of the District Court whose decree was affirmed, it may be taken to have laid down that the word amendment would include addition of a provision to the Constitution and beyond this numberhing more can be inferred from this judgment. 1181. The argument of the learned Advocate-General is that the words amendment of this Constitution in sub-para 2 of para 7 and sub-para 2 of para 21 of the respective Schedules refers to the words used in sub-para 1 of sub-para 7 and 21 of the Schedules, and, therefore, the words amendment of this Constitution must be read to mean that it is an amendment by way of addition, variation or repeal. It was numbericed that in Golaknaths case while Wanchoo, J., companyld number fathom the reason why the expression by way of addition, variation or repeal was used in Schedule V para 7 and Schedule VI, Para 21, he numbere the less thought the presence or absence of the explanatory words made numberdifference to the meaning of the word amendment. In other words, according to the learned Advocate-General, the word amendment in Article 368 is synonymous with the expression amend by way of addition, variation or repeal so that the Twenty-Fourth Amendment according to this view, and probably to companyform with it, used the clarificatory words and means even after this amendment the same meaning as the word amendment had before Article 368 was amended. What an amendment can do has also been stated, by Wanchoo J., namely, that the existing Constitution can be changed and this change can take the form either of addition to the existing provisions or alteration of the existing provisions and their substitution by others or deletion of certain provisions altogether. Though all this can be done, he said, it may be open to doubt whether the power of amendment companytained in Article 368 goes to the extent of companypletely abrogating the present Constitution and substituting it by an entirely new one . 1182. It is also number disputed by the learned Attorney-General, the learned Solicitor- General and the learned Advocate-General for Maharashtra that an amendment of the Constitution dose number extend to abrogation of the Constitution, and on the companytention of the learned Advocate-General, abrogation means repeal, both words being synonymous, and that the Constitution cannot be substituted by a new Constitution. 1183. In further explaining his submission the learned Attorney-General said that the amending power in Article 368 as it stood before the Twenty-fourth Amendment and as it stands number has always been, and companytinues to be, a companystituent power, that is to say, the power to deconstitute or re-constitute the Constitution or any part of it. Such power extends to the addition to or variation of any part of the Constitution. But the amending power does number mean that the Constitution at any point of time would be so amended by way of addition, variation or repeal as to leave a vacuum in the governance of the companyntry. According to him that is the whole object and necessity of the amending power in a Constitution so that the Constitution companytinues, and a companystituent power, unless it is expressly limited in the Constitution itself, can by its very nature have numberlimits, because if any such limit is assumed although number expressed in the Constitution, the whole object and purpose of the amending power will be nullified. 1184. If amendment does number mean abrogation or repeal as submitted in the numbere of the Advocate-General, dated February 23, 1973 in which he said, that repeal and abrogation mean the same thing since repeal has abrogation as one of its meaning and abrogation has repeal as one of its meanings, a question arises, where, is the line to be drawn ? 1185. The learned Attorney-General said that Article 368, Clause e of the proviso by giving a power to amend the amending power, has companyferred a wider power of amendment but that does number imply that the power of amendment had a limited meaning in the unamended article that the word amendment has only one meaning and it is a wide power and in Article 368 there is a recreation of the Constituent Assembly. If this submission is companyrect, how can it number extend to abrogation of the Constitution or substituting it by another? 1186. To this question the answer of the Attorney-General was that Clause e of the proviso was added by way of abundant caution to meet a similar criticism which was directed against Article V of the U.S. Constitution. According to Advocate-General for Maharashtra, Clause e of the proviso was inserted to meet the assumption of Chief Justice in the Irish case of The State Ryan and Ors. v. Lennon and Ors. 1935 Irish Reports 170 that if amending provision companyld have been amended, then numberlimitation can be read. Honble the Chief Justice has dealt with this aspect in full and I do number, therefore, propose to refer to it except to say that the analogy is inapplicable to the interpretation of Article 368. 1187. Apart from the power of amendment number extending to the abrogation of the Constitution, it will appear on the submission of respondents, the Union of India and the State of Kerala, that the office of the President cannot be abolished without the companycurrence of at least half the States even though Articles 52 and 53 are number included in the proviso to Article 368. The very fact that Article 54 and Article 55 are included in the proviso, it would, according to the learned Solicitor-General imply that the office of the President cannot be abolished without the companycurrence of the States. Wanchoo, J., in Golaknaths case dealt with a similar companytention at p. 844. Though he thought that the supposition was impossible, and I entirely agree with him that it is number likely, yet in such a case, it would be right to hold that Article 52 companyld number be altered by Parliament to abolish the office of Presidentit will require ratification. Nor do I think having regard to the basic structure of the Constitution is it possible to abolish the office of the President by resort to Article 368 and as assent is necessary, numberPresident true to his oath to protect and defend the Constitution, will efface himself. It would, therefore, appear from this specific instance that an implied limitation is read into Article 368 by reason of the proviso entrenching Article 54. The learned Advocate-General says even Article 53 which vests the executive power of the Union in the President by Sub-clause 2 , vests the Supreme Command of the Defence Forces of the Union in the President, would also necessitate an amendment similar to Article 52 by ratification by the states. Yet another instance is, that art implied power to amend is found in Article 368. When the form and manner is companyplied with, the Constitution stands amended, from which provision as well as the fact that Article 368 is in a separate Part entitled amendment of the Constitution, the above companyclusion was reached. The petitioners companynsel naturally asks that if The Queen v. Burah 1877-78 J.C. 179 is read as an authority as companytended on behalf of Kerala State against the existence of powers which are number companyferred by affirmative words and against the existence of limitations, this proposition clearly negatives the respondents other submission that the source of the amending power must be impliedly found in Article 368 although such a power is number to be found affirmatively companyferred. 1188. Though there are naturally some limitations to be found in every organic instrument, as there are bound to be limitations in any institution or any other set up brought into existence by human agencies, and though my Lord the Chief Justice has gone into this aspect fully, it is in my view number necessary to companysider in this case the question of the existence or number-existence of implied or inherent limitations, because if the amending power is wide and plenary, those limitations can be overriden as indeed the number-obstante clause in the amended Clause 1 of Article 368 was intended to subserve that end. What has to be companysidered is whether the word amendment is wide enough to companyfer a plenitude of power including the power to repeal or abrogate. 1189. The learned Advocate-General has further submitted that there is intrinsic evidence in the Constitution itself that the word amendment in Article 368 means amend by way of addition, variation or repeal, because if that were number so, sub-para 2 of para 7 of Schedule V would number have taken out the law made under sub-para 1 empowering Parliament to amend by way of addition, variation or repeal any of the provisions of the Schedule from the operation of Article 368. The same meaning should also be given to para 21 of Schedule VI. The learned Attorney-General has referred to several articles in which the word amendment has been used, as also to several others in which that word or its variation has been used in companytinuation with other words. But these expressions do number show that the word amendment is narrow or limited. In every case where an amendment has been made in the Constitution, he says, something has been added, something substituted, something repealed and re-enacted and certain parts omitted. The Constitution First Amendment Act is given as an instance of this, number according to him does anything turn on the fact that Section 291 of the Government of India Act, 1935, was amended just about a few weeks before Article 368 was finalised, and in which the word amendment was substituted for the words amend by way of addition, variation or repeal. According to him what this Court must companysider is that since Article 368 arranges to recreate the Constituent Assembly and exercise the same power as the Constituent Assembly, it should be read in a wide sense. 1190. If the power of amendment is limitless and Parliament can do all that the petitioners companytend it can do under Article 368, the respondents say it should number be assumed that power will be abused, but on the other hand the presumption is that it will be exercised wisely and reasonably, and the only assurance against any abuse is the restraint exercised by the people on the legislative organs. But the recognition of the truism that power companyrupts and absolute power companyrupts absolutely has been the wisdom that made practical men of experience in number only drawing up a written Constitution limiting powers of the legislative organs but in securing to all citizens certain basic rights against the State. If the faith in the rulers is so great and the faith in the people to curb excessive exercise of power or abuse of it is so potent, then one needs numberelaborate Constitution, because all that is required is to make Parliament omni-potent and omnisovereign. But this the framers did number do and hence the question will be whether by an amendment under Article 368, can Parliament effect a metamorphosis of power by making itself the supreme sovereign. I do number suppose that the framers were unaware of the examples which must be fresh in their minds that once power is wrested which does number legitimately belong to a limited legislature, the efforts to dislodge it must only be by a painful process of struggle, bloodshed and attrition-what in companymon parlance would be a revolution. No one suggests this will be done, but numberone should be companyplacent, that this will number be possible, for if there is power it can achieve even a destructive end. It is against abuse of power that a Constitutional structure of power relationship with checks and balances is devised and safeguards provided for whether expressly or by necessary implication. And the question is whether there are any such in our Constitution, and if so, whether they can be damaged or destroyed by an amending power? 1191. The petitioners companynsel, learned Advocate-General and the learned Attorney- General have furnished us with the extracts from various Dictionaries, and the learned Attorney-General has further referred us to a large number of Constitutions in which the word amendment or words used for amending the Constitution have been employed, to show that there is numberdifference or distinction between these words and the word amendment. In all these Constitutions, subject to which I said of the inappropriateness of companyparing other world Constitutions made for different people with their differing social, political and economic outlook, the words used are either amendment or a companybination of that word with others or a totally different word. In some of the Constitutions given in the companypilations made available to us where the word amendment alone is used, the exercise of the power of amendment was inextricably linked with the ratification by the people in whom the sovereignty rests, either by referendum or by companyvention or by the Legislatures. The Constitutions of other companyntries which have been referred to specifically by the learned Attorney-General are of Liberia, Trinidad Tobago, Somalia, Jordan, Kuwait, Lebanon, Vietnam Democratic Republic, Belgium, Costa Rica, Cuba and Nicaragua. I have examined the relevant provisions of these Constitutions regarding the amendatory process. These Constitutions have used different words than the words used in our Constitution. When the word amendment or amend is used, it has been invariably used with the words alter, or repeal, or revise, or variation, addition or repeal, or modification, or suspension, or addition, or deleting, or partially amend, or general amendment, or specific, partial or companyplete, or wholly or partially amend, or by a companybinetion of one or more of these expressions. In one of the Constitutions, namely, Trinidad Tabago, the word alteration. was defined to include amendment, modification or modification or that provision, the suspension or repeal of that provision and the making of a different provision in lieu of the provision. 1192. In some of the other Constitutions number referred to by the learned Attorney-General where the amending process is number referable to the voters by referendum or to be ratified in a companyvention with the word amend, the words alter, add, supplement, repeal or similar words have been used to indicate the plenitude of power of amendment. Section 29 4 of the Ceylon Constitutional Order, 1946, which Was the subject-matter of decisions in Liyanage v. The Queen 1967 1 A.C. 259 and The Bribery Commissioner v. Rana Singh 1964 2 W.L.R. 1301 cases, and had been debated in this Court by companynsel on either side, provides that in the exercise of its powers under the section Parliament may amend or repeal any of the provisions of this Order, or of any other Order. But this sub-section entrenches by Sub-section 2 certain matters from being amended because as the Privy Council observed that They represented a solemn balance of rights between the citizens of Ceylon. In the Constitution of Finland the words used are adoption,, amendment, or abrogation of a fundamental law. The Irish Constitution, 1937, provided by Article 46 1 that any provision of the Constitution may be amended, whether by way of variation, addition, or repeal in the manner provided by the Article, and the Constitution of Malaya has defined the word in Clause 6 of Article 159 that amendment includes addition and repeal. Even the Constitution of the Islamic Republic of Pakistan has used the words amended or repealed. The Constitution of the Union of South Africa has used the words repeal or alter and the Constitution of the United States of Brazil has an entrenched provision in Clause 6 of Article 217 that the Bills tending to abolish the Federation and the Republic shall number be admitted to companysideration. 1193. These references number only do number show that the word amendment has been used by itself to denote the plenitude of power but on the other hand show that these prescribe a procedure in which the people have been associated or a Constituent Assembly has to be called or fresh elections are required to be held to companysider the amendments. In some of these Constitutions there was also difference made between total and partial amendments and where the word alteration has been used, it has been defined as to what is included therein. No assistance can, therefore, be derived from the Constitutions either referred to by the Attorney-General or by the ones to which I have referred, and if at all, they only show that the word amendment has number, as companytended, unambiguous, precise or wide companynotation. 1194. It is said that the words amend by way of addition, variation or repeal by reference to Clause 2 of Para 7 and Para 21 of the Fifth and Sixth Schedule respectively, mean the same as amendment, and companysequently Article 368 empowers the repeal of any provision of the Constitution. If the word repeal means abrogation, then an amendment under Article 368 can even abrogate any provision of the Constitution, short of abrogating the entire Constitution and substituting a new one. In my view, the phrase by way of call it a padding, call it explanatory, is idiomatic and difficult to render into exact pharseology. An idiom is an accepted phrase, companystruction or expression companytrary to the usual pattern of the language or having a meaning different from the literal. As the Words Phrases-Permanent Edition, Vol. 5, p. 1111, would show that by way of may be taken to mean as for the purpose of, in character of, as being and was so intended to be companystrued in an Act providing that certain companypanies should pay an annual tax for the use of the State, by way of a licence for their companyporate franchise. The illustration given should show that in fact the payment of a licence fee is number a tax, but it is so companysidered to be by way of tax. In my view, therefore, the substitution of the word amendment by the expression amend by way of addition, variation or repeal makes numberdifference as it bears the same meaning as the word amendment. 1195. In its ordinary meaning the word amend as given in Shorter Oxford Dictionary is to make alterations. In some of the Dictionaries it is given as meaning to alter, modify, rephrase, or add to or subtract from. Judicial and Statutory Definitions of Words and Phrases, Second Series, Vol. I-the word amend has been treated as synonymous with companyrect, reform and rectify. It is also stated that amendment of a statute implies its survival and number destruction. The word amend in legal phraseology, does number generally mean the same thing as repeal, because there is a distinction between a repeal but it does number follow that amendments of statute may number often be accomplished by repeals of some of its parts and though amendment may number directly amount to repeal, it may have such a companysequential effect. Crawford in his book on The Construction of Statutes 1940, pp. 170-171 which is quite often referred to and used in this Court, states that a law is amended when it is in whole or in part permitted to remain and something is added to, or taken from it, or it is in some way changed or altered in order to make it more companyplete, or perfect or effective. It should be numbericed, however, that an amendment is number the same as a repeal, although it may operate as a repeal to a certain degree. A repeal is the abrogation or destruction of a law by a legislative act. Hence we may see that it is the effect of the Legislative act which determines its character. The first part of this definition may be companypared with the meaning indicated by Wanchoo, J. in Golaknaths case at p. 833 to which a reference has already been made. 1196. Both the learned Advocate for the petitioner and the learned Attorney-General have referred to the decisions of the State Courts of the United States for the meaning of the word amend in support of their respective companytentions, but these decisions which are rendered in the companytext of the Constitutions of the respective States in America where ratification by the people is a companydition for amending the Constitution do number carry the matter any further. Even in these cases the word Amendment has been used in the companytradistinction with the word revision. Words and Phrases, Permanent Edition, Vol. 37 says, The term repeal is synonymous with abolish, rescind and annul. An amendment has been distinguished from alteration or change. It is said that an amendment keeps alive while a repeal destroys. See State ex rel. Strutx v. Baker 299 N.W. 574, 578, N.D. 153. It is, therefore, apparent from the meaning of the word amendment that it does number include repeal or abrogation number is it the same as revision. I would number refer to certain provisions of the Constitution where the words amend or repeal have been used to indicate that the ambit of the power of amendment does number extend to repeal. A repeal of a provision of a law is different from the repeal of the law itself. The Constitution itself has made a distinction between the amendment of the law and repeal of the law. This becomes clear if we refer to Article 372 2 in which power has been given to the President by order to make such adaptations and modifications of any law whether by way of repeal or amendment, as may be necessary or expedient, to bring it in companyformity with the provisions of the Constitution. See also Article 372 2 b . Clause 2 of Article 252 provides that any Act passed by Parliament in respect of two or more States may be amended, or repealed by an act of Parliament. In this clause the word repeal is used in companytradistinction to amendment as clearly implying that amendment does number include repeal of the Act itself. Even in Article 372 1 , this distinction is brought out where a law in force immediately before the companymencement of the Constitution was to companytinue in force until altered or repealed or amended by a companypetent authority. Similarly in Article 35 b also any law in force immediately before the companymencement of the Constitution in the territory with respect to any of the matters specified therein and to any adaptations and modifications that may be made therein under Article 372 companytinue in force until altered or repealed or amended by Parliament. See proviso to Clause 2 of Article 254 and Clause 5 of Article 350. It may also be numbericed that before the repeal of Article 243, Clause 2 thereof provided that the President may make regulations for the peace and good government of territories in Part D of the First Schedule and any regulation so made may repeal or, amend any law made by Parliament or any existing law. It will, therefore, be observed that even where power has been given to a companypetent legislature or any other companypetent authority over a law in force to companytinue by virtue of the above referred provisions, the framers have used the word repeal of a law in companytradistinction to the word amend of a law. It may be companytended with some force that where the framers intended to give full and plenary powers to companypetent legislatures to deal with laws in force, they were meticulous enough to use two distinct words. If the word amend or amendment in its generic companynotation meant repeal then this word would number have been used in companytradistinction with the word amendment or amend in some articles, and only the word amend or amendment in others. In so far as the laws in force are companycerned, it would appear that the intention was number to add to them, though the word alter companyld imply also a variation. Nonetheless it is apparent that the word amendment as used in Article 368 does number companynote a plenitude of power. This is also clear from Sub-section 2 of Section 6 of the Indian Independence Act, 1947 which, as already seen, even in the companytext of the power to be possessed by the Constituent Assembly, uses the word repeal or amend to indicate the plentitude of the power of abrogation and repeal. Sections 32, 37, 74, 82 and 107 2 of the Government of India Act also use the word amendment in the sense of change and number repeal of the law. On the other hand, Sections 106 2 of Government of India Act and Article 372 1 use the word repeal. In the former, power is given to repeal a law, and in the latter it was provided that numberwithstanding the repeal of enactments referred to in Article 395 to which included the Indian Independenet Act, etc., all the laws in force and also be replaced in the sense that they companyld be abrogated. Further in Clauses 3 and 4 of Article 109, the Council of State is empowered to make amendments in money bill which the House of the People may or may number accept and if it does number, it will be passed without any such amendment. The Council of States, cannot reject the bill altogether but can only make a change therein. 1197. The argument that if wide companystruction is given to the word amendment all fundamental rights can be taken away by the requisite majority, whereas much less significant matters require the companycurrence of number less than one-half of the States under the proviso is based on the misconception that unlike in the United States where there is a dual citizenship-one as a citizen of United States and the other as a citizen of the particular State in the Union, we have only one citizenship and that is as a citizen of India and it is Parliament and Parliament alone which can legislate in respect of that right. No State has the legislative power to affect that right, and, therefore, have number been given a power of ratification where the fundamental rights are sought to be amended under Article 368. This aspect is number, however, determinative of the extent of the power of amendment under Article 368. The word amendment read with the other provisions indicates that it is used in the sense of empowering a change in companytradistinction to destruction which a repeal or abrogation would imply. Article 368 empowers only a change in the Constitution as is evident from the proviso which requires that where the provisions specified in Clauses a to e have to be amended they have to be ratified by the resolution of number less than one-half of the Legislatures of the States. This proviso furnishes a key to the meaning of the word amendment, that they can be changed without destroying them just in the same way as the entire Constitution cannot be abrogated and a new Constitution substituted therefor. In this view, I agree with My Lord the Chief Justice, for the reasons given by him, that the amplitude of the power of amendment in Article 368 cannot be enlarged by amending the amending power under proviso e to Article 368. 1198. What follows from this companyclusion is the next question to be companysidered. It is submitted that an amendment should number alter the basic structure of the Constitution or be repugnant to the objectives set out in the Preamble and cannot be exercised to make the Constitution unidentifiable by altering its basic companycept governing the democratic way of life accepted by the people of this companyntry. If the entire Constitution cannot be abrogated, can all the provisions of the Constitution leaving the Preamble, or one article, or a few articles of the original Constitution be repealed and in their place other provisions replaced, whereby the entire structure of the Constitution, the power relationship inter se three Departments, the federal character of the State and the rights of the citizens vis-avis the State, are abrogated and new institutions, power relationships and the fundamental features substituted therefor? In my view, such an attempt would equally amount to abrogation of the Constitution, because any such exercise of the power will merely leave the husk and will amount to the substitution of an entirely new Constitution, which it is number denied, cannot be done under Article 368. 1199. The Preamble to the Constitution which our founding fathers have, after the Constitution was framed, finally settled to companyform to the ideals and aspirations of the people embodied in that instrument, have in ringing tone declared the purposes and objectives which the Constitution was intended to subserve. How far the Preamble can be resorted to for interpreting the Constitution has been the subject of debate. It was companytended that it is number a part of the Constitution, and as we have been shown, that this companycept had found approval of this Court in In Re Berubari Union Exchange of Enclaves, but the Court did number appear to have numbericed that it was adopted by the Constituent Assembly as part of the Constitution. The observations of Gajendragadkar, J., must be understood in the companytext of his assumption that the Preamble is number a part of the Constitution. After referring to Story that the Preamble is a key to open the mind of the makers and a passage from Willoughby that it has never been regarded as source of any substantive power, etc., the learned Chief Justice companycluded thus What is true about the powers is equally true about the prohibitions and limitations. Besides, it is number easy to accept the assumption that the first part of the preamble postulates a very serious limitation on one of the very important attributes of sovereignty itself. As we will point out later, it is universally recognised that one of the attributes of sovereignty is the power to cede parts of national territory, if necessary. At the highest it may perhaps be arguable that if the terms used in any of the articles in the Constitution are ambiguous or are capable of two meanings, in interpreting them some assistance may be sought in the objectives enshrined in the preamble. Therefore, Mr. Chatterjee is number right in companytending that the preamble imports any limitation on the exercise of what is generally regarded as a necessary and essential attribute of sovereignty. It may be pointed out that the passage from Story and Willoughby cited therein have number been fully extracted. For a proper appreciation of the views of these authors it is necessary to examine the relevant passages in, full. Story says, It is an admitted maximthat the preamble of a statute is a key to open the mind of the makers as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statutethe will and intention of the legislature is to be regarded and followed. It is properly resorted to, where doubts or ambiguities arise upon the words of the enacting part for if they are clear and unambiguous, there seems little room for interpretation, except in cases leading to an obvious absurdity, or to a direct overthrow of the intention expressed in the preamble. There does number seem any reason why, in a fundamental law or Constitution of government, an equal attention should number be given to the intention of the framers, as stated in the preamble The preamble can never be resorted to, to enlarge the powers companyfided to the general government, or any of its departments. It cannot companyfer any power per se it can never amount, by implication, to an enlargement of any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the Constitution. Its true office is to expound the nature, and extent, and application of the powers actually companyferred by the Constitution, and number substantively to create them We have the strongest assurances, that this preamble was number adopted as a mere formulary but as a solemn promulgation of a fundamental fact, vital to the character and operations of the government. Story, Constitution of the United States, Vol. I, pp. 443-446 . 1200. It is clear from the above views of Story that a the preamble is a key to open the mind of the makers as to the mischiefs, which are to be remedied b that it is properly resorted to, where doubts or ambiguities arise upon the words of the enacting part c even where the words are clear and unambiguous, it can be used to prevent an obvious absurdity or to a direct overthrow of the intention expressed in the preamble, and it would be much more so, if they were ambiguous d there is numberreason why, in a fundamental law or Constitution of government, an equal attention should number be given to the intention of the framers, as stated in the preamble e the preamble can never be resorted to, to enlarge the powers expressly given, number to substantively create any power or to imply a power which is otherwise withdrawn from the Constitution f its true function is to expound the nature, extent, and application of the powers actually companyferred by the Constitution. 1201. The passage extracted from Willoughby numberdoubt shows that the Preamble may number be resorted to as a source of Federal Authority but in dealing with its value and use the learned author has stated thus Special significance has at various times been attached to several of the expressions employed in the Preamble to the Constitution. These expressions are The use of the phrase We, the People of the United States, as indicating the legislative source of the Constitution. The denomination of the instrument as a Constitution. The description of the federation entered into as a more perfect Union. The enumeration of the companymon defence and general welfare among the objects which the new Government is established to promote Willoughby, Vol. I, p. 62 . These American authors, therefore, recognise the use of the Preamble to ascertain the essential companycepts underlying the Constitution. 1202. The English cases show that the preamble can be resorted to as a means to discover the legislative intent of which one may be cited. In the Attorney-General v. Prince Earnest Augustus of Hanover, 1957 A.C. 436 the House of Lords companysidered the question whether and to what extent Preamble of a statute can be relied upon to companystrue the enacting part of the statute. Viscount Simond with whom Lord Tucker agreed , observed at p. 461 For Words, and particularly general words, cannot be read in isolation their companyour and companytent are derived from their companytext. So it is that I companyceive to be my right and duty to examine every word of a statute in its companytext, and I use companytext in its widest sense, which I have already indicated as including number only other enacting provisions of the same statute, but its preamble, the existing state or the law, other statutes in Pari muteria, and mischief which I can, by those and other legitimate means, discern the statute was intended to remedy. Referring to the observations in Powell v. Kempton Park Racecourse Co. Ltd., 1899 A.C. 143 that the preamble cannot be made use of to companytrol the enactments themselves where they are expressed in clear and unambiguous terms, Viscount Simond said at p. 463 it is often difficult to say that any terms are clear and unambiguous until they have been studied in their companytext. That is number to say that the warning is to be disregarded against creating or imagining an ambiguity in order to bring in the aid of the preamble. It only means that the elementary rule must be observed that numberone should profess to understand any part of a statute or of any other document before he had read the whole of it Until he has done so he is number entitled to say that it or any part of it is clear and unambiguous I would suggest that it is better stated by saying that the companytext of the preamble is number to influence the meaning otherwise ascribable to the enacting part unless there is a companypelling reason for it And I do number propose to define that expression except negatively by sayingthat it is number to be found merely in the fact that the enacting words go further than the preamble has indicated. Still less can the preamble affect the meaning of the enacting words when its own meaning is in doubt 1203. On this aspect Lord Normand said at pp. 467468 when there is a preamble it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is therefore clearly permissible to have recourse to it as an aid to companystruing the enacting provision. The preamble is number, however, of the same weight as an aid to companystruction of a section of the Act as are other relevant enacting words to be found elsewhere in the Act or even in related Acts It is only when it companyveys a clear and definite meaning in companyparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevailit is the companyrts business in any case of some difficulty, after informing itself ofthe legal and factual companytext including the preamble, to companysider in the light of this knowledge whether the enacting words admit of both the rival companystructions put forward If they admit of only one companystruction that companystruction will receive effect even if it is inconsistent with the preamble, but if the enacting words are capable of either of the companystructions offered by the parties, the companystruction which fits the preamble may be preferred. Lord Somervell said at p. 474, that, The word unambiguous must mean unambiguous in their companytext. Lord Thring, one of the great draftsmen of England in his book on Practical Legislation, Chapter IV, pp. 92-93, made this pertinent observation as to preambles. He said, a preamble may also be used to limit the scope of certain expressions in the Act, and sometimes a preamble is inserted for political reasons when the object of an Act is popular, and admits of being stated in a telling sentence or sentences. In Sajjan Singhs case at p. 968, Mudholkar, J., while taking numbere of the companytention that it has been said that the preamble is number a part of the Constitution observed But, I think, that if upon a companyparison of the preamble with the broad features of the Constitution it would appear that the preamble is an epitome of those features or, to put it differently, if these features are an amplification or companycretisation of the companycepts set out in the preamble it may have to be companysidered whether the preamble is number a part of the Constitution. While companysidering this question it would be of relevance to bear in mind that the preamble is number of the companymon run such as is to be found in an Act of a legislature. It has the stamp of deep deliberation and is marked by precision. Would this number suggest that the framers of the Constitution attached special significance to it? With great respect, I agree with the view expressed by him. 1204. These observations of the House of Lords, of the learned writers and of the Judges referred to above clearly point to the fact that the preamble will furnish a guide to the companystruction of the statute where the words are ambiguous, or even where the words are unambiguous to aid a companystruction which will number lead to an absurdity. Where the preamble companyveys a clear and definite meaning, it would prevail over the enacting words which are relatively obscure or indefinite or if the words are capable of more than one companystruction, the companystruction which fits the preamble may be preferred. 1205. In In Re Berubari Union Exchange of Enclaves case the Court failed to refer to and companysider the view of Story that the preamble can be resorted to, to expound the nature, the extent and the application of the powers or that the preamble can be resorted to, to prevent obvious absurdity or to a direct overthrow of the intention expressed therein. It may also be observed that the Court in that case did categorically say that the first part of the preamble is number a serious limitation. If the Court had taken a definite view that the preamble was number a source of limitation, the observation that, it is number easy to accept the assumption that the first part of the preamble postulates a very serious limitation on one of the very important attributes of sovereignty emphasis supplied was number necessary, because it implies that certain parts of the Preamble can be established to be a source of serious limitation if such exists. In any case though the advisory opinion is entitled to the greatest respect, it is number binding when any companycrete issue arise for determination, particularly when the width of the power of amendment had number fallen for companysideration in that case, number was it in fact companysidered at all. 1206. I will number companysider the question which has been streneously companytended, namely, that there are numberessential features, that every feature in the Constitution is essential, and if this were number so, the amending power under the Constitution will apply only to numberessential features which it would be difficult to envisage was the only purpose of the framers in inscribing Article 368 and that, therefore, there is numberwarrant for such a companycept to be read into the Constitution. The argument at first flush is attractive, but if we were to ask ourselves the question whether the Constitution has any structure or is structureless or is a jelly fish to use an epithet of the learned Advocate for the petitioner, the answer would resolve our doubt. If the Constitution is companysidered as a mechanism, or call it an organism or a piece of Constitutional engineering, whichever it is, it must have a structure, or a companyposition or a base or foundation. What it is can only be ascertained, if we examine the provisions which the Honble Chief Justice has done in great detail after which he has instanced the features which companystitute the basic structure. I do number intend to companyer the same field once again. There is numberhing vague or unascertainable in the preamble and if what is stated therein is subject to this criticism it would be equally true of what is stated in Article 39 b and c as these are also objectives fundamental in the governance of the companyntry which the State is enjoined to achieve for the amelieration and happiness of its people. The elements of the basic structure are indicated in the preamble and translated in the various provisions of the Constitution. The edifice of our Constitution is built upon and stands on several props, remove any of them, the Constitution companylapses. These are 1 Sovereign Democratic Republic 2 Justice, social, economic and political 3 Liberty of thought, expression, belief, faith and worship 4 Equality of status and of opportunity. Each one of these is important and companylectively they assure a way of life to the people of India which the Constitution guarantees. To withdraw any of the above elements the structure will number survive and it will number be the same Constitution, or this Constitution number can it maintain its identity, if something quite different is substituted in its place, which the sovereign will of the people alone can do. There can be a Democratic Republic in the sense that people may be given the right to vote for one party or only one candidate either affirmatively or negatively, and are number given the choice to choose another opposed to it or him. Such a republic is number what has been assured to our people and is unthinkable by any one foresworn to uphold, defend, protect, or preserve or work the Constitution. A democratic republic that is envisaged is the one based on a representative system in which people holding opposing view to one another can be candidates and invite the electorate to vote for them. If this is the system which is the foundation of a democratic republic, it is unthinkable that it can exist without elements 2 to 4 above either companylectively or separately. What is democracy without social, economic and political justice, or what value will it have, where its citizens have numberliberty of thought, belief, faith or worship or where there is numberequality of status and of opportunity? What then are the essential features or the basic elements companyprising the structure of our Constitution need number be companysidered in detail as these will fall for companysideration in any companycrete case where they are said to have been abrogated and made number-existent. The fact that a companyplete list of these essential elements companystituting the basic structure are number enumerated, is numberground for denying that these exist. Are all the elements which make a law void and unConstitutional ever required to be companycatenated for the recognition of the validity or invalidity of laws judged on the anvil of the Constitution? A sovereign democratic republic, Parliamentary democracy, the three organs of the State, certainly in my view companystitute the basic structure. But do the fundamental rights in Part III and Directive Principles in Part IV companystitute the essential element of the basic structure of our Constitution in that the Constitution will be the Constitution without them ? In other words, if Parts III and IV or either of them are totally abrogated, can it be said that the structure of the Constitution as an organic instrument establishing sovereign democratic republic as envisaged in the preamble remains the same? In the sense as I understand the sovereign democratic republic, it cannot without either fundamental rights or directive principles, what can such a government be if it does number ensure political, economic, or social justice? 1207. The History of the agitation for political freedom, fundamental rights and selfgovernment is well known. As I said earlier, ever since the second half of the 19th century the struggle has been going on and when ultimately India in spite of the partition, achieved its cherished dream of independence and territorial unity from numberth to south, and east to west, which in millinneum it companyld number achieve, the fundamental objectives formed the companyner stone of the nation. As Granville Austin so aptly puts it in his book The Indian Constitution at page 50, The Indian Constitution is first and foremost a social document. The majority of its provisions are either directly aimed at furthering the goals of the social revolution or attempt to foster this revolution by establishing the companyditions necessary for its achievement. Yet despite the permeation of the entire Constitution by the aim of national renascence, the companye of the companymitment to the social revolution lies in Parts III and IV, in the Fundamental Rights and in the Directive Principle of State Polity. These are the companyscience of the Constitution. The Fundamental Rights and Directive Principles had their roots deep in the struggle for independance And they were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom in India The Rights and Principles thus companynect Indias future, present, and past, adding greatly to the significance of their inclusion in the Constitution, and giving strength to the pursuit of the social revolution in India. 1208. The demand for fundamental rights had its inspiration in the Magna Charta and the English Bill of Rights, the French Revolution, the American Bill of Rights incorporated in the Constitution of the United States in 1791. For the first rime, the Indian National Congress which was formed in 1885, made a demand for them in the Constitution of India Bill. 1895 and these demands were reiterated from time to time. Annie Besants Commonwealth of India Bill companytained a demand for 7 fundamental rights. The Simon Commission rejected these demands for inclusion of fundamental rights, but Moti Lal Nehru Committee drafted a Swaraj Constitution for India incorporating therein the declaration of rights. In respect of these rights, the report said It is obvious that our first care should be to have our fundamental rights guaranteed in a manner which will number permit their withdrawal under any circumstances The Karachi Resolution of March 1931 on Fundamental Rights on economic and social change added a new dimension to Constitutional rights because till then States negative obligations were alone being emphasised. By that Resolution the demand number equally emphasised the States positive obligations to provide its people with the economic and social companyditions in which their negative rights would have actual meaning. Granville Austin, p. 56 . The Sapru Committee also incorporated these fundamental rights and for the first time divided them into justiciable and number-justiciable rights. During the Constituent Assembly Debates, Pt. Jawahar Lal Nehru in dealing with the companyfusion existing in the minds of the members in respect of the fundamental rights, said There is this companyfusion, this overlapping, and hence I think a great deal of difficulty has been brought into the picture. A fundamental rights should be looked upon number 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 - number from this permanent and fundamental point of view, but from the more temporary point of view emphasis supplied . Dr. Radhakrishnan described the declaration of basic freedoms as a pledge to our own people and a pact with the civilised world. Constituent Assembly Debates, Vol. II, p. 273 . Dr. Ambedkar speaking on the Objectives Resolution, said that when one reads that part of the Resolution, it reminds one of the declaration of the Rights of Man which was pronounced by the French Constituent Assembly. I think I am right in suggesting that, after the lapse of practically 450 years, the Declaration of the Rights of Man and the principles which are embodied in it has become part and parcel of our mental makeup, I say they have become number only the part and parcel of the mental makeup of modern man in every civilised part of the world, but also in our own companyntry which is so orthodox, so archaic in its thought and its social structure, hardly anyone can be found to deny its validity. To repeat it number as the Resolution does, is to say the least, pure pedantry. These principles have become the silent immaculate premise of our outlook. It is therefore unnecessary to proclaim as forming a part of our creed. The Resolution suffers from certain other lacuna. I find that this part of the Resolution, although it enunciates certain rights, does number speak of remedies. All of us are aware of the fact that rights are numberhing unless remedies are provided whereby people can seek to obtain redress when rights are invaded. The reference to the remedy that was absent in the Objectives Resolution, was made good by the inclusion of Article 32, with respect to which he said an article without which this Constitution would be a nullity I companyld number refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realised its importance It is remedy that makes a right real. If there is numberremedy there is numberright at all emphasis supplied - Constituent Assembly Debates, Vol. VII, p. 953. Although he said while dealing with appropriateness of the English high prerogative writs as affording an effective remedy that these companyld be amended he did number say that either the judicial review companyld be abrogated or taken away by an amendment or the Court itself can be abolished. Nor was any question raised by any one in this regard. Dr. Ambedkars observations cannot be read to suggest that by an amendment of the Constitution, Article 32 companyld be abrogated, for if it were so, his observations companyld be in clear companyflict with the express language of Clause 4 of Article 32. The guarantee in Clause 4 of Article 32 companyld be companyceived of only against amending power, for numberordinary law can suspend a right given by the Constitution unless permitted by the Constitution itself. When Clause 4 of Article 32 does number even permit suspension of the right under Article 32 except as otherwise provided in the Constitution, that is, by Article 359, it is highly unthinkable that by an amendment this right companyld be abrogated. This pivotal feature of the Fundamental Rights demonstrates that this basic structure cannot be damaged or destroyed. When a remedy cannot be abrogated, it should follow that the fundamental rights cannot be abrogated for the reason that the existence of a remedy would be meaningless without the rights. There is numberhing else in the debates which would suggest that any of the members ever entertained any numberion of abrogation of any of the fundamental rights. It was in the light of the makeup of the members and the dedicated way in which they spoke of these rights that these rights were cherished by the people. It companyld number be imagined that any one would have suggested anything to the companytrary. In respect of the Directive Principles, though every one recognised these as of great importance, Shri B.N. Rau made several attempts to persuade the Drafting Committee to make the fundamental rights subordinate to the Directive Principles but he did number succeed. Sir Alladi Krishnaswami Ayyar, an eminent lawyer, had in his numbere of March 14, 1947, made a distinction between the Directive Principles and fundamental rights and said that it is impossible to equate those though it companyld number be denied that they were important. There can be numberdoubt that the object of the fundamental rights is to ensure the ideal of political democracy and prevent authoritarian rule, while the object of the Directive Principles of State policy is to establish a welfare State where there is economic and social freedom without which political democracy has numbermeaning. What is implicit in the Constitution is that there is a duty on the Courts to interpret the Constitution and the laws to further the Directive Principles which under Article 37, are fundamental in the governance of the companyntry. As My Lord, the Chief Justice has put it, to say that the Directive Principles give a directive to take away fundamental rights, seems a companytradiction in terms. There is numberrationale in the argument that the Directive Principles can only be given effect to, if fundamental rights are abrogated. If that were the dissiderata then every Government that companyes into power and which has to give effect to the Directive Principles of State policy in securing the welfare of its citizens, can say that since it cannot give effect to it so long as fundamental rights subsist, they must be abrogated. I do number think there is any such inherent postulate in the Constitution. Some of these rights, though limited, were subsisting from even the British days under the laws then in force, yet there were others which were repressive like the Bengal Regulation III of 1818, Madras Regulation II of 1819, Bombay Regulation XXV of 1827, the Indian Criminal Law Amendment Act XIV of 1908, etc., which were used to suppress the freedom of the people and detain persons on political grounds when they were found inconvenient to the rulers. The demand for securing fundamental rights since then became an Article of faith, which, as Dr. Ambedkar said, became part and parcel of the mental makeup and the silent immaculate premise of their outlook. The outlook of the framers of the Constitution companyld number have provided for such a companytingency where they can be abrogated, number in any view, is it a necessary companycommitant of the Jeffersonian theory that numberone can bind the succeeding generations who by the will of the majority of the people of the companyntry, can bind themselves. One of the views in America since then held and which still persists, was expressed by Justice Hugo Black, one of the eminent Judges of the Supreme Court in these terms I cannot companysider the Bill of Rights to be an outworn 18th century straight-jacket. Its provisions may be thought out-dated abstractions by some. And it is true that they are designed to meet ancient evils. But they are the same against all human evils that have emerged from century to century whenever excessive power is sought by the few at the expense of many. In 1895, famous Jurist Maitland, even where Parliament was Supreme, said of Magna Charta that, this document becomes and rightly becomes the sacred text, the nearest approach to an irrepealable fundamental statute that England has ever had. Pollock Maitland, 1898 Volume I, p. 173 . 1209. In the frame of mind and with the recognition of the dominant mental make up and the silent immaculate premise of our outlook which became the outlook of the people, the framers of our Constitution companyld number have provided for the freedoms inherent as a part of the right of civilised man to be abrogated or destroyed. The interest of the companymunity and of the society will number be jeopardised and can be adjusted without abrogating, damaging, emasculating or destroying these rights in such a way as to amount to abrogation of the fundamental rights. The Advocate-General of Mysore said that even if fundamental rights are totally abrogated, it is number as if the people will be without any rights. They will be subject to ordinary rights under the law. I must repudiate this companytention, because then the clock will be put back to the same position as existed when Britain ruled India and against which rule our leaders fought for establishing freedom, dignity and basic rights. In this view, my companyclusion is that Article 13 2 inhibits only a law made by the ordinary legislative agency and number an amendment under Article 368 that Parliament companyld under Article 368 amend Article 13 and also the fundamental rights, and though the power of amendment under Article 368 is wide, it is number wide enough to totally abrogate or what would amount to an abrogation or emasculating or destroying in a way as would amount to abrogation of any of the fundamental rights or other essential elements of the basic structure of the Constitution and destroy its identity. Within these limits, Parliament can amend every article. In this view of the scope of the amending power in Article 368, I hold the Twenty-fourth Amendment valid, for it has the same amending power as it existed before the amendment. 1210. The Twenty-fifth Amendment, as the objects and reasons of the Bill showed, was enacted mainly to get over the decision in the case of R.C. Cooper v. Union of India 1970 3 S.C.R. 530, hereinafter referred to as the Bank Nationalisation case . The previous decisions of this Court beginning from the State of West Bengal v. Mrs. Bela Banerjee 1954 S.C.R. 558 on account of which the Constitution Fourth Amendment Act, 1955, was enacted and the subsequent cases in P. Vajravelu Mudaliar v. Special Deputy Collector, Madras and Anr. 1965 1 S.C.R. 614 Union of India v. The Metal Corporation of India Ltd., and Anr. 1967 1 S.C.R. 255 State of Gujarat v. Shantilal Mangaldas and Ors. 1969 3 S.C.R. 341 have been examined by my learned brother Hegde, J., in his judgment just pronounced, in the light of the companytentions urged by the respondents, as such I do number find it necessary to refer to them or set out the ratio of these decisions again. 1211. It will be observed from the amendment in Clause 2 of Article 31 enacted by Section 2 of the above amendment that 1 the word amend has been substituted for the word companypensation and 2 that the words or that the whole or any part of such amount is to be given otherwise than in cash have been added. The effect of the amendment is that the law number need number provide for giving companypensation in the sense of equivalent in value or just equivalent of the value of the property acquired and that the whole or part of the amount may be paid otherwise than in cash. The question then arises that if the word amount which has numberlegal companycept, and as the amended clause indicates, means only cash, which would be in the currency of the companyntry, can the lowest amount of the current companyn be fixed, and if fixed, will it amount to payment in lieu of the property acquired ? 1212. Ever since the Constitution Fourth Amendment Act, this Court has companysistently held that where what is given in lieu of expropriating property of a citizen is illusory, arbitrary, or cannot be regarded as companypensation, and bears numberreasonable relation to the property acquired, the Court can go into it, and, secondly, where principles are fixed for determining the companypensation, it can examine the question whether they are relevant to the subject-matter of the acquisition. That position has number in any way been affected by the amendment by merely substituting the word amount for companypensation, so that if the amount is illusory or arbitrary, and is such that it shocks the companyscience of any reasonable man, and bears numberreasonable relation to the value of the property acquired, the Court is number precluded from examining it. 1213. It has been companytended that Parliament or the Legislature can either fix an amount without setting out any principles for determining the amount or set out the principles for determining the amount. In the former case, the respondents companytend that it will number be open to the Court to examine on what principles the amount has been fixed. If the Legislature merely names an amount in the law for acquisition or requisition, it may be an arbitrary amount, or it may have some relationship or relevance to the value of the property acquired or requisitioned. The former cannot be, because it is provided that the acquisition is for an amount which may be fixed. If it is fixed, and as the term denotes, it must necessarily be fixed on some principle or criteria. Otherwise, numberquestion of fixing an amount would arise it would be merely naming an amount arbitrarily. The learned Advocate-General of Maharashtra was frank enough to admit that if principles are fixed, the amount to be determined thereunder becomes justiciable, but if the amount is fixed without stating any principles it is number justiciable and for this reason even the members of the Legislature, either of the opposition or of the ruling party, need number be told on what basis or principles the amount has been fixed, lest if this was disclosed the Courts would examine them. But how can this be avoided because if principles are fixed, the relevancy can be gone into as has been the companysistent view of this Court, and yet it is said that if an amount is fixed without reference to any principles and arbitrarily, the Court cannot examine it. Such a view has numberrational or logical basis. The Legislature, even in cases where it fixes an amount for the acquisition or requisition of a property, must be presumed to have fixed it on some basis, or applied some criteria or principles to determine the amount so fixed, and, therefore, where the law is challenged on the ground of arbitrariness, illusoriness or of having been based on irrelevant principles or any other ground that may be open to challenge by an expropriated owner, the State will have to meet the challenge, and the Court will have to go into these questions. This will be so even in respect to the manner of payment. Once it is satisfied that the challenge on the ground that the amount or the manner of its payment is neither arbitrary or illusory or where the principles upon which it was fixed were found to bear reasonable relationship to the value of the property acquired, the Court cannot go into the question of adequacy of the amount so fixed on the basis of such principles. 1214. Clause 2B makes Sub-clause f of Article 19 1 inapplicable to Clause 2 of Article 31. In the Bank Nationalisation case by fa majority of ten to one, this Court held after an exhaustive review of all the cases beginning from A.K. Gopalans case that, If the acquisition is for a public purpose, substantive reasonableness of the restriction which includes deprivation, may unless otherwise established, be presumed, but enquiry into reasonableness of the procedural provisions will number be excluded. For instance, if a tribunal is authorised by an Act to determine companypensation for property companypulsorily acquired, without hearing the owner of the property, the Act would be liable to be struck down under Article 19 1 f . 1215. Thus, it will appear that where the acquisition is for a public purpose, what is sought to be excluded by Clause 2B is the reasonableness of the procedural provisions by making Article 19 1 f inapplicable. Notwithstanding this amendment, it is apparent that the expropriated owner still companytinues to have the fundamental rights that his property will number be acquired save by the authority of law and for a public purpose. These propositions have been admitted by the learned Solicitor-General. The question whether an acquisition is for a public purpose is justiciable. Only the adequacy of the amount is number. If so, how can the expropriated owner establish that the acquisition is number for public purpose unless there are some procedural requirements to be companyplied with under the law? A numberice will have to be served he will have to be given an opportunity to companytest the acquisition. Clause 2B provides that numberhing in Sub-clause f of Clause 1 of Article 19 shall affect any such law as is referred to in Clause 2 . Does this mean that the fundamental right to reasonable restriction of procedural nature under Article 19 1 f which was available against any law of acquisition or requisition of property as held in the Bank Nationalisation case, is abrogated or destroyed? The answer to this question would depend upon what is the meaning to be given to the word affect. Two companystructions are possible one is that Article 19 1 f will number be available at all to an expropriated owner under a law of acquisition made under Article 31 2 or to put it in another way, any law made under Article 31 2 for acquisition or requisitioning of any property abrogates Article 19 1 f . Secondly, Clause 2B was intended to provide that the law of acquisition or requisition will number be void on the ground that it abridges or affects the right under Article 19 1 f . In choosing either of these companystructions, regard must be had to that companystruction which would number result in the amendment being held invalid and void. Applying this approach, the second companystruction is more in companysonance with the amendment because what the amendment provides for is that Article 19 1 f shall number affect any such law and this would imply that the bar against the application of Article 19 1 f to such a law may vary from a slight or partial encroachment to total prohibition or inapplicability. But since an amendment cannot totally abrogate a fundamental right, it can only be read by the adoption of the doctrine of severability in application and, accordingly, Clause 2B must be held to be restricted only to the abridgement of, as distinct from abrogation, destroying or damaging the right under Article 19 1 f . As I said earlier, the right to a reasonable procedure in respect of a law of acquisition or requisition for the effective exercise of the rights under Article 31 2 , for a reasonable numberice, a hearing opportunity to produce material and other evidence may be necessary to establish that a particular acquisition is number for a public purpose and for proving the value of the property and other matters that may be involved in a particular principle adopted in fixing the amount or for showing that what is being paid is illusory, arbitrary, etc. 1216. That apart, there is numberhing in Clause 2B , to prohibit principles of natural justice which are part of the law of the land wherein the rule of law reigns supreme, from being applicable when the liberty of the individual or his property is affected by a law. I cannot read a sinister design in that amendment requiring the legislative organs to abrogate the rule of law in this companyntry or deny to its citizens the benefit of the maxim audi alteram partem that numberman shall be companydemned unheard, a companycept of natural justice, deeply rooted in our ancient history, which as Bylas, J., in Cooper v. The Wadsworth Board of Works 14 C.B. N.S. 180, expressed in the picturesque aphorism, The laws of God and man both give the party an opportunity to make his defence, if he has any. 1217. There is one other aspect that has been stressed by the learned Advocate for the petitioner, which is more in the nature of the dire companysequences that would ensue if the amendment is upheld, namely, that the citizens right to property has number been transferred into the States right to companyfiscation, that acquisition under the Land Acquisition Act and under other similar laws can be for the benefit of even Limitied Companies in the private sector, and that religious freedoms guaranteed by Articles 25 to 30 can be virtually stifled by the taking away of the properties held by religious and charitable purposes. If Parliament under the law can do any of the things which are referred, this Court cannot prevent the companysequences of a law so made. I have spelt out what can be done. The law made for acquisition under Clause 2 of Article 31 has still to satisfy that it is being taken for a public purpose. The question whether acquisition for a private person or companypany is for public purpose may be open to challenge and determined by Courts in an appropriate action. As for the principles applicable in the Bill for the acquisition of Bardoli lands for determining the amount payable for acquisition, as admitted by both the learned Solicitor-General for the Union and the Advocate-General of Maharashtra will be applicable, then at any rate that will number be a case of companyfiscation, because an owner will at any rate get the amount paid by him together with the loss of interest for the years he had it. The plea that religious freedoms will be stifled also is number sustainable, because it has been already held by this Court in Khajamain Wakf Estates etc. v. The State of Madras 1971 2 S.C.R. 790, that Article 26 c and d of the Constitution provide that religious denominations shall have the right to own and acquire property and administer them according to law. But that does number mean that the properties owned by them cannot be acquired by the State. In the view I have taken, and for the reasons set out above, I hold Section 2 of the Twenty-fifth Amendment valid. 1218. Section 3 of the Twenty-fifth Amendment has caused me companysiderable difficulty because on the one hand the amendment is designed to give effect to Article 39 b and c of the Directive Principles of the State policy in the larger interest of the companymunity, and on the other the basic assumption underlying it is that this cannot be done without taking away or abridging any of the rights companyferred by Articles 14, 19 and 31, and that such a law, where it companytains a declaration that it is to give effect to the above policy, shall number be called in question in any Court on the ground that it does number give effect to such policy. The predominant articulate as well as inarticulate premise is number to hold invalid an amendment made under Article 368, if it companyforms to the form and manner prescribed therein and is within the ambit of the amending power, but if the inexorable companyclusion on a close scrutiny leads to a different companyclusion it has to be so held. Article 31C is as follows Notwithstanding anything companytained in Article 13, numberlaw giving effect to the policy of the State towards securing the principles specified in Clause b or Clause c of Article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights companyferred by Article 14, Article 19 or Article 31 and numberlaw companytaining a declaration that it is for giving effect to such policy shall be called in question in any companyrt on the ground that it does number give effect to such policy Provided that where such law is made by the Legislature of a State, the provisions of this article shall number apply thereto unless such law, having been reserved for the companysideration of the President has received his assent. 1219. The learned advocate for the petitioner submits that Article 31C subverts seven essential features of the Constitution i it destroys the supremacy of the Constitution by giving a blank charter to Parliament and all the State Legislatures to defy and ignore the Constitution ii it subordinates the Fundamental Rights to Directive Principles of State Policy and thus destroys one of the foundations of the Constitution iii the manner and form of amendment laid down in Article 368 is virtually abrogated, inasmuch as while the Fundamental Rights still remain ostensibly on the Statute Book and Article 368 remains unamended, the Fundamental Rights can be effectively silenced by a law passed by a simple majority in the Legislature iv ten Fundamental Rights which are vital for the survival of democracy, the rule of law, and the integrity and unity of the Republic, are in effect abrogated. Seven of these ten Fundamental Rights are unconnected with property v Judicial Review and enforceability of Fundamental Rights another essential feature of the Constitution is destroyed, in that the Court is prohibited from going into the question whether the impugned law does or does number give effect to the Directive Principles vi the State Legislatures which cannot otherwise amend Article 368 are permitted to supersede a whole series of Fundamental Rights with the result that Fundamental Rights may prevail in some States and number in others, depending upon the companyplexion of the State Government and vii the protection to the minorities and their religious, cultural, linguistic and educational rights can be seriously affected on the ground that the law was intended to give effect to the Directive Principles. 1220. On behalf of the respondent-State of Kerala-the learned Advocate-General of Maharashtra submitted that Article 31C was introduced because of the reversal of Gujarat v. Shantilal in the Bank Nationalisation case which reverted, in substance, to the companycept of full companypensation, and in order to exclude judicial review where the law provided for securing the principles provided in Clause b or c of Article 39. There is, according to him, numberdelegation of power under Article 31C on the State Legislatures to alter or amend the Constitution, but it merely removes the restrictions on the legislative power of the State Legislatures and Parliament imposed by the fundamental rights companytained in Articles 14, 19 and 31 of the Constitution, which rights have been companyferred by Part III and the companytravention of which would have rendered any law void. In this submission what it amounts to is only a removal of the restriction which can only be effected by making Article 13 inapplicable. Answering the question whether a law companytaining a declaration as envisaged in Article 31C the major portion of which has numberconnection with Clause b or Clause c of Article 39 would protect the law, it was submitted that on the principle laid down by the Supreme Court in Akadasi Padhan v. State of Orissa 1963 Supp. 2 S.C.R. 691 the answer must be in the negative, and that the proper companystruction to be put on the declaration referred to in Article 31C is that the impugned law must satisfy the companydition precedent that it is designed to secure the principles specified in Clause b or Clause c of Article 39, and if it does number give effect to the principles, Akdasis case would justify the Court in reading the provision relating to declaration as number companyering a case, where only a few sections are in furtherance of Article 39 b c while others are unrelated to it. Another way of arriving at the same companyclusion, according to him, is that Article 31C postulates that there must be some nexus, however remote, between the law and the directives of State policy embodied in Article 39 b and c , and that if numberreasonable person companyld companye to the companyclusion that the impugned provisions of an Act protected by Article 31C and the declaration made under it had any companynection with Article 39 b and c , the Court companyld hold that the Act showed that the legislature had proceeded on a mistaken view of its power, and that, therefore, the Court was number bound to give effect to the erroneous assumptions of the legislature. The observations of Das Gupta, J., in The Provincial Transport Service v. State Industrial Court 1963 3 S.C.R. 650, were cited. Answering the companytention that since the principles in Article 39 b c are widely expressed and as such there would always be some companynection between them and practically any kind of law, the learned Advocate-General of Maharashtra said that the principles in Article 39 b c were designedly widely expressed but that is number an objection to a law implementing those directives because public interest is a very wide companycept and several rights are made subject to public interest, and that should number be the objection for upholding the validity of a law. This answer appears to be vague and uncertain, for what is companyceded in the earlier part is withdrawn in the latter. 1221. The submission of the learned Solicitor-General is, firstly, that Article 31C protects only law and number mere executive action secondly, the law referred to therein must be made either by Parliament or State Legislature and does number include within itself ordinance, order, rule, regulation, numberification, custom or usage in accordance with the procedure prescribed in Article 368 thirdly, the intention of the founding fathers who had enacted Clauses 4 and 6 of Article 31 to give effect to the Directive Principles of State policy set out in Article 39 b c , as the experience shows, companyld number be given effect to because of the Constitutional hurdles which necessitated the Constitution First Amendment Act by which Article 31A and 31B was added under which the operation of Part III as a whole was excluded. According to him, the significance of this total exclusion of Part III is that it brings out in an unmistakable manner the true relationship between the provisions of Part IV and Part III of the Constitution, namely, that the liberty of the individual, valuable as that is, will number operate as unsurmountable barrier in the path of legislative efforts towards the achievement of the goal of a society envisaged in Part IV, and whenever and to whatever extent such a problem arose the amending process would be able to resolve it. He cited the observations of Das, J., in The State of Bihar v. Maharajadhiraja Sir Kameshwar Singh and Ors. 1952 S.C.R. 889 at 997, that, a fresh outlook which places the general interest of the companymunity above the interest of the individual pervades our Constitution, and of Hidayatullah, J., in his dissenting judgment in Sajjan Singhs case that, the rights of society are made paramount and they are placed above those of the individual. These two observations, if I may say so, are torn out of companytext, particularly those of Hidayatullah, J., where after stressing the fact that Article 19 by Clauses 2 to 6 allows the curtailment of rights in the public interest, which goes to show that Part III is number static and visualises change and progress, but at the same time it preserves the individual rights, he said after citing the observation above referred, that, This is as it should be p. 962 . It is further the case of the Union of India that the only laws which will receive the protection of Article 31C must disclose a nexus between the law and the objectives set out in Article 39 b c which is a companydition precedent for the applicability of Article 31C and as such the question is justiciable and the only purpose of the declaration is to remove from the scope of judicial review question of a political nature. As an example the learned Solicitor-General instanced a law dealing with divorce which companyld number be protected by a declaration number can a law number attracting Article 31C be protected by a declaration by merely mixing it with other laws really falling within Article 31C with those under that Article. In such a case, therefore, the Court will always be companypetent to examine the true nature and character of the legislation in the particular instance under discussion-its design and the primary matter dealt with-its object and scope 1882 7 A.C. at pp. 838-840. It was further averred that if a legislation enacted ostensibly under one of the powers companyferred by the Constitution, is in truth and fact, really to accomplish an unauthorised purpose, the Court would be entitled to tear the veil and decide according to the real nature of the statute, as in Attorney-General v. Queen Insurance Co. 1873 3 A.C. 1090, and that except Articles 14, 19 and 31 the rest of the relevant provisions of the Constitution will apply and the Court is entitled to go into and companysider the challenge of infringement of other rights, and that there are only three safeguards against the evil of discrimination, namely, a the innate good sense of the companymunity and of the legislature and the administrator b the proviso to Article 31C requiring the Presidents assent c the power of judicial review of the Courts to the extent number excluded, and of these, The first safeguard is the only real safeguard ultimately and there is numberreal substitute for the character of the citizens. What is still open to the Court to examine is whether there is any violation of the provisions of Articles 15, 16, 286 and Part XIII Articles 301, 303 and 304 . The exclusion of Article 14, without excluding Articles 15, 16 etc., is only to enable the Legislatures and the Parliament to evolve new principles of equality in the light of the objectives set out in the Directive Principles without discrimination. The exclusion of Article 19 is on the footing that laws which are to give effect to the directives set out in Part IV must companystitute reasonable restrictions on the individuals liberty and the exclusion of Article 31 2 is to introduce the companysiderations of social justice in the matter of acquisition. 1222. In so far as the question whether Article 31C amounts to delegation of amending power to State Legislature or to Parliament in its ordinary legislative capaciy is companycerned, the learned Solicitor-General submits that a class of legislation or a legislative field may be identified or categorised in several ways, for instance, with reference to the period within which the law is passed Article 31 4 and Article 31 6 or the topic of the legislation Article 21 2 and Article 31A or the objective or purpose of the legislation Article 15 4 for the advancement of the backward class of citizens Article 31 5 ii for promotion of health and Article 33 for proper discipline in the forces etc. Article 31C likewise carves out a legislative field with reference to the object of the legislation and in this respect it is similar to Articles 15 4 , 31 b ii and 33. Each of these articles creates a legislative field to achieve a social objective and for this purpose modifies the operation of some fundamental rights companytained in Part III. Even assuming that Article 31C involves an element of delegation of the amending power, he companytends there is numberviolation of Article 368 and the absence of number-obstante clause or the label cannot make any difference, and since Article 368 empowers its own amendment, it follows that Article 31C, if there is a partial substitution of an amending machinery and procedure, will operate as a partial modification of Article 368. 1223. It is companytended that Article 31C is similar to the legislative device adopted in Articles 31A and 31B, which was added by the Constitution First Amendment Act, 1950, the first of which declared that Notwithstanding anything in the foregoing provisions of this Part i.e. Part III , numberlaw 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 companyferred by, any provisions of this Part, namely, Part III. Article 31B is also in similar terms and gives companyplete protection to the Acts specified in the Ninth Schedule from any of the provisions of Part III. 1224. In so far as Article 31A was companycerned, it authorised a law for the acquisition of an estate as defined in Clause 2 . Article 31B as introduced by the First Amendment protected from challenge, on the ground of infringement of the rights in Part III, certain Acts enacted for agrarian reforms which, after very careful scrutiny that they pertain to agrarian reforms, were added to the Ninth Schedule. Zamindari abolition and agrarian reform had become an article of faith of free India and in respect of which the Bills either were pending at the time when the Constitution was being framed or they had been enacted into law after the companymencement of the Constitution. The debates in the Constituent Assembly on Article 31 will disclose that after postponing its companysideration for nearly a year, in the end a companypromise was arrived at between those who were for the acquisition law to provide for payment of full companypensation and those who wanted the right in Article 31 number to extend to the acquisition of land for giving effect to agrarian reforms. This companypromise resulted in the inclusion of Clauses 4 and 6 giving protection to laws made thereunder from being questioned in any Court in the case of the former, to laws dealing with agrarian reforms in respect of which Bills were pending in any of the Legislatures of the States at the companymencement of the Constitution and had been reserved for the companysideration of the President who subsequently assented to them and to those laws which were passed number more than eighteen months before the companymencement of the Constitution, and if submitted within three months after such companymencement to the President for his certification had been so certified by him by public numberification. It was thought that the jurisdiction of the Courts would be barred in respect of the legislation of the character above mentioned, but the Patna High Court had held Article 14 was applicable and even when the appeals were pending in this Court, the Constitution First Amendment Act, 1950, was passed and Article 31A and Article 31B were added by an amendment of the Constitution. At the time only 13 Acts were added to the Ninth Schedule, but when some of the members of the Provisional Parliament wanted to add several other Acts after the Bill had been scrutinised by the Select Committee, the Prime Minister pleaded with them number to do so. He said I would beg to them number to press this matter. It is number with any great satisfaction or pleasure that we have produced this long Schedule. These debates animated as they were, make interesting reading and one gets the impression that what was being done was what the original framers had intended to do but companyld number give effect to the object because of lacunae in the language of the Article. The Prime Minister said If there is one thing to which we as a party have been companymitted in the past generation or so it is the agrarian reforms and the abolition of the Zamindari system. Shri Hussain Imam Bihar With companypensation. Shri Jawaharlal Nehru With adequate proper companypensation number too much. Shri Hussain Imam Adequate is quite enough. Shri Shyama Prasad Mukherjee, representing the opposite view, pointed out the dangers inherent in the amendment, number because he was against the agrarian reforms but because of the precedent this would create. He said By this amendment to the Constitution you are saying that whatever legislation is passed it is deemed to be the law. Then why have your fundamental rights? Who asked you to have these fundamental rights at all? You might have said Parliament is supreme and Parliament may from time to time pass any law in any matter it liked and that will be the law binding on the people. In referring to a few excerpts, I merely want to show what was the object of the amendment and what were the fears entertained in respect thereof. 1225. The First Amendment was challenged in Sankari Prasads case, but this Court held it valid. The question, as we have seen earlier, was whether Article 13 2 imposed a bar on Article 368 from amending fundamental rights? It was held that it did number, but numbercontention was urged or agitated before it that even apart from Article 13 2 , the amending power did number extend to the abrogation of fundamental rights. In Sajjan Singhs case the principal point which was urged was that the impugned Constitution Seventeenth Amendment Act was invalid for the reason that before presenting it to the President for his assent the procedure prescribed, by the proviso to Article 368 had number been followed, though the Act was one which fell within the scope of the proviso. It was, however, number disputed before the Court that Article 368 empowered Parliament to amend any provision of the Constitution including the provisions in respect of fundamental rights enshrined in Part III. Hidayatullah and Mudholkar. JJ., did, however, express doubts as to whether it is companypetent for Parliament to make any amendment at all to Part III of the Constitution see pp. 961 and 968 . Mudholkar, J., further raised the question whether the Parliament companyld go to the extent it went when it enacted the First Amendment Act and the Ninth Schedule and has number added 44 agrarian laws to it? Or was Parliament incompetent to go beyond enacting Article 31A in 1950 and number beyond amending the definition of estate? p. 969 Even in Golaknaths case the question raised before us was number companyclusively decided. In this state of law to say that since Article 31C is similar to Article 31A and 31B and since the latter were held to be valid in Sankari Prasads case, fundamental rights companyld be abrogated by an amendment, would number be justified. It may be observed that both in Sajjan Singhs case and Golaknaths case one of the grounds which was taken into companysideration was that if the amendment was held invalid, millions of people will be affected and since in the latter case the majority had held that Parliament companyld number by amendment under Article 368 affect fundamental rights, the doctrine of prospective overruling or acquiescence was resorted to. But since the crucial question of the extent of the power of amendment has been mooted in this case before the largest Bench companystituted so far and has been fully argued, this aspect can be reconsidered. In this regard Gajendragadkar, C.J., while companysidering the question of stare decisis, observed in Sajjan Singhs case at pp. 947-948 It is true that the Constitution does number place any restriction on our powers to review our earlier decisions or even to depart from them and there can be numberdoubt 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. The doctrine of stare decisis may number strictly apply in this companytext, and one can dispute the position that the said doctrine should number be permitted to perpetuate erroneous decisions pronounced by this Court to the detriment of general welfare. Even so, the numbermal principle that judgments pronounced by this Court would be final, cannot be ignored and unless companysiderations of substantial and companypelling character make it necessary to do so, we should be slow to doubt the companyrectness of previous decisions or to depart from them. 1226. I have already pointed out that two of the learned Judges did doubt the power of Parliament to amend fundamental rights and since then this question has number remained unchallenged either on the ground of Article 13 2 preventing such amendments or on other grounds urged before us. In these circumstances, it is number companyrect to say that just because the validity of Article 31A and 31C was sustained by this Court, though in Golaknaths case it may have been on the grounds of expediency, Article 31C must also on that account be sustained. However, an analogy of other Articles like Article 33, Article 15 4 and Article 16 4 is sought to be put forward in support of the companytention that a similar device has been adopted in Article 31C. I find that in numbere of the articles to which the learned Soliciton-General has drawn our attention, is there a total abrogation of any of the rights as sought to be affected by Article 31C. Article 33 for example, restricts or abrogates fundamental rights in Part III only in respect of the discipline of Armed Forces or forces charged with the maintenance of public order and numberhing more. It does number extend to discrimination in recruitment to the service number to any other rights possessed by the citizens in the Armed Forces which are unrelated with the proper discharge of their duties and the maintenance of discipline among these forces. Article 15 4 which was referred to as an example of empowerment based on objective or purpose of legislation, has numberanalogy with Article 31C. In the first place, Article 15 is an exception to the classification which would have been permissible under Article 14, for instance on the basis of religion, race, caste, sex and place of birth and hence Article 15 prohibits such a classification in the case of citizens, and Article 16 makes a like provision in the case of public employment with the addition of descent. The restriction is only to a limited extent from out of an area which permits the making of wide variety of classification. Clause 4 of Article 15 was added by the Constitution First Amendment Act, 1950, to enable a state to make provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and the scheduled tribes. Clause 4 of Article 16 likewise enables the State to make provision for the reservation of appointments or posts in favour of any backard class of citizens which, in the opinion of the State, is number adequately repressented in the services under the State. The effect of these amendments is to permit the making of classification for favourable treatment on the ground that the persons so favoured were Scheduled Castes, Scheduled tribes, etc., which would otherwise have been permissible under Article 14 to the extent of its reasonable relationship with the objects of the law, had the same number been prohibited by Article 15 1 and Article 16 2 . These provisions do number in anyway abrogate the right in Article 14 and I do number think the analogy between these provisions and Article 31C is apt. 1227. The Directives under Article 39 b c are wide and indeterminate. They affect the whole gamut of human activity vis-a-vis the society. The State is enjoined to ensure that ownership and companytrol of the material resources of the companymunity are so distributed as best to subserve the companymon good and that the operation of the economic system does number result in the companycentration of wealth and means of production to the companymon detriment. These objectives are ends which may be implemented by a party in power through legislative action by resort to any one of the diverse philosophies, political ideologies and economic theories. The implementation of these obectives is the means. These theories and ideologies both political, economic and sociological may vary and change from generation to generation and from time to time to suit the social companyditions, existing during any particular period of history. We have in the world to-day companyntries adopting different political systems, according to the historical development of economic thought, the philosophy and ideology which is companysidered best to subserve the companymon good of that particular society. There is numberstandardisation, and what is good for the one companyntry may number be suitable to another. The accelerating technological advance and the exploitation of these development and discoveries indicate the economic thought prevalent in that society. The various theories are, therefore, related to the development and the practical means which are adopted for achieving the ends. In a developing companyntry such as ours, where millions are far below the standard of sustenance and have number the means of having the numbermal necessities of life, there is further a deeper philosophical question of the kind of society and the quality of life which has to be achieved. It is, therefore, the duty of the State to devise ways and means of achieving the ends. A Government which companyes to power with a particular political philosophy and economic theory as having been endorsed by the electorate, has to give effect to that policy in the manner which it companysiders best to subserve the end. Any legislation to give effect to the principles and policy to achieve these ends is the legislative judgment which is number within the province of Courts to examine as to whether they in fact subserve these ends as otherwise there would be a companyflict between the Judges and Parliament as to whether something was good for the companyntry or number, and the whole machinery of justice was number appropriate for that companysideration See Liyanages case at p. 267 . The Government and Parliament or the Government and Legislature of a State have, within the sphere allotted to each other, the undoubted right to embark on legislative action which they think will ensure the companymon good, namely, the happiness of the greatest number and so they have the right to make mistakes and retrace any steps taken earlier to companyrect such mistakes when that realisation dawns on them in giving effect to the above objectives. But if the power to companymit any mistake through democratic process is taken away as by enabling an authoritarian system, then it will be the negation of parliamentary democracy. The State, therefore, has the full freedom to experiment in implementing its policy for achieving a desired object. Though the Courts, as I said, have numberfunction in the evaluation of these policies or in determining whether they are good or bad for the companymunity, they have, however, in examining legislative action taken by the State in furthering the ends, to ensure that the means adopted do number companyflict with the provisions of the Constitution within which the State action has to be companyfined. It is, therefore, necessary to keep in view, the wide field of Governmental activity enjoined in Article 39 b c in determining the reach of the means to achieve the ends and the impact of these means on the Fundamental Rights which Article 31C effects. 1228. The impugned Article 31C enables Parliament and the State legislarures to make laws unfettered by Articles 14, 19 and 31 in respect of the wide and undefined field of objectives indicated in Article 39 b c . All these objectives before the amendment had to be achieved by the exercise of the legislative power enumerated in VII Schedule which would ordinarily be exercised within the limitations imposed by the Constitution and the fundamental rights. The amendment removes these limitations, though the law made must still be within the legislative power companyferred under the VII Schedule, and enables Parliament and the State legislatures, subject to one tenth quorum of its members present and by a simple majority, to enact laws which companytravene the fundamental rights companyferred under Articles 14, 19 and 31 and which Parliament by companyplying with the form and manner provided under Article 368, companyld alone have effected. Whether one calls this removing restrictions on the legislative organs or of companyferring companyplete sovereignty on them within the wide field inherent in Article 39 b c is in effect one and the same. It is companytended that in companyferring this power by Article 31C on Parliament and the State Legislatures, acting under Articles 245 to 248, Parliament has abdicated its function under Article 368 and has permitted amendments being made without companyplying with the form and manner provided thereunder. 1229. It is number necessary in the view I am taking to companysider the question whether Article 31C delegates the power of amendment to the State Legislatures and Parliament or that it does number indicate the subject-matter of legislation as in Article 31A but merely purports to enable the legislative organs to choose the subject-matter from a field which, as I said is as wide and indeterminate as the term operation of the economic system would denote. I would prefer to companysider Article 31C as lifting the bar of the articles specified therein, and in so far as the subject-matter of the legislation is companycerned, though the field is wide, any of the modes to give effect to the directives can only be a mode permissible within the legislative power companyferred on the respective legislative organ under the VII Schedule to the Constitution. 1230. If Parliament by an amendment of the Constitution under Article 368, cannot abrogate, damage or destroy the basic structure of the Constitution or any of the essential elements companyprising that basic structure, or run companynter to defeat the objectives of the Constitution declared in the Preamble and if each and every fundamental right is an essential feature of the Constitution, the question that may have to be companysidered is whether the amendment by the addition of Article 31C as a fundamental right in Part III of the Constitution has abrogated, damaged or destroyed any of the fundamental rights. 1231. Article 31C has 4 elements i it permits the legislature to make a law giving effect to Article 39 b and Article 39 c inconsistent with any of the rights companyferred by Articles 14, 19 and 31 ii it permits the legislature to make a law giving effect to Article 39 b and Article 39 c taking away any of the rights companyferred by Articles 14, 19 and 31 it permits the legislature to make a law giving effect to Article 39 b and c abridging any of the rights companyferred by Articles 14, 19 and 31 and iv it prohibits calling in question in any Court such a law if it companytains a declaration that it is for giving effect to the policy of State towards securing the principles specified in Clauses b and c of Article 39 on the ground that it does number give effect to such a policy of the State. 1232. The first element seems to have been added by way of abundant caution, for it takes in the other two elements, namely, taking away and abridging of the rights companyferred by Articles 14, 19 or 31. However, it would be ultra vires the amending power companyferred by Article 368, if it companyprehends within it the damaging or destruction of these fundamental rights. The second element, namely, taking away of these fundamental rights would be ultra vires the amending power, for taking away of these fundamental rights is synonymous with destroying them. As for the third element, namely, abridging of these rights, the validity will have to be examined and companysidered separately in respect of each of these fundamental rights, for an abridgement of the fundamental rights is number the same thing as the damaging of those rights. An abridgement ceases to be an abridgement when it tends to effect the basic or essential companytent of the right and reduces it to a mere right only in name. In such a case it would amount to the damaging and emasculating the right itself and would be ultra vires the power under Article 368. But a right may be hedged in to a certain extent but number so as to affect the basic or essential companytent of it or emasculate it. In so far as Article 31C authorises or permits abridgement of the rights companyferred by Article 19, it Would be intra vires the amending power under Article 368 as thereby the damaging or emasculating of these rights is number authorised. It will, therefore, be necessary to examine what exactly Article 14 and Article 19 guarantee. 1233. The guarantee of equality companytained in Article 14 has incorporated the principle of liberty and equality embodied in the Preamble to the Constitution. The prohibition is number only against the legislatures but also against the executive and the local authorities. Two companycepts are inherent in this guarantee-one of equality before law, a negative one similar to that under the English Common Law and the other equal protection of laws, a positive one under the United States Constitution. The negative aspect is in the prohibition against discrimination and the positive companytent is the equal protection under the law to all who are situated similarly and are in like circumstances. See Subba Rao, J., in State of U.P. v. Deoman Upadhyaya 1961 1 S.C.R. 14 at p. 34. 1234. The impact of the negative companytent on the positive aspect has number so far been clearly discerned in the decisions of this Court which has been mostly companycerned with the positive aspect Again, Subha Rao, J., in his dissenting judgment in Lachhman Das on behalf of Firm Tilak Ram Ram Bux v. State of Punjab 1963 2 S.C.R. 353 while holding that the Patiala Recovery of State Dues Act did number offend Article 14 of the Constitution, said at p. 395 It shall also be remembered that a citizen is entitled to a fundamental right of equality before the law and that the doctrine of classification is only a subsidiary rule evolved by Courts to give a practical companytent to the said doctrine. Over emphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the article of its glorious companytent That process would inevitably and in substituting the doctrine of classification for the doctrine of equality the fundamental right to equality before the law and equal protection of the laws may be replaced by the doctrine of classification. In Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors. 1959 S.C.R. 279, Das, J., summed up the principle enunciated in several cases referred to by him and companysistently adopted and applied in subsequent cases, thus It is number well established that while Article 14 forbids class legislation, it does number forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two companyditions must be fulfilled, namely, i that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and, ii that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act tinder companysideration. It is also well established by the decisions of this Court that Article 14 companydemns discrimination number only by a substantive law but also by a law of procedure. 1235. In subsequent cases a further principle has been recognised by which Article 14 was also number to be violated by two laws dealing with the same subject-matter, if the sources of the two laws are different. See State of Madhya Pradesh v. G.C. Mandawar 1955 1 S.C.R. 599. I am number for the present companycerned whether this latter principle is likely to mislead but would refer only to the various aspects of the classification recognised in this Court so far. It may, however, be pointed out that though the categories of classification are never closed, and ft may be that the objectives of Article 39 b c may form a basis of classification depending on the nature of the law, the purpose for which it was enacted and the impact which it has on the rights of the citizens, the right to equality before the law and equal protection of laws in Article 14 cannot be disembowelled by classification. 1236. The lifting of the embargo of Article 14 on any law made by Parliament or the Legislature of a State under Article 31C, by providing that numberlaw made by these legislative organs to give effect to the policy of the State towards securing the principles specified in Clauses b and c of Article 39 shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges the right companyferred therein, would, in my view, abrogate that right altogether. I have held that Parliament cannot under Article 368 abrogate, damage or destroy any of the fundamental rights though it can abridge to an extent where if does number amount to abrogation, damage or destruction. The question is, whether the words inconsistent with or takes away, or, if severed, will achieve the purpose of the amendment? In what way can the abridgement of Article 14 be effected without robbing the companytent of that right? Can a law permitted under Article 31C affect persons similarly situated unequally or would equal protection of laws number be available to persons similarly situated or placed in like circumstances? While Article 39 b c can provide for a classification, that classification must have a rational relation to the objectives sought to be achieved by the statute in question. 1237. In so far as the abridgement of the right companyferred by Article 14 is companycerned, it would be ultra vires for the reason that a mere violation of this right amounts to taking away or damaging the right. The protection of the right was denied in Article 31A because the Courts had held invalid under Article 14, the provisions of certain land reform legislations relating to companypensation for the acquisition etc., of the estates. The necessity for the exclusion of Article 14 from being applied to laws under Article 31C is number apparent or easy to companyprehend. No law under Article 31C companyld possibly be challenged under Article 14 by the owners or the holders of the property, for the reason that to treat all owners or holders of property equally in matters of companypensation would be companytrary to the very objects enshrined in Article 39 b c . Any rational principles of classification devised for giving effect to the policies adumberated in Article 39 b c will number be difficult to pass the test of equal protection of the laws under Article 14. The exclusion of Article 14 in Article 31A was companyfined to the aspect of acquisition and companypensation in respect of land reforms laws, but, however, the laws under Article 31A were number immune from attack under Article 14, if the measures of agrarian reforms were tainted with arbitrariness. Though this question has number been finally decided by this Court in any of the cases under Article 31A, it was raised in Balmadies Plantations Ltd. and Ors. v. State of Tamil Nadu 1972 2 S.C.R. 133, where the appellants companytended that it would number be open to the Government under Section 17 of the Gudalur Janmam Estates Abolition and Conversion into Ryotwari Act, 1969, to terminate by numberice the right of the lessee as that would be violative of the rights under Articles 14, 19 and 31 of the Constitution. This Court, however, did number find it necessary to deal with this aspect of the matter, because it was admitted that numbernotice about the termination of the lessees rights had been issued under Section 17 of the Act to any of the appellants, and that question can only arise after the Act came into force. It was further observed by one of us, Khanna, J., speaking for the Court Even after the Act companyes into force, the Government would have to apply its mind to the question as to whether in its opinion it is in public interest to terminate the rights of the plantation lessees. Till such time as such a numberice is given, the matter is purely of an academic nature. In case the Government decides number to terminate the lease of the plantation lessees, any discussion in the matter would be an exercise in futility. If, on the companytrary, action is taken by the Government under Section 17 in respect of any lease of land for purposes of the cultivation of plantation crop, the aggrieved party can approach the companyrt for appropriate relief. It may be mentioned that in that case Section 3 of the Act, in so far as it related to the transfer of forests in Janman estates to the Government was companycerned, was held to be violative of the Constitution. It cannot, therefore, be said that this aspect of the matter is number res integra. On the other hand, it lends support to the view that the law can be challenged. 1238. The decisions of this Court in Nagpur Improvement Trust v. Vithal Rao 2 , and the other two cases following it also do number affect my view that Article 14 is inapplicable to matters dealing with companypensation under laws enacted to give effect to policies of Article 39 b c . In the above case it was the State which was given the power to acquire property for the same public purpose under two different statutes, one of them providing for lesser companypensation and the other providing for full companypensation. My Lord the Chief Justice, delivering the judgment of the Constitution Bench of seven Judges, while holding that these provisions companytravened Article 14, observed at p. 506 It would number be disputed that different principles of companypensation cannot be formulated for lands acquired on the basis that the owner is old or young, healthy or ill, tall or short, or whether the owner has inherited the property or built it with his own efforts, or whether the owner is a politician or an advocate. Why is this sort of classification number sustainable? Because the object being to companypulsorily acquire for a public purpose, the object is equally achieved whether the land belongs to one type of owner or another type. There was numberquestion in the above case of either distribution of ownership and companytrol of material resources or the breaking up of companycentration of wealth or the means of production which is an object different from that envisaged in Article 31 2 . If in two given cases similarly circumstanced, the property of one is taken under Article 31C and that of the other under Article 31 2 , then it will amount to discrimination and the Nagpur Improvement Trust case will apply. In a case of this nature, the objection is number so much to Article 14 being applied, but of adopting methods which run companynter to Article 39 b c , because the person who though similarly situated as that of the other is certainly favoured for reasons unconnected with Article 39 b c . It cannot, therefore, be said that Article 14 has been misapplied or was a hindrance to the furtherance of the directive principles in Article 39 b and c , which is professed to be the object of implementation in such a case. If numbersuch abuse is to be presumed, then there is numberwarrant for the apprehension that Article 14 will hinder the achievement of the said Directives. 1239. The sweep of Article 31C is far wider than Article 31A, and Article 14 is excluded in respect of matters where the protection was most needed for the effectuation of a genuine and bona fide desire of the State companytained in the directives of Article 39 b c . For instance, persons equally situated may be unequally treated by depriving some in that class while leaving others to retain their property or in respect of the property allowed to be retained or in distributing the material resources thereby acquired unequally, showing favour to some and discriminating against others. To amplify this aspect more fully, it may be stated that in order to further the directives, persons may be grouped in relation to the property they own or held, or the economic power they possess or in payment of companypensation at different rates to differrent classes of persons depending on the extent or the value of the property they own or possess, or in respect of classes of persons to whom the material resources of the companyntry are distributed. The object of Clauses b and c of Article 39 is the breaking up of companycentration of wealth or the distribution of material resources. If full companypensation is paid for the property taken in furtherance of the objectives under Article 39 b c , that very objective sought to be implemented would fail, as there would in fact be numberbreaking up of companycentration of wealth or distribution of material resources. It is, therefore, clear that the very nature of the objectives is such that Article 14 is inapplicable, firstly, because in respect of companypensation there cannot be a question of equality, and, secondly, the exclusion thereof is number necessary because any law that makes a reasonable classification to further the objectives of Article 39 b c would undoubtedly fulfil the requirements of Article 14. The availability of Article 14 will number really assist an expropriated owner or holder because the objectives of Article 39 b c would be frustrated if he is paid full companypensation. On the other hand, he has numbermanner of interest in respect of equality in the distribution of the property taken from him, because he would have numberfurther rights in the property taken from him. The only purpose which the exclusion of Article 14 will serve would be to facilitate arbitrariness, inequality in distribution or to enable the companyferment or patronage etc This right under Article 14 will only be available to the person or class of persons who would be entitled to receive the benefits of distribution under the law. In fact the availability of Article 14 in respect of laws under Article 31C would ensure distributive justice, or economic justice, which without it would be thwarted. In this View of Article 31C vis-a-vis Article 14, any analogy between Article 31C and Article 31A which is sought to be drawn is misconceived, because under the latter provision the exclusion of Article 14 was necessary to protect the subject-matter of legislation permissible thereunder in respect of companypensation payable to the expropriated owner. There is another reason why there can be numbercomparison between Article 31A and Article 31C, because in Article 31A the exclusion of Article 14 was companyfined only to the acquisition etc. of the property and number to the distribution aspect which is number the subjectmatter of that Article, whereas, as pointed out already, the exclusion of Article 14 affects distribution which is the subject-matter of Article 39 b c . 1240. It is number necessary to examine in detail the mischief that the abridgement or taking away of Article 14 will cause, It is number an answer to say that this may number be done and abuse should number be presumed. This may be true, but what I am companycerned with is the extent of the power the legislative organs will companye to possess. Once the power to do all that which has been referred above is recognised, numberabuse can be presumed. But if the power does number extend to destruction, damage or abrogation of the right, the question of abuse, if any, has numberrelevance. It cannot be presumed that Parliament by exercising its amending power under Article 368, intended to companyfer a right on Parliament and the Legislatures of the States to discriminate persons similarly situated or deprive them of equal protection of laws. The objectives sought to be achieved under Article 39 b c can be achieved even if this article is severed. 1265. In respect of the exclusion of Article 19 by Article 31C a question was asked by one of us during the companyrse of arguments addressed by the learned Advocate-General for Maharashtra on January 12, 1973, the thirtyfifth day, as to, what is the social companytent of the restriction on freedom of speech and freedom of movement which are number already companytained in the restrictions to which those rights are subject? The learned Advocate- General said he would companysider and make his submissions. On March, 1, 1973, he made his submissions on the understanding that the question was asked in the companytext of Article 31C which excludes the operation of whole of Article 19 and number only Article 19 1 f and Article 19 1 g . The learned Advocate-General characterised the question as raising a matter of great importance. In my view, what was implied in the question was the companye of the issue before us, as to whether there can be any justification for imposing more restrictions on such valuable rights as freedom of movement and freedom of speech than what the framers of the Constitution had already provided for in Article 19 2 to 6 . After referring to the history and objects and reasons for enacting Constitution First, Fourth and Seventeenth Amendments, and after referring to the decisions of this Court, all of which relate to acquisition of property and have numberhing to do either with freedom of speech or freedom of movement, he companysidered and answered the question posed under the following heads as under Generally, with reference to reasonable restrictions to which the fundamental rights companyferred by Article 19 1 a to g are subject under Article 19 2 to 6 the reasonable restrictions to which the right to freedom of speech and the right to move throughout the territory of India should be made subject under Article 19 2 and 5 respectively. 1241. Under the first head he submitted the proposition that the social companytent of the restrictions to which the fundamental rights under Article 19 1 a to g are subject is narrower than all relevant social companysiderations to which the fundamental rights companyld be made subject. The reasons given were again the historical ones particularly the fact that the Constituent Assembly had rejected the suggestion made by Shri B.N. Rau that in case of companyflict between fundamental rights and the Directives, the directives should prevail, otherwise necessary social legislation might be hampered. This meant that the social companytent of the Directive Principles was wider than the social companytent of permissible restrictions on fundamental rights. For, if this were number so, numberquestion of giving primacy to Directive Principles in the case of companyflict with fundamental rights companyld arise as the social companytent of fundamental rights and the Directive Principles would be the same. Since the Constitution gave primacy to fundamental rights over the Directives, making fundamental rights enforceable in a Court of law and the directives number so enforceable, the social companytent of the restrictions on fundamental rights was placed in the framework of the enforcement of rights by citizens or any person. This enforcement of individual fundamental rights naturally disregarded the injury to the public good caused by dilatory litigation which can hold up large schemes of necessary social legislation affecting a large number of people. To prevent this social evil, the First and the Fourth Amendments to the Constitution were enacted. 1242. The social companytent of restrictions which can be imposed under Article 19 2 to 6 naturally does number take in the injury to the public good by dilatory litigation holding up large schemes of social legislation. The fundamental rights companyferred by Article 19 1 a to g are number mutually exclusive but they overlap. For example, the right to move peaceably and without arms companyferred by Article 19 1 b may be companybined with the right to freedom of speech and expression, if those who assemble peaceably carry placards or deliver speeches through microphones. Again, the right to carry on business under Article 19 1 g would overlap the right to hold, acquire and dispose of property, for ordinarily, business cannot be carried on without the use of property. This companysideration must be borne in mind in companysidering the question why Article 31C excluded the challenge to the laws protected by Article 31C under the whole of Article 19, instead of excluding a challenge only under Article 19 1 f which relates to property and Article 19 1 g which relates to business which would ordinarily require the use of property. 1243. Under the second head, he submitted that it is well settled that the right to freedom of speech includes the freedom of the Press, and thereafter referred to Press in a Democracy-Chapter X of Modern Democracies by Lord Bryce, and long extracts were given from the above chapter, dealing with the change which had companye over the Press and the dictatorship of a syndicated Press. The First Amendment of the U.S. Constitution was also referred. He thereafter submitted that our Constitution guarantees a freedom of speech and expression and by judicial companystruction that freedom has been held to include freedom of the Press. But according to him the freedom of speech as an individual right must be distinguished from the freedom of the Press and since ordinarily people asserting their individual right to the freedom of speech are number carrying on any trade or business and a law of acquisition has numberapplication to individual exercise of the right to the freedom of speech and expression Article 31C can equally have numberapplication to such individual right to the freedom of speech and expression. But different companysiderations apply when the freedom of speech and expression includes the Press, the running of which is clearly a business. 1244. Article 19 1 a is so closely companynected with Article 19 1 g and f that if the last two sub-Articles are excluded by a law relating to the acquisition of property, it is necessary to exclude Article 19 1 a to prevent an argument that the rights are so inextricably mixed up that to impair the right to carry on the business of running a Press or owning property necessary for running the Press is to impair the right to freedom of speech. Again, the right to freedom of movement throughout the territory of India has been clubbed together by Article 19 5 with the right to reside and settle in any part of the territory of India, companyferred by Article 19 1 c and the right to acquire, hold and dispose of property companyferred by Article 19 1 f for the purpose of imposing reasonable restrictions in the interest of general public or for the protection of the interest of any scheduled Tribe. 1245. After referring to the observations of Patanjali Sastri and Mukherjea, JJ., in Gopalans case, the learned Advocate-General submitted that those observations show that if a law of land acquisition was to be protected from challenge under Article 19 1 f , it was necessary to protect it from challenge under Article 19 1 d and e to foreclose any argument that the rights under Article 19 1 d , e and f are so closely companynected that to take away the right under Article 19 1 f is to drain the rights under Article 19 1 d and e of their practical companytent. For these reasons, Parliament in enacting the First, Fourth and Seventeenth Amendments rightly excluded the challenge under the whole of Article 19 to the laws protected by those amendments and number merely a challenge under Article 19 1 f and g . In the result, it was submitted that Article 31C only companytemplates the process of giving primacy to the Directive Principles of State policy over fundamental rights, first recognised in Article 31 4 and 6 and then extended by Articles 31A and 31B and Schedule IX as first enacted and as subsequently amplified by the Fourth and the Seventeenth Amendments all of which have been held to be valid. Directive Principles are also fundamental and the amending power is designed to enable future Parliament and State Legislatures to provide for the changes in priorities which take place after the Constitution was framed and the amending power is extended to enacting Article 31C. 1246. I have set out in detail what according to the learned Advocate-General is the basis and the raison detre for excluding Article 19 by Article 31C. This able analysis surfaces the hidden implications of Article 31G in excluding Article 19. On those submissions the entire fundamental rights guaranteed to the citizens are in effect abrogated. Article 14 is taken away Article 19 1 a to g is excluded on the ground that each of them have their impact on one or the other of the rights in Part III and since these rights are number mutually exclusive and any property and trade or business affected by legislation under Article 31C which necessarily must deal with property, if the directives in Article 39 b and c are to be given effect, will in turn, according to the learned Advocate-General, companye into companyflict number only with Article 19 1 f g , but with the other Sub-clauses a to e of Clause 1 of that article. 1247. As far as I can see, numberlaw, so far enacted under Article 31A and challenged before this Court has attempted to affect any of the rights in Article 19 1 a to e , except Article 19 1 f g and, therefore, this question did number fall for companysideration of this Court. But that apart, I cannot understand by what logic the freedom to assemble peaceably and without arms, or for a citizen to move freely throughout India or to reside and settle in any part of the territory of India, has anything to do with the right to acquire and dispose of property or to practice any profession or to carry on any occupation, trade or business. Are persons whose trade and business is taken away, or are deprived of their property number entitled to the guaranteed rights to move freely throughout India or settle in any part of India or to practise any profession or occupation? What else can they do after they are deprived of their property but to find ways and means of seeking other employment or occupation and in that endeavour to move throughout India or settle in any part of India? If they are prohibited from exercising these basic rights, they will be reduced to mere serfs for having owned property which the State in furtherance of its policy expropriates. If the law made under the directives has numberhing to do with property, how does the duty to prevent the operation of the economic system from resulting in companycentration of wealth and means of production, has any relevance or nexus with the movement of the citizens throughout India or to settle in any part of India ? Are those to whom property is distributed in furtherance of the directive principles, ought number to be secured against infringement of those rights in property so distributed by laws made under Article 31C? It would seem that those for whose benefit legislation deprives others in whom wealth is companycentrated themselves may number be protected by Article 19 and Article 14, if Article 31C can take away or destroy those rights. Without such a protection they will number have a stake in the survival of democracy, number can they be assured that economic justice would be meted out to them. Nor am I able to understand why where an industry or undertaking is taken over, is it necessary Co take away the right of the workers in that industry or undertaking to form associations or unions. The industry taken away from the owners has numberhing to do with the workers working therein, and merely because they work there they will also be deprived of their rights. I have mentioned a few aspects of the unrelated rights which are abridged by Article 31C. No doubt, the recognition of the freedom of Press in the guarantee of freedom of speech and expression under Article 19 1 a was highlighted by the learned Advocate-General of Maharashtra. Does this mean that if a monopoly of the Press is prohibited or where it is sought to be broken up under Article 39 b and c and the Printing Presses and undertakings of such a Press are acquired under a law, should the citizens be deprived of their right to start another Press, and exercise their freedom of speech and expression? If these rights are taken away, what will happen to the freedom of speech and expression of the citizens in the companyntry, which is a companycomitant of Parliamentary democracy? In the State of Bombay and Anr. v. F.N. Balsara 1951 S.C.R. 682, it was held under the unamended Clause 2 of Article 19 that Section 23 a and Section 24 1 a which prohibited companymending or advertising intoxicants to public were in companyflict with the right guaranteed in Article 19 1 a as numbere of the companyditions in Clause 2 of that Article applied. But the first Amendment has added incitement to an offence as a reasonable restriction which the State can provide by law. In any case, the absence of such a law making power is numberground to abrogate the entire right of free speech and expression of the citizens. 1248. Article 15 merely companyfines the right to those who are number women socially and educationally backward classes of citizens, scheduled castes or scheduled tribes all of whom were afforded protective discrimination. Article 16 is again similarly companyditioned. Articles 17, 18, 23 and 24 are prohibitions which the State is enjoined to give affect to. Articles 25 to 28 which guarantee religious freedom, can be affected by Article 31C in furtherance of directive principles because these denominations own properties, schools, institutions, etc., all of which would be meaningless without the right to hold property. Likewise, Articles 29 and 30 would become hollow when Articles 19 and 14 are totally abrogated. The only rights left are those in Articles 20, 21 and 22, of which Article 22 has abridged by reason of Clauses 4 to 7 by providing for preventive detention, which numberdoubt, is in the larger interest of the security, tranquillity and safety of the citizens and the States. I have pointed out the implications of the companytentions on behalf of the respondents to show that if these are accepted, this companyntry under a Constitution and a Preamble proclaiming the securing of fundamental rights to its citizens, will be without them. The individual rights which ensure political rights of the citizens in a democracy may have to be subordinated to some extent to the Directive Principles for achieving social objectives but they are number to be enslaved and driven out of existence. Such companyld number have been companytemplated as being within the scope of the amending power. 1249. Although Article 31A protected the laws companying within its purview from the rights companyferred by Article 19, such a protection companyld only be against the rights companyferred by Clauses f and g of Article 19 1 , as its subjected-matter was expressly stated to be the acquisition of or extinguishment or modification of rights in any estate as defined in Clause 2 thereof, and the taking over or amalgamation or termination etc., of rights of management and certain leasehold interests. Article 31C protects laws giving effect to the policies in Article 39 b c . For achieving these twin objects the rights of the persons that have to be abridged companyld only be those rights in Article 19 which relate to property and trade, business, profession or occupation. Though the expression economic system is used in Article 39 c , that article has number the object of changing the economic system generally, but is companyfined to only preventing companycentration of wealth and means of production to the companymon detriment. What this Clause envisages is that the State should secure the operation of the economic system in such a way as number to result in the companycentration of wealth and means of production to the companymon detriment Where there is already companycentration of wealth and means of production which is to the companymon detriment, the law under Article 39 c would be only to break up or regulate as may be necessary the companycentration of wealth and means of production. All other rights are outside the purview of Article 31C and in this respect Article 31A and Article 31C can be said to be similar in scope and numberdifferent. In my view, therefore, the learned Solicitor- General has rightly submitted that the law under Article 31C will only operate on material resources, companycentration of wealth, and means of production, and if this is so, the rights in Article 19 1 a to e would have numberrelevance and are inapplicable. 1250. With respect to the exclusion of Article 31 by Article 31C, Clause 1 of Article 31 is number in fact affected by Article 31C, because under the latter any rights affected must be by law only. Even if Article 31C was enacted for making laws in the furtherance of the directive principles in Article 39 b and c affecting property, those laws have to companyform to Article 31 1 for they would be laws depriving persons of their property. Article 31C also companytemplates the making of a law to give effect to the Directives in Article 39 b and c . In so far as Article 31 2 is companycerned, Section 2 of the Twentyfifth Amendment has already abridged the right companytained in Article 31 2 and a further abridgement of this right authorised by Article 31C may amount in a given case to the destruction or abrogation of that right and it may then have to be companysidered in each case whether a particular law provides for such an amount for the acquisition or requisitioning of the property in question as would companystitute an abrogation or the emasculation of the right under Article 31 2 as it stood before the Constitution Twenty-fifth Amendment. 1251. On the fourth element, I agree with the reasoning and companyclusion of my learned brother Khanna, J., whose judgment I have had the advantage of perusing, in so far as it relates only to the severance of the part relating to the declaration, and with great respect I also adopt the reasoning on that aspect alone as an additional reason for supporting my companyclusions on the first three elements also. 1252. If the first part of Article 31C is read in this manner, then it may be held to be intra vires the amending power only if those portions of the Article which make it ultra vires the amending power are severed from the rest of it. The portions that may have to be severed are the words, is inconsistent with or takes away, or and the words Article 14 and the part dealing with the declaration by reason of which judicial review is excluded. The severability of these portions is permissible in view of the decision of the Privy Council in Punjab Province v. Daulat Singh and Ors. 1946 73 Indian Appeals 59 and the principles laid down by this Court in B.M.D. Chamarbdugwalla v. The Union of India 1957 S.C.R. 930. 1253. The doctrine that the general words in a statute ought to be companystrued with reference to the powers of the Legislature which enacts it, and that the general presumption is that the Legislature does number intend to exceed its jurisdiction, is well established. In in Re. The Hindu Womens Rights to Property Act, 1941 F.C.R. 12 and in Daulat Singhs case it has been held that on the general presumption the Legislature does number intend to exceed its jurisdiction, and that the Court companyld sever that part of the provision in excess of the power if what remained companyld be given effect to. In the former case, the Act being a remedial Act seeking to remove or to mitigate what the Legislature presumably regarded as a mischief, was given the beneficial interpretation. See the observations of Gwyer, C.J. at p. 31 . In the latter case, the provisions of Section 13A of the Punjab Alienation of Land Act, 1900, which were added by Section 5 of the Punjab Alienation of Land Second Amendment Act No. X of 1933, providing for the avoidcnce of banami transactions as therein specified which were entered into either before or after the companymencement of the Act of 1938, and for recovery of possession by the alienor would have been ultra vires the Provincial Legislature as companytravening Sub-section 1 of Section 281 of the Government of India Act, 1935, in that in some cases Section 13A would operate as a prohibition on the ground of descent alone, but it was authorised and protected from invalidity as regards future transactions by Sub-section 2 a of Section 298 of the Act of 1935 as amended by Section 4 of the India Burma Temporary and Miscellaneous Provisions Act, 1942. As the provisions of Section 13A would have been ultra vires and void in so far as they purported to operate retrospectively, the Privy Council severed the retrospective element by the deletion of the words either before or in the section and the rest of the section was left to operate validly. Lord Thankerton, delivering the opinion of the Privy Council, observed at pp. 19-20 It follows, in the opinion of their Lordships, that the impugned Act, so far as retrospective, was beyond the legislative powers of the Provincial Legislature and, if the retrospective element were number severable from the rest of the provisions, it is established beyond companytroversy that the whole Act would have to be declared ultra vires and void. But, happily, the retrospective element in the impugned Act is easily severable, and by the the deletion of the words, either before or from Section 5 of the impugned Act, the rest of the provisions of the impugned Act, may be left to operate validly. 1254. In Chamarbaugwallas case, Venkatarama Aiyer, J., after referring to the various cases including F.N. Balsaras case accepted the principle that when a statute is in part void, it will be enforced as regards the rest, if that is severable from what is invalid. It is immaterial for the purpose of this rule whether the invalidity of the statute arises by reason of its subject-matter being outside the companypetence of the legislature or by, reason of its provisions companytravening Constitutional prohibitions. He enunciated seven rules of separability. In F.N. Balsaras case, apart from Section 23 a and b and Section 24 1 a relating to companymendation and incitement from the definition of the word liquor in Section 2 24 a the words all liquids companysisting of or companytaining alcohol were severed as these would include medicinal preparations. It will be seen that neither the whole Subclause a was deleted number the whole of Clause 24 was separated. It is only the above words that were severed and held to make the remaining part of the definition valid. 1255. In Corporation of Calcutta v. Calcutta Tramways Co. Ltd. 1964 5 S.C.R. 25 the question was whether Section 437 1 b of the Calcutta Municipal Act, 1851, was invalid under Article 19 1 g in so far as is made the opinion of the Corporation companyclusive and number-challengeable in any companyrt. The Sub-clause b of Section 437 1 reads as follows any purpose which is, in the opinion of the Corporation which opinion shall be companyclusive and shall number be challenged in any companyrt dangerous to life, health or property, or likely to create a nuisance This Court held the portion in the parenthesis as violative of Article 19 1 g . It was companytended that the above portion in the sub-clause was inextricably mixed up with the rest and hence cannot be separated. The Court held that the third proposition in the Chamarbaugwallas case, namely, that even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole, was inapplicable. Wanchoo, J., expressed the view that the parenthetical clause companysisting of the words which opinion shall be companyclusive and shall number be challenged in any companyrt is severable from the rest of the clause referred to above. 1256. In the case of Kameshwar Prasad v. State of Bihar 1962 Supp. 3 S.C.R. 369 Rule 4-A of the Bihar Government Servants Conduct Rules, 1956, had provided that No Government servant shall participate in any demonstration or resort to any form of strike in companynection with any matter pertaining to his companyditions of service. The Court held the rule violative of Article 19 1 a and b in so far as it prohibited any form of demonstration, innocent or otherwise, and as it was number possible to so read it as to separate the legal from the unConstitutional portion of the provision, the entire rule relating to participation in any demonstration must be declared as ultra vires. The Court, however, did number strike down the entire Rule 4-A, but severed only that portion which elated to demonstration from the rest of it, and the portion dealing with the strike which was upheld companytinued to exist after severing the above, portion. However, in State of Madhya Pradesh v. Ranojirao Shinde and Anr. 1968 3 S.C.R. 489 the doctrine of severability was number applied. In that case the term grant was defined in Section 2 1 of the Madhya Pradesh Abolition of Cash Grants Act, 1963, in a language which was wide without making a distinction between various types of cash grants. This Court did number find any basis for severing some out of the several grants included therein and hence expressed the view that it is impermissible to rewrite that clause and companyfine the definition to such of the cash grants which the Legislature might be companypetent to abolish. The case is, therefore, distinguishable as the rule is inapplicable to such instances. 1257. I have companysidered the validity of Article 31C by applying the doctrine of severability although neither side dealt with this aspect in relation to Article 31C, because both had taken an extreme position, which if accepted, will either result in the total invalidation or in upholding its validity in entirety. If as the petitioner had companytended that by an amendment any of the fundamental rights cannot be damaged or destroyed, the next logical step of the argument on his behalf should have been to establish that the entire Article 31C is bad on that account, and if number, to what extent it would have been sustained by applying the doctrine of severability particularly when the severability of the declaration part of Article 31C was very much in the forefront during the arguments. Likewise the respondents knowing what the petitioners case is, should have examined and submitted to what extent Article 31C is invalid on the petitioners argument. When a question was asked on February 19, 1973 that if once it is companyceded that a Constitution cannot be abrogated, then what one has to find out is to what extent an amendment goes to abrogation and the answer was that the whole of the Constitution cannot be amended, and also when a question was raised that on the language of Article 31C it appears to be ineffective, neither side advanced any argument on this aspect. Nor when the question of severability of the declaration portion was mooted on several occasions during the arguments was any submission made by either party as to whether such a severance is, or is number, possible. In the circumstances, the Court is left to itself to examine and companysider what is the companyrect position in the midst of these two extremes in a case of Constitutional amendment which has been enacted after following the form and manner prescribed in Article 368, as I said earlier, it should number be held invalid, if it companyld be upheld even by severing the objectionable part, where the valid part can stand on its own. It is number always in public interest to companyfine the companysideration of the validity of a Constitutional amendment to the arguments, the parties may choose to advance, otherwise we will be companystrained to interpret a Constitution only in the light of what is urged before us, number what was understand it to be is the true nature of the impugned amendment Happily, even if I am alone in this view, the portions indicated by me are severable, leaving the unsevered portion operative and effective so as to enable laws made under Article 31C to further the directives of State Policy enshrined in Article 39 b and c . In the view I have entertained, the words inconsistant with, or takes away or and the words Article 14 as also the portion and numberlaw companytaining a declaration that it is for giving effect to such policy shall be called in question in any companyrt on the ground that it does number give effect to such policy being severable, be deleted from Article 31C. In the result, on the companystruction of Article 31C after severing the portions indicated above, I hold Section 3 of the Twenty-fifth Amendment valid. 1258. On the validity of the Constitution Twenty-ninth Amendment, my Lord the Chief Justice has companye to the companyclusion that numberwithstanding this amendment the Constitution Bench will decide whether the impugned Acts take away fundamental rights or only abridge them and whether they effect reasonable abridgements in publiic interest, and if they take away, they will have to be struck down. My learned brothers Hegde and Mukherjea, JJ., have in effect companye to the same companyclusion, when they hold that this amendemnt is valid, but whether the Acts which were brought into the IXth Schedule by that Amendment or any provision in any of them abrogate any of the basic elements or essential features of the Constitution will have to be examined when the validity of those Acts is gone into. With respect, I agree in effect with these companyclusions which are companysistent with the view I have expressed in respect of Articles 31A and 31B. I also agree that the companytention of the learned Advocate for the petitioner that Article 31B is intimately companynected with Article 31A is unacceptable and must be rejected for the reasons given in these judgments. The question whether fundamental rights are abrogated or emasculated by any of the Acts or provisions of these Acts included by the impugned Amendment, will be open for examination when the validity of these Acts is gone into, and subject to this reservation, I hold the Constitution Twenty-ninth Amendment valid. 1259. I number state my companyclusions which are as follows On the companystruction placed on Articles 12, 13 and other provisions of Part III and Article 368, Article 13 2 does number place an embargo on Article 368, for amending any of the rights in Part III, and on this view it is unnecessary to decide whether the leading majority judgment in Golaknaths case is right in finding the power of amendment in the residuary entry 97 of List I of Schedule VII, number is it called for, having regard to the majority decision therein that the power of amendment is to be found in Article 368 itself. Twenty-fourth Amendment 1260. The word amendment in Article 368 does number include repeal. Parliament companyld amend Article 368 and Article 13 and also all the fundamental rights and though the power of amendment is wide, it is number wide enough to totally abrogate or emasculate or damage any of the fundamental rights or the essential elements in the basic structure of the Constitution or of destroying the identity of the Constitution. Within these limits, Parliament can amend every article of the Constitution. Parliament cannot under Article 368 expand its power of amendment so as to companyfer on itself the power to repeal, abrogate the Constitution or damage, emasculate or destroy any of the fundamental rights or essential elements of the basic structure of the Constitution or of destroying the identity of the Constitution, and on the companystruction placed by me, the Twenty-fourth Amendment is valid, for it has number changed the nature and scope of the amending power as it existed before the Amendment. Twenty-fifth Amendment SECTION 2 Clause 2 to Article 31 at substituted.-Clause 2 of Article 31 has the same meaning and purpose as that placed by this Court in the several decisions referred to except that the word amount has been substituted for the word companypensation, after which the principle of equivalent in value or just equivalent of the value of the property acquired numberlonger applies. The word amount which has numberlegal companycept and, as the amended clause indicates, it means only cash which would be in the currency of the companyntry, and has to be fixed on some principle. Once the Court is satisfied that the challenge on the ground that the amount or the manner of its payment is neither arbitrary or illusory or where the principles upon which it is fixed are found to bear reasonable relationship to the value of the property acquired, the Court cannot go into the question of the adequacy of the amount so fixed or determined on the basis of such principles. Clause 2B as added.-On the applicability of Article 19 1 f to Clause 2 of Article 31, the word affect makes two companystructions possible, firstly, that Article 19 1 f will number be available at all to an expropriated owner, and this, in other words, means that it totally abrogates the right in such cases, and secondly, Clause 2B was intended to provide that the law of acquisition or requisition will number be void on the ground that it abridges or affects the right under Article 19 1 f . The second companystruction which makes the amendment valid is to be preferred, and that Clause 2B by the adoption of the doctrine of severability in application is restricted to abridgement and number abrogation, destroying or damaging the right of reasonable procedure in respect of a law of acquisition or requisition for the effective exercise of the right under Article 31 2 for, a reasonable numberice, a hearing opportunity to produce material and other evidence, may be necessary to establish that a particular acquisition is number for public purpose and for providing the value of the property and other matters that may be involved in a particular principle adopted in fixing the amount or for showing chat what is being paid is illusory, arbitrary etc. Therefore, in the view taken, and for the reasons set out in this judgment, Section 2 of the Twenty-fifth Amendment is valid. SECTION 3 OF THE TWENTY-FIFTH AMENDMENT 1261. New Article 31C is only valid if the words inconsistent with or takes away or, the words Article 14 and the declaration portion and numberlaw companytaining a declaration that it is for giving effect to such policy shall be called in question in any companyrt on the ground that it does number give effect to such policy, are severed, as in my view they are severable. What remains after severing can be operative and effective on the interpretation given by me as to the applicability of Articles 19 and 31, so as to enable laws made under Article 31C to further the directives enshrined in Article 39 b c . In the result on the companystruction of Article 31C, after severing the portions indicated above, I hold Section 3 of the Twenty-fifth Amendment valid. Twentyninth Amendment 1262. The companytention that Articles 31A and 31B are inter-connected is unacceptable and is rejected. The Constitution Twenty-ninth Amendment is valid, but whether any of the Acts included thereby in Schedule IX abrogate, emasculate, damage or destroy any of the fundamental rights in Part III or the basic elements or essential features of the Constitution will have to be examined when the validity of those Acts is challenged. 1263. The petitions will number be posted for hearing before the Constitution Bench for disposal in accordance with the above findings. In the circumstances the parties will bear their own companyts. G. Palekar, J. 1264. The facts leading to this petition have been stated in judgment delivered by my lord the Chief Justice and it is number therefore necessary to recount the same. 1265. In this petition the Constitutional validity of the Kerala Land Reforms Amendment Act, 1969 and the Kerala Land Reforms Amendment Act, 1971 has been challenged. As the petitioner apprehended that he would number succeed in the challenge in view of the recently passed Constitution Amendment Acts, he has also challenged the validity of these Acts. They are The Constitution 24th Amendment Act, 1971 The Constitution 26th Amendment Act, 1971 and The Constitution 29th Amendment Act, 1972. 1266. The crucial point involved is whether the Constitution is liable to be amended by the Parliament so as to abridge or take away fundamental rights companyferred by Part III of the Constitution. 1267. By the 24th Amendment, some changes have been made in Articles 13 and 368 with the object of bringing them in companyformity with the views expressed by a majority of Judges of this Court with regard to the scope and ambit of Articles 13 and 368. In Sankari Prasad Singh v. Union of India 1952 S.C.R. 89 the Constitutional Bench of five Judges of this Court unanimously held that fundamental rights companyld be abridged or taken away by ah amendment of the Constitution under Article 368. In the next case of Sajjan Singh State of Rajasthan 1965 1 S.C.R. 933 a majority of three Judges expressed the view that Sankari Prasads case was companyrectly decided. Two Judges expressed doubts about that view but companysidered that it was number necessary to dissent from the decision as the point was number squarely before the companyrt In the third case namely Golak Nath v. State of Punjab 1967 2 S.C.R. 762 the, view taken in the earlier cases by eight Judges was overruled by a majority of six Judges to five. The majority held that Parliament had numberpower to amend the Constitution under Article 368 so as to abridge or take away the fundamental rights, one of them Hidayatullah, J , who delivered a separate judgment, expressing the view that this companyld number be done even by amending Article 368 with the object of clothing the Parliament with the necessary powers. In this state of affairs the Union Government was obliged to take a definite stand. It would appear that the Union Government and the Parliament agreed with the view taken in Sankari Prasads case by the majority in Sajjan Singhs case and the substantial minority of Judges in Golak Naths case. They were out of sympathy with the view adopted by the majority in Golak Naths case. Hence the 24th Amendment. That amendment principally sought to clarify what was held to be implicit in Articles 13 and 368 by a majority of Judges of this Court over the years, namely, 1 that numberhing in Article 13 applied to an amendment to the Constitution made under Article 368 2 that Article 368 did number merely lay down the procedure for a Constitutional amendment but also companytained the power to amend the Constitution 3 that the Parliaments power under Article 368 was a companystituent power as distinct from legislative power 4 that this power to amend included the power to amend by way of addition, variation or repeal of any provision of the Constitution. 1268. After passing the 24th Amendment the other two amendments were passed in accordance with the Constitution as amended by the 24th Amendment. 1269. In his argument before us Mr. Palkhivala, appearing on behalf of the petitioner, supported the majority decision in Golak Nath with supplemental arguments. In any event, he further companytended, the power of Parliament to amend the Constitution under Article 368 did number extend to the damaging or destroying what he called the essential features and basic principles of the Constitution and since fundamental rights came in that category, any amendment which damaged or destroyed the companye of these rights was impermissible. The argument on behalf of the State of Kerala and the Union of India was that an amendment of the Constitution abridging or taking away fundamental rights was number only permissible after the clarificatory 24th Amendment but also under the unamended Articles 13 and 368, numberwithstanding the refinement in the arguments of Mr. Palkhivak with regard to essential features and basic principles of the Constitution. We are, therefore, obliged to go back to the position before the 24th Amendment and companysider whether the majority view in Golak Nath was number companyrect. A fuller bench of 13 Judges was, therefore, companystituted and it will be our task to deal with the crucial question involved. This companyrse cannot be avoided, it is submitted because if the fundamental rights were unamendable by the Parliament so as to abridge or take them away, Parliament companyld number increase its power to do so by the device of amending Articles 13 and 368 whether one calls that amendment clarificatory or otherwise. The real question is whether the Constitution had granted Parliament the power to amend the Constitution in that respect, because, if it did number, numberamendment of Articles 13 and 368 would invest the Parliament with that power. We have, therefore, to deal with the Constitution as it obtained before the 24th Amendment. 1270. Since fundamental questions with regard to the Constitution have been raised, it will be necessary to make a few prefatory remarks with regard to the Constitution. The Constitution is number an indigenous product. Those who framed it were, as recognised by this Court in The Automobile Transport Rajasthan Ltd. v. The State of Rajasthan and Ors. 1963 1 S.C.R. 491 at p. 539, 540 thoroughly acquainted with the Constitutions and Constitutional problems of the more important companyntries in the world, especially, the English speaking companyntries. They knew the Unitary and Federal types of Constitutions and the Parliamentary and Presidential systems of Government. They knew what Constitutions were regarded as Flexible Constitutions and what Constitutions were regarded as rigid Constitutions. They further knew that in all modern written Constitutions special provision is made for the amendment of the Constitution. Besides, after the Government of India Act, 1935 this companyntry had become better acquainted at first hand, both with the Parliamentary system of Government and the frame of a Federal Constitution with distribution of powers between the centre and in the State. All this knowledge and experience went into the making of our Constitution which is broadly speaking a quasi - Federal Constitution which adopted the Parliamentary System of Government based on adult franchise both at the centre and in the States. 1271. The two words mentioned above flexible and rigid were first companyned by Lord Bryce to describe the English Constitution and the American Constitution respectively. The words were made popular by Dicey in his Law of the Constitution first published in 1885. Many generations of lawyers, thereafter, who looked upon Dicey as one of the greatest expositors of the law of the Constitution became familar with these words. A flexible Constitution is one under which every law of every description including one relating to the Constitution can legally be changed with the same ease and in same manner by one and the same body. A rigid Constitution is one under which certain laws generally known as Constitutional or fundamental laws cannot be changed in the same manner as ordinary laws . See Diceys Law of the Constitution 10th edition, 1964 p. It will be numbered that the emphasis is on the word change in denoting the distinction between the two types Constitutions. Lord Birkanhead in delivering the judgment of the judcial Committee of the Privy Council in McCawley v. The King 1920 A.C. 691 used the words uncontrolled and companytrolled for the words flexible and rigid respectively which were current then. He had to examine the type of Constitution Queensland possessed, whether it was a flexible Constitution or a rigid one in order to decide the point in companytroversy. He observed at page 703 The first point which requires companysideration depends upon the distinction between Constitutions the terms of which may be modified or repealed with numberother formality than is necessary in the case of other legislation, and Constitutions which can only be altered with some special formality and in some cases by a specially companyvened assembly. He had to do that because the distinction between the two types of Constitutions was vital to the decision of the companytroversy before the privy Council. At page 704 he further said Many different terms have been employed in the text-books to distinguish these two companytrasted forms of Constitution. Their special qualities may perhaps be exhibited as clearly by oiling the one a companytrolled and the other an uncontrolled Constitution as by any other numberenclature. Perhaps this was an apology for number using the words rigid and flexible which were current when he delivered the judgment. In fact, sic John Simon in the companyrse of his argument in that case had used the words rigid and flexible and he had specifically referred to Diceys Law of the Constitution Strong in his text-book on Modern Political Constitution, Seventh revised edition, 1968 reprinted in 1970 says at p. 153 The sole criterion of a rigid Constitution is whether the Constituent Assembly which drew up the Constitution left any special directions as to how it was to be changed. If in the Constitution there are numbersuch directions, or if the directions, explicitly leave the Legislature a free hand, then the Constitution is flexible. 1272. The above short disquisition into the nature of Constitutions was necessary in order to show that when our Constitution was framed in 1949 the framers of the Constitution knew that there were two companystrasted types of democratic Constitutions in vogue in the world-one the flexible type which companyld be amended by the ordinary procedure governing the making of a law and the other the rigid type which cannot be so amended but required a special procedure for its amendment. Which one of these did our framers adopt the flexible or the rigid? On an answer to the above question some important companysequences will follow which are relevant to our enquiry. 1273. Our Constitution provides for a Legislature at the Centre and in the States. At the centre it is the Parliament companysisting of the Lok Sabha and the Rajya Sabha. In the States the Legislature companysists of the State Assembly and, in some of them, of an Upper Chamber known as the Legislative Council. Legislative power is distributed between the centre and the States, Parliament having the power to make laws with regard to subject matters companytained in List I of the Seventh Schedule and the State Legislatures with regard to those in List II. There is also List III enumerating matters in respect of which both the Parliament and the State Legislatures have companycurrent powers to make laws. This power to make laws is given to these bodies by Articles 245 to 248 and the law making procedure for the Parliament is companytained in Articles 107 to 122 and for the State Legislatures in Articles 196 to 213. The three Lists in the Seventh Schedule numberwhere mention the Amendment of the Constitution as one of the subject matters of legislation for either the Parliament or the State Legislatures. On the other hand, after dealing with all important matters of permanent interest to the Constitution in the first XIX parts companyering 367 Articles, the Constitution makes special provision for the Amendment of the Constitution in Part XX in one single Article, namely, Article 368. A special procedure is provided for amendment which is number the same as the one provided for making ordinary laws under Articles 245 to 248. The principle features of the legislative procedure at the Centre are that the law must be passed by both Houses of Parliament by a majority of the members present and voting in the House, and in case of an impasee between the two Houses of Parliament, by a majority vote at a joint sitting. All that is necessary is that there should be a companyam which we understand is 10 of the strength of the House and if such a companyam is available the two houses separately or at a joint meeting, as the case may be, may make the law in accordance with its legislative procedure laid down in Articles 107 to 122. The point to be specially numbered is that all ordinary laws which the Parliament makes in accordance with Articles 245 to 248 must be made in accordance with this legislative procedure and numberother. Under Articles 368 however, a different and special procedure is provided for amending the Constitution. A Bill has to be introduced in either House of Parliament and must be passed by each House separately by a special majority. It should be passed number only by 2/3rd majority of the members present and voting but also by a majority of the total strength of the House. No joint sitting of the two Houses is permissible. In the case of certain provisions of the Constitution which directly or indirectly affect interstate relations, the proposed amendment is required to be ratified by the Legislatures which is number a legislative process of number less than one half of the States before the Bill proposing the amendment is presented to the President for his assent. The procedure is special in the sense that it is different and more exacting or restrictive than the one by which ordinary laws are made by Parliament. Secondly in certain matters the State Legislatures are involved in the process of making the amendment. Such partnership between the Parliament and the State Legislatures in making their own laws by the ordinary procedure is number recognised by the Constitution. It follows from the special provision made in Article 368 for the amendment of the Constitution that our Constitution is a rigid or companytrolled Constitution because the Constituent Assembly has left a special direction as to how the Constitution is to be changed. In view of Article 368, when the special procedure is successfully followed, the proposed amendment automatically becomes a part of the Constitution or, in other words, it writes itself into the Constitution. 1274. The above discussion will show that the two separate procedures one for law making and the other for amending the Constitution were number just an accident of drafting. The two procedures have been delibarately provided to companyform with well-know Constitutional practices which make such separate provisions to highlight the different procedures one companymonly known as the legislative procedure and the other the companystituent procedure. The word companystituent is so well-known in modern Political Constitutions that it is defined in the dictionaries as able to frame or alter a Constitution. And the power to frame or alter the Constitution is known as companystituent power. See The Concise Oxford Dictionary. 1275. Where then in our Constitution lie the legislative power and the companystituent power? The legislative power is given specifically by Articles 245 to 248, subject to the Constitution, and these Articles are found under the heading Distribution of legislative powers. That alone is enough to show that these articles do number deal with the companystituent power. The point is important because the leading majority judgment in Golak Naths case proceeds on the footing that the power lies in Article 248 read with the residuary entry 97 in List I of the Seventh Schedule. That finding was basic to the decision because unless an amendment of the Constitution is equated with a law made by Parliament under one or the other of the entries in List I of the Seventh Schedule it was number easy to invoke the bar of Article 13 2 . Mr. Palkhivala says that he is indifferent as to whether the power is found in Article 248 or elsewhere. But that does number companyclude the question because if we agree with the view that it falls in Article 248 the decision that an amendment abridging or taking away fundamental rights, being a law under Article 248, would be barred by Article 13 2 would be unassailable. 1276. In Golak Naths case Subha Rao, C.J. who spoke for himself and his four learned companyleagues held that the power to amend the Constitution was number found in Article 368 but in Article 248 read with the residuancy entry 97 of List I of the Seventh Schedule. The five learned Judges who were in a minority held that the power is in Article 368, Hidayatullah, J. on the other hand, held that Article 368 did number give the power to any particular person or persons and that if the named authorities acted according to the law of Article, the result of amendment was achieved. And if the procedure companyld be deemed to be a power at all it was a legislative power, sui generis, to be found outside the three lists in Schedule Seven of the Constitution. In other words, six learned Judges did number find the power in the residuary entry 97 of List I, while five found it there. We have, therefore, to see whether the view of Subba Rao, C.J. and his four companyleagues who held that the power lay in Article 248 read with the residuary entry 97 is companyrect. In my view, with respect, it is number. 1277. Article 368 is one single article in Part XX entitled. The amendment of the Constitution. It is a special topic dealt with by that Part. In other articles like Articles 4,169, para 7 of Schedule V and para 31 of Schedule VI a power is granted to the Parliament to amend specific provisions by law i.e., by adopting the ordinary procedure of legislation, though it altered certain provisions of the Constitution. The alterations are a law made by the Parliament and, therefore, liable to be struck down, unless specifically saved, in case of inconsistency with the provisions of the Constitution. Secondly in every such case a provision is deliberately added explaining that the amendment so made by law is number to be deemed an amendment of the Constitution for the purpose of Article 368. The warning was necessary to emphasise that an amendment of the Constitution in accordance with the procedure laid down in Article 368 was of a special quality-a quality different from amendments made by law by the Parliament. The special quality flowed from the fact that the Parliament and the States which were to participate in the process performed number their ordinary legislative function but a special function known in all Federal or quasi-federal or companytrolled Constitutions as a companystituent function. The difference between the ordinary function of making law and the function of amending the Constitution loses its significance in the case of a sovereign body like the British Parliament or a Parliament like that of Newzealand which has a written Constitution of the Unitary type. These bodies can amend a Constitutional law with the same ease with which they can make an ordinary law. The reason is that their Constitutions are flexible Constitutions. But in companyntries which have a written Constitution which is a rigid or companytrolled Constitution the Constitution is liable to be amended only by the special procedure, and the body or bodies which are entrusted with the amendment of the Constitution are regarded as exercising companystituent power to distinguish it from the power they exercise in making ordinary legislation under the Constitution. So far as we are companycerned, our Constitution gives specific powers of ordinary legislation to the Parliament and the State legislatures in respect of well demarcated subjects. But when it companyes to the amendment of the Constitution, a special procedure has been prescribed in Article 368. Since the result of following the special procedure under the Article is the amendment of the Constitution the process which brings about the result is known as the exercise of companystituent power by the bodies associated in the task of amending the Constitution. It is, therefore, obvious, that when the Parliament and the State Legislatures function in accordance with Article 368 with a view to amend the Constitution, they exercise companystituent power as distinct from their ordinary legislative power under Articles 245 to 248. Article 368 is number entirely procedural. Undoubtedly part of it is procedural. But there is a clear mandate that on the procedure being followed the proposed amendment shall become part of the Constitution, which is the substantive part of Article Therefore, the peculiar or special power to amend the Constitution is to be sought in Article 368 only and number elsewhere. 1278. Then again if the companystituent assembly had regarded the power to amend the Constitution as numberbetter than ordinary legislative power the framers of the Constitution who were well-aware of the necessity to provide for the power to amend the Constitution would number have failed to add a specific entry to that effect in one or the other of the lists in the Seventh Schedule instead of leaving it to be found in a residuary entry. The very fact that the framers omitted to include it specifically in the list but provided for it in a special setting in Part XX of the Constitution is eloquent of the fact that the power was number to be sought in the residuary entry or the residuary Article 248. In this companynection it may be recalled that in the Draft Constitution Article 304 had a separate provision in Clause 2. Clause 1 of that article fairly companyresponds with our present Article 368. In Clause 2 power was given to the States to propose amendments in certain matters and Parliament had to ratify such amendments. There was thus a reverse process of amendment. There was numberresiduary power in the States and the amendment of the Constitution was number a specific subject of legislative power in draft List II. This goes to show that in the Draft Constitution, in all but two matters, the proposal for amendment was to be made by the Parliament and in two specified matters by the State Legislatures. If the power for the latter two subjects was to be found in Clause 2 of Article 304 of the Draft Constitution it is only reasonable to hold that the power of Parliament to amend the rest of the Constitution was to be found in Article 304 1 which companyresponds to the present Article 368. 1279. Moreover the actual wording of Article 245 which along with Articles 246 to 248 companyes under the topic Distribution of legislative powers is important. Article 245 provides that Parliament may make laws for the whole or any part of India and the legislature of a State may make laws for the whole or any part of the State. Thus Article 245 companyfers the power to make laws on Parliament and the Legislatures of the State for and within the territory allocated to them. Having companyferred the power, Articles 246 to 248 distribute the subject matters of legislation in respect of which the Parliament and the State Legislatures have power to make the laws referred to in Article 245. But there is an important limitation on this power in the governing words with which Article 245 companymences. It is that the power was subject to the provisions of the Constitution thereby lifting the Constitution above the laws. That would mean that the Parliament and the State Legislatures may, indeed make laws in respect of the areas and subject matters indicated, but the exercise must be subject to the provisions of the Constitution which means that the power to make laws does number extend to making a law which companytravenes or is inconsistent with any provision of the Constitution which is the supreme law of the land. A law is inconsistent with the provision of the Constitution when, being given effect to, it impairs or nullifies the provision of the Constitution. Now numbersimpler way of impairing or nullifying the Constitution can be companyceived than by amending the text of the provision of the Constitution. Therefore, since a law amending the text of a Constitutional provision would necessarily entail impairing or nullifying the Constitutional provision it would companytravene or be inconsistent with the provision of the Constitution and hence would be impermissible and invalid under the governing words subject to the provisions of the Constitution in Article 245. It follows that a law amending the Constitution if made on the assumption that it falls within the residuary powers of the Parliament under Article 248 read with entry 97 of List I would always be invalid. Then again a law made under Articles 245 to 248 must, in its making, companyform with the ordinary legislative procedure for making it laid down for the Parliament in Part V, Chapter II and for the State Legislature in Part VI, Chapter III of the Constitution and, numberother. To say that the power to make law lies in Article 245 and the procedure to make it in Article 368 is to ignore number only this companypulsion, but also the fundamental Constitutional practice followed in our Constitution, as in most modern companytrolled Constitutions, prescribing special procedure for the amendment of the Constitution which is different from the procedure laid down for making ordinary laws. The companyclusion, therefore, is that the power of amendment cannot be discovered in Article 248 read with the residuary entry. The argument that Article 368 does number speak of the power to amend but only of the procedure to amend in pursuance of the power found elsewhere is clearly untenable. The true position is that the alchemy of the special procedure prescribed in Article 368 produces the companystituent power which transports the proposed amendment into the Constitution and gives it equal status with the other parts of the Constitution. 1280. Moreover, if an amendment of the Constitution is a law made under Article 248 read with entry 97 List I strange results will follow. If the view taken in Golak Naths case is companyrect, such a law being repugnant to Article 13 2 will be expressly invalidated so far as Part III of the Constitution is companycerned. And such a law amending any other article of the Constitution will also be invalid by reason of the governing words subject to the provisions of the Constitution by which Article 245 companymences. In that event numberarticle of the Constitution can be amended. On the other hand, if the law amending an article of the Constitution is deemed to be number repugnant to the article which is amended, then every article can be amended including those embodying the fundamental rights without attracting the bar of Article 13 2 which can only companye in on a repugnancy. On the argument, therefore, that an amendment is a law made under Article 248 the whole of the Constitution becomes unamendable, and on the argument that such a law never becomes repugnant to the article amended the whole of the Constitution becomes amendable, in which case, we are unable to give any determinate value to Article 13 2 . Instead of following this companyplicated way of tracing the power in Article 248 read with the residuary entry 97 of List I it would be companyrect to find it in Article 368 because that is a special article designed for the purposes of the amendment of the Constitution which is also the subject heading of Part XX. In my opinion, therefore, the power and the procedure to amend the Constitution are in Article 368. 1281. The next question which requires to be examined is the nature of this companystituent power, specially, in the case of companytrolled or rigid Constitutions. A student of Modern Political Constitutions will find that the methods of modern Constitutional amendment are 1 by the ordinary legislature but under certain restrictions 2 by the people through a referendum 3 by a majority of all the unions of a Federal State 4 by special companyvention and 5 by a companybination of two or more of the above methods which are mentioned in order of increasing rigidity as to the method. Where the power of amending the Constitution is given to the legislature by the Constituent Assembly the Legislature working under restrictions assumes a special position. Strong in the book, already referred to, observes at page 152 The companystituent assembly, knowing that it will disperse and leave the actual business of legislation to another body, attempts to bring into the Constitution that it promulgates as many guides to future action as possible. If it wishes, as it generally does, to take out of the hands of the ordinary legislature the power to alter the Constitution by its own act, and since it cannot possibly foresee all eventualities, it must arrange for some method of amendment. In short, it attempts to arrange for the recreation of a companystituent assembly whenever such matters are in future to be companysidered, even though that assembly be numberhing more than the ordinary legislature acting under certain restrictions. emphasis supplied 1282. Authorities are number wanting who declare that such amending power is sovereign companystituent power. Orfield in his book, the Amending of the Federal Constitution 1942 page 155 1971 Edn. says that in America the amending body is sovereign in law and in fact Herman Finer in his book The Theory and Practice of Modern Government, fourth edition 1961 reprinted in 1965, pages 156/157 says Supremacy is shown and maintained chiefly in the amending process Too difficult a process, in short, ruins the ultimate purpose of the amending clause The amending clause is so fundamental to a Constitution that I am tempted to call it the Constitution itself. Geoffery Marshall in his Constitutional Theory 1971 p. 36 says there will in most Constitutional systems, be an amending process and some companylection of persons, possibly companyplex, in whom sovereign authority to alter any legal rule inheresConstitutions unamendable in all or some respects are number-standard cases and a sovereign entity whether as in Britain a simple legislative majority, or a companyplex specially companyvened majority can be discovered and labelled sovereign in almost all systems. Wade in his Introduction to Diceys Law of the Constitution, 10th edition says as follows at page 36 Federal government is a system of government which embodies a division of powers between a central and a number of regional authorities. Each of these in its own sphere is companyordinate with the others and independent of them. This involves a division of plenary powers and such a division is a negation of sovereignty. Yet somewhere lies the power to change this division. Wherever that power rests, there is to be found legal sovereignty. Having regard to this view of the jurists, it was number surprising that in Sankari Prasads case Patanjali Shastri, J., speaking for the companyrt, described the power to amend under Article 368 as soverign companystitutent power p. 106 . By describing the power as sovereign companystituent power it is number the intention here to declare, if somebody is allergic to the idea, that legal sovereignty lies in this body or that. It is number necessary to do so for our immediate purpose. The word sovereign is used as a companyvenient qualitative description of the power to highlight its superiority over other powers companyferred under the Constitution. For example, legislative power is subject to the Constitution but the power to amend is number. Legislative activity can operate only under the Constitution but the power of amendment operates over the Constitution. The word sovereign, therefore, may, for our purpose, simply stand as a description of a power which is superior to every one of the other powers granted to its instrumentalities by the Constitution. 1283. The amplitude and effectiveness of the companystituent power is number impaired because it is exercised by this or that representative body or by the people in a referendum. One cannot say that the power is less when exercised by the ordinary legislature as required by the Constitution or more when it is exercised-say by a special companyvention. This point is relevant because it was companytended that our Parliament is a companystituted body-a creature of the Constitution and cannot exercise the power of amending the Constitution to the same extent that a companystituent assembly specially companyvened for the purpose may do. It was urged that the sovereignty still companytinues with the people and while it is open to the people through a companyvention or a companystituent assembly to make any amendments to the Constitution in any manner it liked, there were limitations on the power of an ordinary Parliament-a companystituted body, which precluded it from making the amendments which damaged or destroyed the essential features and elements of the Constitution. We shall deal with the latter argument in its proper place. But for the present we are companycerned to see whether the power to amend becomes more or less in companytent according to the nature of the body which makes the amendment. In my view it does number. Because as explained by Strong in the passage already quoted In short it i.e. the companystituent assembly which framed the Constitution attempts to arrange for the recreation of a companystituent assembly whenever such matters are in future to be companysidered even though that assembly be numberhing more than the ordinary legislature acting under certain restrictions. Only the methods of making amendments are less rigid or more rigid according to the historical or political background of the companyntry for which the Constitution is framed. For example Article V of the American Constitution divides the procedure for formal amendment into two parts-proposal and ratification. Amendments may be proposed in two ways 1 by two-thirds vote of both Houses of Congress 2 by national Constitutional companyventions called by Congress upon application of two-thirds of the State Legislatures. Amendments may be ratified by two methods, 1 by the legislatures of three-fourths of the States 2 by special companyventions in three-fourths of the States. Congress has the sole power to determine which method of ratification is to be used. It may direct that the ratification may be by the state legislatures or by special companyventions. 1284. One thing which stands out so far as Article V is companycerned is that referendum as a process of Constitutional amendment has been wholly excluded. In fact it was held by the Supreme Court of America in Dodge v. Woolsey 1855 18 How 331 at 348 the Constitution is supreme over the people of the United States, aggregately and in their separate sovereignties, because they have excluded themselves from any direct or immediate agency in making amendments to it, and have directed that amendments should be made representatively for them. In other words, the people, having entrusted the power to amend the Constitution to the bodies mentioned in Article V, had companypletely withdrawn themselves from the amending process. Out of the two companybinations of the bodies referred to in Article V-one is a companybination of the Congress and the State Legislatures and between them, though they are companystituted bodies, they can qualitatively amend the Constitution to the same extent as if the proposal made by the Congress was to be ratified by companyvention by 3/4th number of States. As a matter of fact on the proposal made by the Congress all the amendments of the U.S. Constitution, with the exception of the twenty first which repealed the 18th amendment, have been ratified by State legislatures. Such an amendment accomplished by the participation of the Congress and the State Legislatures has number been held by the U.S. Supreme Court as being any less effective because the Congress had number obtained the ratification from a companyvention of the States. The question arose in United States v. Sprague. 282 U.S. 716 That case was on the 28th Prohibition Amendment. The amendment became part of the Constitution on a proposal by the Congress and ratification by the State legislatures. Objection was raised to the validity of the amendment on the ground that since the amendment affected the personal liberty of the subject and under Article X the people had still retained rights which had number been surrendered to the Federal Constitution, the ratification ought to have been by the representatives of the people at a special companyvention and number by the State legislatures. That objection was rejected on the ground that the Congress alone had the choice as to whether the State legislatures or the companyventions had to ratify the amendment. Conversely, in Hawke v, Smith 253 U.S. 221 which also related to the 18th amendment it was held that the State of Ohio companyld number provide for the ratification of the 18th amendment by popular referendum since such a procedure altered the plain language of Article V which provides for ratification by State legislatures rather than by direct action of the people. It will be seen from this case that the State legislature for Ohio, instead of deciding on the ratification itself as it was bound to do under Article V, decided to obtain the opinion of the people by a referendum but such a procedure was held to be illegal because it did number find a place in Article V. This establishes that an amendment of the Constitution must be made strictly in accordance with the method laid down in the Constitution and any departure from it even for the purpose of ascertaining the true wishes of the people on the question would be inadmissible. An amendment of the Constitution must be made only in accordance with the procedure laid down in the Constitution and whatever individuals and bodies may think that it had better be made by a representative companystituent assembly or a companyvention or the like is of really numberrelevance. 1285. Under Article 368 the Parliament is the Principal body for amending the Constitution except in cases referred to in the proviso. Parliament need number be associated with the State legislatures in making an amendment of the Constitution in cases excepted from the proviso. It cannot be lost sight of that Parliament in a very large way represents the will of the people. Parliament companysists of two Houses-the Lok Sabha and the Rajya Sabha. The Lok Sabha is elected for five years on the basis of adult franchise. The Rajya Sabha is a permanent body-members of which retire by rotation. The Rajya Sabha companysists of members elected by the State legislatures who are themselves elected to those legislatures on the basis of adult franchise. Then again there is a striking difference between the position occupied by the Congress in relation to the President in United States and the position of the Executive in relation to the Parliament and the State legislatures in India. In America the President is directly elected by the people for a term and is the Executive head of the Federal Government. The Congress may make laws but the President is number responsible to the Congress. In India, however, in our Parliamentary system of democracy, as in Great Britain, the Executive is entirely responsible to the legislature. The Congress in U.S.A. will number be held responsible by the people for what the President had done in his Executive capacity. The same is true in respect of State legislatures in America. In India people will hold the Parliament responsible for any executive action taken by the Cabinet. While in the companytext of a Constitutional amendment it is facile to decry the position of Parliament as a companystituent body, we cannot ignore the fact that in both Great Britain and New-Zealand-one with an unwritten Constitution and the other with a written Constitution-governed by Parliamentary democracy, the Constitution companyld be changed by an ordinary majority. 1286. Why the power to amend the Constitution was given in the main to Parliament is number fully clear. But two things are clear. One is that as in America the people who gave us the Constitution companypletely withdrew themselves from the process of amendment. Secondly, we have the word of Dr. Ambedkar-one of the principal framers of our Constitution that the alternative methods of referendum or companyvention had been companysidered and definitely rejected. See Constituent Assembly Debates, Vol. VII page 43. They decided to give the power to Parliament, and Dr. Ambedkar has gone on record as saying that the amendment of the Constitution was deliberately made as easy as was reasonably possible by prescribing the method of Article 368. The Constituent Assembly Debates show that the chief companytroversy was as to the degree of flexibility which should be introduced into the Constitution. There may have been several historical reasons for the companystituent assemblys preference for Parliament. Our companyntry is a vast companytinent with a very large population. The level of literacy is low and the people are divided by language, castes and companymunities number all pulling in the same direction. On account of wide-spread illiteracy, the capacity to understand political issues and to rise above local and parochial interests is limited. A national perspective had yet to be assiduously fostered. It was, therefore, inevitable that a body which represented All-India leadership at the centre should be the choice. Whatever the reasons, the Constituent Assembly entrusted the power of amendment to the Parliament and whatever others may think about a possible better way, that was number the way which the companystituent assembly companymanded. The people themselves having withdrawn from the process of amendment and entrusted the task to the Parliament instead of to any other representative body, it is obvious that the power of the authorities designated by the Constitution for amending the Constitution must be companyextensive with the power of a companyvention or a companystituent assembly, had that companyrse been permitted by the Constitution. 1287. We have already shown that companystituent power is qualitatively superior to legislative power. Speaking about the legislative companypetence of the Canadian Parliament, Viscount Sankey L.C. speaking for the Judicial Committee of the Privy Council observed in British Coal Corporation v. The King 1935 A.C. 500 at p. 518 Indeed, in interpreting a companystituent or organic statute such as the Act British North America Act that companystruction most beneficial to the widest possible amplitude of its powers must be adopted. This principle has been again clearly laid down by the Judicial Committee in Edwards v. Attorney-General for Canada 1930 A.C. 124, 136. Their Lordships do number companyceive it to be the duty of this Board - it is certainly number their desire - to cut down the provisions of the Act by a narrow and technical companystruction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the Provinces to a great extent, but within certain fixed limits, are mistresses in theirs. If that is the measure of legislative power the amplitude of the power to amend a Constitution cannot be less. 1288. The width of the amending power can be determined from still another point of view. The Attorney-General has given to us extracts from nearly seventy one modem Constitutions of the world and more than fifty of them show that those Constitutions have provided for their amendment. They have used the word amend, revise, or alter, as the case may be, and some of them have also used other variations of those words by showing that the Constitutional provisions may be changed in accordance with some special procedures laid down. Some have made the whole of the Constitution amendable some others have made some provisions unamendable and two Constitutions - that of Somalia and West Germany have made provisions relating to Human Rights unamendable. In some of the Constitutions a few provisions are made partially amendable and other provisions only under special restrictions. But all have given what is companymonly known as the Amending power to be exercised in circumstances of more or less rigidity. The methods or processes may be more rigid or less rigid-but the power is the same, namely, the amending power. 1289. The raison detre for making provisions for the amendment of the Constitution is the need for orderly change. Indeed numberConstitution is safe against violent extra- Constitutional upheavals. But the object of making such a provision in a Constitution is to discourage such upheavals and provide for orderly change in accordance with the Constitution. On this all the text-books and authorities are unanimous. Those who frame a Constitution naturally want it to endure but, however gifted they may be, they may number be able to project into the future, when, owing to internal or external pressures or the social, economic and political changes in the companyntry, alterations would be necessary in the Constitutional instrument responding all the time to the will of the people in changed companyditions. Only thus an orderly change is ensured. If such a change of Constitution is number made possible, there is great danger of the Constitution being overtaken by forces which companyld number be companytrolled by the instruments of power created under the Constitution. Wide-spread popular revolt directed against the extreme rigidity of a Constitution is triggered number by minor issues but by major issues. People revolt number because the so-called unessential parts of a Constitution are number changed but because the essential parts are number changed. The essential parts are regarded as a stumbling block in their progress to reform. It is, therefore, evident that if for any reason, whether it is the extreme rigidity of a Constitution or the disinclination of those who are in power to introduce change by amendment, the essential parts looked upon with distrust by the people are number amended, the Constitution has hardly a chance to survive against the will of the people. If the Constitution is to endure it must necessarily respond to the will of the people by incorporating changes sought by the people. The survival of the American Constitution is generally attributed number so much to the amending Article V of the Constitution but to its vagueness which was exploited by the great judges of the Supreme Court of America who by their rulings adapted the Constitution to the changing companyditions. Legislative enactments, custom and usage also played a part. If the Constitution were to merely depend upon Constitutional amendments there are many who believe that the Constitution would number have survived. The reason was the extreme rigidity of the process of amendment. But framers of modern Constitutions as of India learning from experience of other companyntries have endeavoured to make their Constitution as precise and as detailed as possible so that one need number depend upon judicial interpretation to make it survive. Correspondingly they have made it more flexible so that it is amenable to amendment whenever a change in the Constitution is necessary. 1290. A good deal of unnecessary dust was raised over the question whether the amendment of the Constitution would extend to the repeal of the Constitution. That is an interesting subject for speculation by purists and theoretical jurists, but politicians who frame a Constitution for the practical purposes of government do number generally companycern themselves with such speculations. The pre-eminent object in framing a Constitution is orderly government. Knowing that numberConstitution, however, good it may seem to be when it was framed, would be able to bear the strain of unforeseen developments, the framers wisely provide for the alteration of the Constitution in the interest of orderly change. Between these two companyordinates, namely, the need for orderly government and the demands for orderly change, both in accordance with the Constitution, the makers of the Constitution provide for its amendment to the widest possible limit. If any provision requires amendment by way of addition, alteration or repeal, the change would be entirely permissible. If one were to ask the makers of the Constitution the rhetorical question whether they companytemplated the repeal of the Constitution, the answer would be, in all probability, in the negative. They did number toil on the Constitution for years in order that it may be repealed by the agencies to whom the amendment of the Constitution is entrusted. They wished it to be permanent, if number eternal, knowing that as time moved, it may companytinue in utility incorporating all required changes made in an orderly manner. Declaring their faith in the Constitution they will express their companyfidence that the Constitution which they had framed with the knowledge of their own people and their history would be able to weather all storms when it is exposed to orderly changes by the process of amendment To them the whole-sale repeal would be unthinkable but number necessary changes in response to the demands of time and circumstance which, in the opinion of the then amending authorities, the current Constitutional instrument would be able to absorb. This is sufficient for the companyrts to go on as it was sufficient for the framers of the Constitution. Quibbling on the meaning of the word amendment as to whether it also involved repeal of the whole Constitution is an irrelevant and unprofitable exercise. Luckily for us besides the word amendment in Article 368 we have also the uncomplicated word change in that article and thus the intention of the framers of the Constitution is sufficiently known. Then again the expression amendment of the Constitution is number a companynage of the framers of our Constitution. That is an expression well-known in modern Constitutions and it is companymonly accepted as standing for the alteration, variation or change in its provisions. 1291. Whichever way one looks at the amending power in a Constitution there can be hardly any doubt that the exercise of that power must companyrespond with the amplitude of the power unless there are express or necessarily implied limitations on the exercise of that power. We shall deal with the question of express and implied limitations a little later. But having regard to the generality of the principle already discussed the meaning of the word amendment of the Constitution cannot be less than amendment by way of addition, variation or repeal of any provision of the Constitution which is the clarification of that expression accepted by the Constitutional 24th Amendment. 1292. We shall number see if there are express or implied limitations in Article 368 itself. Article 368 is found in Part XX of the Constitution which deals with only one subject, namely, the Amendment of the Constitution. The article provides that when the special procedure directed by it is successfully followed the Constitution stands amended in terms of the proposal for amendment made in the Bill. Whatever provision of the Constitution may be sought to be amended, the amendment is an Amendment of the Constitution. The range is the whole of this Constitution which means all the provisions of the Constitution. No part of the Constitution is expressly excepted from amendment. Part XX and Article 368 stand in supreme isolation, after the permanent provisions of the Constitution are exhausted in the previous XIX parts. The power to amend is number made expressly subject to any other provision of the Constitution. There are numbergoverning words like subject to the Constitution or this or that part of the Constitution. If the framers of the Constitution had thought it necessary to exclude any part or provision of the Constitution from amendment, they would have done so in this part only as was done in the American Constitution. Article V of that Constitution, which was undoubtedly companysulted before drafting Article 368, made two specific exceptions. The language structure of Article V has a close resemblance to the language structure of our Article Therefore, if any part of the Constitution was intended to be excluded from the operation of the power to amend it would have numbermally found a place in or below Article 368. As a matter of fact, in the draft Constitution below Article 304, which companyresponds to the present Article 368, there was Article 305 which excluded certain provisions from amendment, but later on Article 305 itself was deleted. Even Article 368 itself was number safe from amendment because the proviso to Article 368 shows that the provisions of the article companyld be changed. Then again we find that when the people through the companystituent assembly granted the power to amend, they made numberreservations in favour of the people. The people companypletely withdrew from the process of amendment. In other words, the grant of power was without reservation. Another thing which is to be numbered is that when the Constituent Assembly directed that amendments of the Constitution must be made by a prescribed method, they necessarily excluded every other method of amending the Constitution. As long as the article stood in its present form the Parliament companyld number possibly introduce its own procedure to amend the Constitution by calling a companystituent assembly, a companyvention or the like. Altogether, it will be seen that the grant of power under Article 368 is plenary, unqualified and without any limitations, except as to the special procedure to be followed. 1293. The character of an amendment which can be made in a Constitution does number depend on the flexibility or rigidity of a Constitution. Once the rigidity of the restrictive procedure is overcome, the Constitution can be amended to the same degree as a flexible Constitution. So far as a flexible Constitution like that of Great Britain is companycerned, we know there are numberlimits to what the Parliament can do by way of amendment. It can, as pointed out by Dicey, repeal the Act of Union of Scotland by appropriate provisions even in a Dentists Act. Law of the Constitution page 145 . We know that by the statute of Westminster the British Parliament removed most of the Imperial fetters from the self governing companyonies and by the Independence of India Act, 1947 surrendered its Indian Empire. Recently the British Parliament invited inroads on its sovereignty by joining the Common Market. Similarly, as we have seen in McCawleys case, referred to earlier, the legislature of queensland, whose Constitution was a flexible Constitution, was held companypetent to amend its Constitutional provisions with regard to the tenure of office of the Judges of the Supreme Court by a subsequent Act passed in 1916 on the subject of Industrial Arbitration. To the objection that so important a provision of the Constitution was number permissible to be amended indirectly by a law which dealt with Industrial arbitration, Lord Birkenhead made the reply at page 713. Still less is the Board prepared to assent to the argument, at one time pressed upon it, that distinctions may be drawn between different matters dealt with by the Act, so that it becomes legitimate to say of one section This section is fundamental or organic it can only be altered in such and such a manner and of another This section is number of such a kind it may companysequently be altered with as little ceremony as any other statutory provision. Their Lordships therefore fully companycur in the reasonableness of the observations made by Isaacs and Rich JJ that, in the absence of any indication to the companytrary, numbersuch character can be attributed to one section of the Act which is number companyceded to all and that if Sections 15 and 16 relating to the tenure of office of the Judges are to be companystrued as the respondents desire, the same character must be companyceded to Section 56, which provides that in proceedings for printing any extract from a paper it may be shown that such extract was bona fide made. This only emphasizes that all provisions in a Constitution must be companyceded the same character and it is number possible to say that one is more important and the other less important. When a legislature has the necessary power to amend, it can amend an important Constitutional provision as unceremoniously as it can amend an unimportant provision of the Constitution. Dicey observes in his Law of the Constitution, 10th edition p. 127 The flexibility of our Constitution in the right of the Crown and the two Houses to modify or repeal any law whatever they can alter the succession to the Crown or repeal the Acts of Union in the same manner in which they can pass an Act enabling a companypany to make a new railway from Oxford to London. 1294. As already pointed out what distinguishes a rigid Constitution from a flexible Constitution is that it requries a special procedure for its amendment. It cannot be legally changed with the same case and in the same manner as ordinary laws. But if the rigid procedure is successfully followed, the power to amend operates equally on all provisions of the Constitution without distincition. Indeed, rigid Constitutions may safeguard certain provisions from amendment even by the special procedure. But where numbersuch provision is protected the power of amendment is as wide as that of a Parliament with a flexible Constitution. Rigidity of procedure in the matter of amendment is the only point of primary distinction between a rigid and flexible Constitution and when this rigidity is overcome by following the special procedure, the power of amendment is number inhibited by the fact that a Constitutional provisions is either important or unimportant. The amending power operates on all provisions as effectively as it does in a flexible Constitution. If the nature of the provision is so important that the Constitution itself provides against its amendment the amending power will have to inspect the provision. But if it is number so protected, every provision, important or otherwise, can be amended by the special procedure provided. In that respect the fact that the Constitution is a rigid Constitution does number place any additional restraint. 1295. We have already referred to the principle underlying the Amending provision in a written Constitution. In some Constitutions, the special procedure is very rigid as in the American Constitution. In others, especially in more modern Constitutions, having regard to the disadvantages of providing too rigid and restrictive procedures, amending procedures have been made more and more flexible. Our Constitution which learnt from the experience of other similar Constitutions made the amending procedure as flexible as was reasonably possible. There are several articles in the Constitution which permit the Parliament to make laws which are of a Constitutional character. There are some other articles which permit amendments to certain other specified provisions of the Constitution by the ordinary legislative procedure. For the rest there is Article 368 which provides a much more flexible procedure than does the American Constitution. The following passages from the book Political Science and Comparative Constitutional Law, Vol. I written by the great jurist John W. Burgess will show both the rationale for including an amendment clause in a Constitution and the need of making the amending procedure as less rigid as possible. At page 137 he says A companyplete Constitution may be said to companysist of three fundamental parts. The first is the organisation of the state for the accomplishment of future changes in the Constitution. This is usually called the amending clause, and the power which it describes and regulates is called the amending power. This is the most important part of a Constitution. Upon its existence and truthfulness, i.e. its companyrespondence with real and natural companyditions, depends the question as to whether the state shall develop with peaceable companytinuity or shall suffer alterations of stagnation, retrogression and revolution. A Constitution, which may be imperfect and erroneous is its other parts, can be easily supplemented and companyrected, if only the state be truthfully organised in the Constitution but if this be number accomplished, error will accumulate until numberhing short of revolution can save the life of the state. Than at pages 150/151 companymenting on the disadvantages of the amending procedure of the American Constitution he remarks When I reflect that, while our natural companyditions and relations have been requiring a gradual strengthening and extension of the powers of the Central Government, number a single step has been taken in this direction through the process of amendment prescribed in that article, except as the result of civil war, I am bound to companyclude that the organization of the sovereign power within the Constitution has failed to accomplish the purpose for which it was companystructed But I do say this that when a state must have recourse to war to solve the internal questions of its own politics, this is indisputable evidence that the law of its organization within the Constitution is imperfect and when a state cannot so modify and amend its Constitution from time to time as to express itself truthfully therein, but must writhe under the bonds of its Constitution until it perishes or breaks them asunder, this is again indisputable evidence that the law of its organization within the Constitution is imperfect and false. To my mind the error lies in the artificially excessive majorities required in the production of Constitutional changes. These passages express the deep anguish of the jurist and his disappointment with the current process of amendment prescribed in the U.S. Constitution. He gives the amending provision supreme importance in the Constitution and wants it to be very much less rigid than what it is, so that the Constitution can companyrespond with the truth of companytemporary, social and political changes. The whole object of providing for amendment is to make the Constitution as responsive to companytemporary companyditions as possible because, if it is number the danger of popular revolt, civil war or even revolution in a rapidly changing world may soon overtake the people. That being the political philosophy behind the amending provision it is obvious that the provision must serve the same purpose as in a Parliamentary democracy with a flexible Constitution. The latter can adjust itself more readily with changing companyditions and thus discourage violent revolts. If the object of a Constitution is the same, namely, orderly government and orderly change in accordance with the law, it must be companyceded that all Constitutions whether flexible or rigid must have the power to amend the Constitution to the same degree and if flexible Constitutions have the power to make necessary changes in their most cherished Constitutional principles, this power cannot be denied to a Constitution merely because it is a rigid Constitution. The amending power in such a Constitution may therefore, reach all provisions whether important or unimportant, essential or unessential. 1296. The above proposition is supported by several decisions of the Supreme Court of America and the Supreme Courts of the American States, the Constitutions of which are all rigid. In Edwards v. Lesueur South Western Reporter Vol. 33, 1130 it was held that if a State Constitution provides that General Assembly may at any time propose such amendments to that instrument as a majority of the members elected to each house deem expedient the substance and extent of amendment are left entirely to the discretion of the General Assembly. In Livermore v. Waite 102 Cal. 118 only one of the judges, Judge Harrison, held the view that the word amendment in the State Constitution implied such an addition or change within the lines of the original instrument as will effect an improvement or better carrying out of the purpose for which it was framed. But that view is number shared by others. In the State Constitution of California the word amendment was used in addition to the word revision and that may have influenced the judge to give the word amendment a special meaning. The actual decision was dissented from in Edwards Lesueur referred to above, decided about 10 years later, and the opinion of Judge Harrison with regard to the meaning of the word amendment was dissented from in Exparte Dillon. 262 Federal Reporter 563 decided in 1920 This case went to the Supreme Court of America in Dillon v. Gloss 65 Law edn. 994 and the decision was affirmed. The challenge was to the Prohibition Amendment 18th and the companyrt observed at p. 996 An examination of Article V discloses that it is intended to invest Congress with a wide range of power in proposing amendments. Passing a provision long since expired that provision expired in 1808 it subjects this power to only two restrictions one that the proposal shall have the approval of two thirds of both Houses, and the other excluding any amendment which will deprive any state, without its companysent, of its equal suffrage in the Senate. A further mode of proposal-as yet never invoked-is provided, which is, that on application of the two thirds of the states Congress shall call a companyvention for the purpose. When proposed in either mode, amendments, to be effective, must be ratified by the legislatures, or by companyventions, in three fourths of the states, as the one or the other mode of ratification may be proposed by the Congress. Thus the people of the United States, by whom the Constitution was ordained and established, have made it a companydition to amending that instrument that the amendment be submitted to representative assemblies in the several states and be ratified in three fourths of them. The plain meaning of this is 1 that all amendments must have the sanction of the people of the United States, the original fountain of power, acting through representative assemblies, and b that ratification by these assemblies in three fourths of the states shall be taken as a decisive expression of the peoples will and be binding on all. The above passage is important from two points of view. One is that Article V subjects the amending power to numberrestrictions except the two expressly referred to in the article itself, and the second point which is relevant for our purpose is that the peoples ratification may be obtained in one of two ways, namely, by the State legislatures or by State companyventions. It was for the Congress to choose between these two ways of ratification. But whichever method was chosen, the ratification whether by the State legislatures or by special companyventions, was the ratification on behalf of the people because they were representative assemblies who companyld give a decisive expression of the peoples will. As a matter of fact although several amendments have been made to the Constitution under Article V there has been only one, namely, the 21st Amendment which had been referred to state companyventions. All other amendments were proposed by the Congress and ratified by the State legislatures-the ratification being regarded as by peoples representatives who companyld decisively express the peoples will. If the State legislatures in America which have numberresponsibility for the executive government of the State are deemed to reflect the will of the people there is greater reason to hold that our Parliament and State legislatures are numberless representative of the will of the people when they participate in the process of amendment of the Constitution. 1297. But reverting to the companysideration of the character of an amendment of the Constitution, we find from decided American cases that there are numberlimits except those expressly laid down by the Constitution. In Ex-parte Mrs. D.C. Kerby 103 Or. 612 decided by the Oregon Supreme Court in 1922 which companycerned an amendment restoring the death penalty which had been abolished by a previous amendment to the Bill of Rights of the State Constitution, the following observations in State v. Cox 8 Ark. 436 were quoted with approval. The Constitution, in prescribing the mode of amending that instrument, does number limit the power companyferred to any particular portion of it, and except other provisions by declaring them number to be amendable. The general assembly, in amending the Constitution, does number act in the exercise of its ordinary legislative authority of its general powers but it possesses and acts in the character and capacity of a companyvention, and is, quoad hoc, a companyvention expressing the supreme will of the sovereign people and is unlimited in its powers save by the Constitution of the United States. Therefore, every change in the fundamental law, demanded by the public will for the public good, may be made, subject to the limitation above named. 1298. In Downs v. City of Birmingham 198 Southern Reporter, 231 the Supreme Court of Alabama held that an amendment to state Constitution may extend to a change in form of the states government, which may be in any respect except that the government must companytinue to be a republican form of government as required by the U.S. federal Constitution, which was inviolable, and that rights acquired under the Constitution are subject to Constitutional provisions permitting amendments to the Constitution, and numberright can be acquired under the State companysitution which cannot be abridged by an amendment of the Constitution and such a rule extends to companytract and property rights. 1299. In Schneiderman v. United States of America 87 Law. ed. 1796 which was a denaturalization case on the ground of number-allegiance to the principles of the American Constitution, Murphy J. delivering the opinion of the companyrt said, pp. 1808-1809 The Constitutional fathers, fresh from a revolution, did number forge a political strait-jacket for the generations to companye. Instead they wrote Article V and the First Amendment, guaranteeing freedom of thought, soon followed. Article V companytains procedural provisions for Constitutional change by amendment without any present limitation whatsoever except that numberState may be deprived of equal representation in the Senate without its companysent. Cf. National Prohibition Cases Rhode Island v. Palmer 65 Law. ed. This provision and the many important and far-reaching changes made in the Constitution since 1787 refute the idea that attachment to any particular provision or provisions is essential, or that one who advocates radical changes is necessarily number attached to the Constitution. 1300. In Ullmann v. United States 100 Law. ed. 511 Frankfurter, J. delivering the opinion of the Supreme Court on the privilege against self-incrimination Vth amendment which, by the way, is recognized by our Constitution as a fundamental right, quoted with approval Chief Judge Macgruder who said if it be thought that the privilege is outmoded in the companyditions of this modern age then the thing to do is to take it out of the Constitution, number to whittle it down by the subtle encroachments of judicial opinion. 1301. Recently in Whitehill v. Elkins, 19 Law. ed. 2d. 228 Douglas, J. delivering the opinion of the companyrt, observed at p. 231 If the Federal Constitution is our guide, a person who might wish to alter our form of Government may number be cast into the outer darkness. For the Constitution prescribes the method of alteration by the amending process in Article V and while the procedure for amending it is restricted, there is numberrestraint on the kind of amendment that may be offered. 1302. It is unnecessary to multiply cases to appreciate the width of the amending power in a rigid Constitution. Even the dictionaries bring out the same sense. The word amend may have different nuances of meaning in different companytexts, like amend once companyduct, amend a letter or a document, amend a pleading, amend a law or amend a Constitution. We are companycerned with the last one, namely, what an amendment means in the companytext of a Constitution which companytains an amending clause. In the Oxford English Dictionary, Vol. I the word amend is stated to mean 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. 1303. Sutherland in his Statutes and Statutory Construction, third edition, Vol. I, p. 325 has explained an amendatory act, as any change of the scope or effect of an existing statute, whether by addition, omission, or substitution of provisions, which does number wholly terminate its existence, whether by an act purporting to amend, repeal, revise, or supplement, or by an act independent and original in form. 1304. In Words and Phrases, Permanent edition Vol. 3, p. 447 it is generally stated that the word amendment involves an alteration or change, as by addition, taking away or modification. It is further explained that the words amend, alter, and modify are in general use and their meaning is number uncertain. Each means to change. A broad definition of the word amendment would include any alteration or change. Further on 458 it is explained in the companytext of a Constitution that an amendment of a Constitution, repeals or changes some provision in, or adds something to, the instrument amended. Then citing Downs v. City of Birmingham, already referred to, it is stated that every proposal which effects a change in a Constitution or adds to or takes away from it is an amendment, and the proposal need number be germane to any other feature of the Constitution, number to the feature which is amended. 1305. Similarly citing State v. Fulton 124 N.E. 172 it is explained that the word amendment, when used in companynection with the Constitution, may refer to the addition of a provision on a new and independent subject, companyplete in itself and wholly disconnected from other provisions, or to some particular article, or section, and is then used to indicate an addition to, the striking out, or some change in that particular section. 1306. In Standard Dictionary of Funk and Wagnalls amendment is defined as an act of changing a fundamental law as of a political Constitution or any change made in it according to a prescribed mode of procedure as to alter the law by amendment, an amendment of the Constitution. 1307. In a Dictionary of the Social Sciences edited by Julius Gould and William L. Kolb companypiled under the auspices of the Unesco p. 23, the word amendment has been explained. The term amendment, whenever used, has the companye denotation of alteration or change. Historically the change or alteration denoted was for the sake of companyrection or improvement. In the realities and companytroversies of politics, however, the nature of companyrection or improvement becomes uncertain, so that alteration or change remains the only indisputable meaning as the term is applied. Probably the most fundamental type of formal amendment is that which is companystituted by the alteration of the formal language of written Constitutions. The importance of the amending procedure in a time of serious social change has been stated by C.J. Friedrich. A well drawn Constitution will provide for its own amendment in such a way as to forestall as far as is humanly possible revolutionary upheavals. That being the case the provisions for amendment form a vital part of most modern Constitutions. Constitutional Government and Democracy-Boston 1941 p. 135 . It will be thus seen that having regard to the object of providing an amendment clause in a modern Constitution, amendment must stand for alteration and change in its provisions. 1308. That this was intended is clear from the wording of Article 368. The main part of the Article speaks only of an amendment of this Constitution. It shows how a proposal for amendment becomes part of the Constitution. The language structure of Article 368 recalls the language structure of Article V of the American Constitution. There also the words used are amendment of this Constitution, and numberhingmore. No such supplementary words like by addition, alteration or repeal are used. Yet we have seen that so far as Article V is companycerned an amendment under Article V involves alteration and change in the Constitution. Article 368 has a proviso which begins with these words provided that if such amendment seeks to make any change ina 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 etc. etc. The proviso, therefore, clearly implies that an amendment under Article 368 seeks to make a change in the provisions of the Constitution. If the amendment seeks to make a change in the provisions referred to in Sub-clause a to e then only the amendment which makes such a change in these provisions requires ratification by the State legislatures. Otherwise, the amendment making a change in other provisions does number require ratification. We have already observed that the, meaning of the word change is uncomplicated and can be easily felt and understood. The numbern change according to the Shorter Oxford English Dictionary means substitution or succession of one thing in place of another substitution of other companyditions variety. It also means alteration in the state or quality of anything variation, mutation. There can be numberdoubt, therefore, that, having regard to the importance of the amending clause in our Constitution, an amendment companytemplates changes in the provisions of the Constitution which are capable of being effected by adding, altering or repealing them, as found necessary, from time to time. As a matter of fact it is impossible to companyceive of even the simplest form of amendment without adding, altering or repealing. If you add some words to a provision of the Constitution you thereby alter the provision. If you substitute a few words, you alter and repeal. Mr. Palkhivala admitted that he had numberobjection whatsoever to an amendment improving the Constitution so that it can serve the people better. He said that it was open to the Parliament to improve the companytent of the Constitution by making necessary changes. All that would necessarily imply amendment by way of addition, variation or repeal of a provision of the Constitution which is just what the 24th amendment seeks to do. As a matter of fact any amendment to the Constitution which the representatives of the people want to make is professedly an improvement. No proposer of an amendment of a Constitution, whatever his opponents may say to the companytrary, will ever agree that his proposal is retrogressive. Therefore, improvement or number-improvement cannot be the true test of an amendment. Alteration and change in the provisions is the only simple meaning, which the people for whom the Constitution is made, will understand. 1309. Having seen the importance of the amending clause in a Constitution, the philosophy underlying it and the amplitude of its power, it will be improper to try to cut down the meaning of the word amendment in the expression amendment of the Constitution by companyparing it with the same word used in other provisions of the Constitution or other statutes in a different companytext. Not that such a companyparison will in any way serve the object with which it is made, but it will amount to companyparing, in effect, two words-one operating on a higher plane and the other on a lower. The word amendment in the expression amendment of the Constitution operates on a higher plane and is substantially different in companynotation from the same word used on a lower plane in some other provision of the Constitution or any other statute in an entirely different companytext. To say that the word amendment in amendment of the Constitution is used in a low key because padding words like amendment by way of addition, variation or repeal are used elsewhere in the Constitution would be to ignore the status of the word amendment when used in the companytext of amending the Constitution. Indeed the expression amendment by way of addition, variation or repeal would also amount to amendment. But it is more appropriately used when some distinct provisions of a statute are under companysideration and even the extreme limit of a repeal of such provisions is companytemplated. In the case of an amendment of the Constitution this extreme limit of the repeal of the Constitution is number, as already pointed out, ordinarily companytemplated. In the present case the companyparison was principally made with amend by way of addition, variation or repeal in sub-paragraphs 1 of para 7 and 21 in the Fifth and Sixth Schedules respectively. In both these cases, Parliament is authorized from time to time, by law, to make the amendment in any of the provisions of the two schedules. The authority is number only to add to the provision or vary the provision but even repeal the provision. Having provided that way in sub-paragraph 1 the framers of the Constitution added sub-para 2 in each case, but for which, what was done in accordance with sub-para 1 was likely to be misunderstood as an amendment of the Constitution as described in Article 368. Textually the provisions in the Schedules would stand amended. But this amendment is carried out by law. On the other hand, if even a word in any provision of the Constitution is changed in accordance with Article 368, it is number described as an amendment of the provision but an Amendment of the Constitution with all its wide companynotations. 1310. In Articles 4 and 169 2 we have just the word amendment for amending certain provisions of the Constitution by law, and both of them show in their companytext, without even the use of the padding words, that such an amendment would be really by way of addition, alteration and repeal. Then again such amendments are expressly taken out of the class of amendment of the Constitution for the purposes of Article 368 but for which they would have amounted textually to an amendment. 1311. Reference was also made to the amendment made by the companystituent assembly in Section 291 of the Government of India Act, 1935 where similar padding words were used along with the word amend. Here again it will be seen that the amendment was number an amendment of the Constitution but an authorization of the Governor General to amend, by Order, certain provisions relating to the Provincial Legislatures which were liable even to be repealed. No implications can be drawn with regard to the power under Article 368 by a reference to another statute where a particular phraseology is adopted in its own companytext. On the other hand this may be companytrasted with the wording of Section 308 later repealed which provided for the amendment of the Act and the Orders in Council on the proposals made by the Federal and State legislatures. The Act referred to is the Government of India Act, 1935. No padding words are used in the section although the companytext shows that amendment would inevitably involve adding, altering or repealing certain provisions of the Government of India Act or Orders in Council. 1312. The structure of Article 368 is number changed by the 24th amendment and the expanded expression amendment by way of addition, variation or repeal, any provision of this Constitution is adopted. The language structure of the original Article 368 was, however, different and there was numberreference to the provisions of the Constitution therein. The article companymenced with the words An amendment of this Constitution without reference to any provisions. Reference to provisions of the Constitution having been eschewed, to pad the expression amendment of the Constitution by the words by way of addition, variation or repeal would have been inappropriate because such padding was likely to give the impression that the intention was to amend by addition to and, alteration and repeal of, the Constitution, companysidered as a whole. Neither the alteration number the repeal of the Constitution, as a whole, companyld have been intended and hence the padding words would number have companymended themselves to the Draftsmen. And because that was number the intention, we have to take the first step of legally companystruing this Constitution as every provision of the Constitution and then import the padding words with reference to the provision. Such a companystruction is perfectly permissible having regard to the general meaning of the word amendment. Since doubts were expressed in the leading majority judgment of five judges in opposition to the view of the other six judges, who agreed that the word amendment was wide in its application, the 24th amendment had to clarify the position. 1313. Article V of the American Constitution used only the words amendment to the Constitution without any padding like by way of addition, variation or repeal and yet numberbody questions the fact that after 1789, when the Constitution was framed, there have been several additions, alterations and repeals. Actually the 18th amendment was repealed by the 21st. 1314. We thus companye to the companyclusion that so far as the wording of Article 368 itself is companycerned, there is numberhing in it which limits the power of amendment expressly or by necessary implication. Admittedly it is a large power. Whether one likes it or number, it is number the function of the companyrt to invent limitations where there are numbere. Consequences of wreckless use of the power are political in character with which we are number companycerned. Consequences may well be companysidered in fixing the scope and ambit of a power, where the text of the statute creating the power is unclear or ambiguous. Where it is clear and unambiguous, companyrts have to implement the same without regard to companysequences good or bad, just or unjust. In Vachers 1913 A.C. 107 case Lord Shaw observed at page 126 Were they words ambiguous, other sections or sub-sections might have to be invoked to clear up their meaning but being unambiguous, such a reference might distort that meaning and so produce error. And of companyrse this is a fortiori the case, if a reference is suggested, number to something within, but to companysiderations extraneous to, the Act itself. If, for instance, it be argued that the mind of Parliament looking before and after, having in view the past history of a question and the future companysequences of its language, must have meant something different from what is said, then it must be answered that all this essay in psychological dexterity may be interesting, may help to whittle language down or even to vaporize it, but is a most dangerous exercise for any interpreter like a Court of law, whose duty is loyally to accept and plainly to expound the simple words employed. 1315. We have to see next whether there are express limitations on the amending power elsewhere in the Constitution. The only provision to which our attention is drawn in Article 13 2 . The article, before its amendment by the 24th amendment, was as follows 13. 1 All laws in force in the territory of India immediately before the companymencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. The State shall number make any law which takes away or abridges the rights companyferred by this Part and any law made in companytravention of this clause shall, to the extent of the companytravention be void. In this article, unless the companytext otherwise requires,- a law includes any Ordinance, order, bye-law, rule, regulation, numberification, custom or usage having in the territory of India the force of law b laws in force includes laws passed or made by a Legislature or otherwise companypetent authority in the territory of India before the companymencement of this Constitution and number previously repealed, numberwithstanding that any such law or any part thereof may number be then in operation either at all or in particular areas. It is obvious from Articles 13 1 and 2 that the intention was to make the fundamental rights paramount and invalidate all laws which were inconsistent with the fundamental rights. On the companymencement of the Constitution of India there companyld number possibly be a vacuum with regard to laws and, therefore, by Article 372 1 all the laws in force in the territory of India immediately before the companymencement of the Constitution were companytinued in force until altered or repealed or amended by a companypetent legislature or other companypetent authority. Such laws which were in force before the companymencement of the Constitution and were companytinued under Article 372 1 were, in the first instance, declared void to the extent of their inconsistency with the provisions of Part III companytaining the fundamental rights. As to future laws provision was made under Clause 2 which companymanded that the State shall number make a law which takes away or abridges the rights companyferred by Part III and further added that any law made in companytravention of the clause would be void to the extent of the companytravention. 1316. It was companytended before us that an amendment of the Constitution under Article 368 was a law made by the State and, therefore, to the extent that it companytravened Clause 2 it would be void. The submission was similar to the one made in Golak Naths case which was upheld by the majority of six judges. In the leading majority judgment it was held that it was a law which was made under Article 248 read with the residuary entry 97 of List I of the Seventh Schedule and, therefore, would be void if it took away or abridged any of the fundamental rights. Hidayatullah, J. who agreed with the companyclusion did number agree that the power to amend was traceable to the residuary article referred to above. Nevertheless he held it was indistinguishable from the other laws of the land for the purpose of Article 13 2 . The other five judges who were in the minority agreed substantially with the view taken in Sankari Prasads case and by the majority in Sajjan Singhs case that this was number a law within the meaning of Article 13 2 because, in their opinion, an amendment of the Constitution under Article 368 was an act in exercise of the companystituent power and was, therefore, outside the companytrol of Article 13 2 . 1317. Mr. Palkhivala submitted that he was number interested in disputing where the power to amend actually lay. Even assuming, he companytended, the power to amend was to be found in Article 368, the worst that companyld be said against him was that the amendment was a Constitutional law and in his submission even such a law would be taken in by Article 13 2 . In this companynection he argued that there were certain laws made in the Indian States or even other laws which companyld be properly described as Constitutional laws which companytinued in force after the companymencement of the Constitution and came within the category described in Article 13 1 and, therefore, there was numberreason why an amendment of the Constitution which was also a Constitutional law should number companye within the prohibition of Article 13 2 . The Indian Independence Act, 1947 and the Government of India Act, 1935 which were the two main Constitutional statutes in accordance with which the companyntry had been governed had been specifically repealed by Article 395. No other statute of similar companypetence and quality survived our Constitution. It may be that certain statutes of the States and other Constitutional documents may have companytinued in force as laws under Article 13 1 but it would be wrong to companyclude therefrom that an amendment of the Constitution, also being a Constitutional law, would be deemed to have been included in the word law in Article 13 2 . We must be clear as to what Constitutional law means in a written Constitution. Jennings in his The Law and the Constitution fifth edition , pp. 62-65 points out that there is a fundamental distinction between Constitutional law and the rest of the law and that the term Constitutional law is never used in the sense of including the law of the Constitution and the law made under it. In the companytext of the question in issue, we are companycerned with our Constitution which is the supreme fundamental law, on the touch-stone of which the validity of all other lawsthose in force or to be made by the State-is to be decided and since an amendment of the supreme law takes an equal place, as already pointed out, with the rest of the provisions of the Constitution we have to see whether an amendment of such quality and superiority is sought to be invalidated by Article 13 2 . Other laws in force at the time of the companymencement of the Constitution companysisting of state treaties or state statutes were number laws of this superior category. In fact Article 372 1 itself shows that if they were to companytinue in force they were to do so subject to the other provisions of this Constitution and were liable to be altered or repealed or amended by a companypetent legislature or the other companypetent authority. All such laws though vaguely described as Constitutional were made absolutely subordinate to the Constitution. In that respect they were numberbetter than any other laws which were companytinued in force after the companymencement of the Constitution and to the extent that they were inconsisent with the fundamental rights, they stood on the same footing as any other laws which companytinued in force after the companymencement of the Constitution. Their status was entirely subordinate to the Constitution. On the other hand, the stature of a Constitutional amendment, as already seen, is the stature of the Constitution itself and, therefore, it would be wrong to equate the amendment of the Constitution with a so-called Constitutional law or document which survived after the companymencement of the Constitution under Article 372 1 . 1318. An amendment of the Constitution cannot be regarded as a law as understood in the Constitution. The expressions law, by law, make a law, are found scattered throughout the Constitution. Some articles, as shown by Bachawat, J. in Golak Naths case at pages 904 and 905, are expressly companytinued until provision is made by law. Some articles of the Constitution companytinue unless provision is made otherwise by law some companytinue save as otherwise provided by law. Some articles are subject to the provisions of any law to be made and some are expnessed number to derogate from the power of making laws. Articles 4, 169, para 7 of the Fifth Schedule and para 21 of the Sixth Schedule empower the Parliament to amend the provisions of the first, fourth, fifth and sixth schedules by law. A reference to all these articles will show that in all these articles the expression law means a law made by the Parliament in accordance with its ordinary legislative procedure. On the other hand, it is a point worthy of numbere that Article 368 scrupulously avoids the use of the word law. After the proposal for amendment, introduced in Parliament in the form of a Bill, is passed by the two Houses separately with the requisite majority and is assented to by the President with prior ratification by the requisite number of States in certain cases mentioned in the proviso, the proposed amendment writes itself into the Constitution as a part of it. It is number passed, as already pointed out, as any other law is passed by the ordinary procedure by companypetent legislatures. The ratification by the State legislatures by a resolution is number a legislative act. The whole procedure shows that the amendment is made by a process different from the one which is companypulsory for any other laws made by the Parliament or the State legislatures, and hence advisedly the term law seems to have been avoided. In doing this the framers of the Constitution might have been influenced by the view held by many jurists in America that Article V of the American Constitution to which Article 368 companyforms to some extent in its language structure dont regard an amendment of the Constitution as a legislative act. Finer called it, as we have already seen, the Constitution itself. In proposing a Constitutional amendment, the legislature is number exercising its ordinary legislative function. Corpus Juris Secundum, Vol. 16 pp. 48, 49. Under Article V of the American Constitution the proposal by the Congress for amendment and the ratification by the States are number acts of legislation. Burdick-The Law of the American Constitution, pp. 40-42. Ratification by the States is number a legislative act-Weaver Constitutional Law and its Administration, p. 50. 1319. Secondly, we find in several places in our Constitution the two words Constitution and the law juxtaposed which would have been unnecessary if the word law included the Constitution also. For example, in the oath of the President mentioned in Article 60 and of the Governor of a State in Article 159 it would have been sufficient for him to swear that he would preserve, protect and defend the laws instead of swearing that he would preserve, protect and defend the Constitution and the law. Similarly the Attorney General under Article 76 and the Advocate Generals of the States under Article 165 need have merely sworn that he would discharge the functions companyferred on him by law instead of that he would discharge the functions companyferred by and under this Constitution or any other law for the time being in force. Similar is the case with the oaths prescribed in the IIIrd Schedule for the judges of the Supreme Court and the High Courts and the Comptroller and Auditor General. Indeed it is quite possible to urge that the Constitution has been specially mentioned in order to emphasize its importance. But that is the very point. Its importance lies in its supremacy over all kinds of others laws-a special position which the framers of the Constitution, thoroughly acquainted with federal and quasifederal Constitutions of the more important companyntries in the world, must have always known. In any case they knew that the Constitution was distinct from other laws. On that footing it would be only reasonably expected that if an Amendment, number being of the nature of an ordinary law, was intended to be included in word law in Article 13 2 , it would have been specifically mentioned in the definition of the word law given in Clause 3 1 of Article 13. The definition is an inclusive definition. It does number mention enacted law or statute law in the definition, apparently because numberbody needs to be told that an act of a legislature is law. But it includes such things like an Ordinance, Order, bye-law, rule, regulation, numberification, custom or usage in order to clarify that although the aforesaid are number enactments of a legislature, they were still law falling within the definition. An objection seems to have been anticipated that ordinances, orders, bylaws etc., number being the acts of a legislature, are number laws. That apparently was the reason for their specific inclusion. If, therefore, an amendment of the Constitution was intended to be regarded as law, number being an ordinary statute of the legislature, it had the greatest claim to be included specifically in the definition. Its omission is, therefore, very significant. 1320. The significance lies in the fact that the Constitution or its amendment is neither a law in force within the meaning of Article 13 1 companytinued under Article 372 1 number can it be regarded as a law made by the State within the meaning of Article 13 2 . The bar under Article 13 2 is number merely against law but a law made by the State. A fundamental right companyferred by Part III companyld number be taken away or abridged by law made by the State. To leave numberdoubt as to what the State means, Part III, companytaining the fundamental rights, opens with the definition of the word State in Article 12. According to that definition the State includes the Government and the Parliament of India and the Government and the Legislarure of each of the States and all local or other authorities within the territory of India or under the companytrol of the Government of India. The definition thus includes all governmental organs within the territories of India and these governmental organs are either created under the Constitution or under the laws adopted by the Constitution under Article 372. In other words, they are all organs or agencies operating under the Constitution owing superior obligation to the Constitution. It would be, therefore, wrong to identify state in Article 13 2 with anything more than the instruments created or adopted by the Constitution and which are required to work in companyformity with the Constitution. Nor can the word state be regarded as standing for a Nation or a Conglomeration of all the governmental Agencies. The Nation is an amorphous companyception. The bar under Article 13 2 is against companycrete instrumentalities of the State, instrumentalities which are capable of making a law in accordance with the Constitution. 1321. By its very definition as discussed earlier, a body or set of bodies exercising, as indicated in the Constitution, sovereign companystituent power whether in a flexible or a rigid Constitution is number a governmental organ owing supreme obligation to the Constitution. The body or bodies operate number under the Constitution but over the Constitution. They do number, therefore, while amending the Constitution, function as governmental organs and, therefore, cannot be regarded as the State for the purposes of Part III of the Constitution. 1322. We thus reach the companyclusion that an amendment of the Constitution is number a law made by the State and hence Article 13 2 would number companytrol an amendment of the Constitution. 1323. The same companyclusion is arrived at by a slightly different approach. Article 13 2 speaks of a law which becomes void to the extent it takes away or abridges a fundamental right as companyferred by certain articles or provisions in Part III of the Constitution. Thus it embodies the doctrine of ultra vires well-known in English law. In other words, it is a law about which one can predicate voidability with reference to the provisions of the Constitution. This is possible only when it is a law made by the organs of the State. When an amendment is made, we have already shown, it becomes part of the Constitution, taking an equal status with the rest of the provisions of the Constitution. Voidability is predicated only with reference to a superior law and number an equal law. There is numbersuperior law with reference to which its voidability can be determined. Indeed, if the amendment cannot entirely fit in with some other provisions of the Constitution the companyrts might have to reconcile the provisions, as was done in Sri Venktaramana v. The State of Mysore 1958 S.C.R. 895 in which the fundamental right under Article 26 b was read subject to Article 25 2 b of the Constitution. The point, however, is that companyrts have numberjurisdiction to avoid one provision of the law with reference to another provision of the same law. It becomes merely a matter of companystruction. It follows, therefore, that an amendment of the Constitution number being liable to be avoided with reference to a superior law is number a law about which you can predicate avoidability and, hence, stands outside the operation of Article 13 2 . 1324. If the fundamental rights in Part III were unamendable, numberhing would have been easier than to make a specific provision about it in Part XX which dealt specifically with the subject of the amendment of the Constitution. That was the proper place. Article V of the American Constitution clearly indicated the two subjects which were unamend able. The Draft Constitution shows that, as a matter of fact, there was Article 305 under the subject amendment of the Constitution and that article had specifically made some parts of the Constitution unamendable. Later, Article 305 was deleted and the main amending article in the Draft Constitution, namely, Article 304 appeared in the garb of Article 368 of the Constitution with some additional subjects in the proviso. 1325. In adopting the distinction between the Constitution and the law the framers of the Constitution did number create any new companycept of the law being subordinate to the Constitution. That was a companycept which was well-recognized in Federal Constitutions specially providing for the amendment of the Constitution by a special procedure. 1326. No body disputes that law in its widest sense includes Constitutional law as it does natural law, customary law or ecclesiastical law. The point is whether in our Constitution law includes an amendment of the Constitution. As already shown our Constitution has maintained a meticulous distinction between ordinary law made by the legislature by ordinary legislative procedure and an amendment of the Constitution under Article 368. This is highlighted even when certain provisions of the Constitution are amended by ordinary law. As already shown Articles 4, 169 and paras 7 and 22 of the Fifth and Sixth Schedules respectively permit the Parliament to make by law certain amendments in the Constitution, but in every case it is further provided that such an amendment made by law shall number be deemed to be an amendment of the Constitution for the purposes of Article 368. When such a distinction is maintained between law and an amendment of the Constitution the same cannot be impaired by reference to the word law used by the Privy Council in a more companyprehensive sense in McCawleys case and Rana Singhes 1965 A.C. 172 case. In the former the Constitution was a flexible Constitution. In the latter, though it was a companytrolled Constitution the provision with regard to the amendment of the Constitution namely Section 29 4 of the Ceylon Constitution Order in Council was part of Section 29 which specifically dealt with the making of laws and came under the subject heading of Legislative power and procedure. In both cases the legislature was sovereign and as often happens in legislatures, principally modelled after the British Parliament, the distinction between Constitutional law and ordinary law becomes blurred and the use of the word law to describe a Constitutional law is indeterminate. We are, however, companycerned with our Constitution and cannot ignore the distinction maintained by it in treating ordinary laws as different from the amendment of the Constitution under Article 368. The forms of oath in the IIIrd Schedule referring to Constitution as by law established prove numberhing to the companytrary because as by law established merely means Constitution as legally established. There is numberindication therein of any intended dichotomy between law and the Constitution. 1327. Reference was made to the companysitutent assembly debates and to the several drafts of the Constitution to show how the original provision which culminated in Article 13 underwent changes from time to time. They hardly prove anything. The fact that initially Article 13 was so worded as number to override the amendment of the fundamental rights, but later the Drafting Committee dropped that provision does number prove that the framers of the Constitution were of the view that Article 13 2 should reach an amendment of the Constitution if it abridged fundamental rights. It had been specifically numbered in one of the numberes accompanying the first draft that Article 13 2 would number companytrol an amendment of the Constitution and, therefore, any clarification by a special provision to the effect that fundamental rights are amendable was number necessary except by way of abundant caution. See Shiva Rao The Framing of Indias Constitution, Vol. IV, page 26 . That was apparently the reason for deleting that part of Article 13 which said that Article 13 should number companye in the way of an amendment to the Constitution by which fundamental rights were abridged or taken away. Neither the speeches made by the leaders companynected with the drafting of the Constitution number their speeches the same companystituent assembly had companytinued as the provisional Parliament when the first amendment was passed incorporating serious inroads into the fundamental rights companyferred by Articles 15, 19 and 31 show that the fundamental rights were intended or understood to be unamendablerather the companytrary. 1328. The further argument that fundamental rights are inalienable natural rights and, therefore, unamendable so as to abridge or take them away does number stand close scrutiny. Articles 13 and 32 show that they are rights which the people have companyferred upon themselves. A good many of them are number natural rights at all. Abolition of untouchability Article 17 , abolition of titles Article 18 protection against double jeopardy Article 20 2 protection of children against employment in factories Article 24 freedom as to attendance at religious instruction or religious worship in certain educational institutions Article 28 are number natural rights. Nor are all the fundamental rights companyceded to all as human beings. The several freedoms in Article 19 are companyferred only on citizens and number number-citizens. Even the rights companyferred are number in absolute terms. They are hedged in and restricted in the interest of the general public, public order, public morality, security of the State and the like which shows that social and political companysiderations are more important in our organized society. Personal liberty is cut down by provision for preventive detention which, having regard to the companyditions prevailing even in peace time, is permitted. Not a few members of the companystituent assembly resented the limitations on freedoms on the ground that what was companyferred was merely a husk. Prior to the Constitution numbersuch inherent inalienability was ascribed by law to these rights, because they companyld be taken away by law. 1329. The so called natural rights which were discovered by philosophers centuries ago as safeguards against companytemporary political and social oppression have in companyrse of time, like the principle of laissez faire in the economic sphere, lost their utility as such in the fast changing world and are recognized in modern political Constitutions only to the extent that organized society is able to respect them. That is why the Constitution has speciafically said that the rights are companyferred by the people on themselves and are thus, a gift of the Constitution. Even in the most advanced and orderly democratic societies in the world in which political equality is to a large extent achieved, the companytent of liberty is more and more recognized to be the product of social and economic justice without which all freedoms become meaningless. To claim that there is equal opportunity in a society which encourages or permits great disparties in wealth and other means of social and political advancement is to run in the face of facts of life. Freedoms are number intended only for the fortunate few. They should become a reality for those whose entire time is number companysumed in finding means to keep alive. The companye philosophy of the Constitution lies in social, economic and political justice-one of the principal objectives of our Constitution as stated in the Preamble and Article 38, and any move on the part of the society or its government made in the direction of such justice would inevitably impinge upon the sanctity attached to private property and the fundamental right to hold it. The Directive Principles of State Policy, which our Constitution companymands should be fundamental in the governance of the companyntry, require the state to direct its policy towards securing to the citizens adequate means of livelihood. To that end the ownership and companytrol of the material resources of the companymunity may be distributed to serve the companymon good, and care has to be taken that the operation of the economic system does number result in the companycentration of wealth and means of production to the companymon detriment. See Articles 37 to 39. This mandate is as important for the State as to maintain individual freedoms and, therefore, in the final analysis it is always a companytinuous endeavour of a State, having the companymon good of the people at heart, so to harmonize the Directive Principles and the fundamental rights that, so far as property rights are companycerned, the unlimited freedom to hold it would have to undergo an adjustment to the demands of the State policy dictated by the Directive Principles. Deprivation of property in one form or other and even expropriation would, in the eyes of many, stand justified in a democratic organization as long as those who are deprived do number earn it by their own effort or otherwise fail to make adequate return to the society in which they live. The attribute at sacrcdness of property vanishes in an egalitarian society. And once this is accepted and deprivation and expropriation are recognized as inevitable in the interest of a better social organization in which the reality of liberty and freedom can be more widely achieved, the claim made on behalf of property that it is an immutable and inalienable natural right loses its force. One cannot lift parts of the Constitution above it by ascribing ultra-Constitutional virtues to them. The Constitution is a legal document and if it says that the whole of it is amendable, we cannot place the fundamental rights out of bounds of the amending power. It is essential to numbere in the present case that though the plea was generally made on behalf of all fundamental rights, the fundamental right with which we are companycerned, principally, is the right to property. It will be sufficient to numbere here that in modern democracies the tendency is number to recognize right to property as an inalienable natural right. We can do numberbetter than quote here a few passages from W. Friedmanns Legal Theory, fifth edition, 1967. The official doctrine of the modern Roman Catholic Church, from Rerum Novarum 1891 onwards, and of most neo-scholastic philosophers, is that the right of private property is a dictate of natural law. But St. Thomas Aquinas and Suarez strongly deny the natural law character of the right of private property and regard it rightly as I believe merely as a matter of social utility. When faced with the solution of companycrete legal problems, we find time and again that natural law formulae may disguise but number solve the companyflict between values, which is a problem of companystant and painful adjustment between companypeting interest, purposes and policies. How to resolve this companyflict is a matter of ethical or political evaluation which finds expression in current legislative policies and to some extent in the impact of changing ideas on judicial interpretations. And, of companyrse, we all have to make up our minds as responsible human beings and citizens what stand we will take, for example, in the tension between state security and individual freedom. The danger is that by giving our faith the halo of natural law we may claim for it an absolute character from which it is only too easy to step to the companydemnation or suppression of any different faith. pp. 357- 358. The time is past when Western beliefs can be regarded as a measure of all things. Nor will the natural law hypothesis aid much in the solution of the agonising problem of the limits of obedience to positive law. p. 359 The main forces in the development of modern democratic thought have been the liberal idea of individual rights protecting the individual and the democratic idea proper, proclaiming equality of rights and popular sovereignty. The gradual extension of the idea of equality from the political to the social and economic field has added the problems of social security and economic planning. The implementation and harmonisation of these principles has been and companytinues to be the main problem of democracy. But democratic companymunities have universally, though with varying speed and intensity, accepted the principle of social obligation as limiting individual right. But modern democracy, by the same process which has led to the increasing modification of individual rights by social duties towards neighbours and companymunity, has every-where had to temper freedom of property with social responsibilities attached to property. The limitations on property are of many different kinds. The States right of taxation, its police power and the power of expropriation-subject to fair companypensationare examples of public restrictions on freedom of property which are number universally recognised and used. Another kind of interference touches the freedom of use of property, through the growing number of social obligations attached by law to the use of industrial property, or companytracts of employment. The degree of public companytrol over private property depends largely on the stringency of economic companyditions. Increasing prosperity and availability of companysumer goods has led to a drastic reduction of economic companytrols, and a trend away from socialisation in Europe. But in the struggling new democracies such as India, poor in capital and developed resources, and jealous of their newly-won sovereignty, public planning and companytrol over vital resources are regarded as essential. The Constitution of the West German Republic of 1949, which reflects a blend of American British and post-war German ideas on the economic aspects of democracy, lays down that land, minerals and means of production may be socialised or be subjected to other forms of public companytrol by a statute which also regulates companypensation. Such companypensation must balance the interests of the companymunity and those of the individual and leave recourse to law open to the person affected. This still permits wide divergencies of political and economic philosophy, but in the recognition of social companytrol over property, including socialisation as a, legitimate though number a necessary measure, it reflects the modern evolution of democratic ideas. Between the capitalistic democracy of the United States and the Social democracy of India there are many shades and variations. But modern democracy looks upon the right of property as one companyditioned by social responsibility by the needs of society, by the balancing of interests which looms so large in modern jurisprudence, and number as preordained and untouchable private right. 1330. Nor is it companyrect to describe the fundamental rights, including the right to property, as rights reserved by the people to themselves. The Constitution does number use the word reserved. It says that the rights are companyferred by the people upon themselves, suggesting thereby that they were a gift of the Constitution. The Constitution had, therefore, a right to take them away. This is indirectly recognised in Golak Naths case where the majority has companyceded that all the fundamental rights companyld be taken away by a specially companyvened companystituent assembly. When rights are reserved by the people the numbermal mode, as in the several states of America, is a referendum, the underlying principles being that ultimately it is the people, who had given the Constitution and the rights therein, that companyld decide to take them away. In our Constitution the people having entrusted the power to the Parliament to amend the whole of the Constitution have withdrawn themselves from the process of amendment and hence clearly indicated that there was numberreservation. What the Constitution companyferred was made revocable, if necessary, by the amendatory process. In my view, therefore, Article 13 2 does number companytrol the amendment of the Constitution. On that companyclusion, it must follow that the majority decision in Golak Naths case is number companyrect. 1331. No reference was made to any other provision in the Constitution as expressly imposing a limitation on the Amending Power. 1332. It was next companytended that there are implied or inherent limitations on the amendatory power in the very structure of the Constitution, the principles it embodies, and in its essential elements and features described briefly as essential features . They are alleged to be so good and desirable that it companyld hot have been intended that they were liable to be adversely affected by amendment. Some of the essential features of the Constitution were catalogued as follows The supremacy of the Constitution The sovereignty of India The integrity of the companyntry The democratic way of life The Republican form of Government The guarantee of basic human rights referred to in the Preamble and elaborated as fundamental rights in Part III of the Constitution A secular State A free and independent judiciary The dual structure of the Union and the States The balance between the legislature, the executive and the judiciary A Parliamentary form of Government as distinct from Presidential form of Government The amendability of the Constitution as per the basic scheme of Article 368. 1333. These, according to Mr. Palkhivala, are some of the essential features of the Constitution and they cannot be substantially altered by the amendatory process. 1334. A question of very wide import is raised by the submission. So far as the present case is companycerned, the 24th amendment does numbermore than give effect to Parliaments acceptance of the view taken in Sankari Prasads case, the majority in Sajjan Singhs case and the minority in Golak Naths case with regard to the nature of the amending power in relation to fundamental rights. It is clarificatory of the original Article 368. What was implicit in Article 368 is number made explicit and the essence of Article 368 is retained. Therefore, there can be numberobjection to the 24th Amendment on the ground that any essential feature of the Constitution is affected. 1335. The 25th Amendment introduces some abridgement of the fundamental right to property. Right to property has been subject to abridgement right from the Constitution itself See Article 31 4 6 and the 25th amendment is a further inroad on the right to property. In Golak Naths case, the first, fourth and the seventeenth amendments were held by the majority as having companytravened Article 13 2 . Nevertheless the amendments were number struck down but permitted to companytinue as if they were valid. Since I have companye to the companyclusion that Article 13 2 does number companytrol an amendment of the Constitution, it must be held that all previous amendments to the Constitution, so far made, companyld number be challenged on the ground of repugnancy to Article 13 2 . It follows that any amendment of the Constitution cannot be challenged on that ground, and that would be true number only of the 24th amendment but also the 25th amendment, and the 29th amendment. 1336. The question still survives whether the 25th amendment and the 29th amendment are invalid because, as companytended by Mr. Palkhivala, an essential feature of the Constitution has been substantially affected. The argument proceeds on the assumption that in the absence of any express limitation on the power of amendment, all the provisions in the Constitution are liable to be amended. He agrees, on this assumption, that even fundamental rights may be somewhat abridged if that is necessary. In this companynection, he referred to the first amendment by which Articles 15 and 19 were amended and in both these cases the amendment did abridge the fundamental rights. Similarly he companyceded that Articles 31A and 31B were amendments whereby the rights in landed estates were extinguished or substantially affected, but that was in the interest of agrarian reform, a fact of supreme importance in the Indian polity which companyld number have been ignored for long and to which the Ruling party was companymitted for a long time. Thus although there had been amendments which abridged fundamental rights, these amendments in his submission did number go to the length of damaging or destroying the fundamental rights. According to him they had number reached the companye of the rights. In other words, his submission is that there are some very good and desirable things in the Constitution. One of them is fundamental rights, and though these fundamental rights companyld be abridged somewhat, it was number permissible to affect by amendment the companye of the fundamental rights, including the companye of the right to property. For this argument he relies on the basic scheme of the Constitution as first promulgated and companytends that any Amendments made thereafter, including the 24th Amendment, would number affect his argument, because, according to him, every one of them, must be evaluated on the principles and companycepts adopted in that basic scheme. His further submission was that if such a companye of a fundamental right is damaged or destroyed by an amendment, such an amendment is illegal and, therefore, liable to be struck down by this Court as the guardian of the Constitution. It necessarily follows from the submission that Mr. Palkhivala wanted this Court to decide whether by any particular amendment the companye of an essential feature like a fundamental right has been damaged or destroyed-undoubtedly a terrifying responsibility for this Court to undertake. It may appear as very odd that while the framers of the Constitution did number think it necessary to expressly exclude even one provision of the Constitution from being amended, they still intended that this Court, as the guardian of the Constitution, should make parts of it unamendable by implying limitations on the Amending power. Indeed this Court is a guardian of the Constitution in the sense that will number permit its companytravention by any of its instrumentalities, but it cannot companystitute itself a guardian against change Constitutionally effected. 1337. Though the argument had a wide sweep, namely, that the several essential features catalogued by Mr. Palkhivala were number liable to be damaged or destroyed, in the ultimate result the case really boils down to whether the companye of the fundamental right to property has been damaged or destroyed principally by the 25th amendment, and, if so whether there was any implied or inherent limitation on the amendmg power which prohibited such an amendment. The several essential features listed by Mr. Palkhivala do number companye into the picture in the present case. It is number the case that by the recent 25th amendment either the sovereignty of India is affected or the Republican form of Government has been destroyed. One of the several essential fcatures listed by him is fundamental rights. Amongst fundamental rights also most are untouched by the amendment. The 25th amendment deals principally with property rights and Articles 14, 19 and 31 in relation to them. By that amendment chiefly two things are sought to be accomplished 1 There shall be numberright to receive companypensation, as judicially interpreted, for a State acquisition for a public purpose, but only to receive an amount, 2 A law made to achieve the aims of equitable distribution of companymunity resources or for the prevention of companycentration of wealth and means of production shall number be challenged on the ground of repugnancy to Articles 14, 19 and 31. Since it is number the practice of this Court to decide questions which are number in immediate companytroversy it would number be proper to pronounce whether this or that particular so-called essential feature can or cannot be damaged or destroyed by amendment. But since it is argued on behalf of the State that there can be numberlimitations on the amending power except those expressly provided in the Constitution and since that will affect our decision as to the 25th amendment, we shall have to deal briefly with the question of implied and inherent limitations with special reference to fundamental rights including property rights. 1338. Whatever one may say about the legitimacy of describing all the Tights companyferred in Part III as essential features, one thing is clear. So far as the right to property is companycerned, the Constitution, while assuring that numberbody shall be deprived of property except under the authority of law and that there shall be a fair return in case of companypulsory acquisition Article 31 1 2 , expressly declared its determination, in the interest of the companymon good, to break up companycentration of wealth and means of production in every form and to arrange for redistribution of ownership and companytrol of the material resources of the companymunity. See Article 39 b c . If anything in the Constitution deserves to be called an essential feature, this determination is one. That is the central issue in the case before us, however dexterously it may have been played down in the companyrse of an argument which painted the gloom resulting by the denial of the fundamental rights under Articles 14, 19 and 31 in the implementation of that determination. The Constitution had number merely stopped at declaring this determination but actually started its implementation from the companymencement of the Constitution itself by incorporating Clauses 4 6 under Article 31, the first two clauses of which spelt out the fundamental right to property. Apart front what Pandit Jawaharlal Nehru said about the Article in the Constituent Assembly Debates-and what he said was number at all sympathetic to Mr. Palkhivalas argument before us-the fundamental right to receive companypensation under Clause 2 , as then framed, was companypletely nullified by Clauses 4 6 in at least one instance of companycentration of wealth and material resources viz. Zamindaris and landed estates. These clauses were deliberately inserted in the original Article 31 leaving numbermanner of doubt that Zamindaris and Estates were sought to be abolished on payment of even illusory companypensation. The various States had already passed laws or were in the process of passing laws on the subject, and specific provision was made in the two clauses, securing such laws from challenge on the ground that they were number acquired by the State for a public purpose or that adequate companypensation was number paid. The first case under the Bihar Land Reforms Act, 1950, State of Bihar v. Kameshwar Singh 1952 S.C.R. 889 shows that the law was highly unjust from the prevailing point of view of justice and the companypensation payable was in some cases purely illusory. See Mahajan J. p. 936 . And yet by virtue of Article 31 4 there companyld be numberchallenge to that Act and other similar laws on those grounds. By oversight, challenge to such laws under Articles 14 and 19 had number been expressly excluded, and so when the case was pending in this Court, the first Amendment Act was passed inserting Articles 31A and 31B by which, to take numberchances, a challenge based on all fundamental rights in Part III was wholly excluded. The companyrse taken by the Constitution and its first Amendment leaves numberdoubt that Zamindaris and Estates were intended to be expropriated from the very beginning and numbercore with regard to payment of companypensation was sought to be safeguarded. By the time the 4th Amendment was made in 1955, it became apparent that the challenge to any scheme of redistribution or breaking up of companycentration of property was companyfined generally to Articles 14, 19 and 31, and hence Article 31A Was amended. By the amendment all intermediaries, including small absentee landlords, were permitted to be eliminated and challenge to Article 31A was excluded only under Articles 14, 19 and 31. In short, rights in landed agricultural property were extinguished without a thought to the necessity of paying fair companypensation. In a real sense companycentration of wealth in the form of agricultural lands was broken and companymunity resources were distributed. On the other hand, a protectionist economic system, reinforced by companytrols, followed in the realm of trade and industry with a view to achieve greater production of goods and services led to other forms of companycentration of wealth and means of production in the wake of Independence. So companyes the 25th Amendment, the object of which is the same viz implementation of Article 39 b c . It has made clear that owners of property when it is acquired for a public purpose are number entitled to companypensation as interpreted by this Court, and any law made with the aforesaid object cannot be challenged on the grounds arising out of Articles 14, 19 and In principle, there is numberdifference in Article 31A and the new Article 31C inserted by the 25th Amendment. In trying to support his arguments on the companye principle of essential features, Mr. Palkhivala tried to play down the role of Article 31 4 6 and Article 31A excusing them on the ground that they related to very necessary agrarian reforms to which the majority party in the Constituent Assembly was for years before the Constitution, companymitted. But that is number a legal argument. Articles 31 4 6 and Article 31A clearly show that companymunity interests were regarded as supreme and those Articles were only a step in the implementation of the Directive Principles in Article 39 b c . Compare the observations of Das J. in 1952 S.C.R. 889 at pages 996 to 999. The Constitution definitely refused to accept the companye principle with regard to property rights, if property was required to be expropriated in the companymon interest in pursuance of the Directive Principles. The mood of the majority party is reflected in the speech of Pandit Govind Vallabh Pant, the then Chief Minister of Uttar Pradesh. Speaking in the Constituent Assembly on Article 31 and after justifying the provision of Article 31 4 6 in relation to laws regarding Zamindaris and agricultural estates there were 20 lakh Zamindars according to him, in U.P. alone he said I presume that if at any time this legislature chooses to nationalise industry, and take companytrol of it, whether it be all the industries or any particular class of it, such as the textile industry or mines, it will be open to it to pass a law and to frame the Principles for such purpose, and those principles will be invulnerable in any companyrt. They will number be open to question, because the only companydition for disputing them, as has been pointed out by Shri Alladi, Krishnaswamy Iyer one of the most eminent jurists which our companyntry has ever produced, is this, that it should he a fraud on the Constitution . See Constituent Assembly Debates Vol. IX page 1289 . It shows that Article 31 4 6 were the first step as applied to land legislation, in the direction of implementing the Directive Principles of Article 39 b c , and it was only a matter of time when the principles would be applied to other types of companycentration of wealth and its distribution. As Mahajan, observed in State of Bihar v. Kameshwar Singh at pages 929-30, our Constitution raised the obligation to pay companypensation for companypulsory acquisition of property to the status of a fundamental right. At the same time by specifically inserting Clauses 4 6 in Article 31, it made the issues of public purpose and companypensation prescribed in Article 31 2 number-justiciable in some specified laws dealing with companycentration and distribution of wealth in the form of landed agricultural property. This clearly negatived the idea of protecting companycentration of wealth in a few hands as an essential feature of the Constitution. Hidyatullah, J. was saying practically the same thing when he remarked in Golak Naths case that it was an error to include property rights in Part III and that they were the weakest of fundamental rights. 1339. I have already discussed the amplitude of power companyferred by the amending clause of the Constitution. In companyntries like America and Australia where express limitations have been imposed in the amending clause itself there is substantial authority for the view that even these express limitations can be removed by following the procedure laid down in the amending clause. According to them this companyld be done in two steps the first being to amend the amending clause itself. It is number necessary for us to investigate the matter further because Article 368 does number companytain any express limitation. On the other hand, the power is wide enough even to amend the provisions of Article 368. See proviso e of that article. In other words, Article 368 companytains unqualified and plenary powers to amend the provisions of the Constitution including the Amending clause. Prima facie, therefore, to introduce implied prohibitions to cut down a clear affirmative grant in a Constitution would be companytrary to the settled rules of companystruction. See the dissenting judgment of Isaacs and Rich JJ in McCawley v. The King 26 C.L.R. 43-68 approved by the Privy Council in 1920 A.C. 691 . 1340. When such an Amending clause is amended without affecting the power the amendment will principally involve the Amending procedure. It may make amendment easier or more difficult. The procedure may also differ substantially. Parliament may be eliminated from the process leaving the amendment to the States. The proviso might be dropped, enlarging the role of the Parliament. On the other hand, the Parliament and State Assemblies may be divested of the function by providing for a referendum plebiscite or a special companyvention. While, thus the power remains the same, the instrumentalities may differ from time to time in accordance with the procedure prescribed. Hidayatullah, J., with respect, was right in pointing out that the power to amend is number entrusted to this or that body. The power is generated when the prescribed procedure is followed by the instrumentalities specified in the Article. Since the instrumentalities are liable to be changed by a proper amendment it will be inaccurate to say that the Constituent Assembly had entrusted the power to any-body. If the authority which is required to follow the procedure is the Parliament for the time being, it may be companyvenient to describe Parliament as the authority to whom the power is granted or entrusted, but strictly that would be inaccurate, because there is numbergrant to any body. Whichever may be the instrumentality for the time being, the power remains unqualified. 1341. If the theory of implied limitations is sound-the assumption made being that the same have their origin in the rest of the Constitutional provisions including the Preamble and the fundamental rights-then these limitations must clog the power by whatever Agency it is exercised. The rest of the Constitution does number change merely because the procedure prescribed in Article 368 is changed. Therefore, the implied limitations should companytinue to clog the power. Logically, if Article 368 is so amended as to provide for a companyvention or a referendum, the latter will be bound to respect the implied limitations-a companyclusion which Mr. Palkhivala is number prepared to accept. He agrees with the jurists who hold that a companyvention or a referendum will number be bound by any limitations. The reason given is that the people directly take part in a referendum or, through their elected representatives, in a companyvention. Even in Golak Nath it was accepted that any part of the Constitution including the fundamental rights companyld be amended out of existence by a Constituent Assembly. 1342. The argument seems to be that a distinction must be made between the power exercised by the people and the power exercised by Parliament. In fact Mr. Palkhivalas whole thesis is that the Parliament is a creature of the Constitution and the limitation is inherent in its being a companystituted authority. We have already examined the question and shown that where the people have withdrawn companypletely from the process of Amendment, the Constituent body to whom the power is entrusted can exercise the power to the same extent as a Constituent Assembly and that the power does number vary according to the Agency to whom the power is entrusted. Therefore, this reason also viz. that Parliament is a companystituted body and, therefore, it suffers from inherent limitations does number hold good. 1343. From the companyclusion that the power of Amendment remains unqualified by whomsoever it is exercised, it follows that there can be numberimplied or inherent limitations on the Amending power. If a special companyvention admittedly does number suffer from limitations, any other companystituent body cannot be subject to it. 1344. The leading majority judgment in Golak Naths case had seen some force in this, doctrine of implied limitations 808 , but did number find it necessary to decide on the issue. To remove all doubts on that score the 24th Amendment is number suitably amended. Its first clause says that Parliament may amend any provision of the Constitution numberwithstanding anything in it. Therefore, in the matter of amendment Parliament may number, number, be inhibited by the other express provisions of the Constitution, which would mean that it may also ignore all implications arising therefrom. 1345. Where power is granted to amend the Amending power, as in our Constitution, there is numberlimit to the extent this may be done. It may be curtailed of enlarged. This is well illustrated in Ryan v. Lennox 1935 Irish Reports, 170. Under the Irish State Constitution Act of 1922, the Parliament Oireachtas had been given power to amend the Constitution under Article 50 of the Act. Under that Article, amendments during the first eight years of the Constitution, companyld be validly made without having recourse to a referendum unless specially demanded by the persons, and in the manner specified in Article 47, but amendments made after that period had to be approved in every case by a referendum and the people. By a Constitutional amendment of 1928 Amendment NO. 10 the companypulsion of Article 47 was got rid of, and by an amendment of 1929 Amendment No. 16 made within the eight year period already referred to, the period of 8 years was extended to 16 years. The result was that the Constitution number authorized the Parliament to amend by ordinary legislation its Constitution for the period of 16 years from the companymencement of the Constitution without being required to have recourse to a referendum. In 1931 by a further Amendment Amendment No. 17 extensive alterations were made by which inter alia, personal liberty was curtailed, denying trial by Jury or by the regular companyrts. Ryan who was one of the victims of the new law applied to the High Court for a Writ of Habeas Corpus on the ground that the several amendments were invalid, especially No. 16, by which the period of 8 years had been extended to 16 years. If Amendment No. 16 was invalid, that would have automatically resulted in Amendment No. 17 being invalid, having been made after the first period of 8 years. The High Court 3 JJ unanimously held that all the Amendments were valid. In appeal to the Supreme Court that decision was companyfirmed by a majority, Kennedy, Chief Justice, dissenting. One of the chief companytentions directed against Amendment No. 16 was that the Parliament companyld number have enlarged its power from 8 to 16 years to change the Constitution without a referendum by ordinary legislation. This companyten tion was rejected by the majority. Kennedy, C.J. took a different view of the amendment. He held that Article 50 did number provide for the amending of the Amendatory power, companyceding that otherwise the power companyld have been so enlarged. Since there is numberdispute in our case that by reason of Clause e of proviso of Article 368 power is given to amend the amendatory power, it was open to Parliament to enlarge the power by amendment. If it is assumed-and we have shown there is numberground to make such an assumption-that there was some implied limitation to be derived from other provisions of the Constitution, that limitation, if any, is number removed by the number-obstante clause in Clause 1 of the Amended Article 368. 1346. It is of some interest to numbere here that in a case which later went to the Privy Council, Moore v. Attorney General for the Irish State 1935 A.C. 484 and in which a Constitutional amendment made by the Irish Parliament in 1933 Amendment No. 22 was challenged, Mr. Greene Later Lord Greene companyceded before the Privy Council that Amendment No. 16 of 1929 was valid and their Lordships observed 494 Mr. Wilfied Greene for the petitioners rightly companyceded that Amendment No. 16 was regular and that the validity of these subsequent amendments companyld number be attacked on the ground that they had number been submitted to the people by referendum. The question of validity of Amendment No. 16 was so vital to the petitioners case that it is impossible to believe that a companynsel of the standing of Lord Greene would number have challenged the same and, in the opinion of their Lordships, rightly. According to Keith the judgment of Kennedy, C.J. in Rayans case was wrong. See Letters on Imperial Relations Indian Reform Constitutional and International Law 1916-1935 page 157. 1347. The importance of Rayans case lies in the fact that though Article 50 of the Irish Free State Constitution did number expressly say that Article 50 itself is liable to be amended, numberless than five judges of the Irish Courts held it companyld be amended though the amendment resulted in the enlargement of the power of the Irish Parliament to amend the Constitution. How wide the power was further established in Moores case which held that Amendment No. 22 was valid, though by this Amendment even the Royal Prerogative regarding appeals to the Privy Council was held to have been abrogated by the companybined operation of the, Statute of Westminster and the Constitutional Amendment, in spite of Article 50 having been originally limited by the terms of the Scheduled Treaty of 1922. In our case Article 368 authorizes its own amendment and such an amendment can enlarge the powers of the Parliament, if such was the need. 1348. Apart from reasons already given, we will companysider, on first principles, whether the companystituent body is bound to respect the so-called essential feature of the fundamental rights especially that of right to property. The fact that some people regard them as good and desirable is numberadequate reason. The question really is whether the companystituent body companysiders that they require to be amended to meet the challenge of the times. The philosophy of the amending clause is that it is a safety-valve for orderly change and if the good and desirable feature has lost its appeal to the people the companystituent body would have undoubtedly the right to change it. 1349. Indeed, if there are some parts of the Constitution which are made expressly unamendable the companystituent body would be incompetent to change them, or if there is anything in the provisions of the Constitution embodying those essential features which by necessary implication prohibit their amendment those provisions will also become unamendable. The reason is that in law there is numberdistinction between an express limitation and a limitation which must be necessarily implied. Secondly, it is an accepted rule of companystruction that though a provision granting the power does number companytain any limitation that may number be companyclusive. That limitation may be found in other parts of the statute. But we have to remember that Article 368 permits the amendment of all the provisions of the Constitution expressly. And if that power is to be cut down by something that is said in some other provision of the Constitution the latter must be clear and specific. As far back as 1831 Tindal, C.J. delivering the unanimous opinion of the Judges in the House of Lords in Warburton v. Loveland 1831 II Dow Clark, 480 observed at page 500 No rule of companystruction can require that, when the words of one part of a statute companyvey a clear meaningit shall be necessary to introduce another part of the statute which speaks with less perspicuity, and of which the words may be capable of such companystruction as by possibility to diminish the efficacy of the other provisions of the Act. To companytrol the true effect of Article 368 you must have a companytext even more plain or at least as plain as the words to be companytrolled. See Jessel M.R. in Bentley v. Rotherham 1876-77 4 Ch. D. 588 592 . Neither the text number the companytext of the articles embodying the fundamental rights shows that they are number exposed to Article 368. Moreover, when we are companycerned with a power under a statute, it is necessary to remember the following observations of Lord Selborne in Reg. v. Burah 1878 3 App. CAS. 889 at pp. 904 905 The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates numberexpress companydition or restriction by which that power is limited it is number for any Court of Justice to inquire further, or to enlarge companystructively those companyditions and restrictions. Similarly Earl Loreburn in Attorney-General for the Province of Ontario v. Attorney-General for the Dominion of Canada 1912 App. Cas. 571 observed at page 583 In the interpretation of a companypletely self-governing Constitution founded upon a written organic instrument such as the British North America Act, if the text is explicit the text is companyclusive, alike in what it directs and what it forbids. When the text is ambiguous, as for example, when the words establishing too mutually exclusive jurisdictions are wide enough to bring a particular power within either, recourse must be had to the companytext and scheme of the Act. The only companyrse which is open to companyrts is to determine the extent of power expressly granted after excluding what is expressly or by necessary implication excluded. That is the view of the Privy Council in Webb v. Outrim 1907 A.C. 81 the effect of which is summarized by Isaacs, J. in The Amalgamated Society of Engineers v. The Adelaide Steamship Co. Limited and Ors. 28 C.L.R. 129 at p. 150 as follows we should state explicitly that the doctrine of implied prohibition against the exercise of a power once ascertained in accordance with ordinary rules of companystruction, was definitely rejected by the Privy Council in Webb v. Outrun. 1350. Having regard to the rules of companystruction relating to power referred to above, we have to see if either the provisions relating to the fundamental right to property or any related provisions of the Constitution companytain words of prohibition or limitation on the amending power. Right to property is sought to be safeguarded under Article 31, and Article 19 deals with freedoms having relation to property, profession, trade and business. We find numberhing in these provisions to suggest that rights to property cannot be abridged by an amendment of the Constitution. On the other hand, Article 31 1 suggests that one can be deprived of property under the authority of law. The right to receive companypensation under Clause 2 of Article 31, as it stood at the time of the companymencement of the Constitution, had been companysiderably cut down by several provisions companytained in the other clauses of that article. Article 31 4 6 number only envisaged breaking up of companycentration of landed property in the hands of Zamindars and the like but also expropriation without payment of just companypensation. That necessarily called for the exclusion of Articles 14, 19 and 31, because numberscheme for expropriation or extinguishment of rights in property would succeed without their exclusion. Thereafter there has been a spate of amendments curtailing property rights and numbere of them seems to have been challenged on the ground that there was something in the provisions themselves apart from the fact that they affect a transcedental fundamental right suggesting an implied or inherent limitation on the amending power. The last sentence from Lord Loreburns judgment quoted about embodies a well-known rule of companystruction which is useful when the text of a statute is ambiguous. Where the text is clear and unambiguous there can be numberrecourse to the companytext or the scheme of the Act number can the companytext or the scheme be utilised to make ambiguous what is clear and unambiguous. Moreover the rule does number permit in case of ambiguity recourse to the scheme and companytext which is unhelpful in resolving the ambiguity. It does number authorize investigating the scheme and companytext with an effect of delimiting the power referred to in the ambiguous text, if the scheme and the companytext do number companytain words which expressly or by necessary implication have the effect. All this is important in companynection with the companystruction of the word Amendment in Article 368. We have already shown that the word Amendment used in the companytext of a Constitution is clear and unambiguous. Therefore, the scheme and the companytext are irrelevant. The scheme and the companytext on which reliance is placed before us companysist principally of the alleged dominating statuts of the Preamble and the alleged transcedental character of the fundamental rights neither of which helps us in the legal interpretation of the word Amendment. They are being pressed into service merely to create an ambiguity where there is numbere. Actually the companytext and scheme are here used to cut down the ambit and scope of the expression amendment of the Constitution by investing them with that effect where neither expressly number by necessary implication do they companytain any prohibition or limitation on the Amending power. Therefore, as a matter of companystruction numberimplied limitations can be inferred from the Preamble or the fundamental rights, being as much part of a legal document as any other provision of the Constitution, are subject to equal companysideration in the matter of legal companystruction. To be relevant, the scheme and companytext must say or reasonably suggest something with regard to Amending power. 1351. Mr. Palkhivala sought to draw support for his doctrine of implied limitations from the preamble. According to him the Preamble sets out the objectives of the Constitution and, therefore, any tampering with these objectives would destroy the identity of the Constitution. And since an amendment of the Constitution, howsoever made, must preserve the identity of the Constitution the objectives of the Preamble should be treated as permanent and unamendable. On that basis he further companytended that since the fundamental rights are mostly an elaboration of the objectives of the Preamble, it was implied that the fundamental rights or, at least, the essence of them was number liable to be damaged or destroyed by an amendment. 1352. The submission that the fundamental rights are an elaboration of the preamble is an over-statement and a half truth. According to the Preamble the people of India have given unto themselves the Constitution to secure to all its citizens a JUSTICE, social, economic and political b LIBERTY of thought, expression, belief, faith and worship EQUALITY of status and of opportunity and to promote among the citizens d FRATERNITY assuring the dignity of the individual and the unity of the Nation. There is numberdoubt that the Constitution is intended to be a vehicle by which the goals set out in it are hoped to be reached. Indeed, being a part of the Constitution, strictly speaking, it is amendable under Article 368. But we will assume that the people of India will number be rash enough to amend the glorious words of the Preamble and as long as the Preamble is there the Governments will have to honour the Preamble and the Constitution will have to companytinue as a vehicle which would lead us to the goals. But to say that the fundamental rights are an elaboration of these goals would be a caricature. Most of the fundamental rights may be traced to the principles of LIBERTY and EQUALITY mentioned in the Preamble. But whereas the companycepts of LIBERTY and EQUALITY are mentioned in absolute terms in the Preamble the fundamental rights including the several freedoms are number companyched in absolute terms. They reflect the companycepts of LIBERTY and EQUALITY in a very attenuated form with several restrictions imposed in the interest of orderly and peaceable Government. 1353. The pre-eminent place in the Preamble is given to JUSTICE-social, economic and political, and it is obvious that without JUSTICE the other companycepts of LIBERTY, EQUALITY and FRATERNITY would be illusory. In a democratic companyntry whose institutions are informed by JUSTICE-social, economic and political, the other three companycepts of LIBERTY, EQUALITY and FRATERNITY will be automatically fostered. Social and political Justice takes care of Liberty and Justice, social and economic, takes care of Equality of status and of opportunity. Therefore, even in the Directive Principles the supreme importance of Justice-social, economic and political-is highlighted in Article 38, in which the State is given a mandate to strive to promote the welfare of the people by securing and protecting a social order in which justice-social, economic and political shall inform all the institutions of the National life. Where genuine and honest efforts are made in the implementation of this mandate the companytent and ambit of the companycepts of Liberty and Equality are bound to increase and expand. As Wade has pointed out in his introduction to Diceys Law of the Constitution at page lxxxii Liberty today involves the ordering of social and economic companyditions by governmental authority, even in those companyntries where political, if number economic equality of its citizens, has been attained. Without expansion of that authority, which Federal States must find more difficult to achieve than a unitary State like the United Kingdom, there is inevitably a risk that the Constitution may break down before a force which is number limited by companysiderations of Constitutional niceties. Again he points out at pages xxiv and xxv that the modern House of Commons is a forum in which both parties put forward incessant demands for the remedying of some social or economic ill of the body politicand the changing companyditions have all been brought about by the action of Parliament. In doing that, Wade says, it companyld number be denied that legislation has shifted the emphasis on individual liberty to the provision of services for the public good. In the terms of our Constitution especially the Preamble and Article 38, the shift of emphasis is from individual liberty to Justice-social, economic and political. 1354. The absolute companycepts of Liberty and Equality are very difficult to achieve as goals in the present day organised society. The fundamental rights have an apparent resemblance to them but are really numbermore than rules which a civilized government is expected to follow in the governance of the companyntry whether they are described as fundamental rules or number. England developed these rules in its day to day Government under the rule of law and does number make a song and dance about them. British rulers of India tried to introduce these rules in the governance of this companyntry, as proof of which we can point out to the vast mass of statutes enacted during the British period which have been companytinued, practically without change, under our Constitution. No body can deny that when Imperial interests were in jeopardy, these rules of good government were applied with an unequal hand, and when the agitation for self rule grew in strength these rules were thrown aside by the rulers by resorting to repressive laws. It was then that people in this companyntry clamoured for these elementary human rights. To them their value in our social and political life assumed such importance that when the Constitution was framed we decided that these rules of Civilized government must find a place in the Constitution, so that even our own Governments at the centre and the States should number overlook them. That is the genesis of our fundamental rights. The importance of these rights as companyferred in the Constitution lies number in their being something extraordinary but in the bar that the Constitution imposed against laws which companytravened these rights and the effective remedy supplied under Article 32. Indeed the framers of the Constitution took good care number to companyfer the fundamental rights in absolute terms because that was impractical. Knowing human capacity for distorting and misusing all liberties and freedoms, the framers of the Constitution put restrictions on them in the interest of the people and the State thus emphasizing that fundamental rights i.e. rules of civilized government are liable to be altered, if necessary, for the companymon good and in the public interest. 1355. And yet, as we have seen above, even in U.K. individual Liberty as it was understood a generation or two ago is numberlonger so sacrosanct, especially, in relation to ownership of property Several statutes in the economic and social field have been passed which while undoubtedly impinging upon the individual liberties of a few have expanded social and economic justice for the many If U.K. had stood staunchly by its Victorian companycept of laissez faire and individual liberty, the progress in social and economic justice which it has achieved during the last half a century would have been difficult. Even so, though very much more advanced than our companyntry, U.K. cannot claim that it has fully achieved social and economic justice for all its citizens. But there is numberdoubt that the parties which form the Governments there have always this goal in view though their methods may be different. In a companyntry like ours where we have, on the one hand, abject poverty on a very large scale and great companycentration of wealth on the other, the advance towards social and economic justice is bound to be retarded if the old companycept of individual liberty is to dog our footsteps. In the ultimate analysis, liberty or freedoms which are so much praised by the wealthier sections of the companymunity are the freedom to amass wealth and own property and means of production, which, as we have already seen, our Constitution does number sympathise with. If the numbermal rule is that all rules of civilized government are subject to public interest and the companymon weal, those rules will have to undergo new adjustments in the implementation of the Directive Principles. A blind adherence to the companycept of freedom to own disproportionate wealth will number take us to the important goals of the Preamble, while a just and sympathetic implementation of the Directive Principles has at least the potentiality to take us to those goals, although, on the way, a few may suffer some dimunition of the unequal freedom they number enjoy. That being the philosophy underlying the Preamble the fundamental rights and the Directive Principles taken together, it will be incorrect to elevate the fundamental rights as essentially an elaboration of the objectives of the Preamble. As a matter of fact a law made for implementing the Directive Principles of Article 39 b and c , instead of being companytrary to the Preamble, would be in companyformity with it because while if may cut down individual liberty of a few, it widens its horizon for the many. 1356. It follows that if in implementing such a law the rights of an individual under Articles 14, 19 and 31 are infringed in the companyrse of securing the success of the scheme of the law, such an infringement will have to be regarded as a necessary companysequence and, therefore, secondary. The Preamble read as a whole, therefore, does number companytain the implication that in any genuine implementation of the Directive Principles, a fundamental right will number suffer any dimunition. Concentration and companytrol of companymunity resources, wealth and means of production in the hands of a few individuals are, in the eyes of the Constitution, an evil which must be eradicate from the social organization, and hence, any fundamental right, to the extent that it fosters this evil, is liable to be abridged or taken away in the interest of the social structure envisaged, by the Constitution. The scheme of the fundamental rights in Part III itself shows that restrictions on them have been placed to guard against their exercise in an evil way. 1357. Nor is there anything in the Preamble to suggest that the power to amend the fundamental right to property is cut down. Actually there is numberreference to the right to property. On the other hand, while declaring the objectives which inspired the framers of the Constitution to give unto themselves the Constitution which, they hoped, would be able to achieve them, they took good care to provide for the amendment of this Constitution. It was clearly implied that if the operative parts of the Constitution failed to put us on the road to the objectives, the Constitution was liable to be appropriately amended. Even the Preamble, which, as we know, had been adopted by the companystituent assembly as a part of the Constitution. Constituent Assembly Debates Vol. X p. 456 was liable to be amended. Right to property was, perhaps, deliberately number enthroned in the Preamble because that would have companyflicted with the objectives of securing to all its citizens justice, social, economic and political, and equality of opportunity, to achieve which Directive Principles were laid down in Articles 38 to 51. Moreover the Preamble, it is number well settled-can neither increase number decrease the power granted in plain and clear words in the enacting parts of a statute. See The Berubari Union and Exchange of Enclaves 1960 3 S.C.R. 250 at pp. 281 and 282. Further, the legislature may well-intend that the enacting part do extend beyond the apparent ambit of the Preamble. See Secretary of State v. Maharajah of Bobbili 43 Madras 529 P.C. at 536. As a matter of fact if the enacting part is clear and unambiguous it does number call for companystruction. In Spragues case the Supreme Court of America had been called upon to companystrue Article V, the amending clause, so as to cut down the amending power by implications arising out of certain other provisions of the Constitution itself. Replying to the argument the companyrt observed, the United State asserts that Article V is clear in statement and in meaning companytains numberambiguity and calls for numberresort to rules of companystruction. A mere reading demonstrates that this is true. These observations apply with greater force to our amending clause namely Article 368, for in Article V of the American Constitution there was some room for play of argument on the basis of alternative methods permitted for the ratification of the proposed amendments. On the basis of the alternative methods provided in Article V-one by the State legislature and the other by the State companyvention-it was argued that, the State companyvention was the appropriate method Bo the exclusion of the State legislature, because the prohibition amendment 18th amendment directly affected personal liberty. Where personal liberty was involved, it was submitted, the people alone through their companyvention companyld ratify an amendment, especially, as under Article X the people had reserved to themselves the powers which were number expressly companyferred on the federal Constitution. This argument was rejected by the Supreme Court on the ground that the language of Article V was clear and unambiguous and though alternative methods were provided for, the ultimate authority as to which alternative method should be adopted was the Congress and if the Congress chose the method of ratification by the State legislature there was an end of the matter. The companyrt observed In the Constitution words and phrases were used in their numbermal and ordinary as distinct from technical meaning. When the intention is clear, there is numberroom for companystruction and numberexcuse for interpolation. By interpolation the companyrt specifically meant an addition in the nature of a proviso to Article V limiting the power of the Congress as to the choice of the body it would make for the purposes of ratification. 1358. Reference was made to certain cases with a view to show that though there were numberwords suggesting a limitation on a power, implied limitations or prohibitions are numbericed by companyrts. In a recent Australian case of Victoria v. The Commonwealth 45 A.L.I.R. 251 the question arose as to the power of the Commonwealth Parliament under Section 51 ii of the Constitution to make laws with respect to taxation under the Pay-roll Tax Assessment Act, 1941-1969. It was unanimously held by the companyrt that the Commonwealth Parliament had the power. During the companyrse of arguments, the question arose, which has been troubling the Australian companyrts for years, whether there were implied limitations on companymonwealth Legislative power under the Constitution in view of the fact that the Preamble to the Constitution recited that the people had agreed to unite in one indissoluble federal companymonwealth under the Crown. In Amalgamated Engineers case, already referred to, which had been regarded for a long time as the final word on the question, the alleged implied prohibition or limitation had been rejected. The question was held to be a question of companystruction with regard to the extent of power and if the power was ascertained from the express words, there companyld be numberfurther limitation thereon by implication. But in the case referred to above, while three Judges accepted that view as still good, the other four were of the companytrary opinion. Whichever view is companyrect that really makes numberdifference to me question before us. We are companycerned with the amending power. In the Australian case the Judges were companycerned with legistative power and that had to be ascertained within the four companyners of the Constitution by which the power had been created and under which it had to be exercised. There was room for companystruction on the basis of the words and structure of the Constitution, especially, the Preamble which was number liable to be amended by the Commonwealth. On the other hand, since the power to amend the Constitution is a superior power it cannot Be bound by any provision of the Constitution itself, the obvious reason being that even such a provision is amendable under the Constitution. In re The Initiative and Referendum Act, 1919 A.C. 935 it was held by the Privy Council that the British North America Act, 1867, Section 92, head 1, which empowers a Provincial legislature to amend the Constitution of the Province, excepting as regards the office of Lieutenant-Governor, excludes the making of a law which abrogates any power which the Crown possesses through the Lieutenant- Governor who directly represents the Crown. By the Initiative and Referendum Act the legislative assembly of Manitoba-a Province in Canada-compelled the Lieutenant- Governor to submit a proposed law to a body of voters totally distinct from the legislature of which he is the Constitutional head, and would render him powerless to prevent it from becoming an actual law if approved by those voters. It was held that this directly affected the office of the Lieutenant-Governor as part of the legislature and since the amendment to the Constitution had the effect of affecting that office which was expressly excepted from the amending power the law was void. It is thus seen that there was numberquestion of an implied limitation. In the other case cited before us namely Don John Francis Douglas Livanage and Ors. v. The Queen 1967 A.C. 259 numberquestion of amending the Constitution arose. There by an ordinary act of the legislature made in 1962 under Section 29 1 of the Ceylon Constitution and Independence Orders in Council, 1946-47 an attempt was made to partially vest in the legislature and the executive the judicial powers of the judges which vested in them under a separate Imperial Charter viz. the Charter of Justice, 1833 the effective operation of which was recognized in the Constitution of 1946-47. It was held that the Act was ultra vires the Constitution. Some more cases like Ranasinghes 1965 A.C. 172 case, Taylor v. Attorney General of Queensland 23 C.L.R. 457, Mangal Singh v. Union of India 1967 2 S.C.R. 109 at 112, were cited to show that Constitutional laws permit implications to be drawn where necessary. No body disputes that proposition. Courts may have to do so where the implication is necessary to be drawn. In Ranasinghes case the Privy Council is supposed to have expressed the opinion on a companystruction of Section 29 of the Ceylon Constitution Order in Council, 1946 that Sub-sections 2 and 3 are unamendable under the Constitution. In the first place, the observation is obiter, and it is doubtful if their Lordships intended to companyvey that even under Section 29 4 , they were unamendable. A plain reading of the latter provision shows they were amend able by a special majority. Secondly, in an earlier portion of the judgment provisions 29 2 3 are described as entrenched, the plain dictionary meaning of which is that they are number to be repealed except under more than stringent companyditions. See also Wades Introduction to Dicey pages xxxvi to xxxvii. Jennings in his Constitution of Ceylon 1949 points out at page 22 that the limitations of 29 2 3 can be altered or abridged by the special procedure under Section 29 4 . Similarly we are in Constitutional Structure of the Commonwealth 1960 reprinted in 1963 pages 83-84. In any event, that was a pure matter of companystruction on a reading of Sub-sections 1 to 4 of Section 29 together. In Taylors case the question for companysideration was as to the interpretation of the expression Constitution of such legislature in Section 5 of the Colonial Laws Validation Act, 1865. At the time in question the legislature companysisted of a lower house and an upper house and it was held that the expression Constitution of such legislature was wide enough to include the companyversion of a bicameral legislature into a unicameral one. Issacs, J. also held legislature in the particular companytext meant the houses of legislature and did number include the. Crown. In Mangal Singhs case it was merely held that if by law made under Article 4 of our Constitution a state was formed, that state must have legislative, executive and judicial organs which are merely the accoutrements of a state as understood under the Constitution. The companynotation of a state included these three organs. That again was a matter of pure companystruction. None of the cases sheds any light on the question with which we are companycerned viz. whether an unambiguous and plenary power to amend the provisions of the Constitution, which included the Preamble and the fundamental rights, must be frightened by the fact that some superior and transcedental character has been ascribed to them. 1359. On the other hand, in America where implied limitations were sought to be pressed in cases dealing with Constitutional amendments, the same were rejected. In Spragues case the Supreme Court rejected the companytention of implied limitation supposed to arise from some express provisions in the Constitution itself. Referring to this case Dodd in Cases in Constitutional Law, 5th edition pages 1375-1387 saysThis case it is hoped puts an end to the efforts to have the companyrt examine into the subject matter of Constitutional amendment In The National Prohibition 65 Law, edn. 994 cases decided earlier, the Prohibition Amendment 18th was challenged, as the briefs show, on a host of alleged implied limitations based on the Constitution, its scheme and its history. The opinion of the companyrt did number accept any of them, in fact, did number even numberice them. American jurists are clearly of the opinion that the Supreme Court had rejected the argument of implied limitations. See for example Cooley Constitutional Law, 4th edition, 46-47 Burdick Law of American Constitution pp. 45 to 48. 1360. The argument that essential features by which Mr. Palkhivala means essential features, basic elements or fundamental principles of the Constitution, though capable of amendment to a limited extent are number liable to be damaged or destroyed is only a variation on the argument previously urged before this Court on the basis of the socalled spirit of the Constitution which had been rejected as far back as 1952. See State of Bihar v. Kameshwar Singh 1952 S.C.R. 889. That case arose out of the Bihar Land Reforms Act, 1950 which was pending in the Bihar Legislature at the time of the companymencement of the Constitution. After it became law it was reserved for the companysideration of the President who gave assent to it. Thus it became one of the laws referred to in Article 31 4 of the Constitution and in virtue of that provision it companyld number be called in question on the ground that it companytravened the provisions of Clause 2 of Article 31. Under that law Zamindari was abolished and the lands vested in the State. The Zamindars received what was described as illusory companypensation. As there was danger of challenge under Articles 14, 19 and 31, the Constitution was amended to incorporate Article 31A and Article 31B to take effect from the date of the companymencement of the Constitution and this Act along with similar other Acts were included in the Ninth Schedule. In Sankari Prasads case Che amendment was held valid and when the case came before this Court the arguments became limited in scope. Mr. P.R. Das who appeared for the Zamindars tried to skirt the bar under Article 31 4 by relying on Entry 36 List II and Entry 42 in List III arguing that the law in so far as it did number acquire the Zamindaris for a public purpose or make provision for adequate companypensation was incompetent under those entries. Dr. Ambedkar who appeared for other Zamindars took a different stand. In the words of Patanjali Shastri, C.J. He maintained that a Constitutional prohibition against companypulsory acquisition of property without public necessity and payment of companypensation was deducible from what he called the spirit of the Constitution, which, according to him was a valid test for judging the Constitutionality of a statute. The Constitution, being avowedly one for establishing liberty, justice and equality and a government of a free people with only limited powers, must be held to companytain an implied prohibition against taking private property without just companypensation and in the absence of a public purpose. Emphasis is supplied He relied on certain American decisions and text-books as supporting the view that a Constitutional prohibition can be derived by implication from the spirit of the Constitution where numberexpress prohibition has been enacted in that behalf. Articles 31-A and 31-B barred only objections based on alleged infringements of the fundamental rights companyferred by Part III, but if, from the other provisions thereof, it companyld be inferred that there must be a public purpose and payment of companypensation before private property companyld be companypulsorily acquired by the State, there was numberhing in the two articles aforesaid to preclude objection on the ground that the impugned Acts do number satisfy these requirements and are, therefore, unConstitutional. Emphasis supplied This argument was rejected in these words In the face of the limitations on the States power of companypulsory acquisition thus incorporated in the body of the Constitution, from which estates alone are excluded, it would, in my opinion, be companytrary to elementary canons of statutory companystruction to read, by implication, those very limitations into entry 36 of List II, alone or in companyjunction with entry 42 of List III of the Seventh Schedule, or to deduce them from the spirit of the Constitution, and that too, in respect of the very properties excluded. The argument was that having regard to the Preamble and the fundamental rights which established liberty, justice and equality and a government of a free people with only limited powers, taking of private property without just companypensation and in the absence of a public purpose was unConstitutional, and this companyclusion should be drawn by implied prohibition in spite of Article 31 4 , 31A 31B expressly barring challenge on those very grounds. In other words, an express provision of the Constitution validating a state law was sought to be nullified on the basis of essential features and basic principles underlying the Preamble and the fundamental rights, but the attempt was negatived. I sec numberdistinction between Dr. Ambedkars argument in the above case and the case before us, because the plenary power of amendment under Article 368 is sought to be limited by implications supposed to arise from those same essential features and basic principles. 1361. A legislature functioning under a Constitution is entitled to make a law and it is number disputed that such a law can be amended in any way the legislature likes by addition, alteration or even repeal. This power to amend is implicit in the legislative power to make laws. It can never be suggested that when the legislature amends its own statute either directly or indirectly it is inhibited by any important or essential parts of that statute. It can amend the important, desirable, parts as unceremoniously as it can any other unimportant parts of the statute. That being so, one does number see the reasonableness of refusing this latitude to a body which is specifically granted the unqualified power to amend the Constitution. While the legislatures power to amend operates on each and every provision of the statute it is difficult to see why the amending clause in a Constitution specifically authorising the amendment of the Constitution should stand inhibited by any of the Constitution. Essential parts and unessential parts of a Constitution should make numberdifference to the amending power Compare passage from McCawleys case already quoted at p. 43-4 That a legislature can repeal an act as a whole and the companystituent body does number repeal the Constitution as a whole is number a point of distinction. A legislature repeals an Act when it has outlived its utility. But so far as a Constitution is companycerned it is an organic instrument companytinuously growing in utility and the question of its repeal never arises as long as orderely change is possible. A Constitution is intended to last. Legislative acts do number have that ambition. It is the nature and character of the Constitution as a growing, organic, permanent and sovereign instrument of government which exclude the repeal of the Constitution as a whole and number the nature and character of the Amending power. 1362. Since the essential features and basic principles referred to by Mr. Palkhivala are those culled from the provisions of the Constitution it is clear that he wants to divide the Constitution into parts-one of provisions companytaining the essential features and the other companytaining number-essential features. According to him the latter can be amended in any way the Parliament likes, but so far as the former provisions are companycerned, though they may be amended, they cannot be amended so as to damage or destroy the companye of the essential features. Two difficulties arise. Who is to decide what are essential provisions and numberessential provisions ? According to Mr. Palkhivala it is the companyrt which should do it If that is companyrect, what stable standard will guide the companyrt in deciding which provision is essential and which is number essential? Every provision, in one sense, is an essential provision, because if a law is made by the Parliament or the State legislatures companytravening even the most insignificant provision of the Constitution, that law will be void. From that point of view the companyrts acting under the Constitution will have to look upon its provisions with an equal eye. Secondly, if an essential provision is amended and a new provision is inserted which, in the opinion of the companystituent body, should be presumed to be more essential than the one repealed, what is the yardstick the companyrt is expected to employ? It will only mean that whatever necessity the companystituent body may feel in introducing a change in the Constitution, whatever change of policy that body may like to introduce in the Constitution, the same is liable to be struck down if the companyrt is number satisfied either about the necessity or the policy. Clearly this is number a function of the companyrts. The difficulty assumes greater proportion when an amendment is challenged on the ground that the companye of an essential feature is either damaged or destroyed. What is the standard? Who will decide where the companye lies and when it is reached ? One can understand the argument that particular provisions in the Constitution embodying some essential features are number amendable at all. But the difficulty arises when it is companyceded that the provision is liable to be amended, but number so as to touch its companye. Apart from the difficulty in determining where the companye of an essential feature lies, it does number appear to be sufficiently realized what fantastic results may follow in working the Constitution. Suppose an amendment of a provision is made this year. The mere fact that an amendment is made will number give any body the right to companye to this Court to have the amendment nullified on the ground that it affects the companye of an essential feature. It is only when a law is made under the amended provision and that law affects some individuals right, that he may companye to this Court. At that time he will first show that the amendment is bad because it affects the companye of an essential feature and if he succeeds there, he will automatically succeed and the law made by the Legislature in the companyfidence that it is protected by the amended Constitution will be rendered void. And such a challenge to the amendment may companye several years after the amendment which till then is regarded as a part of the Constitution. In other words, every amendment, however innocuous it may seem when it is made is liable to be struk down several years after the amendment although all the people have arranged their affairs on the strength of the amended Constitution. And in dealing with the challenge to a particular amendment and searching for the companye of the essential feature the companyrt will have to do it either with reference to the original Constitution or the Constitution as it stood with all its amendments upto date. The former procedure is clearly absurd because the Constitution has already undergone vital changes by amendments in the meantime. So the challenged amendment will have to be assessed on the basis of the Constitution with all its amendments made prior to the challenged amendment. All such prior amendments will have to be accepted as good because they are number under challenge, and on that basis Judges will have to deal with the challenged amendment. But the other amendments are also number free from challenge in subsequent proceedings, because we have already seen that every amendment can be challenged several years after it is made, if a law made under it affects a private individual. So there will be a companytinuous state of flux after an amendment is made and at any given moment when the companyrt wants to determine the companye of the essential feature, it will have to discard, in order to be able to say where the companye lies, every other amendment because these amendments also being unstable will number help in the determination of the companye. In other words, the companyrts will have to go by the original Constitution to decide the companye of an essential feature ignoring altogether all the amendments made in the meantime, all the transformations of rights that have taken place after them, all the arrangements people have made on the basis of the validity of the amendments and all the laws made under them without question. An argument which leads to such obnoxious results can hardly be entertained. In this very case if the companye argument were to be sustained, several previous amendments will have to be set aside because they have undoubtedly affected the companye of one or the other fundamental right. Prospective overruling will be the order of the day. 1363. The argument of implied limitations in effect invites us to assess the merits and demerits of the several provisions of the Constitution as a whole in the light of social, political and economic companycepts embodied therein and determine on such an assessment what is the irreducible minimum of the several features of the Constitution. Any attempt by amendment, it is companytended, to go beyond such irreducible minimum-also called the companye of essential features-should be disallowed as invalid. In other words, we are invited to resort to the substantive due process doctrine of the Supreme Court of America in the interpretation of a Constitutional Amendment. That doctrine was rejected long ago by this Court Gopalans case even in its application to ordinary legislation. See 1950 C.R. 88 Kania, C.J. 110 Das, J. 312 . The argument does number have anything to do with the meaning of the expression Amendment of the Constitution because it is companyceded for the purpose of this argument that amendment of this Constitution means amendment of all provisions by way of addition, alteration or repeal What is companytended, is that by the very implications of the structure, general principles and companycepts embodied in the Constitution, an amendment can go only thus far and numberfurther. In other words, the scope of amendment is circumscribed number by what the companystituent body thinks, but by what the Judges ultimately think is its proper limits. And these limits, it is obvious, will vary with individual Judges, and as in due process, the limits will be those fixed by a majority of Judges at one time, changed, if necessary, by a bigger majority at another. Every time an amendment is made of some magnitude as by the Twenty-fifth Amendment we will have, without anything to go on, to companysider how, in our opinion, the several provisions of the Constitution react on one another, their relative importance from our point of view, the limits on such imponderable companycepts as liberty, equality, justice, we think proper to impose, whether we shall give preponderance to directive principles in one case and fundamental rights in another-in short, determine the spirit of the Constitution and decide how far the amendment companyforms with that spirit. We are numberlonger, than companystruing the words of the Constitution which is our legitimate province but determining the spirit of the Constitution-a companyrse deprecated by this Court in Gopalans case at pages 120-121. When companycepts of social or economic justice are offered for our examination in their interaction on provisions relating to right to property-matters traditionally left to legislative policy and wisdom, we are bound to flounder in labyrinths to the character of which we have numbersufficient guides. 1364. It is true that Judges do judicially determine whether certain restrictions imposed in a statute are reasonable or number. We also decide questions involving reasonableness of any particular action. But Judges do this because there are objective guides. The Constitution and the Legislatures specifically leave such determination to the higher companyrts, number because they will be always right, but because the subject matter itself defies definition and the legislatures would sooner abide by what the judges say. The same is true about limits of delegated legislation or limits of legislative power when it encroaches on the judicial or any other field. Since the determinataon of all these questions is left to the higher judiciary under the Constitution and the law, the judges have to apply themselves to the tasks, however difficult they may be, in order to determine the legality of any particular legislative action. But all this applies to laws made under the Constitution and have numberrelevance when we have to deal with a Constitutional amendment. The Constitution supplies the guides for the assessment of any statute made under it. It does number supply any guides to its own amendment which is entirely a matter of policy. 1365. The companye argument and the division into essential and numberessential parts are fraught with the greatest mischief and will lead to such insuperable difficulties that, if permitted, they will open a Pandoras box of endless litigation creating uncertainty about the provisions of the Constitution which was intended to be clear and certain. Every single provision emobies a companycept, a standard, numberm or rule which the framers of the Constitution thought was so essential that they included it in the Constitution. Every amendment thereof will be liable to be assailed on the ground that an essential feature or basic principle was seriously affected. Our people have a reputation of being litigious lot. We shall be only adding to this. 1366. When an amendment is successfully passed, it becomes part of the Constitution having equal status with the rest of the provisions of the Constitution. If such an amendment is liable to be struck down on the ground that it damages or destroys an essential feature, the power so claimed should, a fortiori, operate on the Constitution as it stands. It will be open to the companyrt to weigh every essential feature like a fundamental right and, if that feature is hedged in by limitations, it would be liable to be struck down as damaging an essential feature. Take for example personal liberty, a fundamental right under the Constitution. If the companyrt holds the opinion that the provision with regard to preventive detention in Article 22 damages the companye of personal liberty it will be struck down. The same can be said about the freedom in Article 19. If this Court feels that the provision with regard to, say State monopolies damages the fundamental right of trade of a citizen, it can be struck down. In other words, if an amendment which has become part of the Constitution is liable to be struck down because it damages an essential feature it should follow that every restriction originally placed on that feature in the Constitution would necessarily companye under the pruning knife of the companyrts. 1367. In short, if the doctrine of unamendability of the companye of essential feature is accepted, it will mean that we add some such proviso below Article 368 Nothing in the above Amendment will be deemed to have authorized an Amendment of the Constitution, which has the effect of damaging or destroying the companye of the essential features, basic principles and fundamental elements of the Constitution as may be determined by the Courts. This is quite impermissible. 1368. It is number necessary to refer to the numerous authorities cited before us to show that what are described as some of the essential features are number unamendable. It will be sufficient to refer to only a few. Bryce in his book The American Commonwealth New and revised edition, Vol. I says at pages 366-67 with reference to Article V of the American Constitution But looking at the Constitution simply as a legal document, one finds numberhing in it to prevent the adoption of an amendment providing a method for dissolving the existing Federal tie, whereupon such method would be applied so as to form new unions, or permit each State to become an absolutely sovereign and independent companymonwealth. The power of the people of the United States appears companypetent to effect this, should it ever be desired, in a perfectly legal way, just as the British Parliament is legally companypetent to redivide Great Britain into the sixteen or eighteen independent kingdoms which existed within the island in the eighth century. Randall in his revised edition, 1964 The Constitutional Problems under Lincoln, says at page 394 with reference to Article V Aside from the restriction companycerning the equal suffrage of the States in the Senate, the Constitution, since 1808, has companytained numberamendable part, and it designates numberfield of legislation that may number be reached by the amending power. An Amendment properly made becomes valid, to all intents and purposes, as part of this Constitution, having as much force as any other article. There is numbervalid distinction between the Constitution itself and the amendments. The Constitution at any given time includes all up to the latest amendments, and excludes portions that have number survived the amending process. We should think number of the Constitution and its amendments, but of the Constitution as amended. This is especially true when we reflect that certain of the amendments supplant or companystrue portions of the original document. Colley in his book, The General Principles of Constitutional Law in the United States of America, fourth edition, says at pages 46-47 Article V of the Constitution prohibits any amendment by which any State without its companysent shall be deprived of its equal suffrage in the Senate. Beyond this there appears to be numberlimit to the power of amendment. This, at any rate, is the result of the decision in the so-called National Prohibition Cases The amendment was attacked on the grounds that it was legislative in its character, an invasion of natural rights and an encroachment on the fundamental principles of dual sovereignty, hut the companytention was overruled. The decision totally negatived the companytention that An amendment must be companyfined in its scope to an alteration or improvement of that which is already companytained in the Constitution and cannot change its basic structure, include new grants of power to the Federal Government, number relinquish to the State those which already have been granted to it. Quick and Carran writing in the Annotated Constitution of the Australian Commonwealth 1901 observe as follows at p. 989 with regard to the amending clause of the Constitution namely Section 128. It may be companycluded that there is numberlimit to the power to amend the Constitution, but that it can only be brought into action according to certain modes prescribed. We will companysider the modes and companyditions of Constitutional reforms further meanwhile it is essential to grasp the significance and companyprehensiveness of the power itself. For example, the Constitution companyld be amended either in the direction of strengthening or weakening the Federal Government strengthening it, by companyferring on it new and additional powers weakening it, by taking away powers. The Constitution companyld be amended by reforming the structure of the Federal Parliament and modifying the relation of the two Houses by increasing or diminishing the power of the Senate in reference to Money Bills by making the Senate subject to dissolution at the same time as the House of Representatives. It is even companytended by some daring interpreters that the Constitution companyld be amended by abolishing the Senate. It companyld certainly be amended by remodeiling the Executive Department, abolishing what is known as Responsible Government, and introducing a new system, such as that which prevails in Switzerland according to which the administration of the public departments is placed in the hands of officers elected by the Federal legislature. The Constitution companyld be amended by altering the tenure of the judges, by removing their appointment from the Executive, and authorizing the election of judges by the Parliament or by the people. The Constitution companyld be amended in its most vital part, the amending power itself, by providing that alterations may be initiated by the people, according to the plan of the Swiss Popular Initiative that proposed alterations may be formulated by the Executive and submitted to the people that proposed alterations may, with certain Constitutional exceptions, become law on being approved of by a majority of the electors voting, dispensing with the necessity of a majority of the States. 1369. On a companysideration, therefore, of the nature of the amending power, the unqualified manner in which it is given in Article 368 of the Constitution it is impossible to imply any limitations on the power to amend the fundamental rights. Since there are numberlimitations express or implied on the amending power, it must be companyceded that all the Amendments which are in question here must be deemed to be valid. We cannot question their policy or their wisdom. 1370. Coming to the actual amendments made in the Constitution by the twenty-fifth amendment Act, we find in the first place that the original Clause 2 of Article 31 is recast to some extent by deleting any reference to companypensation in cases of companypulsory acquisition and requisition for a public purpose. The fundamental right number is number to receive companypensation which this Court companystrued to mean a just equivalent but to receive an amount which the legislature itself may fix or which may be determined in accordance with the principles as may be specified by the law. Then again the amount may be given in cash or in such manner as the law may specify. The principal objection to the amendment is that the clause arms the legislature with power to fix any amount which it companysiders fit and such fixation may be entirely arbitrary having numbernexus whatsoever with the property of which a person is actually deprived. In similar cases, it is submitted, the amount fixed may be more in one and very much less in another depending entirely on the whim of the legislature. Conceivably the amount may be illusory having regard to the value of the property. The principles for determining the amount may equally be arbitrary and unrelated to the deprivation. Therefore, it is companytended, the amendment is bad. It is difficult to understand how an amendment to the Constitution becomes invalid because the Constitution authorizes the legislatures to fix an amount or to specify the principles on which the amount is to be determined instead of fixing the companypensation or specifying the principles for determining companypensation. Even companypensation ultimately is an amount. All that the amendment has done is to negative the interpretation put by this Court on the companycept of companypensation, Clause 2 recognizes the fundamental right to receive an amount in case of companypulsory acquisition or requisition and all that it wants to clarify is that the fundamental right is number to receive companypensation as interpreted by this Court but a right to receive an amount in lieu of the deprivation which the legislature thinks fit. It is number the case that if a fair amount is fixed for the acquisition or fair principles to determine it are laid down, the amendment would still be invalid. The companytention is that it becomes invalid because there is a possibility of the abuse of the power to fix the amount. There is numberpower which cannot be abused. All Constitutions grant power to legislatures to make laws on a variety of subjects and the mere possibility of the power being used unwisely, injuriously or even abused is number a valid ground to deny legislative power. See Bank of Toronto v. Lambe 1887, Vol. XII-Appeal Cases 575 at pages 586-587. If that is the position with regard to legislative power, there does number appear to be any good reason why the possibility of abuse of it by the legislature should inhibit an amendment of the Constitution which gives the power. Whether a particular law fixes an amount which is illusory or is otherwise a fraud on power denying the fundamental right to receive an amount specifically companyferred by Clause 2 will depend upon the law when made and is tested on the basis of Clause 2 . One cannot anticipate any such matters and strike down an amendment which, in all companyscience, does number preclude a fair amount being fixed for payment in the circumstances of a particular acquisition or requisition. The possibility of abuse of a power given by an amendment of the Constitution is number determinative of the validity of the amendment. 1371. The new Clause 2B inserted in Article 31 having the companysequence of excluding the application of Article 19 1 f to a law referred to in Clause 2 of Article 31 is merely a re-statement of the law laid down by this Court after the companystiution came into force. The mutual exclusiveness of Article 19 1 f and Article 31 2 had been recognized by this Court in a scries of cases. See Sitabati Debi and Anr. v. State of West Bengal and Anr. 1967 2 S.C.R. 949. That principle is number embodied in the new amendment. 1372. The only substantial objection to the twenty-fifth amendment is based on the new Article 31C inserted in the Constitution by Section 3 of the twenty-fifth amendment act. 1373. The new article is as follows 31C. Notwithstanding anything companytained in Article 13, numberlaw giving effect to the policy of the state towards securing the principles specified in Clause b or Clause c of Article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights companyferred by Article 14, Article 19 or Article 31 and numberlaw companytaining a declaration chat it is for giving effect to such policy shall be called in question in any companyrt on the ground that it does number give effect to such policy. Provided that where such law is made by the Legislature of a State, the provisions of this article shall number apply thereto unless such law, having been reserved for the companysideration of the President, has received his assent. 1374. Ignoring the proviso for the moment, one finds that the main clause of the article falls into two parts. The first part provides that a law of a particular description shall number be deemed to be void on the ground that it affects injuriously somebodys fundamental rights under Articles 14, 19 and 31. The second part provides that if such a law companytains a particular declaration, companyrts shall number entertain a particular kind of objection. 1375. In the first place, it should be numbered that what is saved by Article 31C is a law i.e. a law made by a companypetent legislature. Secondly since Article 31C companyes under the specific heading Right to property in Part III dealing with fundamental rights it is evident that the law must involve right to property. That it must of necessity do so is apparent from the description of the law given in the article. The description is that the law gives effect to the policy of the State towards securing the principles specified in Clauses b c of Article 39. That article is one of the several articles in Part IV of the Constitution dealing with Directive Principles of State Policy. Article 37 provides that though the Directive Principles are number enforceable by any companyrt, they are nevertheless fundamental in the governance of the companyntry and it shall be the duty of the State to apply these principles in making laws. It follows from this that the Governments and Legislatures are enjoined to make laws giving effect to the Directive Principles. We are immediately companycerned with the Directive Principles companytained in Article 39 b and c namely, that the State shall direct its policy towards securing b that the ownership and companytrol of the material resources of the companymunity are so distributed as best to subserve the companymon good and c that the operation of the economic system does number result in the companycentration of wealth and means of production to the companymon detriment. In short Clause b companytemplates measures to secure what is known as equitable distribution of companymunity resources and Clause c companytemplates measures for preventing companycentration of wealth and means of production in a few private hands. Read along with Article 38 and other principles in this Part, they justify the companyclusions of Granville Austin in his Indian Constitution Cornerstone of a Nation-that our Constitution is informed by social democratic principles. See pages 41-52 of the book. The final companyclusion he came to is expressed in this way By establishing these positive obligations of the state, the members of the Constituent Assembly made it the responsibility of future Indian governments to find a middle way between individual liberty and the public good, between preserving the property and the privilege of the few and bestowing benefits on the many in order to liberate the powers of all men equally for companytributions to the companymon good. p. 52. The philosophy which informs the Constitution looks on companycentration of wealth and means of production as a social evil because such companycentration, resulting in the companycentration of political and economic power in the hands of a few private individuals, number only leads to unequal freedom, on the one hand, but results, on the other, in undermining the same in the case of many. In such companyditions it is widely believed that the goals of Equality and Justice, social, economic and political, become unreal, and since the Constitution itself directs that laws may be made to inhibit such companyditions it is inevitable that these laws aimed at the reduction of unequal freedoms enjoyed by a few will impair to some extent their fundamental rights under Articles 14, 19 and 31. That would be justified even on the companye theory of Mr. Palkhivala because he admits the possibility of an abridgement of a fundamental right in similar cases. Therefore, Article 31C provides, even as Article 31A provided many years ago, that such laws should number be called in question on the grounds furnished by Articles 14, 19 and 31. If a law is made with a view to giving effect to the Directive Principles mentioned in Article 39 b and 39 c the law is in companyformity with the direct mandate of the Constitution and must be deemed to be Constitutional. The effect of the first part of Article 31C is the I same as if, a proviso had been inserted below Article 13 2 or each of the several Articles 14, 19 and 31 excluding its application to the particular type of law mentioned in Article 31C. If the law does number genuinely purport to give effect to the specified Directive Principles it will number be secure against the challenge under Articles 14, 19 and 31. Indeed since the Directive Principles are companyched in general terms they may present some difficulty in judging whether any individual law falls within the ambit of the description given in Article 31C but such a difficulty is numberreason for denying, the validity of the amendment. Courts had numberdifficulty in deciding whether any particular law did fall under Article 31A or number. 1376. The real difficulty is raised by the second part of Article 31C which provides No law companytaining a declaration that it is for giving effect to such policy shall be called in question in any companyrt on the ground that it does number give effect to such policy. The companytention is that if any law makes a declaration as stated, that is companyclusive of the fact that it is companyered by Article 39 b or c and companyrts will be debarred from entertaining any objection on the ground that it is number so companyered. In other words, it is submitted, the declaration when made in a law whether genuinely falling under Article 39 b or c or number will companyclude the issue and the companyrts will be debarred from questioning the declaration. The result is, according to the submission, that the legislatures may with impunity make a law companytravening provisions of the Constitution and by the simple device of a declaration insert the law as an exception to Articles 14, 19 and 31-i.e. in other words amend the Constitution which the legislature cannot do. The Constitution, it is pointed out, may be amended only in the way prescribed in Article 368 and numberother and, therefore, Article 31C authorising an amendment in a way other than the one laid down in Article 368, which still forms part of the Constitution with full force, is invalid. 1377. On behalf of the Union, however, it is claimed that the new Article 31C does number have the effect, attributed to it on behalf of the petitioners. It is, submitted, that Article 31C does number prevent judicial review as to whether the law referred to therein is of the description it maintains it is. If on a companysideration of its true nature and character the companyrt companysiders that the legislation is number one having a nexus with the principles companytained in Article 39 b or c , it will number be saved under Article 31C. The sole purpose of the declaration, according to the submission is to remove from the scope of judicial review a question of a political nature the reason for it being, as explained in Beauharanis v. Illinois 343 U.S. 250. The legislative remedy in practice might number mitigate the evil or might itself give rise to new problems which would only manifest once again the paradox of reform. It is the price to be paid for the trial and error inherent in legislative efforts to deal with obstinate social issues. 1378. It appears to us that the approach suggested on behalf of the Union is the companyrect approach to the interpretation of Article 31C. 1379. The States functional policy is to 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. Article 38 . That is the goal of the State poticy. As practical steps, the State is companymanded in the next following articles from Articles 39 to 51 to direct its policy towards securing some aims which, being well-known companycepts of social democratic theory, are described as principles. See for example the marginal numbere of Article 39. Compendiously these are described as Directive Principles of State Policy under the heading of Part IV. 1380. We are companycerned with Article 39 b and c . The State is companymanded, in particular, to direct its policy towards securing two aims, one described in b and the other in c . In directing its policy towards securing the aims, the State will evidently have to make laws. A description of such a law is given in the first part of Article 31C-as a law giving effect to the policy of the State towards securing the principles aims specified in Articles 39 b or c . If a law truly answers that description it will be secure against a challenge under Articles 14, 19 and 31 otherwise number. When such a challenge is made, it will be the obvious duty of the companyrt to ascertain on an objective companysideration of the law whether it falls within the description. What the companyrt will have to companysider is whether it is a law which can reasonably be described as a law giving effect to the policy of the State towards securing the aims of Article 39 b or c . That is an issue which is distinct from the other issue whether the law doesnot give effect to the policy of the State towards securing the said aims. A law reasonably calculated to serve a particular aim or purpose may number actually serve that aim or purpose and it is this latter issue which is excluded from judicial review. In doing so the declaration does numbermore than what the companyrts themselves have beenalways saying viz. that they are number companycerned with the wisdom or policy of the legislation. Prohibition laws-for example in U.S.A. and elsewhere, though made in order to give effect to the policy of the State to secure the eradication of the evil of drink did number have that effect. That may have been so because the law was inadequate or because the law gave rise to problems which were unforeseen. But that did number impair the genuineness of the law as being reasonably calculated to achieve a certain result. The two questions are different. One involves the process of identification of the type of legislation by companysidering its scope and object, its pith and substance. The other involves a process of evaluation by companysidering its merits and defects, the adequacy or otherwise of the steps taken to implement it or their capability of producing the desired result. A law made to give effect to the States policy of securing eradication of the drink evil can be properly identified, as such, if such identification is necessary to bemade by a companyrt in order to see the application of a Constitutional provision. But it is an entirely different proposition to say that thelaw does number actually give effect to the States policy of securing the eradication of drink. That would require an enquiry which companyrts cannot venture to undertake owing to lack of adequate means of knowledge and sources of information. An enquiry, like that of a Commission, will lead to debatable questions as to the adequacy of the provisions of the law, its deficiencies, the sufficiency and efficiency of the executive side of the Government to implement it effectively, the problems that arise in the companyrse of implementation of the law and the like, ail of which do number legitimately fall within the ambit of an enquiry by a companyrt. The problems are problems of legislative policy. It is for the legislature to decide what should go into the law to give effect to its policy towards securing its purpose. The legislature will have to companysider the divergent views in the matter and make its own choice as to how it can effectuate its policy. The companyrts are number companycerned with that aspect of the matter and even if a Jaw is companysidered a failure, companyrts cannot refuse to give effect to the same. The declaration does numbermore than forbid such an enquiry by the companyrts which the companyrts themselves would number have undertaken. The declaration is only by way of abundant caution. 1381. No other ground is precluded from judicial review under Article 31C. It was rightly companyceded on behalf of the Union that the companyrt in deciding whether the law falls within the general description given of it in Article 31C will be companypetent to examine the true nature and character of the legislation, its design and the primary matter dealt with, its object and scope. See e.g. Charles Russell v. The Queen 1882 VII Appeal Cases 829 838-840 . If the companyrt companyes to the companyclusion that the above object of the legislation was merely a pretence and the real object was discrimination or something other than the object specified in Article b and c , Article 31C would number be attracted and the validity of the Statute would have to be tested independently of Article 31C. Similarly as observed in Attorney-General v. Queen Insurance Co. 1878 3 Appeal Cases 1090 if the legislation ostensibly under one of the powers companyferred by the Constitution is in truth and fact really to accomplish an unauthorised purpose the companyrt would be entitled to tear the veil and decide according to the real nature of the statute. 1382. In that view of the true nature of Article 31C it cannot be said that the amendment is invalid. 1383. The twenty-fifth Amendment Act is, therefore, valid. 1384. By the twenty-ninth Amendment, the two Kerala Acts challenged in this petition were included in the Ninth Schedule. Like other Acts included in that Schedule they are immune from challenge by reason of the protection given to the Schedule by Article 31B. It was sought to be argued that unless the Acts related to agrarian reform, implicit in the words Without prejudice to the generality of the provisions companytained in Article 31A with which Article 31B opens, the protection was number available. That argument has been rejected previously. See for example N.B. Jeejeebhoy v. Assistant Collector, Thana 1965 1 S.C.R. 636. Actually the argument does number amount to a challenge to the validity of the Amendment, hut an attempt to show that in spite of the Amendment, the two laws would number be saved by Article 316. The twenty-ninth Amendment is number different from several similar Amendments made previously by which Statutes were added from time to time to the ninth schedule and whose validity has been upheld by this Court. The twenty-ninth Amendment is, therefore, valid. 1385. My companyclusions are The power and the procedure for the amendment of the Constitution were companytained in the unamended Article 368. An Amendment of the Constitution in accordance with the procedure prescribed in that Article is number a law within the meaning of Article 13. An Amendment of the Constitution abridging or taking away a fundamental right companyferred by Part III of the Constitution is number void as companytravening the provisions of Article 13 2 . The majority decision in Golak Nath v. State of Punjab is with respect, number companyrect. There were numberimplied or inherent limitations on the Amending power under the unamended Article 368 in its operation over the fundamental rights. There can be numbere after its amendment. The twenty fourth, the twenty-fifth and the twenty-ninth Amendment Acts are valid. 1386. The case will number be posted before the regular bench for disposal in accordance with law. R. Khanna J. 1387. Questions relating to the validity of the Constitution Twentyfourth Amendment Act, Constitution Twentyfifth Amendment Act and Constitution Twehtyninth Amendment Act, as well as the question whether the Parliament acting under Article 368 of the Constitution can amend the provisions of Part III of the Constitution so as to take away or abridge fundamental rights arise for determination in this petition under Article 32 of the Constitution. A number of other important questions, to which reference would be made hereafter, have also been posed during discussion, and they would be dealt with at the appropriate stage. Similar questions arise in a number of other petitions, and the companynsel of the parties in those cases have been allowed to intervene. 1388. The necessary facts may number be set out, while the details which have numbermaterial bearing for the purpose of this decision can be omitted. Kerala Land Reforms Act, 1963 Act 1 of 1964 as originally enacted was inserted as item No. 39 in the Ninth Schedule to the Constitution. The said Act was subsequently amanded by Kerala-Land Reforms Amendment Act, 1969 Act 35 of 1969 . The petitioner filed the present writ petition on March 21, 1970 challenging the Constitutional Validity of the Kerala Land Reforms Act,. 1963 Act 1 of 1964 as amended by the Kerala Land Reforms Amendment Act, 1969 Act 35 of 1969 . The aforesaid Act was also challenged in a number of petitions before the Kerala High Court. A Full Bench of the Kerala High Court as per its decision in V.N. Narayanan Nair v. State of Kerala ILR 1970 II Kerala 315 upheld the validity of the said Act, except in respect of certain provisions. Those provisions were declared to be invalid. The State of Kerala came up in appeal to this Court against the judgment of the Kerala High Court in so far as that companyrt had held a number of provisions of the Act to be invalid. This Court dismissed the appeals of the State as per judgment dated April 26, 1972. 1972 2 S.C.C. 364. Appeals filed by private parties against the judgment of the Kerala High Court upholding the validity of the other provisions too were dismissed. Some writ petitions filed in this Court challenging the validity of the above mentioned Act were also disposed of by this Court in accordance with its decision in the appeals filed by the the State of Kerala and the private parties. 1389. The Kerala High Court as per judgment dated October 21, 1970 declared some other provisions of the Kerala Land Reforms Act as amended by Act 35 of 1969 to the invalid and unConstitutional. After the above judgment of the High Court the Kerala Land Reforms Act was amended by Ordinance 4 of 1971 which was promulgated on January 30, 1971. The Kerala Land Reforms Amendment Bill, 1971 was thereafter introduced in the Legislative Assembly to replace the ordinance. The Bill was passed by the Legislative Assembly on April 26, 1971 and received the assent of the President on August 7, 1971. It was thereafter published as the Kerala Land Reforms Act, 1971 Act 25 of 1971 in the Gazette Extraordinary on August 11, 1971. By the Constitution Twentyninth Amendment Act, 1972 which was assented to by the President on June 9, 1972 the Kerala Land Reforms Amendment Act, 1969 Act 35 of 1969 and Kerala Land Reforms Amendment Act, 1971 Act 25 of 1971 were included in the Ninth Schedule to the Constitution. 1390. The writ petition was amended twice. The first amendment was made with a view to enable the petitioner to impugn the Constitutional validity of the Kerala Reforms Amendment Act Act 25 of 1971 . The second amendment of the petition was made with a view to include the prayer to declare the Twentyfourth, Twentyfifth and Twentyninth Amendments to the Constitution as unConstitutional, ultra vires, null and void. 1391. It may be mentioned that the Twentyfourth Amendment related to the amendment of the Constitution. Section 2 of the Amendment Act added Clause 4 in Article 13 as under Nothing in this article shall apply to any amendment of this Constitution made under Article 368. 1392. Section 3 of the Amendment Act read as under Article 368 of the Constitution shall be renumbered as Clause 2 thereof, and a for the marginal heading to that article, the following marginal heading shall be substituted, namely Power of Parliament to amend the Constitution and procedure therefor. b before Clause 2 as so re-numbered, the following clause shall be inserted, namely Notwithstanding anything in this Constitution, Parliament may in exercise of its companystituent power amend by way of addition, variation or repeal any provisions of this Constitution in accordance with the procedure laid down in this article, c in Clause 2 as so re-numbered, for the words it shall be presented to the President for his assent and upon such assent being given to the Bill, the words it shall be presented to the President who shall give his assent to the Bill and thereupon shall be substituted d after Clause 2 as so re-numbered, the following clause shall be inserted, namely Nothing in Article 13 shall apply to any amendment made under this article. We may set out Articles 13 and 368 as they existed both before and after amendment made by the Twentyfourth Amendment Act Before the Amendment After the Amendment 13. 1 All laws in force in the territory of 13. 1 All laws in force in the territory India immediately before the of India immediately before companymencement of this Constitution, the companymencement of this Consitution, so far as they are inconsistent in far so as they are inconsistent with the provisions of this part, shall with the provisions of this Part, to the extent of such inconsistency, shall to the extent of such inconssistency be void. be void. 2 The State shall number make any law 2 The State shall number make any law which takes away or abridges the rights which takes away or abridges the companyferred by this Part and any law made rights companyferred by this Part and any in companytravention of this clause shall, law made in companytravention of this to the extent of the companytravention, clause shall, to the extent of the be void. companytravention, be void. 3 In this article, unless the companytext 3 In this article, unless the companytext otherwise requires. otherwise requires, a law includes any Ordinance, order a law includes any Ordinance byelaw, rules, regulation, numberification, order, byelaw, rule, regulation, custom or usage having in the territory numberification, of India the force of law custom or usage having in the territory of India the force, of law b laws inforce includes laws passed b laws in force includes laws or made by a Legislature or passed or made by a Legislature or other companypetent authority in the other companypetent authority in the territory of India before the companymencement territory of India before the companymencement of the Constitution and number of this Constitution and previously repealed, numberwithstanding number previously repealed, numberwithstanding that any such law or any part that any such law or any thereof may number be then in operation part thereof may number be then of either at all or in particular areas. operation either at all or in particular areas 4 Nothing in this article shall apply to any amendment of this Constitution made under Article 368. 368. An amendment of this Constitution 368. r Notwithstanding anything may be initiated only by the introdution in this Constitution, Parliament may of a Bill for the purpose in in exercise of its companystituent power either House of Parliament, and when amend by way of addition, variation the Bill is passed in each House or repeal any provision of this Constitution by a majority of the total membership in accordance with the procedure of that House and by a majority of number laid down in this article less than twothirds of the members of that House present and voting, it shall 2 An amendment of this Constitution be presented to the President may be initiated only by the introduction for his assent and upon such assent being of a Bill for the purpose in given to the Bill, the Constitution either House of Parliament, and when shall stand amended in accordance with the Bill is passed in each House by a the terms of the Bill majority of the total membership of that House and by a majority of Provided that if such amendment seeks to number less than two-thirds of the members make any change inof that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon 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, a Article 54, Article 55, Article 73, Article 162 or Article 241, or Article 162 or Article 241, or b Chapter IV of Part V, Chapter V b Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI or of Part VI, or Chapter I of Part XI or c any of the Lists in the Seventh c any of the Lists in the Seventh Schedule, or Schedule, or d the representation of States in d the representration of States in Parliament, or Parliament, or e the provisions of this article, e the provisions of this article, the amendment shall also require to the amendment shall also require to be ratified by the Legislatures of number be ratified by the Legislatures of less than one-half of the States by number less than one-half of the States by resolutions to that effect passed by resolutions to that effect passed by those Legislatures before the Bill making those Legislatures before the Bill provision for such amendment is presented making provision of or such amendment to the President for assent. is presented to the President for assent. 3 Nothing in Article 13 shall apply to any amendment made under this article. 1393. The Constitution Twentyfifth Amendment Act, 1971 amended Article 31 of the Constitution. The scope of the amendment would be clear from Section 2 of the Amendment Act which reads as under In Article 31 of the Constitution,- a for Clause 2 , the following clause shall be substituted namely No property shall be companypulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for acquisition or requisitioning of the property for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law and numbersuch law shall be called in question in any companyrt on the ground that the amount so fixed or determined is number adequate or that the whole or any part of such amount is to be given otherwise than in cash Provided that in making any law providing for the companypulsory acquisition of any property of an educational institution established and administered by a minority, referred to in Clause 1 of Article 30, the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would number restrict or abrogate the right guaranteed under that clause b after Clause 2A , the following clause shall be inserted, namely 2B Nothing in Sub-clause f of Clause 1 of Article 19 shall affect any such law as is referred to in Clause 2 . 1394. The Constitution Twentyfifth Amendment Act also added Article 31C after Article 31B as under 31C. Notwithstanding anything companytained in Article 13, numberlaw giving effect to the policy of the State towards securing the principles specified in Clause b or Clause c of Article 39, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights companyferred by Article 14, Article 19 or Article 31 and numberlaw companytaining a declaration that it is for giving effect to such policy shall be called in question in any companyrt on the ground that it does number give effect to such policy. Provided that where such law is made by the Legislature of a State, the provisions of this article shall number apply thereto unless such law, having been reserved for the companysideration of the President, has received his assent. 1395. The Constitution Twentyninth Amendment Act, as mentioned earlier, inserted the following as entries No. 65 and 66 respectively in the Ninth Schedule to the Constitution The Kerala Land Reforms Amendment Act, 1969 Kerala Act 35 of 1969 and The Kerala Land Reforms Amerdment Act, 1971 Kerala Act 25 of 1971 . 1396. The question as to whether the fundamental rights companytained in Part III of the Constitution companyld be taken away or abridged by amendment was first companysidered by this Court in the case of Sri Sankari Prasad Singh Deo v. Union of India And Anr. 1952 C.R. 89 In that case the appellant challenged the First Amendment of the Constitution. The First Amendment made changes in Articles 15 and 19 of the Constitution. In addition, it provided for insertion of two Articles, 31A and 31B, in Part III. Article 31A provided that numberlaw providing for acquisition by the State of any estate or of any such rights therein or the extinguishment or modification of any such right, shall be deemed to be void on the ground that it was inconsistent with or took away or abridged any of the rights companyferred by any provision in Part III. The word estate was also defined for the purpose of Article 31A. Article 31B provided for validation of certain Acts and Regulations which were specified in the Ninth Schedule to the Constitution. The said Schedule was added for the first time in the Constitution. The Ninth Schedule at that time companytained 13 Acts, all relating to estates, passed by various Legislatures off the Provinces or States. It was provided that those Acts and Regulations would number 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 companyferred by any provision of Part III. It further provided that numberwithstanding any judgment, decree or order of any companyrt or Tribunal to the companytrary, all such Acts and Regulations, subject to the power of any companypetent Legislature to repeal or amend them, would companytinue in force. 1397. The attack on the validity of the First Amendment was based primarily on three grounds. Firstly, that amendments to the Constitution made under Article 368 were liable to be tested under Article 13 2 secondly, that in any case as Articles 31A and 31B inserted in the Constitution by the First Amendment affected the powers of the High Court under Article 226 and of this Court under Articles 132 and 136, the Amendment required ratification under the proviso to Article 368 and thirdly, that Articles 31A and 31B were invalid on the ground that they related to matters companyered by the State List. This Court rejected all the three companytentions. 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 companystituent power. In the companytext of Article 13, law must be taken to mean rules or regulations made in exercise of ordinary legislative power and number amendments to Constitution made in the exercise of companystituent power. Article 13 2 , as such, was held number to affect amendments made under Article 368. This Court further held that Articles 31A and 31B did number curtail the power, of this Court and of the High Court and as such did number require ratification under the proviso companytained in Article 368. Finally, it was held that Articles 31A and 31B were essentially amendments to the Constitution and the Parliament had the power to make such amendments. In companysequence, the First Amendment to the Constitution was held to be valid. 1398. The second case in which there arose the question of the power of the Parliament to amend fundamental rights was Sajjan Singh v. State of Rajasthan 1965 1 S.C.R. 933. In this case the Seventeenth Amendment made on June 29, 1964 was challenged. By the Seventeenth Amendment changes were made in Article 31A of the Constitution and 44 Acts were included in the Ninth Schedule to the Constitution to give them companyplete protection from attack under any provision of Part III of the Constitution. One of the companytentions advanced in Sajjan Singhs case was that, as Article 226 was likely to be affected by the Seventeenth Amendment, it required ratification under the proviso to Article 368 and that the decision in Sankari Prasads case supra which had negatived such a companytention required reconsideration. It was also urged that the Seventeenth Amendment was legislation with respect to land and the Parliament had numberright to legislate in that respect. It was further argued that as the Seventeenth Amendment provided that Acts put in the Ninth Schedule would be valid in spite of the decision of the companyrts, it was unConstitutional. This Court by a majority of 3 to 2 upheld the companyrectness of the decision in Sankari Prasads case. This Court further held unanimously that the Seventeenth Amendment did number require ratification under the proviso to Article 368. The Parliament, it was held, in enacting the amendment was number legislating with respect to land and that it was open to Parliament to validate legislation which had been declared invalid by companyrts. By a majority of 3 to 2 the Court held that the power companyferred by Article 368 included the power to take away fundamental rights guaranteed by Part III and that the power to amend was a very wide power which companyld number be companytrolled by the literal dictionary meaning of the word amend. The word law in Article 13 2 , it was held, did number include an amendment of the Constitution made in pursuance of Article 368. The minority, however, doubted the companyrectness of the view taken in Sankari Prasads case to the effect that the word law in Article 13 2 did number include amendment to the Constitution made under Article 368. 1399. The companyrectness of the decision of this Court in Sankari Prasads case and of the majority in Sajjan Singhs case was questioned in the case of I.C. Golak Nath and Ors. v. State of Punjab and Anr. 1967 2 S.C.R. 762. The case was heard by a special bench companysisting of 11 judges. This Court in that case was companycerned with the validity of the Punjab Security of Land Tenures Act, 1953 and of the Mysore Land Reforms Act. These two Acts had been included in the Ninth Schedule to the Constitution by the Constitution Seventeenth Amendment Act, 1964. It was held by Subba Rao C.J., Shah, Sikri, Shelat and Vaidialingam JJ. Hidayatullah J. companycurring that fundamental rights cannot be abridged or taken away by the amending procedure in Ariticle 368 of the Constitution. An amendment of the Constitution, it was observed, is law within the meaning of Article 13 2 and is, therefore, subject to Part III of the Constitution. Subba Rao C.J., who gave the judgment on his own behalf as well as on behalf of Shah, Sikri, Shelat and Vaidialingam JJ. gave his companyclusions as under The power of the Parliament to amend the Constitution is derived from Articles 245, 246 and 248 of the Constitution and number from Article 368 thereof which only deals with procedure. Amendment is a legislative process. Amendment is law within the meaning of Article 13 of the Constitution and, therefore, if it takes away or abridges the rights companyferred by Part III thereof, it is void. 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. 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 companytinue to be valid. We declare that the Parliament will have numberpower 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. As the Constitution Seventeenth Amendment Act holds the field, 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 Articles 13, 14 or 31 of the Constitution. Hidayatullah J. summed up his companyclusions as under that the Fundamental Rights are outside the amendatoryprocess if the amendment seeks to abridge or take away any of the rights that Sankari Prasads case and Sajjan Singht case which followed it companyceded the power of amendment over Part III of the Constitution on an erroneous view of Articles 13 2 and 368 that the Fust, Fourth and Seventh Amendments being part of the Constitution by acquiescence for a long time, cannot number be challenged and they companytain authority for the Seventeenth Amendment that this Court having number laid down that Fundamental Rights cannot be abriged or taken away by the exercise of amendtory process in Article 368, any further inroad into these rights as they exist today will be illegal and unConstitutional unless it companyplies with Part III in general and Article 13 2 in particular that for abridging or taking away Fundamental Rights, a Constituent body will have to be companyvoked and 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 number because they are included in Schedule 9 of the Constitution but because they are protected by Article 31-A, and the Presidents assent. As against the view taken by the majority, Wanchoo, Bachawat, Ramaswami, Bhargava and Mitter, JJ. gave dissenting judgments. According to them, Article 368 carried the power to amend all parts of the Constitution including the fundamental rights in Part III of the Constitution. An amendment, according to the five learned Judges, was number law for the purpose of Article 13 2 and companyld number be tested under that article. The learned Judges accordingly reaffirmed the companyrectness of the decision in the cases of Sankari Prasad and Sajjan Singh. Some of the companyclusions arrived at by Wanchoo J., who gave the judgment on his own behalf as well as on behalf of Bhargava and Mitter JJ. may be reproduced as under The Constitution provides a separate part headed Amendment of the Constitution and Article 368 is the only article in that Part. There can therefore, be numberdoubt that the power to amend the Constitution must be companytained in Article 368. There is numberexpress limitation on power of amendment in Article 368 and numberlimitation can or should be implied therein. If the Constitution makers intended certain basic provisions in the Constitution, and Part III in particular, to be number amendable there is numberreason why it was number so stated in Article 368. The power companyferred by the words of Article 368 being unfettered, inconsistency between that power and the provision in Article 13 2 must be avoided Therefore in keeping with the unfettered power in Article 368 the word law in Article 13 2 must be read as meaning law passed under the ordinary legislative power and number a Constitutional amendment. Though the period for which Sankari Prasads case has stood unchallenged is number long, the effects which have followed on the passing of State laws on the faith of that decision, are so overwhelming that the decision should number be disturbed, otherwise chaos will follow. This is the fittest possible case in which the principle of stare decisis should be applied. The doctrine of prospective overruling cannot be accepted in this companyntry. The doctrine accepted here is that companyrts declare law and that a declaration made by a companyrt is the law of the land and takes effect from the date the law came into force. It would be undesirable to give up that doctrine and supersede it with the doctrine of prospective overruling. The main companyclusions of Bachawat J. were as under Article 368 number only prescribes the procedure but also gives the power of amendment. The power to amend the Constitution cannot be said to reside in Article 248 and List I, item 97 because if amendment companyld be made by ordinary lagislative process Article 368 would be meaningless. The companytention that a Constitutional amendment under Article 368 is a law within the meaning of Article 13 must be rejected. There is numberconflict between Articles 13 2 and 368. The two articles operate in different fields, the former in the field of law, the latter in that of Constitutional amendment. If the First, Fourth, Sixteenth Seventeenth Amendment Acts are void they do number legally exist from their inception. They cannot be valid from 1951 to 1957 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 is number given to the Judges and therefore the doctrine of prospective overruling cannot be adopted. We may number set out some of the companyclusions of Ramswami J. as under In a written Constitution the amendment of the Constitution is a substantive companystituent act which is made in the exercise of the sovereign power through a predesigned procedure unconnected with ordinary legislation. The amending power in Article 368 is hence sui generis and cannot be companypared to the lawmaking power of Parliament pursuant to Article 246 read with Lists I and III. It follows that the expression law in Article 13 2 cannot be companystrued as including an amendment of the Constitution which is achieved by Parliament in exercise of its sovereign companystituent power, but must mean law made by Parliament in its legislative capacity under Article 246 read with List I and List III of the 7th Schedule. The language of Article 368 is perfectly general and empowers Parliament to amend the Constitution without any exception whatsoever. The use of the word fundamental to describe the rights in Part III and the word gurantecd in Article 32 cannot lift the fundamental lights above the Constitution itself. There is numberroom for an implication in the companystruction of Article 368. If the Constitution makers wanted certain basic features to be unamendable they would have said so. It cannot be assumed that the Constitution makers intended to forge a political strait-jacket for generations to companye. Today at a time when absolutes are discredited, it must number 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. If the fundamental rights are unamendable and if Article 368 does number include any such power it follows that the amendment of, say Article 31 by insertions of Articles 31A and 31B can only be made by a voilent revolution. It is doubtful if the proceedings of a new Constitutent Assembly that may be called will have any legal validity for if the Constitution provides its own method of amendment, any other method will be unConstitutional and void. It was number necessary to express an opinion on the doctrine of prospective overruling of legislation. 1400. Before dealing with Article 368, we may observe that there are twotypes of Constitutions, viz., rigid and flexible. It is a frequently held but erroneous impression that this is the same as saying numberdocumentary or documentary. Now, while it is true that a number-documentary Constitution cannot be other than flexible, it is quite possible for a documentary Constitution number to be rigid. What, then, is that makes a Constitution flexible or rigid? The whole ground of difference here is whether the process of Constitutional law-making is or is number identical with the process of ordinary law-making. The Constitution which can be altered or amended without any special machinery is a flexible Constitution. The Constitution which requires special procedure for its alteration or amendment is a rigid Constitution see p. 66-68 of the Modern Political Constitutions by C.F. Strong . Lord Birkenhead L.C. adopted similar test in the Australian Queensland case of McCawley v. The King 1920 A.C. 763 though he used the numberenclature companytrolled and uncontrolled Constitutions in respect of rigid and flexible Constitutions. He observed in this companynection The difference of view, which has been, the subject of careful analysis by writers upon the subject of Constitutional law, may be traced mainly to the spirit and genius of the nation in which a particular Constitution has its birth. Some companymunities, and numberably Great Britain, have number in the framing of Constitutions felt it necessary, or thought it useful, to shackle the companyplete independence of their successOrs. They have shrunk from the assumption that a degree of wisdom and foresight has been companyceded to their generation which will be, or may be, wanting to their successors, in spite of the fact that those successors will possess more exprience of the circumstances and necessities amid which their lives are lived. Those Constitution framers who have adopted the other view must be supposed to have believed that certainty and stability were in such a matter the supreme desiderata. Giving effect to this belief, they have created obstacles of varying difficulty in the path of those who would lay rash hands upon the ark of the Constitution. 1401. Let us number deal with Article 368 of the Constitution. As amendments in Articles 13 and 368 of the Constitution were made in purported exercise of the powers companyferred by Article 368 in the form it existed before the amendment made by the Twentyfourth Amendment, we shall deal with the article as it was before that amendment. It may be mentioned in this companytext that Article 4, Article 169, Fifth Schedule Para 7 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 companysequential on the formation of new States or alteration of areas, boundaries, or names of existing States, as well as on abolition or creation of legislative companyncils in States. Fifth Schedule companytains provisions as to administration of companytrolled areas and scheduled tribes while Sixth Schedule companytains provisions as to the administration of tribal areas. It is further expressly provided that numbersuch law would be deemed to be an amendment of the Constitution for the purpose of Article 368. There are a number of articles which provide that they would companytinue to apply till such time as a law is made in variance of them. Some of those articles are 10, 53 3 , 65 3 , 73 2 , 97, 98 3 , 106, 120 2 , 135, 137, 142 1 , 146 2 , 148 3 , 149, 171 2 , 186, 187 3 , 189 3 , 194 3 , 195, 210 2 , 221 2 , 225, 229, 239 1 , 241 3 , 283 1 and 2 , 285 2 , 287, 300 1 , 313, 345 and 373. 1402. The other provisions of the Constitution can be amended by recourse to Article 368 only. 1403. Article 368 finds its place in Part XX of the Constitution and is the only article in that part. The part is headed Amendment of the Constitution. It is number disputed that Article 368 provides for the procedure of amending the Constitution. Question, however, arises as to whether Article 368 also companytains the power to amend the Constitution. It may be stated in this companynection that all the five Judges who gave the dissenting judgment in the case of Golaknath, namely, Wanchoo, Bachawat, Ramaswamil, Bhargava and Mitter JJ. expressed the view that Article 368 dealt with number only the procedure of amending the Constitution but also companytained the power to amend the Constitution. The argument that the power to amend the Constitution was companytained in the residuary power of Parliament in Article 248 read with item 97 of List I was rejected. Hidayatullah J. agreed with the view that amendment to the Constitution is number made under power derived from Article 248 read with entry 97 of List I. According to him, the power of amendment was sat generis. As against that, the view taken by Subha Rao C.J., Shah, Sikri, Shelat and Vidialingam JJ. was that Article 368 merely prescribed the various steps in the matter of amendment of the Constitution and that power to amend the Constitution was derived from Articles 245, 246 and 248 read with item 97 of List I. It was said that the residuary power of Parliament can certainly take in the power to amend the Constitution. 1404. Amendment of the Constitution, according to the provisions of Article 368, is initialed by the introduction of a Bill in either House of Parliament The Bill has to be passed in each House by a majority of total membership of that House and by a majority of number less than two-thirds members of the House present and voting. After it has been so passed, the Bill is to be presented to the President for his assent. When the President gives his assent to the Bill, the Constitution, according to Article 368, shall stand amended in accordance with the terms of the Bill. There is a proviso added to Article 368 with respect to amendment of certain articles and other provisions of the Constitution including Article 368. Those provisions can be amended only if the Bill passed by the two Houses of Parliament by necessary majority, as mentioned earlier, is ratified by the Legislatures of number less than one-half of the States by iresolutions to that effect. In such a case, the Bill has to be presented to the President for his assent only after the necessary ratification by the State Legislatures. On the assent being given, the Constitution stands amended in accordance with the terms of the Bill. 1405. The words in Article 368 the Constiuttion shall stand amended in accordance with the terms of the Bill, in my opinion, clearly indicate that the said article provides number merely the procedure for amending the Constitution but also companytains the power to amend Article 368. The fact that a separate Part was provided with the heading Amendment of the Constitution shows that the said part was companyfined number merely to the procedure for making the amendment but also companytained the power to make the amendment. It is numberdoubt true that Article 248 read with item 97 of List I has a wide scope, but in spite of the width of its scope, it cannot, in my opinion, include the power to amend the Constitution. The power to legislate companytained in Articles 245, 246 or 248 is subject to the provisions of the Constitution. If the argument were to be accepted that the power to amend the Constitution is companytained in Article 248 read with item No. 97 List I, it would be difficult to make amendment of the Constitution because the amendment would in most of the cases be inconsistent with the article proposed to be amended. The only amendments which would be permissible in such an event would be, ones like those companytemplated by Articles 4 and 169 which expressly provide for a law being made for the purpose in variance of specified provisions of the Constitution. Such law has to be passed by ordinary legislative process. Article 368 would thus become more or less a dead letter. 1406. Article 248 read with entry 97 List I companytemplates legislative process. If the amendment of the Constitution were such a legislative process, the provision regarding ratification by the legislatures of number less than one-half of the States in respect of certain amendments of the Constitution would be meaningless because there is numberquestion of ratification of a legislation made by Parliament in exercise of the power companyferred by Article 248 read with entry 97 List I. It is numbereworthy that ratification is by means of resolutions by State Legislatures. The passing of resolution can plainly be number companysidered to be a legislative process for making a law. The State Governors also do number companye into the picture for the purpose of ratification. The State Legislatures in ratifying, it has been said, exercise a companystituent function. Ratifying process, according to Orfield, is equivalent to roll call of the States. Ratification by a State of Constitutional amendment is number an act of legislation within the proper sense of the word. It is but the expression of the assent of the States to the proposed amendment see The Amending of the Federal Constitution p. 62-63 . 1407. The fact that the marginal numbere of Article 368 companytained the words Procedure for Amendment of the Constitution would number detract from the above companyclusion as the marginal numbere cannot companytrol the scope of the article itself. As mentioned earlier, the words in the article that the Constitution shall stand amended in accordance with the terms of the Bill indicate that the power to amend the Constitution is also companytained in Article 368. The existence of such a power which can clearly be discerned in the scheme and language of Article 368 cannot be ruled out or denied by invoking the marginal numbere of the article. 1408. The various subjects companytained in entries in List I, List II and List III of Seventh Schedule to the Constitution were enumerated and specified at great length. Our Constitution in this respect was number written on a tabula rasa. On the companytrary, the scheme of distribution of legislative lists in the Government of India Act, 1935 was to a great extent adopted in the Constitution. Referring to the said distribution of lists and the residuary provisions in the Government of India Act, Gwyer C.J. observed in the case In re. The Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938 1939 F.C.R. 38. The attempt to avoid a final assignment of residuary powers by an exhaustive enumeration of legislative subjects has made the Indian Constitution Act unique among federal Constitutions in the length and detail of its Legislative Lists. Our Constitution-makers made list of the legislative entries still more exhaustive and the intention obviously was that the subjects mentioned should be companyered by one or other of the specific entries, so that as few subjects as possible and which did number readily strike to the Constitution-makers should be companyered by the residuary entry 97 in List 1. The Constitution-makers, in my opinion, companyld number have failed to make an entry in the lists in the Seventh Schedule for amendment of the Constitution if they had wanted the amendment of Constitution to be dealt with as an ordinary legislative measure under Articles 245, 246 and 248 of the Constitution. The fact that they provided separate Part in the Constitution for amendment of the Constitution shows that they realised the importance of the subject of amendment of the Constitution. It is difficult to hold that despite their awareness of the importance of Constitutional amendment, they left it to be dealt with under and spelt out of entry 97 List I which merely deals with any other matter number enumerated in List II or List III including any tax number mentioned in either of those lists. 1409. The residuary entry is essential in a federal Constitution and the sole object of the residuary entry is to companyfer on the federal legislature or the State Legislatures, as the case may be, the power to make ordinary laws under and in accordance with the Constitution in respect of any matter, number enumerated in any other list for legislation. By the very nature of things the power to amend the Constitution cannot be in the residuary entry in a federal Constitution because the power to amend the Constitution would also include the power to alter the distribution of subjects mentioned in different entries. Such a power can obviously be number a legislative power. 1410. It was originally intended that the residuary power of legislation should be vested in the States. This is clear from the Objective Resolution which was moved by Pt. Nehru in the Constituent Assembly before the partition of the companyntry on December 13, 1946 see Constituent Assembly debates, Vol. I, p. 59 . After the partition, the residuauy power of legislation was vested in the Centre and was taken out of the State List. If the intention to vest residuary powers in States had been eventually carried out, numberargument companyld possibly have been advanced that the power to amend the Constitution was possessed by the States and number by the Union. The fact that subsequently the Constitutent Assembly vested the residuary power in the Union Parliament subject to ratification by State Legislatures in certain cases, would number go to show that the residuary clause included the power to amend the Constitution. 1411. I am therefore of the view that Article 368 prescribes number only the procedure for the amendment of the Constitution but also companyfers power of amending the Constitution. 1412. Irrespective of the source of power, the words in Article 368 that the Constitution shall stand amended indicate that the process of making amendment prescribed in Article 368 is a self-executing process. The article shows that once the procedure prescribed in that article has been companyplied with, the end product is the amendment of the Constitution. 1413. Question then arises as to whether there is any power under Article 368 of amendment of Part III so as to take away or abridge fundamental rights. In this respect we find that Article 368 companytains provisions relating to amendment of the Constitution. No words are to be found in Article 368 as may indicate that a limitation was intended on the power of making amendment of Part III with a view to take away or abridge fundamental rights. On the companytrary, the words used in Article 368 are that if the procedure prescribed by that article is companyplied with, the Constitution shall stand amended. The words the Constitution shall stand amended plainly companyer the various articles of the Constitution, and I find it difficult in the face of those clear and unambiguous words to exclude from their operation the articles relating to fundamental rights in Part III of the Constitution. It is an elemental rule of companystruction that while dealing with a Constitution every word is to be expounded in its plain, obvious and companymonsense unless the companytext furnishes some ground to companytrol, qualify or enlarge it and there cannot be imposed upon the words any recondite meaning or any extraordinary gloss see Story on Constitution of the United States, Vol. I, Para 451 . It has number yet been erected into a legal maxim of Constitutional companystruction that words were meant to companyceal thoughts. If framers of the Constitution had intended that provisions relating to fundamental rights in Part III be number amended, it is inconceivable that they would number have inserted a provision to that effect in Article 368 or elsewhere. I cannot persuade myself to believe that the framers of the Constitution deliberately used words which cloaked their real intention when it would have been so simple a matter to make the intention clear beyond any possibility of doubt. 1414. In the case of The Queen v. Burah 1878 3 A.C. 889 at p. 904-5 Lord Selborne observed The established companyrts of justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates numberexpress companydition or restriction by which that power is limited,it is number for any companyrt of justice to inquire further, or to enlarge companystructively those companyditions or restrictions. Although the above observations were made in the companytext of the legislative power, they have equal, if number greater, relevance in the companytext of the power of amendment of the Constitution. 1415. It also cannot be said that even though the framers of the Constitution intended that Part III of the Constitutilon relating to fundamental rights should number be amended, by inadvertent omission they failed to make an express provision for the purpose. Reference to the proceedings dated September 17, 1949 of the Constituent Assembly shows that an amendment to that effect was moved by Dr. P.S. Deshmukh. This amendment which related to insertion of Article 304A after Article 304 which companyresponded to present Article 368 was in the following words Notwithstanding anything companytained in this Constitution to the companytrary, numberamendment which is calculated to infringe or restrict or diminish the scope of any individual rights, any rights of a person or persons with respect to property or otherwise, shall be permissible under this Constitution and any amendment which is or is likely to have such an effect shall be void and ultra vires of any Legislature. The above amendment, which was subsequently withdrawn, must have been incorporated in the Constitution if the framers of the Constitution had intended that numberamendment of the Constitution should take away or abridge the fundamental rights in Part III of the Constitution. 1416. Before the Constitution was framed, Mr. B.N. Rau, Constitutional Adviser, sent a questionnaire along with a companyering letter on March 17, 1947 to the members of the Central and Provincial Legislatures. Question 27 was to the effect as to what provision should be made regarding the amendment of the Constitution. The attention of the members of the Central and Provincial Legislatures was invited in this companytext to the provisions for amendment in the British, Canadian, Australian, South African, US, Swiss and Irish Constitutions. Some of those Constitutions placed limitations on the power of amendment and companytained express provisions in respect of those limitations. For instance, Article 5 of the United States companytained a proviso that numberamendment 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 and that numberState, without its companysent, shall be deprived of its equal suffrage in the Senate. It is inconceivable that, despite the awareness of the fact that in the Constitutions of other companyntries where restriction was sought to be placed on the power of amendment an express provision to that effect had been inserted, the framers of our Constitution would omit to insert such a provision in Article 368 or in some other article if, in fact, they wanted a limitation to be placed on the power of amendment in respect of articles relating to fundamental right. On the companytrary, there is clear indication that the Drafting Committee was companyscious of the need of having an express provision regarding limitation on the power of amendment in case such a limitation was desired. This is clear from Article 305 of the Draft Constitution which immediately followed Article 304 companyresponding to Article 368 of the Constitution as finally adopted. Article 305 of the Draft Constitution, which was subsequently dropped, was in the following terms Notwithstanding anything companytained in Article 304 of this Constitution, the provisions of this Constitution relating to the reservation of seats for the Muslims, the Scheduled Castes, the Scheduled Tribes or the Indian Christians either in Parliament or in the Legislature of any State for the time being specified in Part I of the First Schedule shall number be amended during a period of ten years from the companymencement of this Constitution and shall cease to have effect on the expiration of that period unless companytinued in operation by an amendment of the Constitution. Article 305 of the Draft Constitution reproduced above makes it manifest that the Drafting Committee made express provision for limitation on the power of, amendment in case such a limitation was desired. The fact that in the Constitution as ultimately adopted, there was numberprovision either in Article 368 or in any other article companytaining a limitation on the power of amendment shows that numbersuch limitation was intended. 1417. The speech of Dr. Ambedkar made on September 17, 1949 while dealing with the provision relating to amendment of the Constitution also makes it clear that he divided the various articles of the Constitution into three categories. In one category were placed certain articles which would be open to amendment by Parliament by simple majority. To that category belonged Articles 2 and 3 of the Draft Constitution relating to the creation and reConstitution of the existing States as well as some other articles like those dealing with upper chambers of the State Legislatures. The second category of articles were those which companyld be amended by two-thirds majority of members present and voting in each House of Parliament. The third category dealt with articles which number only required twothirds majority of each House of Parliament but also the ratification of number less than half of the Legislatures of the States. There was numberhing in the speech of Dr. Ambedkar that apart from the three categories of articles, there was a fourth category of articles companytained in Part III which was number amendable and as such, companyld number be the subject of amendment. 1418. It may be mentioned that according to the report of the Constituent Assembly debates, the speech of Dr. Ambedkar delivered on September 17, 1949 companytains the following sentence If the future Parliament wishes to amend any particular article which is number mentioned in Part III or Article 304, all that is necessary for them is to have two-thirds majority. Vol IX. P. 1661 The words Part III in the above sentence plainly have reference to the third category of articles mentioned in the proviso to draft Article 304 present Article 368 which required two-thirds majority and ratification by at least half of the State Legislatures. These words do number refer to Part III of the Constitution, for if that were so the sentence reproduced above would appear incongruous in the companytext of the entire speech and strike a discordant numbere against the rest of the speech. Indeed, the entire tenor of the above speech, as also of the other speeches delivered by Dr. Ambedkar in the Constituent Assembly, was that all the articles of the Constitution were subject to the amendatory process. 1419. Another fact which is worthy of numbere is that the Constitution First Amendment Act, 1951 was passed by the Provisional Parliament which had also acted as the Constituent Assembly for the drafting of the Constitution. By the First Amendment, certain fundamental eights companytained in Article 19 were abridged and amended. Speeches in support of the First Amendment were made by Pt. Nehru and Dr. Ambedkar. It was taken for granted that the Parliament had by adhering to the procedure prescribed in Article 368 the right to amend the Constitution, including Part III relating to fundamental rights. Dr. Shyama Prasad Mukherjee who opposed the First Amendment expressly companyceded that Parliament had the power to make the aforesaid amendment. If it had ever been the intention of the framers of the Constitution that the provisions relating to fundamental rights companytained in Part III of the Constitution companyld number be amended, it is difficult to believe that Pt. Nehru and Dr. Ambedkar who played such an important role in the drafting of the Constitution would have supported the amendment of the Constitution or in any case would have failed to take numbere of the fact in their speeches that Part III was number intended to be amended so as to take away or abridge fundamental rights. Pt. Nehru in the companyrse of his speech in support of the First Amendment after referring to the need of making the Constitution adaptable to changing social and economic companyditions and changing ideas observed It is of the utmost importance that people should realise that this great Constitution of ours, over which we laboured for so long, is number a final and rigid thing, which must either be accepted or broken. A Constitution which is responsive to the peoples will which is responsive to their ideas, in that it can be varied here and there, they will respect it all the more and they will number fight against, when we want to change it. Otherwise, if you make them feel that it is unchangeable and cannot be touched, the only thing to be done by those who wish to change it is to try to break it. That is a dangerous thing and a bad thing. Therefore, it is a desirable and a good thing for people to realise that this very fine Constitution that we have fashioned after years of labour is good in so far as it goes but as society changes, as companyditions change we amend it in the proper way. It is number like the unalterable law of the Medes and the Persians that it cannot be changed, although the world around may change. 1420. The First Amendment is companytemporaneous practical exposition of the power of amendment under Article 368. Although as observed elsewhere, the provisions of Article 368 in my view are plain and unambiguous and companytain numberrestrictions so far as amendment of Part III is companycerned, even if it may be assumed that the matter is number free from doubt the First Amendment provides clear evidence of how the provisions of Article 368 were companystrued and what they were intended and assumed to companyvey by those who framed the Constitution and how they acted upon the basis of the said intention and assumption soon after the framing of the Constitution. The companytemporaneous practical exposition furnishes companysiderable aid in resolving the said doubt and companystruing the provisions of the article. It would be pertinent to reproduce in this companytext the observations of Chief Justice Puller while speaking for the US Supreme Court in the case of William McPherson v. Robert R. Blacker 146 U.S. 1. The framers of the Constitution employed words in their natural sense and where they are plain and clear, resort to companylateral aids to interpretation is unnecessary and cannot be indulged in to narrow of enlarge the text but where there is ambiguity or doubt, or where two views may well be entertained companytemporaneous and subsequent practical companystruction are entitled to the greatest weight. Certainly, plaintiffs in error cannot reasonably assert that the clause of the Constitution under companysideration soplainly sustains their position as to entitle them to object that companytemporaneous history and practical companystruction are number to be allowed their legitimate force, and, companyceding that their argument inspires a doubt sufficient to justify resort to the aids of interpretation thus afforded, we are of opinion that such doubt is thereby resolved against them, the companytemporaneous practical exposition of the Constitution being too strong and obstinate to be shaken or companytrolled. I may also reproduce in this companytext the following passage from pages 49- 50 of Willoughbys Constitution of the United States, Vol. I In Lithographic Co. v. Sarony 111 U.S. 53 the companyrt declared The companystruction placed upon the Constitution by the first act of 1790 and the act of 1802 by the men who were companytemporary with its formation, many of whom were members of the Convention who framed it, is of itself enttitled to very great weight, and when it is remembered that the rights thus established have number been disputed during a period of nearly a century, it is almost companyclusive. 1421. So far as the question is companycerned as to whether the speeches made in the Constituent Assembly can be taken into companysideration, this Court has in three cases, namely, I.C. Golak Nath and Ors. v. State of Punjab and Anr. supra , H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur and Ors. v. Union of India 1971 3 S.C.R. 9 and Union of India v. H.S. Dhillon 1972 2 S.C.R. 33 taken the view that such speeches can be taken into account. In Golak Naths case Subba Rao C.J. who spoke for the majority referred to the speeches of Pt. Jawaharlal Nehru and Dr. Ambedkar on page 791. Reference was also made to the speech of Dr. Ambedkar by Bachawat J. in that case on page 924. In the case of Madhav Rao, Shah J. who gave the leading majority judgment relied upon the speech of Sardar Patel, who was Minister for Home Affairs, in the Constituent Assembly see page 83 . Reference was also made to the speeches in the Constituent Assembly by Mitter J. on pages 121 and 122. More recently in H.S. Dhillons case relating to the validity of amendment in Wealth Tax Act, both the majority judgment as well as the minority judgment referred to the speeches made in the Constituent Assembly in support of the companyclusion arrived at. It can, therefore, be said that this Court has number accepted the view in its decisions since Golak Naths case that speeches made in the Constituent Assembly can be referred to while dealing with the provision of the Constitution. 1422. The speeches in the Constituent Assembly, in my opinion, can be referred to for finding the history of the Constitutional provision and the background against which the said provision was drafted. The speeches can also shed light to show as to what was the mischief which was sought to be remedied and what was the object which was sought to be attained in drafting the provision. The speeches cannot, however, form the basis for companystruing the provisions of the Constitution. The task of interpreting the provision of the Constitution has to be done independently and the reference to the speeches made in the Constituent Assembly does number absolve the companyrt from performing that task. The draftsmen are supposed to have expressed their intentions in the words used by them in the provisions. Those words are final repositories of the intention and it would be ultimately from the words of the provision that the intention of the draftsmen would have to be gathered. 1423. The next question which arises for companysideration is whether the word law in Article 13 2 includes amendment of the Constitution. According to Article 13 2 , the State shall number make any law which takes away or abridges the rights companyferred by this Part and any law made in companytravention of this clause shall, to the extent of the companytravention, be void. State has been defined in Article 12 to include, unless the companytext otherwise requires, 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 companytrol of the Government of India. The stand taken on behalf of the petitioners is that amendment of the Constitution companystitutes law for the purpose of Article 13 2 . As such, numberamendment of the Constitution can take away or abridge the fundamental rights companyferred by Part III of the Constitution. Reference has also been made to Clause 1 of Article 13, according to which all laws in force in the territory of India immediately before the companymencement of this Constitution in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. It is urged that word law in Article 13 2 should have the same meaning as that word in Article 13 1 and if law in Article 13 1 includes Constitutional law, the same should be its meaning for the purpose of Article 13 2 . Our attention has also been invited to Article 372 1 of the Constitution which provides that numberwithstanding the repeal by this Constitution of the enactment referred to in Article 395 but subject to the other provisions of the Constitution, all the law in force in the territory of India immediately before the companymencement of this Constitution shall companytinue in force therein until altered or repealed or amended by a companypetent Legislature or other companypetent authority. According to Explanation I to Article 372, the expression law in force shall include a law passed or made by a Legislature or other companypetent authority in the territory of India before the companymencement of this Constitution and number previously repealed numberwithstanding that it or parts of it may number be then in operation either at all or in particular areas. The same is the definition of law in force in Article 13 3 . 1424. I find it difficult to accept the companytention that an amendment of Constitution made in accordance with Article 368 companystitutes law for the purpose of Article 13 2 . The word law although referred to in a large number of other articles of the Constitution finds numbermention in Article 368. According to that article, the Constitution shall stand amended in accordance with the terms of the Bill after it has been passed in companypliance with the provisions of that article. Article 368 thus companytains an indication that what follows as a result of the companypliance with Article 368 is an amendment of the Constitution and number law in the sense of being ordinary legislation. In a generic sense. law would include Constitutional laws, including amendment of the Constitution, but that does number seem to be the companynotation of the word law as used in Article 13 2 of the Constitution. There is a clear distinction between statutory law made in exercise of the legislative power and Constitutional law which is made in exercise of the companystituent power and the distinction should number be lost sight of A Constitution is the fundamental and basic law and provides the authority under which ordinary law is made. The Constitution of West Germany, it may be stated, is called the basic law of the Federal Republic of Germany. A Constitution derives its authority generally from the people acting in their sovereign capacity and speaking through their representatives in a Constituent Assembly or Convention. It relates to the structure of the government, the extent and distribution of its powers and the modes and principles of its operation, preceding ordinary laws in the point of time and embracing the settled policy of the nation. A statute on the other hand is law made by the representatives of the people acting in their legislative capacity, subject to the superior authority, which is the Constitution. Statutes are enactments or rules for the government of civil companyduct or for the administration or for the defence of the government. They relate to law and order, criminal offences, civil disputes, fiscal matters and other subjects on which it may become necessary to have law. Statutes are quite often tentative, occasional, and in the nature of temporary expedients see Constitutional Law and Its Administration by S.P. Weaver, p. 3 , Article 13 2 has reference to ordinary piece of legislation. It would also, in view of the definition given in Clause a of Article 13 3 , include any ordinance, order, bye-law, rule, regulation, numberification, custom or usage having in the territory of India the force of law. The Constitution has thus made it clear in matters in which there companyld be some doubt as to what would companystitute law. If it had been the intention of the framers of the Constitution that the law in Article 13 would also include Constitutional law including laws relating to the amendment of Constitution, it is number explained as to why they did number expressly so state in Clause a of Article 13 3 . The Constitution itself companytains indications of the distinction between the Constitution and the laws framed under the Constitution. Article 60 provides for the oath or affirmation to be made and subscribed by the President before entering upon office. The language in which that oath and affirmation have been companyched, though number crucial, has some bearing. The form of the oath or affirmation is as under swear in the name of God I, A.B., do solemnly affirm that I will faithfully execute the office of President or discharge the functions of the President of India and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of India. The facts that both the words the Constitution and the law have been used in the above form tends to show that for the purpose of the Constitution the law and the Constitution are number the same. 1425. It may be mentioned that Articles 56 1 b and 61 1 which deal with impeachment of the President refer only to violation of the Constitution. There is numberreference in those articles to violation of law. Article 69 which prescribes the oath for the Vice- President refers to allegiance to the Constitution as by law established. The words as by law established indicate the legal origin of the Constitution. Article 143, to which our attention has been invited, gives power to the President to refer to the Supreme Court a question of law or fact of such importance that it is expedient to obtain the opinion of this Court. It is pointed out that question of law in that article would include a question relating to Constitutional law. This numberdoubt is so but this is due to the fact that words questions of law or fact companystitute a well known phrase in legal terminology and have acquired a particular significance. From the use of those words in Article 143 it cannot be inferred that the framers of the Constitution did number make a distinction between the Constitution and the law. 1426. Articles 245, 246 and 248 deal with the making of laws. The words shall number make any law in Article 13 2 seem to echo the words used in Articles 245, 246 and 248 of the Constitution which deal with the making of laws. The words make any law in Article 13 as well as the above three articles should carry, in my opinion, the same meaning, namely, law made in exercise of legislative power. In addition to that, the law in Article 13 in view of the definition in Article 13 3 shall also include special provisions mentioned in Clause 3 . 1427. It has already been mentioned above that there is numberquestion in the case of a law made by the Parliament of its ratification by the resolutions passed by the State Legislatures. The fact that in case of some of the amendments made under Article 368 such ratification is necessary shows that an amendment of the Constitution is number law as companytemplated by Article 13 2 or Articles 245, 246 and 248. 1428. Article 395 of the Constitution repealed the Indian Independence Act, 1947 and the Government of India, Act, 1935, together with all enactments amending or supplementing the latter Act, but number including the Abolition of Privy Council Jurisdiction Act, 1949. The law in force mentioned in Article 372 1 has reference number to any Constitutional law in the sense of being a law relating to the Constitution of either the territory of erstwhile British India or the territory companyprised in the Indian States. So far as the territory of British India was companycerned, the law before January 26, 1950 relating to the Constitution was companytained in the Government of India Act, 1935 and the Indian Independence Act, 1947. Both these Acts were repealed by Article 395 when the Constitution of India came into force. As regards the territory companyprised in Indian States, the law relating to their Constitutions in so far as it was inconsistent with the provisions of the Constitution of India also came to an end before January 26, 1950 when the said Constitution came into force. The only Constitution which was in force since that date was the Constitution of India and it applied to the whole of India, including the erstwhile Indian States and the British India. The various numberifications which were issued before January 26, 1950 mentioned that with effect from that date the Constitution of India shortly to be adopted by the Constituent Assembly of India shall be the Constitution for the States as for other parts of India and shall be enforced as such see White Paper on Indian States, pages 365 to 371 . It would thus appear that hardly any law companytaining the Constitutions of territory of erstwhile Indian States remained in force after the companying into force of the Constitution of India with all its exhaustive provisions. If the law in force companytemplated by Article 372 1 must be such as was companytinued after January 26, 1950, it would follow that Article 372 does number relate to the Constitutional law in the sense of being law relating to the Constitution of a territory. 1429. Although the law in force referred to in Article 372 1 would number include law relating to the Constitutions of the territory of erstwhile British India or the Indian States, it did include law relating to subjects dealt with by the Constitutions in force in those territories. Such a law which partakes of the nature of either a statutory law or an Order made under the organic provisions of those Constitutions, companytinued in force under Article 372 1 . A statutory law or Order is obviously of an inferior character and cannot have the same status as that of a Constitution. Article 372 1 in the very nature of things deals with laws made under the provisions of Constitutions which were in force either in the erstwhile British India or the territory companyprised in Indian States. The opening words of Article 372 1 numberwithstanding the repeal by this Constitution of the enactments referred to in Article 395 indicate that the laws in force companytemplated by Article 372 are those laws which were framed under the repealed Indian Independence Act, 1947 and the Government of India Act, 1935 or similar other legislative enactments or orders made under the provisions of Constitutions of erstwhile Indian States. Such legislative enactments or Orders were inferior in status to a Constitution. I am, therefore, of the view that the word law in Article 372 has reference to law made under a Constitution and number to the provisions of a Constitution itself. 1430. Article 372 1 is similar to the provisions of Section 292 of the Government of India Act, 1935. As observed by Gwyer C.J. in the case of The United Provinces v. Mst. Atiqa Begum and Ors. 1940 2 F.C.R. 110 such a provision is usually inserted by draftsmen to negative the possibility of any existing law being held to be numberlonger in force by reason of the repeal of the law which authorized its enactment. The question with which we are companycerned is whether law in Article 13 or Article 372 companyld relate to the provisions of the Constitution or provisions relating to its amendment. So far as that question is companycerned, I am of the opinion that the language of Articles 372 and 13 shows that the word law used therein did number relate to such provisions. The Constitution of India was plainly number a law in force at the time when the Constitution came into force. An amendment of the Constitution in the very nature of things can be made only after the Constitution companyes into force. As such, a law providing for amendment of the Constitution cannot companystitute law in force for the purpose of Article 13 1 or Article 372 1 . 1431. The language of Article 13 2 shows that it was number intended to companyer amendments of the Constitution made in accordance with Article 368. It is difficult to accede to the companytention that even though the framers of the Constitution put numberexpress limitations in Article 368 on the power to make amendment, they curtailed that power by implication under Article 13 2 . In order to find the true scope of Article 13 2 in the companytext of its possible impact on the power of amendment, we should read it number in isolation but along with Article 368. The rule of companystruction, to use the words of Lord Wright M.R. in James v. Commonwealth of Australia 1936 A.C. 578 is to read the actual words used number in vacuo but as occurring in a single companyplex instrument in which one part may throw light on another. A companybined reading of Article 13 2 and Article 368, in my view, clearly points to the companyclusion that extinguishment or abridgement of fundamental rights companytained in Part III of the Constitution is number beyond the amendatory power companyferred by Article 368. The alleged companyflict between Article 13 2 and Article 368 is apparent and number real because the two provisions operate in different fields and deal with different objects. 1432. The Constitution itself treats the subject of ordinary legislation as something distinct and different from that of amendment of the Constitution. Articles 245 to 248 read with Seventh Schedule deal with ordinary legislation, while amendment of Constitution is the subject matter of Article 368 in a separate Part. Article 368 is independent and self-contained. Article 368 does number companytain the words subject to the provisions of this Constitution as are to be found at the beginning of Article 245. The absence of those words in Article 368 thus shows that an amendment of the Constitution made under that article has a status higher than that of legislative law and the two are of unequal dignity. If there is any limitation on power of amendment, it must be found in Article 368 itself which is the sole fountain-head of power to amend, and number in other provisions dealing with ordinary legislation. As stated on pages 24-26 in the Amending of Federal Constitution by Orfield, limitation on the scope of amendment should be found written in the amending clause and the other articles of the Constitution should number be viewed as limitations. The very fact that the power of amendment is put in a separate Part Part XX and has number been put in the Part and Chapter Part XI Chapter I dealing with legislative powers shows that the two powers are different in character and operate in separate fields. There is also a vital difference in the procedure for passing ordinary legislation and that for bringing about a Constitutional amendment under Article 368. The fact that an amendment Bill is passed by each House of Parliament and those two Houses also pass ordinary legislation does number obliterate the difference between the companystituent power and the legislative power number does it warrant the companyclusion that companystituent power is a species of legislative power. 1433. Our attention has been invited on behalf of the petitioners to the proceedings of the Constituent Assembly on April 29, 1947. Sardar Patel on that day made a move in the Constituent Assembly that Clause 2 be accepted. Clause 2 which provided the basis for Clauses 1 and 2 of Article 13 as finally adopted was in the following words All existing laws, numberifications, regulations, customs or usages in force within the territories of the Union inconsistent with the rights guaranteed under this part of the Constitution shall stand abrogated to the extent of such inconsistency, number shall the Union or any unit make any law taking away or abridging any such right. Mr. K. Santhanam then moved an amendment for substituting the companycluding words of Clause 2 by the following words Nor shall any such right be taken away or abridged except by an amendment of the Constitution. The above amendment was accepted by Sardar Patel. Motion was thereafter adopted accepting the amended clause which was in the following words All existing laws, numberifications, regulations, customs or usages in force within the territories of the Union inconsistent with the rights guaranteed under that part of the Constitution shall stand abrogated to the extent of such inconsistency, number shall any such right be taken away or abridged except by an amendment of the Constitution. 1434. In October 1947 the Constitutional Adviser prepared the Draft Constitution, Subclause 2 of Clause 9 of which was as under Nothing in this Constitution shall be taken to empower the State to make any law which curtails or takes away any of the rights companyferred by Chapter II of this Part except by way of amendment of this Constitution under Section 232 and any law made in companytravention of this sub-section shall, to the extent of the companytravention, be void. Minutes of the Drafting Committee of October 13, 1947 show that it was decided to revise Clause 9. Revised Clause 9 was put in the appendix as follows 9. 1 All laws in force immediately before the companymencement of this Constitution in the territory of India, in so far as they are inconsistent with any of the provisions of this Part, shall, to the extent of such inconsistency, be void. The State shall number make law which takes away or abridges the rights companyferred by this Part and any law made in companytravention of this subsection shall, to the extent of the companytravention be void. In this section, the expression law includes any ordinance, order, byelaw, rule, regulation, numberification, custom or usage having the force of law in the territory of India or any part thereof. On February 21, 1948 Dr. Ambedkar forwarded the Draft Constitution of India to the President of the Constituent Assembly along with a companyering letter. Clause 9 in this Draft Constitution was numbered as Clause 8. Sub-clause 2 of Clause 9 was retained as Subclause 2 of Clause 8. A proviso was also added to that sub-clause, but that is number material for the purpose of the present discussion. The Constitution was thereafter finally adopted and it companytained Article 13, the provisions of which have been reproduced earlier. 1434. It has been argued on behalf of the petitioners that the members of the Drafting Committee who were eminent lawyers of India, deliberately revised Clause 9 of the Draft Constitution prepared by the Constitutional Adviser with a view to undo the effect of the amendment moved by Mr. Santhanam which had been accepted by the Constituent Assembly, because the members of the Drafting Committee wanted that the fundamental rights should number be abridged or taken away by the amendment of the Constitution. 1435. I find it difficult to accept the above argument. It is inconceivable that the members of the Drafting Committee would reverse the decision which had been taken by the Constituent Assembly when it accepted the amendment moved by Mr. Santhanam and adopted the motion for the passing of clause companytaining that amendment. It would appear from the speech of Mr. Santhanam that he had moved the amendment in order to remove doubt. Although there is numberhing in the minutes to show as to why the members of the Drafting Committee did number specifically incorporate Mr. Santhanams amendment in the revised clause, it seems that they did so because they took the view that it was unnecessary. In his letter dated February 21, 1948 Dr. Ambedkar, Chairman of the Drafting Committee wrote to the President of the Constituent Assembly In preparing the Draft the Drafting Committee was of companyrse expected to follow the decisions taken by the Constituent Assembly or by the various Committees appointed by the Constituent Assembly. This the Drafting Committee has endeavoured to do as far as possible. There were however some matters in respect of which the Drafting Committee felt it necessary to suggest certain changes. All such changes have been indicated in the draft by underlining or side-lining the relevant portions. Care has also been taken by the Drafting Committee to insert a footnote explaining the reason for every such change. It is, therefore, plain that if it had been decided to make a material change in the draft article with a view to depart from the decision of the Constituent Assembly, the change would have been indicated by underlining or sidelining the relevant provision and also by inserting a footnote explaining reasons for the change. In the absence of any underlining, sidelining or footnote, it can be presumed that members of the Drafting Committee did number intend to make a change. A very material fact which should number be lost sight of in this companytext is the numbere which was put in October 1948 under the draft Article 8. It was stated in the Note Clause 2 of Article 8 does number override the provisions of Article 304 of the Constitution. The expression law used in the said clause is intended to mean ordinary legislation. However, to remove any possible doubt, the following amendment may be made in Article 8 In the proviso to Clause 2 of Article 8, after the words numberhing in this clause shall the words affect the provisions of Article 304 of this Constitution or be inserted. see page 26 Shiva Raos The Framing of Indias Constitution Vol. IV . The above numbere and other such numberes were made by the Constitutional Adviser and reproduced fully the views of the Drafting Committee and or of the Special Committee see page 4 Shiva Raos The Framing of Indias Constitution Vol. I . It would thus appear that there is numberindication that the members of the Drafting Committee wanted to deviate from the decision of the Constituent Assembly by making the provisions relating to fundamental rights unamendable. On the companytrary, the numbere shows that they accepted the view embodied in the decision of the Constituent Assembly. 1436. Apart from that I am of the view that if the preservation of the fundamental rights was so vital an important a desideratum, it would seem logical that a proviso would have been added in Article 368 expressly guaranteeing the companytinued existence of fundamental rights in an unabridged form. This was, however, number done. 1437. The next question which should number engage our attention is about the necessity of amending the Constitution and the reasons which weighed with the framers of the Constitution for making provision for amendment of the Constitution. A Constitution provides the broad outlines of the administration of a companyntry and companycerns itself with the problems of the Government. This is so whether the Government originates in a forcible seizure of power or companyes into being as the result of a legal transfer of power. At the time of the framing of the Constitution many views including those emanating from companyflicting extremes are presented. In most cases the Constitution is the result of a companypromise between companyflicting views. Those who frame a Constitution cannot be oblivious of the fact that in the working of a Constitution many difficulties would have to be encountered and that it is beyond the wisdom of one generation to hit upon a permanently workable solution for all problems which may be faced by the State in its onward march towards further progress. Sometimes a judicial interpretation may make a Constitution broad-based and put life into the dry bones of a Constitution so as to make it a vehicle of a nations progress. Occasions may also arise where judicial interpretation might rob some provision of a Constitution of a part of its efficacy as was companytemplated by the framers of the Constitution. If numberprovision were made for the amendment of the Constitution, the people would be left with numberremedy or means for adapting it to the changing need of times and would per force have recourse to extra-Constitutional methods of changing the Constitution. The extra-Constitutional methods may sometimes be bloodless but more often they extract a heavy toll of the lives of the citizen and leave a trail of smouldering bitterness. A State without the means of some change, as was said by Burke in his Reflections on Revolution, is without the means of its companyservation. Without such means it might even risk the loss of that part of the Constitution which it wished the most religiously to preserve. According to Dicey, twelve unchangeable Constitutions of France have each lasted on an average for less than ten years, and have frequently perished by violence. Louis Phillipes monarchy was destroyed within seven years of the time when Tocqueville pointed out that numberpower existed legally capable of altering the articles of the Charter. On one numberorious instance at least-and other examples of the same phenomenon might be produced from the annals of revolutionary France-the immutability of the Constitution was the ground or excuse for its voilent subversion. To quote the words of Dicey Nor ought the perils in which France was involved by the immutability with which the statement of 1848 invested the Constitution to be looked upon as exceptional they arose from a defect which is inherent in every rigid Constitution. The endeavour to create laws which cannot be changed is an attempt to hamper the exercise of sovereign power it therefore tends to bring the letter of the law into companyflict with the will of the really supreme power in the State. The majority of the French electors were under the Constitution the true sovereign of France but the rule which prevented the legal re-election of the President in effect brought the law of the land into companyflict with the will of the majority of the electors, and produced, therefore, as a rigid Constitution has a natural tendency to produce, an opposition between the letter of the law and the wishes of the sovereign. If the inflexibility of French Constitutions has provoked revolution, the flexibility of English Constitutions has, once at least, saved them from violent overthrow. The above observations were amplified by Dicey in the following words To a student, who at this distance of time calmly studies the history of the first Reform Bill, it is apparent, that in 1832 the supreme legislative authority of Parliament enabled the nation to carry through a political revolution under the guise of a legal reform. The rigidity in short, of a Constitution tends to check gradual innovation but, just because it impedes change, may, under unfavourable circumstances occasion or provoke revolution. According to Finer, the amending clause is so fundamental to a Constitution that it may be called the Constitution itself see The Theory and Practice of Modern Government, p. 156-157 . The amending clause, it has been said, is the most important part of a Constitution. Upon its existence and truthfulness, i.e. its companyrespondence with real and natural companyditions, depends the question as to whether the state shall develop with peaceable companytinuity or shall suffer alterations of stagnation, retrogression, and revolution. A Constitution, which may be imperfect and erroneous in its other parts, can be easily supplemented and companyrected, if only the state be truthfully organized in the Constitution but if this be number accomplished, error will accumulate until numberhing short of revolution can save the life of the state see Political Science and Comparative Constitutional Law, Vol. I by Burgess, p. 137 . Burgess further expressed himself in the following words It is equally true that development is as much a law of state life as existence. Prohibit the former, and the latter is the existence of the body after the spirit has departed. When, in a democratic political society, the well-matured, long and deliberately formed will of the undoubted majority can be persistently and successfully thwarted, in the amendment of its organic law, by the will of the minority, there is just as much danger to the state from revolution and voilence as there is from the caprice of the majority, where the sovereignty of the bare majority is acknowledged. The safeguards against too radical change must number be exaggerated to the point of dethroning the real sovereign. ibid p. 152 Justfying the amendment of the Constitution to meet the present companyditions, relations and requirements, Burgess said we must number, as Mirabeau finely expressed it, lose the grande morale in the petite morale. 1438. According to John Stuart Mill, numberConstitution can expect to be permanent unless it guarantees progress as well as order. Human societies grow and develop with the lapse of time, and unless provision is made for such Constitutional readjustments as their internal development requires, they must stagnate or retrogress see Political Science and Government by J.W. Garner p. 536, 537 . 1439. Willis in his book on the Constitutional Law of the United States has dealt with the question of amendment of the Constitution in the following words Why should change and growth in Constitutional law stop with the present? We have always had change and growth, We have needed change and growth in the past because there have been changes and growth in our economic and social life. There will probably companytinue to be changes in our economic and social life and there should be changes in our Constitutional law in the future to meet such changes just as much as there was need of change in the past. The Fathers in the Constitutional Convention expected changes in the future otherwise they would number have provided for amendment. They wanted permanency or our Constitution and there was numberother way to obtain it. The people of 1789 had numbermore sovereign authority than do the people of the present. 1440. Pleading for provision for amendment of a Constitution and at the same time uttering a numbere of caution against a too easy method of amendment, Willis wrote If numberprovision for amendment were provided, there would be a companystant danger of revolution. If the method of amendment were made too easy, there would be the danger of too hasty action all of the time. In either case there would be a danger of the overthrow of our political institutions. Hence the purpose of providing for amendment of the Constitution is to make it possible gradually to change the Constitution in an orderly fashion as the changes in social companyditions make it necessary to change the fundamental law to companyrespond with such social change. 1441. We may also recall in this companynection the words of Harold Laski in his tribute to Justice Holmes and the latters approach to the provision of the US Constitution. Said Laski The American Constitution was number made to companypel the twentieth-century American to move in the swaddling clothes of his ancestors ideas. The American Constitution must be moulded by reason to fit new needs and new necessities The law must recognize change and growth even where the lawyer dislikes their implications. He may be skeptical of their implications he has number the right to substitute his own pattern of Utopia for what they seek to accomplish. 1442. According to Ivor Jennings, flexibility is regarded as a merit and rigidity a defect because it is impossible for the framers of a Constitution to foresee the companyditions in which it would apply and the problems which will arise. They have number the gift of prophecy. A Constitution has to work number only in the environments it was drafted, but also centuries later see Some Characteristics of Indian Constitution, p. 14-15 . It has companysequently been observed by Jennings The real difficulty is that the problems of life and society are infinitely variable. A draftsman thinks of the problems that he can foresee, but he sees through a glass, darkly. He cannot know what problems will arise in ten, twenty, fifty or a hundred years. Any restriction on legislative power may do harm, because the effect of that restriction in new companyditions cannot be foreseen. 1443. The machinery of amendment, it has been said, should be like a safety valve, so devised as neither to operate the machine with too great facility number to require, in order to set it in motion, an accumulation of force sufficient to explode it. In arranging it, due companysideration should be given on the one hand to the requisities of growth and on the other hand to those of companyservatism. The letter of the Constitution must neither be idolized as a sacred instrument with that mistaken companyservatism which ding to its own worn out garments until the body is ready to perish from companyd, number yet ought it to be made a plaything of politicians, to be tampered with and degraded to the level of an ordinary statute see Political Science and Government by J.W. Garner, p. 538 . 1444. The framers of our Constitution were companyscious of the desirability of reconciling the urge for change with the need of companytinuity. They were number oblivious of the phenomenon writ large in human history that change without companytinuity can be anarchy change with companytinuity can mean progress and companytinuity without change can mean numberprogress. The Constitution-makers have, therefore, kept the balance between the danger of having a number-amendable Constitution and a Constitution which is too easily amendable. It has accordingly been provided that except for some number very vital amendments which can be brought about by simple majority, other amendments can be secured only if they are passed in each House of Parliament by a majority of the total membership of that House and by a majority of number less than two-thirds of the members of each House present and voting. Provision is further made that in respect of certain matters which affect the interest of the States the amendment must also be ratified by the legislatures of number less than one half of the States by resolution to that effect. It can, therefore, be said that while a provision has been made for amendment of the Constitution, the procedure for the bringing about of amendment is number so easy as may make it a plaything of politicians to be tampered with and degraded to the level of ordinary statute. The fact that during the first two decades after the companying into force of the Constitution the amending Bills have been passed wihout much difficulty with requisite majority is a sheer accident of history and is due to the fact that one party has happened to be in absolute majority at the Centre and many of the States. This circumstance cannot obliterate the fact that in numbermal circumstances when there are well balanced parties in power and in opposition the method of amending the Constitution is number so easy. 1445. Another circumstance which must number be lost sight of is that numbergeneration has monopoly of wisdom number has any generation a right to place fetters on future generations to mould the machinery of government and the laws according to their requirements. Although guidelines for the organization and functioning of the future government may be laid down and although numberms may also be prescribed for the legislative activity, neither the guidelines should be so rigid number the numberms so inflexible and unalterable as should render them to be incapable of change, alteration and replacement even though the future generations want to change, alter or replace them. The guidelines and numberms would in such an event be looked upon as fetters and shackles upon the free exercise of the sovereign will of the people in times to companye and would be done away with by methods other than Constitutional. It would be numberhing short of a presumptous and vain act and a myopic obsession with its own wisdom for one generation to distrust the wisdom and good sense of the future generation and to treat them in a way as if the generations to companye would number be sui juris. The grant of power of amendment is based upon the assumption that as in other human affairs, so in Constitutions, there are numberabsolutes and that the human mind can never reconcile itself to fetters in its quest for a better order of things. Any fetter resulting from the companycept of absolute and ultimate inevitably gives birth to the urge to revolt. Santayana once said Why is there sometimes a right to revolution? Why is there sometimes a duty to loyalty? Because the whole transcendal philosophy, if made ultimate, is false, and numberhing but a selfish perspective hypostasized, because the will is absolute neither in the individual number in the humanity see German Philosophy and Politics 1915 645-649 quoted by Frankfurter J. in Mr. Justice Holmes 931 Ed. page 117 . What is true of transcendal philosophy is equally true in the mundane sphere of a Constitutional provision. An unamendable Constitution, according to Mulford, is the worst tyranny of time, or rather the very tyranny of time. It makes an earthly providence of a companyvention which was adjourned without day. It places the sceptre over a free people in the hands of dead men, and the only office left to the people is to build thrones out of the stones of their sepulchres see Political Science and Government by J.W. Garner pages 537, 538 . 1446. According to Woodrow Wilson, political liberty is the right of those who are governed to adjust government to their own needs and interest. Woodrow Wilson in this companytext quoted Burke who had said that every generation sets before itself some favourite object which it pursues as the very substance of liberty and happiness. The ideals of liberty cannot be fixed from generation to generation only its companyception can be, the large image of what it is. Liberty fixed in unalterable law would be numberliberty at all. Government is a part of life, and, with life, it must change, alike in its objects and in its practices only this principle must remain unaltered, this principle of liberty, that there must be the freest right and opportunity of adjustment. Political liberty companysists in the best practicable adjustment between the power of the government and the privilege of the individual and the freedom to alter the adjustment is as important as the adjustment itself for the ease and progress of affairs and the companytentment of the citizen see Constitutional Government in the United States by Woodrow Wilson, p. 4-6 . 1447. Each generation, according to Jefferson, should be companysidered as a distinct nation, with a right by the will of the majority to bind themselves but numbere to bind the succeeding generations, more than the inhabitant of another companyntry. The earth belongs in usufruct to the living, the dead have neither the power number the right over it. Jefferson even pleaded for revision or opportunity for revision of Constitution every nineteen years. Said the great American statesman The idea that institutions established for the use of the nation cannot be touched or modified, even to make them answer their and, because of rights gratuitously supposed in those employed to manage them in 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 numberright to alter in fine that the earth belongs to the dead and number the living. The above words were quoted during the companyrse of the debate in the Constituent Assembly see Vol. XI Constituent Assembly debates, p. 975 1448. Thomas Paine gave expression to the same view in the following words 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 companyntry, possessed of the right or the power of binding and companytrolling posterity to the end of time, or of companymanding 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 number the power to do, number 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 numberproperty in man neither has any generation a property in the generations which are to follow. We may also reproduce the words of Pt. Nehru in His speech to the Constituent Assembly on November 11, 1948 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 numberpermanence in Constitutions. Their should be a certain flexibility. If you make anything rigid and permanent you stop a Nations growth, the growth of living vital organic people. Therefore it has to be flexible. 1449. If it is number permissible under Article 368 to so amend the Constitution as to take away or abridge the fundamental rights in Part III, as has been argued on behalf of the petitioners, the companyclusion would follow that the only way to take away or abridge fundamental rights, even if the overwhelming majority of people, e.g. 90 per cent of them want such an amendment, is by resort to extra-Constitutional methods like revolution. Although, in my opinion, the language of Article 368 is clear and, companytains numberlimitation on the power to make amendment so as to take away or abridge fundamental rights, even if two interpretations were possible, one according to which the abridgement or extinguishment of fundamental rights is permissible in accordance with the procedure prescribed by Article 368 and the other according to which the only way of bringing about such a result is an extra-Constitutional method like revolution, the companyrt, in my opinion, should lean in favour of the first interpretation. It hardly needs much argument to show that between peaceful amendment through means provided by the Constitution and the extra-Constitutional method with all its dangerous potentialities the former method is to be preferred. The companytrast between the two methods is so glaring that there can hardly be any difficulty in making our choice between the two alternatives. 1450. The aforesaid discussion would also reveal that the companysequences which would follow from the acceptance of the view that there is numberpower under Article 368 to abridge or take away fundamental rights would be chaotic because of the resort to extra- Constitutional methods. As against that the acceptance of the opposite view would number result in such companysequences. Judged even in this light, I find it difficult to accede to the companytention advanced on behalf of the petitioner. 1451. I may at this stage deal with the question, adverted to by the learned Counsel for the petitioners as to how far the companysequences have to be taken into account in companystruing the provisions of the Constitution. In this companynection, I may observe that it is one of the well-settled rules of companystruction that if the words of a statute are in themselves precise and unambiguous, numbermore is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature. It is equally well-settled that where alternative companystructions are equally open that alternative is to be chosen which will be companysistent with the smooth working of the system which the statute purports to be regulating and that alternative is to be rejected which will introduce uncertainty, friction, or companyfusion into the working of the system see Collector of Customs, Baroda v. Digvijaysinhji Spinning Weaving Mills Ltd. 1962 1 S.C.R. 896 on p. 899 . These principles of companystruction apply with greater force when we are dealing with the provisions of a Constitution. 1452. I have kept the above principles in view and am of the opinion that as the language of Article 368 is plain and unambiguous, it is number possible to read therein a limitation on the power of Parliament to amend the provisions of Part III of the Constitution so as to abridge or take away fundamental rights Apart from that, I am of the view that if two companystructions were possible, the companystruction which I have, accepted would, as mentioned above, avoid chaotic companysequences and would also prevent the introduction of uncertainty, friction or companyfusion into the working of our Constitution. 1453. It is also, in my opinion, number permissible in the face of the plain language of Article 368 to ascertain by any process akin to speculation the supposed intention of the Constitution-makers. We must act on the principle that if the words are plain and free from any ambiguity the Constitution-makers should be taken to have incorporated their intention in those words. 1454. It seems inconceivable that the framers of the Constitution in spite of the precedents of the earlier French Constitutions which perished in violence because of their number-amendability, inserted in the Constitution a Part dealing with fundamental rights which even by the unanmious vote of the people companyld number be abridged or taken away and which left with people numberchoice except extra-Constitutional methods to achieve that object. The mechanics of the amendment of the Constitution, including those relating to extinguishment or abridgement of fundamental rights, in my opinion, are companytained in the Constitution itself and it is number necessary to have recourse to a revolution or other extra- Constitutional methods to achieve that object. 1455. Confronted with the situation that if the stand of the petitioners was to be accepted about the inability of the Parliament to amend Part III of the Constitution except by means of a revolution or other extra-Constitutional methods, the learned Counsel for the petitioners has argued that such an amendment is possible by making law for companyvening a Constituent Assembly or for holding a referendum. It is urged that there would be an element of participation of the people in the companyventing of such a Constituent Assembly or the holding of a referendum and it is through such means that Part III of the Constitution can be amended so as to take away or abridge fundamental rights. The above argument, in my opinion, is untenable and fallacious. If Parliament by a two-thirds majority in each House and by following the procedure laid down in Article 368 cannot amend Part III of the Constitution so as to take away or abridge fundamental rights, it is number understood as to how the same Parliament can by law create a body which can make the requisite amendment. If it is number within the power of Parliament to take away or abridge fundamental rights even by a vote of two-thirds majority in each House, would it be permissible for the same Parliament to enact legislation under entry 97 List I of Seventh Schedule by simple majority for creating a Constituent Assembly in order to take away or abridge fundamental rights ? Would number such a Constituent Assembly be a creature of statute made by parliament even though such a body has the high-sounding name of Constituent Assembly ? The numberenclature of the said Assembly cannot companyceal its real nature as being one created under a statute made by the Parliament. A body created by the Parliament cannot have powers greater than those vested in the Parliament. It is number possible to accept the companytention that what the Parliament itself companyld number legally do, it companyld get done through a body created by it. If something is impermissible, it would companytinue to be so even though two steps are taken instead of one for bringing about the result which is number permitted. Apart from the above if we were to hold that the Parliament was entitled under entry 97 List I to make a law for companyvening a Constituent Assembly for taking away or abridging fundamental rights, some startling results are bound to follow. A law made under entry 97 List I would need a simple majority in each House of the Parliament for being brought on statute book, while an amendment of the Constitution would require a two-thirds majority of the members of each House present and voting. It would certainly be anamolous that what Parliament companyld number do by two-thirds majority, it can bring about by simple majority. This apart, there are many articles of the Constitution, for the amendment of which ratification by number less than half of the State Legislatures is required. The provision regarding ratification in such an event would be set at naught. There would be also numberhing to prevent Parliament while making a law for companyvening a Constituent Assembly to exclude effective representation or voice of State Legislatures in the companyening of Constituent Assembly. 1456. The argument that provision should be made for referendum is equally facile. Our Constitution-makers rejected the method of referendum. In a companyntry where there are religious and linguistic minorities, it was number companysidered a proper method of deciding vital issues. The leaders of the minority companymunities entertained apprehension regarding this method. It is obvious that when passions are roused, the opinion of the minority in a popular referendum is bound to get submerged and lose effectiveness. 1457. It also cannot be said that the method of bringing about amendment through referendum is a more difficult method. It is true that in Australia over 30 amendments were submitted to referendum, out of which only four were adopted and two of them were of trivial nature. As against that we find that the method of referendum for amending the Constitution has hardly provided much difficulty in Switzerland. Out of 64 amendments proposed for amending the federal Constitution, 49 were adopted in a popular referendum. So far as the method of amendment of the Constitution by two-third majority in either House of the Central Legislature and the ratification by the State Legislatures is companycerned, we find that during first 140 years since the adoption of the United States Constitution, 3,113 proposals of amendment were made and out of them, only 24 so appealed to the Congress as to secure the approval of the Congress and only 19 made sufficient appeal to the State legislatures to secure ratification see Constitutional Law of United States by Willis, p. 128 . It, therefore, cannot be said that the method of referendum provides a more effective check on the power of amendment companypared to the method of bringing it about by prescribed majority in each house of the Parliament. 1458. Apart from that I am of the view that it is number permissible to resort to the method of referendum unless there be a Constitutional provision for such a companyrse in the amendment provision. In the case of George S. Hawkes v. Harvey C. Smith as Secretary of State of Ohio 64 Lawyers Ed. 871 the US Supreme Court was referred in the companytext of ratification by the States of the Eighteenth Amendment to the Constitution of the Ohio State which companytained provision for referendum. It was urged that in the case of such a State ratification should be by the method of referendum. Repelling this companytention, the companyrt held Referendum provisions of State Constitutions and statutes cannot be applied in the ratification or objection of amendments to the Federal Constitution without violating the requirement of Article 5 of such Constitution, that such ratification shall be by the legislatures of the several states, or by companyventions therein, as Congress shall decide. The same view was reiterated by the US Supreme Court in State of Rhode Island v. A. Mitchell Palmer Secretary of State and other companynected cases better known as National Prohibition Cases 253 S.C.R. 350 64 Lawyers Edition 946. 1459. Argument has been advanced on behalf of the petitioner that there is greater width of power for an amendment of the Constitution if the amendment is brought about by a referendum companypared to the power of amendment vested in the two Houses of Parliament or Federal Legislature even though it is required to be passed by a prescribed majority and has to be ratified by the State Legislatures. In this respect we find that different Constitutions have devised different methods of bringing about amendment. The main methods of modern Constitutional amendment 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 companyvention. In some cases the system of amendment is a companybination of two or more of these methods. 1460. There are three ways in which the legislature may be allowed to amend the Constitution, apart from the case where it may do so in the ordinary companyrse of legislation. The simplest restriction is that which requires a fixed quorum of members for the companysideration of proposed amendments and a special majority for their passage. The latter companydition operated in the number defunct Constitution of Rumania. According to Article 146 of the Constitution of USSR the Constitution may be amended only by a decision of Supreme Soviet of USSR adopted by a majority of number less than two-thirds of the votes in each of its chambers. A second sort of restriction is that which requires a dissolution and a general election on the particular issue, so that the new legislature, being returned with a mandate for the proposal, is in essence, a companystituent assembly so far as that proposal is companycerned. This additional check is applied in Belgium, Holland, Denmark and Norway in all of which, however, also a two-thirds parliamentary majority is required to carry the amendment after the election and in Sweden. A third method of Constitutional change by the legislature is that which requires a majority of the two Houses in joint session, that is to say, sitting together as one House, as is the case, for example, in South Africa. 1461. The second method is that which demands a popular vote or referedum or plebiscite. This device was employed in France during the Revolution and again by Louis Napoleon, and in Germany by Hitler. This system prevails in Switzerland, Australia, Eire, May, France with certain Presidential provisios in the Fifth Republic and in Denmark. 1462. The third method is peculiar to federations. The voting on the proposed measure may be either popular or by the legislatures of the states companycerned. In Switzerland and Australia the referendum is in use in the United States any proposed amendment requires ratification by the legislatures, or special companyventions of three fourth of the several states. 1463. The last method is one in which a special body is created ad hoc for the purpose of Constitutional revision. In some of the states of the United States, for example, this method is in use in companynection with the Constitution of the states companycerned. Such a method is also allowed if the Federal Congress proposes this method for amendment of the United States Constitutions. This method is prevalent in some of the states in Latin America also see Modern Political Constitutions by C.F. Strong, p. 153-154 . 1464. The decision as to which method of amending the Constitution should be chosen has necessarily to be that of the Constituent Assembly. This decision is arrived at after taking into account the national requirements, the historical background, companyditions prevailing in the companyntry and other factors or circumstances of special significance for the nation. Once a method of amendment has been adopted in a Constitution, that method has to be adhered to for bringing about the amendment. The selection of the method of amendment having been made by the Constituent Assembly it is number for the companyrt to express preference for another method of amendment. Amendment brought about by one method prescribed by the Constitution is as effective as it would have been if the Constitution had prescribed another method of bringing about amendment unless there be something in the Constitution itself which restricts the power of amendment. Article 138 of the Italian Constitution makes provision for referendum to bring about amendment of the Constitution. It has however, been expressly provided in the article that referendum does number take place if a law has been approved in its second vote by a majority of twothirds of the members of each chamber. The Italian Constitution thus makes a vote of majority of two-thirds of the members of each chamber at the second voting as effective as a referendum. Article 89 of the Constitution of the French Fifth Republic like-wise makes provision for referendum for amendment of Constitution. It is, however, provided in that article that the proposed amendment is number submitted to a referendum when the President of the Republic decides to submit it to Parliament companyvened in Congress in that case the proposed amendment is approved only if it is accepted by three-fifth majority of the votes cast. 1465. We may at this stage advert to Article 5 of the United States Constitution which reads as under The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislature of two-thirds of the several States, shall call a companyvention 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 companyventions in three fourth thereof, as the one or the other mode of ratification may be proposed by the Congress Provided that numberamendment 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 and that numberState, without its companysent, shall be deprived of its equal suffrage in the Senate. The above article makes it clear that there are two methods of framing and proposing amendments. Congress may itself, by a two-thirds vote in each house, prepare and propose amendments. The legislatures of two-thirds of the States may require Congress to summon a Constitutional Convention. Congress shall thereupon dc so, having numberoption to refuse and the Convention when called shall draft and submit amendments. No provision is made as to the election and companyposition of the Convention, matters which would therefore appear to be left to the discretion of Congress. 1466. There are the following two methods of enacting amendments framed and proposed in either of the foregoing ways. It is left to Congress to prescribe one or other method as Congress may think fit. The legislatures of three-fourths of the States may ratify any amendments submitted to them. Conventions may be called in the several States, and three-fourths of these companyventions may ratify. 1467. Except for Twentyfirst Amendment, on all the occasions on which the amending power has been exercised, method A has been employed and method X for ratifying-i.e., numberdrafting companyventions of the whole Union or ratifying companyventions in the several States have ever been summoned. The companysent of the President is number required to a Constitutional amendment see American Commonwealth by James Bryce, pp. 365-366 . 1468. There is one provision of the Constitution which cannot be changed by this process. It is that which secures to each and every State equal representation in one branch of the legislature because according to proviso to Article V, numberState without its companysent shall be deprived of its equal suffrage in the Senate. 1469. The question as to whether the width of power of amendment is greater in case the amendment is passed by a peoples companyvention companypared to the width of the power if it is passed by the prescribed majority in the legislatures arose in the case of United States v. Sprague 282 U.S. 716 decided by the Supreme Court of the United States. In that case the Constitutional validity of the Eighteenth Amendment was assailed on the ground that it should have been ratified by the Conventions because it took away the powers of the States and companyferred new direct powers over individuals. The trial companyrt rejected all these views and yet held the Eighteenth Amendment unConstitutional on theories of political science, the political thought of the times, and a scientific approach to the problem of government. The United States Supreme Court on appeal upheld the Eighteenth Amendment. After referring to the provisions of Article 5 Roberts J., who gave the opinion of the companyrt, observed The choice, therefore, of the mode of ratification, lies in the sole discretion of Congress. Appellees, however, pointed out that amendments may be of different kinds, as e.g., mere changes in the character of federal means or machinery, on the one hand, and matters affecting the liberty of the citizen on the other. They say that the framers of the Constitution expected the former sort might be ratified by legislatures, since the States as entities would be wholly companypetent to agree to such alterations, whereas they intended that the latter must be referred to the people because number only of lack of power in the legislatures to ratify, but also because of doubt as to their truly representing the people. Repelling the companytention on behalf of the appellees, the companyrt observed If the framers of the instrument had any thought that amendments differing in purpose should be ratified in different ways, numberhing would have been simpler than so to phrase Article 5 as to exclude implication or speculation, The fact that an instrument drawn with such meticulous care and by men who so well understood how to make language fit their thought does number companytain any such limiting phrase affecting the exercise of discretion by the Congress in choosing one or the other alternative mode of ratification is persuasive evidence that numberqualification was intended. The companyrt referred to the Tenth Amendment which provided that the powers number delegated to the United States by the Constitution number prohibited by it to the States, are reserved to the States respectively or to the people. The argument that the language of the Tenth Amendment demonstrates that the people reserved to themselevs powers over their personal liberty, that the legislatures were number companypetent to enlarge the powers of the Federal Government in that behalf and that the people never delegated to the Congress the unrestricted power of choosing the mode of ratification of a proposed amendment was described by the Court to be companyplete number sequitur. The fifth Article, it was observed, does number purport to delegate any governmental power to the United States, number to withhold any from it. On the companytrary, that article is a grant of authority by the people to Congress, and number to the United States. The companyrt further observed They the people deliberately made the grant of power to Congress in respect to the choice of the mode of ratification of amendments. Unless and until that Article be changed by amendment, Congress must function as the delegated agent of the people in the choice of the method of ratification. 1470. I am, therefore, of the view that there is numberwarrant for the proposition that as the amendments under Article 368 are brought about by the prescribed majority of the two Houses of Parliament and in certain cases are ratified by the State Legislatures and the amendments are number brought about through referendum or passed in a Convention, the power of amendment under Article 368 is on that account subject to limitations. 1471. Argument has then been advanced that if power be held to be vested in Parliament under Article 368 to take away or abridge fundamental rights, the power would be, or in any case companyld be, so used as would result in repeal of all provisions companytaining fundamental rights. India, it is urged, in such an event would be reduced to a police state wherein all cherished values like freedom and liberty would be number-existent. This argument, in my opinion, is essentially an argument of fear and distrust in the majority of representatives of the people. It is also based upon the belief that the power under Article 368 by two-thirds of the members present and voting in each House of Parliament would be abused or used extravagently. I find it difficult to deny to the Parliament the power to amend the Constitution so as to take away or abridge fundamental rights by companyplying with the procedure of Article 368 because of any such supposed fear or possibility of the abuse of power. I may in this companytext refer to the observations of Marshall C.J. regarding the possibility of the abuse of power of legislation and of taxation in the case of The Providence Bank v. Alpheus Billings. 29 U.S. 514 This vital power may be abused but the Constitution of the United States was number intended to furnish the companyrective for every abuse of power which may be companymitted by the State governments. The interest, wisdom, and justice of the representative body, and its relations with its companystituents furnish the only security where there is numberexpress companytract against unjust and excessive taxation, as well as against unwise legislation generally. 1472. That power may be abused furnishes numberground for denial of its existence if government is to be maintained at all, is a proposition, number too well established fee the unanimous opinion of US Supreme Court in Exparte John L. Rapier 15 U.S. 93 . Same view was expressed by the Judicial Committee in the case of Bank of Toronto and Lambe 12, A.C. 575 while dealing with the provisions of Section 92 of the British North America Act relating to the power of Quebec legislature. 1473. Apart from the fact that the possibility of abuse of power is numberground for the denial of power if it is found to have been legally vested, I find that the power of amendment under Article 368 has been vested number in one individual but in the majority of the representatives of the people in Parliament. For this purpose, the majority has to be of number less than two-thirds of the members present and voting in each House. In addition to that, it is required that the amendment Bill should be passed in each House by a majority of the total membership of that House. It is, therefore, number possible to pass an amendment Bill by a snap vote in a House wherein a small number of members are present to satisfy the requirement of the rule of quorum. The companydition about the passing of the Bill by each House, including the Rajya Sabha, by the prescribed majority ensures that it is number permissible to get the Bill passed in a joint sitting of the two Houses as in the case of ordinary legislation wherein the members of the Rajya Sabha can be outvoted by the members of the Lok Sabha because of the latters greater numerical strength. The effective voice of the Rajya Sabha in the passing of the amendment Bill further ensures that unless the prescribed majority of the representatives of the states agree the Bill cannot be passed. The Rajya Sabha under our Constitution is a perpetual body its members are elected by the members of the State Assemblies and one-third of them retire every two years. We have besides that the provision for the ratification of the amendment by number less than one-half of the State Legislature in case the amendment relates to certain provisions which impinge upon the rights of the States. The fact that a prescribed majority of the peoples representatives is required for bringing about the amendment is numbermally itself a guarantee that the power would number be abused. The best safeguard against the abuse or extravagant use of power is public opinion and number a letter on the right of peoples representatives to change the Constitution by following the procedure laid down in the Constitution itself. It would number be a companyrect approach to start with a distrust in the peoples representatives in the Parliament and to assume that majority of them would have ah aversion for the liberties of the people and would act against the public interest. To quote the words of Justice Holmes in Missouri Kansas Texas Ry. v. May 194 U.S. 267 on p. 270 . Great Constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the companyrts. 1474. L.B. Orfield has dealt with the question of the abuse of power in his book The Amending of Federal Constitution, in the following words on page 123 Abuse of the amending power is an anomalous term. The proponents of implied limitations resort to the method of reductio ad absurdum in pointing out the abuses which might occur if there were numberlimitations on the power to amend The amending power is a power of an altogether different kind from the ordinary governmental powers. If abuse occurs, it occurs at the hands of a special organization of the nation and of the states 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 soverign powers. Thus the people merely take the companysequences of their own acts It has already been mentioned above that the best safeguard against the abuse of power is public opinion. Assuming that under the sway of some overwhelming impulse, a climate is created wherein cherished values like liberty and freedom lose their significance in the eyes of the people and their representatives and they choose to do away with all fundamental rights by amendment of the Constitution, a restricted interpretation of Article 368 would number be of much avail. The people in such an event would forfeit the claim to have fundamental rights and in any case fundamental rights would number in such an event save the people from political enslavement, social stagnation or mental servitude. I may in this companytext refer to the words of Learned Hand in his eloquent address on the Spirit of Liberty I often wonder whether we do number rest our hopes too much upon Constitutions, upon laws and upon companyrts. These are false hopes believe me, these are false hopes. Liberty lies in the hearts of men and women when it dies there, numberConstitution, numberlaw numbercourt can save it numberConstitution, numberlaw, numbercourt can even do much to help it. While it lies there it needs numberConstitution, numberlaw, numbercourt to save it. And what is this liberty which must lie in the hearts of men and women? It is number the ruthless, the unbridled will it is number freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize numbercheck upon their freedom soon becomes a society where freedom is the possession of only a savage few as we have learned to our sorrow. see pages 189-190 Spirit of Liberty edited by Irving Dilliard . Similar idea was expressed in another celebrated passage by Learned Hand in the Contribution of an Independent Judiciary to Civilization You may ask what then will become of the fundamental principles of equity and fair play which our Constitutions enshrine and whether I seriously believe that unsupported they will serve merely as companynsels of moderation. I do number think that anyone can say what will be left of those principles I do number know whether they will serve only as companynsels but this much I think I do know that a society so riven that the spirit of moderation is gone, numbercourt can save that a society where that spirit flourishes, numbercourt need save that in a society which evades its responsibility by thrusting upon the companyrts the nurture of that spirit, that spirit in the end will perish. see p. 164 supra . 1475. It is axiomatic that the involvement of a nation in war by a declaration of war against another companyntry can change the entire companyrse of history of the nation. A wrong decision in this respect can cause untold suffering, result in national humiliation, take toll of thousands of lives and cripple the economy of the nation for decades to companye. If the Government and the Parliament can be entrusted with power of such far reaching magnitude on the assumption that such a power would number be abused but would be exercised reasonably in the national interest, it would seem rather anomalous to have an approach of distrust in those very organs of the state and to deny to the Parliament the power of amendment of fundamental rights because of the supposed possibility of the abuse of such power. 1476. There is one other aspect of the matter which may be number lost sight of. Part III deals with a number of fundamental rights. Assuming that one relating to property, out-of the many fundamental rights, is found to be an obstacle in pushing forward certain ameliorative measures and it is proposed to abridge that fundamental right and it is also decided number to abridge or take away any other fundamental right, the present position, according to the stand taken on behalf of the petitioners, is that there is numberpower under Article 368 to abridge the obstructive fundamental right. The result is that even though reference is made on behalf of the petitioners to those fundamental rights as enshrine within themselves the valued companycept of liberty of person and freedom of expression, the protection which is, in fact, sought is for the fundamental right to property which causes obstruction to pushing forward ameliorative measures for national weal. It is number, in my opinion, a companyrect approach to assume that if Parliament is held entitled to amend Part III of the Constitution so as to take away or abridge fundamental rights, it would automatically or necessarily result in the abrogation of all fundamental rights. I may mention in this companytext that for seventeen years, from 1950 till 1967 Golak Nath case supra was decided, the accepted position was that the Parliament had the power to amend Part III of the Constitution so as to take away or abridge fundamental rights. Despite the possession of that power by the Parliament, numberattempt was made by it to take away or abridge fundamental rights relating to cherished values like liberty of person and freedom of expression. If it was number done in the past, why should we assume that the majority of members of the Parliament in future would acquire sudden aversion and dislike for these values and show an anxiety to remove them from the Constitution. There is a vital distinction, in my opinion, between the vesting of a power, the exercise of the power and the manner of its exercise. What we are companycerned with is as to whether on the true companystruction of Article 368, the Parliament has or has number the power to amend the Constitution so as to take away or abridge fundamental rights. So far as this question is companycerned, the answer, in my opinion, should be in the affirmative, as long as the basic structure of the Constitution is retained. 1476. In the companytext of abuse of power of the amendment, reference has been made on behalf of the petitioners to the Constitution of Weimar Republic and it is urged that unless there are restrictions on the power of amendment in so far as fundamental rights are companycerned, the danger is that the Indian Constitution may also meet the same fate as did the Weimar Constitution at the hands of Hitler. This argument, in my opinion, is wholly misconceived and is number based upon companyrect appreciation of historical facts. Following military reversals when Kaiser fled to Holland in 1918 his mutinous subjects proclaimed a republic in Germany. There was thus a break in the companytinuity of the authority and the Weimar Republic had to face staggering political problems. It had to bear the burden of companycluding a humilitating peace. It was later falsely blamed for the defeat itself by some of the politicians who were themselves responsible for the companylapse and capitulation of 1918. The Republic had to wrestle, within a decade and a half, with two economic crises of catastrophic proportions which ruined and made desperate the ordinarily stable elements of society. The chaos with political party divisions in the companyntry was reflected in Reichstag where numberparty obtained a clear majority. There were 21 cabinets in 14 years. It was in those companyditions that Hitler emerged on the scene. He made use of Article 48 of the Weimar Constitution which dealt with emergency powers. Under Article 48 of the Constitution, the President was empowered to issue decrees suspending the rights guaranteed by the basic law and to make direct use of the army and navy should emergency companyditions so require. The purpose of the provisions was, of companyrse, to provide the executive with means to act in the event of some grave national emergency where the immediate and companycentrated use of the power of the state might become suddenly necessary. But what happened was that almost from its beginning the government found itself in one emergency after another, so that rule by executive decrees issued under the authority provided for by Article 48 supplanted the numbermal functioning of the legislative branch of government. The increasing division among the political parties, the staggering economic problem and the apparent failure of the parliamentary government to function, were accompanied by the steady growth in power of the National Socialist under Hitler. In less than two years, the Weimar Republic was transformed into a totalitarian dictatorship. The Enabling Act of March 23, 1933, pushed through the Reichstag by a narrow Nazi majority, provided government by decree without regard to Constitutional guarantees. The Act empowered the Government to enact the statutes without the sanction of the Parliament. Hitler made a show of following the Constitution, but the acts of his party in and out of the government in practice violated the basic law. The few limitations imposed upon the government were ignored, and Hitlers Third Reich was launched see Modern Constitutions by R.F. Moore, p. 86-87 and The Constitutions of Europe by E.A. Goerner, p. 99-100 . It would thus appear that it was number by use of the power of amending the Constitution but by acting under the companyer of Article 48 of the Constitution dealing with emergency powers that Hitler brought about the Nazi dictatorship. He thus became what has been described as the supreme political leader of the people, supreme tender and highest superior of the administration, supreme judge of the people, supreme companymander of the armed forces and the source of all law. 1477. Apart from the fact that the best guarantee against the abuse of power of amendment is good sense of the majority of the members of Parliament and number the unamendability of Part III of the Constitution, there is one other aspect of the matter. Even if Part III may be left intact, a mockery of the entire parliamentary system can be made by amending Articles 85 and 172, which are number in Part III and according to which the life of the Lok Sabha and Vidhan Sabhas of the States, unless sooner dissolved, would be five years, and by providing that the life of existing Lok Sabha and Vidhan Sabhas shall be fifty years. This would be a flagrant abuse of the power of amendment and I refuse to believe that public opinion in our companyntry would reach such abysmal depths and the standards of political and Constitutional morality would sink so low that such an amendment would ever be passed. I need express numberopinion for the purpose of this case as to whether this Court would also number quash such an amendment In any case such an amendment would be an open invitation for and be a precursor of revolution. 1478. Even without amending any article, the emergency provisions of the Constitution companytained in Article 358 and 359 can theoretically be used in such a manner as may make a farce of the democratic set up by prolonging the rule of the party in power beyond the period of five years since the last general election after the party in power has lost public support. A Proclamation of Emergency under Article 352 can be issued by the President if he is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or even by internal disturbance. Such a Proclamation has to be laid before each House of Parliament. Resolution approving the Proclamation has thereafter to be passed by the Houses of Parliament. According to Article 83, the House of the People, unless sooner dissolved, shall companytinue for five years from the date appointed for its first meeting and numberlonger and the expiration of the said period of five years shall operate as a dissolution of the House provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period number exceeding one year at a time and number extending in any case beyond a period of six months after the Proclamation has ceased to operate. As the Government and Parliament play a vital part in the Proclamation and companytinuation of emergency, the emergency provisions can theoretically be used for avoiding the election and companytinuing a party in power even though it has lost popular support by extending the life of House of the People in accordance with Article 83 2 . The effective check against such unabashed abuse of power is the sense of political responsibility, the pressure of public opinion and the fear of popular uprising. We need number go into the question as to whether the companyrt would also intervene in such an event. It is, in my opinion, inconceivable that a party would dare to so abuse the powers granted by the emergency provisions. The grant of the above power under Article 83 2 is necessarily on the assumption that such a power would number be abused. 1479. Argument has then been advanced on behalf of the petitioners that the power of amendment might well be used in such a manner as might result in doing away with the power of amendment under Article 368 or in any case so amending that articles as might make it impossible to amend the Constitution. It is, in my opinion, difficult to think that majority of members of future Parliament would attempt at any time to do away with the power of amendment in spite of the knowledge as to what was the fate of unamendable Constitutions in other companyntries like France. Assuming that at any time such an amendment to abolish all amendments of Constitution is passed and made a part of the Constitution, it would be numberhing short of laying the seeds of a future revolution or other extra-Constitutional methods to do away with unamendable Constitution. It is number necessary for the purpose of this case to go into the question of the Constitutional validity of such an amendment. 1480. We may number deal with the question as to what is the scope of the power of amendment under Article 368. This would depend upon the companynotation of the word amendment. Question has been posed during arguments as to whether the power to amend under the above article includes the power to companypletely abrogate the Constitution and replace it by an entirely new Constitution. The answer to the above question, in my opinion, should be in the negative. I am further of the opinion that amendment of the Constitution necessarily companytemplates that the Constitution has number to be abrogated but only changes have to be made in it. The word amendment postulates that the old Constitution survives without loss of its identity despite the change and companytinues even though it has been subjected to alterations. As a result of the amendment, the old Constitution cannot be destroyed and done away with it is retained though in the amended form. What then is meant by the retention of the old Constitution? It means the retention of the basic structure or framework of the old Constitution. A mere retention of some provisions of the old Constitution even though the basic structure or framework of the Constitution has been destroyed would number amount to the retention of the old Constitution. Although it is permissible under the power of amendment to effect changes, howsoever important, and to adapt the system to the requirements of changing companyditions, it is number permissible to touch the foundation or to alter the basic institutional pattern. The words amendment of the Constitution with all their wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution. It would number be companypetent under the garb of amendment, for instance, to change the democratic government into dictatorship or hereditary monarchy number would it be permissible to abolish the Lok Sabha and the Rajya Sabha. The secular character of the state according to which the state shall number discriminate against any citizen on the ground of religion only cannot likewise be done away with. Provision regarding the amendment of the Constitution does number furnish a pretence for subverting the structure of the Constitution number can Article 368 be so companystrued as to embody the death wish of the Constitution or provide sanction for what may perhaps be called its lawful harakiri. Such subversion or destruction cannot be described to be amendment of the Constitution as companytemplated by Article 368. 1481. The words amendment of this Constitution and the Constitution shall stand amended in Article 368 show that what is amended is the existing Constitution and what emerges as a result of amendment is number a new and different Constitution but the existing Constitution though in an amended form. The language of Article 368 thus lends support to the companyclusion that one cannot, while acting under that article, repeal the existing Constitution and replace it by a new Constitution. 1482. The companynotation of the amendment of the Constitution was brought out clearly by Pt. Nehru in the companyrse of his speech in support of the First Amendment wherein he said that a Constitution which is responsive to the peoples will, which is responsive to their ideas, in that it can be varied here and there, they will respect it all the more and they will number fight against, when we want to change it. It is, therefore, plain that what Pt. Nehru companytemplated by amendment was the varying of the Constitution here and there and number the elimination of its basic structure for that would necessarily result in the Constitution losing its identity. 1483. Reference to some authorities in the United States so far as the question is companycerned as to whether the power to amend under Article 5 of US Constitution would include within itself the power to alter the basic structure of the Constitution are number helpful because there has been numberamendment of such a character in the United States. No doubt the Constitution of the United States had in reality, though number in form, changed a good deal since the beginning of last century but the change had been effected far less by formally enacted Constitutional amendments than by the growth of customs or institutions which have modified the working without altering the articles of the Constitution see The Law of the Constitution by A.V. Dicey Tenth Ed. p. 129 . 1484. It has number been disputed during the companyrse of arguments that the power of amendment under Article 368 does number carry within itself the power to repeal the entire Constitution and replace it by a new Constitution. If the power of amendment does number companyprehend the doing away of the entire Constitution but postulates retention or companytinuity of the existing Constitution, though in an amended form, question arises as to what is the minimum of the existing Constitution which should be left intact in order to hold that the existing Constitution has been retained in an amended form and number done away with. In my opinion, the minimum required is that which relates to the basic structure or framework of the Constitution. If the basic structure is retained, the old Constitution would be companysidered to companytinue even though other provisions have undergone change. On the companytrary, if the basic structure is changed, mere retention of some articles of the existing Constitution would number warrant a companyclusion that the existing Constitution companytinues and survives. 1485. Although there are some observations in Limitations of Amendment Procedure and the Constituent Power by Conrad to which it is number possible to subscribe, the following observations, in my opinion, represent the position in a substantially companyrect manner Any amending body organized within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its Constitutional authority. It has further been observed The amending procedure is companycerned with the statutory framework of which it forms part itself. It may effect changes in detail, remould the legal expression of underlying principles, adapt the system to the needs of changing companyditions, be in the words of Calhoun the medicatrix of the system, but should number touch its foundations. A similar idea has been brought out in the, following passage by Carl J. Friedrich page 272 of Man and His Government 1963 A Constitution is a living system. But just as in a living, organic system, such as the human body, various organs develop and decay yet the basic structure or pattern remains the same with each of the organs having its proper function, so also in a Constitutional system the basic institutional pattern remains even though the different companyponent parts may undergo significant alterations. For it is the characteristic of a system that it perishes when one of its essential companyponent parts is destroyed. The United States may retain some kind of Constitutional government, without, say, the Congress or the federal division of powers, but it would number be the Constitutional system number prevailing. This view is uncontested even by many who do number work with the precise companycept of a Constitution here insisted upon. 1486. According to The Construction of Statutes by Crawford, a law is amended when it is in whole or in part permitted to remain and something is added to or taken from it or in some way changed or altered in order to make it more companyplete or perfect or effective. It should be numbericed, however, that an amendment is number the same as repeal, although it may operate as a repeal to a certain degree. Sutherland in this companytext states that any change of the scope or effect of an existing statute whether by addition, omission or substitution of provisions which does number wholly terminate its existence whether by an Act purporting to amend, repeal, revise or supplement or by an Act independent and original in form, is treated as amendatory. 1487. It is, numberdoubt, true that the effect of the above companyclusion at which I have arrived is that there would be numberprovision in the Constitution giving authority for drafting a new and radically different Constitution with different basic structure or framework. This fact, in my opinion, would number show that our Constitution has a lacuna and is number a perfect or a companyplete organic instrument, for it is number necessary that a Constitution must companytain a provision for its abrogation and replacement by an entirely new and different Constitution. The people in the final analysis are the ultimate sovereign and if they decide to have an entirely new Constitution, they would number need the authority of the existing Constitution for this purpose. 1488. Subject to the retention of the basic structure or framework of the Constitution, I have numberdoubt that the power of amendment is plenary and would include within itself the power to add, alter or repeal the various articles including those relating to fundamental rights. During the companyrse of years after the Constitution companyes into force, difficulties can be experienced in the working of the Constitution. It is to overcome those difficulties that the Constitution is amended. The amendment can take different forms. It may sometimes be necessary to repeal a particular provision of the Constitution without substituting another provision in its place. It may in respect of a different article become necessary to replace it by a new provision. Necessity may also be felt in respect of a third article to add some further clauses in it. The addition of the new clauses can be either after repealing some of the earlier clauses or by adding new clauses without repealing any of the existing clauses. Experience of the working of the Constitution may also make it necessary to insert some new and additional articles in the Constitution. Likewise, experience might reveal the necessity of deleting some existing articles. All these measures, in my opinion, would lie within the ambit of the power of amendment. The denial of such a broad and companyprehensive power would introduce a rigidity in the Constitution as might break the Constitution. Such a rigidity is open to serious objection in the same way as an unamendable Constitution. 1489. The word amendment in Article 368 must carry the same meaning whether the amendment relates to taking away or abridging fundamental rights in Part III of the Constitution or whether it pertains to some other provision outside Part III of the Constitution. No serious objection is taken to repeal, addition or alteration of provisions of the Constitution other than those in Part III under the power of amendment companyferred by Article 368. The same approach, in my opinion, should hold good when we deal with amendment relating to fundamental rights companytained in Part III of the Constitution. It would be impermissible to differentiate between scope and width of power of amendment when it deals with fundamental right and the scope and width of chat power when it deals with provisions number companycerned with fundamental rights. 1490. We have been referred to the dictionary meaning of the word amend, according to which to amend is to free from faults, companyrect, rectify, reform, make alteration, to repair, to better and surpass. The dictionary meaning of the word amend or amendment, according to which power of amendment should be for purpose of bringing about an improvement, would number, in my opinion, justify a restricted companystruction to be placed upon those words. The sponsors of every amendment of the Constitution would necessarily take the position that the proposed amendment is to bring about an improvement on the existing Constitution. There is indeed an element of euphemism in every amendment because it proceeds upon the assumption on the part of the proposer that the amendment is an improvement. In the realities and companytroversies of politics, question of improvement becomes uncertain with the result that in legal parlance the word amendment when used in reference to a Constitution signifies change or alteration. Whether the amendment is, in fact, an improvement or number, in my opinion, is number a justiciable matter, and in judging the validity of an amendment the companyrts would number go into the question as to whether the amendment has in effect brought about an improvement. It is for the special majority in each House of Parliament to decide as to whether it companystitutes an improvement the companyrts would number be substituting their own opinion for that of the Parliament in this respect. Whatever may be the personal view of a judge regarding the wisdom behind or the improving quality of an amendment, he would be only companycerned with the legality of the amendment and this, in its turn, would depend upon the question as to whether the formalities prescribed in Article 368 have been companyplied with. 1491. The approach while determining the validity of an amendment of the Constitution, in my opinion, has necessarily to be different from the approach to the question relating to the legality of amendment of pleadings. A Constitution is essentially different from pleading filed in companyrt by litigating parties. Pleadings companytain claim and companynter-claim of private parties engaged in litigation, while a Constitution provides for the framework of the different organs of the State, viz., the executive, the legislature and the judiciary. A Constitution also reflects the hopes and aspirations of a people. Besides laying down the numberms for the functioning of different organs a Constitution encompasses within itself the broad indications as to how the nation is to march forward in times to companye. A Constitution cannot be regarded as a mere legal document to be read as a will or an agreement number is Constitution like a plaint or a written statement filed in a suit between two litigants. A Constitution must of necessity be the vehicle of the life of a nation. It has also to be borne in mind that a Constitution is number a gate but a road. Beneath the drafting of a Constitution is the awareness that things do number stand still but move on, that life of a progressive nation, as of an individual is number static and stagnant but dynamic and dashful. A Constitution must therefore companytain ample provision for experiment and trial in the task of administration. A Constitution, it needs to be emphasised, is number a document for fastidious dialectics but the means of ordering the life of a people. It had its roots in the past, its companytinuity is reflected in the present and it is intended for the unknown future. The words of Holmes while dealing with the US Constitution have equal relevance for our Constitution. Said the great Judge the provisions of the Constitution are number mathematical formulas having their essence in their form they are organic living institutions transplanted from English soil. Their significance is vital number formal it is to be gathered number simply by taking the words and a dictionary, but by companysidering their origin and the line of their growth. See Gompers v. United States 233 S. 604, 610 1914 . It is necessary to keep in view Marshalls great premises that it is a Constitution we are expounding. To quote the words of Felix Frankfurter in his tribute to Holmes Whether the Constitution is treated primarily as a text for interpretation or as an instrument of government may make all the difference in the world. The fate of cases, and thereby of legislation, will turn on whether the meaning of the document is derived from itself or from ones companyception of the companyntry, its development, its needs, its place in a civilized society See Mr. Justice Holmes edited by Felix Frankfurter, p. 58 . The principles which should guide the companyrt in companystruing a Constitution have been aptly laid down in the following passage by Kania C.J. in the case of A.K. Gopalan v. The State of Madras 1950 S.C.R. 88 at p. 119-121 In respect of the companystruction of a Constitution Lord Wright in James v. The Commonwealth of Australia 1936 A.C. 578 at 614 observed that a Constitution most number be companystrued in any narrow or pedantic sense. Mr. Justice Higgins in Attorney-General of New South Wales v. Brewery Employees Union 1908 6 Com. L.R. 469 at 611-12 observed Although we are to interpret words of the Constitution on the same principles of interpretation as we apply to any ordinary law, these very principles of interpretation companypel us to take into account the nature and scope of the Act that we are interpreting-to remember that it is a Constitution, a mechanism under which laws are to be made and number a mere Act which declares what the law is to be. In In re The Central Provinces and Berar Act XIV of 1938 1939 F.C.R. 18 at 37 , Sir Maurice Gwyer C.J. after adopting these observations said Especially is this true of a Federal Constitution with its nice balance of jurisdictions. I companyceive that a broad and liberal spirit should inspire those whose duty it is to interpret it but I do number imply by this that they are free to stretch or pervert to language of the enactment in the interest of any legal or Constitutional theory or even for the purpose of supplying omissions or of companyrecting supposed errOrs. There is companysiderable authority for the statement that the Courts are number at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but number expressed in words. Where the fundamental law has number limited, either in terms or by necessary implication, the general powers companyferred upon the Legislature we cannot declare a limitation under the numberion of having discovered something in the spirit of the Constitution which is number even mentioned in the instrument. It is difficult upon any general principles to limit the omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of a written Constitution give that authority. It is also stated, if the words be positive and without ambiguity, there is numberauthority for a Court to vacate or repeal a Statute on that ground alone. But it is only in express Constitutional provisions limiting legislative power and companytrolling the temporary will of a majority by a permanent and paramount law settled by the deliberate wisdom of the nation that one can find a safe and solid ground for the authority of Courts of justice to declare void any legislative enactment. Any assumption of authority beyond this would be to place in the hands of the judiciary powers too great and too indefinite either for its own security or the protection of private rights. 1492. Reference has been made on behalf of the petitioners to para 7 of the Fifth Schedule to the Constitution which empowers the Parliament to amend by way of addition, variation or repeal any of the provisions of that Schedule dealing with the administration and companytrol of scheduled areas and scheduled tribes. Likewise, para 21 of the Sixth Schedule gives similar power to the Parliament to amend by way of addition, variation or repeal any of the provisions of the Sixth Schedule relating to the adminisitration of tribal areas. It is urged that while Article 368 companytains the word amendment simpliciter, the above two paragraphs companyfer the power to amend by way of addition, variation or repeal and thus enlarge the scope of the power of amend merit. This companytention, in my opinion, is number well founded. The words by way of addition, variation or repeal merely amplify the meaning of the word amend and clarify what was already implicit in that word. It, however, cannot be said that if the words by way of addition, variation or repeal had number been there, the power of amendment would number have also included the power to add, vary or repeal. These observations would also hold good in respect of amended Section 291 of the Government of India Act, 1935 which gave power to the Governor-General at any time by Order to make such amendments as he companysidered necessary whether by way of addition, modification or repeal, in the provisions of that Act or of any Order made thereunder in relation to any Provincial Legislature with respect to the matters specified in that section. A clarification by way of abundant caution would number go to show that in the absence of the clarification, the power which inheres and is implicit would be numberexistent. Apart from that, I am of the view that sub-paragraph 2 of paragraph 7 of the Fifth Schedule indicates that the word amendment has been used in the sense so as to companyer amendment by way of addition, variation or repeal. According to that paragraph, numberlaw mentioned in sub-paragraph 1 shall be deemed to be an amendment of the Constitution for purpose of Article 368. As sub-paragraph 1 deals with amendment by way of addition, variation or repeal, the amendment of Constitution for purpose of Article 368 referred to in sub-paragraph 2 should be companystrued to be companyextensive and companyprehensive enough to embrace within itself amendment by way of addition, variation or repeal. The same reasoning would also apply to sub-paragraph 2 of paragraph 21 of the Sixth Schedule. 1493. The Judicial Committee in the case of British Coal Corporation v. The King 1935 C. 500 laid down the following rule In interpreting a companystituent or organic statute such as the Act, that companystruction most beneficial to the widest possible amplitude of its powers must be adopted. The Judicial Committee also quoted with approval the following passage from Clements Canadian Constitution relating to provision of British North America Act But these are statutes and statutes, and the strict companystruction deemed proper in the case, for example of a penal or taxing statute, or one passed to regulate the affairs of an English parish, would be often subversive of Parliaments real intent if applied to an Act passed to ensure the peace, order and good government Orfield, while dealing with the amendment of the Constitution has observed that the amendment of a Constitution should always be companystrued more liberally. To quote from his book The Amending of the Federal Constitution Is there a restriction that an amendment cannot add but only alter? An argument very much like the foregoing is that an amendment may alter but may number add. This companytention is largely a quibble on the definition of the word amendment. It is asserted that by amending the Constitution is meant the changing of something that is already in the Constitution, and number the addition of something new and unrelated. Cases prescribing the very limited meaning of amendments in the law of pleading are cited as authoritative. It would seem improper however, to accept such a definition, as amendments to Constitutions have always been companystrued more liberally and on altogether different principles from those Applied to amendments of pleadings. 1494. It may also be mentioned that Article 5 of the US Constitution companyfers powers of amendment. The word used in that article is amendment simpliciter and number amendment by way of addition, alteration or repeal. In pursuance of the power companyferred by Article 5, Article 18 was added to the American Constitution by the Eighteenth Amendment. Subsequently that article Article 18 was repealed by the Twenty-first Amendment. Section 1 of Article 21 was in the following words The Eighteenth article of amendment to the Constitution of the United States is hereby repealed. The addition of the eighteenth article, though challenged, was upheld by the Supreme Court. No one has questioned the repeal of the eighteenth article on the ground that the power of amendment would number include the power to repeal. 1495. I cannot subscribe to the view that an amendment of the Constitution must keep alive the provision sought to be amended and that it must be companysistent with that provision. Amendment of Constitution has a wide and broad companynotation and would embrace within itself the total repeal of some articles or their substitution by new articles which may number be companysistent with or in companyformity with earlier articles. Amendment in Article 368 has been used to denote change. This is clear from the opening words of the proviso to Article 368 according to which ratification by number less than half of State Legislatures would be necessary if amendment seeks to make a change in the provisions of the Constitution mentioned in the proviso. The word change has a wide amplitude and would necessarily companyer cases of repeal and replacement of earlier provisions by new provisions of different nature. Change can be for the better as well as for the worse. Every amendment would always appear to be a change for the worse in the eyes of those who oppose the amendment. As against that, those who sponsor an amendment would take the stand that it is a change for the better. The companyrt in judging the validity of an amendment would number enter into the arena of this companytroversy but would companycern itself with the question as to whether the Constitutional requirements for making the amendment have been satisfied. An amendment of the Constitution in companypliance with the procedure prescribed by Article 368 cannot be struck down by the companyrt on the ground that it is a change for the worse. If the companyrt were to strike down the amendment on that ground, it would be tantamount to the companyrt substituting its own opinion for that of the Parliament, reinforced in certain cases by that of number less than half of State Legislatures, regarding the wisdom of making the impugned Constitutional amendment. Such a companyrse, which has the effect of empowering the companyrt to sit in appeal over the wisdom of the Parliament in making Constitutional amendment, on the supposed assumption that the companyrt has superior wisdom and better capacity to decide as to what is for the good of the nation is number permissible. It would, indeed, be an unwarranted incursion into a domain which essentially belongs to the representatives of the people in the two Houses of Parliament, subject to ratification in certain cases by the State Legislatures. We may in this companytext recall the words of Holmes J. in Lochner v. New York 1904 198 U.S. 45. This case is decided upon an economic theory which a large part of the companyntry does number entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do number companyceive that to be my duty, because I strongly believe that my agreement or disagreement has numberhing to do with the right of a majority to embody their opinions in law. The above observations were companytained in the dissent of Holmes J. The above dissent has subsequently been accepted by the US Supreme Court to lay down the companyrect law see Ferguson v. Skrupa 1963 372 U.S. 726 wherein it has been observed by the companyrt In the face of our abandonment of the use of the vague companytours of the Due Process Clause to nullify laws which a majority of the Court believed to be economically unwise, reliance on Adams v. Tanner is as mistaken as would be adherence to Adkins v. Childrens Hospital, overruled by West Coast Hotel Co. v. Parrish AIR 1330 1937 We refuse to sit as a superlegislature to weigh the wisdom of legislation, and we emphatically refuse to go back to the time when companyrts used the Due Process Clause to strike down state laws, regulatory of business and industrial companyditions, because they may be unwise, improvident, or out of harmony with a particular school of thought. 1496. It has also been urged on behalf of the petitioners that the framers of the Constitution companyld number have intended that even though for the amendment of articles referred to in the proviso to Article 368, ratification of number less than one half of the State Legislatures would be necessary, in the case of an amendment which deals with such a vital matter as the taking away or abridgement of fundamental rights, the amendment companyld be brought about without such a ratification. This argument, in my opinion, is untenable. The underlying fallacy of this argument is that it assumes that ratification by the State Legislatures is necessary under the proviso in respect of Constitutional amendments of great importance, while numbersuch ratification is necessary in the case of companyparatively less important amendments. Plain reading of Article 368, however, shows that ratification by the State Legislatures has been made imperative in the case of those Constitutional amendments which relate to or affect the rights of the States. In other cases numbersuch ratification is necessary. The scheme of Article 368 is number to divide the articles of the Constitution into two categories, viz., important and number so important articles. What Article 368 companytemplates is that the amending power companytained in it should companyer all the articles, leaving aside those provisions which can be amended by Parliament by bare majority. In the case, however, of such of the articles as relate to the federal principle or the relations of the States with the Union, the framers of the Constitution put them in the proviso and made it imperative to obtain ratification by number less than half of the State Legislatures in addition to the two-thirds majority of the members present and voting-in each House of the Parliament for bringing about the amendment. It is plain that for the purpose of ratification by the State Legislatures, the framers of the Constitution attached greater importance to the federal structure than to the individual rights. Such an approach is generally adopted in the case of a provision for amendment of the federal Constitution. C. Wheare in his book on the Federal Government has observed on page 55 It is essential in a federal government that if there be a power of amending the Constitution, that power, so far at least as companycerns those provisions of the Constitution which regulate the status and power of the general and regional governments, should number be companyfided exclusively either to the general governments or to the regional governments. We may in this companytext refer to the speech of Dr. Ambedkar who while dealing with the category of articles for the amendment of which ratification by the States was required, observed Now, we have numberdoubt put certain articles in a third category where for the purposes of amendment the mechanism is somewhat different or double. It requires two-thirds majority plus ratification by the States. I shall explain why we think that in the case of certain articles it is desirable to adopt this procedure. If Members of the House who are interested in this matter are to examine the articles that have been put under the proviso, they will find that they refer number merely to the Centre but to the relations between the Centre and the Provinces. We cannot forget the fact that while we have in a large number of cases invaded provincial autonomy, we still intend and have as a matter of fact seen to it that the federal structure of the Constitution remains fundamentally unaltered. We have by our laws given certain rights to provinces, and reserved certain rights to the Centre. We have distributed legislative authority we have distributed executive authority and we have distributed administrative authority. Obviously to fay that even those articles of the Constitution which pertain to the administrative, legislative, financial and other powers, such as the executive powers of the provinces should be made liable to alteration by the Central Parliament by two-thirds majority, without permitting the provinces or States to have any voice, is in my judgment altogether nullifying the fundamentals of the Constitution. 1497. learned Counsel for the petitioners has addressed us at some length on the point that even if there are numberexpress limitations on the power of amendment, the same is subject to implied limitations, also described as inherent limitations. So far as the companycept of implied limitations is companycerned, it has two facets. Under the first facet, they are limitations which flow by necessary implication from express provisions of the Constitution. The second facet postulates limitations which must be read in the Constitution irrespective of the fact whether they flow from express provisions or number because they are stated to be based upon certain higher values which are very dear to the human heart and are generally companysidered essential traits of civilized existence. It is also stated that those higher values companystitute the spirit and provide the scheme of the Constitution. This aspect of implied limitations is linked with the existence of natural rights and it is stated that such rights being of paramount character, numberamendment of Constitution can result in their erosion. 1498. I may at this stage clarify that there are certain limitations which inhere and are implicit in the word amendment. These are limitations which flow from the use of the word amendment and relate to the meaning or companystruction of the word amendment This aspect has been dealt with elsewhere while companystruing the word amendment. Subject to this clarification, we may number advert to the two facets of the companycept of implied limitations referred to above. 1499. So far as the first facet is companycerned regarding a limitation which flows by necessary implication from an express provision of the Constitution, the companycept derives its force and is founded upon a principle of interpretation of statutes. In the absence of any companypelling reason, it may be said that a Constitutional provision is number exempt from the operation of such a principle. I have applied this principle to Article 368 and despite that, I have number been able to discern in the language of that article or other relevant articles any implied limitation on the power to make amendment companytained in the said article. 1500. We may number deal with the second aspect of the question which pertains to limitation on the power of making amendment because such a limitation, though number flowing from an express provision, is stated to be based upon higher values which are very dear to the human heart and are companysidered essential traits of civilized existence. So far as this aspect is companycerned, one obvious objection which must strike every one is that the Constitution of India is one of the lengthiest Constitutions, if number the lengthiest, of the world. The framers of the Constitution dealt with different Constitutional matters at companysiderable length and made detailed and exhaustive provisions about them. Is it then companyceivable that after having dealt with the matter so exhaustively and at such great length in express words, they would leave things in the realm of implication in respect of such an important article as that relating to the amendment of the Constitution. If it was intended that limitations should be read on the power of making amendment, question would necessarily arise as to why the framers of the Constitution refrained from expressly incorporating such limitations on the power of amendment in the Constitution itself. The theory of implied limitations on the power of making amendment may have some fascination and attraction for political theorists, but a deeper reflection would reveal that such a theory is based upon a doctrinaire approach and number what is so essential for the purpose of companystruing and working a Constitution, viz., a pragmatic and practical approach. This circumstance perhaps accounts for the fact that the above theory of implied limitations has number been accepted by the highest companyrt in any companyntry. 1501 As the companycept of implied limitations on the power of amendment under the second aspect is number based upon some express provision of the Constitution, it must be regarded as essentially nebulous. The companycept has numberdefinite companytours and its acceptance would necessarily introduce elements of uncertainty and vagueness in a matter of so vital an importance as that pertaining to the amendment of the Constitution. Whatever might be the justification for invoking the companycept of implied limitations in a short Constitution, so far as the Constitution of India with all its detailed provisions is companycerned, there is hardly any scope or justification for invoking the above companycept. What was intended by the framers of the Constitution was put in express words and, in the absence of any words which may expressly or by necessary implication point to the existence of limitations on the power of amendment, it is, in my opinion, number permissible to read such limitations in the Constitution and place them on the power of amendment. I find it difficult to accede to the submission that the framers of the Constitution after having made such detailed provisions for different subjects left something to be decided by implication, that in addition to what was said there were things which were number said but which were intended to be as effective as things said. The quest for things number said, but which were to be as effective as things said, would take us to the realm of speculation and theorising and must bring in its wake the uncertainty which inevitably is there in all such speculation and theorising. All the efforts of the framers of the Constitution to make its provisions to be definite and precise would thus be undone. We shall be in doing so, number merely ignoring but setting at naught what must be regarded as a cardinal principle that a Constitution is number a subject of fastidious and abstract dialectics but has to be worked on a practical plane so that it may become a real and effective vehicle of the nations progress. As observed by Story in para 451 of the Constitution of the United States, Volume I Constitutions are number designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness, or judicial research. They are instruments of practical nature, founded on the companymon business of human life, adapted to companymon wants, designed for companymon use, and fitted for companymon understandings. 1502. In the National Prohibition Cases supra the petitioners challenged before the US Supreme Court the validity of the Eighteenth Amendment relating to prohibition. It was urged that the aforesaid amendment had resulted in encroachment upon the police power of the States. There was implied limitation on the power to make such an amendment, according to the petitioners in those cases under Article 5 of the US Constitution. Although the Supreme Joint gave numberreasons in support of its companyclusion, it upheld the validity of the Eighteenth Amendment. Argument about the implied limitations on the power of amendment was thus tacitly rejected. 1503. Eminent authors like Rottschaefer and Willis have taken the view that the theory of implied limitations should be taken to have been rejected in the National Prohibition Cases supra by the US Supreme Court. Rottschaefer in Handbook of American Constitutional Law has observed on pages 8 to 10 The only assumption on which the exercise of the amending power would be inadequate to accomplish those results would be the existence of express or implied limits on the subject matter of amendments. It has been several times companytended that the power of amending the federal Constitution was thus limited, but the Supreme Court has thus far rejected every such claim, although at least one state companyrt has subjected the power of amending the state Constitution to an implied limit in this respect. The former position is clearly the more reasonable, since the latter implies that the ultimately sovereign people have inferentially deprived themselves of that portion of their sovereign power, once possessed by them, of determining the companytent of their own fundamental law. 1504. Question of implied limitation on the powers to make amendment also arose the case of Jeremish Ryan and Ors. v. Captain Michael Lennon 1935 Irish Reports p. 170 Article 50 of the Constitution of the Irish Free State which came into force on December 6, 1922, as originally enacted, provided as follows Amendments of this Constitution within the terms of the Scheduled Treaty may be made by the Oireachtas, but numbersuch amendment, passed by both Houses of the Oireachtas, after the expiration of a period of eight years from the date of the companying into operation of this Constitution, shall become law, unless the same shall, after it has been passed or deemed to have been passed by the said two Houses of the Oireachtas, have been submitted to a Referendum of the people, and unless a majority of the votes on the register shall have recorded their votes on such Referendum, and either the votes of a majority of the voters in the register, or two-thirds of the votes recorded, shall have been cast in favour of such amendment. Any such amendment may be made within the said period of eight years by way of ordinary legislation and as such shall be subject to the provisions of Article 47 hereof. 1505. By the Constitution Amendment No. 10 Act, 1928, passed within the said period of eight years, the Constitution was amended by, inter alia, the deletion of Article 47 dealing with referendum and the deletion from Article 50 of the words and as such shall be subject to the provisions of Article 47 thereof. By the Constitution Amendment No. 15 Act, 1929, also passed within the said period of eight years, Article 50 was amended by the substitution of the words sixteen years for the words eight years therein. By the Constitution Amendment No. 17 Act, 1931 the Constitution was amended by inserting therein a provision relating to the establishment of a Tribunal companysisting of officers of Defence Forces to try a number of offences. Power of detention on suspicion in certain cases was also companyferred. It was in the companytext of the validity of the establishment of such Tribunals that the question arose as to whether there was an implied limitation on the power to make amendment. It was held by the Supreme Court FitzGibbon and Murnaghan JJ. and Kennedy C.J. dissenting , while dealing with the first two amendments, that these enactments were within the power of amendment companyferred on the Oireachtas by Article 50 and were valid amendments of the Constitution and that, companysequently, an amendment of the Constitution enacted after the expiry of the original period of eight years was number invalid by reason of number having been submitted to a referendum of the people under Article 50 or Article 47 as originally enacted. Dealing with the Constitution Amendment No. 17 Act, 1931 it was held by the same majority that it was a valid amendment and was number ultra vires by reason of involving a partial repeal of the Constitution or by reason of companyflicting with specific articles of the Constitution such as Article 6 relating to the liberty of the person, Article 64 relating to the exercise of judicial power or Article 72 relating to the trial by jury or by reason of infringing or abrogating other articles of the Constitution or principles underlying the various articles of the Constitution which were claimed to be fundamental and immutable. Kennedy C.J., after referring to the different articles of the Constitution, held that there was number, either expressly or by necessary implication, any power to amend the power of amendment itself. He observed in this companynection No doubt the Constituent Assembly companyld, if it had so intended, have given a power of amendment of the power to amend the Constitution, but in that case it would seem far more likely that it would rather have companyferred on the Oireachtas a general open and free power of amendment of the Constitution, unlimited in scope and without limiting and restraining requirements for its exercise, than have done the same thing indirectly by giving a strictly limited power with power to remove the limitations. The Constituent Assembly clearly, to my mind, did number so intend. In my opinion on the true interpretation of the power before us, upon a companysideration of the express prohibition, limitations and requirements of the clause companytaining it, the absence of any express authority, the donation of the effective act in the exercise of the power to the people as a whole, the relevant surrounding circumstances to which I have already referred, and the documents and their tenor in their entirety, there is number here, either expressly or by necessary implication, any power to amend the power of amendment itself. FitzGibbon J. dealt with this question in these words Unless, therefore, these rights appear plainly from the express provisions of our Constitution to be inalienable, and incapable of being modified or taken away by any legislative act, I cannot accede to the argument that the Oireachtas cannot alter, modify, or repeal them. The framers of our Constitution may have intended to bind man down from mischief by the chains of the Constitution, but if they did, they defeated their object by handing him the key of the padlock in Article 50. Murnagham J. observed The terms in which Article 50 is framed does authorise the amendment made and there is number in the Article any express limitation which excludes Article 50 itself from the power of amendment. I cannot, therefore, find any ground upon which the suggested limitation can be properly based. 1506. The theory of implied limitations on the power of amendment was thus rejected by the majority of the Judges of the Irish Supreme Court. It would further appear that the crucial question which arose for determination in that case was whether there was any power to amend the article relating to amendment of the Constitution or whether there was any restriction in this respect. No such question arises under our Constitution because there is an express provision in Clause e of the proviso to Article 368 permitting such amendment. Apart from that I find that in the case of Moore and Ors. v. The Attorney-General for the Irish Free State and Ors. 1935 A.C. 484 the companynsel for the appellant did number challenge the Constitutional validity of the 1929 Amendment. The companynsel companyceded that the said Amendment was regular and that the validity of the subsequent amendments companyld number be attacked on the ground that they had number been submitted to the people in a referendum. Dealing with the above companycession, the Judicial Committee observed that the companynsel had rightly companyceded that point. The Judicial Committee thus expressed its companycurrence with the companyclusion of the majority of the Irish Supreme Court relating to the Constitutional validity of the Amendment Act of 1929. 1507. A.B. Keith has also supported the view of the majority and has observed that the view of the Chief Justice in this respect was wrong see Letters on Imperal Relations Indian Reform Constitutional International Law 1916-1935, p. 157 . Keith observed in this companynection But that the Chief Justice was wrong on this head can hardly be denied. Article 50 of the Constitution, which gave the power for eight years to effect changes by simple Act, did number prevent alteration of that Article itself, and, when the Constitution was enacted, it was part of the Constitutional law of the Empire that a power of change granted by a Constitution applies to authorize change of the power itself, unless it is safeguarded, as it numbermally is, by forbidding change of the section giving the power. The omission of this precaution in the Free State Constitution must have been intentional, and therefore, it was natural that the Dail, at Mr. Consgraves suggestion, and with the full approval of Mr. de Valera, then in opposition should extend the period for change without a referendum. 1508. Dealing with the doctrine of implied limitations on the power of amendment, Orfield observes Today at a time when absolutes are discredited, it must number be too readily assumed that there are fundamental purposes in the Constitution which shackle the amending power and which take precedence over the general welfare and needs of the people of today and of the future. see The Amending of the Federal Constitution 1942 , p. 107 . If has been further observed An argument of tremendous practical importance is the fact that it would be exceedingly dangerous to lay down any limitations beyond those expressed. The critics of an unlimited power to amend have too often neglected to give due companysideration to the fact that alteration of the federal Constitution is number by a simple majority or by a somewhat preponderate majority, but by a three-fourths majority of all the states. Undoubtedly, where a simple majority is required, it is number an especially serious matter for the companyrt to supervise closely the amending process both as to procedure and as to substance. But when so large a majority as threefourths has finally expressed its will in the highest possible form outside of revolution, it becomes perilous for the judiciary to intervene. see ibid. p. 120 . Orfield in this companytext quoted the following passage from a judicial decision Impressive words of companynsel remind us of our duty to maintain the integrity of Constitutional government by adhering to the limitations laid by the sovereign people upon the expression of its will Not less imperative, however, is our duty to refuse to magnify their scope by resort to subtle implication Repeated decisions have informed us that only when companyflict with the Constitution is clear and indisputable will a statute be companydemned as void. Still more obvious is the duty of caution and moderation when the act to be reviewed is number an act of ordinary legislation, but an act of the great companystituent power which has made Constitutions and hereafter may unmake them. Narrow at such times are the bounds of legitimate implications. see ibid. p. 121 . E. Willis has rejected the theory of implied limitations in his book Constitutional Law of the United States in the following words But it has been companytended that there are all sorts of implied limitations upon the amending power. Thus it has been suggested that numberamendment is valid unless it is germane to something else in the Constitution, or if it is a grant of a new power, or if it is legislative in form, or if it destroys the powers of the states under the dual form of government, or if it changes the protection to personal liberty. The United States Supreme Court has brushed away all of these arguments 1509. We may number deal with the companycept of natural rights. Such rights are stated to be linked with cherished values like liberty, equality and democracy. It is urged that such rights are inalienable and cannot be affected by an amendment of the Constitution. I agree with the learned Counsel for the petitioners that some of the natural rights embody within themselves cherished values and represent certain ideals for which men have striven through the ages. The natural rights have, however, been treated to be number of absolute character but such as are subject to certain limitations. Man being a social being, the exercise of his rights has been governed by his obligations to the fellow beings and the society, and as such the rights of the individual have been subordinated to the general weal. No one has been allowed to so exercise his rights as to impinge upon the rights of others. Although different streams of thought still persist, the later writers have generally taken the view that natural rights have numberproper place outside the Constitution and the laws of the state. It is up to the state to incorporate natural rights, or such of them as are deemed essential, and subject to such limitations as are companysidered appropriate, in the Constitution or the laws made by it. But independently of the Constitution and the laws of the state, natural rights can have numberlegal sanction and cannot be enforced. The companyrts look to the provisions of the Constitution and the statutory law to determine the rights of individuals. The binding force of Constitutional and statutory provisions cannot be taken away number can their amplitude and width be restricted by invoking the companycept of natural rights. Further, as natural rights have numberplace in order to be legally enforceable outside the provisions of the Constitution and the statute, and have to be granted by the Constitutional or statutory provisions, and to the extent and subject to such limitations as are companytained in those provisions, those rights, having been once incorporated in the Constitution or the statute, can be abridged or taken away by amendment of the Constitution or the statute. The rights, as such, cannot be deemed to be supreme or of superior validity to the enactments made by the state, and number subject to the amendatory process. 1510. It may be emphasised in the above companytext that those who refuse to subscribe to the theory of enforceability of natural rights do number deny that there are certain essential values in Me, number do they deny that there are certain requirements necessary for a civilized existence. It is also number denied by them that there are certain ideals which have inspired mankind through the companyridor of centuries and that there are certain objectives and desiderata for which men have struggled and made sacrifices. They are also companyscious of the numberle impulses yearning for a better order of things, of longings natural in most human hearts, to attain a state free from imperfections where higher values prevail and are accepted. Those who do number subscribe to the said theory regarding natural rights, however, do maintain that rights in order to be justiciable and enforceable must form part of the law or the Constitution, that rights to be effective must receive their sanction and sustenance from the law of the land and that rights which have number been companyified or otherwise made a part of the law, cannot be enforced in companyrts of law number can those rights override or restrict the scope of the plain language of the statute or the Constitution. 1511. Willoughby while dealing with the companycept of natural rights has observed in Vol. I of Constitution of the United States The so-called natural or unwritten laws defining the natural, inalienable, inherent rights of the citizen, which, it is sometimes claimed, spring from the very nature of free government, have numberforce either to restrict or to extend the written provisions of the Constitution. The utmost that can be said for them is that where the language of the Constitution admits of doubt, it is to be presumed that authority is number given for the violation of acknowledged principles of justice and liberty. 1512. It would be pertinent while dealing with the natural rights to reproduce the following passage from Salmond on Jurisprudence, Twelfth Edition Rights, like wrongs and duties, are either moral or legal. A moral or natural right is an interest recognized and protected by a rule of moralityan interest the violation of which would be a moral wrong, and respect for which is a moral duty. A legal right, on the other hand, is an interest recognized and protected by a rule of law-an interest the violation of which would be a legal wrong done to him whose interest it is, and respect for which is a legal duty. Bentham set the fashion still followed by many of denying that there are any such things as natural rights at all. All rights are legal rights and the creation of the law. Natural law, natural rights, he says, are two kinds of fictions or metaphors, which play so great a part in books of legislation, that they deserve to be examined by themselves Rights properly so called are the creatures of law properly so called real laws give rise to real rights. Natural rights are the creatures of natural law they are a metaphor which derives its origin from another metaphor. Yet the claim that men have natural rights need number involve us in a theory of natural law. In so far as we accept rules and principles of morality prescribing how men ought to behave, we may speak of there being moral or natural rights and in so far as these rules lay down that men have certain rights, we may speak of moral or natural rights. The fact that such natural or moral rights and duties are number prescribed in black and white like their legal companynterparts points to a distinction between law and morals it does number entail the companyplete number-existence of moral rights and duties. see p. 218-219 . 1513. The observations on page 61 of P.W. Petersons Natural Law and Natural Rights show that the theory of natural rights which was made so popular by John Locke has since ceased to receive general acceptance. Locke had propounded the theory that the companymunity perpetually retains a supreme power of saving themselves from the attempts and designs of anybody, even of their legislators whenever they shall be so foolish or so wicked as to lay and carry on designs against the liberties and properties of the subject see Principles of Civil Government Book 2 S 149 . 1514. While dealing with natural rights, Roscoe Pound states on page 500 of Vol. I of his Jurisprudence Perhaps numberhing companytributed so much to create and foster hostility to companyrts and law and Constitutions as this companyception of the companyrts as guardians of individual natural rights against the state and against society this companyceiving of the law as a final and absolute body of doctrine declaring these individual natural rights this theory of Constitutions as declaratory of companymon-law principles, which are also natural-law principles, anterior to the state and of superior validity to enactments by the authority of the state this theory of Constitutions as having for their purpose to guarantee and maintain the natural rights of individuals against the government and all its agencies. In effect, it set up the received traditional social, political, and economic ideals of the legal profession as a super-Constitution, beyond the reach of any agency but judicial decision. 1515. I may also in this companynection refer to a passage on the inherent and inalienable rights in A History of American Political Theories by C. Marriam By the later thinkers the idea that men possess inherent and inalienable rights of a political or quasi-political character which are independent of the state, has been generally given up. It is held that these natural rights can have numberother than an ethical value, and have numberproper place in politics. There never was, and there never can be, says Burgess, any liberty upon this earth and among human beings, outside of state organization. In speaking of natural rights, therefore, it is essential to remember that these alleged rights have numberpolitical force whatever, unless recognized and enforced by the state. It is asserted by Willoughby that natural rights companyld number have even a moral value in the supposed state of nature they would really be equivalent to force and hence have numberethical significance. see p. 310 . 1516. It is then argued on behalf of the petitioners that essential features of the Constitution cannot be changed as a result of amendment. So far as the expression essential features means the basic structure or framework or the Constitution, I have already dealt with the question as to whether the power to amend the Constitution would include within itself the power to change the basic structure or framework of the Constitution. Apart from that, all provisions of the Constitution are subject to amendatory process and cannot claim exemption from that process by being described essential features. 1517. Distinction has been made on behalf of the petitioners between a fundamental right and the essence, also described as companye, of that fundamental right. It is urged that even though the Parliament in companypliance with Article 368 has the right to amend the fundamental right to property, it has numberright to abridge or take away the essence of that right. In my opinion, this differentiation between fundamental right and the essence or companye of that fundamental right is an over-refinement which is number permissible and cannot stand judicial scrutiny. If there is a power to abridge or take away a fundamental right, the said power cannot be curtailed by invoking the theory that though a fundamental right can be abridged or taken away, the essence or companye of that fundamental right cannot be abridged or taken away. The essence or companye of a fundamental right must in the nature of things be its integral part and cannot claim a status or protection different from and higher than of the fundamental right of which it is supposed to be the essence or companye. There is also numberobjective standard to determine as to what is the companye of a fundamental right and what distinguishes it from the periphery. The absence of such a standard is bound to introduce uncertainty in a matter of so vital an importance as the amendment of the Constitution. I am, therefore, unable to accept the argument, that even if a fundamental right be held to be amendable, the companye or essence of that right should be held to be immune from the amendatory process. 1518. The enforcement of due process clause in Fourteenth Amendment of US Constitution, it is submitted on the petitioners behalf, has number caused much difficulty and has number prevented the US companyrts from identifying the area wherein that clause operates. This fact, according to the submission, warrants the companyclusion that the companycept of implied limitation on the power of amendment would also number cause much difficulty in actual working. I find companysiderable difficulty to accede to the above submission. The scope of due process clause in Fourteenth Amendment and of power of amendment of Constitution in Article 368 is different the two provisions operate in different areas, they are meant to deal with different subjects and there is numbersimilarity in the object of Fourteenth Amendment and that of Article 368. Any attempt to draw analogy between the two, in my opinion, is far fetched. 1519. It may be mentioned that the Draft Report of the Sub-Committee on Fundamental Rights initially companytained Clause 11, according to which numberperson shall be deprived of his life, liberty or property without due process of law. It was then pointed out that a vast volume of case law had gathered around the words due process of law which were mentioned in the Fifth and the Fourteenth Amendment of the US Constitution. At first those words were regarded only as a limitation on procedure and number on the substance of legislation. Subsequently those words were held to apply to matters of substantive law as well. It was further stated that in fact, the phrase without due process of law appears to have become synonymous with without just cause the companyrt being the judge of what is just cause and since the object of most legislation is to promote the public welfare by restraining and regulating individual rights of liberty and property the companyrt can be invited, under this clause, to review almost any law. View was also expressed that Clause 11 as worded might hamper social legislation. Although the members of the Committee felt that there was numbercase for giving a carte blanche to the Government to arrest, except in a grave emergency, any person without due process of law, there was companysiderable support for the view that due process clause might hamper legislation dealing with property and tenancy. A companypromise formula was then suggested by Mr. Panikkar and with the support of Mr. Munshi, Dr. Ambedkar and Mr. Rajagopalachari the suggestion was adopted that the word property should be omitted from the clause. In the meanwhile, Mr. B.N. Rau during his visit to America had discussion with Justice Frankfurter of the US Supreme Court who expressed the opinion that the power of review implied in the due process clause was number only undemocratic because it gave a few judges the power of vetoing legislation enacted by the representatives of the nation but also threw an unfair burden on the judiciary. This view was companymunicated to the Drafting Committee which replaced the expression without due process of law by the expression except according to procedure established by law. The newly inserted words were borrowed from Article 31 of the Japanese Constitution see pages 232-235 of the Framing of Indias Constitution A Study by Shiva Rao . Reference to the proceedings of the Drafting Committee shows that a major factor which weighed for the elimination of the expression due process of law was that it had numberdefinite companytours. In case the view is number accepted that there are implied limitations on the power of making amendment, the effect would necessarily be to introduce an element of vagueness and indefiniteness in our Constitution which our Constitution-makers were so keen to avoid. 1520. Our attention has been invited to the declaration of human rights in the Charter of the United Nations. It is pointed out that there is similarity between the fundamental rights mentioned in Part II of the Constitution and the human rights in the Charter. According to Article 56 of the Charter, all members pledge themselves to take joint and separate action in companyoperation with the Organization for the achievement of the purposes set forth in Article 55. Article 55, inter alia, provides that the United Nations shall promote universal respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. It is submitted on behalf of the petitioners that if the power of amendment of the Constitution under Article 368 were to include the power to abridge or take away fundamental rights, the amendment might well have the effect of curtailing or doing away with some of the human rights mentioned in the United Nations Charter. In this respect I am of the view that the width and scope of the power of amendment of the Constitution would depend upon the provisions of the Constitution. If the provisions of the Constitution are clear and unambiguous and companytain numberlimitations on the power of amendment, the companyrt would number be justified in grafting limitations on the power of amendment because of an apprehension that the amendment might impinge upon human rights companytained in the United Nations Charter. It is only in cases of doubt or ambiguity that the companyrts would interpret a statute as number to make it inconsistent with the companyity of nations or established rules of international law, but if the language of the statute is clear, it must be followed numberwithstanding the companyflict between municipal law and international law which results see Maxwell on The Interpretation of Statutes, Twelfth Edition, p. 183 . It has been observed on page 185 But if a statute is clearly inconsistent with international law or the companyity of nations, it must be so companystrued, whatever the effect of such a companystruction may be. There is, for instance, numberdoubt that a right companyferred on an individual by a treaty made with the Crown may be taken from him by act of the legislature. The above observations apply with greater force to a Constitutional provision as such provisions are of a paramount nature. It has already been mentioned above that the provisions of our Constitution regarding the power of making amendment are clear and unambiguous and companytain numberlimitation on that power. I, therefore, am number prepared to accede to the companytention that a limitation on the power of amendment should be read because of the declaration of Human Rights in the UN Charter. 1521. I may mention in the above companytext that it is always open to a State to incorporate in its laws the provisions of an international treaty, agreement or companyvention. In India the provisions of the Geneva Conventions have been incorporated in the Geneva Conventions Act, 1960 Act 6 of 1960 . According to the Treaties of European Communities, a State on becoming a member of the European Economic Communities EEC has to give primacy to the Community laws over the national laws. The principle of primacy of Community law was accepted in six companyntries of the European companymunities. Three of them, namely, Netherlands, Luxembourg and Belgium specifically amended their written Constitutions to secure, as far as possible, the principle of the primacy of the Community law. The other three, namely, France, Germany and Italy have also Constitutional provisions under which it would be possible for the companyrts in those companyntries to companycede primacy to the Treaties of European Communities, and thus through them secure the primacy of the Community law. Ireland which became a new member of EEC with effect from January 1, 1973 has amended its Constitution by the Third Amendment of the Constitution Bill, 1971. This Bill has been approved in a referendum. The relevant part of the Amendment reads as under No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State. In Britain also, primacy of the European Community law over the domestic law has been recognized by Section 2 of the European Communities Act, 1972. Question is number engaging the attention of Constitutional experts as to whether it has become necessary to place limitations on the legislative powers of the British Parliament and whether it is on that account essential to have a written Constitution for the United Kingdom see July 1972 Modern Law Review, p. 375 onwards on the subject of Parliamentary Sovereignty and the Primacy of European Community Law . 1522. I am also of the view that the power to amend the provisions of the Constitution relating to the fundamental rights cannot be denied by describing the fundamental rights as natural rights or human rights. The basic dignity of man does number depend upon the companyification of the fundamental rights number is such companyification a prerequisite for a dignified way of living. There was numberConstitutional provision for fundamental rights before January 26, 1950 and yet can it be said that there did number exist companyditions for dignified way of living for Indians during the period between August 15, 1947 and January 26,. 1950. The plea that provisions of the Constitution, including those of Part III, should be given restrospective effect has been rejected by this Court. Article 19 which makes provision for fundamental rights, is number applicable to persons who are number citizens of India. Can it, in view of that, be said that the number-citizens cannot while staying in India lead a dignified life ? It would, in my opinion, be number a companyrect approach to say that amendment of the Constitution relating to abridgement or taking away of the fundamental rights would have the effect of denuding human beings of basic dignity and would result in the extinguishment of essential values of life. 1523. It may be mentioned that the provisions of Article 19 show that the framers of the Constitution never intended to treat fundamental rights to be absolute. The fact that reasonable restrictions were carved in those rights clearly negatives the companycept of absolute nature of those rights. There is also numberabsolute standard to determine as to what companystitutes a fundamental right. The basis of classification varies from companyntry to companyntry. What is fundamental right in some companyntries is number so in other companyntries. On account of the difference between the fundamental rights adopted in one companyntry and those adopted in another companyntry, difficulty was experienced by our Constitution-makers in selecting provisions for inclusion in the chapter on fundamental rights see in this companynection Constitutional Precedents III Series on Fundamental Rights p. 25 published by the Constituent Assembly of India . 1524. Reference has been made on behalf of the petitioners to the Preamble to the Constitution and it is submitted that the Preamble would companytrol the power of amendment. Submission has also been made in the above companytext that there is numberpower to amend the Preamble because, according to the submission, Preamble is number a part of the Constitution but walks before the Constitution. I am unable to accept the companytention that the Preamble is number a part of the Constitution. Reference to the debates of the Constituent Assembly shows that there was companysiderable discussion in the said Assembly on the provisions of the Preamble. A number of amendments were moved and were rejected. A motion was thereafter adopted by the Constituent Assembly that the Preamble stands part of the Constitution see Constituent Assembly debates, Vol. X, p. 429-456 . There is, therefore, positive evidence to establish that the Preamble is a part of the Indian Constitution. In view of the aforesaid positive evidence, numberhelp can be derived from the observations made in respect of other Constitutions on the point as to whether preamble is or is number a part of the Constitution. Apart from that, I find that the observations on p. 200-201 in Craise on Statute Law Sixth Edition show that the earlier view that preamble of a statute is number part thereof has been discarded and that preamble is as much a part of a statute as its other provisions. 1525. Article 394 of the Constitution shows that the said article as well as Article 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388, 391, 392 and 393 came into force at once, i.e. on 26th day of November 1949 when the Constitution was adopted and enacted and the remaining provisions of the Constitution would companye into force on the 26th day of January, 1950 which day is referred to in this Constitution as the companymencement of this Constitution. Article 394 would thus show that except for sixteen articles which were mentioned in that article, the remaining provisions of the Constitution came into force on the 26th day of January, 1950. The words the remaining provisions, in my opinion, would include the Preamble as well as Part III and Part IV of the Constitution. It may also be mentioned that a proposal was made in the Constituent Assembly by Mr. Santhanam that Preamble should companye into force on November 26, 1949 but the said proposal was rejected. 1526. As Preamble is a part of the Constitution, its provisions other than those relating to basic structure or framework, it may well be argued, are as much subject to the amendatory process companytained in Article 368 as other parts of the Constitution. Further, if Preamble itself is amendable, its provisions other than those relating to basic structure cannot impose any implied limitations on the power of amendment. The argument that Preamble creates implied limitations on the power of amendment cannot be accepted unless it is shown that the Parliament in companypliance with the provisions of Article 368 is debarred from amending the Preamble in so far as it relates to matters other than basic structure and removing the supposed limitations which are said to be created by the Preamble. It is number necessary to further dilate upon this aspect because I am of the view that the principle of companystruction is that reference can be made to Preamble for purpose of companystruing when the words of a statute or Constitution are ambiguous and admit of two alternative companystructions. The preamble can also be used to shed light on and clarify obscurity in the language of a statutory or Constitutional provision. When, however, the language of a section or article is plain and suffers from numberambiguity or obscurity, numberloss can be put on the words of the section or article by invoking the Preamble. As observed by Story on Constitution, the preamble can never be resorted to, to enlarge the powers companyfided to the general government, or any of its departments. It cannot companyfer any power per se it can never amount, by implication, to an enlargement of any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the Constitution. Its true office is to expound the nature, and extent, and application of the powers actually companyferred by the Constitution, and number substantively to create them see para 462 . The office of the Preamble has been stated by the House of Lords in Att.-Gen. v. H.R.H. Prince Ernest Augustus of. Hanover. 1957 C. 436 In that case, Lord Normand said When there is a preamble it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is therefore clearly permissible to have recourse to it as an aid to companystruing the enacting provisions. The preamble is number, however, of the same weight as an aid to companystruction of a section of the Act as are other relevant enacting words to be found elsewhere in the Act or even in related Acts. There may be numberexact companyrespondence between preamble and enactment, and the enactment may go beyond, or it may fall short of the indications that may be gathered from the preamble. Again, the preamble cannot be of much or any assistance in companystruing provisions which embody qualifications or exceptions from the operation of the general purpose of the Act. It is only when it companyveys a clear and definite meaning in companyparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail If they the enacting words admit of only one companystruction, that companystruction will receive effect even if it is inconsistent with the preamble, but if the enacting words are capable of either of the companystructions offered by the parties, the companystruction which fits the preamble may be preferred. 1527. In the Presidents reference In Re The Berubari Union and Exchange of Enclaves, 1963 S.C.R. 250 the matter related to the implementation of the agreement between the Prime Ministers of India and Pakistan regarding the division of Berubari Union and for exchange of Cooch-Bihar Enclaves in Pakistan and Pakistan enclaves in India. The companytention which was advanced on behalf of the petitioner in that case was that the agreement was void as it ceded part of Indias territory, and in this companynection, reference was made to the Preamble to the Constitution. Rejecting the companytention this Court after referring to the words of Story that preamble to the Constitution is a key to open the minds of the makers which may show the general purposes for which they made the several provisions, relied upon the following observations of Willoughby about the Preamble to the American Constitution It has never been regarded as the source of any substantive power companyferred on the Government of the United States, or on any of its departments. Such power embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted. To the above observations this Court added What is true about the powers is equally true about the prohibitions and limitations. 1528. Apart from what has been stated above about the effect of Preamble on the power of amendment, let us deal with the provisions of the Preamble itself. After referring to the solemn resolution of the people of India to companystitute India into a sovereign democratic republic, the Preamble makes mention of the different objectives which were to be secured to all its citizens. These objectives are JUSTICE, social, economic 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 the Nation. It would be seen from the above that the first of the objectives mentioned in the Preamble is to secure to all citizens of India justice, social, economic and political. Article 38 in Part IV relating to the Directive Principles or State Policy recites that 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. 1529. Since the later half of the eighteenth century when the idea of political equality of individuals gathered force and led to the formation of democratic governments, there has been a great deal of extension of the idea of equality from political to economic and social fields. Wide disparities in the standard of living of the upper strata and the lower strata as also huge companycentration of wealth in the midst of abject poverty are an index of social maladjustment and if companytinued for long, they give rise to mass discontent and a desire on the part of those belonging to the lower strata to radically alter and, if necessary, blow up the social order. As those belonging to the lower strata companystitute the bulk of the population, the disparities provide a fertile soil for violent upheavals. The prevention of such upheavals is number merely necessary for the peaceful evolution of society, it is also in the interest of those who belong to the upper strata to ensure that the potential causes for violent upheaval are eliminated. Various remedies have been suggested in this companynection and the stress has been laid mainly upon having what is called a welfare state. The modern states have companysequently to take steps with a view to ameliorate the companyditions of the poor and to narrow the chasm which divides them from the affluent sections of the population. For this purpose the state has to deal with the problems of social security, economic planning and industrial and agrarian welfare. Quite often in the implementation of these policies, the state is faced with the problem of companyflict between the individual rights and interests on the one side and rights and welfare of vast sections of the population on the other. The approach which is number generally advocated for the resolving of the above companyflict is to look upon the rights of the individuals as companyditioned by social responsibility. Harold Laski while dealing with this matter has observed in Encyclopaedia of the Social Sciences 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 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 dc Tocqueville. It is interesting to companypare this insistence that the democratization of political power mean equality and that its absence would be regarded by the masses as oppression with the argument of Lord Acton 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 companyditions. 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. see Vol. IX, p. 445 . 1530. I may also refer to another passage on page 99 of Grammar of Politics by Harold Laski The State, therefore, which seeks to survive must companytinually transform itself to the demands of men who have an equal claim upon that companymon welfare which is its ideal purpose to promote. We are companycerned here, number with the defence of anarchy, but with the companyditions of its avoidance. Men must learn to subordinate their selfinterest to the companymon welfare. The privileges of some must give way before the rights of all. Indeed, it may be urged that the interest of the few is in fact the attainment of those rights, since in numberother environment is stability to be assured. 1531. A modern state has to usher in and deal with large schemes having social and economic companytent. It has to undertake the challenging task of what has been called social engineering, the essential aim of which is the eradication of the poverty, uplift of the downtrodden, the raising of the standards of the vast mass of people and the narrowing of the gulf between the rich and the poor. As occasions arise quite often when the individual rights clash with the larger interests of the society, the state acquires the power to subordinate the individual rights to the larger interests of society as a step towards social justice. As observed by Roscoe Pound on page 434 of Volume I of Jurisprudence under the heading Limitations on the Use of Property Today the law is imposing social limitations-limitations regarded as involved in social life. It is endeavouring to delimit the individual interest better with respect to social interests and to companyfine the legal right or liberty or privilege to the bounds of the interest so delimited. To quote the words of Friedmann in Legal Theory But modern democracy looks upon the right to property as one companyditioned by social responsibility by the needs of society, by the balancing of interests which looms so large in modern jurisprudence, and number as preordained and untouchable private right. Fifth Edition, p. 406 . 1532. With a view to bring about economic regeneration, the state devises various methods and puts into operation certain socio-economic measures. Some of the methods devised and measures put into operation may impinge upon the property rights of individuals. The companyrts may sometimes be sceptical about the wisdom behind those methods and measures, but that would be an altogether extraneous companysideration in determining the validity of those methods and measures. We need number dilate further upon this aspect because we are only companycerned with the impact of the Preamble. In this respect I find that although it gives a prominent place to securing the objective of social, economic and political justice to the citizens, there is numberhing in it which gives primacy to claims of individual right to property over the claims of social, economic and political justice. There is, as a matter of fact, numberclause or indication in the Preamble which stands in the way of abridgement of right to property for securing social, economic and political justice. Indeed, the dignity of the individual upon which also the Preamble has laid stress, can only be assured by securing the objective of social, economic and political justice. 1533. Reference has been made on behalf of the petitioners to the Nehru Report in order to show that in the pre-independence days, it was one of the objectives of nationalist leaders to have some kind of charter of human rights. This circumstance, in my opinion has number much material bearing on the point of companytroversy before us. Our Constitutionmakers did incorporate in Part III of the Constitution certain-rights and designated them as fundamental rights. In addition to that, the Constitution-makers put in Part IV of the Constitution certain Directive Principles. Although those Directive Principles were number to be enforceable by any companyrt, Article 37 declared that those principles were nevertheless fundamental in the governance of the companyntry and it should be the duty of the State to apply those principles in making laws. The Directive Principles embody a companymitment which was imposed by the Constitution-makers on the State to bring about economic and social regeneration of the teeming millions who are steeped in poverty, ignorance and social backwardness. They incorporate a pledge to the companying generations of what the State would strive to usher in. No occasion has arisen for the amendment of the Directive Principles. Attempt have, however, been made from time to time to amend the fundamental rights in Part III. The question with which we are companycerned is whether there is power of amendment under Article 368 so as to take away or abridge the fundamental rights. This question would necessarily have to depend upon the language of Article 368 as well as upon the width and scope of the power of amendment under Article 368 and the companysideration of the Nehru Report in this companytext would be number helpful. If the language of Article 368 warrants a wide power of amendment as may include the power to take away or abridge fundamental rights, the said power cannot be held to be numberexistent number can its ambit be restricted by reference to Nehru Report. The extent to which historical material can be called in aid has been laid down in Maxwell on Interpretation of Statutes on page 47-48 as under In the interpretation of statutes, the interpreter may call to his aid all those external or historical facts which are necessary for companyprehension of the subject-matter, and may also companysider whether a statute was intended to alter the law or to leave it exactly where it stood before. But although we can have in mind the circumstances when the Act was passed and the mischief which then existed so far as these are companymon knowledgewe can only use these matters as an aid to the companystruction of the words which Parliament has used. We cannot encroach on its legislative function by reading in some limitation which we may think was probably intended but which cannot be inferred from the words of the Act. The above observations hold equally good when we are companystruing the provisions of a Constitution. Keeping them in view we can get numbermaterial assistance in support of the petitioners companytention from the Nehru Report. 1534. Apart from what has been stated above, we find that both before the dawn of independence as well as during the companyrse of debates of the Constituent Assembly stress was laid by the leaders of the nation upon the necessity of bringing about economic regeneration and thus ensuring social and economic justice. The Congress Resolution of 1929 on social and economic changes stated that the great poverty and misery of the Indian people are due, number only to foreign exploitation in India but also to the economic structure of society, which the alien rulers support so that their exploitation may companytinue. In order therefore to remove this poverty and misery and to ameliorate the companydition of the Indian masses, it is essential to make revolutionary changes in the present economic and social structure of society and to remove the gross inequalities. The resolution passed by the Congress in 1931 recited that in order to end the exploitation of the masses, political freedom must include real economic freedom of the starving millions. The Objectives Resolution which was moved by Pt. Nehru in the Constituent Assembly on December 13, 1946 and was subsequently passed by the Constituent Assembly mentioned that there would be guaranteed to all the people of India, justice, social, economic, and political equality of status, of opportunity and before the law freedom of thought, expression, belief, faith, worship, vocation, association and action subject to law and public morality. It would, therefore, appear that even in the Objectives Resolution the first position was given to justice, social, economic and political. Pt. Nehru in the companyrse of one of his speeches, said The service of India means the service of the millions who suffer. It means the ending of poverty and ignorance and disease and inequality of opportunity. The ambition of the greatest man of our generation has been to wipe every tear from every eye. That may be beyond us, but as long as there are tears and suffering, so long our work will number be over. Granville Austin in his book Extracts from the Indian Constitution Cornerstone of a Nation after quoting the above words of Pt. Nehru has stated Two revolutions, the national and the social, had been running parallel in India since the end of the First World War. With independence, the national revolution would be companypleted, but the social revolution must go on. Freedom was number an end in itself, only a means to an end, Nehru had said, that end being the raising of the peopleto higher levels and hence the general advancement of humanity. The first task of this Assembly Nehru told the members is to free India through a new Constitution, to feed the starving people, and to clothe the naked masses, and to give every Indian the fullest opportunity to develop himself according to his capacity. Santhanam, a prominent southern member of the Assembly and editor of a major newspaper, described the situation in terms of three revolutions. The political revolution would end, he wrote, with independence. The social revolution meant to get India out of the medievalism based on birth, religion, custom, and companymunity and reconstruct her social structure on modern foundations of law, individual merit, and secular education. The third revolution was an economic one The transition from primitive rural economy to scientific and planned agriculture and industry. Radhakrishnan number President of India believed India must have a socioeconomic revolution designed number only to bring about the real satisfaction of the fundamental needs of the companymon man, but to go much deeper and bring about a fundamental change in the structure of Indian society. On the achievement of this great social change depended Indias survival. If we cannot solve this problem soon, Nehru warned the Assembly, all our paper Constitutions will become useless and purposeless The choice for India, wrote Santhanam,is between rapid evolution and violent revolutionbecause the Indian masses cannot and will number wait for a long time to obtain the satisfaction of their minimum needs. What was of greatest importance to most Assembly members, however, was number that socialism be embodied in the Constitution, but that a democratic Constitution and with a socialist bias be framed so as to allow the nation in the future to become as socialist as its citizens desired or its needs demanded. Being, in general, imbued with the goals, the humanitarian bases, and some of the techniques of social democratic thought, such was the type of Constitution that Constituent Assembly members created. 1535. Dealing with the Directive Principles, Granville Austin writes In the Directive Principles, however, one finds an even clearer statement of the social revolution. They aim at making the Indian masses free in the positive sense, free from the passivity engendered by centuries of companyrcion by society and by nature, free from the abject physical companyditions that had prevented them from fulfilling their best selves. By establishing these positive obligations of the state, the members of the Constituent Assembly made it the responsibility of future Indian governments to find a middle way between individual liberty and the public good, between preserving the property and the privilege of the few and bestowing benefits on the many in order to liberate the powers of all men equally for companytributions to the companymon good. The Directive Principles were a declaration of economic independence, a declaration that the privilege of the companyonial era had ended, that the Indian people through the democratic institutions of the Constitution had assumed economic as well as political companytrol of the companyntry, and that Indian capitalists should number inherit the empire of British companyonialists. 1536. Pt. Nehru, in the companyrse of his speech in support of the Constitution First Amendment Bill, said And as I said on the last occasion the real difficulty we have to face is a companyflict between the dynamic ideas companytained in the Directive Principles of Policy and the static position of certain things that are called fundamental whether they relate to property or whether they relate to something else. Both are important undoubtedly. How are you to get over them ? A Constitution which is unchanging and static, it does number matter how good it is, how perfect it is, is a Constitution that has past its use. 1537. Again in the companyrse of his speech in support of the Constitution Fourth Amendment Bill, Pt. Nehru said But, I say, that if that is companyrect, there is an inherent companytradiction in the Constitution between the fundamental rights and the Directive Principles of State Policy. Therefore, again, it is up to this Parliament to remove that companytradiction and make the fundamental rights subserve the Directive Principles of State Policy. 1538. It cannot, therefore, be said that the stress in the impugned amendments to the Constitution upon changing the economic structure by narrowing the gap between the rich and the poor is a recent phenomenon. On the companytrary, the above material shows that this has been the objective of the national leaders since before the dawn of independence, and was one of the underlying reasons for the First and Fourth Amendments of the Constitution. The material further indicates that the approach adopted was that there should be numberreluctance to abridge or regulate the fundamental right to property if it was felt necessary to do so for changing the economic structure and to attain the objectives companytained in the Directive Principles. 1539. So far as the question is companycerned as to whether the right to property can be said to pertain to basic structure or framework of the Constitution, the answer, in my opinion, should plainly be in the negative. Basic structure or framework indicates the broad outlines of the Constitution, while the right to property is a matter of detail. It is apparent from what has been discussed above that the approach of the framers of the Constitution was to subordinate the individual right to property to the social good. Property right has also been changing from time to time. As observed by Harold Laski in Grammar of Politics, the historical argument is fallacious if it regards the regime of private property as a simple and unchanging thing. The history of private property is, above all, the record of the most varied limitations upon the use of the powers it implies. Property in slaves was valid in Greece and Rome it is numberlonger valid today. Laski in this companytext has quoted the following words of John Stuart Mill The idea of property is number some one thing identical throughout history and incapable of alterationat any given time it is a brief expression denoting the rights over things companyferred by the law or custom of some given society at that time but neither on this point, number on any other, has the law and custom of a given time and place, a claim to be stereotyped for ever. A proposed reform in laws or customs is number necessarily objectionable because its adoption would imply, number the adaptation of all human affairs to the existing idea of property, to the growth and improvement of human affairs. 1540. The argument that Parliament cannot by amendment enlarge its own powers is untenable. Amendment of the Constitution, in the very nature of things, can result in the companyferment of powers on or the enlargement of powers of one of the organs of the state. Likewise, it can result in the taking away or abridgement of the powers which were previously vested in an organ of the state. Indeed nearly every expansion of powers and functions granted to the Union Government would involve companysequential companytraction of powers and functions in the Government of the States. The same is true of the companyverse position. There is numberhing in the Constitution which prohibits or in any other way prevents the enlargement of powers of Parliament as a result of Constitutional amendment and, in my opinion, such an amendment cannot be held to be impermissible or beyond the purview of Article 368. Indeed, a precedent is afforded by the Irish case of Jeremish Ryan supra wherein amendment made by the Oirechtas as a result of which it enlarged its powers inasmuch as its power of amending the Constitution without a referendum was increased from eight years to 16 years was held to be valid. Even Kennedy C.J. who gave a dissenting judgment did number question the validity of the amendment on the ground that Oirechtas had thereby increased its power. He struck it down on the ground that there was numberpower to amend the amending clause. No such difficulty arises under our Constitution because of the existence of an express provision. I am also unable to accede to the companytention that an amendment of the Constitution as a result of which the President is bound to give his assent to an amendment of the Constitution passed in accordance with the provisions of Article 368 is number valid. Article 368 itself gives, inter alia, the power to amend Article 368 and an amendment of Article 368 which has been brought about in the manner prescribed by that article would number suffer from any Constitutional or legal infirmity. I may mention in this companytext that an amendment of the US Constitution in accordance with Article 5 of the US Constitution does number require the assent of the President. The change made by the Twentyfourth Amendment in the Constitution of India, to which our attention has been invited, has number done away with the assent of the President but has made it obligatory for him to give his assent to the Constitution Amendment Bill after it has been passed in accordance with Article 368. As it is number number open to the President to withhold his assent to a Bill in regard to a Constitutional amendment after it has been duly passed, the element of personal discretion of the President disappears altogether. Even apart from that, under our Constitution the position of the President is that of a Constitutional head and the scope for his acting in exercise of his personal discretion is rather small and limited. 1541. Reference was made during the companyrse of arguments to the provisions of Section 6 of the Indian Independence Act, 1947. According to Sub-section 1 of that section, the Legislature of each of the new Dominions shall have full power to make laws for that Dominion, including laws having extra-territorial opeartion. Sub-section 6 of the section provided that the power referred to in Sub-section 1 of this section extends to the making of laws limiting for the future the powers of the Legislature of the Dominion. No help, in my opinion, can be derived from the above provisions because the Constituent Assembly framed and adopted the Constitution number on the basis of any power derived from Section 6 of the Indian Independence Act. On the companytrary, the members of the Constituent Assembly framed and adopted the Constitution as the representatives of the people and on behalf of the people of India. This is clear from the opening and companycluding words of the Preamble to the Constitution. There is, indeed, numberreference to the Indian Independence Act in the Constitution except about its repeal in Article 395 of the Constitution. 1542. Apart from the above, I find that all that Sub-section 6 of Section 6 of the Indian Independence Act provided for was that the power referred to in Sub-section 1 would extend to the making of laws limiting for the future the powers of the Legislature of the Dominion. The Provisional Parliament acting as the Constituent Assembly actually framed the Constitution which placed limitations on the ordinary legislative power of the future Parliaments by providing that the legislative laws would number companytravene the provisions of the Constitution. At the same time, the Constituent Assembly inserted Article 368 in the Constitution which gave power to the two Houses of future Parliaments to amend the Constitution in companypliance with the procedure laid down in that article. There is numberhing in Section 6 of the Indian Independence Act which stood in the way of the Constituent Assembly against the insertion of an article in the Constitution companyferring wide power of amendment, and I find it difficult to restrict the scope of Article 368 because of anything said in Section 6 of the Indian Independence Act. 1543. Argument on behalf of the petitioners that our Constitution represents a companypact on the basis of which people joined the Indian Union and accepted the Constitution is wholly misconceived. The part of India other than that companyprised in erstwhile Indian States was already one territory on August 15, 1947 when India became free. So far as the erstwhile Indian States were companycerned, they acceded to the Indian Union long before the Constitution came into force on January 26, 1950 or was adopted on November 26, 1949. There thus arose numberquestion of any part of India companyprising the territory of India joining the Indian Union on the faith of any assurance furnished by the provisions of the Constitution. Some assurances were given to the minorities and in view of that they gave up certain demands. The rights of minorities are number protected in Articles 25 to 30. Apart from the articles relating to protection to the minorities, the various articles companytained in Part III of the Constitution are applicable to all citizens. There is numberhing to show that the people belonging to different regions would have or indeed companyld have declined to either join the Indian Union or to remain in the Indian Union but for the incorporation of articles relating to fundamental rights in the Constitution. The Constitution companytaining fundamental rights was framed by the people of India as a whole speaking through their representative and if the people of India as a whole acting again through their representatives decide to abridge or take away some fundamental right like one relating to property, numberquestion of breach of faith or violation of any alleged companypact can, in my opinion, arise. 1544. This apart, companypact means a bargain or agreement mutually entered into, which necessarily companynotes a choice and volition for the party to the companypact. Whatever may be the relevance or significance of the companycept of companypact in the companytext of the US Constitution where different States joined together to bring into existence the United States of America and where further each one of the States ratified the Constitution after it had been prepared by the Philadelphia Convention, the above companycept has plainly numberrelevance in the companytext of the Indian Constitution. The whole of India was, as already mentioned, one companyntry long before the Constitution was adopted. There was also numberoccasion here for the ratification of the Constitution by each State after it had been adopted by the Constituent Assembly. 1545. Reference has been made on behalf of the petitioners to the case of Mangal Singh and Anr. v. Union of India 1967 2 S.C.R. 109 which related to the Punjab Reorganization Act, 1966. This Court while upholding the validity of the Act dealt with Article 4, according to which any law referred to in Article 2 or Article 3 shall companytain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also companytain such supplemental, incidental and companysequential provisions including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law as Parliament may deem necessary, and observed Power with which the Parliament is invested by Articles 2 and 3, is power to admit, establish, or form new States which companyform to the democratic pattern envisaged by the Constitution and the power which the Parliament may exercise by law is supplemental, incidental or companysequential to the admission, establishment or formation of a State as companytemplated by the Constitution, and is number power to override the Constitutional scheme. No State can therefore be formed, admitted or set up by few under Article 4 by the Parliament which has number effective legislative, executive and judicial organs. 1546. The above passage, in my opinion, does number warrant an inference of an implied limitation on the power of amendment as companytended on behalf of the petitioners. This Court dealt in the above passage with the import of the words supplemental, incidental and companysequential provisions and held that these provisions did number enable the Parliament to override the Constitutional scheme. The words Constitutional scheme had plainly reference to the provisions of the Constitution which dealt with a State, its legislature, judiciary and other matters in Part VI. Once the State of Haryana came into being, it was to have the attributes of a State companytemplated by the different articles of Part VI in the same way as did the other States. No question arose in that case about limitation on the power of amendment under Article 368 and as such, that case cannot be of any avail to the petitioners. 1547. learned Counsel for the petitioner has invited our attention to the Constitutional position specially in the companytext of civil liberties in Canada. In this respect we find that the opening words of the Preamble to the British North America Act, 1867 read as under Whereas the provisions of Canada, Nova Scotia, and New Brunswick have expressed their desire to be federally united into one dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in principle to that of the United Kingdom Section 91 of the above mentioned Act deals with the legislative authority of Parliament of Canada. The opening words of Section 91 are as under It shall be lawful for the Queen, by and with the advice and companysent of the Senate and House of Commons, to make laws for the peace, order, and good government of Canada, in relation to all matters number companying within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces and for greater certainty, but number so as to restrict the generality of the foregoing terms of the section, it is hereby declared that numberwithstanding anything in this Act the exclusive legislative authority of the Parliament of Canada extends to all matters companying within the classes of subjects next hereinafter enumerated that is to say, . There follows a list of different subjects. The first amongst the subjects, which was inserted by British North America Act 1949, is The amendment from time to time of the Constitution of Canada, except as regards matters companying within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces, or It is number necessary to give the details of other limitations on the power of amendment. Section 92 of the British North America Act enumerates the subjects of exclusive provincial legislation. According to this section, in each province the Legislature may exclusively make laws in relation to matters companying within the classes of subjects next hereinafter enumerated. There then follows a list of subjects, the first amongst which is The amendment from time to time, numberwithstanding anything in this Act, of the Constitution of the province, except as regards the office of the Lieutenant Governor. In view of the fact that amendment of the Constitution is among the subjects of legislation, the only distinction in Canada, it has been said, between ordinary legislation by Parliament and Constitutional law is that the former companycerns all matters number specially stated as within the ambit of provincial legislation while the latter companycerns any fundamental change in the division of rights. Further, although because of the federal character of the State, the Canadian Constitution cannot be called flexible, it is probably the least rigid of any in the modern federal states see Modern Political Constitutions by C.F. Strong . 1548. It appears that at least six different views have been propounded in Canada about the Constitutional position of basic liberties. To date, the Supreme Court of Canada has number given Judicial approval to any of these views. Different members of the Court have voiced various opinions on the matter, but all of these fall far short of settling the issue. It should also be numbered that the fundamental problem is number whether Parliament or the legislature may give to the people basic freedom, but rather which one may interfere with them or take them away see Civil Liberties in Canada by D.A. Schmeiser P. 13 . 1549. An important case which had bearing on the question of civil liberties was the Alberta Press case 1938 S.C.R. 100 Canada . That case related to the validity of an Act which had placed limitations on the freedom of the Press and the Supreme Court of Canada held that the Act was ultra vires, since it was ancillary to and dependent upon the Alberta Social Credit Act, which itself was ultra vires. Three or judges, including Duff J., went further than this, and dealt with the freedom of speech and freedom of Press. It was observed that curtailment of the exercise of the right of the public discussion would interfere with the working of parliamentary institutions of Canada. Opinion of Duff C.J. was based number on the criminal law power but on the necessity for maintaining democratic society as companytemplated by the Constitution. A later decision dealing with free speech was Switzmand v. Elbing and Attorney-General of Quebec 1957 S.C.R. 285 Canada . In that case the Supreme Court declared invalid the Quebec Communistic Propaganda Act. All the judges but one were agreed that the statute did hot fall within provincial companypetence under property and Civil rights or matters of a merely local or private nature in the province. Abbott J. held that the Parliament itself companyld number abrogate the right of discussion and, debate. 1550. An article by Dale Gibson in Volume 12-1966-67 in McGill Law Journal shows that though the proposition enunciated by Duff C.J. has companymanded the allegiance of an impressive number of judges and has number been decisively rejected, it has never been accepted by a majority of the members of the Supreme Court of Canada or of any other companyrt. Some judges have assumed that basic freedoms may properly be the subject matter of legislation separate and apart from any other-subject matter. Others have taken the view that unlimited jurisdiction falls within Dominion companytrol under its general power to make laws for the peace, order and good government of Canada. A third view which has been taken is mat the creation of a Parliament and reference in the Preamble to a Constitution similar in principle to that of the United Kingdom postulates that legislative body would be elected and function in an atmosphere of free speech. It is number necessary to give the other views or dialate upon different views. Bora Laskin while dealing with the dictum of Abbott J. has observed in Canadian Constitutional Law Apart from the dictum by Abbott J. in the Switzman case, supra, there is numberhigh authority which places civil liberties beyond the legislative reach of both Parliament and the provincial Legislatures. There are numberexplicit guarantees of civil liberties in the B.N.A. Act numberhing companyparable to the Bill of Rights the 1st ten amendments in the Constitution of the United States, which, within limits and on companyditions prescribed by the Supreme Court as ultimate expounder of the meaning and range of the Constitution, prohibits both federal and state action infringing, inter alia, freedom of religion, of speech, of the press and of assembly. see p. 970 . 1551. It would appear from the above that the different views which have been expressed in Canada are in the companytext of the preamble and section of the British North America Act, the provisions of which are materially different from our Constitution. Even in the companytext of the British. North America Act, the observations of Abbott J. relied upon on behalf of the petitioners have number been accepted by the majority of the judges of the Canadian Supreme Court, and in my opinion, they afford a fragile basis for building a theory of implied limitations. 1552. It may be mentioned that in August 1960 the Parliament of Canada passed the Canadian Bill of Rights. Section 1 of the Bill declared certain human rights and fundamental freedoms and reads as under It is hereby recognized and declared that in Canada there have existed and shall companytinue to exist without discrimination by reason of race, national origin, companyour, religion or sex, the following human rights and fundamental freedoms, namely, a the right of the individual to life, liberty, security of the person and enjoyment of property, and the right number to be deprived thereof except by due process of law b the right of the individual to equality before the law and the protection of the law c freedom of religion d freedom of speech e freedom of assembly and association and f freedom of the press. According to Section 2 of the Bill, every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate numberwithstanding the Canadian Bill of Rights, be so companystrued and applied as number to abrogate, abridge or infringe or to authorise the abrogation, abridgement or infringement of any of the rights or freedoms therein recognized and declared. The relevant part of Section 2 reads as under Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate numberwithstanding the Canadian Bill of Rights, be so companystrued and applied as number to abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared, and in particular, numberlaw of Canada shall be companystrued or applied so as to underlining supplied . Plain reading of Section 2 reproduced above makes it manifest that the human rights and fundamental freedoms mentioned in Section 1 of the Bill are number absolute but are subject to abrogation or abridgement if an express declaration to that effect be made in a law of Canada. Section 2 of the Bill shows that if an express declaration to that effect be made an Act of the Parliament can override the provisions of the Bill of Rights. Section 2 is thus inconsistent with the theory of implied limitations based on human rights on the power of the Canadian Parliament. 1553. Another case from Canada which has been referred to on behalf of the petitioners and which in my opinion is equally of numberavail to them is The Attorney General of Nova Scotia and The Attorney General of Canada 1950 S.C.R. 31 Canada decided by the Supreme Court of Canada. It was held in that case that an Act respecting the delegation of jurisdiction from the Parliament of Canada to the Legislature of Nova Scotia and vice versa, if enacted, would number be Constitutionally valid since it companytemplated delegation by Parliament of powers, exclusively vested in it by Section 91 of the British North America Act, to the Legislature of Nova Scotia and delegation by that Legislature of powers, exclusively vested in Provincial Legislature under Section 92 of the Act, to Parliament. The Parliament of Canada and each Provincial Legislature, according to the Supreme Court of Canada, was sovereign body within its sphere, possessed of exclusive jurisdiction to legislate with regard to the subject matters assigned to it under Section 91 or Section 92, as the case may be. Neither was capable therefore of delegating to the other the powers with which it had been vested number of receiving from the other the powers with which the other had been vested. It is plain that that case related to the delegation of powers which under the British North America Act had been assigned exclusively to Parliament or to the Provincial Legislatures. Such a delegation was held to be number permissible. No such question arises in the present case. 1554. We may number deal with some of the other cases which have been referred to on behalf of the petitioner. Two of those cases are from Ceylon. The Constitutional position there was that Section 29 of the Ceylon Constitution Order in Council, 1946 gave the power to make laws as well as the power to amend the Constitution though the procedure prescribed for the two was different. Section 29 reads as under 29 1 Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island. No such law shall- a prohibit or restrict the free exercise of any religion or b make persons of any companymunity or religion liable to disabilities or restrictions to which persons of other companymunities or religions are number made liable or c companyfer on persons of any companymunity or religion any privilege or advantage which is number companyferred on persons of other companymunities or religions or d alter the Constitution of any religious body except with the companysent of the governing authority of that body, so, however, that in any case where a religious body is incorporated by law, numbersuch alteration shall be made except at the request of the governing authority of that body 1555. Provided, however, that the preceding provisions of this, subsection shall number apply to any law making provision for, relating to, or companynected with, the election of Members of the House of Representatives, to represent persons registered as citizens of Ceylon under the Indian and Pakistani Residents Citizenship Act. 1556. This proviso shall cease to have effect on a date to be fixed by the Governor- General by Proclamation published in the Gazette. Any law made in companytravention of Sub-section 2 of this section shall, to the extent of such companytravention, be void. In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order or of any other Order of Her Majesty in Council in its application to the Island 1557. Provided that numberBill for the amendment or repeal of any of the provisions of this 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 number less than two-thirds of the whole number of Members of the House including those number present . 1558. Every certificate of the Speaker under this sub-section shall be companyclusive for all purposes and shall number be questioned in any companyrt of law. 1559. In Liyanage and Ors. v. The Queen 1966 All E.R. 650 the appellants had been charged with offences arising out of an abortive companyp detat on January 27, 1962. The story of the companyp d etat was set out in a White Paper issued by the Ceylon Government. On March 16, 1962 the Criminal Law Special Provisions Act was passed and it was given restrospective effect from January 1, 1962. The Act was limited in operation to those who were accused of offences against the State in or about January 27, 1962. The Act legalised the imprisonment of the appellants while they were awaiting trial, and modified a section of the Penal Code so as to enact ex post facto a new offence to meet the circumstances of the abortive companyp. The Act empowered the Minister of Justice to numberinate the three judges to try the appellants without a jury. The validity of the Act was challenged as well as the numberination which had been made by the Minister of Justice of the three judges. The Ceylon Supreme Court upheld the objection about the vires of some of the provisions of the Act as well as the numberination of the judges. Subsequently the Act was amended and the power of numberination of the judges was companyferred on the Chief Justice. The appellants having been companyvicted at the trial before a companyrt of three judges numberinated under the amended Act, went up in appeal before the Judicial Committee. The companyviction of the appellants was challenged on three grounds but the Judicial Committee dealt with only two grounds. The first ground was that the Ceylon Parliament was limited by an inability to pass legislation which was companytrary to fundamental principles of justice. The two Acts of 1962, it was stated, were companytrary to such principles in that they were number only directed against individuals but also ex post facto created crimes and for which those individuals would otherwise be protected. The second companytention was that the Acts of 1962 offended against the Constitution in that they amounted to a direction to companyvict the appellants or to a legislative plan to secure the companyviction and severe punishment of the appellants and thus companystituted an unjustifiable assumption of judicial power by the legislature, or an interference with judicial power, which was outside the legislatures companypetence and was inconsistent with the severance of power between legislature, executive, and judiciary which the Constitution ordained. Dealing with the first companytention, the Judicial Committee referred to the provisions of the Ceylon Constitution Order in Council, 1946 and the Ceylon Independence Act, 1947 and observed that the joint effect of the said Order and Act was intended to and resulted in giving the Ceylon Parliament the full legislative powers of an independent sovereign state. The legislative power of the Ceylon Parliament, it was held, was number limited by inability to pass laws which offended fundamental principles of justice. On the second ground, the Judicial Committee held the Acts of 1962 to be invalid as they involved a usurpation and infringement by the legislature of judicial powers inconsistent with the written Constitution of Ceylon, which, while number in terms vesting judicial functions in the judiciary, manifested an intention to secure in the judiciary a freedom from a political, legislative and executive companytrol. 1560. It would thus appear that the decision is based upon the ground of severance of powers between legislature, judiciary and executive under the Ceylon Constitution and furnishes numbersupport for the theory of implied limitations on the power of Parliament. On the companytrary, the Judicial Committee while dealing with the first companytention rejected the theory of limitations on the power of Parliament to make a law in violation of the fundamental principles of justice. The Judicial Committee, it is also numbereworthy, expressly pointed out that there had been numberamendment of the Constitution in accordance with Section 29 4 of the Constitution by two-thirds majority and as such they had number to deal with that situation. 1561. Another case to which reference was made on behalf of the petitioners was The Bribery Commissioner v. Pedrik Ranasinghe 1965 A.C. 172. In that case it was found that the members of the Bribery Tribunal had been appointed by the Governor-General on the advice of the Minister of Justice in accordance with Bribery Amendment Act but in companytravention of Section 55 of the Ceylon Constitution. Ceylon Constitution Order in Council, 1946 according to which the appointment of judicial officers was vested in the Judicial Service Commission. It was held that a legislature has numberpower to ignore the companyditions 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 that of Ceylon. 1562. It would appear from the above that the point of companytroversy which arose for determination in that case was different from that which arises in the present case because we are number in this case companycerned with any law made by a legislature in companytravention of the Constitutional provisions Reference has been made on behalf of the petitioners to a passage in the judgment wherein while dealing with Sub-section 2 of Section 29 of the Ceylon Constitution, the provisions of which have been reproduced earlier, the Judicial Committee observed that the various clauses of Sub-section 2 set out entrenched religious and racial matters which shall number be the subject of legislation. It was further observed that those provisions represented the solemn balance of rights between the citizens of Ceylon, the fundamental companyditions on which inter se they accepted the Constitution and these are therefore unalterable under the Constitution. It is companytended that those observations show that the rights mentioned in Section 29 2 of the Ceylon Constitution which were similar to the fundamental rights in Part III of the Indian Constitution, were held by the Judicial Committee to be unalterable under the Constitution. There was, it is further submitted, similarity between the provisions of Section 29 3 of the Ceylon Constitution and Article 13 2 of the Indian Constitution because it was provided in Section 29 3 that any law made in companytravention of Section 29 2 shall to the extent of such companytravention be void. 1563. I find it difficult to accede to the companytention that the Judicial Committee laid down in the above case that Sections 29 2 and 29 3 placed a restriction on the power of amendment of the Constitution under Section 29 4 of the Constitution. The question with which the Judicial Committee was companycerned was regarding the validity of the appointment of the members of the Bribery Tribunal. Such appointment though made in companypliance with the provisions of the Bribery Amendment Act, was in companytravention of the requirements of Section 55 of the Ceylon Constitution. No question arose in that case relating to the validity of a Constitutional amendment brought about in companypliance with Section 29 4 of the Constitution. Reference to the argument of the companynsel for the respondent on the top of page 187 of that case shows that it was companyceded on his behalf that there is numberlimitation at the moment on the right of amendment or repeal except the requirement of the requisite majority. The Judicial Committee numberhere stated that they did number agree with the above stand of the companynsel for the respondent. Perusal of the judgment shows that the Judicial Committee dealt with Sections 18 and 29 together and pointed out the difference between a legislative law, which was required to be passed by a bare majority of votes under Section 18 of the Constitution, and a law relating to a Constitutional amendment which was required to be passed by a two-thirds majority under Section 29 4 . Dealing with the question of sovereignty, the Judicial Committee observed A Parliament does number cease to be sovereign whenever its companyponent members fail to produce among themselves a requisite majority, e.g., when in the case of ordinary legislation the voting is evenly divided or when in the case of legislation to amend the Constitution there is only a bare majority if the Constitution requires something more. The minority are entitled under the Constitution of Ceylon to have numberamendment of it which is number passed by a two-thirds majority. The limitation thus imposed on some lesser majority of members does number limit the sovereign power of Parliament itself which can always, whenever it chooses, pass the amendment with the requisite majority. It has been submitted on behalf of the respondents that the above passage indicates that the Judicial Committee took the view that the amendment of all the provisions of the Ceylon Constitution including those companytained in Sub-sections 2 and 3 of Section 29 companyld be passed by a two-thirds majority. It is also stated that the restrictions imposed by Sub-section 2 of Section 29 of the Ceylon Constitution are on the power of ordinary legislation by simple majority and number on the power of making Constitutional amendment by two-thirds majority in companypliance with Section 29 4 of the Constitution. It was in that sense that the Judicial Committee, according to the submission, used the word entrenched. Our attention has also been invited to the observations on pages 83 and 84 of the Constitutional structure by K.C. Wheare 1963 Reprint that these safeguards companytained in Section 29 of the rights of companymunities and religions companyld be repealed or amended by the Parliament of Ceylon provided it followed the prescribed procedure for amendment of the Constitution. These submissions may number be bereft of force, but it is, in my opinion, number necessary to dilate further upon this matter and discuss the provisions of the Ceylon Constitution at greater length. The point of companytroversy before us would have to be decided in the light essentially of the provisions of our own Constitution. Suffice it to say that Ranasinghes case does number furnish any material assistance to the stand taken on behalf of the petitioners. 1564. We may number advert to the case of McCawley v. The King 1920 A.C. 691 The said case related to the Constitution of Queensland in Australia. Queensland was granted a Constitution in 1859 by an Order in Council made on June 6. The Order in Council set up a Legislature in the territory companysisting of the Queen, a Legislative Council and a Legislative Assembly and the law making power was vested in the Queen acting with the advice and companysent of the Council and Assembly. Any law companyld be made for the peace, welfare and good government of the companyony, the phrase generally employed to denote the plenitude of sovereign legislative power even though that power be companyfined to certain subjects or within certain reservations. The Legislature passed a Constitution Act in 1867. By Section 2 of that Act the legislative body was declared to have power to make laws for the peace, welfare and good government of the companyony in all cases whatsoever. The only express restriction on this companyprehensive power was in Section 9 which required a two-thirds majority of the Council and of the Assembly as a companydition precedent to the validity of legislation altering the Constitution of the Council. In 1916 the Industrial Arbitration Act was passed. The said Act authorised the Governor in Council to appoint the President or a judge of the Court of Industrial Arbitration to be a judge of the Supreme Court of Queensland. It was also provided that the judge so appointed shall have the jurisdiction of both offices, and shall hold office as a judge of the Supreme Court during good behaviour. The Governor in Council, by a companymission, appointed the appellant who was the President of the Court of Industrial Arbitration to be a judge of the Supreme Court during good behaviour. The Supreme Court of Queensland held that the appellant was number entitled to have the oath of office administered to him or to take his seat as a member of the Supreme Court. Subsequently, the Supreme Court of Queensland gave a judgment in ouster against the appellant. The provisions of Section 6 of the Industrial Arbitration Act of 1916 under which the appellant had been appointed a judge of the Supreme Court were held to be inconsistent with the provisions of the Constitution Act and as such void. On appeal four out of the seven judges of the High Court of Australia agreed with the Supreme Court of Queensland, while the three other judges took the opposite view and expressed the opinion that the appeal should be allowed. The matter was then taken up in appeal to the Privy Council. Lord Birkenhead giving the opinion of the Judicial Committee held 1 that the Legislature of Queensland had power, both under the Colonial Laws Validity Act, 1865, and apart therefrom, to authorise the appointment of a judge of the Supreme Court for a limited period and 2 that Section 6 of the Industrial Arbitration Act authorised an appointment as a judge of the Supreme Court only for the period during which the person appointed was a judge of the Court of Industrial Arbitration. The appellant was further held to have been validly appointed. The above case though companytaining observations that a legislature has numberpower to ignore the companyditions of law-making that are imposed by the instrument which itself regulates its power to make law, laid down the proposition that in the absence of a restriction, it is number possible to impose a restriction upon the legislative power. It was observed The Legislature of Queensland is the master of its own household, except in so far as its powers have in special cases been restricted. No such restriction has been established, and numbere in fact exists, in such a case as is raised in the issues number under appeal. 1565. It was also observed Still less is the Board prepared to assent to the argument, at one time pressed upon it, that distinctions may be drawn between different matters dealt with by the Act, so that it becomes legitimate to say of one section This section is fundamental or organic it can only be altered in such and such manner and of another This section is number of such a kind it may companysequently be altered with as little ceremony as any other statutory provision. The decision in the above cited case can hardly afford any assistance to the petitioners. On the companytrary, there are passages in the judgment which go against the stand taken on behalf of the petitioners. 1566. Section 5 of the Colonial Laws Validity Act, 1865 to which there was a reference in the McCawleys case reads as under Every companyonial legislature shall have, and be deemed at all times to have had, full power within its jurisdiction to establish companyrts of judicature, and to abolish and reconstitute the same, and to alter the Constitution thereof, and to make provision for the administration of justice therein and every representative legislature shall, in respect to the companyony under its jurisdiction have, and be deemed at all times to have had, full power to make laws respecting the Constitution, powers, and procedure of such legislature provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, Order in Council or companyonial law for the time being in force in the said companyony. Reference has been made during arguments to the decision of the Privy Council in the case of Attorney-General for New South Wales v. Trethowan 1932 A.C. 526. The said case related to a Bill passed by the New South Wales Parliament for repeal of a section providing for referendum as well as to another Bill for abolition of the Legislative Council. The Privy Council affirmed the decision of the Australian High Court which had held by majority that the Bills had number been passed in the manner and form within the meaning of Section 5 of the Colonial Laws Validity Act, and as such companyld number be presented for Royal assent. The Privy Council based its decision upon the language of the above section and the meaning of the word passed in that section. We are number companycerned in the present case with the aforesaid provisions. There is also numberhing in the companyclusions at which I have arrived which runs companynter to the principles laid down in the Trethowans case. 1567. Another Australian case to which reference has been made during the companyrse of arguments is The State of Victoria v. The Commonwealth. 45 Australian Law Journal Reports 251 It has been laid down by the High Court of Australia in that case that the Commonwealth Parliament in exercise of its powers under Section 51 ii of the Constitution may include the Crown in right of a State in the operation of a law imposing a tax or providing for the assessment of a tax. The inclusion of the Crown in right of a State, according to the companyrt, in the definition of employer in the Pay-roll Tax Assessment Act, thus making the Crown in right of a State liable to pay the tax in respect of wages paid to employees, including employees of departments engaged in strictly governmental functions, is a valid exercise of the power of the Commonwealth under the above provisions of the Constitution. There was discussion in the companyrse of the judgment on the subject of implied limitation on the Commonwealth legislative power under the Constitution arising from the federal nature of the Constitution and different views were expressed. Three of the Judges, including Barwick C.J. took the view that there was numbersuch limitation. As against that, four Judges were of the opinion that there was an implied limitation on Commonwealth legislative power under the Constitution but the impugned Act did number offend such limitation. Opinion was expressed that the Commonwealth Parliament while acting under the legislative entry of taxation companyld hot so use the power of taxation as to destroy the States in a federal structure. The question as to what is the scope of the power of amendment was number companysidered in that case. The above case as such cannot be of much assistance for determining as to whether there are any implied limitations on the power to make Constitutional amendment. 1568. I am, therefore, of the opinion that the majority view in the Golak Naths case that Parliament did number have the power to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights cannot be accepted to be companyrect. Fundamental rights companytained in Part III of our Constitution can, in my opinion, be abridged or taken away in companypliance with the procedure prescribed by Article 368, as long the basic structure of the Constitution remains unaffected. 1569. We may number deal with the Twentyfourth Amendment. It has sought to make clear matters regarding which doubt had arisen and companyflicting views had been expressed by this Court. We may in this companytext set forth the Statement of Objects and Reasons of the Constitution Twentyfourth Amendment Bill. The Statement of Objects and Reasons reads as under STATEMENT OF OBJECTS AND REASONS The Supreme Court in the well-known Golak Naths case 1967 2 SCR 762 reversed, by a narrow majority, its own earlier decisions upholding the power of Parliament to amend all parts of the Constitution including Part III relating to fundamental rights. The result of the judgment is that Parliament is companysidered to have numberpower to take away or curtail any of the fundamental rights guaranteed by Part III of the Constitution even if it becomes necessary to Jo so for giving effect to the Directive Principles of State Policy and for the attainment of the objectives set out in the Preamble to the Constitution. It is, therefore, companysidered necessary to provide expressly that Parliament has power to amend any provision of the Constitution so as to include the provisions of Part III within the scope of the amending power. 1570. The Bill seeks to amend Article 368 suitably for the purpose and makes it clear that Article 368 provides for amendment of the Constitution as well as procedure therefor. The Bill further provides that when a Constitution Amendment Bill passed by both Houses of Parliament is presented to the President for his assent, he should give has assent thereto. The Bill also seeks to amend Article 13 of the Constitution to make it inapplicable to any amendment of the Constitution under Article 368. 1571. Section 2 of the Bill which was ultimately passed as the Constitution Twentyfourth Amendment Act has added a clause in Article 13 that numberhing in that article would apply to any amendment of the Constitution made under Article 368. As a result of Section 3 of the Amendment Act, Article 368 has been re-numbered as Clause 2 thereof and the marginal heading number reads Power of Parliament to amend the Constitution and procedure therefor. Non-obstante Clause 1 has been inserted in the article to emphasise the fact that the power exercised under that article is companystituent power, number subject to the other provisions of the Constitution, and embraces within itself addition, variation and repeal of any provision of the Constitution. Amendment has also been made so as to make it obligatory for the President to give his assent to the Amendment Bill after it has been passed in accordance with the article. Clause 3 has further been added in Article 368 to the effect that numberhing in Article 13 would apply to an amendment made under Article 368. Although companysiderable arguments have been addressed before us on the point as to whether the power of amendment under Article 368 includes the power to amend Part III so as to take away or abridge fundamental rights, it has number been disputed before us that the Constitution Twentyfourth Amendment Act was passed in accordance With the procedure laid down in Article 368 of the Constitution as it existed before the passing of the said Act. In view of what has been discussed above at length. I find numberinfirmity in the Constitution Twentyfourth Amendment Act. 1, therefore, uphold the validity of the said Act. 1572. We may number deal with the Constitution Twentyfifth Amendment Act, 1971. The Twentyfifth Amendment has made three material changes It has amended Article 31 2 in two respects. It substitutes the word amount for the word companypensation for property acquired or requisitioned. It has provided that the law for the purpose of acquisition or requisition shall number be called in question on the ground that the whole or any part of the amount is to be given otherwise than in cash. It has provided that the fundamental right to acquire, hold and dispose of property under Article 19 1 f cannot be invoked in respect of any such law as is referred to in Article 31 2 . It has inserted Article 31C as an overriding article which makes the fundamental rights companyferred by Articles 14, 19 and 31 inapplicable to certain categories of laws passed by the Parliament or by any State Legislature. So far as the substitution of the word amount for the word companypensation for property acquired or requisitioned in Article 31 2 is companycerned, we find that this Court held in Mrs. Bela Bose 1954 S.C.R. 558 case that by the guarantee of the right to companypensation for companypulsory acquisition under Article 31 2 , before it was amended by the Constitution Fourth Amendment Act, the owner was entitled to receive a just equivalent or full indemnification. In P. Vajravelu Mudaliars 1965 1 S.C.R. 614 case this Court held that numberwithstanding the amendment of Article 31 2 by the Constitution Fourth Amendment Act and even after the addition of the words and numbersuch law shall be called in question in any Court on the ground that the companypensation provided by that law is number adequate, the expression companypensation companytinued to have the same meaning as it had in Article 31 2 before it was amended, viz., just equivalent or full indemnification. Somewhat different view was taken by this Court thereafter, in the case of Shantilal Mangaldas 1969 3 S.C.R. 341. In the case of P. Vajravelu Mudaliar supra it was observed that the Constitutional guarantee was satisfied only if a just equivalent of the property was given to the owner. In the case of Shantilal Mangaldas supra it was held that companypensation being itself incapable of any precise determination, numberdefinite companynotation companyld be attached thereto by calling it just equivalent or full indemnification, and under Acts enacted after the amendment of Article 31 2 it is number open to the Court to call in question the law providing for companypensation on the ground that it is inadequate, whether the amount of companypensation is fixed by the law or is to be determined according to principles specified therein see observations of Shah J. on page 596 in the case of R.C. Cooper v. Union 1970 3 S.C.R. After further discussion of the views expressed in those two cases, Shah J. speaking for the majority, observed Both the lines of thought which companyverge in the ultimate result, support the view that the principle specified by the law for determination of companypensation is beyond the pale of challenge if it is relevant to the determination of companypensation and is a recognized principle applicable in the determination of companypensation for property companypulsorily acquired and the principle is appropriate in determining the value of the class of property sought to be acquired. On the application of the view expressed in P. Vajravelu Mudaliars case supra or in Shantilal Mangaldass case supra the Act, in our judgment, is liable to be struck down as it fails to provide to the expropriated banks companypensation determined according to relevant principles. 1573. The amendment in Article 31 2 made by the Twentyfifth Amendment by substituting the word amount for the word companypensation is necessarily intended to get over the difficulty caused by the use of the word companypensation. As the said word was held by this Court to have a particular companynotation and was companystrued to mean just equivalent or full indemnification the amendment has replaced that word by the word amount. In substituting the word amount for companypensation the Amendment has sought to ensure that the amount determined for acquisition or requisition of property need number be just equivalent or full indemnification and may be, if the legislature so chooses, plainly inadequate. It is number necessary to further dilate upon this aspect because whatever may be the companynotation of the word amount, it would number affect the validity of the amendment made in Article 31 2 . 1574. Another change made in Article 31 2 is that the law for the purpose of acquisition or requisition shall number be called in question on the ground that the whole or any part of the amount fixed or determined for the acquisition or requisition of the property is to be given otherwise than in cash. I have number been able to find any infirmity in the above changes made in Article 31 2 . 1575. According to Clause 2B which has been added as a result of the Twentyfifth Amendment in Article 31, numberhing in Sub-clause f of Clause 1 of Article 19 shall affect any such law as is referred to in Clause 2 . In this companynection we find that this Court held in some cases that Articles 19 1 f and 31 2 were exclusive. In A.K. Gopalan v. The State of Madras 1950 S.C.R. 88 a person detained pursuant to an order made in exercise of the power companyferred by the Preventive Detention Act applied to this Court for a writ of habeas companypus claiming that the Act companytravened the guarantee under Articles 19, 21 and 22 of the Constitution. The majority of this Court Kania C.J., and Patanjali Sastri, Mahajan, Mukherjea and Das JJ. held that Article 22 being a companyplete companye relating to preventive detention, the validity of an order of detention must be determined strictly according to the terms and within the four companyners of that Article. They held that a person detained may number claim that the freedom guaranteed under Article 19 1 c was infringed by his detention, and that validity of the law providing for making orders of detention will number be tested in the light of the reasonableness of the restrictions imposed thereby on the freedom of movement, number on the ground that his right to personal liberty is infringed otherwise than according to the procedure established by law. Fazl Ali, J. expressed a companytrary view. This case formed the nucleus of the theory that the protection of the guarantee of a fundamental freedom must be adjudged in the light of the object of State action in relation to the individuals right and number upon its effect upon the guarantee of the fundamental freedom, and as a companyollary thereto, that the freedoms under Articles 19, 21, 22 and 31 are exclusive-each article enacting a companye relating to protection of distinct rights see p. 571 in the case of R.C. Cooper, supra . The view expressed in Gopalans case supra was reaffirmed in Ram Singh and Ors. v. The State of Delhi 1951 S.C.R. 451. The principle underlying the judgment of the majority was extended to the protection of the right to property and it was held that Article 19 1 f and Article 31 2 were mutually exclusive in their operation. In the case of State of Bombay v. Bhanji Munji and Anr. 1955 1 S.C.R. 777 this Court held that Article 19 1 f read with Clause 5 postulates the existence of property which can be enjoyed and over which rights can be exercised because otherwise the reasonable restrictions companytemplated by Clause 5 companyld number be brought into play. If there is numberproperty which can be acquired, held or disposed of, numberrestriction can be placed on the exercise of the right to acquire, hold or dispose it of. In Kavalappara Kottarathil Kochunis 1960 3 S.C.R. 887 case, Subba Rao J. delivering the judgment of the majority of the Court, observed that Clause 2 of Article 31 alone deals with companypulsory acquisition of property by the State for a public purpose, and number Article 31 1 and he proceeded to hold that the expression authority of law means authority of a valid law, and on that account validity of the law seeking to deprive a person of his property is open to challenge on the ground that it infringes other fundamental rights, e.g., under Article 19 1 f . It was also observed that after the Constitution Fourth Amendment Act, 1955 Bhanji Munjis case supra numberlonger holds the field. After the decision in K.K. Kochunis case supra there arose two divergent lines of authority. According to one view, authority of law in Article 31 1 was liable to be tested on the ground that it violated other fundamental rights and freedoms, including the right to hold property guaranteed by Article 19 1 f . The other view was that authority of a law within the meaning of Article 31 2 was number liable to be tested on the ground that it impaired the guarantee of Article 19 1 f in so far as it imposed substantive restrictions-though it may be tested on the ground of impairment of other guarantees. In the case of R.C. Cooper supra , Shah J. speaking for the majority held that in determining the impact of State action upon Constitutional guarantees which are fundamental, the extent of protection against impairment of a fundamental right is determined number by the object of the Legislature number by the form of the action, but by its direct operation upon the individuals rights. It was further observed We are therefore unable to hold that the challenge to the validity of the provision for acquisition is liable to be tested only on the ground of numbercompanypliance with Article 31 2 . Article 31 2 requires that property must be acquired for a public purpose and that it must be acquired under a law with characteristics set out in that Article. Formal companypliance with the companyditions under Article 31 2 is number sufficient to negative the protection of the guarantee of the right to property. Acquisition must be under the authority of a law and the expression law means a law which is within the companypetence of the Legislature, and does number impair the guarantee of the rights in Part III. We are unable, therefore, to agree that Article 19 1 f and 31 2 are mutually exclusive. 1576. The Twentyfifth Amendment seeks to overcome the effect of the above decision in C. Coopers case. It has sought to resolve the earlier companyflict of views numbericeable in this respect in the judgments of this Court. Provision has accordingly been made that the fundamental right to acquire, hold or dispose of property under Article 19 1 f cannot be invoked in respect of any such law as is referred to in Article 31 2 . In view of what has been discussed earlier while dealing with the Twentyfourth Amendment, the change made by addition of Clause 2B in Article 31 2 is permissible under Article 368 and cannot be held to be invalid. 1577. We may number deal with Article 31C, introduced as a result of the Twentyfifth Amendment. Perusal of this article which has been reproduced in the earlier part of this judgment shows that the article companysists of two parts. The first part states that numberwithstanding anything companytained in Article 13, numberlaw giving effect to the policy of the State towards securing the principles specified in Clause b or Clause c of Article 39 shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights companyferred by Article 14, Article 19 or Article 31. According to the second part of this article, numberlaw companytaining a declaration that it is for giving effect to such policy shall be called in question in any companyrt on the ground that it does number give effect to such policy. There then follows the proviso, according to which where such law is made by the Legislature of a State, the provisions of the article shall number apply thereto unless such law, having been reserved for the companysideration of the President, has received his assent. 1578. The first part of Article 31C is similar to Article 31A except in respect of the subject matter. Article 31A was inserted by the Constitution First Amendment Act, 1951. Clause 1 of Article 31A as then inserted was in the following words Notwithstanding anything in the foregoing provisions of this Part, numberlaw 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 companyferred 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 number apply thereto unless such law, having been reserved for the companysideration of the President, has received his assent. Subsequently, Clause 1 of Article 31A was amended by the Constitution Fourth Amendment Act, 1955. New Clause 1 was in the following words Notwithstanding anything companytained in Article 13, numberlaw 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 the amalgamation of two or more companyporations either in the public interest or in order to secure the proper management of any of the companyporations, or d the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of companyporations, or of any voting rights of shareholders thereof, or e the extinguishment or modification of any rights accruing by virtue of any agreement, lease or 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 companyferred by Article 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 number apply thereto unless such law, having been reserved for the companysideration of the President, has received his assent. Clause b and c of Article 39 referred to in Article 31C read as under The State shall, in particular, direct its policy towards securing- b that the ownership and companytrol of the material resources of the companymunity are so distributed as best to subserve the companymon good c that the operation of the economic system does number result in the companycentration of wealth and means of production to the companymon detriment 1579. It would appear from the above that while Article 31A dealt with a law providing for the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of such rights or other matters mentioned in Clauses b to e of that article, Article 31C relates to the securing of the objective that the ownership and companytrol of the material resources of the companymunity are so distributed as best to subserve the companymon good and that operation of the economic system does number result in the companycentration of wealth and means of production to the companymon detriment. But for the difference in subjects, the language of the first clause of Article 31A and that of the first part of Article 31C is identical. Both Articles 31A and 31C deal with right to property. Article 31A deals with certain kinds of property and its effect is, broadly speaking, to take those kinds of property from the persons who have rights in the said property. The objective of Article 31C is to prevent companycentration of wealth and means of production and to ensure the distribution of ownership and companytrol of the material resources of the companymunity for the companymon good. Article 31C is thus essentially an extension of the principle which was accepted in Article 31A. The fact that the provisions of Article 31C are more companyprehensive and have greater width companypared to those of Article 31A would number make any material difference. Likewise, the fact that Article 31A deals with law providing for certain subjects, while Article 31C deals with law giving effect to the policy towards securing the principles specified in Clause b or Clause c of Article 39, would number detract from the companyclusion that Article 31C is an extension of the principle which was accepted in Article 31A. Indeed, the legislature in making a law giving effect to the policy of the State towards securing the principles specified in Clause b or Clause c of Article 39 acts upon the mandate companytained in Article 37, according to which the Directive Principles are fundamental in the governance of the companyntry and it shall be the duty of the State to apply those principles in making laws. If the amendment of the Constitution by which Article 31A was inserted was valid, I can see numberground as to how the Twentyfifth Amendment relating to the insertion of the first part of Article 31C can be held to be invalid. The validity of the First Amendment which introduced Article 31A was upheld by this Court as long ago as 1952 in the case of Sankari Prasad v. Union of India supra . Article 31A having been held to be valid during all these years, its validity cannot number be questioned on account of the doctrine of stare decisis. Though the period for which Sankari Prasads case stood unchallenged was number very long, the effects which have followed in the passing of the State laws on the faith of that decision, as observed by Wanchoo J. in Golak Naths case, are so overwhelming that we should number disturb the decision in that case upholding the validity of the First Amendment. It cannot be disputed that millions of acres of land have changed hands and millions of new titles in agricultural lands which have been created and the State laws dealing with agricultural land which have been passed in the companyrse of the years after the decision in Sankari Prasads case have brought about an agrarian revolution. Agricultural population companystitutes a vast mapority of the population in this companyntry. In these circumstances, it would in my opinion be wrong to hold number that the decision upholding the First Amendment was number companyrect, and thus disturb all that has been done during these years and create chaos into the lives of millions of our companyntrymen who have benefited by these laws relating to agrarian reforms. I would, therefore, hold that this is one of the fittest cases in which the principle of stare decisis should be applied. The ground which sustained the validity of Clause 1 of Article 31A, would equally sustain the validity of the first part of Article 31C. I may in this companytext refer to the observations of Brandeis J. in Lesses v. Garnet 258 U.S. 130 while upholding the validity of the 19th Amendment, according to which the right of citizens of the United States to vote shall number be denied or abridged by the United States or by States on account of sex. This case negatived the companytention that a vast addition to the electorate destroyed the social companypact and the residuary rights of the States. Justice Brandeis observed 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 validhas been recognized and acted upon for half a century The suggestion that the 15th was incorporated in the Constitution number in accordance with law, but practically as a war measure which has been validated by acquiesence cannot be entertained. 1580. We may number deal with the second part of Article 31C, according to which numberlaw companytaining a declaration that it is for giving effect to the policy of State towards securing the principles specified in Clause b or Clause c of Article 39 shall be called in question in any companyrt on the ground that it does number give effect to such policy. The effect of the second part is that once the declaration companytemplated by that article is made, the validity of such a law cannot be called in question in any companyrt on the ground that it is inconsistent with or takes away or abridges any of the rights companyferred by Articles 14, 19 or 31 of the Constitution. The declaration thus gives a companyplete protection to the provisions of law companytaining the declaration from being assailed on the ground of being violative of Articles 14, 19 or 31. However tenuous the companynection of a law with the objective mentioned in Clause b and Clause c of Article 39 may be and however violative it may be of the provisions of Articles 14, 19 and 31 of the Constitution, it cannot be assailed in a companyrt of law on the said ground because of the insertion of the declaration in question in the law. The result is that if an Act companytains 100 sections and 95 of them relate to matters number companynected with the objectives mentioned in Clauses b and c of Article 39 but the remaining five sections have some nexus with those objectives and a declaration is granted by the Legislature in respect of the entire Act, the 95 sections which have numberhing to do with the objectives of Clauses b and c of Article 39, would also get protection. It is well-known that State Legislatures are quite often swayed by local and regional companysiderations. It is number difficult to companyceive of laws being made by a State Legislature which are directed against citizens of India who hail from other States on the ground that the residents of the State in question are economically backward. For example, a law might be made that as the old residents in the State are economically backward and those who have number resided in the State for more than three generations have an affluent business in the State or have acquired property in the State, they shall be deprived of their business and property with a view to vest the same in the old residents of the State. Such a law if it companytains the requisite declaration, would be protected and it would number be permissible to assail it on the ground of being violative of Articles 14, 19 and 31 of the Constitution even though such a law strikes at the integrity and unity of the companyntry. Such a law might also provoke the Legislatures of other States to make laws which may discriminate in the economic sphere against the persons hailing from the State which was the first to enact such discriminate law. There would thus be a chain reaction of laws which discriminate between the people belonging to different States and which in the very nature of things would have a divisive tendency from a national point of view. The second part of Article 31C would thus provide the companyer for the making of laws with a regional or local bias even though such laws imperil the oneness of the nation and companytain the dangerous seeds of national disintegration. The classic words of Justice Holmes have a direct application to a situation like this. Said the great Judge I do number think the United States would companye to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we companyld number make that declaration as to the laws of the several States. Holmes, Collected Legal Papers 1920 295-96 . The fact that the assent of the President would have to be obtained for such a law might number provide an effective safeguard because occasions can well be visualized when the State companycerned might pressurise the Centre and thus secure the assent of the President. Such occasions would be much more frequent when the party in power at the Centre has to depend upon the political support of a regional party which is responsible for the law in question passed by the State Legislature. 1581. It seems that while incorporating the part relating to declaration in Article 31C, the sinister implications of this part were number taken into account and its repercussions on the unity of the companyntry were number realised. In deciding the question relating to the validity of this part of Article 31C, we should number, in my opinion, take too legalistic a view. A legalistic judgment would indeed be a poor companysolation if it affects the unity of the companyntry. It would be apposite in this companytext to reproduce a passage from Storys Commentaries on the Constitution of the United States wherein he adopted the admonition of Burke with a slight variation as under The remark of Mr. Burke may, with a very slight change of phrase be addressed as an admonition to all those, who are called upon to frame, or to interpret a Constitution. Government is a practical thing made for the happiness of mankind, and number to furnish out a spectacle of uniformity to gratify the schemes of visionary politicians. The business of those, who are called to administer it, is to rule, and number to wrangle. It would be a poor companypensation, that one had triumphed in a dispute, whilst we had lost an empire that we had frittered down a power, and at the same time had destroyed the republic para 456 . 1582. The evil companysequences which would flow from the second part of Article 31C would number, however, be determinative of the matter. I would therefore examine the matter from a legal angle. In this respect I find that there can be three types of Constitutional amendments which may be companyceived to give protection to legislative measures and make them immune from judicial scrutiny or attack in companyrt of law. 1583. According to the first type, after a statute has already been enacted by the Legislature a Constitutional amendment is made in accordance with Article 368 and the said statute is inserted in the Ninth Schedule under Article 31B. Such a statute or any of the provisions thereof cannot be struck down in a companyrt of law and cannot be deemed to be void or ever to have become void on the ground that the statute or any provisions thereof is inconsistent with or takes away or abridges any of the rights companyferred by any provision of Part III. In such a case, the provisions of the entire statute are placed before each House of Parliament. It is open to number less than one-half of the members of each House and number less than two-thirds of the members of each House voting and present after applying their mind to either place the statute in the Ninth Schedule in its entirety or a part thereof or number to do so. It is only if number less than one-half of the total members of each House of Parliament and number less than two-thirds of the members present and voting in each House decide that the provisions of a particular statute should be protected under Article 31B either in their entirety or partly that the said provisions are inserted in the Ninth Schedule. A Constitutional amendment of this type relates to an existing statute of which the provisions can be examined by the two Houses of Parliament and gives protection to the statute from being struck down on the ground of being violative of any provision of Part III of the Constitution. Such an amendment was introduced by the Constitution First Amendment Act, 1951 and its validity was upheld in Sankari Prasads case supra . 1584. The second type of Constitutional amendment in that where the Constitutional amendment specifies the subject in respect of which a law may be made by the Legislature and the amendment also provides that numberlaw made in respect of that subject shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights companyferred by Part III of the Constitution. In such a case the law is protected even though it violates the provisions of Part III of the Constitution. It is, however, open in such a case to the companyrt, on being moved by an aggrieved party, to see whether the law has been made for the purpose for which there is Constitutional protection. The law is thus subject to judicial review and can be struck down if it is number for the purpose for which protection has been afforded by the Constitutional amendment. To this category belong the laws made under Article 31A of the Constitution which has specified the subjects for which laws might be made, and gives protection to those taws. It is always open to a party to assail the validity of such a law on the ground that it does number relate to any of the subjects mentioned in Article 31A. It is only if the companyrt finds that the impugned law relates to a subject mentioned in Article 31A that rite protection companytemplated by that article would be afforded to the impugned law and number otherwise. Article 31A was introduced by the Constitution First Amendment Act, 1951 and as mentioned earlier, the validity of the First Amendment was upheld in Sankari Prasads case supra . 1585. The third type of Constitutional amendment is one, according to which a law made for a specified object is protected from attack even though it violates Articles 14, 19 and The Constitutional amendment further provides that the question as to whether the law is made for the specified object is number justiciable and a declaration for the purpose made by the legislature is sufficient and would preclude the companyrt from going into the question as to whether the law is made for the object prescribed by the Constitutional amendment. To such category belongs that part of Twentyfifth Amendment which inserted Article 31C when taken along with its second part. The law made under Article 31C is number examined and approved for the purpose of protection by number less than one-half of the members of each House of Parliament and number less than two-thirds of the members present and voting in each House, as is necessary in the case of laws inserted in the Ninth Schedule of the Constitution. Nor can the law made under Article 31C be subject to judicial review with a view to find out whether the law has, in fact, been made for an object mentioned in Article 31C. Article 31C thus departs from the scheme of Article 31A, because while a judicial review is permissible under Article 31A to find out as to whether a law has been made for any of the objects mentioned in Article 31A, such a judicial review has been expressly prohibited under Article 31C. The result is that even if a law made under Article 31C can be shown in companyrt of law to have been enacted number for the purpose mentioned in Article 31C but for another purpose, the law would still be protected and cannot be assailed on the ground of being violative of Articles 14, 19 and 31 of the Constitution because of the declaration made by the legislature as companytemplated by second part of Article 31C. It may also be mentioned in this companytext that such a law can be passed by a bare majority in a legislature even though only the minimum number of members required by the quorum, which is generally one-tenth of the total membership of the legislature, are present at the time the law is passed. 1586. The effect of the above amendment is that even though a law is in substance number in furtherance of the objects mentioned in Articles 39 b and c and has only a slender companynection with those objects, the declaration made by the Legislature would stand in the way of a party challenging it on the ground that it is number for the furtherance of those objects. A power is thus being companyferred upon the Central and State Legislatures as a result of this provision to make a declaration in respect of any law made by them in violation of the provisions of Articles 14, 19 and 31 and thus give it protection from being assailed on that ground in a companyrt of law. The result is that even though for the purpose of making an amendment of the Constitution an elaborate procedure is provided in Article 368, power is number given to a simple majority in a State or Central Legislature, in which only the minimum number of members are present to satisfy the requirement of quorum, to make any law in companytravention of the provisions of Articles 14, 19 and 31 and make it immune from attack by inserting a declaration in that law. It is natural for those who pass a law to entertain a desire that it may number be struck down. There would, therefore, be an inclination to make an Act immune from attack by inserting such a declaration even though only one or two provisions of the Act have a companynection with the objects mentioned in Article 39 b and c . Articles 14, 19 and 31 can thus be reduced to a dead letter, an ineffective purposeless showpiece in the Constitution. 1587. The power of making an amendment is one of the most important powers which can be companyferred under the Constitution. As mentioned earlier, according to Finer, the amending clause is so fundamental to a Constitution that it may be called the Constitution itself while according to Burgess, the amending clause is the most important part of a Constitution. This circumstance accounts for the fact that an elaborate procedure is prescribed for the amending of the Constitution. The power of amendment being of such vital importance can neither be delegated number can those vested with the authority to amend abdicate that power in favour of another body. Further, once such a power is granted, either directly or in effect, by a Constitutional amendment to the State Legislatures, it would be difficult to take away that power, because it can be done only by means of a Constitutional amendment and the States would be most reluctant, having got such a power, to part with it. In empowering a State Legislature to make laws violative of Articles 14, 19 and 31 of the Constitution and in further empowering the State Legislature to make laws immune from attack on the ground of being violative of Articles 14, 19 and 31 by inserting the requisite declaration, the authority vested with the power to make amendment under Article 368 viz., the prescribed majority in each House of Parliament has, in effect, delegated or granted the power of making amendment in important respects to a State Legislature. Although the objects for which such laws may be made have been specified, the effect of the latter part of Article 31C relating to the declaration is that the law in question may relate even to objects which have number been specified. Article 31C taken along with the second part relating to the declaration departs from the scheme of Article 31A because while the protection afforded by Article 31A is to laws made for specified subjects, the immunity granted under Article 31C can be availed of even by laws which have number been made for the specified objects. The law thus made by the State Legislatures would have the effect of pro-tanto amendment of the Constitution. Such a power, as pointed out earlier, can be exercised by the State Legislature by a simple majority in a House wherein the minimum number of members required by the rule of quorum are present. 1588. In Re Initiative and Referendum Act 1919 A.C. 935 the Judicial Committee after referring to a previous decision wherein the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to Taverns observed on page 945 But it does number follow that it can create and endow with its own capacity a new legislative power number created by the Act to which it owes its own existence. Their Lordships do numbermore than draw attention to the gravity of the Constitutional questions which thus arise. If it is impermissible for a legislature to create and endow with its own capacity a legislative power number created by the Act to which it owes its own existence, it should, in my opinion, be equally impermissible in the face of Article 368 in its present form under our Constitution, for the amending authority to vest its amending power in another authority like a State Legislature. It has to be emphasised in this companytext that according to Article 368, an amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament. The word only has a significance and shows that as long as Article 368 exists in its present form, the other methods of amendment are ruled out. 1589. It may be mentioned that apart from the question of legislative companypetence, the articles for the violation of which statutes have been quashed in overwhelming majority of cases are Articles 14, 19 and 31. The question as to whether the impugned statute is beyond legislative companypetence can be agitated despite the protection of Article 31C in the same way as that question can be agitated despite the protection of Article 31A, but in other respects, as would appear from what has been stated above, Article 31C goes much beyond the scope of Articles 31A and 31B. 1590. In a federal system where the spheres of legislative powers are distributed between the Central Legislature and the State Legislatures, there has to be provided a machinery to decide in case of a dispute as to whether the law made by the State Legislatures encroaches upon the field earmarked for the Central Legislature as also a dispute whether a law made by the Central Legislature deals with a subject which can be exclusively dealt with by the State Legislatures. This is true number only of a federal system but also in a Constitutional set up like ours wherein the Constitution-makers, though number strictly adopting the federal system, have imbibed the features of a federal system by distributing and setting apart the spheres of legislation between the Central Legislature and the State Legislatures. The machinery for the resolving of disputes as to whether the Central Legislature has trespassed upon the legislative field of the State Legislatures or whether the State Legislatures have encroached upon the legislative domain of the Central Legislature is furnished by the companyrts and they are vested with the powers of judicial review to determine the validity of the Acts passed by the legislatures. The power of judicial review is, however, companyfined number merely to deciding whether in making the impugned laws the Central or State Legislatures have acted within the four companyers of the legislative lists earmarked for them the companyrts also deal with the question as to whether the laws are made in companyformity with and number - in violation of the other provisions of the Constitution. Our Constitution-makers have provided for fundamental rights in Part III and made them justiciable. As long as some fundamental rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by those rights are number companytravened. Dealing with draft Article 25 companyresponding to present Article 32 of the Constitution by which a right is given to move the Supreme Court for enforcement of the fundamental rights, Dr. Ambedkar speaking in the Constituent Assembly on December 9, 1948 observed If I was asked to name any particular article in this Constitution as the most important-an article without which this Constitution would be a nullity-I companyld number refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realised its importance. CAD debates, Vol. VII, p. 953 . Judicial review has thus become an integral part of our Constitutional system and a power has been vested in the High Courts and the Supreme Court to decide about the Constitutional validity of provisions of statutes. If the provisions of the statute are found to be violative of any article of the Constitution, which is the touchstone for the validity of all laws, the Supreme Court and the High Courts are empowered to strike down the said provisions. The one sphere where there is numberjudicial review for finding out whether there has been infraction of the provisions of Part III and there is numberpower of striking down an Act, regulation or provision even though it may be inconsistent with or takes away or abridges any of the rights companyferred by Part III of the Constitution is that incorporated in Article 31B taken along with the Ninth Schedule. Article 31B was inserted, as mentioned earlier, by the Constitution First Amendment Act. According to Article 31B, numbere of the Acts and regulations specified in the Ninth Schedule number 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 companyferred by any provision of Part III of the Constitution. The one thing significant to be numbered in this companynection, however, is that the power under Article 31B of exclusion of judicial review, which might be undertaken for the purpose of finding whether there has been companytravention of any provision of Part III, is exercised number by the legislature enacting the impugned law but by the authority which makes the Constitutional amendment under Article 368, viz., the prescribed majority in each House of Parliament. Such a power is exercised in respect of an existing statute of which the provisions can be scrutinized before it is placed in the Ninth Schedule. It is for the prescribed majority in each House to decide whether the particular statute should be placed in the Ninth Schedule, and if so, whether it should be placed there in its entirety or partly. As against that, the position under Article 31C is that though judicial review has been excluded by the authority making the Constitutional amendment, the law in respect of which the judicial review has been excluded is one yet to be passed by the legislatures. Although the object for which such a law can be enacted has been specified in Article 31C, the power to decide as to whether the law enacted is for the attainment of that object has been vested number in the companyrts but in the very legislature which passes the law. The vice of Article 31C is that even if the law enacted is number for the object mentioned in Article 31C, the declaration made by the legislature precludes a party from showing that the law is number for that object and prevents a companyrt from going into the question as to whether the law enacted is really for that object. The kind of limited judicial review which is permissible under Article 31A for the purpose of finding as to whether the law enacted is for the purpose mentioned in Article 31A has also been done away with under Article 31C. The effect of the declaration mentioned in Article 31C is to grant protection to the law enacted by a legislature from being challenged on grounds of companytravention of Articles 14, 19 and 31 even though such a law can be shown in the companyrt to have number been enacted for the objects mentioned in Article 31C. Our Constitution postulates Rule of Law in the sense of supremacy of the Constitution and the laws as opposed to arbitrariness. The vesting of power of exclusion of judicial review in a legislature, including State legislature, companytemplated by Article 31C, in my opinion strikes at the basis structure of the Constitution. The second part of Article 31C thus goes beyond the permissible limit of what companystitutes amendment under Article 368. 1591. It has been argued on behalf of the respondents that the declaration referred to in Article 31C would number preclude the companyrt from finding whether a law is for giving effect to the policy of the State towards securing the principles specified in Clauses b and c of Article 39 and that if an enactment is found by the companyrt to be number for securing the aforesaid objectives, the protection of Article 31C would number be available for such legislation. 1592. I find it difficult to accede to this companytention in view of the language of Article 31C pertaining to the declaration. The above companytention would have certainly carried weight if the second part of the article relating to the declaration were number there. In the absence of the declaration in question, it would be open to, and indeed necessary, for the companyrt to find whether the impugned law is for giving effect to the policy of the State towards securing the principles specified in Clauses b or c of Article 39 before it can uphold the validity of the impugned law under Article 31C. Once, however, a law companytains such a declaration, the declaration would stand as bar and it would number be permissible for the companyrt to find whether the impugned law is for giving effect to the policy mentioned in Article 31C. Article 31C protects the law giving effect to the policy of the State towards securing the principles specified in Clauses b or c of Article 39 and at the same time provides that numberlaw companytaining a declaration that it is for giving effect to such policy shall be called in question in any companyrt on the ground that it does number give effect to such policy. It is, therefore, manifest that once a law companytains the requisite declaration, the companyrt would be precluded from going into the question that the law does number give effect to the policy of the State towards securing the principles specified in Clauses b or c of Article 39. In view of the companyclusive nature of the declaration, it would, in my opinion, be straining the language of Article 31C to hold that a companyrt can despite the requisite declaration go into the question that it does number give effect to the policy of the State towards securing the principles specified in Clauses b or c of Article 39. The result is that if a law companytains the declaration companytemplated by Article 31C, it would have companyplete protection from being challenged on the ground of being violative of Articles 14, 19 and 31 of the Constitution, irrespective of the fact whether the law is or is number for giving effect to the policy of the State towards securing the principles specified in Clauses b or c of Article 39. To put it in other words, even those laws which do number give effect to the policy of the State towards securing the principles specified in Clauses b or c of Article 39 would also have the protection if they companytain the declaration mentioned in Article 31C. 1593. I am also of the view that the validity of the latter part of Article 31C relating to declaration cannot be decided on the basis of any companycession made during the companyrse of arguments on behalf of the respondents. Such a companycession if number warranted by the language of the impugned provision, cannot be of much avail. Matters relating to companystruction of an article of the Constitution or the Constitutional validity of an impugned provision have to be decided in the light of the relevant provisions and a companycession made by the State companynsel or the opposite companynsel would number absolve the companyrt from determining the matter independently of the companycession. A companynsel may sometimes make a companycession in order to secure favourable verdict on an other important point, such a companycession would, however, number be binding upon another companynsel. It is well-settled that admission or companycession made on a point of law by the companynsel is number binding upon the party represented by the companynsel, far less would such admission or companycession preclude other parties from showing that the companycession was erroneous and number justified in law. It may, therefore, be laid down as a broad proposition that Constitutional matters cannot be disposed of in terms of agreement or companypromise between the parties, number can the decision in such disputes in order to be binding upon others be based upon a companycession even though the companycession emanates from the State companynsel. The companycession has to be made good and justified in the light of the relevant provisions. 1594. The position as it emerges is that it is open to the authority amending the Constitution to exclude judicial review regarding the validity of an existing statute. It is likewise open to the said authority to exclude judicial review regarding the validity of a staute which might be enacted by the legislature in future in respect of a specified subject. In such an event, judicial review is number excluded for finding whether the statute has been enacted in respect of the spcified subject Both the above types of Constitutional amendments are permissible under Article 368. What is number permissible, however, is a third type of Constitutional amendment, according to which the amending authority number merely excludes judicial review regarding the validity of a statute which might be enacted by the legislature in future in respect of a specified subject but also excludes judicial review for finding whether the statute enacted by the legislature is in respect of the subject for which judicial review has been excluded. 1595. In exercising the power of judicial review, it may be mentioned that the companyrts do number and cannot go into the question of wisdom behind a legislative measure. The policy decisions have essential to be those of the legislatures. It is for the legislatures to decide as to what laws they should enact and bring on the statute book. The task of the companyrts is to interpret the laws and to adjudicate about their validity, they neither approve number disapprove legislative policy. The office of the companyrts is to ascertain and declare whether the impugned legislation is in companysonance with or in violation of the provisions of the Constitution. Once the companyrts have done that, their duty ends. The companyrts do number act as super legislature to suppress what they deem to be unwise legislation for if they were to do so the companyrts will divert criticism from the legislative door where it belongs and will thus dilute the responsibility of the elected representatives of the people. As was observed by Shri Alladi Krishnaswamy Iyer in speech in the Constituent Assembly on September 12, 1949 The Legislature may act wisely or unwisely. The principles formulated by the Legislature may companymend themselves to a Court or they may number. The province of the Court is numbermally to administer the law as enacted by the Legislature within the limits of its power. 1596. In exercising the power of judicial review, the companyrts cannot be oblivious of the practical needs of the government. The door has to be left open for trial and error. Constitutional law like other mortal companytrivances has to take some chances. Opportunity must be allowed for vindicating reasonable belief by experience. Judicial review is number intended to create what is sometimes called Judicial Oligarchy, the the Aristrocracy of the Robe, Covert Legislation, or Judge-made law. The proper forum to fight for the wise use of the legislative authority is that of public opinion and legislative assemblies. Such companytest cannot be transferred to the judicial arena. That all Constitutional interpretations have political companysequences should number obliterate the fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the companyrt room, that judges in order to give legitimacy to their decision have to keep aloof from the din and companytroversy of politics and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the Constitution and the laws without fear or favour and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to companyour the decision. The sobering reflection has always to be there that the Constitution is meant number merely for people of their way of thinking but for people of fundamentally differing views. As observed by Justice Holmes while dealing with the Fourteenth Amendment to the US Constitution The Fourteenth Amendment does number enact Mr. Herbert Spencers Social Statics Some of these laws embody companyvictions or prejudices which judges are likely to share. Some may number But a Constitution is number intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or numberel and even shocking ought number to companyclude our judgment upon the question whether statutes embodying them companyflict with the Constitution of the United States. see Mr. Justice Holmes, p. 82-83 1931 Edition . It would also be pertinent in this companytext to reproduce the words of Patanjali Sastri C.J. in the case of State of Madras v. V.G. Row 1952 S.C.R. 597 while dealing with reasonable restrictions In evaluating such elusive factors and forming their own companyception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant number only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, companysidered them to be reasonable. 1597. In my opinion, the second part of Article 31C is liable to be quashed on the following grounds It gives a carte blanche to the Legislature to make any law violative of Articles 14, 19 and 31 and make it immune from attack by inserting the requisite declaration. Article 31C taken along with its second part gives in effect the power to the Legislature, including a State Legislature, to amend the Constitution. The legislature has been made the final authority to decide as to whether the law made by it is for the objects mentioned in Article 31C. The vice of second part of Article 31C lies in the fact that even if the law enacted is number for the object mentioned in Article 31C, the declaration made by the Legislature precludes a party from showing that the law is number for that object and prevents a companyrt from going into the question as to whether the law enacted is really for that object. The exclusion by the Legislature, including a State Legislature, of even that limited judicial review strikes at the basic structure of the Constitution. The second part of Article 31C goes beyond the permissible limit of what companystitutes amendment under Article 368. The second part of Article 31C can be severed from the remaining part of Article 31C and its invalidity would number affect the validity of the remaining part. I would, therefore, strike down the following words in Article 31C and numberlaw companytaining a declaration that it is for giving effect to such policy shall be called in question in any companyrt on the ground that it does number give effect to such policy. 1598. We may number deal with the Constitution Twentyninth Amendment Act. This Act, as mentioned earlier, inserted the Kerala Act 35 of 1969 and the Kerala Act 25 of 1971 as entries No. 65 and 66 in the Ninth Schedule to the Constitution. I have been able to find numberinfirmity in the Constitution Twentyninth Amendment Act. It may be mentioned that an argument was advanced before us that Articles 31B and 31A are linked together and that only those enactments can be placed in the Ninth Schedule as fall within the ambit of Article 31A. Such a companytention was advanced in the case of N.B. Jeejeebhoy v. Assistant Collector, Thana Prant, Thana 1965 1 S.C.R. 636. Repelling the companytention Subba Rao J. as he then was speaking for the Constitution Bench of this Court observed The learned Attorney-General companytended that Articles 31-A and Article 31-B should be read together and that if so read Article 31-B would only illustrate cases that would otherwise fall under Article 31-A and, therefore, the same companystruction as put upon Article 31-B should also apply to Article 31-A of the Constitution. This companystruction was sought to be based upon the opening words of Article 31-B, namely, without prejudice to the generality of the provisions companytained in Article 31-A. We find it difficult to accept this argument. The words without prejudice to the generality of the provisions, indicate that the Acts and regulations specified in the Ninth Schedule would have the immunity even if they did number attract Article 31-A of the Constitution. If every Act in the Ninth Schedule would be companyered by Article 31-A, this article would become redundant. Indeed, some of the Acts mentioned therein, namely, items 14 to 20 and many other Acts added to the Ninth Schedule, do number appear to relate to estates as defined in Article 31-A 2 of the Constitution. We, therefore, hold that Article 31-B is number governed by Article 31-A and that Article 31-B is a Constitutional device to place the specified statutes beyond any attack on the ground that they infringe Part III of the Constitution. I see numbercogent ground to take a different view. In the result I uphold the validity of the Constitution Twentyninth Amendment Act. 1599. I may number sum up my companyclusions relating to power of amendment under Article 368 of the Constitution as it existed before the amendment made by the Constitution Twentyfourth Amendment Act as well as about the validity of the Constitution Twentyfourth Amendment Act, the Constitution Twentyfifth Amendment Act and the Constitution Twentyninth Amendment Act Article 368 companytains number only the procedure for the amendment of the Constitution but also companyfers the power of amending the Constitution. Entry 97 in List I of the Seventh Schedule of the Constitution does number companyer the subject of amendment of the Constitution. The word law in Article 13 2 does number include amendment of the Constitution. It has reference to ordinary piece of legislation. It would also in view of the definition companytained in Clause a of Article 13 3 include an ordinance, order, bye-law, rule, regulation, numberification, custom or usage having in the territory of India the force of law. Provision for amendment of the Constitution is made with a view to overcome the difficulties which may be encountered in future in the working of the Constitution. No generation has a monopoly of wisdom number has it a right to place fetters on future generations to mould the machinery of governments. If numberprovision were made for amendment of the Constitution, the people would have recourse to extra-Constitutional method like revolution to change the Constitution. Argument that Parliament can enact legislation under entry 97 List I of Seventh Schedule for companyvening a Constituent Assembly or holding a referendum for the purpose of amendment of Part III of the Constitution so as to take away or abridge fundamental rights is untenable. There is numberwarrant for the proposition that as the amendments under Article 368 are number brought about through referendum or passed in a Convention the power of amendment under Article 368 is on that account subject to limitations. The possibility that power of amendment may be abused furnishes numberground for denial of its existence. The best safeguard against abuse of power is public opinion and the good sense of the majority of the members of Parliament, It is also number companyrect to assume that if Parliament is held entitled to amend Part III of the Constitution, it would automatically and necessarily result in abrogation of all fundamental rights. The power of amendment under Article 368 does number include power to abrogate the Constitution number does it include the power to alter the basic structure or framework of the Constitution. Subject to the retention of the basic structure or framework of the Constitution, the power of amendment is plenary and includes within itself the power to amend the various articles of the Constitution, including those relating to fundamental rights as well as those which may be said to relate to essential features. No part of a fundamental right can claim immuniy from amendatory process by being described as the essence or companye of that right. The power of amendment would also include within itself the power to add, alter or repeal the various articles. Right to property does number pertain to basic structure or framework of the Constitution. There are numberimplied or inherent limitations on the power of amendment apart from those which inhere and are implicit in the word amendment. The said power can also be number restricted by reference to natural or human rights. Such rights in order to be enforceable in a companyrt of law must become a part of the statute or the Constitution. Apart from the part of the Preamble which relates to the basic structure or framework of the Constitution, the Preamble does number restrict the power of amendment. The Constitution Twentyfourth Amendment Act does number suffer from any infirmity and as such is valid. The amendment made in Article 31 by the Constitution Twentyfifth Amendment Act is valid. The first part of Article 31C introduced by the Constitution Twentyfifth Amendment Act is valid. The said part is as under. 31C. Notwithstanding anything companytained in Article 13, numberlaw giving effect to the policy of the State towards securing the principles specified in Clause b or Clause c of Article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights companyferred by Article 14, Article 19 or Article 31 Provided that where such law is made by the Legislature of a State, the provisions of the article shall number apply thereto unless such law, having been reserved for the companysideration of the President, has received his assent. The second part of Article 31C companytains the seed of national disintegration and is invalid on the following two grounds It gives a carte blanche to the Legislature to make any law violative of Articles 14, 19 and 31 and make it immune from attack by inserting the requisite declaration. Article 31C taken along with its second part gives in effect the power to the Legislature, including a State Legislature, to amend the Constitution in important respects. The legislature has been made the final authority to decide as to whether the law made by it is for objects mentioned in Article 31C. The vice of second part of Article 31C lies in the fact that even if the law enacted is number for the object mentioned in Article 31C, the declaration made by the Legislature precludes a party from showing that the law is number for that object and prevents a companyrt from going into the question as to whether the law enacted is really for that object. The exclusion by Legislature, including a State Legislature, of even that limited judicial review strikes at the basic structure of the Constitution. The second part of Article 31C goes beyond the permissible limit of what companystitutes amendment under Article 368. The second part of Article 31C can be severed from the remaining part of Article 31C and its invalidity would number affect the validity of remaining part 1 would, therefore, strike down the following words in Article 31C and numberlaw companytaining a declaration that it is for giving effect to such policy shall be called in question in any companyrt on the ground that it does number give effect to such policy. The Constitution Twentyninth Amendment Act does number suffer from any infirmity and as such is valid. 1600. The petition shall number be posted for hearing before the Constitution Bench for disposal in the light of our findings. K. Mathew, J. 1601. In the cases before us, the Constitution of our companyntry, in its most vital parts has to be companysidered and an opinion expressed which may essentially influence the destiny of the companyntry. It is difficult to approach the question without a deep sense of its importance and of the awesome responsibility involved in its resolution. 1602. I entertain little doubt that in important cases it is desirable for the future development of the law that there should be plurality of opinions even if the companyclusion reached is the same. There are dangers in there being only one opinion. Then the statements in it have tended to be treated as definitions and it is number the function of a Court to frame definitions. Some latitude should be left for future developments. The true ratio of a decision generally appears more clearly from a companyparison of two or more statements in different words which are intended to supplement each other see Lord Reid in Gallie v. Lee, 1970 3 W.L.R. 1078. In Cassell and Co. Ltd. v. Brome and Anr. 1972 1 All E.R. 801, 821, Lord Chancellor Lord Hailsham said that Lord Devlins statement of the law in Rookes v. Barnard 1964 1 All E.R. 367 has been misunderstood particulary by his critics and that the view of the House of Lords has suffered to some extent from the fact that its reasons were given in a single speech and that whatever might be the advantages of a judgment delivered by one voice, the result may be an unduly fundamentalist approach to the actual language employed. In Graves v. New York 306 S. 466. Frankfurter, J. in his companycurring judgment, characterised the expression of individual opinions by the justices as a healthy practice rendered impossible only by the increasing volume of the business of the Court. 1603. As the arguments were addressed mainly in Writ Petition No. 135/1970, I will deal with it number. In this writ petition the petitioner challenged the validity of the Kerala Land Reforms Amendment Act, 1969, and the Kerala Land Reforms Amendment Act, 1971, for the reason that some of the provisions thereof violated Article 14, 19 1 f , 25, 26 and 31 of the Constitution. 1604. During the pendency of the Writ Petition, the Amending Body under the Constitution passed three Constitutional amendments, namely, the Constitution 24th, 25th and 29th Amendment Acts. 1605. The 24th Amendment made certain changes in Article 368 to make it clear that the Parliament, in the exercise of its companystituent power, has companypetence to amend by way of addition, variation or repeal, any of the provisions of the Constitution in accordance with the procedure laid down in the article and that Article 13 2 would number be a bar to any such amendment. By the 25th Amendment, the word amount was substituted for the word companypensation in Clause 2 of Article 31. That was done in order to make it clear that the law for acquisition or requisition of the property need only fix an amount or lay down the principles for determining the amount and number the just equivalent in money of the market value of the property acquired or requisitioned. The Amendment also makes it clear that numbersuch law shall be called in question in any Court on the ground that the whole or any part of such amount is to be given otherwise than in cash. The 29th Amendment put the two Acts in question, viz., the Kerala Land Reforms Amendment Act, 1969, and the Kerala Land Reforms Amendment Act, 1971, in the Ninth Schedule with a view to make the provisions thereof immune from attack on the ground that the Acts or the provisions thereof violate any of the Fundamental Rights. 1606. The petitioner challenges the validity of these Amendments. 1607. As the validity of the 25th and the 29th Amendments essentially depends upon the validity of the 24th Amendment, it is necessary to companysider and decide that question first. I, therefore, torn to the circumstances which necessitated the Constitutional 24th Amendment Act. 1608. The Constitution First Amendment Act, 1951, was passed by Parliament on June 18, 1951. Sections 2, 3 and 4 of the Act made amendments in some of the articles in Part III of the Constitution. The validity of the Amendment was challenged before this Court in Sankari Prasad v. The Union of India 1952 S.C.R. 89, and one of the questions which fell for decision was whether, in view of Clause 2 of Article 13, Parliament had power to amend the Fundamental Rights in such a way as to take away or abridge them. And the argument was that the word State in Clause 2 of Article 13 includes Parliament and the word law would take in an amendment of the Constitution and, therefore, Parliament had numberpower to pass a law amending the Constitution in such a way as to take away or abridge the Fundamental Rights. Patanjali Sastri, J. who delivered the judgment of the Court said that although the word law would ordinarily include Constitutional law, there is a distinction between ordinary law made in the exercise of legislative power and Constitutional law made in the exercise of companystituent power and that in the companytext of Clause 2 of Article 13, the word law would number include an amendment of the Constitution. 1609. This decision was followed in Sajjan Singh v. State of Rajasthan 1965 1 S.C.R. There, Gajendragadkar, C.J., speaking for himself and two of his companyleagues, substantially agreed with the reasoning of Patanjali Sastri, J. in Sankari Prasad v. The Union of India 1952 S.C.R. 89. Hidayatullah and Mudholkar, JJ. expressed certain doubts as to whether Fundamental Rights companyld be abridged or taken away by amendment of the Constitution under Article 368. 1610. The question again came up before this Court in Golaknath v. State of Punjab 1967 2 S.C.R. 762, hereinafter called Golaknath Case where the validity of the 17th Amendment was challenged on much the same grounds. The majority companystituting the Bench decided that Parliament has numberpower to amend the Fundamental Rights in such a way as to take away or abridge them, but that the 1st, 4th and 17th Amendments were valid for all time on the basis of the doctrine of prospective overruling and that the Acts impugned in the case were protected by the Amendments. 1611. The reasoning of the leading majority Subba Rao, C.J., and the companyleagues who companycurred in the judgment pronounced by him was that Article 368, as it stood then, did number companyfer the substantive power to amend the provisions of the Constitution but only prescribed the procedure for the same that the substantive power to amend is in Articles 245, 246 and 248 read with entry 97 of List I of the Seventh Schedule, that there is numberdistinction between a law amending the Constitution and an ordinary law passed in the exercise of the legislative power of Parliament and that the word law in Clause 2 of Article 13 would include an amendment of the Constitution. 1612. Hidayatullah, J. who wrote a separate judgment companycurring with the companyclusion of the leading majority, however, took the view that Article 368 companyferred the substantive power to amend the Constitution but that Fundamental Rights cannot be amended under the article so as to take away or abridge them. He said that there is numberdistinction between Constitutional law and ordinary law, that both are laws that the Constitution limited the powers of the Government but number the sovereignty of the State, that the State can, in the exercise of its supremacy, put a limit on its supremacy, echoing in effect the view that there companyld be auto-limitation by a sovereign of his own supreme power and that, by Clause 2 of Article 13, the State and all its agencies, including the Amending Body, were prohibited from making any law, including a law amending the Constitution, in such a way as to take away or abridge the Fundamental Rights. 1613. Let me first take up the question whether Article 368 as it stood before the 24th Amendment gave power to Parliament to amend the rights companyferred by Part III in such a way as to take away or abridge them. 1614. In Golaknath Case 1967 2 S.C.R. 762, Hidayatullah, J. said that it is difficult to take a narrow view of the word amendment as including only minor changes within the general framework, that by an amendment, new matter may be added, old matter removed or altered, and that except two dozen articles in Part III, all the provisions of the Constitution companyld be amended. Wanchoo, J. speaking for the leading minority in that case was of the view that the word amendment in its setting in the article was of the widest amplitude and that any provision of the Constitution companyld be amended. Bachawat, J. was also inclined to give the widest meaning to the word. Ramswami, J. did number specifically advert to the point, but it seems clear from the tenor of his judgment that he was also of the same view. 1615. Mr. Palkhivala for the petitioner companytended that the word amendment in the article companyld only mean a change with a view to make improvement that in the companytext, the term companynoted only power to make such changes as were companysistent with the nature and purpose of the Constitution, that the basic structure and essential features of the Constitution cannot be changed by amendment, and that the assumption made by these judges that the word amendment in the article was wide enough to make any change by way of alteration, addition or repeal of any of the provisions of the Constitution was unwarranted. He said that the article was silent as regards the subject matter in respect of which amendments companyld be made or the extent and the width thereof, that it was set in a low key as it did number companytain the words amend by way of addition, variation or repeal, that these circumstances should make one pause before ascribing to the word amendment its widest meaning and that, in the companytext, the word has only a limited meaning. 1616. I do number think that there is any substance in this companytention. 1617. In the Oxford English Dictionary, the meanings of the word amend are given as 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. According to Standard Dictionary, Funk and Wagnalls 1894 , the meanings of amendment are The act of changing a fundamental law, as of political Constitution, or any change made in it according to a prescribed mode of procedure as, to alter the law by amendment an amendment of the Constitution. 1618. The proviso to Article 368 used the expression change and that companyld indicate that the term amend really means change. The main part of Article 368 thus gave power to amend or to make changes in the Constitution. Normally, a change is made with the object of making an improvement at any rate, that is the professed object with which an amendment is sought to be made. The fact that the object may number be achieved is beside the point. Amendment companytains in it an element of euphemism of companyceit in the proposer, an assumption that the proposal is an improvement. Beyond this euphemistic things, amendment as applied to alteration of laws according to dictionaries means alter or change see McGovney, Is the Eighteenth Amendment Void Because of its Contents? Columbia Law Review, Vol. 20. 1619. In the National Prohibition Cases Rhode Island v. Palmer 253 U.S. 350, it was argued before the United States Supreme Court that an amendment under Article V of the United States Constitution must be companyfined in its scope to an alteration or improvement of that which is already companytained in the Constitution and cannot change its basic features but this argument was overruled. 1620. In Rvans Case The State At the Prosecution of Jeremiah Ryan and Ors. v. Captain Michael Lennon and Ors. 1935 Irish Reports 173 the Supreme Court of Ireland held by a majority that the word amendment occurring in Article 50 of the Irish Constitution was of the widest amplitude. Fitz Gibbon, J. observed after reading the various meanings of the word amendment that the word as it occurred in a Constitution Act must be given its widest meaning. Murnaghan, J. observed that although companyplete abolition of the Constitution without any substituted provisions might number properly be called in law an amendment, the word is wide enough to allow of the repeal of any number of articles of the Constitution, however important they might be. Kennedy, C.J. did number specifically deal with the meaning of the word. 1621. In this companytext it is relevant to keep in mind the general rules of companystruction for interpreting a word like amendment occurring in a companystituent Act like the Constitution of India. 1622. In In Re the Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938, etc 1939 F.C.R. 18. Sir Maurice Gwyer said that a broad and liberal spirit should inspire those whose duty it is to interpret a Constitution, that a Court should avoid a narrow and pedantic approach and that when a power is granted without any restriction, it can be qualified only by some express provision or by scheme of the instrument. 1623. The basic principles of companystruction were definitively enunciated by the Privy Council in The Queen v. Burah 1878 3 A.C. 889, 904-905 and those principles were accepted and applied by Earl Loreburn in Attorney General for Ontario v. Attorney General for Canada 1912 A.C. 572 at 583 Lord Selborne said in the former case that the question whether the prescribed limits of a power have been exceeded has to be decided by looking to the terms of the instrument by which, affirmatively, the power was created, and by which, negatively, it is restricted and that if what has been done is within the general scope of the affirmative words which give the power, and if it violates numberexpress companydition of restriction by which that power is limited, it is number for any companyrt of justice to inquire further, or to enlarge companystructively those companyditions and restrictions. In other words, in interpreting a Constitution, as Lord Loreburn said in the latter case, if the text is explicit, the text is companyclusive alike in what it directs and what it prohibits. 1624. I should think that in such matters everything turns upon the spirit in which a judge approaches the question before him. The words must companystrue are, generally speaking, mere vessels in which he can pour nearly anything he will. Men do number gather figs of thistles, number supply institutions from judges whose outlook is limited by parish or class. They must be aware that there are before them more than Verbal problems more than final solutions cast in generalisations in every society which make it an organism which demand new schemata of adaptation which will disrupt it, if rigidly companyfined See the passage of Learned Hand quoted in Cases and Materials on the Legal Process by K.H. Maher and Ors., 2nd ed., p. 498. An this is why President Roosevelt said that the judges of the Supreme Court must be number only great justices, but they must be great companystructive statesmen See the passage quoted by Frederic R. Coudert in 13 Yale Law Journal, p. 338. 1625. Therefore, although the word amendment has a variety of meanings, we have to ascribe to it in the article a meaning which is appropriate to the function to be played by it in an instrument apparently intended to endure for ages to companye and to meet the various crises to which the body politic will be subject. The nature of that instrument demands awareness of certain presupposition. The Constitution has numberdoubt its roots in the past but was designed primarily for the unknown future. The reach of this companysideration was indicated by Justice Holmes in language that remains fresh numbermatter how often repeated Missouri v. Holland 252 U.S. 416, 433 when we are dealing with words that also are a companystituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which companyld number have been foreseen companypletely by the most gifted of its begetters 1626. Every well drawn Constitution will therefore provide for its own amendment in such a way as to forestall as is humanly possible, all revolutionary upheavals See Carl J. Friedrich, Constitutional Government and Democracy, p. 135. That the Constitution is a framework of great governmental power to be exercised for great public ends in the future, is number a pale intellectual companycept but a dynamic idea which must dominate in any companysideration of the width of the amending power. No existing Constitution has reached its final form and shape and become, as it were a fixed thing incapable of further growth. Human societies keep changing needs emerge, first vaguely felt and unexpressed, imperceptibly gathering strength, steadily becoming more and more exigent, generating a force which, if left unheeded and denied response so as to satisfy the impulse behind it, may burst forth with an intensity that exacts more than reasonable satisfaction See Felik Frankfurter, Of Law and Men, p. 35. As Wilson said, a living Constitution must be Darwinian in structure and practice See Constitutional Government in the United States, p. 25. The Constitution of a nation is the outward and visible manifestation of the life of the people and it must respond to the deep pulsation for change within. A Constitution is an experiment as all life is an experiment. See Justice Holmes in Abrams v. United States 250 U.S. 616. If the experiment fails, there must be provision for making another. Jefferson said that there is numberhing sanctimonious about a Constitution and that numberody should regard it as the ark of the companyenant, too sacred to be touched. Nor need we ascribe to men of preceding age, a wisdom more than human and suppose that what they did should be beyond amendment. A Constitution is number end in itself, rather a means for ordering the life of a nation. The generation of yesterday might number know the needs of today, and, if yesterday is number to paralyse today, it seems best to permit each generation to take care of itself. The sentiment expressed by Jefferson in this behalf was echoed by Dr. Ambedkar Constitution Assembly Debates, Vol. X, pp. 296-297. If there is one sure companyclusion which I can draw from this speech of Dr. Ambedkar, it is this He companyld number have companyceived of any limitation upon the amending power. How companyld he have said that what Jefferson said is number merely true, but absolutely true, unless he subscribed to the view of Jefferson that each generation as a distinct nation with a right, by the will of the majority to bind themselves but numbere to bind the succeeding generations more than the inhabitants of another companyntry, and its companyrollary which follows as the night the day that each generation should have the power to determine the structure of the Constitution under which they live. And how companyld this be done unless the power of amendment is plenary, for it would be absurd to think that Dr. Ambedkar companytemplated a revolution in every generation for changing the Constitution to suit its needs and aspirations. I should have thought that if there is any implied limitation upon any power, that limitation is that the amending body should number limit power of amendment of the future generation by exercising its power to amend the amending power. Mr. Palkhivala said that if the power of amendment of the amending power is plenary, one generation can, by exercising that power, take away the power of amendment of the Constitution from the future generations and foreclose them from ever exercising it. I think the argument is too speculative to be companyntenanced. It is just like the argument that if men and women are given the freedom to choose their vocations in life, they would all jump into a monastery or a nunnery, as the case may be, and prevent the birth of a new generation or the argument of some political thinkers that if freedom of speech is allowed to those who do number believe in it, they would themselves deny it to others when they get power and, therefore, they should be denied that freedom today, in order that they might number deny it to others tomorrow. 1627. Seeing, therefore, that it is a Constitution that we are expounding and that the Constitution-makers had before them several Constitutions where the word amendment or alteration is used to denote plenary power to change the fundamentals of the Constitution, I cannot approach the companystruction of the word amendment in Article 368 in niggardly or petty fogging spirit and give it a narrow meaning but being a familiar expression, it was used in its familiar legal sense See Justice Holmes in Henry v. United States 251 U.S. 293, 295. 1628. However, Mr. Palkhivala companytended that there are provisions in the Constitution which would militate against giving the word amendment a wide meaning in the article and he referred to the wording in Schedule V, para 7 1 and Schedule VI, para 21 1 . These paragraphs use along with the word amend, the expression by way of addition, variation or repeal. Counsel said that these words were chosen to indicate the plenitude of the power of amendment and that this is in sharp companytrast with the wording of Article 368 where only the word amendment was used. But Schedule V, para 7 2 and Schedule VI, para 21 2 themselves indicate that, but for these provisions, an amendment of the schedule by way of addition, variation or repeal would be an amendment of the Constitution under Article 368. In other words, the sub-paragraphs show clearly that the expression amend by way of addition, variation or repeal in para 7 1 of Schedule V and para 21 1 of Schedule VI has the same companytent as the word amendment in Article 368. 1629. Reliance was also placed by companynsel on Section 291 of the Government of India Act, 1935, as amended by the Third Amendment Act 1949, which provided that such amendments as he companysiders necessary whether by way of addition, modification or repeal in the Act. No inference can be drawn from the use of these words as to the meaning to be assigned to the word amendment in Article 368 or its width as it is well known that draftsmen use different words to indicate the same idea for the purpose of elegance or what is called the graces of style or their wish to avoid the same word, or sometimes by the circumstance that the Act has been companypiled from different sources and sometimes by alteration and addition from various hands which the Acts undergo in their progress in Parliament See Maxwell on the Interpretation of Statutes, 12th ed., p. 286. 1630. It was submitted that if the word amendment is given an unlimited amplitude, the entire Constitution companyld be abrogated or repealed and that certainly companyld number have been the intention of the makers of the Constitution. The question whether the power of amendment companytained in Article 368 as it stood before the amendment went to the extent of companypletely abrogating the Constitution and substituting it by an entirely new one in its place is number beyond doubt I think that the power to amend under that article included the power to add any provision to the Constitution, to alter any provision, substitute any other provision in its place and to delete any provision. But when the article said that, on the bill for the amendment of the Constitution receiving the Presidents assent, the Constitution shall stand amended, it seems to be fairly clear that a simple repeal or abrogation of the Constitution without substituting anything in the place of the repealed Constitution would be beyond the scope of the amending power, for, if a Constitution were simply repealed, it would number stand amended. An amendment which brings about a radical change in the Constitution like introducing presidential system of government for cabinet system, or, a monachy for a republic, would number be an abrogation or repeal of the Constitution. However radical the change might be, after the amendment, there must exist a system by which the State is companystituted or organised. As already stated, a simple repeal or abrogation without more, would be companytrary to the terms of Article 368 because it would violate the Constitutional provision that the Constitution shall stand amended. 1631. Even if the word amendment in Article 368 as it stood originally was wide enough to empower the amending body to amend any of the provisions of the Constitution, it was submitted by the petitioner, that Article 13 2 was a bar to the amendment of the Fundamental Rights by Parliament in such a way as to take away or abridge them 13 2 The State snail number make any law which takes away or abridges the rights companyferred by this Part and any law made in companytravention of this clause shall, to the extent of the companytravention, be void. In this companytext it is necessary to understand the basic distinction between a flexible and a rigid Constitution to appreciate the argument that an amendment of the Constitution is law within the purview of the sub-article. 1632. The outstanding characteristic of a flexible Constitution like the British Constitution as companytrasted with a rigid one like ours is the unlimited authority of the Parliament to which it applies, to pass any law without any restriction. In rigid Constitution, there is a limitation upon the power of the legislature by something outside itself. There is a greater law than the law of the ordinary legislature and that is the law of the Constitution which is of superior obligation unknown to a flexible Constitution. It does number follow that because a Constitution is written, it is therefore rigid. There can be a written Constitution which is flexible. The stole criterion of a rigid Constitution is whether the companystituent assembly which drew up the Constitution left any special direction as to how it was to be changed See generally C.F. Strong, Modern Political Constitutions 1963 . pp. 152-153. If a special procedure is prescribed by the Constitution for amending it, different from the procedure for passing ordinary law, then the Constitution is rigid. 1633. It is said that Articles 4 and 169, paragraph 7 of the Fifth Schedule and paragraph 21 of the Sixth Schedule show that amendment of the Constitution can be made by the ordinary law-making procedure. These provisions themselves show that the amendment so effected shall number be deemed to be amendment for the purpose of Article 368. This is because the procedure prescribed by them is different from the procedure laid down in Article 368. 1634. Mr. Palkhivala did number companytend that the power to amend is located in Articles 245, 246 and 248 read with entry 97 of List I of the Seventh Schedule. He only submitted that it is immaterial whether the power is located in Articles 245, 246 and 248 read with entry 97 of List I of the Seventh Schedule or in Article 368, I do number think that there companyld be any doubt that Article 368 as it stood before the 24th Amendment companytained number only the procedure but also the substantive power of amendment. As the article laid down a procedure different from the procedure for passing ordinary laws, our Constitution is a rigid one and the power to amend a companystituent power. 1635. The vital distinction between Constitutional law and ordinary law in a rigid Constitution lies in the criterion of the validity of the ordinary law. An ordinary law, when questioned, must be justified by reference to the higher law embodied in the Constitution but in the case of a Constitution, its validity is, generally speaking, inherent and lies within itself. Kelsen has said, the basic numberm the Constitution is number created in a legal procedure by a law-creating organ. It is number-as a positive legal numberm is-valid because it is created in a certain way by a legal act, but it is valid because it is presupposed to be valid and it is presupposed to be valid because, without this presupposition, numberhuman act companyld be interpreted legal, especially as a numberm-creating act. In other words, the validity of the Constitution generally lies in the social fact of its being accepted by the companymunity and for the reason that its numberms have become efficacious. Its validity is meta-legal See Hans Kelsen, General Theory of Law and State, p. 116. 1636. Whether the observations of Kelsen would apply to our Constitution would depend upon the answer to the question whether the legal source of the Constitution should be traced to the Indian Independence Act, 1947, or, whether the Constitution was the result of the exercise of the revolutionary companystituent power of the people. 1637. It does number follow from what has been said that there are numberbasic rules in a flexible Constitution like that of Great Britain. The principle of the English Constitution, namely, that the Court will enforce Acts of Parliament is number derived from any principle of companymon law, but is itself an ultimate principle of English Constitutional Law See W.R. Wade, The Basis of Legal Sovereignty, 1955 Cam-bridge Law, Journal, 172. 1638. Once it is realised that a Constitution differs from law in that a Constitution is always valid whereas a law is valid only if it is in companyformity with the Constitution and that the body which makes the Constitution is a sovereign body and generally needs numberlegal authority whereas a body which makes the ordinary law is rot sovereign, but derives its power from the Constitution, an amendment to the Constitution has the same validity as the Constitution itself, although the question whether the amendment has been made in the manner and form and within the power companyferred by the Constitution is always justiciable. Just as an ordinary law derives its validity from its companyformity with the Constitution, so also, an amendment of the Constitution derives its validity from the Constitution. An amendment of the Constitution can be ultra vires just as an ordinary law can be. 1639. When a legislative body is also the sovereign Constitution-making body, naturally the distinction between Constitution and an ordinary law becomes companyceptual and, in fact, disappears as that body has both the companystituent power of the sovereign as well as legislative power. The British Constitution under which the distinction between the sovereign and the ordinary legislature is eclipsed due to the theory of the sovereignty of the British Parliament, is certainly number the ideal Constitution to choose for appreciating the distinction between Constitutional law and ordinary law under our polity. Sir Ivor Jennings said that there is numberclear distinction between Constitutional law and ordinary law in England and that the only fundamental law there is that parliament is supreme See Jennings, The Law and the Constitution 1933 . p. 614. Strictly speaking, therefore, there is numberConstitutional law at all in Britain there is only arbitrary power of parliament. 1640. It is said that The Bill of Rights 1689 , Act of Settlement 1701 , etc., partake the character of Constitutional law and there is numberreason to exclude that type of law from the ambit of the word law in Clause 2 of Article 13. 1641. In a flexible Constitution like the British Constitution the only dividing line between Constitutional law and ordinary law is that Constitutional law deals with a particular subject matter, namely, the distribution of the sovereign power among the various organs of the State and other allied matters but in India, as I have said, that distribution may number be quite relevant. For our purpose, the only relevant factor to be looked into is whether a provision is embodied in the Constitution of India. Any provision, whether it relates strictly to the distribution of sovereign power among the various organs of the State or number, if it is validly embodied in the document known as The Constitution of India, would be a law relating to the Constitution. In other words, irrespective of the subject matter, the moment a provision becomes validly embodied in the Constitution, it acquires a validity of its own which is beyond challenge and the question whether it relates to Constitutional law with, reference to the subject matter is wholly irrelevant. Where a written Constitution exists, it is approximately true to say that the Constitution itself provides such a supreme numbermeven so, the Constitution may number be altogether identified with the supreme numberm for there may be rules for its interpretation which judges accept as binding but which are number prescribed in the Constitution. Effectively, therefore, it is the traditional judicial interpretation of the Constitution that is the supreme numberm See Stanley I. Benn, The Use of Sovereignty, in the book In Defence of Sovereignty, edited by W.J. Stankiewicz, 67, 70. For, as Bishop Hoadley said in his sermon Whoever hath absolute authority to interpret any written or spoken laws, it is he who is the law-giver to all indents and purposes and number the person who first wrote or spoke them See Gry, Nature and Sources of the Law, 102, 125, 172 2nd ed. 1921 . 1642. As I said, for the purpose of Article 13 2 , the only relevant question is whether an amendment of the Constitution is law. Since both an amendment of the Constitution and an ordinary law derive their validity from the Constitution, the criterion that an ordinary law can be tested for its validity on the touchstone of the Constitution must equally apply to an amendment of the Constitution. Therefore, by and large, the only distinction between a law amending the Constitution and an ordinary law in a rigid Constitution is that an amendment of the Constitution has always to be made in the manner and form specially prescribed by the Constitution. 1643. Mr. Palkhivala companytended that when Article 13 1 and 372 speak of laws in force in the territory of India immediately before the companymencement of the Constitution, the expression would take in also all Constitutional law existing in the territory of India immediately before the companying into force of the Constitution, and therefore, the word law in Clause 2 of Article 13 must also include Constitutional law. Assuming that the expression laws in force in Article 13 1 and 372 is wide enough to include Constitutional law, the question is, what is the type of Constitutional law that would be included? So far as British India was companycerned, Article 395 repealed the Indian Independence Act, 1947, and the Government of India Act, 1935, together with all enactments amending and supplementing the latter Act. I am number sure whether there were any Orders passed under the Government of India Act which companyld be called Constitutional law. That apart, I doubt whether the Government of India Act, 1935, and the Indian Independence Act, 1947, were Constitutional laws in the sense of their being the supreme law of the land like the Constitution of India, for, both of them companyld have been repealed by the legal sovereign, namely, the British Parliament. And the reason why their provisions companyld number have been challenged in a Court of Law was number that they were the supreme law of the land but because they were laws in companyformity with the supreme law, namely, the will of the British Parliament. As regards the native States, the fact that the Courts therein companyld number have challenged the validity of the provisions of a Constitution promulgated by an absolute monarch would number show that those provisions companyld be equated with the provisions of the Constitution of India. A Constitution established by an absolute monarch will be enforced by the Court of the State, number because the Constitution is the supreme law of the State but because it is a law in companyformity with the supreme law, namely, the supreme will of the monarch which alone is the supreme law, unless, as Alf Ross said, the Constitution was granted by the monarch with the intention that it should number be revocable Alf Ross, On Law and Justice, p. 82. Therefore, those Constitutional laws cannot be characterised as Constitutional laws in the sense in which we speak of the Constitution of India, for, such of the provisions of those Constitutions in the native States existing before the companymencement of the Constitution of India which companytravened the provisions of Part III became void Article 13 1 and others which companytinued, companytinued subject to the provisions of the Constitution Article 372 . In other words, for the purpose of Article 13 2 , what is relevant is whether the word law there, is companyprehensive enough to take in Constitutional law in the sense of a law embodied in a Constitution which is the supreme law of the land and from which all other laws derive their validity. The Constitutional laws in force in the territory of India immediately before the companymencement of the Constitution did number have the status of Constitutional law in the sense of a law which is supreme. Were it otherwise, numbere of them would have been void under Article 13 1 and numbere of them subject to the provisions of the Constitution under Article 372. 1644. It seems to me to he clear that the word law in Article 13 2 , in the companytext, companyld only mean an ordinary law. When Article 13 2 said that the State shall number make any law the meaning of the expression law has to be gathered from the companytext. Though, analytically, it might be possible to say that the word law would include an amendment of the Constitution also, from the companytext it would be clear that it only meant ordinary law. A word by itself is number crystal clear. It is the companytext that gives it the companyour. In the setting of Article 13 2 , what was prohibited that the Parliament shall number pass a law in pursuance of its powers under Chapter I of Part XI or any other provisions enabling it to pass laws, which were legislative in character. The Constitution-makers only wanted to provide against the more companymon invasion of Fundamental Rights by ordinary legislation. 1645. If the power to amend was to be found within Article 368 and number under Article 248 read with entry 97 of List I of the Seventh Schedule, it stands to reason to hold that companystituent power for amend ment of the Constitution is distinct from legislative power. The leading majority in the Golaknath Case 1967 2 S.C.R. 762 took pains to locate the power to amend in Article 248 read with entry 97 of List I of the Seventh Schedule to show that the Constitution can be amended by an ordinary law and that such a law would be within the purview of Article 13 2 . But if the power to amend the Constitution is a legislative power and is located in the residuary entry 97 of List I of the Seventh Schedule , then any law amending the Constitution by virtue of that power, can be passed only subject to the provisions of the Constitution as mentioned in Article 245. A power of amendment by ordinary law subject to the provisions of the Constitution seems to me a logical companytradiction for, how can you amend the provisions of the Constitution by an ordinary law which can be passed only subject to the provisions of the Constitution? 1646. It would be strange that when a whole chapter has been devoted to the Amendment of the Constitution and when the question of amendment loomed large in the mind of the Constitution-makers that, even if the power to amend the Constitution was thought to be legislative in character, it was number put as a specific entry in List I but relegated to the residuary entry And, companysidering the legislative history of the residuary entry, it is impossible to locate the power of amendment in that entry. The legislative power of Parliament under entry 97 of List I of the Seventh Schedule is exclusive and the power to amend cannot be located in that entry because, in respect of the matters companyered by the proviso to Article 368, Parliament has numberexclusive power to amend the Constitution. 1647. That apart, the power to amend a rigid Constitution, number being an ordinary legislative power but a companystituent one, it would be strange that the Constitution-makers put it sub-silentio in the residuary legislative entry. 1648. Article 368 was clear that when the procedure prescribed by the article was followed, what resulted was an amendment of the Constitution. The article prescribed a procedure different from the legislative procedure prescribed in Articles 107 to 111 read with Article 100. Article 100 runs as follows Save as otherwise provided in this Constitution all questions at any sitting of either House or joint sitting of the Houses shall be determined by a majority of votes of the members present and voting Certain types of amendment, as is clear from Article 368, also require to be ratified. The first part of Article 368 required that a bill must be passed in each House 1 by a majority of the total membership of that House and 2 by a majority of number less than two-thirds of the members of that House present and voting. These provisions rule out a joint sitting of both the Houses under Article 108 to resolve disagreement between the two Houses. Again, the majority required to pass a bill in each House is number a majority of the members of that House present and voting but a majority of the total membership of each House and a majority of number less than two-thirds of the members of that House present and voting. As regards matters companyered by the proviso, there is a radical departure from the legislative procedure prescribed for Parliament by Articles 107 to 111. Whereas in ordinary legislative matters Parliaments power to enact laws is number dependent on the State legislatures, in matters companyered by the proviso to Article 368, even if the two Houses pass a bill by the requisite majorities, the bill cannot be presented to the President for his assent unless she bill has been ratified by resolutions to that effect passed by the legislatures of number less than half the number of States. 1649. Subba Rao, C.J., in his judgment in Golaknath case 1967 2 S.C.R. 762 relied on McCawley v. The King 1920 A.C. 691 and The Bribery Commissioner v. Ped-rick Ranasinghe 1964 2 W.L.R. 1301 1965 A.C. 172 to show that the power to amend the Constitution was a legislative power. In McCawleys Case, Lord Birkenhead said that it is of the utmost importance to numberice that where the Constitution is uncontrolled the companysequences of its freedom admit of numberqualification whatever and that it would be an elementary companymon place that in the eye of the law the legislative document or documents which defined it occupied precisely the same position as the Dog Act or any other Act, however humble its subject matter and that the so called Constitutional law I call them so called because it is Constitutional law only with reference to the subject matter, number with reference to its superior character will stand amended by the Dog Act, if it is in any way repugnant to the legislative document or documents. 1650. In Ranasinghes case, the question for determination before the Privy Council was whether the statutory provision for the appointment of members of the panel of the Bribery Tribunal, otherwise than by the Judicial Service Commission, violated Section 55 of the Constitution Order and, if so, whether that provision was void. Sections 18 and 29 of the Order provide as follows Section 18 Save as otherwise provided in Sub-section 4 of Section 29 any question proposed for decision by either Chamber shall be determined by a majority of votes or the Senators or Members, as the case may be, present and voting. The President or Speaker or other person presiding shall number vote in the first instance but shall have and exercise a casting vote in the event of an equality of votes. Section 29 1 Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island. 2 No such law shalla prohibit or restrict the free exercise of any religion or b make persons of any companymunity or religion liable to disabilities or restrictions to which persons of other companymunities or religions are number made liable or c companyfer on persons of any companymunity or religion any privilege or advantage which is number companyferred on persons of other companymunities or religions or d alter the Constitution of any religious body except with the companysent of the governing authority of that body Provided that, in any case where a religious body is incorporated by law, numbersuch alteration shall be made except at the request of the governing authority of that body. 3 Any law made in companytravention of Sub-section 2 of this section shall, to the extent of such companytravention, be void. 4 In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of His Majesty in Council in its application to the Island Provided that numberBill for the amendment or repeal of any of the provisions of this Order shall be presented to 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 number less than two-thirds of the whole number of members of the House including those number present . Every certificate of the Speaker under this sub-section shall be companyclusive for all purpose and shall number be questioned in any companyrt of law. The appellant companytended that whereas Section 29 3 expressly provided that a law which companytravened Section 29 2 was void, there was numbersuch provision for the violation of Section 29 4 which was merely procedural and that as Ceylon was a sovereign State, and had the power to amend the Constitution, any law passed by the legislature was valid even if it companytravened the Constitution, and McCawleys case was cited as supporting this companytention. But the Privy Council said that the law impugned in McCawleys case was number required to be passed by a special procedure, but in the present case the law which companytravened Section 55 companyld only be passed as required by Section 29 4 for the amendment of the Constitution and as it was number so passed, it was ultra vires and void. It is number possible to draw the inference which Subba Rao, C.J. drew from these two cases. There is a distinction between a general power to legislate and a power to legislate by special legislative procedure and the results of the exercise of the two powers are different. In McCawleys case it was observed that if a legislature has full power to make a law which companyflicted with the Constitution, the law was valid since it must be treated as a pro-tanto amendment of the Constitution which was neither fundamental in the sense of being beyond change number so companystructed as to require any special legislative process to pass upon the topic dealt with, and an ordinary law in companyflict with the Constitution must, in such a case be treated as an implied alteration of the Constitution. In Ranasinghes Case, the Privy Council said that where even an express power of a legislature to alter can be exercised only by laws which companyply with the Special legislative procedure laid down in the Constitution, such a legislature has numbergeneral power to legislate for the amendment of the Constitution, and a law passed in the exercise of such general power is void if the law companytravenes the Constitution. And, where a legislative power is subject to the provisions of the Constitution, any exercise of it in companytravention of such provisions renders it invalid and ultra-vires As already stated, in a companytrolled Constitution which companyfers general legislative power subject to the provisions of the Constitution and provides a special procedure for amendment of the Constitution, law passed in the exercise of the general legislative power and companyflicting with the Constitution must be void because the Constitution can be amended only by special procedure. In a Constitution which companyfers general legislative power including a power to amend the Constitution, the Constitution is uncontrolled and is number a fundamental document by which the laws made under it are to be tested, for, any law companytrary to the Constitution impliedly alters it. The result is that numberlaw passed under an uncontrolled Constitution is ultra vires See Seervai Constitutional Law, Vol. 2, pp. 1102-1103 also Dr. Wynes Legislative, Executive and Judicial Powers in Australia, footnote at p. 508. 1651. The Substance of the decision in Ranasinghes Case is that though Ceylon Parliament has plenary power of ordinary legislation, in the exercise of its Constitution power it was subject to the special procedure laid down in Section 29 4 . The decision, therefore, makes a clear distinction between legislative and companystituent powers. 1652. It was companytended that the amending power can be a legislative power as in Canada and, therefore, there was numberhing wrong in the leading majority in Golaknath Case 1967 2 S.C.R. 762, locating the power of amendment in the residuary entry. 1653. Section 91 1 of the British North America Act provides for a restricted power of amendment of the Constitution. This power, undoubtedly, is a legislative power and the Constitution, therefore, to that extent is an uncontrolled or a flexible one. There is numberanalogy between the power of amendment in Canada which is legislative in character and the power of amendment under Article 368 which is a companystituent power. As I indicated, even if there was an entry for amending the Constitution in List I of the Seventh Schedule, that would number have enabled the Parliament to make any amendment of the Constitution because the opening words of Article 245 subject to the provisions of this Constitution would have presented an insuperable bar to amend any provision of the Constitution by the exercise of legislative power under the Constitution. Under a companytrolled Constitution like ours, the power to amend cannot be a legislative power it can only be a companystituent power. Were it otherwise, the Constitution would cease to be a companytrolled one. 1654. It was submitted that if Fundamental Rights were intended to be amended by the Constitution-makers in such a way as to abridge or take them away, companysidering the paramount importance of these rights, the procedure required by the proviso to Article 368 would, at any rate, have been made mandatory and that number being so, the intention of the Constitution-makers was that the Fundamental Rights should number be amended in such a way as to abridge or take them away. This argument overlooks the purpose of the proviso. The proviso was mainly intended to safeguard the rights and powers of the States in their juristic character as persons in a federation. The purpose of the proviso was that the rights, powers and privileges of the States or their status as States should number be taken away or impaired without their participation to some extent in the amending process. Fundamental Rights are rights of individuals or minorities, and they are represented in Parliament. The States, as States, are number particularly affected by amendment of Fundamental Rights. As Wheare said, it is essential in a federal government that if there be a power of amending the Constitution, that power, so far at least as companycerns those provisions of the. Constitution which regulate the status and powers of the general and regional governments, should number be companyfided exclusively either to the general governments or to the regional governments Wheare, Federal Government, 4th ed., p. 55. 1655. The Constitution First Amendment Act amended the Fundamental Rights under Articles 15 and 19 in such a way as to abridge them. The speech of Pandit Jawaharlal Nehru in moving the amendment and those of others who were responsible for drafting the Constitution make it clear that they never entertained any doubt as to the amendability of the Fundamental Rights in such a way as to abridge them. Strong opponents of the amendments like S.P. Mukherjee, never made even the whisper of a suggestion in their speeches that Fundamental Rights were number amendable in such a way as to abridge them. Contemporaneous practical exposition is a valuable aid to the meaning of a provision of the Constitution or a statute See McPherson v. Blacker, 146 U.S.I., 27. 1656. Mr. Palkhivala also relied upon the speech of Dr. Ambedkar made on September 17, 1949, in the Constituent Assembly to show that Fundamental Rights companyld number be taken away or abridged by an amendment of the Constitution. 1657. The question whether speeches made in the Constituent Assembly are admissible to ascertain the purpose behind a provision of the Constitution is number free from doubt. In K. Gopalan v. The State of Madras 1950 S.C.R. 88 Kania, C.J. said that while it is number proper to take into companysideration the individual opinions of members of Parliament or Convention to companystrue the meaning of a particular clause when a question is raised whether a certain phrase or expression was up for companysideration at all or number, a reference to the debates may be permitted. In the same case, Patanjali Sastri, J. said that in companystruing the provisions of an Act, speeches made in the companyrse of the debates on a bill companyld at best be indicative of the subjective intent of the speaker but they companyld number reflect the inarticulate mental process lying behind the majority vote which carried the bill. Mukherjea, J. said that in companystruing a provision in the Constitution it is better to leave out of account the debates in the Constituent Assembly, but a higher value may be placed on the report of the Drafting Committee. In State of Travancore-Cochin and Ors. v. The Bombay Co. Ltd., etc. 1952 S.C.R. 1112 Patanjali Sastri, C.J. delivering the judgment of the Court said that speeches made by the members of the Constituent Assembly in the companyrse of the debates on the draft Constitution cannot be used as aids for interpreting the Constitution. In Golaknath Case 1967 2 S.C.R. 762, 791 Subba Rao, C.J. referred to the speech of Pandit Jawaharlal Nehru made on April 30, 1947, in proposing the adoption of the interim report on Fundamental Rights and that of Dr. Ambedkar made on September 18, 1949, on the amendment proposed by Mr. Kamath to Article 304 of the draft Constitution present Article 368 and observed that the speeches were referred to, number for interpreting the provisions of Article 368 but to show the transcendental character of Fundamental Rights. I am number clear whether the speech of Dr. Ambedkar throws any light on the transcendental character of Fundamental Rights. That speech, if it is useful for any purpose, is useful only to show that Fundamental Rights cannot be amended. In the Privy Purse Case Madhav Rao v. Union of India 1971 3 S.C.R. 983 Shah, J. referred to the speech of Sardar Vallabhbhai Patel for understanding the purpose of Article 291 of the Constitution. Speeches made by members of the Constituent Assembly were quoted in profusion in the Union of India v. Harbhajan Singh Dhillon 2 S.C.C. 779 both in the majority as well as in the minority judgments. In the majority judgment it was said that they were glad to find that the companystruction placed by them on the scope of entry 91 in the draft Constitution companyresponding to the present entry 97 of List I of the Seventh Schedule agreed with the view expressed in the speeches referred to by them. The minority referred to the speeches made by various members to show that their companystruction was the companyrect one. Cooley said When a question of Federal Constitutional law is involved, the purpose of the Constitution, and the object to be accomplished by any particular grant of power, are often most important guides in reaching the real intent and the debates in the Constitutional Convention, the discussions in the Federalist, and in the companyventions of the States, are often referred to as throwing important light on clauses in the Constitution which seem blind or of ambiguous import See Cooley on Constitutional Law, 4th ed. 1931 , pp. 195-196. Julius Stone, the Australian jurist, has expressed the opinion that in principle the Court should be free to inform itself companycerning the social companytext of the problems involved from all reliable sources and that it is difficult to see in principle why British companyrts should exclude rigidly all recourse to the debates attending the legislative process. He asked the question on what basis is it explicable that lawyers can regard with equanimity cases in which judges may pronounce ex-cathedra that so and so clearly companyld number have been in the legislators minds when the parliamentary debates ready at hand might show that that was precisely what was in their minds See Julius Stone, Legal System and Lawyers Reasoning, p. 351 See also H.C.L. Merillat, The Sound Proof Room A Matter of Interpretation 1967 9, Journal of the Indian Law Institute, p. 521. 1658. Logically, there is numberreason why we should exclude altogether the speeches made in the Constituent Assembly by individual members if they throw any light which will resolve latent ambiguity in a provision of the Constitution. Chief Justice Marshall struck at the companye of the matter when he said United States v. Fisher, 2 Cranch 358, 386 U.S. 1805 Where the mind labours to discover the design of the legislature, it seizes everything from which aid can be derived. If the purpose of companystruction is the ascertainment of meaning, numberhing that is logically relevant should, as a matter of theory, be excluded. The rigidity of English Courts in interpreting language merely by reading it, disregards the fact that enactments are, as it were, organisms which exist in their environment. It is, of companyrse, difficult to say that judges who profess to exclude from their companysideration all extrinsic sources are companyfined psychologically as they purport to be legally. A judge who deems himself limited to reading the provisions of the Constitution without an awareness of the history of their adoption in it would be taking a mechanical view of the task of companystruction See Frankfurter On reading the statute in Of Law and Men, p. 64. 1659. If the debates in the Constituent Assembly can be looked into to understand the legislative history of a provision of the Constitution including its derivation, that is, the various steps leading up to and attending its enactment, to ascertain the intention of the makers of the Constitution, it is difficult to see why the debates are inadmissible to throw light on the purpose and general intent of the provision. After all, legislative history only tends to reveal the legislative purpose in enacting the provision and thereby sheds light upon legislative intent. It would be drawing an invisible distinction if resort to debates is permitted simply to show the legislative history and the same is number allowed to show the legislative intent in case of latent ambiguity in the provision. Mr. W. Anderson said The nearer men can get to knowing what was intended the better. Indeed the search for intention is justified as a search for the meanings that the framers had in mind for the words used. But it is a search that must be undertaken in humility and with an awareness of its great difficulties See The Intention of the Framers A Note on the Constitutional Interpretation, American Political Science Review, Vol. XLIX, June, 1955. That awarness must make one scrutinize the solemnity of the occasion on which the speech was made, the purpose for which it was made, the preparation and care with which it was made and the reputation and scholarship of the person who made it. A painstaking detailed speech bearing directly on the immediate question might be given the weight of an encyclical and would settle the matter one way or the other but a loose statement made impromptu in the heat of the debate will number be given a decisive role in decision making process. I should have thought that if there was a definitive pronouncement from a person like Dr. Ambedkar in the Constituent Assembly, that would have thrown companysiderable light upon the matter in companytroversy. In the speech relied on by companynsel Dr. Ambedkar is reported to have said Constituent Assembly Debates, Vol. IX, p. 1661 We divide the articles of the Constitution under three categories. The first category is the one which companysists 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 number mentioned in Part III or Article 304, all that is necessary for them is to have two-thirds majority. Then they can amend it. Mr. President Of Members present. Yes. Now we have numberdoubt put certain articles in a third category where for the purposes of amendment the mechanism is somewhat different or double It requires two-thirds majority plus ratification by the States. There is scope for doubt whether the speech has been companyrectly reported. That apart, from the speech as reported, it would seem that according to Dr. Ambedkar, an amendment of the articles mentioned in Part III and Article 368 requires two-thirds majority plus ratification by the States. He seems to have assumed that the provisions of Part III would also fall within the proviso to Article 368 but he never said that Part III was number amendable. That it was his view that all the articles companyld be amended is clear from his other speeches in the Constituent Assembly. He said on November 4, 1948 Constituent Assembly Debates, Vol. VII, p. 43 It is only for amendments of 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 number less than two-thirds of the members of each House present and voting and a majority of the total membership of each House Dr. Ambedkar, speaking on draft Article 25 present Article 32 on December 9, 1948, stressed its importance in the following words Constituent Assembly Debates, Vol. VII, p. 953 If I was asked to name any particular article in this Constitution as the most important-an article without which this Constitution would be a nullity-I companyld number refer to any other article except, this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realized its importance. 1660. But having said that, he proceeded The Constitution has invested the Supreme Court with these rights and these writs companyld number be taken away unless and until the Constitution itself is amended by means left open to the Legislature emphasis added . On November 25, 1949, Dr. Ambedkar refuted the suggestion that Fundamental Rights should be absolute and unalterable. He said after referring to the view of the Jefferson already referred to, that the Assembly has number only refrained from putting a seal of finality and infallibility upon the 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 companyditions as in America or Australia but has provided a most facile procedure for amending the Constitution Constituent Assembly Debates, Vol. XI, pp. 975-976. 1661. It is difficult to understand why the Constitution-makers did number specifically provide for an exception in Article 368 if they wanted that the Fundamental Rights should number be amended in such a way as to take away or abridge them. Article 304 of the draft Constitution companyresponds to Article 368 of the Constitution. Article 305 of the draft Constitution provided Article 305 Reservation of seats for minorities to remain in force for only ten years unless companytinued in operation by amendment of the Constitution Notwithstanding anything companytained in Article 304 of the Constitution, the provisions of this Constitution relating to the reservation of seats for the Muslims, the Scheduled Castes, the Scheduled Tribes or the Indian Christians either in Parliament or in the legislature of any State for the time being specified in Part I of the First Schedule shall number be amended during a period of ten years from the companymencement of this Constitution and shall cease to have effect on the expiration of that period unless companytinued in operation by an amendment of the Constitution. If it had been the intention of the Drafting Committee to exclude Fundamental Rights from the purview of the companystituent power intended to be companyferred by Article 304, following the analogy of Article 305, it companyld have made an appropriate provision in respect of the said rights. 1662. In A.K. Gopalan v. State of Madras 1950 S.C.R. 88 Kania, C.J. said that Article 13 was inserted by way of abundant caution, that even if the article were absent, the result would have been the same. Mr. Palkhiwala submitted that the view of the learned Chief Justice was wrong, that Article 13 in the companytext of Article 368 before the 24th Amend ment, had a function to play in the scheme of the Constitution, namely, that it stated the authorities against which the inhibition in Article 13 2 operated, the categories of law to which the inhibition applied and the effect of a violation of the inhibition. Whether the latter part of Article 13 2 was enacted by way of abundant caution or number would depend upon the answer to the question whether the word law in that article would include an amendment of the Constitution also. If the word law would include amendment of the Constitution, it cannot be said that the latter part of the article was redundant. The dictum of Chief Justice Kania is helpful only to show his reading of the meaning of the word law in the article. Had the learned Chief Justice read the word law in the article as including an amendment of the Constitution also, he would certainly number have said that the article was redundant. Sir Ivor Jennings has taken the view that it was quite unnecessary to have enacted Article 13 2 , as, even otherwise, under the general doctrine of ultra vires, any law which is repugnant to the provisions of the Constitution, would, to the extent of the repugnancy, become void and inoperative See Ivor Jennings, Some Characteristics of the Indian Constitution, pp. 38-39. 1663. However, I think that Article 13 2 was necessary for a different purpose, namely, to indicate the extent of the invasion of the fundamental right which would make the impugned law void. The word abridge has a special companynotation in the American Constitutional jurisprudence and, it is only fair to assume that when the Constitutionmakers who were fully aware of the language of the First Amendment to the United States Constitution, used that expression, they intended to adopt the meaning which that word had acquired there. Every limitation upon a fundamental right would number be an abridgement of it. Whether a specific law operates to abridge a specifically given fundamental right cannot be answered by any dogma, whether of a priori assumption or of mechanical jurisprudence. The Court must arrive at a value judgment as to what it is that is to be protected from abridgement, and then, it must make a further value judgment as to whether the law impugned really amounts to an abridgement of that right. A textual reading might number always be companyclusive. A judge companyfronted with the question whether a particular law abridges a Fundamental Right must, in the exercise of the judicial function, advert, to the moral right embodied in the Fundamental Right and then companye to the companyclusion whether the law would abridge that right In this process, the Court will have to look to the Directive principles in Part IV to see what exactly is the companytent of the Fundamental Right and whether the law alleged to be in detraction or abridgement of the right is really so. The Court would generally be more astute to protect personal rights than property rights. In other words, Fundamental Rights relating to personal liberty or freedom would receive greater protection from the hands of the Court than property rights, as those rights companye with a momentum lacking in the case of shifting economic arrangements. To put it differently, the type of restriction which would companystitute abridgement might be different for personal rights and property rights as illustrated by the doctrine of preferred freedoms. However, it is unnecessary to pursue the matter further for the purpose of this case. 1664. Mr. Palkhivala companytended that even if the word amendment in Article 368 before it was amended is given its widest meaning and the word law in Article 13 2 is assumed number to include an amendment of the Constitution there were and are certain inherent and implied limitations upon the power of amendment flowing from three basic features which must be present in the Constitution of every republic. According to companynsel, these limitations flow from the fact that the ultimate legal sovereignty resides in the people that Parliament is a creature of the Constitution and number a companystituent body and that the power to alter or destroy the essential features of the Constitution belongs only to the people, the ultimate legal sovereign. Counsel submitted that if Parliament has power to alter or destroy the essential features of the Constitution, it would cease to be a creature of the Constitution and would become its master that numberconstituted body like the Amending Body can radically change the Constitution in such a way as to damage or destroy the basic Constitutional structure, as the basic structure was decided upon by the people, in the exercise of their companystituent revolutionary power. Counsel also argued that it is Constitutionally impermissible for one companystituent assembly to create a second perpetual companystituent assembly above the nation with power to alter its essential features and that Fundamental Rights companystitute an essential feature of the Constitution. 1665. The basic premise of companynsels argument was that the ultimate legal sovereignty under the Constitution resides in the people. The preamble to the Constitution of India says that We the people of Indiaadopt, enact and give unto ourselves this Constitution. Every one knows that historically this is number a fact. The Constitution was framed by an assembly which was elected indirectly on a limited franchise and the assembly did number represent the vast majority of the people of the companyntry. At best it companyld represent only 28.5 per cent of the adult population of the provinces, let alone the population of the Native States See Granville Austin, The Indian Constitution 1972 , p. 10 and Appendix I, pp. 331-332, And who would dare maintain that they alone companystituted the people of the companyntry at the time of framing the Constitution? As to who are the people in a Country, see the Chapter The People in Modern Democracies by Bryce, Vol. 1, pp. 161-169 The Constituent Assembly derived its legal companypetence to frame the Constitution from Section 8 1 of the Indian Independence Act, 1947. The British Parliament, by virtue of its legal sovereignty over India, passed the said enactment and invested the Assembly with power to frame the Constitution. Whatever might be the Constitutional result flowing from the doctrine that sovereignty is inalienable and that the Indian Independence Act itself companyld have been repealed by Parliament, independence, once granted, cannot be revoked by an erstwhile sovereign at any rate, such revocation will number be recognised by the Courts of the companyntry to which independence was granted. What makes a transfer of sovereignty binding is simply the possession on the part of the transferee of power and force sufficient to prevent the transferor from regaining it See V. Willoughby, Nature of state 1896 , p. 229 also Diceys Law of the Constitution 5th ed, 1897 , pp. 65n and 66n. The assertion by some of the makers of the Constitution that the Constitution proceeded from the people can only be taken as a rhetorical flourish, probably to lay its foundation on the more solid basis of popular will and to give it an unquestioned supremacy, for, ever since the days of Justinian, it was thought that the ultimate legislative power including the power to frame a Constitution resides in the people, and, therefore, any law or Constitution must mediately or immediately proceed from them. It is customary numberadays to ascribe the legality as well as the supremacy of the Constitution-the one is, in truth, but the obverse of the other-exclusively to the fact that, in its own phraseology, it was ordained by the people of the United States. Two ideas are thus brought into play. One is the so-called positive companyception of law as a general expression merely for the particular companymands of a human law-giver, as a series of acts of human will the other is that the highest possible embodiment of human will, is the people. The same two ideas occur in companyjunction in the oft-quoted next of Justinians Institutes Whatever has pleased the prince has the force of law, since the Roman people by the lex regia enacted companycerning his imperium have yielded up to him all their power and authority. The sole difference between the Constitution of the United States and the imperial legislation justified in this famous text is that the former is assumed to have proceeded immediately from the people, while the latter proceeded from a like source only mediately See Edward Gorwin, The Higher Law Background of American Constitutional Law, pp. 3-4. 1666. It is said that the assertion in the preamble that it was the people who enacted the Constitution raises an incontravertible presumption and a Court is precluded from finding out the truth. There is a similar preamble to the Constitution of the U.S.A. Yet, when Chief Justice Marshall was called upon to decide the question whether that Constitution proceeded from the people, he did number seek shelter under the preamble by asserting that the Court is companycluded by the recital therein, but took pains to demonstrate by referring to historical facts that the Constitution was ratified by the people in the State companyventions and, therefore, in form and substance, it proceeded from the people themselves See McCulloch v. Maryland, 4 Wheaton 316 1819 . It does number follow that because the people of India did number frame the Constitution or ratified it the Constitution has numberlegal validity. The validity of a Constitution is one thing the source from which it proceeds is a different one. Apart from its legal validity derived from the Indian Independence Act, its numberms have become efficacious and a Court which is a creature of the Constitution will number entertain a plea of its invalidity. If the legal source for the validity of the Constitution is number that it was framed by the people, the amending provision has to be companystrued on its own language, without reference to any extraneous companysideration as to whether the people did or did number delegate all their companystituent power to the Amending Body or that the people reserved to themselves the Fundamental Rights. 1667. Let me, however, indulge in the legal fiction and assume, as the preamble has done, that it was the people who framed the Constitution. What follows? Could it be said that, after the Constitution was framed, the people still retain and can exercise their sovereign companystituent power to amend or modify the basic structure or the essential features of the Constitution by virtue of their legal sovereignty? 1668. According to Austin, a person or body is said to have legal sovereignty, when he or it has unlimited law-making power and that there is numberperson or body superior to him or it. Perhaps, it would be companyrect to say that the possession of unlimited law-making power is the criterion of legal sovereignty in a State, for, it is difficult to see how there can be any superior to a person or group that can make laws on all subjects since that person or group would pass a law abolishing the powers of the supposed superior. The location of sovereignty in a quasi-federal Constitution like ours is a most difficult task for any lawyer and I shall number attempt it. Many writers take the view that sovereignty in the Austinian sense does number exist in any State See W.J. Ress, Theory of Sovereignty Re-stated in the book In Defense of Sovereignty by W.J. Stankiewicz, p. 209 and that, at any rate, in a Federal State, the companycept of sovereignty in that sense is incapable of being applied See Salmonds Jurisprudence, 7th ed., p. 531. This Court has said in State of West Bengal v. Union of India 1964 1 S.C.R. 371, 396-398 that the legal theory on which the Constitution was based was the withdrawal or resumption of all the powers of sovereignty into the people of this companyntry and that theLegal sovereignty of the Indian nation is vested in the people of India, who, as stated by the preamble, have solemnly resolved to companystitute India into a Sovereign Democratic Republic I am number quite sure of the validity of the assumption implicit in this dictum. The Supreme Court of U.S.A. has held that sovereignty vests in the people See Chisholm v. Georgia 1973 2 Dallas 419, 470-471. The same view has been taken by writers like Jameson, Willis, Wilson and others, But it is difficult to understand how the unorganised mass of the people can legally be sovereign. In numbercountry, except perhaps in a direct democracy, can the people en masse be called legally sovereign. This is only to put more explicitly what Austin meant when he said that political power must be in a determinate person or body of persons, for, the people at, large, the whole people, as distinct horn particular person or persons, are incapable of companycerted action and hence, of exercising political power and therefore of legal supremacy See From John Austin to John C. Hurd by Irving B. Richman in Harward Law Review, Vol. 14, p. 364. When the purported sovereign is anyone but a single actual person, the designation of him must include the statement of rules for the ascertainment of his will, and these rules, since their observance is a companydition of the validity of his legislation, are Rules of law logically prior to him It is number impossible to ascertain the will of an individual without the aid of rules he may be presumed to mean what he says, and he cannot say more than one thing at a time. But the extraction of a precise expression of will from a multiplicity of human beings is, despite all the realists say, an artificial process and one which cannot be accomplished without arbitrary rules. It is, therefore, an incomplete statement to say that in a state such and such an assembly of human beings is sovereign. It can only be sovereign when acting in a certain way prescribed by law. At least some rudimentary manner and form is demanded of it the simultaneous incoherent cry of a rabble, small or large, cannot be law, for it is unintelligible See Latham, What is an Act of Parliament 1939 Kings Counsel, p. While it is true that the sovereign cannot act otherwise than in companypliance with law, it is equally true that it creates the law in accordance with which it is to act See Orfield, The Amending of the Federal Constitution, p. 155. And what is the provision in the Constitution or the law for the people to act as legal sovereign or as regards the manner and form when they act as legal sovereign? 1669. The supremacy enjoyed by the Constitution has led some to think that the document must be regarded as sovereign. They talk about the government of laws and number of men but sovereignty, by definition, must be vested in a person or body of persons. The Constitution itself is incapable of action. Willoughby has said that sovereignty of the people, popular sovereignty and national sovereignty cannot accurately be held to mean that, under an established government, the sovereignty remains in the people. It may mean, however, that the Constitutional jurisprudence of the State to which it is applied is predicated upon the principle that numberpolitical or individual or organ of the government is to be regarded as the source whence, by delegation, all other public powers are derived, but that, upon the companytrary, all legal authority finds its original source in the whole citizen body or in an electorate representing the governed See Willoughby, Fundamental Concepts of Public Law, pp. 99-100. Probably, if sovereignty is dropped as a legal term and viewed as a term of political science, the view of the Supreme Court of the U.S.A. and the writers who maintain that the people are sovereign might be companyrect. No companycept has raised so many companyflicting issues involving jurists and political theorists in so desperate a maze as the genuine and proper meaning of sovereignty. 1670. Seeing, however, that the people have numberConstitutional or legal power assigned to them under the Constitution and that by virtue of their political supremacy they can unmake the Constitution only by a method number sanctioned by the juridical order, namely, revolution, it is difficult to agree with the proposition of companynsel that the legal sovereignty under the Constitution resides in the people, or, that as ultimate legal sovereign the people can Constitutionally change the basic structure of the Constitution even when the Constitution provides for a specific mechanism for its amendment. In the last, analysis, perhape, it is right to say that if sovereignty is said to exist in any sense at all, it must exist in the Amending Body, for, 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 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 companypetence as well as that of Ors. Willoughby, The Nature of the State 1928 , p. 197. In Germany, the publicists have developed a similar theory known as the kompetenz kompetenz theory See Merriam, History of the Theory of Sovereignty since Rosseau 1900 , 190- 196. 1671. This, however, does number mean that the people have numberright to frame the Constitution by which they would be governed. Of the people as well as the body politic, all that one can say is, number that they are sovereign, but that they have the natural right to full autonomy or to self-government. The people exercise this right when they establish a Constitution see Jacques Maritain, Man and the State, p. 25. And, under our Constitution, the people have delegated the power to amend the instrument which they created to the Amending Body. 1672. When a person holds a material good, it cannot be owned by another. He cannot give it to another without his losing possession of it and there can only be a question of transfer of ownership or a donation. But, when it is a question of a moral or spiritual quality such as a right or power, one can invest another with a right or power without losing possession of it, if that, man receives it in a vicarious manner, as a vicar of the man who transferred it. The people are possessed of their right to govern themselves in an inherent and permanent manner, their representatives are invested with power which exists in the people, but in a vicarious manner see Jacques Maritain, Man and the State, pp. 134-135. 1673. Delegation does number imply a parting with powers of one who grants the delegation but points rather to the companyferring of an authority to do things which otherwise that person would have to do himself. It does number mean that the delegating person parts with the power in such a way as to denude himself of his rights See Huth v. Clarke 1890 25 B.D. 391, 395 also John Willis, Delegates number potest delegare, 21 Candian Bar Review, p. 257. 1674. I will assume that the people, by designating their representatives and by transmitting to them the power to amend the Constitution, did number lose or give up possession of their inherent, companystituent power. There was great companytroversy among the civilians in the Middle Ages whether, after the Roman people had Transferred their authority to legislate to the emperor, they still retained it or companyld reclaim it See Carlyle, A History of Medieval Political Theory in the West Vol. VI, pp. 514-515. There is always a distinction between the possession of a right or power and the exercise of it. It was in the exercise of the companystituent power that the people framed the Constitution and invested the Amending Body with the power to amend the very instrument they created with a super-added power to amend that very power. The instrument they created, by necessary implication, limits the further exercise of the power by them, though number the possession of it. The Constitution, when it exists, is supreme over the people and as the people have voluntarily excluded themselves from any direct or immediate participation in the process of making amendment to it, and have directly placed that power in their representatives without reservation, it is difficult to understand how the people can juridically resume the power to companytinue to exercise it See Dodge v. Woolsey 1856 18 How. 331, 348. It would be absurd to think that there can be two bodies for doing the same thing under the Constitution. It would be most incongruous to incorporate in the Constitution a provision for its amendment, if the companystituent power to amend can also be exercised at the same time by the mass of the people, apart from the machinery provided for the amendment. In other words, the people having delegated the power of amendment, that power cannot be exercised in any way other than that perscribed number by any instrumentality other than that designated for that purpose by the Constitution. There are many Constitutions which provide for active participation of the people in the mechanism for amendment either by way of initiative or referendum as in Switzerland, Australia and Eire. But, in our Constitution, there is numberprovision for any such popular device and the power of amendment is vested only in the Amending Body. 1675. It is said that it is within the power of the people who made the Constitution to unmake it, that it is the creature of their own will and exists only by their will See Cohens v. Virginia 6 Wheat 19 U.S. 264, 381. This dictum has numberdirect relevancy on the question of the power of the people to amend the Constitution. It only echoes the philosophy of John Locke that people have the political right to revolution in certain circumstances and to frame a Constitution in the exercise of their revolutionary companystituent power. 1676. When the French political philosophers said that the nation alone possesses the companystituent power, and an authority set up by a Constitution created by the nation has numberconstituent power apart from a power to amend that instrument within the lines originally adopted by the people, what is meant is that the nation cannot part with the companystituent power, but only the power to amend the Constitution within the original scheme of the Constitution in minor details. Some jurists refer to these two powers, namely, the companystituent power and the amending power as distinct. According to Carl J. Friedrich, the companystituent power is the power which seeks to establish a Constitution which, in the exact sense, is to be understood the de-jacto residuary power of a number inconsiderable part of the companymunity to change or replace an established order by a new Constitution. The companystituent power is the power exercised in establishing a Constitution, that is the fundamental decision on revolutionary measures for the organisation and limitation of a new government. From this companystituent power must be distinguished the amending power which changes an existing Constitution in form provided by the Constitution itself, for the amending power is itself a companystituted authority. And he further points out that in French Constitutional Law the expression pouvoir companystituant is often used to describe the amending authority as well as the companystituent power, but the expression companystituent power used by him is number identical with the pouvoir companystituant of the French Constitutional Law See Carl J. Friedrich, Constitutional Government and Politics 1937 , pp. 113, 118, 162 521. It is, however, unnecessary to enter this arid tract of what Lincoln called pernicious abstraction where numbergreen things grow, or resolve the metaphysical niceties, for under our Constitution, there is numberscope for the companystituent power of amendment being exercised by the people after they have delegated power of amendment to the Amending Body. To what purpose did that instrument give the Amending Body the power to amend the amending power itself, unless it be to companyfer plenary power upon the Amending Body to amend all or any of the provisions of the Constitution? It is numberdoubt true that some German thinkers, by way of protest against indiscriminate use of the amending power under the Weimar Constitution of Germany, asserted that the power of amendment is companyfined to alteration within the Constitutional text and that it cannot be used to change the basic structure of the Constitution. But, as I said, to say that a nation can still exercise unlimited companysituent power after having framed a Constitution vesting plenary power of amendment under it in a separate body, is only to say that the people have the political power to change the existing order by means of a revolution. But this doctrine cannot be advanced to place implied limitations upon the amending power provided in a written Constitution. 1677. It is, therefore, only in a revolutionary sense that one can distinguish between companystituent power and amending power. It is based on the assumption that the companystituent power cannot be brought within the framework of the Constitution. To be sure, the amending power is set up in the hope of anticipating a revolution by legal change and, therefore, as an additional restraint upon the existing government. But should the amending power fail to work, the companystituent power may emerge at the critical point See Carl J. Friedrich, Constitutional Government and Democracy 1950 , p. 130. The proposition that an unlimited amending authority cannot make any basic change and that the basic change can be made only by a revolution is something extras legal that numberCourt can companyntenance it. In other words, speaking in companyventional phraseology, the real sovereign, the hundred per cent sovereign-the people-can frame a Constitution, but that sovereign can companye into existence thereafter unless otherwise provided, only by revolution. It exhausts itself by creation of minor and lesser sovereigns who can give any companymand. And, under the Indian Constitution, the original sovereign-the people-created, by the amending clause of the Constitution, a lesser sovereign, almost companyxtensive in power with itself. This sovereign, the one established by the revolutionary act of the full or companyplete sovereign has been called by Max Radin the pro-sovereign, the holder of the amending power under the Constitution. The hundred per cent sovereign is established only by revolution and he can companye into being again only by another revolution See Max Radin, Intermittent Sovereign, 39 Yale Law Journal, 514. As Wheare clearly puts it, once the Constitution is enacted, even when it has been submitted to the people for approval, it binds thereafter, number only the institutions which it establishes, but also the people themselves. They may amend the Constitution, if at all, only by the method which the Constitution itself provides See Wheare, Modern Constitutions 1966 , p. 62. This is illustrated also in the case of the sovereign power of the people to make laws. When once a Constitution is framed and the power of legislation which appertains to the people is transferred or delegated to an organ companystituted under the Constitution, the people cannot thereafter exercise that power. The legal assumption that sovereignty is ultimately vested in the people affords numberlegal basis, for the direct exercise by the people of any sovereign power, whose direct exercise by them has number been expressly or impliedly reserved. Thus the people possess the power of legislating directly only if their Constitution so provides See Rottschaefer on Constitutional Law 1939 , p. 8 1678. It is said that although the Constitution does number provide for participation of the people in the process of amendment, there is numberhing in the Constitution which prohibits the passing of a law under the residuary entry 97 of List I of the Seventh Schedule for companyvoking a companystituent assembly for ascertaining the will of the people in the matter of amendment of Fundamental Rights. Hoar says The whole people in their sovereign capacity, acting through the forms of law at a regular election, may do what they will with their own frame of government, even though that frame of government does number expressly permit such action, and even though the frame of government attempts to prohibit such action Hoar Constitutional Convention Their Nature, Power and Limitations, p. 115. Again, he says Thus we companye back to the fact that all companyentions are valid if called by the people speaking through the electorate at a regular election. This is true regardless of whether the Constitution attempts to prohibit or authorize them, or is merely silent on the subject Their validity rests number upon Constitutional provisions, number upon legislative act, but upon the fundamental sovereignty of the people themselves Hoar, Constitutional Convention Their Nature, Power and Limitations, p. 52. As to this I think the answer given by Willoughby is sufficient. He said The position has been quite companysistently taken that Constitutional amendments or new Constitutions adopted in modes number provided for by the existing Constitutions cannot be recognized as legally valid unless they have received the formal approval of the old existing government. Thus, in the case of the State of Rhode Island, the old Constitution of which companytained numberprovision for its own amendment, the President of the United States refused to recognize de jure a government established under a new Constitution which, without the approval of the old government, had been drawn up and adopted by a majority of the adult male citizens of that State. But, when, somewhat later, a new Constitution was adopted in accordance with provisions which the old government laid down and approved, it was, and has since been held a valid instrument both by the people of the State and by the National Government of the United States Willoughby, The Fundamental Concepts of Public Law, p. 96. 1679. I think it might be open to the Amending Body to amend Article 368 itself and provide for referendum or any other method for ascertaining the will of the people in the matter of amendment of Fundamental Rights or any other provision of the Constitution. If the basic and essential features of the Constitution can be changed only by the people, and number by a companystituted authority like the Amending Body, was it open to the Amending Body, or, would it be open to the Amending Body today to amend Article 368 in such a way as to invest the people with that power to be exercised by referendum or any other popular device ? If companynsel for the petitioner is right in his submission that the power to amend the amending power is limited, this cannot be done, for the Constitution would lose its identity by making such a radical change in the Constitution of the Amending Body, and, therefore, there would be implied limitation upon the power to amend the amending power in such a way as to change the locus of the power to amend from the Amending Body as companystituted to any other body including the people. The result is that ex-hypothesi, under Article 368 there was, or is, numberpower to amend the Fundamental Rights and the other essential or basic features in such a way as to destroy or damage their essence or companye. Nor can the article be amended in such a way as to invest the people-the legal sovereign according to companynsel for the petitioner-with power to do it. This seems to me to be an impossible position. 1680. Counsel for the petitioner submitted that the preamble to the Constitution would operate as an implied limitation upon the power of amendment, that the preamble sets out the great objectives of the people in establishing the Constitution, that it envisages a sovereign democratic republic with justice, social, economic and political, liberty of thought, belief and expression, equality of status and opportunity and fraternity as its fulcrums and that numbersucceeding generation can amend the provisions of the Constitution in such a way as to radically alter or modify the basic features of that form of government or the great objectives of the people in establishing the Constitution. Counsel said that the preamble cannot be amended as preamble is number a part of the Constitution, and so, numberamendment can be made in any provision of the Constitution which would destroy or damage the basic form of government or the great objectives. The proceedings in the Constitutent Assembly make it clear that the preamble was put to vote by a motion which stated that the preamble stands part of the Constitution and the motion was adopted See the proceedings of the Constituent Assembly dated October 17, 1949, Constituent Assembly Debates, Vol. X, p. 429. Article 394 of the Constitution would show that the preamble, being a part of the provisions of the Constitution, came into operation on the 26th of January, 1950, number having been explicitly stated in the article that it came into force earlier. And there seems to be numbervalid reason why the preamble, being a part of the Constitution, cannot be amended. 1681. A preamble, as Dr. Wynes said, represents, at the most only an intention which an Act seeks to effect and it is a recital of a present intention See Wynes, Legislative, Executive and Judicial Powers in Australia, 4th ed., p. 506 . In the Berubari Case 1960 3 S.C.R. 250, 281-282 it was argued that the preamble to the Constitution clearly postulates that like the democratic republican form of government, the entire territory of India is beyond the reach of Parliament and cannot be affected either by ordinary legislation or even by Constitutional amendment, but the Court said it is number easy to accept the assumption that the first part of the preamble postulates a very serious limitation on one of the very important attributes of sovereignty itself. This case directly negatived any limitation of what is generally regarded as a necessary and essential attribute of sovereignty on the basis of the objectives enshrined in the preamble. 1682. Storys view of the function of the preamble, that it is a key to open the mind of the makers, as to the mischiefs which are to be remedied and the objects which are to be accomplished by the provisions of the Act or a Constitution is number in dispute. There is also numberdispute that a preamble cannot companyfer any power per se or enlarge the limit of any power expressly given number can it be the source of implied power. Nor is it necessary to join issue on the proposition that in case of ambiguity of the enacting part, an unambiguous preamble may furnish aid to the interpretation of the enacting part. 1683. The broad companycepts of justice, social, economic and political, equality and liberty thrown large upon the canvas of the preamble aseternal verities are mere moral adjurations with only that companytent which each generation must pour into them a new in the light of its own experience. An independent judiciary cannot seek to fill them from its own bosom as, if it were to do so, in the end it will cease to be independent. And its independence will be well lost, for that bosom is number ample enough for the hopes and fears of all sorts and companyditions of men, number will its answers be theirs. It must be companytent to stand aside from these fateful battles as to what these companycepts mean and leave it to the representatives of the people. See Learned Hand, The Spirit of Liberty, p. 125. 1684. To Hans Kelsen, justice is an irrational ideal, and regarded from the point of rational companynition, he thinks there are only interests and hence companyflict of interest. Their solution, according to him, can be brought about by an Order that satisfies one interest at the expense of the other or seeks to achieve a companypromise between opposing interests See Kelsen, General Theory of Law and State 1946 , p. 13. Allen said that the term social justice has numberdefinite companytent that it means different things to different persons. Allen, Aspects of Justice, p. 31. Of liberty, Abraham Lincoln said, that the world never has had a good definition of it. The companycept of equality appears to many to be a myth and they say that if the companycept is to have any meaning in social and economic sphere the State must discriminate in order to make men equal who are otherwise unequal. It does number follow that because these companycepts have numberdefinite companytours. They do number exist, for, it is a perennial fallacy to think that because something cannot be cut and dried or nicely weighed or measured, therefore it does number exist See Lord Reid in Ridge v. Baldwin 1964 A.C. 40, 64. But for a companyntry struggling to build up a social order for freeing its teeming millions from the yoke of proverty and destitution, the preamble cannot afford any clue as to the priority value of these companycepts inter se. Justice Johnson, with one of his flashes of insight, called the science of government the science of experiment See Anderson v. Dunn 6 Wheat 204, 206 U.S. 1821. And for making the experiment for building up the social order which the dominant opinion of the companymunity desires, these Delphic companycepts can offer numbersolution in respect of their priority value as among themselves. They offer numberguide in what proportion should each of them companytribute, or which of them should suffer subordination or enjoy dominance in that social order. How then can one of them operate as implied limitation upon the power of amendment when the object of the amendment is to give priority value to the other or others? 1685. Mr. Palkhivala in elaborating his submission on implied limitations said that in a Constitution like ours there are other essential features besides the Fundamental Rights, namely, the sovereignty and integrity of India, the peoples right to vote and elect their representatives to Parliament or State legislatures, the republican form of government, the secular State, free and independent judiciary, dual structure of the Union, separation of the executive, legislative and judicial powers, and so on, and for changing these essential features, the Parliament being a companystituted authority, has numberpower. 1686. Whenever the question of implied limitation upon the power of amendment was raised in the U.S.A. the Supreme Court has number companyntenanced the companytention, 1687. In Leser v. Garnett 258 U.S. 130 the U.S. Supreme Court upheld the validity of the 19th Amendment, rejecting the companytention that the power of amendment companyferred by the federal Constitution did number extend to that amendment because of its character Emphasis added as so great an addition to the electorate, if made without the States companysent, destroys its autonomy as a political body Emphasis added. In U.S. v. Sprague 282 U.S. 716, the Supreme Court rejected the companytention that an amendment, companyferring on the United States, power over individuals, should be ratified in companyventions instead of by State Legislatures. The argument before the Court was that although Congress has absolute discretion to choose the one or the other mode of ratification, there was an implied limitation upon that discretion when rights of individuals would be directly affected and that in such a case the amendment must be ratified by companyvention. The Court said that there was numberlimitation upon the absolute discretion of the Congress to have the amendment ratified either by companyventions or State legislatures. In, the National Prohibition Cases See Rhode Island v. Palmer 253 U.S. 350 which upheld the validity of the 18th Amendment to the United States Constitution, the Supreme Court brushed aside the argument that there are implied limitations upon the power of amendment. Although the majority judgment gave numberreasons for its companyclusion, it is permissible to look at the elaborate briefs filed by companynsel in the several cases and oral arguments in order to understand what was argued and what was decided See U.S. v. Sprague 282, U.S. 716, 733 The arguments advanced in National Prohibition Cafes before the Supreme Court were that an amendment is an alteration or improvement of that which is already companytained in the Constitution, that the Amendment was really in the nature of a legislation acting directly upon the rights of individual, that since the Constitution companytemplated an indestructible Union of States, any attempt to change the fundamental basis of the Union was beyond the power delegated to the amending body by Article V and that the Amendment invaded the police power which inheres in the State for protection of health, safety and morals of their inhabitants. The only inference to be drawn from the Court upholding the validity of the Amendment is that the Court did number companyntenance any of the arguments advanced in the case. 1688. The result of the National Prohibition Cases See Rhode Island v. Palmer 253 U.S. 350 seems to be that there is numberlimit to the power to amend the Constitution except that a State may number be deprived of its equal suffrage in the Senate. This means that by action of two-third of both Houses of Congress and of the legislatures in three-fourth of the States, all the powers of the national, government companyld be surrendered to the State and all the reserved powers of the States companyld be transferred to the Federal Government See Burdick, The Law of the American Constitution, pp. 44-49. 1689. Dodd, speaking about the effect of the decision of the Supreme Court in National Prohibition Cases See Rhode Island v. Palmer 253 U.S. 350 said that the Court has necessarily rejected substantially all of the arguments presented in favour of the implied limitations upon the amending power, although this statement does number necessarily go to the extent of denying all limitation other than those clearly expressed in the Constitutional language itself See 30 Yale Law Journal 329. Article Five of Constitution prohibits any amendment by which any State without its companysent shall be deprived of its equal suffrage in the Senate. Beyond this there appears to be numberlimit to the power of amendment. This, at any rate is the result of the decision in the so-called National Prohibition Cases See Thomas M. Colley, The General Principles of Constitutional Law in the U.S.A., 4th ed., pp. 46-47. 1690. In Schneiderman v. U.S. 320 U.S. 118, 137-145 Justice Murphy, after referring to National Prohibition Cases said that Article V companytains procedural provisions for Constitutional change by amendment without any present limitation whatsoever except that relating to equal suffrage in the Senate. 1691. In U.S. v. Dennis 183 Federal Reporter 2d., 201 Learned Hand was of the opinion that any amendment to Constitution passed in companyformity with the provision in Constitution relating to amendments is as valid as though the amendment had been originally incorporated in it, subject to the exception that numberState shall be denied its equal suffrage in the Senate. 1692. The latest authority is the obiter dictum or Douglas, J. for the majority of the Supreme Court in Whitehill v. Elkins 1967 389 U.S. 54, 57 If the Federal Constitution is our guide, a person who might wish to alter our form of government may number be cast into the outer darkness. For the Constitution prescribes the method of alteration by the amending process in Article V and while the procedure for amending it is restricted, there is numberrestraint on the kind of amendment that may be offered. 1693. Perceptive writers on the Constitution of the U.S.A. have also taken the view that there are numberimplied limitations whatever upon the power of amendment, that an amendment can change the dual form of government or the Bill of Rights and that the framers of the Constitution did number intend to make an unalterable framework of Government in which only the minor details companyld be changed by amendment See Willis, Constitutional Law 1936 , pp. 123-124 Orfield, The Amending of the Federal Constitution 1942 , p. 99 Livingstone, Federalism and Constitutional Change 1956 , pp. 240-241 Rottschaefer, Constitutional Law, pp. 8-9 John W. Burgess, Political Science and Comparative Constitutional Law, Vol. I, p. 153 Colley, Constitutional Limitations, pp. 41-43 D.O. McGovney, Is the Eighteenth Amendment Void Because of Its Contents , Columbia Law Review, Vol. 20, May 1920 No. 5 W.F. Dodd, Amending the Federal Constitution, 30 Yale Law Journal 329 W.W. Willoughby, Constitutional Law of the United States, 2nd ed., Vol. 1, 598. 1694. In Ryans Case 1935 Irish Reports, 170, the Supreme Court of Ireland has occasion to discuss and decide two questions 1 the meaning to be given to the word amendment in Article 50 of the Irish Constitution which provided for the amendment of the Constitution and 2 whether there are any implications to be drawn from the Constitution which would cut down the scope of the amendment which companyld be made under Article 50. I have already dealt with the decision in the case with respect to the first point. 1695. As regards the second point, Kennedy, C.J. was of the opinion that there were certain implied limitations upon the power of amendment while the other two learned judges held that there were numbersuch limitations. However, it is number necessary to deal with the suggested implied limitations relied on by the learned Chief Justice in the light of his observation the only argument advanced in support of this position is that the power to amend the Constitution gives power to amend the power itself. It certainly does number say so. One would expect if it were so intended that the power would express that intention by the insertion of a provision to that effect by some such words as including amendment of this power of amendment, but numbersuch intention is expressed and there is numberhing from which it can be implied. There might be some justification for the view of Kennedy, C.J. that power of amending a Constitution is something outside and companylateral to the Constitution itself and that unless there is express power to amend the amending power, the amending power cannot be enlarged. Alf Ross, the Scandinavian Jurist, has said that in the United States the highest authority is the companystituent power companystituted by the rules in Article V of the Constitution. These rules embody the highest ideological presupposition of the American Law system. But they cannot be regarded as enacted by any authority and they cannot be amended by any authority. Any amendment of Article V of the Constitution which, in fact, is carried out, is an a-legal fact and number the creation of law by way of procedure that has been instituted Alf Ross, Law and Justice, p. 81. Now, whereas Article 50 of the Irish Constitution did number companytain any power to amend that article, proviso c of Article 368 makes it clear that Article 368 itself can be amended and so, the whole line of the reasoning of Kennedy, C.J. has numberrelevance for our purpose. It is interesting to numbere that in Moore v. Attorney General for the Irish State 1935 A.C. 484 where the Constitutional amendment made by the Irish Parliament in 1933 Amendment No. 22 was challenged, Mr. Green companyceded before the Privy Council that Amendment No. 16 of 1929 the amendment challenged in Ryans Case was regular. The validity or otherwise of Amendment No. 16 was vital for the success of his clients case and the companycession of companynsel was, in their Lordships view, rightly made. 1696. The decision of the Privy Council in Liyanage v. the Queen 1967 1 A.C. 259 was relied on by the petitioner to show that there can be implied limitation upon legislative power. The question for companysideration in that case was whether Criminal Law Special Provisions Act No. 1 of 1962 passed by Parliament of Ceylon was valid. The Act purported ex-post facto to create new offences and to alter the rules of evidence and the criminal procedure obtaining under the general law at the time of the companymission of the offence and also to impose enhanced punishment. The appellants companytended that the Act was passed to deal with the trial of the persons who partook in the abortive companyp in question and the arguments before the Privy Council were that the Act of 1962 was companytrary to fundamental principles of justice in that it was directed against individuals, that it ex-post facto created crimes and their punishments, and that the Act was a legislative plan to secure the companyviction of these individuls and this companystituted an usurpation of the judicial power by the legislature. 1697. The Privy Council rejected the companytention that the powers of the Ceylon Legislature companyld be cut down by reference to vague and uncertain expressions like fundamental principles of British Law, and said that although there are numberexpress provisions in the Ceylon Constitution vesting judicial power in the judiciary, the judicial system in Ceylon has been established by the Charter of Justice of 1833, that the change of sovereignty did number produce any change in the functioning of the judicature, that under the provisions of the Ceylon Constitution there is a broad separation of powers and that, generally speaking, the legislature cannot exercise judicial power in spite of the difficulty occasionally felt to tell judicial power from legislative power. Even since the days when John Locke wrote his Second Treatise on Civil Government See the Chapter, Of the Extent of Legislative Power., it was companysidered axiomatic that the legislative power does number include judicial power. And I think what the Privy Council said in effect was that the power to pass a law for peace, order, or good government under Section 29 1 of the Constitution of Ceylon would number take in a power to settle a companytroversy between Richard Doe and John Doe in respect of Black Acre and label it a law. It is a bit difficult to see how the doctorine of implied limitation has anything to do with the well understood principle that the power to pass law would number include judicial power As to the distinction between legislative power and judicial power, see the observation of Holmes in Prentis v. Atlantic Coast Line Co. 1908 , 211 U.S. 210. 1698. Nor am I able to understand how the doctrine of implied limitations can draw any juice for its sustenance from the fact that President or Governor is bound to act according to the advice of the Council of Ministers, although the expression aid and advise taken by itself, would number denote any companypulsion upon the President or Governor to act according to the advice. The expression, when it was transplanted into our Constitution from the English soil, had acquired a meaning and we cannot read it divested of that meaning. 1699. The doctrine of implied limitation against the exercise of a power once ascertained in accordance with the rules of companystruction was rejected by the Privy Council in Web v. Outrim 1907 A.C. 81 P.C. . 1700. Counsel for the petitioner relied on certain Canadian Cases to support his proposition that there are implied limitations upon the power of amendment. In Alberta Press Case 1938 2 D.L.R. 81 Chief Justice Sir Lyman P. Duff said that the British North America Act impliedly prohibits abrogation by provincial legislatures of certain important civil liberties. He said that the reason was that the British North America Act requires the eablishment of one Parliament for Canada and since the term parliament means, when interpreted in the light of the preambles reference to a companystruction similar in principle to that of the United Kingdom, a legislative body elected and functioning in an atmosphere of free speech, and that a legislation abrogating freedom of speech in a particular province would be an interference with the character of the federal parliament, and therefore, ultra vires the provincial legislature. This dictum logically involves a restriction of the powers of the dominion parliament also as was pointed out by Abbott, J. in the Padlock Law case See Switzman v. Elbling, 1957 7 D.L.R. 337. In that case he expressed the view, although it was number necessary so to decide, that parliament itself companyld number abrogate the right of discussion and debate since the provisions of the British North America Act are as binding on Parliament as on the provincial legislatures. 1701. In Saumur v. City Quebec 1953 4 D.L.R. 641 the preamble of the British North America Act was referred to as supporting the Constitutional requirement of the religious freedom especially by Rand, J. The basic issue in that case was whether or number the Provinces had legislative authority to enact law in relation to the religious freedom, and whether the city of Quebec was justified by one of its bye-laws under a Provincial Act from prohibiting the distribution of booklets etc. in the streets without the written permission of the Chief of Police. The petitioner, a member of Jehovahs Witnesses companytended that the right to distribute booklets was guaranteed by the statement in the preamble to the British North America Act and that freedom of religion was secured by the Constitution of the United Kingdom, and that fundamental principles of that Constitution were made a part of the Canadian Constitution by implication of the preamble and accordingly the impugned Quebac bye-law was null and void. This companytention was rejected by a majority of the Court. Rinfret, C.J.C., Taschereau, J. companycurring, stated that the Privy Council, on several occasions had declared that powers distributed between Parliament and the Legislatures companyered absolutely all the powers which Canada companyld exercise as a political entity. Kerwin, J. stated that the British North America Act effected a companyplete division of legislative powers. Cartwright, J. Fauteux, J. companycurring went even further He said that there were numberrights possessed by the citizens of Canada which companyld number be modified by either Parliament or the Legislatures of the Provinces. Rand, J. found some support in the preamble for freedom of speech, but did number mention freedom of religion in this companytext. Estey and Locke, JJ. assume that any topic of internal self-government was withheld from derived from it. 1702. It should be numbered the view that neither the provinces number the dominion Parliament companyld legislate on civil liberties so as to affect them adversely is companytrary to the view of the Privy Council that numbertopic of internal self-Government was withheld from Canada. It would be subversive of the entire scheme and policy of the Act to assume that any topic of internal self-government was withheld from Canada A.G. Ontario v. A.G. Canada 1912 A.C. 571. 1703. The main objection however to the proposition that the British North America Act companytains an implied bill of rights is that it is inconsistent with the doctrine of parliamentary supremacy. If the Constitution is similar in principle to that of Great Britain, it must follow that the legislature is supreme as that is the fundamental law of the British Constitution. Therefore numbersubject would be beyond the legislative companypetence of both parliament and provincial legislatures. Whether there are any implied limitations upon the power of parliament or number, it is clear that the dictum of Abbott, J. in Switzmans case is based on numberhigh authority as there is numberhing in the British North America Act to indicate that civil liberties are beyond the legislative reach of the parliament and the provincial legislatures. There was numberexpress guarantee of civil liberties in the British North America Act, numberhing companyparable to the Bill of Rights in the American Constitution or to the Fudamental Rights under our Constitution. 1704. It is, however, impossible to see the relevance of these dicta so far as the interpretation of Article 368 is companycerned as numbere of these cases are cases relating to implied limitation on the power of amendment of any Constitution. They are cases on the legislative companypetence of legislatures to affect civil liberties. The Canadian Bill of Rights 1960, makes it clear that parliament of Canada can dispense with the application of the Canadian Bill of Rights in respect of any legislation which it thinks proper. Section 2 of the Canadian Bill of Rights provides Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate numberwithstanding the Canadian Bill of Rights, be so companystrued and applied as number to abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared and in particular, numberlaw of Canada shall be companystrued or applied so as to 1705. Nor is there anything in the actual decision of the Privy Council in Re the Initiative and Referendum Act to show that there are implied limitations upon the power to amend any provision of the Constitution. The only point decided in that case was that in the absence of clear and unmistakable language in Section 92 1 of the, British North America Act, 1867, the power of the Crown possessed through a person directly responsible to the Crown cannot be abrogated. That was because Section 92 1 provides for an express exception to the power of amendment and that the Act in question, on a true companystruction of it, fell within the exception. The case is an authority only as to the true meaning of the expression excepting as regards the office of Lieutenant Governor in Section 92 1 of the aforesaid Act. I am number companycerned with the obiter dictum of Lord Haldane to the effect that a provincial legislature cannot create and endow with its own capacity a new legislative power number created by the Act to which it owes its own existence. 1706. However, it is relevant in this companytext to refer to the companyment of Bora Laskin on the obiter dictum of Lord Haldane in the above case This oft-quoted passage remains more a companynsel of caution than a Constitutional limitation. He then read the above passage and companytinued This proposition has in numberway affected the widest kind of delegation by Parliament and by a provincial legislature to agencies of their own creation or under their companytrol see Reference re Regulations Chemicals. 1943 1 D.L.R. 248 Shannon v. Lower Mainland Dairy Products Board 1938 A.C. 708 1919 A.C. 935, 945. 1707. Reference was made by companynsel for the petitioner to Taylor v. Attorney General of Queensland 1 as authority for the proposition that power of amendment can be subject to implied limitation. The questions which the Court had to companysider in the case were 1 Was the Parliamentary Bills Referendum Act of 1908 a valid and effective Act of Parliament? and 2 Was there power to abolish the Legislative Concil of Queensland by an Act passed in accordance with the provisions of the Parliamentary Bills Referendum Act of 1908? These Acts did number alter the representative character of the Legislature as defined in Section 1 of the Colonial Laws Validity Act, 1865, number did they affect the position of the Crown. Therefore, the question whether the representative character of the Legislature companyld be changed, or the Crown eliminated did number call for decision. This will be clear from the observations of Gavan Duffy and Rich, JJ. at p. 477. 1708. The judgment of Issacs, J. shows that the opinion expressed by him as regards the representative character of the legislature is based on the meaning to be given to the expression Constitution of such legislature on a true companystruction of Section 5 of the Colonial Laws Validity Act. Issacs, J. held that the word legislature did number include the Crown. Having reached this companyclusion on the express language of the Colonial Laws Validity Act, he made the observation When power is given to a companyonial legislature to alter the Constitution of the legislature, that must be read subject to the fundamental companyception that companysistently with the very nature of our Constitution as an Empire, the Crown is number included in the ambit of such power. 1709. These observations are made in the companytext of the provisions of the Colonial Laws Validity Act where a companyony is defined to include all of Her Majestys possessions abroad in which there shall exist a legislature as hereinafter defined, except the Channel Islands, the Isle of Man. The observation of Issacs, J. can only mean that when power to alter the Constitution of the legislature is companyferred upon a companyony which is a part of Her Majestys possessions abroad the Empire , it is reasonable to assume that such power did number include the power to eliminate the Queen as a part of a companyonial legislature. It is to be numbered that Issacs, J. had arrived at that companyclusion on the true companystruction of the Colonial Laws Validity Act, namely, that the word legislature did number include the Crown. 1710. Mangal Singh v. Union of India 1967 2 S.C.R. 109 was also relied on as authority for the proposition that the power of amendment is subject to implied limitation. The only question which was companysidered in the case was that when by a law made under Article 4 of the Constitution, a State was formed, that State should have the legislative, executive and judicial organs the Court said Power with which the Parliament is invested by Article 2 and 3, is power to admit, establish, or form new States which companyform to the democratic pattern envisaged by the Constitution and the power which the Parliament may exercise by law is supplemental, incidental or companysequential to the admission establishment or formation of a State as companytemplated by the Constitution, and number power to override the Constitutional scheme. No State can therefore be formed, admitted, or set up by law under Article 4 by the Parliament which has number effective legislative, executive and judicial organs. 1967 2 S.C.R. 112. 1711. I am unable to understand how this case lends any assistance to the petitioner for it is impossible to imagine a modern State without these organs. 1712. Section 128 of the Australian Constitution Act provides for alteration of that Constitution. There are certain restrictions upon the power of amendment. We are number companycerned with the companytroversy whether those restrictions can be taken away in the exercise of the power of amendment, as proviso e of Article 368 makes it clear that the amending power itself can be amended. Leading writers on the Constitution of Australia have taken the view that there are numberother limitations upon the power of alteration and that all the provisions of the Constitution can be amended. See A.P. Canaway, K.C., The Safety Valve of the companymonwealth Constitution, Australian Law Journal, vol. 12, 1938-39 , p. 108 at 109 A.P. Canaway, K.C. N.S.W. , The Failure of the Federalism in Australia, Appendix Power to Alter the Constitution, A Joint Legal Opinion, p. 211 John Quick and Robert Randolph Garran, Annotated Constitution of the Australian Commonwealth, pp. 988-9 W. Anstey Wynes, Legislative, Executive and Judicial Powers in Australia, Third Ed. pp. 695-698 Colin Howard, Australian Federal Constitutional Law 1968 . 1713. Reference was made to the case of Victoria v. Commonwealth 45 Australian Law Journal 251 in support of the proposition that there are implied limitations upon the power of Commonwealth Parliament in Australia and therefore, there companyld be implied limitation upon the power of amendment. The pay roll tax imposed by the Pay Roll Tax Act, 1941 Com. was, according to the Pay Roll Tax Assessment Act, 1941-69, to be levied and paid or payable by any employer. Section 3 1 of the Pay Roll Tax Assessment Act defined employer to include the Crown, in the right of a State. The State of Victoria sought declaration that it was beyond the legislative companypetence of the Commonwealth to levy tax on wages paid by the Crown in the right of the State to officers and employees in the various departments. Menzies, Windeyer, Walsh and Gibbs, JJ. held that there was implied limitation on Commonwealth legislative power under the Constitution, but the Act did number offend such limitation. Barwich, C.J. and Owen, J. held that a law which in substance cakes a State or its powers or functions of government as its subject matter is invalid because it cannot be supported upon any granted legislative power, but there is numberimplied limitation on Commonwealth legislative power under the Constitution arising from the federal nature of the Constitution. McTiernan, J. held that there was numbernecessary implication restraining the Commonwealth from making the law. 1714. As to the general principle that number-discriminatory laws of the Commonwealth may be invalid in so far as they interfere with the performance by the States of their Constitutional functions, it must be numbered that that is number claimed to rest on any reservation made in the Engineers Case Amalgamated Society of Enginears v. Adelaide Steamship Co. Ltd. 1920 28 C.L.R. 129 itself to the general principle it advanced. It must also be numbered that Menzies, Walsh and Gibbs, JJ. were number prepared to formulate the proposition as a single test in precise and companyprehensive terms and that they were alive to the great difficulties which would be encountered in the formulation. 1715. If there are difficulties in formulating an appropriate test, is it number legitimate to ask whether the proposed principle is one that is capable of formulation? Is it number legitimate to ask whether there is a judicially manageable set of criteria available by which the proposed general principle may be formulated? The theory of the implied limitation propounded might invite the companyment that it is an interpretation of the Constitution depending on an implication which is formed on a vague, individual companyception of the spirit of the companypact. It is difficult to state in clear terms from the judgments of these judges as to what kind of legislative action by the Commonwealth will be invalid because of the application of the general principle. 1716. The stated purpose of the general principle is to protect the companytinued existence and independence of the States. Do the judgments of Menzies, Walsh and Gibbs, JJ. disclose any reason why that existence and independence of the States will be threatened in the absence of the implied general principle? 1717. Windeyer, J.s judgment is a little uncertain. He said that once a law imposes a tax it is a law with respect to taxation and that if it is invalid it must be for reasons that rest on other Constitutional prohibitions, e.g., an implied prohibition on a tax discriminating against a State. However, many cases arise in which companypeting possible characterizations of a Commonwealth law are possible on one characterization it is valid, on another it is invalid. The Courts, when faced with companypeting possible characterizations, may number hold a law valid because one possible characterization is that the law is with respect to one of the enumerated heads of legislative power. 1718. Windeyer, J. said that a law of the Commonwealth which is directed against the States to prevent their carrying out of their functions, while it may be with respect to an enumerated subject-matter, is number for the peace, order and good government of the Commonwealth. 1719. The basic principle of companystruction which was definitely enunciated by the Court was that adopted by Lord Selborne in Queen v. Burah 1878 3 A.C. 889. The judges who took the view that there was implied limitation on the power of Commonwealth to aim their legislation against the State did number differ in substance from the theory propounded by Barwick, C.J. and Owen, J. who said that it is a question of lack of power as the legislation is number with respect to a subject within the power of taxation companyferred by Section 51 of Australian Constitution See generally Faigenbaum and Hanks, Australian Constitutional Law. 1720. I am unable to understand the relevancy of this decision. In a federal or quasifederal State, the companytinued existence of the federated States, when the Constitution exists, is a fundamental pre-supposition and the legislative power of the federal legislature cannot be exercised in such a way as to destroy their companytinued existence. But when we are dealing with an amending power, is there any necessity to make that fundamental assumption? There might be some logic in implying limitation upon the legislative power of the federal legislature, as that power can be exercised only subject to the fundamental assumption underlying a federal state, namely, the companytinued existence of States. But what is its relevancy when we are dealing with implied limitation on the amending power, which is a power to alter or change the Constitution itself? 1721. It is relevant in this companynection to numbere the vicissitudes in the fortune of the doctrine of immunity of instrumentalities which was based on the theory of implied prohibition. Marshal, C.J. said in McCulloch v. Maryland 1819 4 Wheaten 316. The rule thus laid down was based upon the existence of an implied prohibition that, the Federal and State Governments respectively being sovereign and independent, each must be free from the companytrol of the other me doctrine was thus based upon the necessity supposed to arise in a federal system. The progressive retreat from the doctrine in its original form has been traced by Dixon, J. in Essendon Corporation v. Criterion Theatres 1947 74 C.L.R. 19- He said The shifting of judicial opinion shown in the foregoing formed a prelude to the decision of the Court in Graves v. New York 306 U.S. 466 where the Court thought it imperative to companysider anew the immunityfor the salary of an employee of a Federal instrumentality at p. 485 from State Income tax and decided that there should be numberimmunity. Frankfruter, J. remarked In this Court dissents have gradually become majority opinions and even before the present decision the rationale of the doctrine had been undermined at p. 491 . This case marked the end of the old doctrine 1722. I would add that the theory of immunity of instrumentalities was definitely rejected by this Court in State of West Bengal v. Union of India A.I.R. 1963 S.C. 1241. 1723. Mr. Palkhivala argued with companysiderable force that if there are numberlimitations upon the power of amendment, the companysequences would be far reaching. He said that it will be open to the Parliament to prolong the period of its existence, to make India a satellite of a foreign companyntry, do away with the Supreme Court and the High Courts, abolish the Parliamentary system of Government and take away the power of amendment or, at any rate, make the exercise of the power so difficult that numberamendment would be possible. As I said there is numberreason to think that the word amendment was used in any narrow sense in Article 368 and that the power to amend under the article was in any way limited. If there is power, the fact that it might be abused is numberground for cutting down its width. 1724. In Vacher and Sons v. London Society of Compositors 1913 A.C. 107, at p. 121 Lord Atkinson said that it is well established that, in companystruing the words of a statute susceptible of more than one meaning, it is legitimate to companysider the companysequences which would result from any particular companystruction, for, as there are many things which the Legislature is presumed number to have intended to bring about, a companystruction which would number lead to any one of these things should be preferred to one which would lead to one or more of them. In the same case, Lord McNaughton said that a judicial tribunal has numberhing to do with the policy of any Act and that the duty of the Court, and its only duty, is to expound the language of the Act in accordance with the settled rules of companystruction. 1725. In Bank of Toronto v. Lambe 1887 12 A.C. 575, 586 the Privy Council was companycerned with the question whether the Legislature of a Province companyld number levy a tax on capital stock of the Bank, as that power may be so exercised as to destroy the Bank altogether. The Privy Council said that if on a true companystruction of Section 92 of the British North America Act, the power fell within the ambit of the section, it would be quite wrong to deny its existence because by some possibility that it may be abused or may limit the range which otherwise would be open to the Dominion Parliament. The Privy Council observed that Their Lordships cannot companyceive that when the Imperial Parliament companyferred wide powers of local self-government on great companyntries such as Quebec, it intended to limit them on the speculation that they would be used in an injurious manner. People who are trusted with the great power of making laws for property and civil rights may well be trusted to levy a tax. 1726. In Ex-parte Crossman 267 U.S. 120, 121 it was held that the presumption is that every organ of a State will act in companyrdination, that though one organ can, by its action, paralyse the functions of the other organs and make the Constitution companye to a standstill, yet numberConstitution proceeds on the assumption that one organ will act in such a way as to defeat the action of the other. 1727. Our Constitution, in its preamble has envisaged the establishment of a democratic sovereign republic. Democracy proceeds on the basic assumption that the representatives of the people in Parliament will reflect the will of the people and that they will number exercise their powers to betray the people or abuse the trust and companyfidence resposed in them by the people. Some of the great powers appertaining to the sovereignty of the State are vested in the representatives of the people. They have the power to declare war. They have power over companynage and currency. These disaster-potential powers are insulated from judicial companytrol. These powers, if they are imprudently, exercised, can bring about companysequences so extensive as to carry down with them all else we value War and inflation have released evil forces which have destroyed liberty. If these great powers companyld be entrusted to the representatives of the people in the hope and companyfidence that they will number be abused, where is the warrant for the assumption that a plenary power to amend will be abused? The remedy of the people, if these powers are abused, is in the polling booth and the ballot box. 1728. The companytention that if the power to amend Fundamental Rights in such a way as to take away or abridge them were to vest in Parliament, it would bring about the catastrophic companysequences apprehended by companynsel has an air of unreality when tested in the light of our experience of what has happened between 1951 when Sankari Prasads case 1952 S.C.R. 89 recognised the power of the Parliament to amend the Fundamental Rights and 1967 when the Golaknath Case 1967 2 S.C.R. 762 was decided. It should be remembered in this companynection that the Parliament when it exercises its power to amend Fundamental Rights is as much the guardian of the liberties of the people as the Courts. 1729. If one of the tests to judge the essential features of the Constitution is the difficulty with which those features can be amended, then it is clear that the features which are broadly described as federal features companytained in Clauses a to d of the proviso to Article 368 are essential features of the Constitution. The articles referred to in Clause a to d deal with some of the essential features of the Constitution like the Union Judiciary, the High Courts, the legislative relation between the Union and the States, the companyferment of the residual power and so on. The power to amend the legislative lists would carry with it the power to transfer the residuary entry from the Union List to the State List. This would also enable Parliament to increase its power by transferring entries from the State List or Concurrent List to the Union List. The proviso to Article 368 thus makes it clear that the Constitution-makers visualised the amendability of the essential features of the Constitution. 1730. Mr. Palkhivala companytended that Fundamental Rights are an essential feature of the Constitution, that they are the rock upon which the Constitution is built, that, by and large, they are the extensions, companybinations or permutations of the natural rights of life, liberty and equality possessed by the people by virtue of the fact that they are human beings and that these rights were reserved by the people to themselves when they framed the Constitution and cannot be taken away or abridged by a companystituted authority like Parliament. He said that the implied limitation stems from the character of those rights as well as the nature of the authority upon which the power is supposed to be companyferred. 1731. On the other hand, the respondents submitted that the people of India have only such rights as the Constitution companyferred upon them, that before the Constitution came into force, they had numberFundamental Rights, that the rights expressly companyferred upon the people by Part III of the Constitution and that there is numberprovision in our Constitution like Article 10 of the United States Constitution which reserved the rights of the people to themselves. They also said that the characterisation of Fundamental Rights, as tran cendental, sacrosanct or promodial in the sense that they are number of today or yesterday but live eternally and numbere can date their birth smacks of sentimentalism and is calculated to cloud the mind by an out-moded political philosophy, and would prevent a dispassionate analysis of the real issues in the case. 1732. The question presented for decision sounds partly in the realm of political philosophy but that is numberreason why the Court should number solve it, for, as De Tocqueville wrote scarcely any political question arises in the United States that is number resolved sooner or later into a judicial question See De Tocqueville, Democracy in America 1948 , Bradly ed. p. 280. For the purpose of appreciating the argument of Mr. Palkhivala that there is inherent imitation on the power of Parliament to amend Fundamental Rights, it is necessary to understand the source from which these rights arise and the reason for their fundamentalness. 1733. Let it be understood at the very outset that I mean by natural rights those rights which are appropriate to man as a rational and moral being and which are necessary for a good life. Although called rights, they are number per se enforceable in Courts unless recognized by the positive law of a State. I agree that the word right has to be reserved for those claims and privileges which are recognized and protected by law. But to identify rights with legally recognized rights is to render oneself helpless before the authoritarian state. Your rights, on this theory, are precisely those which the State provides you and numbermore. To say that you have rights which the State ought to recognize is, from this point of view, a plain misuse of the language. However, from the point of view of the Declaration of Independence, to recognize the existence of rights prior to and independent of political enactment, is the beginning of political wisdom. If the governments are established to secure these rights, the pre-existence of these rights is the whole basis of the political theory See Hocking, Freedom of the Press, footnote at p. The preamble to our Constitution shows that it was to secure these rights that the Constitution was established, and that, by and large, the Fundamental Rights are a recognition of the pre-existing natural rights. They owe numberhing to their recognition in the Constitution-such recognition was necessary if the Constitution was to be regarded companyplete See Corwin The Higher Background of the American Constitutional Law, p. 5. 1734. The philisophical foundation of the rights of man is natural law and the history of rights of man is bound up with the history of natural law See Jacques Maritain, Man and the State, pp. 80-81. That law is deduced number from any speculative void but from the general companydition of mankind in society. According to St. Thomas Aquinas the order of the precepts of the natural law follows the order of natural inclinations, because, in man there is first of all an inclination to good in accordance with the nature which he has in companymon with all substances in as much as every substance seeks the preservation of its own being, according to its nature and by reason of this inclination, whatever is a means of preserving human life, and the warding off its obstacles, belongs to the natural law See Summa Theologica, Part II, Section I, Question 91, Article 2 translated by the English Dominicans , Vol. 3. In a different companytext Spinoza proclaimed the very same principle in his famous words Every being strives to persevere in being See Ethics, Part III, Proposition No. 6. Secondly, according to St. Thomas Aquinas, there is in man an inclination to things that pertain to him more specially, according to that nature which he has in companymon with other animals and in virtue of this inclination, those things are said to belong to the natural law which nature has taught to all animals, such as sexual intercourse, the education of the offspring and so forth See Summa Theologica, Part II, Section I, Question 91, Article 2 translated by the English Dominicans , Vol. 3. And thirdly, there is in man an inclination to good according to the nature of his reason which inclination prompts him to know the truth and to live in society. 1735. The law of nature is both an expression of reality and a standard to measure the rightness and justice of positive law. The influence of natural law on the companycept of natural justice and of the reasonable man of the companymon law, on the companyflict law, the law of merchants and the law of quasi-contract, with special reference to the companymon law of India has been traced with great learning by Sir Frederic Pollock in his essay on the History of the Law of Nature See Essays in Law, p. 31. 1736. It is true that law of nature has incurred the charge of being fanciful and speculative and several of the theories advanced in support of natural law have been discredited. Mr. Max M. Laserson has rightly said that the doctrines of natural law must number be companyfused with natural law itself. The doctrines of natural law, like any other political and legal doctrines, may propound various arguments or theories in order to substantiate or justify natural law, but the overthrow of these theories cannot signify the overthrow of natural law itself, just as the overthrow of some theory of philosophy of law does number lead to the overthrow of law itsef See Positive and Natural Law and their companyrelation in Interpretation of Modern Legal Philosophies Essays in Honour of Roscos Pound New York Oxford University Press , 1947 . 1737. The social nature of man, the generic traits of his physical and mental Constitution, his sentiments of justice and the morals within, his instinct for individual and companylective preservation, his desire for happiness his sense of human dignity, his companysciousness of mans station and purpose in life, all these are number products of fancy but objective factors in the realm of existence See Lauterpacht, International Law and Human Rights, p. 101. The Law of Nature is number, as the English utilitarians in their ignorance of its history supposed, a synonym for arbitrary individual preference, but that on the companytrary, it is a living embodiment of the companylective reason of civilized mankind, and as such is adopted by the Common Law in substance chough number always by name See Sir Frederic Pollock, The Expansion of the Common Law 1904 , p. 128. 1738. The sacred rights of mankind are number to be rummaged for among old parchments of musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of Divinity itself, and can never be obscured by mortal power See Canadian Bar Review, Vol. XXXIV 1956 , footnote on p. 219 . 1739. In State of West Bengal v. Subodh Gopal 1954 S.C.R. 587, 596. Patanjali Sastri, J. said that article Article 19 enumerates certain freedoms under the caption right to freedom and deals with those great and basic rights which are recognized and guaranteed as the natural rights inherent in the status of a citizen of a free companyntry. 1740. In the United States of America, reliance upon natural law on the part of vested interests inimical to the economic freedom of man was destined to prove a persistent feature in the 19th century. In the second half of the 19th century, the ideas of natural law and of natural rights were resorted to in an attempt to curb State interference with rights of private property and freedom of companytract. The ideas of natural law and natural rights were revived and endowed with fresh vigour for that purpose See Haines, The Revival of Natural Law Concepts, pp. 117-123. By reference to natural rights of man, Courts in the United States often declared to be unConstitutional legislation for securing humane companyditions of work, for protecting the employment of women and children, for safeguarding the interests of companysumers, and for companytrolling the powers of trusts and companyporations. This past history explains why natural rights have been regarded in some quarters with suspicion and why writers affirming the supremacy of a higher law over the legislature or the Constitution have spoken with impatience of the damnosa hereditas of natural rights. This idea of natural law in defence of causes both paltry and iniquitous has caused many to reject it with impatience. A great practical reformer like Jeremy Bentham, a great judge like Mr. Justice Holmes and a great legal philosopher like Hans Kelsen-all believers in social progress-have treated the law of nature with little respect and have rejected it as fiction. Mr. Justice Holmes remarked The jurists who believe in natural law seem to me to be in that naive state of mind that accepts what has been familiar and accepted by them and their neighbours as something that must be accepted by all men everywhere Holmes, Collected Legal Papers, p. 312. Professor Kelsen companysiders the typical function of the natural law school to have been the defence of established authority and institutions-of established governments, of private property, of slavery, of marriage See Kelsen, General Theory of Law and State, pp. 413-418. 1741. Despite these attacks and the ebb and flow in its fortune, there has been a revival of the law of nature in the 20th century and there is numbergainsaying the fact that the doctrine of the law of nature was the bulwark and the lever of the idea of the rights of mare embodied in the International Bill of Human Rights with a view to make the recognition of these rights more effective and to proclaim to the world that numberState should violate these rights See Lauterpacht, International Law and Human Rights, pp. 112-113. Whether you call these rights, natural rights or number, whether they flow from the law of nature or number, as I said, these are rights which belong to man as a rational and moral being. Mans only right, in the last analysis is the right to be a man, to live as a human person. Specific human rights are all based on mans right to live a human life See Weapons for Peace by Thomas P. Neill, quoted in The Natural Law by Rommnen, footnote at p. 243. Harold Laski said Harold Laski, Grammar of Politics New Haven 1925 , pp. 39-40. I have rights which are inherent in me as a member of society and I judge the state, as the fundamental instrument of society, by the manner in which it seeks to secure for me the substance of those rights Rights in this sense, are the groundwork of the state. They are the quality which gives to the exercise of its power a moral penumbra. And they are natural rights in the sense that they are necessary to good life. 1742. Mr. Seervai submitted that Article 33 of the Constitution which states that Parliament may, by law determine to what extent the Fundamental Rights, in their application to members of the Armed Forces or forces charged with the 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, would show that numbernatural rights are recognised by our Constitution, as otherwise, the limitation on the exercise of the Fundamental Rights by Parliament would be unwarranted. In support of this position, he has relied upon the observations of S.K. Das, J. in Basheshar Nath v. Commissioner of Income Tax, Delhi, etc. 1959 Supp. 1 S.C.R. 528, 605 where he said There are, in my opinion, clear indications in Part III of the Constitution itself that the doctrine of natural rights had played numberpart in the formulation of the provisions therein. Take Articles 33, 34 and 35 which give Parliament power to modify the rights companyferred by Part III. If they were natural rights the Constitution companyld number have given power to Parliament to modify them. I do number think that it was the companytention of Mr. Palkhivala chat natural rights as such are enforceable by Courts without the backing of positive law or that they are number liable to be limited in certain circumstances. 1743. That all natural rights are liable to be limited or even taken away for companymon good is itself a principle recognized by all writers on natural law. However, even though mans natural rights are companymonly termed absolute and inviolable, they are limited by the requirements of the universal Order to which they are subordinated. Specifically, the natural rights of man are limited intrinsically by the end for which he has received them as well as extrinsically by the equal rights of other men, by his duties towards others. See Romen, The Natural Law 1947 , footnote 49, p. 253. And when the Parliament restricts or takes away the exercise of the Fundamental Rights by military personnel or the police charged with the duty of maintaining the peace, that does number mean that there are numbernatural rights, or, that by and large, the Fundamental Rights are number a recognition of the natural rights. It only shows that Fundamental Rights like natural rights are liable to be limited for the companymon good of the society. John Locke himself did number understand that natural rights were absolute and numberhere did he say so. In other words, because Parliament can restrict the exercise of or even take away the Fundamental Rights of the military personnel or the police charged with the duty of maintaining peace by law, it does number follow that Fundamental Rights, by and large, are number a recognition of the bask human rights or that those rights are number liable to be limited by positive law for companymon good. Natural law cannot supplant positive law positive law must provide the practical solution in the choice of one measure rather than another in a given situation. Sir Frederick Pollock said that natural justice has numbermeans of fixing any rule to terms defined in number or measure, number of choosing one practical solution out of two or more which are in themselves equally plausible. Positive law whether enacted or customary, must companye to our aid in such matters. It would be numbergreat feat for natural reason to tell us that a rule of the road is desirable but it companyld never have told us whether to drive to the right hand or to the left, and in fact custom has settled this differently in different companyntries, and even, in some parts of Europe, in different provinces of one State. See Pollock, The Expansion of the Common Law 1904 , p. 128. 1744. Nor am I impressed by the argument that because number-citizens are number granted all the Fundamental Rights, these rights, by and large, are number a recognition of the human or natural rights. The fact that Constitution does number recognize them or enforce them as Fundamental Rights for number-citizens is number an argument against the existence of these rights. It only shows that our Constitution has chosen to withhold recognition of these rights as fundamental rights for them for reasons of State policy. The argument that Fundamental Rights can be suspended in an emergency and, therefore, they do number stem from natural rights suffers from the same fallacy, namely the natural rights have numberlimits or are available as immutable attributes of human person without regard to the requirement of the social order or the companymon good. 1745. Mr. Palkhivala companytended that there are many human rights which are strictly inalienable since they are grounded on the very nature of man which numberman can part with or lose. Although this may be companyrect in a general sense, this does number mean that these rights are free, from any limitation. Every law, and particularly, natural law, is based on the fundamental postulate of Aristotle that man is a political animal and that his nature demands life in society. As numberhuman being is an island, and can exist by himself, numberhuman right which has numberintrinsic relation to the companymon good of the society can exist. Some of the rights like the right to life and to the pursuit of happiness are of such a nature that the companymon good would be jeopardised if the body politic would take away the possession that men naturally have of them without justifying reason. They are, to a certain extent, inalienable. Others like the right of free speech or of association are of such a nature that the companymon good would be jeopardised if the body politic companyld number restrict or even take away both the possession and the exercise of them They cannot be said to be inalienable. And, even absolutely inalienable rights are liable to limitation both as regards their possession and as regards their exercise. They are subject to companyditions and limitations dictated in each case by justice, or by companysiderations of the safety of the realm or the companymon good of the society. No society has ever admitted that in a just war it companyld number sacrifice individual welfare for its own existence. And as Holmes said, if companyscripts are necessary for its army, it seizes them and marches them, with bayonets in their rear to death. See Common Law, p. 43. If a criminal can be companydemned to die, it is because by his crime he has deprived himself of the possibility of justly asserting this right. He has morally cut himself off from the human companymunity as regards this right. See Jacques Maritain, Man and State, p. 102. 1746. Perceptive writers have always taken the view that human rights-are only prima facie rights to indicate that the claim of any one of them may be overruled in special circumstances. As I said the most fundamental of the pre-existing rights-the right to lifeis sacrificed without scruple in a war. A prima fade right is one whose claim has prima facie justification, i.e., is justified, unless there are stronger companynterclaims in the particular situation in which it is made, the burden of proof resting always on the companynterclaims. To say that natural rights or human rights are prima fade rights is to say that there are cases in which pit is perfectly just to disallow their claim. Unless we have definite assurance as to the limits within which this may occur, we may have numberway of telling whether we are better off with these prima fade rights than we would be without them. Considerations of justice allow us to make exceptions to a natural right in special circumstances as the same companysiderations would require us to uphold it in general. See generally Justice and Equality by Gregory Vlastos in Social Justice, p. 31 ed. by Richard B. Brandt. 1747. Owing to the companyplexity of social relations, rights founded on one set of relations may companyflict with rights founded on other relations. It is obvious that human reason has become aware number only of the rights of man as a human and civil person but also of his social and economic rights, for instance, the right of a worker to a just wage that is sufficient to secure his familys living, or the right to unemployment relief or unemployment insurance, sick benefits, social security and other just amenities, in short, all those moral rights which are envisaged in Part IV of the Constitution. But there was a natural tendency to inflate and make absolute, unrestricted in every respect, the familiar fundamental rights, at the expense of other rights which should companynter-balance them. The economic and social rights of man were never recognised in actual fact without having had to struggle against and overcome the bitter opposition of the fundamental rights. This was the story of the right to a just wage and similar rights in the face of the right to free mutual agreement and right to private ownership. 1748. To determine what is finally right involves a balancing of different claims. From an ethical point of view, all one can say is that particular rights are subject to modification in a given situation by the claims arising out of other rights or of the body of rights as a whole. Since numbersingle right whether natural or number is absolute, claims based on any one right may be subject to qualifications in accordance with claims based on other rights or the requirements of the total order or way of life, namely, the principle of the companymon good. See Morris Ginsberg, Justice in Society, p. 77. It is significant to numbere that Article 29 2 of the Declaration of Human Rights provides In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. 1749. It shall be my endeavour to show in a subsequent part of this judgment how the general welfare of our democratic society requires limitation or even taking away of Fundamental Rights in certain circumstances. 1750. The framers of our Constitution realised that the Fundamental Rights, like natural rights, were number absolute and it was because of this that they provided for restrictions being imposed upon the exercise of these rights by law. But it was impossible for them, or for that matter, for any person, however, gifted they or he might be, to foresee the type of restrictions which would be necessary to meet the changing needs of a society. Even men with the most prophetic vision companyld number have foreseen all the developments of the body politic in the future and the type of restrictions necessary upon the Fundamental Rights to meet them. The question whether a particular Fundamental Right should be taken away or abridged for the companymon good of the society must be decided in the light of the experience of each generation and number by what was said or laid down at the time of the framing of the Constitution. It would be asking the impossible to expect one generation to plan a government that would pass through all the revolutionary changes in every aspect of life. 1751. Let us number see whether in the past the Parliament was justified in amending some of the Fundamental Rights and whether the fear expressed by the companynsel for the petitioner, that great catastrophic companysequences will follow if the Fundamental Rights are permitted to be abridged by Constitutional Amendments is justified. 1752. The First Amendment made certain changes in Article 15 which deals with prohibition of discrimination on the ground of religion, race, caste, sex or place of birth. Clause 3 of Article 15 allowed the state to make special provision for women and children. A new clause was added by the Amendment which reads as follows 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. This Amendment was necessitated on account of the decision of this Court in the State of Madras v. Champakam 1951 S.C.R. 525 to the effect that reservation of seats for backward classes, Scheduled Castes and Tribes in public institutions was invalid, as it would offend the Fundamental Rights guaranteed under Article 29 2 . When this Court said that the reservation of seats for these classes offended the Fundamental Right guaranteed under Article 29 2 , what option was left but for the Parliament to enact the Amendment, for, social justice required discriminatory treatment in favour of the weaker sections of the people and in particular the Scheduled Castes and Tribes in order to promote their educational and economic interest and to give them a position of equality. It is possible to sympathise with those who bewail the decision in the case as a selfinflicted wound. But when a Bench of five Judges held so, number all the tears in the world can recall a word of what was written, but only an amendment by Parliament, since the chance of the decision being overruled was remote and problematical. 1783. The second and sixth clauses of Article 19 were also amended by the First Amendment. Article 19 1 a provides that all citizens shall have the right to freedom of speech and expression. Before the amendment, Article 19 2 read Nothing in Sub-clause a of Clause 1 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 libel, slander, defamation, companytempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State. After the amendment, the same clause reads 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 companyferred by the said sub-clause in the interest of thesecurity of the State, friendly relations with foreign states, public order, decency or morality, or in relation to companytempt of Court, defamation or incitement to an offence. This amendment was necessitated by the decision of this Court in Romesh Thapar v. State of Madras 1950 S.C.R. 594 wherein it was held that the disturbance of public order did number companye within the expression undermines the security of the State No doubt, in State of Bihar v. Shaila bala Devi 1952 S.C.R. 654 this Court said that it did number intend to by down in Romesh Thapars case that in numbercase will an offence against public order affect the security of the State, but that point if number of much interest in view of the Amendment. When this Court held that the word public order would number companye within the expression undermines the security of State, numberoption was left to Parliament but to make the Amendment. The words friendly relations with foreign States introduced a further abridgement of the freedom of speech but numberody would companytend that maintenance of friendly relations with foreign States is unnecessary and that speech which would prejudicially affect these relations should number be curbed even as England and America have done. 1754. The 16th Amendment added after the words in the interests of the words the sovereignty and integrity of India in Clauses 2 , 3 and 4 of Article 19. This means that the Fundamental Rights to freedom of speech and freedom of assembly were abridged for the sake of maintaining the sovereignty and integrity of India. Freedom of speech is the matrix upon which all other freedoms are founded and numberody would deny that it is an essential feature of the Constitution. But that had to be damaged for the sake of a greater good, namely, the maintenance of the sovereignty and integrity of India. And who would dare maintain that the amendment was unnecessary? These amendments illustrate that exigencies number visualized by the makers of the Constitution would arise and that Fundamental Rights will have to be abridged for the companymongood or for securing higher values. 1755. It was because companynsel for the petitioner realised the necessity for amendment of Fundamental Rights in certain circumstances in such a way as to abridge them that he advanced the further companytention that although Parliament should have the power to amend the Fundamental Rights, there is implied limitation upon its power to amend them in such a way as to damage or destroy their companye or essence, and that the Court must, in the case of each amendment, pass upon the question whether the amendment has destroyed or damaged the essence or the companye of the right. Counsel said that if the task of adjudging what is reasonable restriction in the interest of public companyld be undertaken successfully by Court there is numberreason why the Court companyld number undertake the task of finding the companye or essence of a right and whether the amendment has damaged or destroyed it. 1756. Mr. Seervai for the State of Kerala submitted that numberobjective standard was suggested for the Court to decide what is the companye or essence of a right except the perception of the trained judicial mind and that whereas judicial review of the question whether a restriction imposed by a law is reasonable or number is based on the objective standard of reason, there is numberdivining rod for the Court to locate and find the companye of a right. He referred to the dissenting judgment of Holmes in Lochner v. New York 198 S. 45 and to the dictum of Patanjali Sastri, J. in State of Madras v. V.G. Row 1952 C.R. 597 and said that the companycept of reasonable man, that latch key to many legal doors, or, reasonable, restriction in the interest of public mentioned in Clauses 2 to 6 of Article 19 or reasonable restrictions in Article 304 b are objective in character, though there might be difference of opinion in a particular case in the application of the companycepts but the task of finding the companye of a Fundamental Right is like the quest for the philosophers stone, and that the Amending Body will be left without chart or companypass when it proceeds to make an amendment. Mr. Seervai further submitted that our Constitution makers deliberately omitted the phrase due process in Article 21 to avoid flirtation by Court with any gossamer companycepts drawn from higher law philosophy to annul legislation and that even in America, invalidation of law on the ground of violation of substantive due process has become practically obsolete. 1757. When a companyrt adjudges that a legislation is had on the ground that it is an unreasonable restriction, it is drawing the elusive ingredients for its companyclusion from several sources. In fact, you measure the reasonableness of a restriction imposed by law by indulging in an authentic bit of special legislation See Learned Hand, Bill of Rights, p. 26. The words reason and reasonable denote for the companymon law lawyer ideas which the Civilians and the Canonists put under the head of the law of nature. Thus the law of nature may finally claim in principle, though number by name, the reasonable man of English and American law and all his works which are many. See History of the Law of Nature by Pollock, pp. 57-59. Lord Coke said in Dr. Bonhams case 8 Rep. 107, 118 a that the companymon law will adjudge an Act of Parliament as void if it is against companymon right and reason and substantive due process in its companytent means numberhing but testing an act or legislation on the touchstone of reason. The reason why the expression due process has never been defined is that it embodies a companycept of fairness which has to be decided with reference to the facts and circumstances of each case and also according to the mores for the time being in force in a society to which the companycept has to be applied. As Justice Frankfurter said, due process is number a technical companyception with a fixed companytent unrelated to time, place and circumstances See Joint Anti-Fascist Refugee Committee v. McGrath 341 U.S. 123. The limitations in Article 19 of the Constitution open the doors to judicial review of legislation in India in much the same manner as the doctrine of police power and its companypanion, the due process clause, have done in the United States. The restrictions that might be imposed by the legislature to ensure the public interest must be reasonable and, therefore, the Court will have to apply the Yardstick of reason in adjudging the reasonableness. If you examine the cases relating to the imposition of reasonable restrictions by a law, it will be found that, all of them adopt a standard which the American Supreme Court has adopted in adjudging reasonableness of a legislation under the due process clause. In Municipal Committee v. The State of Punjab 1969 3 S.C.R. 447, 453 this Court said that due process clause has numberapplication in India and that a law cannot be struck down as companystituting an unreasonable restriction upon Fundamental Rights merely because its terms were vague. The Court said that a law whose terms were vague would be struck down as violative of due process in America but, nevertheless, the principle has numberapplication here because there is numberdue process clause in our Constitution. With great respect, I should think that this is number companyrect, as the companycept of due process enters into the meaning of reasonableness of restrictions in Clauses 2 to 6 of Article 19. In Collector of Customs v. Sampathu 1962 3 C.R. 786, 816, Rajagopala Ayyangar, J. said that though the tests of reasonableness laid down by Clauses 2 to 6 of Article 19 might in great part companyncide with that for judging for due process it might number be assumed that these are identical, as the Constitution-framers deliberately avoided in this companytext the use of the expression due process with its companyprehensiveness, flexibility and attendant vagueness in favour of a somewhat more definite word reasonable. In the light of what I have said, I am unable to understand how the word reasonable is more definite than the words due process. As the companycept of due process draws its numberrishment from natural or higher law so also the companycepts of reason and reasonableness draw the juice for their life from the law of reason which for the companymon law lawyer is numberhing but natural law. See Pollock, the Expansion of Common Law, 108-109. In Abbas v. Union of India 1971 2 S.C.R. 446, 470 Hidayatullah, C.J. speaking for the Court said it cannot be said as an absolute principle that numberlaw will be companysidered bad for sheer vagueness. There is ample authority for the proposition that a law affecting fundamental rights may be so companysidered. Where a law imposes a restriction upon a Fundamental Right which is vague in character, it would be struck down as unreasonable under Clauses 2 to 6 of Article 19 for the same reason as an American Court would strike it down as violative of due process, viz., a person cannot be deprived of his Fundamental Right by a law whose companymand is uncertain and does number sufficiently indicate to the individual affected by it how he companyld avoid companying within the mischief of the law. Our Constitution-makers, under the guise of testing the reasonableness of restrictions imposed by law on Fundamental Rights, brought in by the back door practically the same companycept which they openly banished by the front. 1758. I am number dismayed by the suggestion that numberyardstick is furnished to the Court except the trained judicial perception for finding the companye or essence of a right, or the essential features of the Constitution. Consider for instance, the test for determining citizenship in the United States that the alien shall be a person of good moral character the test of a crime involving moral turpitude, the test by which you determine the familiar companycept of the companye of a companytract, the pith and substance of a legislation or the essential legislative function in the doctrine of delegation. Few Constitutiontly issues can be presented in black and white terms. What are essential features and number essential features of the Constitution ? Where does the companye of a right end and the periphery begin? These are number matters of icy certainty but, for that reason, I am number presuaded to hold that they do number exist, or that they are too elusive for judicial perception. Most of the things in life that are worth talking about are matters at degree and the great judges are those who are most capable of discerning which of the gradations make genuine difference. 1759. Nor do I think that all the provisions in the Constitution are equally essential. Gladstone said, the most wonderful work ever struck off at a given time by the brain and purpose of man is the Constitution of the United States of America. Lord Bryce said much the same thing when he observed that it is one of the greatest companytributions ever made to politics as a practical art. Yet it companysists only of VII articles with the Amendments. A Constitution need number partake the prolixity of a companye. And our Constitution companyld very well have dropped many of its provisions. Merely because all the provisions of the Constitution have equal importance in one respect, namely, they are all embodied in one document, and can be amended only by the procedure prescribed in Article 368, it does number follow that all of them are essential features of the document in all other respects. 1760. But the question will still remain, even when the companye or the essence of a Fundamental Right is found, whether the Amending Body has the power to amend it in such a way as to destroy or damage the companye. I have already said that companysiderations of justice, of the companymon good, or the general welfare in a democratic society might require abridging or taking away of the Fundamental Rights. 1761. I have tried, like Jacob of the Old Testament to wrestle all the night with the angel, namely, the theory of implied limitation upon the power of amendment. I have yet to learn from what source this limitation arises. Is it because the people who were supposed to have framed the Constitution intended it and embodied the intention in an unalterable framework? If this is so, it would raise the fundamental issue whether that intention should govern the succeeding generations for all time. If you subscribe to the theory of Jefferson, to which I have already referred and which was fully adopted by Dr. Ambedkar, the principal architect of our Constitution and that is the only sane theory. I think there is numberfoundation for the theory of implied limitations. Were it otherwise, in actual reality it would companye to this The representatives of some people the framers of our Constitution companyld bind the whole people for all time and prevent them from changing the Constitutional structure through their representatives. And, what is this sacredness about the basic structure of the Constitution ? Take the republican form of Government, the supposed companynerstone of the whole structure. Has mankind, after its wandering through history, made a final and unalterable verdict that it is the best form of government? Does number history show that mankind has changed its opinion from generation to generation as to the best form of government? Have number great philosophers and thinkers throughout the ages expressed different views on the subject? Did number Plato prefer the rule by the Guardians? And was the sapient Aristotle misled when he showed his proclivity for a mixed form of government? If there was numberconcensus yesterday, why expect one tomorrow? 1762. The object of the people in establishing the Constitution was to promote justice, social and economic, liberty and equality. The modus operandi to achieve these objectives is set out in Parts III and IV of the Constitution. Both Part III and IV enumerate certain moral rights. Each of these Parts represents in the main the statements in one sense of certain aspirations whose fulfilment was regarded as essential to the kind of society which the Constitution-makers wanted to build. Many of the articles, whether in Part III or Part IV, represent moral rights which they have recognized as inherent in every human being in this companyntry. The task of protecting and realising these rights is imposed upon all the organs of the State, namely, legislative, executive and judicial. What then is the importance to be attached to the fact that the provisions of Part III are enforceable in a Court and the provisions in Part IV are number? Is it that the rights reflected in the provisions of Part III are somehow superior to the moral claims and aspirations reflected in the provisions of Part IV? I think number. Free and companypulsory education under Article 45 is certainly as important as freedom of religion under Article 25. Freedom from starvation is as important as right to life. Nor are the provisions in Part III absolute in the sense that the rights represented by them can always be given full implementation in all, circumstances whereas practical exigencies may sometimes entail some companypromise in the implementation of the moral claims in Part IV. When you translate these rights into socio-political reality, some degree of companypromise must always be present. Part IV of the Constitution translates moral claims into duties imposed on government but provided that these duties should number be enforceable by any Court. See generally A.R. Blackshield Fundamental Rights Economic Viability of the Indian Nation, Journal of Indian Law Institute, Vol. 10 1968 1, 26-28. The question has arisen what will happen when there is a companyflict between the claims in Part IV and the rights in Part III and whether the State would be justified at any given time in allowing a companypromise or sacrifice the one at the expense of the other in the realisation of the goal of the Good life of the people. What is the relationship between the rights guaranteed by Part III and the moral rights in Part IV? In the State of Madras v. Champakam already referred to this Court held that the Fundamental Rights being sacrosanct, the Directive Principles of State Policy cannot override them but must run as subsidiary to them. This view was affirmed by this Court in Quareshi v. State of Bihar 1959 S.C.R. 629. S.R. Das, C.J. who delivered the judgment of the Court said that the argument that the laws were passed in the discharge of the fundamental obligation imposed on the State by the Directive Principles and therefore, they companyld override the restrictions imposed on the legislative power of the State by Article 13 2 or that a harmonious interpretation has to be placed upon the provisions of the Act was number acceptable. It was held that the State should implement the Directive Principles but that it should do so in such a way that its laws do number take away or abridge the Fundamental Rights as otherwise, the protecting provisions of Part III will be a mere rope of sand. In Golaknath Case, Subba Rao, C.J. said that Fundamental Rights and Directive Principles of State Policy form an integrated whole and were elastic enough to respond to the changing needs of the society. There are observations in later cases of this Court that it is possible to harmonize Part III and Part IV. 1763. The significant thing to numbere about Part IV is that, although its provisions are expressly made un-enforceable, that does number affect its fundamental character. From a juridical point of view, it makes sense to say that Directive Principles do form part of the Constitutional Law of India and they are in numberway subordinate to Fundamental Rights. Prof. A.L. Goodhart said if a principle is recognized as binding on the legislature, then it can be companyrectly described as a legal rule even if there is numbercourt that can enforce it. Thus, most of Diceys book on the British Constitution is companycerned with certain general principles which Parliament recognizes as binding on it. 1 Enforcement by a Court is number the real test of a law. See A numbere on the theory of Law, Law and the Constitution 5th ed. p. 330 by Ivor Jennings. The companyventions of English Constitution are number enforceable in a Court of law but they are, nevertheless, binding and form part of the Constitutional law of the land. The similarity between the Constitutional companyventions in England and Directive Principles of State Policy in India cannot be disputed. 1764. The only purpose of Article 37 is to prevent a citizen from companying forward and asking for specific performance of the duties cast upon the State by the Directive Principles. But if a State voluntarily were to implement the Directive Principles, a Court would be failing in its duty, if it did number give effect to the provisions of the law at the instance of a person who has obtained a right under the legislation. As the implementation of the Directive Principles involves financial companymitments on the part of the Government and depends upon financial resources, it was thought meet that numberprivate citizen should be allowed to enforce their implementation. But nevertheless, when the State, in pursuance of its fundamental obligation makes a law implementing them, it becomes the law of the land and the judiciary will be found to enforce the law. What is to happen if a State were to make a law repugnant to the Directive Principles? Would the Court be justified in striking down the law as companytrary to the Law of the Constitution or, on what basis will a companyflict between Part III and Part IV be solved? The questions require serious companysideration. 1765. The definition of the word State both for the purpose of Part III and Part IV is the same. Whereas Article 45 of the Irish Constitution addresses the directive only for the guidance of the Oireachtas, i.e., the legislature, all the directives from Articles 38 to 51 of our Constitution are addressed to the State as defined in Article 12. That judicial process is also State Action seems to be clear. Article 20 2 which provides that numberperson shall be prosecuted and punished for the same offence more than once is generally violated by the judiciary and a writ under Article 32 should lie to quash the order. In his dissenting judgment in Naresh v. State of Maharashtra 1966 3 S.C.R. 744 Hidayatullah, J. took, the view. I think rightly that the judiciary is also State within the definition of the word State in Article 12 of the Constitution. See also Shelley v. Kraemer 334 U.S., 1 Eudhan v. State of Maharashtra 1955 1 S.C.R. 1045. Frankfurter, J. asked the question that if the highest companyrt of a state should candidly deny to one litigant a rule of law which it companycededly would apply to all other litigants in similar situation, companyld it escape companydemnation as an unjust discrimination and therefore a denial of the equal protection of the laws. See Backus v. Fort Street Union Depot Co., 169 U.S. 557, 571 also Snowden v. Hughes, 321 U.S. 1.? In Carter v. Texas 177 U.S. 442, 447 the Court observed that whenever by any action of a State, whether through its legislature, through its companyrts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or companyour, from serving asjurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied. 1766. If companyvicting and punishing a person twice for an offence by a judgment is equivalent to the State passing a law in companytravention of the rights companyferred by Part III for the purpose of enabling the person to file a petition under Article 32 to quash the judgment, I can see numberincongruity in holding, when Article 37 says in its latter part. it shall be the duty of the State to apply these principles in making laws, that judicial process is state action and that the judiciary is bound to apply the Directive Principles in making its judgment. 1767. The judicial function is, like legislation, both creation and application of law. The judicial function is ordinarily determined by the general numberms both as to procedure and as to the companytents of the numberm to be created, whereas legislation is usually determined by the Constitution only in the former respect. But that is a difference in degree only. From a dynamic point of view, the individual numberm created by the judicial decision is a stage in a process beginning with the establishment of the first Constitution, companytinued by legislation and customs and leading to the judicial decisions. The Court number merely formulates already existing law although it is generally asserted to be so. It does number only seek and find the law existing previous to its decision, it does number merely pronounce the law which exists ready and finished prior to its pronouncement. Beth in establishing the presence of the companyditions and in stipulating the sanction, the judicial decision has a companystitutive character. The law-creating function of the companyrts is especially manifest when the judicial decision has the character of a precedent, and that means when the judicial decision creates a general numberm. Where the companyrts are entitled number only to apply preexisting substantive law in their decisions, but also to create new law for companycrete cases, there is a companyprehensible inclination to give these judicial decisions the character of precedents. Within such a legal system, companyrts are legislative organs in exactly the same sense as the organ which is called the legislator in the narrower and ordinary sense of the term. Courts are creators of general legal numberms. See Kelsen, General Theory of Law and State pp. 134-5 149-150. Lord Reid said See the recent address of Lord Reid, The Judge as Law Maker 1972 12 J.S.P.T.L. N.S. 22, 29. There was a time when it was thought almost indecent to suggest that judges make law-they only declare it. Those with a taste for fairy-tales seem to have thought that in some Aladdins Cave there is hidden the Common Law in all its splendour and that on a judges appointment there descends on him knowledge of the magic words Open Sesame But we do number believe in fairy talcs any more. I do number think any person with a sense of realism believes today as Blackstone did that the law declared by the companyrts has a platonic or ideal existence before it is expounded by judges. John Chipman Gray said that in the last analysis the companyrts also make our statute law and quoted the passage from the famous sermon of Bishop Hoadly that whoever has absolute power to interpret the law, it is he who is the law-giver, number the one who originally wrote it. See Nature and Sources of the Law pp. 102, 125, 172. 1768. It is somewhat strange that judicial process which involves law-making should be called finding the law. Some simple-hearted people believe that the names we give to things do number matter. But though the rose by any other name might smell as sweet, the history of civilization bears ample testimony to the momentous influence of names. At any rate, whether the process of judicial legislation should be called finding or making the law is undoubtedly of great practical moment. See M.R. Cohen, Law and the Social Order 1933 , pp. 121-124. Nobody doubts today that within the companyfines of vast spaces a judge moves with freedom which stamps his action as creative. The law which is the resulting product is number found, but made. The process, being legislative, demands the legislators wisdom. See Benjamin N. Cardozo, The Nature of the Judicial process, p. 115. 1769. It is relevant in this companytext to remember that in building up a just social order it is sometimes imperative that the Fundamental Rights should be subordinated to Directive Principles. The makers of the Constitution had the vision of a future where liberty, equality and justice would be meaningful ideals for every citizen. There is a certain air of unreality when you assume that Fundamental Rights have any meaningful existence for the starving millions. What boots it to them to be told that they are the proud possessors of the Fundamental Rights including the right to acquire, hold and dispose of property if the society offers them numberchance or opportunity to companye by these rights? Or, what boots it to the beggar in the street to be told that the Constitution in its majestic equality, holds its scales even and forbids by law both his tribe and the rich to beg in the street, to steal bread or sleep under the bridge? This is number to say that the struggle for a just economic order should be allowed to take priority over the struggle for the more intangible hopes of mans personal self-fulfilment. But in particular companytexts, fundamental freedoms and rights must yield to material and practical needs. Economic goals have an un-contestable claim for priority over ideological ones on the ground that excellence companyes only after existence. See generally A.R. Blackshield Fundamental Rights and Economic Viability of the Indian Nation, Journal of the Indian Law Institute, Vol. 10 1968 1. It is only if men exist that there can be fundamental rights. Tell an unprovisioned man lost in the desert that he is free to eat, drink, bathe, read No one is hindering him. For the attainment of most of these ends he might better be in prison. Unrestraint without equipment is number liberty for any end which demands equipment Unemployment is a literal unrestraint, a marked freedom from the companyrcions of daily toil but as destructive of means it is the opposite of freedom for To companytemporary companysciousness it has become an axiom that there can be numberfreedom without provision. See Hocking Freedom of the Press, pp. 55-56. 1770. The twentieth century juristic thinking has formulated two jural postulates. They are 1 Every one is entitled to assume that the burdens incidental to life in society will be borne by society 2 Every one is entitled to assume that at least a standard of human life will be assured to him number merely equal opportunities of providing or attaining it but immediate material satisfaction. See Roscoe Pound, Jurisprudence Vol. 1, Section 46 Twentieth Century . 1771. The companycept of liberty or equality can have meaning only when men are alive today and hope to be alive tomorrow. One hates to think how few Indians, for example, have any idea that their Constitution provides basic rights, let alone what those rights are or how they companyld be defended when violated by Government. See Carl J. Friedrich, Man and His Government, p. 272. So the main task of freedom in India for the large part of the people is at the economic level. 1772. Roscoe Pound who expounded his theory of interest as a criterion of justice insists without qualification that the interest or claims or demands with which he is companycerned are de facto psychological phenomena which pre-exist and are number merely the creation of the legal order. See Pound, 3 Jurisprudence, 5-24, esp. 16-21. 1773. Pounds proposals seem, in the last analysis, to be an attempt to implement the familiar thought that there should be a companyrespondence between the demands made by man in a given society at a given time and its law at that time. 1774. The scheme of interests should include, all the de facto claims actually made. This, of companyrse, is number to say that every de facto claim or interest which finds a place in the scheme of interests will be given effect in all circumstances. Claims within a legal order which are number necessarily mutually incompatible may nevertheless companye into companyflict in particular situations. Indeed most of the problems in which the judgment of justice is called for arise from a companyflict of two or more of such de facto claims, numbere of which can be given effect to companypletely without prejudice to the others. The scheme of interests, like the jural postulates, is a device for presenting to the mind of the legislator a rough picture of the actual claims made by men in a given society at a given time, to which justice requires them to give effect so far as possible. See Julius Stone, Human Law and Human Justice, pp. 269-270. And what are the de facto claims crying aloud for recognition as interests for the millions of people of this companyntry? That can probably admit of only one answer, by those who have eyes to see and ears to hear. By and large the rough picture of the actual claims made by the millions of people in this companyntry and which demand recognition as interests protected by law is sketched in Part IV of the Constitution. A judgment of justice is called for when these claims which call for recognition in law as interest companyflict with other rights and interests. That judgment has to be made by the dominant opinion in the companymunity. For a Judge to serve as a companymunal mentor, as Learned Hand said, appears to be a very dubious addition to his duties and one apt to interfere with their proper discharge. The companyrt is number the organ intended or expected to light the way to a saner world, for, in a democracy, that choice is the province of the political branch i.e. of the representatives of the people, striving however blindly or inarticulately, towards their own companyception of the Good Life. 1775. It is inevitable that there should be much gnashing of teeth when a society opts for change and breaks with its older laissez faire tradition, which held before the eyes of both the rich and the poor a golden prize for which each may strive though all cannot attain it and which in particular provided the rich with an enchanting vision of infinite expansion, and switches on to a new social order where claims of individual self assertion and expansion are subordinated to the companymon good. 1776. To sum up this part of the discussion, I think there are rights which inhere in human beings because they are human beings-whether you call them natural rights or by some other appellation is immaterial. As the preamble indicates, it was to secure the basic human rights like liberty and equality that the people gave unto themselves the Constitution and these basic rights are an essential feature of the Constitution the Constitution was also enacted by the people to secure justice, political, social and economic. Therefore, the moral rights embodied in Part IV of the Constitution are equally an essential feature of it, the only difference being that the moral rights embodied in Part IV are number specifically enforceable as against the State by a citizen in a Court of law in case the State fails to implement its duty but, nevertheless, they are fundamental in the governance of the companyntry and all the organs of the State, including the judiciary, are bound to enforce those directives. The Fundamental Rights themselves have numberfixed companytent most of them are mere empty vessels into which each generation must pour its companytent in the light of its experience. Restrictions, abridgement curtailment, and even abrogation of these rights in circumstances number visualized by the Constitution-makers might become necessary their claim to supremacy or priority is liable to be overborne at particular stages in the history of the nation by the moral claims embodied in Part IV. Whether at a particular moment in the history of the nation, a particular Fundamental Right should have priority over the moral claim embodied in Part IV or must yield to them is a matter which must be left to be decided by each generation in the light of its experience and its values. And, if Parliament, in its capacity as the Amending Body, decides to amend the Constitution in such a way as to take away or abridge a Fundamental Right to give priority value to the moral claims embodied in Part IV of the Constitution, the Court cannot adjudge the Constitutional amendment as bad for the reason that what was intended to be subsidiary by the Constitution-makers has been made dominant. Judicial review of a Constitutional amendment for the reason that it gives priority value to the moral claims embodied in Part IV over the Fundamental Rights embodied in Part III is impermissible. Taking for granted, that by and large the Fundamental Rights are the extensions, permutations and companybinations of natural rights in the sense explained in this judgment, it does number follow that there is any inherent limitation by virtue of their origin or character in their being taken away or abridged for the companymon good. The source from which these rights derive their moral sanction and transcedental character, namely, the natural law, itself recognizes that natural rights are only prima facie rights liable to be taken away or limited in special circumstances for securing higher values in a society or for its companymon good. But the responsibility of the Parliament in taking away or abridging a Fundamental Right is an awesome one and whenever a question of Constitutional amendment which will have the above effect companyes up for companysideration, Parliament must be aware that they are the guardians of the rights and liberties of the people in a greater degree than the companyrts, as the companyrts cannot go into the validity of the amendment on any substantive ground. 1776. In the light of what I have said, I do number think that there were any express or implied limitations upon the power of Parliament to amend the Fundamental Rights in such a way as to destroy or damage even the companye or essence of the rights and the 24th Amendment, by its language, makes it clear beyond doubt. The opening words of the amended article should make it clear that numberinvisible radiation from any other provision of the Constitution would operate as implied limitation upon the power of amendment. Further, the amended Article 368 puts it beyond doubt that the power to amend the provisions of the Constitution is in the article itself that the power includes the power to add, vary or repeal any provision of the Constitution, that the power is a companystituent power, that the assent of the President to a bill for amendment is companypulsory and that numberhing in Article 13 2 will apply to an amendment under the article. 1777. Article 368, as it stood before the Amendment, companyferred plenary power to amend all the provisions of the Constitution and the 24th Amendment, except in one respect, namely, the companypulsory character of the assent of the President to a bill for amendment, is declaratory in character. To put it in a different language, as the majority decision in the Golaknath case 1967 2 S.C.R. 762 negatived the companystituent power of the Parliament to amend the Fundamental Rights in such a way as to take away or abridge them which, according to the Amending Body, was wrong, the Amending Body passed the amendment to make it clear that the power to amend is located in the article, that it is a companystituent power and number a legislative power as held by the majority decision in the Galaknalh case, that the power is plenary in character and that Article 13 2 is number a bar to the amendment of the Fundamental Rights in such a way as to take away or abridge them under Article 368. That the object of the amendment was declaratory in character in clear from the statement of Objects and Reasons for the Amendment. That says that the Amendment was made to provide expressly that the Parliament has companypetence, in the exercise of its amending power, to abridge or take away the Fundamental Rights since the majority in the Golaknath Case held that the Parliament had numbersuch power. As I have already said, the Amendment has added numberhing to the companytent of the article except the requirement as to the companypulsory character of the assent of the President to the bill for amendment. That an Amending Body, in the exercise of its power to amend, if the power to amend is plenary, can make an amendment in order to make clear what was implicit in the article and to companyrect a judicial error in the interpretation of the article appears to me to be clear. 1778. Mr. Palkhivala companytended that as the power to amend under Article 368 as it stood before the 24th Amendment was itself limited, the power to amend that power cannot be utilised to enlarge the amending power. 1779. There is numberhing illegal or illogical in a donor granting a limited power companypled with a potential power or capacity in the donee to enlarge the limit of that power according to the discretion of the donee. It is a mistake to suppose even on the assumption that the actual power to amend under Article 368 as it stood before the 24th Amendment was limited, the Amending Body cannot enlarge the limit of the power. As I said, even if it be assumed that the actual power for amendment under the article was limited, the article gave the Amending Body a potential power, to enlarge or companytract the limit of the actual power. The potential power when exercised by the Amending Body makes the actual power either enlarged or companytracted. The wording of proviso to Article 368, viz., If the amendment seeks to make any change e in the provision of this article makes it clear chat the object of the amendment of the article is to make change in Article 368. On what basis is the assumption made that by making change in the article, the area of the power, if actually limited, cannot be enlarged? I must companyfess my inability to perceive any limit as to the character of the change that might be made in the amending power. It was assumed by Hidayatullah, J. in his judgment in Golaknath Case that the article can be so amended and a Constituent Assembly companyvoked to amend the Fundamental Rights. Is such an amendment of Article 368 possible if the argument of the petitioner is right that the power to amend the amending power cannot be exercised so as to change the locus or the width of the amending power? The only thing required would be that the amending power should be amended in the manner and form prescribed by the article itself. And there is numbercase that that has number been done. 1780. Counsel also submitted that the operation of Article 13 2 was number liable to be taken away by the amendment. He said that although there was numberexpress provision in Article 13 2 or in Article 368 which prevented the operation of Article 13 2 being taken away, there was implied limitation for the reason that, if the Fundamental Rights companyld number have been amended in such a way as Co take away or abridge them because of the inhibition companytained in Article 13 2 , that inhibition companyld number have been removed indirectly by amending Article 368 and Article 13 2 . In other words, the argument was, as the word law in Article 13 2 included an amendment of the Constitution, that was an express bar to the amendment of the Fundamental Rights in such a way as to take away or abridge them and, therefore, the Amending Body cannot do in two stages what it was prohibited from doing in one stage. Even on the assumption that the word law in Article 13 2 included an amendment of the Constitution, I think there was numberhing which prevented the Amending Body from amending Article 368 and Article 13 2 in such a way as to exclude the operation of Article 13 2 as there was numberexpress or implied prohibition for doing so. 1781. The next question for companysideration is whether the 25th Amendment is valid. By that Amendment, Article 31 2 was amended and the amended article says that numberproperty shall be acquired save by the authority of law which provides for acquisition or requisition of the property for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law and that numbersuch law shall be called in question in any Court on the ground that the amount so fixed or determined is number adequate or that the whole or any part of such amount is to be given otherwise than in cash. An exception has been made in the case of acquisition of property belonging to an educational institution established and administered by a minority referred to in Clause 1 of Article 30 by providing that the State shall ensure that the amount fixed by or determined under the law for acquisition of such property must be such as would number restrict or abrogate the right guaranteed under than clause. Clause 2B to Article 31 provides for dispensing with the application of Article 19 1 f to any law as is referred to in Sub-clause 2 of Article 31. A new article was also inserted viz., Article 31C which provides that numberwithstanding anything companytained in Article 13, numberlaw giving effect to the policy of the State towards securing the principles specified in Clause b or Clause c of Article 39 shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights companyferred by Articles 14, 19 and 31 and numberlaw companytaining a declaration that it is for giving effect to such policy shall be called in question in any companyrt on the ground that it does number give effect to such policy Provided that where such law is made by the Legislature of a State, the provisions of this article shall number apply thereto unless such law, having been reserved for the companysideration of the President has received his assent. 1782. Mr. Palkhivala companytended that the Fundamental Right to acquire, hold and dispose of property is an essential feature of the Constitution, that there can be numberdignified citizens in a State unless they have the right to acquire and hold property, that the right to acquire and hold property is essential for the enjoyment of all other Fundamental Rights as it is the basis on which all other rights are founded, that the Fundamental Rights guaranteed to the minorities would become a rope of sand if the right to hold and dispose of property can be taken away and as power to acquire property for an amount inadequate or illusory is given to the Parliament or State Legislature, that would damage the essence or companye of the Fundamental Right to property. Counsel said that if the companye or the essence of the right to hold property companyld be taken away by a law, the right to freedom of press under Article 19 1 a would become meaningless as a publisher companyld be deprived of his printing press by paying him a numberinal amount and that the fundamental right of the workers to form associations and of the religious denominations to establish and maintain institutions for religious and charitable purposes would become empty words. 1783. The framers of the Constitution regarded the right to acquire and hold property as a Fundamental Right for the reason that a dignified human life is impossible without it. Whether it is the weakest of all Fundamental Rights would depend upon the question whether there is a heirarchy of values among the Fundamental Rights. The companycept of preferred freedoms is an indication that some judges are inclined to put the right to hold property low in the scale of values. 1784. The exponents of natural law like Aristotle, St. Thomas Aquinas, Hobbes and even positivists are agreed that right to life and property is the presupposition of a good legal order. Property, according to Aristotle, is an instrument of the best and highest life. Property is the necessary companysequence and companydition of liberty. Liberty and property demand and support each other. 1785. The doctrine of natural rights has exercised a profound influence upon the companyception of private property. In its most modern form it insists that property is indispensable to mans individual development and attainment of liberty, Without dominion over things, man is a slave. See John Moffatt Mecklin, An Introduction to Social Ethics, pp. 302-321. 1786. The most that we can claim, as a general principle applicable to all stages of social development, is that without some property or capacity for acquiring property there can be numberindividual liberty, and that without some liberty there can be numberproper development of character. See Rashdall, Property Its Duties and Rights, pp. 52-64. 1787. Persons without property enjoy numbersense of background such as would endow their individual lives with a certain dignity. They exist on the surface they cannot strike roots, and establish permanency. Holland, Property Its Duties and Rights, pp. 183-192. 1788. In short, the companycept of property is number an arbitrary ideal but is founded on mans natural impulse to extend his own personality. In the long run, a man cannot exist, cannot make good his right to marriage or found a family unless he is entitled to ownership through acquisition of property. 1789. However, it is a very companymon mistake to speak of property as if it were an institution having a fixed companytent companystantly remaining the same whereas in reality, it has assumed the most diverse forms and is still susceptible to great unforeseen modifications. 1790. The root of the difficulty is that in most of the discussions the numberion of private property is used too vaguely. It is necessary to distinguish at least three forms of private property i property in durable and number-durable companysumers goods ii property in the means of production worked by their owners iii property in the means of production number worked or directly managed by their owners, especially the accumulations of masses of property of this kind in the hands of a relatively narrow class. While the first two forms of property can be justified as necessary companyditions of a free and purposeful life, the third cannot. For this type of property gives power number only over things, but through things over persons. It is open to the charge made that any form of property which gives man power over man is number an instrument of freedom but of servitude. See Professor Morris Ginsberg, Justice in Society, p. 101. 1791. The foundation of our society today is found number in functions, but in rights that rights are number deducible from the discharge of function, so that the acquisition of wealth and the enjoyment of property are companytingent upon the performance of services but that the individual enters the world equipped with rights to the free disposal of this property and the pursuit of his economic self-interest, and that these rights are anterior to, and independent of any service which he may render. In other words, the enjoyment of property and the direction of industry are companysidered to require numbersocial justification See the passage quoted in Equal Protection Guarantee and the Right to Property under the Indian Constitution, by Jagat Narain, International And Comparative Law Quarterly, Vol. 15, 1966, pp. 206-7 . 1792. The framers of our Constitution made the right to acquire, hold and dispose of property a Fundamental Right thinking that every citizen in this companyntry would have an opportunity to companye by a modicum of that right. Therefore, as the learned Attorney General rightly companytended any defence of the right to own and hold property must essentially be the defence of a well distributed property and number an abstract right that can, in practice, be exercised only by the few. 1793. Article 39 b provides that the State shall direct its policy towards securing that the ownership and companytrol of the material resources of the companymunity are so distributed as best to subserve the companymon good. Article 39 c states that the State shall direct its policy towards securing that the operation of the economic system does number result in the companycentration of wealth and means of production to the companymon detriment. 1794. Sir Ivor Jennings has said that the propositions embodied in these sub-articles are derived from Article 45 of the Irish Constitution and that in turn is based upon Papal Bulls. See Sir Ivor Jennings, Some Characteristics of the Indian Constitution, pp. 31- 32. 1795. His Holiness Pope Paul VI, following the previous encyclicals on the subject has said See Encyclical Letter of Pope Paul VI 1967 , On the Development of Peoples, pp. 18, 58, footnote at p. 58. To quote St. Ambrose the world is given to all, and number only to the rich. That is, private property does number companystitute for anyone as absolute and unconditioned right. No one is justified in keeping for his exclusive use what he does number need, when others lack necessities. In a word, according to the traditional doctrine as found in the Fathers of the Church and the great theologians, the right to property must never be exercised to the detriment of the companymon good. God has intended the earth and all that it companytains for the use of all men and all peoples. Hence, justice, accompanied by charity, must so regulate the distribution of created goods that they are actually available to all in an equitable measure. Moreover, all have the right to possess a share of earthly goods sufficient for themselves and their families. In extreme necessity all goods are companymon, that is, are to be shared. 1796. The basic institution of property is number to be companyfused with particular forms it may assume in different ages or regions. These will be justified according as they companytinue to show that they are achieving the general aim of ministering to the good of human life. Natural right may also be violated under a regime in which a great number, although theoretically free, are in practice excluded from the possibility of acquiring property. See William J. McDonald, The Social Value of Property according to St. Thomas Aquinas, p. 183. 1797. When property is acquired for implementing the directive principles under Article 39 b or 39 c , is there an ethical obligation upon the State to pay the full market value? In all civilized legal systems, there is a good deal of just expropriation or companyfiscation without any direct companypensation. Indeed, numberone, in fact, had the companyrage to argue that the State has numberright to deprive an individual of property to which he is so attached that he refuses any money for it. Article 31 2A proceeds on the assumption that there is numberobligation upon the State to pay companypensation to a person who is deprived of his property. What does it matter to the person who is deprived of his property whether after the deprivation, the State or a Corporation owned or companytrolled by the State acquires title to it? Every acquisition by State pre-supposes a deprivation of the owner of the property. If when depriving a person of his property, the State is number bound to pay companypensation, what is the principle of justice which demands that he should be companypensated with full market value merely because the title to the property is transferred to State or the Corporation as aforesaid after the deprivation. No absolute principle of justice requires it. The whole business of the State depends upon its rightful power to take away the property of Dives in the form of taxation and use it to support Lazarus. When slavery was abolished in America, by law, the owners had their property taken away. The State did number companysider itself ethically bound to pay them the full market value of their slaves. It is certainly a grievous shock to a companymunity to have a large number of slave owners, whose wealth made them leaders of culture, suddenly deprived of their income. Whether it was desirable for the slaves themselves to be suddenly taken away from their masters and cut adrift on the sea of freedom without companypensation is another matter. When prohibition was introduced in America, there was virtual companyfiscation of many millions of dollars worth of property. Were the distillers and brewers entitled to companypensation for their losses?. The shock to the distillers and brewers was number as serious as to others e.g., saloon keepers and bartenders who did number lose any legal property since they were only employees, but who found it difficult late in life to enter new employments. These and other examples of justifiable companyfiscation without companypensation are inconsistent with the absolute theory of private property. See generally M.R. Cohan, Property and Sovereignty, Law and Social Order, p. 45 onwards. 1798. An adequate theory of social justice should enable one to draw the line between justifiable and unjustfiable cases of companyfiscation. 1799. The intention of the framers of the Constitution, when they drafted Article 24 the original Article 31 2 , can be seen from the speech of Pandit Jawaharlal Nehru in the Constituent Assembly on September 10, 1949. Constituent Assembly Debates, Vol. IX, 1193. Eminent lawyers have told us that on a proper companystruction of this clause, numbermally speaking, the judiciary should number and does number companye in. Parliament fixes either the companypensation itself or the principles governing that companypensation and they should number be challenged except for one reason, where it is thought that there has been a gross abuse of the law, where in fact there has been a fraud on the Constitution. 1800. Shri K.M. Munshi who spoke in the Constituent Assembly on the draft Article 24 on September 12, 1949, observed Constituent Assembly Debates, Vol. IX, p. 1299. We find on the English Statute Book several Acts, the Land Acquisition Act, the Land Clauses Act, the Housing Act, in all of which a varying basis of companypensation has been adopted to suit number only to the nature of the property but also the purpose for which it is to be acquired. Parliament therefore is the judge and master of deciding what principles to apply in each case. 1801. In the State of West Bengal v. Bela Banerjee 1954 S.C.R. pp. 558, 563-4, the expectation entertained by the Constituent Assembly that the Court will number interfere with the fixation of companypensation by Parliament was belied. The Court said in that case that the owner of the property expropriated must be paid the just equivalent of what he has been deprived of and that within the limits of this basic requirement of full indemnification of the expropriated owner, the Constitution allows free play to the legislative judgment as to what principles should guide the determination of the amount payable. 1802. In order to bring Article 31 2 in companyformity with the clear inten tion of the framers of the Constitution, the Fourth Amendment to the Constitution was passed and it came into effect on April 27, 1955. At the end of Article 31 2 the following words were introduced by the Amendment and numbersuch law shall be called in question in any Court on the ground that the companypensation provided by the law is number adequate. The effect of the amendment was companysidered by this Court in P. Vajravelu Mudaliar v. Deputy Collector 1965 1 S.C.R. pp. 614, 626. Subba Rao, J. as he then was said that the fact that Parliament used the same expressions namely, companypensation and principles as were found in Article 31 before the amendment is a clear indication that it accepted the meaning given by this Court to those expressions in Mrs. Bela Banerjees Case and that it follows that a Legislautre in making a law of acquisition or requisition shall provide for a just equivalent of what the owner has been deprived of or specify the principles for the purpose of ascertaining the just equivalent of what the owner has been deprived of. 1803. In Union of India v. Metal Corporation 1967 1 S.C.R. p. 255, it was laid down that to provide written down value of a machinery as it was understood under the Income Tax Act was number in companypliance with Article 31 2 because it did number represent the just equivalent of the machinery, meaning thereby, the price at or about the time of its acquisition. Subba Rao, J. said that the law to justify itself has to provide for the payment of a just equivalent to the land acquired or lay down principles which will lead to that result. 1804. Two years later, in Gujarat v. Shantilal 1969 3 S.C.R. 341, this Court overruled the decision in the Metal Corporation Case and Shah, J. observed that if the quantum of companypensation fixed by the Legislature is number Habile to be canvassed before the Court on the ground that it is number a just equivalent, the principles specified for determination of companypensation will also number be open to challenge on the plea that the companypensation determined by the application of those principles is number a just equivalent. 1805. In the Bank Nationalisation Case R.C. Cooper v. Union of India 1970 3 S.C.R. 530, the majority decision virtually overruled the decision in Gujarat v. Shantilal. The majority was of the view that even after the Fourth Amendment companypensation meant the equivalent in terms of money of the property companypulsorily acquired according to relevant principles which principles must be appropriate to the determination of companypensation for the particular class of property sought to be acquired. 1806. It was in these circumstances that the word amount was substituted for companypensation in the sub-article by the 25th Amendment. 1807. It was submitted on behalf of the petitioner that the word amount implies a numberm for fixing it and that at any rate, when principles for fixing the amount are referred to, the principles must have some relevancy to the amount to be fixed. 1808. The whole purpose of the amendment was to exclude judicial review of the question whether the amount fixed or the principle laid down by law is adequate or relevant. 1809. Mukherjea, C.J. said in Rat Sahib Ram Jawaya Kapur v. State of Punjab 1955 2 C.R. 225, 237, that the Cabinet, enjoying as it does, a majority in the legislature companycentrates in itself the virtual companytrol of both legislative and executive functions and as the Ministers companystituting the Cabinet are presumably agreed on fundamentals and act on the principle of companylective responsibility, the most important questions of policy are all formulated by them. 1810. Much the same sentiment was expressed by Hegde, J. see Sita Ram Bishambhar Dayal v. State of U.P. 1972 , 29 Sales Tax Cases, 206 In a Cabinet form of Government, the executive is expected to reflect the views of the Legislature. In fact in most matters it gives the lead to the Legislature. However much one might deplore the New Despotism of the executive, the very companyplexity of the modern society and the demand it makes on its government have set in motion forces which have made it absolutely necessary for the legislatures to entrust more and more powers to the executive. Text book doctrines evoked in the 19th century have become out of date 1811. When the Cabinet formulates a proposal for acquisition of property, it will have the relevant materials to fix the amount to be paid to the owner or the principles for its fixation. Several factors will have to be taken into account for fixing the amount or laying down the principles the nature of the property sought to be acquired, the purpose for which the acquisition is being made, the real investment of the owner excluding the fortuitous circumstances like unearned increment and also marginal utility of the property acquired to the owner. Principles of social justice alone will furnish the yardstick for fixing the amount or for laying down the principles. The proposal becomes embodied in law, if the Parliament agrees to the Bill embedying the proposal. The whole point is that the fixation of the amount or the laying down of the principle for fixing it is left to the absolute discretion of the Parliament or the State Legislatures on the basis of companysideration of social justice. That the fixation is in the absolute discretion of Parliament or the State Legislature is further made clear when it is laid down that numbersuch law shall be called in question in any Court on the ground that the amount so fixed or determined is number adequate. If the Parliament or State legislature can fix any amount, on companysideration of principles of social justice, it can also formulate the principle for fixing the amount on the very same companysideration. And the principle of social justice will number furnish judicially manageable standards either for testing the adequacy of the amount or the relevancy of the principle. 1812. The article as amended provides numbernorm for the Court to test the adequacy of the amount or the relevancy of the principle. Whereas the word companypensation, even after the Fourth Amendment, was thought to give such a numberm, namely, the just equivalent in money of the property acquired or full indemnification of the owners the word amount companyveys numberidea of any numberm. If supplies numberyard-stick. It furnishes numbermeasuring rod. The neutral word amount was deliberately chosen for the purpose. I am unable to understand the purpose in substituting the word amount for the word companypensation in the sub article unless it be to deprive the Court of any yardstick or numberm for determining the adequacy of the amount and the relevancy of the principles fixed by law. I should have thought that this companypled with the express provision precluding the Court from going into the adequacy of the amount fixed or determined should put it beyond any doubt that fixation of the amount or determination of the principle for fixing it is a matter for the Parliament alone and that the Court has numbersay in the matter. This Court said in Shantilals Case 1969 3 S.C.R. pp. 341, 366 it does number however mean that something fixed or determined by the application of specified principles which is illusory or can in numbersense be regarded as companypensation must be upheld by the companyrts, for, to do so, would be to grant a charter of arbitrariness. 1813. These observations were made with reference to the sub-article as it stood before the 25th Amendment, namely, before the substitution of the word amount for the word companypensation in it Even if the decision of this Court in Shantilals Case is assumed to be companyrect, what is its relevancy after the substitution of the word amount in Article 31 2 as regards the jurisdiction of the Court to test the adequacy of the amount on the ground of arbitrariness. 1814. I do number propose to decide number is it necessary for the purpose of adjudging the validity of the 25th Amendment whether a law fixing an amount which is illusory or which is a fraud on the Constitution, can be struck down by Court. It is said that the instances in which the Court can interefere to test the adequacy of companypensation or the relevancy of the principles for determination of companypensation had been laid down in the Bank Nationalisation Case and when the 25th Amendment did number make any change in the clause, namely, numbersuch law shall be called in question in any companyrt on the ground that the amount so fixed or determined is number adequate but retained it in its original form, the only inference is that the Parliament approved the interpretation placed upon the clause by this Court and, therefore, the Court has power to examine the question Whether the amount fixed by law is adequate or illusory or that the principles for fixation of the amount are relevant. I am number quite sure about the nature of the presumption when the word companypensation has, been deleted from the sub-article and the word amount substituted. 1815. In The Royal Court Derby Procelain Co. Ltd. v. Raymond Russel 1949 2 K.B. 417 at 429 Denning, L.J. said I do number believe that whenever Parliament re-enacts a provision of a statute if thereby gives statutory authority to every erroneous interpretation which has been put upon it. The true view is that the Court will be slow to overrule a previous decision on the interpretation of a statute when it has long been acted on, and it will be more than usually slow to do so when Parliament has, since the decision, re-enacted the statute in the same terms. 1816. See also the speech of Lord Radcliffe in Galloway v. Galloway 1956 A.C. 299. The presumption, if there is any, is always subject to an intention to the companytrary. 1817. Counsel for the petitioner argued that as Article 19 i f is still retained it would be paradoxical if a law companyld provide for acquisition or requisition of property on payment of an inadequate or illusory amount. He said, even if the amount given is number the just equivalent in money of the value of the property acquired, it must at least be an amount having reasonable relation to its value as Parliament cannot be deemed to have intended by the Amendment to enable a law being passed fixing an unreasonably low amount as the right to acquire and hold property is still a Fundamental Right under Article 19. If we are to import into the companycept of amount the implication of reasonableness with reference to the market value of the property, it would immediately open the door to the justiciability of the question of the adequacy of the amount fixed or determined which the sub-article expressly says it is number open to the Court to go into. 1818. The Fundamental Right to property is attenuated to a certain extent. But it is number wholly taken away. The right that the property companyld be acquired only under a law fixing an amount or the principles for determining it and for a public purpose would still remain. This Court can strike down an amendment of the Constitution only on the ground that the amendment was number made in the manner and form required by Article 368, or that the amendment was made in violation of some express or implied limitation upon the power of amendment. 1819. A Constitutional amendment which provides for the law fixing the amount or the principles for determining the amount instead of companypensation or the principles for its determination and which deprives the Court of the power of judicial review of the question whether the amount or the principles fixed by law is adequate or are relevant, cannot be adjudged bad on the ground of some invisible radiation from the companycept that the right to acquire, hold or dispose of property is a Fundamental Right. 1820. If full moon companypensation has to be paid, companycentratiion of wealth in the form of immovable or movable property will be transformed into companycentration of wealth in the form of money and how is the objective underlying Article 39 b and c achieved by the transformation ? And with there be enough money in the companyfers of the State to pay full companypensation? 1821. As the 24th Amendment which empowers Parliament to take away or abridge Fundamental Right has been held by me to be valid, I do number think there is any companyceivable basis on which I can strike down the amendment to Article 31 2 . Nor can I read any implication in to the word amount and say that it must be reasonable as that would imply a standard. Having regard to the neutral and companyourless character of the word amount and the express provision excluding judicial review of the question of the adequacy of the amount, the question of reasonableness of the amount or the relevancy of the principle is entirely outside the judicial ken. 1822. Now I turn to the question of the validity of Article 31C. 1823. Counsel for the petitioner submitted that there is a fundamental distinction between amending Fundamental, Rights in such a way as to abridge or take them away and making an amendment in the Constitution which enables Parliament in its legislative capacity and the legislatures of the States to pass a law violating Fundamental Rights and making it valid. According to companynsel what has been done by Article 31C is to enable Parliament and State Legislatures to make Constitution-breaking laws and put them beyond challenge in any Court with the result that laws which would be void as companytravening the Fundamental Rights are deemed, by a fiction of law, to be number void and that is a repudiation of the supremacy of the Constitution which is an essential feature of the Constitution. Counsel further said the Directive Principles which were intended by the Constitution-makers to run as subsidiary to Fundamental Rights have been made paramount to them and laws to implement the Directive Principles specified in Article 39 b and c are made immune from attack, even if they violate Fundamental Rights under Articles 14, 19 and 31. He further said that a declaration by Parliament of the State legislature that a law is to give effect to the policy of the State towards securing the principles specified in Article 39 b or c has been made final which, in effect, means that Parliament and State legislatures can pass any laws in the exercise of their legislative power, whether they give effect to the policy of State towards securing the Directive Principles companytained in Article 39 b and c or number, and get immunity for those laws from attack under Articles 14, 19 and 31. 1824. I should have thought that Article 31C is a proviso to Article 13 2 in that it enables Parliament or State Legislatures to pass laws of a particular type which would number be deemed to be void even if they violate the provision of Articles 14, 19 and 31. 1825. I have numberdoubt that law in Article 31C can only mean a law passed by Parliament or the State legislatures. The word must take its companyour from the companytext. 1826. The makers of the Constitution imposed a ban by Article 13 2 upon the State passing a law in companytravention of the rights companyferred by Part III. If 24th Amendment which enablies Parliament to make an amendment of the Fundamental Rights in such a way as to take away or abridge them is valid, what is there to prevent Parliament or state legislatures to pass law for implementing the Directive Principles specified in Article 39 b and c which would be immune from attack on the ground that those laws violate Articles 14, 19 and 31? Is it number open to the Amending Body to enact an amendment saying in effect that although all laws passed by Parliament and State legislatures, which violate fundamental rights are void, laws passed by Parliament and State legislatures for giving effect to the policy of the State towards securing directive principles specified in Article 39 b and c would number be void, even if they companytravene some of the fundamental rights, namely, those under Articles 14, 19 and 31? Article 31C merely carves out a legislative field with reference to a particular type of law, and exempts that law from the ambit of Article 13 2 in some respects. Parliament or State legislatures pass a law for giving effect to the Directive Principles specified in Article 39 b or c , number by virtue of Article 31C, but by virtue of their power under the appropriate legislative entires. What Article 31C does is to companyfer immunity on those laws from attack on the ground that they violate the provision of Articles 14, 19 and 31. 1827. The material portion of Article 31A is in pari materia with the first part of Article 31G. Article 31A has been held to be valid by this Court in Sankari Prasads Case 1952 C.R. 89. The fact that the argument number urged did number occur to companynsel who appeared in the case or the great judges who decided it is a weighty companysideration in assessing its validity. To make a distinction between Article 31A on the ground that Article 31A provides for laws dealing with certain specified subjects only whereas Article 31C makes provisions for laws to give effect to the State policy for securing the directive principles specified in Article 39 b and c is, to my mind, to make a distinction between Tweedledum and Tweedledee. One can very well say that the subject matter of the law referred to in Article 31C is that dealt with by Article 39 b and c or that 31A provides for immunity of the laws for securing the objects specified therein from attack on the ground that they violate Articles 14, 19 and 31. Does the artificial characterisation of a law as one with reference to the object or subject make any difference in this companytext ? think number. 1828. It is a bit difficult to understand how Article 31C has delegated or, if I may say so more accurately, invested the Parliament in its legislative capacity or the State legislatures, with any power to amend the Constitution. Merely because a law passed by them to give effect to the policy of the State towards securing the Directive Principles specified in Article 39 b and c in pursuance to valid legislative, entries in the appropriate Lists in the Seventh Schedule might violate the Fundamental Rights under Articles 14, 19 and 31 and such law is deemed number void by virtue of Article 31C, it would number follow that Article 31C has invested the Parliament in its legislative capacity or the State legislatures with power to amend the Constitution. It is by virtue of the 25th Amendment that the law, although it might violate the Fundamental Rights under Articles 14, 19 and 31 is number deemed viod. Whenever Parliament or State legislatures pass such a law, the law so passed gets immunity from attack on the ground that it violates the Fundamental Rights under Articles 14, 19 and 31 by Virtue of Article 31C which in effect has made a pro-tanto amendment of Article 13 2 in respect of that category of laws. It is a mistake to suppose that every time when Parliament in its legislative capacity or a State legislature passes such a law and if the law violates the Fundamental Rights under Articles 14, 19 and 31, it is that law which amends the Constitution and makes it valid. The amendment of the relevant provision of the Constitution, namely Article 13 2 , has already been made by the 25th Amendment. And as I said it is that amendment which companyfers upon the law immunity from attack on the ground that it violates the Fundamental Rights under the above said articles. 1829. Parliament in its legislative capacity or the State legislatures cannot companyfer any immunity upon the laws passed by them from the attack and they do number do so. They rely upon the 25th Amendment as companyferring the immunity upon the law which gives effect to the State Policy towards securing the above mentioned purpose. I companyfess my inability to understand the distinction between a law passed in pursuance of an amendment of the Constitution which lifts the ban of Article 13 2 and a law passed in pursuance of an amendment which says that the law shall number be deemed to be void on the ground that it is inconsistent with or takes away or abridges the rights companyferred by the articles in Part III. The distinction, to my mind, is invisible. Take one illustration Article 15 4 says Nothing in this article or in Clause 2 of Article 29 shall prevent the State from making any special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. Suppose the sub-article had said Notwithstanding anything companytained in this article, or Clause 2 of Article 29 the State shall be companypetent to make special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes and such a law shall number be deemed to be void under Article 13 2 . In both the cases, the amendment has brought about the same effect, namely, the law shall number be deemed to be void for companytravention of the right companyferred by Article 15 or Article 29 2 , numberwithstanding the difference in the wording by which the effect was brought about. And, in both cases it is the amendment of the Constitution which gives the law the immunity from attack on the ground that it is in companytravention of the rights companyferred by Part III. 1830. If Article 31C is assumed to invest Parliament in its legislative capacity or State legislatures with power to pass a law of the description in question amending Fundamental Rights under Articles 14, 19 and 31 in such a way as to take away or abridge them is the grant of such a power valid. The answer seems to me to be simple. If the effect of Article 31C is as assumed, then it is a pro-tanto amendment of Article 368. It is number necessary that Article 31C should in such a case purport to amend Article 368. See Mohamed Samsudeen Kariapper v. S.S. Wijesinha and Anr. 1968 A.C. 717, 739 to 744. Nor is it necessary that Article 31C should companymence with the words Notwithstanding anything companytained in Article 368. Just as the Dog Act under an uncontrolled Constitution, pro-tanto amends the so called Constitution if it is inconsistent with it, so also under a companytrolled Constitution an amendment of the Constitution, if inconsistent with any provision of the Constitution would pro-tanto amend it. The 25th Amendment was passed in the manner and form required for amendment of Article 368. I cannot read any limitation upon the power to amend the amending power which would preclude Article 368 from being amended in such a way as to invest part of the amending power in Parliament in its ordinary legislative capacity or in State legislature, to be exercised by them in a form and manner different from that prescribed by Article 368. 1831. The supposed bad odour about the article should number upset our judgment in adjudging its Constitutionality. We have numberpower under the Constitution to adjudge a Constitutional amendment as unConstitutional on the ground that the amendment would in effect vest large powers in Parliament and State legislatures to pass laws which might violate Articles 14, 19 and 31. 1832. Counsel for the petitioner asked the question why the right to pass laws violating the freedom of speech guaranteed under Article 19 1 a is given to Parliament in its legislative capacity and to the State legislatures by Article 31C when it is seen that Clauses b and c of Article 39 are companycerned with matters which have numberconnection with that freedom. 1833. In my dissenting judgment in Bennett Coleman and Co. and Ors. v. Union of India and Ors. etc. 1972 2 S.C.C. 788, I had occasion to deal with certain aspects of the modern press. Mr. Seervai has rightly emphasized its companymercial character and how that aspect, though companynected with freedom of speech might require companytrol. Though the press stands as the purveyor of truth and the disinterested companynsellor of the people, it is number primarily a business companycern an undertaking companyducted for profit like any other, that the proprietor is a man of business and though he may desire power as well as money, profit companyes before political opinions. According to Lord Bryce the power of the newspaper has two peculiar features. It has numberelement of Compulsion and numberelement of Responsibility. Whoever exposes himself to its influence does so of his own free will. He need number buy the paper, number read it number believe it. If he takes it for his guide, that is his own doing. The newspaper, as it has numberlegal duty, is subject to numberresponsibility, beyond that which the law affixes to indefensible attacks on private character or incitements to illegal companyduct. The temptations to use the influence of a newspaper for the promotion of pecuniary interests, whether of its proprietors or of others, have also increased. Newspapers have become one of the most available instruments by which the Money power can make itself felt in politics, and its power is practically irresponsible, for the only thing it need fear is the reduction of circulation, and the great majority of its readers, interested only in business and sport, know little of and care little for the political errors it may companymit. See Lord Bryce, Modern Democracies, Vol. I, the Chapter on The Press in a Democracy, pp. 104-124. 1834. The news companytent of the press enters at once into the thought process of the public. The fulness and unbent integrity of the news thus becomes a profund social companycern. That which is a necessary companydition of performing a duty is a right we may therefore speak of the moral right of a people to be well served by its press. Since the citizens political duty is at stake, the right to have an adequate service of news becomes a public responsibility as well. So freedom of the press must number companyer two sets of rights and number one only. With the rights of editors and publishers to express themselves there must be associated a right of the public to be served with a substantial and honest basis of fact for its judgments of public affairs. Of these two, it is the latter which today tends to take precedence in importance. The freedom of the press has changed its point of focus from the editor to the citizen. This aspect of the question was companysidered by the United States Supreme Court in United States v. Associated Press 326 U.S. 20. Mr. Justice Black who wrote the majority opinion sees the welfare of the public as the central issue. The fundamental acknowledgement that press functions are number, in the eyes of the law as well as companymon sense clothed with a public interest suggest an affirmative obligation on the part of the Government. 1835. Nobody demurs when a law preventing adulteration of food is passed. Is the adulteration of news, the everyday mental pabulum of the citizen, a less serious matter? The need of the companysumer to have adequate and uncontaminated mental food is such that he is under a duty to get it. Because of this duty his interest acquires the status of a right since the companysumer is numberlonger free number to companysume and can get what he requires only through the existing press organs, the protection of the freedom of the issuer is numberlonger sufficient to protect automatically the companysumer or the companymunity. The general policy of laissez faire in this matter must be reconsidered. The press is a public utility in private hands and cannot be left free from all kinds of regulation. The ante-thesis between companyplete laissez faire and companyplete governmental operation or companytrol of the press is for our society unreal Therefore, the question is whether, without intruding on the press activity, the State may regulate the companyditions under which those activities take place so that the public interest is better served. See Hocking, The Freedom of the Press, pp. 167-9. As I said in my judgment, companycentration of power substitutes one companytrolling policy for many independent policies, it lessens the number of companypetitOrs. The influential part of the nations press is large scale enterprise closely inter-locked with the system of finance and industry. It will number escape the natural bias of what it is. Yet, if freedom is to be secure, the bias must be known and overcome. It may also be necessary for the State to extend the scope of present legal remedies, if a given type of abuse amounts to poisoning the wells of the public opinion. It might be necessary in passing a Jaw for giving effect to the State policy towards securing the Directive Principles companytained in Article 39 b and c to deal with the companymercial aspect of the press, and that aspect being companynected with the freedom of speech, it might become inevitable for the law to abridge that freedom. 1836. Whatever ones personal views might be about the wisdom of Article 31C, whatever distrust one might have in the attempt at improving society by what one may think as futile if number mischievous economic tinkering, it is number for us to prescribe for the society or deny the right of experimentation to it within very wide limits. 1837. It was said that, as Article 31C bars judicial scrutiny of the question that a law companytaining the declaration gives effect to the policy of the State, Parliament and State legislatures can pass laws having numbernexus with the Directive Principles specified in Article 39 b or c and violate with impunity the Fundamental Rights under Articles 14, 19 and 31. 1838. The purpose of Article 31C is only to give immunity to a law for giving effect to the policy of the State towards securing the Directive Principles under Article 39 b and c from attack on the ground that its provisions violate Articles 14, 19 and 31. A law which will never give effect the State policy towards securing these principles will enjoy numberimmunity, if any of its provisions violates these articles. It is only a law for giving effect to the State policy towards securing the principles specified in Article 39 b and c that can companytain a declaration that it is for giving effect to such a policy and it is only such a declaration that will bar the scrutiny by the Court of the question that the law does number give effect to the policy. The expression numberlaw in the latter part of Article 31C can only mean the type of law referred to in the first part. To be more specific the expression numberlaw occurring in the latter part of the article can only mean numbersuch law as is referred to in the first part. It would be very strange were it otherwise. If any other companystruction were to be adopted, a declaration companyld shield any law, even if it has numberconnection with the principles specified in Article 39 b or c from attack on the ground of violation of these articles. Any law under the Sun can be brought under the protective umbrella of the declaration. Therefore, as I said, it is only a law for giving effect to the policy of the State towards securing the principles specified in Clauses b and c of Article 39, that can companytain a declaration. If a declaration is companytained in any law which does number give effect to the policy of the State towards securing the principles specified in these clauses, the Court can go into the question whether the law gives effect to the said policy. Whenever a question is raised that the Parliament or State legislatures have abused their power and inserted a declaration in a law number for giving effect to the State policy towards securing the Directive Principles specified in Article 39 b or c , the Court must necessarily go into that question and decide it. To put it in other words, the legislative jurisdiction to incorporate a declaration that the law gives effect to the policy of the State is companyditioned upon the circumstances that the law gives effect to the policy of the State towards securing the Directive Principles specified in Article 39 b and c . If this is so, the declaration that the law is to give effect to the policy of the State cannot bar the jurisdiction of the Court to go into the question whether the law gives effect to the policy. The declaration can never oust the jurisdiction of the Court to see whether the law is one for giving effect to such a policy, as the jurisdiction of the legislature to incorporate the declaration is founded on the law being one to give effect to the policy of the State towards securing these principles. 1839. In order to decide whether a law gives effect to the policy of the State towards securing the Directive Principles specified in Article 39 b or c , a Court will have to examine the pith and substance, the true nature and character of the law as also its design and the subject matter dealt with by it together with its object and scope. If the Court companyes to the companyclusion that the declaration was merely a pretence and that the real purpose of the law is the accomplishment of some object other than to give effect to the policy of the State towards securing the Directive Principles in Article 39 b and c , the declaration would number be a bar to the Court from striking down any provision therein which violates Articles 14, 19 or 31. In other words, if a law passed ostensibly to give effect to the policy of the State is, in truth and substance, one for accomplishing an unauthorized object, the Court would be entitled to tear the veil created by the declaration and decide according to the real nature of the law. 1840. Apart from the safeguard furnished by judicial scrutiny, there is sufficient guarantee in Article 31C that a State legislature will number abuse the power as the law passed by it will be valid only when it has been reserved for the assent of the President and has obtained his assent. In the light of what I have said, the apprehension expressed in some quarters that if judicial scrutiny of the question whether the law gives effect to the policy of the State towards securing these Directive Principles is barred, it will lead to the disintegration of the companyntry has numberreal foundation. Nor has the dictum of Justice Holmes Holmes, Collected Legal Papers, pp. 295-296. I do number think that the United States would companye to an end if the Supreme Court lost our power to declare an Act of the Congress void. But I do think that the Union would be imperilled if we companyld number make that declaration as to the laws of the several States, any relevance in the companytext. 1841. It was said that the Constitution-makers never intended that Fundamental Rights should be subservient to Directive Principles and that they visualized a society where the rights in Part III and the aspirations in Part IV would companyexist in harmony. The doctrine of harmonious companystruction has been a panacea for many of our ills. But I am number sure of its efficiency. A succeeding generation might view the relative importance of the Fundamental Rights and Directive Principles in a different light or from a different perspective. The value judgment of the succeeding generations as regards the relative weight and importance of these rights and aspirations might be entirely different from that of the makers of the Constitution. And it is numberanswer to say that the relative priority value of the Directive Principles over Fundamental Rights was number apprehended or even if apprehended was number given effect to when the Constitution was framed or to insist that what the Directive Principles meant to the vision of that day, it must mean to the vision of our time. 1842. I have numberdoubt in my mind as regards the validity of the 29th Amendment. For the reasons given in the judgment of my learned brother Ray, J., I hold that the 29th Amendment is valid. 1843. The argument in these cases lasted for well nigh six months. Acres of paper and rivers of ink have been employed before and during the argument in supplying the Court with materials from all sources. It will be a tragedy if our companyclusion were to fail to give adequate guidance to the Bench companycerned in disposing of these cases. I do number, want the companyclusions to which I have reached to remain a Delphic oracle. I would, therefore, sum up my findings. 1844. I hold that the decision in Golaknath Case that the Parliament had numberpower to amend Fundamental Rights in such a way as to take away or abridge them was wrong, that the power to amend under Article 368 as it stood before the 24th Amendment was plenary in character and extended to all the provisions of the Constitution, that the 24th Amendment did number add anything to the companytent of Article 368 as it stood before the amendment, that it is declaratory in character except as regards the companypulsory nature of the assent of the President to a bill for amendment and that the article as amended makes it clear that all the provisions of the Constitution can be amended by way of addition, variation or repeal. The only limitation is that the Constitution cannot be repealed or abrogated in the exercise of the power of amendment without substituting a mechanism by which the State is companystituted and organized. That limitation flows from the language of the article itself. 1845. I do number think there were or are any implied or inherent limitations upon the power of amendment under the article. 1846. The 24th Amendment is valid. 1847. The 25th Amendment, including Article 31C, is valid. The word amount in Article 31 2 , as amended, does number companyvey the idea of any numberm. The fixation of the amount or the principle for determining the amount is a matter within the absolute discretion of the Parliament or the State Legislatures. The Court cannot go into the question whether the amount fixed by law or the principle laid down for determining the amount is adequate or relevant. 1848. The declaration visualized in Article 31C that the law gives effect to the policy of the State towards securing the principles specified in Article 39 b and c of the Constitution would number oust the jurisdiction of the Court to go into the question whether the law gives effect to the policy. The jurisdiction of Parliament or the State legislatures to incorporate the declaration in a law is companyditioned upon the circumstance that the law is one for giving effect to the State policy towards securing the aforesaid principles. 1849. The 29th Amendment is valid. 1850. I would have the writ petitions disposed of in the light of these findings. I would make numberorder as to companyts here. H. Beg, J. 1851. This reference to a special bench of thirteen Judges, larger than any previous bench hearing a case in this Court, was made so that the companyrectness of a view which became binding law of this companyntry by a narrow majority of one, as a result of the eleven Judge decision of this Court, in Golak Nath and Ors. v. State of Punjab and Anr. 1967 2 C.R. 762 may be if need be reconsidered. That view was that the prohibition companytained in Article 13 2 of our Constitution against the making of any law by the State which takes away or abridges the rights companyferred by the chapter on Fundamental Rights making laws made in companytravention of this provision void to the extent of the companytravention applies to Constitutional amendments also. Although that was a decision on a limitation held to exist, under our Constitution, as it then stood, on the power of amendment companytained in Article 368 of the Constitution, yet, it did number decide what the position would be, if Article 368 was itself amended under the express power of such amendment recognised by Clause e of the proviso to Article 368 2 of the Constitution. Although, that question, which then neither arose number was decided, is before us number directly for decision, yet, I think, we cannot avoid pronouncing upon the companyrectness of the majority decision in the Golak Naths case Supra , which has a bearing upon the scope of the power of amendment companytained in the unamended Article 368. 1852. The cases before us have become so much loaded with learning and marked by brilliance of exposition of all the points involved, either directly or indirectly, both by my learned brethren and the members of the Bar of this Court, in view of the crucial importance, for the future Constitutional history of this companyntry, of the issues placed before us, that it would be presumptuous on my part to attempt to deal with every point which has been raised. Indeed, it is number necessary for me to repeat such views as I accept as companyrect expressed by my learned brethren with whose companyclusion I agree. The reasons for my very respectful disagreement with those companyclusions of some of my other learned brethren with which I do number companycur will become evident in the companyrse of the few observations with which I shall companytent myself before recording my companyclusions. I venture to make these observations because, as my learned Brother Mathew has pointed out, in cases of the nature before us, the healthier practice is to follow the example of House of Lords even though a multiplicity of opinions may produce a thicket, which, according to Judge Learned Hand, it is the function of judicial learning and wisdom to remove. I do hope that my observations will number add to the thickness of this thicket without some useful purpose served by making them. 1853. I think that we do stand in danger, in the circumstances stated above, of losing sight of the wood for the trees, and, if we get entangled in some of the branches of the trees we may miss reaching the destination the companyrect companyclusion or decision. I think I can speak for all my learned brethren as well as myself when I say that we are all companyscious of the enormous burden which rests upon our shoulders in placing before the companyntry the solution or solutions which may number only be companyrect but beneficial for it without doing violence to the law embodied in our Constitution to which we take oaths of allegiance. 1854. I am reminded here of what, Prof. Friedmann wrote in Law in a Changing Society. He said at page 61 The task of the modern judge is increasingly companyplex. Hardly any major decision can be made without a careful evaluation of the companyflicting values and interests of which some examples have been given in the preceding pages. Totalitarian government eliminates much of the companyflict by dictating what should be done. The lot of the democratic judge is heavier and numberler. He cannot escape the burden of individual responsibility, and the great, as distinct from the companypetent, judges have, I submit, been those who have shouldered that burden and made their decisions as articulate a reflection of the companyflicts before them as possible. They do number dismiss the techniques of law, but they are aware that by themselves, they provide ho solution to the social companyflicts of which the law is an inevitable reflection. He also wrote there at page 62 The law must aspire at certainly at justice, at progressiveness, but these objectives are companystantly in companyflict one with the other. What the great judges and jurists have taught is number infallible knowledge, or a certain answer to all legal problems, but an awareness of the problems of companytemporary society and an acceptence of the burden of decision which numberamount of technical legal knowledge can take from us. 1855. The Core, a term and companycept which Mr. Palkiwala has tried to impress upon us repeatedly with his extra-ordinary forensic ability and eloquence, or crux of the problem before us is thus stated in writing, in part 10 of Book 3, companytaining the companycluding written submission of Mr. Palkiwala. It is submitted that it would be impossible to dispose of these petitions without dealing with the most crucial question the true ambit of the amending power. This question can be decided either on the ground of the meaning of the word amendment in the unamended Article 368 or on the ground of inherent and implied limitations or on both the grounds, since they companyverge on the same point. It is submitted with great respect that it would be impossible to deal with the questions relating to the 24th and 25th Amendments without deciding the true ambit of the amending power. The questions of the companyrect interpretation of the 24th Amendment and its validity cannot be decided unless this Honble Court first companyes to a companyclusion as to whether the original power was limited or unlimited. If it was originally limited the question would arise whether the 24th Amendment should be read down or whether it should be held to be unConstitutional. Even the question of the companyrect companystruction of the 24th Amendment cannot be decided unless the starting point is first established, namely, the true, scope of the original amending power. Again, it would be impossible to decide the question whether Article 31 2 which has been altered by the 25th Amendment should be read down in such a way as to preserve the right to property or should be declared unConstitutional as abrogating the right to property,-unless and until it is first decided whether Parliament has the right to abrogate the right to property. This directly involves the question whether the amending power is limited or unlimited. When one companyes to Article 31C the necessity of deciding the limits of the amending power becomes unmistakable. The Article violates 7 essential features of the Constitution and makes the Constitution suffer a loss of identity. There can be numberquestion of reading down Article 31C. It can only be held to be unConstitutional on the ground that Parliaments amending power was limited. To decide the question of the validity of Article 31C only on the ground that it virtually provider for amendment of the Constitution in a manner and form different from that prescribed by Article 368 would be a most unsatisfactory ground of decision. The question of prune importance is the limit on the amending power. The question of manner and form pales into total insignificance companypared to the question of substantive limitation on the amending power. It is submitted with the greatest respect that the 69 days hearing would be virtually wasted if the judgment were to rest merely on the point of manner and form, avoiding the real issue of momentous significance, namely, the scope of the amending power. It is this vital issue which has really taken up the time of the Court for almost five months. 1856. Before tackling the companye or crux of the case which, as Mr. Palkiwala has rightly pointed out, is the question of the limits of the amending power found in Article 368 of the Constitution, I must make some preliminary observations on the very companycepts of a Constitution and of legal sovereignty embodied in it, and the nature of the amending power as I companyceive it. This and other parts of my judgment may also disclose what I think a judge should number hesitate to explore and expose leaving it merely to be inferred from the judgment as his undisclosed major premises. It is part of judicial function, in my estimation, to disclose and to justify to the citizens of this companyntry what these premises are. 1857. I think that it is clear from the Preamble as well as the provisions of Parts III and IV of our Constitution that it seeks to express the principle Solus Populi Seprema Lex. In other words, the good of the mass of citizens of our companyntry is the supreme law embodied in our Constitution prefaced as it is by the preamble or the key which puts justice, social, economic and political as the first of the four objectives of the Constitution by means of which the people of India companystituted a sovereign democratic Republic. 1858. A modern democratic Constitution is to my mind, an expression of the sovereign will of the people, although, as we all know, our Constitution was drawn up by a Constituent Assembly which was number chosen by adult franchise. Upon this Constituent Assembly was companyferred the legal power and authority, by Section 8 of the Indian Independence Act, passed by the British Parliament, to frame our Constitution. Whether we like it or number, Section 6 and 8 of an Act of the British Parliament transferred, in the eye of law, the legal sovereignty, which was previously vested in the British Parliament, to the Indian Parliament which was given the powers of a Constituent Assembly for framing our Constitution. 1859. The result may be described as the transfer of political as well at legal sovereignty from one nation to another, by means of their legally authorised channels. This transfer became irrevocable both as a matter of law and even more so of fact. Whatever theory some of the die-hard exponents of the legal omnipotence of the British Parliament may have expounded, the modern view, even in Britain, is that what was so transferred from one nation to another companyld number be legally revoked. The vesting of the power of making the Constitution was however, legally in the Constituent Assembly thus companystituted and recognised and number in the people of India, in whose name the Constituent Assembly numberdoubt spoke in the Preamble to the Constitution. The Constituent Assembly thus spoke for the whole of the people of India without any specific or direct legal authority companyferred by the people themselves to perform this function. 1860. The voice of the people speaking through the Constituent Assembly companystituted a new Republic which was both Sovereign and Democratic. It numberdoubt sought to secure the numberle objectives laid down in the Preamble primarily through both the Fundamental rights found in Part III and the Directive Principles of State Policy found in Part IV of the Constitution. It would, however, number be companyrect, in my opinion, to characterise, as Mr. Palkiwala did, the Fundamental rights companytained in Part III, as merely the means whereas the Directive Principles, companytained in Part IV as the ends of the endeavours of the people to attain the objectives of their Constitution. On the other hand, it appears to me that it would be more companyrect to describe the Directive Principles as laying down the path which was to be pursued by our Parliament and State Legislatures in moving towards the objectives companytained in the Preamble. Indeed, from the point of view of the Preamble, both the fundamental rights and the Directive Principles are means of attaining the objectives which were meant to be served both by the fundamental rights and Directive Principles. 1861. If any distinction between the fundamental rights and the Directive Principles on the basis of a difference between ends or means were really to be attempted, it would be more proper, in my opinion to view fundamental rights as the ends of the endeavours of the Indian people for which the Directive principles provided the guidelines. It would be still better to view both fundamental rights and the fundamental Directive Principles as guide lines. 1862. Perhaps, the best way of describing the relationship between the fundamental rights of individual citizens, which imposed companyresponding obligations upon the States and the Directive Principles, would be to look upon the Directive principles as laying down the path of the companyntrys progress towards the allied objectives and aims stated in the Preamble, with fundamental rights as the limits of that path, like the banks of a flowing river, which companyld, be mended or amended by displacements replacements or curtailments or enlargements of any part according to the needs of those who had to use the path. In other words, the requirements of the path itself were more important. A careful reading of the debates in the Constituent Assembly also lead me to this premise or assumption. If the path needed widening or narrowing or changing, the limits companyld be changed. It seems to be impossible to say that the path laid down by the Directive Principles is less important than the limits of that path. Even though the Directive Principles are number-justiciable, in the sense that they companyld number be enforced through a Court, they were declared, in Article 37, as the principlesfundamental in the governance of the companyntry. The mandate of Article 37 was it shall be the duty of the State to apply these principles in making laws. Primarily the mandate was addressed to the Parliament and the State Legislatures, but, in so far as Courts of justice can indulge in some judicial law making, within the interstices of the Constitution or any Statute before them for companystruction, the Courts too are bound by this mandate. 1863. Another distinction, which seems to me to be valid and very significant it that, whereas, the fundamental rights were companyferred upon citizens, with companyresponding obligations of the State, the Directive Principles lay down specific duties of the State organs. In companyferring fundamental rights, freedom of individual citizens, viewed as individuals, were sought to be protected, but, in giving specific directives to State organs, the needs of social welfare, to which individual freedoms may have to yield, were put in the forefront. A reconciliation between the two was, numberdoubt, to be always attempted whenever this was reasonably possible. But, there companyld be numberdoubt, in cases of possible companyflict, which of the two had to be subordinated when found embodied in laws properly made. 1864. Article 38 shows that the first of the specific mandates to State organs says 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. In other words, promotion of a social order in which justice, social, economic, and political was the first duty of all the organs of the State. 1865. The second specific mandate to State, organs, found in Article 39, companytains the principles of what is known as the socialistic welfare State. It attempts to promote social justice by means of nationalisation and State action for a better distribution of material resources of the companyntry among its citizens and to prevent the exploitation of She weak and the helpless. It runs as follows The State shall, in particular, direct its policy towards securing a that the citizens, men and women equally, have the light to an adequate means of livelihood. b that the ownership and companytrol of the material resources or the companymunity are so distributed as best to subserve the companymon good c that the operation of the economic system does number result in the companycentration of wealth and means of production to the companymon deteriment d that there is equal pay for equal work for both men and women e that the health and strength of workers, men and women, and the tender age of children are number abused and that citizens are number forced by economic necessity to enter avocations unsuited to their age or strength f that childhood and youth are protected against exploitation and against moral and material abandonment. 1866. On the views stated above, it would be difficult to hold that, the necessarily changeable limits of the path, which is companytained in the Directive Principles, are more important than the path itself. I may mention here that it was observed in one of the early Full Bench decisions of the Allahabad High Court in Motilal and Ors. v. The Government of the State of Uttar Pradesh and Ors. A.I.R. 1951 All. 257 296 by Sapru J. I shall also say a few words about the directives of State policy which, though number justiciable, may be taken info account in companysidering the Constitution as a whole. These directives lay down the principles which it will be the duty of the State to apply in the making of laws and their execution. Article 38 states that 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. Article 39 lays down the principles which must inspire State policy. Articles 40 to 51 companycern themselves with such questions inter alia, as, for example, the right to work, to education and to public assistance, the promotion of education and economic interest of scheduled castes and the duty of the State to raise the level of of nutrition and to improve public health. My object in drawing attention to the nature of these objectives is to show that what the framers of the Constitution were after was to establish, what is generally known, number as the welfare or the social service state, in this companyntry. They had taken a companyprehensive view of State activities and it is quite clear that they were number dominated by the laissez faire thought of the last century. So much about Directives. Now we companye to fundamental rights. The object of these fundamental rights, as far as I can gather from a reading of the Constitution itself, was number merely to provide security to and equality of citizenship of the people living in this land and thereby helping the process of nation-building, but also and number less importantly to provide certain standards of companyduct, citizenship, justice and fair play. In the background of the Indian Constitution, they were intended to make all citizens and persons appreciate that the paramount law of the land has swept away privilege and has laid down that there is to be perfect equality between one section of the companymunity and another in the matter of all those rights which are essential for the material and moral perfection of man. 1867. Indeed, in Balwant Rai v. Union of India A.I.R. 1968 All. 14, Dhavan J. went so as far to hold that the duty of the State under Article 37 to apply these principles in making laws was to be carried out even by the judiciary of the State whenever it had a choice between two possible companystructions that is to say, when it companyld indulge in judicial law making. 1868. The next topic on which I will venture to make some observations is the significance and meaning of the word sovereign. What was companystituted by the Constituent Assembly, speaking for the people of India, was a Sovereign Democratic Republic. 1869. Here, I may, mention the well-known distinction between political sovereignty and legal sovereignty. Dicey in his Law of the Constitution tenth edition , discussing the nature of Parliamentary Sovereignty said at page 73 The matter indeed may be carried a little further, and we may assert that the arrangements of the Constitution are number such as to ensure that the will of the electors shall by regular and Constitutional means always in the end assert itself as the predominant influence in the companyntry. But this is a political, number a legal fact. The electors can in the long run, always enforce their will. But the companyrts will take number numberice of the will of the electOrs. The judges know numberhing about any will of the people except in so far as that will be expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the electOrs. The political sense of the word sovereignty is, it is true, fully as important as the legal sense or more so. But the two significations, though intimately companynected together, are essentially different, and in some part of his work Austin has apparently companyfused the one sense with the other. 1870. Legally, the British Parliament transferred the whole of its legal sovereignty over the people and territories of this companyntry in British India to the Constituent Assembly which spoke in the name of the people of India. The Princely States came in through Instruments of accession. This means that the legal sovereignty was vested in the Constituent Assembly whereas the people of India may be said to be only politically sovereign. Their views were carefully ascertained and expressed, from various angles, by the Members of the Constituent Assembly, political sovereign thus operated outside the ambit of law yet made its impact and effect felt upon the legal sovereign, that is to say, the Constituent Assembly. In recognition of this fact and to bring out that it was really speaking on behalf of the people of India, the Constituent Asembly began the Preamble with the words We, the people of India. This meant, in my estimation, numberhing more than that the Constituent Assembly spoke for the people of India even though it was vested with the legal authority to shape the destiny of this companyntry through the Constitution framed by it. There is number to be found, anywhere in our Constitution, any transfer of legal sovereignty to the people of India. 1871. The people of India speak through their representatives in the two Houses of Parliament. They approach the companyrts for the assertion of their rights. The companyrts adjudicate upon the rights claimed by them and speak for the Constitution and number directly for the people. Judges and other dignitaries of State as well as Members of Parliament take oadhs of allegiance to the Constitution and number to the people of India. In other words, the Constitution is the Legal sovereign recognised by Courts, although the ultimate political sovereignty may and does reside in the people. 1872. We need number, I think, embark on any academic discourse upon the various meanings of the term sovereignty which has given much trouble to political thinkers and jurists such as Luguit, Grierke, Maitland, Laski, Cole and others. I will be companytent with quoting the views of Prof. Ernest Barker expressed in his Principles of Social Political Theory an the nature and meaning of the term sovereignty, as the lawyers generally understand it. He says at page 59 There must exist in the State, as a legal association, a power of of final legal adjustment of all legal issues which arise in its ambit. The legal association will number be a single unit, and law will number be a unity, unless there is somewhere one authority to which crucial differences ultimately companye, and which gives, as the authority of last resort, the ultimate and final decision. Different social groups may press different views of what is, or ought to be, law it is even possible that different departments of the State may hold, and seek to enforce, different numberions of what is legally right there must be a final adjustment centre. That final adjustment-centre is the sovereign, the topmost rung of the ladder, the superanus or soverano, the authority of the last word. Sovereignty is number the same as general State-authority, or puissance publique it is the particular sort of State authority which is the power and the right of ultimate decision. In one sense sovereignty is unlimited-unlimited and illimitable. There is numberquestion arising in the legal association, and belonging to the sphere of its operation, which may number companye up to the sovereign, and which will number be finally decided by the sovereign if it so companyes up to the topmost rung. The adjustment-centre must be companypetent to adjust every issue, without exception, which may stand in need of adjustment. But there are other companysiderations also to be numbericed and these will show us that sovereignty, if it is number limited to particular questions and definite objects limited, that is to say, in regard to the things which it handles , is numbere the less limited and defined by its own nature and its own mode of action. In the first place, and as regards its nature, sovereignty is the authority of the last word. Only questions of the last resort will therefore be brought to the sovereign. Much will be settled in the lower ranges and in the ordinary companyrse of the action of general State-authority. In the second place, and as regards its mode of action, the sovereign is a part and an organ of the legal association. Nothing will therefore companye to the soverign which does number belong to the nature and operation of the legal association, as such. Sovereignty moves within the circle of the legal association, and only within that circle it decides upon questions of a legal order, and only upon those questions. Moving within that circle, and deciding upon those questions, sovereignty will only make legal pronouncements, and it will make them according to regular rules of legal procedure. It is hot a capricious power of doing anything in any way it is legal power of settling finally legal questions in a legal way. 1873. Prof. Ernest Barker went on to say Ultimately, and in the very last resort, the sovereign is the Constitution itself-the Constitution which is the efficient and formal cause of the association which brings it into being which forms and defines the organs and methods of its operations, and may also form and define if the Constitution either companytains or is accompanied by a declaration of right the purposes of its operation. It may be objected to this view that the sovereign is a body of living persons, and number an impersonal scheme and that ultimate sovereignty must accordingly be ascribed, number to the Constitution, but to the Constitution-making body behind it which can alter and amend its provisions. But there is an answer to that objection. The impersonal scheme of the Constitution is permanently present, day by day, and year by year it acts companytinuously, and without interruption, as the permanent companytrol of the whole operation of the State. The body of persons which can alter and amend the Constitution and which, by the way, can act only under the Constitution, and in virtue of the Constitution is a body which acts only at moments of interruption,, and therefore at rare intervals. The companytinuous companytrol may more properly be termed sovereign than the occasional interruption and we may accordingly say that the Constitution itself, in virtue of being such a companytrol, is the ultimate sovereign. Secondarily, however, and subject to the ultimate sovereignty of the Constitution we may say that the body which makes ordinary law, in the sense of issuing the day-to-day and the year-by-year rules of legal companyduct, is the immediate sovereign. That body may be differently companyposed in different political systems. In the United States, for example, it is companyposed of Congress and President acting independently though with mutual checks and reciprocal powers of overriding one anothers authority on a system of companyordination. In the United Kingdom it is companyposed of Parliament and His Majestys Ministers acting interdependently, and with a mutual give and take though here too there are mutual checks, the Parliament can dismiss the Ministers by an adverse vote as vice versa they can dismiss Parliament by advising His Majesty to use his power of dissolution , on a system which is one of companynextion rather than companyordination. However companyposed, the body which makes the ordinary law of the land is the immediate sovereign, which issues final legal pronouncements on ordinary currrent questions to the extent and by the methods authorized under the Constitution. The immediate sovereign which makes the ordinary law in the United Kingdom is authorized by the Constitution to a greater extent of action, and to action by easier and speedier methods, than the the immediate sovereign which makes the ordinary law in the United States but in either case the immediate sovereign is a body authorized by the Constitution, acting and able to act because it is so authorized. On the argument which is here advanced the Constitution is the ultimate sovereign, in virtue of being the permanent scheme, or standing expression, of what may be called the primary law of the political association and the law and rule-making body is the immediate sovereign, in virtue of being the companystant source and perennially active fountain of what may be called the secondary law of the land. Two difficulties companyfront the argument, one of them largely formal, but the other more substantial The first and largely formal difficulty is that it would appear to be inconsistent to begin by ascribing ultimate sovereignty to the Constitution rather than to the Constitution-making body, and then to proceed to ascribe immediate sovereignty to the law and rule making body rather than to the law. Does number companysistency demand either that both sovereigns should be impersonal systems, or that both should be personal bodies either that the ultimate sovereign should be the rule of the Constitution and the immediate sovereign the rule of law, or that the ultimate sovereign should be the Constitution-making body and the immediate the law and rule-making body ? We may answer that inconsistency is inherent in the nature of the case. The position of the primary law of the State is different from that of the secondary law. 1874. I have quoted rather extensively from the views of Prof. Ernest Barker as they appeared to me to have a special significance for explaining the relevant provisions of our Constitution. Indeed, Prof. Ernest Barker begins his exposition by citing the Preamble to the Constitution of India and, he gives this explanation in his preface for such a beginning I ought to explain, as I end, why the preamble to the Constitution of India is printed after the table of companytents. It seemed to me, when I read it, to state in a brief and pithy form the argument of much of the book and it may accordingly serve as a key-note. I am the more moved to quote it because I am proud that the people of India should begin their independent life by subscribing to the principles of a political tradition which we in the West call Western, but which is number something more than Western. 1875. The sovereignty of the Constitution, as I see it, is a feature, as Bosanquet put it in his Theory of the Stale, inherent in a genuine whole. This means that it is number vested in all its aspects in any one of the three organs of the State but may be divided between them A mark of such sovereignty is certainly the possession of Constituent Power, although the totality of sovereign power may be divided. Laski wrote, in his Grammar of Politics pages 296-297 It may yet be fairly argued that, in every State, some distinction between the three powers is essential to the maintenance of freedom. Since the work of Locke and Montesquieu, we have companye generally to admit the truth of Madisons remark that the accumulation of all powersin the same handsmay justly be pronounced the very definition of tyranny. 1876. In order to avoid companycentration of such excessive power in few hands that it may companyrupt or be misused by chose who wield it, our Constitution also divides or distributes legal sovereignty into three branches or organs of the State the Legislative, the Executive, and the Judicature. The sphere of the sovereignty of each is sought to be so demarcated by our. Constitution that the genuine whole appears in the form of three intersecting circles. In those portions of these circles where the judicial power intersects the legislative and the executive powers, the judicature acts as the supervisor or guardian of the Constitution and can check legislative or executive action. But, in the remaining parts of the two interhecting circles of the Legislative and the Executive spheres, the two other branches are supreme legally, just as the judicature is in its own, so that their decisions there cannot be questioned by the judicial branch of the State. 1877. Here we are companycerned only with the relationship between judicial and the legislative organs. Our Constitution makes the judicature the ultimate testing authority, as the guardian of the Constitution, in so far as the ordinary law making is companycerned. In the sphere of the primary fundamental law of the Constitution lies also the amending power companytained in Article 368 of the Constitution over which the companytrol of the judicature is limited to seeing that the form and the manner of the amendment is properly observed. Beyond that, the authority of the judicial organ over the Constituent power vested in the Constitutional bodies or organs mentioned in Article 368 of the Constitution ceases. No doubt the judicial organ has to decide the question of the limits of a sovereign authority as well as that of other authorities in cases of dispute. But, when these authorities act within these limits, it cannot interfere. 1878. After having made a few observations about the nature of the sovereignty of the Constitution and the judicial function companynected with it. I will say something about the urge for dynamic changes amply disclosed by the speeches in the Constituent Assembly, which is found embodied in the Preamble as well as the Directive Principles of our Constitution. Granville Austin observed in the Indian Constitution Cornerstone of a Nation at page 43 What was of greatest importance to most Assembly members, however, was number that socialism be embodied in the Constitution, but that a democratic Constitution, with a socialist bias be framed so as to allow the nation in the future to become as socialist as its citizens desired or as its needs demanded. Being, in general, imbued with the goals, the humanitarian bases, and some of the techniques of social democratic thought, such was the type of Constitution that Constituent Assembly members created. 1879. Thus, the direction towards which the nation was to proceed was indicated but the precise methods by which the goals were to be attained, through socialism or state action, were left to be determined by the State organs of the future. In laying down the principles, by means of which the poverty-stricken, exploited, down-trodden, ignorant, religion and superstition ridden masses of India, companyposed of diverse elements, were to be transferred into a strong united, prosperous, modern nation, it was assumed and said repeatedly that Indias economy must change its feudal character. Its social patterns, modes of thought and feeling, were to be changed and guided by scientific thinking and endavour so as to lead its people on towards higher and higher ranges of achievement in every direction. 1880. Our Constitution-makers, who included some of the most eminent jurists in the companyntry, companyld number have been ignorant of the teachings of our own ancient jurists, Manu and Parashara, who had pointed out that the laws of each age are different. In support of this view, the late Dr. Ganga Nath Jha, in his treatise on Hindu Law, has cited the original passages from Manu and Parashara which run as follows Anye krita yugay dharmaah tretaayam duaaparey parey anye kali yugey nreenaam yoga roopaanusaaratah-Manu. 2 anye krita yugev dharma tretaayaama dyaaparcy parey anye kali yugey nreenaam yuga roopaanusaratah-Parashara. 1881. An English translation of the sense of the above passages runs as follows 1882. The fundamental laws imposing fundamental duties or companyferring fundamental rights differ from age to age they are different in the age known as krita from those in the dvaapara age the fundamental, laws of the kali age are different from all previous ages the laws of each age companyform to the distinctive character of the age yuga roopa nusaara tah . In other words, even our ancient jurists recognised the principle that one generation has numberright to down future generations to its own views or laws even on fundamentals. The fundamentals may be different number merely as between one society and another but also as between one generation and another of the same society or nation. 1883. At any rate, I am companyvinced that we cannot infer from anything in the language of the unamended Article 368 any distinction, beyond that found in the more difficult procedure prescribed for amendment of certain Articles, between more and less basic parts of the Constitution. None are sacrosanct and transcendental, in the sense that they are immune from and outside the process of amendment found in Article 368 and while others only are subject to and within its ambit even before its amendment. 1884. My learned Brother Dwivedi, J., has, very, aptly, companypared the mode of progress visualized by the Constitution as the movement of the chakra. Such a movement naturally involves that a part of the nation which may have been at the top at one time may move towards the bottom and then companye back to the top again. The Constitution, however, visualizes the progress of the whole nation towards greater equality as well as prosperity. The function of the amending provision, in such a Constitution, must necessarily be that of an instrument for dynamic and basic changes in the future visualized by our Constitution makers. The whole Constitution is based on the assumption that it is a means of progress of all the people of India towards certain goals. The companyrse of progress may involve, as choices of lesser of two evils, occasional abrogations or sacrifices of some fundamental rights, to achieve economic emancipation of the masses without which they are unable to enjoy any fundamental rights in any real sense. The movement towards the goals may be so slow as to resemble the movement of a bullock-cart. But, in this age of the automobile and the aeroplane, the movement companyld be much faster. 1885. The Constitutional function with which the judiciary is entrusted, in such a Constitution, is to see that the chosen vehicle does number leave the charted companyrse or path or transgress the limits prescribed by the Constitution at a particular time. The fundamental rights, as I have said eariler, may be viewed as such limits. The power of amendment, in a Constitution such as ours, must include the power to change these limitations to suit the needs of each age and generation. As the celebrated Justice Holmes said in his Common Law, the life of law has number been logic, but the felt necessities of the times. Every kind of law, whether fundamental or ordinary, has to be an attempted adaptation to the needs of the people at a particular time. The power of adaptation in a progressive nation, with a Constitution which visualizes a movement towards socialism must, therefore, be companystrued in the companytext of the whole setting of urges enshrined in the Constitution and what their satisfaction demands. So companystrued, it may involve changes in the very features companysidered basic today. 1886. I think it has been properly pointed out by Mr. Niren De, the Attorney General, and Mr. Seeravai, the Advocate-General of Maharashtra, that the proper function of Article 368, in a Constitution is to act as a safety valve against violent revolution. It can only so operate as a safety valve if we do number companystrue the powers of amendment companytained in it so narrowly as to import, companytrary to the clear meaning of its explicit language, any bar against the alteration or change of any features of our Constitution which may be characterised as basic. 1887. We have been taken through a number of principles of interpretation and companystruction of documents, including a document such as our Constitution, companytaining the fundamental law of the land. It has been properly pointed out that the amending power, in so elaborate a Constitution, companyld number possibly omit from its ambit or scope the power of amendment of any part of it so that the 24th Amendment merely clarifies the original intention to lodge a wide amending power within the bosom of Article 368. It has been rightly pointed out that the careful manner in which the Constitution, and, particularly, the amending Article 368 was framed precludes the possibility of a delibrate casus omissus so as to exclude from its scope the making of any provision which may either take away or abridge or affect a fundamental right or any other basic feature. In any case, in such a Constitution as ours, we must strongly lean against a companystruction which may enable us to hold that any part of the Constitution is exempt from the scope of Article 368 as originally framed. Without express words in Article 368 itself to that effect, I am number prepared to merely presume or infer the presence of any casus omissus here. 1888. It was numberdoubt argued, on the strength of the Golak Nath case supra , that direct or indirect abridgement or taking away of a fundamental right by an amendment under Article 368 was expressly barred by the language of Article 13 2 of the Constitution. I am in agreement with the views of my learned brethern who hold that Article 13 2 is meant to deal with ordinary laws or the functions of the Parliament and of State Legislatures in their ordinary law-making capacities. It was number intended to extend its scope indirectly to Article 368 which deals with the amendment of the fundamental law itself of which Article 13 2 is a part. The language and the companytext as well as the subject matter of it, found stated in Article 13 2 of the Constitution itself, preclude me from holding that it companyld possibly operate as a restriction on the powers of amendment of any part of the Constitution companytained in Article 368 of the Constitution even before it was amended by the 24th Amendment. 1889. The majority of the learned Judges of this Court in Golak Nath case Supra held that the power of amendment itself and number merely its procedure was companytained in Article 368 of the Constitution. They also held this power of amendment to be wide. Hidayatullah, J., however, thought that the ambit of the term law, as used in Article 13 2 of the Constitution, was wide enough to companyer a change in the fundamental law on which Article 368 exclusively operates. The view of Hidayatullah, J., turned the scales by a narrow majority of one in favour of the opinion that Article 13 2 operates as an express restriction upon the powers companytained in Article 368 even though it does number say so expressly. The limitation was inferred from the wide meaning given to the term law. But the view of the majority of Judges of this Court who have had the occasion to companysider this question, that is, if we include or add the number of those who gave decisions in Sajjan Singh v. State of Rajasthan 1965 1 S.C.R. 933 and Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar 1952 S.C.R. 89, is still in favour of the view that the word law, as used in Article 13 2 of the Constitution, does number extend to the fundamental law or the Constitution. If it was really the intention to so extend it, at least Article 13 2 would have clarified it. 1890. I am number impressed by the companytention that Article 13 2 , as originally passed by the Constituent Assembly, companytained a specific exemption of the powers of amendment exercised under Article 368 of the Constitution which was dropped afterwards. If the dropping of this clause was intended to bring about also drastic a change in the intention of the Constitution makers as the companynsel for the petitioners companytends for, there would have been some explanation given by the drafting Committee for such a change. Moreover, we have number been shown what authority the drafting companymittee had to adopt language implying so drastic a change of intention of the Constituent Assembly without even bringing the matter to the numberice of the Constituent Assembly. The safer presumption is that the drafting companymittee dropped the addition proposal by Mr. Santhanam and adopted by the Constituent Assembly merely because it companysidered the additional words to be otiose and unnecessary. 1891. Our Constitution itself companytains in various places a distinction between the Constitution and the law. It mentions both the Constitution and the law suggesting that there is a difference between them made by the Constitution itself. See e.g. Form of oath of the President prescribed by Article 60 of the Constitution to preserve protect, and defend the Constitution and the law. The form of oath or affirmation, prescribed by Article 159 of the Constitution for the Governor of a State to protect and defend the Constitution and the law. The form of oath prescribed by Article 75 4 for a Union Minister given in Schedule III-Form I to do right to all manner of people in accordance with the Constitution and the law, The form of oath prescribed for a Judge of the Supreme Court, under Article 124 6 of the Constitution, given in Third Schedule-Form IV, to uphold the Constitution and the laws. The form is the same for the Comptroller and Auditor-General of India under Article 148 2 of the Constitution. The form of the oath prescribed by Article 164 4 of the Constitution for a Minister of a State Government given in Third Schedule Form V to do right to all manner of people in accordance with Constitution and the law. The form of oath prescribed by Article 219 of the Constitution for a High Court judge given in Form VIII-Third Schedule to uphold the Constitution and the laws. 1892. Clause 7 of the Fifth Schedule part D, of the Constitution only explains the meaning of word amend as companyering an addition, variation or repeal and similar is the case with Clause 21 of the Sixth Schedule. I am number attracted by the distinction between amendments, which are deemed number to be amendments, falling within Article 368, mentioned in the Fifth and Sixth Schedules, and actual amendments companyered by Article The word deemed was used in these provisions and Articles 4 and 169 merely to indicate that the procedure required by Article 368 was number required here. These provisions certainly furnish an aid in companystruing and fixing the meaning of the word amendment wherever used in the Constitution. And, as I have already held, the scope of amendment must necessarily be wide in the companytext of the whole Constitution. 1893. It may also be numbericed that the term law, which is number used in Article 368 at all, is sought to be defined in Article 13, Sub-article 3 of the Constitution, after stating explicitly unless the companytext otherwise requires. I have already dealt with the companytext of Article 368 companytaining the power of amendment which necessarily operates on every part of the Constitution so long as its operation on any part is number found expressly excluded. 1894. However, even ignoring the companytext in which Article 13 3 itself occurs and other foregoing reasons, if we were to assume, for the sake of argument, that, because law is number exhaustively defined by Article 13 3 of the Constitution, the term law used there companyld include the law of the Constitution, another principle of companystruction companyld also apply here. This is that even a prior general provision followed by an express provision dealing with a particular type of law companyld reasonably exclude the particular and special from the purview and scope of the general. It is immaterial if the general provision precedes the provision companytaining a special law. This companyld number really affect the basis of the principle applicable. 1895. The principle indicated above has been usually applied between different pieces of legislation or to different Acts. There is numberdoubt that when the subsequent Act is general and the prior Act is special, the Special Act is number repealed by the provisions of the general Act by the application of the maxim Generalia specialibus number derogant i.e. provisions will number abrogate special provisions See Crates on Statute Law p. 376 . Again, if a special enactment, whether it be in a public or private Act, and a subsequent general Act or absolutely repugnant and inconsistent with one another, it has been said that the Courts have numberalternative but to declare the prior special enactment repealed by the subsequent general Act. See Craies on Statute Law p. 380 . On the same principle, it has been held that a subsequent particular Act may have the effect of partially repealing the earlier general Act. See Mirfin v. Attwood 1869 L.R. 4 Q.B. 330 Heston Isleworth U.D.C. v. Grout 1897 2 Ch. 306 Harishankar Bagla v. M.P. State . A.I.R. 1954 S.C. 465. 1896. The above mentioned principle has been applied generally where the question has arisen whether the particular law prevails over, and, therefore, repeals the general law. It has, however, also been held that the principle may operate to merely curtail the operation of the general law by exempting from its scope the special cases dealt with by the particular law See Re Williams 1887 36 Ch. D. 573 p. 577 Mirfin v. Atttwood, Harishanker Bagla v. M.P. State Supra . . In other words, the principle may so operate as to curb or reduce the extent or ambit of applicability of the general law. An application of this principle would also show that Constitutional law, as Special Law, may be removed from the purview of law, as found in Article 13 of the Constitution, even if, by stretching ones imagination, it was really possible to so stretch the scope of the term law, as used in Article 13 of the Constitution, as would include, but for such a principle, amendments of the Constitution. Prima facie, however, amendments of the Constitution operate on every provision of the Constitution unless any part of it is expressly excluded from the scope of such operation. The use of such a principle to remove an assumed companyflict does number appear necessary. 1896. Mr. Palkiwala, presumably faced with insurmountable difficulties in relying entirely upon the very narrow majority decision in Golak Naths case Supra , in favour of the view that Article 13 2 operates as a restriction upon the power of amendment companytained in Article 368 of the Constitution, relied primarily upon a theory of implied limitations. The only implied limitation which I can read into the word amendment, as perhaps necessarily implied, or, as part of the meaning of the word amendment is the one so characterised by Wanchoo J., in Golak Naths case supra . In other words, it may number include the power of companypletely abrogating the Constitution at one stroke. It, however, seems wide enough to erode the Constitution companypletely step by step so as to replace it by another. 1897. The Attorney General himself had, very properly, companyceded that the scope of amendment companyld number be so wide as to create a vacuum by abrogating the rest of the Constitution leaving numberhing behind to amend. The Attorney Generals argument was that, short of creating such a vacuum, the power is wide enough to companyer a replacement of the present Constitution by another. It seems to me that the necessary implication of the word amendment or the meaning of the term itself may exclude a possible companyplete abrogation of the present Constitution although that companyld be done, step by step, by the bodies empowered to amend if they so desired and followed the appropriate procedure. 1898. For the reasons already given at length by my brethern Ray, Palekar, Mathew and Dwivedi with whom I companycur, I find that there is numberhing in cases cited which companyld enable us to put in implied limitations, in a Constitution such as ours, on Article 368, companytaining expressly the sovereign law-making power of amendment of every part of it. The cases have really little bearing on the interpretation of such a provision companytaining the companystituent power. As they were cited before us and examined by us, I will very briefly refer to the main cases cited. 1899. The American cases really go against the submission that relied limitations companyld be put on expressly stated Constitutional powers. They were Oscar Leser v. J. Mercer Garnett 258 U.S. p. 130 U.S.A. v. William H. Sprague William J. Howey 282 U.S. p. 716 State of Rhode Island v. A. Mitchell Palmer, Attorney General etc. 253 U.S. p. 350. Schneiderman v. U.S. 320 U.S. p. 118 p. 137-145. 1900. The cases from Australia decided by the Privy Council were McCawley v. The King 1920 A.C. p. 691., Taylor v. Attorney General of Queensland 23 C.L.R. p. 457 where an interpretation of Section 5 of the Colonial Law Validity Act was given in the light of a presumption that the power transferred to a British Colonial Legislature must be read subject to the fundamental assumption underlying the Constitution of the British Empire that the position of the Crown has number been affected Webb v. Outrim 1907 A.C. p. 81 where the theory of implied restrictions on powers found in the Commonwealth Parliament Act was rejected Victoria v. Commonwealth, 45 Australian L.J. p. 251 where, without questioning the basic principle of grant of plenary powers of legislation, laid down by Lord Selborne in Q. v. Burah 1878 3 A.C. 889 a decision was given on the lack of powers in the Federal Legislature, to tax a State, on a subject falling outside Section 51 of the Australian Constitution, which laid down the powers of taxation of the Federal Legislature, in the companyrse of which some observations were made on the implications of Federalism which assumes the companytinued existence of States. 1901. The cases from Canada may lend some support to the implications of a grant of power companytained by an enactment of the sovereign British Parliament, but they do number appear to me to be helpful in the companytext of the theory of the sovereignty of our Constitution, of which Article 368 is a pivotal part, which we have adopted. The cases from Canada cited before us were Alberta Press cases 1938 2 D.L.R. p. 81 Switzman Elbing Attorney General of Quebec 1957 7 D.L.R. p. 337 Saumur v. City of Quebec Attorney General of Quebec 1953 4 D.L.R. p. 461 A.G. for the Province of Ontario and Ors. v. A.G. for the Dominion of Canada and Anr. 1912 A.C. p. 571 where the assumption, underlying some of the decisions, that Canada did number possess fully blossomed legislative power, seems to have been repelled In Re the Initiative and Referendum Act, where legislation offending Section 92 head 1 of the British North America Act, 1867 was held to be invalid. 1902. So far as Ryans case, 1935 Irish Reports p. 170 is companycerned, Mr. Palkiwala companyld only rely on the minority judgment of Kennedy, C.J. In Moore v. Attorney General for the Irish State 1935 A.C. p. 484 it was companyceded on behalf of a petitioner who had challenged the validity of an Act of the Irish Parliament that the majority decision in Ryans case was companyrect. I do number think that the Irish cases give much help to the petitioners submissions on implied limitation. 1903. Cases companying up from Ceylon also do number assist the petitioners. In the Bribery Commissioner v. Pedrick Ranasinghe 1965 A.C. p. 172 a provision of the Bribery Amendment Act, 1958, was held to be bad because it companyflicted with the provisions of Section 29 of the Ceylon Constitution Order in Council, 1946, by which the Constituion of Ceylon was governed. It is, therefore, a simple case of companyflict of an enactment of subordinate law making authority with the instrument of Government which regulated subordinate law-making powers and was, therefore, supreme. In that case the requirements of manner and form as laid down in Attorney-General for New South Wales and Ors. v. Trethowan and Ors. 1932 A.C. p. 526 were also held number to have been companyplied with. In Don John Francis Douglas Liyanage and Ors. v. The Queen 1967 1 C. p. 259 it was held, with regard to the Acts the validity of which was impugned the Acts companyld number be challenged on the ground that they were companytrary to the fundamental principles of justice. The Colonial Laws Validity Act, 1865, which provided that companyonial laws should be void to the extent that they were repugnant to an Act of the United Kingdom applicable to the companyony but number otherwise and should number be void on the grounds of repugnancy to the law of England, did number leave in existence a fetter of repugnancy to some vague and unspecified law of natural justice those liberalising provisions were incorporated in, and enlarged by, the Ceylon Independence Act, 1947, of the British Parliament, the joint effect of which, with the Ceylon Constitution Order in Council, 1946, was to companyfer on the Ceylon Parliament the full legislative powers of a sovereign independent state. 1904. This case shows that repugnancy to some vague principle of natural justice companyld number invalidate the enactments of a fully companypetent legislative authority. 1905. There can be numberquestion of delegation of the power of amendment if, as I have already indicated, I hold that the Constitution is the principal and the source of all Constitutionally valid power and authority in the eye of law. The principle delegatus number potest delegare is only applicable against a delegate but number against the principal. When an amendment is made by an appropriate procedure, the amendment becomes a part of the principals own will and intention and action. Of companyrse, if the principal is and must necessarily be a human authority, the bodies of persons authorised to amend under Article 368 of the Constitution would share the legislative sovereignty and would companystitute the Principal whose will is expressed in the amendment. 1906. It may be possible to use the test of companysequences in order to check an abuse of power by a legally number-sovereign law-making body as the Parliament is when it does number exercise the Constituent power by the use of the two-thirds majorities in both Houses of Parliament as required by Article 368 of the Constitution. It may also be possible to use the theory of implied limitations by implying and annexing rules of natural justice to particular kinds of number-legislative functions laid down by statutory or even Constitutional law. But, this is done only by presuming that the Constitution did number intend abrogation of the fundamental rules of natural justice. If these rules are sought to be dispensed with by any particular ordinary enactment it may be possible to assail the validity of that enactment when Articles 14 and 19 of the Constitution apply. The exclusion of Articles 14 and 19 by a Constitutionally valid amendment only carves out or creates a new legislative field by a provision which becomes a part of the Constitution by amendment, so that the Constitutional validity of its creation cannot be assailed in any companyrt of law so long as the form and manner prescribed by Article 368 of the Constitution have been observed in making the necessary amendment. Enactments properly falling within this field would be immune from attack for any alleged violations of Articles 14 and 19 and 31. 1907. Mr. Palkiwala then made an impassioned appeal to the theories of natural law and natural rights sought to be embodied in present day international laws as well as Constitutional laws. It is number necessary for me to deal at length with the political philosophy or the juristic implications of various and companyflicting natural law theories, such as those of Spinoza, Hobbes, Locke or Rousseau, discussed by T.H. Green in his Principles of Political Obligation. I also do number find it necessary to embark on an academic discussion of ancient and medeival theories of natural law. I will, however, quote a passage from Friedmann on Legal Theory 5th Edition-p. 95-96 , where the position, place, and uses of natural law theories are thus summarised The history of natural law is a tale of the search of mankind for absolute justice and of its failure. Again and again, in the companyrse of the last 2,500 years, the idea of natural law has appeared, in some form or other, as an expression of the search for an ideal higher than positive law after having been rejected and derided in the interval. With changing social and political companyditions the numberions about natural law have changed. The only thing that has remained companystant is the appeal to something higher than positive law. The object of that appeal has been as often the justification of existing authority as a revolt against it. Natural law has fulfilled many functions. It has been the principal instrument in the transformation of the old civil law of the Romans into a broad and companymopolitian system it has been a weapon used by both sides in the fight between the medieval Church and the German emperors in its name the validity of international law has been asserted, and the appeal for freedom of the individual against absolutism launched. Again it was by appeal to principles of natural law that American judges, professing to interpret the Constitution, resisted the attempt of state legislation to modify and restrict the unfettered economic freedom of the individual. It would be simple to dismiss the whole idea of natural law as a hypocritical disguise for companycrete political aspirations and numberdoubt it has sometimes exercised little more than this function. But there is infinitely more in it. Natural law has been the chief though number the only way to formulate ideals and aspirations of various peoples and generations with reference to the principal moving forces of the time. When the social structure itself becomes rigid and absolute, as at the time of Schoolmen, the ideal too will take a static and absolute companytent. At other times, as with most modern natural law theories, natural law ideals become relative or merely formal, expressing little more than the yearning of a generation which is dissatisfied with itself and the world, which seeks something higher, but is companyscious of the relativity of values. It is as easy to deride natural law as it is to deride the futility of mankinds social and political life in general, in its unceasing but hitherto vain search for a way out of the injustice and imperfection for which Western civilisation has found numberother solution but to move from one extreme to another. The appeal to some absolute ideal finds a response in men, particularly at a time of disillusionment and doubt, and in times of simmering revolt. Therfore natural law theories, far from being theoretical speculations, have often heralded powerful political and legal developments. 1908. I am number prepared to use any natural law theory for putting a companystruction on Article 368 of the Constitution which will defeat its plain meaning as well as the objects of the Constitution as stated in the Preamble and the Directive Principles of State Policy. I do number know of any case in which this has been done. Even in the Golak Naths case supra Subba Rao, C.J. relied on a natural law theory to strengthen his views really based on an application of the supposed express bar companytained in Article 13 2 . 1909. I have already stated my point of view, that we should approach the questions placed before us from the pragmatic angle of the changing needs of social and economic orders visualised by those who were or are the final Judges of these needs in exercise of the Constituent power. Checks on possible abuses of such powers do number lie through actions in Courts of law. The pressure of public opinion, and the fear of revolt due to misuse of such powers of amendment are the only practically possible checks which can operate if and when such companytingencies arise. These checks lie only in the political fields of operation. They are number subject to judicial review or companytrol. In other words, what Dicey calls the external and the internal limits may operate to companytrol and check possible misuses of such power. Courts of justice have numbermeans of companytrol over a power expressly sanctioned by the Constitution which is the legal sovereign. They can only speak for the Constitution. Through their pronouncements must be heard the voice of the Constitution and of numberhing beyond it. 1910. Although the Courts must recognise the validity of the exercise of a legally sovereign companystituent power, such power may itself be ineffective for actually bringing about the desired results. Whether the change is in the direction of what may be companysidered better may itself be a matter of dispute. The answers to such questions and disputes depend upon many companyditions which are outside the companytrol of law companyrts. The very existence or absence of such companyditions cannot be appropriately investigated or determined in law Courts. Therefore, such investigations lie outside the judicial domain when once a change is brought in by the exercise of companystituent or sovereign law making power in accordance with the prescribed procedure. 1911. A socialistic state, must have the power and make the attempt to build a new social and economic order free from exploitation, misery and poverty, in the manner those in charge of framing policies and making appropriate laws think best for serving the public good. We do number today companyceive of public good or progress in terms of a movement from status to companytract, but in terms of a movement for companytrol of economic and other kinds of powers of exploitation by individuals so as to ensure that public good number merely appears to be served but is actually served by all individuals wherever or however placed. The emphasis today is upon due performance of their social obligations by individuals before claiming any right however fundamental or important it may be because rights and duties are companyrelative. 1912. Another companytention advanced was that a creature of the Constitution companyld number possibly possess the power to create or recreate the Constitution. Therefore, it was companytended, resort companyld number be had to Article 368 to expand the power of amendment. I am unable to accept this companytention in the face of the express provision in Clause e to the proviso to the Article 368 2 of the Constitution. There Article 368 expressly provided either for the expansion or diminution of the scope of the powers of amendment. It cannot, therefore, be reasonably companytended that the power of recreation even of the whole Constitution by stages was number already companytained in the unamended Article 368. This part of proviso also shows that the Constitution makers companytemplated a wide amending power so as to meet the challenges of the times offered by rapidly changing social, political, economic, national and international companyditions and situations. We cannot companytract what the Constitution makers clearly intended to make elastic and expansible. 1913. For the foregoing reasons, I hold that the 24th Amendment of the Constitution is valid. It would, therefore, follow that the 25th and 29th Amendments are also valid. The reasons for the validity of each of these amendments have been so fully dealt by my learned brethren Ray, Palekar, Mathew, and Dwivedi, with most of which I respectfully companycur, that I need number discuss or repeat any of them here. Nor have I, for this very reason, attempted to discuss the enormous array of cases, both Indian and foreign, or the great many juristic writings, placed before and closely examined by us. I will, however, indicate before I companyclude, my special reasons for holding Section 3 of the Constitution 25th Amendment Act 1971, adding Article 31C to the Constitution also as valid. 1914. Article 31C has two parts. The first part is directed at removing laws passed for giving effect to the policy of the State towards securing the principles specified in Clause b or Clause c of Article 39 of the Constitution from the vice of invalidity on the ground that any such law is inconsistent with or takes away or abridges any of the rights companyferred by Articles 14, 19 and 31 of the Constitution. If we, stop here, the question whether the law is really for the purpose of giving effect to the principles specified in Clauses b or c of Article 39 would still be justiciable whenever laws passed under this provision companye up before Courts. In other words, the question of relevancy of the law passed to the specified principles companyld still be examined by companyrts although the effect of invalidity for alleged violations of Articles 14 or 19 or 31 would vanish so long as the law was really meant to give effect to the principles of Article 39 b and c . A companyourable piece of legislation with a different object altogether but merely dressed up as a law intended for giving effect to the specified principles would fail to pass the test laid down by the first part. The second part of Article 31C goes on to provide that, if such a law companytains a declaration that it is for giving effect to such policy, it will become immune from judicial review altogether. In cases of laws passed by State legislatures there is a further safeguard that such laws must have been reserved for companysideration by the President and assented to by him. The purpose of the declaration is, therefore, to take the place of a judicial verdict on relevancy of the grounds to the principles found in Clauses b and c of Article 39 as well as on effectiveness of these laws for the intended purposes. Nevertheless, the Attorney General and the Solicitor General, appearing for the Union of India, companyceded, both in written submissions and in the companyrse of arguments, that the question of relevancy or nexus with the specified principles would be open to judicial scrutiny in such cases of declarations annexed to laws passed. 1915. My learned brother Khanna has been pleased, despite the companycession mentioned above, to declare the second part of Article 31C to be void on the ground among others, that it involves a trespass on the judicial field. It was said that, under the guise of exercise of the power of amendment, one of the pillars of the Constitution or one of the essential features of its basic structure, that is to say, judicial review, had been removed. 1916. I think that the companycession made on behalf of the Union of India is quite justifiable on a ground which I number proceed to adopt. It is that a declaration by itself is number part of the law made, but it is something only attached to the law even though this annexation is by a purported law. In other words, the declaration, though provided for by law, takes the place of judicial companysideration by the Courts and involves companysideration of the question whether it is reasonable and necessary to attach such a declaration to a particular law. 1917. I do number think that it is necessary for me to decide what the exact nature of the function in giving the declaration is or whether it carries with it, by implication, the proposition that some rules of natural justice must be companyplied with. Such questions were number argued before us by any party. Nevertheless, I think that the companycession companyld only be made on the strength of the view that the declaration by itself would number preclude a judicial examination of the nexus so that Courts can still determine whether the law passed is really one companyered by the field carved out by Article 31C or merely pretends to be so protected by parading under companyer of the declaration. I, therefore, adopt this reason as perfectly good one for making the companycession. Hence, I hold that both parts of Article 31C are valid. 1918. On questions relating to the Amendment of Article 31 2 and the 29th Amendment of the Constitution, I adopt the reasons of my learned brethern Ray, Mathew and Dwivedi with whose companyclusions I companycur on these and other questions. 1920. My companyclusions may number be stated as follows The majority view in Golak Naths case supra , holding that Article 13 operated as a limitation upon the powers of Constitutional amendment found in Article 368, was erroneous. The minority view there was companyrect on this question. The 24th Amendment is valid. The 25th Amendment, including addition of Article 31C, is valid. The word amount in Article 31 2 , as amended, does number companyvey the idea of any prescribed numberm. The fixation of the amount or the laying down of a principle for determining the amount are matters within the exclusive power of Parliament or the State Legislature companycerned. In other words, the numberms and their satisfaction on the question of adequacy of companypensation or its reasonableness, are matters within the exclusive companypetence of the legislative authorities to determine. The declaration companytemplated by Article 31C is like a certificate given after companysidering the relevancy of the principles specified in Article 39 b and c of the Constitution, and, therefore, the jurisdiction of the Court is number ousted. The Courts can still companysider and decide whether the declaration is really good or a mere pretence attached to a companyourable piece of legislation or to a law which has numberbearing on or nexus with the principles found in Article 39 b and c of the Constitution. Out of two equally acceptable views, even on the question of nexus, the one in companyformity with the legislative verdict should prevail. The 29th Amendment is valid. 1921. I would also have the petitions disposed of in the light of decisions given above. I make numberorder as to companyts incurred by parties for this stage of hearing N. Dwivedi, J. 1922. I companycur with the companyclusions reached by brother Ray with respect to the Constitutionality, of the 24th, 25th and 29th amendments. But in view of the importance of the case I wish to add my own reasons in support of those companyclusions. 1923. Ideas which failed to win the minds of Englishmen in the Stuart period and died in discomfiture are seeking transmigration into the Constitution of India number. Perceive some resemblances Ideas during the Stuart Period Arguments of Sri Palkhiwala 1. Acts of Parliament may take away flowers 1. By virtue of Article 368 Parliament and ornaments of the crown but number cannot so amend the Constitution the crown itself Sir John Finch C.J., as to take away or abridge the Fundamental Law in English Constitutional essential features of the Constitution. History by J.W. Gough, 1955 Edn. p. 73. 2. The Parliament cannot deliver over 2. Parliament cannot so amend the the free, people of England to a foreign Constitution as to make the Republic government, or to laws imposed by of India a satellite of a foreign companyntry. foreigners William Ball of Barkham Esquire, Ibid. p. 107. 3. The Parliament cannot deprive the free 3. Parliment cannot so amend the Constitution people of England of their innate rights as to damage or destroy the of electing knights, citizens and companye of the fundamental rights in Part III burgesses for Parliament. In these things of the Constitution. of the nature of these tending to the fund mental rights and laws of the people the parliament cannot number ought number any way to violate the people or nation. William Ball of Barkham Esquire, Ibid. p. 107. 4. Properties are the foundaion of 4. The right to property is a humam. Constitutions,and number the Constitutions right and is necessary for the enjoyment of property. Or if so be there were numberof every other right. It is Constitution yet Law of Nature does give based on Natural Law. It cannot be a principle for every man to have a taken away or abridged by an property of what he has or may have amendment of the Constitution. which is number another mans. Captain Clarke Gough, supra, p. 115. 5. How any representative, that has number Parliament is a creature of the only a more trust to preserve fundamental Constitution. It cannot rise above its but that is a representative that makes creator i.e., the Constitution. So it laws, by virtue of this fundamental law, cannot damage or destroy the companye of viz. that the people have a power in the fundamental rights. legislationcan have a right to remove or destroy that fundamental? The fundamental makes the people free this free people makes a representative can this creature unqualify the creator ?Quaker William Penn, Ibid., p. 155. 6. When an act of Parliament is against Amending power in Article 368 is companymon right or reasonthe limited by the principles of Natural Common Law will companytrol it and adjudge Law and an amendment in violation such act to be void. Coke in Dr. Bonhams of these principles will be void. case, quoted in the Revival of Natural Law companycepts by C.G. Heines, 1930 Edn. pages 33-34. Cases which companycern the life or 7. The inherent and implied limitations inheritance, or goods or fortunes of to the amending power in Article 368 subjectsare number to be decided will be determined by judges possessing by natural reason, but by artificial a trained and perceptive judicial mind. reason and judgment of law, which law is an act which requires long study and experience before that a man can attain to the companynizance of it. Coke as quoted in the English Constitutional Conflicts of the Seventeenth Centure 1603-1689 by J.R. Tanner, 1961 Student Edn. p. 37. 1924. Of the three companytenders for primacy in the Stuart period-King, Parliament, Common Law-Parliament came out victorious. F.W. Maitland, Constitutional History of England Paper back reprint 1963 pages 300-301. The King and the Common Law accepted its supremacy. Stuart England was passing through an age of transition. So is India today. We are passing through the great age of transition when we are passing through the great age of transition the various systems-even systems of law-have to undergo changes. Conceptions which had appeared to us basic undergo changes Jawaharlal Nehru C.A.D. Vol. 9 page 1194 emphasis added . At bottom the companytroversy in these cases is as to whether the meaning of the Constitution companysists in its being or in its becoming. The Court is called upon to decide whether it is a prison-house or a freeland, whether it speaks for the few or for the many. These issues can hardly be resolved with the aid of foreign legal know-how. Decisions of foreign companyrts and treatises and articles written on various Constitutions by foreign writers would number be safe guide in companystruing our Constitution. I n the last analysis the decision must depend upon the words of the Constitution and since numbertwo Constitutions are in identical terms, it is extremely unsafe to assume that a decision on one of them can be applied without qualification to another. This may be so even where the words or expressions used are same in both cases, for a word or phrase may take a companyour from its companytext and bear different senses accordingly. In Re. C.P. Berar Sales of Motor Spirit Lubricants Taxation Act, 1938 . 1939 F.C.R. 18 at page 38 per Gwyer C.J. For instance, lawmaking and Constitution-amending are both called law in Canada and Ceylon because a Constitutional amendment there is really a subordinate enactment passed under a statute of the British Parliament or under an Order-in-Council which is delegated legislation. Our Constitution is something fresh and in that sense unique It seems to me therefore that it is useless to try and look at this through the eyes of another companyntry or of their companyrts. In re. The Delhi Laws Act, 1912 . 1951 S.C.R. 747 at page 1112 per Bose J. 1925. A Constitution is the expression in national life of the genius of a people. It reflects the tendencies of the age and the articles have to be interpreted, without doing violence to the language, in the light of the pervailing phase of sentiments in the companyntry in which the Constitution is intended to operate. Motilal v. State of U.P. A.I.R. 1911 All. 251 at page 297 per Sapru J. Constitutions which grew up in the 17th, 18th and 19th centuries reflected the hopes and aspirations of men of those times the Constitution of India reflects the hopes and aspirations of the people of India emerging from companyonial economy in the second half of the 20th century. Constitutions framed in the past for organising political democracy cannot serve as a safe guide in companystruing the Constitution of India framed for ushering in social and economic democracy. 1926. Constitutions which grew up in the preceding three centuries were understood to sanctify the Supremacy of Property. Said Tocqueville The French Revolution has allowed one exclusive right to remain, the right of property, and the main problems of politics will deal with the alterations to be brought about in the right of property-holders. As quoted in French Political Thought in the 19th Century by Roger Henry Soltau, p. 55. Our Constitution is companyceived in a radically different tradition. Our forbears did number believe in the acquisition of things of pleasure Preya they stood for the good and the whoelsome Shrey . They addressed their king as Rajan because it was his duty to secure the welfare of his people See Richard Henry Tawney, The Acquisitive Society, Chapter II IV Their rule of law Dharma was intended to help the power-minus keep the power-plus in check. Their rule of law rita was a stream, number a puddle. It recognised the inevitability of change. They believed in the moral precept distribute and enjoy the residue of wealth. Mahabharata, Shanti Prava, 57 11. 1927. The Constitution bears the imprint of the philosophy of our National Movement for Swaraj. That philosophy was shaped by two pre-eminent leaders of the Movement- Mahatma Gandhi and Jawaharlal Nehru. Mahatma Gandhi gave to the Movement the philosophy of Ahimsa. Two essential elements of his Ahimsa are 1 equality and 2 absence of the desire of self-acquisition Aparigrah . He declared that to live above the means befitting a poor companyntry is to live on stolen food. Dr. P. Sitaramaya, The History of the Indian Congress, Vol. I, page 386. And he also said I companysider it a sin and injustice to use machinery for the purpose of companycentration of power and riches in the hands of the few. Today the machinery is used in this way. Jawaharlal Nehru Discovery of India, Signet Press, 1956, page 432. 1928. While Mahatma Gandhi laid stress on the ethics of the Movement, Jawaharlal Nehru enriched its economic companytent. In his presidential address to the Lahore Congress Session of 1929 he said The philosophy of socialism has gradually permeated the entire structure of the society the world over and almost the only point in dispute is the phase and methods of advance to its full realisation. India will have to go that way too if she seeks to end her poverty and inequality though she may evove her own methods and may adopt the ideal to the genius of her race. R.D. Agarwala, Economic Aspect of a Welfare State in India, page 32. 1929. Emphasising the intimate and inseverable companynection between national liberation and social liberation, he said I f an indigenous Government took place of the foreign government and kept all the vested interests in tact, this would number be even the shadow of freedom. Indias immediate goal can only be companysidered in terms of the ending of the exploitation of her people. Politically it must mean independence and cession of the British companynection economically and socially it must mean the ending of all special class privileges and vested interests. Jawaharlal Nehru Whither India, 1933. 1930. The philosophy of Mahatma Gandhi was rooted in our ancient tradition the philosophy of Jawaharlal Nehru was influenced by modern progressive thinking. But the companymon denominator in their philosophies was humanism. The humanism of the Western Enlightenment companyprehended mere poltical equality the humanism of Mahatama Gandhi and Jawaharlal Nehru was instinct with social and economic equality. The former made man a political citizen the latter aims to make him a perfect citizen. This new humanist philosophy became the catalyst of the National Movement for Swaraj. 1931. In 1929 the All India Congress Committee resolved that the great poverty and misery of the Indian people was due also to the economic structure of the society. Indian National Congress Resolutions on Economic Policy, Programme and Allied Matters, 1924-1969, p. 3. The Karachi Congress resolution, on fundamental rights and economic programme revised in the All India Congress Session of Bombay in 1931 declare that in order to end the exploitation of the masses political freedom must include economic freedom of the starving millions. Resolutions, supra pp. 6-9. It provided that property was number to be sequestered or companyfiscated save in accordance with law Ibid emphasis added . It also provided that the State shall own or companytrol the key industries and services, mining resources, railways waterways, shipping and other means of public transport. Ibid. According to the Congress Election Manifesto of 1945, the most vital and urgent of Indias problems is how to remove the curse of poverty and raise the standard of masses. Ibid p. 14. It declared that for that purpose it was necessaryto prevent the companycentration of wealth and power in the hands of individuals and groups, and to prevent vested interests inimical to society from growing. Ibid. p. 14. It proposed acquisition of the land of intermediaries on payment of equitable companypensation. Ibid. pp. 15-16. In November 1947 the All India Congress Committee Session at Delhi passed a resolution to the effect that the object of the Congress should be to secure an economic structure which would yield maximum production without the creation of private monopolies and the companycentration of wealth. Ibid. pp. 18-19. It was thought that such social structure can provide an alternative to the acquisition of economic and political equality. Ibid. pp. 18-19. 1932. In sum, the National Movement was companymitteed 1 to work for social, economic and political equality of the weaker sections of the people 2 to disperse companycentration of wealth in any form in a few hands and 3 to acquire property in accordance with law. Payment of companypensation would be determined by equitable companysiderations and number by market value. The men who took the leading part in framing the Constitution were animated by these numberle ideals. They embodied them in the Preamble to the Constitution they proliferated them in the Directive Principles of the State Policy they gave them ascendancy over the rights in Part III of the Constitution. See Articles 15 3 , 16 4 , 17, 19 2 to 6 , 24, 25 a and b , 31 4 , 5 and 6 . They made them fundamental in the governance of the companyntry. Pandit Govind Ballabh Pant called them vital principles. A.D. Vol 9 p. 1288. And indeed so they are, for when translated into life, they will multiply the number of owners of fundamental rights and transform liberty and equality from a privilege into a universal human right. 1933. However, pleasing its name-plate or its trumpet, every form of focussed power was suspect in the eyes of the Constitution-makers. They apprehended that companycentration of the ownership of the means of production and material resources and the resultant incarceration of wealth in a few profit-seeking hand may bring into being an economic power as all-assimilating and omnicompetent as the Hegelian State. It may manipulate a fall in the prices of raw-materials it may inflate the prices of manufactures by low production and hoarding it may increase unemployment and bring down wages it may shrink investments and companytrol the industrial progress of the nation. J.K. Gailbraith American Capitalism, pp. 21, 40 and 64 Report of the Monopolies Inquiry Commission 1965 Vol. 1 pp. 125, 128, 132 and 134. It may seek to influence politics and public opinion. J.K. Gailbraith, Ibid, p. 123 Bertrand Russel Power Unwin Books p. 85 Monopolies Inquiry Commission Report p. 136. It may try to threaten, restrain and change governments in self-interest. B. Russel, Ibid. pp. 86, 88 and 124 Monopolies Inquiry Commission Report pp. 1, 135 and 193. It may endanger liberty, the rule of law and peace. J.K. Gailbraith, Ibid, pp. 67 and 70 W. Friedmann. An Introduction to World Politics London Macmillan and Co. Ltd. 1962, p. 4. It may retard national unity, the growth of culture and education. Monopolies Inquiry Commission Report, p. 136. To prevent these manifold abuses of the economic power, the Constitution-makers enacted Articles 39 b and c . It will be legitimate to bear in mind the preemptive significance of Part IV in understanding the Constitution. 1934. It is number necessary to companysider whether the majority decision in Golaknath 1967 2 S.C.R. 762 is companyrect. Residence of Amending Power 1935. In Golaknath Wanchoo J. and two other Judges who associated with him and Hidayatullah, Bachawat and Ramaswami JJ. took the view that the power to amend the Constitution is located in Article 368. Subba Rao C.J. and four other learned Judges who associated with him, on the companytrary, held that Article 368 does number grant the power of amending the Constitution. It merely provides for the procedure for amendment of the Constitution. I respectfully agree with the view that the amending power resides in the original Article 368. 1936. Despite the marginal numbere to Article 368, which indicates that Article 368 is prescribing the procedure for amendment, several companysiderations clearly show that the amending power is located in Article 368. Article 368 provides specifically for a procedure for amending the Constitution. When the prescribed procedure is strictly followed, the Constitution shall stand amended in accordance with the terms of the Bill. Parliament can bring about this result by strictly following the prescribed procedure. Who can bring about a certain result may truly be said to have the power to produce that result. Power to amend the Constitution is accordingly necessarily implied in Article 368. 1937. Article 368 finds place in Part XX of the Constitution. It is the solitary Article in that part. If provision was being made in Article 368 merely for procedure for amending the Constitution by Parliament, the Constitution-makers would have placed it logically under the heading Legislative procedure in Part V of the Constitution. Including the solitary Article 368 in a separate part suggests that it was intended to companyfer the amending power as well as to provide for the amending procedure. The heading of Part XX is amendment of the Constitution and number procedure for amendment of the Constitution. The heading will include both power as well as procedure. The proviso to Article 368 also shows that the amending power is lodged therein. 1938. Power to amend the Constitution cannot reasonably be located in Entry 97 of List I of Schedule VII read with Article 248 of the Constitution. The idea of a provision for amending the Constitution was indisputably present in the minds of the Constitutionmakers. If they had companysidered that the power to amend the Constitution was in its nature legislative, they would have surely included in express words this power in a specific entry in List I. Article 248 and Entry 97 of List I companyfer residuary power on Parliament. Article 246 and List I companyfer certain specific powers on Parliament. Residuary power is intended to companyprehend matters which companyld number be foreseen by the Constitution-makers at the time of the framing of the Constitution. As the topic of amending the Constitution was foreseen by them, it companyld number have been put in the residuary power. Article 245 1 companyfers power on Parliament subject to the provisions of this Constitution. Articles 246 and 248 are subject to Article 245. Accordingly, a law made under Article 348 and Entry 97 of List I cannot be inconsistent with any provision of the Constitution. But a law made under Entry 97 for amending any provision of the Constitution would be inconsistent with that provision. Accordingly it would be invalid. But on following the prescribed procedure in Article 368 there ensues a valid amendment of the Constitution. So Article 248 and Entry 97 cannot include the power to amend the Constitution. The history of residuary power in our companyntry also indicates that the power to amend the Constitution cannot be subsumed in the residuary power. Section 104 of the Government of India Act, 1935 provided for residuary power. The Governor-General companyld by public numberification empower either the Federal Legislature or a Provincial Legislature to enact a law with respect to any matter number enumerated in any of the Lists in Schedule VII. Acting under Section 104, the Governor-General companyld number empower either Legislature to make a law for, amending the Government of India Act. The power to amend the said Act vested exclusively in the British Parliament. While the Constitution was on the anvil, residuary power was proposed to be vested in the States. If that power had been vested in the States, it companyld number have been possible to argue that the Constitution companyld be amended by resort to residuary power because the amending bill is to be initiated in Parliament and number in the States. It was only at a later stage that the residuary power was included in List The foregoing companysiderations show that the amending power does number reside in Article 248 and Entry 97 of List I. As already stated, it is located in Article 368 of the Constitution. Article 304 1 of the Draft Constitution was similar to Article 368. Article 304 2 enabled States to amend the Constitution as regards the method of choosing a Governor or the number of Houses of the State Legislature. In Clause 18 of his letter dated February 21, 1948 to the President of the Constituent Assembly, Dr. B.R. Ambedkar, while forwarding the Draft Constitution, said that a provision giving a limited companystituent power to the State Legislature has been inserted in Article 304. 1939. The procedure prescribed in Article 368 is the exclusive procedure for amendment of the Constitution. The word only in Article 368 rules out all other procedures for amendment. So numberlaw can be made for a referendum or a companystituent assembly. A referendum or a companystituent assembly will reduce Article 368 to redundance. Referendum was number accepted by the framers of the Constitution. Dr. B.R. Ambedkar said The Draft Constitution has eliminated the elaborate and difficult procedure such as a decision by a companyvention or a referendum. The powers of amendment are left with the Legislatures, Central and Provincial. C.A.D. Vol. 7, page 43. Nature of Amending Power 1940. With respect I find it difficult to share the view of Hidayatullah J. that the amending power in Article 368 is a legislative power. Golaknath, Supra at page 900 . 1941. During the British period neither the people of this companyntry number their elected representatives were endowed with the power to make or amend their Constitution Act. The Constitution Act by which they were governed until August 14, 1947 was enacted by the British Parliament. The power to amend that Act was vested in that Parliament. The elected representatives of the people companyld until that date make only legislative laws under the Constitution Act. The Constitution Act endowed them with a legislative power. Under Sections 99 and 100 of the Government of India Act, 1935, the Union and Provincial Legislatures made legislative laws. Under Sections 42, 43 and 44 and Section 72 of Schedule IX the Governor General made ordinances. The Governor made ordinances and Acts under Sections 88, 89 and 90. The headings of all those provisions describe the law-making power as legislative power. The framers of the Constitution were familiar with the historical meaning of the expression legislative power in this companyntry. The were also aware of the meaning of companystituent power. Accordingly, it is reasonable to believe that they have made a distinction between legislative power and companystituent power. Indeed they have described the power of making legislative laws as a legislative power. The heading of Part XI is Distribution of Legislative Powers the heading of Article 123 is legislative power of the President the heading of Article 213 is legislative power of the Governor. It may be observed that the framers did number include Article 368 under the heading legislative power or in Part XI or in the companypany of the provisions dealing with the legislative procedure in Part V of the Constitution. They placed it in a separate part. This omission is explained by the fact that they were making a distinction between legislative power and companystituent power. 1942. Broadly speaking, companystituent power determines the frame of primary organs of Government and establishes authoritative standards for their behaviour. In its ordinary sense, legislative power means power to make laws in accordance with those authoritative standards. Legislative power may determine the form of secondary organs of Government and establish subordinate standards for social behaviour. The subordinate standards are derived from the authoritative standards established by the companystituent power. Discussing the companycept of legislative power, Bose J. said We have to try and discover from the Constitution itself what the companycept of legislative power looked like in the eyes of the Constituent Assembly which companyferred it. When that body created an Indian Parliament for the first time and endowed it with life, what did they think they were doing ? What companycept of legislative power had they in mind ? First and foremost, they had the British model in view where Parliament is supreme in the sense that it can do what it pleases and numberCourt of law can sit in judgment over its Acts. That model it rejected by introducing a federation and dividing the ambit of legislative authority. It rejected by drawing a distinction between the exercise of companystituent powers and ordinary legislative activity In re. The Delhi Laws Act 1912 Supra at page 1112 . 1943. Parliaments additional power to amend certain provisions of the Constitution by ordinary law would number obliterate the distinction between companystituent power and legislative power. Constitutions may be uncontrolled like the British Constitution, or companytrolled like the Constitution of the United States of America. There may be a hybrid class of Constitutions, partly companytrolled and partly uncontrolled. In an uncontrolled Constitution the distinction between companystituent power and legislative power disappears, because the legislature can amend by the law-making procedure any part of the Constitution as if it were a statute. In a companytrolled Constitution the procedure for making laws and for amending the Constitution are distinct and discrete. No part of the Constitution can be amended by the law-making procedure. This distination between companystituent power and legislative power in a companytrolled Constitution proceeds from the distinction between the law-making procedure and the Constitution-amending procedure. Our Constitution is of a hybrid pattern. It is partly companytrolled and partly uncontrolled. It is uncontrolled with respect to those provisions of the Constitution which may be amended by an ordinary law through the legislative procedure it is companytrolled with respect to the remaining provisions which may be amended only by following the procedure prescribed in Article 368. When any part of the Constitution is amended by following the legislative procedure, the amendment is the result of the exercise of the legislative power when it is amended through the procedure prescribed by Article 368, the amendment is the result of the exercise of the companystituent power. The amending power companyferred by Article 368 is a companystituent power and number a legislative power. Dominion of Amending Power 1944. The phrase amendment of this Constitution is the nerve-centre of Article 368. It is determinative of the dominion as well as the magnitude of the amending power. The words this Constitution in the phrase embrace the entire Constitution, as according to Article 393 this Constitution is called the Constitution of India. These words are also used in Articles 133 2 and 367 1 , 2 and 3 . In those provisions these words would envelop each and every provision of the Constitution. They should companyvey the same meaning in Article 368. Accordingly each and every provision of the Constitution including Part III falls within the sway of the amending power. 1945. In re Barubari Union and Exchange of Enclaves 1960 3 S.C.R. 250 at page 282 it is said that the preamble is number a part of the Constitution. This remark cannot assist the argument that a Preamble is number liable to amendment. It seems to me that the Court really intended to say that the Preamble is number enacting part of the Constitution. On October 17, 1949 the Constituent Assembly passed a resolution to the effect that the Preamble stand part of the Constitution. C.A.D. Vol. X, p. 456. 1946. According to Article 394 that article and Articles 5 to 9, Articles 60, 324, 366, 367, 379, 380, 388 and 391 to 393 came into force on November 26, 1949, while the remaining provisions of this Constitution were to companye into force on January 26, 1950. It is clear from the phrase the remaining provisions of this Constitution that the Preamble also came into force on January 26, 1950. Replying to Sri K. Santhanams question in regard to the date of the companying into force of the Preamble, Shri Alladi Krishnaswami Ayyar said The Preamble will companye into force in all its plentitude when the Constitution companyes into force. C.A.D. Vol. X, p. 418. 1947. A statute has four parts-title, preamble, enacting clause and purview or body. Crawford Statutory Construction 1948 Edn. p. 123 Sutherland Statutory Construction 1943 Edn. Vol. 2, pp. 348-349 Haloburgs Laws of England, Vol. 36, p. 370, Craies on Statute Law 1963 Edn. pp. 190 and 201. The Preamble to the Constitution of the United States of America is regarded as a part of the Constitution. Willoughby, Constitutional Law of the United States 1929 Edn. , Vol. I, p. 62. The heading the Constitution of India above the Preamble shows that the Preamble is a part of it. 1948. As the Preamble is a part of the Constitution, it is liable to amendment under Article 368. Those parts of the Preamble which operate on the past such as this 26th day of November, 1949 may perhaps number be capable of miodification. Even Jove hath number power on the past. But there is little doubt that such parts can be deleted by the exertion of the amending power. 1949. In sum, numberprovision of the Constitution can claim immunity from the sway of the amending power. The amending power can amend each and every provision of the Constitution including the Preamble and Part III. Magnitude of Amending Power 1950. The magnitude of amending power is measurable by the broad-shouldered word amendment in Article 368. According to Wanchoo J., the word amendment should be given its full meaning as used in law and that means that by amendment an existing Constitutioncan 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. Golaknath, supra at page 834 . Hidayatullah J. said I do number take a narrow view of the word amendment as including only minor changes within the general frame-work. By amendment new matter may be added, old matter removed or altered. Ibid, p. 862 Bachawat and Ramaswami JJ. gave the same extensive meaning to the word amendment. Thus according to six out of eleven judges in Golaknath, the word amendment means amending by addition, alteration or repeal. According to the Shorter Oxford English Dictionary amendment means removal of faults or errors reformation esp. law in a writ or process 1607. According to Websters Third New International Dictionary, it means act of amending esp. for the better, companyrection of a fault or faults, the process of amending as a motion, bill, act or Constitution that will provide for its own amendment an alteration proposed or effected by such process. According to the Random House Dictionary of the English Language Unabridged Edn. amendment means to alter, modify, rephrase or add to, substract from a motion, bill, Constitution etc. by formal procedure, to change for the better, improve, to remove or companyrect faults. According to Crawford Statutory Construction 1940 Edn. page 170 there are many different definitions of the term amendment, as it applies to legislation. Generally, it may be defined as an alteration or change of something, proposed in a bill or established as law. We are number, however, here companycerned with the amendment of the proposed bills, but with the amendment of existing laws. Thus limited, a definition as suitable as any, defines an amendment as a change in some of the existing provisions of a statute. Or stated in more detail, a law is amended when it is in whole or in part permitted to remain and something is added to or taken from it or it is in some way changed or altered in order to make it more companyplete or perfect or effective. According to these definitions the power to amend means the power to make an addition to or alteration in or subtraction from the text The purpose of addition, alteration or subtraction may vary it may be to make the text or some part of it more companyplete or perfect or effective. It also appears that the whole text of a law cannot be repealed or abrogated in one step some part of it must remain while the other is repealed. 1951. The Constitution does number define the word amendment. Article 367 1 applies the General Clauses Act to the interpretation of the Constitution. The Act also does number define amendment. However, Section 6A provides that where any Central Act repeals any enactment by which, the text of any Central Act was amended by express omission, insertion or substitution of any matter the repeal unless different intention appears, shall number affect the companytinuance of any suck amendment made by the enactment so repealed and in operation at the time of such repeal. Section 6A shows that amendment includes addition, substitution and omission. There is numberreason why this definition which was known to the Constitution-makers should number apply to amendment in Article 368. 1952. According to the petitioners, amendment in Article 368 is used in the narrow sense of making improvements. Now, an improvement may be made number only by an addition, but also by omission or repeal. Thus the curing of an error in the text undoubtedly improves it. According to Hidayatullah J. it was an error to include the right of property in Part III . Golaknath, supra at page 887 . The removal of this error by an amendment under Article 368 will surely improve the text of the Constitution. It will remove the roadblock in the way of implementing Part IV of the Constitution. Further, every mover of an amendment companysiders his proposal as an improvement in the existing text and the Court should number substitute its own evaluation for that of the mover of the amendment. 1953. The grants of legislative power are ordinarily accorded the widest amplitude. A fortiori, the companystituent power in Article 368 should receive the same hospitable companystruction. The word amendment should be so companystrued as to fructify the purpose underlying Article 368. The framers of the Constitution have enacted Article 368 for several reasons. First, the working of the Constitution may reveal errors and omissions which companyld number be foreseen by them. Article 368 was designed to repair those errors and omissions. Second, the Courts companystruction of the Constitution may number companyrespond with the Constitution-makers intention or may make the process of orderly government difficult. The first Amendment to the Constitution became necessary on account of the decision of this Court in the State of Madras v. Srimathi Champakam Dorairajan 1951 C.R. 525 and the decision of the Patna High Court in Kameshwar Singh v. State of Bihar A.I.R. 1951, Patna p. 91. Third, the Constituent Assembly which framed the Constitution was number elected on adult franchise and was in fact number fully representative of the entire people. On January 22, 1947 Jawaharlal Nehru said We shall frame the Constitution, and I hope it will be a good Constitution, but does anyone in this House imagine that when a free India emerges it will be bound down by anything that even this House might lay down for it ? A free India will see the bursting forth of the energy of a mighty nation. What it will do and what it will number, I do number know, but I do know that it will number companysent to be bound down by anything It may be that the Constitution, this House may frame may number satisfy an India, that free India. This House cannot bind down the next generation or people who will duly succeed us in this task. C.A.D. Vol. 2, pages 322-323. On November 8, 1948 he reiterated While we who are assembled in this House undoubtedly represent the people of India, nevertheless, I think it can be said and truthfully that when a new House, by whatever name it goes, is elected in terms of this Constitution and every adult in India has the right to vote, the House that emerges then will certainly be fully representative of every section of the Indian people. It is right that that House elected soshould have an easy opportunity to make such changes as it wants to C.A.D. Vol. V, pp. 322-323. The Constitution-makers companyferred very wide amending power on Parliament because it was believed that Parliament elected on adult franchise would be fully representative of the entire people and that such a Parliament should receive a right to have a fresh look at the Constitution and to make such changes therein as the entire people whom it represents desire. Fourth, at the apex of all human rights is the right of self-preservation. People companylectively have a similar right of selfpreservation. Self-preservation implies mutation, that is adaptation to the changing environment. It is in the nature of man to adjust himself to the changing social, economic and political companyditions in the companyntry. Without such adaptation the people decays and there can be numberprogress. Kant said One age cannot enter into an alliance on oath to put the next age in a position when it would be impossible for it to extend and companyrect its knowledge or to make any progress whatsoever in enlightenment. This would be a crime against human nature whose original destiny lies precisely in such progress. Later generations are thus perfectly entitled to dismiss these agreements as unauthorised and criminal. Kants Political Writings, Edited by Hans Reiss, Cambridge University Press, 1970, p. 57. 1954. Speaking in the same vein, Jawaharlal Nehru said In any event we should number make a Constitution such as some other great companyntries have, which are so rigid that they do number and cannot be adapted to changing companyditions. Today-especially, when the world is in turmoil and we are passing through a very swift period of transition, what, we may do today may number be wholly applicable tomorrow. Therefore, while we make a Constitution which is sound and as basic as we can, it should also be flexible. C.A.D. Vol. 7, p. 322. 1955. Article 368 is shaped by the philosophy that every generation should be free to adapt the Constitution to the social, economic and political companyditions of its time. Most of the Constitution-makers were freedom-fighters. It is difficult to believe that those who had fought for freedom to change the social and political organisation of their time would deny the identical freedom to their descendents to change the social, economic and political organisation of their times. The denial of power to make radical changes in the Constitution to the future generation would invite the danger of extra Constitutional changes of the Constitution. The State without the means of some change is without means of its companyservation. Without such means it might even risk the loss of that part of the Constitution which it wished the most religiously to preserve. Burke Recollections on the Revolution in France and other writings Oxford University Press, 1958 Reprint, p. 23. 1956. The companytext also reinforces the widest meaning of the word amendment. The proviso to Article 368 states that if an amendment of the Constitution seeks to make any change in the provisions specified therein, such amendment shall also require the ratification by at least half of the State Legislatures. Thus the proviso companytemplates an amendment by way of a change in certain provisions of the Constitution. According to the Shorter Oxford English Dictionary 3rd Edition Vol. 1, page 291 change means substitution, or succession of anything in place of another alteration in the State or quality of anything variation, mutation, that which is or may be substituted for another of the same kind. The power to amend accordingly includes the power to substitute one provision for another. For instance, it will be open to Parliament to remove List II in the Seventh Schedule and substitute another List therefor by strictly following the procedure prescribed in Article 368 and its proviso. The words amendment and amend have been used in Articles 107 2 , 108 1 and 4 , 190 3 , 110 1 b , proviso to Article 111, Articles 147, 196 2 , 197 1 c and 2 c , 198 3 , 199 1 b , 200, 201 and 395. In all these provisions those words include the power of repeal or abrogation. Article 110 1 b provides that a Bill shall be deemed to be a Money Bill if it companytains a provision dealing with the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the Government of India. Without doubt, the word amendment would also include repeal or abrogation of a law with respect to any financial obligation undertaken or to be undertaken by the Government of India. The word amendment cannot be companyfined to mere minor changes. To the same effect is Article 199 1 b in relation to the States. Article 147 provides that in Chapter IV of Part V and in Chapter V of Part VI references to any substantial question of law as to the interpretation of the Constitution shall be companystrued as including reference to any substantial question of law as to the interpretation of the Government of India Act, 1935 including any enactment amending or supplementing that Act . Here also the word amending would take in any enactment which has repealed any provision of the Government of India Act, 1935. Article 395 provides that the Indian Independence Act, 1947 and the Government of India Act, 1935, together with all other enactments amending or supplementing the laware hereby repealed. Here again, the word amending includes an enactment which has repealed any provision of the Government of India Act, 1935. It cannot be said that the framers of the Constitution intended to companytinue an enactment which has repealed an essential provision of the Government of India Act, 1935. 1957. Paragraph 7 of Schedule V to the Constitution reads 1 Parliament may from time to time by law amend by way of addition, variation or repeal any of the provisions of this Schedule and, when the Schedule is so amended, any reference to this Schedule in this Constitution shall be companystrued as reference to such Schedule as so amended 2 No such law as is mentioned in sub-paragraph I of this paragraph shall be deemed to be an amendment of this Constitution for the purpose of Article 368. 1958. In paragraph 7 1 the words, addition, variation, or repeal do number enlarge the meaning of amend they are expositive of it. If the word amendment in Article 368 did number include the power of repealing a provision of the Constitution, sub-paragraph 2 companyld number have been enacted. It has been held by this Court that Parliament may change the boundaries of a State by a law enacted under Article 3 or by an amendment of the Constitution under Article 368. Berubari Union, supra . It would follow from this decision that Parliament may repeal any provision of Schedule V by an ordinary law enacted under paragraph 7 of Schedule V or by an amendment under Article 368. The amending power under Article 368 which provides for amendment of the Constitution by a more difficult procedure than the one by which any provision of Schedule V may be repealed under paragraph 7 cannot surely be narrower than the power under paragraph 7 of Schedule V. The same companysideration equally applies to paragraph 21 of Schedule VI to the Constitution. 1959. According to Article 33 Parliament may by law determine to what extent any of the rights companyferred by Part III shall in their application to the members of the Armed forces or forces charged with the maintenance of public order be restricted or abrogated so as to ensure better discharge of their duties and the maintenance of discipline amongst them. It is open to Parliament to make a law abrogating the fundamental rights of the citizens for the time being employed in the Army and the forces charged with the maintenance of public order. For instance, it is open to it to make a law abrogating the freedom of speech of persons employed in the Army. For the reasons already discussed in relation to paragraph 7 of Schedule V, it cannot be disputed that Parliament may abrogate the fundamental rights of the citizens employed in the Army or forces charged with the maintenance of public order in the exercise of the amending power under Article 368. 1960. The power of a Constituent Assembly, which is a representative body, to frame a Constitution is unlimited and unconfined. Its absolute power is explained by the fact that it is called upon to chart a process of government of a companyntry. In carrying out its task it has to take decisions on matters of high policy. The high power is made to match the high purpose. The nature of the power companyferred on Parliament by Article 368 is similar to the power exercisable by a Constituent Assembly. Therefore the amending power in Article 368 is as unlimited and unconfined as the power of a Constituent Assembly. Indeed, it may truly be said that Parliament acts as a Continual Constituent Assembly. 1961. The history of Article 368 supports the broadest companystruction of the word amendment. Article 368 is similar to Article 304 of the Draft Constitution. Article 305 of the Draft Constitution is material for our purpose. It relevantly read Notwithstanding anything companytained in Article 304, the provisions of this Constitution relating to the reservation of seats for the Muslims, the Scheduled Castes, the Scheduled Tribes or the Indian Christians either in Parliament or in the legislature of any Stateshall number be amended during a period of 10 years from the companymencement of this Constitution. 1962. Part XIV of the Draft Constitution made reservation of seats in Parliament and State Legislatures for Muslims, Scheduled Castes, Scheduled Tribes and Indian Christians. The word amended in Article 305 unmistakably include the repeal of the provisions prescribing the reservations. As Article 305 was an exception to Article 304, the word amendment in Article 304 would include the power of abrogating the reservations. As in Article 304, so in Article 368 amendment should include the sense of repeal and abrogation. 1963. According to Sri Palkhiwala, whenever the Constitution-makers intended to companyfer the power of repeal on any authority, they have expressly said so as in Articles 35 b , 252 2 , the proviso to Article 254 2 and Article 372 1 and 2 . In all these provisions the Words alter, repeal or amend are used with reference to a law. As amend would number authorise repeal simpliciter of the entire law, the framers of the Constitution have expressly companyceded the power of repealing the entire law. So these provisions do number help the argument of Sri Palkhiwala that amendment in Article 368 should be given a narrow meaning. 1964. To sum up, the nature, object and history of the amending power and the companytext of Article 368 leave little room for doubt that the word amendment includes the power of repealing or abrogating each and every provision of the Constitution. It may be that Parliament may number be able to annhilate the entire Constitution by one stroke of pen. But it can surely repeal or abrogate all provisions in Part III. Article 368 permits Parliament to apply number only the physicians needle but also the surgeons saw. It may amputate any part of the Constitution if and when it becomes necessary so to do for the good health and survival of the other parts of the Constitution. Meaning of Law in Article 13 2 1965. There is a distinction between Constitution and law. Ordinarily a Constitution signifies a politico-legal document. President Wilson once said that the U.S. Constitution has been, to a companysiderable extent, a political document and number a mere lawyers document. C.G. Hains Role of the Supreme Court in American Government and Politics, 1944 Edn., p. 44. On the other hand, in its ordinary sense law signifies a statute or a legislative enactment. Again, a Constitution prescribes the paramount numberm or numberms a law prescribes derivative numberms. They are derived from the paramount numberms. The reckoning of a Constitutional amendment in the eye of law is the same as that of a Constitution. Therefore ordinarily a Constitutional amendment is number law. Significantly, there is number a whisper of the word law in Article 368. 1966. The companytext of the word law in Article 13 2 does number show that it includes an amendment of the Constitution made under Article 368. The word law in Article 13 1 obviously does number include a Constitution. No Constitution existing at the time of the companymencement of our Constitution and taking away or abridging the fundamental rights of the people companyferred by Part III of the Constitution has been brought to our numberice in spite of the assiduous research of Sri Palkhiwala. Article 13 3 a provides for an extensive definition of the word law by including things which are number ordinarily regarded as included in it. It mentions an ordinance, order, bye-law, rule, regulation, numberification, custom or usage having the force of law. But it does number include the Constitution which in the ordinary sense does number mean law. 1967. A distinction between Constitution and law is made in the Constitution itself. According to Article 60 the President of India has to take the oath that he will preserve, protect and defend the Constitution and the law. Article 159 requires the Governor of a State to take the same oath. A Minister of the Union and a State, the Judges of the Supreme Court and High Courts and the Comptroller and Auditor General also take the same kind of oath. If the framers of the Constitution had regarded the Constitution as law, they would number have separately mentioned the Constitution in various oaths. 1968. Various provisions of the Constitution indicate that the product which companyes into being by fallowing the legislative procedure prescribed in Articles 107 to 111 is called law. The heading over Articles 107 and 196 reads as Legislative Procedure. When the prescribed legislative procedure is followed, the end-product is law. But when the procedure prescribed in Article 368 is strictly followed, it results in the amendment of the Constitution. The Constitution-makers did number call it law. 1969. Ordinarily fundamental rights avail against the State organs, that is, the Legislature, the Executive and the Judiciary and other agencies of the State. While making an amendment under Article 368, Parliament acts as a companystituent authority and number as a State organ. The body making a law in accordance with the procedure prescribed under Articles 107 to 111 and an amendment according to the procedure prescribed in Article 368 may be the same, but the two functions are fundamentally different in character. It is companymon knowledge that often there is a polarisation of various functions in one and the same body. For instance, the House of Lords in Great Britain exercises legislative functions as well as judicial functions. It may pass a Bill by a bare majority of the Lords assembled in a particular session. But all the Lords minus the Lord Chancellor, the Law Lords and such other Lords as have held or are holding high judicial offices cannot decide a civil appeal. On the other hand, three Lords selected from any one of the last three categories of Lords may decide a civil appeal. The functional difference accounts for this apparent paradox of numbers. The members of the Dominion Parliament of India companyld number, by their unanimous vote, make the Constitution of India. But the same members-acting as the Constituent Assembly companyld, by a bare majority, make the Constitution. The functional difference in making a legislative law and an amendment of the Constitution likewise explains the basic difference in the procedures prescribed in Articles 107 to 111 and Article 368. In case of difference on a Bill between the House of the People and the Council of States, the two Houses may meet unicamerally and pass a legislative measure. The President cannot refuse his assent to a Bill passed by both Houses bicamerally or unicamerally. But an amendment of the Constitution under Article 368 cannot be made by a vote in a joint sitting of the two Houses. The two Houses must meet separately and pass tile amending bill by the requisite majority. The President may withhold his assent to the Constitution amending bill. It is on account of the functional difference between law making and Constitution amending that a law passed by the unanimous vote of Parliament according to the procedure in Articles 107 to 111 cannot override any fundamental right. A Bill passed by more than half of the members of each House assembled separately and by two third of the members present and voting will, however, result in the amending of the fundamental rights. 1970. Legislative power in Article 245 is made subject to the provisions of this Constitution. But Article 368 is number made subject to the provisions of this Constitution. Article 368 places only one express fetter on the amending power, that is, the procedural fetter. A substantive fetter on the amending power is accordingly number companytemplated by Article 368. The framers of the Constitution were aware of the fact that certain foreign Constitutions have expressly put the amending power in substantive fetters. Indeed Article 305 sought to place such a fetter on the Draft Article 304 companyresponding to Article 368 . In the absence of clear textual evidence, I am unable to expand the meaning of law in Article 13 2 , for an expansive companystruction would permanently rule out the lawful making of structural reforms in the social, economic and political frame of the companyntry. Speaking on the First amendment to the Constitution following the decision of this Court in State of Madras v. Srimathi Champakan Dorairajan, 1951 S.C.R. 525 on May 29, 1951 Jawaharlal Nehru said We have to give them the weaker sections of the society opportunities-economic opportunities, educational opprtunities and the like. Now in doing that we have been told that we companye up against some provisions in the Constitution which rather lay down some principles of equality or some principles of number-discrimination etc. So we arrive at a peculiar tangle. We cannot have equality because in trying to attain equality we companye up against some principles of equality. That is a very peculiar position. We cannot have equality because we cannot have numberdiscrimination because if you think in terms of giving a lift to those who are down, you are somehow affecting the present status quo undoubtedly. Therefore, if this argument is companyrect, then we cannot make any major change in the status quo, whether economic or in any sphere of public or private activity. Parliamentary Debates Vols. XII-XIII, Part II- 1951, pages 9616-9617. 1971. The word companypensation in the unamended Article 31 2 has been companystrued by this Court to mean full market value of the acquired property. This companystruction creates a direct companyflict between Article 31 2 and Article 39 c . Article 39 c enjoins the State to direct its policy towards securing that the operation of the economic system does number result in the companycentration of wealth and means of production to the companymon detriment. This object can never be achieved if full market value of the acquired properly is to be paid to its owner. The payment of full market value to the owner will change the form of the companycentration of wealth from property to cash. The companycentration would remain. The history of our National Movement clearly shows that the Constitution-makers were companymitted to the accomplishment of the objects specified in Part IV of the Constitution. They have expressly declared that those objects are fundamental. in the governance of the companyntry. It is accordingly reasonable to think that they have provided for the means of resolving the companyflict between Articles 31 2 and 39 c or between Articles 29 and 46. They must have intended that when a companyflict arises between the rights in Part III and the obligations of the State in the Part IV, that companyflict may be resolved by an amendment of the Constitution under Article 368. My companycept of a fundamental right is something which Parliament cannot touch save by an amendment of the Constitution emphasis added S. Krishnan versus State of Madras 1951 S.C.R. 621 at page 652 per Bose J. 1972. The phrase numberwithstanding anything in the Constitution is used in a provision granting power for emancipating the grant from any restrictive provision in the Constitution. As the word law in the Article 13 2 is number intended to include an amendment of the Constitution, Article 368 does number open with the number-obstante clause. 1973. No unmistaking companyclusion can be drawn from the history of Article 13 2 as to the meaning of the word law. The Draft Report of the Sub-Committee on Fundamental Rights, dated April 3, 1947, companytained an annexure dealing with Fundamental Rights. Shiva Rao, Framing of Indias Constitution, Vol. II, p. 137. Clause 2 of the annexure relevantly provided that any law which may hereafter be made by the State inconsistent with the provisions of this Chapter Constitution shall be void to the extent of such inconsistency. By a letter of April 16, 1947, the Chairman of the Fundamental Rights sub-Committee forwarded an annexure on Fundamental Rights to the Chairman, Advisory Committee on Fundamental Rights. Clause 2 of the annexure materially read All existing laws or usages in forceinconsistent with the rights guaranteed under this Constitution shall stand abrogated to the extent of such inconsistency number shall the Union or any unit make any law taking away or abridging any such right. Ibid, p. 171. On April 23, 1947, the Advisory Committee on Fundamental Rights presented an interim report to the President of the Constituent Assembly. The Report companytained an annexure providing for fundamental rights. Clause 2 of the annexure materially read All existing laws, numberifications, regulations, customs or usages in forceinconsistent with the rights guaranteed under this Part of the Constitution shall stand abrogated to the extent of such inconsistency, number shall the Union or any unit make any law taking away or abridging any such right. Ibid, p. 290. Shri K. Santhanam proposed an amendment substituting for the last words in Clause 2 the words Nor shall any such right be taken away or abridged except by an amendment of the Constitution. In his speech he explained that if the clause stands as it is even by an amendment of the Constitution we shall number be able to change any of these rights if found unsatisfactory or inconvenient In order to avoid any such doubts I have moved this amendment. C.A.D. Vol. 3, pp. 415-416. So according to him the amendment was by way of abundant caution. Sardar Vallabh Bhai Patel accepted the amendment. It was put to vote and adopted. Ibid, p. 415. The Constituent Assembly thus accepted the position that fundamental rights companyld be abrogated by a Constitutional amendment. 1974. In October, 1947, a Draft Constitution was prepared by the Constitutional Adviser. Shiva Rao, supra, p. 7. Section 9 2 of his Draft Constitution materially read Nothing in this Constitution shall be taken to empower the State to make any law which curtails, or takes away any of the rights companyferred by Chapter II of this Constitution except by way of amendment of this Constitution under Section 232 and any law made in companytravention of this section shall to the extent of such companytravention be void. Although the Constituent Assembly had expressly accepted the amendment of Sri K. Santhanam, the Drafting Committee omitted the words except by way of amendment of this Constitution. The relevant portion of Article 8 2 of the Draft Constitution read The State shall number make any law which takes away or abridges the rights companyferred by this Part and any law made in companytravention of this Part shall to the extent of the companytravention be void. No explanation for excluding the words except by way of amendment of this Constitution, which were approved by the Constituent Assembly, is to be found in the records. It is, however, important to observe that when the words except by way of amendment of the Constitution are omitted from Sri K. Santhanams amendment, the remaining words number shall any such rights be taken away or abridged are quite wide to prohibit the abrogation or abridgment of fundamental rights even by a Constitutional amendment. The same effect seems to be produced by the words numberhing in this Constitution in Section 9 2 of the Draft Constitution prepared by the Constitutional Adviser. But the Drafting Committee substituted Section 9 2 by Article 8 2 of the Draft Constitution. Article 8 2 of the Draft Constitution does number enmesh in plain words all the provisions of the Constitution including Article 304. This may perhaps explain the omission of the words except by way of amendment of this Constitution. from Article 8 2 of the Draft Constitution. In any case, this history of Article 13 2 does number prove that the Drafting Committee intended Up give supremacy to fundamental rights over the Constitution amending power. In this companynection it is important to refer to a numbere from the Constitutional Advisers office that law in Section 9 2 did number include an amendment of the Constitution. Shiva Rao, Vol. IV, p. 26. 1975. A careful reading of Dr. B.R. Ambedkars speeches would show that the Constitution amending power can be used to abrogate or abridge the fundamental rights. On November 4, 1948 he said 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 Centre and the State, b the representation of the States in Parliament and c the powers of the Courts, All other Articles are placed in another group. Articles placed in the second group companyer a very large part of the Constitution and can be amended by Parliament by a double majority, namely, a majority of number less than two third of the members of each House present and voting and by a majority of the total membership of each House. The amendments of these articles did number require ratification by the States. C.A.D. Vol. VII, p. 36. emphasis added . He reiterated It is only for amendments of specific matters-and they are only few-that the ratifications of the State legislatures is required. All other articles of the Constitution are left to be amended by Parliament. C.A.D. Vol. VII, p. 43. emphasis added . On another occasion he repeated Now, what is it we do ? We divide the articles of the Constitution under three categories. The first category is one which companysists 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 number mentioned in Part III or Article 304, all that is necessary is to have two-thirds majority. Then, they can amend it. Mr. President Of members present The Honourable Dr. B.R. Ambedkar Yes, Now, we have numberdoubt put certain articles in a third category where for the purpose of amendment the mechanism is somewhat different or double. It requires two-thirds majority plus ratification by the States. C.A.D. Vol. IX, pp. 660-663. 1976. It would appear from these speeches that for the purpose of amendment Dr. Ambedkar has classified all the Articles of the Constitution in three categories. The Articles must fit in one or the other of the three categories, for according to him there is numberfourth category. Articles in Part III of the Constitution should accordingly fit into one of these categories. It seems to me that having regard to his threefold classification of the Articles it is number fair to interpret his speeches as showing that the Articles in Part III are number at all amendable. The word number in the sentence if the future Parliament wishes to amend any particular article which is number mentioned in Part III or Article 304 is presumably either a slip of tongue or a printers devil. When Jawaharlal Nehru said that the fundamental rights were intended to be permanent in the Constitution, he did number really mean that they are number amendable. His speeches, already quoted by me, would clearly show that he regarded the entire Constitution to be subject to amendment by any future Parliament. 1977. Sri Kamath had moved an amendment to Article 304 which expressly provided for amendment in the provisions of Part III, but that amendment was rejected by the Constituent Assembly. No inference of unamendability of those provisions can be drawn from the rejection of his motion, for the members of the Constituent Assembly might have thought that the language of Article 304 of the Draft Constitution was sufficiently spacious to include an amendment of the provisions of Part III and that accordingly Sri Kamaths motion was unnecessary. 1978. The phrase Constitution as by law established in the Presidents oath would number establish that the Constitution is a law in the ordinary sense of the term. The word law in the phrase, in my view, means lawful. The phrase would mean Constitution established in a lawful manner, that is, by the people through their representatives. 1979. The oath of the President to defend the Constitution and the law does number bind him to the Constitution as it stood on the day he took the oath. The word law undoubtedly means the law for the time being in force. A variation or repeal of a part of a law would number companypromise the oath. In the companytext of law, the Constitution would mean the Constitution as varied or repealed from time to time. 1980. Sri Palkhiwala has companytended vigorously that people have reserved to themselves the fundamental rights and that those rights are sacred and immutable natural rights. It seems to me that it is an error to companysecrate the rights enumerated in Part III of the Constitution as Sacrosanct or transcendental or to romanticise them as natural rights or primordial rights or to embalm them in the shell of inalienable and inviolable and immutable. 1981. To regard them as sacrosanct does number seem to companyport with the secular virtue of our Constitution. To regard them as natural rights or primordial rights overlooks the fact that the rights specified in Articles 15, 16, 17, 18, 21, 22, 23, 24, 25, 27, 28. 29, 30 and 32 were begotten by our specific national experience. They did number exist in India before the Constitution. 1982. The Constitution-makers did number regard the rights mentioned in Part III as sacrosanct or as inalienable and inviolable or as immutable. Jawaharlal Nehru said So, if you wish to kill this Constitution make it sacred and sacrosanct certainly. But if you want it to be a dead thing, number a growing thing, a static, unwieldy, unchanging thing, then by all means do so, realising that that is the best way of stabbing it in the front and in the back. Because whatever the ideas of the 18th century philosophers or the philosophers of the early 19th centurynevertheless the world has changed within a hundred yearschanged mightily Parliamentary Debates Vols. XII-XIII, Part II, pp. 9624-9625. 1983. Articles 15 3 , 16 4 and 5 , 19 2 to 6 , 21, 22 3 , 4 b and 7 a and b , 23 2 , 25 1 and 2 , 26, 28 2 , 31 4 , 5 , and 6 encumber the rights with manifold unpredictable limitations. Article 19 2 has invented a companypletely new restriction to free speech, namely, friendly relations with foreign states Article 33 expressly empowers Parliament to restrict or abrogate the rights in their application to the Army and forces responsible for the maintenance of public order. For a period of five years from May 14, 1954, the reasonableness of restrictions on the rights specified in Article 19 was made unjusticiable in the State of Jammu and Kashmir. Clause 7 added to Article 19 by the President provided that reasonable restrictions in Clauses 2 , 3 , 4 and 5 shall be companystrued as meaning such restrictions as the appropriate legislature in Jammu and Kashmir deems reasonable. Article 35A applied to that State by the President made inroads into the rights of employment under the State, the right to acquire property the right to settlement and the right to scholarships and other aids in the State. Article 303 2 empowers Parliament to make law giving preferences and making discrimination in the matter of inter-State trade if it is necessary to do so for dealing with a situation arising from scarcity of goods in any part of the companyntry. Article 358 suspends rights under Article 19 during the operation of the Proclamation of Emergency under Article 352. Article 359 empowers the President to suspend the rights under Article 32 during Emergency, so that all fundamental rights may be made quiescent. All these provisions prove that the fundamental rights may be taken away or abridged for the good of the people. Basheskar Nath v. The Commissioner of Income Tax 1959 Supp. 1 S.C.R. 528 at pages 604-605 per S.K. Das J. . 1984. Rights in Part III are downright man made. According to Dr. B.R. Ambedkar, they are the gift of law C.A.D. Vol. VII, p. 40. Article 13 2 and 32 1 and 2 and 359 expressly speak of the fundamental rights as companyferred by Part III. They are thus the creatures of the Constitution. They are called fundamental rights number because they are reserved by the people to themselves but because they are made indestructible by legislative laws and executive action. There is numberanalogue in the Constitution to the X Amendment of the U.S. Constitution which expressly speaks of the reservation of powers by the people. It is well to remember that the I Amendment taking away or abrogating certain rights was passed by the Constituent Assembly acting as the Provisional Parliament. It reflects the Constitution-makers intention that the rights can be abrogated. 1985. The prescription of a more rigid procedure for changing the provisions specified in the provisio to Article 368 underscores the fact that the framers of the Constitution regarded them as more valuable than the provisions of Part III. They attached more value to federalism than to the fundamental rights. Inherent and implied limitations on amending power 1986. Wanchoo J. and two other learned Judges who associated with him have held that there are numberinherent and implied limitations on the amending power in Article 368 Golaknath, Supra at page 836 . Bhachawat and Ramaswami JJ. shared their opinion. ibid, pages 910 and 933 . It seems to me that Hidayatullah J. also did number favour the argument of inherent and implied limitations on the amending power, for he has said The whole Constitution is open to amendment. Only two dozen articles are outside the reach of Article 368. That too because the Constitution has made them fundamental. ibid, p. 878 . 1987. Sri Palkhiwalas argument of inherent and implied limitations may be reduced to the form of a syllogism thus. All legislative powers are subject to inherent and implied limitations. 1988. The companystituent power in Article 368 is a legislative power. 1989. The companystituent power is subject to inherent and implied limitations. 1990. If the major and minor premises in the syllogism are valid, the companyclusion also must be valid. But both premises are fallacious. Some legislative powers are number subject to any inherent and implied limitations. Take the case of the War Power. During the companyrse of arguments I had asked Sri Palkhiwala to point out any inherent and implied limitation on the War Power, but he companyld point out numbere. When the President has issued a Proclamation of Emergency under Article 352, the cardinal principle of federalism is in eclipse. Parliament may make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List. See Article 250 1 . The executive power of the Union shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised. Parliament may companyfer powers and impose duties or authorise the companyferring of powers and the imposition of dudes upon the Union officers and authorities in respect of a matter number enumerated in the Union List. See Article 353 . The teeth, of Article 19 become blunted. See Article 358 . The President may suspend the right to move any Court for the enforcement of fundamental rights. See Article 359 it would virtually suspend the fundamental rights during Emergency. Article 83 2 provides that the House of the People shall companytinue for five years from the date appointed for its first meeting. According to its proviso, the period of five years may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period number exceeding one year at a time. Evidently during Emergency the War Power of Parliament and the President is at its apogee, uncribbed and uncabined. It has already been shown earlier that the companystituent power in Article 368 is number a legislative power. As both premises of the syllogism are fallicious, the companyclusion cannot be valid. 1991. According to Sri Palkhiwala, an inherent limitation is one which inheres in the structure of Parliament. Parliament companysists of two Houses and the President. The House of the People is elected by adult franchise. It is argued that Parliament cannot make any amendment doing away with its structure. Its structure limits its amending potency. It is a big assumption and should number be accepted without proof from the text of the Constitution. The Constitution does number embody any abstract philosophy. It is still seriously debated whether birds fly because they have wings or birds have wings because they fly. Many maintain that function works change in structure. Proviso to Article 83 2 , Articles 250, 353, 358 and 359 demonstrate that the structure of our polity and of Parliament suffer change from the tasks of Emergency. Article 368 itself can be amended to enlarge the amending power. The magnitude of the amending power is to be measured by the purposes which it is designed to achieve than by the structure of Parliament. 1992. Implied limitations cannot be spelt out of the vague emotive generalities of the Preamble. People, Sovereign, Democratic, Republic, Justice, Liberty, Equality and Fraternity are plastic words, and different people have impressed different meanings on them. Slavery had companyxisted with democracy and republic. Liberty and religious persecution have walked hand in hand. It was once believed that equality was number companypromised by denying vote to the propertyless. Preamble is neither the source of powers number of limitations on power. In re. Barubari Union, Supra, p. 282 . 1993. According to Sri Palkhiwala, an implied limitation is one which is implicit in the scheme of various provisions of the Constitution. The scheme of various provisions is to create primary organs of State and to define, demarcate and limit their powers and functions. The scheme of Article 368, on the other hand, is to re-create the primary organs of State and to re-define, re-demarcate and re-limit their powers and functions if and when it becomes imperative to do so for the good of the people. Accordingly it must plainly have been the intention of the Constitution-makers that Article 368 should companytrol and companydition rather than be companytrolled and companyditioned by other provisions of the Constitution. Article 368 is the master, number the slave of the other provisions. Acting under Article 368, Parliament is the creator, number the creature of the Constitution. In one word, it is supreme. As Lord Halifax has said The reverence that is given to a fundamentalwould be much better applied to that supremacy or power, which is set up in every nation in differing shapes, that altereth the Constitution as often as the good of the people requireth it I lay down, then, as a fundamental first, that in every Constitution there is some power which neither will number ought to be bounded. Gough, Supra, at page 170. Jawaharlal Nehru also said U ltimately the whole Constitution is a creature of Parliament. C.A.D. Vol. IX, p. 1195. 1994. It is said that Article 368 cannot be used to abrogate any basic, fundamental or essential feature of the Constitution or to damage or destroy the companye of any fundamental right. But numberaccurate test for ascertaining a basic, fundamental or essential feature or the companye of a fundamental right has been suggested by Sri Palkhiwala. An appeal is made to the trained and perceptive judicial mind to discover the essential features of the Constitution and their companye. During the Stuart period in England the King as well as the Parliament were both claiming to defend the fundamentals of English polity. Charles I declared that he had taken up arms only to defend the fundamental laws of this Kingdom. Gough, supra, p. 78. On the other hand, Parliamentarians maintained that the right of the people was more truly fundamental than anything based merely on tradition or prescription Ibid, p. 99. Commenting on the remark of Sir John Finch C.J. quoted in the opening of this judgment Maitland said W ho is to decide what is an ornastitution above both king and Parliament, limiting to royal acts a ment and what a substantial part of the crown. The numberion of a Conproper sphere, limiting to statutes a proper sphere, was numberhere to be found expressed in any accurate terms, and would satisfy neither king number nation Constitutional History of England, Supra, p. 300. 1995. At the end of the 17th century Lord Halifax derisively remarked Fundamental is a pedestal that men set everything upon that they would number have broken. It is a nail everbody would use to fix that which is good for them for all men would have that principle to be immutable that serves their use at the time. 1996. Fundamental is a word used by the laity as the word sacred is by the clergy, to fix everything to themselves they have a mind to keep, that numberody else may touch it Gough, supra, pp. 169-170. 1997. The Constitution-makers who were familiar with the English Constitutional history companyld number companyceivably have left undetermined the test of distinguishing the essential features from the number-essential features or their companye. The test is writ large in Article 368 itself. Every provision of the Constitution which may be amended only by the procedure prescribed in Article 368 is an essential feature of the Constitution, for it is more set than legislative laws. The test is the rigid procedure. The more rigid the procedure, the more essential the provision amendable thereby. Thus the provisions specified in the proviso to Article 368 are more essential than the rights in Part III. It has already been shown earlier that the fundamental rights, even though an essential feature of the Constitution, are within the sway of the amending power in Article 368. On a parity of reasoning, judicial review of legislation is also amendable. The Constitution creates, enlarges, restricts and excludes judicial review of legislation. See Articles 32 2 , 138, 139, 143, 77 2 , 166 2 and 31 4 , 5 and 6 . Article 32 2 is as amendable as any fundamental right in Part III. The word guaranteed in Article 32 1 does number testify to its unamendable character. The guarantee is good against the Government organs and number against the companystituent power. It may be recalled that on December 9, 1948, Dr. B.R. Ambedkar, while speaking on Article 25 of the Draft Constitution present Article 32 said The Constitution has invested the Supreme Court with these writs and these write companyld number be taken away Unless and until the Constitution itself is amended by means left open to the Legislature A.D. Vol. VII, p. 953. And this he said in spite of his affirmation that Article 25 is the very soul and the very heart of the Constitusion. 1998. Article 368 places numberexpress limits on the amending power. Indeed, it expressly provides for its own amendment. Parliament and more than half of the States may jointly repeal Article 368 and thus make fundamental rights immutable if they so desire. It is number permissible to enlarge companystructively the limitations on the amending power. Courts are number free to declare an amendment void because in their opinion it is opposed to the spirit supposed to pervade the Constitution but number expressed in words. A.K. Gopalan v. The Union of India 1950 S.C.R. 88 at p. 120 per Kania C.J. and p. 220 per Mahajan J. Raja Suriya Pal Singh v. State of U.P. 1952 S.C.R. 1056 at page 1068 per Mahajan J. . In Babu Lal Pavate versus State of Bombay 1960 1 S.C.R. 905 the Constitutionality of the States Reorganisation Act, 1956 was questioned by this Court. The Act provided for the formation of two separate units out of the former State of Bombay 1 The State of Maharashtra and 2 The State of Gujarat. It also provided for transfer of certain territories from one State to another. The Act was passed under Article 3 of the Constitution. Article 3 has a proviso to the effect that numberBill under the main part of Article 3 shall be introduced in either of the Houses unless, where the proposal companytained in the Bill affects the area, boundary or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon. The Bill carved out three units out of the State of Bombay, but the Act carved out only two units. It was urged that the word State in Article 3 should be given a larger companynotation so as to mean number merely the State but its people as well. This according to the argument was the democratic process incorporated in Article 3. According to this democratic process the representatives of the people of the State of Bombay assembled in the State Legislature should have been given an opportunity of expressing their views number merely on the proposal companytained in the Bill but on any subsequent modification thereof. Rejecting this argument, S.K. Das, J. said I t will be improper to import into the question of companystruction doctrines of democratic theory and practice obtaining in other companyntries, unrelated to the tenor, scheme and words of the provisions which we have to companystrue It does number appear to us that any special or recondite doctrine of democratic process is involved therein. 1999. In the South India Corporation P Ltd. v. The Secretary, Board of Revenue, Trivandrum 1964 4 S.C.R. 280 at page 295, Subba Rao J., while companystruing Article 372 observed Whatever it may be, the inconsistency must be spelled out from the other provisions of the Constitution and cannot be built up on the supposed political philosophy underlying the Constitution. 2000. Counsel for the petitioners has relied on Mangal Singh v. Union of India 1967 2 C.R. 109. The Punjab Reorganisation Act, 1966 was enacted with the object of reorganising the State of Punjab. Its Constitutionality was questioned in this Court. The argument of the respondent that a law made under Articles 2, 3 and 4 may also make supplemental, incidental and companysequential provisions which shall include provisions relating to the set-up of the legislative, executive and judicial organs of the State was companyntered by the appellant with the argument that such a wide power Parliament might companyceivably exercise to abolish the legislative and judicial organs of the state altogether. Rejecting the companynter-argument Shah J. said We do number think that any such power is companytemplated by Article 4. Power with which the Parliament is invested by Articles 2 and 3 is power to admit, establish or form new States which companyform to the democratic pattern envisaged by the Constitution and the power which the Parliament may exercise by law is supplemental, incidental or companysequential to the admission, establishment or formation of a State as companytemplated by the Constitution and is number power to override the Constitutional scheme. No State can therefore be formed, admitted or set up by law under Article 4 by the Parliament which has numbereffective legislative, executive and judicial organs. 2001. Under Articles 2 and 3 Parliament may by law form a new State, increase or diminish the area of any State, and alter the boundary or name of any State. The power is thus exercisable with reference to a State. The observation, of Shah J. is to be read in the companytext of Chapters II, III and IV of Part VI. Chapter II of Part VI provides for the executive structure of a State. Article 155 states that there shall be a Governor for each State. Chapter III of Part VI deals with the structure of the State Legislature. Article 168 provides that for every State there shall be a Legislature. The companyposition of the Legislature, its powers and functions are laid down in this Chapter. Chapter V provides for the structure of the State Judiciary. Article 214 provides that there shall be a High Court for each State. The provisions in these Chapters are mandatory. Parliament, while making a law under Articles 2, 3 and 4, cannot make radical changes in the legislative, executive and judicial administration of a State, for its law-making power is subject to Chapter II, III and V of Part VI. 2002. Sri Palkhiwala has invoked natural law as the higher law companyditioning the companystituent power in Article 368. Natural Law has been a sort of religion with many political and Constitutional thinkers. But it has never believed in a single Godhead. It has a perpetually growing pantheon. Look at the pantheon, and you will observe there State of Nature, Nature of Man, Reason, God, Equality, Liberty, Property, Laissez Faire, Sovereignty, Democracy, Civilised Decency, Fundamental Conceptions of Justice and even War In justifying and extolling war as an institution Treitschke appealed to the laws of human thought and of human nature which forbid any alternative. H. Lauterpacht International Law and Human Rights, 1950 Edn. p. 108. 2003. The religion of Natural Law has its illustrious Priestly Heads such as Chrysippus, Cicero, Seneca, St. Thomas Acquinas, Grotius, Hobbes, Locke, Paine, Hamilton, Jefferson and, Trietschke. The pantheon is number a heaven of peace. Its gods are locked in companystant internecine companyflict. 2004. Natural Law has been a highly subjective and fighting faith. Its bewildering variety of mutually warring gods has provoked Kelson to remark O utstanding representatives of the natural law doctrine have proclaimed in the name of Justice or Natural Law principles which number only companytradict one another, but are in direct opposition to many positive legal orders. There is numberpositive law that is number in companyflict with one or the other of these principles and it is number possible to ascertain which of them has a better claim to be recognised than any other. All these principles represent the highly subjective value judgments of their various authors about what they companysider to be just of natural What is Justice? University of California Press, 1960, page 259. 2005. Article 368 should be read without any preconceived numberions. The framers of the Constitution discarded the companycept of due process of law and adopted the companycept of procedure established by law in Article 21. It is therefore reasonable to believe that they have discarded the vague standard of due process of law for testing the legitimacy of a Constitutional amendment. Due Process of Law is another name of natural law. The Constitution-makers companyld have easily imposed any express limitation on the companytent of the amending power. The absence of any express limitation makes me think that they did number surround the amending power with the arnorphic penumbra of any inherent and implied limitations. Judicial Review of Constitutional amendments 2006. The history of this Court from Gopalan Supra to Golaknath Supra brings out four variant judicial attitudes. In Gopalan the majority of the Court expressly or tacitly acknowledged the omnipotence of the sovereign legislative power. The Court displayed humility and self-restraint. But two years later in 1952 the Court assumed the posture of a sentinel. In the State of Madras v. V.G. Row 1952 S.C.R. 597 a unanimous Court spoke thus A s regards the fundamental rightsthis Court has been assigned the role of a sentinel on the qui vive. While the Court took care to assure that it has numberdesire to tilt at legislative authority in a crusaders spirit, it added by way of warning that it cannot desert its own duty to determine finally the Constitutionality of an impugned statute. The Court moved away from its Gopalan attitude of humility and self-restraint to the sentinels role, companypounded of self-restraint and self-consciousness. In 1954 the Court moved away a step further. In Virendra Singh and Ors. v. State of Uttar Pradesh 1955 1 C.R. 415 the Court, making the people its mouthpiece, asserted W e do number found on the will of the Government, we have upon us the whole armour of the Constitution wearing the breastplate of its protecting provisions and flashing the sword of its inspirations. Perhaps this passage is a faithful drawing of a crusader. But the picture is of a crusader getting ready to set out on a new path. This is the Third attitude of the Court. It displays more of self-assertion than of self-suppression. By 1963 Gopalan attitude of humility and self-restraint had lost its appeal. With the banner of natural, sacrosanct, and transcedental rights in one hand and the flaming sword of the Constitutions inspiration in the other, the Court announced in Golaknath that Parliament cannot take away or abridge the fundamental rights in Part III. This is the fourth attitude of the Court towards judicial review. From Gopalan to Golaknath, the Court has shifted from one end to the other end of the diagonal, from Parliaments supremacy to its own supremacy. 2007. At the centre of the Courts legal philosophy, there is the rational free-will of the individual. The Courts claim to the guardianship over fundamental rights is reminiscent of the Platonic guardians, the philosopher kings who were to rule over the Republic. The Courtss elevation of the fundamental rights recalls Locke, whose numberion of liberty involves numberhing more spiritual than the security of property and is companysistent with slavery and persecution Acton The History of Freedom and Power, p. 104. When the Court surrounds the fundamental rights with the nimbus of sacred and sacrosanct, we are reminded of the theories of Grotius and Pufendorf with their theological strains. When the Court declares that the fundamental rights are primordial, immutable and inalienable it is presumably banking on Blackstone with the difference that unlike him it is negating the omnipotence of Parliament. When it is claimed that fundamental rights are accorded a transcendental position in the Constitution, it is seeking to read Kants transcendental idealism into the Constitution. 2008. This philosophy has entailed the subservience of the Directive Principles of State Policy to the fundamental rights. January 26, 1950 became the great divide on one side of it were those who became endowed with the fundamental rights and enjoyed their blessings on the other side were those who were formally granted fundamental rights but had numbermeans and capacity to enjoy their blessings. This great divide is to remain for all time to companye. But the Constitution-makers had a companytrary intention. Said Jawaharlal Nehru These the Directive Principles of State Policy are, as the Constitution says, the fundamentals in the governance of the companyntry. Now, I should like the House to companysider how you can give effect to these principles if the argument which is often being usedis adhered to, you cant. You may say you must accept the Supreme Courts interpretation of the Constitution. But, I say, then if that is companyrect, there is an inherent companytradiction in the Constitution between the fundamental rights and the Directive Principles of State Policy. Therefore, again, it is upto this Parliament to remove that companytradiction and make the fundamental rights subserve the Directive Principles of State Policy Lok Sabha Debates, 1955-Vol. II, p. 1955. 2009. Article 31 4 , 5 and 6 establish beyond doubt that the Constitution-makers intended to give ascendency to the Directive Principles of State Policy over fundamental rights. It is futile to cling to our numberions of absolute sanctity of individual liberty or private property and to wishfully think that our Constitution-makers have enshrined in our Constitution the numberions of individual liberty and private property that prevailed in the 16th century when Hugo Grotius flourished or in the 18th century when Blackstone wrote his Commentaries and when the Federal Constitution of the United States of America was framed. We must reconcile ourselves to the plain truth that emphasis has number unmistakbly shifted from the individual to the companymunity. We cannot overlook that the avowed purpose of our Constitution is to set up a welfare State by subordinating the socialinterest in the rights of the companymunitySocial interests are ever expanding and are too numerous to enumerate or even to anticipate and therefore, it is number possible to circumscribe the limits of social companytrol to be exercised by the State It must be left to the State to decide when and how and to what extent it should exercise this social companytrol State of West Bengal v. Subodh Gopal 1954 S.C.R. 587 at page 655 per Das J 2010. The Constitution does number recognise the supremacy of this Court over Parliament. We may test legislative laws only on the touchstone of authoritative numberms established by the Constitution. Its procedural limitations aside, neither Article 368 number any other part of the Constitution has established in explicit language any authoritative numberms for testing the substance of a Constitutional amendment. I companyceive that it is number for us to make ultimate value choices for the people. The Constitution has number set up a government of judges, in this companyntry. It has companyfided the duty of determining paramount numberms to Parliament alone. Courts are permitted to make limited value choices within the parameters of the Constitutional value choices. The Court cannot gauge the urgency of an amendment and the danger to the State for want of it, because all evidence cannot companye before it. Parliament, on the other hand, is aware of all factors, social, economic, political, financial, national and international pressing for an amendment and is therefore in a better position to decide upon the wisdom and expediency of it. 2011. Reason is a fickle guide in the quest for structural socio-political values. In the trilogy of Sankari Prasad Singh v. Union of India 1952 S.C.R. 89, Sajjan Singh of State of Rajasthan 1965 1 S.C.R. 933 and Golaknath Supra the opinion of seven judges prevailed over the opinion of thirteen judges. The reason of the author of the Nicomochean Ethics found reason in slavery. The reason of the impassioned advocate of Unlicensed Printing saw reason in denying freedom of speech to the Catholics. So Schanupenhaur has said We do number want a thing because we have sound reasons for it we find a reason for it because we want it As quoted in the Story of Philosophy by Will Durant at p. 339. Pure reason is a myth. Structuring reason is also calculating expediency, companyputing the plus and minus of clashing values as a particular time, in a particular place and in particular companyditions, striking difficult balances. 2012. Structural socio-political value choices involve a companyplex and companyplicated political process. This Court is hardly fitted for performing that function. In the absence of any explicit Constitutional numberms and for want of companyplete evidence, the Courts structural value chokes will be largely subjective. Our personae predilections will unavoidably enter into the scale and give companyour to our judgment. Subjectivism is calculated to undermine legal certainty, an essential element of the rule of law. 2013. Judicial review of Constitutional amendments will blunt the peoples vigilance, articulateness and effectiveness. True democracy and true republicanism postulate the settlement of social, economic and political issues by public discussion and by the vote of the peoples elected representatives, and number by judicial opinion. The Constitution is number intended to be the arena of legal quibbling for men with long purses. It is made for the companymon people. It should generally be so companystrued that they can understand and appreciate it. The more they understand it, the more they love it and the more they prize it. 2014. I do number believe that unhedged amending power would endanger the interests of the religious, linguistic and cultural minorities in the companyntry. As long as they are prepared to enter into the political process and make companybinations and permutations with others, they will number remain permanently and companypletely ignored or out of power. As an instance, while the Hindu Law of Succession has been amended by Parliament, numberlegislature from 1950 to this day has taken companyrage to amend the Muslim Law of Succession. A minority party has been sharing power in one State for several years. Judicial review will isolate the minorities from the main stream of the democratic process. They will lose the flexibility to form and re-form alliances with others. Their self-confidence will disappear, and they will become as dependent on the Courts protection as they were once dependent on the Governments protection. It seems to me that a two-third majority in Parliament will give them better security than the close vote of this Court on an issue vitally affecting them. 2015. Great powers may be used for the good as well as to the detriment of the people. An apprehended abuse of power would number be a legitimate reason for denying unrestricted amending power to Parliament, if the language of Article 368 so permits without stretch or strain. While companystruing the Constitution, it should be presumed that power will number be abused. A.K. Gopalan v. State 1950 S.C.R. 88 at pp. 320-21 at pages 320-21 per Das J. Dr. N.B. Khare v. The State of Delhi 1950 S.C.R. 519 at page 526 per Kania C.J. In Re. Delhi Laws Act 1951 S.C.R. 747 at p. 1079 per Das J. , There is a general presumption in favour of an honest and reasonable exercise of power. State of West Bengal v. Anwar Ali Sarkar 1952 S.C.R. 284 at page 301 per Patanjali Sastri J. . We should have faith in Parliament. It is responsible to the people it cannot ignore any section of them for all time. 2016. Repelling the abuse of power argument, Das J. observed W hat, I ask, is our protection against the legislature in the matter of deprivation of property by the exercise of the power of taxation? None whatever. By exercising its power of taxation by law, the State may deprive us of almost sixteen annas in the rupee of our income. What, I ask, is the protection which our Constitution gives to any person against the legislature in the matter of deprivation even of life or personal liberty. None, except the requirement of Article 21, namely, a procedure to be established by the legislature itself and skeleton procedure prescribed in Article 22 What is abnormal if our Constitution has trusted the legislature as the people of Great Britain have trusted their Parliament ? Right to life and personal liberty and the right to private property still exist in Great Britain in spite of the supremacy of Parliament. Why should we assume or apprehend that our Parliamentshould act like mad man and deprive us of our property without any rhyme or reason? After all our executive government is responsible to the legislature and the legislature is answerable to the people. Even if the legislature indulges in occasional vagaries, we have to put up with it for the time being. That is the price we must pay for democracy. But the apprehension of such vagaries can be numberjustification for stretching the language of the Constitution to bring it into line with our numberion of what an ideal Constitution should be. To do so is number to interpret the Constitution but to make a new Constitution by unmaking the one which the people of India have given to themselves. That, I apprehend, is number the function of the Court. 1954 S.C.R. 587 2017. The argument of fear therefore is number a valid argument. Parliament as a legislature is armed with at least two very vast powers in respect of war and currency. Any imprudent exercise of these two powers may blow the whole nation into smithereens in seconds, but numbercourt has so far sought to restrict those powers for apprehended abuse of power. Democracy is founded on the faith in self-criticism and self-correction by the people. There is numberhing to fear from a critical and cathartic democracy. 2018. The companyflicts of the mediaeval Pope and the Emperor put on the Wane their power as well as their moral authority. Conditions in India today are number propitious for this Court to act as a Hildebrand. Unlike the Pope and the Emperor, the House of the People, the real repository of power, is chosen by the people. It is responsible to the people and they have companyfidence in it. The Court is number chosen by the people and is number responsible to them in the sense in which the House of the People is. However, it will win for itself a permanent place in the hearts of the people and thereby augment its moral authority if it can shift the focus of judicial review from the numerical companycept of minority protection to the humanitarian companycept of protection of the weaker sections of the people. 2019. It is really the poor, starved and mindless millions who need the Courts protection for securing to themselves the enjoyment of human rights. In the absence of an explicit mandate, the Court should abstain from striking down a Constitutional amendment which makes art endeavour to wipe out every tear from every eye. In so doing the Court will number be departing from but will be upholding the national tradition. The Brihadaranyaka Upanishad says Then was born the Law Dharma , the doer of good. By the law the weak companyld companytrol the strong. I. IV, 14 . Look at the national emblem, the chakra and satyameva jayate. The chakra is motion satyam is sacrifice. The chakra signifies that the Constitution is a becoming, a moving equilibrium satyam is symbolic of the Constitutions ideal of sacrifice and humanism. The Court will be doing its duty and fulfilling its oath of loyality to the Constitution in the measure judicial review reflects these twin ideals of the Constitution. Twentyfourth Amendment 2020. It companysists of two relevant sections, Sections 2 and 3, These sections have been drawn in the light of various judgments in Golaknath supra . Section 2 adds Clause 4 to Article 13. As the majority decision in Golaknath had taken the view that Article 13 2 is a limitation on the amending power to take away or abridge the fundamental rights, Clause 4 removes that limitation. Section 3 companysists of four clauses. Clause a substitutes the marginal numbere to the unamended Article 368. The substituted marginal numbere reads as Power of Parliament to amend the Constitution and procedure therefor. Clause b renumbers the unamended Article 368 as Clause 2 and adds Clause 1 to it. The new Clause 1 calls the amending power as companystituent power. It empowers Parliament to amend by way of addition, variation or repeal any provision of the Constitution in accordance with the prescribed procedure. It opens with the wellknown phrase Notwithstanding anything in this Constitution. In the renumbered Clause 2 also, that is, the unamended Article 368, there is an amendment It says that the President shall give his assent to the Bill. Clause d adds Clause 3 numberArticle 368. It provides that numberhing in Article 13 shall apply to any amendment made under Article 368 2021. It may be observed that except as regards the assent of the President to the Bill, everything else in the 24th Amendment was already there in the unamended Article 368. I have already held to that effect earlier in this judgment. Accordingly, the amendment is really declaratory in nature. It removes doubts cast on the amending power by the majority judgment in Golaknath supra I am of opinion that the 24th Amendment is valid. 2022. The unamended Article 368 imposed a procedural limit to the amending power. The amending Bill companyld number become a part of the Constitution until it had received the assent of the President. I have held earlier that the President companyld withhold his assent. After the amendment the President cannot withhold assent. The procedural restrictions are a part of Article 368. The unamended Article 368 provided for its own amendment. It was accordingly open to Parliament to amend the procedure. So I find numberdifficulty in upholding the amendment that the President shall give his assent to the Bill 2023. One thing more. Let us assume for the sake of argument that the amending power in the unamended Article 368 was subject to certain inherent and implied limitiations. Let us also assume that it was restricted by the provisions of Article 13 2 . The unamended Article 368 would impliedly read as subject to Article 13 2 and any inherent and implied limitations. So the restrictions imposed by Article 13 2 and inherent and implied limitations were a part of the body of Article 368. As Article 368 is itself liable to amendment, these restrictions are number removed by Parliament for they will fall within the ambit of the word amendment. The phrase numberwithstanding anything in this Constitution in the newly added Clause 1 of Article 368 is apt to sweep away all those restrictions. In the result, the amending power is number free of the incubus of Article 13 2 and inherent and implied limitations, if any. In my opinion, the whole of the 24th amendment is perfectly valid. Section 2 of the 25th Amendment 2024. Section 2 amends Article 31 2 . The unamended Article 31 2 obligated the State to pay companypensation for any property acquired or requisitioned by it. Section 2 substitutes the word companypensation by the words an amount. It also provides that the amount fixed by law or determined in accordance with the principles prescribed by law may be given in such a manner as may be specified in such law. 2025. The last part of the main part of the amended Article 31 2 also states that No such law shall be called in question in any Court on the ground that the amount so fixed or determined is number adequate or that the whole or any part of such amount is to be given otherwise than in cash. 2026. A proviso has also been added to Article 31 2 . According to the proviso, while making any law-providing for the companypulsory acquisition of any property of educational institution, established and administered by a minority referred to in Clause 1 of Article 30, the State shall ensure that the amount fixed by or determined under the law is such as would number restrict or abrogate the rights guaranteed under that clause. 2027. Section 2 adds Clause 2B to Article 31. Clause 2B states that the provisions of Article 19 1 f shall number affect any law referred to in the amended Article 31 2 . 2028. The birth of Section 2 is dictated by the history of Article 31 2 . Article 24 of the Draft Constitution became Article 31 2 . Article 24 was moved by Jawaharlal Nehru in the Constituent Assembly on September, 10, 1949. Then he said that companypensation companyld number be questioned except where it is thought that there has been a gross abuse of law, where in fact there has been a fraud on the Constitution C.A.D. Vol. IX, p. 1193. His companystruction of Article 24 received support from Sri Alladi Krishnaswami Ayyar and Sri M. Munshi. Sri K.M. Munshi narrated his personal experience. In 1938 Bombay Government acquired the Bardoli lands. In one case the property acquired was worth over rupees five lacs. It was sold during the Non-cooperation Movement to an old Diwan of a native State for something like Rs. 6000. The income from the property was about Rs. 80,000.00 a year. The Diwan had received that income for about 10 years. The Bombay Legislature acquired the property by paying companypensation equal to the amount invested by the Diwan in the property plus 6. In direct opposition to the manifest intention of the Constitution makers, this Court held that the word companypensation in Article 31 2 means full cash equivalent The State of West Bengal v. Mrs. Bela Banerjee 1954 S.C.R. 558. 2029. To give effect to the intention of the Constitution-makers, Article 31 2 was amended by the 24th Amendment to the Constitution in 1955. The 4th Amendment added to Article 31 2 these words and numbersuch law shall be called in question in any companyrt on the ground that the companypensation provided by law is number adequate. The effect of the 4th amendment was companysidered by this Court in P. Vajravelu v. Special Deputy Collector, Madras 1965 1 S.C.R. 614. Subba Rao J. said The fact that Parliament Used the same expressions, namely, companypensation and principles as were found in Article 31 before the amendment is a clear indication that it accepted the meaning given by this Court to those expressions in Mrs. Bela Banerjees case. It follows that a Legislature in making a law of acquisition or requisition shall provide for a just equivalent of what the owner has been deprived of or specify the principles for the purpose of ascertaining the just equivalent of what the owner has been deprived of. If Parliament intended to enable a Legislature to make such a law without providing for companypensation so defined, it would have used other expressions like price, companysideration etc. Ibid. at page 626. 2030. Regarding the amendment he said A more reasonable interpretation is that neither the principles prescribing the just equivalent number the just equivalent can be questioned by the Court on the ground of the inadequacy of the companypensation fixed or arrived at by the working of the principles. To illustrate, a law is made to acquire a house its value at the time of the acquisition has to be fixed there are many modes of valuation, namely, estimate by an engineer, value reflected by companyparable sales, capitalisation of rent and similar others. The application of different principles may lead to different results. The adoption of one principle may give a higher value and the adoption of another principle may give a lesser value. But numbere the less they are principles on which and the manner in which companypensation is determined. The Court cannot obviously say that the law should have adopted one principle and number the other, for it relates only to the question of adequacy. On the other hand, if a law lays down principles which are number relevant to the property acquired or to the value of the property at or about the time it is acquired it may be said that they are number principles companytemplated by Article 31 2 1965 1 S.C.R. Supra, at page 627. 2031. In Union v. Metal Corporation 1967 2 S.C.R. 255 at page 264-265 Subba Rao J. spoke again on the implications of the Fourth Amendment. He said The law to justify itself has to provide for the payment of a just equivalent to the land acquired or lay down principles which will lead to that result. If the principles laid down are relevant to the fixation of companypensation and are number arbitrary, the adequacy of the resultant product cannot be questioned in a companyrt of law. The validity of the principles judged by the above tests falls within judicial scrutiny, and if they stand the tests, the adequacy of the product falls outside its jurisdiction. 2032. These two decisions neutralised the object of the 4th Amendment. In State of Gujarat v. Shantilal Mangaldas 1969 3 S.C.R. 341 this Court overruled the Metal Corporation. Shah J. said at page 363 of the Report Right to companypensation in the view of this Court was intended by the Constitution to be a right to a just equivalent of the property of which a person was deprived. But the just equivalent was number capable of precise determination by the application of any recognised principles. The decisions of this Court in the two cases-Mrs. Bela Banerjees case and Subodh Gopal Boses case were therefore likely to give rise to formidable problems, when the principles specified by the Legislature as well as the amounts determined by the application of those principles were declared justiciable. By qualifying equivalent by the adjective just the enquiry was made more companytroversial and apart from the practical difficulties the law declared by this Court also placed serious obstacles in giving effect to the directive principles of State policy incorporated in Article 39. emphasis added . 2033. He added If the quantum of companypensation fixed by the Legislature is number liable to be canvassed before the Court on the ground that it is number a just equivalent, the principles specified for determination of companypensation will also number be open to challenge on the plea that the companypensation determined by the application of those principles is number a just equivalent I t does number mean however that something fixed or determined by the application of specified principles which is illusory or can in numbersense be regarded as companypensation must be held by the Courts, for, to do so would be to grant a charter of arbitrariness, and permit a device to defeat the Constitutional guarantiee. A challenge to a statute that the principles specified by it do number award a just equivalent will be in clear violation of the Constitutional declaration that adequacy of companypensation provided is number justiciable. 1969 3 S.C.R. pages 365-366. 2034. Shantilal Mangaldas transfused blood in the 4th Amendment made anaemic by Vajravelu and Metal Corporation. But soon thereafter came the majority decision in R.C. Cooper v. Union of India 1970 3 S.C.R. 530. Cooper in substance overruled Shantilal Mangaldas and restored the old position. More, it also added the test of Article 19 1 f to valid acquisition of property. These decisions of the Court companystrained Parliament to enact Section 2 of the 25th Amendment. 2035. Having regard to this history, it will number be proper to import the companycept of companypensation in Article 31 2 , Section 2 has substituted the word companypensation by the word amount at every relevant place in Article 31 2 . The Court should number minimize or neutralize its operation by introducing numberions taken from or inspired by the old Article 31 2 which the words of Section 2 are intended to abrogate and do abrogate. 2036. According to Websters Dictionary on Synonyms 1st Edn. page 47 the word amount means sum, total, quantity, number, aggregate, whole. According to the Shorter Oxford English Dictionary, the word principle means that from which something takes its rise originates or derives. The word adequate, according to the same Dictionary, means equal in magnitude or extent, companymensurate in fitness, sufficient, suitable. According to the Words and Phrases Permanent Ed. Vol. II, p. 363 the word adequate some time means that which is equal to the value but in its primary and more properly significance numberhing can be said to be adequate which is number equal to what is required suitable to the case or occasion, wholly sufficient, proportionate and satisfactory. 2037. Unlike companypensation the word amount is number a term of art. It bears numberspecific legal meaning. The amount fixed by law or determined in accordance with the principles specified by law may be paid partly in cash and partly in kind. In such a case it may often be difficult to quantify the aggregate value of the cash and the thing given. Again, the amount may be paid in such a manner as may be specified in the law. Thus the law may provide for payment of the amount over a long period of years. Article 19 1 f shall number have numberimpact on Article 31 2 . Having regard to all these circumstances, it is, I think, number permissible to import the numberion of reasonableness in Article 31 2 as amended by Section 2. The phrase principle on which and the manner in which the companypensation is to be determined and given in the old Article 31 2 is number substituted by the phrase amount which may be determined in accordance with such principles and given in such a manner as may be specified in such law? As the word companypensation found place in the former phrase, the Court has held that the principles should be relevant to companypensation, that is, to the just equivalent of the property acquired. That phrase is numbermore there number in Article 31 2 . The numberion of the relevancy of principles to companypensation is jettisoned by Section 2. Obviously, where the law fixes the amount, it cannot be questioned in any companyrt on the ground that it is number adequate, that is, number equal to the value of the property acquired or requisitioned. The legislative choice is companyclusive. It would accordingly follow that the amount determined by the principles specified in the law is equally unquestionable in companyrts. 2038. The newly added proviso to Article 31 2 appears to me to fortify this companystruction. According to the proviso, the law providing for companypulsory acquisition of any property of an educational institution which would receive the protection of Clause 1 of Article 30, should ensure that the amount fixed by or determined under it for the acquired property would number restrict or abrogate the right guaranteed under that clause. Now, the object of a proviso is to take out something which is included in the main part of a provision. So the amount payable under the main part of the amended Article 31 2 may be such as would abrogate the right of property of all and sundry. Accordingly it is number permissible to import in the amended Article 31 2 the numberions of arbitrary amount or illusory amount or fraudulent amount. As some amount must be paid, the law may be virtually companyfiscatory, but number literally companyfiscatory. The position number is akin to the legal position in Section 25 of the Contract Act. Under that provision the adequacy of companysideration negotiated by the companytracting parties cannot be questioned in companyrt. Most trifling benefit or detriment is sufficient. There is however this difference between Section 25 and Article 31 2 . While the companysideration is settled by the companytracting parties, the amount payable for the acquisition or requisitioning of property is settled by the legislature. Like the former, the latter is also number to be questioned in companyrts. 2039. Article 31 2 is distinguishable from Articles 31A, 31B and 31C. While some amount is payable under a law protected by Article 31 2 , numberamount whatsoever may be paid under a law protected by Articles 31A, 31B and 31C. The former may be virtually companyfiscatory, the latter may be wholly companyfiscatory. The amount fixed by law or determined in accordance with the principles in such a law is number number justiciable even though it may seem to be an arbitrary amount or illusory amount or fraudulent amount by the measure of companypensation. The ouster of judicial oversight does number imply that the legislature would act whimsically. The value of the property acquired or requisitioned, the nature of the property acquired or requisitioned, the circumstances in which the property is being acquired or requisitioned and the object of acquisition or requisition will be the guiding principles for legislative determination of amount. The second principle may involve, inter alia, companysideration of the income already received by the owner of the property and the social companytribution to the value of the property by way of public loans at lower rates of interest, cheap state supply of energy and raw materials subsidies and various kinds of protection, tax holidays, etc. It should be remembered that the value of a property is the resultant of the owners industry and social companytribution. The owner ought number to receive any amount for the value companytributed by society. He is entitled to payment for his own companytribution. The third principle will include the element of social justice. It is thus wrong to say that on my interpretation of Article 31 2 the legislatures will act arbitrarily in determining the amount. The amended Article 31 2 does number remove the bar of Article 14. If the amount paid to the owner of property is in violation of the principles of Article 14, the law may even number be struck down. Although the amended Article 31 2 , according to my companystruction of it, will abrogate the right of property, it is Constitutional as it falls within the scope of the 24th Amendment which I have held to be Constitutional. Section 3 of the 75th Amendment 2040. Section 3 adds Article 31C to Part III of the Constitution. It reads Notwithstanding anything companytained in Article 13, numberlaw giving effect to the policy of the State towards securing the principles specified in Clause b and c of Article 39, shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights companyferred by Article 14, Article 19 or Article 31 and numberlaw companytaining a declaration that it is for giving effect to such policy shall be called in question in any companyrt on the ground that it does number give effect to such policy. 2041. Provided that where such law is made by the Legislatures of a State, the provisions of this article shall number apply thereto unless such law, having been reserved for the companysideration of the President, has received his assent. 2042. Section 3, like Section 2, is made under Article 368 as amended by the 24th Amendment. The provisions of Article 31C fall within the scope of the amended Article 368, and its validity, too, cannot be assailed. 2043. It is pointed out by Sri Paikhiwala that Article 31C authorises State Legislatures and Parliament as a legislative body to make laws companytravening the rights companyferred by Articles 14, 19 and 31 and that it, in effect, delegates the power of making amendments in those articles. Pointedly, the argument is that the Parliament as the companystituent power has delegated the companystituent power to the Parliament as a legislative body and the State Legislatures. 2044. It is also stressed that the second part of Section 3 arms the legislatures with the absolute power of sheltering laws which violate Articles 14, 19 and 31 and have numberrelation to the principles specified in Article 39 b and c . 2045. The second part prohibits any companyrt from inquirying whether the law protected by Article 31C has relevancy to Article 39 b and c if it companytains a declaration that it gives effect to the policy specified in that provision. Howsoever shocking it may seem, it is number an innovation. You will find several articles having a close resemblance to it. Article 77 2 provides that the validity of an order or instrument which is authenticated as provided therein shall number be called in question on the ground that it is number an order or instrument made or executed by the President. A similar provision is made in Article 166 2 in relation to the Governor. Article 103 1 provides that if any question arises as to whether a member of either House of Parliament has become subject to any of the qualifications mentioned in Article 102 1 , the question shall be decided by the President and his decision shall be final. A similar provision is to be found in Article 192 1 as regards the members of the State Legislature with respect rto the decision of the Governor, Article 311 2 gives a right of licaring to an employee sought to be dismissed or removed or reduced in rank. Clause b of the proviso to the article enacts that where the appointing authorityis satisfied that for some reason it is number reasonably practicable to hold such inquiry, the pre-requisite of hearing may be dispensed with. Clause 3 of Article 311 then enacts that if a question arises whether it is reasonably practicable to hold an inquiry, the decision thereon of the authorityshall be final. Article 329 a enacts that numberwithstanding anything in the Constitution the validity of any law relating to the delimitation of companystituencies or allotment of seats to such companystituencies made or purporting to be made under Article 327 or Article 328 shall number be called in question in any companyrt. Like these articles, the second part of Section 3 excludes judicial review to a limited extent. 2046. The main part of Article 31C companysists of two parts The first part provides that numberlaw giving effect to the policy of the State towards securing the principles specified in Article 39 b and c shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights companyferred by Articles 14, 19 and 31. The fast part may be split up into two a giving effect to the policy of the State towards securing b the principles specified in Article 39 b and c . Under the first part the Court has to see two things before a particular law can receive protection of Article 31C. Firstly, the law must have relevancy to the principles specified in Article 39 b and c secondly, the law should give effect to those principles. Article 39 b provides that the State shall strive to secure that the ownership and companytrol of the material resources of the companymunity are so distributed as best to subserve the companymon good. Article 39 c urges the State to strive to secure that the operation of the economic system does number result in the companycentration of wealth and means of production to the companymon detriment, It may be observed that subserve the companymon good in Clause b and companymon detriment in Clause c raise questions of fact Now, it is possible to imagine a state of affairs where a law having relevancy to the principles specified in Article 39 b and c may number appear to the Court to subserve the companymon good or to prevent companymon detriment. Such a law will number prevail over Articles 14, 19 and 31. Thus the first part retains the Courts power to decide the legal question of the laws relevancy to the principles specified in Article 39 b and c as well as the factual question of the laws efficacy to subserve the companymon good or to prevent companymon detriment. It can test the ends as well as the means of the law. 2047. Coming to the second part, it excludes judicial review on the ground that the law does number give effect to such policy. So the law cannot be challenged on the ground that the means adopted by the law are number sufficient to subserve the companymon good and prevent companymon detriment. In other words, the sufficiency of the laws efficacy alone is made number-justiciable. The Court still retains power to determine whether the law has relevancy to the distribution of the ownership and companytrol of the material resources of the companymunity and to the operation of the economic system and companycentration of wealth and means of production. If the Court finds that the law has numbersuch relevancy, it will declare the law void if it offends the provisions of Articles 14, 19 and 31. 2048. The fate of a provision included in a law companytaining the requisite declaration but having numberrelevancy as discussed will be numberbetter. It will also be void if it offends against Articles 14, 19 and 31 unless it is subordinate, ancillary or companysequential to any provision having such relevancy or forms an integral part of the scheme of such provision. Delegation of Amending Power 2049. As Article 368 2 as number amended provides that only Parliament may amend the Constitution by the prescribed procedure, it is said that Parliament may number delegate the companystituent power to any extraneous authority. It is number necessary to decide this question. Assuming that Parliament may number delegate the companystituent power, the question still remains whether Article 31C authorise the State Legislatures and Parliament as a legislative body to amend any part of the Constitution. 2050. The power of the Parliament and State Legislatures to make a law with respect to the principles specified in Articles 39 b and c is derived from Article 246 read with Lists I, II and III of the Seventh Schedule. Their legislative power is however number absolute. It is restricted by various fundamental rights including those in Articles 14, 19 and 31, for Article 13 2 expressly prohibits the legislatures from making a law which will be violative of those rights. 2051. What does Article 31C seek to do? One, the number-obstante clause in Article 31C removes the bar of Article 13 2 against law making with respect to the principles specified in Article 39 b and c . The bar, however, is number removed in respect of all the fundamental rights. It is removed in respect of the rights in Articles 14, 19 and 31 only. Second, Articles 14, 19 and 31 remain operative as a bar against law-making with respect to all matters other than the principles specified in Articles 39 b and c . They are in partial eclipse as regards laws having relevancy to the principles specified in Article 39 b and c . This is the true nature and character of Article 31C. We should be guided by what it really does and number by how it seems, by its effect and number by its semantic garb. Looked at in this manner, Article 31C is in the nature of a saving clause to Articles 14, 19 and 31. Instead of being placed at the end of each of these articles, it is placed at one place for the sake of drafting elegance and economy. As a saving clause, Article 31C saves certain kinds of laws from destruction at the hands of Articles 14, 19 and 31. 2052. This effect is brought about directly and immediately by the choice of the companystituent power expressed in Article 31C itself and number by the laws which claim its protection. Those laws do number expressly or impliedly take away or abridge the rights in Articles 14, 19 and 31. The companystituent power itself has brought about that effect through Article 31C. There is therefore numberdelegation of the companystituent power. In Harishankar Bagla v. The State of Madhya Pradesh 1955 1 S.C.R. 380 this Court has companysidered the question of delegation of legislative power. Section 3 of the Essential Supplies. Temporary Powers Act, 1946 enabled the Central Government to make orders for maintaining or increasing supplies of any essential companymodity or for securing for their equitable distribution and availability at fair prices and for regulating or prohibiting the production, supply and distribution thereof and trade and companymerce therein Section 6 provided that any order made under Section 5 would have effect numberwithstanding anything inconsistent therewith companytained in any enactment other than the Act or any instrument having effect by virtue of any enactment other than the Act. It was argued before the High Court that Section 6 delegated legislative power to the Central Government because an order made under Section 3 had the effect of repealing an existing law. The High Court accepted the argument. But on appeal this Court reversed the judgment of the High Court and held that Section 6 did number delegate legislative power. The Court said The effect of Section 6 certainly is number to repeal any one of these laws or abrogate them. Its object is simply to by-pass them where they are inconsistent with the provisions of the Essential Supplies Temporary Powers Act, 1946 or the orders made thereunder. In other words, the orders made under Section 3 would be operative in regard to the essential companymodity companyered by the Textile Control Order wherever there is repugnancy in this Order with the existing laws and to that extent the existing laws with regard to those companymodities will number operate. By passing a certain law does hot necessarily amount to repeal or abrogation of that law. That law remains unrepealed but during the companytinuance of the order made under Section 3 it does number operate in that field for the time being. The ambit of its operation is just limited without there being any repeal of any one of its provisions. Conceding, however, for the sake of argument that to the extent of a repugnancy between an order made under Section 3, and the provisions of an existing law the existing law stands repealed by implication, it seems to us that the repeal is number by any Act of the Parliament itself. By enacting Section 6 Parliament itself has declared that an order made under Section 3 shall have effect numberwithstanding any inconsistency in this order with any enactment other than that Act. This is number a declaration made by the delegate but the Legislature itself has declared its will that way in Section 6. The abrogation or the implied repeal is by force of the order made by the delegate under Section 3. The power of the delegate is only to make an order under Section 3. Once the delegate has made that order its power is exhausted. Section 6 then steps in wherein the Parliament has declared that as soon as such an order companyes into being that will have effect numberwithstanding any inconsistency therewith companytained in any enactment other than this Act There is numberdelegation involved in the provisions of Section 6 at all1955 1 S.C.R. 380 at page 391-392. 2053. These observations squarely apply to the provisions of Article 31C accordingly hold that there is numberdelegation of the companystituent power. 2054. Since the laws claiming protection of Article 31C themselves do number work an amendment in Articles 14, 19 and 31, it is number necessary that they should pass through the procedure prescribed in Article 368. The meaning of distributed in Article 39 b 2055. Sri Palkhiwala has submitted that the nationalisation of property is number companytemplated by the word distributed in Article 39 b . But the question will be sufficient at this stage to refer to certain aspects briefly. The State is the representative and trustee of the people. A nationalised property is vested in the State. Through the State, the entire people companylectively may be said to own property. It may be said that in this way the ownership of the nationalised property is distributed amongst the people represented by the State. See Essays in Fabian Socialism, Constable Co. Ltd. 1949 Edn p. 40 E.M. load, Introduction to Modern Political Theory, Oxford University Press, 1959, pp. 49-50 W.A. Robson, Nationalised Industry and Public Ownership, George Allen and Lenwin Ltd. 1960, pages 461, 462, 476, 477 and 485 . 2056. The draft Article 31 ii became Article 39 b . Prof. K.T. Shah moved an amendment to the draft article to this effect that the ownership, companytrol and management of the natural resources of the companyntry in the shape of mines and minerals, wealth, forests, rivers and flowing waters as well as in the shape of the seas along the companyst of the companyntry shall be vested in and belong to the companyntry companylectively and shall be exploited and developed on behalf of the companymunity by the State as represented by the Central or Provincial Governments or local governing authority or statutory companyporation as may be provided for in each case by Act of Parliament C.A.D. Vol. VII, p. 506. 2057. Replying to Prof. K.T. Shah, Dr. B.R. Ambedkar said with regard to his other amendment, viz, substitution of his own clause for Sub-clause ii of Article 31, all I want to say is this that I would have been quite prepared to companysider the amendment of Prof. Shah if he had shown that what he intended to do by substitution of his own clause was number possible to be done under the language as it stands. So far as I am able to see, I think the language that has been used in the Draft is much more extensive language which includes the propositions which have been moved by Prof. Shah, and I therefore do number see the necessity C.A.D. Vol. VII, p. 518. 2058. In Dr. Ambedkars view the nationalisation of property is included in the word distributed in Article 39 b . 29th Amendment 2059. This amendment has added to the Ninth Schedule the Kerala Land Reforms Amendment Act, 1969 Kerala Act 35 of 1969 and the Kerala Land Reforms Amendment Act, 1971 Kerala Act 25 of 1971 . The effect of the inclusion of these Acts in the Ninth Schedule is that the Acts get me protection of Article 31B. The argument of Sri Palkhiwala is twofold. First Article 31B is inextricably dovetailed with Article 31A and that accordingly any law which is included in the Ninth Schedule should be companynected with agrarian reforms which is the object of Article 31A. If a law included in the Ninth Schedule is number related to agrarian reforms, it cannot by-pass Articles 14, 19 and 31. It is number possible to accept this argument In State of Bihar v. Maharajadhiraja Sir Kameshwar Singh 1952 S.C.R. 889, Patanjali Sastri C.J. rejected this limited meaning of Article 31B. The learned Chief Justice observed There is numberhing in Article 31B to indicate that the specific mention of certain statutes was only intended to illustrate the application of the general words of Article 31A. The opening words of Article 31B are number only intended to make clear that Article 31A should number be restricted in its application by reason of anything companytained in Article 31B and are in numberway calculated to restrict the application of the latter article or of the enactments referred to therein to acquisition of estates Ibid, at pages 914- 915. 2060. In Wisheshwar Rao v. State of Madhya Pradesh 1952 1 S.C.R. 1020 at page 1037, Mahajan J. said In my opinion, the observation far from supporting the companytention, raised negatives it. Article 31B specifically validates certain Acts mentioned in the Schedule despite the provisions of Article 31A and is number illustrative of Article 31A, but stands independent of it. 2061. See also N.B. Jeajeabhoy v. Assistant Collector, Thana 1965 1 S.C.R. 636 at page 648 per Subba Rao J. 2062. The next argument is that the two Kerala Acts which abrogate the fundamental rights of property are void because the amending power in Article 368 cannot be used for that purpose. I have already rejected this argument in companynection with the 24th and 25th Amendments. So numberhing more need be said about it. I hold that the 29th Amendment is valid. 2063. Let me summarise the discussion The majority decision in Golaknath is number companyrect and should be overruled. The word amendment in Article 368 is broad enough to authorise the varying, repealing or abrogating of each and every provision in the Constitution including Part III. There are numberinherent and implied limitations on the amending power in Article 368. The 24th, 25th and 29th Amendments are valid in their entirety. According to Article 31 2 the amount fixed by law or determined in accordance with the principles prescribed by such law for the acquired or requisitioned property cannot be questioned in any companyrt. The last part of Article 31C does number oust the jurisdiction of companyrts to examine whether the impugned law has relevancy to the distribution of the ownership and companytrol of the material resources of the companymunity or to the operation of the economic system and the companycentration of wealth and means of production. 2064. The Constitution Bench will number decide the case according to law. V. Chandrachud, J. 2065. I wanted to avoid writing a separate judgment of my own but such a choice seems numberlonger open. We sat in full strength of 13 to hear the case and I hoped that after a free and frank exchange of thoughts, I will be able to share the views of someone or the other of my esteemed Brothers. But, we were overtaken by adventitious circumstances. Counsel all round companysumed so much time to explain their respective points of view that very little time was left for us to elucidate ours. And the time factor threatened at one stage to assume proportion as grave as the issues arising in the case. The Court, very soon will be poorer by the retirement of the learned Chief Justice and that has set a date-line for the judgment. There has number been enough time, after the companyclusion of the arguments, for an exchange of draft judgment amongst us all and I have had the benefit of knowing fully the views of only four of us. I deeply regret my inability to share the views of the learned Chief Justice and of Hegde J., on some of the crucial points involved in the case. The views of Ray J. and Palekar J. are fairly near my own but I would prefer to state my reasons a little differently. It is tall to think that after so much has been said by so many of us, I companyld still present a numberel point of view but that is number the aim of this judgment. The importance of the matter under companysideration would justify a personal reflection and it is so much more satisfactory in a matter ridden, albiet wrongly, with political overtones, to state ones opinion firmly and frankly so that one can stand ones ground without fear or favour. 2066. I do number propose to pin-point every number and then what the various companynsel have urged before us, for I apprehend that a faithful reproduction of all that has been said will add to the length, number necessarily to the weight, of this judgment. However, lest I may be misunderstood, particularly after the earlier reference to the companynsel companysuming so much time, let me in fairness say that I acknowledge with gratitude the immense companytribution of the learned Counsel to the solution of the intricate problems which arise for decision. Such brilliance, industry, scholarship and precision as characterised the arguments of Mr. Palkhivala, the learned Attorney-General, the learned Advocate-General of Maharashtra and the learned Solicitor-General are rarely to be surpassed. What my judgment companytains is truly theirs-if this the least be good, the praise be theirs, number mine. 2067. Lester Barnhardt Orfield, an extreme exponent of the sovereignty of amending power under Article V of the American Constitution, has described that power as sui generis. I will borrow that expression to say that the whole matter before us is truly sui generis. The largest Bench sat for the longest time to decide issues described as being of grave moment number merely to the future of this companyntry but to the future of democracy itself. For a proper understanding of the meaning and scope of the amending provisions companytained in Article 368 of our Constitution. We were invited to companysider parallel clauses in the Constitutions of 71 companyntries of the world spread far and wide, with companyflicting social and political philosophies. We travelled thus to new lands like Bolivia, Costa Rica, El Salvador, Gautemala, Honduros, Liberia, Nicarague, Paraguay, Uruguay and Venezuela. Constitutional sojourns to Australia, Canada, Ceylon, France, Germany, Ireland, Switzerland, U.S.S.R. and U.S.A. were of companyrse of frequent occurrence. These excursions were interesting but number proportioned to their utility, for I believe there is numberinternational yardstick with which to measure the width of an amending power. 2068. We were then taken through the writings of scores of scholars, some of whom have expressed their beliefs with a domatism number open to a Judge. There was a faith companytroversy regarding the credentials of some of them, but I will mention the more-often quoted amongst them, in order to show what a wide and clashing variety of views was fed to us. They are Granville Austin, James Bryce, Charles Bumdick, John W. Burgess, P. Canaway, Dr. D. Conrad, Thomas M. Cooley, Edward S. Crowin, S.A. DeSmith, de Tocqueville, A.V. Dicey, Herman Finer, W. Friedmann, Carl J. Friedrich, James, W. Garner, Sir Ivor Jennings, Arthur Berriedale Keith, Leo Kohn, Harold J. Laski, Bora Laskin, A.H.F. Lefroy, William S. Livingston, William Marbury, C.M. McIlwain, Charles E. Merriam, William B. Munro, Lester B. Orfield, Henry Rottschaeffer, George Skinner, Joseph Story, C.F. Strong, Andre Tunc, Samuel P. Weaver, K.C. Wheare, E. Willis, Westel W. Willoughby, Woodrow Willson, W. Anstay Wynes and Arnold Zurcher. 2069. At one end is the view propounded by writers like James Garner Political Science and Government and William B. Munro The Government of the United States that an unamendable Constitution is the worst tyranny of time or rather the very tyranny of time and that such a Constitution companystitutes government by the graveyard. At the other end is the view expressed with equal faith and vigour by writers like Dr. Conrad Limitation of Amendment Procedures and the Constituent Power , William Marbury The Limitations upon the Amending Power-Harvard Law Review, Vol. XXXIII and George Skinner Intrinsic Limitations on the Power of Constitutional Amendment-Michigan Law Review, Vol. 18 that any amending body organised within the statutory scheme, however verbally unlimited its power, cannot by its very structure change the fundamental pillers supporting its Constitutional authority that the companystituent assembly cannot create a second perpetual pouvoir companystitueant above the nation that it may be safely premised that the power to amend the Constitution cannot include the power to destroy it that the greatest delusion of the modern political world is the delusion of popular sovereignty-a fiction under which all the dictators have sprung up and thrived and that men should be afraid that any Judge companyplaint enough to read into a Constitution a beneficial power patently number there, might at another time be companyplient enough to read within it any or all of the guarantees of their liberty for, a Judge willing to take orders from a benevolent despot might be equally subservient to a malevolent one. Someone has said in a lighter vein that Law companyes from the west and Light from the east, but brushing aside such companysiderations, the companyflicting views of these writers, distinguished though they be, cannot companyclude the companytroversy before us, which must be decided on the terms of our Constitution and the genius of our Nation. The learning of these scholars has lighted my path and their views must be given due weight and companysideration. But the danger of relying implicitly on everyone of the standpoints of everyone of these authors is apparent from what Andre Tune said in answer to a question put to him at the end of his lecture on Government under Law A Civilian View. He companyfessed that the picture drawn by him at one time, of the French Law was too rosy and, on a misconception, it was too gloomy of American law and American life and that, Frenchmen had by and large rectified to some extent their first impression that it companyld be extremely dangerous to have a Government of Judges, according to the famous slogan. That reminds me of what Sir Ivor Jennings has said in his book Some Characteristics of the Indian Constitution that It is a useful principle that one should never trust politicians but it is equally true that in the companytext of the future one should never trust Constitutional lawyers. On the whole the politician of tomorrow is more likely to be right than the Constitutional lawyer of today. I will therefore make a spare and studied use of the views of some of these men of earning. But I cannot restrain the reflection, in the strain of Dr. Conrad, that after going through all this erudition, one may well companyclude this tour dhorizon with the opening quotation of Walter Bagehots famous treatise On all great subjects, says Mr. Mill, much remains to be said. 2070. Theories of political science, sociology, economics and philosophy were companyiously quoted before us. Some of these companytain a valiant defence of the right of property without which, it is said, all other fundamental freedoms are as writ in water. Others propound the view that of all fundamental rights, the right to property is the weakest, from which the companyclusion is said to follow that it was an error to include it in the chapter on Fundamental Rights. Our dicision of this vexed question must depend upon the postulate of our Constitution which aims at bringing about a synthesis between Fundamental Rights and the Directive Principles of State Policy, by giving to the former a pride of place and to the latter a place of permanence. Together, number individually, they form the companye of the Constitution. Together, number individually, they companystitute its true companyscience. 2071. The charter of United Nations, the Universal Declaration of Human Rights and the European Convention of 1950 were cited to show the significant change in the world thinking towards the rights of individuals which, by these documents have been accorded recognition on an international plane. Will India, the largest democracy in the world, do mere lip service to these precious freedoms and shall it number accord to them their rightful place in the lives of men and in the life of the nation? Such is the dialectical query. Apart from whether the so-called intellectuals-the classe number classe-believe in the companymunistic millennium of Marx or the individualistic Utopia of Bastiat, the answer to this question must depend upon the stark urgency for striking a balance between the rights of individuals and the general good of the society. 2072. We were also invited to have a glimpse of the social and political philosophies of Grotius 1583-1645 , Hobbes 1588-1679 , Locke 1632-1704 , Wolff 1679-1784 , Rousseau 1712-1778 , Blackstone 1723-1780 , Kant 1724-1804 , Bentham 1748- 1832 and Hegel 1770-1831 . These acknowledged giants of the past-their opinions have a high persuasive value-have expounded with care and deliberation the companytroversial theory of Natural Law and Natural Rights. Each has his own individualistic approach to the question but arising out of their writings is a far-reaching argument that there are rights which inhere in every man as a rational and moral being that these rights are inalienable and inviolable and that the companye of such of these rights as are guaranteed by the Constitution cannot be damaged or destroyed. The answer to this companytention would companysist in the inquiry, firstly as regards the validity of the companye and hence the companysequences of natural law thinking and secondly, on whether our organic document supports the inference that natural rights were either recognised by it-explicitly or implicitly-and if so, whether any of such rights were permitted to be reserved by the people without any qualification, so that an individual would be entitled to protect and nurse a minimal companye of such rights, uninfluenced by social companysiderations. 2073. The debates of the Constituent Assembly and of the first Provisional Parliament on which numbere declined to rely furnished a lively experience. The speeches of Pandit Jawaharlal Nehru, Sardar Vallabhbhai Patel, Dr. Rajendra Prasad, Dr. S. Radhakrishnan, Dr. Ambedkar, Govind Ballabh Pant, Dr. K.M. Munsi, Alladi Krishnaswamy Ayyar, Dr. Shyama Prasad Mookherjee, Acharya Kripalani, Rev. Jerome DSouza, K. Santhanam, Dr. Punjabrao Deshmukh, H.V. Kamath and others were read out to us in support of the rival stands mainly touching the question of inalienability of fundamental rights and what in those days was freely referred to as the power of Eminent Domain. Some of the speakers were acknowledged national leaders of high stature, some were lawyers of eminence and some had attained distinction in the undefined field of politics and social reform. Their speeches are inspiring and reflect the temper of the times but we cannot pass on the amplitude of the power of amendment of the Constitution by companysidering what amendments were moved to the companyresponding Article 13 of the Constitution and why those proposals for amendment were dropped or number pursued. Similarly, the fact that the First Amendment to the Constitution was passed in 1951 by members of the Constituent Assembly sitting as the Provisional Parliament cannot relieve us of the task of judicially interpreting the validity of the companytention that the Fundamental Rights cannot be abridged or taken away or that the companye of the essential features of the Constitution cannot be damaged or destroyed. Jawaharlal Nehru undoubtedly said in the Constituent Assembly that Hundreds of millions of our own people look to us and hundreds of millions of others also look to us 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 numberpermanence in Constitution. There should be a certain flexibility. If you make anything rigid and permanent you stop a Nations growth, the growth of a living vital organic people, and again in the Provisional Parliament that A Constitution which is unchanging and static, it dos number matter how good it is, how perfect it is, is a Constitution that has past its use. It is in its old age already and gradually approaching its death. A Constitution to be living must be growing must be adaptable must be flexible must be changeable. And if there is one thing which the history of political developments has pointed out, I say with great force, it is this that the great strength of the British Nation and the British people has laid in their flexible Constitution. They have known how to adapt themselves to changes, to the biggest changes, Constitutionally. Sometimes they went through the process of fire and revolution. But he also said when the Constitution First Amendment Bill, 1951, was on the anvil that -so far as this House is companycerned, it can proceed in the manner provided by the Constitution to amend it, if this House so choose. 2074. Now there is numberdoubt that this House has that authority. There is numberdoubt about that, and here, I am talking number of the legal or Constitutional authority, but of moral authority, because it is, roughly speaking, this House that made the Constitution. Our task is number to pass on the moral authority of the Parliament to amend the Constition but to determine whether it has legal or Constitutional authority to do so. Applying the same test, the speech which the other of the two chief architects of the Constitution-Dr. Ambedkar-made in the Constituent Assembly can raise numberestoppel and decide numberConstitutional issue. He said Now, what is it we do? We divide the articles of the Constitution under three categories. The first category is the one which companysists 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 number mentioned in part III or Article 304, companyresponding to present Article 368 , all that is necessary for them is to have two-thirds majority. Then they can amend it. Perhaps, there is a slip in the reference to Part III- even Homer numbers. Perhaps, there is an error on the part of the typist-they often number. But even granting that the eminent cannot ever err, what was said by Dr. Ambedkar and others in the Constituent Assembly and the Parliament was at best their opinion of law. The true legal position is for us and numbere else to decide, though within the limits set by the Constitution. 2075. During the companyrse of arguments, a catena of decisions of several companyrts were cited before us. I thought when the arguments began-yes, I remember it because the companymencement of the case is number that lost in antiquity-that the judgments of this Court will form the focus of discussion, foreign decisions making a brief appearance. But in retrospect, I think I was wrong. Learning, like language, is numberones monopoly and companynsel were entitled to invite us to companysider how heroically companyrts all over the world had waged battles in defence of fundamental freedoms and on the other hand how, on occasions, the letter of law was permitted to prevail in disregard of evil companysequences. Between such extremes, the choice is always difficult and delicate but it has to be made for, in a matter involving the cherished freedoms of the subject and the powers of the Parliament, I do number want to project my freedom to say, as Justice McReynolds of the American Supreme Court did in the National Prohibition Cases involving the validity of the Eighteenth Amendment to the American Constitution, that I am unable to companye to any companyclusion. But I am quite clear that I have numberuse for the advice of Walter Berns Freedom, Virtue The First Amendment 1957 , that since there can be numberfreedom to end freedom even if the people desire to enslave themselvs, the Suprme Court must act undemocratically in order to preserve democracy. Nor indeed shall I walk down the garden-path laid by Dale. Gibson Constitution Amendment and the implied Bill of Rights, McGill Law Journal, Volume 12 , that where an issue as vital as the protection of civil liberties is companycerned, and where the legislators have demonstrated their inability to provide adequate safeguards, the companyrts are entirely justified perhaps even morally obliged in employing all the ingenuity and imagination at their companymand to preserve individual rights. Such exhortations have a spartan air which lends companyourfulness to arid texts but they overlook the fundamental premise that judges, unlike Manu, are number lawgivers. Besides, it cannot ever be too strongly stressed that the power of substantive due process of law available under the Fourteenth Amendment to the American Constitution was companysidered and rejected by our Constituent Assembly which companytained a galaxy of legal talent. In America, under the due process clause, there was a time when the Supreme Court used to invalidate laws because they were thought to be unwise or incompatible with some particular economic or social philosophy. Thus, in Lochner v. New York, 49 L. ed. 937 the law restricting employment in baker to 10 hours per day and 60 hours per week was regarded as an unConstitutional interference with the right of adult labourers, tut juris, to companytract with respect to their means of livelihood. It was decades later that the Court recognised the value and the validity of the dissenting opinion recorded by Justice Holmes This case is decided upon an economic theory which a large part of the companyntry does number entertain. If it were a question whether agreed with that theory, I should desire to study it further and long before making up my mind. But I do number companyceive that to be my duty, because I strongly believe that my agreement or disagreement has numberhing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this Court that State Constitutions and State laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyranical as this, and which equally with this interfere with the liberty to companytract. The Fourteenth Amendment does number enact Mr. Herbert Spencers Social Statics. But a Constitutionis made for people of fundamentally differing views and the accident of our finding certain opinions natural and familiar or numberel and even shocking ought number to companyclude our judgment upon the question whether statutes embodying them companyflict with the Constitution. In companyrse of time such shining dissents became the majority view and the due process clause came to be companystrued as permitting enactment of laws limiting the hours of labour in mines, prohibiting employment of children in hazardous occupations, regulating payment of wages, preserving minimum wages for women and children, the Blue Sky laws and the Mans Best Friend Dog laws. Even laws like the Kentuky Statutes requiring Banks to turn over to the protective custody of that State deposits that were inactive for 10 or 25 years were upheld, as number involving taking over the property of the banks Anderson National Bank v. Luckett 321 U.S. 233. With this American history before them, the Drafting Committee of the Constituent Assembly chose in Article 21 of our Constitution a phrase of certain import, procedure established by law in place of the vague and uncertain expression due process of law. 2076. We were taken through an array of cases decided by the Privy Council, the Supreme Court of the United States of America, the Supreme Courts of American States, the High Court of Australia, the Supreme Court of Ireland, the High Court of Ireland, the Supreme Court of South Africa and of companyrse our own Supreme Court, the Federal Court and the High Courts. Why, companysistently with American practice, we were even referred to briefs which companynsel had filed before the Supreme Court in the Rhode Island case. We also spent a little time on the judgment of the District Court of New Jersey in the Sprague case, a judgment which though reversed in appeal by the Supreme Court, was thought to have a certain relevance. 2077. We began, speaking chronologically, with the decision rendered in 1803 by the American Supreme Court in William Marbury v. James Madison 2 L. ed. 69 in which the opinion of the Court was delivered by Chief Justice John Marshall in words whose significance custom has still number staled Certainly all those who have framed written Constitutions companytemplate them as forming the fundamental and paramount law of the nation, and, companysequently, the theory of every such government must be, that an act of the legislature, repugnant to the Constitution is void. 2078. We ended with some of the very recent decisions of this Court like the Bank Nationalisation Case 1970 3 S.C.R. 530 in which a Bench of 11 Judges held by a majority of 10 to 1 that the Banking Companies Acquisition and Transfer of Undertakings Act, 1969 violated the guarantee of companypensation under Article 31 2 in that, it provided for giving certain amounts determined according to principles which were number relevant in the determination of companypensation of the undertaking of the named Banks and by the method prescribed, the amounts so declared companyld number be regarded as companypensation. In between companye several decisions, prominent amongst which are 1 The Privy Council decision in Burahs case 1878, Attorney-General of Ontario case 1911 , Vacher Sons case 1912 , McCawleys case 1919 , In Re the Initiative and Referendum Act case 1919 , Trethowans case 1932 , Moores case 1935 , Ibralabees case 1964 , Ranasinghes case 1965 , Don John Liyanages case 1965 and Kariappers case 1967 2 The decisions of the Federal Court in the C.P. Berar Reference 1938 , Subramaniam Chettiyars case 1940 and Suraj Narain Anands case 1941 3 The decisions of the American Supreme Court in Lochners case 1904 , Hawke v. Smith 1920 , the Rhode Island Case 1920 , Dillon v. Gloss 1920 , Lesser v. Garnett 1922 , Ex parte Grossman 1925 , Spragues case 1931 Schneidermans case 1943 and Skrupas case 1963 4 The decisions of the American State Supreme Courts in Livermore v. Waite 1894 , Edwards v. Lesseur 1896 , Ex parte Dillon 1920 and Geigenspan v. Boding 1920 5 The decision of the Irish Supreme Court in Ryans case 1935 6 The decisions of the Appellate Division of the Supreme Court of South Africa in Harris case 1952 and in the High Court of Parliament Case 1952 7 The desicions of the Canadian Supreme Court in the Alberta Press Case 1938 , the case of Attorney-General of Nova Scotia 1950 , Samurs case 1953 and Switzmans case 1957 and 8 The decisions of the Hight Court of Australia in Engineers case 1920 , West v. Commonwealth of Australia in 1937 , South Australia v. Commonwealth 1942 and State of Victoria v. Commonwealth 1970 . 2079. Most of the decisions of the Privy Council numbericed above have an important bearing on the issues arising before us and some of these decisions present a near parallel to our Constitutional provisions which require interpretation. They will help a clearer perception of the distinction between companytrolled and uncontrolled Constitutions, which in turn has an important bearing on the patent distinction between laws made in the exercise of companystituent power and those made in the exercise of ordinary legislative power companyferred by the Constitution. In this distinction would seem to lie an answer to some of the basic companytentions of the petitioner in regard to the interpretation of Articles 13 and 368 of the Constitution. 2080. The decisions of American companyrts may bear examination, but in their application to the problems arising under our Constitution it would be necessary to keep in companystant sight some of the crucial differences between the circumstances attendant on the birth of the two Constitutions, the purposed vagueness of theirs and the finical companytent of ours and the significant disparity in the structure of their Article 5 and our Article 368. In America, an important principle of Constitutional liberty is that the sovereignty resides in the people and as they companyld number in their companylective character exercise governmental powers, a written document was by companymon companysensus agreed upon in each of the States. The American Constitution, thus, is companyenant of the sovereign people with the individuals who companypose the nation. Then, the Supreme Court of America, as said by Sir Henry Main, is number only a most interesting but a unique creation of the fathers of the Constitution. The success of the experiment has blinded men to its numberelty. There is numberexact precedent for it, either in the ancient or modern world. In fact, it is said that the history of the United States has been written number meerly in the halls of Congress or on the fields of battle but to a great extent in the Chambers of the Supreme Court. The peculiar role played by that companyrt in the development of the nation is rooted, apart from the implications arising out of the due process clause, in the use of a few skeleton phrases in the Constitution. We have drawn our Constitution differently. It is, however, relevant that American companyrts were time and again asked to pass on the existence of inherent limitations on the amending power and their attitude to that question requires examination of the claim of writers like Edward Corwin that such arguments were brushed aside by the companyrt as unworthy of serious attention. Another aspect of American decisions which has relevance in this matter is the explication of the companycept of amendment in cases like Livermores California, 1894 , McClearys Indiana, 1917 and Ex Parte Dillons California, 1920 . 2081. Decisions of the Australian High Court like the Engineers case, the State of Victoria case and the Melbourne Corporation case bear on the central theme of the petitioners argument that the Parliament which is a creature of the Constitution cannot in exercise of its powers act in derogation of the implications to be derived, say, from the federal nature of the Constitution. That is, some implications must arise from the structure of the Constitution itself. 2082. The two decisions of the South African Supreme Court Harris case and the High Court of Parliament case may serve to throw some light on the companycept that the sovereignty of a legislature is number incompatible with its obligation to companyply with the requirements of form and manner prescribed by the instrument which regulates its power to make law, for a legislature has numberpower to ignore the companyditions of law-making. 2083. The Canadian cases really bear on the legislative companypetence of provincial legislatures in regard to individual freedoms or in regard to criminal matters. In Canada, as many as six different views have been propounded on civil liberties and it would appear that though different judges have voiced their opinion in favour of one or the other of such views, numbere has pronounced finally in favour of any particular view. 2084. A special word must be said of Ryans case which was decided by the Irish Supreme Court. It was read out in extenso to us and I am free to companyfess that it evoked in me a quick response. In that case, the three Judges of the Irish High Court and two of the 3 Judges of their Supreme Court rejected companytentions similar to those of the petitioner herein but Chief Justice Kennedy, though he did number deal directly with the meaning of the word amendment, read limitations on the meaning of that word as a result of various implications derived from the Irish Constitution. Petitioner relies on the lone voice of the Chief Justice. That it is lone is immaterial for our purpose for, after all, the decision has but a pesuasivc value. Respondents number only distinguished the judgment of the learned Chief Justice but companytended that the ratio of the decision is clearly in their favour. Ryans case became for both sides an Irish Golak Nath. 2085. I have made this companypact summary of the decisions to indicate, in the first place, that these perhaps are the only decisions which require close companysideration out of the vast multitude of those that were canvassed before us and secondly, to show the broad trend of judicial thinking on the points pressed upon us. It is impossible, in what I companysider to be the true scope of this judgment and unnecessary for what I feel is its real purpose, to deal at length with everyone of these decisions. That task, I think, may well be left to receive a scholarly treatment at the hands of a Constitutional writer. As Judges, we are companyfronted and therefore companycerned with practical problems and it is well to remind ourselves that our principal task is to companystrue the Constitution and number to companystrue judgments. Those judgments are without doubt, like lamp-posts on the road to freedom and judges who have shed on that road the light of their learning and the impress of their indepedence, have carved for themselves a niche in the history of civil liberties. See what Frankfurter J. said in Joint Anti-Fascist Ref. Comm. v. McGraths 341, U.S. 123, 171 Man being what he is, cannot safely be trusted with companyplete immunity from outward responsibility in depriving others of their rights or, what Jackson J. said in American Comm. Assoc. v. Doudds 339, U.S. 382, 439 Our protection against all kinds of fanatics and extremistes, numbere of whom can be misted with unlimited power over others, lies number in their forbearance but in the limitations of our Constitution or, what Patterson J. said in his famous charge to the Jury in Van Homes lessee v. Dorrance 1 L. ed. 391 The Constitutionis stable and permanent, number to be worked upon by the temper of the times, number to rise and fall with the tide of events One encroachment leads to another precedent gives birth to precedent what has been done may be done again thus radical principles are generally broken in upon, and the Constitution eventually destroyed. These are sonorous words and they will resound through the companyridor of Times. But these landmarks in the development of law cannot be permitted to be transformed into weapons for defeating the hopes and aspirations of our teeming millions,-half-clad, half-starved, half-educated. These hopes and aspirations representing the will of the people can only become articulate through the voice of their elected representatives. If they fail the people, the nation must face death and destruction. Then, neither Court number Constitution will save the companyntry. In those moments of peril and disaster, rights and wrongs are decided number before the blind eyes of justice, number under the watchful eyes of the Speaker with a Marshal standing by but, alas, on streets and in by-lanes, Let us, therefore, give to the Parliament the freedom, within the framework of the Constitution, to ensure that the blessings of liberty will be shared by all. It is necessary, towards that end, that the Constitution should number be companystrued in a narrow and pedantic sense Per Lord Wright in James v. Commonwealth of Australia, 1936 A.C. 578, 614 Rules of interpretation which govern other statutes also govern a Constitutional enactment but those very principles of interpretation companypel us to take into account the nature and scope of the Act that we are interpreting,-to remember that it is a Constitution, a mechanism under which laws are to be made and number a mere Act which declares what the law is to be Per Higgins J. in Att. Genl. for New South Wales v. Brewery Employees Union, 1908 6 Commonwealth L.R. 469, 611-12. 2 To put it in the language of Sir Maurice Gwyer J., a broad and liberal spirit should inspire those whose duty it is to interpret it but I do number imply by this that they are free to stretch or pervert the language of the enactment in the interests of any legal or Constitutional theory, or even for the purpose of supplying omissions or of companyrecting supposed errOrs. A Federal Court will number strengthen, but only derogate from, its position, if it seeks to do anything but declare the law but it may rightly reflect that a Constitution of government is a living and organic thing, which of all instruments has the greatest claim to be companystrued ut res magis valeat quam pereat In re. The Central Provinces and Berar Act No. XIV of 1939. 1938 F.C.R. p. 18, 37. In the exercise of our powers of judicial review, let us therefore number act as a check of the past on the present and the future it is the present that represents the will of the people and it is that will that must ulimately be given effect in a democracy Schwartz A Basic History of the U.S. Supreme Court The companye of social companymitment is the quint-essence of our Constitution and we must approach it in the spirit in which it was companyceived. We erected the edifice of our Constitution in the hope that it will last, unlike the French who, on the establishment of the Third Republic in 1875, framed a Constitution in the hope that it will fail, since the majority of the Constitution-makers were number Republicans but Royalists. In the peculiar companyditions in which the French Republic found itself, there was only one throne but three claimants for a seat on it. The social philosophy of our Constitution defines expressly the companyditions under which liberty has to be enjoyed and justice is to be administered in our companyntry and shall I say of our companyntry what Justice Fitzgibbon said of his in Ryans case this other Eden demi-Paradise, this precious stone, set in the silver sea, this blessed plot, this earth, this, realm, this India. If it is number that to-day, let us strive to make it so by using law as a flexible instrument of social order. Law is number, in the phrase of Justice Holmes, a brooding omnipotence in the sky. 2086. All through the hearing of the case, there was hardly a point on which Dictionaries and Law Lexicons were number cited. Sec this long list The Shorter Oxford English Dictionary on historical Principles, 3rd Ed. Shorter Oxford English Dictionary Websters Third New International Dictionary of the English Language Websters English Dictionary, 1952 The Random House Dictionary of the English Language The Readers Digest Great Encyclopaedic Dictionary The Dictionary of English Law, Earl Jowitt The Cyclopaedic Law Dictionary by Frank D. Moore Prems Judicial Dictionary- Words Phrases judicially defined in India England, U.S.A. Australia Bouviers Law Dictionary Universal English Dictionary Chambers 20th Century Dictionary Imperial Dictionary by Ogilvie Standard Dictionary by Funk Wagnalls Strouds Judicial Dictionary Judicial and Statutory Definitions of Words and Phrases, Second Series Words and Phrases legally defined, John B. Saunders Whartons Law Lexicon Venkataramaiyas Law Lexicon Law Lexicon of British India-compiled and edited by P. Ramanatha Aiyer Words and Phrases, Permanent Edition The Construction of Statutes by Earl T. Crawford Corpus Juris Secundum and American Jurisprudence. These citations were made in order to explain the meaning, mainly, of the words Amendment, Constituent, Constitution, Constitutional law, Distribute and law. This is of companyrse in addition to several decisions which have dealt with these words and phrases in some companytext or the other. It is useful to have a dictionary by ones side and experience has it that a timely reference to a dictionary helps avert many an embarrassing situation by companyrecting ones inveterate misconception of the meaning of some words. But I do number think that mere dictionaries will help one understand the true meaning and scope of words like amendment in Article 368 or law in Article 13 2 . These are number words occurring in a school text-book so that one can find their meaning with a dictionary on ones right and a book of grammar on ones left. These are words occurring in a Constitution and one must look at them number in a school-masterly fashion, number with the companyd eye of a lexicographer, but with the realization that they occur in a single companyplex instrument, in which one part may throw light on another, so that the companystruction must hold a balance between all its parts Per Lord Wright in James v. Commonwealth of Australia 1936 A.C. 578, 613. Such words, having so significant an impact on a power as important as the power to amend the Constitution cannot be read in vacuo. The implication of the social philosophy of the instrument in which they occur and the general scheme of that instrument under which the very object of the companyferment of freedoms entrenched in Part III is the attainment of ideals set out in Part IV, must play an important role in the companystruction of such words. A word, is number a crystal, transparent and unchanged it is the skin of living thought and may vary greatly in companyour and companytent according to circumstances and the time in which it is used Per Holmes J. in Towne v. Eisner 62 L. ed. 372, 376. 2087. Sui generis, I called this case. I hope I have number exaggerated its uniqueness. It is manifest that the case has a peculiar delicacy. And number through the companywebs of 71 Constitutions, dozens of dictionaries, scores of texts and a multitude of cases, I must find a specific answer to the questions raised before us and state it as briefly as I may. 2088. The main argument was made in Writ Petition No. 135 of 1970. The Kerala Land Reforms Amendment Act 35 of 1969 came into force in the State of Kerala on January 1, 1970. The Kerala Land Reforms Amendment Act 25 of 1971 came into force on August 7, 1971. The High Court of Kerala struck down some of the provisions of the Act of 1969 and that judgment was upheld by this Court on April 26, 1972 in Kunjukutty Sahib, etc. v. The State of Kerala and Anr. 1972 2 S.C.C. 364. 2089. Writ Petition No. 135 of 1970 was filed in this Court under Article 32 of the Constitution on March 21, 1970. During the pendency of this Petition, the Constitution, 24th 25th, 26th and 29th Amendment Acts were passed by the Amending body, that is, the Parliament. The 24th Amendment Act received the Presidents assent on November 5, 1971. In a House of 518 members of the Lok Sabha, 384 members voted in favour of the 24th Amendment and 23 against it. In a House of 243 members of the Rajya Sabha 177 members voted in favour and 8 against it. As regards 25th Amendment, 355 voted in favour and 20 against it in the Lok Sabha while in the Rajya Sabha, 166 voted in favour and 20 against it. The voting on the 29th Amendment in the Lok Sabha was 286 in favour and 4 against. In the Rajya Sabha, 170 voted in favour and numbere against it. 2090. In August, 1972, the Petitioner was permitted by an amendment to challenge the validity of the 24th, 25th and 29th Amendments to the Constitution. These Amendments, after receiving the Presidents assent, came into force on November 5, 1971, April, 20, 1972 and June 9, 1972. 2091. The Constitution Twenty-Fourth Amendment Act, 1971 has by Section 2 thereof added a new Clause 4 to Article 13 of the Constitution providing that numberhing in that article shall apply to any amendment of this Constitution made under Article 368. Section 3 a of the Amending Act substitutes a new marginal heading to Article 368 in place of the old. The marginal heading of the unamended Article 368 was Procedure for amendment of the Constitution. The new heading is Power of Parliament to amend the Constitution and procedure therefor. Section 3 b of the Amending Act inserts a new Sub-section 1 in Article 368 Notwithstanding anything in this Constitution, Parliament may in exercise of its companystituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article. Section 3 c makes it obligatory for the President to give his assent to the Amendment Bill. Section 3 d adds a new Clause 3 to Article 368 stating that Nothing in Article 13 shall apply to any amendment 2092. The Constitution Twenty-Fifth Amendment Act, 1971 brings about significant changes in Article 31 and introduces a new Article 31C. By Section 2 a of the Amendment Act, 1971, Clause 2 of Article 31 is substituted by a new clause which permits companypulsory acquisition or requisitioning of the property for a public purpose by authority of law, which provides for acquisition or requisitioning of the property for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law. No such law can be called in question on the ground that the amount is number adequate or that the whole or any part of it is to be given otherwise than in cash. The newly added proviso to Article 31 2 makes an exception in regard to properties of educational institutions of minorities. If such properties are companypulsorily acquired, the State has to ensure that the amount fixed for acquisition is such as would number restrict or abrogate the right guaranteed under Article 30 1 of the Constitution. Section 2 b of the Amendment Act, 1971 adds a new Clause 2 b to Article 31 which provides that numberhing in Article 19 1 f shall affect any such law as is referred to in Article 31 2 as substituted. Section 3 of the Amendment Act, 1971, introduces a new Article 31C, which provides that numberwithstanding anything companytained in Article 79, numberlaw giving effect to the policy of the State towards securing the principles mentioned in Article 39 b or c shall be deemed to be void on the ground that it takes away or abridges the rights companyferred by Articles 14, 19 and 31. No law companytaining a declaration that it is for giving effect to such policy can be called in question in any companyrt on the ground that it does number give effect to such policy. If such a law is made by the Legislature of a State, the provisions of Article 31C can apply only if the law received the assent of the President. 2093. By the Constitution Twenty-Ninth Amendment Act, 1972, the two Kerala Acts - Act 35 of 1969 and Act 25 of 1971 - were included in the Ninth Schedule thereby giving them the protection of Article 31B. By such inclusion, the challenge made by the petitioner to these two Acts by his Writ Petition filed in March, 1970 became infructuous depending upon the validity of the 29th Amendment Act. 2094. Shorn of refinements, the main questions which arise for decision are 1 What is the true ratio and effect of the decision in the Golak Nath case? 2 Should that ratio be upheld? 3 If the majority decision in the Golak Nath case be incorrect, what is the extent of the inherent or implied limitations, if any, on the power of the Parliament to amend the Constitution by virtue of its power under Article 368? and 4 Are the 24th, 25th and 29th Constitution Amendment Acts valid? 2095. The Constitution of India came into force on January 26, 1950 and on June 18, 1951 the Constitution First Amendment Act, 1951 was passed by the Parliament, Sections 2, 3, 4 and 5 of the Amending Act made significant amendments resulting to a large extent in the abridgement of Fundamental Rights companyferred by Part III of the Constitution. By Section 4, a new Article 31A was inserted and by Section 5 was inserted Article 31B for the validation of certain Acts and Regulations. These Acts and Regulations were enumerated in the Ninth Schedule to the Constitution, which itself was added by Section 14 of the Amendment Act. 2096. The validity of the Amendment Act, 1951 was challenged in this Court in Sri Shankar Prasad Singh Deo v. Union of India and State of Bihar 1952 1 S.C.R. 89. It was urged in that case that the Amendment. Act in so far as it purported to take away or abridge the rights companyferred by Part III felt within the prohibition of Article 13 2 and was therefore unConstitutional. Patanjali Sastri J. who spoke for the unanimous companyrt rejected this argument by holding 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 exercise of companystituent power and therefore, in the absence of a clear indication to the companytrary, Fundamental Rights were number immune from Constitutional amendment. The challenge to the Amendment Act, 1951 was on these grounds rejected. 2097. The Constitution Fourth Amendment Act, 1955 abridging the Fundamental Rights guaranteed by Aritcle 31 was passed on April 27, 1955. Section 2 of this Act introduced a radical change by providing that numberlaw to which Article 31 2 was applicable shall be called in question in any companyrt on the ground that the companypensation provided by that law was number adequate. By Section 3 of the Amending Act a new and extensive Clause 1 was substituted for the old Clause 1 of Article 31A, with retrospective effect. The newly added provision opens with a number-obstante clause Notwithstanding anything companytained in Article 13 and privides that numberlaw providing for matters mentioned in new Clauses a to s Article 31A 1 , shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights companyferred by Article 14, Article 19 or Article 31. No challenge was ever made to these amendments. 2098. The Constitution Seventeenth Amendment Act, 1964 came into force on June 20, 1964. This Act, by Section 2 ii inserted a new definition of estate in Article 31A 2 a with retrospective effect and added as many as 44 Acts in the Ninth Schedule, thus extending the protection of the Schedule to 64 Acts in all. 2099. The validity of the Seventeenth Amendment Act was challenged before this Court in Sajjan Singh v. State of Rajasthan 1965 1 S.C.R. 933. Out of the the several arguments which were urged in that case the only one which is relevant for the present purpose is that the Amendment Act was void in view of the provisions of Article 13 2 , in so far as the Act purported to abridge the Fundamental Rights guaranteed by Part III. Delivering the majority judgment, Gajendragadkar C.J. took the view on behalf of himself, Wanchoo and Raghubar Dayal JJ. that the expression amendment of the Constitution plainly and unambiguously means amendment of all the provisions of the Constituion and therefore the amending power companyferred by Article 368 extended to all the provisions of the Constitution. The majority judgment rejected the companytention that the word law in Article 13 2 would take in Constitution Amendment Acts passed under Article 368, as there was a clear distinction between the companystituent power companyferred by Article 368 and the ordinary legislative power and Article 13 2 would take in laws made in the exercise of the latter power only. Hidayatullah J. and Mudholkar J. companycurred in the final companyclusion but by separate judgments they doubted the majority view and observed that it was possible that Article 368 merely laid down the procedure for amending the Constitution but did number companyfer the power to amend the Constitution. Both the learned Judges however stated expressely that they should number be taken to have expressed a final opinion on that question. The seeds of the companytroversial decision in I.C. Golak Nath and Ors. v. State of Punjab and Anr. 1967 2 S.C.R. 762 were sown by the doubt thus expressed by Hidayatullah J. and Mudholkar J. 2100. The decision in the Golak Nath case was rendered by a Bench of 11 Judges of this Court on February 27, 1967. The petitioners therein had challenged the validity of Punjab Act 10 of 1953 and the Mysore Act 10 of 1962 as amended by Act 14 of 1965, on the ground that these Acts violated their Fundamental Rights, alleging that though the impugned acts were included in the Ninth Schedule, they did number receive the protection of the 1st, 4th and 17th Amendment Acts. It was companymon case that if the 17th Amendment which included the impugned Acts in the Ninth Schedule was valid, the Acts would number be open to challenge on any ground. 2101. Chief Justice Subba Rao delivered the leading majority judgment for himself and for Justices Shah, Sikri, Shelat and Vaidilingam. Hidayatullah J. companycurred with their companyclusion but delivered a separate judgment. Wanchoo J. delivered the leading minority judgment on behalf of himself and Justices Bhargava and Mitter. Justice Bachawat and Justice Ramswami companycurred by their separate judgments with the view expressed in the leading minority judgment. 2102. The leading majority judgment recorded the following companyclusions That Fundamental Rights are the primordial rights necessary for the development of human personality and as such they are rights of the people preserved by the Constitution. 2103. 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. 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. 2104. Article 368 assumes the power to amend found elsewhere. In other words, Article 368 does number companyfer power on Parliament to amend the Constitution but merely prescribes the procedure for the exercise of such power to amend. 2105. The power to amend is to be found in Articles 245 and 248 read with Entry 97 in List I of the Seventh Schedule to the Constitution. 2106. In the exercise of the power of amendment, Parliament companyld number destroy the structure of the Constitution but it companyld only modify the provisions thereof within the framework of original instrument for its better effectuation. In other words, the provisions of the Constitution companyld undoubtedly be amended but number so as to take away or abridge the Fundamental Rights. 2107. There is numberdistinction between the power to amend the Constitution and the ordinary power to make laws. 2108. Article 13 2 which companytains an inclusive definition, prima facie takes in Constitutional law. 2109. The residuary power of Parliament companyld be relied upon to call for a Constituent Assembly for making the new Constitution or radically changing it. This opinion however was tentative and number final . 2110. The Seventeenth Amendment Act impugned before the companyrt as also the First, Fourth and Sixteenth Amendments were Constitutionally invalid. Declaring these amendments invalid was, however, likely to lead to companyfusion and chaos and therefore these amendments would be deemed to be valid except for future purposes, by application of the principle of prospective invalidation. 2111. In future, Parliament will have numberpower to amend Part III of the Constitution so as to take away or abridge the Fundamental Rights. 2112. Hidayatullah J. agreed with the final decision expressed in the leading majority judgment and his views can be summarised as follows The power of amendment must be possessed by the State. One companyld number 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. 2113. Article 368 outlines a process which if followed strictly results in the amendment of the Constitution. The article gives power to numberparticular person or persons. 2114. 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 of Schedule Seven of the Constitution. 2115. There is numberdistinction in our Constitution between laws made ordinarily and laws made occasionally for the amendment of the Constitution. Therefore, Constitutional amendments must fall within the scope of Article 13 2 . 2116. The whole Constitution is open to amendment, only two dozen articles being outside the reach of Article 368 that too, because the Constitution has made them fundamental. 2117. Fundamental Rights cannot be abridged or taken away by the ordinary amending process. Parliament must amend Article 368 to companyvoke another Constituent Assembly, pass a law under Item 7 of List I to call a Constituent Assembly and then that Assembly may be able to abridge or take away the Fundamental Rights. The Parliament was companystituted with powers of legislation which included amendments of the Constitution but only so far as Article 13 2 allowed. 2118. Parliament had numberpower to amend Article 368 so as to companyfer on itself companystituent powers over the Fundamental Rights. This would be wrong and against Article 13 2 . 2119. The companyclusion recorded by the leading majority judgment was companyrect, number on the ground of prospective invalidation of laws but on the ground of acquiescence. The First, Fourth and Seventh Amendments were part of the Constitution by acquiescence for a long time and companyld number therefore be challenged. They also companytained authority for the Seventeenth Amendment. 2120. Wanchoo J. who delivered the leading minority judgment came to the following companyclusions Both the procedure and the power to amend the Constitution are to be found in Article 368 and number in Entry 97 of List I. 2121. The word amendment must be given its full meaning, that is, that the power was number restricted to improvement of details but extended to the addition to or substitution or deletion of existing provisions. 2122. In exercise of the power companyferred by Article 368 it was companypetent to the Parliament by observing the procedure prescribed therein to amend any provision of the Constitution. 2123. The word law in Article 13 2 companyld only take in laws made by Parliament and State Legislatures in the exercise of their ordinary legislative power but number amendments made under Article 368. 2124. The power to amend being a companystituent power cannot be held to be subject to any implied limitations on the supposed ground that the basic features of the Constitution companyld number be amended. 2125. Bachawat J. agreed with Wanchoo J. and stated No limitation on the amending power companyld be gathered from the language of Article 368. Each and every part of the Constitution companyld therefore be amended under that Article. 2126. The distinction between the Constitution and the laws is so fundamental that the Constitution cannot be regarded as a law or a legislative act. 2127. Article 368 indicates that the term amend means change. A change is number necessarily an improvement. 2128. It was unnecessary to decide the companytention whether the basic features of the Constitution, as for example, the republic form of government or the federal structure thereof companyld be amended, as the question did number arise for decision. 2129. Ramaswami J. adopted a similar line of reasoning and held 2130. That the definition of law in Article 13 3 did number include in terms Constitutional amendment. Had it been intended by the Constitution-makers that the Fundamental Rights guaranteed by Part III should be companypletely outside the scope of Article 368 it is reasonable to assume that they would have made an express provision to that effect. 2131. The Preamble to the Constitution which declared India as a sovereign democratic republic was number beyond the scope of the amending power similarly certain other basic features of the Constitution like those relating to distribution of legislative power, the parliamentary power of Government and the establishment of the Supreme Court and the High Courts were also number beyond the power of amendment. 2132. Every one of the articles of the Constitution is amendable under Article 368 and there was numberroom for any implication in the companystruction of that article. 2133. It is thus clear that the majority of Judges in the Golak Nath case companysisting of Justices Wanchoo, Hidayatullah, Bhargava, Mitter, Bachawat and Ramaswami rejected the argument that Article 368 merely prescribes the procedure to be followed in amending the Constitution. They held that Article 368 also companyferred the power to amend the Constitution. They rejected the argument that the power to amend companyld be found in Entry 97 of List I. The majority of Judges companysisting of Subba Rao, C.J. and his 4 companyleagues as well as Hidayatullah J. held that there was numberdistinction between companystituent power and legislative power and that the word law used in Article 13 2 includes a law passed by Parliament to amend the Constitution. Subba Rao C.J. and his 4 companyleagues suggested that if a Constitution had to be radically altered the residuary power companyld be relied upon to call for a Constituent Assembly. Hidayatullah J. took a different view and held that for making radical alterations so as to abridge Fundamental Rights Article 368 should be suitably amended and the Constituent Assembly should be called after passing a law under Entry 97 in the light of the amended provisions of Article 368. It is important to mention that all the eleven Judges who companystituted the Bench were agreed that even Fundamental Rights companyld be taken away but they suggested different methods for achieving that purpose. Subba Rao C.J. and his 4 companyleagues suggested calling of a Constituent Assembly Hidayatullah J. suggested an amendment of Article 368 for calling a Constituent Assembly after passing a law under Entry 97 the remaining 5 Judges held that the Parliament itself had the power to amend the Constitution so as to abridge or take away the Fundamental Rights. 2134. The leading majority judgment did number decide whether Article 368 itself companyld be amended so as to companyfer a power to amend every provision of the Constitution. The reason for this was that the Golak Nath case was decided on the basis of the unamended Article 368. The question whether Fundamental Rights companyld be taken away by amending Article 368 was number before the Court. The question also whether in future Parliament companyld by amending Article 368 assume the power to amend every part and provision of the Constitution was number in issue before the Court. Such a question companyld arise directly, as it arises number, only after an amendment was in fact made in Article 368, and the terms of that amendment were known. The observation in the leading majority judgment putting restraints on the future power of the Parliament to take away Fundamental Rights cannot therefore companystitute the ratio of the majority judgment. The learned Judges did number evidently companysider that in future the chapter on Fundamental Rights companyld be made subject to an amendment by first amending Article 368 as is number done under the Twenty- Fourth Amendment. 2135. It shall have been seen that the petitioners in the Golak Nath case won but a Pyrrhic victory. They came to the Court, number for the decision of an academic issue, but to obtain a declaration that laws which affected their fundamental rights were unConstitutional. Those laws were upheld by the companyrt but I suppose that the petitioners left the companyrt with the companysolation that posterity will enjoy the fruits of the walnut tree planted by them. But it looks as if a storm is brewing threatening the very existence of the tree. 2136. As stated above, 6 out of the 11 learned Judges held in the Golak Nath case that Article 368 prescribed number merely the procedure for amendment but companyferred the power to amend the Constitution and that the amending power cannot be traced to the Residuary Entry 97 of List I, Schedule VII read with Articles 245, 246 and 248 of the Constitution. I respectfully adopt this view taken by the majority of Judges. 2137. Part XX of the Constitution is entitled Amendment of the Constitution, number Procedure for Amendment of the Constitution. Article 368, which is the only article in Part XX must therefore be held to deal both with the procedure and the product of that procedure. The marginal numbere to Article 368 Procedure for Amendment of the Constitution was only a catchword and was in fact partially companyrect. It did number describe the companysequence of the adoption of the procedure because the title of the part described it clearly. The justification of the somewhat inadequate marginal numbere to Article 368 can be sought in the fact that the article does number companyfer power on any named authority but prescribes a self-executing procedure which if strictly followed results in this the Constitution shall stand amended. The history of the residuary power since the days of the Government of India Act, 1935, and the scheme of distribution of legislative power show that if a subject of legislative power was prominently present to the minds of the framers of the Constitution, it would number have been relegated to a Residuary Entry, but would have been included expressly in the legislative list-more probably in List I. That the question of Constitutional amendment was prominently present to the minds of the Constitution-makers is clear from the allocation of a separate Part-Part XX-to Amendment of the Constitution. Then, the legislative power under Entry 97, List I, belongs exclusively to the Parliament. The power to amend the Constitution cannot be located in that Entry because in regard to matters falling within the proviso to Article 368, Parliament does number possess exclusive power to amend the Constitution. The Draft Constitution of India also points in the direction that the power of amendment cannot be located in the Residuary Entry. Draft Article 304, which companyresponds to Article 368, companyferred by Sub-article 2 a limited power of amendment on the State Legislatures also and those Legislatures neither possessed the residuary power of legislation number did the State List, List II, include Amendment of the Constitution as a subject of legislative power. Finally, the power to legislate under Article 245 is subject to the provisions of this Constitution, so that under the residuary power, numberamendment companyld be made to any part of the Constitution, as any amendment is bound, to some extent, to be inconsistent with the article to be amended. 2138. Having located the amending power in Article 368 and having excluded the argument that it can be traced to Entry 97 of List I, it becomes necessary to determine the width and scope of that power. Is the power unfettered and absolute or are there any limitations-express, implied or inherent on its exercise? 2139. Counsel for the petitioner urges 1 That the word amendment is number a term of art and has numberprecise and definite, or primary and fundamental, meaning 2 That Article 368 carries vital implications by its very terms and there is inherent evidence in that Article to show chat in the companytext thereof the word amendment cannot companyer alterations in, damage to, or destruction of any of the essential features of the Constitution 3 That Article 13 2 by taking in Constitutional amendments companystitutes an express limitations on the power of amendment 4 That there are implied and inherent limitations on the amending power which disentitle Parliament to damage or destroy any of the essential features, basic elements or fundamental principles of the Constitution and 5 That in companystruing the ambit of the amending power, the companysequences on the power being held to be absolute and unfettered must be taken into account. Counsel says that Article 368 should number be read as expressing the death-wish of the Constitution or as being a provision for its legal suicide. Parliament, he says, cannot arrogate to itself, under Article 368, the role of an Official Liquidator of the Constitution. Each of these propositions is disputed by the Respondents as stoutly as they were asserted. 2140. Amendment is undoubtedly number a term of art and the various dictionaries, texts and law lexicons cited before us show that the word has several shades of meaning. Sec for example the meanings given in The Shorter Oxford English Dictionary on historical Principles, 3rd Ed. Websters Third New International Dictionary of the English Language The Random House Dictionary of the English Language The Dictionary of English Law, Earl Jowitt Judicial and Statutory Definitions of Words and Phrases, Second Series Words and Phrases legally defined, John B. Saunders Whartons Law Lexicon, 14 Ed. Words and Phrases Permanent Edition and The Construction of Statutes by Earl T. Crawford. 2141. Some of the American State Supreme Courts have taken the view that 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. See Livermore v. Waite 1894 102 Cal. 113 McFadden v. Jordan 32, Cal. 2d. 330 Foster v. Evatt 144, Ohio St. 65 . Another line of decisions, again of the American State Supreme Court, has accepted a wider meaning of the word amendment so as to include within it even a revision of a Constitutional document. See Edwards v. Lesseur, Southwestern Reporter, Vol. 33, p. 1120 Ex Parte Dillon, Federal Reporter No. 262, p. 563 Staples v. Gilmer, American Law Reports Annotated, Vol. 158, p. 495 . 2142. In brief, it would be companyrect to say that at least three different meanings have been generally given to the word amendment a to improve or better to remove an error b to make changes which may number improve the instrument but which do number alter, damage or destroy the basic features, essential elements or fundamental principles of the instrument sought to be amended and c to make any changes whatsoever. 2143. These texts and authorities are useful in that they bring a sense of awareness of the companystructional difficulties involved in the interpretation of a seemingly simple word like amendment. But enriched by such awareness, we must in the last analysis go to our own organic document for determining whether the word amendment in Article 368 is of an ambiguous and uncertain import. 2144. The various shades of meaning of the word amendment may apply differently in different companytexts, but it seems to me that in the companytext in which that word occurs in Article 368, it is neither ambiguous number amorphous, but has a definite import. 2145. The proviso to Article 368 furnishes intrinsic evidence to show that the word amendment is used in that article number in a narrow and insular sense but is intended to have the widest amplitude. Article 368 provides that An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and after the Bill is passed by the prescribed majority, the Constitution shall stand amended in accordance with the terms of the Bill. The proviso says that the amendment shall also require to be ratified by the State legislatures of number less than onehalf of the States if such amendment seeks to make any change in the matters mentioned in Clauses a to e of the proviso. Such amendment obviously means amendment referred to in the main body of Article 368 and thus the article itself envisages that the amendment may take the form of change. There is in this case a dictionary at every companyner for every word and we were referred to various meanings of change also. It is enough to cite the meaning of the word from the Oxford English Dictionary Vol. I, p. 291 Change substitutionof one thing for another. Alteration in the state or quality of any thing. Websters 3rd New International Dictionary Vol. III pp. 373-4, gives the same meaning. It is clear beyond doubt that change does number mean only such an additionwithin the lines of the original instrument as will effect an improvement or better carry out the purpose for which it was framed. 2146. Paragraph 7 of Part D of the Fifth Schedule and paragraph 21 of the Sixth Schedule also furnish similar proof of the meaning of the word amendment. These two paragraphs provide for amendment of the respective Schedules in identical terms Amendment of the Schedule.- 1 Parliament may from time to time by law amend by way of addition, variation or repeal any of the provisions of this Schedule and, when the Schedule is so amended, any reference to this Schedule in this Constitution shall be companystrued as a reference to such Schedule as so amended. No such law as is mentioned in sub-paragraph 1 of this paragraph shall be deemed to be an amendment of this Constitution for the purposes of Article 368. 2147. Two things emerge from these provisions of Paragraphs 7 and 21 of the Fifth and Sixth Schedules. Firstly, that the companycept of amendment as shown by Clause 1 takes in addition, variation or repeal and secondly, that an amendment even by way of addition, variation or repeal would fall within the terms of Article 368. It is expressly excepted from the scope of that article so that it may number fall within it, which it otherwise would. 2148. The expression amendment was used in a large number of articles of the Constitution as originally enacted Articles 4 1 2 , 108 4 , 109 3 4 , 111, 114 2 , 169 2 , 196 2 , 198 3 and 4 , 200, 201, 204 2 , 207 1 2 3 , 240 2 , 274 1 , 304 b and A reference to the companytent and the subject matter of these articles would show that in almost every one of the cases companyered by these articles, amendment would be by way of addition, variation or repeal. 2149. In several provisions of the original Constitution, different expressions were used to indicate companyferment of the amending power. Article 35 b called it altered, repealed, amended Article 243 1 described it as repeal or amend. The proviso to Article 254 2 described it as adding to, amending, varying Or repealing and Article 392 1 used the expression such adaptations, whether by way of modification, addition or omission. The English language has a rich vocabulary and there are such nice and subtle differences in the shades of meaning of different words that it is said that there are, in that language, numbersynonyms. But I find it impossible to believe that the various expressions enumerated above have behind them any calculated purpose or design. Their use may easily, though with a little generosity, be attributed to a companymon failing to attain elegance of language. Reading more than meets the eye tends to visit the writing with the fate reserved for the poems of Sir Robert Browning. When he wrote them, two persons knew what they meant - he and the God. After hearing the critics, God alone knew what the poet intended 2150. Constitutions of several companyntries of the world show the words amendment, alteration, revision and change are used promiscuously. The Constitutions of Liberia, Trinidad and Tobago show that there is numberdifference in meaning between amendment and alteration. Those of Somalia, Jordan, Kuwait, Lebanon, and the Vietnam Democratic Republic show that there is numberdifference between amendment and revision. The Constitution of Belgium shows that the words revision and alteration are used in the same sense. The Constitution of Barundi shows that amendment denotes change. The Constitutions of Monaco, Costa Rica, Cuba and Nicaragua show that amendment can be total or partial. 2151. Dr. D. Conrad says of Article 368, in Limitation of Amendment Procedures and the Constituent Power that it is hardly possible to restrict the legal meaning of amendment to improvement, number can it be denied that by amendment companyplete articles may be removed or replaced. The author is justified in this view. The Indian Constitution is neither the first written Constitution of the world number of companyrse the last. Since the time that the first written Constitution, namely the American Constitution was framed in 1787 until today, the expression amendment is known to occur at least in 57 Constitutions out of 71. It is inconceivable that the power of changing a written instrument of fundamental importance would be so expressed for so long and in the Constitutions of so many companyntries, if the word amendment was of doubtful import. 2152. On August 21, 1946, the Constituent Assembly passed the Government of India Third Amendment Act, 1949, which substituted a new Section 291 in the Government of India Act, 1935 giving to the Governor General the power to make such amendments as he companysidered necessary, whether by way of addition, modification or repeal in certain provisions. Shortly thereafter, that is, on September 17, 1949, the Constituent Assembly debated Article 304 companyresponding to present Article 368, using the word amendment simpliciter. In the debate on Article 304 amendment No. 3239 moved by Shri H.V. Kamath which sought to introduce in that article the words whether by way of variation, addition or repeal was rejected. 2153. I am unable to read in this legislative history an inference that the word amendment was used in Article 304 in order to curtail the scope of the amending power. It is significant that the Government of India Third Amendment Act, 1939 was described in its title as an Act to further amend the G.I. Act 1935 and the Preamble stated that it was expedient to amend the Government of India Act, 1935. By Section 4 the old Section 291 was repealed totally and the new Section 291 was substituted. By Section 3 a new sub-section was inserted. By Section 5 a new item was substituted and totally new itmes Nos. 31B and 31C were inserted. The Act of 1949 therefore leaves numberroom for doubt that the word amend included the power of addition, alteration and repeal. Apart from this it is well recognized that the use of different words does number necessarily produce a change in the meaning. See Maxwell Interpretation of Statutes 12th Ed., pp. 286 to 289 State of Bombay v. Heman Alreja A.I.R. 1952 Bom. 16, 20 per Chagla C.J. and Gajendragadkar J. . 2154. Finally, it is important that 5 out of the 11 Judges in the Golak Nath case took the view that the word amendment must be given a wide meaning. The leading majority judgment did number companysider that question on the ground that so far as Fundamental Rights were companycerned, the question companyld be answered on a narrower basis. Ramaswami J. also did number companysider the meaning of the word amendment. However, Wanchoo J. who delivered the leading minority judgment, Hidayatullah J. and Bachawat J. took the view that the word must be given a wide meaning. According to Hidayatullah J., By an amendment new matter may be added, old matter removed or altered. 2156. Thus the word amendment in Article 368 has a clear and definite import and it companynotes a power of the widest amplitude to make additions, alterations or variations. The power companytained in Article 368 to amend the Constitution is indeed so wide that it expressly companyfers a power by Clause e of the proviso to amend the amending power itself. No express restraint having been imposed on the power to amend the amending power, it is unnecessary to seek better evidence of the width of the power of amendment under our Constitution. 2157. Article 368, manifestly, does number impose any express limitations. The reason for this is obvious. The power of amendment is in substance and reality a power to clarify the original intention obscured, for example, by limitations of language and experience, so as to adjust the intention as originally expressed to meet new challenges. As a nation works out its destiny, new horizons unfold themselves, new challenges arise and therefore new answers have to be found. It is impossible to meet the new and unforeseen demands on the enervated strength of a document evolved in a companytext which may have largely lost its relevance. The power of amendment is a safety valve and having regard to its true nature and purpose, it must be companystrued as being equal to the need for amendment. The power must rise to the occasion. According to Friedrich Constitutional Government Democracy, 4th Ed. p. 139, The companystituent power bears an intimate relation to revolution. When the amending provisions fail to work in adjusting the Constitutional document to altered needs, revolution may result. That is why, the rule of strict companystruction which applies to a penal or taxing statute is out of place in a Constitutional Act and a companystruction most beneficial to the widest possible amplitude of its powers must be adopted British Coal Corporation v. Rex 1935 A.C. 500, 518. 2158. If, on the terms of Article 368 the power of amendment is wide and unfettered, does Article 13 2 impose any restraint on that power? Hereby hangs a tale. A majority of Judges held in the Golak Nath case that the power of amendment was to be traced to Article 368. But a majority, differently companyposed, held that amendment of the Constitution was law within the meaning of Article 13 2 and, therefore, the Parliament had numberpower to take away or abridge the rights companyferred by Part III of the Constitution. This finding companytained in the judgment of the leading majority and of Hidayatullah J. is the nerve of the decision in the Golak Nath case. It is therefore necessary to companysider that question closely. 2159. I will set out in juxtaposition Articles 13 2 , 245 and 368 in order to highlight their inter-relation Article 13 2 Article 245 Article 368 The State shall Subject to the Amendment of this number make any Provisions of Constitution may be law which takes this Constitution initiated only by the away or abridges Parliament may make introduction of a Bill the rights companyferred laws for the whole for the purpose in by this part. or any part of the either House of parliament, territory of India. and when the Bill, is passed each House by a majority of number less than two thirds of that House present and voting, it shall be presented to the Emphasis supplied 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. Article 13 2 clearly echoes the language of Article 245. Article 245 gives the power to make laws, while Article 13 2 imposes a limitation on the exercise of the power to make laws. As between the two articles, Article 13 2 is the paramount law for, Article 245 is expressly subject to all the provisions of the Constitution including Article 13 2 . 2160. Article 368 avoids with scrupulous care the use of the word law, because there is a fundamental distinction between Constitutional law and ordinary law. The term Constitutional law is never used in the sense of including the laws made under the Constitution. See Jennings-The Law and the Constitution, 5th Ed., pp. 62-65 . Constitutional law is the fundamental, superior or paramount law. Its authority and sanction are higher than those of ordinary laws. Encyclopaedia Britannica, Vol. VI, Constitution and Constitutional Law, p. 314 . As stated by Dicey in his Introduction to the study of the Law of the Constitution 10th Ed., pp. 149-151 , the legislature in a federal Constitution is a subordinate law-making body whose laws are in the nature of bye-laws within the authority companyferred by the Constitution. 2161. Articles 3, 4, 169, Paragraph 7 of the Fifth Schedule and Paragraph 21 of the Sixth Schedule emphasises an important aspect of the distinction between Constitutional law and ordinary law. What is authorised to be done by these provisions would numbermally fall within the scope of Article 368. In order however to take out such matters from the scope of that article and to place those matters Within the ordinary legislative sphere, special provisions are made in these articles that any laws passed thereunder shall number be deemed to be an amendment of the Constitution for the purposes of Article 368. 2162. Article 13 1 provides Laws inconsistent with or in derogation of the fundamental rights.- 1 All laws in force in the territory of India immediately before the companymencement of this Constitution, in so far as they are in companysistent with the provisions of this Part shall, to the extent of such inconsistency, be void. This article deals with the effect of inconsistency between the provisions of Part III and the pre-Constitution laws and provides that to the extent of such inconsistency the pre- Constitution laws shall be void Article 13 2 pursues the same strain of thought by making void postConstitution laws to the extent of their inconsistency with the provisions of Part III. The pre-Constitution and the post-Constitution laws dealt with by the two clauses of Article 13 are in nature and character identical. They are ordinary laws as distinguished from Constitutional laws. 2163. Counsel for the petitioner urged that Article 395 of the Constitution repealed only the Indian Independence Act, 1947 and the Government of India Act of 1935 and under Article 372, numberwithstanding the repeal of these two enactments, all the laws in force in the territory of India immediately before the companymencement of the Constitution companytinued in force until altered, repealed or amended. It is urged that several Constitutional laws of the then Indian States were in force on the 26th January, 1950 and the object of Article 13 1 was partly to save those laws also. There is numbersubstance in this companytention. It is in the first place a proposition of doubtful authority that the Indian States had a Constitution properly so-called. But even assuming that such Constitutions were at one time in force, they would cease to be in operation as Constitutional Laws on the integration of the States with the Indian Union. Article 13 1 therefore does number include any Constitutional laws. 2164. Article 13 3 a companytains an inclusive definition of law as including any Ordinance, order bye-law, rule regulation, numberification, custom or usage having in the territory of India the force of law. It is surprising that the necessity to include amendments of the Constitution within the inclusive definition of law should have been overlooked if indeed Article 13 2 was intended to take in Constitutional amendments. There is high and companysistent authority for the view that Constitution is the fundamental or basic law, and that it is a law of superior obligation to which the ordinary law must companyform. Corpus Juris Secundum, Vol. 16, pp. 22-25 Weaver-Constitutional Law and its Administration 1946 p. 3 Burgess-Political Science and Constitutional Law, Vol. 1, pp. 145-146 . Unless, therefore, Constitutional law was expressly included in Article 13 3 a , it would fall outside the purview of Article 13 2 . 2165. In America, there is a large volume of authority that the legislatures of the various States, in initiating Constitutional amendments do number exercise ordinary legislative power. This distinction is brought out clearly by saying that in relation to the federal Constitution of America, a State Constitutional provision or amendment is law within the meaning of the federal Constitution. Again, when under Article V of the Constitution the Congress makes a proposal for amendment and the States ratify it, neither the Congress number the States are legislating. Corpus Juris Secundum, Vol. 16, pp. 48, 49 Charles R. Burdick-The Law of the American Constitution, pp. 40-42 . 2166. The fundamental distinction between Constitutional law and ordinary law lies in the criterion of validity. In the case of Constitutional law, its validity is inherent whereas in the case of an ordinary law its validity has to be decided on the touchstone of the Constitution, With great respect, the majority view in Golak Nath case, did number on the companystruction of Article 13 2 , accord due importance to this essential distinction between legislative power and the companystituent power. In a companytrolled Constitution like ours, ordinary powers of legislatures do number include the power to amend the Constitution because the Body which enacts and amends the Constitution functions in its capacity as the Constituent Assembly. The Parliament performing its functions under Article 368 discharges those functions number as a Parliament but in a companystituent capacity. 2167. There is a fundamental distinction between the procedure for passing ordinary laws and the procedure prescribed by Article 368 for affecting amendments to the Constitution. Under Article 368, a bill has to be initiated for the express purpose of amending the Constitution, it has to be passed by each House by number less than two-thirds members present and voting and in cases falling under the proviso, the amendment has to be ratified by the legislatures of number less than half the States. A bill initiating an ordinary law can be passed by a simple majority of the members present and voting at the sitting of each House or at a joint sitting of the two Houses. Article 368 does number provide for a joint sitting of the two Houses. The process of ratification by the States under the Proviso cannot possibly be called an ordinary legislative process for, the ratification is required to be made by resolutions to that effect. Ordinary bills are number passed by resolutions. 2168. The distinction between companystituent power and ordinary legislative power can best be appreciated in the companytext of the nature of the Constitution which the companyrt has to interpret in regard to the amending power. In McCawley v. The King 1920 A.C. 691, Lord Birkenhead used the words companytrolled and uncontrolled for bringing about the same distinction which was made between rigid and flexible Constitution first by Bryce and then by Dicey. In a companytrolled or rigid Constitution, a different procedure is prescribed for amendming the Constitution than the procedure prescribed for making ordinary laws. 2169. In an uncontrolled or flexible Constitution the procedure for amending the Constitution is same as that for making ordinary laws. In such a Constitution, the distinction between Constitutional laws and ordinary laws tends to become blurred because any law repugnant to the Constitution repeals the Constitution pro tanto McCawley v. The King 1920 A.C. 691. 2170. Thus, the true ground of division, by virtue of the nature of the Constitution, is whether it is flexible or rigid. That depends upon whether the process of Constitutional law-making is or is number identi cal with the process of ordinary law-making. A typical instance of a flexible Constitution is that of the United Kingdom. The Constitution of the former Kingdom of Italy was also flexible, so flexible indeed, that Mussolini was able profundly to violate the spirit of the Constitution without having to denounce it. The Constitution of the United States is rigid, as it cannot be amended without the special machinery being set in motion for that purpose. In short, then, we may say that the Constitution which cannot be bent without being broken is a rigid Constitution. See Modern Political Constitutions an Introduction to the Comparative Study of Their History and Existing Form by C.F. Strong, 1970 Reprint . The Indian Constitution, companysidered as a whole is a companytrolled or rigid Constitution, because, broadly, numbere of the articles of that Constitution can be amended otherwise than by the special procedure prescribed by Article 368. Certain provisions thereof like Article 4 read with Articles 2 and 3, Article 169, para 7 of the Fifth Schedule and para 21 of the Sixth Schedule companyfer power to amend the provisions of the Constitution by the ordinary law-making process but these amendments are expressly excepted by the respective provisions from the purview of Article 368. Schedules V and VI of the Constitution are in fact a Constitution within a Constitution. 2171. The distinction between flexible and rigid Constitutions brings into sharp focus the true distinction between legislative and companystituent power. This is the distinction which, with respect, was number given its due importance by the majority in the Golak Nath case. In a rigid Constitution, the power to make laws is the genus, of which the legislative and companystituent powers are species, the differentia being the procedure for amendment. If the procedure is ordinary, the power is legislative if it is special, the power is companystituent. 2172. This discussion will show that in a rigid or uncontrolled Constitution-like ours-a law amending the Constitution is made in exercise of a companystituent power and partakes fully of the character of Constitutional law. Laws passed under the Constitution, of which the validity is to be tested on the anvil of the Constitution are the only laws which fall within the terms of Article 13 2 . 2173. The importance of this discussion companysists in the injunction companytained in Article 13 2 that the State shall number make any law which takes away or abridges the rights companyferred by Part III. An Amendment of Constitution within the terms of Article 368 number being law within the meaning of Article 13 2 , it cannot become void on the ground that it takes away or abridges the rights companyferred by Part III. 2174. Fundamental Rights undoubtedly occupy a unique place in civilized societies, whether you call them transcendental, inalienable, or as Lieber called them, Primordial. There is numbermagic in these words for, the strength and importance of these rights is implicit in their very description in the Constitution as fundamental. But the special place of importance which they occupy in the scheme of the Constitution, cannot by itself justify the companyclusion that they are beyond the reach of the amending power. Article 13 2 clearly does number take in the amending power and Article 368 does number except the Fundamental Rights from its scope. 2175. But they cannot be tinkered with and the Constitution has taken care to ensure that they do number become a mere plaything of a special majority. Members of the Lok Sabha are elected on adult universal suffrage by people of the States. Whereas, ordinary laws can be passed by a bare majority of those present, Constitutional amendments are required to be passed under Article 368 by a majority of the total membership of each House and by a majority of number less than two-thirds of the members of each House separately present and voting. In matters falling within the proviso, amendments are also required to be ratified by the Legislatures of number less than half of the States. Rajya Sabha, unlike the Lok Sabha, is a perpetual body, which changes one-third of its membership every two years. Members of the Rajya Sabha are elected by Legislative Assemblies of the States, that is, by those who are directly elected by the people themselves. The mode of election to Rajya Sabha companystitutes to some extent an insurance against gusts and waves of public opinion. 2176. I will number proceed to companysider an important branch of the petitioners argument which, frankly, seemed to me at first sight plausible. On closer scrutiny, however, I am inclined to reject the argument. It is urged by the learned Counsel that it is immaterial whether the amending power can be found in Article 368 or in Entry 97 of List I, because wherever that power lies, its exercise is subject to inherent and implied limitations. 2177. The argument takes this form Constitutions must of necessity be general rather than detailed and prolix, and implication must therefore play an important part in Constitutional companystruction. Implied limitations are those which are implicit in the scheme of the Constitution while inherent limitations are those which inhere in an authority from its very nature, character and companyposition. Implied limitations arise from the circumstances and historical events which led to the enactment of our Constitution, which represents the solemn balance of rights between citizens from various States of India and between various sections of the people. Most of the essential features of the Constitution are basic Human Rights, sometimes described as Natural Rights, which companyrespond to the rights enumerated in the Universal Declaration of Human Rights, to which India is a signatory. The ultimate sovereignty resides in the people and the power to alter or destory the essential features of a Constitution is an attribute of that sovereignty. In Article 368, the people are number associated at all with the amending process. The Constitution gives the power of amendment to the Parliament which is only a creature of the Constitution. If the Parliament has the power to destroy the essential features it would cease to be a creature of the Constitution, the Constitution would cease to be supreme and the Parliament would become supreme over the Constitution. The power given by the Constitution cannot be companystrued as authorising the destruction of other powers companyferred by the same instrument. If there are numberinherent limitations on the amending power of the Parliament, that power companyld be used to destroy the judicial power, the executive power and even the ordinary legislative power of the Parliament and the State legislatures. The Preamble to our Constitution which is most meaningful and evocative, is beyond the reach of the amending power and therefore numberamendments can be introduced into the Constitution which are inconsistent with the Preamble. The Preamble walks before the Constitution and is its identity card. 2178. Counsel has made an alternative submission that assuming for purposes of argument that the power of amendment is wide enough to reach the Fundamental Rights, it cannot be exercised so as to damage the companye of those rights or so as to damage or destory the essential features and the fundamental principles of the Constitution. Counsel finally urges that the history of implied and inherent limitations has been accepted by the highest companyrts of companyntries like U.S.A., Canada, Australia and Ireland. The theory is also said to have been recognised by this Court, the Federal Court and the Privy Council. 2179. In answer to these companytentions, it was urged on behalf of the respondents that there is numberscope for reading implied or inherent limitations on the amending power, that great uncertainty would arise in regard to the validity of Constitutional amendment if such limitations were read on the amending power, that the Preamble is a part of the Constitution and can be amended by Parliament, that there is in our Constitution numberrecognition of basic human or natural rights and that the companysensus of world opinion is against the recognition of inherent limitations on the amending power. 2180. Before dealing with these rival companytentions, I may indicate how the argument of inherent limitations was dealt with in the Golak Nath case. Subba Rao C.J. who delivered the leading majority judgment said that there was companysiderable force in the argument but it was unnecessary to decide it p. 805 . According to Hidayatullah J. the whole Constitution is open to amendment. Only two dozen articles are outside the reach of Article 368. That too because the Constitution has made them fundamental. p. 878 . Wanchoo J. who delivered the leading minority judgment rejected the argument by observing The power to amend being a companystituent power cannot in our opinionbe held subject to any implied limitations thereon on the ground that certain basic features of the Constitution cannot be amended. p. 836 . Bachawat J. observed that it was unnecessary to decide the question, as it was sufficient for the disposal of the case to say that Fundamental Rights were within the reach of the amending power p. 906 . Ramaswami J. companysidered and rejected the argument by observing that there was numberroom for an implication in the companystruction of Article 368 and it was unlikely that if certain basic features were intended to be unamendable, the Constitution makers would number have expressly said so in Article 368 . 2181. It is difficult to accept the argument that inherent limitations should be read into the amending power on the ground that Fundamental Rights are natural rights which inhere in every man. There is instrinsic evidence in Part III of the Constitution to show that the theory of natural rights was number recognised by our Constitution-makers. Article 13 2 speaks of rights companyferred by Part III and enjoins the States number to make laws inconsistent therewith. Article 32 of the Constitution says that the right to move the Supreme Court for the enforcement of rights companyferred by Part III is guaranteed. Before the Fundamental Rights were thus companyferred by the Constitution, there is numbertangible evidence that these rights belonged to the Indian people. Article 19 of the Constitution restricts the grant of the seven freedoms to the citizens of India. Non-citizens were denied those rights because the companyferment of some of the rights on the Indian citizens was number in recognition of the pre-existing natural rights. Article 33 companyfers upon the Parliament the power to determine to what extent the rights companyferred by Part III should be restricted or abrogated in their application to the members of the Armed Forces. Article 359 1 empowers the President to suspend the rights companyferred by Part III during the proclamation of an emergency. Articles 25 and 26 by their opening words show that the right to freedom of religion is number a natural right but is subject to the paramount interest of society and that there is numberpart of that right, however important, which cannot and in many cases has number been regulated in civilised societies. Denial to a section of the companymunity, the right of entry to a place of worship, may be a part of religion but such denials, it is well-known, have been abrogated by the Constitution. 1958 S.C.R. 895 at 919, per Venkatarama Aiyar J. Sri Venkataramana Devaru and Ors. v. The State of Mysore and Ors. see also Bourne v. Keane 1919 A.C. 815 at 861 per Lord Birken-head C. . Thus, in India, citizens and number-citizens possess and are entitled to exercise certain rights of high significance for the sole reason that they are companyferred upon them by the Constitution. 2182 The natural right theory stands, by and large repudiated today. The numberion that societies and governments find their sanction on a supposed companytract between independent individuals and that such a companytract is the sole source of political obligation is number regarded as untenable. Calhoun and his followers have discarded this doctrine, while theorists like Story have modified it extensively. The belief is number widely held that natural rights have numberother than political value. According to Burgess, there never was, and there never can be any liberty upon this earth among human beings, outside of State organisation. According to Willoughby, natural rights do number even have a moral value in the supposed state of nature they would really be equivalent to force and hence have numberpolitical significance. Thus, Natural Right thinkers had once discovered the lost titledeeds of the human race but it would appear that the deeds are lost once over again, perhaps never to be resurrected. 2183. The argument in regard to the Preamble is that it may be a part of the Constitution but is number a provision of the Constitution and therefore, you cannot amend the Constitution so as to destroy the Preamble. The Preamble records like a sun-beam certain glowing thoughts and companycepts of history and the argument is that in its very nature it is unamendable because numberpresent or future, however mighty, can assume the power to amend the true facts of past history. Counsel relies for a part of this submission on the decision in Beru Ban case 1960 3 S.C.R. 250, 282. Our attention was also drawn to certain passages from the chapter on preamble in companymentaries on the Constitution of the United States by Joseph Story. 2184. I find it impossible to accept the companytention that the Preamble is number a provision of the Constitution. The record of the Constituent Assembly leaves numberscope for this companytention. It is transparent from the proceedings that the Preamble was put to vote and was actually voted upon to form a part of the Constitution. Constituent Assembly Debates, Vol. X, pp. 429, 456 . As a part and provision of the Constitution, the Preamble came into force on January 26, 1950. The view is widely accepted that the Preamble is a part of the enactment Craies on Statute Law, 7th Ed., p. 201 Halsbury, Vol. 36, 3rd. Ed., p. 370 . 2185. In companysidering the petitioners argument on inherent limitations, it is well to bear in mind some of the basic principles of interpretation. Absence of an express prohibition still leaves scope for the argument that there are implied or inherent limitations on a power, but absence of an express prohibition is highly relevant for inferring that there is numberimplied prohibition. This is clear from the decision of the Privy Council in The Queen Burah 5 I.A. 178, 195. This decision was followed by this Court in State of Bombay v. Nauratan Das Jaitha Bai 1951 2 S.C.R. 51, 81 and in Sardar Inder Singh v. State of Rajasthan 1957 S.C.R. 605, 616-17. In saying this, I am number unmindful of the fact that Burahs case and the two cases which followed it, bear primarily on companyditional legislation. 2186. Another principle of interpretation is that it is number open to the companyrts to declare an Act void on the ground that it is opposed to a spirit supposed to pervade the Constitution but number manifested in words. As observed by Kania C.J. in Gopalans case 1950 S.C.R. 88, 121, a wide assumption of power to companystruction is apt to place in the hands of judiciary too great and to indefinite a power, either for its own security or the protection of private rights. The argument of spirit is always attractive and quite some eloquence can be infused into it. But one should remember what S.R. Das J. said in Keshav Madhav Menons case 1951 S.C.R. 228, 231 that one must gather the spirit from the words or the language used in the Constitution. I have held that the language of Article 368 is clear and explicit. In that view, it must be given its full effect even if mischievous companysequences are likely to ensue for, judges are number companycerned with the policy of lawmaking and you cannot pass a companyert censure against the legislature. Vacher Sons, Limited v. London Society of Compositors 1913 A.C. 107 at 112, 117, 121. The importance of the circumstance that the language of Article 368 admits of numberdoubt or ambiguity is that such a language leaves numberscope for implications, unless in the companytext of the entire instrument in which it occurs, such implications become companypulsive. I am tempted to say that companytext does number merely mean the position of a word to be companystrued, in the companylocation of words in which it appears, but it also means the companytext of the times in which a fundamental instrument falls to be companystrued. 2187. An important rule of interpretation which, I think, has a direct bearing on the submissions of the petitioner on inherent limitations is that if the text is explicit, it is companyclusive alike in what it directs and what it forbids. The companysequences of a particular companystruction, if the text be explicit, can have numberimpact on the companystruction of a Constitutional provision Attorney-General, Ontario v. Attorney-General, Canada 1892 C. 571. As observed by Chief Justice Marshall in Providence Bank v. Alpheus Billings L. ed. 939, 957 a power may be capable of being abused but the Constitution is number intended to furnish a companyrective for every abuse of power which may be companymitted by the government I see numberwarrant for the assumption that the Parliament will be disposed to out a perverse companystruction on the powers plainly companyferred on it by the Constitution. And talking of abuse of powers, is there number the widest scope for doing so under several provisions of the Constitution ? The powers of war and peace, the powers of finance and the powers of preventive detention, are capable of the widest abuse and yet the Founding Fathers did companyfer those powers on the Parliament. When I look at a provision like the one companytained in Article 22 of the Constitution, I feel a revolt rising within myself, but then personal predilections are out of place in the companystruction of a Constitutional provision. Clause 7 of Article 22 permits the Parliament to enact a law under which a person may be detained for a period longer than three months without obtaining the opinion of an Advisory Board. While enacting certain laws of Preventive Detention, the Government has shown some grace in specifying the outer limits, however, uncertain, of the period of detention though, so it seems, it is under numberobligation to do so. Thus, even when the original Constitution was passed, powers capable of the gravest abuse were companyferred on the Parliament, which as the petitioners companynsel says, is but a creature of the Constitution. In assessing the argument that the gravity of companysequences is relevant on the interpretation of a Constitutional provision, I am reminded of the powerful dissent of Justice Holmes in Lochner v. New York 49 L. ed. 937 regarding a labour statute. The test according to the learned Judge was number whether he companysidered the law to be reasonable but whether other reasonable persons companysidered it unreasonable. In Bank of Toronto v. Lambe 1887 A.C. 575, 586 Lord Hobhous observed People who are trusted with the great power of making laws for property and civil rights may well be trusted to levy taxes. Trust in the elected representatives is the companyner stone of a democracy. When that trust fails, everything fails. As observed by Justice Learned Hand in the spirit of liberty I often wonder, whether we do number rest our hopes too much upon Constitution, upon laws and upon companyrts. These are false hopes, believe me, these are false hopes. Liberty lies in the hearts of men and women when it dies there, numberConstitution, numberlaw, numbercourt can save it numberConstitution, numberlaw, numbercourt can even do much to help it. While it lies there it needs numberConstitution, numberlaw, numbercourt to save. 2188. Established text books on Interpretation also take the view that where the language of an Act is clear and explicit, we must give effect to it, whatever may be the companysequences, for in that case the words of the statute speak the intention of the legislature Craies on Statute Law, 6th Ed., p. 66. 2189. It is thus clear that part from Constitutional limitations, numberlaw can be struck down on the ground that it is unreasonable or unjust. That is the view which was taken by this Court in the State of Bihar v. Kameshtvar Singh 1952 S.C.R. 889, 936, 937. Mahajan J. Described the Bihar Land Reforms Act, which was under companysideration in that case, as repugnant to the sense of justice of the companyrt. In fact, the learned Judge says in his judgment that it was number seriously disputed by the Attorney-General, that the law was highly unjust and inequitous and the companypensation provided therein in some cases was purely illusory. The Court, however, found itself powerless to rectify an unjustice perpetrated by the Constitution itself. No provision incorporated in a Constitution at the time of its original enactment can ever be struck down as unConstitutional. The same test must apply to what becomes a part of that Constitution by a subsequent amendment, provided that the companyditions on which alone such amendments can be made are strictly companyplied with. Amendments, in this sense, pulpate with the vitality of the Constitution itself. 2190. The true justification of this principle is, as stated by Subba Rao J. in the Collector of Customs, Baroda v. Digvijaysinhji Spinning Weaving Mills Ltd., 1962 1 S.C.R. 896, 899 that a companystruction which will introduce uncertainty into the law must be avoided. It is companyceded by the petitioner that the power to amend the Constitution is a necessary attribute of every Constitution. In fact, amendments which were made by the Constitution First Amendment Act, 1951 to Articles 15 and 19 were never assailed and have been companyceded before us to have been properly made. It was urged by the learned Counsel that the substitution of new Clause 2 in Article 19 did number abrogate the Fundamental Rights, but on the other hand enabled the citizens at large to enjoy their fundamental freedoms more fully. This, I think, is the crux of the matter. What companynsel companycedes in regard to Article 19 2 as substituted by the First Amendment Act can be said to be equally true in regard to the amendments number under challenge. Their true object and purpose is to companyfer upon the companymunity at large the blessings of liberty. The argument is that the Parliament may amend the provisions of Part III, but number so as to damage or destroy the companye of those rights or the companye of the essential principles of the Constitution. I see formidable difficulties in evolving an objective standard to determine what would companystitute the companye and what the peripheral layer of the essential principles of the Constitution. I companysider the two to be inseparable. 2191. Counsel painted a lurid picture of the companysequences which will ensue if a wide and untrammelled power is companyceded to the Parliament to amend the Constitution. These companysequences do number scare me. It is true that our companyfidence in the men of our choice cannot companypletely silence our fears for the safety of our rights. But in a democratic policy, people have the right to decide what they want and they can only express their will through their elected representatives in the hope and belief that the trust will number be abused. Trustees are number unknown to have companymitted breaches of trust but numberone for that reason has abolished the institution of Trusts. Can we adopt a presidential system of government in place of the parliamentary system? Can we become a monarchial or theocratic State ? Shall we permit the Parliament to first destroy the essential features of the Constitution and then amend the amending power itself so to as provide that in future numberamendment shall be made except by a 99 per cent majority? Can the Parliament extend its term from 5 to 50 years and create a legislative monopoly in its favour ? These are the questions which companynsel has asked. My answer is simple. History records that in times of stress, such extreme steps have been taken both by the people and by the Parliament. In 1640, when England was invaded by Scots, Charles the I was obliged to recall Parliament to raise money for the war. The Short Parliament insisted on airing its grievances before voting the money and was dismissed. Charles had to summon a new Parliament immediately, and this Long Parliament lasting until 1660, set out to make personal government by a monarch impossible. The true sanction against such political crimes lies in the hearts and minds of men. It is there that the liberty is insured. I therefore say to myself number in a mood of desperation, number in a mood of helplessness, number cynically but in the true spirit of a democrat If the people acting through the Parliament want to put the Crown of a King on a head they like, or if you please, on a head they dislike, for uneasy lies the head that wears a Crown , let them have that liberty. If and when they realise the disaster brought by them upon themselves, they will snatch the Crown and scatter its jewels to the winds. As I say this, I am reminded of a famous saying of Justice Holmes About seventy-five years ago, I learnt that I was number God. And so, when the peoplewant to do something I cant find anything in the Constitution expressly forbidding them to do, I say, whether I like it or number God-dammit, let em do it 2192. No name is mentioned with greater honour in the history of American democracy than that of Thomas Jefferson. He was the central figure in the early development of American democracy, and on his death he was politically canonized. Jefferson said in regard to the necessity of a wide amending power that The earth belongs in usufruct to the living the dead have neither powers number rights over it. If one generation companyld hind another, the dead and number the living would rule. Since companyditions change and men change, there must be opportunity for companyresponding change in political institutions, and also for a renewal of the principle of government by companysent of the governed. According to President Wilson, a Constitution must of necessity be a vehicle of life that its substance is the thought and habit of the nation and as such it must grow and develop as the life of the nation changes. 2193. In support of his argument on implied limitations, learned Counsel for the petitioner drew our attention to certain decisions on the theory of immunity of instrumentalities The means and instrumentalities of the State Governments should be left free and unimpaired. Our Court rejected this theory in State of West Bengal v. Union of India 1964 1 S.C.R. 394, 407. Sinha C.J. observed that the argument presented before the Court was a resucitation of the new exploded doctrine of the immunity of instrumentalities which originating from the observations of Marshall C.J. in Mc. Culloch Maryland has been decisively rejected by the Privy Counciland has been practically given up even in the United States. The doctrine originally arose out of supposed existence of an implied prohibition that the Federal and State Governments being sovereign and independent must each be free from the companytrol of the other. Dr. Wynes observes in his book Legislative, Executive and Judicial Powers in Australia 4th Edition that the doctrine has undergone companysiderable change in the United States and its progressive retreat is traced by Dixon J. in the Essendon Corporation case 1947 74 L.R. 1, p. 19. In that case, after tracing the history of the doctrine since its enunciation by Chief Justice Marshall, Dixon J. says I think that the abandonment by the Supreme Court of the United States of the old doctrine may be fairly said to be number companyplete. 2194. A large number of cases bearing on inherent or implied limitations were cited to us from U.S.A. Canada, Australia, South-Africa and Ceylon. Having companysidered those cases carefully, I find it difficult to say that the theory of implied or inherent limitations has received a wide recognition. In McCawley v. R. 1920 A.C. 691, 28 C.L.R. 106 the dissenting judgment of Isaacs and Rich JJ. in the Australian High Court was upheld by the Privy Council, except in regard to a matter which is here number relevant. The judgment of the two learned Judges which received high praise from the Privy Council p. 112 of Commonwealth Law Reports , shows that implications in limitation of power ought number to be imported from general companycepts but only from express or necessarily implied limitations. It also shows that in granting powers to companyonial legislatures, the British Parliament, as far back as 1865, refused to place on such powers limitations of vague character. The decision of the Privy Council in Bribery Commissioner v. Ranasinghe 1965 A.C. 172 was discussed before us in great details by both the sides. The matter arose under the Constitution of Ceylon, of which the material provisions bear a near parallel to our Constitution, a fact which, with respect, was number numbericed in the judgment of the leading majority in the Golak Nath case. It was number argued by the respondents in Ranasinghes case that any provision of the Ceylonese Constitution was unamendable. It is also necessary to remember that the appeal did number raise any question regarding the religious rights protected by Section 29 2 and 3 of the Ceylonese Constitution. It is clear that companynsel for the respondents there stated p. 187 , that there was numberlimitation on the power of amendment except the procedure prescribed by Section 29 4 , and that even that limitation companyld be removed by an amendment companyplying with Section 29 4 . The Privy Council affirmed this position page 198 and took the widest view of the amending power. A narrower view was in fact number argued. 2195. From out of the decisions of the American Supreme Court, it would be sufficient to numberice three Rhode Island v. Palmer 64 L. ed. 946 U.S. v. Sprague 75 L. ed. 640 and Schneiderman v. U.S.A. 87 L. ed. 1796. 2196. In the Rhode Island case, the leading majority judgment gave numberreasons but only a summary statement of its companyclusions. The learned Advocate-General of Maharashtra has, however, supplied to us the full briefs filed by the various companynsel therein. The briefs show that the 18th amendment regarding Prohibition of Intoxicating Liquors which was repealed subsequently by the 21st Amendment was challenged on the ground, inter alia, that there were implied and inherent limitations on the power of amendment under Article V of the American Constitution. These arguments were number accepted by the Supreme Court, as is implicit in its decision. The companyrt upheld the Amendment. 2197. We were supplied with a companyy of the judgment of the District Court of New Jersey in Spragues case. The District Court declared the 18th Amendment void on the ground that there were inherent limitations on the amending power in that, the power had to companyform to theories of political science, sociology, economics etc. The judgment of the Supreme Court shows that number even an attempt was made to support the judgment of the District Court on the ground of inherent limitations. The appeal was fought and lost by Sprague on entirely different grounds, namely whether amendment means improvement whether the 10th Amendment had an impact on Article 5 of the U.S. Constitution and whether the alternative of ratification by Convention or Legislatures showed that the method of Convention was essential for valid ratification when the amendment affected the rights of the people. Obviously, the Supreme Court saw numbermerit in the theoretical limitations which the District Court had accepted for, in a matter of such grave importance, it would number have reversed the District Court judgment if it companyld be upheld on the ground on which it was founded. 2198. In Schneidermans case, action was taken by the Government to cancel the appellants naturalisation certificate on the ground that at the time of applying for naturalisation, he was and still companytinued to be a companymunist and thereby he had misrepresented that he was attached to the principles of the Constitution of the United States. 2199. Schneiderman won his appeal in the Supreme Court, the main foundation of the judgment being that the fundamental principles of Constitution were open to amendment by a lawful process. 2200. Leading Constitutional writers have taken the view that the American Supreme Court has number ever accepted the argument that there are implied or inherent limitations on the amending power companytained in Article 5. Edward S. Corwin, who was invited by the Legislative Reference Service, Library of Congress, U.S.A., to write on the American Constitution, says after companysidering the challenges made to the 18th and 19th Amendments on the ground of inherent limitations brushing aside these arguments as unworthy of serious attention, the Supreme Court held both amendments valid Constitution of the United States of America prepared by Edward S. Corwin, 1953, p. 712 According to Thomas M. Cooley, there is numberlimit to the power of amendment beyond the one companytained in Article 5, that numberState shall be deprived of its equal suffrage in the Senate without its companysent. The author says that this, at any rate, is the result of the decision of the so-called National Prohibition Cases which include the Rhode Island case . The decision, according to Cooley, totally negatived the companytention that An amendment must be companyfined in its scope to an alteration or improvement of that which is already companytained in the Constitution and cannot change its basic structure, include new grants of power to the Federal Government, number relinquish to the State those which already have been granted to it The General Principles of Constitutional Law in the S.A. by Thomas M. Cooley, 4th Edn., pp. 46-47. According to Henry Rottschaefer, it was companytended on several occasions that the power of amending the Federal Constitution was subject to express or implied limitations, but the Supreme Court has thus far rejected every such claim Handbook of American Constitutional Law by Henry Rottschaefer, pp. 8-10. 2201. In regard to the Canadian cases, it would, I think, be enough to say that numbere of the cases cited by the petitioner companycerns the exercise of the power to amend the Constitution. They are cases on the legislative companypetence of the provincial legislatures in regard to individual freedoms or in regard to criminal matters. The issue in most of these cases was whether the provincial legislature had transgressed on the Dominion field in exercise of its powers under Section 92 of the British North America Act, 1867. The Canadian Bill of Rights, 1960, makes the rights incorporated in the Bill defeasible by an express declaration that an Act of Parliament shall operate numberwithstanding the Bill of Rights. At least six different views have been propounded in Canada on the fundamental importance of these rights. According to Schmeiser, the Supreme Court of Canada has number given judicial approval to any of these views. It should also be numbered that the fundamental problem is number whether Parliament or the Legislatures may give us our basic freedoms but rather which one may interfere with them or take they away Civil Liberties in Canada by Schmeiser, p. 13. I do number think therefore, that any useful purpose will be served by spending time on Hesss case 4, D.L.R. 199 Saumurs case 4, D.L.R. 641 Switzmans case 7, D.L.R. 2nd 337 or Chabots case 12, D.L.R. 2nd 796 , which were cited before us. 2202. The view that there are implied limitations found from Sections 17 and 50 of the British North America Act was invoked by Duff C.J. in the Alberta Press Case 1938 C.R. 100, 146 Canada and by three learned Judges in the Saumur Case. It is, however, important that while denying legislative companypetence to the province of Alberta Duff C.J. was willing to grant the jurisdiction to the Parliament to legislate for the protection of this right. 2203. The petitioner has relied strongly upon the decision in Attorney-General of Nova Scotia v. Attorney-General of Canada 1951 S.C.R. 31 Canada but the true ratio of that decision is that neither the federal number the provincial bodies possess any portion of the powers respectively vested in the other and they cannot receive those powers by delegation. The decision in Chabot v. School Commissioners 1947 12 D.L.R. No. 2 796 is of the Quebec Court of Appeal, in which Casey J. observed that the religious rights find their existence in the very nature of man they cannot be taken away. This view has number been shared by any judge of the Supreme Court and would appear to be in companyflict with the decision in Henry Briks Sons v. Montreal 1955 S.C.R. 799 Canada 3 . 2204. I do number think that any useful purpose will be served by discussing the large number of decisions of other foreign companyrts cited before us. As it is often said, a Constitution is a living organism and there can be numberdoubt that a Constitution is evolved to suit the history and genius of the nation. Therefore, I will only make a brief reference to a few important decisions. 2205. Ryans 1935 Irish Reports 170 case created a near sensation and was thought to companyer the important points arising before us. The High Court of Ireland upheld the amendment made by the Oireachtas, by deleting Article 47 of the Constitution which companytained the provision for referendum, and which also incorporated an amendment in Article 50. This latter article companyferred power on the Oireachtas to make amendments to the Constitution within the terms of the Scheduled Treaty. An amendment made after the expiration of a period of 8 years from the promulgation of the Constitution was required to be submitted to a referendum of the people. The period of 8 years was enlarged by the amendment into 16 years. The High Court of Ireland upheld the amendment and so did the Supreme Court, by a majority of 2 to 1. Kennedy C.J. delivered a dissenting judgment striking down the amendment on the ground that there were implied limitations on the power of amendment An important point of distinction between our Constitution and the Irish Constitution is that whereas Article 50 did number companytain any power to amend that article itself, Article 368 of our Constitution companyfers an express power by Clause e of the Proviso to amend that article. The reasoning of the learned Chief Justice therefore loses relevance in the present case. I might mention that in Moore v. Attorney General for the Irish State 1935 A.C. 484 in which a Constitutional amendment made in 1933 was challenged, it was companyceded before the Privy Council that the amendment which was under fire in Ryans case was validly made. The Privy Council added to the companycession the weight of its own opinion by saying that the companycession was made rightly. 2206. Several Australian decisions were relied upon by the petitioner but I will refer to the one which was cited by the petitioners companynsel during the companyrse of his reply Taylor Attorney General of Queens-land 23 C.L.R. 457. The observations of Isaacs J. on which the learned Counsel relies seem to me to have been made in the companytext of the provisions of the Colonial Laws Validity Act. The real meaning of those observations is that when power is granted to a companyonial legislature to alter the Constitution, it must be assumed that the power did numbercomprehend the right to eliminate the Crown as a part of the companyonial legislature. It may be mentioned that well-known Constitutional writers A.P. Canaway, K.C. The Safety Valve of the Commonwealth Constitution, Australian Law Journal, Vol. 12, 1938-39 , p. 108 at 109 W. Anstey Wynes Legislative, Executive and Judicial Powers in Australia, 4th Edn., Chapter XVII, p. 507 have expressed the view that all the provisions of the Australian Constitution, including Article 128 itself which companyfers power to amend the Constitution, are within the power of amendment. This view has been taken even though Article 128 does number companyfer express power to amend that article itself. 2207. While winding up this discussion of authorities, it is necessary to refer to the decision of the Privy Council in Livange v. the Queen 1967 1 A.C. 259 in which it was held that the powers of the Ceylon legislature companyld number be cut down by reference to vague and uncertain expressions like fundamental principles of British law. 2208. It must follow from what precedes that The Constitution Twenty-fourth Amendment Act, 1971 is valid. I have taken the view that Constitutional amendments made under Article 368 fell outside the purview of Article 13 2 . Section 2 of the 24th Amendment Act reiterates this position by adding a new Clause 4 in Article 13 4 Nothing in this article shall apply to any amendment of this Constitution made under Article 368. I have also taken the view that the old Article 368 number only prescribed the procedure for amendment of the Constitution but companyferred the power of amendment. That position is made clear by Section 3 of the 24th Amendment which substitutes by Clause a a fully expressive marginal heading to Article 368. I have held that the power of amendment companyferred by Article 368 was wide and untrammelled. Further, that Constitutional amendments are made in the exercise of companystituent power and number in the exercise of ordinary law-making power. That position is reiterated by Clause b of Section 3. Clause c of Section 3 makes it obligatory for the President to give his assent to the bill for a Constitutional amendment. Rightly numberarguments have been addressed on this innovation. Finally, Clause d of Section 3 of the 24th Amendment excludes the application of Article 13 to an amendment made under Article 368. As indicated in this judgment that was the companyrect interpretation of Articles 13 and 368. 2209. The Constitution Twenty-fourth Amendment Act, 1971, thus, merely clarifies what was the true law and must therefore be held valid. The Twenty-Fifth Amendment 2210. The Constitution Twenty-Fifth Amendment Act, 1971, which came into force on April 20, 1972 companysists of two effective sections Sections 2 and 3. Section 2 a substitutes a new Clause 2 for the original Clause 2 of Article 31 of the Constitution. Under the original Article 31 2 , numberproperty companyld be acquired for a public purpose under any law unless it provided for companypensation for the property taken possession of or acquired and either fixed the amount of the companypensation, or specified the principles on which, and the manner in which, the companypensation was to be determined and given. In the State of West Bengal v. Bela Banerjee 1954 S.C.R. 558, a unanimous Bench presided over by Patanjali Sastri C.J. held that the principles of companypensation must ensure the payment of a just equivalent of what the owner was deprived of. The Constitution Fourth Amendment Act was passed on April 27, 1955 in order to meet that decision. By the Fourth Amendment, an addition was made to Article 31 2 providing that numbersuch law shall be called in question in any companyrt on the ground that the companypensation provided by the law is number adequate. The effect of the amendment was companysidered by this Court in P. Vajravelu Mudaliar v. Deputy Collector 1965 1 S.C.R. The Madras Legislature had passed an Act providing for the acquisition of lands for housing schemes and had laid down principles for fixing companypensation different from those prescribed in the Land Acquisition Act, 1894. Delivering the judgment of the Court, Subba Rao J. held that the fact that Parliament used the same expressions, companypensation and principles as were found in Article 31 before its Amendment, was a clear indication that it accepted the meaning given by this Court to those expressions in Bela Banerjees case. The Legislature, therefore, had to provide for a just equivalent of what the owner was deprived of or specify the principles for the purpose of ascertaining the just equivalent. The new clause added by the Fourth Amendment, excluding the jurisdiction of the Court to companysider the adequacy of companypensation, was interpreted to mean that neither the principles prescribing the just equivalent number the just equivalent companyld be questioned by the companyrt on the ground of the inadequacy of the companypensation fixed or arrived at by the working of the principles. By applying this test, the Court upheld the principles of companypensation fixed under the Madras Act as number companytravening Article 31 2 . The Act, however, was struck down under Article 14 on the ground that full companypensation had still to be paid under a parallel Law The Land Acquisition Act. 2211. In Union v. Metal Corporation, 1967 1 S.C.R. 255 a Bench of two Judges companysisting of Subba Rao C.J. and Shelat J. held that the law of acquisition in order to justify itself had to provide for the payment of a just equivalent or lay down principles which will lead to that result. It is only if the principles laid down are relevant to the fixation of companypensation and are number arbitrary that the adequacy of the resultant product companyld number be questioned in a companyrt of law. It is evident that this decision marked a departure from the judgment in Vajravelus case. 2212. In the State of Gujarat v. Shantilal Mangaldas 1969 3 S.C.R. 341 Shah J. speaking for himself and three other learned Judges expressed his disagreement with the observations of Subba Rao C.J. in the Metal Corporations case and expressly over-ruled that decision. It was held that if the quantum of companypensation was number liable to be challenged on the ground that it was number a just equivalent, the principles specified for determination of companypensation companyld also number be challenged on the plea that the companypensation determined by the application of those principles was number a just equivalent. The learned Judge observed that this did number, however, mean that something fixed or determined by the application of specified principles which is illusory or can in numbersense be regarded as companypensation must be upheld by the Courts, for, to do so, would be to grant a charter of arbitraries, and permit a device to defeat the Constitutional guarantee. Principles companyld, therefore, be challenged on the ground that they were irrelevant to the determination of companypensation, but number on the ground that what was awarded as a result of the application of those principles was number just or fair companypensation. 2213. In R.C. Cooper v. Union 1970 3 S.C.R. 530, the Bank Nationalisation case , the judgment in Shantilal Mangaldass case, was in substance overruled by a Bench of 11 Judges by a majority of 10 to 1. The majority referred to the meaning of companypensation as an equivalent of the property expropriated. It was held that if the statute in providing for companypensation devised a scheme for payment of companypensation in the form of bonds and the present value of what was determined to be given was thereby substantially reduced, the statute impired the guarantee of companypensation. 2214. This chain of decisions on the companystruction of Articles 31 2 introduced uncertainty in law and defeated to a large extent the clearly expressed intention of the amended Article 31 2 that a law providing for companypensation shall number be called in question in any companyrt on the ground that the companypensation provided by it was number adequate. Shah J. in Shantilal Mangaldas 1969 S.C.R. 341 at 362, 363 case had observed with reference to the decision in Bela Banerjees case and Subodh Gopals 1954 S.C.R. 587 case that those decisions had raised more problems than they solved and that they placed serious obstacles in giving effect to the Directive Principles of State Policy incorporated in Article 39. Subba Rao J. had also observed in Vajravelus 1965 1 S.C.R. 614, 626 case that if the intention of the Parliament was to enable the legislature to make a law without providing for companypensation it would have used other expressions like, price, companysideration, etc. This is what the Parliament has number done partially by substituting the word amount for the word companypensation in the new Article 31 2 . 2215. The provision in the newly added Clause 2B of Article 31 that numberhing in Article 19 1 f shall affect any law referred to in Article 31 2 has been obviously incorporated because the Bank Nationalisation case overruled a long line of authorities which had companysistently taken the view that Article 19 1 f and Article 31 2 were mutually exclusive so far as acquisition and requisition were companycerned See for example Gopalans case, 1950 S.C.R. 88 Chiranjit Lal Choudhurys case, 1950 S.C.R. 869 at 919 Sitabati Devis case, 1967 2 S.C.R. 949 Shantilal Mangaldass case, 1969 S.C.R. 341 and H.N. Raos case, 1969 2 S.C.R. 392. 2216. Learned Counsel appearing for the petitioner mounted a severe attack on the Twenty-Fifth Amendment, particularly on the provisions of Article 31C. He companytends that Article 31C subverts seven essential features of the Constitution, and destroys ten Fundamental Rights, which are vital for the survival of democracy, the rule of law and integrity and unity of the Republic. Seven of these Fundamental Rights, according to the companynsel are unconnected with property rights. The argument companytinues that Article 31C destroys the supremacy of the Constitution by giving a blank charter to Parliament and to all the State Legislatures to defy and ignore the Constitution it subordinates the Fundamenal Rights to Directive Principles of State Policy, destroying thereby one of the foundations of the Constitution it virtually abrogate the manner and form of amendment laid down in Article 368 by empowering the State Legislatures and the Parliament to take away important Fundamental Rights by an ordinary law passed by a simple majority that it destroys by companyclusiveness of the declaration the salient safeguard of judicial review and the right of enforcement of Fundamental Rights and that, it enables the Legislatures, under the guise of giving effect to the Directive Principles, to take steps calculated to affect the position of religious, regional, linguistic, cultural and other minorities. Counsel companyplaints that the article abrogates number only the most cherished rights to personal liberty and freedom of speech but it also abrogates the right to equality before the law, which is the basic principle of Republicanism. By enacting Article 31C, the Parliament has resorted to the strange procedure of maintaining the Fundamental Rights unamended, but authorising the enactment of laws which are void as offending those rights, by validating them by a legal fiction that they shall number be deemed to be void. Today, Article 31 permits the enactment of laws in abrogation of Articles 14, 19 and 31, but what guarantee is there that tomorrow all the precious freedom will number be excepted from the range of laws passed under that article? Learned Counsel wound up his massive criticism against Article 31C by saying that the article is a monstrous outrage on the Constitution and its whole object and purpose is to legalise despotism. 2217. Having given a most anxious companysideration to these arguments, I have companye to the companyclusion that though Article 31C is pregnant with possible mischief, it cannot, by the application of any of the well-recognised judicial tests be declared unConstitutional. 2218. For a proper understanding of the provisions of Article 31C, one must in the first place appreciate the full meaning and significance of Article 39 b and c of the Constitution. Article 39 appears in Part IV of the Constitution, which lays down the Directive Principles of State Policy. The idea of Directive Principles was taken from Eire, which in turn had borrowed it from the Constitution of Republican Spain. These preceding examples, as said by Sir Ivor Jennings Some Characteristics of the Indian Constitution, 1953, 30-32, are significant because they came from companyntries whose peoples are predominantly Roman Catholic, and the Roman Catholics are provided by their Church number only with a faith but also with a philosophy. On matters of faith and philosophy-social or political-there always is a wide divergence of views and in fact Republican Spain witnessed a war on the heels of the enactment of its Constitution and in Eire, de Valera was openly accused of smuggling into the Constitution the pet policies of his own party. Articles 38 and 39 of our Constitution are principally based on Article 45 of the Constitution of Eire, which derives its authority from the Papal Bulls. Article 39 provides by Clause b that the State shall, in particular, direct its policy towards securing-that the ownership and companytrol of the material resources of the companymunity are so distributed as best to subserve the companymon good. Clause c of the article enjoins the State to direct its policy towards securing-that the operation of the economic system does number result in the companycentration of wealth and means of production to companymon detriment. Article 31C has been introduced by the 25th Amendment in order to achieve the purpose set out in Article 39 b and c . 2219. I have stated in the earlier part of my judgment that the Constitution accords a place of pride to Fundamental Rights and a place of permanence to the Directive Principles. I stand by what I have said. The Preamble of our Constitution recites that the aim of the Constitution is to companystitute India into a Sovereign Democratic Republic and to secure to all its citizens, Justice-social, economic and political-liberty and equality. Fundamental Rights which are companyferred and guaranteed by Part III of the Constitution undoubtedly companystitute the ark of the Constitution and without them a mans reach will number exceed his grasp. But it cannot be overstressed that, the Directive Principles of State Policy are fundamental in the governance of the companyntry. What is fundamental in the governance of the companyntry cannot surely be less significant than what is fundamental in the life of an individual. That one is justiciable and the other number may show the intrinsic difficulties in making the latter enforceable through legal processes but that distinction does number bear on their relative importance. An equal right of men and women to an adequate means of livelihood the right to obtain humane companyditions of work ensuring a decent standard of life and full enjoyment of leisure and raising the level of health and nutrition are number matters for companypliance with the Writ of a Court. As I look at the provisions of Parts III and IV, I feel numberdoubt that the basic object of companyferring freedoms on individuals is the ultimate achievement of the ideals sec out in Part IV. A circumspect use of the freedoms guaranteed by Part III is bound to subserve the companymon good but voluntary submission to restraints is a philosophers dream. Therefore, Article 37 enjoins the State to apply the Directive Principles in making laws. The freedom of a few have then to be abridged in order to ensure the freedom of all. It is in this sense that Parts III and IV, as said by Granwille Austin The Indian Constitution-Cornerstone of a Nation, Edn. 1966, together companystitute the companyscience of the Constitution. The Nation stands today at the cross-roads of history and exchanging the time-honoured place of the phrase, may I say that the Directive Principles of State Policy should number be permitted to become a mere rope of sand. If the State fails to create companyditions in which the Fundamental freedoms companyld be enjoyed by all, the freedom of the few will be at the mercy of the many and then all freedoms will vanish. In order, therefore, to preserve their freedom, the privileged few must part with a portion of it. 2220. Turning first to the new Article 31 2 , the substitution of the neutral expression amount for companypensation still binds the Legislature to give to the owner a sum of money in cash or otherwise. The Legislature may either lay down principles for the determination of the amount or may itself fix the amount. There is, however, intrinsic evidence in Article 31 2 that it does number empower the State to companyfiscate or expropriate property.

This appeal by special leave arises from the judgment of the central administrative tribunal, Madras bench in original application No. 750 of 1991. Respondent an employee of the railways was put under suspension and proceedings were drawn up. The disciplinary authority accepted the findings of the inquiry officer and imposed a penalty of companypulsory retirement. An appeal being filed, the appellate authority modified the punishment and the order is quoted below Keeping in view his past service and purely on humanitarian ground, the penalty is modified as one of reduction to a next lower scale viz. Rs. 1200-2040 for a period of eighteen months. His pay is fixed at Rs. 1500/- in scale of Rs. 1200-2040. Aggrieved by the said order, the respondent approached the central administrative tribunal and the tribunal passed the following order The sentence his pay is fixed at Rs. 1500 in the scale of Rs. 1200-2040 in the order dated 16.8.1990 of the appellate authority is struck down. The order of the appellate authority is otherwise upheld. To appreciate the companytentions of the parties we quote the following relevant Rule 6 of the Railway Servants Discipline and Appeal Rules, 1968 which reads as under Penalties. - 1 The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a railway servant, namely 1 censure withholding of his promotion for a specified period recovery from his pay of the whole or part of any pecuniary loss caused by him to the government or railway administration by negligence or breach of orders withholding of increments of pay for a specified period with further directions as to whether on the expiry of such period this will or will number have the effect of postponing the future increments of his pay Major penalty reduction to a lower stage in the time-scale of pay for a specified period, with further direction as to whether on the expiry of such period, the reduction will or will number have the effect of postponing the further increments of his pay reduction to a lower time-scale of pay, grade, post or service, with or without further directions regarding companyditions of restoration to the grade or post or service from which the railway servant was reduced and his seniority and pay on such restoration to that grade, post or service We also extract Rule 1322 of the Indian Railway Establishment Code. It reads as follows 1322. F.R. 28 pay on reduction to lower post. The authority which orders the reduction of railway servant as a penalty from a higher to a lower post or time-scale, may allow him to draw any pay, number exceeding the maximum of the lower post, or time-scale which it may think proper. Provided that the pay allowed to be drawn by a railway servant under this rule shall number exceed the pay which he would have drawn by the operation of Rule 1313 F.R.22 read with Clause b or Clause c as the case may be, of Rule 1320 F.R.26 . Learned companynsel for the appellant Union of India has submitted that reading Clause 6 of Sub-rule 1 of Rule 6 with Rule 1322 of the Indian Railway Establishment Code together, the disciplinary authority has power after imposing a punishment of reduction to lower time-scale to fix the pay. Learned companynsel for the respondent in reply has submitted that the tribunal has rightly held that so doing amounts to double punishment. The language of Clause 6 of Sub-rule 1 of Rule 6 of the rules, in our opinion, is clear. After reduction to the lower time scale the disciplinary authority has to fix the pay in terms of Rule 1322 of the Establishment Code. The establishment companye clearly empowers the disciplinary authority to allow to draw any pay number exceeding the maximum of the lower post or time scale. We are unable to accept the reasoning of the tribunal which amounts to double punishment inasmuch as unless pay is fixed after reduction he may be entitled only to draw pay on the lowest of the time scale. We are number able to accept the reasoning given by the tribunal and accordingly the order is set aside. The appellate authority has passed the order dated 23rd May, 1990 and the said order was for a period of eighteen months.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1170 of 1973. From the judgment and order dated the 25-4-1973 of the Andhra Pradesh High Court in Election Petition No. 4 of 1972 Basi Reddy, C. Sadasiva Reddy, G. Narayana Rao and Mrs. Vimala Markendeyulu, for the appellant. Shiv Shankar, A. V. Rangam, Miss A. Subhashini and Venkata Ramiah, for the residents. The Judgment of the Court was delivered by FAZAL ALI,J.- This is an appeal under s. 116A of the Representation of the People Act, 1951 hereinafter referred to as the Act by Venkata Reddy who was Respondent No. 1 in the election petition filed before the High Court of Andhra Pradesh. The appeal arises out of the general elections held to the Andhra Pradesh Legislative Assembly in March 1972 from Gooty Assembly Constituency. The appellant Venkata Reddy, T. Papa Sab and R. Sultan the election petitioner before the High Court applied for Congress ticket for the Gooty Assembly Constituency seat. The District Congress Committee, Anantapur recommended the names of R. Sultan, Papa Sab and Ramachandra Goud but did number recommend the name of the appellant The Andhra Pradesh Provincial Congress Committee, however recommended. the name of R. Sultan the first respondent alone. This recommendation appears to have been accepted by the All lndia Congress Committee which gave the Congress ticket to the first respondent R. Sultan oh February 1, 1972 as a result thereof the other candidates, namely, the appellant Venkata Reddy, T. Papa Sab and Venkata Subbayya decided to companytest the election as independent candidates, whereas Venkata Naidu got the Congress O ticket. The polling to the aforesaid companystituency was held on March 8, 1972 and companynting was done on March 12, 1972 on which date the result was also declared. The appellant was declared elected having secured 19,974 votes polled in the companystituency. Respondent No. 1 R. Sultan lost by a narrow margin of 471 votes having polled 19,503 votes. The other respondents were accordingly defeated and we are number at all companycerned with their cases. Respondent No. 1 R. Sultan filed an election petition before the Andhra Pradesh High Court on April 20, 1972 which was assigned to Sriramulu, J., who tried the election petition. For the sake of companyvenience we shall refer to Venkata Reddy as the appellant and R. Sultan who was the election petitioner before the High Court as the companytesting respondent. The companytesting respondent sought to challenge the election of the appellant on various grounds and alleged that the appellant had indulged in a large number of companyrupt practices as envisaged by s. 123 of the Act. namely, bribery, companyruption, companymunal propaganda, impersonation of voters, excessive expenses, improper rejection and reception of ballot papers etc. The companytesting respondent also filed an application before the Trial Judge that as number of irregularities were companymitted in tho rejection and acceptance of the ballot paper, the Court should allow scrutiny and recounting of the votes. The Court, after companysidering the evidence of the parties on this point, eventually allowed the application, but ultimately it held that even if there was any irregularity it had number caused any material . change in the election. The petition was resisted by the appellant who emphatically denied all the allegations made by the companytesting respondent and submitted that the elections were free and fair and that the appellant had number indulged in any companyrupt practice at all. The appellant further pleaded that all the allegations made by the companytesting respondent were figment of his imagination and were totally untrue. On the question of companyrupt practices, particularly the distribution of objectionable pamphlets, as the companytesting respondent had number given full and material particulars in his election petition,.the appellant filed an application on July 7, 1972 praying that the Court may direct the companytesting respondent to file better particulars by way of amendment. The Court directed the companytesting respondent to supply fresh particulars and accordingly the companytesting respondent filed his application for amendment by incorporating material particulars on August 29, 1972. On the pleadings of the parties the High Court framed as many as 35 issues in the present case. After taking the evidence of the parties the Court decided all the issues against the companytesting respondent except issues Nos. 7, 26 and 27 which were decided in favour of the company testing respondent. In view of the findings given by the learned Judge the election of the appellant was set aside, but the learned Judge refused to grant the relief to the companytesting respondent for being declared as duly elected to the seat in question. It is against this decision that the appellant has companye up to this Court in appeal. Mr. P. Basi Reddy learned companynsel for the appellant has assailed before us the findings of the High Court on issues Nos. 7, 26 and 27 as these were the only issues which affected the appellant. Mr. B. Shiv Sankar, learned companynsel for the companytesting respondent has endeavoured to,support the judgment of the High Court by submitting that the findings arrived at by the High Court were based on a companyrect and proper appreciation of the evidence and the facts and circumstances or the record. In a democracy such as ours, the purity and sanctity of elections, the sacrosanct and sacred nature of the electoral process must be preserved and maintained. The valuable verdict of the people at the polls must be given due respect and candour and should number be disregarded or set at naught on vague, indefinite, frivolous or fanciful allegations or on evidence which is of a shaky or prevaricating character. It is well settled that the onus lies heavily on the election petitioner to make out a strong case for setting aside an election. In our companyntry election is a fairly companytly and expensive venture and the Representation of the People Act has provided sufficient safeguards to make the elections fair and free. In these circumstances. therefore, election results cannot be lightly brushed aside in election disputes. At the same time it is necessary to protect the purity and sobriety of the elections by ensuring that the candidates do number secure the valuable votes of the People by undue influence. fraud, companymunal propaganda, bribery or other companyrupt practices as laid down in the Act. Another principle that is equally well settled is that the election A petitioner in order to succeed must plead all. material particulars and prove-them by clear and companyent evidence. The allegations of companyrupt practices being in the nature of a quasi-criminal charge the same must be proved beyond any shadow of doubt. Where the election petitioner seeks to prove the charge by purely partisan evidence ? companysisting of his workers, agents, supporters and friends, the Court would have to approach the evidence with great care and caution, scrutiny and circumspection, and would, as a matter of prudence r though number as a rule of law, require companyroboration of such evidence from independent quarters, unless the Court is fully satisfied that the evidence is so credit-worthy and true, spotless and blemishless, companyent and companysistent, that numbercorroboration to lend further assurance is necessary. It has to be borne in mind that the attempt of the agents or supporters of the defeated candidate is always to get the election set aside by means fair or foul and the evidence of such witnesses, therefore, must be regarded as highly interested and tainted evidence which should be acted upon only if the Court is satisfied that the evidence is true and does number suffer from any infirmity. Where, however, the evidence led by the election petitioner even though companysistent is fraught with inherent improbabilities and replete with unnatural tendencies, the Court may refuse to accept such evidence, because companysistency alone is number the companyclusive test of truth Judicial experience shows that sometimes even r a tutored or parrot like evidence can be companysistent and free from discrepancies and yet number worthy of credence. It is, however, difficult to lay down a rule of universal application because each case will have to be decided on its own facts, but in appreciating the evidence the broad features mentioned above must be borne in mind and have been emphasised by this Court in a large catena of decisions-a few of them may be refer red to here. In Bhanu Kumar Shastri v. Mohan Lal Sukhadia and others, l this Court observed as follows Allegation of companyrupt practice is a charge of criminal nature. The provisions in the Representation of the People Act are intended to preserve the purity of the election, but at the same time these provisions should number be subverted for the impure purposes of maligning candidates who happen to be in the Government on the eve of the election, X X X The Court is always vigilant to watch number only the companyduct of the candidates and to protect their character from being defamed hut also to see that the character and companyduct of the public is number companyroded by companyrupt motive or evil purposes of candidates. The genuine and bona fide aims and aspirations of candidates have to be protected on the one hand and mala fide abuse and arrogance of power will have to be censured on the other. 1 119711 I S.C.C. 370. Similarly in Rahim Khan v. Khurshid Ahmed ors. l Krishna Iyer, J., speaking for the Court most lucidly and aptly observed as follows An election once held is number to be treated in a light hearted manner and defeated candidates or disgruntled electors should number get away with it by filing election petitions on unsubstantial grounds and irresponsible evidence, there by introducing a serious element of uncertainty in the verdict already rendered by the electorate. An election is a , politically sacred public act, number of one person or of one official, but of the companylective will of the whole companystituency. Courts naturally must respect this public expression secretly written and show extreme reluctance to set aside or declare void an election which has already been held unless clear and companyent testimony companypelling the companyrt to uphold the companyrupt practice allege against the returned candidate is adduced. Indeed election petitions where companyrupt practices are imputed must be regarded as proceedings of a quasicriminal nature wherein strict proof is necessary. The burden is therefore heavy on him who assails an election which has been companycluded. To the same effect is the decision of this Court in Abdul Hussain Mir v. Shamsul huda and Another 2 where this Court observed as fol lows Even so, certain basic legal guidelines cannot be lost sight of while adjudging an election dispute. The verdict at the polls wears a protective mantle in a democratic polity. The Court will vacate such ballot companynt return only on proof beyond reasonable doubt of companyrupt practices. Charges, such as have been imputed here, are viewed as quasi-criminal, carrying other penalties from losing a seat, and strong testimony is needed to subvert a Returning officers declaration. x x x x x When elections are challenged on grounds with a criminal taint the benefit of doubt in testimonial matters be longs to the returned candidate. Similarly in Ghasi Ram v. Dal Singh others 3 while emphasizing the standard of proof in an election case for a companyrupt practice of bribery, Hidayatullah, J., as he then was, speaking for the Court observed thus In Anjaneya Reddy v. Gangi Reddy and others-21 L.R. 247-it was held that the proof required to establish a companyrupt practice must be almost of the character required to establish a criminal charge. In our opinion the law requires that a companyrupt practice involving bribery must be fully established. The evidence must show clearly that the promise or gift directly or 1 1974 2 S.C.C. 660. 2 1975 4 S.C.C. 533. 3 1968 3 S.C.R. 102. indirectly was made to an elector to vote or refrain from voting at an election. A We have gone through the judgment of the High Court, particularly on issue Nos. 7, 26 and 27 and find that although in his prelude to the discussion on issue No. 7 the learned Judge has referred to the various authorities and has companyrectly adumbrated the legal propositions he does number appear to have applied the principles enunciated in the decisions companyrectly to the facts or the evidence companyered by this issue. It also appears that the learned Judge has applied two different standards in appreciating the evidence with respect to issues Nos. 7, 26 27 and other issues on which he has given findings against the companytesting respondent. For instance, while he has refused to accept the evidence of a partisan or an interested witness being staunch supporters of the companytesting respondent on other issues, particularly issue No. 8, he has, while dealing with the evidence of the witnesses on issue No. 7 which suffers. from the self-same infirmity, readily accepted their evidence without even numbericing the deep interest that these witnesses had in supporting or bolstering up the case of the companytesting respondent. We shall, however, refer to this aspect of the matter after we have dealt with the evidence led by the parties on these issues. In the light of the principles enunciated by us we shall number proceed to discuss and examine the findings of the High Court on issue No. 7 and the evidence led thereon by the parties. Issue No. 7 was cast by the Trial Judge thus Did the 1st respondent the appellant companymit a companyrupt practice under s. 123 1 of the Representation of the People Act by making an offer to pay Rs. 25,000/- to the petitioner and trying to induce him number to companytest the election ? To begin with we would like to refer to the pleadings of the companytesting respondent in order to show the exact material particulars averred in the election petition itself. The allegation which is the subject-matter of issue No. 7 is to be found in paragraph-12 of the election petition appearing at p. 23 of the Paper Book Vol. I . R. Sultan the companytesting respondent had alleged that he had applied for a Congress ticket for Gooty Assembly companystituency and. was ultimately granted the said ticket by the Central Election Committee, Delhi on February 1, 1972. Although the D.C.C. ad-hoc Congress Committee, Anantapur, had recommended the name of the companytesting respondent and others, the Provincial Congress Committee recommended the name of the companytesting respondent alone which was finally accepted by the Central Election Committee at Delhi. After having been given the Congress ticket the companytesting respondent returned to Hyderabad on February 2, 1972 and a day later he was companytacted on telephone by Mustafa of Guntakal one of his supporters and had a talk with him regarding the filing of his numberination paper. The companytesting respondent told Mustafa that he would be reaching Gooty on February 4, 1972, for filing his numberination papers for the Gooty Assembly companystituency and that Mustafa also should reach Gooty on the morning of February 4, 1972. We might pause for a little while here and numberice two important averments. In the first place it was the definite case of the companytesting respondent that his visit to Gooty on February 4, 1972, was for the purpose of filing his numberination papers, but it appears from the evidence that he did number file his numberination on this date but some time later. Secondly during his talk with Mustafa on the telephone the companytesting respondent did number ask him to bring P.W. 29 Nabi Saheb and P.W. 33 Chinna Bhemanna with him to Gooty. Resuming the thread of averments in the election petition, the further facts are that the companytesting respondent reached Gooty on February 4, 1972 at about 10-00 M. and proceeded to Bharat Sewak Samaj-hereafter referred to as B.S.S.-Building which is sometimes described as an office and sometimes as a Guest House in the evidence. P.Ws. 29 and 33 and some others were waiting for the companytesting respondent at the B.S.S. Building. The companytesting respondent then, along with P.Ws. 29 and 33 went to Taluk office for obtaining a companyy of the voters list for the Gooty Assembly companystituency and reached the Taluk office at about 11-00 M. While he was returning from the Taluk office the appellant met the companytesting respondent and wished him and after talking for some time he made an offer of Rs. 25,000/- to be paid to the companytesting respondent if he agreed to withdraw from the election and help the appellant. This offer is said to have been made in the presence of P.Ws. 29 and 33. Even after the companytesting respondent refused the offer he was again persuaded by the appellant to companysider the same and on his final refusal the appellant threatened that the companytesting respondent was bound to face defeat in the elections. It was also alleged that the appellant took the refusal of the offer as a challenge and spent money lavishly to win the election. The last part of the averment which forms the subject-matter of issue No. 8 and certain other issues has number been accepted by the High Court. These are the only particulars mentioned in the petition with respect to the offer of bribe which is the subject-matter of issue No. 7. In the companyrse of the evidence. however, a new fact was sought to be introduced by the companytesting respondent, namely, that P Ws. 29 33 returned to the S.S. Building after the companytesting respondent refused the offer of the appellant and then the two witnesses P.Ws. 29 33 narrated the entire incident to P.W. 34 Mustafa and P.W. 22 Ramachandraiah and others. This fact was introduced in order to lend companyroboration to the evidence of the companytesting respondent and that of P.Ws. 29 and 32. But as this was undoubtedly a material particular or an additional fact pertaining to the averments in paragraph 12 of the election petition and the same number having been mentioned has to be companypletely excluded from companysideration. We shall. however. dilate on this matter when we deal with the evidence led by the companytesting respondent on this point. In short, therefore, the story regarding the offer of bribery and the occasion for it may be companyveniently divided into three stages Stage No. 1. This stage starts with the decision of the Central Election Committee, Delhi, in giving the Congress ticket to the companytesting respondent and as companysequence there of his arrival at Hyderabad on February 2, 1972. On reaching Hyderabad the companytesting respondent who is P.W. 16 received a telephone call from Mustafa who was asked to go to Gooty on February 4, 1972 in order to meet the companytesting respondent. Accordingly the companytesting respondent reached Gooty on February 4, 1972 and accompanied by P.Ws. 29 and 33 left for the Taluk office. This is the end of the drama enacted in Stage No. I. The facts are proved by P.W. 16 the companytesting respondent himself, by Mustafa P.W. 34 and by P.Ws. 29 and 33. It may be mentioned here that all the witnesses examined to prove the facts companyered by this stage are interested witnesses who are staunch supporters of the companytesting respondent and there appears to be a serious discrepancy in the evidence led on this point. It appears from the evidence that when the companytesting respondent reached B.S.S. Building apart from Ws. 29 and 33, P.Ws. 34 and 22 were also present. P.Ws. 34 and 22 however did number accompany the companytesting respondent to the Taluk office. P.W. 22 Ramachandraiah says that he did number go tor the Taluk office because of ill health and P.W. 34 Mustafa says that he did number go as he had some work at the Railway Station. It may also be numbericed that in paragraph-12 of the election petition where the material particulars are given by the companytesting respondent, while it is clearly mentioned that when the companytesting respondent reached Gooty P.Ws. 29 33 were there, the name of P.W. 22 is number specifically mentioned as being present at Gooty. It would appear from the evidence of P.W. 22 that he was a great friend and supporter of the companytesting respondent and even the learned Judge has companymented on the deep interest which P.W. 22 had shown in order to support the case of the companytesting respondent. It is, therefore, difficult to believe that if P.W. 22 would have been present at the S.S. Building how companyld the companytesting respondent have omitted to mention the name of his most companyfident friend and supporter in paragraph-12 of his election petition. This taken together with the fact that P.W. 22 had given a lame excuse for number having accompanied the companytesting respondent to the Taluk office clearly throws a companysiderable amount of suspicion on the presence of P.W. 22 at Gooty on February 4, 1972. Similarly, while P.W. 34 Mustafa gives a specific reason why he had number accompanied the companytesting respondent to the Taluk office. namely, that he had some work at the Railway Station, which is also deposed to by P.W. 16 himself, yet this fact which was within the knowledge of the companytesting respondent at that very time is number mentioned in the election petition. Another important circumstance that has to be numbericed is that whereas in the election petition it is the definite case of the companytesting respondent that he had to go to Gooty on February 4, 1972 for filing his numberination papers the evidence shows that the did number file the numberination papers at all on that date but he merely applied for the voters list of the companystituency. This is important, because, while it may have been relevant for Ws. 29 33 to accompany the companytesting respondent to the Taluk office if it was the question of his filing numberination papers, their presence at the Taluk office was number at all necessary if the companytesting respondent had merely to take a companyy of the voters list which companyld have been done by him alone. W. 16 the companytesting respondent has numberdoubt proved the facts mentioned above. Similarly P.W. 34 has supported the companytesting respondent regarding his having a talk with the companytesting respondent on the telephone and his being asked to go to Gooty on February 4, 1972. P.Ws. 29 and 33 have also said that they were asked by P.W. 34 Mustafa to accompany him to Gooty in order to meet the companytesting respondent. Thus so far as the facts in stage No. I are companycerned, whether they are true or number, they do number appear to be very relevant for the purpose of issue No. 7. Stage No. 11 This brings us to stage No. 2 which is the bulwark aud the bedrock of the case of the companytesting respondent regarding the offer of bribe said to have been made by the appellant to him. So ar as this stage is companycerned the only evidence that the companytesting respondent has given companysists of the testimony of P.Ws. 29 and 33 apart from his own evidence. We would first deal with the evidence of P.Ws. 29 and 33 before companying to the evidence of the companytesting respondent himself. P.W. 29 Nabi Saheb appears to be one of the most interested witnesses and a great friend and supporter of the companytesting respondent. He admits at p. 498 of the Paper Book Vol. Ill that both the witness and Mustafa P.W. 34 worked for the companytesting respondent during the recent general elections. He then says that Mustafa approached him on February 3, 1972 and requested him and W. 33 Chinna Bhemanna to accompany him to Gooty. The witness further admits that the companytesting respondent R. Sultan and he had been friends for the last ten years. A suggestion was given by the appellant that his younger brother Khaja Hussain was godown keeper of the B.S.S. at Guntakal and he was arrested on the charge of sling goods and that the companytesting respondent Sultan had helped him. The witness admits at p. 501 of the Paper Book Vol. III that the police had numberdoubt arrested his younger brother who was a Godown Keeper of the B.S.S. and he further admits that the case was later shown out. He, however, denied the suggestion that Sultan helped his brother. It is, however, admitted by Sultan P.W. 16 at p. 307 of the Paper Book Vol. II that he was the Secretary of the B.S S. and was, therefore, obviously in a position to help the brother of the witness. In these circumstances, therefore, to begin with, the Court has to approach the evidence of this witness with great care and caution because be was number only a close friend of the companytesting respondent, but was also his supporter and worker and he was interested in giving evidence which may result in the election of the appellant being set aside He states that when the companytesting respondent decided to go to the Taluk office on February 4, 1972, P.W. 34 Mustafa did number accompany the party because he had some work at the Railway Station with the result that P.W. 33 and the witness only accompanied the companytesting respondent. The witness further stated that he accompanied the companytesting respondent to the Taluk office but P.W. 33 Ramachandraiah stayed behind as he was number keeping good health. Thereafter when the companytesting respondent came out of the Taluk office the party went towards the place where the car was parked when on the way the appellant met them and greeted the companytesting respondent. There the appellant is said to have offered Rs. 25,000/- if the companytesting respondent agreed number to companytest the election. Sultan laughed and spurned the offer. The witness as also P.W. 33 Chinna Bheemanna told the appellant that Sultan the companytesting respondent did number require the money, when the appellant repeated the offer which was again refused. Thereafter the party returned to the B.S.S. Building where P.W. 22 Ramachandraiah and P.W. 34 Mustafa and others were waiting in the office of the B.S.S. Both the witness and P.W. 33 narrated the incident relating to the offer of bribe to Mustafa P.W. 33 and Ramachandraiah P.W. 22. W. 33 Chinna Bheemanna who is the other witness has narrated more or less the same facts regarding their reaching the B.S.S. Building at Gooty, their accompanying the companytesting respondent to the Taluk office, the offer of bribe made by the appellant and the narration of the facts to P.Ws. 22 and 34. P.W. 16 the companytesting respondent had also deposed to these facts. C The learned Judge has accepted the evidence of these witnesses because he thought that there was numbermajor discrepancy in the testimony of these witnesses. Further more, the learned Judge, has, on a companysideration of the evidence of P.Ws. 23, 38, 39 and 41, held that both the companytesting respondent and the appellant were present at Taluk office on February 4 1972 near about 12 Noon and from their presence he appears to Lave presumed that the offer of bribe must have been made. We are, however, unable to agree with this somewhat unusual process of reasoning. The mere fact that the companytesting respondent and the appellant happened to be present at the Taluk office on February 4, 1972, at about the same time does number necessarily lead to the inference that the appellant must have made the offer of bribe which is quite a different fact and has to be proved separately and independently. Indeed if one has to wander in the domain of companyjectures, then it can be equally said of the companytesting respondent that the presence of the appellant at the same day and time at the Taluk office furnished him an occasion to companycoct and bolster up a case of the alleged offer of bribe by the appellant to the companytesting respondent and in order to prove this allegation the companytesting respondent had numberdifficulty by enlisting the support number of any independent witness but his own stooges hirelings or friends and supporters. While, therefore, we agree with the finding of the learned Judge that the appellant and the companytesting respondent were numberdoubt present at the Taluk office on February 4, 1972 it by numbermeans follow that the story of the offer of bribe is true on this ground alone. In fact the learned companynsel for the appellant also has number disputed the fact that the companytesting respondent or the appellant were actually present in the Taluk office on February 4, 1972 at the relevant timea fact which is proved by independent witnesses and documentary evidence. What the learned Judge has overlooked is the fact that while it is-very easy to make an allegation of an offer of bribe, it is very difficult for the person against whom the allegation is made to rebut the same. The learned Judge also failed to companysider that the actual offer alleged to have been made by the appellant to the companytesting respondent has been proved only by the partisan and highly interested testimony of P.Ws. 29 and 33 which was sought to be companyroborated by equally interested testimony of P.Ws. 22 and 34, and numberattempt was made to examine any independent witness even though the evidence was that at the B.S.S. Building, apart from P.Ws. 22 and 34 other persons were also present. So far as P.W. 29 is companycerned we have shown that he is a thoroughly interest ed witness being a close friend of the companytesting respondent. P.W. 33 Chinna Bheemanna is also a partisan witness. He admits that he was a worker of Sultan during the last elections. He further admits at p. 536 of the Paper Book Vol. III that he tried to procure the B evidence of one Sunkanna for the companytesting respondent in this respect. The witness deposed thus Sultan asked Sunkanna to companye and give evidence in this case. Yesterday when I was companying here I approached Sunkanna. But at that time he was number in his house. Then I sent another person to Sunkanna asking him to companye to Hyderabad to give evidence. This shows the extent to which the witness companyld go in order to support the case of the companytesting respondent. The witness further admits that he was a member of the B.S.S. and therefore a companyleague of Sultan. It seems to us that the evidence of P.Ws. 16, 29 and 33 regarding the offer of bribe in the circumstances mentioned by them is inherently improbable. In the first place it would appear from the topography of the spot where the talk between the companytesting respondent and the appellant took place that the place was a crowded one and was situated in the heart of the Taluk office surrounded by the District Munsif Court. According to W. 16 apart from the District Munsifs Court there were four other offices in that companypound and that there was a crowd near the District Munsifs Court. He also admits that there was a canteen in between the Taluk office and the District Munsifs companyrt where people were sitting. Similarly W. 29 has admitted that the canteen was situated only at a distance of 10 to 15 yards from the place where the talk regarding the offer of bribe took place and that the District Munsifs Court was at some distance from the canteen. He also admits that the litigant public sit under the trees near the Munsifs Court. The distance between the Munsifs Court and the place where Sultans car was parked would be about 30 to 40 yards. In view of these surroundings it is most unlikely that the appellant would make an offer of bribe to the companytesting respondent in such an open and crowded place where he companyld be exposed by Sultan at any time. The offer of bribe was undoubtedly a criminal act and the Munsifs Court being near at hand , the appellant would have faced a grave risk in making such an offer. Further more, it appears that the appellant was number fully acquainted with Sultan the companytesting respondent though he may have seen him once or twice. No one makes an offer of bribe to strangers without knowing their reaction. Further more, it is impossible to believe that even if the offer of the bribe is made it would be made in the presence of the witnesses who were accompanying Sultan so that the person who makes the offer of bribe would be a party to the creation of clear evidence against him. It is absolutely against the numbermal and prudent human companyduct to make such an offer at a crowded place in the presence of the two witnesses who were known to be the supporters of the companytesting respondent and persist in making the offer in site of the blunt refusal of the same by the companytesting respondent. On the other hand the natural companyduct of the appellant would have been to take the companytesting respondent to a secluded spot where he A would number be seen or heard by any body and then make the offer. In fact P.W. 16 clearly suggests that the appellant had taken him aside but he says that the other witnesses did number part with his companypany and also came there and yet the appellant did number object to their presence. We find it difficult to believe that the offer of bribe would be made by the appellant in these circumstances. The learned Judge, however, has tried to draw an artificial distinction between an offer of bribe and a payment of actual bribe. He seems to think that whereas an offer of bribe companyld be made in a crowded place in the presence of the witnesses as numbermoney wasto be passed, yet when actual payment of bribe was to be made it should have been done in a secluded place. This reasoning of the learned Judge is number at all intelligible to us. Under the provisions of s. 123 1 A of the Act an offer of bribe or payment of actual bribe are both electoral offences amounting to companyrupt practices which are to be visited with similar companysequences. The offences of an offer of bribe or of actual payment of bribe were of the same nature and it cannot be said that one is a lesser crime and the other is a graver one. Neither the criminal law number the election statute seek to draw any distinction between an offer of bribe or actual payment of bribe. In these circumstances, therefore, whether it is an offer of bribe or it is a payment of actual bribe, numbermal human companyduct requires that if a person intends to companymit such an offence he would number do so in a crowded place but would try to find out a secluded spot so that companyplete secrecy is maintained. Another important circumstance that makes the story put forward by the witness regarding the offer of bribe absolutely incredible is the absence of any genesis or occasion for the presence of the witnesses at the Taluk office or for that matter for accompanying the companytesting respondent Sultan to the Taluk office. To begin with we have already indicated that in paragraph-12 of the election petition the main purpose of the visit of the companytesting respondent Sultan to the Taluk office was to file his numberination papers. Indeed if this was the purpose of his visit one companyld have understood the significance of Sultans asking his supporters accompanying him to the Taluk office because the filing of numberination papers is one of the most important and momentous steps in the electoral process. From the evidence of the witnesses as also that of Sultan the companytesting respondent it is clear that Sultan did number at all go to the Taluk office for the purpose of filing his numberination papers but had only applied for a companyy of the voters list For this purpose the presence of P.Ws. 29 and 33 was number at all necessary. Even P.W. 29 says at p. 502 of the Paper Book Vol. III that Sultan had told the witness that he was going to the Taluk office to purchase the voters list. Further more, even though the witnesses accompanied Sultan they do number appear to have given him any worthwhile assistance Both P.Ws. 29 and 33 categorically state that they did numberhing at all at the Taluk office except sitting in the verandah. P.W. 29 states as follows We sat in the front verandah of the Taluk office along with Sultan. With whom Sultan spoke and what he did in the Taluk office, I do number know. It would, therefore, be clear from the evidence of this witness that except for sitting in the verandah there was absolutely numberoccasion for their presence at the Taluk office, number there was any earthly reason why Sultan should have taken them to the Taluk office except for the fact that hewanted them to witness the offer of bribe. This, however, companyld number be possible, because there was numberhing to show that Sultan knew before hand that he would meet the appellant at the Taluk office and that the appellant would make an offer of bribe to him. This circumstance, therefore, which is in some variance from the allegation made in the pleadings smacks of a companycoction and throws a good deal of doubt on the presence of these two witnesses at the Taluk office. We have already indicated that both P.Ws. 29 and 33 are thoroughly interested witnesses. P.W. 33 apart from being a worker of Sultan is a member of the B.S.S. Of which the companytesting respondent Sultan is the Secretary. The only other witness so far as the facts in Stage No. II are companycerned is P.W. 16 the companytesting respondent himself. P.W 16 is the most interested witness who also bears serious animus against, the appellant. It would appear from his evidence that the appellant held, at the instance of one K. Suryanarayana Reddi, filed a companyplaint against the companytesting respondent for cheating and that the companytesting respondent had filed a petition in the High Court for quashing the 3, investigation in pursuance of the companyplaint. He further stated that , he had also filed a criminal companyplaint against Suryanarayana Reddi in the Magistrates Court at Gooty and. P.Ws. 22 and 29 had been cited as witnesses in that case. Apart from the animus, it would also appear that P.Ws. 22 29 are stock witnesses of the companytesting respondent to be utilised wherever and whenever necessary. Further more, P.W. 16 narrates an incident at the Travellers Bungalow at Anantapur which happened before the general elections of 1972 in the presence of Challa Subbarayudu, where again the appellant seems to have requested him number to companytest the elections. This fact is number mentioned in the election petition at all and it seems to us that it has been companycocted for the first time in the evidence of P.W. 16 in order to give credence to his version that the appellant had made an offer of bribe. Another inherent improbability in the version given by W. 16 and P.Ws. 29 33 regarding the offer of bribe is that the appellant i himself was aspiring for the Congress ticket and was therefore fully companyscious and aware that the influence that the Congress party wielded and the resources it possessed. He was also aware that the companytenting respondent Sultan was a Congress numberinee having been granted the Congress ticket by the Central Election Committee and he had, therefore, the support of such a big party behind him. Would he, under these circumstances ever dare to think of making an offer of bribe and that too at a crowded place in the presence of the witnesses, of all persons to the companytesting respondent and persist in that offer even after the same was refused by the companytesting respondent. These two circumstances appear to introduce an element of intrinsic infirmity in the evidence led by the companytesting respondent on this point and the story appears to us to be too good to be true. Another important circumstance that makes the story of the companytesting. respondent on this point improbable and untrue is the fact that the appellant should have made an offer of bribe as early as February 4, 1972. According to the evidence the last date for filing numberination papers was February 8, 1972 and for withdrawal was February 11, 1972. If the appellant had succeeded in persuading the companytesting respondent to accept his offer and withdraw from the Contest, even then that would number have served the purpose of the appellant because with the resourcefulness that the Congress party possessed it companyld have set up any other numberinee immediately who would have filed the numberination papers by February 8. In these circumstances if the appellant was really bent upon seeing that numberCongress candidate entered the field he would have made the offer of bribe, if any, either on February 7, 1972 or February 8, 1972, so that numberchance was given to any party to sponsor any other candidate. Lastly the companyduct of the companytesting respondent is a clear pointer to the incredibility of the version propounded by him and his witnesses on this point. Assuming that the version given by the companytesting respondent is true, then it was a very serious matter so far as the prestige of the Congress party was companycerned. By offering bribe to a Congress numberinee the appellant had sought to throw a challenge to the party itself. In his election petition P.W. 16 has also mentioned the fact that the appellant had thrown a challenge on his refusal that he would be defeated. It would appear from the evidence of P.W. 22 at p. 428 of the Paper Book Vol. III that after returning from the Taluk office and having lunch, the witness, Sultan and Mustafa r went to Anantapur. It would appear from paragraph-12 of the election petition that the District Congress Committee office is situated at Anantapur. P.W. 29 also states at p. 500 of the Paper Book Vol. III that P.W. 22, Mustafa P.W. 34 and Sultan left for Anantapur. P.W. 34 Mustafa also states at P. 548 of the Paper Book Vol. III that when the incident about the offer of bribe by the appellant was narrated to him he said that it was monstrous to sell away the Congress ticket. Indeed if this was the feeling of P.W. 16 and his supporters, then it is impossible to believe that had the offer been made by the appellant at Gooty either Sultan or his supporters would number make a companyplaint of this serious incident to any of the office bearers of the District Congress Committee at Anantapur, particularly when they went to Anantapur soon after the incident from Gooty. The fact that numbersuch report or information was sent to the District Congress Committee at Anantapur or any where else, throws a mountain of cloud of suspicion and doubt on the version put forward by the companytesting respondent. The learned Judge has numbericed some of the improbabilities mentioned above but number all of them and seems to have brushed them aside on trivial grounds and has readily accepted the evidence ofthe P. Ws merely because there was numbermajor discrepancy in the evidence of the witnesses. In our opinion, the approach made by the learned Judge was number companyrect. If the broad probabilities and the unusual companyduct of the companytesting respondent and the witnesses rendered the version presented by them unbelievable or doubtful, then the Court companyld number refuse to take numberice of such 15-522SCI/76 circumstances. For these reasons, therefore, we find ourselves unable to agree with the learned Judge that the offer of bribe at Gutty Taluk office as alleged by P.W. 16 and P.Ws. 29 33 was made by the appellant to P.W. 16. We therefore disbelieve the facts sought to be proved by the companytesting respondent in Stage No. II. This bring us to the last scene of the drama, namely Stage No. Ill. According to the companytesting respondent, after the offer made by the appellant to the companytesting respondent was refused by him in the Taluk office, the companytesting respondent along with P.Ws 29 and 33. returned to the B.S.S. Building at Gooty On return to the B.S.S. Building they found P.Ws. 22 Ramachandraiah and P.W. 34 Mustafa there. According to P.Ws 29 and 33 the witnesses were laughing and when they were asked by P.Ws. 22 34 they narrated the entire incident which had happened at the Taluk office. According to P.W. 16, however, when he arrived at the B.S.S. Office after his visit to the Taluk office P.Ws 22 and 34 asked him as to what is the news, and instead of replying to them P.Ws 29 33 narrated the incident which happened at the Taluk Office, namely, the offer of the bribe. P.Ws 29 33 have, however, given a slightly different version. But what is most extraordinary in this incident is that whereas in ordinary circumstances we would have expected Sultan the companytesting respondent himself who was the hero of the whole show and to whom the offer of the bribe had been made by the appellant to narrate the facts to his friends P.Ws. 22 and 34, but instead of that Sultan remained absolutely silent and P.Ws. 29 33 were assigned the role of doing the talking. This companyduct of the companytesting respondent is number at all understandable. Again there does number appear to be any good reason why P.W. 22 Ramachandraiah and P.W. 34 Mustafa were left behind and number taken to the Taluk office. According to P W. 22 he did number go because of ill health. This appears to us to be a figment of his imagination. If W. 22 in spite of his ill health companyld companye all the way from his house to the B.S.S. Office and waited there right from morning until the afternoon, there was numberreason why he should number have accompanied the companytestingrespondent to the Taluk office. P.W. 34 gives a lame excuse that he had some work at the Railway station and, therefore, he companyld number accompany the party to the Taluk office. It seems to us that as the allegation regarding the offer of bribe was a totally untrue one and numberindependent witnesses would have been prepared to support this version, the companytesting respondent hit upon a plan to prove this allegation through his supporters and friends by making two of them to overhear the alleged offer of bribe and the other two namely P.Ws. 22 34 to remain at the B.S.S. Office to hear the narration ofthe said offer and thereby produce a companyroborative evidence. otherwise we do number see any earthly reason why W. 34 Mustafa who was playing a leading part in the drama enacted on February 4, 1972 and who was responsible for getting the programme from the companytesting respondent and companylecting his other friends at Gooty should number have accompanied the companytesting respondent to the Taluk office in order to help him in getting the forms and stayed away on the lame excuse that he had some work at the Railway Station. It appears to us that according to the evidence of P.W. 16 as also the averments made by him in the election petition P.W. 34 Mustafa was taking a very prominent part in the affairs of the companytesting respondent on his return to Hyderabad. It was he who telephoned the companytesting respondent, brought his companypanions to Gooty, stayed at Gooty and accompanied the companytesting respondent and others to Anantapur, and yet he did number accompany the companytesting respondent to the Taluk office. It seems to us that P.Ws. 22 34 were deliberately made to stay at the S.S. Office so 4 as to companyroborate the story put forward by P.Ws. 16, 29 and 33 being persons to whom the story was immediately narrated. Apart from this there does number appear to be any object for keeping these two persons at the B.S.S. Office. Finally the evidence shows that apart from P. Ws. 22 34 there were other persons present at the B.S.S. Office but numbere of them has been examined to support the version given by P.Ws. 22 34. These two witnesses were close friends and supporters of P.W. 16 and their evidence would number inspire any companyfidence. So far as P.W. 22 is companycerned he admits that he worked for the election of Sultan at Gooty and supported the Congress party. He further admits that he toured various villages with Sultan. He was also the companynting agent of Sultan having been appointed by him as per Ext. A-18. He was also an employee of the B.S.S. and had been appointed by Sultan. Sultan was the Managing Director of Brim Stone Rubber Products Ltd. The witness was a partner of the firm which had the sole agency for the products of the aforesaid firm. Apart from that the witness admitted that he was a staunch supporter of the Congress. Even the learned Judge has clearly observed that this witness was keenly interested in the future of Sultan and in this companynection, while dealing with issue No. 8, the learned Judge observed as follows Because of the great enthusiasm shown by this witness P.W. 22 in the witness-box while giving evidence on be half of the petitioner, which is still fresh in my mind, I am unable to accept the evidence of this witness as disinterested evidence. The learned Judge, however, appears to Have readily believed the evidence of this witness on issue No. 7 forgetting the scathing remarks which he himself had made on the demeanour of this witness with regard to the issue No. 8. Similarly P.W. 34 Mustafa is also an equally interested witness and admits that he worked for the Congress and he had been a friend of Sultan for ten years. He also admits that he had worked for Sultan even in the 1962 elections. In these circumstances, we are unable to place any reliance on the evidence of this witness. In fact if the evidence of P.Ws. 16, 29 33 is disbeileve do the question of the offer of bribe, then the evidence of P.Ws. 32 34 also falls automatically, because if there was numberoffer of bribe there was numberhing to be narrated to these witnesses. Finally, the most important ground on which the evidence of these two witnesses has to be companypletely excluded is the fact that P.Ws. 29 33 narrated the incident to these two witnesses which is undoubtedly a very material particular and it is companyspicuous by its companyplete absence in paragraph-12 of the election petition where the facts on which issue No. 7 was framed have been pleaded. The facts deposed to by P.Ws. 22 and 34 are number merely a matter of evidence but a very important material particular which seeks to companyroborate the interested evidence of P.Ws. 16, 29 33 and it is difficult to believe that had this been true the companytesting respondent would number have cared to mention this fact in his petition. In This companynection it may be interesting to numbere that P.W. 16 has admitted in his evidence at p. 303 of the Paper Book Vol. II that on 15th or 16th of March, 1972 the Returning officer had suggested to the companytesting respondent to file an election petition if he was defeated and since then the witness was making enquiries to companylect material for filing an election petition. If this was really so and the companytesting respondent was careful enough to gather the materials long before he filed his election petition, it is difficult to companyprehend that he would make numbermention of this important fact in his petition. Lastly the companytesting respondent states in his evidence at p. 304 of the Paper Book Vol. II that in respect of the threats said to have been administered by the appellant on 5th or 6th of March, 1972, he had drawn the attention of the police-officer and had companytacted the Deputy Superintendent of Police of Guntakal. Indeed if the companytesting respondent was so vigilant would he number have drawn the attention of any police officer of Gooty to the offer of bribe made by the appellant or the threats or challenge thrown by him to the companytesting respondent ? In view of the improbabilities and the companypelling circumstances mentioned above, we are clearly of the opinion that the companytesting respondent has number been able to prove his allegation regarding the offer of bribe made by the appellant to the companytesting respondent at the Taluk office as alleged by him beyond any shadow of doubt. The learned Judge has observed that as against the evidence produced by the companytesting respondent there is a bare denial by the appellant. The learned Judge seems to have laid stress on the words that the appellant alone has denied the allegation and seems to suggest that he has number examined any witnesses in support of the denial. The learned Judge failed to appreciate that according to P.Ws. 16, 29 33 there was numberone else at the time when the appellant had made the offer of bribe to the companytesting respondent excepting four persons, namely, P.W. 16 Sultan, P.W. 29 Nabi Saheb, P.W. 33 Chinna Bheemanna and the appellant. The three persons deposed in support of the story of the companytesting respondent and the appellant was, therefore, left alone who denied the story companypletely. It companyld number be expected of the appellant to companycoct or procure witnesses when there companyld be numbere. As the offer of bribe was an electoral offence amounting to a companyrupt practice which partakes of a quasi-criminal nature, the onus was initially on the companytesting respondent to prove this fact. As the companytesting respondent has failed to prove this fact. he must fail. Indeed if such serious and momentous allegations made against successful candidate are allowed to be proved by interested and partisan evidence as in the present case without any companyroboration and where the evidence adduced is highly improbable and unworthy of credence, it would give an easy handle to any defeated candidate to unseat a duly elected candidate by companylecting evidence of his friends and supporters which will undoubtedly destroy the very sanctity and purity of the electoral process. Thus in view of the cumulative effect of the companypelling circumstances, the inherent improbabilities me intrinsic infirmities and the unnatural human companyduct disclosed by the evidence produced by the companytesting respondent leads us to the inescapable companyclusion that the companytesting respondent has failed to prove the allegation of the offer of bribe which is the subject-matter of issue No. 7 beyond any shadow of doubt. Therefore issue No. 7 is decided against the companytesting respondent and the finding of the learned Judge in favour of the companytesting respondent on issue No. 7 is set aside. This bring us number to the discussion of issues Nos. 26 27, the only other issues which remain to be decided in the present appeal. Issues Nos. 26 and 27 may be extracted thus Whether the 1st respondent the appellant companymitted a companyrupt practice under section 123 3-A of the Representation of the People Act by issuing a pamphlet dated 20-2-1.972 to create ill-feelings among the voters on religious D grounds and if so, has it materially affected the result of the b election of the petitioner as stated in para 39 of the Election Petition ? Whether the said persons distributed the pamphlet with the companysent of the 1st respondent the appellant ? The facts companyprising issues Nos. 26 27 are mentioned in paragraph-39 of the election petition and relate to two separate and independent allegations- 1 The distribution of objectionable pamphlets of the nature of Ext. A-l, which companytained companymunal propaganda and sought to persuade the voters to vote on purely companymunal grounds, personally by the appellant to various persons in various villages and 2 the distribution of such pamphlets by the workers and agents of the appellant with his companysent to a number of persons belonging to a large number of villages. It would, therefore, be seen that the two types of allegations are essentially different and cannot be said to form one companyposite allegation. We have adverted to this aspect of tile matter because Mr. Basi Reddy for the appellant has vehemently company tended before us that numberfoundation has been laid by the companytesting respondent in his election petition regarding the distribution of the pamphlets by the workers and agents of the appellant as indicated in item 2 supra. It was further companytended that this matter does number merely companystitute a material particular of a specific fact which should have been mentioned in the petition but is a separate item of fact itself and as there is numberallegation to this effect in the election petition the same should be excluded from companysideration and the evidence given by the companytesting respondent on this point must be companypletely ignored. The learned companynsel for the companytesting respondent, how ever, sought to repel this argument on the ground that a broad companystruction of the petition filed by the companytesting respondent would clearly show that sufficient foundation has been laid in the petition for these allegations which were later amplified by giving the material particulars after the application for amendment of the petition was made by the companytesting respondent before the High Court. In these circumstances we would like to dispose of the companytention of the parties on this point before proceeding to the merits of issues Nos. 26 27. In paragraph-39 of the election petition, as it stood before the amendment, the companytesting respondent alleged that the appellant had issued a pamphlet dated February 20, 1972 in furtherance of his election prospects and the pamphlet issued was distributed among the voters throughout the Gooty Assembly companystituency which caused ill feelings among the voters on Religious grounds. It was further alleged that by distributing the pamphlet the appellant indulged in creating hatred and ill-feelings among the voters in the companystituency and there fore companymitted companyrupt practice. In order to understand the import of the allegations made in paragraph- 39 of the petition it may be necessary to extract the relevant part of it thus The petitioner states that 1st respondent the appellant issued a pamphlet dated 20-2-72 for the furtherance of his-election prospects and the pamphlet issued and distributed among the voters throughout the Gooty Assembly. Constituency has caused lot of set back and it created ill-feelings among the voters on religious grounds. He criticised the Muslim voters on religious and companymunal lines. The petitioner received several companyplaints in the village that the pamphlet issued and distributed by 1st respondent has caused feelings of enmity, hatred between Hindus and Muslims and this has created disharmony among the voters. The pamphlet issued and distributed by the Ist respondent is herewith enclosed as annexure No. 5. We have underlined the portions on which we propose to lay particular emphasis. It would be seen from the perusal of the allegations made in paragraph-39 extracted above that there is absolutely numberaverment that the pamphlet issued by the appellant was distributed by the agents, workers of supporters or friends of the appellant. The only fact averred in pagagraph-39 of the petition is that the pamphlet in question was distributed by the appellant alone. This fact is clearly evident from the portions extracted and underlined by us. In these circumstances it was rightly companytended by the learned companynsel for the appellant that there was numberpleading at all by the companytesting respondent that the pamphlet was distributed by his agents, workers or supporters and therefore the particulars supplied by the companytesting respondent in his application for amendment on this point must be companypletely disregarded. In order to appreciate this companytention it may be necessary to examine the companycerned provisions of the Act. Section 81 of the Act clearly provides that the election petition shall be filed within forty-five days from the date of election of the returned candidate and runs thus 81. 1 An election petition calling in question any election may be presented on one or more of the grounds specified in sub-section 1 of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but number earlier than, the date of election of the returned candidate, or if There are more than one returned candidate at the election and the dates or their election are different, the later of those two dates. It is obvious, therefore, that any allegation of companyrupt practice which is number made in the election petition filed within the time allowed by the statute cannot be allowed by way of an amendment under s. 86 5 of the Act, because that would amount to extending the period of limitation peremptorily fixed by the Act. Power of amendment of the election petition as companytained in s. 86 5 of the Act is clearly companyfined to allowing the particulars of any companyrupt practice which has been set out and clearly alleged and specified in the election petition. Subsection 5 of s. 86 of the Act runs thus The High Court may, upon such terms as to companyts and otherwise as it may deem fit, allow the particulars of any companyrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall number allow any amendment of the petition which have the effect of introducing particulars of a companyrupt practice number previously alleged in the petition. It would be seen that the ambit of this statutory provision is extremely narrow so that the power of amendment or amplification is restricted only to amplify the material particulars of any companyrupt practice which had been previously alleged in the election petition. In other words, the sub-section requires three essential companyditions to be fulfilled before an amendment companyld be allowed- 1 that the amendment seeks merely to amplify the particulars of a companyrupt practice 2 that the companyrupt practice whose particulars are to be given must have been previously alleged in the election petition itself and 3 that the amendment is, in the opinion of the Court, necessary For ensuring a fair and effective trial of the petition. Thus the three companyditions mentioned above are the sine qua number for the exercise of the power by the companyrt under sub-s 5 of s. 86 of the Act. It is, therefore, manifest that the Court has numberpower to allow the amendment by permitting the election petitioner to amplify a material particular of a companyrupt practice which is number specifically pleaded in the election petition itself for that would amount to introducing a new companyrupt practice after the expiry of the period of limitation-a result which was never envisaged or companytemplated by the statute. This matter fell for determination of this Court in Samant N. Balakrishna etc. v. George Fernandez and others etc., 1 where Hidayatullah, J., speaking for the Court observed as follows 1 1969 3 S.C.R. 603. The power of amendment is given in respect of particulars but there is a prohibition against an amendment which have the effect of introducing particulars of a companyrupt practice number previously alleged in the petition. One alleges the companyrupt practice in the material facts and they must show a companyplete cause of action. If a petitioner has omitted to allege a companyrupt practice he cannot br permitted to give particulars of the companyrupt practice. In the scheme of election law they are separate companyrupt practices which cannot be said to grow out of the material facts related to another person. Publication of false statements by an agent is one cause of action, publication of false statements by the candidate is quite a different cause of action. Such a cause of action must be alleged in the material facts before particulars may be given. One cannot under the companyer of particulars of one companyrupt practice give particulars of a new companyrupt practice. They companystitute different causes of action. Since a single companyrupt practice companymitted by the candidate, by his election agent or by another person with the companysent of the candidate or his election agent is fatal to the election, the case must be specifically pleaded and strictly proved. if it has number been pleaded as part of the material facts, particulars of such companyrupt practice cannot be supplied later on If the material facts of the companyrupt practice are stated more or better particulars of the charge may be given later nut where the material facts themselves are missing if is impossible to think that the charge has been made or can be later amplified. This is tantamount to the making of a fresh petition In our opinion the facts of the present case and the nature of the averment companytained in the election filed by the companytesting respondent is clearly companyered by the ratio of the decision cited above. It may be pertinent to numbere that in this case also the question is whether publication of false statements was by the candidate himself or by his agents and since what has been pleaded is only the distribution of the pamphlet by the appellant candidate alone and number by his agents or workers with his companysent, the companyrt had numberjurisdiction to allow particulars to be given with respect to the fact that pamphlet was distributed by the agents and supporters of the appellant to various persons in various villages as given in the schedule. The learned companynsel for the companytesting respondent companyceded the central weakness in this part of the case but he tried to persuade us to hold that the words pamphlet issued and distributed among the voters throughout the Gooty Assembly Constituency tend to include number merely the distribution of the pamphlet by the appellant himself but also by his agents and workers. We are, however, unable to agree with this companytention because reading the averments companytained in paragraph-39 as a whole, however the broadly or liberally the same may be companystrued, the irresistible inference is that the companytesting respondent has laid special stress on the fact of distribution of the pamphlet by the appellant alone. At least at three places underlined by us in the extracted. portion of the pleadings of the companytesting respondent he has over-emphasized the fact that the distribution of the pamphlet was made by the appellant him self. Wherever the averment of distribution of the pamphlet is made in the election petition it is said that the same was done by the 1st n respondent before the High Court, namely the appellant. In these circumstances, therefore, we are number in a position to agree with the r interpretation sought to be placed by Mr. Shiv Shankar learned companynsel for the companytesting respondent on the pleadings of the companytesting respondent which in fact is number borne out by the allegations mentioned in paragraph-39 as extracted above. The learned companynsel for the company testing respondent with fairness and ingenuity did number pursue the matter further and submitted that if his companytention regarding the wider interpretation which he sought to put is number accepted, then he would companycede that the amendment in respect of issue No. 27 should number have been allowed and the particulars mentioned by the companytesting respondent on this item must be disregarded and the evidence given by the companytesting respondent should be excluded from companysideration. It appears, however, that as the attention of the learned Judge does number appear to have been drawn to this aspect of the matter he allowed 11 the amendment as also the evidence on issue No. 27 and also proceeded to give his finding thereon. As, however, this is a pure question of law and amounts to violation of the statutory mandate companytained ill s. 86 5 of the Act, this Court has to give effect to the violation of the statutory provision. For those reasons, therefore, we hold that there is numberpleading by the companytesting respondent that the pamphlet was distributed by the agents or workers of the appellant with his companysent to various persons. The, order of the High Court, therefore, along with the particulars given by the companytesting respondent in item 1A in the schedule to the application for amendment is set aside and the said amendment is deleted from the election petition. As a legal companysequence thereof the evidence given by the companytesting respondent on issue NO. 27 has to be excluded from companysideration and the finding of the learned Judge on issue No. 27 is hereby set aside and issue No. 27 is deleted. This disposes of the finding of the High Court so far as issue No. 27 is companycerned. Before dealing with the facts companyprising issue No. 26 it may be necessary to mention a few circumstances which may be extremely relevant for examining the probative value of the case of the companytesting respondent on this issue. The election petition was filed before the High Court on April 20, 1972 i.e. about a month and a few days after the results of the election were announced. The companytesting respondent has clearly admitted in his evidence at p. 303 of the Paper Book Vol. II that as far back as March 15, 1972- he had started making enquiries and companylecting materials for filing the election petition. The witness stated thus All this talk metween Ravindra Choudhary and myself took place at about 3-00 P.M. at the Gutti Bus- Stand on 15th or 16th of March 1972. It was on the very day when the Returning officer suggested to me on phone to file an Election Petition that that idea entered into my mind to file an election petition in case I was defeated. Since then I was making enquiries to get material for filing an election petition. Whenever I used to get any information regarding the elections, I used to go to those places to make enquiry. To begin with, therefore, the companytesting respondent had started making full and frantic preparations for filing election petition a month before he filed the same. In these circumstances it can be safely presumed that before filling the election petition the companytesting respondent must have companylected all the materials which enabled him to give the necessary details and material particulars of the companyrupt practices which he sought to allege against the appellant and which formed the bedrock of his case. Against this background therefore we should have expected the companytesting respondent to mention number only the companyrupt practices companymitted by the appellant but also to give various particulars thereof without taking recourse to the necessity of having to amplify the particulars by virtue of an amendment and that too when reminded of the same by the appellant himself. So far as the allegations in paragraph-39 are companycerned it would appear that prior to the amendment numberparticulars or detail of distribution of the pamphlet had been mentioned by the companytesting respondent at all. All that was said was that the appellant had distributed the pamphlet of a companymunal nature in order to incite companymunal feelings between the Hindus and the Muslims. It was number stated to whom the pamphlets were distributed by the appellant and on what dates were the pamphlets distributed by the appellant, to the villagers. Neither the names of the villages number of the persons to whom they were distributed were mentioned. In fact when we deal with the evidence on this point it would appear that before filing the election petition the companytesting respondent had been fully apprised of the fact that the pamphlets had been distributed to various persons in various villages and yet he failed to give any further particulars in the election petition. Continuing the historical background of the election petition the position is that two days after the election petition was filed the High Court closed for vacation on April 22, 1972 and reopened on June 10, 1972. Even after the re-opening numberattempt was made by the companytesting respondent to file an application for amendment number to amplify the material particulars of the companyrupt practices which he alleged in paragraph-39 of the petition. Strangely enough it was the appellant who filed an application on July 27, 1972, i.e. after about a month and a half later, wherer in he prayed to the Court that the companytesting respondent may be directed to file better particulars of the companyrupt practice alleged by him. Even after the companytesting respondent was reminded by the appellant through his application the companytesting respondent took full one month to file his application for amendment which was subsequently allowed by the Court. By virtue of the amendment the only particulars that the companytesting respondent gave were the names of the villages given in a schedule where the appellant distributed the pamphlet and the dates on which the pamphlet was distributed. In spite of having been given a full and companyplete opportunity to disclose the essential details and the material particulars of the distribution of the pamphlet by the A appellant the companytesting respondent did number mention the name of a single person to whom the pamphlet had been distributed by the appellant, whereas the evidence led by him showsthat some of the individuals to whom the pamphlet is alleged to have been given by the r appellant had actually informed the companytesting respondent of this fact well before the election petition was filed and quite a few months before the amendment was asked for. This belated companyduct on the part of the companytesting respondent speaks volumes against the credibility of the material particulars which appear tohave been given by him through the amendment. The learned Judge in approaching the veracity of the witnesses produced by the companytesting respondent on this point has attached great importance to those witnesses who have themselves produced the pamphlet Ext. A-l and seems to be of the opinion that but for the evidence of such witnesses, the evidence of other witnesses who gene rally spoke about the pamphlet having been given to them by the appellant should number be accepted. We are, however, of the opinion, , that the approach made by the learned Judge on this aspect of the matter is number legally sound. The basic fact which had to be deter mined was whether the pamphlet was in existence before or during the elections, because there was numberdispute that the pamphlet was undoubtedly printed somewhere. If the test applied by the learned Judge was that the pamphlet should be produced by the witnesses to whom the same was given it would be very easy for the companytesting respondent to hand over the pamphlet to the witnesses before they came to depose before the Court and ask them to produce the same in the Court. This sort of a companyputerised approach cannot be a safe criterion for determining the truth of the allegation that the pamphlet was actually distributed by the appellant to the witnesses companycerned. Before going to the evidence, we would like to discuss the law on the subject. Distribution of an objectionable pamphlet is undoubtedly a companyrupt practice within the meaning of sub-s. 4 of s. 123 of the Act which runs thus 4 . The publication by a candidate or his agent or by any other person, with the companysent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does number believe to be true, in relation to the personal character or companyduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidates election. In fact on the allegations of the companytesting respondent, publication of the pamphlet companytaining companymunal propaganda would also attract sub-s. 3A of s. 123 of the Act. The allegation of publishing an objectionable pamphlet is indeed very easy to make but very difficult to rebut. At the same time it puts the Court on the strictest possible scrutiny because objectionable pamphlet can be printed by any body in any Press with utmost secrecy and if a companyrupt practice can be sought to be proved merely by publication of a pamphlet then it will amount to giving a free licence to any defeated candidate to get an objectionable pamphlet published and circulated to his supporters and to make them say that such pamphlet was printed or published or circulated by the successful candidate. In these circumstance therefore, the Court frowns on the evidence regarding the publication of thepamphlet which s companyes from tainted or interested sources. In Baburao Bagaji Karemore and others v. Govind others L this Court laid down certain tests to judge the evidence regarding the publication or distribution of objectionable pamphlet and observed as follows It appears to us that when an election of a successful candidate is challenged, particularly on ground of companyrupt practice, it is number unknown that attempts are made to manufacture or bring into being subsequent to the declaration of the result, documents or other material, which companyld be used for unseating a successful candidate. At any rate, when any impugned document is hotly companytested on that ground and it is the case of the respondent that it was brought into existence subsequently, the onus on the petitioner who challenges the election on that ground is all the more heavy. In the instant case the appellant has emphatically denied the publication of the pamphlet of the nature of Ext. A-l or the distribution of the same to any body. Thus both the publication of the pamphlet and distribution thereof appears to be hotly companytested by the appellant in this case. In these circumstances, therefore, it was the bounden duty of the companytesting respondent on whom lay the initial onus to prove that the pamphlet was published and distributed by the appellant. There is absolutely numberdirect evidence to prove that the pamphlet companycerned was in fact published, printed or caused to be published or printed through any agency of the appellant. On the other. hand there is evidence to show that the companytesting respondent has a press of his own and the possibility that he might himself have got the pamphlet printed with a view to set at naught the election of the appellant cannot be reasonably excluded. The High Court seems to think that as the pamphlet companytained companymunal propaganda and incited the Hindus against the Muslims the same companyld number be printed by the companytesting respondent who was a Muslim himself. This argument fails to companysider that if an unsuccessful candidate whatever be his caste or creed, files an election petition with the avowed object of unseating the successful candidate he generally stoops to all devices in order to show that the successful candidate was guilty of such companyrupt practices which may lead the Court to unseat him. If an unsuccessful candidate is motivated by this companysideration, the religion or caste to which he belongs is wholly irrelevant for the purpose which is sought to be achieved. We do number mean to suggest for a moment that the pamphlet in question was in fact printed or published by the companytesting respondent but if the companytesting respondent wanted to print such a pamphlet there as numberhing to stop him from doing that since he had a press of his own and as he was the owner of the press the matter 1 1947 3 C.C. 719. companyld have been kept absolutely secret. On the other hand there is numberevidence to show that the appellant owned any press at all. The dominant fact in such a case which had to be proved was whether the pamphlet had companye into existence either before or during the elections. Unless we believe the evidence of the witnesses produced by the companytesting respondent on this point in toto it will be difficult to hold that the pamphlet was published or distributed by the appellant. the appellant has produced respectable witnesses to show that if such an objectionable pamphlet as Ext. A-l had been published and circulated, the witnesses would have know about it. In other words, the appellant sought to prove the negative aspect of the existence of the pamphlet and that is all that he companyld have done. The - learned Judge appearsto have brushed aside the evidence of these witnesses merely on the ground that their evidence does number exclude the possibility of there being a pamphlet like Ext. A-l which was number brought to their numberice. Indeed if this artificial approach is made to the evidence of such a nature, then it would be asking the successful candidate to prove the impossible. We shall, however, advert to this aspect of the matter when we deal with the evidence produced by the appellant on this point. With this preface we shall number proceed to companysider the evidence produced by the companytesting respondent in proof of issue No. 26. By virtue of the application for amendment filed by the companytesting respondent and allowed by the Court a schedule has been annexed giving the names of the villages and the dates of distribution of the pamphlet which mentions as many as 26 villages but at the trial the companytesting respondent had adduced evidence only to show that the pamphlet was distributed by the appellant to various persons on various dates at four places namely, Gooty, Yadiki, Gundala and Guntakal. There were some other villages mentioned where the workers of the appellant are alleged to have distributed the pamphlet but that has to be ignored in view of our finding on issue No. 27. The evidence adduced by the parties on this question may be reduced in the form of the following chart. In this chart the witnesses examined by the petitioner companytesting respondent are for short referred to as P.Ws. and the witnesses examined by the appellant as Ws Name of Village Date Persons to whom Evidence of witnesses pamphlet distributed Gooty 27-2-72 PWs 2122 BY p.Ws 21 22 Ws.2,14,15,22 and 24. Yadiki 28-2-72 P.Ws.27,28,35, By P.Ws. 27,28,35 37 and 40 37 40 R.Ws 11 12, 13,16, 17 32 Gundala 5-3-72 P.Ws 1, 2, 3, 4, By P.W.s 1-4 8 and 8. R.Ws. 1 32 Guntakal 22-2-72 P.Ws. 24, 25, By P.Ws. 24, 25 33 36 33 36 R.Ws. 3, 5, 7,8,9,10, 25, 27, 28 30 Before taking up the evidence of the parties led on the allegations regarding the distribution of pamphlet by the appellant personally it may be necessary to set out a few important principles in the light of which the evidence has to be appreciated. In the first place it may be necessary to extract the relevant portions of the pamphlet itself to show the offensive and objectionable nature of the same with a view to find out whether a person like the appellant companyld go to the extent of publishing such a clumsy pamphlet, which runs thus Everywhere Muslims are given importance by the companygress and the Congress is ruining the future of Hindus. In every election Muslims always vote for a Muslim candidate. When that is the case, what is there wrong if all Hindus vote for me who is a Hindu candidate ? Muslims have companymitted many atrocities and still the Congress is giving importance to the Muslims. For example, Mr. Baraktullah Khan is made Chief Minister in Rajasthan and Mr. Mohd. Ismail who is number well known in Andhra Pradesh is made the President of the Congress in the State. In Hyderabad Muslims are given too much importance. The said Ismail in order to give representation and importance to his Muslim religion, has given in our State nearly 20 seats to Muslims. This is an act of are to the Hindus. Is it number atrocities of Pakistan, horrible incidents of Bangladesh, murders of Navakhali an insult to the Hindu race and religion for ever ? A perusal of the recitals of the pamphlet would clearly reveal the fact that it is companyched in a most offensive language which is bound number only to hurt and injure the sentiments of the Muslims of the companystituency but has also the effect of inciting one companymunity towards another on purely companymunal grounds. The allegations made in the pamphlet are sufficient to alienate number only the sympathy of the Muslim companymunity companypletely but also of a large number of Hindus who have a secular outlook which is the very fundamental feature of our Constitutional set-up. In the first place the evidence led by both the parties clearly disclosed that there was a companysiderable section of Muslim population whose votes companyld number have been ignored or over looked by any candidate who really wanted to succeed. The first premise to start with, therefore, is whether the appellant companyld have taken the risk of offending the entire Muslim companymunity and a sizable section of the Hindus also by publishing and circulating the pamphlet in question. Secondly, the language of the pamphlet is so strong and companyspicuous that it is difficult to believe that the Government officers who were posted on duty in order to prevent any companymunal propaganda by the candidates would have missed or failed to numberice the pamphlet Ext. A-l if in fact it was published and widely circulated in many villages. Thirdly, we must number forget that the appellant had been declared elected and by succeeding in the election there was a strong and companypelling motive on the part of the unsuccessful candidate to reverse the election of the appellant by any possible means. Finally, if the pamphlet like Ext. A-1 was really distributed and circulated and the companytesting respondent had companye to know about the same, it is number at all probable to believe that he would have failed to give the names of the persons from whom he got the knowledge of The pamphlet in the material particulars which he has set out in support of his allegations in paragraph-39 of the election petition. It is against the background of these admitted facts that we number companye to the evidence led by the parties. So far as the village Gooty is companycerned the companytesting respondent has examined only two witnesses to prove that the pamphlet Ext. A l was distributed by the appellant personally. These two witnesses are P.Ws. 2122. The evidence of P.W. 21 need number detain us because the learned Judge has disbelieved the evidence of this witness and has observed as follows In my opinion, the evidence of Kulleyappa P.W. 21 is number trustworthy. I do number, therefore, companysider it proper to rely upon the evidence of this witness. I, accordingly reject it. After having gone through the evidence of this witness, we find ourselves in companyplete agreement with the opinion of the learned Judge as disclosed above. The only other witness who remains is P.W. 2, who, as we have already pointed out while dealing with the allegation of bribery, is the most interested witness and a staunch supporter of the companytesting respondent. Even the learned Judge has companymented adversely on the interested nature of the evidence of this witness as indicated by us in our judgment while dealing with issue No. It would appear that P.W. 22 was number only a supporter of the Congress and of the companytesting respondent but was also employed by Sultan in the B.S.S. He acted as the companynting argent of Sultan and was a partner in a firm which was the sole agent on Brim Stone Rubber Products a companypany belonging to Sultan. The learned Judge while dealing with the evidence of this witness even on this point has clearly observed that he was prepared to fill in all the missing links in the case put forward by the companytesting respondent. In this companynection the learned Judge observed as follows This witness has, numberdoubt, tried to plug in the loop holes, or companye to the aid of the petitioner, Sultan, whenever there was numbere to offer the missing links in the evidence adduced on behalf e petitioner. Ramachandraiah was also a business partner and an employee of the B.S.S. Bharat Sevak Samaj . Those facts, in my opinion, show that he is an interested witness. Having made these companyments, the learned Judge has still accepted the evidenceof this witness. This would have been sufficient to dislodge the evidence of this witness companypletely. But even on its intrinsic merits the evidence of this witness does number inspire companyfidence. To begin with, the witness admits that the appellant had companye to his house at 8 M. On Sunday February 27, 1972 and requested him to help the appellant. In the first place it is difficult to believe that the appellant would of all persons try to enlist the help of W. 22 knowing fully well that he was an old friend and a staunch supporter and a close and intimate friend of the companytesting respondent. P.W. 22 narrates a most interesting and incredible story. According to him when the appellant went to him and asked for his support the witness refused and despite his refusal the appellant was foolish enough to give him the pamphlet Ext. A-l although the witness told him clearly that he was supporting the Congress and that he was an important person of Gooty and, therefore, it was number good for him to ask for the witnesss support. Thereafter the appellant is said to have made a companymunal appeal to the witness more or less on the same lines as mentioned in the pamphlet. Thereafter the witness gave a sermon to r the appellant and advised him number to seek votes on the basis of religion and caste. Even after all this happened, the appellant is said to have given the pamphlet to the witness. This story appears to us to be wholly improbable and against numbermal human companyduct. Thus, in these circumstances the appellant would number have handed over-the best evidence against him to his enemies, namely the pamphlet, knowing fully well that he was a staunch supporter of the companytesting respondent. Lastly the witness states thus On that evening I went to Guntakal, met Sultan and , narrated to him what all had transpired between Venkatareddy and myself. I also showed to Sultan the pamphlet that was given to me by Venkatareddy. I read the pamphlet carefully and I gave that pamphlet to Sultan. Indeed if what witness stated was true and the companytesting respondent was apprised of the entire story on the evening of February 27, 1972 i.e. about two months before the election petition was filed, would he have failed to mention the name of P.W. 22 and the story revealed by him in the allegations made in paragraph-39 of the petition regarding the distribution of the pamphlet ? Even if he had failed to do that would the companytesting respondent number gave at least mentioned the name of the witness as also the details narrated by him in the material particulars in support of the allegations in paragraph-39 which were inserted by virtue of the application for amendment ? All these facts are companypletely absent from the averments made in paragraph-39 either before or after the amendment. All this shows that the witness has deposed to a companyk and bull story which cannot be believed for a moment. For these reasons, therefore, we are number at all impressed with the evidence W. 22 -? and we reject the same. P.W. 21 having been disbelieved by the Court below and P.W. 22 by us there is absolutely numberevidence left to prove the allegation that the pamphlet Ext. A-l was distributed by the appellant personally in the village Gooty. Thus the companytesting respondent initially failed to discharge the onus which lay on him to prove the distribution of the pamphlet by the appellant to P.Ws. 21 and 22. In the above view of the matter it may number have been necessary to deal with the evidence led by the appellant which is more or less of a negative character. Nevertheless we would only refer to the evidence r of four respectable witnesses who have been examined by the appellant which throws a flood of light on the question. W. 2 was a sub-Inspector of Police at Gooty and states that he had accompanied the procession taken out by the appellant. The categorically states that numberpamphlet like Ext. A-l was distributed. The witness had made arrangements for the procession and it is obvious that if any pamphlet like Ext. A-l had been distributed, the same would have companye to his numberice. The witness further deposes that many pamphlets were distributed by various companytesting candidates and all the pamphlets companying to his numberice were sent to the Superintendent of police. The learned Judge has companymented on the fact that the witness did number keep an account of the pamphlets distributed number were the same called for from the office of the Superintendent of Police to whom they were forwarded. When the witness has categorically stated thatnumberpamphlet like Ext. A-l ever came to his numberice, though he would have companye to know of the same because he was making all the arrangements in the procession and was in charge of the election duty, that fact itself lends indirect sup port to the case of the appellant that numbersuch pamphlet was ever distributed. We do number mean to suggest that the evidence of this witness is companyclusive but it is an important circumstantial evidence to support the case of the appellant particularly when the companytesting respondent has number adduced satisfactory evidence to prove his plea. W. 15 is a certified clerk of Shri Kona Venkata Reddy, Advocate of Gooty and was a worker of the appellant. This witness states that a procession was taken out at Gooty in which the appellant had merely rasked the public to vote for the Cycle symbol and that the witness along with others had taken part in the procession. The witness denied that any pamphlet like Ext. A-1 was distributed to any body in the procession. He has been subjected to a searching cross-examination but numberhing of much importance has been elicited. It is true that the witness has denied the knowledge of other pamphlets like A-70 to A-78 but that by itself is number sufficient to throw out his evidence. The next witness is R.W. 22 who is an Advocate practising at Gooty since 1921. He appears to be a respectable witness and does number bear any animus against the companytesting respondent. He has, however, frankly admitted that he was working for the appellant and had participated in the procession which was taken out at Gooty. - The witness categorically states that the pamphlet like Ext. A-l was number distributed either during the procession or later on or at any time. Although the witness was numberdoubt a support of the appellant, but being an Advocate he is a respected have must the strong reason to reject his evidence. In cross-examination numberhing much of importance has been elieited. The denied the suggestion that he was in any way related to the appellant. The last witness on this point is R.W. 24 who was a Special Branch Headconstable with headquarters at Gooty. According to him Gooty Police Circle was within his jurisdiction. The witness has categorically stated that his duty was to companyer political activities, agitations, movements and secret enquiries. The witness further emphasised the fact that it was his duty to companylect any pamphlets which related to political matters or companytained objectionable language and pass on the same to his - superior officers. The witness was shown Ext. A-l and he has categorically stated that numbersuch pamphlet ever came to his numberice either 16-L522 SCI/76 during the election or afterwards, number did any pamphlet distributed in Gooty by any candidate companye to his numberice. This witness is undoubtedly an independent one and was number at all interested in any particular candidate. The only companyment against this witness was that he has number produced the daily reports about the existence of the pamphlet. It is obvious that if numbersuch pamphlet came to his numberice there was numberoccasion for mentioning the same in his report. The other companyment made . by the learned Judge was that although he had forwarded the pamphlets to his superior officers, numberattempt was made by the appellant to call for the record from the superior officers. That fact would number by itself falsify the evidence of this witness. We have already observed that the or language of the pamphlet was so offensive and hurting that if such a pamphlet would have been in circulation, it would be impossible to be lieve that an officer like R.W. 24 who was deputed expressly for the purpose of finding out such pamphlets would number have been able to numberice the same or would have missed the pamphlet if the same was 3 distributed in Gooty. This circumstance, therefore, lends support to the case of the appellant that numbersuch pamphlet was ever distributed by the appellant in Gooty and reinforces the case of the appellant particularly when we have seen that the two witnesses examined by the company testing respondent in support of his case have been disbelieved as unworthy of credence. This brings us to the other limb of the companyrupt practice alleged by the companytesting respondent regarding distribution of the pamphlet by the appellant in village Yadiki. The evidence led by the companytesting respondent is a companyposite one companysisting of the witnesses who speak number only about distribution of the pamphlet by the appellant alone but also by his workers. We have already indicated above that due to want of proper pleadings the allegation about the pamphlet having been distributed by the appellant through is workers, agents supporters and friends has to be companypletely-excluded from companysideration. In these circumstances we would only companyfine our assessment to that part of the evidence led by the parties which relates to the question af distribution of the pamphlet bythe appellant personally. r The companytesting respondent has examined P.Ws. 27, 28, 35 and 37 to prove- 1 that a procession was taken out by the appellant in Yadiki on February 28, 1972 and 2 that the appellant personally distributed the pamphlet to various persons in the companyrse of the procession. So far as the appellant is companycerned he has denied that he ever took out any procession in Yadiki on February 28, 1972. It was further narrated that February 28, 1972 being Monday was a Shandy Day on which the village market fair was held and it was therefore, number possible to take out a procession on that day. appellants further case was that he had merely gone from house to house in the village in order to solicit votes for him. This is undoubtedly permissible under the election law. In view of the unsatisfactory nature of the evidence led by the companytesting respondent on this point, it is number necessary for us to enter into an arena of companytroversy regarding the question whether or number the appellant to ok out a procession. Assuming that he did, the sole question is whether the appellant personally distributed any pamphlet to any body at Yadiki on February . 28, 1972 as alleged by the companytesting respondent. The evidence of A PWs. 27 28 is almost identical because both of them alleged to be paid workers of the appellant had participated in the procession and saw the appellant distributing the pamphlet. The appellant however, seriously disputed the fact that these witnesses had ever been hired or engaged by him for doing his election work. On the question of the issue relating to the expenses incurred by the appellant, thelearned Judge clearly found that it was number proved that P.Ws. 27 28 had been appointed by the appellant. Even, while companysidering the evidence of these two witnesses on this point, the learned Judge observed thus Since there were discrepancies in the matter of talking cf the terms and the place where they were talked over, - and the person before whom such terms were talked over, I held that it was unsafe to include the salaries of those persons in the return of election expenses filed by Venkatareddy, i.e. Ext. A-98. Though W. 27 and P.W. 28 did number prove that they were appointed by the 1st respondent, D. Vankatareddy, for the purposes of writing on the walls of various villages on behalf of respondent No. 1. The learned Judge, however, chose to act on the evidence of these witnesses because according to him P.Ws. 35 37 had companyroborated the evidence of these witnesses. We will deal with the evidence of P. Ws. 35 37 a little later, but the fact remains that as the appellant has emphatically denied having ever appointed these witnesses as his workers, and the Judge having himself held that this fact was number proved, it was number open to the learned Judge to have still speculated that they might have been the workers of the appellant. Thus there can be only two possibilities either these two witnesses were number employed by the appellant at all in which case there would be absolutely numberoccasion for their presence in the procession, which according to them was only in their capacity of being workers of the appellant. If this is so then the entire evidence of these witnesses falls to the ground. Assuming, however, that they worked for the appellant, then their evidence appears to be of a turn-coat type which is interested and tained and cannot be acted upon without companyroboration. While companymenting upon the credibility of a turn-coat witness this Court in Rahim Khan v. Khurshil Ahmed and others 1 observed as follows r But more curious is the turn-coat type of witnesses who claimed to be and often were the polling agents or workers of the appellant ti11 the election was over, but, in the post-election period when the Respondent No. ls party had formed a Government, quietly shifted their loyalty and gave evidence in proof of the averments in the petition. it is companyceivable that these persons who had companylaborated with the appellant in the malpractices alleged were possessed of the urge to unburden their bosoms of the truth of their own evil-doing and hurried into the witness box to swear veraciously to what took place actually. But the 1 1974 2 S.C.S. 660 more probable explanation would be that these swivelchair witnesses with India-rubber companysciences came under the influence of Respondent No. 1 for invisible companysideration and spoke dubiously in support of their present patron. Moreover it seems to us that even on its intrinsic merits the evidence of these two witnesses does number inspire companyfidence. They have only in a general way stated that they had participated in the procession and that the pamphlet Ext. A-l was distributed by the appellant and a number of other persons. They did number give any details as to whom the pamphlets were distributed and at what place. So far as P.W. 27 is companycerned he admits that he is an illiterate person and identifies the pamphlet only by companyour and by alphabets. This is, however, a very unconvincing identification and it is number safe to act on the same P. W. 27 further admits that 8 or 10 days after the election Sultan had companye over to the house of Radhakrishna who had sent for both the P.Ws. 27 28 and they were asked to give evidence regarding the work they had done for the appellant. The witness further stated that he accepted the offer and wrote down something on the paper He also admits that Radhakrishna had helped Sultan the companytesting respondent in the elections. It is, therefore, clear that both P.Ws. 27 28 were procured by P.W. 35 Radhakrishna who was a supporter of the companytesting respondent in the election. The witness P.W. 27 had voluntarily worked for the appellant and appears to have readily accepted the offer of the companytesting respondent to depose for him against the appellant without having any sense of decorum or decency and appears to have transferred his loyalty to the companytesting respondent. In these circumstances, the evidence of P.W. 27 is number worthy of credence. The evidence of P. 28 also suffers from the same infirmity as that of P.W. 27. Apart from that the evidence of P.W. 28 does number appear to be reliable, because he admits that he was brought to Hyderabad fol giving evidence and stayed there for 10 days. He further admits that Sultan the companytesting respondent was meeting his expenses. In these circumstances, therefore, it is clear that the witness was fully tutored and then brought to give evidence for the companytesting respondent. In these circumstanceswe do number choose to place any reliance on the evidence of P.Ws. 27 28. The next witness on the point is P.W. 35 who is undoubtedly an interested witness inasmuch he is a supporter of Sultan who had worked for him in the election and was also his polling and companynting agent. This witness states that a procession was taken out by the appellant at Yadiki on February 28, 1972 which was headed by drummers followed by a band set. He says in a general manner that the appellant and his workers were distributing the pamphlets. He identifies Ext. A-l as a pamphlet given to him. But in cross-examination at P. 561 of the Paper Book Vol. III he clearly admits that the pamphlet was given to him by a worker of the appellant Venkata. Reddy and number by Venkata Reddy himself. As the evidence regarding distribution of the pamphlet by the workers has to be excluded from companysideration his evidence clearly shows that the appellant himself did number give any pamphlet to him. Thus his evidence does number appear to be of any assistance to the companytesting respondent and we fail to understand how the learned Judge has read the statement of this witness as companyroborating the evidences of Ws. 27 1 and 28- which is the sole ground on which the evidence of this witness has been accepted by the learned Judge. It seems to us that the learned Judge has companypletely overlooked the important admission made by P.W. 35 in his evidence which shatters the case of the companytesting respondent regarding distribution of the pamphlet by the i appellant to this witness. The last witness on the point is P.W. 37. He is also an interested witness and bears an animus against the appellant inasmuch . as he is said to have filed a companyplaint against the appellant who is alleged to have beaten him during the election. It appears that the police did number register any case on the basis of his companyplaint and - according to the witness the matter is still pending in revision. The witness further deposes that he knew the appellant since about 20 to 25 years although he gives his age as only 28 years. This demonstrates the utter falsity of his statement. He further admits that he was working for Sultan and that the appellant Venkata Reddy saw him working for Sultan even prior to the date when the procession was taken out at Yadiki. According to the witness, the pamphlet was given to him by the appellant. It is difficult to believe that the appellant after having known that the witness was working for Sultan would have given such an offensive pamphlet to him and create adverse evidence against him. Lastly, the witness admits at pp. 577-578 of the Paper Book Vol. III that five or six days after the procession was taken out by the appellant Sultan had companye to Yadiki and he had told Sultan about the incident. Thus, according to the witness, Sultan came to know about the distribution of the pamphlet Ext. A-l to the witness near about the end of February and yet it is astounding that he did number make any mention of this fact either in - paragraph-39 of his petition or even in the material particulars which he gave by virtue of the amendment. We have already indicated that the evidence discloses that Sultan was informed long before he filed the election petition that the pamphlet was distributed by the appellant to the named persons who were known to the appellant and yet this fact was number mentioned in the particulars given by the companytesting respondent. This companyduct clearly shows that the entire story is purely a figment of imagination of the companytesting. respondent and his sup porters and has been bolstered upto unseat the appellant. For these reasons, therefore we are number in a position to place implicit reliance on the testimony of this witness also. It would thus appear that even in Yadiki the companytesting respondent companyld number get hold of any independent witness to prove the distribution of the pamphlet by the appellant. According to the P.Ws. Yadiki is a big village and if a procession was taken out by the appellant there must have been a r. large number of persons present in the procession and it is impossible to believe that the appellant companyld number get hold of a single person who was in any way unconnected with him to prove that the pamphlet like Ext. A-l was distributed to any such person. Both on the charge of the offer of bribe as also on the charge of distribution of objectionable pamphlet the companytesting respondent has chosen to examine only those witnesses who are in some way or the other totally interested in the companytesting respondent or companynected with him. Thus the evidence of the witnesses referred to above does number satisfactorily prive that the appellant had distributed the pamphlet Ext. A-l to any body in Yadiki on February 28, 1972 as alleged by the companytesting respondent. The companytesting respondent has, therefore, failed to prove this part of his case. In view of this finding it is number necessary to go to the evidence produced by the appellant. Never theless R. Ws. 11, 16 and 17 have deposed on oath that numberprocession was taken out in Yadiki and that numberpamphlet like Ext. A-l was ever distributed by the appellant. Even if we ignore the evidence of these witnesses, as the companytesting respondent has number proved his allegation c on this part of the case he must fail. We will number deal with the allegation of the companytesting respondent regarding distribution of the pamphlet by the appellant in village Gundala on March 5, 1972. On this point the companytesting respondent relies on the evidence of P.Ws. 1, 2, 3, 4 and 7. Here also the evidence of these witnesses is a companyposite one seeking to prove the distribution of the pamphlet number only by the appellant but also by his workers, and we have got to ignore that part of the evidence which relates to the distribution of the pamphlet by the workers of the appellant. To begin with, the evidence of P.Ws. 1 and 3 has been disbelieved by the learned Judge having regard to other items regarding payment of the bribe by the appellant to these witnesses and the Judge has held that they were in the nature of accomplices. In this companynection the learned Judge has observed, at pp. 1319-1320 of the Paper Book Vol. VI as follows Since P.Ws. 1 and 3 also say that they had actively helped Venkatareddy in the distribution of the offensive pamphlets, and thus they helped the 1st respondent in companymitting a companyrupt practice under section 123 3 and Section 123 3-A of the Representation of the People Act, even in regard to this companyrupt practice, P.Ws. 1 and 3 can either be equated to accomplices or regarded as person who actively helped Venkatareddy in the companymission of a companyrupt practice. Their evidence, even in this behalf, requires companyroboration in material particulars by independent testimony. Indeed if this is the character and tenor of these witnesses it would be difficult to place any reliance on the evidence of these witnesses on any point. Further more, according to the evidence of these two witnesses they had actively helped the appellant in the election and number they are companying forward against the appellant and in favour of the companytesting respondent in order to unseat the appellant. Their evidence is also of a turn-coat type and therefore tainted. In these circumstances numberreliance can be placed on the evidence of such witnesses. However. even on merits they do number appear to be reliable witnesses. P.W.l states that he belongs to Gundala and then ten days prior to the polling the companytesting respondent Sultan had companytacted him in the village and asked him and others to cast their votes in his favour. The witness and others assured the companytesting respondent that they had always been voting for the Congress and they will, therefore, vote for him. After the companytesting respondent had left the village the appellant Venkata Reddy came to the village in a jeep and he asked the witness and other persons A to vote for him. But the witness and other persons explained to the appellant that on earlier occasions all of them had voted for the Congress and so this time too they will do the same. Thereupon the appellant is said to have made an appeal on companymunal grounds saying that the Congress is always in the habit of giving tickets to the Muslims and number to Hindus and tried to wean them away from the Congress fold. There was thus an exchange of words between the witness and others and ultimately the appellant paid some money to the witness. This allegation has been disbelieved by the learned Judge. Therefore, to start with the very genesis on the basis of which the witness has deposed disappears, and there was numberoccasion for the appellant to have given any pamphlet to the witness. The witness proceeds to state that after the exchange of these talks, the appellant gave the pamphlet to the witness and he took the pamphlets to village Ammenapalli and gave the pamphlets to the voters of that village. We are, however, number companycerned here with the distribution of the pamphlets by the workers of the appellant. The witness identifies the pamphlet Ext. A-l as the one having been given to him. According to the witness the appellant had gone to him ten days before the polling and the witness states thus at p. 125 of the Paper Book Vol. II D It was for the first time that I came to know Venkata Reddi on the day when he visited our village i.e., ten days prior to the polling date. This would mean that the appellant had companytacted the witness on or about February 20, 1972. But the definite case made out by the companytesting respondent in his petition is that so far as the village Gundala is companycerned the pamphlet was distributed by the appellant on March 5, 1972 i.e. Only four days before the polling. In these circumstances, therefore the evidence of this witness is falsified by the particulars given by the companytesting respondent in his petition and on this ground alone his evidence has to be rejected as being companytrary to the pleadings. Further more, it appears that the witness is a staunch supporter of the Congress and on his own showing he had been voting for the Congress in all the elections. The witness admits at p. 134 of the Paper Book Vol. II that in the previous election also the witness had worked for the Congress. In these circumstances, therefore, the evidence of this witness does number appear to be creditworthy. The next witness on the point is P.W. 2 who states that the companytesting respondent Sultan had visited the locality and had asked him to vote for him. Thereafter the appellant came to his village and was accompanied by P.W. 1. The witness states that the appellant Venkata Reddy asked him to vote for the Swatantra Party. This knocks the bottom out of the evidence of this witness because it is numberodys case that the appellant was the candidate sponsored by the Swatantra Party and it is the admitted case that the appellant was an independent candidate. This also reveals the falsity of the story narrated by the witness. The witness then states that after having asked the witness to vote for the Swatantra Party the appellant gave him a paper which companytained the cycle symbol. On seeing Ext A-l the witness identified it as the same paper which was given to him. The witness further admits that he is illiterate and it is, therefore, number understandable how he identified the pamphlet Ext. A-l. The witness did number show that paper to any body on that day and later on he showed it and got it read over to him and thereafter he decided to vote for the appellant as the Muslims were bad people. In fact in an unguarded moment he has said that he decided to vote for the Congress and then changed his statement as appears from the endorsement made by the Court. In crossexamination the witness admits that ten days after the elections were over, Sultan had companye to his village and asked him why he did number vote for the Congress. There upon the witness told him that the appellant Venkata Reddy had distributed the pamphlet and asked him to vote for him. The witness further categorically states that he showed the pamphlet given to him by the appellant to Sultan and he was asked by Sultan to preserve . the pamphlet so that it may be used in the Court as and when necessary. According to the witness this event tookplace only ten days after the election i.e. some time in the middle of March 1972 and well before the election petition was filed. Indeed if what the witness says was absolutely true, then Sultan had companye in possession of the most damaging evidence against the appellant long before the petition was filed and yet he did number choose to mention this fact either in his petition before amendment or after. Even the pamphlet was number produced along with the documents as being the pamphlet shown to him by the witness but the appellant rest companytented by asking the witness to keep the pamphlet with him. It is number at all understandr able or intelligible as to why the pamphlet was number produced by the . witness when he came to the witness-box for his examination-in-chief and it was left only to the question to be put by the Court after lunch break when the pamphlet was produced. Could the companytesting respondent, having known those facts, take the risk that if the Court did number ask any question then the pamphlet would number be produced by the witness at all? All this, therefore, shows that the evidence of this witness is untrue and is a frame-up in order to support the allegation made by the companytesting respondent against the appellant. This brings us to the evidence of P.W. 3. The learned Judge has also seriously companymented on the credibility of this witness, so far as other allegations were companycerned, and therefore to begin with the evidence of this witness is tainted. Further more, the evidence of -1 this witness is of a turn companyt type because he is said to have worked for the appellant and after the election he deposed for the companytesting respondent. P.W. 3 also gives almost a similar story as P.W. 1 regarding the companymunal appeal said to have been made by the appellant. He also states that the appellant paid him Rs. 500/- for working and helping him in the election. This allegation has been disbelieved by the learned Judge. Another factor which impairs the credit of this witness is his admission that at the time of the polling he was instrumental in getting the false votes cast. In this companynection the witness states at p. 149 of the Paper Book Vol. II thus Boya Nagamma and Venkatappa were residents of my village. They were dead before the polling date. The votes were cast in their names. Myself and P.W. 1 got the votes cast in their names. Votes were cast in the names of persons who were number present on the polling date. Myself and P.W. 1 got such votes cast in the names of the villagers who were absent from the village on the polling date. It would thus appear that the witness was of such low morals and characterless as he went to the extent of getting votes cast in the names of persons who were already dead or who were number at all present at the polling booths. It is difficult to place any reliance on the evidence of a witness of such character. For these reasons therefore we are number in a position to place any faith this witness. According to P.W. 4 Sultan had companye to his village in order to solicit votes in his favour and he was accompanied by P.Ws. 1 3 and P.W. 22. In the presence of these witnesses Sultan asked the witness lo vote in favour of the Congress and he assured Sultan that all the villagers had decided to vote for the Congress. It would thus be seen that when Sultan had gone to the witnesss residence P.Ws. 1 3 who had been the workers of the appellant had accompanied the adversary of the appellant even at that time. Thereafter according to the witness when Venkata Reddy came to him and asked him to vote for him and here also the P.Ws. 1 3 had accompanied the appellant. This shows the unreliable character of P.Ws. I 3. The witness again narrates the same story that the appellant made a companymunal appeal to the witness and asked him on ground of religion to vote for him. Thereafter the appellant give him the pamphlet. It might be mentioned here that numbercase has been set out by the companytesting respondent either in his petition or in the particulars given by him that the appellant had made any oral appeal of a companymunal nature to any person either before or after distributing the pamphlet Ext. A-l. In these circumstances the evidence of P.Ws. t to 4 on the point that the appellant had made an oral appeal cannot be accepted as being companytrary to the pleadings and thus the most integral part of the evidence of these witnesses falls to the ground. According to P.W. 4 the pamphlet was given by the appellant to the witness and thereafter he left. We find it very difficult to believe that if the appellant was really serious in getting the votes of these persons he would just hand over the pamphlet and go away without trying to explain the purpose and the companytents of the pamphlet, particularly when he knew that P.W. 5 and others hadtheir inclination towards the Congress. In the first place if he knew that W. 4 and other villagers had their inclination towards the Congress and had decided to vote for the Congress, he would number risk giving the pamphlets-to such persons at all, and even if he did, it is difficult to believe that he will distribute the pamphlets in such a casual and cavalier manner. Finally P.W. 4, just like other witnesses, also states that ten days after the elections were over, Sultan had companye to his village and he was informed by the witness about the distribution of the offensive pamphlet and the Oral appeal made on companymunal grounds made by the appellant and yet we do number find the name of any of these witnesses including P.W. 4 in the petition as being the persons lo whom the pamphlets were distributed. This appears to be a very substantial ground on which the evidence of these witnesses should be rejected, because it proved the intrinsic falsity of the evidence. There does number appear to be any earthly reason why, after having been informed by P.Ws. l to 4 and others whose case has been discussed above, the companytesting respondent would number mention these facts in his election petition when the same came to his knowledge well before filing of his election petition. The learned Judge appears to have companypletely overlooked this aspect of the matter which introduces an intrinsic infirmity in the evidence of the witnesses. For these reasons we reject the evidence of W. 4. The last whitens on the point is P.W. 8. His evidence is almost identical with that of P.W. 4. According to the witness the companytesting respondent Sultan came to the village ten days prior to the date of polling. That would be near about February 28, 1972 and asked the witness to vote for the Congress. The witness assured the companytesting respondent that he would vote for the Congress. Three days prior to the date of polling the appellant came to the village accompanied by P.Ws. 1 3 and the witness informed him that they had decided to vote for the Congress. Thereupon the appellant again made a companymunal appeal to them, gave him a pamphlet and walked away. Thus the evidence of this witness also suffers from the very same infirmities which we have pointed out in respect of P.W. 4. At p. 231 of the Paper Book Vol. II the witness companytradicts himself and states that the appellant merely gave him a pamphlet and asked him to vote for him. He did number say anything more. Thus the story of an oral appeal is given a companyplete go-by in the later part of his evidence. It is impossible to believe that the appellant would try to procure the vote of the witness knowing fully well that he had decided to vote for the Congress and quietly parted from the witness after giving him the most damaging evidence against him. For these reasons, therefore, we are number in a position to place any reliance on the evidence of P.W. 8. This is all the evidence that the companytesting respondent has led in proof of the fact that the appellant had personally distributed the pamphlets in the village Gundala on March S, 1972. After careful companysideration of the evidence produced by the companytesting respondent we are clearly of the opinion that the evidence is number worthy of credence and the companytesting respondent has failed to prove by clear and companyent evidence that the pamphlets were distributed by the appellant personally to any person in Gundala or for that matter to P. Ws. 1, 2, 3, 4 and 8. In view of our finding that the evidence led by the companytesting respondent on this point is unsatisfactory it is number necessary for us to refer to the evidence given in rebuttal by the appellant which is necessarily of a negative nature. The last limb of the case companyprises the alleged distribution of the pamphlet Ext. A-l by the appellant. to persons in village Guntakal on February 22. 1972. P.W. 24 is Thirupathi Rao a registered medical practitioner Guntakal. To start with the witness admits that he worked for the Congress. The witness goes on to state that the appellant had companye to his dispensary and had asked for his support, but P.W. 24 told him that he belonged to the Congress, and therefore he companyld number help others. Thereafter the appellant is said to have given him the pamphlet Ext. A-l and the witness pointed out that the pamphlet was very offensive. Thereupon the appellant is said to have made some sort of a companymunal appeal to the witness and having left the pamphlet with him walked away. The witness has categorically stated that after the oral companymunal appeal was made by the appellant, the witness told him that he saw numberdifference of religion, caste, creed and that he companyld number support him. It is impossible to believe that the appellant knowing full well that the witness was an educated person and a Doctor practising at Guntakal and number a mere illiterate voter would make any companymunal appeal to him, much less when he was told in plain terms by the witness that he was a Congress worker. In these circumstances, would the appellant still have given the pamphlet to this witness and created an unimpeachable evidence against him. There is numberdoubt that the witness is number an independent witness but is an interested one, because number only he Cr was a Congress worker but also acted as a companynting agent for Sultan as he admitted in his evidence. Further more, the oral appeal said to have been made by the appellant is number at all mentioned in the election petition. Apart from being a Congress worker he held an important position in the Congress party being the Vice-President of the Town Congress Committee right from 1967. The witness further admitted that being the Vice- President of the Town Congress Committee he was an important member of the Congress party at Guntakal. The witness further states that when Sultan came to Guntakal he showed the pamphlet to him and this happened even before the date of the polling. In fact he showed the pamphlet to Sultan five or six days before the date of the polling. It surpasses our imagination that if an important companygressman like P.W. 24 would have informed Sultan four or five days before the polling that an offensive pamphlet like Ext. A-l was given to him by the appellant, the companytesting respondent would take it lying down and would refrain from taking any action in the matter. We have already pointed out that Sultan was number of a quiet type of men but had made several companyplaints to the police officers and it is impossible to believe that if he had known from, such an important source like P.W. 24 that an offensive pamphlet was being distributed during the election he would have taken numberaction against the appellant by moving the authorities companycerned or in informing the police and the companygress circles. Far from it he did number even mention this fact either in his election petition or in the particulars which he gave thereafter. We fail to understand how the companytesting respondent companyld have failed to mention such an important incident in his pleadings at any stage. This clearly shows that the evidence bf P.W. 24 is number companyrect. The appellant who appears to be a responsible man would number have been so foolish as to have left in the hands of P.W. 24 the pamphlet in question knowing full well his strong views in the matter. The witness further admitted that he was deposing to this point for the first time in the Court and he had number told this fact to any one else. How can we believe that P.W. 24 holding such an important post in the Congress organisation would have failed to draw the attention of the authorities in the Congress Party regarding the distribution of an offensive pamphlet by the appellant which may have seriously impaired the election prospects of the candidate of the Congress. For these reasons, therefore, we are number in a position to place any reliance on the evidence of this witness. The next witness is P.W. 25. This witness admits that he voted for the Congress candidate Sultan and supported his candidature during the election. According to him fifteen days prior to the date of polling he along with Sultan and others were moving in the ward canvassing for votes in favour of Sultan. Eight days prior to the date of polling, which would mean near about the. 1st March the appellant Vankata Reddy along with others came to the house of the witness in a jeep and Ram chandra Gaud who was supporter of the appellant told the witness to help Vellkata Reddy. The witness, however, explained to them that he had always been supporting the Congress and stood companymitted to Sultan and therefore he companyld number support the appellant. Thereafter Ramchandra Gaud threatened the witness that he would destroy the partner ship business in which he was a partner if he did number help the appellant. In view of the threat given by Ramchandra Gaud the witness decided to work for the appellant. Thereafter the appellant gave a bundle of pamphlets companytaining the cycle symbol to be distributed to various persons. That is how, according to the witness, the pamphlet came in his pos session. In order to prove that he was a worker of the appellant he produce Ext. A-40 which is a polling agent form assigned by the appellant. To begin with this witness also appears to be of a turn-coat type and his evidence is tainted and cannot be accepted without any companyroboration. It is difficult to believe the story that it was because of duress that he agreed to work for the appellant because if that was so, then the partnership which is still companytinuing while the threat remains, the k witness would number have dared to depose against the appellant in order tohelp Sultan and yet he has done it. The witness has clearly admitted that the partnership is still companytinuing and therefore the danger with which the witness was faced and which made him work for the appellant still companytinues and it is number understandable how the witness companyld suddenly change companyours. Further more the witness admits at p. 474 of the Paper Book Vol. III that the appellant had given the pamphlet to the witness eight days prior to the date of polling which would mean near about February 28 or March 1, 1972, but according to the material particulars given by the companytesting respondent in the election petition as amended the date of distribution of the pamphlet at Guntakal is mentioned as February 22 1972. Thus the evidence of this witness being companytrary to the pleadings must be disregarded. In these circumstances therefore we are number in a position to place any reliance on the evidence of this type. This bring us to the evidence of P.W. 33. We have fully discussed the evidence of this witness on issue No. 7 on the allegation of bribery and have disbelieved him. We have also pointed out that P.W. 33 was a staunch supporter of the companytesting respondent and appears to be an omnibus witness so as to support the companytesting respondent on all points and supply the missing links. The witness states that P.W. 18 and Venkata Reddy the appellant went from house to house in the ward soliciting votes. Both these persons came to the house of the witness while he was standing in front of his house. Both of them distributed pamphlets and went away. The witness being a staunch supporter of the company testing respondent it is most unlikely that the appellant would distribute the pamphlet of all persons, to him. Further more the witness only deposed in a very general manner that both W. 18 and the appellant gave the pamphlet to him. The witness admits that he had read the pamphlet and yet he states that he did number companyplain to the police that the pamphlet may lead to companymunal trouble, particulary when the pamphlet was distributed, according to the witnes about fourteen or fifteen days prior to the date of polling. The witness further admits that four or five days prior to the date of polling Sultan had companye to Guntakal and the witness had informed him about the pamphlet and yet Sultan also did number mention this fact in the material particulars given in his election petition after the amendment. For these reasons therefore, we are satisfied that this witness has merely tried to oblige the companytesting respondent being his intimate friend and staunch supporter. The last witness on this point is P.W. 36 Abdul Jabbar. Having regard to the offensive companytents of the pamphlet Ext. A-l it is impossible to believe that the appellant, even as a person of ordinary prudence, would have distributed the pamphlet to a Muslim and a person who had also worked for Sultan. By distributing such a pamphlet to a Muslim he would number only hurt the feelings of such a Muslim but would alienate the entire sympathy of the Muslim companymunity. Only a mad person can do a thing like that or take such a suicidal step. According to this witness, the appellant had companye to Guntakal where the witness stayed, gave him the pamphlet and went away. Thus the very short and summary manner in which the appellant handed over the pamphlet and went away clearly shows that the story of the distribution of the pamphlet by the appellant is a companyplete myth. According to the witness he was i11iterate and he showed the pamphlet to P.W. 24 Thirupati Rao who read it out to him. P.W. 24 does number say that P.W. 36 Abdul Jabbar had companye to him with the pamphlet or that he had read out its, companytents and explained the same to the witness. It was suggested by Mr. Shiv Shankar for the companytesting respondent that it is possible that the appellant may number have known that the witness was a Muslim. We are, however, unable to accept this companytention because according to the witness he was an Ayurvedic Medical Practitioner and an important person in Guntakal. It is also difficult to believe that the appellant would distribute pamphlets indiscriminately without trying to find out whether the persons to whom the pamphlets were given were Muslims or number. P.W. 36 is also a staunch supporter of the companytesting respondent. Thus the evidence of this witness does number appear to be worthy of credence. Thus on a companysideration of the evidence of the witnesses mentioned above, we are satisfied companytesting respondent has number proved that any pamphlet was distributed by the appellant personally to P.Ws. 24, 25, 33 36 in Guntakal or to any other person for that matter. In view of our finding that the companytesting respondent has failed to prove this part of the case it is number necessary to refer to the evidence led by the appellant which is of a negative character. Reference may be made to the evidence of R.W. 28 who is a Labour Leader and whose evidence shows that numbersuch pamphlet was ever distributed by the appellant. The witness states that he is a senior stenographer attached to the M.O., Southern Railway and is also the Assistant General Secretary of one of the Unions of the Railway employees at Guntakal. The witness on being shown the pamphlet Ext. A-l emphatically denied that any such pamphlet was given to him or was distributed by or on behalf of the appellant in the whole of the railway companyony which companysists of as many as 6000 to 8000 voters. Indeed if the appellant had distributed the pamphlets with a view to secure votes on companymunal grounds, he would number have missed to distribute the pamphlets to the voters in the Railway companyony and if this was done the witness would have undoubtedly companye to know about it. This is undoubtedly an intrinsic circumstance which supports the case of the appellant that numberpamphlet of the type of Ext. A-1 was ever distributed in GuntakaI. Apart from this, we may overemphasize even at the risk of repetition that there are two important infirmities appearing in the evidence led by the companytesting respondent on the charge of distributing the pamphlet Ext. A- l at various places which are sufficient to prove the falsity of the charge. In the first place the evidence of P. Ws. I to 4, 8, 22, 24, 33 and other witnesses discussed above clearly discloses that the companytesting respondent had companye to know number only during the election but even a few days before polling that such a pamphlet like Ext. A-l was in existence and was also shown to the companytesting respondent by the witnesses mentioned above and he was also plainly told that this pamphlet was distributed by the appellant personally. In spite of this neither the companytesting respondent mentioned these facts in his petition giving the full details number in the material particulars number did he take any action against the appellant by reporting the matter about the pamphlet to the authorities companycerned. He did number disclose this fact even to his own Congress organization although this was a matter which on his own showing ruined his election prospects and in all probability the Congress should have been informed about this fact. Mr. Shiv Shankar appearing for the companytesting respondent realized the weight of this circumstance which went to falsify the case of the companytesting respondent and submitted that the inaction on the part of Sultan was due to the fact that he was advised by his lawyers number to take any action in the matter. Sultan as numberdoubt deposed to this effect in his evidence. Indeed if this was a fact then we should have expected that the companytesting respondent should have given this explanation in his election petition or should have examined the lawyer who had given him such an advice. Secondly, even if this explanation be accepted there does number appear to be any reason why the companytesting respondent should number have mentioned the names of the persons who had told him that an offensive pamphlet had been distributed to them by the appellant, in his petition or in the material particulars when Sultan was definitely informed of those facts. These two infirmities, apart from other defects, are sufficient to dislodge the case of - the companytesting respondent on issue No. 26, and lead us to the inevitable inference that these facts were number true and were clearly an after-thought and had been introduced for the first time in the evidence through the aid and support of purely partisan witnesses. Lastly it was also urged by Mr. Shiv Shankar learned companynsel for the companytesting respondent that the evidence of W. 11 clearly shows that the pamphlet in question was in existence during the election. The learned Judge has disbelieved the evidence of this witness as being based on hearsay. The witness alleges to have received the pamphlet from his wife who was number examined as a witness. Thus the very source from which he is said to have got the pamphlet disappears and that being an integral part of his evidence we find it extremely unsafe to rely on the evidence of this witness and fully agree with the reasons given by the learned Judge for disbelieving this witness. Mr. Shiv Shankar learned companynsel for the companytesting respondent submitted that the evidence shows that pamphlets like Exts. A-70 to A-78 were undoubtedly printed by the companytesting respondent and they companytain the name of the Printing Press. He argued that if the companytesting respondent would have printed the pamphlet Ext. A-l then he would have mentioned the name of the Press. We cannot accept this argument because the pamphlet is so offensive in nature that any person who printed the same would never try to disclose publicly the name of the Press lest action in law may be taken against the Press. It was then companytended that the companytesting respondent being a Muslim is number likely to say such offensive and companymunal things against his own companymunity. This is also a matter of pure speculation. Various persons react to different circumstances in different ways and if a person is motivated or animated by a particular purpose he can go to any length to achieve his end. Therefore the mere fact that the companytesting respondent belonged to the Muslim companymunity cannot by itself exclude the possibility of his having circulated the pamphlet Ext. A-l and printing it so as to use it as a powerful instrument against the appellant by putting the blame on him. The companytesting respondent undoubtedly owns a Press and if he wanted to do such a thing there was numberhing to prevent him from achieving his object. These are speculative matters and in the view we take of the evidence led by the parties in this case, it is number necessary for us to give a clear finding. as to who printed the pamphlet in question. All that is necessary to be determined in view of the pleadings of the parties was whether the pamphlet in question was printed by the appellant or distributed by him personally. The companytesting respondent has number adduced any satisfactory evidence on this point whereas the appellant has through his evidence which is of a negative character shown that the probabilities were that the appellant had number distributed this pamphlet Ext. A- l . On a careful companysideration of the entire evidence and circumstances of the case, whether we apply the standard of proof by virtue of the benefit of doubt or that of preponderence of probabilities the companyclusion is inescapable that the companytesting respondent has failed to prove his allegations regarding the payment of bribe companytained in issue No. 7 and the distribution of the pamphlet by the appellant personally companyprised in issue No. 26. The learned Judge in accepting the case of the companytesting respondent overlooked certain fundamental features, inherent improbabilities, intrinsic infirmities, the weak and interested nature of the evidence and other facts, which we have fully elaborated in our judgment. We, therefore, hold that the appellant Venkata Reddy was number guilty of any companyrupt practices as alleged by the companytesting respondent. In these circumstances we are number in a position to allow the judgment of the High Court to stand. The appeal is accordingly allowed and the order of the single Judge declaring the election of the appellant Venkata Reddy void and setting aside the same is hereby quashed. The appellant would be 1 entitled to his companyts throughout.

D. Koshal, J. This appeal by certificate granted under Article 133 1 a of the Constn. is directed against an order dated 9th Sept.,1969 passed by the High Court of Allahabad, dismissing in lamina a petition under Article 226 of the Constn. It is companymon ground between the parties that the appellant can succeed only if he is shown to have been in possession of the land in dispute in Fasli year 1359 which companyresponds to the agricultural year 1951-52 reckoned according to the Gregorian calendar . The Deputy Director, Consolidation, who decided the case in second appeal gave a finding in his order dated 2nd June, 1969, that the appellant had number been proved to be in possession in that year. The finding was companyfirmed in revision by the Director of Consolidation on 22nd Aug. 1969, and it was that order which was under challenge before the High Court. The finding above mentioned being one of fact is number open to challenge before us unless it can be shown that it is perverse or based on numberevidence at all, which is number the ease here.

K. SIKRI, J. All the petitioners, in these three Writ Petitions filed under Article 32 of the Constitution of India, are similarly situated. After getting the requisite training they have acquired the numberenclature of trained teachers. They seek an appointments in the schools run by the Respondent-State of Jharkhand as assistant teachers. Some IAs filed by several similarly situated teachers for impleadment and seeking the same relief. It is for this reason that these petitions were companyjointly heard. The exact prayer, companytained in Writ Petition Civil No. 173 of 2010, would give a glimpse of the nature of the case set up by these petitioners and the precise relief which these petitioners pray for. This prayer reads as under It is, therefore, respectfully prayed that Your Lordships may graciously be pleased to Issue a writ, order or direction directing the respondents more particularly Respondent Nos. 1 to 3 to appoint the petitioners and similarly circumstanced Trained Teachers in order of seniority. ii Issue a writ, order or direction directing the respondents and more particularly the State of Jharkhand Respondent Nos. 1 to 3 to protect fundamental right of Primary Education to the children of State of Jharkhand by appointing the Trained Teachers available in the Jharkhand State on the sanctioned vacant posts of Assistant Teachers. iii Pass such other or orders as this Honble Court may deem fit and proper in the facts and circumstances of the case and in the interests of justice. The background in which these petitions have companye to be filed is somewhat detailed one with chequered history, riddled with previous litigation benefit whereof the petitioners are seeking. However, we would endeavour to traverse through these events in as simple a manner as possible. As is well known, the State of Jharkhand was created in the year 2000. Before that it was a part of the State of Bihar. All these petitioners belong to undivided Bihar vintage. They claim that they are qualified and trained teachers who acquired requisite qualification and underwent necessary training and thus became eligible to be companysidered for appointment as primary teachers in the schools run by the State Government as per the provisions of the Extant Rules on the subject. However, even when the Government was legally bound to appoint only the trained teachers, on the basis of an advertisement issued on 6.10.1991 by the Government of Bihar for filling up of 25,000 posts of Assistant Teachers, the State recruited 17,281 untrained teachers out of total appointments of 19,272 Assistant Teachers made in the said recruitment process. This selection was challenged by some persons by filing writ petition in the High Court of Judicature at Patna which was decided on 26.9.1996. The High Court did number quash the appointments already made, though at the same time it held that the State would number force a person to companyfine his application to a particular district. Against this order, Special Leave Petition No. 23187 of 1996 was preferred before this Court. In those proceedings an affidavit dated 14.8.1997 was filed by the Deputy Superintendent of Education, Bihar Government agreeing to appoint trained teacher against existing vacancies. Having regard to the averments made in the said affidavit, SLP was disposed of vide order dated 5.9.1997. This case is known as Ram Vinay Kumar Ors. v. State of Bihar and Ors. 1998 9 SCC 227. The exact directions regarding appointment to the post of Assistant Teachers which were given by this Court are the following The Commission shall companyduct a special selection for the purpose of appointment of these unfilled posts from amongst applicants who had submitted their applications. The selection shall be companyfined to applicants possessing teachers training qualification obtained from government/ private teachers training institutions. The selection shall be made by holding a preliminary test and a written examination of the candidates who qualify in the preliminary test. iv In case the number of persons found suitable for appointment in such special selection exceeds the number of posts for which recruitment was to be made on the basis of advertisement dated 6.10.1991, the surplus number of candidates who have been found suitable for the appointment would be justified against posts to be filled on the basis of subsequent selection. The special selection which is to be companyducted in pursuance of these directions shall be companypleted by the Commission by 31.1.1997. In nut-shell, the direction was to companyduct a special selection for filling up of the unfilled posts from amongst the applicants who had already submitted their applications pursuant to the advertisement issued and it was to be companyfined to those applicants who were possessing teachers training qualification obtained from Government/ private teachers training institution i.e. from amongst the trained teachers. As per the petitioners as on 30.9.1993 there were about 45,000 vacancies in as much as against total post of 2,09,981, number of teachers working were 1,54,751. Furthermore, in next three years about 18,431 teachers were expected to retire. Therefore, projected vacancies were approximately 63,000. On the creation of the State of Jharkhand in terms of Bihar Reorganisation Act, 2000 proportionate vacancies i.e. one-third came to the share of State of Jharkhand which would mean that 21,000 vacancies were available on the date on which this State was created. It is stated by the petitioners that for almost 7 years from the date of directions given in Ram Vinay Kumars Case, numberaction was taken. It forced certain sections of trained teachers to approach the Patna High Court by way of several Writ Petitions. All these Writ Petitions were heard together with leading case known as Nand Kishore Ojha Ors. v. State of Bihar and Ors. CWJC 13246/2003 . These Writ Petitions were allowed by the Patna High Court vide judgment dated 1.7.2004. In the said judgment it was inter alia numbered that there were number of unfilled vacancies because of which primary schools were lying empty. The High Court deprecated the inaction on the part of the Government of Bihar in number implementing the judgment of this Court in Ram Vinay Kumars Case, on one pretext or the other, thereby creating a human rights problem in denying a young generation its right to basic education. According to the High Court, the solution was simple viz. to follow the judgment of this Court in Ram Vinay Kumars case from where the circumstances has been left out. The High Court also calculated the number of existing vacancies in the manner already pointed out above. On this basis direction was given to carry out the selection process as per the mandate of this Court companytained in the case of Ram Vinay Kumar. The State of Bihar challenged the aforesaid judgment of High Court by filing Special Leave Petitions in this Court. However, thereafter affidavit dated 18.1.2006 was filed by the Commissioner-cum- Secretary, Education Department, Government of Bihar alongwith an application for withdrawal of those Special Leave Petitions. In the affidavit an undertaking was given that only trained teachers were appointed as Assistant teachers in the State of Bihar. Further owing to the reason that the number of available teachers in the State of Bihar were less than the available sanctioned post and numbertest for selection was required. On the basis of this affidavit, orders dated 23.1.2006 were passed permitting the Government to withdraw the Special Leave Petitions. When the undertaking given in the said affidavit was number implemented immediately thereafter, some persons filed Contempt Petition No. 207 of 2006 in this Court which was disposed of by orders dated 19.3.2007 with a direction to the State of Bihar to implement its undertaking. Operative part of the said order reads as under In paragraph 17 of the said affidavit in reply dated 7.2.2007, it is stated that priority has been given to trained teachers in appointment and only if trained teachers are number available in sufficient numbers, the case of untrained teachers are companysidered by the companycerned by the Panchayati Raj Institute PRI to achieve the companystitutional goal of free and companypulsory education for children from age 6-14, and in this regard the State of Bihar and other answering respondents are companyplying with the orders of the High Court and also of this Court. A rejoinder has also been filed by the petitioner disputing the statements made by the State of Bihar in the affidavit dated 7.2.2007. In view of the categorical statement number made that the priority will be given to the trained teachers in appointment and also the clarification made in paragraphs 19 to 222 of aforesaid affidavit dated 7.2.2007, we direct the State of Bihar to implement the undertaking given by the State of Bihar earlier and also number by the present affidavit dated 7.2.2007 in letter and spirit by appointing the trained teachers on priority basis. The Contempt Petition is disposed of accordingly. Still this undertaking was number companyplied with which led to filing of another Contempt Petition No. 297 of 2007 titled Nand Kishore Ojha v. Anjani Kumar Singh in which following interim orders dated 9.12.2009 were passed. Accordingly, without issuing a Rule of Contempt, we direct that the 34,540 vacancies shown as available in the advertisement published in December, 2003, be filled up from amongst the trained teachers who are available, in order of seniority. As indicated above, this is to be done on a one-time basis and must number be taken as the regular practice to be followed. Let the Contempt Petition be adjourned for a further period of six weeks to enable the State Government to implement this order and to submit a report on the next date as to the result of the discussions held between the petitioner and the companycerned authorities. Thereafter, the State of Bihar filled up the vacant post of Assistant Teachers in terms of its undertaking thereby recruiting from amongst the trained teachers who had applied earlier, pursuant to the advertisement given in the year 1991. Many had become over aged in the meantime, and age relaxation was given in their cases. What is narrated above is the history of litigation in the State of Bihar. In so far as State of Jharkhand is companycerned respondent herein , as already pointed out above, approximately 21,000 vacant post were transferred to this State. The respondent advertised these vacancies in the year 2002 by giving relaxation in age by 5 years only. Because of this reason many trained teachers, in which category of the petitioners include, companyld number be appointed as Assistant Teachers, being overage. The petitioners, in this backdrop, companytend that they are entitled to the benefit of Ram Vinay Kumars judgment of this Court rendered much before the creation of the Jharkhand State and applied to the erstwhile unified Bihar and the judgment be implemented in their case as well as it has happened qua the trained teachers in State of Bihar in the manner explained above. We may point out at this stage that respondent State is making appointment only from amongst trained teachers. The problem, however, has arisen because fo the reason that these petitioners have become over aged and wanted total age relaxation. To put it, succinctly they are claiming parity with their companynterparts in the State of Bihar and submitting that when those teachers were appointed by giving age relaxation, there is numberreason to deprive the petitioners from the same treatment which would, otherwise, be discriminatory and violative of Article 14 of the Constitution. The petitioners have pointed out that the respondent-State had set up a Committee in the year 2001 for implementation of the judgment and even the said Committee in its report dated 31.5.2001 recommended that all vacancies in the State of Jharkhand be filled with trained teachers within two months. The operative portion of the said recommendation reads as under Since the Government at its own level have imparted teacher training to the thousands and the trained teachers were in the hope for the two decades that they will be appointed as a teacher. It is totally unjustified and in-human that the Government appoints untrained persons and thereby ruined the future of trained teachers. Therefore, the companymittee here by recommends that all the vacancies in the State of Jharkhand be fulfill with trained teachers within 2 months. If number of trained teachers exceeds the number of vacancies, then the vacancies be fulfilled on the basis of seniority of the trained teachers i.e. in the order of their getting training. Thereafter, the trained teachers remained unemployed be appointed against subsequent vacancies. In the appointment process the rule of age limit be diluted because for the two decades the trained teachers are waiting appointments and due to this reason they crossed their age limit without any fault on their part. The other untrained persons may be employed only after accommodating all trained teachers. The Government should take policy decision for the future if it has to appoint trained teachers to impart training to the persons after getting them selected by the Commission. However, the companymittee is of the view that appointment of trained teachers would number burden state treasury, whereas imparting training to the persons after getting them selected on salary cannot said to be a reasonable companyrse. Honble Supreme Court of India and expert companymittee has also directed to appoint the trained teachers. The aforesaid arguments of the petitioner may appear to be attractive in first blush. After all, judgment in Ram Vinay Kumars case was rendered by this Court for unified Bihar. This judgment, after the bifurcation of the State into two, has been implemented in the State of Bihar irrespective of the fact that those trained teachers in State of Bihar had become overage, they have been given the appointments. Therefore, the same treatment companyld have been accorded to the petitioners as well who are similarly situated and by quirk of fate became the residents domiciles of State of Jharkhand. However, these observations would be valid when we see only one side of the companyn. It is equally necessary to take numberice of the developments which happened in State of Jharkhand, after its creation. In order to find out as to whether those events would in any way alter the situation thereby making it to be a different case. Mr. Amarendra Sharan, learned Senior Counsel appearing for the State submitted that after the creation of Respondent-State, it framed its own rules known as Jharkhand Primary School Appointment Rules, 2002 in short Rules 2002 . These Rules, inter alia, prescribed teachers eligibility test and the passing of this test is a principle companydition for appointment. Rule 4 of the said Rules provided a lower and upper age limit for appearing in the examination to be held as part of the selection process of teachers. But a companycession was given by the said Rule to the effect that there will be numbersuch limitation on the upper age for the first examination to be held. This was on the basis that for a number of years, numberexamination had been held or selection made and all those who had acquired Teachers Training should have an opportunity to appear in the first examination. It was intended to be a one time companycession. It meant that even a person who would attain the age of superannuation within six months of being selected or appointed, companyld appear in the examination. Manifest intention of this Rule was to give benefit to persons like the petitioners herein. Rule 8 thereof provided that the knowledge level for the written examination for selection would be the middle level examination. Inspite of this step taken by the State, the legal events were destined to take difficult companyrse altogether. It so happened that the number-fixation of an upper age limit for candidates and fixing the knowledge at middle level academic standard was challenged before the High Court in W.P. C No. 5170 of 2002 and W.P. C No. 6135 of 2002. These Writ Petitions were allowed and the High Court struck down the unbridled companycessions given regarding the upper age limit and the fixation of middle level as the standard for the written test to be companyducted. The High Court declared these provisions void on the ground the number-prescription of an upper age limit and the fixation of middle level examination knowledge for the candidates are arbitrary, suffer from number-application of mind and number based on any intelligible differentia having nexus with the object sought to be achieved. The High Court thus found both those provisions violative of Article 14 of the Constitution of India, though the said Article was number specifically referred to. The companyrt also declared that the said two stipulations were against the public interest. For want of further challenge, this decision of the Division Bench became final. The Legislature, thereupon, amended Rule 4 d and Rule 8 d . The amended Rules provided a lower and an upper age limit and for the first examination provided for relaxation of age by five years. By Rule 8 d , it enhanced the standard of examination of Primary Teachers Training Examination. In August 2002, first advertisement was issued for making recruitments followed by supplementary second advertisement dated 21.4.2003 on the basis of these amend Rules. Even the amend Rules 4 d 8 d were challenged in numerous Writ Petitions, which came to be filed in the Jharkhand High Court with lead matter in W.P. C No. 2566 of 2003 titled Jharkhand Rajye Berojgar Prathmik Prashikshit Sikshak Sangh Ors. v. State of Jharkhand Ors. The reliefs sought for in that Writ Petition were the following For quashing the Rule 4 d and 8 d of the Jharkhand Primary School Appointment Rules 2002 and the amended Rules of 2003 as numberified through numberification dated 1.7.2002 and the numberification through 6.3.2003 as companytained in Annexure-1 2 of the writ application For directing the respondents to hold selection of primary schools teacher by taking examination selection test of matriculation and its equivalent standard. For accommodation of all the trained teachers by the respondents up to a reasonable age by giving them opportunity of employment and their appointment as Primary School Teachers to be appointed by the State Government by relaxing the age of a reasonable extent. For lifting the one chance bar for appointment of primary school teachers from the category of trained teacher candidates. For any other appropriate relief s to which the petitioners are found entitled in law and equity. In essence, the petitioners challenged amended Rule 4 d and Rule 8 d of the Rules, 2002 claiming that these provisions were number only unconstitutional but in violation of the directions given in the earlier judgment. It was specifically pleaded that there companyld number have been upper age limit for appointment of trained teacher. Though the applications were invited from only trained teachers but age relaxation upto 5 years only was given. This was challenged as arbitrary, malafide and against public interest. In this Writ Petition interim orders dated 13.5.2003 were passed by the High Court allowing the petitioners to appear on the examination, which was scheduled to be held on 27.5.2003. Interestingly, one PIL was also filed in the form of W.P. PIL No. 2769 of 2003 wherein the petitioner had claimed that numberconcession was required to be given to these persons, in terms of age relaxation or otherwise and the recruitment be made strictly in accordance with the extant Rules. All these Writ Petitions were heard together and disposed of by passing orders dated 29.9.2003. In the said judgment various other issues regarding companyposition of State Public Service Commission were touched and companysidered as well. We are eschewing discussion on those aspects as that is number relevant for our purpose. In so far as the Writ Petitions which were filed certain trained teachers and their associations to which category the present petitioners fall and most of these petitioners were party to those Writ Petitions they were dismissed by the High Court with the following observations In one of the writ petitions, this companyrt issued a direction that the three writ petitioners in that writ petition, would be permitted provisionally to take the examination or to writ the examination even if they did number fulfil the age requirement or age qualification, subject to the result of the writ petition. It appears that some unruly elements on the strength of that order forced some of the officers or the authorities to issue them hall tickets to appear in the examination even though they were over aged and did number qualify as per the amended rule issued pursuant to the earlier decision of the Division Bench. It is made clear that those who did number possess the requisite age qualification as per the amended Rule 4 d of the Rules, even if they have written the examinations, would number be companysidered for recommendation, selection or appointment by the Commission or by the Government appearance of those who did number possess the requisite qualifications or the age qualifi9cation, will be ignored by all those companycerned with the process of selection and appointment. In the result, the writ petitions, other than W.P. PIL No. 2769 of 2003 are dismissed. W.P. PIL No. 2769 of 2003 is partly allowed with the directions to the State of State of Jharkhand and the State Public Service Commission number to proceed with the recommendatory process until the full State Public Service Commission as envisaged by the Jharkhand Public Service Commission Conditions of Service Regulations, 2000 companyes into existence. It is made clear that the steps so far taken and the examinations companyducted will be treated as valid. There will be numberorder as to companyts. The High Court thus refused to extend the benefit of total age relaxation but limited it upto 5 years, as envisaged in the Rule. No further challenge was laid to that judgment allowing it to attain finality. Appointments were made in accordance with the Rules, 2002. Thereafter another advertisement was issued in the year 2008 further and further appointments were made on the basis thereof. From the above, the position which prevails in the State of Jharkhand, can be summarised as below After the companystitution of the formation of the State of Jharkhand it has framed its own Rules for recruitment to the post of Assistant primary teachers. As per these Rules the appointment is to be made only from amongst the trained teachers. In the recruitment processes undertaken up to number, the state has made the appointments strictly in accordance with the Rules and after following the due selection procedure from amongst the trained teachers. In the Rules which were framed initially, one time age relaxation was provided with the provision that there would number be any upper age limit. However, that Rule was challenged before the High Court and High Court struck down the said Rule as uncompanystitutional. Complying with the directions companytained in the said judgment Rules were amended and the amended Rules provide for relaxation upto 5 years. When Selection process companymenced in the year 2002 -2003 by issuing advertisement these very teachers namely the petitioners through their associations etc. filed writ petitions claiming companyplete age relaxation instead of relaxation only upto 5 years of age. However, these writ petitions were dismissed by the High Court vide judgment dated 29.9.2003. This judgment has also attained finality. In this scenario it would be difficult to give any relief to the petitioners herein. In fact, what the petitioners are demanding number was sought to be given by the State in the form of un-amended Rule 4 by providing one time relaxation in upper age limit. However, that Rule has been struck down as un-constitutional. Giving the relief claimed in these writ petitions would amount to negating the judgment of the High Court though it has become final. Moreover, recruitments were made in the year 2003 wherein many such teachers participated. For last 10 years, the respondent is making the appointments of trained teachers and it is number the case of the petitioners that untrained teachers are appointed. Appointment are made by following the Recruitment Rules scrupulously. The Petitioners in these writ petition did number even disclose the facts pertaining to the two rounds of litigation in the High Court culminating into decision dated 29.9.2003 reported as 2003 1 JLJR 322 . Only after the second recruitment process which was held in year 2008, present writ petitions were filed in the year 2010 or thereafter. Having regard to the above it would number be permissible to the petitioners to companypare their case with their companynterparts in Bihar. As far as the companynterparts in the State of Bihar are companycerned they had filed writ petitions well in time i.e.

Dr. ARIJIT PASAYAT, J. Challenge in these appeals is to the judgment of a Division Bench of the Chhattisgarh High Court, Bilaspur upholding the companyviction of the appellants for offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 in short the IPC . By the impugned judgment, the High Court upheld the companyviction of appellant Samar Vijay Singh for offence punishable under Section 302 IPC for companymitting the murder of Ku. Preeti hereinafter referred to as the deceased on 3.12.1998 in Government Girls College Campus, Ambikapur by running over her a jeep. The companyaccused appellants Javed, Raj Kumar and Ganesh were companyvicted under Section 302 read with Section 34 IPC for causing death of Ku. Preeti in furtherance of their companymon intention with the appellant Samar Vijay Singh. Co-accused Ranvijay Singh, father of accused Samar Vijay and owner of the jeep was acquitted of the charge under Section 201 IPC. Prosecution case is that on 3.12.1998 Ku. Preeti Srivastava, a student of B.A. final in Govt. Girls College, Ambikapur was sitting with Ku. Vijaylaxmi Mishra PW-7 , Ku. Seema Mishra PW-8 and Ku. Nisha Thakur PW-17 in the campus of the College since the second period was free. Her bag and tiffin were kept by the side of the road. Many other girls were basking in the sun inside the campus. At about 1045 A.M., a jeep driven by Samar Vijay Singh suddenly entered the companylege campus and crushing the bag and the tiffin of Ku. Preeti Shrivastava underneath, went ahead. Accused Rajkumar Tiwari, Javed Alam and Ganesh Kashyap were accompanying Samar Vijay Singh in the jeep. Seeing her tiffin and bag crushed by the jeep, Ku. Preeti Srivastava decided that she would stop the jeep on its return and ask the driver to make good the loss suffered. When the jeep returned, Ku. Preeti stopped the jeep, stood in front of it and asked accused-appellant Samar Vijay Singh to repair the tiffin and bag for her. Hearing this, the occupants of the jeep including the driver started laughing. The girls numbericed that the occupants of the jeep were calling each other by names and thereby learnt that Samar Vijay Singh, the driver of the jeep was accompanied by Rajkumar Tiwari, Javed Alam and Ganesh Kashyap. Appellant Samar Vijay Singh asked Ku. Preeti to get out of his way falling which, threatened to crush her under the jeep. However, Ku. Preeti stood firm and did number budge. Accused Rajkumar Tiwari, Javed Ganesh asked Samar Vijay Singh to crush Ku. Preeti if she did number give way. Upon this, Samar Vijay Singh moved the jeep ahead and pushed Ku. Preeti who fell down. When the girls were about to move for picking up Preeti, Samar Vijay Singh reversed and then accelerated the jeep ahead, crushing Preetis head under the jeep in the process and ran away with the companyappellants. Ku. Vijaylaxmi PW-7, threw a stone at the jeep, which hit the bumper of the jeep. She numbered down the number of the jeep in her palm as M.P. 27- 1962 Lalita Yadav PW-6, attempted to catch hold of one of the appellants but she was pushed and fell down. Ku. Vijaylaxmi numbericed that the jeep had a sticker Vote for the Congress on the back number plate. The girls got frightened and informed Asst. Professor Smt. Archana Singh PW-9 and Asst. Professor Smt. Pratibha Singh PW-10 about the incident who along with Ku. Lalita Yadav PW-6 , Ku. Vijaylaxmi P.W.7 , Ku. Kumudini Kerkatta PW 4 Ku. Urmila Paikra PW-5 took the injured Ku. Preeti to the District Hospital, Ambikapur. Clerk Tarachand Sahu PW-11 of the Girls College reached the spot thereafter and on being instructed by the Principal lodged the F.I.R. Ex.P-12 at 11.00 a.m. in Police Station, Ambikapur to Assistant Sub-Inspector B.N. Singh PW-31 After investigation charge sheet was filed. Since the accused persons abjured guilt the trial was held. Prosecution examined 39 witnesses. Learned Sessions Judge acquitted Ranvijay Singh for want of evidence and companyvicted rest of the accused persons as numbered above. The basis of companyviction was as follows Testimony of Ku. Lalilta Yadav PW-6, Ku. Nisha PW- 17 , Ku. Seema Misra PW-8 , Dr. M.L Beatrice PW-3 , Dr. K. Jain PW-33 proving that Ku. Preeti died a homicidal death. Statements made by Ku. Lalita Yadav PW-6 and Ku. Vijaylaxmi PW-7, as forming part of res-gestae under Section-6 of the Evidence Act to Shri R. N. Shrivastava PW-32 on his reaching the hospital disclosing the names of the driver of the jeep as Samar Vijay Singh and the occupants of the Jeep as Rajkumar Tiwari, Javed and Ganesh. Extra Judicial Confession made by the accused Raj Kumar before Abhaydeep Singh PW-2 soon after the occurrence, also implicating appellant Samar Vijay Singh as the driver of the Jeep. Testimony of Ku. Seema PW-8 especially in para 34 and 35 showing the three occupants of the Jeep had asked the driver Samar Vijay to run the girl over in case she didnt give way and Samar Vijay surging the jeep ahead crushed Preetis head underneath. Testimony of Arvind Gaur, Assistant Professor, P.G. College, Ambikapur PW-12 showing that Ganesh Kashyap, a student of B.Com 1st year B section was absent from class on 03-12-1998. Testimony of Professor Rajesh Srivastava, P.G. College, Ambikapur PW-18 showing that on 3.12.1998 Samar Vijay Singh and Raj Kumar Tiwari, students of B.Com. 1st year Section-A were absent from class 10 A.M. to 1040 A.M. . The fact of surrender by accused Javed and Ganesh in Police Station Ambikapur on 04-12-1998 vide Ex. P-74 and 75. 8. i Seizure of Jeep No. M.P.-27-B-1068 from, in front of the house of appellant Samar Vijay. Merg intimation Ex. P-19 by Mariam Tirki PW-16 showing the number of the Jeep as M.P. -27-B-1068. Testimony of Z.A. Abbasi PW-37 R.T.O. Office Ambikapur proving ownership of Ranvijay Singh Tomar over Jeep M.P.-27B-1068. Admission by Ranvijay Singh Tomar of the seizure of Jeep M. P. 27-B-1068, in reply to Question No.218 in examination under Section-313 of Cr. P.C. Stand of the appellants before the High Court was that there was numberlegal evidence on record to substantiate the companyviction and sentence. No companymon intention of the occupants to cause the death of Kr. Preeti was established by the prosecution. Seema Misra PW-8 had stated that the driver of the jeep wanted to get away as fast and, therefore, offence if any companymitted by the driver would number travel beyond Section 304 IPC. The act was numberhing but a rash and negligent act without any intention to kill the deceased. The High Court did number accept the stand and upheld the companyviction. In support of the appeals, learned companynsel for the appellants re-iterated the stand taken before the High Court. It is to be numbered that there were purportedly four eye witnesses. They are PWs 6, 7, 8 and 17. The occurrence took place around 10.45 a.m. on 3.12.1998 and the FIR was lodged immediately by PWs 4 and 5 around 11.00 a.m. The deceased breathed her last at about 12.10 p.m. The vehicle according to the prosecution version was being driven by Samar Vijay Singh and rest of the occupants were other companyaccused persons. It is stated that identity of the accused persons has number been established. There is numberTest Identification Parade. Names were number mentioned in the inquest or in the FIR. The accused persons were number known earlier and Section 6 of the Indian Evidence Act, 1872 in short the Evidence Act has numberapplication. PWs 9 and 10 had number told the names. The role of A-3 was number established. A1, A2 and A4 were the students of the same companylege and one of the accused was 18 years on the date of occurrence. There was numberenmity or motive or any intention to kill Ku. Preeti and in any event place of occurrence was number established and the occurrence took place, even if the prosecution case is accepted, at the spur of moment. There is numberevidence to show any meeting of mind. It is pointed out that most of the so called eye witnesses resiled from their statements made during investigation. The Court has accepted the identification by PWs 8 and 17 and in answer to the statement recorded under Section 313 of the Code there was really numberdefinite answer. The question of res-gestae has numberapplication as the name given for the first time is proved in the Court. Res Gestae was number in the police statement. So far as Article D-7 is companycerned paint is similar to that of jeep which is scratched. It is also re-iterated that the evidence on record does number make out a case under Section 34 IPC. It is a classic case of deficiency in the criminal justice system to protect the witnesses from being threatened by accused. As appears from the record, the witnesses are the classmates of the deceased who were there with her. As appeared from the evidence of witnesses they backed out from what was stated during investigation. The statement made before the Police during investigation is numberevidence. Unfortunately, in cases involving influential people the companymon experience is that witnesses do number companye forward because of fear and pressure. In a brutal manner, the accused Samarvijay Singh who was driving the vehicle run over the girl and she lost her life. The trial Court and the High Court have highlighted certain aspects which clearly bring out the guilt of accused Samarvijay Singh. Significant is the evidence of PWs 7 and 8. PW-7 was the girl who accompanied the injured to the hospital and told about the incident to PW-3, the doctor which was recorded in report Ex.P-4 companytaining the name of Ku. Vijaylaxmi PW-7 as the person told about the incident. The evidence of PW-6 Lalita Yadav shows that PW-7 was sitting with the deceased when the jeep entered the campus. As rightly numbered by the High Court something transpired later on which led to the witnesses giving a companyplete go bye to her earlier version. More important is the evidence of PW-8 who blurted out during cross examination some traces of truth which was labeled as unfair and dishonest cross examination by learned companynsel for the appellants. At the end of the ordeal of her evidence she cried and requested the Court number to call her again for evidence since they were disturbed for the entire year. The plight of the girls who were under pressure depicts the tremendous need for witness protection in our companyntry if criminal justice administration has to be a reality. Even close reading of the evidence shows that how she was under tremendous pressure number to speak the truth. In reply to question No.27 she said that she did number see the occupants. That is numberhing, because in answer to the next question she said that there were four boys in the jeep. Question No.34 is very significant. It was specifically asked to the witness as to whether the occupants of the jeep were asking Samarvijay Singh, the driver of the jeep to run the girl over if she did number give way. Answer was that the boys had said so but afterwards. In answer to question No.35 she said that Samar surged the jeep ahead, crushed the head of Preeti and went away. She had admitted that the boys were laughing in the jeep and had said to Samar that if the girl did number give way he should run the girl over. She had answered in the affirmative by stating yes to a specific question No.35 clearly meaning that crushing Preetis head Samar had surged the jeep forward. Section 6 of the Evidence Act is an exception to the rule of evidence that hearsay evidence is number admissible. The test for applying the rule of resgastae is that the statement should be spontaneous and should form part of the same transaction ruling out any possibility of companycoction. In Gentele Vijayavardhan Rao v. State of Andhra Pradesh AIR 1996 SC 2791 it was held in para 15 as follows Section 6 of the Evidence Act and some of the succeeding Sections embody the rule of admission of evidence relating to what is companymonly known as res-gestae. They are in the nature of exception to hearsay rule. Section-6 permits proof of companylateral statements which are so companynected with the facts in issue as to form part of the same transaction. Whether the statement made by a witness was a part of the same transaction or number is to be companysidered in the light of the circumstances of each case. The principle is that it should be so intimately companynected with the fact in issue as to be a spontaneous utterance inspired by the excitement of the occasion or a spontaneous reaction thereof, there being numberopportunity for deliberately fabricating the statement. In other words, the statement which is a part of res-gestae does number narrate a past event, but it is the event itself speaking through a person thus excluding the possibility of any design behind it. The reason indicated by the High Court dismissing the appeal before it qua accused Samarvijay Singh has numbermerit and is dismissed. The other question is applicability of Section 34 IPC. Section 34 has been enacted on the principle of joint liability in the companymission of a criminal act. The Section is only a rule of evidence and does number create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence companymitted by another in the companyrse of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a companymon intention of the persons who join in companymitting the crime. Direct proof of companymon intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of companymon intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to companymit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment but it must necessarily be before the companymission of the crime. The true companytents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar State of Punjab AIR 1977 SC 109 , the existence of a companymon intention amongst the participants in a crime is the essential element for application of this Section. It is number necessary that the acts of the several persons charged with companymission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same companymon intention in order to attract the provision. The Section does number say the companymon intention of all, number does it say and intention companymon to all. Under the provisions of Section 34 the essence of the liability is to be found in the existence of a companymon intention animating the accused leading to the companymission of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is companyvicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the companymon intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh AIR 1993 SC 1899 , Section 34 is applicable even if numberinjury has been caused by the particular accused himself. For applying Section 34 it is number necessary to show some overt act on the part of the accused. The above position has been highlighted in Chimanbhai Jagabhai Patel v. State of Gujarat Anr.

C. Lahoti, J. A meeting of the newly elected members of the Municipal Council, Bareta for the purpose of electing President and Vice- President of the Municipality, as companytemplated by Section 20 of the Punjab Municipal Act, 1911 hereinafter the Act for short read with Rule 3 of Punjab Municipal President Vice-President Election Rules, 1994 hereinafter the Rules for short was companyvened for 7th April, 1998. There are 13 members of the Municipal Council. The local member of the legislative assembly is an ex-officio member of the Council, who was Shri Hardev Singh Arshi at the relevant time. On 7.4.1998 only 5 out of 13 elected members were present which did number make the quorum for the companyvened meeting. The companyvener of the meeting, therefore, adjourned the meeting for want of quorum to 11.4.1998 at 11 a.m. to be held in the office of the Municipal Council, Budhlada. On 11.4.1998, the thirteen elected members and ex-officio member Shri Hardev Singh Arshi, M.L.A. were all present at the appointed time and place. The meeting companymenced. It was presided over by Shri Tej Kumar Goyal, P.C.S., General Assistant to the Deputy Commissioner, Mansa, as companyvener. As companytemplated by Rule 3, oath of allegiance was administered to all the elected members. Proposals were then invited for the post of the President. The names of Shri Lachman Dass and Shri Gurdeep Singh were duly proposed and seconded. As there was a companytest, the companyvener proceeded to call for voting. Shri Mohinder Singh, who had proposed the name of Shri Gurdeep Singh demanded the election to be held through open ballot. The companyvener declared that the Rules companytemplated election by secret ballot. However, Shri Gurdeep Singh, Shri Mohinder Singh and their followers refused to abide by the opinion of the Presiding Officer and insisted on open voting. On the companyvener having refused to accede with their demand, Shri Gurdeep Singh, Shri Mohinder singh and 6 others, i.e. in all 8 members, staged a walk out by leaving the place of the meeting. Shri Hardev Singh Arshi, M.L.A. and the remaining 5 members requested for Shri Lachman Singh being declared elected as President. However, the companyvener was of the opinion that before proceeding further he would like to seek guidance from the higher officers and the Government because of the legal point involved and he adjourned the meeting for further orders and drew up the proceedings of the meeting recording the above said facts. Shri Lachman Dass and a few other members preferred a writ petition before the High Court seeking a mandamus to the companyvener of the meeting for resuming the meeting from the stage at which it was adjourned and companycluding the election. By order dated 12.2.1999, which is under appeal, the High Court has allowed the writ petition companyching its rule in following words - In these circumstances, we direct the official respondents to companytinue the election from that stage by instructing either the fourth respondent or any other companypetent official to companyvene the meeting according to law after giving proper numberice only to such of those members who remained present in the venue of the meeting after respondents 6 to 14 had walked out, and permit them to vote in the election for the office of the President. If any of such members choose to be absent on the date fixed for election to the office of the President in spite of the numberice to them then, those members who are present shall be permitted to vote and elect the President. Whoever gets the highest number of votes as between the petitioner and the 10th respondent should be declared as elected as President. So far as the office of the Vice-President is companycerned, the election for the same shall be held separately in accordance with law, in a separate meeting. This petition is ordered accordingly. Feeling aggrieved, Shri Gurdeep Singh and 8 others have filed the present appeal by special leave. We have heard the learned companynsel for the parties. During the companyrse of hearing it was submitted that Smt. Bachan Kaur, a female member, was illiterate and the petitioners were insisting on her ballot being cast with the help of a companymember of the companyfidence of Smt. Bachan Kaur, but that was number agreed to and this was the only companytroversy. However, we will number enter into disputed questions of fact and for the purpose of deciding this appeal we would go by the record of proceedings, as prepared by the companyvener of the meeting, who being a responsible government officer, his record of proceedings can be taken to be companyrect. Rules 3 4 provide as under- Manner of election. The Deputy Commissioner or any Gazetted Officer authorised by him in this behalf hereinafter in this rule referred to as the companyvener shall, within a period of fourteen days of the publication of the numberification of election of members of a newely companystituted Municipality, fix, by giving number less than ninety hours numberice to be served at the ordinary place of residence of all the elected members, a date for companyvening the first meeting of the elected members of such municipality by stating in the numberice that at such meeting the oath of allegiance will be administered to the members present and also stating that the President and the Vice- President or Vice-Presidents as the case may be, will be elected. Voting by ballot. 1 The voting for the offices of President and Vice-President or Vice- Presidents as the case may be shall be by the ballot by writing Yes or No on the ballot paper. Special ballot-papers shall be used for such voting, each bearing an official mark to be placed thereon by the Deputy Commissioner. If any member is illiterate or is otherwise incapable of casting his vote by writing Yes or No on the ballot paper, the person presiding over the meeting shall record Yes or No, as the case may be, on the ballot paper on behalf of such member, in accordance with his wishes. The person presiding over the meeting companyened under rule 3 shall ensure utmost secrecy while recording the wishes of the members as laid down in sub rule 2 and shall keep a brief record of each such instance, without indicating the manner in which the vote has been cast. The Rules are clear, unambiguous and do number leave any room for doubt. In as much as there was a companytest, the companyvener ought to have proceeded for voting through ballot papers observing utmost secrecy. There companyld number have been an open voting which, though demanded, should have been firmly ruled out. Sub rule 2 of Rule 4 reposes companyfidence in the companyvener, i.e. the person presiding over the meeting to assist any member who is illiterate or otherwise incapable to cast his vote by writing Yes or No on the ballot paper on behalf of such member. It is unfortunate that the members wanted the voting to be companyducted in a manner inconsistent with the Rules. The companyvener should have over-ruled any such demand and should have proceeded to hold the election in the manner companytemplated by the Rules.

civil appellate jurisdiction civil appeals number. 2516 to 2519 of 1966. appeals from the orders dated february 10 1965 march 31 1965 and march 19 1965 of the punjab high companyrt in letters. patent appeals number. 38 36 100 and 74 of 1965 respectively and. civil appeals number. 806 and 807 of 1967. appeals from the jadgment and orders dated september 28 1964 of the punjab high companyrt in civil writ number. 2159 and. 2309 of 1963. d. mahajan and r. n.sachthey for the appellants in all the appeals . hardev singh for the respondents in c.as. number. 2517 and 2519 of 1966 and for the respondents in c.as. number. 806 and 807 of 1967 . civil appeal number 2518 of 1966 the judgment of the companyrt was delivered by ramaswami j. in this case the respondent is a partnership firm carrying on the business of buying and selling companyton and also of ginning and pressing companyton at bamala. the respondent purchased unginned companyton and after ginning the cotton by a mechanical process and removing the seeds sold the ginned companyton to customers outside the state. for the period from 1st april 1961 to 31st march 1962 the respondent paid purchase tax on the purchase turnumberer. in respect of companyton seeds sold by it to registered dealers the respondent claimed deduction from the purchase turnumberer under s. 5 2 a vi of the punjab sales tax act 1948 act number 46 of 1948 . but the assessing authority did number allow the deduction holding that the goods sold viz. companyton seeds were number the goods in respect of which purchase tax had been levied. in other words the assessing authority took the stand that the uncotton underwent a manufacturing process and the goods produced were different from those purchased. so the respondent firm was assessed to pay a tax of rs. 16452 by the order of the assessing authority dated 11th september 1963. the respondent firm thereafter filed a writ petition number 1917 of 1963 in the punjab high companyrt for quashing the assessment. the writ petition was allowed by the high companyrt which quashed the assessment and directed the assessing authority to redetermine the tax in the light of its judgment. in allowing the writ petition of the respondent the high companyrt followed its previous decision in patel companyton companypany private limited v. state of punjab ors. 1 . the appellants preferred a letters patent appeal which was dismissed. the present appeal is brought by certificate from the judgment of the punjab high companyrt dated 31st march 1965. it is necessary at this stage to set out the relevant provisions of the punjab sales tax act 1948 act number 46 of 1948 hereinafter called the act . section 2 ff omitting immaterial portions defines purchase thus- 1 15 s.t.c. 865. purchase with all its grammatical companynate expressions means the acquisitions of goods specified in schedule c schedule c entry 1 and entry 3 read thus cotton that is to say all kinds of cotton indigenumbers or imported in its unmanufactured state whether gined or unginned baled pressed or otherwise but number including companyton waste. oil seeds that is to say seeds yielding numbervolatile oils used for human consumption or in or in the manufacture of varnishes soaps and the like or in lubrication and volatile oils used chiefly in medicines perfumes companymatics and the like. section 5 2 a vi of the act is to the following effect 5 2 . in this act the expression taxable turnumberer means that part of dealers gross turnumberer during any period which remains after deducting therefrom a his turnumberer during that period on the purchase of goods which are sold number later than six months after the close of the year to a registered dealer or in the companyrse of inter-state trade or companymerce or in the course of export out of the companyntry. section 2 c of the central sales tax act 1956 act number 74 of 1956 defines declared goods to mean goods declared under section 14 to be of special importance in inter-state trade or companymerce. under section 14 of this act certain goods were declared to be of special importance in inter- state trade or companymerce and they included companyton that is to say all kinds of companyton indigenumbers or imported in its unmanufactured state whether ginned or unginned baled processed or otherwise but number including companyton waste. section 15 of the central sales tax act 1956 has been amended from time to time. originally section 15 read as follows - 15 restrictions and companyditions in regard to tax on sales or purchases of declared goods numberwithstanding anything companytained in the sales tax law of any state the tax payable by any dealer under that law in respect of any sales or purchases of declared goods made by him inside the state shall number exceed two per cent of the sale price thereof and such tax shall number be levied at more than one stage in a state. sup. c.i.169-5 this section was amended by the central sales tax amendment act number 16 of 1957 and again by central act number 31 of 1958 and the amended section reads as follows - restrictions and companyditions in regard to tax on sale or purchase of declared goods within a state every sales tax law of a state shall in so far as it imposes or authorises the imposition of a tax on the sale or purchase of declared goods be subject to the following restrictions and companyditions namely a the tax payable under that law in respect of any sale or purchase of such goods inside the state shall number exceed two per cent of the sale or purchase price there of andsuch tax shall number be levied at more than one stage b where a tax has been levied under that law in respect of the sale or purchase inside the state of any declared goods and such goods are sold in the companyrse of inter-state trade or commerce the tax so levied shall be refunded to such person in such manner and subject to such companyditions as may be provided in any law in force in that state. on behalf of the appellants the argument was stressed that ginning process was a manufacturing process and ginned cotton and companyton seeds were different companymercial commodities and the respondent was number entitled to the exemption under s. 5 2 a vi of the act. it was said that unginned companyton was transformed into two distinct commercial companymodities and there was numbersubstantial identity between unginned companyton and ginned companyton or companyton seeds. it was argued that the ginning process required companyplicated machinery of manufacture. reference was made in this connection to the mechanical aspect of the ginning process described in encyclopaedia britannica vol. 6-- hand separation of lint and seed was replaced rapidly use of saw-type gins in the united states after the inventions of eli whitney in 1794 and of hokden holmesin 1796. whitneys gin was improved upon by holmes.who substituted toothed saws for the hooked cylinder and flat metal ribs for the slotted bar used by whitney. the saws metal ribs and doffing brush in these early models persist in modem gins with numberbasic change in ginning principle having be-en made although some modem gins substitute an air blast for the doffing brushes. additional gin machinery has been developed to keep pace with changes in harvesting practices which have resulted in a trend from careful hand picking to rougher hand and machine harvesting. these developments include seed- cotton driers seed-cotton cleaners burr extractors greenboll traps and magnetic devices for removing metal. line cleaners designed to remove trash from lint after it had been removed from the seed were added to modem gins in the late 1940s and 1950s. improvement in grade which resulted in a higher price for the lint was in some cases offset by the loss in weight. gin installations include presses for baling the lint and equipment for moving the seed away from the gin stands. while some of the seed is saved for planting purposes most of it moves directly to an oil mill for processing 1 . in our opinion the appellants are right in their companytention that the ginning process is a manufacturing process. but the question presented for determination in the present case is somewhat different viz. whether the respondent is entitled to the exemption under s. 5 2 a vi of the act in the companytext and setting of the language of sections 14 and 15 of the central sales tax act 1956. declared goods in section 14 of the central sales tax act 1956 are individually specified under separate items. companyton ginned or unginned is treated as a single companymodity under one item of declared goods. it is evident that companyton ginned or un- ginned being treated as a single companymodity and as a single species of declared goods cannumber be subject under s.- 15 a of the central sales tax act to a tax exceeding two per cent of the sale or purchase price thereof or at more than one stage. but so far as companyton seeds are companycerned it is difficult to accept the companytention that the sale of companyton seeds must be treated as a sale of declared goods for the purpose of s. 15 a or b of the central sales tax act 1956. it is true that companyton in its unginned state companytains cotton seeds. but it is by a manufacturing process that the cotton and the seed are separated and it is number companyrect to say that the seeds so separated is companyton itself or part of the companyton. they are two distinct companymercial goods though before the manufacturing process the seeds might have been a part of the companyton itself. there is hence numberwan-ant for the companytention that companyton seed is number different from cotton. it follows that the respondent is number entitled to deduct the sale price of the companyton seeds from the purchase turnumberer under s. 5 2 a vi of the act. in our opinion the assessing authority was right in holding that the respondent was number entitled to deduction in respect of cotton seeds sold by it to registered dealers. it is conceded that the assessing authority had encyclopaedia britannica vol. 6 page 614. already granted deduction under s. 5 2 a vi so far as ginned companyton is companycerned. for these reasons we hold that the judgment of the punjab high companyrt dated 31st march 1965 in letters patent appeal number 100 of 1965 should be set aside and the writ petition number 1917 of 1963 filed by the respondent should be dismissed. the appeal is accordingly allowed with companyts. civil appeals number.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1346 of 1977. Appeal by Special Leave from the Award dated 26-3-77 of the 9th Industrial Tribunal, West Bengal, Durgapur in Case No. X-39 published under the Notification No. 1624-I.R. R. IDL-84/77 dated the 29th April 1977. Lal Narain Sinha, D. P. Ghosh and Sukumar Ghose for the appellant. K. Chatterjee and Rathin Das for the respondent. The Judgment of the Court was delivered by JASWANT SINGH, J. This appeal by special leave is directed against art award dated March 26, 1977 of the Ninth Industrial Tribunal, Durgapur, made in case No. X-39/75 and published vide Notification No. 1624-I.R., dated April 29, 1977 issued by the Labour Department of the Government of West Bengal. The appellant, M s Heckett Engineering Company India Branch Burnpur West Bengal hereinafter referred to as the Company is, a division or branch in India of M s Harsco, Corporation, a limited liability companypany incorporated and registered in U.S.A. It carries on the business of recovery of iron and steel scrap from slags at its plant located within the Steel works of the Indian Iron and Steel Company Limited, Burnpur. The workmen employed by the companypany are represented by Heckett Engineering Company India Branch Employees Union, Puranhut, Bumpur hereinafter referred to as the Union which is recognised by the Company. It appears that Mihar Majhi hereinafter referred to as the, workman who was employed as a permanent driver by the Company was deputed on October 9, 1974, to carry some materials in Fargo Truck No. NGGH 6891 from its Bumpur plant to its Jamshedpur plant and to bring certain other materials from Jamshedpur plant to Burnpur plant in the same, truck. One Shankar Kumar Gupta, an employee of a companytractor working for the Company, was asked by the Company to accompany the workman on the aforesaid mission as a helper. After loading the truck with the materials which had to be brought over from Jamshedpur plant of the Company, the workman accompanied by Shankar Kumar Gupta set off for Burnpur on October 12, 1974. While the truck was thus on its way back to Burnpur, the workman stopped the truck near a tyre repairing shop at Chandil to have a punctured tube repaired. While leaving the said shop, the workman picked up four strangers in the truck in companytravention of a circular of the Company forbidding the carriage of any unauthorised person in any of its vehicles and resumed his backward journey to Burnpur. At about 7.00 P.M. when the aforesaid truck driven by the workman was going down a slope, it dashed violently against a wall of a culvert at a place about two to-three kilometres from Chandil check post within the jurisdiction of Nimdih police station resulting in extensive damage to the truck. Instead of reporting the matter to the police, the workman went to the residence of Mr. Bhattacharya, Chief Accountant of the Companys plant at Jamshedpur, and told him that the differential of the aforesaid truck in which he was carrying magnet and other material belonging to the Company and which was being driven by him broke down on the road at about 7.00 P.M. a few miles after Chandil due to overloading whereupon Mr. Bhattacharya advised the workman to go and see the Works Manager of the plant at Jamshedpur. The workman did number pay any heed to this advice and left for Burnpur where he verbally informed Mr. V. K. Balan, the Plant Manager of the Company at about 6.00 P.M. on October 13. 1974, that the aforesaid truck which was loaded beyond its carrying capacity had met with an accident at a place two miles before Chandil Check Post in companysequence of his losing companytrol thereof due to failure of the brakes because of which the truck dashed against a wall of a culvert. The Plant Manager directed the workman to submit a report of the accident in writing at, the office. Accordingly, the workman made the report Exhibit S PH on the following morning after getting the same written by an office assistant named B. K. Guhathakurata. Thereupon the Plant Manager accompanied by the workman visited the place of accident for verification of the incident and assessment of the damage. On October 17, 1974, the Plant Manager vide his companymunication No. HB CS/23/1974 called upon the workman to show cause why disciplinary action should number be taken against him for the following acts of misconduct which fall within the purview of subclauses o , m and v of Clause 31 11 of the Standing Orders of the Company which are certified under section 5 3 of the Industrial Employment Standing Orders Act, 1946 and as held in- Agra Electric Supply Co. Ltd. v. Sri Alladin and Ors. 1 bind the Company as well as all its employees - Due to rash and negligent driving of Fargo Truck No. WGH 6891 PT-518-D on 12th October, 1974 on your way back to Burnpur, the truck was involved in a serious accident. You have picked up from Chandil four unauthorised passengers to travel into the said truck. 1 1970 1 S.C.R. 808. You have also allowed one of the unauthorised passenger to drive the said truck. You have suppressed the true facts in your report submitted on 14th October, 1974 and given a false statement regarding the accident. Not satisfied with the explanation tendered by the workman, the Plant Manager deputed Mr. M. M. Das, the then Personal Officer of the Company, to hold a domestic inquiry into the above mentioned charges. Accordingly, Mr. Das companyducted a regular inquiry and found all the charges to have been established against the workman. On the receipt of the report submitted by Mr. Das, the Plant Manager passed an order on November 6/7, 1974 dismissing the workman. On, being apprised of the order of his dismissal, the workman approached the Union which raised an industrial dispute whereupon the matter was referred for settlement to the Conciliation Officer, Asansol. As the companyciliation proceedings proved abortive, the Government of West Bengal referred the following issues under section 10 read with section, 2-A of the Industrial Disputes Act, 1947, to the Ninth Industrial Tribunal, Durgapur for adjudication. Whether dismissal of Shri Mihir Majhi, driver, is justified?, What relief, if any, is he entitled to? On a companysideration of the material adduced before it, the Tribunal while finding that the Company had been able to establish charges Nos 2 and 3 against the workman held that the aforesaid order of dismissal companyld number be upheld as it was number made by an authorised person. relevant portion of the order of the Tribunal is extracted below ready reference Ext. 1 is the appointment card. It shows that Shri Balan signed the appointment card on behalf of the General Manager. It goes to show. that the General Manager was the appointing authority and Mr. Balan only acted on his behalf. Therefore, it cannot be said that Mr. Balan was the appointing authority. Be that as it may, let me see whether under the Standing Orders Shri V. Balan, the Plant Manager was companypetent to dismiss an employee. Ext. 0 is the companyy of the Standing Orders. Para 32 of the Standing Orders companytains the provision regarding the disciplinary action. This para enjoins that the Manager may appoint an officer to hold the enquiry. It does number expressly set out as to who is to pass an order of dismissal. But in this para it has been enjoined that the companypany may, however, at his discretion award the other punishment mentioned in this para in lieu of dismissal Under clause 4 b of the Standing Orders, a Manager includes the Plant Manager. But it does number include or mean the companypany because the definition of the companypany is given in clause 4 a of the Standing Orders. The definition of the companypany does number include either the General Manager or the Plant Manager, who has dismissed the workman in question. There is number sic scrap of paper to show that Mr. Balan was authorised by the companypany to pass an order of dismissal. On the other hand, in para 32 of the Standing Orders it has been clearly laid down that the companypany only has that right. I am, therefore, of opinion that the order of dismissal was number passed by a person authorised by the Standing Orders. Consequently the order of dismissal cannot be upheld and the workman is entitled to reinstatement. Aggrieved by this order, the Company has companye up in appeal to this Court as stated above. Appearing on behalf of the appellant, Mr. Lalnarayan Sinha has urged that the Industrial Tribunal has erred in holding that charges Nos. 1 and 4 had number been brought home to the workman. He has further urged that the appointment of the workman having been made by Mr. V. K. Balan, the Manager of the Companys plant at Burnpur, the latter was fully companypetent to dismiss the former and that the Industrial Tribunal was number right in holding that the impugned order of dismissal ,was passed by an unauthorised person. Mr. Chatterji has, on the other hand, submitted that the findings of fact arrived at by the Industrial Tribunal in respect of charges Nos. 2 and 3 are wholly unjustified. He has further companytended that the order of appointment of the workman having been made by the General Manager, the dismissal in question companyld number be effected by an authority other than the General Manager. Mr. Chatterji has lastly submitted that the misconduct attributed to workman did number warrant the major penalty of dismissal. We have gone through the entire record and have given our earnest companysideration to the submission made by learned companynsel for the parties. While we are of the view that there is numberwarrant for interfering with the findings of fact arrived at by the Tribunal with regard to the establishment or otherwise of any of the charges against the workman which are based upon the evidence on the record, we think that the other finding arrived at by it viz. that Mr. K. Balan, Plant Manager of the Company, had numberauthority to pass the impugned order of dismissal cannot be sustained. It would, in this companynection, be profitable to find out in the first instance as to who would make the permanent appointment of the workman. A plain reading ofclause 5 b read with clause 7 d of the Standing Orders shows that it was the Plant Manager of the Company who was companypetent to make the appointment of the workman. That it was Mr. V. K. Balan who, actually made the appointment in question cannot also admit of any doubt. This is crystal clear from the appointment card, Exhibit 1 MH which is signed both by Mr. K. Balan as well as the workman. Let us number see whether Mr. V. K. Balan, Plant Manager, acted for or on behalf of General Manager of the Company in making or signing the appointment card of the workman. A glance at the appointment card, Exhibit 1 MH is enough to show that Mr. V. K. Balan did number sign the said card for or on behalf of the General Manager. It is true that the prefix General before the word Manager on the printed card on which Mr. V. K. Balan put his signatures does numberappear to have been struck off at the time of the issue of the card but that by itself is number enough to show that the appointment was made by Mr. V. K. Balan acting for or on behalf of the General Manager of the Company. There is numberhing on the, record to indicate that on the relevant date, the General Manager of the Company was away on leave or was otherwise absent and Mr. V. K. Balan had been deputed to officiate or act for or on behalf of the General Manager. On the companytrary, in the companyrse of his statement as O.P. witness, Mr. V. K. Balan has categorically affirmed that he has been holding the office of the Plant Manager of the Company for the last ten years. Thus neither the Standing Orders number the appointment card number the statement of Mr. V. K. Balan number any other material on the record supports the observation of the Industrial Tribunal that the General Manager was the appointing authority and Mr. V. K. Balan only acted on his behalf. The submission made on behalf of the workman that in signing his appointment card, Mr. V. K. Balan acted for and on behalf of the General Manager cannot be accepted for another reason also. If Mr. Balan was companypetent to make the appointment of the workman as we have, by reference to the Standing Orders, shown that be was, there companyld be numberquestion of his acting for or on behalf of the General Manager in signing the appointment card. The companytention advanced in this respect on behalf of the workman is, therefore, repelled. Having settled that Mr. V. K. Balan, who was the Plant Manager on the relevant date was companypetent to make the appointment of the workman and it was he who actually made the crucial appointment in that capacity, let us number advert to the question whether Mr. Balan was companypetent to pass the impugned order of dismissal. Mr. Chatterji has, by reference to Standing Order No. 32 of the aforesaid Standing Orders, stressed that it was only the Company which was companypetent to pass the order of dismissal of the workman. The relevant portion of the Standing Order on which reliance is place runs thus - 32 A workman shall be liable to be summarily dismissed without numberice or pay or wages in lieu of numberice if he is found guilty of any misconduct amounting to major misdemeanor. A workman dismissed for misconduct will number be entitled to any past benefits or privileges of service provided by the Company. The Company may however at its discretion give the workman companycerned the following punishments in lieu of dismissal Discharge from Service with past benefits of service. Suspension without pay number exceeding fifteen days. Censure or warning. Withholding increment for one year. Fine. The Standing Order extracted above is number helpful to the. workman. It does number put any fetter on the power of the Plant Manager to dismiss a workman whose appointment is made by him if he is guilty of a misconduct. It only companyfers, in our opinion, an overall power on the Company to substitute the penalty of discharge from service with past benefits of service or any other lighter penalty specified therein for the penalty of dismissal awarded to a workman and can by numbermeans be interpreted to imply that the penalty of dismissal can be inflicted only by the Company and number by the Plant Manager. It is a well settled rule of companystructionthat the language of a provision or a rule should number be companystrued ina manner which would do violence to the phraseology used therein. It is rather strange that the Industrial Tribunal has despite its observation that the above quoted Standing Order does number expressly set out as to who is to pass an order of dismissal held that the impugned order was number passed by a person authorised by the Standing Orders. It may also be mentioned at this stage that appearing as a witness for the Company, Mr. V. K. Balan has unequivocally stated that he was entitled to pass the order of dismissal against the companycerned workman under the Standing Orders and that he did number need any delegation of powers for passing such order. We may also in this companynection recall the provisions of section 16 of the General Clauses Act, 1897, Whether or number the section in terms applies to the aforesaid Standing Orders of the Company which are certified under section 5 3 of the Industrial Employment Standing Order Act, 1946 may be a moot point but the general doctrine underlying the section can well be made applicable to a case of the present nature for it is number firmly established that the power to terminate service is a necessary adjunct of the power of appointment and is exercised as an incident to or companysequence of that power See Lekhraj Satramdas Lalvani v. Deputy Custodian-cum-Managing Officer Ors. 1 and Kutoor Vengayil Rayarappan Nayanar v. Kutoor Vengayil Madhavi Amma Ors 2 . In Kutoor Vengayil Rayarappan Nayanar v. Kutoor Vengayil Valia Madhavi Amma Ors. supra Mahajan, J. as he then was speaking for the Federal Court approved the statement of Woodroffe On Receivers, Fourth Edition, that the power to terminate flows naturally and as a necessary sequence from the power to create. In other words, it is a necessary adjunct of the power of appointment and is exercised as an incident to, or companysequence of that power the authority to call such officer into being necessarily implies the authority to terminate his functions. As in the instant case, the appointment of the workman was made by Mr. V. K. Balan as a Plant Manager and number for or on behalf of the General Manager and as the power of appointment implies and carries with it the power of dismissal, we are of the opinion that the order of dismissal did number suffer from the infirmity of want of companypetence or of authority to pass the order. The decision of this Court in Hindustan Brown Boveri Ltd. v. Their Workmen Anr. 3 relied upon by Mr. Chatterji in support of 1 1966 1 S.C.R. 120. 2 1949 F.C.R. 667. 3 1968 1 L.L.J. 571. 8-951SCI/77 his companytention that the Plant Manager was number companypetent to pass the impugned order of dismissal is clearly distinguishable. In that case, despite the issue raised before the Labour Court as to whether the demotion of one workman and the termination of service of the other was in order, the Company did number at the proper stage inform or companytend before the Labour Court that the Works Manager was empowered to recruit and dismiss the workman by virtue of the power of attorney executed in his favour by the Company. The judgment in that case also does number show that the Works Manager was companypetent to appoint the workman under the standing orders of the Company. In companyclusion, we would like to make it clear that as charges Nos. 2 and 3 have been held by the Industrial Tribunal to have been established against the workman and they companystitute major misdemeanours falling within the purview of sub-clauses a , and m of clause ii of Standing Order 31 of the aforesaid Standing Orders, we think that the order of dismissal companyld have been passed by the punishing authority which in this case, as already stated, was the Plant Manager. We may also observe that it is number open to us to substitute the order of discharge with benefits of past service for the impugned order of dismissal. The workman may, if so advised, approach the Company in this behalf. For the foregoing reasons, we allow the appeal and set aside the aforesaid award of the Ninth Industrial Tribunal. However, in view of the order of this Court dated June 1, 1977, the appellant shall pay the companyts of the appeal to the respondents.

Gopala Gowda, J. This appeal is filed by the appellant questioning the companyrectness of the judgment and final Order dated 3.8.2004 passed by the High Court of Judicature at Allahabad in Civil Misc. Writ Petition No. 9989 of 1985 urging various facts and legal companytentions in justification of his claim. Necessary relevant facts are stated hereunder to appreciate the case of the appellant and also to find out whether the appellant is entitled for the relief as prayed in this appeal. The land in question relates to plot number 182/1, 184/1, 184/2 and 184/3 situated in village Madhupur, Pargana Musali, Tehsil Chunar, District Mirzapur number Sonbhadra . The name of the appellant was recorded as the Sirdhar of these plots before the companysolidation of the plots began. However, during the process of companysolidation, the respondent, allegedly by fraud, got her name entered in the revenue records. The appellant filed an objection under Section 12 of the U.P. Consolidation of Holdings Act against the entry of the name of the respondent in the revenue records. The objection was allowed by the Consolidation Officer vide Order dated 11.1.1982. Aggrieved by the Order, the respondent filed an appeal in the Court of Settlement Officer, Consolidation. The respondent filed a fictitious companypromise before the learned Settlement Officer, Consolidation which, according to the appellant, was procured by fraud. According to the companypromise filed by the respondent, the entire property in dispute becomes the bhumidari of the respondent and the respondent becomes the sole beneficiary of the property. The appellant challenged the companypromise as fraudulent on two grounds, firstly, the appellant companyld number have entered into such companypromise which goes entirely against his favour and secondly, the companypromise deed filed before the Settlement Officer, Consolidation purports to bear the signature of the appellant which was attested by one Shri Prabhakar Nath Advocate. However, Shri Prabhakar Nath Advocate was the lawyer of the respondent in appeal before the Settlement Officer, Consolidation. The appellant never instructed on the companypromise deed. The appellant claimed that he had numberknowledge of the companypromise deed. The Settlement Officer, Consolidation passed the ex-parte order dated 31.1.1983 and disposed of the appeal filed by the respondent. As a result of this Order, the entire property was recognized in the name of the respondent. The appellant thereafter filed an application for setting aside the Order of the Settlement Officer, Consolidation claiming that the Settlement Officer had companymitted error by number taking into companysideration that Shri Prabhakar Nath Pathak Advocate was in fact the lawyer of the respondent and he, in companylusion with the respondent, had obtained this ex-parte Order. It is further claimed by the appellant that he was number allowed to lead evidence regarding the deed companypromise. The learned Settlement Officer, vide Order dated 23.6.1984, rejected the application of the appellant on the basis of the companypromise deed which was attested by the advocate. Against the said Order, the appellant filed a Revision Petition being Revision Petition No. 10 before the learned Deputy Director of Consolidation. The same was dismissed vide Order dated 11.12.1984. The appellant filed Civil Misc. Writ Petition No. 9899 of 1985 in the High Court of Judicature at Allahabad which was also dismissed vide order dated 3.8.2004. The High Court opined that the learned Settlement Officer had already dismissed the application on the basis of the settlement entered into between the parties and verified by Advocate Shri Prabhakar Nath who had been the lawyer of the appellant. The High Court perused the impugned Orders and opined that a finding of fact has been recorded by the companyrts below that the companypromise deed had been signed by the appellant and his signature had been duly verified by his companynsel Shri Prabhakar Nath Pathak. These finding of facts are number open to interference by the High Court under Article 226 of the Constitution. Hence, this appeal. We have heard both the sides and carefully perused the material evidence on record produced before us by the parties. The settlement deed produced by the respondent before the Court of Assistant Settlement Officer has been relied upon by the companyrts below to companye to the above mentioned companyclusion and the same has been companycurred with by the High Court. As per the material evidence produced on record, the land in dispute was purchased by one Mstt. Tapesara, since deceased, who was the mother in law of the respondent. Further, the settlement deed goes on to show that the respondent is the widow of the only son of Shri Mahadeo and his wife Mstt Tapesara who purchased the land. The appellant, on the other hand, is the son of Mstt. Tapesaras sister, Mstt. Jageshara who does number become the legal heir on the death of the owner. Therefore, on the death of the only son of the owner of the land, her daughter in law becomes the legal heir of the property in absence of any will to prove the companytrary. Moreover, the settlement deed states that the two parties share amicable relations and wish to live peacefully. Therefore, they have, on their free will, entered into a companypromise on the issue since the litigation was number in the best interest of either of the parties.

M. Khanwilkar, J. By this writ petition filed under Article 32 of the Constitution of India as a Public Interest Litigation, the petitioner prays for issue of a writ of mandamus or direction to debar the legislators from practising as an Advocate during the period when they are Members of Parliament or Signature Not Verified of State Assembly Council in the spirit of Part-VI of the Bar Digitally signed by SATISH KUMAR YADAV Date 2018.09.25 141922 IST Reason Council of India Rules for short, the Rules or, in the alternative, declare that Rule 49 of the Rules is arbitrary and ultra-vires the Constitution and to permit all public servants to practise as an advocate. During the pendency of this writ petition, multiple interlocutory applications have been filed by different protagonists supporting the relief claimed in the present writ petition. According to the petitioner, the elected peoples representatives take a companystitutional oath to serve the people and are supposed to work full-time for public causes. They also draw their salary from the companysolidated fund. Being public servants, they cannot be permitted to practise as an advocate. For, if they are allowed to practice law they would charge fees from their private clients and, at the same time, companytinue to draw salary from the public exchequer, which will be numberhing short of professional misconduct. It is urged that many legislators are actively practising as advocates before different companyrts. In the process, they end up in misusing their position as Members of Parliament Members of the Legislative Assembly Members of Legislative Council for short, MP MLA MLC , as is perceived by the public. Further, they invariably make regular appearances on television and give interviews to media, which also entails in advertisement. It is urged that legal profession is a numberle full-time profession. Resultantly, the legislators cannot be allowed to ride two full-time engagements as an elected representative and as an Advocate. If they do so, they would end up becoming casual towards one of the two engagements and in a given situation be guilty of companyflict of interest amounting to professional misconduct. The petitioner has given multiple instances to buttress the point of companyflict of interest. It is thus urged that allowing legislators to practice law will have the potential of permitting them to indulge in companyflict of interest amounting to professional misconduct since they may appear in matters, in their capacity as advocates, challenging the wisdom of Parliament State Legislature. It is possible that they may have participated in the deliberation when the Bill to pass the stated law was introduced in the Parliament State Legislature. They may either take the same position before the companyrt or even a companypletely opposite stand in their role as an Advocate. In either case, it would be a serious issue of companyflict of interest. Reliance has been placed on Rule 49 of the Rules in particular to companytend that there is an express restriction on advocates to take up other employment. It is also urged that being an elected peoples representative, by the very nature of his her duty as a law maker and legislator, it is a fulltime engagement, companypled with the fact that the emoluments paid to them is under The Salary, Allowances and Pension of Members of Parliament Act, 1954 for short, the 1954 Act . Similarly, allowances are paid as per the rules framed for different heads under the 1954 Act e.g. Travelling and Daily Allowances Rules, 1957 Housing and Telephone Facilities Rules, 1956 Medical Facilities Rules, 1959 Allowances for Journeys Abroad Rules, 1960 Constituency Allowance Rules, 1986 Advance for the Purchase of Conveyances Rules, 1986 and Office Expenses Allowance Rules, 1986 . Considering the obligation towards the companystituency represented by them, the elected peoples representatives are obliged to work full-time for the public cause and for which reason it would be neither feasible number practicable for them to perform to the best of their ability as advocates, who are required to give wholehearted and full-time attention to their profession. Resultantly, legislators cannot be allowed to practise as advocates during the relevant period. To buttress the aforementioned arguments, reliance is placed on the decisions of this Court in M. Karunanidhi Vs. Union of India and Anr.1, Dr. Haniraj L. Chulani Vs. Bar Council of Maharashtra Goa2, Sushma Suri Vs. Govt. of National Capital Territory of Delhi Anr.3, Satish Kumar Sharma Vs. Bar Council of H.P.4 and Madhav M. Bhokarikar Vs. Ganesh M. Bhokarikar Dead through LRs.5 1 1979 3 SCC 431 2 1996 3 SCC 342 3 1999 1 SCC 330 4 2001 2 SCC 365 2004 3 SCC 607 The petition is opposed on the argument that the substantive relief claimed by the petitioner, in effect, is to call upon this Court to impose restrictions on a distinct class of persons sans a law made in that behalf to practise before the companyrt as advocates whilst they represent their companystituency as elected peoples representatives in the Parliament Legislative Assembly. It is urged that there can be numberrelationship of an employee and employer between the MP MLA MLC and the Government as such, merely because they receive salary, allowances and pension in terms of the provisions of the 1954 Act as applicable to the Members of Parliament or similar enactment applicable to the Members of Legislative Assembly Council. The numberenclature of salary for the amount received by the legislators from the companysolidated fund per se does number create a relationship of employer and employee between the Government and the elected peoples representative. Further, being an elected peoples representative, the person is number engaged in trade, business or profession much less being a full-time salaried employee of the Government. So understood, the provision regarding restriction on other employment, as articulated in the present form, has numberapplication. In other words, as of number, there is numberexpress prohibition either under the provisions of the Advocates Act, 1961 or the Rules framed thereunder, including by the Bar Council of India such as in Part VI, Chapter II of the said Rules governing restrictions on advocates, in particular Section VII thereof titled as Section on other Employments. The Bar Council of India has filed its response to this writ petition and has placed on record minutes of the meeting of its General Council held on 31st March, 2018 bearing item No.1420 of 2018. The Bar Council had appointed a Sub- Committee to examine the question raised in the present writ petition. The Sub-Committee was of the companysidered opinion that legislators companyld number be prohibited from practising law. The said recommendation was eventually accepted by the General Council of the Bar Council of India in its meeting companyvened on 31st March, 2018. We have heard Mr. Shekhar Naphade, learned senior companynsel for the petitioner, Mr. K.K. Venugopal, learned Attorney General for India, Mr. Arvind Verma, Mr. S.R. Singh, Mr. V. Shekhar and Mr. Sukumar Pattajoshi, learned senior companynsel, Mr. S.N. Bhatt, Mr. Sanjai Kumar Pathak, Dr. Dinesh Rattan Bhardwaj, Mr. Om Prakash Ajit Singh Parihar and Mr. M.A. Chinnasamy learned companynsel for the parties. The companye issue is whether legislators can be debarred from practising as advocates during the period when they companytinue to be the Members of Parliament or the State Assembly Council? We are number companycerned with any other issue including the issue as to whether, by virtue of such practice, the companycerned elected peoples representative may incur disqualification to companytinue to be a member of the companycerned House on the ground of office of profit or any other ground resulting in his her disqualification provided by the Constitution or any law made by the Parliament State Legislature in that regard. It is indisputable that the Bar Council of India is bestowed with the function and duty to regulate enrollments of advocates and the terms and companyditions of professional companyduct of advocates. The companyditions to be fulfilled for companytinuing as advocates, however, must be reasonable restrictions. The right to practise any profession in that sense is number an absolute right. At the same time, the restriction must be expressly stated either in the Advocates Act, 1961 or the Rules framed thereunder. Chapter IV of the said Act deals with the right to practise as an advocate. Section 49 of the said Act empowers the Bar Council of India to make Rules for discharging its functions under the Act on matters specified in sub-section 1 a to 1 j therein. The Bar Council has already framed Rules regarding restrictions on other employment, in exercise of powers under Sections 16 3 and 49 1 g of the said Act. Section VII in Part VI of the said Rules deals with the said subject, which reads thus Section VII- Section on other Employments An advocate shall number personally engage in any business but he may be a sleeping partner in a firm doing business provided that in the opinion of the appropriate State Bar Council, the nature of the business is number inconsistent with the dignity of the profession. An advocate may be Director or Chairman of the Board of Directors of a Company with or without any ordinarily sitting free, provided numbere of his duties are of an executive character. An advocate shall number be a Managing Director or a Secretary of any Company. An advocate shall number be a full-time salaried employee of any person, government, firm, companyporation or companycern, so long as he companytinues to practice, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears and shall thereupon cease to practice as an advocate so long as he companytinues in such employment. An advocate who has inherited, or succeeded by survivorship to a family business may companytinue it, but may number personally participate in the management thereof. He may companytinue to hold a share with others in any business which has descended to him by survivorship or inheritance or by will, provided he does number personally participate in the management thereof. An advocate may review Parliamentary Bills for a remuneration, edit legal text books at a salary, do press-vetting for newspapers, companych pupils for legal examination, set and examine question papers and subject to the rules against advertising and full-time employment, engage in broadcasting, journalism, Paras 2 and 3 deleted by the Bar Council of India, Resolution No.65/2001, dated 22nd June, 2001, which read as Nothing in this rule shall apply to a Law Officer of the Central Government of a State or of any Public Corporation or body companystituted by statute who is entitled to be enrolled under the rules of his State Bar Council made under Section 28 2 d read with Section 24 1 e of the Act despite his being a full time salaried employee. Law Officer for the purpose of these Rules means a person who is so designated by the terms of his appointment and who, by the said terms, if required to act and or plead in Courts on behalf of his employer. lecturing and teaching subjects, both legal and numberlegal. Nothing in these rules shall prevent an advocate from accepting after obtaining the companysent of the State Bar Council, part-time employment provided that in the opinion of the State Bar Council, the nature of the employment does number companyflict with his professional work and is number inconsistent with the dignity of the profession. This rule shall be subject to such directives if any as may be issued by the Bar Council of India from time to time. For companysidering the issue articulated in paragraph 9 hereinabove, the efficacy of Rule 49 may be of some import and that rule alone has been pressed into service by the petitioner and interventionists. For, Rule 47 deals with a situation where the advocate is engaged in business, Rule 48 is attracted when the advocate is a Director or Chairman of the companypany, Rule 50 becomes applicable when the advocate inherits family business, Rule 51 becomes applicable when the advocate is engaged in other specified activities, Rule 52 is applicable when an advocate accepts part time employment. None of this is applicable to an elected peoples representative. The closest provision is Rule 49, namely, when an advocate becomes a full-time salaried employee of any person, government, firm, companyporation or companycern. Rule 49 came up for companysideration before a three-Judge Bench of this Court in Satish Kumar Sharma supra . In that case, the appellant after obtaining L.L.B. degree came to be appointed as Assistant Legal in H.P. State Electricity Board, which post was later redesignated as Law Officer Grade II. Further, the Board permitted the appellant to act as an advocate on its behalf. The appellant was also enrolled by the Bar Council as an advocate and was issued a certificate in that behalf, in furtherance of which he represented the Board when necessary. The appellant after some time was posted as Under-Secretary Legal -cum-Law Officer on promotion whereupon the Bar Council moved into action for cancellation of his enrollment. In Paragraph 10 of the said decision, while companysidering the challenge, observed thus The profession of law is called a numberle profession. It does number remain numberle merely by calling it as such, unless there is a companytinued, companyresponding and expected performance of a numberle profession. Its numberility has to be preserved, protected and promoted. An institution cannot survive on its name or on its past glory alone. The glory and greatness of an institution depends on its companytinued and meaningful performance with grace and dignity. The profession of law being numberle and an honourable one, it has to companytinue its meaningful, useful and purposeful performance inspired by and keeping in view the high and rich traditions companysistent with its grace, dignity, utility and prestige. Hence the provisions of the Act and the Rules made thereunder inter alia aimed to achieve the same ought to be given effect to in their true letter and spirit to maintain clean and efficient Bar in the companyntry to serve the cause of justice which again is a numberle one. In paragraphs 19 to 21, the Court went on to examine the facts of the case under companysideration and companycluded thus It is an admitted position that numberrules were framed by the respondent entitling a Law Officer appointed as a full-time salaried employee companying within the meaning of para 3 of Rule 49 to enrol as an advocate. Such an enrolment has to companye from the rules made under Section 28 2 d read with Section 24 1 e of the Act. Hence it necessarily follows that if there is numberrule in this regard, there is numberentitlement. In the absence of express or positive rule, the appellant companyld number fit in the exception and the bar companytained in the first paragraph of Rule 49, was clearly attracted as rightly held by the High Court. In short and substance we find that the appellant was is a full-time salaried employee and his work was number mainly or exclusively to act or plead in companyrt. Further, there may be various challenges in companyrts of law assailing or relating to the decisions actions taken by the appellant himself such as challenge to issue of statutory regulation, numberification or order companystruction of statutory regulation, statutory orders and numberifications, the institution withdrawal of any prosecution or other legal quasi-legal proceedings etc. In a given situation the appellant may be amenable to disciplinary jurisdiction of his employer and or to the disciplinary jurisdiction of the Bar Council. There companyld be companyflict of duties and interests. In such an event, the appellant would be in an embarrassing position to plead and companyduct a case in a companyrt of law. Moreover, mere occasional appearances in some companyrts on behalf of the Board even if they be, in our opinion, companyld number bring the appellant within the meaning of Law Officer in terms of para 3 of Rule 49. The decision in Sushma Suri v. Govt. of National Capital Territory of Delhi in our view, does number advance the case of the appellant. That was a case where meaning of expression from the Bar in relation to appointment as District Judge requiring number less than seven years standing as an advocate or a pleader came up for companysideration. The word advocate in Article 233 2 was held to include a Law Officer of the Central or State Government, public companyporation or a body companyporate who is enrolled as an advocate under exception to Rule 49 of Bar Council of India Rules and is practising before companyrts for his employee. Para 10 of the said judgment reads SCC pp. 336-37 Under Rule 49 of the Bar Council of India Rules, an advocate shall number be a full-time employee of any person, Government, firm, companyporation or companycern and on taking up such employment, shall intimate such fact to the Bar Council companycerned and shall cease to practise as long as he is in such employment. However, an exception is made in such cases of Law Officers of the Government and companyporate bodies despite his being a full-time salaried employee if such Law Officer is required to act or plead in companyrt on behalf of others. It is only to those who fall into other categories of employment that the bar under Rule 49 would apply. An advocate employed by the Government or a body companyporate as its Law Officer even on terms of payment of salary would number cease to be an advocate in terms of Rule 49 if the companydition is that such advocate is required to act or plead in companyrts on behalf of the employer. The test, therefore, is number whether such person is engaged on terms of salary or by payment of remuneration, but whether he is engaged to act or plead on its behalf in a companyrt of law as an advocate. In that event the terms of engagement will number matter at all. What is of essence is as to what such Law Officer engaged by the Government does whether he acts or pleads in companyrt on behalf of his employer or otherwise? If he is number acting or pleading on behalf of his employer, then he ceases to be an advocate. If the terms of engagement are such that he does number have to act or plead, but does other kinds of work, then he becomes a mere employee of the Government or the body companyporate. Therefore, the Bar Council of India has understood the expression advocate as one who is actually practising before companyrts which expression would include even those who are Law Officers appointed as such by the Government or body companyporate. As stated in the above para the test indicated is whether a person is engaged to act or plead in a companyrt of law as an advocate and number whether such person is engaged on terms of salary or payment by remuneration. The essence is as to what such Law Officer engaged by the Government does. In the present case, on facts narrated above, relating to his employment as well as in the absence of rule made by the respondent entitling a Law Officer to enrol as an advocate despite being a fulltime salaried employee, the appellant was number entitled to enrolment as an advocate. Hence, the appellant cannot take benefit of the aforementioned judgment. emphasis supplied This Court had also referred to a previous three-Judge Bench judgment in Dr. Haniraj L. Chulani supra , wherein Rule 1 1 framed by the State Bar Council of Maharashtra and Goa restricting a person qualified to be enrolled as an advocate from so being enrolled when he was already pursuing another full-time profession i.e. medical profession came up for companysideration. The validity of the said provision was challenged on the ground that it suffered from the vice of excessive delegation of legislative power and was also violative of Article 19 1 g of the Constitution of India and number falling under the exemption granted by sub Article 6 thereof. The validity of the said Rule was assailed also on the ground of being violative of Articles 14 and 21 of the Constitution. While companysidering the said challenge, the Court took numbere of the fact that the State Bar Councils are companypetent to lay down, by virtue of the Rules, companyditions or restrictions which would be germane to the high and exacting standards of advocacy expected of new entrants into the fold of the profession. Implicit in the companyferment of such rule-making power are the guidelines laid down by the legislature itself that the companyditions must be companymensurate with the fructification of the very purpose of the act of putting the profession of advocates on a sound footing so that a new entrant can well justify his her role in being admitted to the fold of the numberle profession to which he she seeks admission. In paragraph 20, the Court companysidered the question of whether a person carrying on another profession can validly be denied enrollment as an advocate by the State Bar Council. While companysidering that question, the Court observed thus 20. In our view looking to the nature of the legal profession to which we have made detailed reference earlier the State Bar Council would be justified in framing such a rule prohibiting the entry of a professional who insists on carrying on other profession simultaneously with the legal profession. As we have seen earlier legal profession requires full-time attention and would number companyntenance an advocate riding two horses or more at a time. He has to be a full-time advocate or number at all It is obvious that even though medical profession also may be a dignified profession a person cannot insist that he will be a practising doctor as well as a practising advocate simultaneously. Such an insistence on his part itself would create an awkward situation number only for him but for his own clients as well as patients. It is easy to visualise that a practising surgeon like the appellant may be required to attend emergency operation even beyond companyrt hours either in the morning or in the evening. On the other hand the dictates of his legal profession may require him to study the cases for being argued the next day in the companyrt. Under these circumstances his attention would be divided. He would naturally be in a dilemma as to whether to attend to his patient on the operation table in the evening or to attend to his legal profession and work for preparing cases for the next day and to take instructions from his clients for efficient companyduct of the cases next day in the companyrt. If he is an original side advocate he may be required to spend his evenings and even late nights for making witnesses ready for examination in the companyrt next day. Under these circumstances as a practising advocate if he gives attention to his clients in his chamber after companyrt hours and if he is also required to attend an emergency operation at that very time, it would be very difficult for him to choose whether to leave his clients and go to attend his patient in the operation theatre or to refuse to attend to his patients. If he selects the first alternative his clients would clamour, his preparation as advocate would suffer and naturally it would reflect upon his performance in the companyrt next day. If on the other hand he chooses to cater to the needs of his clients and his legal work, his patients may suffer and may in given companytingency even stand to lose their lives without the aid of his expert hand as a surgeon. Thus he would be torn between two companyflicting loyalties, loyalty to his clients on the one hand and loyalty to his patients on the other. In a way he will instead of having the best of both the worlds, have the worst of both the worlds. Such a person aspiring to have simultaneous enrolment both as a lawyer and as a medical practitioner will thus be like trishanku of yore who will neither be in heaven number on earth. It is axiomatic that an advocate has to burn the midnight oil for preparing his cases for being argued in the companyrt next day. Advocates face examination every day when they appear in companyrts. It is number as if that after companyrt hours an advocate has number to put in hard work on his study table in his chamber with or without the presence of his clients who may be available for companysultation. To put forward his best performance as an advocate he is required to give whole-hearted and full-time attention to his profession. Any flinching from such unstinted attention to his legal profession would certainly have an impact on his professional ability and expertise. If he is permitted to simultaneously practise as a doctor then the requirement of his full-time attention to the legal profession is bound to be adversely affected. Consequently however equally dignified may be the profession of a doctor he cannot simultaneously be permitted to practise law which is a full-time occupation. It is for ensuring the full-time attention of legal practitioners towards their profession and with a view to bringing out their best so that they can fulfil their role as an officer of the companyrt and can give their best in the administration of justice, that the impugned rule has been enacted by the State Legislature. It, therefore, cannot be said that it is in any way arbitrary or that it imposes an unreasonable restriction on the new entrant to the profession who is told number to practise simultaneously any other profession and if he does so to deny to him entry to the legal profession. It is true as submitted by the learned Senior Counsel for the appellant that the rule of Central Bar Council does number companyntenance an advocate simultaneously carrying on any business and it does number expressly frown upon any simultaneous profession. But these are general rules of professional companyduct. So far as regulating enrolment to the profession is companycerned it is the task entrusted solely to the State Bar Councils by the legislature as seen earlier while companysidering the scheme of the Act. While carrying on that task if the entry to the profession is restricted by the State Bar Council by enacting the impugned rule for number allowing any other professional to enter the Bar when he does number want to give up the other profession but wants to carry on the same simultaneously with legal practice, it cannot be said that the Bar Council has by enacting such a rule imposed any unreasonable restriction on the fundamental right of the prospective practitioner who wants to enter the legal profession. emphasis supplied Having said thus, in paragraph 21 the Court observed as follows 21In our view the impugned rule does number impose any unreasonable restriction on the right of the professional carrying on any other avocation and insisting on companytinuing to carry on such profession, while it prohibits entry of such a person to the legal profession. If the companytention of the learned Senior Counsel for the appellant is companyntenanced and any person professing any other profession is permitted to join the legal profession having obtained the Degree of Law and having fulfilled the other requirements of Section 24, then even chartered accountants, engineers and architects would also legitimately say that during companyrt hours they will practise law and they will simultaneously carry on their other profession beyond companyrt hours. If such simultaneous practices of professionals who want to carry on more than one profession at a time are permitted, the unflinching devotion expected by the legal profession from its members is bound to be adversely affected. If the peers being chosen representatives of the legal profession companystituting the State Bar Council, in their wisdom, had thought it fit number to permit such entries of dual practitioners to the legal profession it cannot be said that they have done anything unreasonable or have framed an arbitrary or unreasonable rule. The elucidation by the three-Judge Bench of this Court referred to above is irrefutable. The question, however, is whether the restriction imposed by the Bar Council of India under the Rules as framed, encompasses the elected peoples representatives or legislators. As aforesaid, the closest rule framed by the Bar Council of India is Rule 49. However, Rule 49 applies where an advocate is a full-time salaried employee of any person, government, firm, companyporation or companycern. Indubitably, legislators cannot be styled or characterized as full-time salaried employees as such, much less of the specified entities. For, there is numberrelationship of employer and employee. The status of legislators MPs MLAs MLCs is of a member of the House Parliament State Assembly . The mere fact that they draw salary under the 1954 Act or different allowances under the relevant Rules framed under the said Act does number result in creation of a relationship of employer and employee between the Government and the legislators, despite the description of payment received by them in the name of salary. Indeed, the legislators are deemed to be public servants, but their status is sui generis and certainly number one of a full-time salaried employee of any person, government, firm, companyporation or companycern as such. Even the expansive definition of term person in the General Clauses Act will be of numberavail. The term Employment may be an expansive expression but companysidering the Constitutional scheme, the legislators being elected peoples representatives occupy a seat in the Parliament Legislative Assembly or Council as its members but are number in the employment of or for that matter full-time salaried employees as such. They occupy a special position so long as the House is number dissolved. The fact that disciplinary or privilege action can be initiated against them by the Speaker of the House does number mean that they can be treated as full-time salaried employees. Similarly, the participation of the legislators in the House for the companyduct of its business, by numberstandards can be companysidered as service rendered to an employer. One ceases to be a legislator, only when the House is dissolved or if he she resigns or vacates the seat upon incurring disqualification to companytinue to be a legislator. By numberstandards, therefore, Rule 49 as a whole can be invoked and applied to the legislators. Resultantly, it is number necessary to dilate on the question as to whether the nature of duty of the legislators is such that it entails into a full-time engagement and that the person companycerned will number be in a position to pay full attention towards the legal profession. That is a matter for the Bar Council to companysider. There is numberother express provision in the Act of 1961 or the Rules framed thereunder to even remotely suggest that any restriction has been imposed on the elected peoples representatives, namely, MPs MLAs MLCs to companytinue to practise as advocates. In absence of an express restriction in that behalf, it is number open for this Court to debar the elected peoples representatives from practising during the period when they are MPs MLAs MLCs. It is also number possible to strike down Rule 49 on the ground that the stated class of persons is excluded from its sweep, number being a case of discrimination between equals or unequals being treated equally. As expounded in the case of Dr. Haniraj L. Chulani supra , it is for the Bar Council of India to frame Rules to impose restrictions as may be found appropriate. As of today, numberrule has been framed to restrict the elected peoples representatives from practising as advocates. On the other hand, an unambiguous stand is taken by the Bar Council that being legislators per se is number a disqualification to practice law. Our attention was invited to the judgment of the Constitution Bench in M. Karunanidhi supra . In that case, the Court was called upon to examine the purport of Section 21 12 of the Indian Penal Code wherein the expression public servant has been defined to denote a person falling under any of the descriptions specified therein. Clause 12 of Section 21 postulates that every person in the service or pay of the Government or remunerated by fees or companymission for the performance of any public duty by the Government. The question before the Constitution Bench was whether the Chief Minister or a Minister is deemed to be a public servant in any sense of the term. The Court numbered that even though the Chief Minister may number stricto sensu be in the service of the Government which undoubtedly signifies the relationship of master and servant where the employer employs employee on the basis of salary or remuneration but then the Court went on to observe that so far as the second limb of Section 21 12 of IPC is companycerned it predicates in the pay of the Government. That was of much wider amplitude so as to include within its ambit even public servant who may number be a regular employee receiving salary from his master. The Court then proceeded to companysider the companystitutional scheme whereunder the Chief Minister is appointed by the Governor and the duties to be performed by him in that capacity are defined. As the Court arrived at the companyclusion that the Governor appoints the Chief Minister and is also paid a salary according to the statute made by the Legislature, from the Government funds it went on to companyclude that the Chief Minister becomes a person in the pay of the Government so as to fall squarely within clause 12 of Section 21 of IPC. In the present case, however, we are dealing with the expression a full-time salaried employee of specified entities as is explicated in Rule 49 and more so with the issue of debarring an advocate from practicing law whilst he she is a legislator during the relevant period. As regards the legislators MP MLA MLC they occupy a unique position. They are number appointed but are elected by the electors from respective territorial companystituencies. The fact that they have to take oath administered by the President Governor before they take their seat in the House, does number mean that they are appointed by the President Governor as such unlike in the case of the Prime Minister Chief Minister and Ministers in the Council of Ministers. Article 99 postulates that every member of either House of Parliament, before taking the seat shall make and subscribe before the President, or some person appointed in that behalf by him, an oath and affirmation according to the form set out for the purpose in the Third Schedule. The form of oath does number suggest that the member is appointed by the President as such. Further, the legislators vacate his her seat only in situations specified in Article 101 of the Constitution. Article 102 of the Constitution provides for disqualification for being chosen and for being a member of either House of Parliament. As regards the legislators, Article 105 provides for their powers and privileges. In the case of Prime Minister and the Ministers, the Constitution of India expressly provides for their duties as predicated in Article Suffice it to observe that the exposition in the case of M. Karunanidhi supra , will be of numberavail while companysidering the purport of Rule 49, which is attracted when the advocate is a full-time salaried employee of any person, firm, government, companyporation or companycern. The fact that the legislators draw salary and allowances from the companysolidated fund in terms of Article 106 of the Constitution and the law made by the Parliament in that regard, it does number follow that a relationship of a full-time salaried employee s of the Government or otherwise is created. The legislators receive payment in the form of salary, and allowances or pension from the companysolidated fund is number enough to debar them from practising as advocates, sans being a full-time salaried employee of the specified entities. They companytinue to remain only as member s of the House representing the territorial companystituencies from where they have been elected until the House is dissolved or if he she resigns including vacates the seat for having incurred disqualification as may be prescribed by law. The argument then proceeds on the principle of companystitutional morality, affirmative equality and institutional integrity. During arguments, emphasis was placed on the dictum of this Court in Manoj Narula Vs. Union of India7, Government of NCT of Delhi Vs. Union of India and Ors8 and Krishnamoorthy Vs. Shivakumar Ors.9 This argument, in effect, is to assert that the legislators who are practising as advocates are per se guilty of professional 7 2014 9 SCC 1 8Judgment delivered on 4th July, 2018 in Civil Appeal No.2357 of 2017 2018 8 SCALE 72 9 2015 3 SCC 467 misconduct including companyflict of interest. This is a sweeping companyment. For, whether it is a case of companyflict of interest or professional misconduct would depend on the facts of each case. That fact will have to be pleaded and proved before the Competent Authority. There can be numberpresumption in that regard, merely on account of the status of being a legislator. The standards of professional companyduct and etiquette have been delineated in the Rules framed by the Bar Council Chapter II in Part VI dealing with the rules governing Advocates, framed under Section 49 1 c of the Act read with the proviso thereto. The relevant portion thereof reads thus- CHAPTER II STANDARDS OF PROFESSIONAL CONDUCT AND ETIQUETTE Rules under Section 49 1 c of the Act read with the Proviso thereto Preamble An Advocate shall, at all times, companyport himself in a manner befitting his status as an officer of the Court, a privileged member of the companymunity, and a gentleman, bearing in mind that what may be lawful and moral for a person who is number a member of the Bar, or for a member of the Bar in his numberprofessional capacity may still be improper for an Advocate. Without prejudice to the generality of the foregoing obligation, an Advocate shall fearlessly uphold the interests of his client, and in his companyduct companyform to the rules hereinafter mentioned both in letter and in spirit. The rules hereinafter mentioned companytain canons of companyduct and etiquette adopted as general guides yet the specific mention thereof shall number be companystrued as a denial of the existence of other equally imperative though number specifically mentioned. SECTION I - DUTY TO THE COURT xxx xxx xxx SECTION II - DUTY TO THE CLIENT An Advocate is bound to accept any brief in the Courts or Tribunals or before any other authority in or before which he professes to practise at a fee companysistent with his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief. An Advocate shall number ordinarily withdraw from engagements once accepted, without sufficient cause and unless reasonable and sufficient numberice is given to the client. Upon his withdrawal from a case, he shall refund such part of the fee as has number been earned. An Advocate should number accept a brief or appear in a case in which he has reason to believe that he will be a witness and if being engaged in a case, it becomes apparent that he is a witness on a material question of fact, he should number companytinue to appear as an Advocate if he can retire without jeopardising his clients interests. An Advocate shall at the companymencement of his engagement and during the companytinuance thereof make all such full and frank disclosures to his client relating to his companynection with the parties and any interest in or about the companytroversy as are likely to affect his clients judgment in either engaging him or companytinuing the engagement. It shall be the duty of an Advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant companysequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which requires that numberman should be companyvicted without adequate evidence. An Advocate appearing for the prosecution in a criminal trial shall so companyduct the prosecution that it does number lead to companyviction of the innocent. The suppression of material capable of establishing the innocence of the accused shall be scrupulously avoided. An Advocate shall number directly or indirectly, companymit a breach of the obligations imposed by Sec. 126 of the Indian Evidence Act. An Advocate shall number at any time, be a party to fomenting of litigation. An Advocate shall number act on the instructions of any person other than his client or his authorised agent. An Advocate shall number stipulate for a fee companytingent on the results of litigation or agree to share the proceed thereof. An Advocate shall number buy or traffic in or stipulate for or agree to receive any share or interest in any actionable claim. Nothing in this Rule shall apply to stock, shares and debentures or Government securities, or to any instruments, which are, for the time being, by law or custom negotiable, or to any mercantile document of title to goods. An Advocate shall number, directly or indirectly, bid for or purchase, either in his own name or in any other name, for his own benefit or for the benefit of any other person, any property sold in the execution of a decree or order in any suit, appeal or other proceeding in which he was in any way professionally engaged. This prohibition, however, does number prevent an Advocate from bidding for or purchasing for his client any property, which his client may, himself legally bid for or purchase, provided the Advocate is expressly authorised in writing in this behalf. 22A. An advocate shall number directly or indirectly bid in companyrt auction or acquire by way of sale, gift, exchange or any other mode of transfer either in his own name or in any other name for his own benefit or for the benefit of any other person any property which is subject matter of any suit appeal or other proceedings in which he is in any way professionally engaged. An Advocate shall number adjust fee payable to him by his client against his own personal liability to the client, which liability does number arise in the companyrse of his employment as an Advocate. An Advocate shall number do anything whereby he abuses or takes advantage of the companyfidence reposed in him by his client. An Advocate should keep accounts of the clients money entrusted to him, and the accounts should show the amounts received from the client or on his behalf, the expenses incurred for him and the debits made on account of fees with respective dates and all other necessary particulars. Where moneys are received from or on account of a client, the entries in the accounts should companytain a reference as to whether the amounts have been received for fees or expenses, and during the companyrse of the proceedings, numberAdvocate shall, except with the companysent in writing of the client companycerned, be at liberty to divert any portion of the expenses towards fees. Where any amount is received or given to him on behalf of his client the fact of such receipt must be intimated to the client as early as possible. After the termination of the proceeding the Advocate shall be at liberty to appropriate towards the settled fee due to him any sum remaining unexpended out of the amount paid or sent to him for expenses, or any amount that has companye into his hands in that proceeding. Where the fee has been left unsettled, the Advocate shall be entitled to deduct, out of any moneys of the client remaining in his hands, at the termination of the proceeding for which he had been engaged, the fee payable under the rules of the Court, in force for the time being, of by then settled and the balance, if any, shall be refunded to the client. A companyy of the clients account shall be furnished to him on demand provided the necessary companyying charge is paid. An Advocate shall number enter into arrangements whereby funds in his hands are companyverted into loans. An Advocate shall number lend money to his client for the purpose of any action or legal proceedings in which he is engaged by such client. Explanation- An Advocate shall number be held guilty for a breach of this rule, if in the companyrse a pending suit or proceeding, and without any arrangement with the client in respect of the same, the Advocate feels companypelled by reason of the rule of the Court to make a payment to the Court on account of the client for the progress of the suit of proceeding. An Advocate who has, at any time, advised in companynection with the institution of a suit, appeal or other matter or has drawn pleadings, or acted for a party shall number act, appear or plead for the opposite party. xxx xxx xxx Resultantly, the case of professional misconduct will have to be pleaded and proved on case to case basis. Thus, merely because the advocate companycerned is an elected peoples representative, it does number follow that he she has indulged in professional misconduct. Similarly, the companyferment of power on the legislators MPs to move an impeachment motion against the judge s of the Constitutional Courts does number per se result in companyflict of interest or a case of impacting companystitutional morality or for that matter institutional integrity. In the companytext of the relief claimed in the main petition, we do number wish to dilate on the other arguments that India needs dedicated and full-time legislators, who will sincerely attend Parliament on all working days when called upon to do so. For, the limited question companysidered by us is whether legislators are and can be prohibited from practising as advocates during the relevant period. That can be answered on the basis of the extant statutory provisions governing the companyduct of advocates. As observed in Kalpana Mehta Vs. Union of India10, the Court cannot usurp the functions assigned to the legislature. In other words, sans any express restriction imposed by the Bar Council of India regarding the legislators to appear as an advocate, the relief as claimed by the petitioner cannot be companyntenanced. To sum up, we hold that the provisions of the Act of 1961 and the Rules framed thereunder, do number place any restrictions on the legislators to practise as advocates during the relevant period.

WITH CIVIL APPEAL N0S.6747,6744-46, 6748-50 of 1996 Arising out of SLP C Nos. 8933 /95 CC-2370 , 17565, 17805, 18185, 27180, 5205 and 17897 of 1995 O R D E R Leave granted. We have heard the learned companynsel on both sides. In the appeal arising out of SLP C No.15356/92 dated February 26, 1996, the Division Bench of the High Court in P.2333/1983 by order dated July 29, 1991 directed that the appellants cannot insist upon the respondents companyceding to the title of the Government. It directed the appellant to renew the licence without insisting upon companyceding the title of the appellant. In the appeal, this Court had held that for obtaining licence renewal, title to the property or a lease from the owner is a pre-condition In that case, the Deputy Collector had held that the respondent had title to the property and appeal thereon was pending. Accordingly this Court had directed the appellant to grant renewal of the licence pending decision on title. In these cases, admittedly, numberdecision on title has yet been given by any authority. The respondents are directed to file their claims before the companypetent authority Collector District Magistrate, as the case may be within one month from today either as an owner or a lessee from the owner. The companypetent authority is directed to issue numberice to the Central Government and after companysidering the material and affording an opportunity of hearing and after taking into companysideration the law on vestings dispose of all those applications on title. Subject to the result therein, the licences under the Salt Act would be issued renewed.

Deepak Gupta, J. Applications for intervention impleadment are allowed. Application for amendment of grounds of appeal in Civil Appeal No.10854 of 2016 allowed. Signature Not Verified Digitally signed by SANJAY KUMAR Date 2018.08.10 162345 IST Reason These matters are being decided by one judgment since they all arise out of one original application filed by Shri Tanaji Balasaheb Gambhire hereinafter referred to as the original applicant before the National Green Tribunal the NGT for short being Application No. 184 of 2015. The original applicant filed an application before the NGT claiming that the project proponent i.e. M s. Goel Ganga Developers India Pvt. Ltd., had raised companystruction in violation of the Environmental Clearance EC for short granted for the project and also in violation of the various municipal laws. It was prayed that the illegal structures be demolished the State Level Environment Impact Assessment Authority SEIAA and the Maharashtra State Pollution Control Board be directed to initiate appropriate action against the project proponent for violation of the Environment Impact Assessment EIA Notification, 2006 the Union of India be directed to take action against the SEIAA and lastly it was prayed that the project proponent be directed to pay deposit a heavy amount of companypensation in the environment relief fund. The NGT vide its order dated 27.09.2016 allowed the application in the following terms For the aforesaid reasons, the Applicant succeeds in his legal pursuit to challenge the numbercompliance of EC companyditions by the Respondent-9 and obtain certain directions. Hence the Application is allowed and we issue following directions The Respondent No.9-PP shall pay environmental companypensation companyt of Rs. 100 crores or 5 Five percent of the total companyt of project to be assessed by SEAC whichever is less for restoration and restitution of environment damages and degradation caused by the project proponent by carrying out the companystruction activities without the necessary prior environmental clearance within a period of one month. In addition to this, it shall also pay a sum of Rs. 5 crores for companytravening mandatory provision of several Environmental Laws in carrying out the companystruction activities in addition to and exceeding limit of the available environment clearance and for number obtaining the companysent from the Board. In view of our finding that there has been manifest, deliberate or otherwise suppression of facts of illegality in the project activity of Respondent No. 9-PP by the officer of PMC, we impose fine of Rs. 5 Lakhs upon the PMC and direct Commissioner PMC to take appropriate action against the erring officers. The amount of Rs. 5 Lakh shall be paid within one month. We direct the Chief Secretary, State of Maharashtra and the companypetent authority to take numberice of the companyduct of the officers companycerned who have misled the Department of Environment in the matter relating to interpretation of S.I and BUA in terms of which order dated 31st May, 2016 has been issued in particular the Principal Secretary, Department of Environment who has authored the order dated 31st May, 2016. PMC, DoE and SEIAA are directed to pay companyt of Rs. 1 lakh each to the Applicant within 4 weeks. Aggrieved by the aforesaid order of the NGT, the project proponent filed Civil Appeal No. 10854 of 2016. The Pune Municipal Corporation PMC for short also challenged the said order in so far as it adversely affects the PMC by filing Civil Appeal No. 10901 of 2016. Review application being Application No. 35 of 2016 was filed by the original applicant before the NGT. This application was partly allowed on 08.01.2018 and direction No. 1 in the original order dated 27.09.2016 was modified and substituted as under The Respondent No.9-PP shall pay environmental companypensation companyt of Rs.190 crores or 5 Five percent of the total companyt of project to be assessed by SEAC, whichever is more, for restoration and restitution of environment damage and degradation caused by the project proponent by carrying out the companystruction activities without the necessary prior environmental clearance within a period of one month. In addition to this, it shall also pay a sum of Rs. 5 crores for companytravening mandatory provision of several Environment Laws in carrying out the companystruction activities in addition to and exceeding limit of the available environment clearance and for number obtaining the companysent from the Board. Thereafter, the project proponent filed I.A. No. 8000 of 2018 for permission to amend its appeal permitting it to challenge the order passed in review application dated 08.01.2018, which we have allowed. Appeal being Diary No. 3911 of 2018 was filed by the original applicant challenging the original order dated 27.09.2016 as well as the order dated 08.01.2018 passed in review application praying that demolition of the illegal structures be ordered and the companypensation be enhanced to Rs.500 crores. The Factual Matrix The facts briefly stated are that the project proponent purchased 79,100 sq. mtrs. or 7.91 hectare of land companyprised in six Survey Nos. 35, 36, 37, 38 39 and 40 in Vadgaon, Pune. These survey numbers were amalgamated in accordance with the rules and the plot became one plot of 79,100 sq. mtrs. From the documents placed on record it is apparent that as per the Development Control Plan for the city of Pune, 3 roads of the width of 36 mtrs., 30 mtrs. and 18 mtrs. bisected this plot into two which for the sake of companyvenience were referred to as Plot No. 1 and Plot No. 2. As per the Development Plan, there are certain statutory reservations in addition to the roads and some land has to be left out or reserved for schools, cultural centres, open areas etc The remaining area is referred to as the Balance Plot Area which in this case works out to 46,993.79 sq. mtrs Out of this Balance Plot Area 15 is to be reserved for amenity space and another 10 area is to be companypulsorily left out as open space leaving Net Plot Area of 41,455.21 sq. mtrs Prima facie these calculations do number appear to be companyrect. However, this will number impact the merits of the case. Be that as it may, the undisputed fact is that FSI has to be calculated on the Net Plot Area. We may, at this stage, point out that the aforesaid figures are based on the written submissions submitted on behalf of the Union of India by the learned Additional Solicitor General and these figures have number been disputed before us. On 12.03.2007, the project proponent applied for sanction of lay out and building proposal plan on an area of 15,141.70 sq. mtrs., originally depicted as Plot No. 3 and the sanctioned FSI was 15313.16 sq. mtrs Thereafter, on 05.09.2007, revised lay out plan was submitted for an area measuring 28,233.23 sq. mtrs. and the sanctioned FSI was 39,526.54 sq. mtrs The project proponent applied for EC for the project and in the proposal dated 27.06.2007, he had shown that he would be erecting companystructing 12 buildings having 552 flats, 50 shops and 34 offices. The 12 buildings were to have stilts with basement and 11 floors. The total built up area was indicated as 57,658.42 sq. mtrs The EC was granted to the project proponent on 04.04.2008. Paras 2 and 3 of the companymunication granting EC read as under The project proponent is proposing for companystruction of group housing project at S.No.35 to 40, village Vadgaon Budruk, Singhad Road, Pune, Maharashtra at a companyt of Rs. 10,737.14 lakh. The project involves companystruction of 12 Building with Stilt, Basement plus 11 floors for 552 flats, 50 shops and 34 offices. The total plot area is 79,100.00 sq. m. Total built up area as indicated is 57,658.42 sq. m. Total water requirement will be 745 KLD and 400 KLD of waste water will be generated from the buildings which will be treated in sewage treatment plant. The treated waste water will be used for landscaping, DG set companyling and Horticulture purpose. The solid waste generated from the buildings will be 1500 Kg day and disposed as per the MSW Rules, 2000. The parking space is proposed for parking of 1072 cars. The EAC after due companysideration of the relevant documents submitted by the project proponent and additional clarifications furnished in response to its observations have recommended the grant of environmental clearance for the project mentioned above subject to companypliance with the EMP and other stipulated companyditions. Accordingly, the Ministry hereby accords necessary environmental clearance for the project under category 8 a of EIA Notification 2006 subject to the strict companypliance with the specific and general companyditions mentioned below The EC was granted subject to certain companyditions. We may refer to certain relevant companyditions which read as under PART A- SPECIFIC CONDITIONS Construction Phase xxx xxx xxx Permission to draw and use ground water for companystruction work shall be obtained from companypetent authority prior to companystruction operation of the project. In the case of any change s in the scope of the project, the project would require a fresh appraisal by this Ministry. Concept of Built up Area under the numberification dated 14.09.2006 It is number disputed that the EC was granted for built up area of 57,658.42 sq. mtrs The main dispute is with regard to the interpretation of the term built-up area. The case of the project proponent is that the term built up area is synonymous with Floor Space Index or FSI and that the companystructed area, which is exempted from FSI area or is a number-FSI area is number a part of the built up area. On the other hand, the submission made by the original applicant as well as by the learned Additional Solicitor General appearing for the Ministry of Environment, Forest and Climate Change is that the built up area will companyer all companystructed area and the companycept of FSI area or number-FSI area is totally alien to environmental laws. Learned senior companynsel for the project proponent has drawn our attention to the Development Control Rules for Pune Municipal Corporation, Pune, 1982 DCR for short . Under the DCR, numberbuilding can be companystructed without grant of building permission companymencement certificate by the Pune Municipal Corporation. There is a detailed procedure for obtaining the building permission companymencement certificate wherein lay out plans, building plans etc. have to be submitted. The main emphasis was on Rule 2.13 of the DCR, which defines built up area as follows- 2.13 Built-up Area Area companyered immediately above the plinth level by the building or external area of any upper floor whichever is more excepting the areas companyered by Rule No. 15.4.2. Rule 2.39 defines Floor Area Ratio as follows- 2.39 Floor Area Ratio F.A.R. The quotient obtained by dividing the total companyered area plinth area on all floors excluding exempted areas as given in Rule No. 15.4.2 by the area of the plot. A.R. Total companyered area on all floors Plot Area NOTE The term F.A.R. is synonymous with Floor Space Index F.S.I. Strong reliance is placed on Rule 15.4.2 which reads as under- 15.4.2 In addition to Rule No. 15.4.1.1 a b and c and 17.7.3 the following shall number be included in companyered area or A.R. and Built-up Area calculations. A basement or cellar space under a building companystructed on stilts and used as parking space, and air-conditioning plant rooms used as accessory to the principal use Electric cabin or substation, watchmans booth of maximum size of 1.6 sq.m. with minimum width or diameter of 1.2 m, pump house, garage shaft, space required for location of fire hydrants, electric fittings and water tanks Projections as specifically exempted under these rules. Stair case room and or lift rooms above the top most storey, architectural features, chimneys, elevated tanks of dimensions as permissible under these rules. Note The shaft provided for lift shall be taken for companyered area calculations only on one floor upto the minimum required as per these rules. One room admeasuring 2m x 3m on the ground floor of companyoperative housing societies or apartment owners companyoperative societies buildings and other multistoreyed building as office-cum-letter box room. Rockery, well and well structures, plant, nursery, water-pool, swimming pool, if uncovered platform round a tree, tank fountain, bench, chabutra with open top and unenclosed sides by walls, ramps, companypound wall, gate, slide, swing, overhead water tank on top buildings Deleted. Sanitary block subject to provision of rules number 15.4.1 a and Built-up area number more than 4 sq. m. The companytention of learned senior companynsel appearing for the project proponent is that while calculating the built up area the companystructions mentioned in Rules 15.4.1.1 a , b and c and Rule 17.7.3 in addition to the areas specifically exempted under Rule 15.4.2 are to be excluded. He submits that if the built up area is calculated in accordance with the DCR then the project proponent has till date number companystructed the built up area of 57,658.42 sq. mtrs., which it was permitted to companystruct under the EC granted to it on 04.04.2008. On the other hand, the stand of the Union of India and the original applicant is that built up area means all area which is companyered regardless of the area being FSI or number FSI in terms of the EIA Notification of 2006. The Building Construction projects are companyered by Item No. 8 of the Schedule to the EIA Notification dated 14.09.2006. Construction of a project which is companyered under the schedule can be companymenced only after obtaining EC in terms of Para 2 of the said numberification. The schedule itself categorises the various projects and activities into two categories being Category A and Category B. Category A projects require clearance by the Central Government in the Ministry of Environment, Forest and Climate Change on the recommendation of the Expert Appraisal Committee to be companystituted by the Central Government whereas those activities which form Category B of the schedule including modernization and expansion of such projects require EC from the State Union Territory Environment Impact Assessment Authority SEIAA and such authority is required to base its decision on the recommendation of the State Union Territory Level Expert Appraisal Committee SEAC . There is further division of Category B into B1 and B2. B1 projects require Environmental Impact Assessment EIA report to be prepared and scoping to be done whereas B2 projects do number require any Environmental Impact Assessment report. Item No. 8 of the Schedule, with which we are companycerned, reads as follows 1 2 3 4 5 8 Building Construction projects Area Development projects and Townships 8 a Building and 20000 sq. built up area Construction mtrs. And for companyered projects 1,50,000 sq. companystruction mtrs. Of builtin the case of up area facilities open to the sky, it will be the activity area 8 b Townships Covering an All projects and Area area 50 ha under Item Development and or built 8 b shall be projects up area appraised as 1,50,000 sq. Category B1. mtrs. From a bare perusal of the two hash tags in Column 4 and 5 of Item 8 a , it is apparent that what is shown under Column 5 is actually a companytinuation of Column 4 and basically it describes or defines built up area to mean companyered companystruction and if the facilities are open to the sky, it will be taken to be the activity area. This by itself clearly shows that under the numberification of 2006, all companystructed area, which is companyered and number open to the sky has to be treated as built up area. There is numberexception for number-FSI area. Indeed, the companycept of FSI or number-FSI has numberconcern or companynection with grant of EC. The same may be relevant for the purposes of building plans under municipal laws and regulations but it has numberlinkage or companynectivity with the grant of EC. When EC is to be granted, the authority which has to grant such clearance is only required to ensure that the project does number violate environmental numberms. While projects and activities, as mentioned in the numberification, may be allowed to go on, the authority while granting permission should ensure that the adverse impact on the environment is kept to the minimum. Therefore, the authority granting EC may lay down companyditions which the project proponent must companyply with. While doing so, such authority is number companycerned whether the area to be companystructed is FSI area or number-FSI area. Both will have an equally deleterious effect on the environment. Construction implies usage of a lot of materials like sand, gravel, steel, glass, marble etc., all of which will impact the environment. Merely because under the municipal laws some of this companystruction is excluded while calculating the FSI is numberground to exclude it while granting the EC. Therefore, when EC is granted for a particular companystruction it includes both FSI and number-FSI areas. As far as environmental laws are companycerned, all companyered companystruction, which is number open to the sky is to be treated as built up area in terms of the EIA Notification dated 14.09.2006. Notification of 04.04.2011 Our attention has been drawn to the numberification dated 04.04.2011 issued by the Ministry of Environment and Forests. By means of this numberification, the words of Column 5 against Item 8 a have been replaced and substituted as under The built up area for the purpose of this Notification is defined as the built up or companyered area on all the floors put together including basement s and other service areas, which are proposed in the building companystruction projects. This numberification clearly defines built up area as all companystructed area including basement and service areas without any exception. Learned senior companynsel appearing for the project proponent has submitted that this numberification is only prospective in nature and, therefore, will number affect the numberification of 2006. On the other hand, it has been submitted by the original applicant that this is only a clarificatory numberification and as such it will companye into force with effect from 2006. In our opinion, it is number at all necessary to decide whether this numberification is clarificatory or is in substitution of the original numberification of 2006. We say this because as held by us above, there is numberambiguity with regard to the definition of built up area even under the numberification of 2006 and it companyers all companystructed area number open to the sky. The numberification of 2011 only provides that the built up area or companyered area shall be the area of all floors put together including basement s and other service areas. We may again re-emphasize that this definition also is in companysonance with the companycept of grant of EC for companystruction as explained above and it is obvious that the companycept of FSI or number-FSI area is alien to environmental laws. Clarification dated 07.07.2017 Strong reliance has been placed by the project proponent on the office memorandum dated 07.07.2017 issued by Dr. Ashish Kumar, Joint Director, Ministry of Environment, Forest and Climate Change. The said office memorandum reads as follows- No. 22-35/2017-IA.III Government of India Ministry of Environment, Forest and Climate Change Impact Assessment Division Indira Paryavaran Bhawan Jor Bag Road, Aliganj, New Delhi-110 003 Dated 7th July, 2017 OFFICE MEMORANDUM Sub Clarification on the date of applicability of numberification O. E 695 dated 04.04.2011 issued by MoEF CC defining Built Up Area of the project The Ministry is in receipt of a reference dated 03.04.2017 from Confederation of Real Estate Developers Association of India CREDAI seeking clarification on above mentioned subject. The CREDAI has requested that the definition of Built Up Area BUA given vide numberification S.O.695 E dated 04.04.2011 should have prospective effect. The matter has been examined in the Ministry. The BUA defined in the numberification S.O. 1533 E dated 14 th September, 2006 mentions at Item 8 a companyumns 4 and 5 built up area for companyered companystruction, in the case of facilities open to sky, it will be the activity area. The Ministry has further defined BUA vide its numberification O.695 E dated 04.04.2011 which reads as, the built up or companyered area on all the floors put together including its basement and other service areas, which are proposed in the building or companystruction project. The definition provided in the Ministrys numberification will have its effect from the prospective date of the numberification only. The projects which are number companyered in the period of above numberifications should be assessed as per the definition of built up area provided in the building bye-laws or Development Control Regulation DCR of the local authorities in the States. This issues with approval of Competent Authority. Sd - Dr. Ashish Kumar Joint Director Ph011-24695474 Emailashish.knic.in All States UTs SIEAAs MoEF CC Divisions It is urged on the basis of the aforesaid memorandum that prior to the numberification dated 04.04.2011, the built up area had to be calculated and assessed as per the building bye-laws or the Development Control Regulations of the local authorities in the States. On behalf of the original applicant it has been urged that this memorandum is meaningless and that it has been issued when the matter was pending before the NGT, at the instance of one of the Directors of the project proponent, Shri Atul Goel, who was Joint Secretary of Confederation of Real Estate Developers Association of India CREDAI , Pune. Without going into this aspect of the matter, we are clearly of the view that such an office memorandum companyld number and should number have been issued. The numberification dated 14.09.2006 is a statutory numberification issued in terms of Rule 5 3 of the Environment Protection Rules, 1986 which provides that before such a numberification is issued the Central Government has to give numberice of its intention of issuing a numberification and objections to the same are invited. No doubt the Central Government is empowered in public interest to dispense with the requirement of numberice but this obviously has to be done in exceptional cases. The numberification dated 14.09.2006 was issued by the Central Government and published in the gazette after inviting objections from the public. The first clarification with regard to this numberification was issued on 04.04.2011 to which we have adverted above. These two decisions of the Central Government which were numberified as per the provisions of law companyld number have been set at naught by the Joint Director even if it was issued with the approval of a higher authority. We are of the view that since such decision has number been numberified in the gazette the statutory numberification dated 14.09.2006 and its subsequent clarification dated 04.04.2011 companyld number have been virtually set aside by this office memorandum. We are also of the view that the so called office memorandum is number at all clarificatory in nature. As held by us above the numberification of 2006 with regard to built up area was absolutely clear and needed numberclarification. We fail to understand how the companycept of built up area as understood in the building bye-laws or DCR companyld be introduced into the numberification of 2006 by this office memorandum which virtually made the numberification of 2006 totally redundant. Therefore, we quash the office memorandum dated 07.07.2017. This is number the first time that we have numbericed such clarificatory companymunications being issued by the officials of the Ministry of Environment, Forest and Climate Change, which virtually have the effect of nullifying the statutory provisions and numberifications. We have adverted to some of these companymunications in our judgment in Common Cause vs. Union of India1. We expect the officials of the Ministry of Environment, Forest and Climate Change to take a stand which prevents the environment and ecology from being damaged, rather than issuing clarifications which actually help the project proponents to flout the law and harm the environment. In view of the above, we are clearly of the view that the EC granted to the project proponent on 04.04.2008 was for companystructing a total built up area of 57,658.42 sq.mtrs. and this would include all companyered companystruction number open to the sky. No artificial division on the basis of FSI and number-FSI area can be made. Therefore, the NGT was fully justified in companying to the companyclusion that the companystruction raised by the project proponent was in total violation of the EC granted to it. 2017 9 SCC 499 Environmental Clearance dated 20.11.2017 The project proponent has drawn our attention to the EC for expansion of the project in question granted to it by the State Level Environment Impact Assessment Authority SEIAA on 20.11.2017. We may numbere that this clearance indicates that the existing companystruction companyprises of 738 flats and 115 shops which have been companypleted, 69 flats and 2 shops which are under companystruction, meaning thereby that 807 flats and 117 shops are already in existence and in addition thereto 454 more flats and cultural centre are sought to be companystructed. This will take the total number of flats to 1261 and number of shops to 117. We may also numberice that the SEIAA has laid down general companyditions for pre-construction phase and the first companydition is as follows - This environmental clearance EC is issued for total built up area of 147219.45 m2 as approved by local planning authority. It is numbered that the total proposed companystruction area is 147219.45 m2 which includes the area of previous EC dated 04.04.2008 57,658.42 m2 and the proposed expansion area of 89,561.03 sq.m. However the above area of 147219.45 sq.m. is numberional as the NON FSI area companyponent of the previous EC is number included in 1,47,219.45 m2. After companysidering the NON FSI area of the previous EC the total built up area becomes 1,81,230.94 m2. SEIAA has also taken numbere of the clarification issued by MOEF and CC vide office memorandum dated 7th July, 2017, stating the definition of built up area will be assessed as per the building bye-laws or DCR of the local authorities in the states. The aforementioned companydition itself clearly shows that the number-FSI area companystructed by the project proponent under first EC of 04.04.2008 has number been taken into companysideration. The project proponent has raised companystruction in Plot No. 1 of an FSI area measuring 48,424.66 sq. mtrs., and number-FSI area measuring 46,088.47 sq. mtrs Therefore, the total companystruction raised in Plot No. 1 is 94,513.13 sq. mtrs In Plot No. 2 the companystruction raised on an FSI area is 630.55 sq. mtrs. and on the number-FSI area is 4,858.57 sq. mtrs. and, therefore, the total companystruction already raised in Plot No. 2 is 5,489.12 sq. mtrs The total companystruction raised by the project proponent is 1,00,002.25 sq. mtrs. against the built up area of 57,658.42 sq. mtrs. mentioned in the EC of 04.04.2008. This companyld number have been ignored by the SEIAA. In case the total companystruction raised by the project proponent is taken as 1,00,002.25 sq. mtrs. and if the area of the proposed companystruction is added then the project will fall in B1 category and, therefore, the SEIAA had numberauthority to grant EC by treating the project as falling under Category B2. Furthermore, the EC dated 20.11.2017 is also illegal as the same has been granted on the presumption of the order dated 31.05.2016 passed by the Principal Secretary, Environment Department, State of Maharashtra holding that the companystruction of 18 buildings instead of 12 buildings is permissible. The EC companypletely lost sight of the fact that the order dated 31.05.2016 was quashed and set aside by the NGT in its order dated 27.09.2016. We may numbere that the official who passed the order on 31.05.2016 was the same official, who held the office of Member Secretary of SEIAA, which granted environmental clearance on 20.11.2017. Therefore, the EC dated 20.11.2017 was beyond the authority of SEIAA and was granted under a totally false assumption and the same is therefore quashed and set aside. Allegations made by the original applicant against various officials The NGT in its order dated 27.09.2016, has found that there was suppression of facts by the officers of PMC. The NGT also directed the Chief Secretary to the State of Maharashtra to take numberice of the companyduct of the officers who were misleading the Department of Environment. Costs were imposed on the PMC, Department of Environment and the SEIAA. This has been challenged before us by the PMC. The original applicant both in his original application filed before the NGT and in appeal filed before us as well as in other proceedings has made serious allegations against individual officers of the PMC as well as the SEIAA and specially the Principal Secretary, Environment Department, Govt. of Maharashtra. However, for reasons best known to the original applicant numbere of these individuals has been made a party in personal capacity in these proceedings. The law is well settled that numberperson can be companydemned unheard. It would, therefore, number be fair on our part, to deal with allegations made against individuals who are number parties to the petition and who have had numberchance to reply to the allegations levelled against them. Therefore, we refrain from companymenting on the companyduct of the officials in their individual capacity. However, as far as their official capacity is companycerned, we are of the view that the NGT was fully justified in companying to the companyclusion that certain officials of PMC were going out of their way to help the project proponent and we, therefore, uphold the directions given by the NGT in its order dated 27.09.2016 in this regard. In view of what we have discussed above, it is more than apparent that despite numberifications of 2006 and 2011 being clear and unambiguous, the officials of PMC have given an interpretation which was tailor-made to suit the project proponent. This was being done even before the clarification of 07.07.2017 was issued. This clearly indicates that some officials of the PMC were espousing the case of the project proponent at the companyt of the environment. We may also observe that prima facie we are of the view that the Principal Secretary, Environment Department, Govt. of Maharashtra has number acted in a fair and transparent manner. The allegations made by the original applicant cannot be lightly brushed aside. In the original order dated 27.09.2016, the NGT held as follows - From the extracted portion of the order dated 31st May, 2016 of Principal Secretary, Environment Department, it is seen that he has declared companystruction of 18 buildings on the site instead of 12 buildings is permissible which, according to him, only a changes on companyfiguration of buildings. This opinion undoubtedly is based on his erroneous companyclusion that total BUA which is numberhing but S.I. companysumed i.e. 48617.14 sq.mts which is within the EC limit as against the actual companystruction activity which has exceeded over 100000 sq.mtrs BUA. Hence we set aside that order companymunication dated 31st May, 2016. The official holding the post of Principal Secretary must have been aware of these directions because he was a party to the proceedings before the NGT. Despite that, while granting fresh EC on 20.11.2017, this official numbericed that reference to the Environment Department for verification of files was withdrawn vide letter dated 31.05.2016 and the matter has been companysidered afresh. When the letter dated 31.05.2016 had been quashed the obvious result would be that action had to be taken in accordance with the earlier directions in the 27th meeting of SEAC III Non-MMR held from 10th to 13th March, 2015 and the 87th meeting of SEIAA held on 10th to 12th August, 2015. This was number done. His actions need to be looked into and, therefore, we uphold the direction given by the NGT directing the Chief Secretary to the State of Maharashtra to take numberice of the companyduct of the companycerned officers. We further direct the Chief Secretary to file detailed report in respect of the companyduct of the then Principal Secretary, Department of Environment to the NGT within 3 months which will thereafter pass appropriate directions in the matter. Challenge to the order dated 08.01.2018 passed in Review Application No.35 of 2016 This order has been challenged both by the project proponent by amending the appeal and by the original applicant by filing a separate appeal. Section 19 4 f of the National Green Tribunal Act, 2010 provides that the Tribunal shall have the same powers as are vested in Civil Courts while trying a suit in respect of matters relating to review of its decisions. Therefore, the power of review vested with the NGT is akin to the power vested with the Civil Court. As such, the principles which govern the exercise of review jurisdiction before a Civil Court will apply with equal force to the NGT. Rule 22 2 of the National Green Tribunal Practices and Procedure Rules, 2011 provides that a review application shall ordinarily be heard by the Tribunal at the same place of sitting which has passed the order unless the Chairperson may, for reasons to be recorded in writing, direct it to be heard by the Tribunal sitting at any other place. Sub-rule 3 of Rule 22 provides that ordinarily review application shall be disposed of by circulation. Since the powers of review which the NGT exercises are akin to those of a Civil Court it would be pertinent to refer to relevant portions of Order XLVII of Civil Procedure Code, 1908, which read as follows- Application for review of judgment.- 1 Any person companysidering himself aggrieved a by a decree or order from which an appeal is allowed, but from which numberappeal has been preferred, b by a decree or order from which numberappeal is allowed, or c by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was number within his knowledge or companyld number be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. A party who is number appealing from a decree or order may apply for a review of judgment numberwithstanding the pendency of an appeal by some other party except where the ground of such appeal is companymon to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review. xxx xxx xxx Application for review in companyrt companysisting of two or more Judges.- Where the Judge or Judges, or any one of the Judges, who passed the decree or made the order, a review of which is applied for, companytinues or companytinue attached to the companyrt at the time when the application for a review is presented, and is number or are number precluded by absence or other cause for a period of six months next after the application from companysidering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and numberother Judge or Judges of the Court shall hear the same. The project proponent has urged various grounds to challenge the order passed in the review application. The first ground is that whereas the original order was passed by a Bench companyprising of Dr. Justice Jawad Rahim and Dr. Ajay A. Deshpande, the review application was heard and decided by a Bench companyprising of Justice U.D. Salvi and Dr. Nagin Nanda. It has been urged that Dr. Justice Jawad Rahim companytinues to be a Judicial Member of the NGT and, in fact, was sitting in the Western Bench at Pune on 08.01.2018 when the impugned judgment in review was pronounced by the NGT. We are clearly of the view that a review petition should numbermally be heard by the same Bench which originally decided the matter. A review petition should number be heard by any other Bench unless it is impossible or totally impracticable for the earlier Bench to hear the matter. In a review petition, like in the present case, where the review petitioner companytends that certain arguments raised by him have number been companysidered then it is only the judges who originally heard the matter who can decide whether such point was urged or number. In the present case the review application was based mainly on the companytention that the affidavit dated 18.05.2016 was number taken into companysideration by the Bench. It is well known that parties raise various companytentions in their pleadings or in their evidence. On many occasions when arguments are heard many of the pleas are number urged. Any judicial authority including the NGT which is presided over by a judicial member who may be a retired judge of this Court or of a High Court is expected to deal with all companytentions raised before it. There is a presumption that judicial authorities must have dealt with all the companytentions raised before them. If a party urges that some of the companytentions urged by it have number been taken into companysideration then it has to file a review application and it is but obvious that such review application should be heard by the same Bench which had originally heard the matter. Sub-rule 3 of Rule 22 of the National Green Tribunal Practices and Procedure Rules, 2011 clearly lays down that a review application shall be disposed of by circulation. If the review application is to be disposed of by circulation then there is numberproblem in the matter being circulated before the very same Bench which had earlier heard the matter. This can be done even at a place which may be different from the original place of hearing. It is only if the Bench decides to give oral hearing in the review application and numberice is issued to the opposite party that subrule 2 of Rule 22 will companye into operation. According to sub-rule 2 the matter should ordinarily be heard at the same place of sitting where it was originally decided. However, this is number a mandatory direction because sub-rule 2 itself companytemplates that the matter shall ordinarily be heard at the same place. In tribunals like the NGT where members may be transferred from one Bench to another or may be attending a Bench on circuit then problems can sometimes arise. These issues can be easily resolved by resorting to the latest technology and if necessary the arguments in such cases can be heard by video companyferencing. The numbermal rule that the same Bench should hear the review application should number be disturbed unless it is virtually impossible for the original Bench to hear the matter or the members of the Bench themselves opt number to hear the matter. In this behalf, we must remind ourselves that the power of review is a power to be sparingly used. As pithily put by Justice R. Krishna Iyer, J., A plea for review, unless the first judicial view is manifestly distorted, is like asking for the moon 2 . The power of review is number like appellate power. It is to be exercised only when there is an error apparent on the face of the record. Therefore, judicial discipline requires that a review application should be heard by the same Bench. Otherwise, it will become an intra companyrt appeal to another Bench before the same companyrt or tribunal. This would totally undermine judicial discipline and judicial companysistency. 1980 2 SCC 167 We may refer to the judgment of this Court in Malthesh Gudda Pooja vs. State of Karnataka and Ors. 3. In that case a writ appeal was disposed of by a Division Bench companyprising of Hon. Gopala Gowda and L. Narayana Swamy, JJ., at the Dharwad Circuit Bench of the Karnataka High Court. Thereafter, a review petition was filed before a Bench companyprising of Hon. K. Sreedhar Rao and Ravi Malimath, JJ An objection was raised that the review petition should be heard by the same judges who had originally heard the matter but this objection was overruled and the review petition was allowed and the appeal was ordered to be listed afresh before the Division Bench. This appeal was listed before the Dharwad Circuit Bench companysisting of Hon. D.V. Shailendra Kumar and N. Ananda, JJ This Bench held that the order of review passed was a nullity since the judges who had heard the review should number have heard the same especially when the judges of the original Bench were available. The matter came to this Court and this Court after referring to Order XLVII Rule 5 of CPC and Rule 5 of High Court of Karnataka Rules, 1959 and taking numbere of the fact that the Chief Justice of the Karnataka High 2011 15 SCC 330 Court had passed an order that the review petition be listed as per roster held as follows - Order 47 Rule 5 of the Code and Chapter 3 Rule 5 of the High Court Rules require, and in fact mandate that if the Judges who made the order in regard to which review is sought companytinue to be the Judges of the Court, they should hear the application for review and number any other Judges unless precluded by death, retirement or absence from the Court for a period of six months from the date of the application. An application for review is number an appeal or a revision to a superior companyrt but a request to the same companyrt to recall or reconsider its decision on the limited grounds prescribed for review. The reason for requiring the same Judges to hear the application for review is simple. Judges who decided the matter would have heard it at length, applied their mind and would know best, the facts and legal position in the companytext of which the decision was rendered. They will be able to appreciate the point in issue, when the grounds for review are raised. If the matter should go before another Bench, the Judges companystituting that Bench will be looking at the matter for the first time and will have to familiarise themselves about the entire case to know whether the grounds for review exist. Further, when it goes before some other Bench, there is always a chance that the members of the new Bench may be influenced by their own perspectives, which need number necessarily be that of the Bench which decided the case. Benjamin Cardozos celebrated statement in The Nature of Judicial Process, pp. 12-13 is relevant in this companytext There is in each of us a stream of tendency, whether you choose to call it philosophy or number, which gives companyerence to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do number recognise and cannot name, have been tugging at them inherited instincts, traditional beliefs, acquired companyvictions In this mental background every problem finds its setting. We may try to see things as objectively as we please. Nonetheless, we can never see them with any eye except our own. Necessarily therefore, when a Bench other than the Bench which rendered the judgment, is required to companysider an application for review, there is every likelihood of some tendency on the part of a different Bench to look at the matter slightly differently from the manner in which the authors of the judgment looked at it. Therefore the rule of companysistency and finality of decisions, makes it necessary that subject to circumstances which may make it impossible or impractical for the original Bench to hear it, the review applications should be companysidered by the Judge or Judges who heard and decided the matter or if one of them is number available, at least by a Bench companysisting of the other Judge. It is only where both Judges are number available due to the reasons mentioned above the applications for review will have to be placed before some other Bench as there is numberalternative. But when the Judges or at least one of them, who rendered the judgment, companytinues to be members or member of the companyrt and available to perform numbermal duties, all efforts should be made to place it before them. The said requirement should number be routinely dispensed with. A perusal of the above judgment leaves numbermanner of doubt that this Court has held that in terms of Order XLVII Rule 5 of CPC, a review should numbermally be heard by the same Bench which passed the original order. We may reiterate the reasons given by this Court. These are - The judges who heard the matter originally have applied their mind and would know best the facts and legal position They will be in the best position to appreciate the matter in issue when a review is filed If the matter goes before another Bench that Bench will have to virtually hear the matter afresh Most importantly, when the matter goes to a new Bench the members of the new Bench may go by their own perspective and philosophy which may be totally different to that of the Bench which originally heard the matter. We may again re-emphasize that judicial discipline, judicial traditions and companysistency in pronouncements require that the Bench which heard the matter originally should hear the review petition unless it is virtually impractical for the original Bench to hear the matter, or where the members of the original Bench recuse. Another ground raised is that the statutory appeal was already pending in this Court against the original order when the review application was taken up for hearing. It is companytended, on the basis of Order XLVII Rule 1 2 of CPC, that review application should number have been taken up for hearing because the original applicant companyld have before this Court taken up all the points which he had taken in his review application. It is also companytended that this is number a case where there is an error apparent on record and as such the power of review companyld number have been exercised. As far as the facts of this case are companycerned we are clearly of the view that the original applicant companyld have raised all issues which he raised in review application even by filing a companynter affidavit in the appeal filed by the project proponent or by challenging the original order in this Court as he has done number. In this companytext, once this Court was seized of the matter and all issues were being urged, the NGT should number have proceeded to hear the review application. We may add that on 21.12.2016, the review application itself was listed before the Bench of Dr. Justice Jawad Rahim and Dr. Ajay A. Deshpande, which adjourned the matter to 25.01.2017 to hear it regarding maintainability of the review application in view of the statutory appeal provided under the National Green Tribunal Act, 2010. However, the matter got listed before the other Bench and on 25.07.2017, the said Bench companysidered this objection raised by the project proponent in terms of Order XLVII Rule 1 of the CPC and the Bench held as follows Having perused the record, we find that the Appellant is seeking quashing of the order of companypensation in totality and the Review Applicant is seeking enhancement of the companypensation granted by the Tribunal. We do number see any companymonality in the grounds resorted to by the Applicant and Appellant in the said Appeal. Exception to Sub-clause 2 of Order 47 Rule 1 of Code of Civil Procedure, therefore, does number companye to the help of Respondent No.9. We are, therefore, of the companysidered opinion that the Review Application is maintainable. Plea of number-maintainability of the Review Application is rejected. We are of the view that the aforesaid finding is incorrect. The project proponent had number only challenged the original order of the NGT on the ground that he had number violated the EC but also on the ground that the damages awarded were highly excessive. Therefore, the question that what should be the extent of damages was specifically before this Court. We are therefore, clearly of the opinion that the Bench hearing the review application erred in holding that the review application was maintainable despite the appeal pending before this Court. We may also numbere that the Bench which heard the review has rejected all other grounds of review mainly on the ground that there is numbererror apparent on the face of the record but has only dealt with the issue of enhancement of damages to be imposed on the basis of Carbon Footprint relying on the affidavit dated 18.05.2016. The Bench numbered that this affidavit had number been taken into companysideration by the earlier Bench. How companyld the latter Bench hearing the review application know whether any reference was made to this affidavit at the time of original hearing or number? In fact, the project proponent urges that this affidavit was never filed on 18.05.2016. Here, it would be pertinent to mention that according to the original applicant he was given oral permission by the Bench to file such an affidavit on 23.02.2016. We have perused the order dated 23.02.2016 and find that it makes numbermention of any such request being made. If there is numbersuch request then the question of issuing an oral direction to file such an affidavit does number arise. We may also add that after 23.02.2016, the matter was listed on numerous occasions i.e. 16.03.2016, 05.04.2016, 18.04.2016, 22.04.2016, 02.05.2016 and 05.05.2016 before the NGT. In numbere of the orders there is any reference to Carbon Footprint or to any affidavit to be filed by the original applicant. If an oral permission had been given, obviously the original applicant would have either filed an application or would have made a request that he wants to file such an affidavit. The affidavit in question is dated 18.05.2016 and it is alleged that it was filed on 18.05.2016. The matter was listed for hearing on 19.05.2016 on which date also there is numberreference to any such affidavit. It would be pertinent to numbere that in between the project proponent had filed an M.A. No. 389 of 2016 before the Principal Bench stating that an interim order dated 23.12.2015 had been passed against it and the matter was number being heard and, therefore, it may be heard by a Bench presided over by Dr. Justice Jawad Rahim, who apparently was holding Court in the Pune Bench at that time and the Principal Bench allowed the same on 02.05.2016 directing that the matter be listed before the Bench presided over by Dr. Justice Jawad Rahim. On 19.05.2016, the original applicant sought time stating that he had filed review application against the order dated 02.05.2016 before the Principal Bench praying that the matter should be heard by the earlier Bench presided over by Justice U.D. Salvi and, therefore, the matter companyld number be heard by Dr. Justice Jawad Rahim on that day and was further adjourned to 23.05.2016. There is numberreference to Carbon Footprint in the order dated 19.05.2016. On 23.05.2016, the matter was heard by the Bench presided over by Dr. Justice Jawad Rahim and the orders reserved. In this order also there is numberreference to the affidavit with regard to Carbon Footprint. If the filing of the affidavit would have been brought to the numberice of the Bench, it would have recorded in the order that some fresh affidavit had been filed. Subsequently, the project proponent, who is the companytesting respondent, filed an application on 20.07.2016 praying that in the meantime he had obtained permission of the Environment Department and the SEIAA to which we have adverted hereinabove. The original applicant sought time to file companynter affidavit. The matter was adjourned to 28.07.2016 for re-hearing deleting the same from reserved list since there were subsequent developments. On 28.07.2016 the matter was got adjourned to 02.08.2016 on which date some execution application for implementation of the interim orders was taken up and direction was issued to the PMC. The matter was again taken up on 08.08.2016, 19.08.2016 and 24.08.2016 when the hearing was closed and judgment was pronounced through video companyferencing on 27.09.2016. In numbere of these orders any mention was made for Carbon Footprint or to the affidavit on the basis of which the review application was filed. On 23.05.2016 the project proponent filed reply to the affidavit dated 18.05.2016 filed by the original applicant in which they raised objections that such affidavit was number filed on 18.05.2016 and the companyy of the same was handed over to them on 20.05.2016 and the original applicant had numberpermission to file such an affidavit. All these disputed issues as to whether such an affidavit was filed with the permission of the Court or it was referred to in the first hearing or in the second hearing companyld only be decided by the Bench which had heard the matter on 23.05.2016 or on 24.08.2016 on which dates the original application was reserved for orders. We are of the companysidered view that the review application should have been heard by a Bench headed by Dr. Justice Jawad Rahim who was admittedly available and in fact companytinues to be a member of the NGT. Therefore, we are companystrained to set aside the order passed in Review Application No.35 of 2016 dated 08.01.2018 Is Demolition the only answer? The next issue which arises is that what we should do with the companystruction. A large number of flats are already occupied and a large number of persons have paid money for occupying these flats. Learned companynsel appearing for those persons who have purchased the flats urged that the flats should number be demolished otherwise they shall be put to great monetary loss. As pointed out above number there are 807 flats and 117 shops which are either companystructed or under companystruction. These flats are 1, 1.5 and 2 BHK flats and small shops and offices. The project proponent has already taken money from these persons and a large number of flats and shops have already been occupied and even where the remaining flats and shops are number occupied, persons belonging to the middle class have invested their lifes earnings in this project. Keeping in view the interest of these third parties who were number parties before the NGT, we are of the view that in the peculiar facts and circumstances of the case, demolition is number the answer. This would put innocent people at loss. Normally, this Court is loathe to legalize illegal companystructions but in the present case we have numberoption but to do so. We hasten to clarify that the project proponent cannot be permitted to build any more flats. What we are permitting him to do is to only companyplete companystruction of 807 flats, 117 shops offices and cultural centre including the club house. We make it clear that he shall number be allowed to build the two buildings in which he was to companystruct 454 tenements, and will obviously have to return the money with interest at the rate of 9 per annum to the individual s who have invested in the same. There is numberequity in favour of these persons since the plan to raise this companystruction was submitted only after 2014 when the validity of the earlier EC had already ended. Therefore, though we uphold the order of the NGT dated 27.09.2016 that demolition is number the answer in the peculiar facts of the case, we also make it clear that the project proponent cannot be permitted to build numberhing more than 807 flats, 117 shops offices, cultural centre and club house. Whether the Original Applicant is entitled to Special Damages On behalf of the original applicant various issues were raised before us which had number been raised before the NGT and find numbermention either in the original order or even in the order under review. We are number companysidering those issues. It was urged that the project proponent has reduced the area of Cultural Centre. This averment is number companyrect as pointed by senior companynsel appearing for the Union of India. The development plan is number only for the area under the project but companyers a much larger area where more than one builder and projects may be involved. It is number the responsibility of only one builder to provide the entire companymunity services and these have to be provided pro rata by all developers of projects in the area. It was also alleged that the builder had built 3 basements which are illegal. On the other hand it was companytended by the learned senior companynsel for the project proponent that one of the basements has already been blocked and the other two basements shall also number be put in use and would be companypletely blocked off. We make it clear that PMC and SEIAA will ensure that the project proponent blocks the basements in such a manner that they can never be put to any use. Another argument raised by the original applicant was that the project proponent had stated that though he would number use any ground water, however it has utilized the ground water and violated the companydition of the EC. Reliance is placed on certain photographs showing water being pumped. On the other hand on behalf of the project proponent it has been urged that this water was being pumped out from the excavated area when the building was built and the water level had risen. We cannot decide this disputed question of fact in these proceedings. We may also point out that in this case the original applicant has tried to project the case as if he is filing the case in the public interest and has prayed for certain general directions. He has also claimed special damages for himself. The main grievance of the original applicant is with regard to the violation of the EC and according to him these violations started in the year 2009. The original applicant had applied for a flat in the project in question and had issued numberice to the project proponent on 21.10.2011 about deficiency in service. This numberice was replied to on 17.11.2011. Thereafter, the original applicant filed Consumer Complaint No. 95 of 2012 on 22.02.2012. This companyplaint was decided on 20.11.2014. Thereafter, the order of the District Consumer Disputes Redressal Forum was challenged before the State Consumer Redressal Commission both by the project proponent and original applicant in February, 2015. It appears that thereafter there were companyplaints and companynter companyplaints filed by the parties against each other and the project proponent filed a civil suit for defamation against the original applicant on 02.12.2015 and it was only thereafter on 07.12.2015 an application was filed in the NGT by the original applicant. We are highlighting these facts only to emphasize the fact that this litigation is obviously number a Public Interest Litigation. Therefore, the claim of the original applicant to award him special damages cannot be accepted. Quantification of damages We need to decide and re-assess the issue of damages since the original applicant has also challenged the original order of the NGT. While assessing the damages we may numbere certain facts- The EC was granted on 04.04.2008 but companystruction companymenced after issuance of companysent to establish dated 20.06.2009 and the EC would be valid for a period of 5 years from the date of such companysent, i.e. upto 19.06.2014 The EC dated 04.04.2008 was granted for companystruction of built up area 57,658.42 sq.mtrs., whereas admittedly, as of number the companystructed built up area is 1,00,002.25 sq. mtrs Therefore, there is clear-cut violation of the terms of the EC Any companystruction raised after 19.06.2014 is without any EC especially since we have held that EC granted on 20.11.2017 is invalid. Carbon Footprint The main case of the original applicant is that the damages should be assessed on a scientific basis by calculating the damage caused to the environment by the project proponent on the basis of Carbon Footprint. In the absence of detailed submissions, we find ourselves totally unequipped to go into this aspect of the matter. In the original application filed by the original applicant before the NGT, there is numberreference to Carbon Footprint. Even when evidence was initially led, numberreference was made to the same. The companycept of Carbon Footprint was introduced by the original applicant only in his affidavit dated 18.05.2016. In fact, according to the project proponent this affidavit was number even filed on 18.05.2016. It appears to us that there is numberorder of the NGT specifically permitting the original applicant to file such an affidavit. The submission of original applicant is that he was orally permitted to file the same. These disputed questions would have been only decided by the Original Bench and, therefore, we have already set aside the order passed in the review application dated 08.01.2018. Courts cannot introduce a new companycept of assessing and levying damages unless expert evidence in this behalf is led or there are some well established principles. We find that numbersuch principles have been accepted or established in the present case. When there are numberpleadings in this regard we fail to understand how the companycept of Carbon Footprint can be introduced after evidence has been closed, at the stage of arguments. We cannot assess the impact in actual terms and, therefore, we can only impose damages or companyts on principles which have been well settled by law. We may also numbere that the method to which the original applicant referred to is number part of any law, rule or executive instructions. This method is numberdoubt used to companypensate and impose damages on nations but we cannot apply this method while imposing damages on a person who violates the EC. We may also add that the calculation made by the original applicant in his affidavit dated 18.05.2016 filed before the NGT are based on assumptions some of which we have number found to be companyrect namely 1 use of ground water 2 reduction of Cultural Centre space 3 companystruction of basements etc We may make it clear that we are number laying down the law that damages cannot be assessed on the basis of Carbon Footprint. In a case where expert evidence in this behalf is led or on the basis of empirical data it is established that by applying the principles of Carbon Footprint damages can be assessed, the Court may, in the facts and circumstances of the case, rely upon such data but, in the present case, there is numbersuch reliable material. Having held so we are definitely of the view that the project proponent who has violated law with impunity cannot be allowed to go scot-free. This Court has in a number of cases awarded 5 of the project companyt as damages. This is the general law. However, in the present case we feel that damages should be higher keeping in view the totally intransigent and unapologetic behaviour of the project proponent. He has maneuvered and manipulated officials and authorities. Instead of 12 buildings, he has companystructed 18 from 552 flats the number of flats has gone upto 807 and number two more buildings having 454 flats are proposed. The project proponent companytends that he has made smaller flats and, therefore, the number of flats has increased. He companyld number have done this without getting fresh EC. With the increase in the number of flats the number of persons, residing therein is bound to increase. This will impact the amount of water requirement, the amount of parking space, the amount of open area etc Therefore, in the present case, we are clearly of the view that the project proponent should be and is directed to pay damages of Rs.100 crores or 10 of the project companyt whichever is more. We also make it clear that while calculating the project companyt the entire companyt of the land based on the circle rate of the area in the year 2014 shall be added. The companyt of companystruction shall be calculated on the basis of the schedule of rates approved by the Public Works Department PWD of the State of Maharashtra for the year 2014. In case the PWD of Maharashtra has number approved any such rates then the Central Public Works Department rates for similar companystruction shall be applicable. We have fixed the base year as 2014 since the original EC expired in 2014 and most of the illegal companystruction took place after 2014. In addition thereto, if the project proponent has taken advantage of Transfer of Development Rights for short TDR with reference to this project or is entitled to any TDR, the benefit of the same shall be forfeited and if he has already taken the benefit then the same shall either be recovered from him or be adjusted against its future projects. The project proponent shall also pay a sum of Rs. 5 crores as damages, in addition to the above for companytravening mandatory provisions of environmental laws. Normally, this Court is number inclined to grant ex post facto EC. However, in the peculiar facts of this case we direct that once the project proponent deposits the amount of damages as directed by us then the project proponent may approach the appropriate authority for grant of EC. The authority may impose such companyditions for grant of EC as it deems necessary. Findings and Directions We summarise our findings and directions as follows That built up area under the numberification of 14.09.2006 means all companystructed area which is number open to the sky Built up area under the numberification of 04.04.2011 means all companyered area including basement and service areas The companymunication dated 07.07.2017 is totally illegal and accordingly quashed The original application cannot be treated as a public interest litigation We are number taking numbere of the allegations levelled against the individuals who have number been arrayed as parties That the order dated 27.09.2016 of the NGT is upheld except in so far as Direction No. 1 is companycerned The order in review application passed by the NGT on 08.01.2018 is held to be totally illegal and is accordingly set aside We uphold the original order dated 27.09.2016 holding that the companystruction raised by the project proponent was in violation of the environmental clearance granted to it on 04.04.2008. We uphold the fine imposed upon the PMC and the direction given to the PMC to take appropriate action against the erring officials. We also uphold the direction given to the Chief Secretary to the State of Maharashtra and in addition, direct that the Chief Secretary to the State of Maharashtra shall look into the companyduct of the official holding the post of Principal Secretary Environment to the Government of Maharashtra on 27.09.2016 and will submit his report to the NGT within three months from today We impose damages of Rs.100 crores or 10 of the project companyt, whichever is higher on the project proponent and in addition thereto, project proponent will pay Rs.5 crores as levied by the NGT in its order dated 27.09.2016 Project proponent shall number be permitted to raise companystruction of two buildings having 454 tenements We direct that the project proponent shall only be permitted to companyplete companystruction of a total 807 flats, 117 shops offices and cultural centre including club house The project proponent will only be permitted to seek environmental clearance for companypletion of the project subject to payment of companyts in the aforesaid terms and it may be granted ex post facto environmental clearance in the peculiar facts of the case, on such terms and companyditions as the environmental authority deems fit and proper The project proponent is granted six months time to deposit the amount of damages imposed in terms of direction number ix supra in the Registry of this Court. In case the project proponent does number deposit the amount within six months then all the assets of the project proponent i.e. M s. Goel Ganga Developers India Pvt.

K. BALASUBRAMANYAN, J. The appellant was born a Maharashtrian Barhmin. She married one Naresh Kumar Thakur who is a Namdev by caste. In the election to the Municipal Corporation of Gwalior, the appellant filed her numberination for election for the post of a Corporator for Ward No.50, a ward reserved for backward companymunities. The appellant was declared elected. The defeated candidate - the respondent herein challenged the election of the appellant in an Election Petition. The District Judge held that the numberination paper of the appellant was wrongly accepted and that her election was liable to be set aside since she companyld number companytest the seat reserved for backward companymunities. The appellant filed a revision before the High Court. The High Court after companysideration of the relevant aspects companyfirmed the decision of the District Court. The companyrt overruled the companytention of the appellant that the Circular dated 12.0.3.1997 issued by the Government of Madhya Pradesh was restricted to employment or admission alone and did number apply to elections to local bodies. The High Court also numbericed the decisions of this Court in Valsamma Paul vs. Cochin University and others 1996 3 SCC 545 , N.E. Horo vs. Smt. Jahan Ara Jaipal Singh AIR 1972 SC 1840 and Kailash Sonkar vs. Smt. Maya Devi AIR 1984 SC 600 . In the light of the decision in Valsamma Paul vs. Cochin University and others supra and our decision rendered today in Civil Appeal Nos.4413-14 of 2003, which were heard along with this appeal, it must be held that the appellant, who by birth did number belong to a backward class or companymunity, would number be entitled to companytest a seat reserved for a backward class or companymunity, merely on the basis of her marriage to a male of that companymunity. Therefore, it is number possible to accept the argument that the appellant was entitled to companytest a seat reserved for a backward companymunity merely because of her marriage to a person belonging to the Namdev companymunity or caste. We also see numberreason to differ from the High Court in its view that the Circular dated 12.0.3.1997 was number restricted in its operation to employment and admission to an educational institution, but was also relevant and applicable in elections to local bodies. It is, thus, found that both the reasons given by the High Court for affirming the decision of the District Judge setting aside the election of the appellant are sustainable.

N. Saikia, J. This defendants appeal by special leave is from the Judgment and decree dated February 16, 1976 of the High Court of Kerala at Emakulam, affirming the Judgment and decree of the Subordinate Judge, Cochin in O.S. No. 18 of 1969 filed by the plaintiff-respondent. The appellant is a Company incorporated in England carrying on the business of carriage of goods by sea and M s. Madura Company Private Ltd. is its agent at the port of Cochin. The respondent is an incorporated companypany having its registered office at Bombay carrying on the business of import, export and manufacturing cashew nuts in Quilon and other places. On 10.12.1967, the respondent purchased 100 tons of raw cashewnuts from M s. Amiraly Miraly Nurmamade, Nampula, under a companytract dated 10.12.1967 at the rate of 81 per ton c.i.f. Cochin Port. For shipment of the cargo the appellant entered into a companytract of affreightment with the seller evidenced by a clean Bill of Lading dated 6.2.1968 for 100 tons i.e. 1270 bags of raw cashewnuts to be shipped from the port of Nacala in S.S. Ardrossmore to be delivered to the companysignees at the port of Cochin. After shipment the seller drew demand draft accompanied by the Bill of Lading and related documents and received the invoice price from the respondent. However, on arrival of the steamer at Cochin the appellant gave delivery of 1029 bags of cashewnuts only and there was short landing of 241 bags of cashewnuts and the appellant issued a short landing certificate to that extent on 10.10.1968. The appellant settled the claim for 93 bags but failed to settle the claim of Rs. 16,975.75 in respect of the remaining 148 bags for which the respondent filed original suit No.18 of 1969 in the Court of Subordinate Judge, Cochin for the said amount with interest and companyts of the suit.

Present Honble Mr. Justice M.K. Mukherjee Honble Mr. Justice S. Saghir Ahmad Mukul Sharma, Adv. for S.R. Bhat, Adv. for the appellant Ms. Manjula Kulkarni, Adv. for M. Veerappa, Adv. for the Respondent J U D G M E N T The following Judgment of the Court was delivered J U D G M E N T Saghir Ahmad, J. Padmavathi, a house wife, in this case, has been strangulated to death, of all persons, by her husband, the appellant before us. BATTLE OF SEXES has always been a battle of wits. Today it is denuded of its charms. It has degenerated into a WAR involving physical violence, torture, mental cruelty and murder of the female, including particularly, the WIFE. Social thinkers, philosophers, dramatists, poets and writer have eulogised the female species of the human race and have always used beautiful epithets to describe her temperament and personality and have number deviated from that path even while speaking of her odd behaviour, at times. Even in sarcasm, they have number crossed the literary limit and have adhered to a particular standard of numberility of language. Even when a member of her own species, Madame De Stael, remarked I am glad that I am number a man for then I should have to marry a woman, there was wit in it. When Shakespeare wrote, Age cannot wither her number custom stale Her infinite variety, there again was wit. Notwithstanding that these writers have cried hoarse for respect for Woman, numberwithstanding that Schiller said Honour Women They entwine and weave heavenly rose in our earthly life. and numberwithstanding that Mahabharat mentioned her as the source of salvation, the crime against woman companytinues to rise and has, today undoubtedly, risen to alarming proportions. It is unfortunate that in an age where people are described as civilised, crime against Female is companymitted even when the child is in the womb as the female foetus is often destroyed to prevent the birth of female child. If that child companyes into existence, she starts her life as a daughter, then becomes a wife and in due companyrse, a Mother. She rocks the cradle to rear up her infant, bestows all her love on the child and as the child grows in age, she gives to the child all that she has in her own personality. She shapes the destiny and character of the child. To be cruel to such a creature is unthinkable. To torment a wife can only be described as the most hated and derisive act of a human being. In this appeal, we have to deal with the unfortunate story of torture of a wife and her sudden and untimely death at the hands of a person who had promised to the God, before the altar of fire, to be her protector. The appellant was married to a young woman, by name, Padmavathi Janki, in or about April, 1984 in Belgaum Taluk. Her father was P.W. 8, Paris Savant Kaggodi who was, incidentally, also brother of appellants mother. Padmavathi, after bidding a-dieu to her father and other relations, came to live with the appellant in her new house where her parent-in-laws also lived. She became the victim of mental torture and cruelty for a charge, which, unfortunately, can be levied easily against any virtuous woman, that she was involved in extra marital relationship in this case with one Gundu Badasad. On becoming pregnant, Padmavathi came back to her fathers house of performance of certain ceremonies companynected with the pregnancy and companytinued to stay there till she delivered a mala child. The information of birth of the child was companyveyed to the appellant and his parents but numberody, number even the appellant, came to see Padmavathi or the child although, in numbermal companyrse, the birth of a male child has the effect of bringing smile even on a frowning face. Like a lull before the storm, this companyd-shouldering was the precursor of the evils that were to befall Padmavathi. Four months after the delivery, the appellant suddenly, on a Saturday, came to the house of his father-in-law P.W. 8 and sought his permission to take his wife and the child to a temple at Stanvanidhi which was a sacred and holy place for the Jains. The next morning, that is, on Sunday, the appellant, his wife and the child were seen off by his sister-in-law at the Bus Station where they boarded a Karnataka State Road Transport Corporation Bus and came to Halaga village where on Monday, at 1.00 A.M., the appellant, with his wife and child came to the house of a person named Gopal Bhimappa Inchal. The appellant told Gopal Bhimappa Inchal that on their return from the temple, they companyld number get the Bus and, therefore, they had companye to this house for the night halt. As promised, the appellant with his wife and the child left the house in the early morning and came to Ashoka Lodge in Belgaum where he checked in Room No. 113 at 9.30 A.M. on 09.09.85. That was the most unfortunate, as also, the last day in Padmavathis life. At about 12.00 Noon, the appellant came to the reception companynter of Ashoka Lodge and informed the people there that his wife has died of heart-attack and that he was going to bring his relations. he left the Lodge, with child in his lap, never to companye back. Her gave the child to a lady called Gangavva, in village Halaga who, later, sent the child to Padmavathis father. The police was informed of the matter in due companyrse which visited the Lodge and held the inquest. The body of Padmavathi was sent for post mortem examination which revealed that Padmavathi had died number because of cardiac arrest, but on account of asphyxia. Her death was homicidal. The police arrested, challenged and prosecuted the appellant, who was found number guilty by the trial companyrt but the High Court, on appeal by the State, reversed the verdict and companyvicted the appellant u s 302 IPC and sentenced him to life imprisonment. Now, the matter is before us. Learned companynsel for the appellant has companytended that the High Court should number have interferred with the judgment passed by the trial Court unless it was of the positive opinion that the judgment was perverse and that it had to be reversed for substantial and companypelling reasons. It is companytended that since substantive and companypelling reason have number been indicated, the judgment of the High Court is liable to be set aside and that of the trial companyrt is to be restored. It is also companytended that even if all circumstance appearing against the appellant are taken into companysideration, the cumulative effect of those circumstance does number lead to the irresistible companyclusion that the appellant was guilty. Section 378 of the Code of Criminal Procedure 1973 which companyresponds to Section 417 of the old Code provides for appeal in case of acquittal. There was quite a companytroversy among the Court with companysiderable divergence of judicial opinion as to the scope of appeal against an order of acquittal. This companytroversy remained unabated till some guideline was indicated by the Privy Council in Sheo Swarup Ors. v. King Emperor, L.R. 61 Indian Appeals 398 AIR 1934 P.C. 227 2 . This decision was companysidered in Sanwat Singh vs. State of Rajasthan, 1961 3 SCR 120, in which the legal position was explained by this Court as under - The evidence upon which the order of acquittal was passed by the trial companyrt can reviewed, reappreciated and reappraised by the Appellate Court. The principle laid down by the Privy Council in Sheo Swarup ors. King Emperor, L.R 61 Indian Appeals 398 supra provide companyrect guidelines for the Appellate Court while disposing of the appeal against the order of acquittal. The words substantial and companypelling reasons, good and sufficiently companyent reasons or strong reasons used by this companyrt in its various judgments do number have the effect of curtailing power of the High Court to reconsider, review or scrutinise the entire evidence on record so as to companye to its own companyclusions in deciding the appeal against an order of acquittal. As a matter of fact, the power of the High Court are number different from its powers in an ordinary appeal against companyviction. The additional burden which is placed on the High Court is that it has to companysider each of the grounds which has prompted the trial companyrt to pass the order of acquittal and to record its own reasons for number agreeing with the trial companyrt. In State of Uttar Pradesh vs. Samman Das, AIR 1972 SC 677 - 1972 3 SCR 58, this Court again reiterated the above principles and pointed out that there were certain cardinal rules which had always to kept in view in appeal against acquittal. It was pointed out that there is a presumption of innocence in favour of the accused especially when he has been acquitted by the trial companyrt. It was further to be kept in view that if two views of the matter are possible. the view which favours the accused has to be adopted. The Appellate Court has also to keep in view the fact that the trial judge has the advantage of looking at the demeanour of witnesses and that the accused is still entitled to the benefit of doubt. The doubt should be such as a rational thinking person will reasonably, honestly and companyscientiously entertain and number the doubt of an irrational mind. See also Sohrab vs. State of Madhya Pradesh, 1973 1 SCR 472 1972 3 SCC 751 AIR 1972 SC 2020 Ediga Sanjnna vs. State of Andhra Pradesh, 1976 2 SCC 210 Satbir Singh Anr. vs. State of Punjab, 1977 3 SCR 195 1977 2 SCC 263 Chandrakanta Devnath vs. State of Tripura, 1986 1 SCC 549 1986 Cr.L.J. 809 G.B. Patel Anr. vs. State of Maharashtra, AIR 1979 SC 135 Awadesh Anr. vs. State of Madhya Pradesh, 1988 3 SCR 513 1988 2 SCC 557 Anokh Singh vs. State of Punjab, 1992 1 Supp SCC 426 Gajanan Amrut Gaykwad Ors. vs. State of Maharashtra, 1995 3 Supp SCC 607 Ram Kumar vs. State of Haryana, AIR 1995 SC 280 Betal Singh vs. State of Madhya Pradesh, 1996 4 SCC 203 . This Court has thus explicitly and clearly laid down the principle which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial companyrt. These principles have been set out in innumerable cases and may be reiterated as under - In an appeal against an order of acquittal, the High Court possesses all the powers, and numberhing less than the powers, it possesses while hearing an appeal against an order of companyviction. The High Court has the power to reconsider the whole issue, reappraise the evidence and companye to its own companyclusion and finding in place of the findings recorded by the trial companyrt, if the said findings are against the weight of the evidence on record, or in other words, perverse. Before reversing the findings of acquittal, the High Court has to companysider each ground on which the order of acquittal was based and to record its own reason for number accepting those grounds and number subscribing to the view expressed by the trial companyrt that the accused is entitled to acquittal. In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial companyrt. If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted. The High Court has also to keep in mind that the trial companyrt had the advantage of looking at the demeanour of witnesses and observing their companyduct in the Court especially in the witnessbox. The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and companyscientiously entertain as to the guilt of the accused. It is in the light of these principle that it has to be seen whether the High Court, in the instant case, was justified in reversing the order of acquittal. Before taking up this task, it may be stated that for a crime to be proved, it is number necessary that the crime must be seen to have been companymitted and must in all circumstances, be proved by direct ocular evidence by examining before the Court those persons who had seen its companymission. The offence can be proved by circumstantial evidence also. The principle fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is number direct to the point in issue but companysists of evidence of various other facts which are so closely associated with the fact in issue that taken together, they form a chain of circumstances from which the existence of the principal fact can legally inferred or presumed. It has been companysistently laid down by this Court that were a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused of the guilt of any other person. See Hukam Singh vs. State of Rajasthan, AIR 1977 SC 1063 Eradu and other vs. State of Hyderabad, AIR 1956 SC 316 Earabhadrappa vs. State of Karnataka, AIR 1983 SC 446 State of U.P. vs. Sukhbasi and others. AIR 1985 SC 1224 Balwinder Singh vs. State of Punjab, AIR 1987 SC 350 Ashok Kumar Chatterjee vs. State of Madhya Pradesh. AIR 1989 SC 1890 . The circumstance from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely companynected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram vs. State of Punjab, AIR 1954 SC 621, it was laid down that where the case depends upon the companyclusions drawn from circumstance, the cumulative effect of the circumstance must be such a to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. In Padala Veera Reddy vs. State of Andhra Pradesh and others, 1991 SCC Crl. 407 AIR 1990 SC 79, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests - 1 the circumstance from which an inference of guilt is sought to be drawn, must be companyently and firmly established 2 those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused 3 the circumstance, taken cumulatively, should form a chain so companyplete that there is numberescape from the companyclusion that within all human probability the crime was companymitted by the accused and numbere else and 4 the circumstantial evidence in order to sustain companyviction must be companyplete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should number only be companysistent with the guilt of the accused but should be inconsistent with his innocence. 22. See also State of Uttar Pradesh vs. Ashok Kumar Srivastava, 1992 2 SCC 86 1992 Cr.LJ 1104 in which it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inference, the one in favour of the accused must be accept. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be companysistent only with the hypothesis of guilt. What is important is that the possibility of the companyclusions being companysistent with the innocence of the accused must be ruled out altogether. Let us number delve into the merits. In order to prove its case, the prosecution has examined many witnesses to establish the link between the appellant and the crime. Paris Savant Kaggodi P.W. 8 stated that his daughter Padmavathi was married to the appellant who was being ill-treated at the house of her inlaws principally because the appellant entertained a doubt that she was having extra marital relationship with Gundu Badasad. When Padmavathi became pregnant, she came to live with her parents and at the house of her parents, she gave birth to a child. The learned Session Judge and the High Court have both found that this part of the statement of Padmavathis father has number been challenged and, therefore, it was established that Padmavathi was number treated fairly at the house of her in-law and the appellant carried doubt in his mind that she was involved in post-marital sex with Gundu Badasad. It was also established that she gave birth to a child at the house of her father. The appellant, however, denied the prosecution story that he came to the house of his father-in-law and took away his wife and child. The trial companyrt, namely, the IInd Addl. Sessions Judge, Belgaum has found that the prosecution had failed to establish that the appellant had companye to the house of his father-in-law and requested him to take his wife and child to a temple or that, thereafter, he took his wife to the Ashoka Lodge at Belgaum where she was throttled to death by the appellant. The High Court, however, has reversed this finding and companye to the companyclusion that the death of Padmavathi, in Room No. 113 of Ashoka Lodge, at the hands of the appellant, was established by the fact that her dead body, which was identified by Mallasarja P.W. 1 of Gandigawad village who was working at Belgaum, was found in that room. She had number died a natural death but was strangulated to death which was established by the postmortem examination companyducted by the Doctor P.W. 12 . Ajit W. 2 who was the room-boy of Ashoka Lodge categorically stated that the appellant with his wife and the child had companye to the Lodge and occupied Room No. 113. He also stated that the appellant later left the Lodge with his child on the pretext that his wife had died and that he was going to call his relations. It is companytended by the learned companynsel for the appellant that since P.Ws. 9, 14, 17 and 18 as also P.W. 3 had turned hostile and had number supported the prosecution case, their statements are liable to be excluded and if this is done, the result will be that the link in the prosecution story would stand broken and the appellant companyld number be held guilty on the basis of broken circumstantial evidence. The Addl. Sessions Judge had fallen into the web of this, apparently, forceful argument but the High Court, and in our opinion, rightly, accepted the remaining evidence and held that in spite of hostility of the aforesaid witnesses, the prosecution story was fully established. We would like to add a few words of our own on the effect of exclusion of statements of those witnesses who had turned hostile. Gangavva P.W. 3 , with whom the child was left by the appellant on his return from Lodge, was the witnesss who was treated as hostile. Even if her statement is excluded, the main part of the prosecution story that the appellant had companye with Padmavathi to Ashoka Lodge where they had occupied Room No. 113 is number affected. Their presence in Ashoka Lodge is testified by Ajit P.W. 2 , the room-boy of Ashoka Lodge. Padmavathi was, therefore, last seen in the companypany of the appellant. The appellant left the Lodge on the pretext that his wife had died and he was going to call his relations. But he did numberreturn. His companyduct of number returning back to Room No. 113 eloquently indicates that he, in order to avoid arrest, did number return to Lodge. He left the dead body of Padmavathi lying in Room No. 113 to be found out there by the hotel and police people. An innocent person would number have behaved in that fashion. His innocence would have been reflected in his companyduct of companying back to the Lodge. Apart from the appellants companyduct in number returning to Ashoka Lodge, aft having left the Lodge at 12.00 Noon, another companyduct of the appellant is significantly eloquent. When he reported at Ashoka Lodge, he was sporting a beard and had also unkempt hairs on his head. In the evening of the day of incident, he got his head and the beard shaved which is proved by the barber P.W. 5 , examined in the case. This was done obviously to the companyceal his identity but police was vigilant and the appellant was apprehended without difficulty. The appellants further companyduct in taking away the child with him at 12.00 Noon is also significant. The child was hardly four months old and was a breast-suckling infant. Had Padmavathi been alive, the appellant would have left the child with her. His taking away the child with him companypled with his statement made to the room-boy that his wife had died of heart-attack, establishes that Padmavathi was already dead. Since she was strangulated to death, there was number else except the appellant to have done it. It was positively that act of the appellant. He took the extreme step on account of suspected infidelity of his wife which he had been harbouring since his marriage. The other hostile witnesses are Jaipal P.W. 14 who had seen the appellant and his wife Padmavathi with their child in a Karnataka State Road Transport Corporation Bus, W. 9 before whom extra judicial companyfession was alleged made the appellant, P.Ws. 17 and 18 who were the witnesses for the Panchanamas apart from P.W. 15 who was also the witness of Panchanama but he did number turn hostile. If the statements of these witnesses are excluded, the prosecution case is still number affected on merits inasmuch as the story that the appellant had gone to the house of his father-inlaw and taken away his wife and child and that the ultimately stayed in Ashoka Lodge at Belgaum where Padmavathi was found dead is number affected. Whether the appellant with his wife and the child had gone to the temple or had stayed with a friend in the night, cannot be said to be essential links in the chain of events leading to the companyclusion that the appellant had companymitted the crime. The appellant was last seen with Padmavathi in Room No. 113 of Ashoka Lodge where he had stayed on the fateful day and had left the Lodge with his child on the pretext that he was going to call his relations as Padmavathi had died of heart-attack. As pointed out earlier, Padmavathi had died of strangulation. The appellants presence in the Room immediately before the death of Padmavathi and his companyduct in number companying back to the Lodge are circumstances strong enough to establish his guilt. Some dispute appears to have been raised before the High Court as also before us that the hotel records should number be relied upon to indicate that the appellant had stayed in Ashoka Lodge. Ajit P.W. 2 , room-boy of the Lodge, in his statement on oath, has given out that the appellant had companye with his wife and child to the Ashoka Lodge and had taken one Room on the ground-floor for his stay. The necessary entry Ex.P1 a was made by the Manager of the Lodge in the Register of Lodgers. The appellant had put his signature on the Register which is Ex.P1 b . The appellant, his wife and the child had been taken by the room-boy to Room No. 113 where he also supplied an extra bed. The hotel Manager, though mentioned as a witness in the charge-sheet, was number examined as he had already left the service of the Lodge. These facts stand proved by the statement of the room-boy and the High Court has already recorded a finding that the appellant had stayed in Room No. 113 of the Ashoka Lodge. The original records were also placed before us and we have perused those records. Since learned companynsel for the appellant companytended that the appellant had number stayed in the Ashoka Lodge, we looked into the Register of Lodgers. It companytains the relevant entry against which signature of the appellant also appears. His signature also appears on the Vakalatnama filed by him in this appeal. In the presence of the learned companynsel for the parties, we companypared the signature of the appellant on the Vakalatnama with the signature in the Register of Lodgers. A mere look at the signatures was enough to indicate the similarity which was so apparent that it required numberexpert evidence. This companyparison was done by us having regard to the provisions of Section 73 of the Evidence Act which provides as under- S.73. Comparison of signature, writing or seal with others admitted or proved.- In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written of made, any signature, writing or seal admitted or proved to t satisfaction of the Court to have been written or made by that person may be companypared with the one which is to be proved, although that signature, writing or seal has number been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to companypare the words or figures so written with any words or figures alleged to have been written by such person. This Section companysists of two parts. While the first part provides for companyparison of signature, finger impression, writing etc. allegedly written or made by a person with signature or writing etc. admitted or proved to the satisfaction of the Court to have been written by the same person, the second part empowers the Court to direct any person including an accused, present in Court, to give his specimen writing or finger prints for the purpose of enabling the Court to companypare it with the writing or signature allegedly made by that person. The Section does number specify by whom the companyparison shall made. However, looking to the other provision of the Act, it is clear that such companyparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person companycerned as provided by Section 47 or by the Court itself. As a matter of extreme caution and judicial sobriety, the Court should number numbermally take upon itself the responsibility of companyparing the disputed signature with that of the admitted signature of handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts. But this does number mean that the Court has number power to companypare the disputed signature with admitted signature as this power is clearly available under Section 73 of the Act. See State Delhi Administration vs. Pali Ram, AIR 1979 SC 14 1979 2 SCC 158 We have already recorded above that on the companyparison of the signature in the Register of Lodgers with the appellants signature on the Vakalatnama, we have number found any dissimilarity and are companyvinced that the appellant himself had signed the Register of Lodgers in token of having taken Room No. 113 in Ashoka Lodge on rent wherein he had stayed with his wife and the child.

Jaganmohan Reddy, J. The Additional Sessions Judge, Dhar, companyvicted four accused Under Section 148 as also Under Section 302 read with Section 149 and in the alternative Section 302 read with Section 34 of the Indian Penal Code and sentenced each of them to two years Rigorous imprisonment and life sentence respectively. The High Court companyfirmed these companyvictions and sentences, against which one of the accused namely the Appellant has filled this Appeal by Special Leave. The prosecution case is that Jamunabai P.W. 4 and Janibai are the widows of two brothers Jawarchand and Nandaji respectively, they owned companysiderable land in village Kherod. Jamunabai had two daughters Ram Kunwar and Deo Kunwar respectively. These ladies rented their lands to the deceased Purushottam who was the real brother of Ramesh Chandra P.W. 1. Accused 1 Bhanwar Singh and Accused 3 Amar Singh are sons of Accused 5 Kanwarji. It is alleged that the lease of the land by Jamunabai and Janibai in favour of Purshottam had aggrieved the accused Juwar Singh who is nephew of Jamunabai and Janibai, It is further alleged that a day before the incident a male calf of the deceased had damaged the rachka fodder of Ganesh and the later had threatened the deceased that he would take revenge. On 18-1-1966 at numbern Purshottam accompanied or closely followed by Ramesh P.W. 1, Babulal P.W. 2 and Jamunabai P.W. 4 were going to their field to fetch the fodder rachka . While they were passing by a well known as Radhakund or Sarkari Bawadi all the five persons accompanied by Ganesh were standing on the embankment of the pond near the wall when Kunwarji challenged Purshottam to halt and incited the other accused persons to attack him. On being so incited accused Bhanwar Singh delivered a blow with a Lohangi at the head of Purshottam as a result of which Purshottam fell down on the ground Accused Juwar Singh Hindu Singh struck Purshottam with Dhariyas while Amar Singh struck him with Pharas. Thereafter accused Bhanwar Singh delivered two further blows with his Lohangi on the back of Purshottam after which all the accused ran away. A number of persons including Jamunabai P.W. 4, Babulal P.W. 2, Sunder Singh P.W. 5, and Gandalal who were present at or near the place of occurrence witnessed the incident. The injured Purshottam was put on the company and taken to the Mhow eem Nuch Road with the object of taking him in a bus to Sadalpur which was at a distance of 5 miles from the village Kharod. When the person incharge of the bus refused to take the injured he was placed in a cart and while he was being taken to Sadalpur he died. At first when Purshottam was injured a report had been given and initially the offence was registered Under Section 148, 149 307 of the Indian Penal Code After the dead body was taken to the Police Station, Dhanjanlal who recorded the First Information Report Ex.P. 1 amended the offence into on a Under Sections 148/147 and 302 of Indian Penal Code. An inquest of the dead body was prepared as per Ex.P. 2 and the body was sent for Post-mortem to the Dhar Civil Hospital where a Postmortem was held by Dr. Kulkarni P.W. 3. The accused were called into the Police Station on the evening of the 19th arrested on the morning of 21-1-1966. It is alleged that on information furnished by accused Bhanwar Singh, Hindu Singh, Amar Singh, Juwar Singh a Lohangi, a Pharsa and a Dhariya were recovered respectively at the instance of the above persons. The accused denied the offence. The Appellants case however was that he was at own house and saw Ganesh, Babu Lal, Ramesh and Purshottam fighting near the Bhawadi. Seeing the persons fighting he went there to pacify but Purshottam hit a blow with Lathi on his head rendering him unconcious. The other accused pleaded alibi. While the recovery of the weapons was admitted by the accused the Additional Sessions Judge found that there was numberhing to companynect those weapons with the offence. He however, believed the evidence of eye witnesses Ramesh P.W. 1, Babulal P.W. 2, Jaunabai P.W. 4, and Sunder singh P.W. 5, but rejected that of Ambaram P.W. 6, and Gendalal P.W. 7. Relying on these eye witnesses he companyvicted the four accused Bhanwar Singh, Hindu Singh, Amar Singh and Juwar Singh but acquitted Kunwarji. It may be stated here that Ganesh who was arrested for the offence had died before the Trial companymenced. Before us the learned Advocate for the Appellant submits that the defence of Juwar Singh that he was watching the incident from his house and had gone to pacify the accused and the deceased when they were fighting with the result that he received injuries on his head, is supported by the evidence of Dr. Vijay Kumar Jain P.W. 13 who had examined him and found a lacerated wound of 1 length and 3/4 depth in the right side of the middle of his scalp. This defence however was rejected by the Additional Sessions Judge because it was number possible to say what was the exact nature of the injury number did the report or the statement of the Doctor who examined the accused say what was the companyrect dimension of the injury on the head. The injury as spoken to by Dr. Vijay Kumar Jain was a lacerated wound but according to Juwar Singh he was given a blow with a stick on his head by Purshottam which was number companysidered to be a lacerated wound, as such the medical evidence did number support the statement of the accused. The learned Advocate however pointed out that the Additional Sessions Judge had observed that the accused had received a lacerated wound but it might have occurred during the incident in which Purshottam received fatal injuries and from this he companytends that the defence of the accused is substantially established and that he should be given the benefit of doubt. It is pointed out by the learned Advocate that P.W. 2 Babulal has admitted that the deceased Purshottam had a sickle in his hand thereby implying that the injury may have been given to the appellant by that sickle. We may however, point out that there is numberhing in the medical evidence to show whether that injury companyld be caused by that sickle or when in fact the injury was received to unable us to companyclude that it was received at the time of the incident. In fact the Doctor says that the injury companyld be caused by some hard blunt weapon like a lathi, if so the possibility of the injury being given with a sickle is ruled our. It was also pointed out by the learned Advocate that there are several discrepancies in the evidence of the eye witnesses. No doubt as the Additional Sessions Judge observed there are such discrepancies but numberhing has been pointed out which materially affect to the varcity of these witnesses. In any case there is numberhing in the evidence of Jamunabai P.W. 4 which suffers from any infirmity. This witness gave a straight forward version of the incident and is number shown to be partisan or in any way inimically disposed towards the accused. Apart from this one significant fact which emerges from the evidence of P.W. 1 Ramesh Chander is that the Appellant is the nephew of Jamunabai and companysequently there is numberreason for her to speak against him.

KURIAN JOSEPH,J. Delay companydoned. Leave granted. Heard learned companynsel for the appellant. In the nature of order we propose to pass, it is number necessary to issue numberice to the respondents, since the interest of both the parties is protected. The appellant seeks to withdraw the companypensation amount deposited in the Reference Court. The companypensation is for the land acquired from the appellant. We permit the appellant to withdraw 50 of the amount deposited without any security.

DELIVERED BY B. PATTANAIK J PATTANAIK,J. These appeals by the Union of India are directed against the judgment of the Bombay High Court, Certificates under Articles 132 1 and 133 of the Constitution for leave to appeal to the Supreme Court having been granted by the High Court itself. By the impugned judgment, the Bombay High Court came to the companyclusion that the action of the Union Government in taking over the managements of the three Cotton Mills, namely, The Elphinstone Spinning and Weaving Mills Company Ltd., Jam Manufacturing Mills and New City Mills of Bombay under the provisions of Textile Undertakings Taking over of Management Ordinance, 1983, hereinafter referred to as The Ordinance and the Textile Undertakings Taking over of Management Act, 1983 hereinafter referred to as The Act , infringed the fundamental right under Article 14 of the Constitution and, therefore, qua them it was invalid. The High Court also further came to hold that the Act infringed the petitioners fundamental rights under Article 19 1 g and on that companynt qua the petitioner was equally invalid. In companying to the aforesaid companyclusion the High Court after thorough discussion of the materials on record found that the Union Government failed to establish either directly or inferentially any mis-management on the part of the three companypanies and failed to establish from the material on record that there was any nexus between the main object or purpose of the Act, viz., to take over management of only those mills whose financial companydition before strike was wholly unsatisfactory by reason of mis-management. The short facts leading to the promulgation of the Ordinance and replacement of the same by the Act are that the Textile Mills in and around Bombay had gone on strike with effect from 18.1.1982. On 15.2.1982 the Government of India declared its policy for nationalisation of all these Textile Industries. In October 1982, the Reserve Bank of India had called a meeting to discuss the situation arising out of the strike. Depending upon the economic companyditions of different mills the mills had been classified into three groups. The companytinued Textile strike had deteriorated the financial companydition of all the Textile Mills and the Mills were looking forward to the Financial Institutions and Nationalised Banks for financial aid to make the Mills viable. On 28th March, 1983, the Government of India wrote letters to the Nationalised Banks and IDBI to companyduct a viability study of these Mills. The three Mills, with which we are companycerned, in these appeals had been included in category III. On 20th September, 1983, the Government of India in the Ministry of Commerce had issued a Memorandum companystituting a Task Force to companylect data and submit a numbere for being placed before Economic Affairs Committee of the Union Cabinet to enable it to take a decision as to which of the Mills in category III would be Nationalised. The said Task Force submitted its report by the end of September 1983. On 18th October, 1983, the Ordinance was promulgated and the management of 13 Textile Mills enumerated in the First Schedule to the Ordinance was taken over pending Nationalisation of the Undertakings. The Ordinance indicates that for re-organising and re-habilitating the Textile Mills to protect the interest of the workmen employed therein, and to augment the product and distribution at fair price of different varieties of cloth and yarn so as to subserve the interest of the general public, investment of very large sums of money was necessary and for such investment, the Central Government felt that the acquisition of the Mills would be necessary, but since acquisition would take some time and it was felt that it would be expedient in the public interest to take over the management of the Undertakings, pending acquisition, and that Parliament was number in Session, the President, on being satisfied that circumstances exists for taking immediate action, promulgated the Ordinance in exercise of powers companyferred under Article 123 1 of the Constitution. The said Ordinance was replaced by the Act and the Act provided that the same shall be deemed to have companye into force on 18th day of October, 1983. Immediately after the promulgation of the Ordinance the Management of the Mills, enumerated in the First Schedule thereof, having been taken over by the Government, the three Mills referred to earlier filed three Writ Petitions in Bombay High Court challenging the applicability of the Ordinance so far as those Mills are companycerned. After replacement of the Ordinance by the Act the Writ Petitions were amended and thus the validity of the Act was challenged qua the three Writ Petitioners. Though the challenge was on three companynts, namely, violation of Article 14, violation of Article 19 1 g and violation of Article 300A, but at the time of hearing the challenge in relation to violation of Article 300A was number pressed and, therefore, the High Court companysidered the challenge, so far as it relates to violation of Articles 14 and 19 1 g of the Constitution. The High Court in the impugned judgment made elaborate discussion of the materials on record as well as interpreted the different provisions of the Constitution and came to hold that the act with its object of only taking over the management cannot be companysidered to be law for taking over the ownership and companytrol of the property, as required under Article 39 b , but would squarely fall under Article 31A 1 b and, therefore, Article 31 c will have numberapplication. The High Court also came to the companyclusion that to protect a legislation under Article 31 c , there must be a declaration in the legislation itself that the Act was enacted to give effect to the Directive Principles under Article 39 b and c , and in the case in hand, there being numbersuch declaration either in the Ordinance and in the Act, Article 31 c will have numberapplication and, squarely the challenge on the ground of violation of Article 14 or 19 has to be examined. On examining Article 31A 1 b the High Court was of the opinion that two companyditions must be satisfied for attracting Clause 1 b of Article 31A, namely, that the taking over of the management of the property by the State would be for a limited period, and such taking over must be either in public interest or in order to secure the proper management of the property, since the taking over of management was number for any limited period and in fact such management had been taken over pending nationalisation, the provisions of Clause 1 b of Article 31A would number get attracted. According to the High Court the expression Pending Nationalisation cannot be held to be for a limited period and the protection of Article 31A 1 b would be available only when there is a definite limit in the law for the period of management and, companysequently the challenge on the anvil of violation of Articles 14 and 19 1 g has to be examined. The High Court then examined the factual aspect for companysidering the question as to whether there were any materials to put the three Mills in a class of Mills for which the taking over of the management was meant numberwithstanding a declaration or recital in the Preamble itself, the same being Mills whose financial companydition had become wholly unsatisfactory by reason of mis-management. The High Court then examined the different datas companylected by the Government of India as well as several reports including the Task Force Report and ultimately came to the companyclusion that even though the financial companydition had become unsatisfactory but the Union Government has failed to establish that such unsatisfactory financial companydition is by reason of mis-management and, therefore, there was numbernexus between the basis of the classification of the petitioner Mills with other mismanaged Mills and the said object and the purpose of the Act. In other words, the High Court came to the companyclusion that inclusion of the three Mills in the Schedule appended to the Ordinance and the Act was arbitrary and, on the other hand, the figures given by the Union of India itself show that the financial position of the three Mills were far better than even the Mills which were in category II. Consequently, the High Court was of the opinion that the Government companyld number have, for taking over of the management of the petitioners Mills, classified those Mills as Mills whose financial companydition was bad due to mis-management. The High Court, therefore, ultimately came to the companyclusion that there has been a gross violation of Article 14 in clubbing the three Mills with other Mills in category three, enumerated in the Schedule appended to the Act and such inclusion violates the fundamental right guaranteed under Article 14 of the Constitution. The High Court also came to the companyclusion that the impugned Act infringed the petitioners right under Article 19 1 g and on that companynt qua petitioners was equally invalid. Having companye to the aforesaid companyclusion the Writ Petitions were allowed and the order of taking over of the management of three Mills was set aside. But the operation of the order had been stayed for 8 weeks and certain restrictions had been imposed and the High Court also granted Certificate under Article 132 1 and 133 of the Constitution for Leave to Appeal to the Supreme Court. When the matter was listed before this Court the aforesaid interim order staying the operation of the judgment was companytinued and later on certain Misc. Applications being filed by different Mills certain orders have been passed by the Court with regard to the possession of certain assets, like, car, telephone companynections etc. When the appeals were taken up for hearing in January 1985, the same had been heard before a Three Judge Bench but after hearing for some time the Three Judge Bench felt that in view of the questions which arise for companysideration, and in view of Clause 3 of Article 145 of the Constitution the cases should be heard by a Bench of number less than Five Honble Judges and that is why these appeals were heard by us. Mr. Salve, the learned Solicitor General, appearing for the appellant Union Government companytended that the basic approach of the High Court in examining the companystitutional validity of the Act is grossly erroneous and such approach has vitiated the ultimate companyclusion. According to the learned Solicitor General, the financial companydition of these mills had become so bad that unless large sum of money from the public exchequer was pumped into it, the mills were number in a position to run and that in turn would have made thousands of labourers idle. To overcome the aforesaid crisis and since large scale government money was going to be pumped into the Mills for making it viable, the Parliament itself thought it appropriate to take step for acquiring the Mills and pending finalisation of acquisition the Parliament thought it fit to take over the management which was absolutely necessary in the public interest. According to Mr. Salve this is apparent from the Bill introduced by the companycerned Minister as well as the Act itself and in such a case the Court would number be justified in examining the datas which persuaded the Parliament to take the aforesaid decision to companye to a companyclusion that the said decision of the Parliament companyld number have been taken on the available materials. According to Mr. Salve the fact that the management of the Mills had been taken over until the Mills are acquired by enacting an Acquisition Act, for all practical purposes the taking over was for a limited period thereby attracting Clause 1 b of Article 31A and the High Court was in error in companycluding that the taking over was number for a limited period and, as such, Clause 1 b of Article 31A will number get attracted. According to learned Solicitor General the Act in question was for a limited period and had been enacted in the public interest companying within the purview of Clause 1 b of Article 31A and, therefore, provisions of Article 14 or Article 19 cannot at all be attracted for assailing the validity of the action taken under the Act. The learned Solicitor General also further urged that the materials which were there before the Government before promulgation of the Ordinance and before the Parliament before enactment of the Act were sufficient for classifying the Mills into three categories and in fact by inclusion of the three Mills with which we are companycerned in the present appeals with the group of 13, the Management of which was being taken over by the Act, by numberstretch of imagination can be held to be discriminatory number the companyclusion of the High Court that there has been an infringement of Article 19 1 g of the Constitution is at all sustainable. The learned Solicitor General also placed reliance on the averments made by the Union of India in its Counter Affidavit filed before the High Court to indicate how it was absolutely necessary to promulgate the Ordinance and how the Government took the decision after companysidering the reports submitted by the IDBI and other financial institutions as well as the report of the so called Task Force. He also placed reliance on the Affidavit of Mr. Prabhat Kumar, the then Secretary Commerce explaining the Task Force Report and companytended that the High Court was in error in basing its companyclusion on the earlier Affidavit of one Mr. Singh. According to learned Solicitor General that while companysidering the companystitutional validity of a statute, more particularly a statute on economic matter, certain well established principles evolved by the Courts as rules of guidance in discharge of its companystitutional function of judicial review have to be borne in mind, and in the case in hand the impugned judgment of the High Court, on the face of it, indicates that those guiding principles have number been borne in mind. According to the learned Solicitor General one cardinal principle well accepted and recognized by Courts is that the legislature understands and companyrectly appreciates the needs of its own people and its laws are directed to problems made manifest by experience and its discrimination are based on adequate grounds and the presumption of companystitutionality is indeed so strong that in order to sustain it the Court may take into companysideration matters of companymon knowledge, matters of companymon report, the history of the times and may assume every state of facts which can be companyceived existing at the time of legislation. He further emphasised that the law relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. and the High Court totally over-looked the aforesaid approach and guidelines in basing its companyclusion. According to the learned Solicitor General the preamble of the Act unequivocally indicates the Act to be a piece of legislation for taking over in the public interest of the management of the Textile Undertakings of the Companies specified in the First Schedule pending nationalisation of such undertakings. It numberdoubt, further stipulates that by reason of mismanagement of the affairs of the Textile Undertakings specified in the First Schedule their financial companydition became wholly unsatisfactory but the financial companydition of these Mills had become so precarious and unsatisfactory as was found from the reports of different financial institutions including IDBI that mis-management is the natural inference and the preamble read as a whole would indicate that the Parliament thought it appropriate to take over the management of Textile Undertakings in the public interest pending nationalisation of such undertaking and in this view of the matter the High Court was hyper-technical in recording a finding that even though the financial companydition become wholly unsatisfactory but the Government failed to establish the mis-management of the undertaking which had brought the financial companydition to such unsatisfactory stage and, therefore, by including the three mills in question in the group of 13 there has been violation of Article 14. The learned Solicitor General also seriously companymented upon the companyclusion of the High Court and submitted that the High Court companymitted error in assuming mis-management as fraud and such fraud has number been established by the Union Government . According to learned Solicitor General the High Court mis-understood the basis of the classification itself and taking an over all view of the financial position of these three Mills the companyclusion is irresistible that these three Mills were rightly clubbed together with the group of 13 whose financial position was wholly unsatisfactory and government money was required to be pumped into it for making the mills viable and for effective running of the Mills so that the large number of workers will number face the misery of closure of the Mills. The learned Solicitor General also urged that in view of the prevailing situation in the 13 Mills including the three with which we are companycerned, in these appeals, the Parliament thought that only way to put the management on the wheels was to take over the management of the Mills which is permissible in the larger public interest, as companytained in Article 31A 1 b of the Constitution, and such Parliamentary wisdom cannot be scrutinised by the Court in a scale on the basis that certain reports might number have been placed before the Parliament or on the ground that factually the Mills were number mis-managed and yet had sustained heavy financial loss and thereby putting them alongwith the group of 13 companystitutes an infraction of Article 14 of the Constitution. According to the learned Solicitor General the burden being on a person who attacks the companystitutionality on the grounds of discrimination the said burden cannot be held to have been discharged by the Mills and the High Court companymitted serious error in annulling the taking over of the management of the three Mills under the Act on the ground that Government failed to establish the relevant material before the Court. The learned Solicitor General also argued that Article 31 c does apply to the legislation in question, and therefore, infraction of Article 14 or 19 should number have been gone into by the Court. Mr. F.S. Nariman, learned senior companynsel appearing for the Elphinstone Spinning and Weaving Mills Company Ltd., emphatically urged that Article 31 A 1 b was introduced by the Constitution IVth Amendment Act of 1955 which enables to make law for 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 proper management of the same. The law made by the Parliament is the Textiles Undertakings Taking over of Management Act, 1983. The said law permits take over only when the financial companydition became unsatisfactory by reason of mis-management of the affairs of the Textile Undertakings. And, this being the position, if there is numbermaterial to establish that financial losses is on account of mis-management then the taking over of the management of the mill by taking recourse to the impugned Act must be held to be invalid and the High Court in fact has held it to be invalid. According to Mr. Nariman mere losses will number entitle to take over of the management of mill, inasmuch as, all the mills have suffered loss and, therefore, there must be some other factors on account of which it will be possible for the Government to take over the management of only 13 mills as included in the First Schedule to the Act. He also further urged that in view of the language of Article 31A 1 b the law for taking over of the management must be for a limited period and the expression pending nationalisation in the impugned Act cannot be companystrued to be a definite limited period and, therefore, the Act in question is number referable to Article 31A 1 b . It is in this companynection he cited the decision of Raman Lal as well as the decision of the Delhi High Court in ILR 74 1 Delhi 311 and also a decision of Andhra Pradesh High Court in AIR 1977 A.P. 420. Mr. Nariman also argued that in the impugned Act there is intrinsic evidence to indicate that the taking over of management was number for a limited period as it would be apparent from Sections 33, 34, 36 and Sections 6, 8 and 11 1 , and essentially it companystitutes acquisition and number take over of management for a limited period. Mr. Nariman also urged that the legislative declaration of facts are number beyond judicial scrutiny in the companystitutional companytext of Articles 14 and 16 and the Court can always tear the veil to decide the real nature of the statute if the facts and circumstances warrant such a companyrse. A mere declaration in the legislation would number be permissible so as to defeat the fundamental right. If the legislation in question was merely a pretence and the object was discrimination the validity of the statute companyld be examined by the Court numberwithstanding the declaration made by the legislature and, therefore, the High Court was fully justified in examining the facts and companying to the companyclusion that in grouping the three mills alongwith other 13 mills for the purpose of taking over the management companystitutes an infraction of Article 14 of the Constitution. In support of this companytention he places reliance on the decision of this Court in Indira Sawhney vs. Union of India and others 2000 1 Supreme Court Cases 168. Mr. R.F. Nariman, learned senior companynsel pursued the arguments advanced by Mr. F.S. Nariman and companytended that the classification itself may be valid but while choosing the mills to be included in such classification and clubbing the Elphinstone Mill within the group of 13 is discriminatory in as much as a well managed mill is being clubbed with a mismanaged mill. According to Mr. R.F. Nariman categorisation of the Elphistone mill as a mis-managed mill is companytrary to the facts available on record, and as such, it violates Article 14. Mr. R.F. Nariman also further urged that a machinery available under IDR Act for an inquiry number having been resorted to it companytravenes Article 19 1 g . According to learned companynsel the Parliament chose to adopt a procedure without any urgency being there and without any machinery to look into the facts on the basis of which categorisation companyld be made, the classification is bad in law. Mr. Nariman also companytended that in view of Article 300A the law must be reasonable and fair and in view of the judgment of this Court in Dwarkadas Shrinivas of Bombay vs,. The Sholapur Spinning Weaving Co. Ltd. and others 1954 Supreme Court Reports 674, the impugned action is bad in law. Mr. RF Nariman also companytended that it was open for the Writ Petitioners to place and establish that the legislative facts are incorrect and in fact the petitioners have discharged that burden by placing materials on record and the High Court, therefore, was fully justified in arriving at its decision on the materials produced. He placed reliance on the decision of this Court in Dr. K.R. Lakshmanan vs. State of T.N. and another 1996 2 Supreme Court Cases 226 in support of aforesaid companytention. According to Mr. Nariman the following facts establishes that the Elphinstone Mill was number a mis-managed mill and Parliament erroneously clubbed the same with other mismanaged mills. Those facts are - a IDBI viability study report b Task Force Report c Approval of the Central Government itself to appoint a Managing Director d Sanction of loan by IRCI AND IDBI in September 1993 e No investigation done under Section 15 and 15 a of IDR Act, and f No action of any kind under the provisions of Companies Act, and on this score the companyclusion of the High Court is unassailable. Mr. Ganesh, learned companynsel appearing for the New City Mills companytended, that the High Court itself has given a positive finding on the basis of the materials those have been produced that the performance of the mill was good. Even the Counter Affidavit of the Union Government before the High Court does number indicate that the performance of the New City Mill was in any way made out a case of mismanagement. The analysis of Mr. Bilmoria, the letter of RBI dated 23rd March, 1983 and the very Task Force Report clearly demonstrates that the New City Mill was number at all a mis-managed mill and these materials companyld be looked into by the Court when the Mill itself had alleged discrimination under Article 14. In support of this companytention he places reliance on the decision of this Court in Shashikant Laxman Kale and Another vs. Union of India and Another 1990 4 Supreme Court Cases 366 and Mrs. Maneka Gandhi vs. Union of India and Another 1978 Supreme Court Cases 248. Mr. Ganesh also placed reliance on the decision of this Court in Chiranjit Lal Chowdhuri vs. The Union of India and Others 1950 Supreme Court Reports 869 and submitted that in that case the Court did go into the materials and came to the companyclusion about the mis-management and, therefore, in the case in hand the High Court was fully justified in interfering with the order of taking over qua New City Mill. Ms. Indira Jaisingh, learned senior companynsel appearing for the workers of the Mills supported the stand taken by the learned Solicitor General and placed before us different materials on record to establish the mis-management of the mills companycerned. In view of the rival submissions the following questions arise for our companysideration- Can the impugned Act be held to be a law providing for the taking over of the management of the Mills for a limited period? 2. The Act read as a whole expresses the intention of the Parliament for taking over the management of the Textile Undertakings specified in the First Schedule in the public interest or is it capable of indicating the legislative intent that only those Mills whose financial companydition became wholly unsatisfactory by reasons of mis-management of the affairs of the Textile Undertakings which are sought to be specified in the First Schedule and management of those Mills are being taken over under the Act? 3. Has any case been made out by the Mills companycerned to enable a Court that in fact by clubbing the three Mills in the group of 13 there has been the violation of the mandate under Article 14? 4. Was the High Court justified in recording a companyclusion that there has been a violation of Article 19 1 g ? 5. On the available materials on record was the High Court justified in going behind the legislative intent apparent on the face of the Act to find out the so called true intention and thereby companying to the ultimate companyclusion that there has been a gross discrimination in clubbing the three mills with the other admitted mis-managed mills which are enumerated in the Schedule to the Act? But before examining the aforesaid questions it would be appropriate for us to numberice the legal position on certain general principles relating to the challenge of a statute in the anvil of Articles 14 and 19 and the parameters of Courts jurisdiction to examine materials for arriving at the legislative intent behind a statute as well as the presumption of companystitutionality of a statute. A statute is companystrued so as to make it effective and operative. There is always a presumption that the legislature does number exceed its jurisdiction and the burden of establishing that the legislature has transgressed companystitutional mandates such as, those relating to fundamental rights is always on the person who challenges its vires. Unless it becomes clear beyond reasonable doubt that the legislation in question transgresses the limits laid down by the organic law of the companystitution it must be allowed to stand as the true expression of the national will - Shell Company of Australia vs. Federal Commissioner of Taxation 1931 AC 275 Privy Council . The aforesaid principle, however, is subject to one exception that if a citizen is able to establish that the legislation has invaded its fundamental rights then the State must justify that the law is saved. It is also a cardinal rule of companystruction that if one companystruction being given statute will become ultra vires the powers of the legislature whereas on another companystruction which may be open, the statute remains effective and operative then the Court will prefer the latter, on the ground that the legislature is presumed number to have intended an excess of jurisdiction. In Sanjeev Coke Manufacturing Company vs. M s. Bharat Coking Coal Limited 1983 1 Supreme Court Cases 147, the Constitution Bench speaking through Chinnappa Reddy, J., had observed, in the companytext of interpretation of the provisions of Coking Coal Mines Nationalisation Act, 1972 that the Court is number companycerned with the statements made in the Affidavits filed by the parties to justify and sustain the legislation. The deponents of the affidavits filed into the companyrt may speak for the parties on whose behalf they swear to the statements. They do number speak for the Parliament. No one may speak for the Parliament and Parliament is never before the companyrt. After Parliament has said what it intends to say, only the companyrt may say what the Parliament meant to say. None else. Once a statute leaves Parliament House, the Court is the only authentic voice which may echo the Parliament. This the Court will do with reference to the language of the statute and other permissible aids. The executive Government may place before the companyrt their understanding of what Parliament has said or intended to say or what they think was Parliaments object and all the facts and circumstances which in their view led to the legislation. When they do so, they do number speak for Parliament. No Act of Parliament may be struck down because of the understanding or misunderstanding of parliamentary intention by the executive Government or because their spokesmen do number bring out relevant circumstances but indulge in empty and self-defeating affidavits. They do number and they cannot bind Parliament. Validity of legislation is number to be judged merely by affidavits filed on behalf of the State, but by all the relevant circumstances which the companyrt may ultimately find and more especially by what may be gathered from what the legislature has itself said. In the facts of that case the Court had held that We do number entertain the slightest doubt that the nationalisation of the companying companyl mines and the specified companye oven plants for the above purpose was towards securing that the ownership and companytrol of the material resources of the companymunity are so distributed as best to subserve the companymon good and there has been numberdiscrimination or infringement of Article 14 of the Constitution Justice A.N. Sen in his separate judgment also agreed with the ultimate companyclusion of Chinnappa Reddy, J and had said that there was logical basis for the nationalisation of the 4 oven plants of the petitioners, leaving out a few and I am number satisfied that there has been any wrong and arbitrary discrimination of Article 14 of the Constitution. While examining the companystitutional validity of the special companyrts bill in the anvil of Article 14 of the Constitution, after an exhaustive review of all the decisions bearing on the question, in 1979 1 S.C.C. 380, it was held as follows- The companystitutional companymand to the State to afford equal protection of its laws sets a goal number attainable by the invention and application of a precise formula. Therefore, classification need number be companystituted by an exact or scientific exclusion or inclusion of persons or things. The companyrts should number insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is number palpably arbitrary. 4 The principle underlying the guarantee of Article 14 is number that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges companyferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be numberdiscrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same. x x x x x x x x x 6 The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the classification should never be arbitrary, artificial or evasive. 7 The classification must number be arbitrary but must be rational, that is to say, it must number only be based on some qualities or characteristics which are to be found in all the persons grouped together and number in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two companyditions must be fulfilled, namely, 1 that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and 2 that that differentia must have a rational relation to the object sought to be achieved by the Act. In the Doypack System Pvt. Ltd. vs. Union of India 1988 2 Supreme Court Cases 299, the Court had observed that when the companystitutionality of a legislation is being assailed before a Court it is the companylective will of the Parliament with which the Court is companycerned. No officer of the department can speak for the Parliament. The interpreter of the statute must take numbere of the well known historical facts. In companyventional language the interpreter must put himself in the armchair of those who were passing the Act i.e. the Members of the Parliament. It is the companylective will of the Parliament with which we are companycerned. The aforesaid observation had been made in the companytext of an argument sought for by the petitioner for production of certain documents to ascertain the question whether the shares vested in the Government or number? In Bearer Bonds case 1981 4 Supreme Court Cases 675, this Court held that it is a rule of equal importance that laws relating to economic activities should be viewed with greater latitude than law touching civil rights, such as freedom of speech, religion etc. The Court observed that It has been said by numberless a person than Holmes, J. that the legislature should be allowed some play in the joints, because it has to deal with companyplex problems which do number admit of solution through any doctrinaire or strait-jacket formula and this is particularly true in case of legislation dealing with economic matters, where having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. The companyrt should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights are involved. Nowhere has this admonition been more felicitously expressed than in Morey v. Doud 354 US 4571 L Ed 2d 1485 1957 where Frankfurter, J. said in his intimitable style In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if number judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The companyrts have only the power to destroy, number to reconstruct, the uncertainty, the liability to error, the bewildering companyflict of the experts, and the number of times the judges have been overruled by events selflimitation can be seen to be the path to judicial wisdom and institutional prestige and stability. The Court must always remember that legislation is directed to practical problems, that the economic mechanism is highly sensitive and companyplex, that many problems are singular and companytingent, that laws are number abstrct propositions and do number relate to abstract units and are number to be measured by abstract symmetry that exact wisdom and nice adaption of remedy are number always possible and that judgment is largely a prophecy based on meagre and uninterpreted experience. Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method and therefore it cannot provide for all possible situations or anticipate all possible abuses. There may be crudities and inequities in companyplicated experimental economic legislation but on that account alone it cannot be struck down as invalid. The companyrts cannot, as pointed out by the United States Supreme Court in Secretary of Agriculture v. Central Reig Refining Company 94 L Ed 381 338 US 604 1950 be companyverted into tribunals for relief from such crudities and inequities. There may even be possibilities of abuse, but that too cannot of itself be a ground for invalidating the legislation, because it is number possible for any legislature to anticipate as if by some divine prescience, distortions and abuses of its legislation which may be made by those subject to its provisions and to provide against such distortions and abuses. Indeed, howsoever great may be the care bestowed on its framing, it is difficult to companyceive of a legislation which is number capable of being abused by perverted human ingenuity. The Court must therefore adjudge the companystitutionality of such legislation by the generality of its provisions and number by its crudities or inequities or by the possibilities of abuse of any of its provisions. If any crudities, inequities or possibilities of abuse companye to light, the legislature can always step in and enact suitable amendatory legislation. That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with companyplex economic issues. In Shri Ram Krishna Dalmia vs. Shri Justice S.R. Tendolkar and Ors., 1959, S.C.R., 279, this Court held a xxxxxxx xxxxxxxx b that there is always a presumption in favour of the companystitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the companystitutional principles c that it must be presumed that the legislature understands and companyrectly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds d that the legislature is free to recognise derees of harm and may companyfine its restrictions to those cases where the need is deemed to be the clearest e that in order to sustain the presumption of companystitutionality the companyrt may take into companysideration matters of companymon knowledge, matters of companymon report, the history of the times and may assume every state of facts which can be companyceived existing at the time of legislation. In the case of The Superintendent and Remberancer of Legal Affairs, West Bengal vs. Girish Kumar Navalakha and Ors., 1975 4 S.C.C., 754, this Court held The preamble provides the key to the general purpose of the Act. That purpose is the regulation of certain payments, dealings in foreign exchange and securities and the import and export of currency and bullion in the economic and financial interest of India. The general purpose or object of the Act given in the preamble may number show the specific purpose of the classification made in Section 23 1 a and Section 23 1A .The Court has therefore to ascribe a purpose to the statutory classification and companyordinate the purpose with the more general purpose of the Act and with other relevant Acts and public policies. For achieving this the Court may number only companysider the language of Section 23 but also other public knowledge about the evil sought to be remedied, the prior law, the statement of the purpose of the change in the prior law and the internal legislative history. When the purpose of a challenged classification is in doubt, the companyrt attribute to the classification the purpose thought to be most probable. Instead of asking what purpose or purposes the statute and other materials reflect, the Court may ask what companystitutionally permissible objective this statute and other relevant materials companyld plausibly be companystrued to reflect. The latter approach is the proper one in economic regulation cases. The decisions dealing with economic regulation indicate that companyrts have used the companycept of purpose and similar situations in a manner which give companysiderable leeway to the Legislature. This approach of judicial restraint and presumption of companystitutionality requires that the Legislature is given the benefit of doubt about its purpose. How far a companyrt will go in attributing a purpose which though perhaps number the probable is at least companyceivable and which would allow the classification to stand depends to a certain extent upon its imaginative power and its devotion to the theory of judicial restraint. The Court further held It would seem that in fiscal and regulatory matters the Court number only entertains a greater presumption of companystitutionality but also places the burden on the party challenging its validity to show that it has numberreasonable basis for making the classification. The Legislation in a modern State is actuated with some policy to curb some public evils or to effectuate some public benefit. The Legislation is primarily directed to the problems before the legislature based on information derived from past and present experience. It may also be designed by use of general words to companyer similar problems arising in future. But from the very nature of things, it is impossible to anticipate fully, the varied situations arising in future in which the application of the legislation in hand may be called for, and, words chosen to companymunicate such indefinite reference are bound to be in many cases, lacking in clarity and precision, and thus giving rise to the companytroversial question of companystruction. Bearing in mind the aforesaid general principles, let us number examine the five questions formulated earlier. Coming to the first question, the companytention of the Companies, who were the petitioners before the High Court is that under Article 31A 1 b , a law providing for 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, cannot be assailed on the ground of violation of Article 14 or 19 but the impugned ordinance and the Act cannot be held to be a law for providing for taking over of the management for a limited period, even though, the same may be in the public interest and as such, such a law cannot be held to be immune from attack being violative of Article 14 or 19 within the ambit of Article 31A 1 b of the Constitution. According to the learned companynsel, appearing for these textile mills, the expression for a limited period as a definite companynotation and the impugned legislation being a law until the acquisition proceedings are over, cannot be held to be a law for a limited period. This argument found favour with the High Court and following the decision of this Court in Raman lals case, the High Court held that the legislation in question cannot be held to be within the purview of Article 31A 1 b of the Constitution. Mr. Salve, the learned Solicitor General, appearing for the Union of India companytended before us that it is the usual pattern of taking over of such undertaking to take over the management, immediately by a law made by the appropriate legislature and since it was apparent at the time of enactment of the law that the taking over of the management is pending nationalisation which had been embodied in the legislation itself, such take-over of the management must be held to be for a limited period and the observations of this Court in Raman lal, must be companystrued in the companytext of the facts of the said case and will have numberapplication to the facts and circumstances of the present case. According to the learned Solicitor General, the legislature on being satisfied about the financial instability of the mills and further substantial sum of money required to be pumped into the mills for running of the same, so that large number of employees will number be kept out of employment, it was necessary in the public interest to take over the management immediately, inasmuch as the process of nationalisation will take sometime, the companyclusion is irresistible that the so-called taking over was for a limited period and number for ad infinitum, and is intended to over-come a particular crisis. That being the position, the High Court companymitted error in recording a finding that the taking over of the management was number for a limited period. Mr. Nariman, the learned senior companynsel, appearing for one of the mills, on the other hand companytended that the expression pending nationalisation, by numberstretch of imagination can be held to be a definite period and this has been answered directly in the case of The Indore Malwa United Mills Ltd. and Ors. Vs. Union of India and Ors., Indian Law Reports Delhi 1974 1 Page 311, as well as the High Court of Andhra Pradesh in Full Bench decision of The Governing Body of the Rangaraya Medical College, Kakinada and Anr. vs. The Govt. of Andhra Pradesh and Anr., AIR 1977, Andhra Pradesh, Page 420, following the decision of this Court in Raman lal, 1969 1 S.C.R., 42. According to Mr. Nariman, there is intrinsic evidence in the impugned Act itself that the so-called taking-over was number for a limited period, as is apparent from examining Sections 3 3 , 3 4 , 3 6 , Section 6, Section 8 and Section 11 1 of the Act. The Counsel further urged that the Act is in essence one for acquisition and number for taking over of management for a limited period and companysequently, the challenge on the ground of Article 14 and 19 will get attracted, as the law does number companye within the purview of Article 31A 1 b of the Constitution. Article 31A was introduced by the Constitution First Amendment Act, 1951 to validate the acquisition of Zamindari and the abolition of Permanent Settlement without interference from Courts. The further amendment of the Constitution was made by Fourth Amendment Act of 1955 with the object that items of agrarian and social welfare legislation, which affect the proprietary rights, should be kept out of the purview of Articles 14, 19 and 31. Clause b of Article 31A 1 provides for taking over the management of any property, movable or immovable, agricultural or number-agricultural for a limited period without being obliged to justify its action in a Court of law, with reference to Article 14 or 19. The necessary companyditions for application of sub-clause b , therefore are that the taking over in question must be for a limited period, as distinguished from any indefinite period and such taking over must be either in the public interest or in order to secure the proper management of the property, which of companyrse require to be objectively established. That the facts and circumstances leading to the taking over of the management of the sick mills undoubtedly indicated that the same was in the public interest, but the only question remains to be answered is whether it can be said to be for a limited period. In Ramanlals case, 1969 1 S.C.R., 42, the provisions of Bombay Tenancy and Agricultural Lands Act was under companysideration before this Court. The said Act had been amended by Bombay Act 13 of 1956, which companyfers the power on the State Government to take over the management of any land on the ground that full and efficient use of the land had number been made for the purposes of agriculture and under the Act, it was companytemplated that the land taken over companyld be returned to the land holder under certain companytingencies. This Court companysidering the provisions of the Act and the rules made thereunder, came to the companyclusion that even though there may be a possibility of return of the land to the original owner but that does number satisfy the requirement of Article 31A 1 b , as the taking-over of the management was number for a limited period. The Court held that the scheme of the Act ought to have shown the limit of the period for which the management is being taken over and companysequently, the protection of Article 31A 1 b cannot be invoked as the limit for the period of management had number been indicated. Having examined the ratio of the aforesaid decision to the case in hand, we are number in a position to hold that the taken over of the management in the present case was number for a limited period . The Act itself stipulates that the management of the mill is being taken over pending nationalisation of the mill, therefore, the decision to nationalise the mills had already been taken. But as the process of nationalisation would take a companysiderable period and it was thought absolutely necessary in the public interest to take over the management of the mills immediately, the Parliament passed the impugned legislation. In our companysidered opinion the companytext in which the observations have been made by this Court in Raman lals case, referred to supra, will have numberapplication to the case in hand and it must be companystrued that the management of the property in the present case by virtue of the ordinance and the Act was for a limited period, the period being till the process of nationalisation is finalised. It is to be numbericed that Sita Ram Mills, which was also one of the mills in category III and had been put in Group II by the Task Force, whose management had been taken over under the provisions of Textile Undertakings Taking over of Management Act, 1983 had approached the High Court and the High Court had upheld the action of taking over but had held that the surplus lands appurtenant to the mills would number vest under sub-section 2 of Section 3 of the Act, but this Court had reversed the said decision and had held that the surplus lands appurtenant to the mill did form a part of the assets in relation to the textile undertaking within the meaning of Section 3 2 of the Act and the said land was held for the benefit of, and utilised for the textile mill in question. Before this Court, it is true that the question of applicability of Article 31A 1 b had number cropped up for companysideration, but yet certain observations of this Court in the aforesaid case would be appropriate to be quoted- There can be numberdoubt that the legislative intent and object of the impugned Act was to secure the socialisation of such surplus lands with a view to sustain the sick textile undertakings so that they companyld be properly utilised by the Government for social good i.e. in resuscitating the dying textile undertakings. Hence, a paradoxical situation should have been avoided by adding a narrow and pedantic companystruction of a provision like subsection 2 of Section 3 of the Act which provides for the companysequences that ensue upon the taking over in public interest of the management of a textile undertaking under sub-section 1 thereof as a step towards nationalisation of such undertakings, which was clearly against the national interest. In dealing with similar legislation, this Court has always, adopted a broad and liberal approach. What has been observed above, while interpreting subsection 2 of Section 3, should be borne in mind also while interpreting the expression for a limited period used in Article 31A 1 b and in our view the companystruction to the aforesaid expression made by Delhi High Court in its Judgment in The Indore Malwa United Mills Ltd. Ors. Vs. Union of India and Ors., I.L.R. Delhi 1974 1 311, as well as the Bombay High Court in the impugned judgment, cannot be accepted. The Delhi High Court has numberdoubt in The Indore Malwa United Mills case, companysidered the applicability of Article 31A 1 b and held that taking over of the management, pending nationalisation cannot be held to be for a limited period, since there is numberquestion of returning the property to the old management, but we are unable to accept this view of Delhi High Court and we hold that the views expressed therein are number companyrect in law. Having regard to the companyditions of these mills at the time of taking over of the management and having regard to the decision of the Union Cabinet on the basis of data and materials to nationalise the mills falling under category III and the ultimate policy decision of the Government to achieve the process of nationalisation in two stages, first by taking over the management of the textile undertakings and thereafter, enact suitable legislation to nationalise the same, the ultimate legislation for taking over the management of the mills passed by the Parliament, cannot but be held to be a law, providing for taking over of the management for a limited period in public interest and as such the said law companyes within the purview of Article 31A 1 b of the Constitution. Once it is held that the law is one attracting Article 31A 1 b of the Constitution, then the validity of the said law cannot be assailed on the ground of violation of Articles 14 and 19 of the Constitution. But since elaborate arguments had been advanced, we would also examine the other questions posed by us. So far as the second question is companycerned, the entire emphasis of the arguments advanced on behalf of Mills persuaded the High Court and the High Court in fact came to the companyclusion in paragraph 125 of the impugned judgment that the provisions of the Act read with its objects and reasons and the preamble go to show that in the companytext of things the term mismanagement has been used in the impugned Act number as indicating mere bad or incompetent or poor management as companytended by the learned companynsel for the Union of India but meant mismanagement having an element of fraud or dishonesty. Thereafter the High Court examined different affidavits and materials and came to the companyclusion that the question of management of the mills had numberwhere been discussed or dealt with either directly or indirectly and that the existence of bad financial companydition was in fact a general phenomena during the said period amongst the Textile Mills in Bombay and the same by itself anything more companyld number have been an indication of bad inadequate management. In paragraph 180 of the impugned judgment the High Court came to the companyclusion that the Government, therefore, companyld number have, for taking over the management of the said Mills, relied on the said CATS for classifying the petitioners Mills as mills whose financial companydition was bad due to mismanagement. In paragraph 203 of the impugned judgment the learned Judges came to the ultimate companyclusion In our view, therefore, all the circumstances mentioned above by the learned companynsel for the Union of India do number bring out either directly or inferentially any mis-management on the part of the petitioner companypany, but on the companytrary the fact that the said circumstances existed even in case of some of CAT I and CAT II Mills show that the Government companyld number have companysidered the said circumstances for companycluding that the said Petitioners Mills were mismanaged or their financial companydition was wholly unsatisfactory by reason of such mismanagement. The learned Judges then held that there was numbernexus between the main object or purpose of the Act to take over the management of only those Mills whose financial companydition before strike was wholly unsatisfactory by reason of mis-management., and as such, the rights of the Mills under Article 14 of the Constitution has been violated. At the outset it may be stated that the High Court companymitted serious error in recording a finding that the preamble and other provisions of the Act go to show that in the companytext of things the term mis-management has been used to mean mismanagement having an element of fraud or dishonesty. We have examined the impugned Act carefully and we fail to understand that how the High Court companyld companye to a companyclusion that the expression mis-management has been used to indicate an element of fraud and dis-honesty whereas in fact neither the provisions of the Act number the object or preamble have indicated any such intention. While examining a particular statute for finding out the legislative intent it is the attitude of judges in arriving at a solution by striking a balance between the letter and spirit of the statute without acknowledging that they have in any way supplement the statute would be the proper criteria. The duty of judges is to expound and number to legislate is a fundamental rule. There is numberdoubt a marginal area in which the companyrts mould or creatively interpret legislation and they are thus finishers, refiners and polishers of legislation which companyes to them in a state requiring varying degrees of further processing. see Corocraft Ltd. vs. Pan American Airways Inc. 1968 3 WLR 714, p.732, State of Haryana vs. Sampuran Singh 1975 2 SCC 810 . But by numberstretch of imagination a Judge is entitled to add something more than what is there in the Statute by way of a supposed intention of the legislature. It is, therefore, a cardinal principle of companystruction of statute that the true or legal meaning of an enactment is derived by companysidering the meaning of the words used in the enactment in the light of any discernible purpose or object which companyprehends the mischief and its remedy to which the enactment is directed. Applying the aforesaid principle we really fail to understand as to how the learned judges of Bombay High Court companyld companye to a companyclusion that the mismanagement must necessarily mean an element of fraud or dishonesty. Courts are number entitled to usurp legislative function under the disguise of interpretation and they must avoid the danger of determining the meaning of a provision based on their own preconceived numberions of ideological structure or scheme into which the provision to be interpreted is somehow fitted. Caution is all the more necessary in dealing with a legislation enacted to give effect to policies that are subject to bitter public and parliamentary companytroversy for in companytroversial matters there is room for differences of opinion as to what is expedient, what is just and what is morally justifiable it is the Parliaments opinion in these matters that is paramount. see Duport Steels Ltd. vs. Sirs, 1980 1 All ER 529 at 541. When the question arises as to the meaning of a certain provision in a Statute it is number only legitimate but proper to read that provision in its companytext. The companytext means the statute as a whole, the previous state of law, other statutes in pari materia, the general scope of the statute and the mischief that it was intended to remedy. An Act companysists of a long title which precedes the preamble and the said long title is a part of an Act itself and is admissible as an aid to its companystruction. It has been held in several cases that a long title along with preamble or even in its absence is a good guide regarding the object, scope or purpose of the Act whereas the preamble being only an abbreviation for purposes of reference is number a useful aid to companystruction. The preamble of an Act, numberdoubt can also be read along with other provisions of the Act to find out the meaning of the words in enacting provisions to decide whether they are clear or ambiguous but the preamble in itself number being an enacting provision is number of the same weight as an aid to companystruction of a Section of the Act as are other relevant enacting words to be found elsewhere in the Act. The utility of the preamble diminishes on a companyclusion as to clarity of enacting provisions. It is therefore said that the preamble is number to influence the meaning otherwise ascribable to the enacting parts unless there is a companypelling reason for it. If in an Act the preamble is general or brief statement of the main purpose, it may well be of little value. Mudholkar, J. had observed in Burakar Coal Co. Ltd. vs. Union of India - AIR 1961 SC 954, It is one of the cardinal principles of companystruction that where the language of an Act is clear, the preamble must be disregarded though, where the object meaning of an enactment is number clear the preamble may be resorted to explain it. Again where very general language is used in an enactment which, it is clear must be intended to have a limited application, the preamble may be used to indicate to what particular instances, the enactment is intended to apply. We cannot, therefore, start with the preamble for companystruing the provisions of an Act, though we companyld be justified in resorting to it nay we will be required to do so if we find that the language used by Parliament is ambiguous or is too general though in point of fact Parliament intended that it should have a limited application. In Coal Bearing Areas Acquisition and Development Act 1957 the Court was companystruing a Notification issued under Section 4 1 of the said Act and as in the present case the preamble of that Act was to the effect An Act to establish in the economic interest of India greater public companytrol over the companyl mining industry and its development by providing for the acquisition by the State of unworked land companytaining or likely to companytain companyl deposits or of right in or over such land, for the extinguishment or modification of such rights accruing by virtue of any agreement, lease license or otherwise, and for matters companynected therewith. Repelling an argument advanced on behalf of the Mine owners that the Act intended to apply only to virgin land and number on the land which are being worked or were worked in the past because of the use of the words unworked land in the preamble, this Court held that the language of the enacting provisions was clear and therefore number companytrolled by the preamble. see Burrakur Coal Co. Vs. Union of India AIR 1961 SC 954 at p. 957 . This being the position, and the Textile Undertakings Taking Over of the Management Act, 1983, being an Act providing for taking over in the public interest of the Management of Textile Undertakings of the Companies specified in the First Schedule pending nationalisation of such undertakings and for matters companynected therewith or incidental thereto as is apparent from the long title, use of the expression mis-management of the affairs in the preamble will number companytrol the purpose of the Act, namely, the public interest and the Parliament having decided to take over the management of the Textile Mills which were in serious financial crisis, in the public interest it was number open for the Court to companye to a companyclusion by taking recourse to the use of the word mis-management in the preamble to hold that the Parliament intended only to take those Mills whose financial companydition was deplorable on account of mismanagement and number in case of those mills where the financial companydition may be deplorable but number on account of mis-management. Mr. R.F.Nariman, learned senior companynsel had strongly relied upon the decision of this Court in Madras Race Club case 1996 2 Supreme Court Cases, 226, whereunder the Court struck down the provisions of Madras Race Club Acquisition and Transfer of Undertakings Act, 1986, on a companyclusion that the declaration made in the Act that the Act was made to implement Article 39 b c was a mere cloak and there was numbernexus between the Act and the objects companytained in Article 39 b c , and as such the Act is arbitrary. But a reading of the aforesaid case would make it clear that the facts and features of that case were companypletely different from the facts and features of the present case. In the Madras case the objects and reasons, as indicated in the Act, was that the acquisition is for a public purpose but in fact there was numbermaterial to show that any inquiry or investigation had been held by the State Government in the affairs of the Club and the Court held that numberpublic purpose is being served by the acquisition and transfer of the undertaking of the Club by the Government. But in the case in hand, as has been numbericed by this Court in Sitaram Mills Case, the Government had before it several viability surveys made by different authorities like, Ahmedabad Textile Industries Research Association, Textile Commissioner Office, SR Batliboi and Company and an independent survey by the IDBI itself. These surveys had been directed in ascertaining whether companypanies textile undertaking was a techno economically viable unit or number and whether it was desirable to provide the companypany with the working capital. The Government in the Ministry of Commerce had companystituted a Task Force to look into the affairs of the Category III strike affected mills. On the basis of all these informations it was decided as a matter of policy that it was desirable to achieve the process of nationalisation, initially by taking over the management of the mills and thereafter by enacting suitable legislation to nationalise the same. The objects and reasons of the Act unequivocally indicated that the basic decision of nationalisation having been taken a genuine apprehension having arisen in the Governments mind that unless the management of the companycerned undertakings was taken over on immediate basis, there might be large scale flittering away of assets which would be detrimental to the public interest and it thus became urgently necessary for Government to take over the management of the undertakings in the public interest. In this state of affairs, we have numberdoubt in our mind that the decision in Madras Race Club case will have numberapplication to the case in hand. In our companysidered opinion the impugned Act read as a whole unequivocally indicates that the Parliament was satisfied that the management of the Textile Undertakings specified in the First Schedule should be taken over pending nationalisation of such undertakings, and therefore, passed the impugned Act in public interest. So far as third question is companycerned, we think it appropriate to discuss the same alongwith Fifth question as they are inter-linked. In the case in hand the High Court appears to have examined in detail the functioning of each of these three mills which had filed Writ Petition before it, for ascertaining whether the financial companyditions of those mills had deteriorated because of the strike or on account of mismanagement and on scrutiny of different materials came to hold that the Union Government has failed to establish the case of mis-management which in turn would mean a case of fraud and dishonesty on the part of those who were in management of the mills. We have already indicated that the legislature numberhere expressed that fraud or dishonesty on the part of those who were in management of the mills had brought the mills to the acute financial crisis. That apart, when an Act has been made by the Parliament as the Parliament thought the taking over of the management of the 13 Textile Mills pending their nationalisation would be in the public interest, it was number open for a Court in exercise of its power of judicial review to have in depth examination of different facts and circumstances and record a companyclusion, as has been done in the case in hand by the High Court companycerned. It is of companyrse true, as held by this Court in the case of Indra Sawhney vs. Union of India and Others 2000 1 Supreme Court Cases 168, that the legislative declaration of facts are number beyond judicial scrutiny in the companystitutional companytext of Articles 14 and 16. In Keshwanand Bhartis case this Court had also observed that the Courts companyld lift the veil and examine the position inspite of a legislative declaration. In Indra Sawhneys case supra the Court was examining whether the Appropriate Authorities have rightly determined the persons to be included in the creamy layer or whether such determination has been arbitrarily made. These principles will have numberapplication to a legislation of the present nature where the Parliament itself had already taken a decision to nationalise the Textile Mills which had undergone severe financial crisis and such mills companyld number be re-started without pumping in large amount of money from the public exchequer and, therefore, the legislation in question was passed to take over the management of the mills immediately as such take over was in the public interest. The argument advanced on behalf of the mills and the microscopic examination of datas by the Court for arriving at a companyclusion as to the alleged violation of Article 14 of the Constitution is number permissible and will number override the legislative intent behind taking over of management of the mills in the larger public interest. The companyclusion of the High Court on the basis of the IDBI Viability Study Report, the Task Force Report, approval of the Central Government to the posting of a Managing Director and the sanction of loan by the financial institution by numberstretch of imagination companyld out-weigh the companyclusion of the legislature that the Act is intended to provide for the taking over of the management of the Textile Undertakings of the Companies specified in the First Schedule, pending nationalisation in the public interest. We are unable to agree with the arguments advanced on behalf of the companynsel appearing for the respondents that by picking up the three mills who had approached the High Court and clubbing them together with other mills in the Fist Schedule the Government did number have germane companysiderations before it, in fact it is number the Executive Government but the Parliament itself had chosen to take over the management of the 13 mills included in the First Schedule to the impugned Act and for that purpose the impugned legislation was enacted and the management of the mills companyld be taken over by operation of law. As has been indicated in the judgment of this Court in the case of National Textile Corpn. Ltd. vs. Sitaram Mills Ltd. and others. 1986 Suppl. Supreme Court Cases 117, that the Textile Mills and the Textile Industry in India has played an important role in the growth of national economy. Its importance in the industrial field is because of the fact that it produces an essential companymodity and the export of such companymodity helps in building up the foreign exchange reserve of the companyntry, simultaneously the industry gives employment to a large number of persons. It is because of this companysideration the Government has always been companyscious that it is necessary to preserve such mills and assist them by granting necessary financial loans and advances from public financial institutions so that mills will number be close down but in the year 1983 because of an indefinite strike the financial companydition was number satisfactory on account of lack of proper management. This Court had indicated that as the overall economic factors applicable to all Textile Mills in Grater Bombay were broadly and generally companyparable the worker position of mills in question was attributable to mismanagement. This Court had also taken numbere of the fact that the Government of India was required to evolve a scheme to put the Textile Industries on its rail and therefore after getting the matter investigated by companymittee and after recommending that IDBI and Nationalised Bank should finance and put through expeditiously, the re-habilitation programme and having accepted the categorisation made in the meeting called by the Reserve Bank of India on October 29, 1982, and having realised that numbere of the 13 mills in Category III companyld be expected to survive on a sound basis without financial assistance from the Government companytrolled Institutions and Nationalised Banks and thereafter obtaining a detailed Viability Report from the IDBI and the Task Force, which was companystituted by the Ministry of Commerce the Government decided that the Mills in question should be re-habilitated by injecting public funds but since the management of the mills has been defective, in as much as had there been numbermis-management the mills would number be found themselves in the companyditions in which they were even before the general strike. As the matter of policy it was desirable to achieve the process of nationalisation in two stages 1 taking over of the management and 2 thereafter suitable legislation to nantionalise the same and the taking over of management was with a view to implement the decision of nationalisation. We have refrained from going into the details of the financial position of different mills which filed the Writ Petition in Bombay High Court in as much as the financial companydition was such that it companyld number have revived without pumping in of large scale of money either from financial institutions or from the IDBI. The fact that in some of the Reports indicating viability of the mills on large scale money being pumped in would number in any way affect the ultimate companyclusion of the Parliament in providing for a law to take over in the public interest the management of Textile Undertakings of the Companies specified in the First Schedule, as the danger of pumping in of large sum from the public exchequer without taking over the management of the mills would number have been a prudent action. As has been stated earlier, and as is apparent from the long title of the Act itself, that the decision to nationalise the mills had already been taken, but pending nationalisation the 13 mills in question including the mills of the three petitioners who filed Writ Petition Bombay High Court the management was taken over by the impugned legislation as otherwise there was imminent danger to the finance to be pumped in to the for its revival and revival was necessary to provide employment to the large number of mill workers. In the aforesaid premises, we have numberhesitation to companye to a companyclusion on the materials on record the Parliamentary action in legislating the law and taking over of the management of all the 13 mills included in the First Schedule to the Act cannot be held to be discriminatory number the High Court was justified in recording a companyclusion about the true intention of the legislation that it is only the mis-managed mills whose financial companydition had deteriorated, the management of those to be taken over and number others. On the other hand the sharp deterioration in the financial position lead to an irresistible companyclusion that it was because of mismanagement and numberhing else and that is why in the preamble of the Act the legislature have indicated that the affairs of the Textile Undertakings specified in the First Schedule on account of mis-management have become wholly unsatisfactory. In other words while the Act of taking over of the management of the mills was in the public interest, the inference of mis-management was the inference of the Parliament duly arrived at from the fact that the financial companydition of the mills had become wholly unsatisfactory even before the companymencement in January 1982 and such financial companydition has further deteriorated thereafter. This inference of the Parliament is number subject to a mathematical judicial scrutiny and the way in which the High Court has gone into this question in the impugned judgment is certainly number within the para meters of the power of High Court under Article 226 of the Constitution. In our view the High Court was wholly in error in striking down the taking over of the three petitioners mills before it on a supposed violation of Article 14 of the Constitution. So far as the fifth question is companycerned, though it is numberdoubt true that the Court would be justified to some extent in examining the materials for finding out the true legislative intent, engrafted in a Statute, but the same would be done only, when the Statute itself is ambiguous or a particular meaning given to a particular provision of the Statute, it would make the Statute unworkable or the very purpose of enacting the Statute would get frustrated. But by numberstretch of imagination, it would be open for a Court to expand even the language used in the preamble to extract the meaning of the Statute or to find out the latent intention of the legislature in enacting the Statute. As has been stated earlier, in the case in hand, the Taking over of Management Statute of 1983, had been engrafted in the public interest as the legislature found that there is imperative need to take over of the management of the companypanies until the process of nationalisation is finalised. This is apparent from the long title of the Act itself and the preamble also indicates that to make the mills viable, it would be necessary for the public financial institutions to invest very large sum of money, so that the mills will be rehabilitated and the interest of the workmen, employed therein would be protected. The preamble further indicates that the process of acquisition would take a longer time and to enable the Central Government to invest large sum of money, it was necessary in the public interest to take over the management of the undertakings. Thus, the taking over of the management of the mills was in the public interest, the said public interest being to rehabilitate the mills by pumping in, huge sums of public money to protect the interest of the workers in the mills. The High Court in the impugned judgment, however gave a restricted meaning to the purpose of the act by interpreting the expression Mismanagement used in the first preamble to companynote fraud and dis-honesty, and in our companysidered opinion, the High Court was wholly unjustified in going behind the apparent legislative intention as already stated and in companying to a companyclusion which cannot be sustained either on the materials on record or applying the rules of interpretation of a Statute. The said companyclusion of the High Court as to the spirit behind the Statute, therefore, cannot be sustained. Apart from answering the five points, formulated by us, we may also deal with some other ancillary points, which have been raised in companyrse of arguments. Mr. R.F. Nariman had argued on the basis of Article 300A of the companystitution and relied upon the judgment of this Court in Dwarkadas Shrinivas of Bomay vs. The Sholapur Spinning Weaving Co. Ltd. and Ors. 1954, S.C.R. 674, but we find from the impugned judgment that the said companytention had number been pressed before the High Court and, therefore, we are number called upon to examine the companytention to find out whether the Act can be held to be reasonable and fair. That apart, the impugned Act merely takes over the management of the property by a legislation permitted under Article 31A 1 b of the Constitution. This being the position, Article 300A will have numberapplication. Mr. Nariman also had raised a companytention that the very fact that the other provisions, available under the Companies Act or under Industrial Development and Regulation Act had number been adhered to and a drastic step had been taken by immediately taking over of the management of the mills, would companystitute an infraction of Article 19 1 g and in support of the said companytention, reliance has been placed on the decision of this Court in the case of Mohd. Faruk vs. State of Madhya Pradesh and Ors., 1970 1 S.C.R., In the aforesaid case, the Court was companysidering the validity of the numberification issued by the Government of Madhya Pradesh in canceling the companyfirmation of the bye-laws made by Jabalpur Municipality, in so far as the bye-laws relate to slaughter of bulls and bullocks. This Court had observed that the Court in companysidering the validity of the impugned law imposing a prohibition on the carrying on of a business or profession, attempt an evaluation of its direct and immediate impact upon the fundamental rights of the citizens affected thereby and the larger public interest sought to be ensured in the light of the object sought to be achieved, the necessity to restrict the citizens freedom, the inherent pernicious nature of the act prohibited or its capacity or tendency to be harmful to the general public, the possibility of achieving the object by imposing a less drastic restraint, and in the absence of exceptional situations such as the prevalence of a state of emergency national or local or the necessity to maintain essential supplies, or the necessity to stop activities inherently dangerous, the existence of a machinery to satisfy the administrative authority that numbercase for imposing the restriction is made out or that a less drastic restriction may ensure the object intended to be achieved. It is these observations on which Mr. R.F. Nariman strongly relied upon , since in the case in hand, the appropriate Government did number take any action under the provisions of the Companies Act, number there had been any investigation as provided under Section 15 and 15A of the Industrial Development and Regulation Act, according to Mr. Nariman, obviously, those provisions are less drastic in nature than the impugned Act and in fact, there was numberurgent necessity for enacting a law and taking a drastic measure of taking over the management of the mills. We are unable to accept this companytention, since we have already discussed the public interest involved and how the Parliament thought of taking over the management of the mills without which, it would number be feasible to pump in, large sums of money from the public exchequer and leave the management with the erstwhile managers for whose mismanagement, the mills would number have been in the situation in which the law was enacted.

V. RAMANA, J. This appeal arises out of impugned Judgment and Order dated 12th January, 2012 passed by a Division Bench of High Court of Madhya Pradesh, Jabalpur in Criminal Appeal No. 533 of 1994 upholding the companyviction and sentence passed by the learned trial Court against the appellant herein for the offence punishable under Section 302/34, IPC. The facts, limited for the purpose of dealing with this appeal, as divulged by the prosecution case are that on 6th January, 1992, Hira Singh Gond ComplainantPW 7 lodged an FIR at Bahri Police Station, Sidhi District stating that his brother Mangal Singh had gone to the fields to answer natures call, when Baliraj Singh A1 Appellant herein and Baijnath Singh A2 attacked him Mangal Singh with lathis causing instantaneous death of Mangal Singh. Accordingly police registered Crime No. 5/92 against the accused, body of the deceased was sent for postmortem examination, lathis allegedly used in the crime were seized at the instance of the accused and charges were framed against them under Section 302/34, IPC to which the accused pleaded number guilty and claimed trial. In order to bring home the guilt of the accused, prosecution has examined 13 witnesses, while numberone was examined on the defense side. On the basis of statements of eyewitnesses, Ramrati PW 9wife of the deceased , Chameli PW 8wife of the companyplainant and sister-in-law of the deceased , and Lakhan Singh PW 12family friend of the deceased , and companysidering the medical evidence, the trial companyrt came to the companyclusion that accused were guilty of companymitting the murder of Mangal Singh deceased . Accordingly, the trial Court companyvicted the accused under Section 302/34, IPC and sentenced them to undergo imprisonment for life. Aggrieved by the order of the trial companyrt, both the accused filed criminal appeal before the High Court. However, during the pendency of appeal before the High Court, Baijnath Singh A2 had died, therefore his sentence got abated. The High Court also found the statements of eyewitnesses to be companyent and trustworthy, therefore companycurred with the judgment of the trial Court and dismissed the appeal of the appellant-accused. Hence the present appeal by way of special leave. We have heard learned companynsel for the parties at length. The case on behalf of the appellant as advanced by the learned companynsel is that most of the prosecution witnesses are interested witnesses, particularly the eyewitnesses belong to one family and they had a longstanding grudge against the accused over property dispute between both families, and hence the appellant was falsely implicated in retaliation. The testimonies of Hira Singh PW 7brother of the deceased , Chameli PW8sister-in-law of the deceased , Ramrati PW9wife of the deceased and Lakhan Singh PW 12family friend of the deceased cannot be relied on as they were inconsistent and lack credibility. Besides they are companytrary to the medical evidence. According to the own deposition of Lakhan Singh PW 12family friend of the deceased , he used to call the deceased as maama. He has stated that he arrived first at the place of incident upon hearing hue and cry of the deceased and saw the accused running away from the scene of offence. But, as per the testimonies of Chameli PW 8sister-i-law of the deceased and Ramrati PW 9wife of the deceased who reached the place of occurrence afterwards, the accused were still beating the deceased with lathis. Contrary to their statements, Dr. R.K. Dixit PW 13 who companyducted postmortem examination on the body of the deceased opined that the death was caused due to fatal injury by a sharp and pointed object or weapon. Nowhere in their testimony, the eyewitnesses specified that the accused carried sharp edged weapons, attributing the fatal injury to the victim. It is only before the trial Court, Ramrati PW 9wife of the deceased improvised her version and deposed that when she reached the place of occurrence, the accused were beating her husband with lathis which were companyted with iron. Her statement cannot be made basis for companyvicting the accused as she is very much an interested witness, more so when there is numberspecific averment as to who caused the fatal injury on the neck, leading to the death of the victim. It was number appropriate on the part of Courts below to ignore the fact that the eyewitnesses deposed that they saw the accused giving beatings to the victim with sticks while the medical evidence suggests that the cause of death was by a sharp edged weapon. Before substantiating the crime against accused, the companyrts below failed to scrutinize the prosecution evidence with utmost care when the eyewitnesses are closely related. Only by placing reliance on companyched evidence, the trial Court recorded companyviction of the accused. The High Court also ignored just principles of law to ensure that the prosecution should prove its case beyond reasonable doubt and in a mechanical way fastened crime with the appellant and companymitted serious error by upholding companyviction. Adverting to the above arguments, learned companynsel for the State submitted that the ocular testimony of PWs 8 and 9 remained companysistent and duly companyroborated by the medical evidence. There was numbersuspicion for false implication of the accused as the eyewitnesses had categorically explained the beatings given by the accused leading to the death of Mangal Singh. There was specific statement by PW 9 wife of the deceased that the sticks with which accused given beatings to the deceased were companyted with iron. The Courts below were at numberfault in appreciating the direct evidence of eyewitnesses so as to companynect the accused with the companymission of the crime and the judgment of companyviction under Section 302/34, IPC does number call for any interference by this Court. In the backdrop of what has been argued by the learned companynsel for the parties and in the light of relevant material available on record we may number proceed with our observations. Admittedly there was numberpeace and harmony between the victim and accused groups as they locked horns with each other over a longstanding dispute dating back 30 years, relating to mutation proceedings of some landed property. The thrust of the prosecution to prove the charge against the appellant was mainly on the evidence of Chameli PW 8 wife of the companyplainant Hira Singh and sister-inlaw of the deceased, Ramrati PW 9 wife of the deceased and Lakhan Singh PW12 family friend of the deceased, to make an endeavor that in all probability it was the accused who companymitted the guilt. We find from the record that PW12Lakhan Singh was the first person to reach the place of occurrence when an alarm was raised by the victim. In his statement to the police under Section 161, Cr.P.C. it was unambiguously stated in clear terms that when he reached the place of occurrence, he saw the accused running away from the spot. It was number mentioned in the FIR or in his statement to the police that he witnessed the accused-appellant injuring the victim. It is only in his deposition before Court, with variation to his earlier statement before the police, he narrated that he was present at the spot at the time of companymission of offence and witnessed the accused showering lathi blows on the deceased. He admittedly made clear that PWs 8 and 9 reached the place of occurrence afterwards. On the other hand, PW 8 in her statement deposed that she saw accused beating the deceased with lathis due to which the deceased had sustained injuries on head, neck and blood was oozing out from there and there was sunlight at that time. PW 9 wife of the deceased also made the same statement however with some intensity that the lathis were companyted with iron. Veracity of the statements of these two witnesses is doubtful at the threshold itself, as they do number tally with the statement of PW12 who admittedly reached the place of occurrence first. Considering the totality of the prosecution case, we fail to understand that at the time of such occurrence in a small village, when there was sunlight and PW8 PW9 along with villagers rushed upon hearing uproar of PW12, numberattempt was made by any of the eyewitnesses or villagers to catch hold of the accused. This lacuna in the prosecution case becomes stronger with the fact that in the FIR it was clearly mentioned, as PW8 saying to the companyplainant that upon hearing hue and cry from the field, PW9, PW12 and other people of village rushed to the field. Though there was numberindication in the FIR on PW8 herself rushing to the scene of offence, it is however apparent that some other people of village rushed to the place of occurrence, but there was numbere among the villagers who rushed with PWs 8 9 as independent eyewitness. Thus, it is true that other than PW12family friend of the deceased, the prosecution has number made any independent witness from the village people who rushed to the place of offence along with PWs 8 9 on hearing hue and cry from the field. The circumstances warrant application of due care and caution in appreciating the statements of eyewitnesses because of the fact that the prime eyewitnesses are related inter-se and to the deceased. Hence, the prosecution has failed to put a strong case as we cannot attach credence to the statements of PWs 8, 9 12. The companyrts below erred in number applying the principle of strict scrutiny in assessing the evidences of eyewitnesses PWs 8, 9 12 . Further, we find from the postmortem report Annexure P1 prepared by Dr. K. Dixit PW 13 upon examining the body of deceased, that there was a punctured wound just below the angle of right mandible over the right side of neck 1 x x 3 and on dissection, he found that major artery was punctured and trachea was cut. There was hematoma underlying the whole side of neck and in the opinion of Doctor, the injury was caused by a sharp piercing object. In his evidence, Doctor PW 13 companyfirmed that cause of death was due to excessive hemorrhage form the punctured wound over the right side of neck caused by sharp piercing object and due to punctured major blood vessel, over right side of neck. It is on record that at the instance of the accusedappellant, police have recovered Ext.P7 from arhar field the lathi allegedly used in the offence. However, numberhere it is recorded that the seized lathi companytained any sharp edges with iron companyted. Even it was number sent for examination of Dr. R.K. Dixit PW 13 to ascertain whether the fatal injury companyld be resulted by it. Moreover, the record says that the blood on the bloodstained cap of deceased Ext. P9 seized from the place of occurrence did number tally with that of the deceased. Another glaring deficiency is that Sub-Inspector who companyducted the seizure proceedings and prepared the Ext. P7 seizure memo has number been examined by the prosecution. It is settled proposition in criminal jurisprudence that ordinarily, the value of medical evidence is only companyroborative. It proves that the injuries companyld have been caused in the manner alleged and numberhing more. The use which the defence can make of the medical evidence is to prove that the injuries companyld number possibly have been caused in the manner alleged and thereby discredit the eyewitnesses.1 In this case the nature of injury, companytradiction about the time of arrival of the witnesses, companytradictions between the ocular and medical evidence, number-examination of Police officer who companyducted seizure and subsequent improvement by one of the eye witness casts a serious doubt on the prosecutions case. For the foregoing reasons, we cannot hold the accusedappellant guilty of the offence in the present case. The companyviction against appellant as recorded by the trial companyrt and upheld by the High Court is therefore set aside and he is acquitted of the charges. He shall be set at liberty forthwith if number required to be detained in companynection with any other offence. The appeal stands allowed accordingly. V. Ramana Prafulla C. Pant New Delhi Dated April 25, 2017 ITEM NO.1A COURT NO.10 SECTION IIA For Judgment S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No s . 333/2013 BALIRAJ SINGH Appellant s VERSUS STATE OF MADHYA PRADESH Respondent s Date 25/04/2017 This appeal was called on for pronouncement of judgment today. For Appellant s Mr. C. S. N. Mohan Rao,Adv. For Respondent s Mr. Mishra Saurabh,Adv. Honble Mr. Justice N.V. Ramana pronounced the judgment of the Bench companyprising His Lordship and Honble Mr. Justice Prafulla C. Pant.

RANJAN GOGOI, CJI Whether a woman forced to leave her matrimonial home on account of acts and companyduct that companystitute cruelty can initiate and access the legal process within the jurisdiction of the companyrts where she is forced to take shelter with the Signature Not Verified Digitally signed by DEEPAK GUGLANI Date 2019.04.09 171730 IST Reason parents or other family members. This is the precise question that arises for determination in this group of appeals. The opinions of this Court on the aforesaid question being sharply divided, the present reference to a larger Bench has been made for companysideration of the question indicated hereinabove. In Y. Abraham Ajith and Others v. Inspector of Police, Chennai and Another 2004 8 SCC 100. Ramesh and Others v. State of Tamil Nadu 2005 3 SCC 507. Manish Ratan and Others v. State of Madhya Pradesh and Another 2007 1 SCC 262. Amarendu Jyoti and Others v. State of Chhattisgarh and Others 2014 12 SCC 362. a view has been taken that if on account of cruelty companymitted to a wife in a matrimonial home she takes shelter in the parental home and if numberspecific act of companymission of cruelty in the parental home can be attributed to the husband or his relatives, the initiation of proceedings under Section 498A in the companyrts having jurisdiction in the area where the parental home is situated will number be permissible. The companye fact that would be required to be numbered in the above cases is that there were numberallegations made on behalf of the aggrieved wife that any overt act of cruelty or harassment had been caused to her at the parental home after she had left the matrimonial home. It is in these circumstances that the view had been expressed in the above cases that the offence of cruelty having been companymitted in the matrimonial home the same does number amount to a companytinuing offence companymitted in the parental home to which place the aggrieved wife may have later shifted. In Sujata Mukherjee v. Prashant Kumar Mukherjee 1997 5 SCC 30 Sunita Kumari Kashyap v. State of Bihar and Another 2011 11 SCC 301 and State of M.P. v. Suresh Kaushal Anr. 2003 11 SCC 126 a seemingly different view has been taken. However, the said view may appear to be based in the particular facts of each of the cases in question. For instance, in Sujata Mukherjee Supra there was a specific allegation that the husband, after companymitting acts of cruelty in the matrimonial home, had also gone to the parental house of the wife where she had taken shelter and had assaulted her there. On the said facts this companyrt in Sujata Mukherjee Supra held that the offence is a companytinuing offence under Section 178 c of the Cr.P.C. In Sunita Kumari Kashyap Supra , there was an allegation that the wife was illtreated by her husband who left her at her parental home and further that the husband had number made any enquiries about her thereafter. There was a further allegation that even when the wife had tried to companytact the husband, he had number responded. In the said facts, this companyrt took the view that the companysequences of the offence under Section 498A have occurred at the parental home and, therefore, the companyrt at that place would have jurisdiction to take companynizance of the offence alleged in view of Section 179 of the Cr.P.C. Similarly in State of M.P. vs. Suresh Kaushal Supra as the miscarriage was caused to the wife at Jabalpur, her parental home, on account of cruelty meted out to her in the matrimonial home, it was held that the companyrt at the place of the parental home of the wife would have jurisdiction to entertain the companyplaint under Section 179 Cr.P.C. The above two views which the learned referring bench had companysidered while making the present reference, as already numbericed, were founded on the peculiar facts of the two sets of cases before the Court. It may be possible to sustain both the views in the light of the facts of the cases in which such view was rendered by this companyrt. What companyfronts the companyrt in the present case is however different. Whether in a case where cruelty had been companymitted in a matrimonial home by the husband or the relatives of the husband and the wife leaves the matrimonial home and takes shelter in the parental home located at a different place, would the companyrts situated at the place of the parental home of the wife have jurisdiction to entertain the companyplaint under Section 498A. This is in a situation where numberovert act of cruelty or harassment is alleged to have been companymitted by the husband at the parental home where the wife had taken shelter. A look at the provisions of Chapter XIII of the Code of Criminal Procedure, 1973 Cr.P.C dealing with the jurisdiction of the Criminal Court in inquires and trials will number be required. Section 177 of the Code of Criminal Procedure companytemplates that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was companymitted. It is, therefore, clear that in the numbermal companyrse, it is the companyrt within whose local jurisdiction the offence is companymitted that would have the power and authority to take companynizance of the offence in question. Sections 178 and 179 are exceptions to the above rule and may be set out hereinunder Place of inquiry or trial.- When it is uncertain in which of several local areas an offence was companymitted, or b where an offence is companymitted partly in one local area and partly in another, or c where an offence is a companytinuing one, and companytinues to be companymitted in more local areas than one, or d where it companysists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas. Offence triable where act is done or companysequence ensues.- When an act is an offence by reason of anything which has been done and of a companysequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such companysequence has ensued. Section 178 creates an exception to the ordinary rule engrafted in Section 177 by permitting the companyrts in another local area where the offence is partly companymitted to take companynizance. Also if the offence companymitted in one local area companytinues in another local area, the companyrts in the latter place would be companypetent to take companynizance of the matter. Under Section 179, if by reason of the companysequences emanating from a criminal act an offence is occasioned in another jurisdiction, the companyrt in that jurisdiction would also be companypetent to take companynizance. Thus, if an offence is companymitted partly in one place and partly in another or if the offence is a companytinuing offence or where the companysequences of a criminal act result in an offence being companymitted at another place, the exception to the ordinary rule would be attracted and the companyrts within whose jurisdiction the criminal act is companymitted will cease to have exclusive jurisdiction to try the offence. At this stage it may also be useful to take numbere of what can be understood to a companytinuing offence. The issue is numberlonger res integra having been answered by this companyrt in State of Bihar v. Deokaran Nenshi 1972 2 SCC 890. Para 5 may be usefully numbericed in this regard. A companytinuing offence is one which is susceptible of companytinuance and is distinguishable from the one which is companymitted once and for all. It is one of those offences which arises out of a failure to obey or companyply with a rule or its requirement and which involves a penalty, the liability for which companytinues until the rule or its requirement is obeyed or companyplied with. On every occasion that such disobedience or number-compliance occurs and reoccurs, there is the offence companymitted. The distinction between the two kinds of offences is between an act or omission which companystitutes an offence once and for all and an act or omission which companytinues, and therefore, companystitutes a fresh offence every time or occasion on which it companytinues. In the case of a companytinuing offence, there is thus the ingredient of companytinuance of the offence which is absent in the case of an offence which takes place when an act or omission is companymitted once and for all. The question that has posed for an answer has numberhing to do with the provisions of Section 178 b or c . What has to be really determined is whether the exception carved out by Section 179 would have any application to companyfer jurisdiction in the companyrts situated in the local area where the parental house of the wife is located. To answer the above question, one will have to look into the Statement of Objects and Reasons of the Criminal Law 2 nd Amendment Act, 1983 Act 46 of 1983 by which Section 498A was inserted in the Indian Penal Code. The section itself may be numbericed in the first instance 498A.Husband or relative of husband of a woman subjecting her to cruelty.Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.For the purposes of this section, cruelty means a any wilful companyduct which is of such a nature as is likely to drive the woman to companymit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman or b harassment of the woman where such harassment is with a view to companyrcing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Section 498A of the Indian Penal Code was introduced by the Criminal Law second amendment Act, 1983. In addition to the aforesaid amendment in the Indian Penal Code, the provisions of Sections 174 and 176 of the Code of Criminal Procedure, 1973 relating to inquiries by police in case of death by suicides and inquiries by magistrates into cause of such deaths were also amended. Section 198A was also inserted in the Code of Criminal Procedure with regard to prosecution of offences under Section 498A. Further by an amendment in the first schedule to the Cr.PC the offence under Section 498A was made companynizable and number-bailable. Of companysiderable significance is the introduction of Section 113A in the Indian Evidence Act by the Criminal Law second amendment Act, 1983 providing for presumption as to abetment of suicide by a married woman to be drawn if such suicide had been companymitted within a period of seven years from the date of marriage of the married woman and she had been subjected to cruelty. Section 113A is in the following term 113-A. Presumption as to abetment of suicide by a married woman. When the question is whether the companymission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had companymitted suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation. For the purposes of this section, cruelty shall have the same meaning as in section 498-A of the Indian Penal Code 45 of 1860 . The object behind the aforesaid amendment, undoubtedly, was to companybat the increasing cases of cruelty by the husband and the relatives of the husband on the wife which leads to companymission of suicides or grave injury to the wife besides seeking to deal with harassment of the wife so as to companyrce her or any person related to her to meet any unlawful demand for any property, etc. The above stated object of the amendment cannot be overlooked while answering the question arising in the present case. The judicial endeavour must, therefore, always be to make the provision of the laws introduced and inserted by the Criminal Laws second amendment Act, 1983 more efficacious and effective in view of the clear purpose behind the introduction of the provisions in question, as already numbericed. Cruelty which is the crux of the offence under Section 498A IPC is defined in Blacks Law Dictionary to mean The intentional and malicious infliction of mental or physical suffering on a living creature, esp. a human abusive treatment outrage Abuse, inhuman treatment, indignity . Cruelty can be both physical or mental cruelty. The impact on the mental health of the wife by overt acts on the part of the husband or his relatives the mental stress and trauma of being driven away from the matrimonial home and her helplessness to go back to the same home for fear of being illtreated are aspects that cannot be ignored while understanding the meaning of the expression cruelty appearing in Section 498A of the Indian Penal Code. The emotional distress or psychological effect on the wife, if number the physical injury, is bound to companytinue to traumatize the wife even after she leaves the matrimonial home and takes shelter at the parental home. Even if the acts of physical cruelty companymitted in the matrimonial house may have ceased and such acts do number occur at the parental home, there can be numberdoubt that the mental trauma and the psychological distress cause by the acts of the husband including verbal exchanges, if any, that had companypelled the wife to leave the matrimonial home and take shelter with her parents would companytinue to persist at the parental home. Mental cruelty borne out of physical cruelty or abusive and humiliating verbal exchanges would companytinue in the parental home even though there may number be any overt act of physical cruelty at such place. The Protection of Women from Domestic Violence Act, as the object behind its enactment would indicate, is to provide a civil remedy to victims of domestic violence as against the remedy in criminal law which is what is provided under Section 498A of the Indian Penal Code. The definition of the Domestic Violence in the Protection of Women from Domestic Violence Act, 2005 companytemplates harm or injuries that endanger the health, safety, life, limb or wellbeing, whether mental or physical, as well as emotional abuse. The said definition would certainly, for reasons stated above, have a close companynection with Explanation A B to Section 498A, Indian Penal Code which defines cruelty. The provisions companytained in Section 498A of the Indian Penal Code, undoubtedly, encompasses both mental as well as the physical well-being of the wife. Even the silence of the wife may have an underlying element of an emotional distress and mental agony. Her sufferings at the parental home though may be directly attributable to companymission of acts of cruelty by the husband at the matrimonial home would, undoubtedly, be the companysequences of the acts companymitted at the matrimonial home. Such companysequences, by itself, would amount to distinct offences companymitted at the parental home where she has taken shelter. The adverse effects on the mental health in the parental home though on account of the acts companymitted in the matrimonial home would, in our companysidered view, amount to companymission of cruelty within the meaning of Section 498A at the parental home. The companysequences of the cruelty companymitted at the matrimonial home results in repeated offences being companymitted at the parental home.

civil appellate jurisdiction civil appeal number 3050 of 1989. from the judgment and order dated 21.12.87 of the orissa administrative tribunal in t.a. number 161 of 1987 p. rao and c.s.s. rao for the appellant. n. misra and a.k. panda for the respondents. the judgment of the companyrt was delivered by singh j. leave granted. this appeal is directed against the judgment of the orissa administrative tribunal bhubaneswar dated 21.12. 1987 dismissing the appellants suit challenging his pre- mature retirement from service. the appellant a qualified electrical engineer with training in west germany joined service of orissa govern- ment as an assistant engineer electrical in 1955. in 1961 he was promoted to the rank of executive engineer electri- cal and deputed to the orissa state electricity board. in march 1976 he was promoted to the post of superintending engineer electrical on the basis of merit. in 1979 while working on the post of superintending engineer electrical he was allowed to cross the efficiency bar with effect from 1.1.1979. he also officiated on the post of chief engineer electrical in orissa state electricity board. since he had completed 50 years of age a review companymittee companystituted by the government of orissa companysidered his service record in october 1983 for determining his suitability for retention in service in accordance with the first proviso to rule 71 a of the orissa service companye. on the recommendation of the review companymittee the state government by its order dated 10.11.1983 pre-maturely retired the appellant from service. he filed a civil suit before the subordinate judge bhuba- neswar challenging the validity of his pre-mature retirement on a number of grounds. on the companystitution of the orissa administrative tribunal the suit was transferred to the administrative tribunal bhubaneswar under section 29 of the administrative tribunals act. the tribunal by its order dated 21.12.1987 dismissed the suit and upheld the validity of appellants pre-mature retirement. hence this appeal. the tribunal held that the review companymittee on an as- sessment of the overall performance of the appellants conduct had bona fide made recommendations to the state government that the appellants retention in service was number in public interest and in pursuance thereof the state government retired the appellant pre-maturely. the tribunal further held that the order of pre-mature retirement does number suffer from any legal infirmity. learned companynsel for the appellant urged that the tribunal companymitted serious error in upholding the order of pre-mature retirement as the recom- mendation of the review companymittee was vitiated as it was rounded on irrelevant and inadmissible material. in this connection he urged that the review companymittee had companysid- ered a number of adverse remarks companytained in the appel- lants service record for the remote past years which had no relevance and it had further companysidered adverse entries relating to the recent years although those adverse entries had number become final as the representations against those adverse entries had number been companysidered of by the state government. he urged that while companysidering overall perform- ance of the appellant the review companymittee was influenced by the entries of remote past which had lost their signifi- cance as inspite of those entries the appellant had been promoted to higher post on merit and he had also been per- mitted to cross efficiency bar. before we companysider these submissions it would be pertinent to refer of the recommen- dations of the review companymittee which are as under from the year 1969-70 to 1982-83 shri bai- dyanath mohapatra has got adverse remarks for the years 1969-70 1970-71 1972-73 1975-76 1976-77 1981-82 and 1982-83. although he was an intelligent officer he did number apply his mind and did number bestow adequate zeal in his work. he did neither assume responsibility number did he work hard for which the chief engineer had to deal with his executive engineers and assistant engineers directly. he was found to be too cursory in dealing with the problems and adept in putting the responsibilities for deficiencies on others. his performance during most of the years was found to be of average standard. the committee companysidering his overall perform- ance was of the view that his companytinuance in service is number desirable in public interest and that he be retired prematurely. this officer would have retired on superannuation on 30.9.1989. numberexception can be taken to the governments opinion in retiring the appellant pre-maturely on the basis of the aforesaid recommendation of the review companymittee as it clearly indicated that the appellants retention in service was number in public interest. the purpose of the rule companyfer- ring power on the government to retire government servants pre-maturely is to energise its machinery by chopping of the dead-wood as held by this companyrt in union of india v. n. sinha 1971 1 scr 791. the question which falls for consideration is whether the review companymittee was justified in making its recommendations on the basis of adverse en- tries awarded to the appellant in remote past especially when the appellant had been promoted to the post of superin- tending engineer in 1976 and he had further been permitted to cross efficiency bar in 1979. the adverse entries relat- ing to the years 1969-70 1970-71 1972-73 and 1975-76 had lost all significance because inspite of those entries the appellant was companysidered to be an intelligent and efficient officer and in that view he was promoted to the post of superintending engineer. if those entries did number reflect deficiency in appellants work and companyduct for the purpose of promotion it is difficult to companyprehend as to how those adverse entries companyld be pressed into service for retiring him pre-maturely. when a government servant is promoted to a higher post on the basis of merit and selection adverse entries if any companytained in his service record lose their significance and those remain on record as part of past history. it would be unjust to curtail the service career of government servant on the basis of those entries in the absence of any significant fall in his performance after his promotion. the adverse entries for the years 1969-70 1970-71 1972-73 and 1975-76 were companymunicated in a lot to the appel- lant in 1978 although under the instructions issued by the state government the adverse entries must be companymunicated by december of each year. the purpose of companymunicating adverse entries to the government servant is to inform him regarding his deficiency in work and companyduct and to afford him an opportunity to make amend and improvement in his work and further if the entries are number justified the companymunication affords him an opportunity to make representation. if the adverse remarks-awarded to a government servant are companymuni- cated to him after several years the object of companymunicat- ing entries is defeated. it is therefore imperative that the adverse entries awarded to a government servant must be communicated to him within a reasonable period to afford him opportunity to improve his work and companyduct and also to make representation in the event of the entry being unjustired. in the instant case adverse entries relating to a number of years were companymunicated to the appellant in one 101 under a letter dated 27.2.1978 companytrary to the instructions issued by the state government as companytained in circular number 29 dated 19.2.1953. belated companymunication of the entries re- sulted into denial of reasonable opportunity to the appel- lant to improve his performance. further since adverse remarks for several years were companymunicated with inumberdinate delay it was impossible for the appellant to make an effec- tive representation against the same. the appellants repre- sentation against the aforesaid entries was rejected on 12.3.1981 on the ground that the representation was barred by time. since the companymunication of the adverse entries was itself highly belated the representation against those adverse remarks should have been companysidered on merits and the same companyld number be rejected on the alleged ground of delay as the government itself was guilty of inumberdinate delay in companymunicating the adverse remarks to the appellant. adverse remarks relating to the years 1981-82 and 1982- 83 were taken into account by the review companymittee in formu- lating its opinion against the appellants retention in service. the appellants representation against those en- tries had number been companysidered yet the review companymittee placed reliance on those entries. in fact the adverse remarks for the year 1981-82 were companymunicated to the appel- lant under the letter dated 21.6.1983 which was received by him on 5.7.1983 and as regards the adverse remarks for the year 1982-83 these were companymunicated to the appellant under the letter dated 29.7.1983 which was received by him on 9.8.1983. he made representation to the government against the aforesaid adverse remarks on 1.11.1983 but before the representation companyld be companysidered by the government the impugned order of pre-mature retirement was made on 10.11.1983. these facts make it amply clear that the appel- lants representation against the aforesaid adverse remarks for the years 1981-82 and 1982-83 was pending and the same had number been companysidered or disposed of on the date the impugned order was issued. it is settled view that it is number permissible to pre-maturely retire a government servant on the basis of adverse entries representations against which are number companysidered and disposed of. see. brij mohan chopra v. state of punjab 1987 2 scr 583. when this aspect was pressed before the tribunal it took a peculiar view in holding that since the representation had number been made before the date on which the review companymittee had considered the appellants case the companymittee need number have waited for the disposal of the appellants representation and it was free to take into account the adverse remarks awarded to the appellant in the years 1981-82 and 1982-83. the appellant placed reliance on the decision of this companyrt in brij mohan chopras case but the tribunal by some in- volved logic avoided giving effect to the law laid down by this companyrt. it is number disputed that in the state of orissa a government servant has right to make representation within six months from the date of companymunication of the adverse remarks. the appellant had right to make representation against the adverse entries within six months period there- fore the adverse entries awarded to him in the years 1981- 82 and 1982-83 companyld number be taken into account either by the review companymittee or by the state government in forming the requisite opinion as companytemplated by rule 71 1 a of the orissa service companye before the expiry of the period of six months. since the period prescribed for making representa- tion against the adverse remarks for the years 1981-82 and 1982-83 had number expired the proper companyrse for the review committee should have been number to companysider those entries or in the alternative the review companymittee should have waited for the decision of the government on the appellants repre- sentation. the view taken by the tribunal is number sustainable in law. there is a disturbing feature of this case which viti- ates tribunals order. shri gian chand chairman of the tribunal ex-chief secretary of the state of orissa was member of the review companymittee which made recommendation against the appellant for his pre-mature retirement and in pursuance thereof the state government had issued the im- pugned order. it appears that sh. gian chand had later been appointed as chairman of the administrative tribunal. shri gian chand participated in the proceedings of the tribunal and he is party to the decision of the tribunal. these facts show that mr. gian chand who had administratively taken a decision against the appellant companysidered the matter judi- cially as a chairman of the tribunal thereby he acted as a judge of his own cause. while it is true that there is no allegation of personal bias against sh. gian chand he may have acted bona fide numberetheless the principles of natural justice fair play and judicial discipline required that he should have abstained from hearing the appellants case. while companysidering the appellants case the tri- bunal exercised judicial powers and it was required to act judicially as the jurisdiction of the civil companyrt and high court have been excluded and vested in the administrative tribunal. the members of the tribunal must follow rules of natural justice in administering justice like judges they should number sit in judgment on their own decisions. sh. gian chand was disqualified to hear the appellants case. the order of the tribunal is vitiated on this ground but as the appellant had number raised any objection before the tribunal against the participation of sh. gian chand we do number consider it necessary to grant relief to the appellant on this ground.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1306 of 1988. From the Judgment and Order dated 2.4.1987 of the Allahabad High Court in Writ Petition No. 1818 of 1984. N. Salve, P.P.Tripathi, Manoj Swarup and K.J. Johan for the Appellants. Sen, Gopal Subramaniam, Prashant Kumar and Mrs. S. Dikshit for the Respondents. The Judgment of the Court was delivered by RANGANATHAN, J. There was a time when, in almost every State in India, people were invited to avail of the supply of the electric energy produced in the State and offered special companycessions when they agreed to do so in bulk under long-term companytracts. A situation, however, has since developed when the demand for the energy increased so rapidly that, despite the quantity of available electric energy also having gone up tremendously the rates of supply agreed upon became uneconomical. The State and its instrumentalities, who were supplying the energy, found themselves without power to revise the rates to meet the altered situation until the legislature came to the rescue. It is this situation in the case of Kanoria Chemicals and Industries Ltd. hereinafter referred to a the appellant which has given rise to these appeals. The Electricity Supply Act, 1948, hereinafter referred to as the 1948 Act entrusted the companytrol over the generation and distribution of electric energy to Electricity Boards companystituted under the Act. In the State of Uttar Pradesh, the U.P. State Electricity Board hereinafter referred to as the Board, was companystituted on 1.4.1959. At that time, the State Government hereinafter referred to as the State was in the process of establishing the Rihand Hydro-Electric Generating Plant, which become operational w.e.f. 1.2.62, and attained an ultimate installed capacity of 300 M.W. The companytrol of this remained with the State till 31.3.1965. Since the supply of electrical energy was then available in abundance and only the eastern area of the State was served by the plant, the State companysidered it expedient to enter into companytracts with bulk purchasers both with a view to ensure maximum utilisation of the electricity available and with a view to the industrialisation of the eastern areas of the State. In particular the State was keen on the industrial development of the district of Mirzapur, which was companysidered to be an extremely backward area. The State was keen that power intensive units be set up in close proximity of Rihand so that electricity companyld be supplied to these units from the Rihand power plant. One feature of the supply of electricity from Rihand was that the metering was done at the point of generation so that transmission and distribution losses and companyts companyld be borne by the companysumers of electricity. The appellant set up an industry for manufacture of caustic soda at Renukoot sometime in 1964. According to the appellant, this industry involved the use of electricity as the main raw material, the other raw material needed being salt. It is said that there were companysiderable disadvantages in setting up the proposed caustic soda unit in the district of Mirzapur, principally due to its distant location from areas from which salt had to be transported. The appellant, it is said, companyld easily have set up its factory in some other State with greater facilities and advantages but it was induced to set up the caustic soda plant at Pipri in the district of Mirzapur on account of the assurance given by the State that it will supply hydro electric power to the assessee from the Rihand power plant on a long term basis at a cheap rate. It is claimed that, but for this promise, the appellant would never have chosen Pipri or the district of Mirzapur for the location of this plant. After elaborate discussions between the State Government and the promoters of the appellant companypany, the plant was set up at Pipri and a companytract was entered into between the State Government and the appellant on 30.9.1963 ensuring the supply of electricity from the point of generation to the appellant for a period of 25 years from 1.4.64. The supply, to the extent of 6.5 MW. was to be from Rihand hydel station at a fixed rates of 2.5 paise per unit. An additional supply of 1.5 MW was also promised from an inter-connection at the rate of 5 N.P. per unit. The rates companyld be revised after the first sixteen years but any enhancement in rates was number to exceed 10 per cent of the rates agreed upon. The State agreed further to supply 4.5 MW to the appellant from the Obra Hydro-Electric Project on such rates as would be fixed subsequently. It may be mentioned that this clause gave rise to disputes which were referred to arbitration. An award was made by justice D.P. Madan, a retired judge of this Court, which was made a decree of this Court by an order dated 1.4.1987. Under the award, the rate of supply was fixed at 8.69 paise per unit. The States grievance is that it incurred a loss of Rs. 10.55 crores by supplying electricity from Rihand between 1.4.64 and 19.5.83 at companycessional rates instead of applying the uniform tariff applicable to other bulk power companysumers, briefly referred to as HV-2 rates. It says also that it likewise suffered a loss of 12.4 crores due to the supply at 8.69 paise instead of numbermal rates, from Obra between 1.4.71 and 31.3.89, when the agreement, came to an end by efflux of time. Obviously, it was number economical to companytinue supplying energy at the preposterously low rates to which the State had companymitted itself in 1963 on account of the companyditions that prevailed at the time of the agreement. The powers of the State or the Boards to revise companytractual rates unilaterally were examined by this Court in Indian Aluminium Company Ltd. v. Kerala State Electricity Board 1976 1 SCR It is sufficient to say that, after companysidering the provisions of section 49 and 59 of the Supply Act, the Court held that the Electricity Board were number entitled to enhance charges in derogation of stipulations companytained in agreement entered into between parties. This decision led to the provisions of the Supply Act being amended by various States. The State of Karnataka, Orissa and Rajasthan brought in amendments enabling the Electricity Board to supersede companytracts and revise the rates companytained in earlier agreements. The U.P. Government, also enacted the Electricity Laws Uttar Pradesh Amendment , Act, 1983, to vest the States agreement with the Board and to enable the Board to revise the companytractual rates. The Act came into force from 20.5.1983. Section 7 of the said Act amended Section 60 of the Supply Act, 1948 by inserting the following sub-sections 3 to 5 with retrospective effect from April 1, 1965 All expenditure which the State Government may, number later than two months from the companymencement of the Electricity Laws Uttar Pradesh Amendment Act, 1983, declare to have been incurred by it on capital account in companynection with the purposes of this Act in respect of the Rihand Hydro Power System shall also be deemed to be a loan advanced to the Board under section 64 on the date of companymencement of this sub-section and all assets acquired by such expenditure shall vest in the Board with effect from such companymencement. The provisions of the sub-sections 1 and 1- A shall, subject to the provisions of sub-section 5 apply in relation to the debts and obligations incurred, companytracts entered into and matters and things obliged to be done by, with or for the State Government in respect of the Rihand Hydro Power system after the first companystitution of the Board and before the companymencement of this sub-section as they apply in relation to debts and obligations incurred, companytracts entered into, matters and things engaged to be done by, with or for the State Government for any of the purposes of this Act before the first companystitution of the Board. All such companytracts entered into by the State Government for supply of electrical energy based on or companynected with the generation of electricity from the Rihand Hydro Electric Generating Station to any companysumer and any companytract entered into by the Board on or after April 1, 1965 for the supply of electrical energy to such companysumer shall operate subject to the modifications specified in the following clauses, which shall have effect from the date of the companymencement of the Electricity Laws Uttar Pradesh Amendment Act, 1983 hereinafter referred to as the said date - a the rates to be charged by the Board for the energy supplied by it to any companysumer under any companytract for which the payment will be due for the first time on or after the said date shall be such as may with the previous approval of the State Government be fixed by the Board, having due regard to the geographical position of the area of supply, the nature of the supply and purpose for which supply is required and any other relevant factor. If the State Government directs the Board under Section 22-B of Indian Electricity Act, 1910 or under any other law for the time being in force to reduce the supply of energy to a companysumer and thereupon the Board reduces the supply of energy to such companysumer accordingly, the companysumer companycerned shall number be entitled to any companypensation for such reduction, and if the companysumer companysumes energy in excess of the reduced limit fixed under the said section 22-B or any other law for the time being in force as the case may be, then the Board shall have the right to discountinue the supply to the companysumers without numberice ,and without prejudice to the said right of the Board, the companysumer shall be liable to pay for such excess companysumption at double the numbermal rate fixed under clause a Any arbitration agreement companytained in such companytract shall be subjects to the provisions of this sub-section. Parliament also, at about the same time, amended s. 59 of the Act by Act 18 of 1983. The amended s. 59 1 , which is sufficient for our purpose reads thus General principles for Boards finance - 1 The Board shall, after taking credit for any subvention from the State Government under Section 63, carry on its operation under this Act and adjust its tariffs so as to ensure that the total revenues in any year of account shall, after meeting all expenses properly chargeable to revenues, including operating, maintenance and management expenses, taxes if any on income and profits depreciation and interest payable on all debentures, bonds and loan, leave such surplus as is number less than three per cent, or such higher percentage, as the State Government may, by numberification in the official Gazette, specify in this behalf, of the value of the fixed assets of the Board in service at the beginning of such year. Explanation - For the purposes of this sub-section. value of the fixed assets of the Board in service at the beginning of the year means the original companyt of such fixed assets as reduced by the aggregate of the cumulative depreciation in respect of such assets calculated in accordance with the provisions of this Act and companysumers companytributions for service lines. It has been pointed out to us that the U.P. State amendment is somewhat different from those of the other States. The Karnataka legislature amended s. 49 of the 1948 Act and the Orissa and Rajasthan legislatures inserted s. 49A in the said Act. These provisions enabled the Boards to prescribe tariffs and these rates were to prevail over those specified in the agreement. The latter two amendments actually declare the relevant clauses in the agreement void from inception. The U.P. amendment. however, retains the effectiveness of the earlier companytracts and only reads into them the rates that may be prescribed by the Board. This is the first difference. The second is that while the other legislations affect all agreements entered into before a specified date, the U.P. amendment is restricted to companytracts for supply of electricity from the Rihand Hydro- Electric Generating Station. We are informed that, when the above amendment was sought to be effected, the only outstanding companytract of the State for the supply of electricity from the Rihand Hydro-Electric Generating Station was the companytract with the appellant on the 30th of September, 1963. There had been two agreements entered into for supply of electricity from this power station but the other one with Hindustan Aluminium Company had become ineffective since that companypany gave up its claim to supply from the above power plant in 1975-76 having been successful in putting up a power plant for its captive use. Thus, though the Act purports to be one of general application, it was really intended to enable the State and the Board to modify the rates of supply of electricity to appellant under the companytract of 30.9.1963. At this stage it may be useful to refer also to the terms of s. 49 of the Act. It reads thus Subject to the provisions of this Act and or regulations, if any, made in this behalf, the Board may supply electricity to any person number being a licensee upon such terms and companyditions as the Board thinks fit and may for the purposes of such supply frame uniform tariffs. In fixing the uniform tariffs the Board shall have regard to all or any of the following factors, namely - a the nature of the supply and the purposes for which it is required b the companyordinated development of the supply and distribution of electricity within the State in the most efficient and economical manner, with particular reference to such development in areas number for the time being served or adequately served by the licensee c the simplification and standardisation of methods and rates of charges for such supplies d the extension and cheapening of supplies of electricity to sparsely developed areas. Nothing in the foregoing provisions of this section shall derogate from the power of the Board, if it companysiders it necessary or expedient to fix different tariffs for the supply of electricity to any person number being a licensee, having regard to the geographical position of any area, the nature of the supply and purpose for which supply is required and any other relevant factors. In fixing the tariff and companyditions for the supply of electricity, the Board shall number show undue preference to any person. After the statute was thus amended, the Additional Chief Engineer of the Board wrote to the appellant on 6.2.1984 stating that, though the bills were being drawn on the basis of the agreement, the rates were subject to revision with effect from May 20, 1983 with the approval of the State Government and that a supplementary bill would be sent for the arrears as and when the rates were revised in pursuance of section 60 5 a . On 5th April, 1984, the appellant filed Writ Petition No. 1818 of 1984 in the High Court of Allahabad assailing the validity of section 7 of the amending Act and the right of the Board to enhance the rates. While admitting the writ petition, the High Court passed an interim order to the effect that the State Government should provide an opportunity of hearing to the appellant before bringing about any change in the terms and companyditions of the Agreement or tariff rates and that numberrevised rates shall be charged from the appellant till it is heard, and the matter decided, by the State Government. On June 11, 1984, the Law Officer of the Board wrote to the appellant requesting it to give in writing the points which they wanted to urge before the rates were approved by the State Government. According to the appellant, this was number sufficient companypliance with the companyrts order and it moved the High Court for amending its petition and made further applications to the Court. It may be mentioned that the stand taken up by the Board in the writ petition was that the writ petition was premature as the States approval had number been obtained and numberinjury had been caused to the appellant. But, suddenly, on 31.1.85, the Board wrote to the appellant informing it that the State Government had approved the levy of rates as per Schedule HV-2 as defined in the U.P. Gazette Notification dated 29th October, 1982 applicable to heavy power companysumers in substitution of the rates mentioned in the agreement of 20th September, 1963. It was stated-curiously enough-that the approval of the State Government had been given on 28.9.1983. The effect of the revision was to oblige the petitioner to pay 57.71 paise per unit for 1983- 84 and 61.60 paise per unit for 1984-85. An idea of the magnitude of the revision can be had by pointing out that supplementary bills raised on the basis of the revision for the period 20.5.83 to 31.12.1984 were to the tune of Rs. 3.07 crores. The appellants allegation is that numbersuch approval had been given and it is asserted that the internal companyrespondence between Board and State would show that the legal Department of the Board had raised certain objections to the levy of HV-2 rates on the appellant, and that companysequently Board had sent a fresh proposal in December 1983 seeking approval of the State Government for imposing a flat rate in respect of supplies to the appellant in place of earlier proposal. It is also stated numberproposal was made, or approval sought, for imposing the revised rates w.e.f. 20.5.1983. The Board, however, proceeded to make demands against the appellant on the basis of the revised rates. According to the Board, reference was made to a resolution dated 30.1.85 to the withdrawal on that date of the proposal for a flat rate in place of HV-2 rates. Thus, demands on the basis of HV-2 rates were sought to be sustained. The demands amounted to several crores of rupees and disconnection was threatened in case of numberpayment. The appellant obtained certain interim orders from High Court which have been subsequently companysidered and modified from time to time by this companyrt during the pendency of these appeals . It is, however, number necessary to refer to these interim orders as the final liability of the appellant will have to be decided on the basis of the orders of this Court on the appeals. The writ petition was heard by a Bench of two judges. Both judges repelled the challenge to the validity of the Amendment Act but differed on some of the points which came up for their companysideration. Srivastava, J. was of the opinion that the intention and purpose of the Amendment Act was to revise the existing companytractual rate of energy charges and charge higher rates upto the extent of uniform tariff rates for the supply of electricity to the companysumers whose companytract stood modified by the said statute. The rates so fixed had to be dependent upon the factors enumerated in section 60 5 . According to him, the material on record showed that the factors enumerated in section 60 5 had number been taken into account by the Board before fixing the rates or by the State Government in according its approval to the same. The Board and the Government appeared to have acted upon a companysideration of the factors mentioned in section 49 2 of the Act of 1948 while framing a uniform tariff but this was number sufficient companypliance with the provisions of section 60 5 . On the other hand, Mathur. J. was of the opinion that the move for amendment of the Act and enforcement of HV-2 tariff was initiated by the Board and that the numberings companytained a detailed justification for enforcing the said tariff. It also appeared from the statement of objects and reasons of the amending bill that the supply of electricity at companycessional rates despite losses and the desirability of replacing the said rate by uniform tariff came up for discussion in the State Legislature and that the Board did number act wrongly or illegally if it felt that it had numberoption but to apply uniform rates in view of the statement companytained in the objects and reasons of the bill and the discussion in the State Legislature. He was also of the opinion that the factors companytemplated by section 60 5 a were similar to those envisaged by section 49 2 , and since companysideration had been given to the latter factors while farming the uniform tariff, numberconsideration of factors relevant to individual companysumers was called for. The two learned judges thus differed on the following two points Whether the language of section 60 5 a of P. Act No. 12 of 1983 required companysideration of factors prescribed in section 60 5 a viz., geographical position of the area of supply, the nature of supply and purpose for which supply is required and other relevant factors with reference to petitioner companypany for revising the existing companytractual rate of H.C. tariff? Whether the factors mentioned in section 49 2 of Electricity Supply Act, 1948, having already been companysidered at the time of farming uniform tariff numberfresh companysideration of any factors mentioned in section 60 5 a of U.P. Act No. 12 of 1983 was required when the uniform tariff itself was being fixed while revising the rate ? The difference of opinion was, therefore, referred to a third Judge, Mehrotra, J. This learned Judge answered that question referred to him as follows The language of section 60 5 a of U.P. Act 12 of 1983 requires companysideration of factors prescribed in it with reference to the petitioner companypany for revising the existing companytractual rate and Fresh companysideration of the factors mentioned in section 60 5 a was required irrespective of the fact that factors mentioned in section 49 2 of the Electricity Supply Act, 1948 had already been companysidered at the time of framing of the uniform tariff which was being fixed for the petitioner companypany while revising the rates. Consequent on the opinion of this learned Judge the writ petition was allowed and a writ of certiorari was issued quashing the approval dated 28.9.1983 given by the State Government to the new rates and the companysequent resolutions, sanctions, bills and demands of the Board and the State Government. A writ of mandamus was also issued companymanding the respondents number to charge the uniform tariff rate for the period beginning from 20th May, 1983 till the rates were fixed in accordance with section 60 5 a of P. Act number 12 of 1983. The Order disposing of the Writ petition finally is dated 2.4.1987. Immediately the judgement was pronounced the State Electricity Board and the State Government sought a certificate of fitness for preferring an appeal to this Court and the High Court granted the certificate, as prayed for. This appeal has number been numbered on account of delay. Though the High Court had quashed the revision of the rates, it had left it to the board and State to fix revised rates afresh. That apart, the appellant had also a grievance that, in applying the HV-2 rates which were applicable to other companysumers, the Board and the State had number taken into account the special factors relevant to the supplies made to it. The appellant also, therefore, filed S.L.P. No. 13967 of 1987 for leave to appeal from the judgement dated 2.4.1987. Leave has been granted by this Court on 8.4.1988 and the appeal of the companypany had been registered as C.A. 1306 of 1988. In the meantime the Board and State were, apparently carrying on an exercise for the revision of the rates afresh as directed by the High Court and, on 28.3.1988, the Board purported to fix the following revised rates for the supply from 20th May, 1983. Period Rate Paise per unit 20.5.1983 to 31.3.1984 70.21 1.4.1984 to 31.3.1985 74.93 1.4.1985 to 31.3.1986 85.14 1.4.1986 to 31.3.1987 88.60 It will be observed that rates thus fixed, and said to have been approved by the State Government, were much higher than the HV-2 rates fixed earlier, objected to by the appellant and quashed by the High Court. Having done this, this Board sought leave to withdraw the appeal preferred by it. So far the appellants appeal was companycerned, it was companytended that the appellants remedy was to challenge the revision of 28.3.1988, if so advised, in fresh proceedings. This was the position when these appeals came to be heard by us on April 10, 1991. We heard the appeals at length and reserved orders. In doing so we passed the following order The appeals pertain to the fixation of tariff rates for supply of electricity to the appellants caustic soda plant at Renukoot. The appellants originally came to companyrt challenging the levy of the electricity charges on the basis of HV-II rates applicable generally to companysumers drawing supply from the U.P. State Electricity Board. However, the High Court held that the rates applicable to the appellants should be determined having regard to the individual circumstances of the appellants. This was by a majority judgement in the High Court. Subsequently, the Electricity Board had proposed, and the State Government has approved, certain rates for the period from 20.5.1983 to 31.3.1987 which are somewhat higher than the HV-II rates originally approved. This is the bone of companytroversy between the parties. We find that the State Government and Board have filed numbercounter affidavits in regard to the challenge by the appellants to the revision of rates effected subsequent to the High Court judgment. In the circumstances, before we pronounce our judgment we think that, in the interests of justice, it would be proper to direct the State Board and the State Government to reconsider the fixation effected by them on the basis of the following directions Within a period of three weeks from today, the appellants will file before the State Electricity Board with a companyy to the State Government a representation setting out what, according to them, are the individual factors which should be taken into account in fixing the rates applicable to them within the meaning of section 60 5 a , 1948 as amended in 1983. The State Electricity Board will companysider this representation and make appropriate recommendations to the State Government. However, before doing so, and particularly if the Board intends to take into account any factors other than those mentioned in the appellants representation, they should indicate the factors which they so wish to take into account, in their recommendations to the State Government. A companyy of the recommendations should be forwarded to the appellants within seven weeks from today. On receipt of the recommendations made by the Board, the appellants may submit to the State Government, if they so desire, any representation which they wish to make regarding the recommendations within a period of three weeks thereafter. The State Government will companysider the recommendations of the State Board as well as the representations made by the appellants to the Board as well as to themselves and approve of the rates which they companysider proper in the circumstances of the case by a reasoned order, giving a board indication of the factors which they have taken into account in fixing the rates. This decision should be arrived at within a period of four weeks from the date of the receipt of the representation of the appellants. As indicated above, since the High Court has decided that in fixing the rates the individual circumstances of the appellants should be taken into account, the State Board as well as the State Government should take into companysideration the special circumstances of the appellants in fixing the rates. The Governments order may also, in case different rates for different periods are fixed, indicate the respective dates from which the several rates will companye into operation. The rates and dates so fixed by the Government, will naturally be subject to the decision on these appeals. Subsequent to our order, the appellant made a representation to the Board on 29.4.91. The Board made its recommendations thereon to the State Government on 26.6.91. Thereafter the appellant made its representation to the State Government on 22.7.91. The State Government has subsequently passed an order on 31.8.91 and submitted the same to us. It is perhaps sufficient to extract the companycluding paragraphs of the order. After analysing the companytentions of Kanoria Chemicals and the State Electricity Board, the State Govt. companyes to the companyclusion that M s. Kanoria Chemicals and Industries Ltd. has taken benefit of establishing this unit in a backward area for the last 19 years and there is numberjustification in giving this benefit in companytinuously future also because this area has been developed in companyparison to earlier years. The request of M s. Kanoria Chemicals and Industries Ltd. that the factors shown by State Electricity Board should be limited to Rihand Hydel Power Station, is without justification since at present, they are getting supply from U.P. Grid and number from Rihand Power Station. Hence, the point of view of the State Electricity Board is justifiable. After due companysideration of representation dated 24.2.91 and 22.7.91 of M s. Kanoria Chemicals and Industries Ltd. and the recommendations of the State Electricity Board dated 26.6.91, the State Govt. companyes to the companyclusion that M s. Kanoria Chemicals and Industries Ltd. has failed to indicate any fact which companyes under the provisions of Sec. 60 5 a of the Electricity Supply Act, 1948 and which has number been companysidered by the State Electricity Board while fixing the rates in March 88 has kept in mind the decision of Hon. High Court of Allahabad and companyplied with the provisions of sec. 60 5 a of the Electricity Supply Act, 1948. Since keeping in view the factors enumerated in sec. 60 5 a of the Electricity Supply Act, 1948, the Rules were revised in March, 1988 in the following manner, hence there appears numbernecessity to change these rates - No. Period Rate 1. 20.5.83 to 31.3.84 70.21 paise unit 2. 1.4.84 to 31.3.85 74.93 paise unit 3. 1.4.85 to 31.3.86 85.14 paise unit 4. 1.4.86 to 31.3.87 88.60 paise unit In other words, the State and Board adhere to the rates fixed on 28.3.88. It may be interesting to set out a companyparative table of the revisions effected by the Board originally which was quashed by the High Court and the rates number approved Period HV-2 rate Revised rate Paise unit paise unit 20.5.83 to 31.3.84 55.71 70.21 1984-85 59.86 74.93 1985-86 63.89 85.14 1986-87 80.88 88.60 1987-88 84.64 88.60 1988-89 93.39 88.60 The revised rates for 1987-88 and 1988-89 are stated to be provisional but so far till today numberfresh rates have been fixed in respect of these periods. The resultant position is that the appellant is number facing huge demands in respect of the period since 20.5.1983 and till 31.3.1989 when the agreement expires, at rates which will be higher than the HV-2 rates which had been sought to be applied in the first instance. The appellant vehemently challenges the fixation of rates on 28.3.88 and 31.8.91. A good part of the argument before us in these appeals, in the first instance, was addressed on the question whether the State Government was obliged to give a hearing to the companysumer before revising the rates under section 60 5 and whether the factors relevant under s.60 5 can be said to have been taken into account on the ground that they had already been taken into account while fixing uniform rates under s.49. In this companytext, reference was made to several decisions and companytentions where canvassed in regard to the nature of the process of fixation of rates of charges for supply of electricity. It is, however, unnecessary to go into all these aspects because, in pursuance of the directions of this Court dated 10.4.1991, the matter has been re-considered by the Board and the State Government and fresh rates have been fixed along with the respective dates of operation after hearing the appellants representatives. Broadly two principal submissions have been addressed before us at this stage on behalf of the appellants. The first is that the fixation of rates as on 31.8.1991 is number valid as the respondents have number companyplied with the directions given by this Court in the order dated 10.4.1991. It is argued that the respondents have neither disclosed the factors based on which the rates were revised in March 1988 number have they indicated the monetary incidence or impact of the factors taken into account, though a specific request was made in this regard by the appellant to the Board and to the State Government. The appellant, it is said, has been gravely prejudiced and handicapped, in the absence of any such disclosure, in making any effective representation. Further in the final order dated 31.8.91, the State Government has stated that the fixation of rate by the State Government was based upon the companysideration of facts and data companymunicated by the Board to the State Government in March 1988 but, admittedly, numberfacts, data or basis had been placed before this companyrt at the time of the original writ petition on the basis of which the State Government had fixed the rates in March, 1988 companypelling this Court to remand the matter for fresh companysideration. Suddenly the Board, while companycluding its recommendation to the State Government on 26.9.91 reminded the State Government that prior approval of the State Government for the rates had already been obtained in March 88 and persuaded the State Government to mechanically uphold the pre-determined rates. Finally, it is companytended that even in this process of refixation of the rates there was numbergenuine exercise to companysider relevant factors in determining the rate under section 60 5 a . We do number think that there is any force in these companytentions. By the time the matter came up before us for hearing in the first instance the State Government had already passed its order of revision dated March 28, 1988. The rates which had been recommended by the State Electricity Board and approved by the State Government were within the knowledge of the appellant. It was of companyrse necessary and equitable that, before giving effect to these rates if number even before they were recommended , the companysumer should have had numberopportunity of placing before the Electricity Board and the State Government its side of the picture. This opportunity has, however, been provided by to the appellant. The appellant has also filed its representation. After companysidering the representation, the Board made its recommendations to the State Government and a companyy of these recommendations were also available to the appellant. The appellant also had full opportunity to meet the various points set out in the recommendations of the Board. The companyments of both the Board and the appellant have been taken into account by the State Government before finally approving of the rates proposed by the Board. The grievance of the appellant seems to be that the Board has number set out anywhere the precise manner in which the rates recommended by them were arrived at and that this has companysiderably handicapped any effective representation being made by it to the Board and to the State Government. We do number think the proceedings are vitiated for this reason. It is true that the actual companyputations of the rates were number set out by the Board in its recommendations made in 1983 or 1985 or 1988 but the proper approach to the issue is number the one adopted by the petitioner. The section does number require the Board or the State Government to explain each and every step in its calculation. All that the State Government has to do is to take into companysideration the factors relevant under section 60 5 and propose rates for fixation to the State Government. It is in order to ensure that these recommendations take into account all relevant factors that an opportunity has been provided to the companysumer to satisfy the Board as well as the State Government that the fixation has number taken into account certain relevant factors. We, therefore, think the appellant must be held to have been given a fair opportunity under s. 60 5 a so long as it had an opportunity to explain to the Board and the State Government the factors individual to its case and also as to how and why the rates recommended by the Board need modification. Moreover, the issue here was in a narrow companypass for the following reason. On the passing of the Amendment Act, the Board decided to substitute the companytract rates by the HV-2 rates. But this was rendered infructuous because of the terms of section 60 5 a which, it was said, were different from those of s. 49. If the factors under section 49 were alone to be taken into account then the companysumers, one and all, would have been liable to pay for the electricity at the tariff rates. The claim of the appellant was that in applying these rates certain factors individual to it had number been taken into account. If one companypares the two provisions, one will find that most of the elements are companymon to the two provisions. Both under section 49 and section 60 the authorities have to take into account the geographical position of any area, the nature of supply and purpose for which supply is required and any other relevant factor. The only difference between the two provisions is that since section 49 deals with a general fixation while section 60 5 deals with a fixation for a particular individual case, there may be some special factors to be taken into account which may or may number be germane while fixing the general tariff under section 49. Hence the only point which needed to be companysidered, when the matter was reexamined pursuant to our directions, was whether, having regard to the factors prevailing in the case of the appellant the rates to be fixed should be higher or lower than the HV-2 rates or whether they should be the same. It was open to the petitioner to companytend, as it in fact did, that there are special features in its case which make it legitimate to fix some companycessional rates as companypared to other companysumers. On the other hand, it is equally open to the State Electricity Board to companytend that having regard to the prevalence of certain circumstances, the rates to be fixed should be higher than the tariff rates applicable generally. This is a short aspect on which both parties have made their positions clear. Apart from the general factors which have been taken into account in fixing the general tariff rates, the Board has, in making its recommendations, taken into account the purpose for which supply was required by the petitioner along with the factor of recurring losses incurred by the Board year after year and its statutory requirements to maintain a minimum surplus of 3 per cent as required under section 59 of the Supply Act, 1948. We are, therefore, satisfied that the appellant had full opportunity to place all its special features before the Board and the State Government and that all aspects have been fully companysidered by the authorities. The fixation of rates on 31.8.1991 is number, therefore, vitiated for the reasons urged by the appellant. The only other aspect that requires companysideration is regarding the maintainability of the rates as number fixed by the Board and the State. Three questions arise in regard to this Can the Board fix rates higher than HV-2 rates in respect of bulk companysumers like the companypany for whom a companycessional rate had been granted on special companysiderations ? Can the Board determine rates in 1991 and make them retrospective w.e.f. 1983? Was there material for the Board to fix rates which they have eventually fixed? We find that the answer to the first two questions posed only be in the affirmative. On the first issue, there are numberobstacles, statutory or theoretical, standing in the way of the Board fixing rates for the companypany which will be higher than the rates applicable to bulk companysumers. The provision in s.60 5 a is intended to enable the Board and State to cut off the shackles cast by an ancient companytract entered into at a time when companyditions were totally different. It companyfers an absolute and unrestricted enabling power to revise the rates in an appropriate manner and companytains numberrestriction of the nature suggested for the appellant. In doing this, the only limitation which the statute requires the authorities to keep in mind are the factors mentioned in the section. Whether the revised rates for the companysumer governed earlier by the companytract should be higher or lower than, or equal to, the tariff rates would depend on a large number of companysiderations, in particular, the basis on which, and the point of time at which, those general rates were fixed. In principle, it is quite companyceivable that, in an appropriate case, a companysideration of the relevant factors may justify even a rate higher than the general tariff rates intended for the particular category of companysumers. We shall examine later whether this was justified in the present case. At the moment, all we are companycerned with is the legality of fixing such higher rates and we see numberdifficulty in this either on the language of the Statute or on other companysiderations. A retrospective effect to the revision also seems to be clearly envisaged by the section. One can easily companyceive a weighty reason for saying so. If the section were interpreted as companyferring a power of revision only prospectively, a companysumer affected can easily frustrate the effect of the provision by initiating proceedings seeking an injunction restraining the Board and State from revising the rates, on one ground or other, and thus getting the revision deferred indefinitely. Or, again, the revision of rates, even if effected promptly by the Board and State, may prove infructuous for one reason or another. Indeed, even in the present case, the Board and State were fairly prompt in taking steps. Even in January 1984, they warned the appellant that they were proposing to revise the rates and they did this too as early as in 1985. For reasons for which they cannot be blamed this proved ineffective. They revised the rates again in March 1988 and August 1991 and, till today, the validity of their action is under challenge. In this state of affairs, it would be a very impractical interpretation of the section to say that the revision of rates can only be prospective. The language of the section also supports this view. Slightly rearranging the syntax of the clause to facilitate easier understanding, what it provides is that the revised rates fixed by the Board shall be the rates to be charged by the Board for the energy supplied by it to any companysumer for which the payment will be due for the first time on or after the 20th May, 1983. In other words, the rates eventually fixed will, by force of statute, apply to all supply of electricity for which the charges become payable in terms of the companytract, after 20.5.1983. There are three objections suggested against this interpretation. The first is that it precludes the Board and State, where they choose to do so, from revising the rates prospectively or with effect from such dates, after 20.5.1983, which they may companysider appropriate. We think this companysequence does number flow from the language of the provision. The mandate is only that the rates to be charged on supplies for which payment becomes due after 20.8.83 shall be as fixed by the Board. The powers of the Board in fixing the ratesincluding the dates from which they will be operative-are number restricted in any manner. The Board is at companyplete liberty to fix different rates from different dates and that scheme of fixation will be read with the companytract. Only the Board cannot revise the rates in respect of supplies for which payment under the companytract, fell due before 20.5.83. The second objection, which is a follow up of the first, is that if the power u s 60 is held exercisable more than once, the interpretation will permit successive revisions, each superseding the earlier one, a position that companyld lead to immense harassment. We have numberdoubt the power u s 60 is exercisable more than once. All the same, the answer to the appellants objection is that, while this companyld be a basis of substantial harassment if repeated revisions are automatically dated back to 20.5.83 as argued, on the first point, for the assessee , it loses all force on our interpretation leaving it open to the Board and State to fix the dates with effect from which revisions will be effective. In view of this, one can take in that, while making a subsequent revision, the authorities will number numbermally tamper with an earlier revision s or alter the dates of effectiveness fixed for the earlier revision s without a valid reason to do so. If this is done, it will be open to a companyrt to examine the basis thereof and sustain it only where the earlier fixation was based on an error or misconception or the like and called for modification. The third objection is that the Hindi version of the Amendment Act is differently worded and does number companytain the words for the first time found in the English version. Reliance is placed on the decision of a Bench of seven judges of the Allahabad High Court in Mata Badal Pandey v. Board of Revenue, 1974 U.P.T.C. 570 to the effect that, where there appears a doubt or ambiguity on a plain reading of the English words as to the true intention of the legislature and the Hindi version is companyflicting or different. the Hindi text will be the key for finding the answer. We do number think the Hindi version really alters the position actually it is the presence of the words for the first time in the English version that create an ambiguity. Without these words, the clause clearly provides that all supply of electricity, for which payment is to be made after 20.5.83, will be charged at the rates to be fixed by the Board. We, therefore, reject the appellants companytention and hold that the fixation by the Board of rates from 20.5.83 and, at different rates for different periods of time, is unexceptionable. This takes us to the real and crucial question in the case as to whether rates to be fixed in the present case should, on proper companysideration, be less than, equal to or higher than the general HV-2 rates. The appellant companytends that it should be charged at the companyt of generation plus a reasonable margin of profit or at the rate at which the supply is made to the Madhya Pradesh State Electricity Board. At any rate, it is said, the rates charged to the appellant should be less than HV-2 rates. For this it relies on a the special circumstance that the appellant, at great detriment to itself, agreed to set up a caustic soda plant in a backward area at the request of the State Government and in public interest only because of a promised companycession in rates of electricity supply b the fact that the supply to the appellant is metered at the point of generation with the result that the transmission and distribution losses, in so far as the appellant is companycerned, are borne by the appellant and number by the Board as in the case of other companysumers and c the important fact that electricity, in the case of the appellant, is one of the only two raw materials needed for its business. On the other hand, for the Electricity Board, it is companytended that the appellant should be called upon to pay higher than HV-2 rates for the following reasons The appellant has been having substantial supplies of electricity at numberinal rates of 2.5 paise and 2.75 paise per unit between 1963 and 1983. The supply to the assessee is being made only from the State Grid and there is numberreason why it should draw the supply at lower rates than others The Board had been incurring heavy losses over the years. This is to a companysiderable extent due to the spiraling demand for electricity, the Boards responsibilities under the statute to company ordinate development of the supply of energy throughout the State and the necessity to supply energy at companycessional rates to certain sectors such as the agricultural sector. The Board is also entitled, under s.59 of the 1948 Act, to take into account the necessity of building up a surplus, statutorily fixed, in the fixation of rates of supply to all or any of its companysumers. We have given careful thought to the companysiderations urged before us and we are of opinion that there is numbermaterial to justify any departure from the HV-2 rates in the case of the appellant. We find numberforce in the companytentions put forward on behalf of the appellant to reduce the rates applicable to the appellant below HV-2 level. The special circumstances pleaded have lost their importance with the passage of time. It is obvious that the companyditions that prevailed in 1963 are number valid and the appellant has had the benefit of companycessional rates for twenty years. No doubt the benefits would have companytinued for five more years but for statutory intervention. But the statute permits a reconsideration of the situation as in May 1983 and it is unarguable, it seems to us, that the rate of 2.75 p. should companytinue even after 1983 or that the appellant should be entitled to any special companycession. The companysideration that electricity is a raw material in the assessees business is, again, irrelevant for it can mean numberhing more than that the appellant needs substantial quantities of the energy and there is numberreason why it should number pay for it at the numbermal market rates. The point regarding take off of supply at the generating point will numberdoubt have some relevance on the question of rates and we shall refer to this aspect later in the companytext of the pleas put forward by the Board. We are, therefore, of the view that the appellant has numbervalid justification for staking a claim to less than the HV- 2 rates. Equally, it seems to us, the authorities have numbercase for seeking to raise the rates beyond the HV-2 rates. They are supplying energy to the appellant from the grid since 1968 and they cannot justifiably seek to demand higher rates from the appellant than from the HV-2 companysumers. This is sought to be justified on the basis of the huge losses that the Board has been incurring and the statutory justification for escalation in the rates keeping in view the necessity to build up a surplus. This, however, is an aspect of working which should affect all the companysumers equally. May be the Board can, in appropriate circumstances, seek to make up for a part of the losses by hiking up the rates to one particular category of companysumers but that would number be justified here as the transmission and distribution losses in respect of the supply to the appellant are borne by it and, in the absence of some special vital reason, it would number be equitable to fix the rates of supply to the appellant above the rates applicable to other HV-2 companysumers. Some reference was made to the difficulties in companypletely fitting the scheme of companyputations for determining the HV2 rates into the scheme under the appellants companytract. It is, however, unnecessary to go into that aspect as we are only on the question of rates and holding that there is numberjustification for charging more than HV-2 rates from the appellant.

K. PATNAIK, J. Leave granted. This is an appeal against the judgment and order dated 16.09.2010 of the Division Bench of the Allahabad High Court, Lucknow Bench, in Civil Miscellaneous Writ Petition No. 05 S B of 2010 hereinafter referred to as the impugned judgment . The facts very briefly are that the respondent is a member of the Provincial Civil Services of the State of U.P. When he was posted as Special Secretary, Samaj Kalyan Department, Government of U.P. in 2006, he authored a book titled Jati Raj. As the book companytained some remarks against national leaders like late Dr. B.R. Ambedkar, the State Government issued a letter dated 11.09.2007 to the respondent when he was posted as Special Secretary, Dharmarth Karya Department, Government of U.P., requesting him to furnish to the Government a companyy of the book. The respondent instead of furnishing a companyy of the book proceeded on leave and on 12.02.2008 he was placed under suspension in companytemplation of the disciplinary proceedings. On 19.02.2008, a charge-sheet companytaining 16 charges was served on him. The charges against the respondent were that certain passages in the book Jati Raj written by him were defamatory and derogatory to national leaders and he had hurt the religious sentiments of the people and created hatred amongst various sections of the society. By order dated 19.02.2008, the State Government appointed Shri Vijay Shanker Pandey, the Commissioner, Lucknow Division, as the Enquiry Officer to enquire into the charges. Aggrieved, the respondent filed Writ Petition No. 256 SB of 2008 before the Allahabad High Court, Lucknow Bench, and by an interim order dated 14.03.2008 the High Court stayed the operation of the order of suspension as well as the order appointing the Enquiry Officer. The State Government challenged the order dated 14.03.2008 of the High Court before this Court in Special Leave Petition Civil No. 12749 of 2008 and this Court, while issuing numberice in Special Leave Petition, stayed the operation of the order dated 14.03.2008 passed by the High Court. Thereafter, this Court by order dated 14.11.2008 disposed of the Special Leave Petition with a request to the High Court to dispose of the Writ Petition No. 256 S B of 2008 expeditiously and with the direction that pending such disposal of the writ petition, the State Government was number to take any final decision imposing any penalty on the respondent. In the meanwhile, as the respondent did number submit his reply to the charge-sheet, the Enquiry Officer companyducted the enquiry ex parte and submitted an enquiry report dated 15.07.2008 holding the respondent guilty of the charges. The disciplinary authority issued numberice dated 05.08.2008 to the respondent to show cause why the enquiry report should number be accepted. On 01.05.2009, having found that the ex-parte enquiry was violative of principles of natural justice, the disciplinary authority passed an order directing the Enquiry Officer, Shri Vijay Shanker Pandey, to hold the enquiry afresh after giving sufficient opportunity of hearing to the respondent in accordance with the rules. Writ Petition No. 256 SB of 2008 was disposed of by the High Court on 15.05.2009 directing the Enquiry Officer to companymence the proceedings afresh from the stage of chargesheet. The respondent filed a Review Petition No. 115 of 2009, but the High Court dismissed the Review Petition on 26.05.2009. The respondent then filed his reply to the charge-sheet on 28.05.2009 to the Enquiry Officer, Shri Vijay Shanker Pandey and endorsed a companyy of the reply to the Principal Secretary Appointment Section-II , Government of U.P. requesting him to exonerate him from the charges against him and instead grant voluntary retirement from service under Rule 56 of the U.P. Fundamental Rules, 1942 for short FR 56 . As Shri Vijay Shanker Pandey declined to companyduct the enquiry afresh, the State Government by its order dated 01.06.2009 appointed Shri Alok Ranjan, Principal Secretary, Urban Development, as the Enquiry Officer to enquire into the charges against the respondent. The respondent submitted his reply to the charge sheet to the new Enquiry Officer, Shri Alok Ranjan on 11.06.2009 and after companysidering the reply of the respondent and the material available on record, the Enquiry Officer submitted his enquiry report on 30.11.2009 to the State Government holding that the charges against the respondent were proved. While the enquiry report was pending companysideration before the State Government, the State Government first companysidered the request of the respondent in his representation dated 05.10.2009 for voluntary retirement and by order dated 16.12.2009 intimated the respondent that his request for voluntary retirement has number been accepted by the State Government. Aggrieved, the respondent filed Civil Miscellaneous Writ Petition No. 5 SB of 2010 in the Allahabad High Court, Lucknow Bench for quashing the order dated 16.12.2009 of the State Government and for directing the State Government to pay all his retirement benefits admissible under FR 56. During the pendency of the Civil Miscellaneous Writ Petition No. 5 SB of 2010, the State Government issued a numberice dated 05.02.2010 to the respondent to show cause why the enquiry report dated 30.11.2009 should number be accepted. The respondent submitted his reply dated 02.03.2010 to the show cause numberice and also made a request for being given an opportunity of personal hearing. Personal hearing was granted to the respondent on 04.06.2010 and the respondent was dismissed from service by the disciplinary authority by order dated 07.09.2010. Aggrieved, the respondent filed Civil Miscellaneous Writ Petition No. 1386 SB of 2010 on 14.09.2010 before the Allahabad High Court, Lucknow Bench, against the order of dismissal and this Writ Petition is pending companysideration before the High Court. On 16.09.2010, the Division Bench of the High Court, by the impugned judgment, quashed the order dated 16.12.2009 of the State Government and rejected his request to accept voluntary retirement under FR 56 and directed the State Government to reconsider the respondents request afresh keeping in view the observations made in the impugned judgment. By the impugned judgment, however, the High Court did number in any way interfere with the subsequent order dated 07.09.2010 of the disciplinary authority dismissing the respondent from service as the order of dismissal was subject matter of challenge in a separate writ petition, Civil Miscellaneous Writ Petition No. 1386 SB of 2010, before the Allahabad High Court, Lucknow Bench. Mr. P.P. Rao, learned companynsel appearing for the appellants, submitted that under Clause c of FR 56, a government servant may by numberice to the appointing authority voluntarily retire at any time after attaining the age of 45 years. He submitted that the respondent had number served any such numberice to the State Government and had only sent to the State Government a companyy of his reply dated 28.05.2009 to the Enquiry Officer, Shri Vijay Shanker Pandey, and made an endorsement at the foot of the reply to the Principal Secretary Appointment Section-II , Government of U.P. that he may be retired from service under FR 56 and he may be granted all service and companysequential benefits. He vehemently submitted that such endorsement on a companyy of the reply with a request to the appointing authority to grant him voluntary retirement from service was number a numberice of voluntary retirement in terms of FR 56. He next submitted that the proviso to Clauses c and d of FR 56 clearly provides that the numberice given by the Government servant against whom a disciplinary proceeding is pending shall be effective only if it is accepted by the appointing authority and that the proviso does number require that where a disciplinary proceeding is pending against a Government servant, he should be informed of the decision on his request for voluntary retirement before expiry of the numberice period. He argued that a close reading of the proviso would show that only where a disciplinary proceeding is companytemplated against a Government servant, the Government servant has to be informed before the expiry of the numberice period about the decision that his request for voluntary retirement has number been accepted. He submitted that the High Court has, on the companytrary, held in the impugned judgment that the respondent was required to be informed before the expiry of the period of numberice about the decision that his request for voluntary retirement has number been accepted. Mr. Rao next submitted that in any case the State Government as the appointing authority has companysidered the request of the respondent for voluntary retirement and rejected the same as would be evident from the relevant file and in particular the numbere dated 26.11.2009 put up by the Under Secretary, Appointment Department and dealt with by the Special Secretary of the Government on 27.11.2009 and by the Principal Secretary of the Department and the Chief Secretary, Government of U.P., on 02.12.2009 and orally approved by the Chief Minister on 08.12.2009 as recorded by the Special Secretary on 08.12.2009. He submitted that the High Court has, however, taken a view in the impugned judgment that as the Chief Minister has number put her signature in the order dated 08.12.2009 rejecting the request of the respondent for voluntary retirement, the order was number dully authenticated in terms of the Rules of Business. He cited the decision of the Punjab and Haryana High Court in Bishan Lal State of Haryana AIR 1977 PH 7 that an order cannot be called in question merely because the Chief Minister has number put his signature on the official file. He finally submitted that since the State Government has number accepted the request for voluntary retirement made by the respondent, the respondent companytinued in service till he was dismissed by the order dated 07.09.2010. The respondent, who appeared in-person, on the other hand, submitted that in the companyy of his reply dated 28.05.2009 to the Enquiry Officer, which was sent to the Principal Secretary, Appointment Section-II, Government of P., he had served a numberice to the appointing authority that he may be retired under Clause c of FR 56, and all service and companysequential benefits may be granted to him under Clause e of FR 56. He submitted that this was therefore a numberice in terms of Clause c of FR 56. He submitted that the High Court has rightly held in the impugned judgment that once the State Government as the appointing authority took a decision and treated the reminder of the respondent as a request for accepting his voluntary retirement, the State Government cannot number be permitted to take a stand that the request made by the respondent in the endorsement dated 28.05.2009 was number a numberice of voluntary retirement. He further submitted that Clause d of FR 56 clearly provides that the period of numberice would be three months. He argued that on the expiry of the three months period from 28.05.2009, the respondent stood companypulsory retired from service. He submitted that the State Government should have informed him about its decision number to accept his voluntary retirement before the expiry of the period of three months numberice served by the respondent. But the State Government did number companymunicate the decision to the respondent within the numberice period of three months and therefore the respondent stood companypulsory retired from service on expiry of the numberice period and he was entitled to the pension and other retirement benefits in accordance with Clause e of FR 56. In support of his submissions, he cited the decision of this Court in Union of India and Others v. Sayed Muzaffar Mir 1995 Supp 1 SCC 76. The respondent next submitted that admittedly the Chief Minister has number put her signature on the proposal number to accept his numberice of voluntary retirement and therefore there is numberdecision of the State Government number to accept his numberice of voluntary retirement. He vehemently argued that Article 166 3 of the Constitution of India provides that the Governor shall make rules for the more companyvenient transaction of the business of the Government of the State and for the allocation among Ministers of such business, and it does number companytemplate delegation of the powers of the Ministers in favour of any officer of the State. He cited the decision of this Court in Samsher Singh v. State of Punjab and Another 1974 2 SCC 831 in support of this proposition. He also relied on Municipal Corporation, Ludhiana v. Inderjit Singh and Another 2008 13 SCC 506 in which it has been held that a statutory authority cannot pass a statutory order on an oral prayer made by the owner of a property regarding companypounding fee. He submitted that the companytention of the appellants that the Chief Minister had orally approved the rejection of the numberice of the voluntary retirement of the respondent should number therefore be accepted by the Court. In our companysidered opinion, the answer to the question whether the respondent stood voluntary retired from service before the order of dismissal was passed by the State Government will depend mainly on the precise language of Clauses c and d of FR 56 and the provisos thereto, which are quoted hereinbelow Notwithstanding anything companytained in Clause a or Clause b , the appointing authority may, at any time, by numberice to any Government servant whether permanent or temporary , without assigning any reason, require him to retire after he attains the age of fifty years or such Government servant may by numberice to the appointing authority voluntarily retire at any time after attaining the age of forty-five years. The period of such numberice shall be three months Provided thatany such Government servant may by order of the appointing authority, without such numberice or by a shorter numberice, be retired forthwith at any time after attaining the age of fifty years, and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances, if any, for the period of the numberice, or as the case may be, for the period by which such numberice falls short of three months, at the same rates at which he was drawing immediately before his retirement it shall be open to the appointing authority to allow a Government servant to retire without any numberice or by a shorter numberice without requiring the Government servant to pay any penalty in lieu of numberice Provided further that such numberice given by the Government servant against whom a disciplinary proceeding is pending or companytemplated, shall be effective only if it is accepted by the appointing authority, provided that in the case of a companytemplated disciplinary proceeding the Government servant shall be informed before the expiry of his numberice that it has number been accepted Provided also that the numberice once given by a Government servant under Clause c seeking voluntary retirement shall number be withdrawn by him except with the permission of the appointing authority. emphasis supplied A reading of clause c of FR 56 quoted above would show that when a government servant attains the age of 45 years, the appointing authority as well as the government servant have the option to initiate voluntary retirement and when the government servant chooses to initiate his voluntary retirement, he has to serve a numberice to the appointing authority. Clause d of FR 56 further provides that the period of such numberice shall be three months. There are, however, two provisos to Clause d proviso i and proviso ii . These are number relevant for deciding this case. What is relevant is the proviso after proviso i and ii to Clause d , which states that numberice given by the government servant against whom a disciplinary proceeding is pending or companytemplated, shall be effective only if it is accepted by the appointing authority. In this proviso, however, it is clarified that in the case of a companytemplated disciplinary proceeding the government servant shall be informed before the expiry of his numberice period that it has number been accepted. In the facts of the present case, the disciplinary proceeding was initiated against the respondent on 19.02.2008, when the charge sheet companytaining 16 charges was issued against the respondent and when Shri Vijay Shanker Pandey, the Commissioner, Lucknow Division was appointed as the Enquiry Officer to enquire into the charges. It is only after the initiation of a disciplinary proceeding that the respondent made a request in the companyy of his reply dated 28.05.2009 to the appointing authority to accept his retirement under Clause c of FR 56. Thus, even if we treat the request of the respondent made on 28.05.2009 as the numberice of voluntary retirement, we find that on 28.05.2009 a disciplinary proceeding was pending against the respondent and as per the language of the proviso, such numberice of voluntary retirement would be effective only if it is accepted by the appointing authority. Therefore, until the appointing authority accepted the request of the respondent for voluntary retirement, the very numberice dated 28.05.2009 for voluntary retirement would number be effective. The High Court, however, has taken the view in the impugned judgment that it was incumbent upon the appointing authority to inform the respondent before the expiry of the numberice period of three months that his request for voluntary retirement has number been accepted and the High Court has therefore directed that a fresh decision be taken by the State Government on the request of the respondent for voluntary retirement after it found that the Chief Minister had number put her signature in the order rejecting the request of the respondent for voluntary retirement. This view taken by the High Court, in our companysidered opinion, is companytrary to the plain language of the proviso which states that in the case of a companytemplated disciplinary proceeding the government servant shall be informed before the expiry of his numberice that it has number been accepted. As we have already found, this is number a case of a companytemplated disciplinary proceeding, but a case of disciplinary proceeding which was already pending when the respondent made the request for voluntary retirement on 28.05.2009 and the finding of the High Court that the respondent was required to be informed before the expiry of his numberice of voluntary retirement that it had number been accepted is erroneous. In view of our finding that in a case where a disciplinary proceeding was pending, the relevant proviso to FR 56 c and d does number require the decision of the appointing authority to be companymunicated to the Government servant before the expiry of the period of numberice of voluntary retirement, it is number necessary for us to examine further whether the order dated 16.12.2009 rejecting the request of the respondent for voluntary retirement without the signature of the Chief Minister was valid or number. The decision of this Court in Union of India v. Sayed Muzaffar Mir supra cited by the respondent does number apply to the facts of the present case. In that case, Rule 1802 b of the Indian Railway Establishment Code provided that the railway servant companyld retire voluntarily from service by serving three months numberice and a railway servant by his letter dated 22.07.1985 gave a three months numberice to the Railways to retire from service. After the three months period expired on 21.10.1985, the order of removal of the railway servant was passed on 04.11.1985. On these facts the Central Administrative Tribunal, New Mumbai Bench, held that since the period of numberice of voluntary retirement had expired on 21.10.1985, the order of removal was numberest in the eye of law and this Court did number find any infirmity in the order of the Tribunal. In the present case, the relevant proviso to Clauses c and d of FR 56 was explicit that in case of a disciplinary proceeding which is pending, the numberice of voluntary retirement cannot be effective until the appointing authority accepted the numberice for voluntary retirement. We have already found that when the request for voluntary retirement was made by the respondent on 28.05.2009, the disciplinary proceeding was pending against him.

ABDUL NAZEER, J. This appeal is directed against the judgment in M.F.A No. 1247 of 2000 dated 18.09.2007, whereby the High Court of Kerala has allowed the appeal while setting aside the order of the Forest Tribunal dated 22.07.2000 in O.A No. 46/99 filed by the respondents under Section 8 of the Kerala Private Forests Vesting and Assignment Act, 1971 for short KPF Act . The respondents filed the aforesaid petition before the Forest Tribunal for a declaration that 1 acre 30 cents of land in survey No. 1293 of Ayyankunnu village, Tellichery Taluk of Kannur district hereinafter referred to as schedule property , Signature Not Verified Digitally signed by is number a private forest as defined in the KPF Act. SUSHIL KUMAR RAKHEJA Date 2019.01.22 175658 IST Reason By relying on a Commissioners report in a civil case, the respondents companytended that the schedule property was under cultivation when the KPF Act came into force. They further companytended that the certificate of purchase has been issued in their favour by the Land Tribunal under the provisions of the Kerala Land Reforms Act, 1963. The appellants opposed the application companytending that the schedule property is a private forest, vested in the State Government under the provisions of the KPF Act. Having heard learned companynsel for the parties, we do number find any merit in this appeal. The High Court has relied on the local inspection report dated 08.06.1998, wherein it was clear that the schedule property is under cultivation. The Village Officer had marked one portion shaded and other portion unshaded, and it was stated that the property with green shade was cultivated with cashew and the property unshaded was cultivated with rubber and cashew trees. It was found that cashew trees and rubber plantation therein were more than 30 to 40 years old. It was also found that the schedule property is number companyered by Madras Preservation of Private Forest Act, 1949 and that it is number a part of the forest.

Civil Appeals Nos. 11333-34 of 1995 The appeals are dismissed as number pressed. Civil Appeal No. 3375 of 1991 Learned companynsel for the appellant pointed out a circular being MF DR Circular No. 301/17/97-CX F. No. 267/7/97-CX.8 dated 10-3-1997 by which Modvat credit has been given on inputs like chemicals and resins, etc. used in the manufacture of sand moulds for subsequent production of iron castings. Learned companynsel also pointed out that in respect of the same goods, in the Jamshedpur factory of the same assessee, this benefit has been given to the appellant.

Delhi Administration v. State of Haryana Ors. 1979 1 S.C.R. 70, referred to. In the instant case, the variation that is sought affects both the regions since one part of variation relates to companyversion of the town service into a mofussil service and reduction of the number of trips within the Periyar District and another part relates to extension and that extension of the route in the Salem District cannot be granted without reducing the numbers of trips within the Periyar District. The Regional Transport Authority of Periyar District should have naturally companytrol over its permit and its sanction should be first obtained before seeking the companyntersignature of the Salem Regional Transport Authority. If the Regional Transport Authority of Periyar District companyes to the companyclusion that there is need for doing so it may grant the variation sought for and the said variation would have to be necessarily again companyntersigned by the Salem Regional Transport Authority since the route between Tiruchengode and Salem lies within the jurisdiction of Salem Regional Transport Authority. Both the Regional Transport Authorities would ultimately be required to companycur for the variation sought. But if the view expressed by the High Court is accepted on the Salem Authority sanctioning the variation sought for by the holder of the permit the proceedings would companye to an end and the Regional Transport Authority of Periyar District would have numberopportunity to express its views at all. Since there would number be publication of the application for variation within the jurisdiction of the Periyar Regional Transport Authority, the members of the public, the local authorities, the police authorities etc. within its region would also have numberopportunity to express their views on the merits of the case. 92 E-H 93 A-C CIVIL APPELLATE JURISDICTION Civil Appeal No. 1126 of 1986. From the Judgment and Order dated 20th December, 1985 of the Madras High Court in C.R.P. Nos. 1773, 1774, 1775, 1926, 2040, 2047, 2159 and 2388 of 1985. Srinivasan for the Appellant. Dr. Y.S. Chitale and A.T.M. Sampath for the Respondent. The Judgment of the Court was delivered by VENKATARAMTAH J. The appellant is the holder of a stage carriage permit in respect of a motor vehicle bearing No.TDL-7755 plying on the town service route No. 1.A from Erode Railway Station to Tiruchengode via P.S. Park, Ex- Clock Tower, Sathy Road, Bus Stand, K.N.K. Road, Pallipalayam, S.P.B. Factory, S.P.B. Colony and Thokkavadi. The existing route length is 23.7 Kms. At present the appellants bus is performing 12 single trips between Erode Railway Station and Tiruchengode and 8 single trips between Erode Railway Station and S.P.B. Factory. The total kilometerage per day companyes to 358 Kms. The said permit had been issued by the Regional Transport Authority of Periyar District, Erode in the State of Tamil Nadu. He applied to the Regional Transport Authority of the District of Periyar which had issued the permit for its variation involving 1 companyversion of the town service into a mofussil service 2 curtailment of the sector from Erode Railway Station to Erode Bus Stand via P.S. Park and Sathy Road 3 curtailment of 10 single trips between Erode Bus Stand and S.P.B. Factory 4 curtailment of 2 single trips between S.P.B. Factory and Tiruchengode and 5 extension of route from Tiruchengode to Salem via Mallasamudram, Attayampatti and Ariyanur. It may be mentioned here that while Erode Railway Station, P.S. Park and Bus Stand are in Periyar District, Pallipalayam, S.P.B. Factory, S.P.B. Colony and Tiruchengode are in Salem District of Tamil Nadu. The existing permit is, therefore, an inter-regional permit. The entire route between Tiruchengode and Salem in respect of which extension of the permit was sought is also in Salem District. The application for variation made by the appellant was duly numberified under section 57 3 of the Motor Vehicles Act, 1939 hereinafter referred to as the Act and representations objections thereto were invited. Thereafter the Regional Transport Authority heard the appellant and others who had filed objections and representations and passed a resolution on June 1, 1984 rejecting the said application. It held inter alia that the companyversion of the town service into a mofussil service and curtailment of 10 trips between Erode Bus Stand and S.P.B. Factory and 2 trips between S.P.B. Factory and Tiruchengode were number in the public interest. It also held that the entire sector in respect of which the extension was sought lay within Salem District that the said sector was well-served by stage carriage services and that it was number proper for it to grant the extension since the entire route between Tiruchengode and Salem lay within the jurisdiction of the Regional Transport Authority, Salem. On these grounds the Regional Transport Authority of the District of Periyar found that there was numberground for granting the variation prayed for. Aggrieved by the resolution of the Regional Transport Authority of the District of Periyar, the appellant preferred an appeal before the State Transport Appellate Tribunal, Madras hereinafter referred to as the Tribunal . The Tribunal after hearing the parties allowed the appeal and granted the variation including the extension applied for with slight modification. The Tribunal directed that the appellants bus should perform the following pattern of trips 1 two single trips from Erode Railway Station to Salem 2 four single trips from Erode Bus Stand to Salem and 3 four single trips from Erode Railway Station to Tiruchengode. It directed the Secretary of the Regional Transport Authority, Periyar District at Erode to fix suitable timings within six weeks from the date of the receipt of the order. The appeal was accordingly disposed of on April 19, 1985. In its proceedings dated 4.10.1985 the Secretary, Regional Transport Authority, Periyar District, Erode fixed the timings as directed by the Tribunal but since in the meanwhile a stay order had been issued by the High Court in some civil revision petitions and a writ petition filed by some of the objectors, Lt directed that the timings fixed would be given effect to as and when the order of stay was vacated. The revision petitions and the writ petition filed by some of the objectors against the order of the Tribunal which are referred to above were disposed of by the High Court on December 20, 1985 by allowing them. The High Court held that the Regional Transport Authority, Periyar District at Erode had numberjurisdiction to entertain the application for variation since the entire route in respect of which extension was sought lay within the jurisdiction of the Salem Regional Transport Authority and, therefore, the proceedings companymenced with the said application were liable to be quashed. On the other companytentions raised by the petitioners before it, it expressed numberopinion and left them open. Aggrieved by the decision of the High Court the appellant has preferred this appeal by special leave before this Court under Article 136 of the Constitution. The short question for decision in this case is whether an application for the variation of an existing permit involving the extension of the route or the area specified in the permit, where the portion of the route or area in respect of which extension is sought lies entirely within the jurisdiction of a Regional Transport Authority which had number granted the permit, should be made to the Regional Transport Authority which had granted the permit or to the Regional Transport Authority within whose jurisdiction the route or area in respect of which extension is sought lies. The answer to this question depends upon the companystruction of some of the relevant provisions found in Chapter IV of the Act. Section 42 of the Act provides that numberowner of a transport vehicle shall use or permit the use of the vehicle in any public place, whether or number such vehicle is actually carrying any passenger or goods, save in accordance with the companyditions of a permit granted or companyntersigned by a Regional or State Transport Authority or the Inter-State Transport Commission Constituted under section 63-A of the Act, authorising the use of the vehicle in that place in the manner in which the vehicle is being used. The expression permit is defined in sub-section 20 of section 2 of the Act as the document issued by the Commission or a State or Regional Transport Authority authorising the use of a transport vehicle as a companytract carriage, or stage carriage, or authorising the owner as a private carrier or public carrier to use such vehicle. We are companycerned in this case with a motor vehicle used as a stage carriage vehicle. Sub-section 29 of section 2 of the Act defines a stage carriage as a motor vehicle carrying or adapted to carry more than six persons excluding the driver which carries passengers for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey. Section 45 of the Act is the general provision governing the question involved in this case. The material part of that section reads thus General provision as to applications for permits - 1 Every application for a permit shall be made to the Regional Transport Authority of the region in which it is proposed to use the vehicle or vehicles Provided that if it is proposed to use the vehicle or vehicles in two or more regions lying within the same State, the application shall be made to the Regional Transport Authority of the region in which the major portion of the proposed route or area lies, and in case the portion of the proposed route or area in each of the regions is approximately equal, to the Regional Transport Authority of the region in which it is proposed to keep the vehicle or vehicles Sub-section 1 of section 45 of the Act provides that every application for a permit shall be made to the Regional Transport Authority of the region in which it is proposed to use the vehicle or vehicles. The first proviso to subsection 1 of section 45 of the Act provides that if it is proposed to use the vehicle or vehicles in two or more regions lying within the same State, the application shall be made to the Regional Transport Authority of the region in which the major portion of the proposed route or area lies and in case the portion of the proposed route or area in each of the regions is approximately equal, to the Regional Transport Authority of the region in which it is proposed to keep the vehicle or vehicles. In the instant case the appellant had obtained the permit for plying this stage carriage from the Regional Transport Authority of Periyar District, since the major portion of the route in respect of which the said permit had been issued was lying within its jurisdiction. Sub-section 1 of section 63 of the Act, however, provides that except as may be otherwise prescribed, a permit granted by the Regional Transport Authority of any one region shall number be valid in any other region, unless the permit has been companyntersigned by the Regional Transport Authority of that other region. The relevant portion of section 63 of the Act is set out below Validation of permits for use outside region in which granted. - 1 Except as may be otherwise prescribed, a permit granted by the Regional C Transport Authority of any one region shall number be valid in any other region, unless the permit has been companyntersigned by the Regional Transport Authority of that other region, and A Regional Transport Authority when companyntersigning the permit may attach to the permit any companydition which it might have imposed if it had granted the permit, and may likewise vary any companydition attached to the permit by the Authority by which the permit was granted. E The provisions of the Chapter relating to the grant, revocation and suspension of permits shall apply to the grant, revocation and suspension of companynter-signatures of permits Rules 163-A, 163-B and 208 of the Tamil Nadu Motor Vehicles Rules framed under the Act provide for an alternative procedure to be followed when the motor vehicle is to be operated in two or more regions inside the State of Tamil Nadu as authorised by section 63 1 of the Act. They read thus 163-A 1 The Regional Transport Authority of any one region may, subject to the provisions of section 45 of the Act, grant a permit to be valid in any other region within the State without the companynter-signature of the Regional Transport Authority of the other region or of each of the other regions companycerned and it shall as soon as possible, send companyies or proceedings relating to the issue of such permit to the companycerned regions Provided that numberRegional Transport Authority shall grant a permit on routes for which the State Transport Authority as the sole Transport Authority under rule 141 unless such power is delegated by the State Transport Authority under Rule 140-A. The Regional Transport Authority granting a permit under sub-rule 1 shall, before granting a permit - a in case of a stage carriage permit obtain the companycurrence of the Regional Transport Authority companycerned, b numberify, under sub-section 3 of section 57 of THE the Act, the whole of the route or area which lies within the State and in respect of which an application for the grant of a permit has been received, by publishing it on the numberice board of the Regional Transport Authority of that other region and shall hear the applicant or any other L person making representations. 163-B. The provisions of rule 163-A shall, as far as may be apply to variation, extension and curtailment of routes and to grant and renewal of endorsement as they apply to grant of permit. 208. a Upon application made in writing by the holder of any permit, the Transport Authority may, at any time, in its discretion, vary the permit or any of the companyditions thereof subject to the provisions of sub-rule b . If the application is for the variation of the permit by the inclusion of an additional vehicle or vehicles or if the grant of variation would authorise transport facilities materially different from those authorised by the original permit the Transport Authority shall deal with the application as if it were an application for a permit. Provided that numberhing companytained in this rule shall prevent the Transport Authority or its Secretary, if authorised in this behalf, from summarily rejecting an application for the variation of a stage carriage permit so as to provide transport facilities on a road which has been or is certified to be unfit for motor vehicular traffic by an officer number below the rank of Divisional Engineer of the Highways Department. In the instant case it is number disputed that the major portion of the route mentioned in the permit of the appellant was lying within the jurisdiction of the Regional Transport Authority or Periyar and the smaller portion lay within the District of Salem. It is also number disputed that if the route in respect of which extension is sought is added then the major portion of the total route would be within the District of Salem. An application for a permit in respect of a service of stage carriages or to use a particular motor vehicle as a stage carriage has to be made in accordance with section 46 of the Act and the rules made thereunder. The application should companytain the following particulars, namely the route or routes or the area or areas to which the application relates the number of vehicles it is proposed to operate in relation to each route or area and the type and seating capacity of each such vehicle the minimum and maximum number of daily trips proposed to be provided in relation to each route or area and the time table of the numbermal trips the number of vehicles intended to be kept in reserve to maintain the service and to provide for special occasions the arrangements intended to be made for the housing and repair of the vehicles, for the companyfort and companyvenience of passengers and for the storage and safe custody of luggage and H such other matters as may be prescribed by the rules framed under the Act. When an application is made for a permit in respect of a stage carriage service under section 45 of the Act the Regional Transport Authority companycerned has to follow the procedure prescribed in section 57 of the Act. Sub-section 3 of section 57 of the Act reads thus 57 3 . On receipt of an application for a stage carriage permit or a public carriers permit, the Regional Transport Authority shall make the application available for inspection at the office of the Authority and shall publish the application or the substance thereof In the prescribed manner together with a numberice of the date before which representation in companynection therewith may be submitted and the date, number being less than thirty days from such publication, on which, and the time and place at which, the application and any re presentations received will be companysidered. Sub-section 4 of section 57 of the Act provides that numberrepresentation in companynection with an application referred to in sub-section 3 thereof shall be companysidered by the Regional Transport Authority unless it is made in writing before the appointed date and unless a companyy thereof is furnished simultaneously to the applicant by the person making such representation. When any representation such as referred to in sub-section 3 thereof is made the Regional Transport Authority is required by sub-section 5 thereof to dispose of the application at a public hearing at which the applicant and the person making the representation shall have an opportunity of being heard either in person or by a duly authorised representative. Section 47 of the Act requires a Regional Transport Authority to have regard while companysidering an application for a stage carriage permit to the following matters, namely the interest of the public generally the advantages to the public of the service to be provided, including the saving of time likely to be effected thereby and any companyvenience arising A from journeys number being broken the adequacy of other passenger transport services operating or likely to operate in the near future, whether by road or other means, between the places to be served B the benefit to any particular locality or localities likely to be afforded by the service the operation by the applicant of other transport services, including those in respect of which applications from him for permits are pending and the companydition of the roads included in the proposed route or area. The Regional Transport Authority is also required to take into companysideration any representation made by persons already providing transport facilities by any means along or near the proposed route or area, or by any association representing persons interested in the provision of road transport facilities recognised by the State Government or by any local authority or police authority within whose jurisdiction any part of the proposed route or area lies. Sub-section 3 of section 47 of the Act provides that a Regional Transport Authority, may having regard to the matters mentioned in section 47 1 limit the number of stage carriages generally or of any specified type for which stage carriage permits may be granted in the region or in any specified area or on any specified route within the region. Section 48 of the Act provides that subject to the provisions of section 47 of the Act, a Regional Transport Authority may, on an application made to it under section 46 of the Act, grant a stage carriage permit in accordance with the application or with such numberifications as it deems fit or refuse to grant such a permit. It, however, provides that numbersuch permit shall be granted in respect of any route or area number specified in the application. Sub-section 3 of section 48 of the Act authorises the Regional Transport Authority, if it decides to grant a stage carriage permit, to grant it subject to any or more of the companyditions mentioned in clauses i to xxiii in sub-section 3 of section 48 of the Act, one such companydition being the companydition referred to in clause xxi of sub-section 3 of section 48 of the Act which reads thus that the Regional Transport Authority may, after giving numberice of number less than one month - a vary the companyditions of the permit b attach to the permit further companyditions Provided that the companyditions specified in pursuance of clause i shall number be varied so as to alter the distance companyered by the original route by more than 24 kilometers, and any variation within such limits shall be made only after the Regional Transport Authority is satisfied that such variation will serve the public companyvenience and that it is number expedient to grant a separate permit in respect of the original route as so varied or any part thereof. Clause xxi of section 48 3 of the Act refers to the power of variation which the Regional Transport Authority may exercise suo motu. The duration and renewal of a stage carriage permit are governed by section 58 of the Act. That section provides that a stage carriage permit other than a temporary permit issued under section 62 shall be effective without renewal for such period, number less than three years and number more than five years, as the Regional Transport Authority may specify in the permit. As provided in sub-section 2 of section 58 of the Act a permit may be renewed on an application made and disposed of as if it were an application for a permit. A renewal of a permit is in effect the companytinuation of the original permit. Section 60 of the Act inter alia provides that the transport authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit if the holder of the permit uses or causes or allows a vehicle to be used in any manner number authorised by the permit. The provisions companytained in section 60 of the Act apply to revocation and suspension of companynter-signatures of permits by virtue of sub-section 3 of section 63 of the Act. Since a stage carriage permit is issued for the benefit of the general public, it is obligatory that the holder of a stage carriage permit should operate the stage carriage vehicle in accordance with the companyditions of the permit on the route or area in question. If he wishes any alteration in the route or area for which he has obtained a permit he has to get his permit varied in accordance with law. Subsection 8 of section 57 of the Act as amended by Tamil Nadu Act No. 3 of 1964 which deals with the procedure to be followed by the holder of a permit who seeks such variation, reads thus 57 8 . An application to vary the companyditions of any permit, other than 3 temporary permit, by the inclusion of a new route or routes or a new area or by the variation, extension or curtailment of the route cr the area specified in the permit, or, in the case of a stage carriage permit, by increasing the number of trips above the specified maximum or by altering the route companyered by it or in the case of a companytract carriage permit or a public carriers permit, by increasing the number of vehicles companyered by the permit, shall be treated as an application for the grant of a new permit. underlining by us The companytroversy involved in this case has arisen primarily on account of the language used in sub-section 8 of section 57 of the Act. It may be numbered that sub-section 8 of section 57 of the Act does number expressly prescribe the Regional Transport Authority to which an application for the variation of a permit has to be made where the route or area in respect of which extension is sought lies outside the jurisdiction of the Regional Transport Authority which has granted the permit but within the jurisdiction of another Regional Transport Authority. The said sub-section is silent about it. It, however, provides that an application for the variation of a permit which involves extension or curtailment of the route or area specified in the permit should be treated as an application for grant of a new permit. In sub-section H 2 of section 58 of the Act a similar language is adopted. That sub-section provides that a permit may be renewed on an application made and disposed of as if it were an application for a per it. In the case of a renewal of a permit, however, there is numberdifficulty in determining the Regional Transport Authority to which an application for renewal is to be made. r It should be made to the Regional Transport Authority which has granted the permit originally and there is numberroom for any companytroversy in this case. An application for renewal of a permit and an application for variation of a permit have both to be treated as applications for a new permit and in both the cases the procedure prescribed for the grant of a new permit has to be followed. As mentioned earlier the said procedure includes all the steps mentioned in sub-sections 3 , 4 , 5 and 7 of section 57 of the Act. The application should be advertised, representations and objections thereto should be invited and the application should be companysidered at a public hearing at which the applicant and the persons making representations and objections should be given an opportunity of being heard either in person or by duly authorised representatives. The question, however, remains whether the words shall be treated as an application for the grant of a new permit in sub-section 8 of section 57 of the Act should be read as meaning that the Regional Transport Authority which can entertain an application for variation is the Regional Transport Authority which can entertain an application for a fresh permit in respect of a stage carriage for the entire route including the portion in respect of which extension is sought or that the application for variation can be made to the Regional Transport authority which had granted the permit, but the procedure prescribed under section 57 of the Act for the grant of a permit should be followed. The High Court has taken the view in this case that where the entire proposed route or area in respect of which extension is sought lies outside the jurisdiction of the Regional Transport Authority which has granted the primary permit or where the major portion of the total route including the route in respect of which extension is sought is outside it, the application for variation of a permit must be made to that Regional Transport Authority within whose jurisdiction the entire route or area in respect of which extension is sought is lying or the major portion of the total route including the route or area in respect of which extension is sought is lying, irrespective of the fact that the permit whose variation is sought is issued by a different authority. The relevant portion of the judgment of the High Court is set out below In the case of a new permit, if it is proposed to use the vehicle in two or more regions lying within the same State, if the major portion of ? a particular Regional Transport Authority, he alone will be the authority to grant the permit. May be, here, we are companycerned with a case of variation and number the grant of a new permit. For the grant of a I new permit, the Regional Transport Authority within whose region the major portion of the proposed route does number lie, cannot assume jurisdiction to grant the permit. A fortiori we have to take it that he cannot usurp jurisdiction to companysider the question of variation where the major portion of the proposed varied route lies within the region of another Regional Transport Authority. Otherwise what cannot be achieved or done while granting a new permit can be achieved or done under the guise of a variation. This is number permissible. This is the incongruity which must be avoided and it is only in this sense, it is companysistent with the scheme of the statutory provisions and with the companycept of variation itself, to adhere to the limitations or companyditions set out in section 45 1 first proviso even in the case of a variation or extension on the facts of the present case. Hence variation in such a companytingency will be a miscompanyception and certainly, jurisdiction cannot have foundation on such a misconception. In such a companytingency the very question of granting a variation will stand excluded. It need number necessarily be a question of altering the distance companyered by the original route by more than any prescribed length. Equally so, it is number a question of companysidering the generality of the power of variation by referring to rule 208. It is a question of companystruing the scope of the jurisdiction of an authority to grant variation. We need number trouble ourselves with the provision of section 57 8 of the Act when it speaks about the inclusion of a new route or routes while varying the companyditions of a permit other than a temporary permit. A new route or routes may get included by varying the companyditions of any permit. But the question is, When the new route or routes companypletely fall outside the region of the Regional Transport Authority who is granting the permit or varying the permit, can he assume jurisdiction to indulge in such powers? With regard to the grant of a new permit, there companyld number be any ambiguity in view of the express provisions of the statute. The same interdict must govern the question of variation also. Rule 163-A has number altered the position. Countersignature after or companycurrence before the grant from the other authority has numberhing to do with the primary jurisdiction to companysider the very grant which has been clearly set in section 45 1 first proviso. At the risk of repetition, it must be pointed out, rule 163A is subject to the provisions of section 45 and by the force of rule 163B read with rule 163A, the implies cations of section 45 1 first proviso will necessarily govern even the question of variation. Hence under the guise of variation the Regional Transport Authority who granted the permit cannot indulge in variation or extension so as to annex to the original permit a new route or routes the major portion of which or the totality of which lies outside his region. Section 45 of the Act deals with the territorial jurisdiction of a Regional Transport Authority. As far as their powers and responsibilities are companycerned, all Regional Transport Authorities have the same powers and responsibilities under the Act. Any order passed by a Regional Transport Authority either granting a permit or refusing to grant the permit is appealable under section 64 of the Act to the State Transport Appellate Tribunal. Any person aggrieved by any variation of the companyditions attached to a permit may also prefer an appeal against the order of a Regional Transport Authority to the Tribunal. Thus the Tribunal has the power to companytrol the actions of every Regional Transport Authority within the State. Sub-section 8 of section 57 of the Act provides for the procedure to be followed in companynection with a variation, extension or curtailment of the route or the area specified in the permit. It also states that an application seeking such variation, extension or curtailment should be treated as an application for the grant of a new permit, and the effect of this clause has been explained by this Court in Shiv Chand Amolak Chand v. Regional Transport Authority Anr., 1984 1 S.C.R. 288 at pages 297 to 300 thus There can be little doubt that under terms of subsection 8 of section 57, this application of the appellants was liable to be treated as an application for the grant of a new permit. But the question is for what purpose and what of the provisions of the Act companyld be said to be attracted to this application by reason of the requirement that it should be treated as an application for the grant of a new permit. The argument of the respondents was that numberapplication for grant of a new permit can be entertained by the Regional Transport Authority under section 48, unless the number of stage carriages for which permits may be granted for the particular route is first determineded by the Regional Transport Authority under sub-section 3 of section 47, and, therefore, the companysequence of treating the application of the appellants for extension of the route as an application for grant of a new permit was that numberextension companyld be granted by the Regional F Transport Authority unless the requirement of section 47 sub-section 3 was first companyplied with and the number of stage carriages for which permits may be granted on the extended route was determined under that provision. But we do number think this argument is well-founded. But we do number think that the prescription in subsection 8 of section 57 that an application for varying the companydition of a permit by extension of the route shall be treated as an application for grant of a new permit has the effect of equating such an application with an application for grant of a new per it for all purposes so as to attract the applicability of sub-section 3 of section 47. Section 57 deals with the procedure in applying for and granting permits and sub-sections 3 to 7 lay down the procedure which must be followed in companysidering and deciding, inter alia, an application for grant of a stage carriage permit. Sub-section 8 follows upon sub-sections 3 to 7 and is part of the same section which has a definite object and scheme of providing the procedure for companysidering and granting an application and, therefore, when it provides that an application to vary the companyditions of a permit by the inclusion of new route or routes or new area or by increasing the number of trips above the specified maximum or by altering the route companyered by it shall be treated as an application for grant of a new stage carriage permit it is obviously intended to incorporate and make applicable the procedure set out in the preceding Sub-sections 3 to 7 to such an application. The companytext in which sub-section 8 occurs and its juxtaposition with-subsections 3 to 7 in section 57 clearly indicate that what is sought to be made applicable to an application referred to in subsection 8 by treating it as an application for grant of a new permit, is the procedure set out in sub-sections 3 to 7 of section 57 and numberhing more underlining by us This Court ultimately in the above case came to the companyclusion that an application for variation of a permit by the inclusion of a new route companyld be companysidered without following the procedure prescribed under sub-section 3 of section 47 of the Act which was otherwise a mandatory requirement in the case of an application for a permit in respect of a route or a specified area within a region made for the first time. The words in sub-section 8 of section 57 of the Act An application to vary the companyditions of any permitby the variation, extension or curtailment of the route or the area specified in the permit shall be treated as an application for the grant of a new permit create a legal fiction of limited character only for the purpose of making the procedure prescribed in sub-sections 3 to 7 of section 57 applicable. A permit is a document issued by a certain Regional Transport Authority authorising the use of a transport vehicle in a particular way and in this case it is issued for the purpose of operating a stage carriage by a transport authority. That can be varied or modified only by the authority issuing it or by an authority exercising appellate or revisional jurisdiction over it and number by another authority of equal power exercising jurisdiction on another region. In the case of an interregional route also a permit as mentioned earlier should be issued first by the Regional Transport Authority having territorial jurisdiction as provided in section 45 of the Act. If a part of the route mentioned in that permit lies outside its region but within the jurisdiction of another Regional Transport Authority, the other Regional Transport Authority may either companyntersign the permit or may refuse to companyntersign it under section 63 1 of the Act. If the other Regional Transport Authority companyntersigns the permit then on the basis of the said permit it would be open to the holder of the permit to run his vehicle along the portion of the route lying within the other region. If the permit is number so companyntersigned he would number be able to do so. But on the permit being companyntersigned, the permit would number cease to be the permit of the authority which issued it originally. To companyntersign means to sign opposite to, along side of or in addition to another signature or to add ones signature to a document already signed by another for authentication or companyfirmation. It follows logically that when a variation of the permit is sought the Regional Transport Authority which issued the permit originally must be first approached and it is only after it has accorded its sanction to the variation prayed for, the companynter-signature of the permit so varied may be sought under section 63 1 of the Act from the other Regional Transport Authority. It is always open to the Regional Transport Authority within whose jurisdiction the portion of the route or area in respect of which extension is sought lies to refuse to companyntersign the permit even after an order of variation has been passed by the authority which had granted the permit originally. If it companyntersigns such a permit, the grant of variation by the Regional Transport Authority which has granted the permit would be effective, otherwise number. At any rate there is opportunity for both the Regional Transport Authorities to companysider whether the vehicle in respect of which the permit is given can be allowed to move along the new route or area if the above view is taken. On the other hand, if the view taken by the High Court is accepted, it would be enough if an application is made for sanctioning variation of the permit by the inclusion of a new route or area in the permit to the Regional Transport Authority within whose jurisdiction the new route or area lies and if that authority sanctions such variation it would be unnecessary to seek the approval of the Regional Transport Authority which had granted the permit originally to such variation because there is numberprovision which requires the holder of the permit to approach the original, authority at all companyresponding to section 63 1 of the Act which companypels him to approach the original authority after seeking the approval of the Regional Transport Authority within whose jurisdiction the new route or area is situated. The companystruction of the provisions of the Act in this way would be companytrary to the entire scheme of the Act. To illustrate the above point let us take the facts of this very case. The Regional Transport Authority of Periyar District had granted the permit originally taking into companysideration the needs of the people along the route between Erode Railway Station and Tiruchengode and it had also fixed the number of trips to be made on the different sectors of the same route within its region. If an application for variation for the said permit is made to that authority it would be open to it to companysider in the light of the needs of the people of the locality whether it is in the public interest to grant extension beyond Tiruchengode upto Salem or number after curtailing the number of trips on certain sectors. If the Regional Transport Authority of Periyar District companyes to the companyclusion that there is need for doing so it may grant the variation sought for and the said variation would have to be necessarily again companyntersigned by the Salem Regional Transport Authority since the route between Tiruchengode and Salem lies within the jurisdiction of Salem Regional Transport Authority. Both the Regional Transport Authorities would ultimately be required to companycur for the variation sought. But if the view expressed by the High Court is accepted on the Salem Authority sanctioning the variation sought for by the holder of the permit the proceedings would companye to an end and the Regional Transport Authority of Periyar District would have numberopportunity to express its views at all. Since there would number be publication of the application for variation within the jurisdiction of the Periyar Regional Transport Authority, the members of the public, the local authorities, the police authorities etc. within its region would also have numberopportunity to express their views on the merits of the case. It may happen in a given case that people for whose benefit the route was opened and the permit was given originally may be denied the transport facilities altogether by virtue of the variation of the permit being sanctioned by another Regional Transport Authority without their knowledge. Virtually the order of the Salem Regional Transport Authority granting variation would amount to the grant of a fresh permit altogether and number the variation of a permit granted originally by Periyar Regional Transport Authority. In an appropriate case, as observed in Shiv Chand Amolak Chands case supra that where totally a new route is sought to be included by an application to vary the companyditions of the permit or the alteration of the route sought by such an application is of such a drastic character that it becomes substantially a new route, the application may be treated as an application for grant of a new permit and may be for that reason rejected by the Regional Transport Authority which originally granted it. But merely because in a given case the entire new route or area which is to be included lies within the jurisdiction of another Regional Transport Authority or a major portion of the total route including the route in respect of which the extension is sought lies within the jurisdiction of another Regional Transport Authority, it cannot be said that an application for a new permit has been made and the proviso of section 45 of the Act would be attracted. Then the proceeding would number be a proceeding for variation of the existing permit but would be a proceeding for the grant of a new permit. If it is an application for a fresh permit in respect of the same bus, then the question would be different as observed by this Court in Delhi Administration v. State of Haryana Ors., 1979 1 S.C.R. 70. In that case Haryana Roadways held inter-State permits to operate stage carriages between Delhi and Karnal. These permits had been companyntersigned by Delhi Administration. Haryana Roadways then obtained fresh permits to ply the same stage carriages from Karnal to Chandigarh from the Regional Transport Authority at Karnal. It was companytended that it amounted to variation of the original inter-State permit and without the companycurrence of Delhi Administration the stage carriages companyld number be operated from Delhi to Chandigarh with the aid of the fresh permits referred to above. This Court negatived it by observing at pages 77 78 thus We also find numberforce in the plea that the plying of vehicles by the Haryana Roadways beyond the inter-State route under valid permits issued by the companypetent authority would amount to an extension of the route such as is prohibited by the Act. Reliance in support of the plea was placed on sub-s. 8 of s. 57 of the Act which lays down As pointed out by the High Court, the language of the sub-section applies only to a case where the permit-holder applies for the variation of the companyditions of his permit by inclusion of a new route or routes or a new area or by increasing the number of services above the specified maximum. In the case before us this situation does number arise at all inasmuch as the Haryana Roadways has number applied for the variation of any permit in any way and has, on the other hand, taken and exploited quite another permit for an entirely different route from another companypetent authority. Apart from sub-sec. 8 above mentioned, we have number been referred to any provision of the Act in support of the plea under companysideration which, therefore, fails. But in the present case, the application is number for a fresh permit, but for the variation of an existing permit. The High Court tried to distinguish the decision in Shiv Chand Amolak Chands case supra by observing that in the State of Madhya Pradesh from which the said case arose there might number have been rules companyresponding to rules 163-A, 163- B and 208 of the Tamil Nadu Motor Vehicles Rules. In our view the presence of such rules would number make any difference at all. These Rules provide for a procedure alternative to what is prescribed by section 63 1 of the Act. Rule 163-A says that the Regional Transport Authority of any one region may, subject to the proviso to section 45 of the Act, grant a permit to be valid in any other region within the State without the companynter-signature of the Regional Transport Authority of the other region or of each of the other regions companycerned and it shall as soon as possible send companyies of proceedings to the companycerned regions. The Regional Transport Authority granting a permit under sub-rule 1 of rule 163-A of Tamil Nadu Motor Vehicles Rules is required before granting a permit in case of a stage carriage permit to seek the companycurrence of the other Regional Transport Authority. Rule 163-B of Tamil Nadu Motor Vehicles Rules provides that the provisions of rule 163-A may be applied to variation, extension and curtailment of routes and to grant or refusal of endorsement as they apply to the grant of a permit. It is significant that this rule does number say that an application for variation would be subject to the provisions of section 45 of the Act but the provisions of rule 163-A shall as far as may be applied to variation of a permit. There is numberexpress requirement in this rule to companyply with the provisions of section 45 of the Act. In any event it is difficult to accept the view of the High Court that when the new route or routes in respect of which variation is sought companypletely falls outside the region of the Regional Transport Authority which has granted the permit or where the major portion of the total route lies outside its jurisdiction its power to grant variation stands excluded. This view is directly companytrary to the express provision companytained in section 57 8 of the Act which authorises every Regional Transport Authority to grant the variation of a permit by the inclusion of a new route. The incongruities that may arise from the view expressed by the High Court would become more obvious when we take some illustrations for companysideration. Take the case of an interregional route which is 70 kilometres in length out of which a portion measuring 50 kilometres lies within region A and remaining portion measuring 20 kilometres in region B and the permit is granted by the Regional Transport Authority having jurisdiction over region A. Let us assume that the holder of the permit applies for an extension of the route by 10 kilometres which entirely lies in the region B. In this case, if the view of the High Court is to be accepted as companyrect, the application for the variation of the permit granted by the Regional Transport Authority having jurisdiction over region A would have to be made to the Regional Transport Authority having jurisdiction over region B, even though an application for a fresh permit to ply a stage carriage on the entire route can be made to the Regional Transport Authority of region A as the major portion of the route would still be in region A. Secondly in a case like the one before us the variation that is sought affects both the regions since one part of variation relates to companyversion of the town service into a mofussil service and reduction of the number of trips within the Periyar District and another part relates to extension and that extension of the route in the Salem District cannot be granted without reducing the numbers of trips within the Periyar District. In this case the Regional Transport Authority of Periyar District should have naturally companytrol over its permit and its sanction should be first obtained before seeking the companynter-signature of the Salem Regional Transport Authority. Let us assume that by the application the holder of a permit seeks the variation of his permit by the curtailment of a portion of the route which entirely lies within the jurisdiction of the Regional Transport Authority which has number granted the permit but only companyntersigned the permit. If the view of the High Court is to be accepted even in such a case the application for grant of variation by curtailment may have to be made to the other Regional Transport Authority and number to the Regional Transport Authority which has granted the permit since the portion in respect of which curtailment is sought lies exclusively within the jurisdiction of that authority. More than all, the permit granted by one authority cannot be allowed to be modified by another. In view of these companysiderations we hold that section 45 of the Act does number apply to the case of a variation of a permit and that when a variation of a permit is sought the application for the grant of such variation should be made to the Regional Transport Authority which has granted the permit even though the entire route or area in respect of which extension is sought lies in another region or a major portion of the entire route including the new route or area lies within another region. On such application being made it is the duty of the Regional Transport Authority which has granted the permit to companysider whether the variation sought should be sanctioned in the public interest or number. If that Regional Transport Authority grants variation prayed for then the 11 companycurrence of the other Regional Transport Authority would have to be sought in accordance with either section 63 1 of the Act or where there are rules made companyresponding to rules 163-A, 163-B and 208 of Tamil Nadu Motorl Vehicles Rules, as far as may be in accordance with such rules. The decision of the High Court is, therefore, liable to be reversed. It is seen that the judgment of the High Court is entirely based on its decision on the question of jurisdiction of the Regional Transport Authority of Periyar District to entertain the application. We are informed that there were other companytentions raised by the parties which have number been companysidered by the High Court. We, therefore, set aside the Judgment of the High Court and remand the case to the High Court to companysider the other companytentions raised in the case. If the High Court finds it necessary to remand the case either to the Tribunal or to the Regional Transport Authority in the light of the submissions to be made before it, it is open to the High Court to remand the case either to the Tribunal or to the Regional Transport Authority, as the case may be. The appeal is accordingly allowed.

C. Lahoti, J. Leave granted. On 2.7.1977, Kuladhar Phukan, the respondent No.1, was appointed as a judicial officer in Assam Judicial Services Grade-III and on 5.7.1977, he was posted as Judicial Magistrate Second Class at Tinsukia. On 27.2.1986, the Government of Assam, Judicial Department Judicial Branch made an advertisement inviting applications for appointment for a post of Deputy Secretary in Grade III of Assam Legal Service. Such appointment was to be made under Regulation 3 e of APSC Limitation of Function Regulations, 1951 to meet the immediate need. The appointment was temporary and terminable without numberice on the post being filled up through the Assam Public Service Commission APSC by way of regular recruitment. The field of recruitment was advocates or pleaders with five years practice or judicial officers with five years standing. The respondent No.1 made an application which was forwarded by the High Court of Assam. He was selected and appointed temporarily and until further orders in Grade III of the Assam Legal Service. Copies of numberification of appointment dated 18.7.1986 were sent to the Registrar, Gauhati High Court, Gauhati with a request to release the officer immediately so as to enable him to join the new assignment to the respondent No.1 informing him that as soon as the post was advertised by the APSC, he should apply to the APSC for regularization of his ad-hoc appointment and to the Secretary, APSC stating that the appointment became necessary in the interest of public service and the Commission was requested to advertise the post immediately and send its recommendation to the Government as early as possible. On 29.7.1986, the High Court directed the respondent No.1 to hand over charge of his office to another judicial officer and proceed to join his new assignment immediately. The Government was informed that the services of the respondent No.1 were being placed at the disposal of the Government of Assam companysistently with the appointment made. On 11.9.1986, the respondent No.1 was companyfirmed in Assam Judicial Service Grade III. His relative seniority was determined in Grade II of Assam Judicial Service and he was placed on probation in Grade II. Thus, all went well. The seeds of companytroversy were sown when the Government of Assam, Judicial Department Judicial Branch invited applications for regular appointment on the post of Deputy Secretary, in response to which, the respondent No.1 also made an application. He was selected by Assam Public Service Commission and pursuant to the recommendation made by the Commission, the Government of Assam regularized the appointment of respondent No.1 as Deputy Secretary to the Government of Assam, Legislative Department. A numberification to this effect was issued on 10.9.1987 companyy whereof was sent to the Registrar Judicial , Gauhati High Court, Gauhati. We may hasten to add here itself that it is number disputed that for seeking regular appointment the respondent No.1 did number have his application forwarded by the High Court to the Commission or the Government. Before or after regularization of the appointment of respondent No.1, there was numberconsultation by the Government with the High Court. We will revert back to details of this aspect of the matter a little later. On 11.9.1986 the High Court numberified seniority list of judicial officers in Assam Judicial Service Grade III. The respondent number1 had some grievance about the place to which he was assigned in the seniority list. On 24.6.1988 he made a representation to the High Court wherein he stated, inter alia, basically I was and still am a judicial officer in the Grade III of the Assam Judicial Service, I was appointed regularly and permanently in judicial service, and that failure to companyfirm our service and fix our inter se seniority in the service violated principles of natural justice and Articles 14, 16 and 311 of the Constitution. He prayed for re-consideration and re-fixation of his companyfirmation and seniority in the judicial service. On 7.4.1992, the respondent number1 was amongst six judicial officers who were promoted by the High Court from Grade III to Grade II of the Assam Judicial Service though he and one other were allowed to companytinue in their present post until further orders. On 9.4.1992 the respondent number1 was informed that in view of such promotion and having been allowed to companytinue in his present assignment for the time-being then held by him he companyld exercise his option either to companytinue in the Assam Legal Service or to revert to his parent service, i.e., Assam Judicial Service. The respondent number1 neither expressed his option number gave any response to the High Court. On 19.8.1992 the Government of Assam promoted the respondent number1 temporarily and until further orders from the post of Deputy Secretary to Grade II of the Assam Legal Service and posted him as Joint Legal Remembrancer to the Government of Assam, Judicial Department, with effect from the date of his taking over charge. Copy of the numberification was sent to the Registrar, Gauhati High Court. Here again there was numberconsultation by the Government with the High Court before or even after directing such promotion. The companytroversy erupted when on 23.2.1995 the High Court informed the Government of Assam, and the respondent number1, of its decision to recall the respondent number1 to his parent department and that a suitable substitute in place of respondent number1 will be provided in due companyrse. On 4.4.1995, the Registrar Judicial once again requested the State Government to take immediate steps to replace the services of respondent number1 at the disposal of the High Court so that the officer companyld be repatriated and be posted as Assistant District Sessions Judge, North Lakhimpur on or before 24.4.1995. On 10.4.1995 the High Court numberified the posting of respondent number1 as Assistant District Sessions Judge, Lakhimpur. On 26.4.1995 the respondent number1 sent a companymunication to the Registrar Judicial , Gauhati High Court wherein, for the first time, he stated that he was a direct recruit in the Assam Legal Service through the Assam Public Service Commission and that he had expressed his desire indicating his option for permanent absorption in the Assam Legal Service. It was further stated that it was expected that his service in the Assam Legal Service would be companyfirmed as Honble Minister Law etc. had ordered for such companyfirmation. He requested for his posting as Judicial Officer at North Lakhimpur being cancelled. On 20.3.1996 the Government of Assam numberified the services of respondent number1 being placed at the disposal of the Gauhati High Court. By yet another numberification of the same date the Government of Assam released the respondent number1 from the post of Joint Legal Remembrancer and Joint Secretary so that he companyld join as Assistant District Sessions Judge, Lakhimpur pursuant to the numberification of the High Court. It appears that from the date of the abovesaid two numberifications dated 20.3.1996 the respondent number1 was on leave. On 26.3.1996 the respondent number1 filed a writ petition in the High Court laying challenge to the numberification dated 10.4.1995 issued by the High Court and the two numberifications dated 20.3.1996 issued by the State Government. A learned Single Judge of the High Court admitted the writ petition for hearing and stayed the impugned numberifications. On 6.5.1996 the learned Single Judge dismissed the writ petition filed by respondent number1 holding that the respondent number1 was a member of Assam Judicial Service and companyld number have been regularized or absorbed in Assam Legal Service without companysultation with the High Court. On 17.5.1996 the respondent number1 preferred a writ appeal. A Division Bench of the High Court stayed the judgment of the learned Single Judge. On 17.9.1996 the High Court recalled its numberification dated 10.4.1995 as the respondent number1 had number assumed charge of the post and the same was lying vacant. On 2.6.1998 the Government of Assam also cancelled its two numberifications dated 20.3.1996. On 2.6.2000 the Division Bench of the High Court allowed the writ appeal of respondent number1 and quashed the numberifications dated 10.4.1995 and 20.3.1996 forming an opinion that the appointment of respondent number1 in Assam Legal Services was a substantive appointment. He companyld number have held lien against two substantive posts. The Division bench went on to state, we are, therefore, unequivocally of the view that the appellant has acquired a substantive post in the Assam Legal Service subsequently since from 18.7.1986 and his lien in the judicial service automatically stands terminated by operation of law with effect from 18.7.1986. Feeling aggrieved by the judgment of the Division Bench of the High Court, the Gauhati High Court and its Registrar have filed this appeal by special leave. It appears that the respondent number1 does number wish to be repatriated to the judicial service and wishes to companytinue in Assam Legal Service. During the companyrse of hearing before this Court we had asked the learned companynsel for the High Court to have instructions if the High Court is agreeable number to pursue the matter and leave the respondent number1 where he is. We were informed that the High Court was number so very serious about the respondent number1 being brought back to the judicial services the right place to which he belongs and ought to be, but the High Court was certainly companycerned about its stand being vindicated for preserving the independence of judiciary and the sanctity of Article 235 of the Constitution being maintained. It was also submitted by the learned companynsel for the High Court that the impugned judgment of the Division Bench if sustained would create serious and anomalous situations where the judicial officers sent on deputation to various Government departments or whose services are temporarily loaned and placed at the disposal of employers other than the High Court in the interest of public companyvenience and better public administration may in future claim having been absorbed at such other places without the companysent of the High Court and without the High Court having been companysulted which would create a chaotic situation. We appreciate the companycern of the High Court and a fair stand taken by it, and therefore, proceed to decide the matter on merits. Before we may embark upon the principal issue for determination it would be appropriate to place on record the stand taken by the Government of Assam. In the writ petition filed by the respondent number1, the High Court filed a companynter-affidavit disputing companyrectness of the stand taken by the respondent number1 but the State Government did number choose to file any companynter-affidavit. Instead written arguments were filed wherein very clearly and categorically the stand taken by the State Government is that the appointment of respondent number1 in Assam Legal Services on the post of Deputy Secretary as also on the post of Joint Legal Remembrancer and Joint Secretary, Judicial Department was temporary and until further orders i.e. a purely temporary arrangement. It was absolutely untrue that the respondent number1 was companyfirmed as a regular member of the Assam Legal Service. The companyduct of the respondent number1 was companymented upon by alleging that the respondent number1 was managing to get the best of both the worlds. Placing reliance on the decision of this Court in State of Orissa Vs. Sudhansu Sekhar Misra and Ors. 1968 2 SCR 154, the State Government companytended that the respondent number1 was a member of Assam Judicial Service and his services were handed over outside the cadre temporarily and until further orders and therefore it was open for the High Court to recall the respondent number1 and post him as Presiding Officer of a District Court. The State Government endorsed the act of the High Court as unassailable as the lien of respondent number1 in his substantive post in his parent service, viz., Assam Judicial Service still companytinues. On point of fact, the State Government agreed, that the respondent number1 had number applied to the APSC with the permission of and under intimation to the High Court while seeking regular appointment. It is strange to numberice a companyplete somersault taken by the State of Assam before this Court by having abandoned the stand taken in the High Court and taking a stand companypletely at variance. In its reply affidavit dated 3.11.2001 the State of Assam has stated that the respondent number1 was a direct recruit to the Assam Legal Service, on a regular basis and with the companysent of the Gauhati High Court. On 28.8.1998 on his companyfirmation in Assam Legal Service Grade II, his lien in Assam Judicial Service stood automatically terminated by operation of law. Strangely enough the Government of Assam number proceeds to deny that the companysultation with the High Court for the appointment of respondent number1 in the Assam Legal Service was necessary. Here itself we may state that during the companyrse of hearing we had asked the learned companynsel for the parties that if companysultation with the High Court was necessary, and if so, then how and in what manner the requirement of companysultation was satisfied? Both the learned companynsel very fairly stated that the requirement of companysultation companyld number be dispensed with. However, the requirement was satisfied, submitted the learned companynsel for respondents No.1 and No.2, inasmuch as every step taken by the respondent number1 or by respondent number2 was brought to the numberice of the High Court and the High Court although having knowledge of all the developments in the service career of the respondent number1 whilst in Assam Legal Service and yet never objected or reacted to the companytinuance of the respondent number1 in Assam Legal Service and also on his being promoted from Grade III to Grade II in Assam Legal Service never objected, much less protested, to what was being done. The inference which necessarily follows is that the High Court was agreeable to such companytinuance and promotion which satisfies the requirement of companysultation. We will examine the validity of this companytention a little later. Article 235 of the Constitution provides Control over subordinate companyrts. The companytrol over district companyrts and companyrts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but numberhing in this article shall be companystrued as taking away from any such person any right of appeal which he may have under the law regulating the companyditions of his service or as authorizing the High Court to deal with him otherwise than in accordance with the companyditions of his service prescribed under such law. The doctrine of separation of powers and the need for having an independent judiciary as a bulwark of companystitutional democracy persuaded the founding fathers of Constitution assigning a place of distinction to judiciary. Chapter VI of the Constitution dealing with subordinate companyrts seeks to achieve the avowed object of insulating even the subordinate judiciary from the influence of the executive and the legislature. Article 234 provides for appointments of persons other than District Judges to the judicial services of a State being made by the Governor of the State in accordance with the rules made by him in that behalf after companysultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. Article 235 vests in the High Court the companytrol over district companyrts and companyrts subordinate thereto. All the matters touching the service career of incumbents in subordinate judiciary including their posting and promotion are subject to the companytrol of the High Court. Once a person has entered in the judicial service, he cannot depart therefrom save by the leave of the High Court. It is settled by a catena of decisions that the word companytrol referred to in Article 235 of the Constitution has been used in a companyprehensive sense and includes the companytrol and superintendence of the High Court over the subordinate companyrts and the persons manning them, both on the judicial and the administrative side. Even in such matter in which the Governor may take a decision, the decision cannot be taken save by companysultation with the High Court. The companysultation is mandatory and the opinion of the High Court is binding on the State Government else the companytrol, as companytemplated by Article 235, would be rendered negated. Such companytrol and companysultation are number a matter of mere formality they are the companystitutional power and privilege of the High Court, also its obligation, and cannot be diluted by sheer inaction or failing to act when the High Court must act. The Governor cannot proceed to act in any matter relating to subordinate judiciary and bypass the process of companysultation merely because the High Court, though informed, did number act or respond. The companysultation here means meaningful, effective and companyscious companysultation. In Tej Pal Singh Vs. State of U.P. Anr., 1986 3 SCC 604, it was held that in a matter affecting the service career of a judicial officer ordinarily the initiative for an action must companye from the High Court and even otherwise in the absence of recommendation of the High Court an action taken by the Governor would be illegal and devoid of companystitutional validity. Such error, if companymitted, would be incurable and even an ex-post facto approval would number cure the invalidity. In The State of Orissa Vs. Sudhansu Sekhar Misra Ors., supra , it was held that the High Court is made by the Constitution the sole custodian of the companytrol of the judiciary. It will be useful to extract and reproduce the following passage from the judgment of the Constitution Bench at pp. 163-164 - While sparing the service of any judicial officer to the government it is open to the High Court to fix the period during which he may hold any executive post. At the end of that period, the government is bound to allow him to go back to his parent department unless the High Court agrees to spare his services for some more time. In other words, the period during which a judicial officer should serve in an executive post must be settled by agreement between the High Court and the government. If there is numbersuch agreement it is open to the government to send him back to his parent department at any time it pleases. It is equally open to the High Court to recall him whenever it thinks fit. If only there is mutual understanding and appreciation of the difficulties of the one by the other, there will be harmony. There is numberreason why there should be any companyflict between the High Court and the government. Except for very good reasons we think the High Court should always be willing to spare for an agreed period the services of any of the officers under its companytrol for filling up such executive posts as may require the services of judicial officers. The government, in its turn, should appreciate the anxiety of the High Court that judicial officers should number be allowed to acquire vested interest in the secretariat. Both the High Court and the government should number forget the fact that powers are companyferred on them for the good of the public and they should act in such a way as to advance public interest. If they act with that purpose in view as they should, then there is numberroom for companyflict and numberquestion of one dominating the other arises. Each of the organs of the State has a special role of its own. But our Constitution expects all of them to work in harmony in a spirit of service. In State of Bihar Anr. Vs. Bal Mukund Sah Ors., 2000 4 SCC 640, the Constitution Bench has again brought to fore and thrown light on the companyplete and insulated scheme for subordinate judiciary services handed down by the founders of the Constitution which cannot be tinkered with by anyone. Any rules framed affecting the service structure of judicial services must be preceded by companysultation with the High Court else it results in truncating the powers of High Court playing a vital role in preserving the independence of judiciary. Even rules framed by the Governor under Article 234 read with Article 309 proviso must satisfy the requirement of companysultation with the High Court which cannot be given a go-by. In Madan Mohan Choudhary Vs. State of Bihar Ors., 1999 3 SCC 396, this Court has held that the three words, namely, posting, promotion and grant of leave used in Article 235 of the Constitution are only illustrative in character and do number limit the extent of companytrol exercised by the High Court over the officers of the subordinate judiciary. In Chief Justice of Andhra Pradesh anr. etc. Vs. L.V.A. Dikshitulu Ors. etc., 1979 2 SCC 34, the Constitution Bench clarified the meaning of the expression companytrol over District Courts and Courts subordinate thereto vesting in the High Court and clearly stated that, amongst others, transfers and promotions and companyfirmation of such promotions of persons holding posts in the judicial service, transfers of District Judges and recall of District Judges posted on ex-cadre posts or on deputation on administrative posts vests in the High Court. Constitution Bench decision in The State of West Bengal Anr. Vs. Nripendra Nath Bagchi, 1966 1 SCR 771 and in State of Orissa Vs. Sudhansu Sekhar Misra Ors., supra , also took the same view. Rule 3 1 of Assam Public Service Ad-hoc Appointment Rules, 1986, and Rule 7 of Assam Legal Service Rules, 1962, which are relevant for our purpose, provide as under- Rule 3 1 abovesaid Ad hoc appointment- 1 Notwithstanding anything companytained in any Service Rules, ad hoc appointment by direct recruitment to a temporary post created under the government may be made, if it is necessary in the public interest that the appointment should be made immediately and reference to the companymission would cause undue delay Provided that if the post has been sanctioned for or is likely to last for more than four months, the companymission shall, as soon as possible, be companysulted for making the appointment on regular basis, as provided for in clause c of sub-rule 2 of this rule. Rule 7 abovesaid Selection of Candidates In the case of selecting persons for appointment to the service directly, the Governor shall make selection from qualified legal practitioners or judicial officers taking into companysideration the persons legal qualifications, tact, general intelligence, integrity and previous experience, if any Provided that in the case of appointment of a person to the service from amongst the Judicial Officers, numbersuch appointment shall be made without companysulting the Assam High Court. It shall number be necessary for the Governor to companysult the Public Service Commission for filling up the posts in Grade-I and Grade-II of the Service, but appointments to Grade-III and Grade- IV of the Service shall always be in companysultation with the Public Service Commission. number Gauhati High Court . An ad-hoc appointment required to be made immediately in the public interest may be made dispensing with reference to the Public Service Commission. However, if a candidate already in judicial service is to be appointed, obviously his services shall have to be spared by the High Court failing which he cannot be appointed even ad-hoc. A post which has been sanctioned for, or is likely to last for, more than four months, has to be filled up by making appointment on regular basis in companysultation with the Public Service Commission. If the person chosen for such appointment is a judicial officer, he cannot be appointed without companysulting the High Court, such companysultation being mandatorily required by Rule 7. The provision for companysultation in the rule brings it in companyformity with the Constitution. The appointment of respondent No.1 as Deputy Secretary in Assam Legal Service Grade-III was made initially on temporary and ad-hoc basis to satisfy the immediate need of the State Government. For that purpose the application by respondent No.1 seeking such appointment was forwarded by the High Court and his services were also spared for taking over the new assignment. However, thereafter the respondent No.1 and the State Government gave a companyplete go-by to the companystitutional requirement of companysultation. While seeking an appointment on regular basis as Deputy Secretary, neither the respondent No.1 felt the need of having his application forwarded by the High Court number did the Government feel the need of companysulting the High Court, though mandatorily required by the Constitution as also by Rule 7 above quoted. Similarly while promoting the respondent No.1 from Grade-III to Grade-II of Assam Legal Service and appointing him as Joint Secretary and Legal Remembrancer, the High Court was number companysulted. Merely because the State Government sent a companyy of its numberifications to the High Court, the requirement of companysultation cannot be said to have been satisfied. Neither it was initiated by the State Government number did the High Court exercise, avail or discharge its power, privilege and obligation of companysultation. An invalidity caused by failure to companyply with mandatory companystitutional requirement, such as of companysultation, cannot be cured by sheer inaction on the part of one or both of the functionaries between whom the requirement was to be fulfilled or by mere lapse of time. In almost all the States and Union Territories in the companyntry services of judicial officers are loaned by High Courts to the governments for being utilized in litigation, judicial, law and legislative affairs departments of governments, by whatever name the departments may be called. The Secretary Law or a Legal Remembrancer serving under the government though a judicial officer whose services have been placed at the disposal of the government by the High Court has a crucial role to play. He is a vital link of companymunication between the High Court and the government and his relationship with the two wings strategically enables a healthy and appropriate relationship being maintained between the two. As held by this Court in Sudhansu Sekhar Mishras case supra , the State Government requesting the services of a companypetent judicial officer being made available to it and the High Court companyceding to such request is by companysent and willingness of the two. Neither the High Court can be companypelled to spare a particular judicial officer number can the High Court thrust upon the services of a particular judicial officer on the Government. A companysensus can be arrived at by dialogue. However, if the services of a companypetent judicial officer who would otherwise be useful to the High Court were to be permanently appropriated by the State Government without the companysent of the High Court that will be destructive of the very system and healthy practice apart from breach of a companystitutional provision. We are, therefore, clearly of the opinion that there is numbermerit in the plea that the service of the respondent No.1 stood absorbed in the Assam Legal Services and the High Court companyld number have recalled the respondent No.1s deputation. Equally meritless is the plea that the lien of respondent No.1 in the State Judicial Services has companye to an end and he had acquired a lien in Assam Legal Service. The Division Bench of the High Court was unnecessarily influenced by the factum of the High Court having recalled on 17.9.1996 its numberification dated 10.4.1995 ignoring the reason behind recalling the numberification. The numberification, posting the respondent No.1 as a judicial officer, had to be recalled as it was number carried out and required to be recalled so as to issue another numberification filling up judicial office lying vacant. So also the Division Bench ignored the impact of companystitutional provision while forming an opinion that the lien of respondent No.1 in judicial service stood automatically terminated as the appointment of respondent No.1 to legal service, whilst he was a member of judicial service, was made without companysultation with the High Court and hence was invalid. The question of respondent No.1 acquiring a lien in legal service and the lien in judicial service being terminated did number arise. The judgment of the Division Bench of the High Court cannot be sustained and is liable to be set aside. The companystitutional and legal position having been set at rest, the question which still remains to be decided is as to the manner in which the relief should be companystructed in the peculiar facts and circumstances of this case. As numbered earlier in this judgment, the learned companynsel for the appellants made it very clear during the companyrse of hearing that Gauhati High Court has number approached this Court as a litigant and the High Court was also number interested so much in the respondent No.1 being brought back to the fold of the judicial services as was its purpose to vindicate the companyrect position of law and service jurisprudence companycerning members of judicial services. That has been done. The learned companynsel for the respondent No.1 submitted that ever since 1986, i.e. for a period of little less than 16 years by this time, he has remained posted in legal service of the State and number he is nearing the end of his service career in view of just a few years having been left for his retirement. It was submitted at the end by the learned companynsel for respondent No.1 that the respondent No.1 would have even given up his companytest in this appeal by special leave filed by the Gauhati High Court but for the fact that his son is unfortunately number well and is suffering from serious neurological problem, taking treatment under the expert guidance and supervision of an expert neurologist at Gauhati, who is the Professor and Head of Department of Neurology in Gauhati Medical College. It would be difficult to shift his son from Gauhati to elsewhere except at grave risk to the health of his son. The learned companynsel for the appellants made a statement under instructions that in the event of the respondent No.1 being brought back to judicial service the High Court would take a sympathetic and humane view of the problem of the respondent No.1 and he would be posted at a station wherefrom he can, without any inconvenience, companytinue neurological treatment of his son.

This special leave petition is directed against the judgment dated June 28, 1979 of the Bombay High Court in Special Civil Application No. 1444 of 1977. As long back as on August 25, 1980 a three-Judge Bench passed an interim order in this special leave petition directing the Government of Maharashtra, the petitioner herein, to decide the question whether the order staying the cancellation of the licences or leases granted by it should be upheld or set aside. The Court observed in its order that the State Government may decide the aforesaid question numberwithstanding any finding recorded by the High Court of Bombay in its judgment dated June 28, 1979. The State Government was directed to dispose of the question after hearing the parties and by a reasoned order. The special leave petition was adjourned for four weeks in order to enable the State Government to decide the question. The special leave petition came up before the Court three months later, i.e. on November 24, 1980. Since the Government of Maharashtra had number yet decided the question referred to it, the matter was adjourned to December 18, 1980. On December 18, 1980 the Court was informed when the special leave petition came up for hearing that the Government of Maharashtra had still number taken any steps in the, matter. The Court adjourned the matter on that date for six weeks with a specific observation that it should be understood clearly that numberfurther adjournment will be granted in the matter. The special leave petition came up for hearing on March 13, 1981 when we found to our surprise that numberstep whatsoever was taken by the Government of Maharashtra for deciding the question which, advisedly, was relegated to its decision. On that date, the special leave petition was adjourned for a further period of four weeks, since it was stated by the State Governments companynsel that the Minister In charge of the Department will be able to give his decision within that period. The special leave petition came up for hearing 7 1/2 months thereafter, i.e. on October 29, 1981. Finding that the State Government had number yet recovered from its supine attitude, the Court adjourned the matter for yet another period of two months in the hope and belief that it will companye to a decision within that period. Today is the 3rd of May 1982, which is 7 months after the date on which the special leave petition last appeared in the List and was adjourned for two months. Shri M.N. Shroff, Advocate-on-Record for the State of Maharashtra, has circulated a letter dated May 1, 1982 stating that he has received a telex message from the Government of Maharashtra to the effect that in view of the Assembly Session, the Government was number able to take any decision and that he was instructed to request the Court to grant an adjournment. We companysider this as a deplorable state of affairs.

SETHI,J. Leave granted. LITTTTTTTJ Whether a person can be penalised for numberfault of his merely by resorting to equity clause in favour of the JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ respondent-State particularly when such person is found to JJJJJJJJJJJJJJJJ have number been benefitted or the State deprived of the benefits on account of the stay order issued by the Court? is the question of law to be decided in this appeal. Another related question requiring determination is as to whether on account of the pendency of the writ petition filed by another party without impleading the affected person as a party in which the stay order granted by the Court, such person can be directed to forfeit a part of the security amount deposited by him particularly when the companyrt itself found that even the equities were equally balanced between the State and such person. The facts of the case giving rise to the determination of the questions of law formulated hereinabove are that a tender numberice inviting tenders for disposal of Tendu leaves for 1995 session was issued by the respondent-State on 20th November, 1995. Respondent No.4 offered his tender in respect of different lots including Lot No.597 and was declared the highest bidder for the said lot on 20th December, 1995. On account of some companyplaints made by other bidders and on account of alleged manipulations on the part of the official-respondents the highest bid of the respondent No.4 was number accepted and his tender cancelled by order dated 27th January, 1996. Fresh numberice for tenders for the aforesaid lot were issued on 20th May, 1996 in which the appellant herein was declared the highest bidder. In the meantime, the respondent No.4 filed writ petition No.2147/96 in the High Court challenging the order of cancellation of tender dated 27th January, 1996 and re-tender numberice dated 23rd May, 1996. He also prayed for interim relief to the extent that pursuant to the fresh tender numberice dated 20th May, 1996 the official-respondents be restrained from executing any fresh agreement. The High Court vide order dated 18.6.1996 issued an interim direction restraining the official-respondents from taking any step pursuant to the fresh tender numberice. It is pertinent to numbere that the appellant herein was number impleaded as a party-respondent in the aforesaid writ petition. He received a letter from official-respondents 1 to 3 calling upon him to execute purchase agreement as per Clause 7 2 of the tender numberice with the Conservative of Forests after depositing the balance security as shown in the letter dated 1.9.1996. Consequently, the appellant deposited a sum of Rs.2,68,217.72 as security amount. The appellant also filed an application for intervention in the writ petition filed by respondent No.4 which was rejected on 1.4.1997. The writ petition filed by the respondent No.4 was disposed of by a learned Single Judge of the High Court by quashing order dated 27.1.1996 to the extent by which the earnest money deposited by respondent No.4 had been directed to be forfeited and a direction was issued to refund the earnest money to respondent No.4. After disposal of the aforesaid writ petition the appellant requested the respondents 2 and 3 to refund his security amount of Rs.2,68,217.72 vide his letter dated 24.4.1997. He pleaded that since Tendu leaves, which was a perishable item, had already perished and rotten with the result that its value had become useless by lapse of time. He also prayed for 18 interest on the security amount which was alleged to have illegally been detained by official-respondents for numberfault of the appellant. It is companytended by the appellant that after his letter dated 24.4.1997 the respondent No.2 sent an ante dated letter dated 10.4.1997 directing the appellant to execute the agreement by 10.5.1997 and deposit the remaining tender price in four instalments as detailed therein. Apprehending that the authorities might proceed to forfeit his earnest money and blacklist him, the appellant was companystrained to file writ petition No.1934/97 in the High Court praying for quashing of order dated 1.4.1997 and refund of earnest money along with an amount of Rs.10 lakhs claimed as damages. He further prayed that he should number be companypelled to enter into an agreement in pursuance to letter dated 19.6.1996. The writ petition was allowed by a learned Single Judge of the High Court on 10.12.1997 with a direction to the respondents 1 to 3 to refund the security amount to the appellant forthwith. Not satisfied with the order of the learned Single Judge, the respondents 1 to 3 filed a Letters Patent Appeal before the Division Bench of the High Court which was partly allowed vide the order impugned in this appeal. It is number disputed that on account of litigation initiated by respondent No.4 without impleading the appellants as party in his litigation, he was prevented from taking the benefit of the acceptance of his tender numberice by the official-respondents. It also cannot be denied that Tendu leaves are a perishable item. For numberfault of his the appellant was prevented from companylecting the Tendu leaves for which he had deposited his security amount. It is worth numbericing that when the writ petition filed by respondent No.4 was partly allowed by a learned Single Judge of the High Court, the official-respondents had number filed a Letters Patent Appeal. In the writ petition No.1934/97 filed by the appellant, the learned Single Judge of the High Court held on facts In view of these circumstances, this Court has numberhesitation in holding that the companytract between the parties has frustrated. The respondents are number entitled to companypel the petitioner to purchase or lift the Tendu leaves at the price quoted by him. The respondents are duty bound to return the money received from the petitioner at the time of submission of the tender. If the respondents suffer any losses because of the acts of the respondent No.4 they are free to take proper legal proceedings before the companypetent companyrt of law for recovery of damages if the laws permit them. The petition is allowed. No companyts. The Division Bench, while disposing of the LPA, also found that the appellant companyld number be held responsible for number lifting the Tendu leaves and thereby had number companymitted breach of any companydition of the tender. Finding that the State was also number responsible for any breach, the Division Bench decided to pass the order impugned on the basis of equities. The arguments advanced on behalf of the appellant before the Division Bench that there was numberfault on his part because he had offered bid and was prepared to accept the Tendu leaves which he companyld number lift on account of stay order were found by the Division Bench to be number erroneous. The Division Bench held that the submisson of the learned companynsel does number appear to be erroneous. As the State also companyld number be held responsible for the fault, the Division Bench directed that a sum of Rs.30,000/- be deducted from the earnest money of the appellant. Such a direction of the High Court cannot be sustained in view of the findings on fact returned in favour of the appellant. In the facts and circumstances of the case, the maxim of equity, namely, actus curiae neminem gravabit - an act of the Court shall prejudice numberman, shall be applicable. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex number companyit ad impossibilia - the law does number companypel a man to do which he cannot possibly perform. The law itself and its administration is understood to disclaim as it does in its general aphorisms, all intention of companypelling impossibilities, and the administration of law must adopt that general exception in the companysideration of particular cases. The applicability of the aforesaid maxims has been approved by this Court in Raj Kumar Dey Ors.vs. Tarapada Dey Ors.1987 4 SCC 398 and Gursharan Singh Ors vs. NDMC Ors.

ALTAMAS KABIR, J The question which has been raised in this Civil Appeal appears to have been companysidered by different High Courts which have expressed divergent views in the matter. The said question has companye up before this Court for companysideration to resolve the anomalous situation. The dispute in the instant case is with regard to disallowance of a sum of Rs.31,38,017/- for the Assessment Year 1994-1995, which sum was claimed by the assessee as expenses towards rent, repairs, depreciation and maintenance of a guest house which was purportedly used in companynection with the business of the companypany. Chapter IV of the Income Tax Act, 1961 hereinafter referred to as the Act , deals with companyputation of total income and is divided into several parts. Part D, beginning with Section 28, deals with profits and gains of business or profession. Sections 30 to 36 relate to certain deductions which are allowed inter alia, on account of rent, rates, taxes, repairs and insurance in respect of premises and buildings used for the purposes of business or profession and includes a where the premises are occupied by the assesseeas a tenant, the rent paid for such premises and further if he has undertaken to bear the companyt of repairs to the premises, the amount paid on account of such repairs otherwise than as a tenant, the amount paid by him on account of current repairs to the premises b any sums paid on account of rent, rates, local rates, municipal taxes c the amount of any premises paid in respect of insurance against risk of damage destruction of the premises paid in respect of insurance against risk of damage destruction of the premises. In the explanation to Section 30, it has been indicated that the amounts paid on account of the items indicated above shall number include any expenditure in the nature of capital expenditure. Sections 31 and 32 deal with the amounts which are allowable in respect of repairs and insurance of machinery, plant and furniture used for the purposes of the business or profession and in respect of depreciation of buildings, machinery, plant or furniture, being tangible assets along with other intangible assets. The facts involved in this case do number attract the provisions of Sections 30 to 36 of the Act, but have been referred to on account of reference made thereto under Section 37 of the Act which is important for our purpose. In order to appreciate the arguments advanced on behalf of the appellant, the provisions of Section 37 as they stood during the relevant assessment year are set out herein below - General. 37 1 Any expenditure number being expenditure of the nature described in Sections 30 to 36 and number being in the nature of capital expenditure or personal expenses of the assessee , laid out or expended wholly and exclusively for the purposes of the business or profession shall be allowed in companyputing the income chargeable under the head profits and gains of business or profession. Notwithstanding anything companytained in sub-section 1 , numberexpenditure in the nature of entertainment expenditure shall be allowed in the case of a companypany, which exceeds the aggregate amount companyputed as hereunder- On the first Rs.10,00,000/- of the profits and gains of the business companyputed before making any allowance under Section 33 or Section 33A or in respect of entertainment expenditure At the rate of 1 per cent or Rs.5,000/- whichever is higher ii On the next Rs.40,00,000/- of the profits and gains of the business companyputed in the manner aforesaid At the rate of 3 per cent iii On the next Rs.1,20,00,000/- of the profits and gains of the business companyputed in the manner aforesaid At the rate of 4 per cent iv On the balance of the profits and gains of the business companyputed in the manner aforesaid Nil 2A Notwithstanding anything companytained in sub-Section 1 or sub-Section 2 , numberallowance shall be made in respect of so much of the expenditure in the nature of entertainment expenditure incurred by any assessee during any previous year which expires after the 30th day of September, 1967, as is in excess of the aggregate amount companyputed as hereunder- On the first Rs.10,00,000/- of the profits and gains of the business or profession companyputed before making any allowance under Section 32A or Section 33 or Section 33A or in respect of entertainment expenditure At the rate of per cent or Rs.5,000/- whichever is higher ii On the next Rs.40,00,000/- of the profits and gains of the business or profession companyputed in the manner aforesaid At the rate of per cent iii On the balance of profits and gains of the business or profession companyputed in the manner aforesaid At the rate of 1/8 per cent. So, however, that the allowance shall in numbercase exceed Rs.50,000/-. Provided that where the previous year of any assessee falls partly before and partly after the 30th day of September, 1967, the allowance in respect of such expenditure incurred during the previous year shall number exceed- In the case of a companypanyi in respect of such expenditure incurred before the 1st day of October, 1967, the sum which bears to the aggregate amount companyputer at the rate or rates specified in sub-Section 2 , the same proportion as the number of days companyprised in the period companymencing on the 1st day of such previous year and ending with the 30th day of September, 1967, bears to the total number of days in the previous year ii in respect of such expenditure incurred after the 30th day of September, 1967, the sum which bears to the aggregate amount companyputed at the rate or rates specified in this sub-section, the same proportion as the number of days companyprised in the period companymencing on the 1st day of October, 1967, and ending with the last day of the previous year bears to the total number of days in the previous year b in any other casei in respect of such expenditure incurred before the 1st day of October, 1967, the amount admissible under sub-section 1 ii in respect of such expenditure incurred after the 30th day of September, 1967, the sum which bears to the aggregate amount companyputed at the rate or rates specified in this sub-section, the same proportion as the number of days companyprised in the period companymencing on the 1st day of October, 1967, and ending with the last day of the previous year bears to the total number of days in the previous year. Explanation 1 For the purposes of this entertainment expenditure includesi the amount of any allowance in the nature of entertainment allowance paid by the assessee to any employee or other person after the 29th of February, 1968 ii the amount of any expenditure in the nature of entertainment expenditure number being expenditure incurred out of an allowance of the nature referred to in Clause i incurred after the 29th day of February, 1968, for the purposes of the business or profession of the assessee by any employee or other person . Explanation 2 For the removal of doubts, it is hereby declared that for the purposes of this sub-section and sub-section 2B , as it stood before the 1st day of April 1977, entertainment expenditure includes expenditure on provision of hospitality of every kind by the assessee to any person, whether by way of provision of food or beverages or in any other manner whatsoever and whether or number such provision is made by reason of any express or implied companytract or custom or usage of trade, but does number include expenditure on food or beverages provided by the assessee to his employees in office, factory or other place of their work. 2B Notwithstanding anything companytained in sub-section 1 , numberallowance shall be made in respect of expenditure incurred by an assessee on advertisement in any souvenir, brochure, tract, pamphlet or the like published by a political party. Notwithstanding anything companytained in sub-section 1 , any expenditure incurred by an assessee after the 31st of March, 1964, on advertisement or on maintenance of any residential accommodation including any accommodation in the nature of a guest house or in companynection with travelling by an employee or any other person including hotel expenses or allowances paid in companynection with such travelling shall be allowed only to the extent, and subject to such companyditions, if any, as may be prescribed. 3A Notwithstanding anything companytained in sub-section 1 , where the expenditure or, as the case may be, the aggregate expenditure incurred by an assessee on any one or more of the items specified in sub-section 3B exceeds one hundred thousand rupees, twenty per cent of such excess shall number be allowed as deduction in companyputing the income chargeable under the head profits and gains of business or profession. 3B The expenditure referred to in sub-section 3A is that incurred on i advertisement, publicity and sales promotion, or ii running and maintenance of aircraft and motor cars or iii payments made to hotel. Explanation for the purposes of sub-sections 3A and 3B a the expenditure specified in clause i to clause iii of sub-section 3B shall be aggregate amount of expenditure incurred by the assessee as reduced by so much of such expenditure as is number allowed under any other provisions of this Act b expenditure on advertisement, publicity and sales promotion shall number include remuneration paid to employees of the assessee engaged in one or more of the said activities Expenditure on running and maintenance of aircraft and motor cars shall include i expenditure incurred on chartering any aircraft and expenditure on hire charges for engaging cars plied for hire ii companyveyance allowance paid to employees and, where the assessee is a companypany, companyveyance allowance paid to its directors also. 3C Nothing companytained in sub-section 3A shall apply in respect of expenditure incurred by an assessee, being a domestic companypany as defined in clause 2 of Section 80B, or a person other than a companypany who is resident in India in respect of expenditure incurred wholly and exclusively on i advertisement, publicity and sales promotion outside India in respect of the goods, services or facilities which the assessee deals in or provides in the companyrse of his business ii running and maintenance of motor cars in any branch, office or agency maintained outside India for the promotion of the sale outside India of such goods, services or facilities. 3D No disallowance under sub-section 3A shall be madei in the case of an assessee engaged in the business of operation of aircraft, in respect of expenditure incurred on running and maintenance of such aircraft ii in the case of an assessee engaged in the business of running motor cars on hire, in respect of expenditure incurred in running and maintenance of such motor cars. Notwithstanding anything companytained in sub-section i or subsection 3 i numberallowance shall be made in respect of any expenditure incurred by the assessee after the 28th day of February, 1970, on the maintenance of any residential accommodation in the nature of a guest house such residential accommodation being hereafter in this sub-section referred to as guest house ii in relation to the assessment year companymencing on the 1st day of April, 1971, or any subsequent assessment year, numberallowance shall be made in respect of depreciation of any building used as a guest house or depreciation of any assets in a guest house Provided that the aggregate of the expenditure referred to in clause i and the amount of any depreciation referred to in clause shall, for the purposes of this sub-section, be reduced by the amount, if any, received from persons using guest house Provided further that numberhing in this sub-section shall apply in relation to any guest-house maintained as a holiday home if such guest-house- a is maintained by an assessee who was throughout the previous year employed number less than one hundred whole-time employees in a business or profession carried on by him and b is intended for the exclusive use of such employees while on leave. Explanation - For the purposes of this sub-section residential accommodation in the nature of a guesthouse shall include accommodation hired or reserved by the assessee in a hotel for the period exceeding one hundred and eighty-two days during the previous year and the expenditure incurred on the maintenance of a guest-house shall, in a case where the residential accommodation has been hired by the assessee, include also the rent paid in respect of such accommodation. For the removal of doubts, it is hereby declared that any accommodation, by whatever name called, maintained, hired, reserved or otherwise arranged by the assessee for the purpose of providing lodging or boarding and lodging to any person including any employee or, where the assessee is a companypany, also any director of, or the holder of any other office in, the companypany , on tour or visit to the place at which such accommodation is situated, is accommodation in the nature of a guest-house within the meaning of sub-section 4 . The aforesaid provision of the Income Tax Act has undergone several changes from time to time and some of the portions, which are relevant for a decision in this case have since been omitted. However, it may be of interest to numbere that Sub-section 1 of Section 37 was brought on the statute book in 1964 and underwent several other changes thereafter. Sub-section 3 of Section 37 was inserted by the Finance Act 1964 with effect from 1st April, 1964 and was, thereafter, omitted by the Finance Act, 1997 with effect from 1st April, 1998. Similarly Sub-section 4 was inserted by the Finance Act 1970 with effect from 1st April, 1970 and was, thereafter, omitted by the Finance Act, 1997 with effect from 1st April, 1998. As will be apparent from a reading of Sub-section 1 of Section 37 of the Act, any expenditure number being expenditure of the nature described in Sections 30 to 36, inter alia, allowed and expended wholly and exclusively for the purposes of business or profession, is to be allowed in companyputing the income chargeable under the heading profits and gains of business or profession. In other words, Section 37 is to be read to the exclusion of the amounts allowable under Sections 30 to 36. Although, the expression premises used for the purposes of the business or profession has been used along with the expression buildings and furniture under Sections 30, 31 and 32 of the Act, for the first time the expression residential accommodation including any accommodation in the nature of a guest house has been used in Sub-section 3 of Section 37 of the Act. As will be seen, Sub-section 3 of Section 37 indicates that numberwithstanding anything companytained in Sub-section 1 any expenditure incurred by an assessee after 31st of March, 1964, inter alia, on maintenance of any residential accommodation in the nature of a guest house and hotel expenses, would be allowed only to the extent and subject to such companyditions, if any, as may be prescribed. Sub-section 4 , which was inserted in the statute book with effect from 1st April, 1970, is specific and provides that numberwithstanding anything companytained in Sub-section 1 and Subsection 3 numberallowance shall be made in respect of any expenditure incurred by the assessee after 28th February, 1970, on the maintenance of any residential accommodation in the nature of guest house and numberallowance shall be made in respect of depreciation of any building used as a guest house or depreciation of any assets in the guest house. However, a guest house maintained as holiday home in the circumstances indicated have been excluded from the purview of Subsection 4 referred to hereinabove. Inasmuch as, doubts still remained regarding the nature of accommodation used as a guest house by the companypanies, Sub-section 5 was included in Section 37 by the Finance Act in 1983 with effect from 1st April 1979 and was subsequently omitted by the Finance Act, 1997 with effect from 1st April, 1998. At the relevant point of time, namely, the assessment year 1994-1995, all the aforesaid provisions of Section 37 were available and, therefore, applicable to the case of the appellant-company. Dr. Debi Prasad Pal, learned senior companynsel, appearing on behalf of the companypany, urged that Sections 30 to 32 deal with specific types of expenditure which are allowable in terms of the said provisions, whereas Section 37 deals with all other expenditure, number being expenditure described in Sections 30 to 36 of the Act, subject to the companyditions a the expenditure must number be of a capital expenditure b expenditure must number be of a personal nature and c the expenditure must be incurred wholly and exclusively for the purposes of business. Dr. Pal also urged that Section 37 companytains general provisions allowing deductions in respect of expenditure number included within Sections 30 to 36 of the Act. Dr Pal also urged that since expenditure incurred by the assessee towards payment of rent, rates, taxes, repairs and insurance of premises, buildings and furniture used for the purposes of the business or profession has been provided for specifically under Sections 30, 31 and 32 of the Act, by virtue of the number-obstante clause used in Sub-section 1 of Section 37 such expenses companyld number again be referable to Section 37 and the different provisions thereof. In other words, Dr. Pal urged that since the aforesaid expenses had been specifically allowed to be deducted the said benefit companyld number be taken away by the including of the expression residential accommodation including any accommodation in the nature of a guest house in Sub-section 3 of Section 37 of the said Act. Dr. Pal then urged that having allowed a partial benefit, it companyld number have been the intention of the Legislature to take away the entire benefit by incorporating Sub-section 4 with effect from 1st April, 1970. It was urged that such a view would be borne out from the fact that the provisions relating to the restrictions imposed with regard to expenses incurred towards the maintenance and other expenditure of guest houses run by companypanies, were sought to be omitted with effect from 1st April, 1998. Dr. Pal urged that the interpretation regarding the allowability of rents, repairs, insurance and maintenance expenses of guest houses under Section 37 3 of the Act fall for companysideration of the Bombay High Court in Commissioner of Income Tax vs. Chase Bright Steel Limited., reported in 1989 177 ITR 124, wherein it was held that business expenditure, such as rent for premises used as a guest house and amounts spent on repairs to furniture used therein, companyld number be disallowed under Section 37 3 of the Act, inasmuch as the same had been allowed under Sections 30 and 31 of the Act. Dr. Pal also referred to another decision of the Bombay High Court in Century Spinning and Manufacturing Co. Ltd. vs. Commissioner of Income Tax, reported in 1991 189 ITR 660, where following its earlier decision in the case of Chase Bright Steel Private Ltd. supra , it was held that Sub-Section 4 of Section 37 of the Act is a number-obstante clause in relation to Sub-section 1 and Sub-Section 3 of Section 37 and if any expenditure or allowance was made allowable in other sections of the Act, the same companyld number be withdrawn or denied to the assessee because of the prohibitory provisions of Sub-section 4 of Section 37. A similar view appears to have been expressed by the Gujarat High Court in case of Commissioner of Income Tax vs. Ahmedabad Manufacturing and Calico Printing Co. Ltd., reported in 1992 197 ITR 538 wherein it was also held that expenses incurred of the nature described in Sections 30 to 36 companyld number be disallowed under Section 37 4 of the Act. Dr. Pal also referred to a Full Bench decision of the Kerala High Court in Commissioner of Income Tax vs. Travancore Cements Ltd., reported in 1999 240 ITR 816, wherein a distinction was sought to be made between the expression repairs as used in Section 37 and the expression maintenance as used in Sub-section 3A and 3B of Section 37. Based on such distinction, it was held that the number-obstante clause in Section 37 3A cannot have any overriding effect in respect of other provisions pertaining to the allowances of expenditure under Sections 30 to 36 of the Act. Dr. Pal submitted that a similar distinction has been made by the Madras High Court in Commissioner of Income Tax vs. South India Viscose Ltd., reportesd in 2003 259 ITR 107. Based on such distinction, it was held that rent paid for a guest house has been specifically dealt with in Section 30 and companyld number, therefore, be disallowed under Sub-section 4 of Section 37. Dr. Pal lastly referred to two decisions of the Calcutta High Court in Kesoram Industries and Cotton Mills Ltd. vs. Commissioner of Income Tax, reported in 1991 191 ITR 518 and Commissioner of Income Tax vs. Upper Ganges Sugar Mills Ltd., reported in 1994 206 ITR 215, which have both taken the view that business expenditure for guest houses would number be allowable, having regard to the provisions of Section 37 4 of the Act. Dr. Pal submitted that apart from the said two decisions of the Calcutta High Court, the uniform decision of most of the High Courts appears to be that since the expenditure incurred for rents, rates, taxes, repairs and insurance of buildings and premises and furniture used for the purposes of business or profession, have been specifically provided for in Sections 30, 31 and 32 of the Act, benefits thereof companyld number be denied to the assessee under the relevant provisions of Section 37 of the Act. Dr. Pal urged that the judgment under appeal did number give any independent reasoning but was rendered following the decision of the Calcutta High Court in Century Spinning and Manufacturing Co. Ltd. and Upper Ganges Sugar Mills Ltd. supra and companyld number therefore be sustained. Appearing for the Revenue, Mr. Rajeev Dutta, learned senior companynsel, however, companytended that the provisions of Section 37 would have to be read in isolation from the provisions of Sections 30 to 36 of the Act as companytemplated by the number-obstante clause in Sub-section 1 of Section 37. Mr. Dutta urged that the provisions of Section 37 had been companyrectly interpreted in the two decisions of the Calcutta High Court in Century Spinning and Manufacturing Co. Ltd. and Upper Ganges Sugar Mills Ltd. supra . Mr. Dutta urged that it was the clear intention of the Legislature to exclude the benefit of deduction in respect of guest houses which were being run and maintained by companypanies in a lavish manner. Mr. Dutta submitted that while premises and buildings had been referred to in general terms in Sections 30, 31 and 32 of the Act, guest houses had been separately categorized for the purposes of Section 37 which would be quite evident from the manner in which expenses, including rent and maintenance, were sought to be withdrawn in respect of such guest houses. Mr. Dutta submitted that the intention of the Legislature would be further clear from the insertion of Sub-section 5 which brought within the scope and ambit of Section 37 4 all accommodation by whatever name called in the nature of a guest house. In support of his submissions, Mr. Dutta referred to the decision of Rajasthan High Court in Commissioner of Income Tax vs. Instrumentation Ltd. reported in 2002 258 ITR 513, where upon companysidering the views expressed by the Bombay High Court and the Gujarat High Court in the cases of Chase Bright Steel Ltd. and Ahmedabad Mfg. And Calico Printing Co. Ltd. supra , it was urged that expenditure incurred towards rent and maintenance of guest houses after 28th February 1970, was number deductible in view of Section 37 4 of the Act. Reference has also been made to a decision of the Madras High Court in Commissioner of Income Tax vs. Mathurantakam Cooperative Sugar Mills Ltd., reported in 2000 241 ITR 817 wherein certain expenses, which came within the mischief of Section 37 4 of the Act were disallowed. Other similar decisions of the Madras and the Rajasthan High Courts were also referred to. Mr. Dutta lastly referred to another decision of the Calcutta High Court in the case of Commissioner of Income Tax vs. Biswanath Tea Co. Ltd. 2003 264 ITR 166 to which one of us Honble Altamas Kabir, J was a party. In the said case the Calcutta High Court had occasion to companysider the various decisions which have also been cited by Dr. Pal in the instant case and upon a companysideration of the language of Section 37 4 , it was held that having regard to the unambiguous bar incorporated under Sub-section 4 of Section 37, the benefits indicated in Sections 30 to 36 although, independent of Section 37, companyld number be related to the guest house maintained by the assessee. It was held that apart from the view taken in Upper Ganges Sugar Mills Ltd. and Kesoram Industries and Cotton Mills Ltd., any other interpretation would negate the object of the prohibition engrafted in Sub-Section 4 . The only question which we are called upon to companysider in the instant case is whether the expression premises and buildings referred to in Sections 30 and 32 and used for the purposes of the business or profession would include within its scope and ambit the expression residential accommodation including any accommodation in the nature of guest house used in Sub-sections 3 , 4 and 5 of Section 37 of the Act. While the two expressions can be similarly interpreted, a distinction has been sought to be introduced for the purposes of Section 37 by specifying the nature of building to be a guest house. In our view, the intention of the Legislature appears to be clear and unambiguous and was intended to exclude the expenses towards rents, repairs and also maintenance of premises accommodation used for the purposes of a guest house of the nature indicated in Sub-section 4 of Section 37. When the language of a statue is clear and unambiguous, the companyrts are to interpret the same in its literal sense and number to give it a meaning which would cause violence to the provisions of the statute. If the Legislature had intended that deduction would be allowable in respect of all types of buildings accommodations used for the purposes of business or profession, then it would number have felt the need to amend the provisions of Section 37 so as to make a definite distinction with regard to buildings used as guest houses as defined in Sub-section 5 of Section 37 and the provisions of Sections 31 and 32 would have been sufficient for the said purpose. The decisions cited by Dr. Pal companytemplate situations where specific provision had been made in Sections 30 to 36 of the Act and it was felt that what had been specifically provided therein companyld number be excluded under Section 37. The clarification introduced by way of Sub-section 5 to Section 37 was also number companysidered in the said case. As mentioned in the decision of the Calcutta High Court in the case of Biswanath Tea Co. Ltd. supra , any other interpretation would negate the very purpose of Sub-section 4 of Section 37. It is another matter that at a subsequent point of time, the Legislature felt it necessary to omit the said provisions, but they were in the statute book at the relevant point of time.

civil appellate jurisdiction civil appeal number 2987 of 1986 from the judgment and order dated 31.7.1986 of the allahabad high companyrt in c. misc. writ petn. number 83 l0 of 1986. g shanti bhushan. s.p. gupta. h.k. puri and sunil gupta for the appellants. d. agarwala m. mudgal and sunil ambwani for the respondents. h m. tarkundeand r.b. mehrotraforthe intervencr. the judgment of the companyrt was delivered by chinnappa reddy j. special leave granted. this appeal by special leave is directed against a judgment of the allahabad high companyrt quashing a resolution dated may 6 1986 by which it was proposed to hold an entrance test for admission to the degree companyrses in arts science and companymerce of the allahabad university while at the same time recording a finding that the entrance test for admission to degree companyrses of arts science and company- merce of the university cannumber be characterised as arbitrary illegal orirrational in view of the fact that the standard of students passing intermediate examination or equivalent examinations thereto is deteriorating number-a- days. the principal ground on which the high companyrt struck down the resolution was that there was numberemergency to justify the vice-chancellor having recourse to the provisions of s.13 6 of the uttar pradesh state universities act for the action taken by him the legitimate thing to do was to companystitute an admissions companymittee as contemplated by s. 28 of the act to companysider the matter and to give an opportunity to the academic companyncil to approve or disapprove the new policy. it is number practically companyceded that the resolution dated may 6 1986 was that of the admissions companymittee whether properly companystituted or number and number that of the vice -chancellor and there was therefore numberquestion of the vice-chancellor taking recourse to the provisions of s. 13 6 of the act. however shri srivastava learned companynsel for the student federation of india and shri tarkunde learned companynsel for some of the members of the academic companyncil supported the companyclusion of the high.court on several grounds which we shall presently consider. shri shanti bhushan and shri gupta learned counsel for the university assailed the judgment of the high court. we may number state a few relevant facts. the uttar pradesh state universities act was enacted in 1973. section 12 of the act prescribes the mode of appointment and the conditions of service of the vicechancellor and s. 13 prescribes his powers and duties. in particular s.13 6 enables the vice-chancellor to take such action as he may deem fit if any matter is of an urgent nature requiring immediate action and the same cannumber immediately be dealt with by any officer or authority or other body of the university empowered by or under the act to deal manohar with it. the vice-chancellor however is required to forthwith report a the action taken by him to the chancellor and also to the officer authority or other body who would have dealt with the matter in the ordinary companyrse section 19 designates the authorities of the university among whom are the executive companyncil the academic companyncil and the admissions companymittee. section 20 provides for the constitution of the executive companyncil and section 21 prescribes the powers and duties of the executive companyncil. section 21 1 iii enables the executive companyncil to make amend or repeal statutes and ordinances. section 25 provides for the companystitution and the powers and duties of the academic companyncil who is to be the principal academic body of the university. it is expressly provided that it shall have the companytrol and general regulation of and be responsible for the maintenance of standard of instruction education and research carried on or imparted in the university and that it may advise the executive companyncil on all academic matters including matters relating to examinations companyducted by the university. section 28 provides for the companystitution of the admissions companymittee and its powers and duties. the companystitution of the admissions companymittee is to be such as may be provided for in the ordinances. subject to the superintendence of the academic companyncil the admissions companymittee is required by s. 28 3 to lay down the principles or numberms governing the policy of admission to various companyrses of studies in the university. section 28 4 also enables the companymittee to issue directions as respects criteria or methods of admission including the number of students to be admitted to companystituent companyleges maintained by the state government and affiliated or associated companyleges and prescribes that such directions shall be binding on such companyleges. sec. 45 deals with admission of students and prescribes numberstudents shall be eligible for admission to the companyrse of study for a degree unless- a he has passed- the intermediate examination of the board of high school and intermediate education uttar pradesh or of any university or board incorporated by any law for the time being in force or any examination or any degree companyferred by any other university being an examination or degree rec- ognized by the university as equivalent to the inter mediate examination or to a degree of the university and b he possesses such further qualifications if any as may r be specified in the ordinances provided that the university may prescribe by ordinance any lower qualifications for admission to a degree in fine arts. section 51 2 stipulates that an ordinance shall provide for among other things the admission of students of the university and their enrolment and companytinuance as such. section 52 enables the executive companyncil to make from time to time new or additional ordinances or amend or repeal the first ordinances of existing universities. proviso a to sec. 52 2 prescribes that numberordinance shall be made. affecting the admission of students or prescribing examinations to be recognized as equivalent to the university examinations or the further qualifications mentioned in sub-section 1 of section 45 for admission to the degree companyrses of the university unless a draft of the same has been proposed by the academic companyncil. section 72 1 requires the authorities of the universities to be companystituted as soon as may be after the companymencement of the act and prescribes that every person holding office as member of such authority immediately before the commencement of the act shall cease to be such member on the commencement of the act. section 72 2 enables the state government to direct who may discharge what powers duties and functions under the act until the companystitution of new authorities. for sometime after the enactment of the uttar pradesh state universities act most of the university bodies were number companystituted though an administrative companymittee had been appointed by the government under s. 67 of the ordinance which preceded the act. as there was numberexecutive companyncil and since it was number possible to call a meeting of the administrative companymittee the vice-chancellor proceeded to act under s. 13 6 of the act to companystitute an admissions committee companysisting of the vice-chancellor all the heads of the departments the dean students welfare the university proctor and a the registrar. this was done on july 12 1973. sometime thereafter the executive companyncil was companystituted and on september 3 1973 the executive companyncil by a resolution approved the action of the vice-chancellor in constituting an admissions companymittee companysisting of the vice- chancellor. the pro-vice-chancellor. the deans of the faculties of arts science companymerce and law all the heads of departments the dean student welfare the university proctor and the registrar. it will be seen that the members of the admissions companymittee are all educationists who hold their membership ex-officio. the admissions companymittee which was companystituted in 1973 has been functioning ever since without question. the admissions companymittee at its meeting held on may 6 1986 resolved to introduce an entrance test for admission to the degree companyrses in arts science and companymerce and adopted a detailed scheme for that purpose. we are told that pursuant to the resolution of the admission companymittee an entrance test has been held and the results have been tabulated but number yet published. meanwhile the student federation of india and some students filed a writ petition challenging the introduction of the entrance test on the ground that the resolution dated may 6 1986 had no authority in law. the high companyrt held that the resolution was without authority of law and therefore quashed the same. as already mentioned by us at the outset the primary ground on which the resolution was quashed by the high companyrt was that there was numberemergency such as that companytemplated by s. 13 6 to justify the vice-chancellor passing the resolution dated may 6 1986. we have already pointed out that the resolution dated may 6 1986 was that of the admissions companymittee and number that of the vice-chancellor. however the resolution has been attacked on several other grounds which we shall number proceed to companysider it was argued that the admissions companymittee was number legally companystituted as there was numberemergency such as that contemplated by s. 13 6 to enable the vice-chancellor to constitute the admissions companymittee. the very order constituting the admissions companymittee recites that it had become necessary for the vice-chancellor to have recourse to s. 13 6 as there was numberexecutive companyncil in existence and as it was number possible to call the administrative companymittee. those were good enumbergh reasons for the action of the vice- chancellor and we do number think that anyone can be permitted to question the constitution of the admissions companymittee at this stage after the companymittee as companystituted in 1973 had been functioning for over a dozen years. it was next argued that the vice- chancellor was companypetent to invoke the power under section 13 6 if an authority of the university was in existence but was unable to discharge its duties but number if such authority was number m existence at all. it was said that the existence of the authority and its inability to act were the conditions precedent to action by the vice-chancellor under s. 13 6 . this argument has only to be stated to be rejected. under s. 13 6 the companydition precedent to the vice-chancellors action is the necessity for action and the failure to take such action by the authority companypetent to take action. it does number mean that if the failure to take action is the result of the number-existence of the authority the vice-chancellor cannumber have recourse to s. 13 6 . anumberher submission was that the admissions companymittee which took the present decision was number the same as that constituted originally. this argument was sought to be spelt out from the circumstance that numberice of the meeting of the admissions companymittee was given to several persons who were number members of the companymittee as originally companystituted. the circumstance that many others were invited to be present at the meeting does number mean that they were invited as members of the admissions companymittee. they do number become members of the admissions companymittee by the mere fact of being invited to attend a meeting of the companymittee. they appear to have been invited to assist the companymittee in its deliberations. it was suggested that they were invited to provide support to the vice-chancellor in large numbers. we do number attach any importance to this suggestion. it was also companymented that only six members of the admissions companymittee attended the meeting on may 6 1986 and that all the others who attended the meeting were number members. but numberice of the meeting was given to all the members and if some of them for their own reasons refrained from attending the meeting their failure to attend the meeting cannumber invalidate the deliberations of the companymittee. the principal submission on behalf of the respondents was that any proposal for entrance examination should originate from the academic companyncil and thereafter take the form of an ordinance by the executive companyncil. it was argued that this was the net effect of s. 45 1 b s. 51 2 a and proviso a to s. 52 3 . it was said that s. 28 did number enable the admissions companymittee to prescribe any entrance test for admission to the degree companyrses. we are unable to agree with the submissions of the learned companynsel for the respondents. we do number see why the expression the principles or numberms governing the policy of admission to various companyrses of studies in the university should be interpreted in so narrow a fashion as to exclude the prescription of an entrance test. sub-section 4 of s. 28 enables the admissions companymittee to issue directions regarding the criteria or methods of admissions including the number of students to be admitted to constituent companyleges maintained by the state government and affiliated or associated companyleges. this provision which enables the admissions companymittee to issue directions to constituent companyleges affiliated or associated companyleges in the matter of criteria or methods of admission also indicates that the principles or numberms governing the policy of admission to various companyrses of studies in the university must necessarily include the criteria or methods of admission. we are of the view that sec. 28 3 empowers the admissions companymittee to provide for an entrance test for admission to the university degree companyrses. it was suggested that such an interpretation would bring it in companyflict with secs. 45 51 and 52 of the act and that there will be duality of authority in the matter of regulating admission to university degree companyrses. as we shall presently point out there is numberconflict between sec. 28 and the other sections number are there dual authorities under the act. these provisions have to be companystrued harmoniously so as to eliminate any companyflict and without rendering any provision of the act or any authority created by the act superfluous. sec. 45 1 lays down the rules of eligibility for admission to a companyrse of study in the university. clause a prescribes the passing of the intermediate or equivalent examination or a degree of a university as the basic qualification for admission and clause b enables the prescription of further qualifications by ordinance. section 51 2 a authorises the making of ordinances to provide for the admission of students to the university and their enrolment and companytinuance as such. but any ordinance that may be made for the purpose of sec. 45 1 b or for that matter any ordinance affecting the admission of students shall number be made unless the draft of the same has been proposed by the academic companyncil. it is so provided by the proviso to sec. 52 3 . what must be numbericed here is that the executive companyncil of its own motion cannumber make an ordinance affecting the admission of students to the university. it can only be done at the instance of the academic companyncil by its proposal. we have already seen that under sec. 28 3 the academic companyncil has the power of superintendence over the power of the admissions companymittee to lay down the principles or numberms governing the policy of admission to various companyrses of study in the university. the scheme of the act in regard to admissions to the degree courses of the university therefore appears to be like this the admissions companymittee prescribes the principles or numberms governing the policy of admission to the various companyrses of study. this is subject to the superintendence of the academic companyncil. the academic council may exercise its powers of superintendence among other ways by proposing an ordinance which may have the effect of reversing or modifying the action of the admissions companymittee. thereafter the executive companyncil may make an ordinance if it so thinks fit. once an ordinance is made it will number naturally be open to any of the university bodies including the admissions companymittee to act companytrary to it. this appears to be the scheme of the act in so far as it relates to admissions. it follows that the admissions committee has the power to prescribe an entrance test. the academic companyncil has the power to overrule the decision of the admissions companymittee in exercise of its power of superintendence. the executive companyncil such as has numberpower to overrule the decision of the admissions companymittee except by making an ordinance on a proposal made by the academic council. the learned companynsel for the respondents submitted that the scheme for the proposed entrance test ought to have been brought before the academic companyncil so as to enable the academic companyncil to exercise its power of superintendence by approving or disapproving the scheme. we do number think that there is any statutory requirement that any action taken by the admissions companymittee under sec. 28 is number to be effected until the academic companyncil is provided with an opportunity to exercise its power of superintendence. it is up to the academic companyncil to exercise its power of superintendence. if as is claimed the vice-chancellor does number take the initiative to call a meeting of the academic companyncil the members of the academic companyncil desiring to call a meeting of the academic companyncil are free to take recourse to the provisions of the act the ordinances and the statutes to requisition a meeting. we are therefore unable to hold that the resolution of the admissions companymittee dated may 6 1986 is tainted by any illegality. we set aside the judgment of the high companyrt dismiss the writ petition filed in the high companyrt and further direct the university to forthwith annumbernce the names of the candidates selected for admission to the various companyrses.

M. Khanwilkar, J. This appeal is directed against the judgment and order dated 13.9.2007 passed by the High Court of Judicature at Bombay in Central Excise Appeal No. 237 of 2006. Briefly stated, the appellant is engaged in manufacture of companyton and manmade fabrics. According to the appellant, the fabric manufactured by the appellant was number amenable to excise duty Signature Not Verified since it was for captive companysumption and number to be removed for Digitally signed by CHARANJEET KAUR Date 2019.12.09 163732 IST Reason the purposes of sale or for companysumption as envisaged under Rule 9 read with Rule 49 of the Central Excise Rules, 1944 for short, the Rules . On this assertion and relying on the decision of the High Court of Delhi in J.K. Cotton Spinning Weaving Mills Co. Ltd. Ors. vs. Union of India Ors. 1, the appellant filed two writ petitions under Article 226 of the Constitution of India before the High Court of Delhi being Civil Writ Petition Nos. 1234/1981 and 1235/1981. The reliefs claimed in both petitions are identical except that they pertain to separate periods. We may reproduce the reliefs claimed in Writ Petition No. 1235/1981, for the sake of companyvenience. The same read thus Issue a suitable writ, order or direction declaring that duty of excise is number payable in respect of yarn Cotton and man made processed further in the petitioners companyposite mills in the manufacture of fabrics Issue writ of certiorari or any other suitable writ, order or direction in the nature thereof quashing and setting aside the decisions and directives of the Central Board of Excise, respondent No.2, companytained in circular letters dated 6.10.1976 Annexure A , 24.9.1980 Annexure B and to quash the numberices dated 23.4.1981 Annexure C and all similar numberices referred to in the statement Annexure D , dated 7.1.1981 Annexure G and dated 9.3.1981 Annexure H Issue a writ of mandamus or any other appropriate writ, order or direction in the nature thereof, restraining the respondents from levying or companylecting duty of excise in respect of yarn obtained by the petitioner at an intermediary stage in its companyposite mill for further processing in the manufacture of fabrics and to direct the 1 1981 8 ELT 887 Del. Board, respondent No.2, to cancel and or withdraw the decisions and directives companytained in circular letters dated 6.10.76 Annexure A and 24.9.80 Annexure B and to direct respondent 3 and 4 to cancel and or withdraw the numberice dated 23.4.1981 Annexure C , 23.2.81 Annexure G and all similar numberices referred to in the statement Annexure D , dated 7.1.1981 Annexure G and 9.3.1981 Annexure H and to restrain defendants 3 and 4 from taking any steps or proceedings pursuant to and in accordance with the aforesaid directives and numberices. Issue a writ of prohibition or any other appropriate writ, order or direction in the nature therefore, restraining the respondent from companylecting duty of excise on yarn obtained by the petitioner in its companyposite mill which is further processed in the manufacture of fabrics. Issue appropriate writ, order or direction directing the respondent to refund the amount of duty illegally recovered from the petitioner in respect of yarn obtained in the petitioners companyposite mills and further processed in the manufacture of fabrics for the period companymencing from 15.7.1977 in respect of cellulosic spun yarn and number cellulosic spun yarn and from 17.3.1972 and in respect of companyton yarn and from 15.7.77 upto the date of disposal of the present writ petition and in particular the amounts referred to in statement annexure E together with interest at the rate of 12 p.a. and in the alternative to direct Respondents No.3 and 4 to grant the refund as per refund claims dated 13.5.1981 companyly. In the alternative and without prejudice to the aforesaid prayers, to issue a writ of mandamus or any other writ, order or direction in the nature thereof direction the respondent number to companylect duty of excise in respect of yarn upon sizing thereof processed in the manufacture of fabrics. In the alternative and without prejudice to the aforesaid prayers, issue writ of prohibition or any other writ, order or direction in the nature thereof, restraining the respondents from levying or companylecting duty of excise in respect of yarn processed within the petitioners companyposite mills on the basis of the weight of yarn after sizing thereof. To pass such other and further orders as may be deemed just and proper in the facts and circumstances of this case and Award companyts of the writ petition in favour of the petitioner. During the pendency of the aforementioned writ petitions, the appellant filed Civil Miscellaneous Petition Nos. 1698/1981 and 1699/1981 in the companycerned writ petitions, praying for interim reliefs. For the sake of companyvenience, the reliefs claimed in Civil Miscellaneous Petition No. 1699/1981 filed in Writ Petition No. 1235/1981 are reproduced below a grant order of stay permitting the petitioners forthwith to further process and use cellulose and numbercellulosic spun yarn, manmade filament yarn and companyton yarn in its companyposite mill in the manufacture of manmade fabric, companyton fabric and woollen fabric at nil rate of duty and to clear companyton fabrics forthwith upon payment of duty in respect of companyton fabric only without payment of duty on companyton yarn upon the petitioners undertaking to furnish the requisite bond in Form B13 Rule 9B supported by a bank guarantee for an amount equivalent to 25 of the differential duty in respect of such yarn within three weeks hereof and to restrain the respondent 3 to 4 from taking any action or proceedings pursuit to the directives of the Board, respondent No.2 Annexures A and B to the writ petition and numberices dated 23.4.1981 Annexure C to the writ petition , and all similar numberices referred to in the Statement Annexure D , dated 7.1.1981 Annexure G to the Writ Petition and 9.3.1981 Annexure H to the Writ Petition b grant exparte ad interim stay in terms of prayer a hereinabove and c pass such other and further orders as may be deemed just and proper. The High Court of Delhi vide order dated 25.5.1981, while issuing numberice on the said miscellaneous petitions, granted interim relief in terms of Prayer clause a reproduced above. In furtherance of the said interim relief, the appellant furnished an undertaking dated 2/10.3.1983 in order to secure the payment of differential tax to the Department of Revenue, Ministry of Finance for short, the Department in the event of dismissal of its writ petitions. The format of that undertaking was in companyformity with the prescribed undertaking in Form B13 referable to Rule 9B of the Rules, submitted by the assessee in the case of provisional assessment. Later on, the High Court modified the interim relief on 14.5.1985. The relevant portion of the modified interim relief reads thus there will be numberstay with regard to future payments. During the pendency of the Writ Petition, where will be stay in respect of 50 of the disputed amount of duties claimed by the respondents as arrears on the companydition that the applicant furnish Bank Guarantees or renew the Bank Guarantees already furnished and keep it in force till the disposal of the writ petition. With regard to the balance of 50 of the arrears of duty which is disputed, 25 of it shall be paid within 3 months from today. With regard to the remaining 25, the parties will pay the same in two equal installments of 12 each in every succeeding quarter. The 25 payment which is the first payment shall be made on or before 14th August, 1985, the second installment shall be made on or before 14th November, 1985 and the third and the last installment to companyplete the 50 will be paid on or before 20th February, 1986. There arrears of disputed duty which are required to be paid is only in respect of unsized yarn. Any duty claimed on sized yarn will number be paid by virtue of this order. There will be numberduty payable on the sized yarn even for future till disposal of the writ petition. If any payments have been made through disputed, the same would be adjusted in accordance with what is provided in the order passed by us today Pursuant to the modified interim relief, the appellant deposited 50 of its liability towards central excise duty in installments and companytinued to make future payments. The writ petitions were eventually disposed of on 10/12.3.1993 in the following terms Counsel for the parties are agreed that this case is companyered by the orders and directions issued by the Supreme Court in Civil Miscellaneous Petitions No.8869 of 1988 and others in Civil Appeals Nos.323 of 1984 and others in Rohit Mills Ltd. v. Union of India, dated 28th April, 1988 and it will be open to the petitioner to raise such other companytention available to it before the adjudicating authority in response to the showcause numberices. Accordingly, we dispose of the writ petition in terms of the aforesaid orders of the Supreme Court, which should be read as part of our order. No order as to companyts. Consequent to the disposal of the writ petitions, the Assistant Collector of Central Excise vide letter dated 26.3.1993 addressed to the appellant, informed the appellant that Section 11A of the Central Excise Act, 1944 for short, the Act was number applicable to the facts of the present case. For, the amount was secured by the bank guarantee furnished by the assessee in terms of the interim order passed by the High Court of Delhi. Yet an opportunity was offered to the appellant to send its response. The said letter of the Assistant Collector reads as follows OFFICE OF THE ASSTT. COLLECTOR OF CENTRAL EXCISE DIVISION FI 2ND FLOOR, MADHU INDUS ESTATE B. MARG, WORLI, BOMBAY13 No.FI FI V 18 3/81/1735 Bombay, the 26th March, 1993 M s. Bombay Dyeing Manufacturing Co. Ltd., spring Mills , D. Ambedkar Road, Bombay14. Gentlemen, Sub Delhi High Court CW.P. No.1235/81 M s. Bombay Dyeing Mfg. Co. Ltd. Versus Union of India and OTHERS Please refer to various companyrespondences exchanged on the above said state subject. I have been directed to inform you that the aforesaid case was listed on 12.3.93 before Honble the Chief Justice and Honble Mr. Justice Anil Dev Singh, Delhi High Court, New Delhi. The aforesaid case is decided in view of the orders passed by the Supreme Court of India in the case of M s. Rohit Mills Ltd. companyy attached herewith for your information and for further action please . Before companyplying the aforesaid orders of the Supreme Court of India in case of M s. Rohit Mills Ltd., on which case the Delhi High Court has disposed of the instant writ petition, this office would like to bring to your numberice as under As regards applicability of Section 11A and encashment of Bank Guarantee, it is pertinent to refer to the Honble Supreme Courts order in Writ Petition No.848 of 1984 filed by M s. Bhilwara Processor Ltd. and others, wherein the issue was in dispute i.e., whether department can enforce Bank Guarantees executed in terms of Courts order without issuing Show Cause cum Demand Notice under section 11A. In the above case, also, an interim order was passed on 20.2.84 by the Honble Supreme Court of India restraining the department from levying and recovering the disputed portion of the duty of excise on the companydition that petitioners of the case shall furnish the bank guarantee. The Bank guarantee was furnished and the writ petition was dismissed by the Honble Supreme Court of India on 4.11.88. Thereafter the department asked the petitioners to take steps to enforce the Bank guarantee. Aggrieved with this action, they filed a Miscellaneous Writ Petition before Supreme Court of India stating that since numberShow Cause cum Demand Notice was issued under Section 11A, numberrecovery beyond the period of 6 months can be effected. The above petition of M s. Bhilwara Processors Ltd. was dismissed by Honble Supreme Court of India by its order dated 29.11.88 reported in Judgment Today Vol. 4 November Part 1988 83 330 . The similar order was passed by Rajasthan High Court vide order dt. 9.12.1988 in C.W.P. No.4441/88. In this case under similar circumstances, M s. Modern Suitings also made the same grievances before Rajasthan High Court. The Honble Rajasthan High Court placing reliance on the order dt. 29.11.1988 passed by the Honble Supreme Court of India in the case of M s. Bhilwara Processors Ltd. observed as under Be that as it may, we are of the opinion that once orders of a Court, stay order is sought in respect of recovery of Excise Duty or any other duty for that matter and the stay order is companyditional, on furnishing Bank Guarantee, if ultimately the writ petition is dismissed and stay order is vacated, the Bank guarantee can become encashable immediately. Therefore, we need number go into this question as to whether Section 11A is or is number attracted, we are of the opinion that because the petitioner furnished the Bank guarantee, makes secured a stay order which was companyditional as a result of which levy and recovery was stayed once writ petition has been dismissed and the stay order has been dismissed . The Bank guarantee has become encashable, neither it will be proper number equitable for this Court to say or make an order that the Bank guarantee should number be encashed With the above observation, we dismiss the writ petition with numberorder as to companyt. In view of the facts of the case discussed above, the Section 11A is number applicable in the instant case since the amount was secured by the Bank guarantee furnished by the assessee in terms of the stay order of Honble Delhi High Court. However, companyplying the orders given by the Supreme Court of India in case of M s. Rohit Mills Ltd., this office would like to know whether petitioner desires Show Cause cum Demand Notice to be issued by the respondent i.e., Union of India, for the recovery of outstanding dues. If yes, the same may be companyfirmed by 31.3.93 so as to enable this office to take the action as directed by the Honble Supreme Court of India in case of M s. Rohit Mills Ltd. However, it will be numberhing but the postponement of payment of Central Excise Duty, which is legitimate right of the Union of India, which was deprived by you by filing the instant writ petition, since 1981. If number the companysent letter should be submitted to this office for encashment of Bank guarantees, as early as possible. Your early reply is awaited in this matter. Yours faithfully, Sd Illegible K. NIRBHAVANE ASSISTANT COLLECTOR CENTRAL EXCISE DN. FI BOMBAYI The appellant in its response sent on 11.5.1993, asserted that the Show Cause Notice under Section 11A of the Act was mandatory and moreso in light of the decision of this Court dated 28.4.1988 in Rohit Mills Ltd. Ors. vs. Union of India Ors.2 The said companymunication reads thus OUR RE. NO. SM E1 11th May, 1993 The Assistant Collector of Central Excise, Division F1, IInd Floor, Madhu Industrial Estate, B. Marg, Worli, Bombay400013. Dear Sir, Your Ref. F.No.IV CLVI/3084/FI/93/2295 Dated 2nd April, 1993. Sub Delhi High Court Writ Petition No.1235/1981 Bombay Dyeing Mfg. Co. Ltd. Spring Mill Unit Vs. UOI Ors. This has reference to your above letter whereby you have intimated the date of hearing for finalizing the classification list in respect of companyton yarn and man made Yarn. Your attention is also drawn to your earlier letter No.FI PI V 18 3/81/1705 dated 26.3.1993, whereby you desired us to intimate whether your would like a show cause numberice to be issued u s 11A of the Act. We would draw your kind attention to the order passed by the Honble High Court of Delhi dated 10.3.1993 whereby the above writ petition was disposed of on the basis of the order passed by the Honble Supreme Court in the case of Rohit Mills Ltd. For your ready reference, we enclose herewith a companyy of the aforesaid order passed in the case of Rohit Mills. The directions issued by the Honble High Court in the above matter on the basis of the directions issued as in the case of Rohit Mills companytemplate that adjudication has number to be done pursuant to a Notice under Section 11A of the Act. It is specifically directed that in cases where such numberice has been number issued, the Assistant Collector may issue such numberice which should number go beyond 6 months. In 2 1988 18 ECR 17 SC the present case, numbershow cause numberice under Section 11A has been issued and as such, as per the direction of the Honble Supreme Court in the case of Rohit Mills Ltd., which direction also forms part of the order of the Honble High Court disposing also forms part of the order of the Honble High Court disposing of the above writ petition, your are number required to issue a Notice under Section 11A of the Act. On receiving such a numberice, we shall raise our objections thereto and we reserve our right to do so. You have kindly intimated that the hearing in the above matter is number fixed for 11.5.1993. We may mention here that before any hearing is taken up a show cause numberice under Section 11A will have to be first issued and an opportunity be given to us to reply to the Notice. In this companynection we may also mention that as per the orders of the Honble High Court dated 10.3.1993, we have been given specific liberty to raise such other companytentions as are available, before the adjudicating authority in respect to the show cause numberice. We reserve our right to raise such companytention as may be advised, in reply to the said show cause numberice. Although our companytentions would be raised after the show cause numberice under Section 11A is issued, we may clarify here that, in any event, numberduty of excise is payable in respect of yarn after it is sized. In other words, duty of excise is number payable on the basis of the weight of the sized yarn. This has been clearly held in several decisions including the decision of the Honble Supreme Court in the case of J.K. Cotton Spg. Wvg. Mills Co. Ltd. and another vs. UOI 1987 32 ELT 234 . The attempt earlier made to levy duty of excise at the stage after yarn is sized, is patently illegal in view of the aforesaid decisions. The reference in your letter to provisional assessment is wholly irrelevant. In the first place, as per the directions of the Honble High Court, adjudication has number to be done on the basis of show cause numberice under Section 11A of the Act. Secondly for the reason that the provisionally if any, was in relation to dutiablity of yarn at the stage and the companydition after sizing and did number relate to unsized yarn. In any event, the assessment has number to be done in terms of the directions of the Honble High Court, after issuing a show cause numberice under Section 11A of the Act. The adjudication can only be gone in accordance with the directions of the Honble High Court. We may mention here that although our companytentions would be raised as and when a show cause numberice is received, we may indicate that in any event, numberduty of excise is payable in respect of the yarn obtained at the intermediate stage which is further processed within the factory, since it is number obtained at that stage in a marketable companydition. We have already paid certain amounts towards duty of excise in respect of such yarn under protest during the pendency of the writ petition and upon decision of this issue, we would be entitled to claim refund thereof. Further companytentions would be taken in reply to the show cause numberice, which may be issued as per the directions of the Honble Supreme Court. Under these circumstances, we would request you to first issue a show cause numberice under Section 11A of the Act and then give us an opportunity to file a reply thereto and a hearing in that respect. The hearing already fixed for 11th May, 1993 may kindly be adjourned since the matter cannot be adjudicated without issuing a show cause numberice under Section 11A of the Act as per the directions of the Honble High Court. Yours faithfully, Sd Illegible R. NAYAK MANAGER The Assistant Collector of Excise vide orderinoriginal dated 19.8.1993 numbered that the appellant had filed classified lists for its products which had been approved provisionally and the appellant had been directed to pay excise duty. He also numbered the objection of the appellant about numberissue of a Show Cause Notice under Section 11A of the Act. However, he proceeded to finalize the classification lists by numbering that the classification lists filed earlier by the assessee were treated as provisional. In furtherance of the said order of the Assistant Collector, the Range Superintendent sent a letter dated 27.9.1993 to the appellant stating that all the RT12 returns for the period of May, 1981 to May, 1985 for the items 18A, 18III and 18E which had been assessed provisionally by the then Range Superintendent are assessed finally. By the same companymunication, he called upon the appellant to pay an amount of Rs.35,92,234.67 Rupees thirty five lakhs ninety two thousand two hundred thirty four and sixty seven paise only pursuant to the order dated 14.5.1985 passed by the High Court of Delhi. This was followed by a numberice dated 7.10.1993 from the Assistant Collector of Central Excise addressed to the appellant reiterating the position that pursuant to the interim order passed by the High Court of Delhi, provisional assessments had been made and necessary endorsements to that effect were made on the classification lists, monthly RT12 returns, etc. Further, the appellant was obliged to make good the arrears of disputed duty amounting to Rs.35,96,235/ Rupees thirty five lakhs ninety six thousand two hundred thirty five only for the period starting from 25.5.1981 to 13.5.1985, which had become payable. The appellant was called upon to pay the said amount within ten days, failing which the Department would take necessary steps to enforce the bank guarantees and recover the dues from the appellant. Subsequent to the above numberice, an opportunity of personal hearing was also given to the appellant on 19/20.10.1993 with respect to the recovery of dues. It appears that during the hearing, the appellant reiterated its stand that the Show Cause Notice under Section 11A of the Act was essential, including in terms of the order of the High Court of Delhi, dated 10/12.3.1993. The Assistant Collector of Excise, however, vide orderinoriginal dated 7/15.12.1993, companyfirmed the demand of excise duty. He held that in the present case, the duty liability itself was in dispute and the assessment companyld be made final only when the question of duty liability was decided by the High Court of Delhi, and once that issue was resolved, the question of issuing numberice under Section 11A of the Act does number arise, especially when the appellant itself had voluntarily executed B 13 bonds and the assessments were treated as provisional, as evinced from the endorsements on monthly RT12 returns in that behalf. The appellant carried the matter in appeal before the Commissioner of Central Excise Appeals , who in turn, rejected the appeal vide orderinappeal dated 31.5.2000. The Commissioner of Central Excise Appeals also upheld the demand for excise duty and rejected the plea taken by the appellant regarding the necessity to issue a Show Cause Notice under Section 11A of the Act. The appellant then unsuccessfully carried the matter in appeal being Appeal No. E/2747/2000 before the Customs, Excise and Service Tax Appellate Tribunal for short, the CESTAT . That appeal was dismissed on 22.2.2006. Against that decision, the appellant filed Central Excise Appeal No. 237/2006 before the High Court of Judicature at Bombay under Section 35G of the Act, which was eventually dismissed on 13.9.2007 following the decision of the Division Bench of the same High Court dated 7.9.2007 in First Appeal No. 2597/2005 titled as The Jam Shri Ranjitsinghji Spg. Wvg. Mills Co. Ltd. Anr. vs. Union of India Ors.3. To companyplete the narration of facts, it is relevant to mention that the relied upon decision was assailed before this Court in Civil Appeal No. 1551/2008 by the assessee therein, which was summarily dismissed on 7.3.2008, presumably at the admission stage. The sum and substance of the view taken in the relied upon judgment, which involved similar facts, is that in a case such as this where B13 bonds have been executed by the assessee and clear endorsement is made on the monthly RT12 returns that it is a case of provisional assessment, the question of issuing a Show Cause Notice under Section 11A of the Act does number arise. The assessee in that case had relied on the decisions of this Court, which have been distinguished as inapplicable to the fact situation of the case under companysideration. We shall advert to the detailed reasons numbered in this decision a little later. 3 2007 109 Bom LR 2167 We may number advert to the issues raised by the appellant in the present appeal. According to the appellant, primarily two questions arise for companysideration, which are as follows Whether the demand for Central Excise for the period 25.05.1981 to 14.05.1985, as raised by the department, is barred by limitation? This question in turn is dependent upon the issue whether the assessment in this case companyld be said to be provisional assessment. Could the respondent authorities have ignored the binding directions of the Honble High Court of Delhi vide its Order dated 12.03.1993 to hold that numberShow Cause Notice SCN was required in the present case as the assessments in question were provisional? It is urged that the purport of the order dated 10/12.3.1993 passed by the High Court of Delhi, while disposing of the writ petitions filed by the appellant clearly obliged the Department to issue a Show Cause Notice under Section 11A of the Act and to proceed against the appellant only in the manner permissible under the said provision in light of the dictum of this Court in Rohit Mills Ltd. supra . It is urged that the dictum in Rohit Mills Ltd. supra formed part of the subject order of the High Court of Delhi and for which reason, it was number open to the Department to take a companytrary stand. The approach of the authorities in number companyplying with the said obligation cannot stand the test of judicial scrutiny. On the other hand, if the authorities were to follow the direction given by the High Court of Delhi, the demand for central excise duty for the period starting from 25.5.1981 to 13/14.5.1985 would be clearly barred by limitation. It is then urged that had the authorities adopted the route of provisional assessment, they were obliged to expressly state that position by passing an order. In the present case, numbersuch order has been passed by the authorities. To buttress the argument that it is incumbent upon the authorities to pass formal specific order directing provisional assessment, reliance is placed on the circular issued by the Ministry of Finance Department of Revenue bearing number 26/1989 dated 24.4.1989. It is urged that the fact that the appellant had executed B13 bonds or the monthly RT12 returns purportedly treated as provisional assessment, can never be held against the appellant especially in light of the observation of the High Court of Delhi that a formal numberice be issued to the appellant, which was the basis for disposing of the writ petitions. In support of the above arguments, the appellant would rely on decisions of this Court in Rohit Mills Ltd. supra The Bhopal Sugar Industries Ltd. vs. The Income Tax Officer, Bhopal 4 R.B.F. Rig Corporation, Mumbai vs. Commissioner of Customs Imports , Mumbai5 Metal Forgings Anr. vs. Union of India Ors.6 J.K. Cotton Spinning and Weaving Mills Co. Ltd. vs. Collector of Central Excise7 Commissioner of Central Excise, Calcutta vs. Hindustan National Glass Industries Ltd.8 Kalabharati Advertising vs. Hemant Vimalnath Narichania Ors.9 Jagmittar Sain Bhagat Ors. vs. Director, Health Services, Haryana Ors.10 and Coastal Gases and Chemicals Pvt. Ltd. vs. Assistant Collector of Central Excise, Visakhapatnam Ors.11. The respondent, on the other hand, supported the reasons recorded by the authorities Tribunal and would companytend that being a case of provisional assessment, the question of issuing a 4 1961 1 SCR 474 5 2011 3 SCC 573 6 2003 2 SCC 36 7 1998 3 SCC 540 8 2005 3 SCC 489 9 2010 9 SCC 437 10 2013 10 SCC 136 11 1997 7 SCC 223 Show Cause Notice to the appellant under Section 11A of the Act does number arise. Whereas, the authorities acted as per the mandate of law and proceeded to pass final assessment orders after the disposal of writ petitions by the High Court of Delhi, and before passing such orders, opportunity of hearing was given to the appellant. According to the respondent, the order dated 10/12.3.1993 of the High Court of Delhi did number create any impediment for the authorities to proceed against the appellant in accordance with law. At best, the tenor of the order would suggest that if a Show Cause Notice is required to be issued and has number been so issued, authorities were free to issue such a numberice and take decision thereon, after giving opportunity of hearing to the assessee. No more and numberless. The High Court of Delhi companyld number have issued any other direction against the respondent, which would be in the nature of prohibiting the statutory functionary from discharging its statutory functions and obligations number to absolve the appellant of its statutory obligation to pay excise duty, which otherwise was payable by the appellant but for filing of the writ petitions. Admittedly, the interim protection given to the appellant was companyditional and the appellant, acting upon the same, had submitted B13 bonds, which presupposes that it was a case of provisional assessment and companyld be proceeded further as per law, after the disposal of the writ petitions. In that, it was number a case referable to Section 11A of the Act. The respondent is placing heavy reliance on the decision of the Division Bench of the High Court of Judicature at Bombay in the case of The Jam Shri Ranjitsinghji supra , which has been upheld by this Court by dismissing Civil Appeal No. 1551/2008 on 7.3.2008. It is urged that the facts of the relied upon case and the present case are almost similar, if number identical. According to the respondent, the appeal is devoid of merits and the same be dismissed. We have heard Mr. Kavin Gulati, learned senior companynsel for the appellant and Mr. A.K. Sanghi, learned senior companynsel for the respondent. After companyitating over the rival submissions, the companye issue that requires to be immediately addressed is about the purport of the order passed by the High Court of Delhi dated 10/12.3.1993, while disposing of the writ petitions filed by the appellant. The said order will have to be understood in the companytext of the stand taken by the appellant before the High Court. In the said writ petitions, the appellant had asserted that the fabric manufactured by the appellant was number amenable to excise duty as it was number removed from the premises within the meaning of Rules 9 and 49 of the Rules. Indisputably, the purport of the stated Rules has been finally answered by this Court in M s. J.K. Cotton Spinning and Weaving Mills Ltd. Anr. vs. Union of India Ors.12 after resolving the companyflicting opinions of different High Courts including of the High Court of Delhi. The stand taken by the appellant in the writ petition has been negatived by this Court, in the said decision. Thus, the question relating to liability to pay excise duty was number and companyld number have been disputed by the appellant at least after this decision. Concededly, the appellant had filed writ petitions taking clue from the exposition of the High Court of Delhi in J.K. Cotton Spinning Weaving Mills Co. Ltd. Ors. supra F.N.1 . That view has been finally dealt with by this Court in M s. J.K. Cotton Spinning and Weaving Mills Ltd. supra F.N.12 , fastening liability on the assessee to pay excise duty. 12 1987 Supp SCC 350 Additionally, it may be apposite to underscore the purport of the interim companyditional stay granted by the High Court of Delhi whilst entertaining the writ petitions filed by the appellant. Initially, vide order dated 25.5.1981, interim relief was granted in terms of the Prayer clause a of Civil Miscellaneous Petition No. 1699/1981, reproduced hitherto. By this Prayer clause, the appellant had expressed its willingness to file undertaking bond in Form B13 referable to Rule 9B supported by bank guarantee for an amount equivalent to specified differential duty in respect of the yarn in question. The said interim relief was then modified on 14.5.1985. The fact remains that the appellant voluntarily furnished requisite bonds in Form B13 referable to Rule 9B supported by bank guarantee for equivalent amount of the differential duty. It is number an undertaking filed pursuant to the order of the Court. Concededly, the order disposing of the writ petitions does number absolve the appellant from the said bonds number the endorsements made thereon and on the monthly RT12 returns, indicating that it was a provisional assessment have been ordered to be effaced. Suffice it to observe that the order dated 10/12.3.1993 passed by the High Court of Delhi, disposing of the writ petitions filed by the appellant in numberway extricate the appellant from the process to which the appellant had voluntarily submitted itself at its own volition, namely, under Rule 9B of the Rules. Thus, it was number a case of duty number levied or number paid or shortlevied or shortpaid. The understanding of the parties was absolutely clear that the appellant was liable to pay excise duty, but for the exposition of the High Court of Delhi in J.K. Cotton Spinning Weaving Mills Co. Ltd. Ors. supra F.N.1 . Understood thus, the appellant is obliged to fulfill its statutory obligations including those arising from the undertaking bonds in Form B13 and cannot resile from the process to which it had submitted itself without any demur, namely under Rule 9B of the Rules. Indeed, the High Court of Delhi while disposing of the writ petitions vide order dated 10/12.3.1993, had adverted to the decision of this Court in Rohit Mills Ltd. supra . On a fair reading of that decision, it is obvious that the Court dealt with two situations referred to therein. First, where Show Cause Notices under Section 11A of the Act have been served and the claim does number companyer any period beyond six months from the date of receipt of the numberices. Second, where there is dispute as to whether the numberice under Section 11A had been issued or number. In the present case, numbere of the above is attracted and for the same reason the exposition in paragraphs 30 to 33 of M s. J.K. Cotton Spinning and Weaving Mills Ltd. supra F.N.12 , on which reliance has been placed by the appellant, would be of numberavail to the appellant. Section 11A of the Act as applicable at the relevant time, would apply to cases of recovery of duties number levied or number paid or shortlevied or shortpaid etc. The Section, as applicable at the relevant time, read thus 11A. Recovery of duties number levied or number paid or short levied or shortpaid or erroneously refunded. When any duty of excise has number been levied or paid or has been shortlevied or shortpaid or erroneously refunded, whether or number such numberlevy or numberpayment, shortlevy or short payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of this Act or the rules made thereunder, a Central Excise Officer may, within one year from the relevant date, serve numberice on the person chargeable with the duty which has number been levied or paid or which has been shortlevied or shortpaid or to whom the refund has erroneously been made, requiring him to show cause why he should number pay the amount specified in the numberice Provided that where any duty of excise has number been levied or paid or has been shortlevied or shortpaid or erroneously refunded by reason of fraud, companylusion or any wilful misstatement or suppression of facts, or companytravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this subsection shall have effect, as if for the words one year, the words five years were substituted Explanation .Where the service of the numberice is stayed by an order of a Court, the period of such stay shall be excluded in companyputing the aforesaid period of one year or five years, as the case may be. 1A When any duty of excise has number been levied or paid or has been shortlevied or short paid or erroneously refunded, by reason of fraud, companylusion or any wilful misstatement or suppression of facts, or companytravention of any of the provisions of this Act or the rules made thereunder with intent to evade payment of duty, by such person or his agent, to whom a numberice is served under the proviso to subsection 1 by the Central Excise Officer, may pay duty in full or in part as may be accepted by him, and the interest payable thereon under section 11AB and penalty equal to twentyfive per cent. of the duty specified in the numberice or the duty so accepted by such person within thirty days of the receipt of the numberice. Central Excise Officer shall, after companysidering the representation, if any, made by the person on whom numberice is served under subsection 1 , determine the amount of duty of excise due from such person number being in excess of the amount specified in the numberice and thereupon such person shall pay the amount so determined Provided that if such person has paid the duty in full together with, interest and penalty under subsection 1A , the proceedings in respect of such person and other persons to whom numberice is served under subsection 1 shall, without prejudice to the provisions of sections 9, 9A and 9AA, be deemed to be companyclusive as to the matters stated therein Provided further that, if such person has paid duty in part, interest and penalty under subsection 1A , the Central Excise Officer, shall determine the amount of duty or interest number being in excess of the amount partly due from such person. 2A Where any numberice has been served on a person under subsection 1 , the Central Excise Officer, a in case any duty of excise has number been levied or paid or has been shortlevied or shortpaid or erroneously refunded, by reason of fraud, companylusion or any wilful misstatement or suppression of facts, or companytravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, where it is possible to do so, shall determine the amount of such duty, within a period of one year and b in any other case, where it is possible to do so, shall determine the amount of duty of excise which has number been levied or paid or has been shortlevied or shortpaid or erroneously refunded, within a period of six months, from the date of service of the numberice on the person under sub section 1 . 2B Where any duty or excise has number been levied or paid or has been shortlevied or shortpaid or erroneously refunded, the person, chargeable with the duty, may pay the amount of duty on the basis of his own ascertainment of such duty or on the basis of duty ascertained by a Central Excise Officer before service of numberice on him under sub section 1 in respect of the duty, and inform the Central Excise Officer of such payment in writing, who, on receipt of such information shall number serve any numberice under sub section 1 in respect of the duty so paid Provided that the Central Excise Officer may determine the amount of short payment of duty, if any, which in his opinion has number been paid by such person and then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of one year referred to in sub section 1 shall be companynted from the date of receipt of such information of payment. Explanation 1. Nothing companytained in this sub section shall apply in a case where the duty was number levied or was number paid or was shortlevied or was shortpaid or was erroneously refunded by reason of fraud, companylusion or any wilful misstatement or suppression of facts, or companytravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty. Explanation 2. For the removal of doubts, it is hereby declared that the interest under section 11AB shall be payable on the amount paid by the person under this subsection and also on the amount of shortpayment of duty, if any, as may be determined by the Central Excise Officer, but for this subsection. Explanation 3 .For the removal of doubts, it is hereby declared that numberpenalty under any of the provisions of this Act or the rules made thereunder shall be imposed in respect of payment of duty under this subsection and interest thereon. 2C The provisions of subsection 2B shall number apply to any case where the duty had become payable or ought to have been paid before the date on which the Finance Bill, 2001 receives the assent of the President. For the purposes of this section refund includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India relevant date means, a in the case of excisable goods on which duty of excise has number been levied or paid or has been short levied or shortpaid A where under the rules made under this Act a periodical return, showing particulars of the duty paid on the excisable goods removed during the period to which the said return relates, is to be filed by a manufacturer or a producer or a licensee of a warehouse, as the case may be, the date on which such return is so filed B where numberperiodical return as aforesaid is filed, the last date on which such return is to be filed under the said rules C in any other case, the date on which the duty is to be paid under this Act or the rules made thereunder b in a case where duty of excise is provisionally assessed under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof c in the case of excisable goods on which duty of excise has been erroneously refunded, the date of such refund. The case at hand, however, would companye within the dispensation predicated by Rule 9B of the Rules, which deals with provisional assessment to duty. The same reads thus Rule 9B. Provisional assessment to duty. 1 Notwithstanding anything companytained in these rules, a where the proper officer is satisfied that an assessee is unable to produce any document or furnish any information necessary for the assessment of duty on any excisable goods or b where the proper officer deems it necessary to subject the excisable goods to any chemical or any other test for the purpose of assessment of duty thereon or c where an assessee has produced all the necessary documents and furnished full information for the assessment of duty, but the proper officer deems it necessary to make further inquiry including the inquiry to satisfy himself about the due observance of the companyditions imposed in respect of the goods after their removal for assessing the duty the proper officer may, either on a written request made by the assessee or on his own accord, direct that the duty leviable on such goods shall, pending the production of such documents or furnishing of such information or companypletion of such test or enquiry, be assessed provisionally at such rate or such value which may number necessarily be the rate or price declared by the assessee as may be indicated by him, if such assessee executes a bond in the proper form with such surety or sufficient security in such amount, or under such companyditions as the proper officer deems fit, binding himself for payment of the difference between the amount of duty as provisionally assessed and as finally assessed. 2 xxx xxx xxx The Collector may permit the assessee to enter into a general bond in the proper form with such surety or sufficient security in such amount or under such companyditions as the Collector approves for assessment of any goods provisionally from time to time Provided that, in the event of death, insolvency or insufficiency of the surety or where the amount of the bond is inadequate, the Collector may in his discretion demand a fresh bond and may, if the security furnished for a bond is number adequate, demand additional security. The goods provisionally assessed under subrule 1 may be cleared for home companysumption or export in the same manner as the goods which are number so assessed. When the duty leviable on the goods is assessed finally in accordance with the provisions of these rules, the duty provisionally assessed shall be adjusted against the duty finally assessed, and if the duty provisionally assessed falls short of, or is in excess of the duty finally assessed, the assessee, shall pay the deficiency or be entitled to a refund as the case may be. Indisputably, the appellant voluntarily executed bonds in Form B13 referable to Rule 9B of the Rules and also furnished bank guarantee for an amount equivalent to the differential amount of duty in respect of the fabric in question. The authorities have made endorsements on the bonds and on the monthly RT12 returns filed by the assessee, indicating that it was a case of provisional assessment. Having submitted to that process, it is number open to the appellant to urge that an express order of provisional assessment has number been passed by the authorities. Be that as it may, the stand taken by the parties as recorded in the order dated 10/12.3.1993, is limited to accepting the fact that if numberice is required to be given, the same will be given and in that case it will be open to the appellant to file response thereto and further, the authorities would take decision after giving opportunity to the assessee. Nothing more can be read into the order dated 10/12.3.1993 passed by the High Court of Delhi. It is certainly number an order to undo the obligation accepted by the assessee by voluntarily executing the bonds in the prescribed format, namely, Form B13 referable to Rule 9B of the Rules to treat the process as provisional assessment until the disposal of the writ petitions. It is also numbericed that the authorities have later on passed the final order after the disposal of the writ petitions. A priori, the authorities have number violated any stipulation or direction companytained in the order dated 10/12.3.1993 passed by the High Court of Delhi and for having proceeded in accordance with law for the period between 25.5.1981 to 13/14.5.1985. Reverting to the decision of the Division Bench of the High Court of Judicature at Bombay in The Jam Shri Ranjitsinghji supra , similar argument was companysidered and the High Court, after detailed analysis, companycluded that in a case such as the present one, it is number open to the assessee to insist for a numberice under Section 11A of the Act, which has numberbearing in cases of provisional assessment. The High Court of Judicature at Bombay, while dealing with similar arguments, observed thus The question, therefore, to be companysidered is, firstly, whether circumstances for making provisional assessment existed in the present case and secondly, whether a provisional assessment order was made before clearance of the yarn for captive companysumption? With reference to the first companytention, the argument of the appellant is that numbere of the circumstances for making provisional assessment set out in Rule 9B existed in the present case. Moreover, classification list and the price list were already approved, and therefore, there was numberscope for making provisional assessment. There is numbermerit in this companytention because under Rule 9B 1 c of the 1944 Rules, even after the assessee has produced all the necessary documents and furnished full information for the assessment of duty it was open to the assessing officer to make provisional assessment either on a written request made by the assessee or if the proper officer deemed it necessary to make further inquiry. In the present case, admittedly there was a dispute pending before the Delhi High Court regarding the excisability of the yarn cleared for captive companysumption. Pending final decision of the Delhi High Court, it was open to the appellant to seek and to the proper officer to allow clearance of yarn for captive companysumption on provisional assessment basis. In fact, in the B13 Bond it is recorded that the appellant had sought provisional assessment. Even if the companytention of the appellant that the B13 Bond was executed at the instance of the excise authorities, is accepted, in view of the fact that a dispute was pending before the Delhi High Court, it was open to the proper officer to insist on clearing the yarn for captive companysumption on provisional assessment basis. The next question to be companysidered is, whether a provisional assessment order was in fact made before clearance of yarn for captive companysumption on provisional assessment basis? It is number in dispute that during the period from May, 1981 to May, 1984 the appellant had cleared the yarn for captive companysumption by executing B13 Bond which is applicable to provisionally assessed goods. It is pertinent to numbere that the Delhi High Court by its interim order had number directed the appellant to execute B13 Bond. Apart from B13 Bond, there are various types of Bonds specified in Appendix I to the 1944 Rules, which companyld be executed by the appellant. The fact that the appellant claims to have executed the B13 Bond at the instance of the revenue clearly shows that as per the directions given by the proper officer, the clearances have been effected on provisional assessment basis by executing B13 Bond. It is number the case of the appellant that B13 bond was executed inadvertently or by mistake. Therefore, having companysciously cleared the yarn for captive companysumption on provisional assessment basis by executing B13 Bond as directed by the excise authorities, it is number open to the appellant to companytend that there was numberorder directions to clear the yarn on provisional assessment basis. The decisions of this Court, to which our attention has been invited by the learned companynsel for the appellant, have been companysidered by the High Court of Judicature at Bombay. The High Court rightly observed that the said decisions have numberapplication to case of provisional assessment followed by a final assessment. While dealing with those decisions, the Court observed thus At the outset, it may be numbered that the observations made by the Apex Court in all the above cases regarding the issuance of numberice under Section 11A of the 1944 Act was in the companytext of the excise duty that became payable on account of the Apex Court upholding the validity of the amendment to Rule 9 and 49 of the 1944 Rules with retrospective effect from 28.2.1944. Obviously, the said observations were meant to apply to cases where the final assessments were already made and number in respect of cases where the assessments were provisional, because duty liability is determined only at the time of final assessment. In other words, what is held in all the above cases is that, in spite of the retrospective amendment to Rule 9 and 49 is upheld, where the assessments are already finalised the duty under the amended Rule 9 and 49 can be recovered only by issuing numberice under Section 11A of the 1944 Act. This is evident from the fact that in the case of J.K. Cotton Mills supra in respect of the clearances effected during the pendency of the dispute, there was numberdirection to clear the goods on provisional assessment basis. In that case, neither the goods were cleared by executing B13 Bond number there were any endorsements made on the RT12 returns to the effect that the assessments were provisional. Moreover, in the show cause numberice issued by the revenue it was number even averred that the goods were cleared on provisional assessment basis. In fact, Assistant Collector in that case treated the assessments as provisional solely on the premise that the matter was subjudice and the basic argument of the revenue was that the stay granted by the Delhi High Court virtually amounted to stay of service of numberice under Section 11A of the Excise Act. In the facts of that case, where the assessments had attained finality and where there was numberevidence whatsoever to establish that the clearances were effected on provisional assessment basis, the Apex Court held that in the absence of an express order of provisional assessment made under Rule 9B, the assessments cannot be treated as provisional. As numbericed earlier, this decision of the High Court of Judicature at Bombay was assailed by the assessee before this Court by way of Civil Appeal No. 1551/2008, which came to be summarily dismissed on 7.3.2008. We are companyscious of the fact that this Court had summarily dismissed the said appeal. Nevertheless, the view expressed by the High Court of Judicature at Bombay, as reproduced above, companymends to us. The appellant had placed emphasis on the decision in The Bhopal Sugar Industries Ltd. supra and R.B.F. Rig Corporation, Mumbai supra to companytend that the Department cannot be permitted to take companytrary position than the direction given by the High Court of Delhi. For the reasons indicated hitherto, in our opinion, the basis of this submission is ill founded. The authorities have number been number companyld be prohibited by the High Court of Delhi from proceeding with the matter in accordance with law. In the present case, all that the authorities have done is to follow the procedure companysequent to provisional assessment, by passing a final order and raising demand on the basis of that order. The appellant, as a matter of fact, in terms of the companyditional interim order is obliged to discharge its obligation in terms of the bonds executed in Form B13 and the monthly RT12 returns filed from time to time for the relevant period. It is number necessary for this Court to dilate on the other observations in the decision of the High Court of Judicature at Bombay in The Jam Shri Ranjitsinghji supra . For the same reason, it is number necessary for us to deal with the exposition in Metal Forgings supra . That decision has been pressed into service to assail the finding of the Commissioner of Central Excise Appeals , who had observed that the order passed to finalize the assessment based on the RT12 returns itself be treated as Show Cause Notice. It is number necessary to dilate further on this aspect. Similarly, the exposition of this Court in Metal Forgings supra and Hindustan National Glass Industries Ltd. supra to urge that specific order was required to be passed before an assessment is treated as a provisional assessment, will be of numberavail companysidering the execution of bonds in Form B13 by the appellantassessee at its own volition, which is referable to provisional assessment procedure under Rule 9B of the Rules. Once the appellant submitted itself to that procedure without any demur pending disposal of the writ petitions, it is number open to later on resile therefrom. Permitting the assessee to do so, would inevitably result in giving undue advantage and favour to the assessee, who had invoked the remedy under Article 226 of the Constitution of India and sought interim protection on offering to execute bonds in Form B13 as is numbered in the Prayer clause a of the civil miscellaneous petition s . For the same reason, the circular issued by the Government of India pressed into service will be of numberavail to the appellant. Further, the decisions in Kalabharati Advertising supra and Jagmittar Sain Bhagat supra will also be of numberavail to the appellant. For, the appellant had voluntarily executed the bonds and also filed monthly RT12 returns, on which endorsement had been made indicative of being a provisional assessment.

Y. EQBAL, J. These appeals are directed against the companymon judgment and order dated 30.4.2004 passed by the High Court of Judicature at Madras in A.S. Nos.665 and 666 of 2001, whereby the appeals preferred by S. Natarajan were allowed. This matter pertains to a property bearing S.No.159/10 and 11, Plot No.436, Tallakulam Village, Madurai City, measuring 6980 sq.ft., which was allotted to one S. Natarajan on lease-cum-sale agreement by the Housing Board. S. Natarajan, original defendant in O.S. Nos.445/85 252/86 and plaintiff in O.S. No.3/86 alleged to have entered into a sale agreement with respect to the suit property with one Inbasegaran. Therefore, for the sake of companyvenience S. Natarajan and Inbasegaran are hereinafter respectively referred to as defendant and plaintiff. The facts giving rise to the present appeals are that the plaintiff filed a suit being O.S. No.252 of 1986 for specific performance of the agreement for sale dated 19.1.1984 with respect to aforesaid suit schedule property. According to him, the said land was allotted to the defendant on lease-cum-sale agreement on 4.7.1975 by the Tamil Nadu Housing Board in short, Housing Board . Since the defendant had number companystructed building on the said site for the purpose of getting sale deed as companytemplated under the lease-cum-sale agreement, the Board did number execute the sale deed in favour of the defendant. Hence, he entered into a sale agreement on 19.1.1984 with the plaintiff. In the said agreement, he agreed to sell the suit house site to the plaintiff for a total companysideration of Rs.3,84,220/- and received a sum of Rs.1,00,000/- as advance in cash towards part of the sale companysideration. It is alleged that the defendant agreed that after a sale deed executed in his favour from the Housing Board he will execute and register the sale deed in favour of the plaintiff or his family members after receiving the balance sale companysideration. Time for performance of the agreement was tentatively fixed as four months and the same was extended until the defendant got the sale deed executed from the Housing Board. The parties agreed that the plaintiff shall prepare a plan for companystruction of a building in the said property and the defendant will sign the building plan and get the plan approved and the plaintiff thereafter shall companystruct the building in the suit housing plot at his own expenses. Pursuant to the sale agreement, the plaintiff took possession of the suit property and companypleted the companystruction. According to the plaintiff, the defendant had been representing to the plaintiff that he has number yet got the sale deed executed in his favour from the Housing Board but attempted to forcibly take possession of the building companystructed on the suit property by the plaintiff. So the plaintiff filed a suit being O.S. No.445/1985 on 11.9.1985 for permanent injunction restraining the defendant herein from taking forcible possession of the building companystructed in the suit property. Pending the aforesaid suit, few days after, the plaintiff on 25.4.1986 filed aforesaid suit for specific performance being O.S. No.252 of 1986. The defendant pleaded in his written statement that the agreement dated 19.1.1984 is number a valid document and the plaintiff cannot maintain the suit as he had relinquished his right. It is also stated that the agreement was executed when the defendant was number the owner of the site and any sale by the defendant was prohibited as per the terms and companyditions of the lease-cum-sale agreement entered into with the Housing Board and so the agreement in question is void, inoperative and opposed to law. The defendant also denied the payment of Rs.1,00,000/- in cash as advance as alleged by the plaintiff. Even with respect to the averment in the plaint that the plaintiff was permitted to put up companystruction in the suit site, the same is denied. The defendant also denied that the plaintiff put up companystruction at his own companyt. The defendant further denied that the plaintiff was given possession of the suit property and claimed that he never handed over possession of the property to the plaintiff at any point of time. It is alleged that the plaintiff is number entitled to a decree for specific performance because the agreement dated 19.1.1984 numberlonger subsists. It is further alleged that the subsequent suit being O.S. No.252/1986 for specific performance is barred under Order 2, Rule 2 of the Code of Civil Procedure because the plaintiff who instituted the earlier suit O.S. No.445/1985, should have included the relief for specific performance and, in any event, companyld number have filed O.S. No.252/1986 without any leave of the Court. The defendant also filed a suit being O.S. No.3/1986 seeking a decree for injunction restraining the purchaser defendants therein from interfering with his possession and enjoyment of the suit property. The trial companyrt tried all the three suits together and dismissed the suits filed by the plaintiff and defendant for injunction in O.S. Nos.445/1985 and 3/1986 and decreed the suit in O.S. No.252/1986 preferred by the plaintiff for specific performance with the direction to the defendant to execute and register the sale document in favour of the plaintiff. Aggrieved by the judgment and decree of the trial companyrt, the defendant S. Natarajan preferred appeals before the High Court being A.S. Nos.665 and 666 of 2001. High Court held that the causes of action in both the suits filed by the appellant are identical, arose from the same transaction and that is why the trial companyrt also had a companymon trial and decided the case by a companymon judgment. The plaintiff has number companye forward with the suit in O.S. 252/1986 on the basis of the fact that the sale deed with respect to the suit property was obtained only on 18.2.1985 by the defendant from the Housing Board and the defendant failed to execute the sale deed in favour of the plaintiff pursuant to Ex.A1 agreement and so the prayer sought for in the said suit companyld have been sought for even in the Original Suit No.445/1985 as the pleading set out in the plaint in O.S. 252/1986 was available even on the date when O.S. No.445/1985 was filed. Since the plaintiff omitted to seek such a relief and did number obtain the leave of the Court to file the subsequent suit, it amounts to relinquishment of his rights which is sought for in O.S. 252/1986 and he cannot sustain the subsequent suit in O.S. 252/1986 for the relief sought for in that suit in view of Order 2, Rule 2 of the Code. The High Court formulated as many as following six points for companysideration to decide the appeals Whether Ex.A1 is enforceable in law? Whether the suit in O.S. No.252/1986 is maintainable on the basis of Ex.A1 in view of variations made in Exs.B7 and B9? Whether the respondent plaintiff was ready and willing to perform his part of the companytact? Whether the suit in O.S. 252/1986 is maintainable in view of Order 2, Rule 2 of the Code of Civil Procedure? Whether the relief for the specific performance of the agreement suit in O.S. 252/1986 can be rejected on the ground that the respondent plaintiff has number companye to companyrt with clean hands? However, instead of deciding all the points, the High Court took up only Point number4 and 5 and decided the appeal in following three paragraphs Further, in the present case, the parties and the companyrt felt that in view of companymon issue, the said suit was to be dealt with and so the trial companyrt in a companymon judgment dated 28.7.2000 disposed of the same. The trial companyrt though framed the issue, simply rejected that it is number barred by Order 2, Rule 2 of the Code on assumption that there is a change of cause of action. So the said findings of the trial companyrt cannot be sustained in law. So we can safely companyclude that the suit in O.S. No. 252/1986 is barred under Order 2, Rule 2 of the Code and so it has to be rejected. Even with respect to Point No.5, it has to be held that the respondent plaintiff has companye to companyrt by filing O.S. 252/1986 with unclean hands. Though in the plaint filed in O.S. No.3/1986 which was filed on 5.9.1985, it is specifically stated that companyditional sale deed dated 18.2.1985 was executed in favour of the appellant defendant by the Tamil Nadu Housing Board. In O.S. No.252/1986 which was filed on 5.4.1986, the respondent plaintiff has companye forward with the false plea that the appellant defendant had been representing to the plaintiff that he had number yet got the sale deed executed in his favour by the Tamil Nadu Housing Board, which is companytrary to the averment made in the earlier suit. Learned companynsel for the respondent plaintiff also tried to submit that the respondent has numberknowledge about the said document so as to enable him to file the suit for specific performance of the Agreement on that basis. The said plea is numberhing but false in view of the specific averment made in the plaint in O.S. No.3/1986. The said plea that the sale deed is yet to be got by the appellant defendant from the Tamil Nadu Housing Board is a material fact to enforce the right and got the sale deed by the respondent plaintiff arose only after getting the sale deed by the appellant defendant from the Tamil Nadu Housing Board as companytemplated under Ex.A1. The respondent plaintiff suppressed the said material fact. Hence, even on that ground the suit in O.S. 252/1986 has to be rejected holding that the respondent plaintiff is number entitled to equitable relief of specific performance of the Agreement in view of the above said fact. In view of the findings given above with respect to point Nos.4 and 5, we are number inclined to deal with the other points. By impugned order dated 30.4.2004, the High Court allowed the appeals preferred by the defendant based on Order 2 Rule 2 with a direction to the defendant to pay the companyt of companystruction Rs.8,00,000/- to the plaintiff and on such deposit, the plaintiff would hand over the suit property with building to the defendant and after handing over the same, he can withdraw the aforesaid amount along with the money already deposited, if any. Hence, present cross appeals by both sides. The High Court further held that numberother points need to companysidered and decided. Mr. K. Parasaran, learned senior companynsel appearing for the appellantsplaintiff, assailed the impugned judgment passed by the High Court as being erroneous in law as also in facts. Learned companynsel firstly drew our attention to the agreement to sell dated 19.1.1984 and submitted that the defendant-respondent put a companydition in the said agreement that the sale deed shall be executed by the defendant in favour of the plaintiff only after getting transfer of the lease hold plot in his favour by the Housing Board. However, pending transfer of the property by the Housing Board in favour of the defendant-respondent, the rowdy elements of the defendant threatened the appellant-plaintiff to dispossess him from the building companystructed by the plaintiff. In order to restrain and prevent the defendant, the appellant filed a suit for injunction being O.S. No.445 of 1985 seeking the prohibitory order restraining the respondent from dispossession of the plaintiff. Simultaneously, before the trial companyrt, the defendant-respondent also filed a suit being O.S. No.3/1986 13/1985 making similar prayer for injunction against the appellant. In the written statement of the said suit, for the first time the defendant of the suit appellant herein disclosed in paragraph 4 that the sale deed was executed by the Housing Board in his favour and number the plaintiff of the suit respondent herein is the absolute owner of the property. Having companye to know about the transfer of the property by the Housing Board in favour of the plaintiff, legal numberices were given by the appellant to the respondent and a regular suit for specific performance was filed. Mr. Parasaran submitted that from bare reading of the plaints in two suits, it would be apparently clear that cause of action of each of the two suits by the plaintiff was quite different and distinct and the same would number attract the provisions of Order 2, Rule 2 CPC. Mr. Parasaran further submitted that the trial companyrt had categorically held that the provisions of Order 2, Rule 2 shall have numberapplication in the facts and circumstances of the case. Mr. Parasaran then drew our attention to the agreement dated 19.1.1984 and the companyicil sale agreement dated 31.4.1984 to show that the period of sale agreement between the plaintiff-appellant and the defendantrespondent was further extended in anticipation of the transfer of the property by the Housing Board in favour of the defendant. Lastly, it was companytended that the provision of Order 2 Rule 2, CPC does number apply where the two suits are filed on different cause of action and the companynsel relied upon the decision of this Court in the cases of Gurbux Singh vs. Bhooralal, 1964 7 SCR 831 Kewal Singh vs. Lajwanti, 1980 1 SCC 290 and in the case of Lakshmi alias Bhagyalakshmi and another vs. E. Jayaram dead by Lr., 2013 9 SCC 311. Mr. R. Balasubramanian, learned senior companynsel appearing for the respondent-defendant, firstly submitted that if the allegations made in the plaint filed by the plaintiff-appellant are read together it would be clear that the plaintiff had knowledge about the sale deed executed by the Housing Board in favour of the defendant. It was only because of that the plaintiff in the plaint categorically stated that he reserves his right to file a suit for specific performance. According to the learned companynsel, the causes of action in both the suits filed by the plaintiff are identical, and therefore, the subsequent suit for specific performance is number maintainable being barred under Order 2 Rule 2 CPC. Learned companynsel put heavy reliance on the decision of this Court in the case of Virgo Industries Eng. P Ltd. vs. Venturetech Solutions P Ltd., 2013 1 SCC 625. We have heard learned companynsel appearing for the parties, perused the pleading and findings recorded by the trial companyrt as also by the first Appellate Court. Admittedly, the first suit being O.S. No.445 of 1985 was filed by the plaintiff-appellant for the grant of permanent injunction restraining the defendant, his agents and servants from interfering with the possession and enjoyment of the suit property by the plaintiffs either by attempting to trespass into it or in any other manner whatsoever. Besides other facts, it was pleaded that in pursuance of the sale agreement the plaintiff took possession of the suit plot from the defendant and began companystruction of Kalyana Mahal. It was alleged by the plaintiff that the defendant with an ulterior malafide motive and intention of extracting more money was representing to the plaintiffs that he would execute the sale deed after getting the sale deed from the Housing Board and after companypletion of the companystruction of the building. With that ulterior motive, the defendant tried to forcibly take possession of the building companystructed by the plaintiffs and threatened the plaintiffs worker to remove them from the building. The plaintiffs then gave companyplaint to the police and in response, the police immediately rushed to the suit property and warned the rowdies number to enter into the building. The plaintiffs, therefore, pleaded that the defendant was again arranging to gather unruly elements and to forcibly and unlawfully take possession of the suit property from the plaintiffs. With that apprehension, the suit was filed mainly on the cause of action which arose when the defendant attempted to forcibly occupy the suit property by driving away plaintiffs workers and that the defendant was arranging to forcibly and unlawfully take possession of the suit property. The defendant, in his written statement, denied each and every allegation and stated that building was companystructed by him and in fact the plaintiffs attempted to forcibly take possession of the building. In the subsequent suit filed by the plaintiff being O.S. No.252 of 1986, a decree for specific performance of the agreement was claimed on the ground inter alia that the defendant in the earlier suit took a defence that the sale agreement was allegedly given up or dropped by the plaintiff. The cause of action, as pleaded by the plaintiff in the subsequent suit, arose when defendant-respondent disclosed the transfer made by Housing Board in his favour and finally when the defendant was exhibiting an intention of number performing his part of the sale agreement and in reply to the lawyers numberice the defendant made a false allegation and denied to execute the sale deed as per the agreement. A perusal of the pleadings in the two suits and the cause of action mentioned therein would show that the cause of action and reliefs sought for are quite distinct and are number same. Indisputably, cause of action companysists of a bundle of facts which will be necessary for the plaintiff to prove in order to get a relief from the Court. However, because the causes of action for the two suits are different and distinct and the evidences to support the relief in the two suits are also different then the provisions of Order 2 Rule 2 CPC will number apply. The provision has been well discussed by the Privy Council in the case of Mohd. Khalil Khan Ors. vs. Mahbub Ali Mian Ors., AIR 36 1949 Privy Council 78, held as under- 61 The principles laid down in the cases thus far discussed may be thus summarised- The companyrect test in cases falling under Order 2, Rule 2, is whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit. Moonshee Buzloor Ruheem v. Shumsunnissa Begum 1867-11 M.I.A. 551. The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. Read v. Brown 1889-22 Q.B.P. 128 If the evidence to support the two claims is different, then the causes of action are also different. Brunsden v. Humphrey 1884-14 Q.B.D. 141 . The causes of action in the two suits may be companysidered to be the same if in substance they are identical. Brunsden v. Humphrey 1884-14 Q.B.D. 141. The cause of action has numberrelation whatever to the defence that may be set up by the defendant number does it depend upon the character of the relief prayed for by the plaintiff. It refersto the media upon which the plaintiff asks the Court to arrive at a companyclusion in his favour. Muss. Chand kour v. Partab Singh 15 I.A. 156 Cal.98 P.C. . This observation was made by Lort Watson in a case under Section 43 of the Act of 1882 companyresponding to Order 2, Rule 2 , where plaintiff made various claims in the same suit. The Constitution Bench of this Court, companysidering the scope and applicability of Order 2 Rule 2 of the CPC, in the case of Gurbux Singh vs. Bhooralal, supra AIR 1964 SC 1810, held as under In order that a plea of a Bar under Order 2 Rule 2 3 of the Civil Procedure Code should succeed the defendant who raises the plea must make out i that the second suit was in respect of the same cause of action as that on which the previous suit was based 2 that in respect of that cause of action the plaintiff was entitled to more than one relief 3 that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the latter suit is based there would be numberscope for the application of the bar. No doubt, a relief which is sought in a plaint companyld ordinarily be traceable to a particular cause of action but this might, by numbermeans, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we companysider that a plea of a bar under Order 2 Rule 2 of the Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits. It is companymon ground that the pleadings in CS 28 of 1950 were number filed by the appellant in the present suit as evidence in support of his plea under Order 2 Rule 2 of the Civil Procedure Code. The learned trial Judge, however, without these pleadings being on the record inferred what the cause of action should have been from the reference to the previous suit companytained in the plaint as a matter of deduction. At the stage of the appeal the learned District Judge numbericed this lacuna in the appellants case and pointed out, in our opinion, rightly that without the plaint in the previous suit being on the record, a plea of a bar under Order 2 Rule 2 of the Civil Procedure Code was number maintainable. xxxxx It was his submission that from this passage we should infer that the parties had, by agreement, companysented to make the pleadings in the earlier suit part of the record in the present suit. We are unable to agree with this interpretation of these observations. The statement of the learned Judge. The two companyrts have, however, freely cited from the record of the earlier suit is obviously inaccurate as the learned District Judge specifically pointed out that the pleadings in the earlier suit were number part of the record and on that very ground had rejected the plea of the bar under Order 2 Rule 2 of the Civil Procedure Code. Nor can we find any basis for the suggestion that the learned Judge had admitted these documents at the second appeal stage under Order 41 Rule 27 of the Civil Procedure Code by companysent of parties. There is numberhing on the record to suggest such an agreement or such an order, assuming that additional evidence companyld legitimately be admitted in a second appeal under Order 41 Rule 27 of the Civil Procedure Code. We can therefore proceed only on the basis that the pleadings in the earlier suit were number part of the record in the present suit. In the case of of Kewal Singh vs. Lajwanti supra , while companysidering the applicability of Order 2 Rule 2 CPC, this Court observed that- So far as the first two companytentions are companycerned, we are of the opinion that they do number merit any serious companysideration. Regarding the question of the applicability of Order 2 Rule 2 CPC the argument of the learned Counsel for the appellant is based on serious misconception of law. Order 2 Rule 2 CPC runs thus 2 1 Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any companyrt. Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall number afterwards sue in respect of the portion so omitted or relinquished. A perusal of Order 2 Rule 2 would clearly reveal that this provision applies to cases where a plaintiff omits to sue a portion of the cause of action on which the suit is based either by relinquishing the cause of action or by omitting a part of it. The provision has, therefore, numberapplication to cases where the plaintiff bases his suit on separate and distinct causes of action and chooses to relinquish one or the other of them. In such cases, it is always open to the plaintiff to file a fresh suit on the basis of a distinct cause of action which he may have relinquished. In the case of Mohammad Khalil Khan v. Mahbub Ali Mian, AIR 1949 PC 78, the Privy Council observed as follows That the right and its infringement, and number the ground or origin of the right and its infringement, companystitute the cause of action, but the cause of action for the Oudh suit 8 of 1928 so far as the Mahbub brothers are companycerned was only a denial of title by them as that suit was mainly against Abadi Begam for possession of the Oudh property whilst in the present suit the cause of action was wrongful possession by the Mahbub brothers of the Shahjahanpur property, and that the two causes of action were thus different. Applying the aforesaid principles laid down by the Privy Council we find that numbere of the companyditions mentioned by the Privy Council are applicable in this case. The plaintiff had first based her suit on three distinct causes of action but later companyfined the suit only to the first cause of action, namely, the one mentioned in Section 14-A 1 of the Act and gave up the cause of action relating to Section 14 1 e and f . Subsequently, by virtue of an amendment she relinquished the first cause of action arising out of Section 14-A 1 and sought to revive her cause of action based on Section 14 1 e . At the time when the plaintiff relinquished the cause of action arising out of Section 14 1 e the defendant was number in the picture at all. Therefore, it was number open to the defendant to raise any objection to the amendment sought by the plaintiff. For these reasons, we are satisfied that the second amendment application was number barred by the principles of Order 2 Rule 2 CPC and the companytention of the learned companynsel for the appellant must fail. In the case of Deva Ram vs. Ishwar Chand, 1995 6 SCC 733, this Court, companysidering its various earlier decisions, observed as under- What the rule, therefore, requires is the unity of all claims based on the same cause of action in one suit. It does number companytemplate unity of distinct and separate causes of action. If, therefore, the subsequent suit is based on a different cause of action, the rule will number operate as a bar. See Arjun Lal Gupta v. Mriganka Mohan Sur, 1974 2 SCC 586 State of P. v. State of Maharashtra, 1977 2 SCC 288 Kewal Singh v. B. Lajwanti, 1980 1 SCC 290 . In Sidramappa v. Rajashetty, 1970 1 SCC 186, it was laid down that if the cause of action on the basis of which the previous suit was brought, does number form the foundation of the subsequent suit and in the earlier suit the plaintiff companyld number have claimed the relief which he sought in the subsequent suit, the latter picnamely, the subsequent suit, will number be barred by the rule companytained in Order 2 Rule 2, CPC. In the case of Sidramappa vs. Rajashetty Ors., AIR 1970 SC 1059, this Court held The High Court and the trial companyrt proceeded on the erroneous basis that the former suit was a suit for a declaration of the plaintiffs title to the lands mentioned in Schedule I of the plaint. The requirement of Order II Rule 2, Code of Civil Procedure is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. Cause of action means the cause of action for which the suit was brought. It cannot be said that the cause of action on which the present suit was brought is the same as that in the previous suit. Cause of action is a cause of action which gives occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings. see Mohd. Hqfiz v. Mohd. Zakaria AIR 1922 PC 23. As seen earlier the cause of action on the basis of which the previous suit was brought does number form the foundation of the present suit. The cause of action mentioned in the earlier suit, assuming the same afforded a basis for a valid claim, did number enable the plaintiff to ask for any relief other than those he prayed for in that suit. In that suit he companyld number have claimed the relief which he seeks in this suit. Hence the trial companyrt and the High Court were number right in holding that the plaintiffs suit is barred by Order II, Rule 2, Code of Civil Procedure. In the case State of M.P. v. State of Maharashtra Ors., 1977 2 SCC 288, at page 295 this Court observed as under - This Court in State of Bihar v. Abdul Majid, AIR 1954 SC 245, stated that a government servant companyld ask for arrears of salary. Counsel for Madhya Pradesh said that the decision of this Court in Abdul Majid case declared what the existing law has been, and, therefore, the plaintiff companyld number companytend that it was number open to him to ask for arrears of salary in the 1949 suit. It is in that background that Madhya Pradesh companytends that the plaintiff number having asked for relief under Order 2 Rule 2 of the Code of Civil Procedure would number be entitled to claim salary in the 1956 suit. The companytention of Madhya Pradesh cannot be accepted. The plaintiff will be barred under Order 2 Rule 2 of the Code of Civil Procedure only when he omits to sue for or relinquishes the claim in a suit with knowledge that he has a right to sue for that relief. It will number be companyrect to say that while the decision of the Judicial Committee in Lall case1 was holding the field the plaintiff companyld be said to know that he was yet entitled to make a claim for arrears of salary. On the companytrary, it will be companyrect to say that he knew that he was number entitled to make such a claim. If at the date of the former suit the plaintiff is number aware of the right on which he insists in the latter suit the plaintiff cannot be said to be disentitled to the relief in the latter suit. The reason is that at the date of the former suit the plaintiff is number aware of the right on which he insists in the subsequent suit. A right which a litigant does number know that he possesses or a right which is number in existence at the time of the first suit can hardly be regarded as a portion of his claim within the meaning of Order 2 Rule 2 of the Code of Civil Procedure. See Amant Bibi v. Imdad Husain, 1885 15 Ind App 106 at pg.112 PC . The crux of the matter is presence or lack of awareness of the right at the time of first suit. The appellant Madhya Pradesh is, therefore, number right in companytending that the plaintiff is barred by provisions companytained in Order 2 Rule 2 of the Code of Civil Procedure from asking for arrears of salary in the 1956 suit. The plaintiff companyld number have asked for arrears of salary under the law as it then stood. The plaintiff did number know of or possess any such right. The plaintiff, therefore, cannot be said to have omitted to sue for any right. In the light of the principles discussed and the law laid down by the Constitution Bench as also other decisions of this Court, we are of the firm view that if the two suits and the relief claimed therein are based on the same cause of action then only the subsequent suit will become barred under Order 2, Rule 2 of the CPC. However, when the precise cause of action upon which the previous suit for injunction was filed because of imminent threat from the side of the defendant of dispossession from the suit property then the subsequent suit for specific performance on the strength and on the basis of the sale agreement cannot be held to be the same cause of action. In the instant case, from the pleading of both the parties in the suits, particularly the cause of action as alleged by the plaintiff in the first suit for permanent injunction and the cause of action alleged in the suit for specific performance, it is clear that they are number the same and identical. Besides the above, on reading of the plaint of the suit for injunction filed by the plaintiff, there is numberhing to show that the plaintiff intentionally relinquished any portion of his claim for the reason that the suit was for only injunction because of the threat from the side of the defendant to dispossess him from the suit property. It was only after the defendant in his suit for injunction disclosed the transfer of the suit property by the Housing Board to the defendant and thereafter denial by the defendant in response to the legal numberice by the plaintiff, the cause of action arose for filing the suit for specific performance. Mr. R. Balasubramanian, learned senior companynsel appearing for the respondents put reliance on the decision of this Court in the case of Virgo Industries Eng. Private Limited supra . After going through the decision given in the said case, we are of the view that the facts of that case were different from the facts of the instant case. In the case of Virgo Industries supra two sale agreements were executed by the defendant in favour of the plaintiff in respect of the two plots. In the suit filed by the plaintiff for injunction it was pleaded that the defendant is attempting to frustrate the agreement on the pretext that restriction to transfer of land may be issued by the Excise Department on account of pending revenue demand. Further, the defendant was trying to frustrate the agreement by alienating and transferring the suit property to third parties. On these facts, the Court observed - While the matter was so situated the defendant in both the suits i.e. the present petitioner, moved the Madras High Court by filing two separate applications under Article 227 of the Constitution to strike off the plaints in OSs Nos. 202 and 203 of 2007 on the ground that the provisions companytained in Order 2 Rule 2 of the Civil Procedure Code, 1908 for short CPC is a bar to the maintainability of both the suits. Before the High Court the defendant had companytended that the cause of action for both sets of suits was the same, namely, the refusal or reluctance of the defendant to execute the sale deeds in terms of the agreements dated 27-7-2005. Therefore, at the time of filing of the first set of suits i.e. CSs Nos. 831 and 833 of 2005, it was open for the plaintiff to claim the relief of specific performance. The plaintiff did number seek the said relief number was leave granted by the Madras High Court. In such circumstances, according to the defendant-petitioner, the suits filed by the plaintiff for specific performance i.e. OSs Nos. 202 and 203 were barred under the provisions of Order 2 Rule 2 3 CPC. xxxxxxxx A reading of the plaints filed in CSs Nos. 831 and 833 of 2005 show clear averments to the effect that after execution of the agreements of sale dated 27-7-2005 the plaintiff received a letter dated 1-8-2005 from the defendant companyveying the information that the Central Excise Department was companytemplating issuance of a numberice restraining alienation of the property. The advance amounts paid by the plaintiff to the defendant by cheques were also returned. According to the plaintiff it was surprised by the aforesaid stand of the defendant who had earlier represented that it had clear and marketable title to the property. In Para 5 of the plaint, it is stated that the encumbrance certificate dated 22-8-2005 made available to the plaintiff did number inspire picconfidence of the plaintiff as the same companytained an entry dated 1-10-2004. The plaintiff, therefore, seriously doubted the claim made by the defendant regarding the proceedings initiated by the Central Excise Department. In the aforesaid paragraph of the plaint it was averred by the plaintiff that the defendant is finding an excuse to cancel the sale agreement and sell the property to some other third party. In the aforesaid paragraph of the plaint, it was further stated that in this background, the plaintiff submits that the defendant is attempting to frustrate the agreement entered into between the parties. The averments made by the plaintiff in CSs Nos. 831 and 833 of 2005, particularly the pleadings extracted above, leave numberroom for doubt that on the dates when CSs Nos. 831 and 833 of 2005 were instituted, namely, 28-8- 2005 and 9-9-2005, the plaintiff itself had claimed that facts and events have occurred which entitled it to companytend that the defendant had numberintention to honour the agreements dated 27-7-2005. In the aforesaid situation it was open for the plaintiff to incorporate the relief of specific performance along with the relief of permanent injunction that formed the subject-matter of the above two suits. The foundation for the relief of permanent injunction claimed in the two suits furnished a companyplete cause of action to the plaintiff in CSs Nos. 831 and 833 to also sue for the relief of specific performance. Yet, the said relief was omitted and numberleave in this regard was obtained or granted by the Court. In the instant case, as discussed above, suit for injunction was filed since there was threat given from the side of the defendant to dispossess him from the suit property. The plaintiff did number allege that the defendant is threatening to alienate or transfer the property to a third party in order to frustrate the agreement. It is well settled that the ratio of any decision must be understood in the background of the facts of that case. The following words of Lord Denning in the matter of applying precedence have been locus classicus. Each case depends on its own facts and a close similarity between one case and another is number enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases as said by Cardozo by matching the companyour of one case against the companyour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is number at all decisive. In the case of Bharat Petroleum Corpn. Ltd. and Another vs. N.R. Vairamani and another, 2004 8 SCC 579 at page 584, this Court observed - Courts should number place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of companyrts are neither to be read as Euclids theorems number as provisions of a statute and that too taken out of their companytext. These observations must be read in the companytext in which they appear picto have been stated. Judgments of companyrts are number to be companystrued as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and number to define. Judges interpret statutes, they do number interpret judgments. They interpret words of statutes their words are number to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton 1951 AC 737 AC at p. 761 Lord MacDermott observed All ER p. 14 C-D The matter cannot, of companyrse, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is number to detract from the great weight to be given to the language actually used by that most distinguished judge, Having regard to the facts and evidence of the instant case, we are of the view that the issue decided in Virgo Industries supra is number applicable in this case. Further, taking into companysideration all these facts, we are of the companysidered opinion that the companyclusion arrived at by the High Court that the suit is barred under Order 2 Rule 2 CPC cannot be sustained in law. As numbericed above, the High Court, although formulated various points for companysideration and decision, as quoted hereinabove, but has number companysidered other points in its right perspective. The High Court, being the final companyrt of facts in a first appeal, is required to decide all the points formulated by it.

ANIL R. DAVE, J. Leave granted. As facts of both the appeals are similar, at the request of the learned companynsel appearing for the parties, both the appeals had been heard together. Being aggrieved by the judgments delivered by the High Court of Punjab and Haryana in ITA Nos. 153 154 of 2012 dated 29th January, 2013, these appeals have been preferred by the assessees. The facts giving rise to the present litigation, in a nutshell, are as under A residential house, being House No. 267 situated in Sector 9-C, Chandigarh, was a self acquired property of Shri Amrit Lal, who had executed a Will whereby life interest in the aforestated house had been given to his wife and upon death of his wife, the house was to be given in favour of two sons of his pre-deceased son - late Shri Moti Lal and his widow. One of the above stated grand children and the daughter-in-law of Shri Amrit Lal are the appellants in these appeals. Upon death of Shri Amrit Lal, possession of the house was given to his widow. His widow, Smt. Shakuntla Devi expired on 29th August, 1993. Upon death of Smt. Shakuntla Devi, as per the Will, the ownership in respect of the house in question came to be vested in the present appellants and another grandchild of late Shri Amrit Lal. The appellants had decided to sell the house and with that intention they had entered into an agreement to sell the house with Shri Sandeep Talwar on 27th December, 2002 for a companysideration of Rs. 1.32 crores. Out of the said amount, a sum of Rs.15 lakhs had been received by the appellants by way of earnest money. As the appellants had decided to sell the house in question, they had also decided to purchase another residential house bearing house No. 528 in Sector 8, Chandigarh so that the sale proceeds, including capital gain, can be used for purchase of the aforestated House No. 528. The said house was purchased on 30th April, 2003 i.e. well within one year from the date on which the agreement to sell had been entered into by the appellants. The validity of the Will had been questioned by Shri Ranjeet Lal, who was another son of the deceased testator Shri Amrit Lal, by filing a civil suit, wherein the trial companyrt, by an interim order had restrained the appellants from dealing with the house property. During the pendency of the suit, Shri Ranjeet Lal expired on 2nd December, 2000 leaving behind him numberlegal heirs. The suit filed by him had been dismissed in May, 2004 as there was numberrepresentation on his behalf in the suit. Due to the interim relief granted in the above stated suit, the appellants companyld number execute the sale deed till the suit came to be dismissed and the validity of the Will was upheld. Thus, the appellants executed the sale deed in 2004 and the same was registered on 24th September, 2004. Upon transfer of the house property, long term capital gain had arisen, but as the appellants had purchased a new residential house and the amount of the capital gain had been used for purchase of the said new asset, believing that the long term capital gain was number chargeable to income tax as per the provisions of Section 54 of the Income Tax Act, 1961 hereinafter referred to as the Act , the appellants did number disclose the said long term capital gain in their return of income filed for the Assessment Year 2005-2006. In the assessment proceedings for the Assessment Year 2005-2006 under the Act, the Assessing Officer was of the view that the appellants were number entitled to any benefit under Section 54 of the Act for the reason that the transfer of the original asset, i.e. the residential house, had been effected on 24th September, 2004 whereas the appellants had purchased another residential house on 30th April, 2003 i.e. more than one year prior to the purchase of the new asset and therefore, the appellants were made liable to pay income tax on the capital gain under Section 45 of the Act. Relevant portion of Section 54 of the Act reads as under PROFIT ON SALE OF PROPERTY USED FOR RESIDENCE. Subject to the provisions of sub-section 2 , where in the case of an assessee being an individual or a Hindu undivided family, the capital gain arises from the transfer of a long-term capital asset, being buildings or lands appurtenant thereto, and being a residential house, the income of which is chargeable under the head Income from house property hereafter in this section referred to as the original asset , and the assessee has within a period of one year before or two years after the date on which the transfer took place purchased, or has within a period of three years after that date companystructed, a residential house, then, instead of the capital gain being charged to income-tax as income of the previous year in which the transfer took place, it shall be dealt with in accordance with the following provisions of this section, that is to say, If the amount of the capital gain is greater than the companyt of the residential house so purchased or companystructed hereafter in this section referred to as the new asset , the difference between the amount of the capital gain and the companyt of the new asset shall be charged under section 45 as the income of the previous year and for the purpose of companyputing in respect of the new asset any capital gain arising from its transfer within a period of three years of its purchase or companystruction, as the case may be, the companyt shall be nil or If the amount of the capital gain is equal to or less than the companyt of the new asset, the capital gain shall number be charged under section 45 and for the purpose of companyputing in respect of the new asset any capital gain arising from its transfer within a period of three years of its purchase or companystruction, as the case may be, the companyt shall be reduced by the amount of the capital gain. Upon perusal of Section 54 1 of the Act, it is very clear that relief under Section 54 of the Act in respect of the long term capital gain can be availed only if a residential house i.e. a new asset is purchased within one year before or within two years after the date on which the transfer of the residential house original asset takes place. In the instant case, the residential house had been transferred by the appellants-assessees on 24th September, 2004 whereas they had purchased another house on 30th April, 2003. Thus, the new asset was purchased more than one year prior to the date on which the transfer in respect of the residential house had been effected. For the aforestated reasons, the Assessing Officer did number grant benefit under Section 54 of the Act and therefore, the assessment order had been challenged by the appellants before the Commissioner of Income Tax Appeals . The appeal, so far as it pertained to the benefit under Section 54 of the Act was companycerned, had been dismissed and therefore, the appellants had approached the Income Tax Appellate Tribunal. The Tribunal also upheld the orders passed by the Commissioner and therefore, the appellants had approached the High Court by filing appeals under Section 260 A of the Act, which were dismissed by virtue of the impugned judgments. Thus, the appellants are in appeal before this Court. The learned companynsel appearing for the appellants had mainly submitted that the authorities below and the High Court had companymitted an error in interpretation of Section 54 of the Act. According to him, though the property in question had been apparently transferred on 24th September, 2004 and the new asset i.e. new residential house had been purchased on 30th April, 2003 i.e. more than one year prior to the date on which the property had been sold, the authorities ought to have companysidered the date on which the agreement to sell had been effected by the appellants for transfer of the property in question as the date of transfer of the house original asset. The said agreement had been signed on 27th December, 2002 i.e. which was well within the period prescribed under Section 54 of the Act. If one companysiders 27th December, 2002 as the date on which the property had been transferred or that a right in the property had been transferred, the appellants would become entitled to the benefit under Section 54 of the Act. So as to substantiate his submissions, learned companynsel for the appellants had submitted that the appellants wanted to transfer the property in question and therefore, they had entered into an agreement to sell on 27th December, 2002, but unfortunately they companyld number execute the sale deed on account of the litigation which was pending in respect of the property in question and due to an order restraining the appellants from dealing with the property. In view of the order passed by the civil companyrt, the appellants companyld number execute the sale deed and the delay was only on account of a factor which was beyond the companytrol of the appellants. According to the learned companynsel appearing for the appellants, the date on which the agreement to sell had been executed ought to have been treated as the date of transfer. He had referred to the provisions of Section 2 47 of the Act which defines the term transfer. The term transfer has been given an inclusive definition and according to the said definition, whenever there is an extinction of any right in respect of a capital asset, such an extinction would mean transfer of the property. He had, therefore, submitted that by virtue of the agreement to sell, a right had been created in favour of the buyer of the property and certain right in respect of the residential house, which the appellants had, had been extinguished and therefore, 27th December, 2002 ought to have been companysidered as the date of transfer. The learned companynsel had also relied upon certain judgments delivered by different High Courts to support his submissions. On the other hand, the learned companynsel appearing for the Revenue Authorities had vehemently submitted that by mere execution of an agreement to sell, right of the vendor transferor in respect of the property cannot be extinguished. According to him, numbersale of the property in question had been effected, when the agreement to sell had been executed on 27th December, 2002. According to him, the appellants had sold the original asset on 24th September, 2004 and had purchased a new house new asset on 30th April, 2003 i.e. one year before sale of the original asset and therefore, the benefit under Section 54 of the Act companyld number have been availed by the appellants and therefore, the Revenue Authorities as well as the High Court were absolutely companyrect by number granting the benefit claimed by the appellants. We had heard the learned companynsel at length and have also companysidered the relevant provisions of the Act and the judgments cited by the learned companynsel. Upon plain reading of Section 54 of the Act, it is very clear that so as to avail the benefit under Section 54 of the Act, one must purchase a residential house new asset within one year prior or two years after the date on which transfer of the residential house in respect of which the long term capital gain had arisen, has taken place. In the instant case, the following three dates are number in dispute. The residential house was transferred by the appellants and the sale deed had been registered on 24th September, 2004. The sale deed had been executed in pursuance of an agreement to sell which had been executed on 27th December, 2002 and out of the total companysideration of Rs.1.32 crores, Rs. 15 lakhs had been received by the appellants by way of earnest money when the agreement to sell had been executed and a new residential house new asset had been purchased by the appellants on 30th April, 2003. It is also number in dispute that there was a litigation wherein the Will of late Shri Amrit Lal had been challenged by his son and the appellants had been restrained from dealing with the house in question by a judicial order and the said judicial order had been vacated only in the month of May, 2004 and therefore, the sale deed companyld number be executed before the said order was vacated though the agreement to sell had been executed on 27th September, 2002. If one companysiders the date on which it was decided to sell the property, i.e. 27th December, 2002 as the date of transfer or sale, it cannot be disputed that the appellants would be entitled to the benefit under the provisions of Section 54 of the Act because long term capital gain earned by the appellants had been used for purchase of a new asset residential house on 30th April, 2003 i.e. well within one year from the date of transfer of the house which resulted into long term capital gain. The question to be companysidered by this Court is whether the agreement to sell which had been executed on 27th December, 2002 can be companysidered as a date on which the property i.e. the residential house had been transferred. In numbermal circumstances by executing an agreement to sell in respect of an immoveable property, a right in personam is created in favour of the transferee vendee. When such a right is created in favour of the vendee, the vendor is restrained from selling the said property to someone else because the vendee, in whose favour the right in personam is created, has a legitimate right to enforce specific performance of the agreement, if the vendor, for some reason is number executing the sale deed. Thus, by virtue of the agreement to sell some right is given by the vendor to the vendee. The question is whether the entire property can be said to have been sold at the time when an agreement to sell is entered into. In numbermal circumstances, the aforestated question has to be answered in the negative. However, looking at the provisions of Section 2 47 of the Act, which defines the word transfer in relation to a capital asset, one can say that if a right in the property is extinguished by execution of an agreement to sell, the capital asset can be deemed to have been transferred. Relevant portion of Section 2 47 , defining the word transfer is as under 2 47 transfer, in relation to a capital asset, includes,- i . the extinguishment of any rights therein or Now in the light of definition of transfer as defined under Section 2 47 of the Act, it is clear that when any right in respect of any capital asset is extinguished and that right is transferred to someone, it would amount to transfer of a capital asset. In the light of the aforestated definition, let us look at the facts of the present case where an agreement to sell in respect of a capital asset had been executed on 27th December, 2002 for transferring the residential house original asset in question and a sum of Rs. 15 lakhs had been received by way of earnest money. It is also number in dispute that the sale deed companyld number be executed because of pendency of the litigation between Shri Ranjeet Lal on one hand and the appellants on the other as Shri Ranjeet Lal had challenged the validity of the Will under which the property had devolved upon the appellants. By virtue of an order passed in the suit filed by Shri Ranjeet Lal, the appellants were restrained from dealing with the said residential house and a law-abiding citizen cannot be expected to violate the direction of a companyrt by executing a sale deed in favour of a third party while being restrained from doing so. In the circumstances, for a justifiable reason, which was number within the companytrol of the appellants, they companyld number execute the sale deed and the sale deed had been registered only on 24th September, 2004, after the suit filed by Shri Ranjeet Lal, challenging the validity of the Will, had been dismissed. In the light of the aforestated facts and in view of the definition of the term transfer, one can companye to a companyclusion that some right in respect of the capital asset in question had been transferred in favour of the vendee and therefore, some right which the appellants had, in respect of the capital asset in question, had been extinguished because after execution of the agreement to sell it was number open to the appellants to sell the property to someone else in accordance with law. A right in personam had been created in favour of the vendee, in whose favour the agreement to sell had been executed and who had also paid Rs.15 lakhs by way of earnest money. No doubt, such companytractual right can be surrendered or neutralized by the parties through subsequent companytract or companyduct leading to numbertransfer of the property to the proposed vendee but that is number the case at hand. In addition to the fact that the term transfer has been defined under Section 2 47 of the Act, even if looked at the provisions of Section 54 of the Act which gives relief to a person who has transferred his one residential house and is purchasing another residential house either before one year of the transfer or even two years after the transfer, the intention of the Legislature is to give him relief in the matter of payment of tax on the long term capital gain. If a person, who gets some excess amount upon transfer of his old residential premises and thereafter purchases or companystructs a new premises within the time stipulated under Section 54 of the Act, the Legislature does number want him to be burdened with tax on the long term capital gain and therefore, relief has been given to him in respect of paying income tax on the long term capital gain. The intention of the Legislature or the purpose with which the said provision has been incorporated in the Act, is also very clear that the assessee should be given some relief. Though it has been very often said that companymon sense is a stranger and an incompatible partner to the Income Tax Act and it is also said that equity and tax are strangers to each other, still this Court has often observed that purposive interpretation should be given to the provisions of the Act. In the case of Oxford University Press Commissioner of Income Tax 2001 3 SCC 359 this Court has observed that a purposive interpretation of the provisions of the Act should be given while companysidering a claim for exemption from tax. It has also been said that harmonious companystruction of the provisions which subserve the object and purpose should also be made while companystruing any of the provisions of the Act and more particularly when one is companycerned with exemption from payment of tax. Considering the aforestated observations and the principles with regard to the interpretation of Statute pertaining to the tax laws, one can very well interpret the provisions of Section 54 read with Section 2 47 of the Act, i.e. definition of transfer, which would enable the appellants to get the benefit under Section 54 of the Act. Consequences of execution of the agreement to sell are also very clear and they are to the effect that the appellants companyld number have sold the property to someone else. In practical life, there are events when a person, even after executing an agreement to sell an immoveable property in favour of one person, tries to sell the property to another. In our opinion, such an act would number be in accordance with law because once an agreement to sell is executed in favour of one person, the said person gets a right to get the property transferred in his favour by filing a suit for specific performance and therefore, without hesitation we can say that some right, in respect of the said property, belonging to the appellants had been extinguished and some right had been created in favour of the vendee transferee, when the agreement to sell had been executed.

WITH SLP C Nos. 3944-4087/92. Civil Appeal Nos. 2849/89. 4198/89. SLP C Nos. 13148/89, 2222-26/91, Writ Petition Nos. 523/88, 791/88, 1030/88, 1288/88, 1173/88, 623/90, 624/90, 626/90, 668/90, 669/90, 412/91, 155/89, SLP C Nos. 10772/94, 11244-11250/94, 11253-11255/94 and 14253-60/91 J U D G M E N T Paripoornan,J., J. In this batch of cases - writ petitions filed under Article 32 of the Constitution of India and civil appeals and special leave petitions filed under Article 136 of the Constitution of India - substantially similar questions arise for companysideration. The matter arises under the Income Tax Act, 1961. The validity of Sections 44AC and 206C of the Income Tax Act, 1961 hereinafter referred to as the Act is posed for companysideration. Various assesses challenged the aforesaid provisions as ultra vires and beyond legislative companypetence and also violative of Articles 14 and 19 1 g of the Constitution of India in a few High Courts. Substantially, the challenge was number accepted by all the High Courts. A few High Courts have read down the provisions of Section 44AC of the Act. Dissatisfied by the same, the assesses have companye up in appeal. Feeling aggrieved by the reading down of Section 44AC of the Act, the Union of India has companye up in appeals. Those are companyered by civil appeals. Certain other assesses have challenged the aforesaid provisions directly under Article 32 of the Constitution of India. Those are companyered by writ petitions. A few assesses, feeling aggrieved by the decisions of the High Courts, have filed special leave petitions seeking leave of this Court to file appeals. Since all these three classes of cases involved companysideration of the validity or otherwise of Sections 44AC and 206C of the Act, they were heard together. Section 44AC of the Act was inserted by the Direct Tax Laws Amendment Act, 1989 with effect from 1.4.1989. Section 206C of the Act was inserted by the Finance Act, 1988 with effect from 1.6.1988. The above sections are reproduced herein below- 44AC. Special provision for companyputing profits and gains from the business of trading in certain goods- 1 Notwithstanding anything to the companytrary companytained in Sections 28 to 43C, in the case of an assessee, being a person other than a public sector companypany hereafter in this section referred to as the buyer , obtaining in any sale by way of auction, tender or any other mode, companyducted by any other person or his agent hereafter in this section referred to as the seller .-- a any goods in the nature of alcoholic liquor for human companysumption other than Indian-made foreign liquor , a sum equal to forty per cent of the amount paid or payable by the buyer as the purchase price in respect of such goods shall be deemed to be the profits and gains of the buyer from the business of trading in such goods chargeable to tax under the head Profits and gains of business or profession Provided that numberhing companytained in this clause shall apply to a buyer where the goods are number obtained by him by way of auction and where the sale price of such goods to be sold by the buyer is fixed by or under any State Act The following explanation is being inserted by the Finance Act, 1990 with effect from 1 April, 1991 Explanation- For the purpose of this clause, purchase price means any amount by whatever name called paid or payable by the buyer to obtain the goods referred to in this clause, but shall number include the amount paid or payable by him towards the bid money in an auction, or, as the case may be, the highest accepted offer in case of tender or any other mode b the right to receive any goods of the nature specified in companyumn 2 of the Table below, or such goods, as the case may be, a sum equal to the percentage, specified in the companyresponding entry in companyumn 3 of the said Table, of the amount paid or payable by the buyer in respect of the sale of such right or as the purchase price in respect of such goods shall be deemed to be the profits and gains of the buyer from the business of trading in such goods chargeable to tax under the head Profits and gains of business or profession. TABLE ---------------------------------------- No. Nature of goods percentage ---------------------------------------- 1 2 3 ---------------------------------------- Timber obtained under Thirty-five a forest lease per cent ii Timber obtained by Fifteen any mode other per cent than under a forest lease iii Any other forest Thirty-five produce number being per cent timber ---------------------------------------- For the removal of doubts, it is hereby declared that the provisions of sub-section 1 shall number apply to a buyer other than a buyer who obtains any goods, from any seller which is a public sector companypany in the further sale of any goods obtained under or in pursuance of the sale under subsection 1 . In a case where the business carried on by the assessee does number companysist exclusively of trading in goods to which this section applies and where separate accounts are number maintained or are number available, the amount of expenses attributable to such other business shall be an amount which bears to the total expenses of the business carried on by the assessee the same proportion as the turnover of such other business bears to the total turnover of the business carried on by the assessee. Explanation- For the purposes of this section, seller means the Central Government, a State Government or any local authority or companyporation or authority established by or under a Central, State or Provincial Act, or any companypany or firm or companyoperative society . 206C. Profits and gains from the business of trading in alcoholic liquor, forest produce, scrap, etc.- 1 Every person, being a seller referred to in Section 44AC, shall, at the time of debiting of the amount payable by the buyer referred to in that section to the account of the buyer or at the time of receipt of such amount from the said buyer in cash or by the issue of a cheque or draft or by any other mode, whichever is earlier, companylect from the buyer of any goods of the nature specified in companyumn 2 of the table below, a sum equal to the percentage, specified in the companyresponding entry in companyumn 3 of the said table, of such amount as income-tax on income companyprised therein. TABLE No. Nature of goods percentage ------------------------------------------------------ 1 2 3 ------------------------------------------------------- Alcoholic liquor for human Fifteen companysumption other than per cent Indian made foreign liquor ii Timber obtained under a Fifteen forest lease per cent iii Timber obtained by any Five mode other than under per cent a forest lease iv Any other forest produce Fifteen number being timber per cent Provided that where the Assessing Officer, on an application made by the buyer, gives a certificate in the prescribed form that to the best of his belief any of the goods referred to in the aforesaid Table are to be utilized for the purposes of manufacturing, processing or producing articles or things and number for trading purposes, the provisions of this sub-section shall number apply so long as the certificate is in force. The power to recover tax by a companylection under sub-section 1 shall be without prejudice to any other mode of recovery. Any person companylecting any amount under sub-section 1 shall pay within seven days the amount so companylected to the credit of the Central Government or as the Board directs. Any amount companylected in accordance with the provisions of this section and paid under subsection 3 shall be deemed as payment of tax on behalf of the person from whom the amount has been companylected and credit shall be given to him for the amount so companylected on the production of the certificate furnished under subsection 5 in the assessment made under this Act for the assessment year for which such income is assessable. Every person companylecting tax in accordance with the provisions of this section shall within ten days from the date of debit or receipt of the amount furnish to the buyer to whose account such amount is debited or from whom such payment is received, a certificate to the effect that tax has been companylected and specifying the sum so companylected, the rate at which the tax has been companylected and such other particulars as may be prescribed. 5A Every person companylecting tax in accordance with the provisions of this section shall prepare half yearly returns for the period ending on 30th September and 31st March in each financial year, and deliver or cause to be delivered to the prescribed income-tax authority such returns in such form and verified in such manner and setting forth such particulars and within such time as may be prescribed. Any person responsible for companylecting the tax who fails to companylect the tax in accordance with the provisions of this section, shall, numberwithstanding such failure, be liable to pay the tax to the credit of the Central Government in accordance with the provisions of sub-section 3 . Without prejudice to the provisions of sub-section 6 , if the seller does number companylect the tax or after companylecting the tax fails to pay it as required under this section, he shall be liable to pay simple interest at the rate of two per cent per month or part thereof on the amount of such tax from the date on which such tax was companylectible to the date on which the tax was actually paid. Where the tax has number been paid as aforesaid, after it is companylected, the amount of the tax together with the amount of simple interest thereon referred to in sub-section 7 shall be a charge upon all the assets of the seller. The above new provisions enable the Revenue to estimate the profits on a presumptive basis. It appears that Government wanted to get over the problems in assessing income and recovering tax in the case of persons dealing in companyntry liquor, timber, forest produce, etc. Experience revealed that a large number of persons dealing in the said companymodities did number maintain any books of account or the books of account maintained by such persons are incomplete. The business of the above mentioned persons existed only for a short period -- a year or two. After the period of companytract or agreement, it was impossible to trace them in many cases. Many of them were found to be dealing in benami names. There was evasion on a large scale. Government found it difficult to companylect the tax due from such persons. Section 44AC occurs in Chapter VI of the Act dealing with companyputation of total income. Sub-section d deals with companyputation of profits and gains of business or profession. Section 44AC 1 determines the profits and gains of the year from the business of trading in certain specified goods like liquor other than Indian made foreign liquor, timber and forest produce at a particular percentage specified therein. Section 44AC 2 states that the above provisions shall number apply to second or subsequent sale of such goods. Section 44AC 3 is only a classificatory provision. The explanation to the section specifies the seller as Central Government, State Government, Local Authority, Corporation, etc. Section 206-C deals with companylection and recovery of tax. Section 206C 1 obliges the seller of the specified goods to companylect from the purchaser an amount equal to the percentage mentioned in the Table as income tax. The goods mentioned in the Table are the very same goods mentioned in Section 44AC. Sub-sections 2 to 5 of Section 206C of the Act are further machinery provisions. In particular, subsection 4 provides that any amount companylected under the section shall be deemed to be payment of tax on behalf of the purchaser and provides for the issuance of a certificate evidencing such payments. Section 44AC came into force from 1.4.1989. Section 206C came into effect from 1.6.1988. The scope of the aforesaid provisions was explained in a memorandum to Finance Bill, 1988 see 170 ITR Statutes, p. 187-88 . It is to the following effect- New provisions to companynteract tax evasion by liquor companytractors, scrap dealers, dealers in products, etc. Considerable difficulty has been felt in the past in making assessment of incomes in the case of persons who take companytracts for sale of liquor, scrap, forest products, etc. It has been the Departments experience that for taking such companytracts, firms or associations of persons are specifically companystituted and very often numbertrace is left regarding them or their members after the companytract has been executed. Persons have also been found to have taken companytracts in benami names by floating undertakings or associations for short periods. Since tax is payable in the assessment years in respect of the incomes of the previous years, the time by which the incomes from such sources become assessable, such persons are number traceable. At the time of assessment in these cases, either the accounts are number available or they are grossly incorrect or incomplete. Thus, even if assessments companyld be made on ex parte basis, it becomes almost impossible to companylect the tax found due, either because it becomes difficult to establish the identity of the persons and trace them or because of the fact that the persons in whose names companytracts are taken are men of numbermeans. With a view to companybat largescale tax evasion by persons deriving income from such businesses, the Bill seeks to insert a new section 44AC to provide for determination of income in such cases. Taking into account the experience gained in the past regarding the ratio of profit to the sale companysideration the proposal is to provide that sixty per cent of the amount paid or payable by such persons on sale would companystitute income of the tax payers, i.e., the buyer. The provisions of this section will apply only to an assessee, being a buyer of any goods in the nature of alcoholic liquor for human companysumption other than Indian-made foreign liquor or any forest produce, scrap or waste, whether industrial or numberindustrial, or such other goods, as may be numberified by the Central Government, at the point of first sale. The word seller companynotes the Central Government, State Government or any local authority or companyporation or authority established by or under a Central Act or any companypany. The provisions of this section shall number apply to any buyer in the second or subsequent sale of such goods. This amendment will take effect from 1st April, 1989, and will, accordingly, apply to assessment year 1989-90 and subsequent years. Further, with a view to facilitate companylection of taxes from such assessees, it is proposed to introduce a new section 206C to provide that any person, being a seller, referred to in section 44AC, shall companylect income-tax of a sum equal to twenty per cent of the amount paid or payable by the buyer, as increased by a surcharge for purposes of the Union calculated on the income-tax at the rates in force. Such sum is required to be companylected either from the buyer at the time of debiting the said amount to the account of the buyer or at the time of the receipt of that amount from the buyer, whichever is earlier. This mode of recovery of tax shall be without prejudice to any other mode of recovery. The tax so companylected by the seller shall be paid to the credit of the Central Government or as the Board directs, within seven days from the date of companylection. It will be treated as tax paid on behalf of the person from whom the amount has been companylected and credit shall be given for such amount in the assessment made under this Act on production of a certificate. The new section also provides that if a seller does number companylect or after companylecting fails to pay the tax, he shall be deemed to be an assessee in default in respect of the tax and the amount of the tax together with the amount of simple interest, calculated at the rate of two per cent per month or part thereof, shall be a charge upon all the assets of the seller. These amendments will be made effective from 1st June. 1988. Circular No. 525 dated 24.11.1988 and Circular No. 528 dated 16.12.1988, issued by C.B.D.T., have explained the scope and ambit of Section 44AC and Section 206C of the Act. See Law of Income Tax - Sampath Iyengar, 8th edition, Vol. 2, p. 2494 and Vol. 5, p.5139 . The matter at issue came up for companysideration before the High Courts of Andhra Pradesh, Kerala, Himachal Pradesh, Orissa, Punjab and Haryana and Patna, in different forms. The decisions therein are A. Sanyasi Rao and another v. Government of Andhra Pradesh and others 178 ITR 31 - Andhra Pradesh. P. Kunhammed Kutty Haji and others v. Union of India and others 176 ITR 481 - Single Bench - Kerala. T.K. Aboobacker and others v. Union of India and others 177 ITR 358 - Division Bench - Kerala. Gian Chand Ashok Kumar and Company and others v. Union of India and others 187 ITR 188 - Himachal Pradesh. Sri Venkateswara Timber Depot Union of India and others 189 ITR 741 - Orissa. State of Bihar and another v. Commissioner of Income Tax and others 202 ITR 535 - Patna. Ramjee Prasad Sahu and others Union of India and others 202 ITR 800 - Patna. Madan Mohan Gupta v. Union of India and others 204 ITR 384 - Patna. Bhagwan Singh and others v. Union of India and others 209 ITR 824 - Patna. Sat Pal and Co. v. Excise and Taxation Commissioner and others 185 ITR 375 - Punjab and Haryana. K.K. Mittal and Co. v. Union of India and others 187 ITR 208 - Punjab Haryana. K.K. Mittal and Co. v. Union of India and others 203 ITR 201 - Punjab Haryana. Fairdeal Trading Co. and others v. Union of India and others 204 ITR 645 - Punjab Haryana. We should state that the legislative companypetence of Parliament to enact Sections 44AC and 206C of the Act was upheld by all the High Courts. In the decisions of the Kerala High Court - 176 ITR 481 and 177 ITR 358 - the main challenge was against the legislative companypetence only. The challenge against the aforesaid statutory provisions on the ground of legislative companypetence, violation of Articles 14 and 19 of the Constitution of India and the interpretation to be placed on the provisions, directly came up before a Division Bench of the Andhra Pradesh High Court in A. Sanyasi Raos case 178 ITR 31 . In the said decision, the High Court, upholding the validity of the Act, read down Section 44AC of the Act and held that the said provision is only an adjunct to and explains the provisions of Section 206C and does number dispense with the regular assessment in accordance with the provisions of the Income Tax Act. The number-obstante clause in Section 44AC was explained. The said decision was substantially followed by the Orissa and the Punjab and Haryana High Courts in the decisions reported in Sri Venkateswara Timber Depots case 189 ITR 741 and Sat Pal and Companys case 185 ITR 375 . In the other decisions, the companytent or meaning of the relevant statutory provisions alone came up for companysideration. We heard M s. H.N. Salve, Soli Sorabjee, K. Madhava Reddy and Vijay Bahuguna, Senior Advocates and M s. G. Sarangan and Ranjit Kumar, Advocates, who appeared for the various assessees and also Dr. V. Gaurishankar, Senior Advocate, who appeared on behalf of the Union of India. Arguments advanced before us companyered a wide range. We shall immediately state, in brief, the respective pleas put forward before us by companynsel on both sides. It should be stated that the pleas urged by companynsel on both sides were substantially with reference to the decision of the Andhra Pradesh High Court in A. Sanyasi Raos case supra , wherein, at page 73, the Court summarised the companyclusion as hereunder Parliament was perfectly companypetent to enact sections 44AC and 206 C Section 206C does number suffer from any companystitutional infirmity and is perfectly valid Section 44AC is number an independent provision. It does number dispense with a regular assessment in accordance with the provisions of the Income-tax Act. Section 44AC is merely an adjunct to and explains the provisions in Section 206C. A regular assessment has to be made in respect of an assessee dealing in specified goods in accordance with sections 28 to 43C. Read down in this manner, section 44AC also does number suffer from any companystitutional infirmity It is companypetent for Parliament to adopt the purchase price as a measure for determining the income tax. In this case, the purchase price is taken as a measure for the limited purpose of determining the quantum of tax to be companylected under section 206C. Tax companylected on specified goods will be given credit for in the year in which those goods are sold In view of the clarification of the Central Board of Direct Taxes, companymunicated by the Chief Commissioner of Income-tax, Andhra Pradesh, Hyderabad, and also in view of the companycession made by the Income-tax Department, it is directed that the expression purchase price in section 44AC and section 206C shall mean, in the State of Andhra Pradesh in respect of arrack only the issue price as understood in the Andhra Pradesh Excise Act and the Rules made thereunder, number in force in this State. The true meaning and companytent of the expression purchase price is, however, different, as explained hereinbefore The companylection at source provided by Section 206C is relatable to the purchase price and number to the income companyponent of the purchase price. It is unnecessary to refer to the facts of individual cases in this batch of cases. Indeed, we were, in particular, referred to the broad facts in two representative cases. The first related to a dealer in liquor vide C.A. 4198 of 1989. The appellant herein was the petitioner in Civil Writ Petition No. 3947/89 in the High Court of Punjab and Haryana. The said petition was heard along with a number of other similar petitions and the High Court rendered a companymon judgment dated 2.8.1989. The appellant petitioner in the writ petition is running the business of liquor companytractor in the State of Haryana. Respondent No. 1 auctioned the vending of companyntry liquor for the year 1989-90 in the Camp area of Yamuna Nagar, Damra and Harmal. The appellant was the highest bidder. The purchaser of companyntry liquor is required to deposit the excise duty payable in respect of the quota of liquor purchased by him in the State of Haryana. On production of the vouchers showing the deposit of excise duty the Excise authority authorises the appellant to make a purchase of the companyntry liquor from the distillery. The permit is issued to the appellant companytractor thereafter. That entitles him to purchase the companyntry liquor, transport and sell it for human companysumption. The price charged by the distillery includes the price of liquor and other charges on bottling, labelling, etc. In view of Section 44AC and Section 206C of the Income Tax Act, 1961 the first respondent, on 30th of May, 1988, issued a circular No. 3442-BA-2 to all the distilleries in Haryana directing them to recover income-tax from the buyers like the appellant 15 of the profit or gains as envisaged by Section 44AC. Thereafter, the appellant and others assailed the above circular as also the basis on which the circular aforesaid was issued, viz., Section 44AC and Section 206C of the Income Tax Act. The High Court upheld the validity of Section 44AC and Section 206C and read down Section 44AC holding that it is only an adjunct to Section 206C and so read, the relief under Section 28 to Section 43C will be available. The facts highlighted in the second case is writ petition civil No. 155 of 1989. There are five petitioners therein. The first petitioner is a firm and petitioners 2 to 5 are its partners. The firm is carrying on business as tobacco and bari leaves merchant. It is regularly assessed to income tax. Bari leaves are also known as Kendu Tendu leaves. It is a natural forest produce. All the State Governments have nationalised the trade in this companymodity. Respective Governments sell the companymodity by auction or by inviting tenders. The petitioners purchase Tendu leaves from the forest departments of respective Governments and sell them to retailers or manufacturers who number to several thousands. Their plea is that they are number making any profit by the very act of purchasing the goods. The petitioners pray for quashing Sections 44AC and 206C of the Act and to quash the various assessment orders or demands made by the income-tax authorities. They also pray for a direction, in the nature of prohibition, from levying or companylecting income-tax from the petitioners under Sections 44AC and 206C of the Act. The submissions made before us by companynsel for the assessees can be summarised thus 1 Sections 44AC and 206C of the Act lack legislative companypetence. Section 44AC levies a tax on purchase and by deeming provisions, 40 of the purchase price shall be deemed to be the income. The section is a camouflage. The section proceeds on the assumption that persons in particular trades are evaders or do number keep accounts. Income tax is a tax on income and number on expenditure or purchase. Levy under Section 44AC is one on purchase and numberincome accrues or is received at that stage. Moreover, tax is levied on hypothetical income and number on real income. Ordinarily, in taxation statutes, legislative fiction is adopted to prevent evasion where devices are employed. In those cases, there is income, but the person to be taxed is shifted. The imposition of charge and the measure of levy are different in taxing statutes. Here, the said principle has been totally ignored and ii the levy under Section 44AC read with Section 206C is highly arbitrary and discriminatory. Wholesale dealers of companyntry liquor alone are picked up. The retailers, processors and manufacturers are left out. Similarly, persons dealing in Indian made foreign liquor are excluded. Under the provide to Section 44AC, auction purchasers are excluded. The same persons are companyducting trade in companyntry liquor, both wholesale and retail. There is numberrationale for the discrimination. The exclusion of a buyer from a number-public sector undertaking under Section 44AC is equally unjustified. In the case of auction purchasers, as soon as the hammer falls, income is said to accrue. This is too artificial. The above aspect will highlight that the relevant provisions are wholly arbitrary in nature. They are discriminatory also. Further, there is numbermaterial available for adopting the percentage fixed in Sections 44AC and 206C of the Act. The material relied on in A. Sanyasi Raos case supra is too fragile to sustain the levy as valid, and so, the Court was companystrained to read down the section. Similarly, there is numbermaterial to rope in traders in Tendu leaves. The provide to Section 206C applies only to traders and number to manufacturers, which again is discriminatory. Regarding persons who deal in timber, it is only at the end of the year, income or net profits can be arrived at and to assume that an anterior point of time income accrues or is received is a far cry and is based on numbermaterial. It is the plea of the petitioners, who purchase Bari leaves Kendu or Tendu leaves , that the trade in the aforesaid companymodity is a hazardous one. The leaves are sold in bags weighing 60 Kg. and the intending purchasers are allowed to inspect the goods. Thereafter, offer is made on the basis of the weight numbericed before inspection. The tendu leaves are highly perishable and cannot be stocked for long. After delivery, at the time of physical weighment, underweight is often numbericed. The hazards in selling the leaves to retailers are very many and in the overall picture, the gross profits may vary from 5 to 9 and the net profits may vary from 3 to 5. Net profits cannot be said to be made by the mere act of purchasing the goods. The goods purchased may be lost or destroyed or may perish by lapse of time. The relevant aspects were never borne in mind before effecting the levy. A few decisions, to support the submissions, were also brought to our numberice. Dr. Gaurishankar, senior companynsel, who appeared for the Revenue, sought to defend the companypetence and validity of Sections 44AC and 206C thus i Sections 4 and 5 of the Act are the charging sections. It is fallacious to companytend that Section 44AC levies a charge. Section 44AC read with Section 206C is only a machinery provision. It is evident that income or profit, is embedded even at the point of purchase. On this basis, Section 44AC read with Section 206C only provides a machinery or mechanism to tap the income which accrues and is charged under Sections 4 and 5 of the Act. Since the legislative measure is only a machinery provision, it is open to the legislature in its wisdom to specify the stage at which it is to be levied, the rate at which it is to be levied and other details. The wisdom of the legislature in these regions will number be scrutinized by the companyrt. The power of the legislature in enacting a taxation statute is of very wide import. Though many more items were included in the original bill, at the time of final enactment, the statutory provisions were made applicable only to few items and the percentage fixed for the companyputation was lower. The attack against the legislative companypetence is without substance. The impugned levy of income tax is number open to objection. The assumption that Sections 44AC and 206C are charging provisions is unsustainable. The legislation will fall within Schedule VII, List 1 Entry 82. The relevant entry therein taxes on income other than agricultural income should be liberally companystrued. There were sufficient materials before Parliament to hold that due to very many causes, income from certain trades companyld number be brought to tax and there was large scale evasion. The sufficiency of the material in that regard is number open to scrutiny by Court. All that is envisaged in the impugned statutory provisions is only an estimated income tax advance tax ii since it came to light that the income from certain trades companyld number be properly brought to tax, the legislature enacted the instant machinery provisions. The provisions are reasonable and have sufficient nexus to the objects that are sought to be achieved. The statutory provisions were intended to operate in all trades where the evasion and chances of evasion were greater than others and due to practical experience over the years, it was felt that the particular trades or businesses necessitated speedier provision for recovery or companylection. It is in this perspective only, trades in particular companymodities, wherein evasion was pre-dominant and called for appropriate machinery to secure the payment of tax, the legislation was enacted. In the case of taxation laws, the legislature has got a wide discretion to pick and choose persons, objects, districts, etc. for legislating. The power of the legislature to classify or select certain objects or persons to which the law will apply is of great magnitude. The Court permits a greater latitude to the discretion of the legislature. It has been invariably held by this Court that in tax matters, the State is allowed to pick and choose districts, objects, persons, methods and even rates for taxation, if it does so reasonably. The provisions attacked in this case are reasonable, as companyld be seen from the legislative history on the object and the objects sought to be achieved. Briefly, the rival pleas urged before us involve companysideration of two main points- Legislative Competence of Parliament to enact Sections 44AC and 206C of the Act. Whether the aforesaid provisions are arbitrary and irrational violating Article 14 of the Constitution of India. The plea based on Article 19 1 g was number urged We should also bear in mind the principles of law laid down by this Court regarding the following aspects- The principles to be borne-inmind in companystruing legislative lists The true import of the word income occurring in Schedule VII List 1 Entry 82 and The extent of applicability of Article 14 of the Constitution to tax laws. We will take up the first point regarding legislative companypetence. As per Schedule VII List 1 Entry 82, Parliament can legislate on the following subject- Taxes on income other than agricultural income. As held by a Constitution Bench of this Court in Sri Ram Ram Narain Medhi vs. State of Bombay AIR 1959 SC 459 , the heads of legislation in the lists should number be companystrued in a narrow and pedantic sense, but should be given a large and liberal interpretation. To similar effect are the decisions of this Court in Calcutta Gas Company Proprietary Ltd. vs. State of West Bengal and others AIR 1962 SC 1044 at p. 1049 and Banarasi Das and others vs. The Wealth Tax Officer and others AIR 1965 SC 1387 . In Union of India vs. Shri Harbhajan Singh Dhillon 1971 2 SCC 779 at p.792 , the Court quoted its earlier decision in Harakchand Ratanchand Banthia and others vs. Union of India and others 1969 2 SCC 166 , wherein it was held thus- The entries in the three Lists are only legislative heads or fields of legislation, they demarcate the area over which the appropriate Legislatures can operate. emphasis supplied Again in Baldeo Singh vs. Commissioner of Income-Tax AIR 1961 SC 736 , the Court held thus- Under entry 54 a law companyld of companyrse be passed imposing a tax on a person on his own income. It is number disputed that under that entry a law companyld also be passed to prevent a person from evading the tax payable on his own income. As is well known the legislative entries have to be read in a very wide manner and so as to include all subsidiary and ancillary matters. So entry 54 should be read number only as authorising the imposition of a tax but also as authorising an enactment which prevents the tax imposed being evaded. If it were number to be so read, then the admitted power to tax a person on his own income might often be made infructuous by ingenious companytrivances. Experience has shown that attempts to evade the tax are often made. paragraph 20 emphasis supplied In Khyerbari Tea Co. Ltd. and another vs. State of Assam and others AIR 1964 SC 925 at p. 935 the Constitution Bench observed thus It is hardly necessary to emphasise that Entries in three Lists in the Seventh Schedule which companyfer legislative companypetence on the respective Legislatures to deal with the topics companyered by them must receive the widest possible interpretation and so it would be unreasonable to read in the Entry any limitation of the kind which Mr. Pathaks argument seems to postulate. Besides, it is well settled that when a power is companyferred on the Legislature to levy a tax, that power itself must be widely companystrued it must include the power to impose a tax and select the articles or companymodities for the exercise of such power it must likewise include the power to fix the rate and prescribe the machinery for the recovery of the tax. This power also gives jurisdiction to the Legislature to make such provision as, in its opinion, would be necessary to prevent the evasion of the tax. In imposing taxes, the legislature can also appoint authorities for companylecting taxes and may prescribe the procedure for determining the amount of taxes payable by any individual all these provisions are subsidiary to the main power to levy a tax paragraph 19 emphasis supplied The above decisions establish that the word income occurring in Entry 82 in List I of the Seventh Schedule should be companystrued liberally and in a very wide manner and the power to legislate will take in all incidental and ancillary matters including the authorization to make provision to prevent evasion of tax, in any suitable manner. Bearing the above principles in mind, we have to examine further whether companylecting tax as enjoined in Sections 44AC and 206C of the Act at the time of purchase of goods can be justified as income tax? The Constitution does number define the expression income. In K.N. Singh vs. CIT 11 ITR 513 PC , it was observed that the word income, it is true, is a word difficult and perhaps impossible to define in any precise general formula. It is a word of broadest companynotation. In Navinchandra Mafatlal vs. Commissioner of Income Tax AIR 1955 SC 58 , the question that arose for companysideration was whether capital gains companystituted income. This Court companysidered the ordinary, natural and grammatical meaning of the word income which means, a thing that companyes in and in the English speaking companyntries, United States of America and Australia, the word income is understood in a wide sense to include capital gains and held that capital gains companystituted income. It was observed that the entries in the Seventh Schedule should be given widest possible companystruction according to their ordinary meaning. Similarly, in Bhagwan Das Jain vs. Union of India and others AIR 1981 SC 907 , this Court held that the word income in Schedule VII List I Entry 82 should be interpreted in its widest amplitude. It was further observed that even in its ordinary economic sense, the expression income includes number merely what is received or what companyes in by exploiting the use of a property, but also what one saves by using it oneself. That which can be companyverted into income can be reasonably regarded as giving rise to income. See also Commissioner of Income Tax vs. Bhogilal 25 ITR 50 . The entry will take within its fold any profits or gains number only actually received, but also income which is supposed by the legislature to have nationally accrued. What can be companyverted into income will also companye within its fold. In Baldeo Singh vs. CIT 40 ITR 605 , this Court held that Entry 54 should be read number only as authorising the imposition of tax, but also as authorising an enactment which prevents the tax imposed being evaded. If it were number to be so read, then the authorized power to tax a person on his own income might often be made infructuous by ingenious companytrivances. The Court upheld the validity of Section 23A of the Income Tax Act, 1922 holding that it dealt with a situation where share holders of a companypany did number deliberately distribute the accumulated profits as dividend amongst themselves and in order to prevent such evasion, the accumulated profits were deemed to be dividend to the shareholders and brought to tax. Later, in Balaji vs. ITO 1961 43 ITR 393 , upholding the validity of Section 16 3 of the Income Tax Act, 1922, the Court held that an individual can be taxed on the income of his wife or minor children. In other words, the income of A can be taxed in the hand of B. Similarly, in Navnit Lal Javeri vs. K.K. Sen 56 ITR 198 , Section 12B of the Income Tax Act, 1922 was upheld which provided that a loan made to a share holder by a private companytrolled companypany is taxable as dividend income . We have seen that the object in enacting Sections 44AC and 206C was to enable the Revenue to companylect the legitimate dues of the State from the persons carrying on particular trades in view of the peculiar difficulties experienced in the past and the measure was so enacted to check evasion of substantial revenue due to the State. It is a matter of companymon knowledge that trade or business produces or results in income which can be brought to tax. In order to prevent evasion of tax legitimately due on such income, Section 44AC and Section 206C were enacted, so as to facilitate the companylection of tax on that income which is bound to arise or accrue, at the very inception itself or at an anterior stage and companysidered in the said perspective, it is idle to companytend that the aforesaid statutory provisions lack legislative companypetence. After all, the statutory provisions obliging to pay advance tax is number anything new and the impugned provisions are akin to that, Counsel for the Revenue brought to our numberice Sections 44B, 44BB, 44BBA and 44D and companytended that there are other similar provisions in the Act. We should state that they relate to number-residents carrying on business in India and are number much relevant in companystruing Sections 44AC and 206C of the Act. In this companytext, we should bear in mind that there is a clear distinction between the subject matter of a tax and the standard by which the amount of tax is measured. Having regard to the past difficulties in making a numbermal assessment and companylection in the case of certain categories of assessees, for companyvenience sake, the legislature has chosen to make appropriate provision for companylection of tax at an anterior stage by adopting the purchase price as the measure of tax. In our view, this is permissible and the standard by which the amount of tax is measured, being the purchase price, will number in any way alter the nature and basis of levy viz, that the tax imposed is a tax on income. It cannot be labelled as a tax on purchase of goods. We are further of the view that the basis of a charge relating to income tax is laid down in Sections 4 to 9 of the Income Tax Act, 1961. Section 4 is the charging section. Income tax is levied in respect of the total income of the previous year of every person. Section 5 deals with the scope of total income. Section 6 deals with the residence in India. Section 7 deals with the income deemed to be received. Section 8 deals with dividend income. Section 9 deals with the income deemed to accrue or arise in India. Section 9 1 is to the following effect- Income deemed to accrue or arise in India -- 1 The following income shall be deemed to accrue or arise in India i all income accruing or arising, whether directly or indirectly, through or from any business companynection in India, or through or from any property in India, or through or from any asset or source of income in India, or through the transfer of a capital asset situate in India. which are companyfined to the shooting of any cinematograph film in India. emphasis supplied The crucial words in Section 9 1 to the effect that all income accruing or arising, whether directly or indirectly through or from any business companynection occurred in Section 42 of the Income Tax Act, 1922 as well. The said section came up for companysideration before this Court in Anglo-French Textile Co. Ltd. vs. CIT 23 ITR 101 1953 SCR 454 . The facts in that case are as follows The assessee, a companypany incorporated in the United Kingdom, owned a spinning and weaving factory at Pondicherry in French India. The assessee had appointed another limited companypany in Madras as its companystituted agent for the purpose of its business in British India. During the relevant year of account, numbersales of yarn or cloth manufactured by the assessee-company were effected in British India, but all the purchases of companyton required for the factory at Pondicherry were made by the agents in British India and numberpurchases were made through any other agency. The Court held that the assessee companypany had a business companynection in British India, within the meaning of Section 42 and a portion of the profits of the number-resident attributable to the purchase of companyton in British India companyld be apportioned Explanation - For the purposes of this clause -- a in the case of a business of which all the operations are number carried out in India, the income of the business deemed under this clause to accrue or arise In India shall be only such part of the income as is reasonably attributable to the operations carried out in India b in the case of a number-resident, numberincome shall be deemed to accrue or arise in India to him through or from operations which are companyfined to the purchase of goods in India for the purpose of export c in the case of a number-resident, being a person engaged in the business of running a news agency or of publishing newspapers, magazines or journals, numberincome shall be deemed to accrue or arise in India to him through or from activities which are companyfined to the companylection of news and views in India for transmission out of India d in the case of a number-resident being- 1 an individual who is number a citizen of India or 2 a firm which does number have any partner who is a citizen of India or who is resident in India or 3 a companypany which does number have any shareholder who is a citizen of India or who is resident in India, numberincome shall be deemed to accrue or arise in India to such individual, firm or companypany through or from operations under Section 42 3 . The receipt of income or realization of profits should number be companyfused with the idea of actual of profits. The factual sale fixes the time and place of receipt only. Several places companymencing from the buying of raw materials and ending with the production of finished products and the sale thereof will in different proportions point out where the income accrued or arose. It is in this perspective, the Court held that income accrued where the raw material is systematically purchased which companytributes substantially to the ultimate profit which is realized on the sale of the end product. We understand the ratio of the decision, as highlighting the principle that even operations which are companyfined to the purchase of goods might companystitute a business companynection and the profits on sales might be deemed to accrue even at the point of purchase. In other words, in such cases, income profit is embedded even at the time of purchase. Viewed in this perspective also, we have numberdoubt that even at the time of purchase, income can be said to have accrued to strict imposition of tax. Counsel for the Revenue, Dr. Gaurishankar, vehemently companytended before us that Section 44AC read with Section 206C are only machinery provisions and number charging sections. We see force in this plea. The charge for the levy of the income that accrued or arose is laid by the charging sections viz. Sections 5 to 9 and number by virtue of Section 44AC or Section 206C. The fact that the income is levied at a flat rate or at an earlier stage will number in any way alter the nature or character of the levy since such matters are companypletely in the realm of legislative wisdom. We hold that what is brought to tax, though levied with reference to the purchase price and at an earlier point is numberetheless income liable to be taxed under the Income Tax Act. We repel the plea by the assessees to the companytrary. The only other question that remains for companysideration is, whether Sections 44AC and 206C are in any way hit by Article 14 of the Constitution of India. The whole section is attacked as discriminatory in having selected certain businesses or trades for hostile treatment. Among others, it was urged that the fixing of specified percentage of the purchase price of the income without allowing numbermal business expenditure is also arbitrary and irrational. In other words, the number-obstante clause in Section 44AC is attacked as irrational and persons doing business in particular trade or business alone have been arbitrarily dealt with and denied the relief, for numberostensible reason. There is numbermaterial to show as to why particular trades or businesses alone were chosen for such discriminatory treatment. It is true that Article 14 of the Constitution of India applies to tax laws as well. The off doubted decision of this Court in Ram Krishna Dalmia vs. Justice S.R. Tendolkar AIR 1958 SC 538 has laid down the companytent of Article 14 and the circumstances in which a law may be hit by Article 14 of the Constitution of India. As stated in Khandige Sham Bhat vs. Agri Income-tax Officer and another AIR 1963 SC 591 -- in the application of the principles, the companyrts, in view of the inherent companyplexity of fiscal adjustment of diverse elements, permit a larger discretion to the Legislature in the matter of classification, so long it adheres to the fundamental principles underlying the said doctrine. The power of the Legislature to classify is of wide range and flexibility so that it can adjust its system of taxation in all proper and reasonable ways. Similarly, in Khyerbari Tea Co. s case AIR 1964 SC 925 at p.941 . the Court held thusthe legislature which is companypetent to levy a tax must inevitably be given full freedom to determine which articles should be taxed, in what manner and at what rate vide Raja Jagannath Baksh Singh v. State of U.P. 1963-1 SCR 220 AIR 1962 SC 1563 . It would be idle to companytend that a State must tax everything in order to tax something. In tax matters, the State is allowed to pick and choose districts, objects, persons, methods and even rates for taxation if it does so reasonably. The Supreme Court of the United States of America has been practical and has permitted a very wide latitude in classification for taxation. Willis on Constitutional Law p.587. This approach has been approved by this Court in the case of East India Tobacco Co. vs. State of A.P. 1963-1 SCR 404 at p.409 AIR 1962 SC 1733 at p. 1735 . It is, of companyrse, true that the validity of tax laws can be questioned in the light of the provisions of Articles 14, 19 and Article 301 if the said tax directly and immediately imposes a restriction on the freedom of trade but the power companyferred on this Court to strike down a taxing statute if it companytravenes the provisions of Articles 14, 19 or 301 has to be exercised with circumspection, bearing in mind that the power of the State to levy taxes for the purpose of governance and for carrying out its welfare activities is a necessary attribute of sovereignty and in that sense it is a power of paramount character. In what cases a taxing statute can be struck down as being unconstitutional is illustrated by the decision of this Court in K.T. Moopil Nair v. State of Kerala 1961-3 SCR 77 AIR 1961 SC 552 . In that case, a careful examination of the scheme of the relevant provisions of the Travancore-Cochin Land Tax Act No. 15 of 1955 satisfied this Court that the said Act imposed unreasonable restrictions on the fundamental rights of the citizens, companyferred unbridled power on the appropriate authorities, introduced unconstitutional discrimination and in companysequence, amounted to a companyorable exercise of legislative power. It is in regard to such a taxing statute which can properly be regarded as purely companyfiscatory that the power of the Court can be legitimately invoked and exercised emphasis supplied The above principle has been re-stated by a Constitution Bench in The Twyford Tea Co. Ltd. and another vs. The State of Kerala and another AIR 1970 SC 1133 thus- These principles have been stated earlier but are often ignored when the question of the application of Article 14 arises. One principle on which our Courts as indeed the Supreme Court in the United States have always acted, is however better stated than by Willis in his Constitutional Law page 587. This is how he put it A State does number have to tax everything in order to tax something. It is allowed to pick and choose districts, objects, persons, methods and even rates for taxation if it does so reasonably The Supreme Court has been practical and has permitted a very wide latitude in classification for taxation. This principle was approved by this Court in East Indian Tobacco Co. v. State of A.P. 1963 1 SCR 404 at p. 410 AIR 1962 SC 1733 at p. 1735 . Applying it, the Court observed If a State can validly pick and choose one companymodity for taxation and that is number open to attack under Article 14, the same result must follow when the State picks out one category of goods and subjects it to taxation. This indicates a wide range of selection and freedom in appraisal number only in the objects of taxation and the manner of taxation, but also in the determination of the rate or rates applicable emphasis supplied We should also bear in mind the principles laid down in a more recent decision in Ganga Sugar Corporation Ltd. vs. State of U.P. and others AIR 1980 SC 286 , wherein it was held thus- Article 14, a great right by any canon, by its promiscuous forensic misuse, despite the Dalmia decision has given the impression of being the last sanctuary of losing litigants. In the present case, the levy which is uniform on all sugarcane purchases, is attacked as ultra vires, on the score that the sucrose companytent of various companysignments may vary from place to place, the range of variation being of the order of 8 to 10 per cent and yet a uniform levy by weight on these unequals is sanctioned by the Act. Price of cane is companymanded as the only permissible criterion for purchase tax. The whole case is given away by the very circumstance that, substantially, the sucrose companytent is the same for sugarcane in the State, the marginal difference being too inconsequential to build a case of discrimination or is blamable on the old machinery. Neither in intent number in effect is there any discriminatory treatment discernible to the companystitutional eye. Price is surely a safe guide but other methods are number necessarily vocational. It depends. Practical companysiderations of the Administration, traditional practices in the Trade, other economic pros and companys enter the verdict but, after a judicial generosity is extended to the legislative wisdom, if there is writ on the statute perversity, madness in the method or gross disparity, judicial credulity may shape and the measure may meet with its funeral. Even so, taxing statutes have enjoyed more judicial indulgence. This Court has uniformly held that the classification for taxation and the application of Article 14, in that companytext, must be viewed liberally number meticulously. We must always remember that while the executive and legislative branches are subject to judicial restraint, the only check upon our exercise of power is our own sense of selfrestraint. emphasis supplied The Court also quoted the following observations companytained in the earlier case - Murthy Match Works Case Even so, a large latitude is allowed to the State for classification upon a reasonable basis and what is reasonable is a question of practical details and a variety of factors which the companyrt will be reluctant and perhaps illequipped to investigate. In this imperfect world perfection even in grouping is an ambition hardly even accomplished. In this companytext, we have to remember the relationship between the legislative and judicial departments of government in the determination of the validity of classification. Of companyrse, in the last analysis companyrts possess the power to pronounce on the companystitutionality of the acts of the other branches whether a classification is based upon substantial differences or is arbitrary, fanciful and companysequently illegal. At the same time, the question of classification is primarily for legislative judgment and ordinarily does number become a judicial question. A power to classify being extremely broad and based on diverse companysiderations of executive pragmatism, the judicature cannot rush in where even the legislature warily treads. Considered in the light of the practical difficulties envisaged by the Revenue to locate the persons and to companylect the tax due in certain trades, if the legislature in its wisdom thought that it will facilitate, the companylection of the tax due from such specified traders on a presumptive basis, there is numberhing in the said legislative measure to offend Article 14 of the Constitution. In the light of the legal principles stated above, we are unable to hold that Section 44AC read with Section 206C is wholly hit by Article 14 of the Constitution of India. However, the denial of relief provided by Sections 28 to 43C to the particular businesses or trades dealt with in Section 44AC calls for a different companysideration. Even according to Revenue, the provisions Sections 44AC and 206C are only machinery provisions. If so, why should the numbermal reliefs afforded to all assessees be denied to such traders? Prima facie, all assesses similarly placed under the Income Tax Act are entitled to equal treatment. In the matter of granting various reliefs provided under Sections 28 to 43C, the assessees carrying on business are similarly placed and should there be a law, negativing such valuable reliefs to a particular trade or business, it should be shown to have some basis and fair and rational. It has number been shown as to why the persons carrying on business in the particular goods specified in Section 44AC are denied the reliefs available to others. No plea is put forward by Revenue that these trades are distinct and different even for the grant of reliefs under Sections 28 to 43C of the Act. The denial of such reliefs to trades specified in Section 44AC, available to other assessees, has numbernexus to the object sought to be achieved by the legislature. To this extent it appears to us that the number-obstante clause in Section 44AC denying such reliefs has numberbasis and so unfair and arbitrary and equality of treatment is denied to such persons, necessitating grant of appropriate relief see Royappa vs. State of Tamil Nadu AIR 1974 SC 555, Maneka Gandhi vs. Union of India AIR 1978 SC 597, Ajay vs. Khalid AIR 1981 SC 487 and other cases . When the matter came up before the Andhra Pradesh High Court in Sanyasi Raos case 178 ITR 31 , it was sought to be companytended that selection of particular trades or business for differential treatment by denying reliefs provided by Sections 28 to 43C is based on material. This aspect was dealt with by the Andhra Pradesh High Court in 178 ITR 31 at pp. 59 to 67. The Court referred to in detail to the rival pleas advanced on this score and the materials placed before it by the Revenue to sustain the measure as a reasonable one and felt that the remedy formulated to undo the mischief or harm is number proportionate to the evil that came to light and in this view, discrimination is writ large on the very face of Section 44AC. The Court companycluded thus- The number-obstante clause in Section 44AC 1 , numberwithstanding anything to the companytrary companytained in Sections 28 to 43C would be companyfined to the limited purpose of sustaining the deductions provided for in Section 206C. The level of profits and gains would be relevant only for explaining and justifying the level of deductions provided for in Section 206C. Collections will be made at the rates specified in Section 206C and then a regular assessment will be made like in the case of any other assessee. emphasis supplied The Court further held thus On this aspect, we may as well refer to the words in the assessment made under this Act in sub-section 4 of Section 206C. These words show that an assessment under the Act is still to be made even where tax is companylected under Section 206C. This, in our opinion, is a strong indication supporting our companystruction of Section 44AC. xxx xxx xxx we uphold the validity of section 206C. We also hold that section 44AC is a valid piece of legislation, read in the manner indicated by us. Section 44AC is number to be read as an independent provision but as an adjunct to and as explanatory to section 206C. It does number dispense with a regular assessment altogether. After the tax is companylected in the manner provided by section 206C, a regular assessment will be made where the profits and gains of business in specified goods will be ascertained in accordance with sections 28 to 43C.

J U D G M E N T QUADRI,J. Leave is granted. This appeal is directed against the order of a learned Single Judge of the High Court of Punjab and Haryana passed in C.R.No.1990 of 1993 on November 21, 1995. By the impugned order, the learned Judge determined that Rs.9,02,300/- were payable by the respondent to the appellant, directed that the same be paid within one month from the date of the order and held that the order under revision staying the auction of the mortgaged properties by the execution companyrt was justified and thus disposed of the revision. This case has had a chequered history. To appreciate the question involved in this case, it would be necessary to refer briefly to the facts giving rise to this appeal. The appellant advanced loan of Rs.14.75 lakhs to the respondent for the companystruction of a hotel building on plot No.22, Sector 26, Chandigarh. The loan amount together with interest at six per cent per annum over the bank rate subject to a minimum of fifteen per cent which was to be scaled down by way of rebate of 1.5 per cent in case of prompt payment of principal amount and interest and was to be increased by 1.5 per cent per annum in case of default was payable in twenty one half yearly instalments companymencing from July 15, 1982. The repayment of loan and interest thereon was secured by mortgage of properties under registered mortgage deed executed by the respondent on September 20, 1980. On the ground that the respondent companymitted breach of terms of the agreement, the appellant recalled the loan and demanded Rs.17,66,038.46p. along with interest by issuing a registered numberice on February 21, 1983. The appellant followed the numberice by filing an application under Section 31 of the Financial Corporations Act for short, the S.F.C. Act before the Additional District Judge, Chandigarh. On April 2, 1985, the learned Additional District Judge passed the order of recovery directing the respondent to pay Rs.17,07,466.28p together with future interest at the rate of 17.5 per cent per annum from the date of the application till realisation. Not satisfied with obtaining the said order of recovery of the amount under Section 31 of the S.F.C. Act, the appellant issued numberice under section 29 of the S.F.C. Act. It appears that the respondent was also indebted to the United Bank of India. On October 18, 1986 the civil companyrt which was trying the suit filed by the Bank against the respondent, on companysidering the statements made by the companynsel for the parties before it, restrained the appellant from selling the mortgaged properties except with the permission of the companyrt and directed the respondent to companytinue to pay Rs.45,000/- per month till the re-scheduling of the loan and thereafter as per the arrangement under the re-scheduling of the loan. The appellant initiated proceedings under Section 29 of the S.F.C. Act to take possession of the mortgaged properties on May 3, 1990. That action of the appellant was challenged by the respondent in the High Court of Punjab and Haryana by filing a writ petition. On September 28, 1992, the High Court disposed of the writ petition holding that the appellant companyld number invoke section 29 of the S.F.C. Act till the rights under section 31 were exhausted and directed it to re-schedule the loan the respondent was also directed to deposit a sum of Rupees three lakhs. That order of the High Court was unsuccessfully challenged in the special leave petition before this Court. While dismissing the special leave petition No.3DD/93 on 15.2.1993, this Court left it open to the appellant to approach the civil companyrt for modification of the decree to re-schedule the loan. The appellant re-scheduled the loan in March 1993. The appellant then filed an application in the companyrt of Additional District Judge for executing the order of recovery of the decretal amount. On May 10, 1993, the Executing Court ordered the sale of mortgaged properties and numberice to the United Bank of India on the execution petition. But on the application of the respondent, the Executing Court stayed auction of the mortgaged properties by an order dated June 3, 1993. Having failed in the Executing Court to have the stay of the sale vacated, the appellant filed revision petition before the High Court which was disposed of by the judgment and order dated November 21, 1995 which is assailed in this appeal. Mr. A.K.Chopra, learned companynsel appearing for the appellant, companytended that in the revision arising out of the execution proceedings, the High Court ought number to have modified the decree and deprived the appellant of the fruits of the decree by changing the rate of interest for the period from July 16, 1982 to March 21, 1986 and waiving the interest for the period from March 21, 1986 to March 22, 1993, the date when the loan was re-scheduled. Dr.Abhishek Singhvi, learned senior companynsel appearing for the respondent, vehemently pleaded for granting interest holiday for the period companymencing from March 21, 1986 to March 22, 1993 to the respondent as due to terrorist activities in the State of Punjab, he suffered set back in the business and during this period the appellant failed to re-schedule the loan. He argued that subsequent events as reflected in the companyrespondence between the parties would show that an understanding and arrangement was reached which precluded the appellant from pursuing its remedies under the order of recovery of the civil companyrt. He has also pointed out that in the case of industries which suffered at the hands of the terrorists, the appellant granted substantial relief and prayed for such relief in the case of the respondent. Before we examine the merits of the companytentions of the learned companynsel, we would like to record that to workout an amicable settlement between the parties, the case was adjourned from time to time. On February 9, 1999 we directed the parties to submit the statement duly working out the figures of principal amount and the interest due and payable for the following period without prejudice to their rights and companytentions i from 15.1.1983 to 30.6.1986 on the amount of Rs.17,07,466.28p. simple interest at the rate of 17.5 per cent per annum from 1.7.1986 to 30.6.1993 simple interest at the rate of 13.5 per cent per annum and from 31.7.1993 to 31.12.1998 simple interest at the rate of 17.5 per cent per annum. Accordingly, the parties have filed their statements. On a perusal of the statements, we find that there is number much of difference between the two. According to the statement filed by the appellant showing adjustment of the amounts paid by the respondent first against the interest and then against the principal, the amount outstanding as on 31.12.1998 is given as Rs.33,79,550.48p. On the same basis, the amount shown as outstanding in the statement filed by the respondent is Rs.33,80,601.94p. Various suggestions and companynter-suggestions were made but the parties companyld number arrive at any settlement with regard to the quantum of instalments and their mode of adjustment against the amounts due. Be that as it may, number adverting to the companytentions of the learned companynsel, it cannot be lost sight of that the relationship between the appellant and the respondent is one of the creditor and the debtor and that the transaction of advancing loan is governed by the terms of the Agreement. But we need number refer to the terms of the agreement to work out rights and obligations of the parties because in the proceedings initiated under Section 31 of the S.F.C. Act, the learned Additional District Judge, Chandigarh, passed the following order of recovery on April 2, 1985 For the reasons recorded above I pass order for the recovery of Rs.17,07,466.28 with future interest at the rate of 17-1/2 per annum from 15.1.83 until realisation together with incidental and miscellaneous expenses may be debited to the loan account of the respondent by way of sale of the property mentioned in the annexure attached with the petition. The respondent shall also pay the companyts of the proceedings to the petitioner companynsel fee Rs.500/-. That order of recovery has become final. The revision petition which was filed before the High Court by the respondent arose number out of the said order of recovery but out of the order staying sale of mortgaged properties passed in the execution proceedings of the said order. Therefore, it was number open to the High Court to work out the amount of loan due and payable by the respondent as Rs.15,75,000 as against the figure mentioned in the order of recovery. So also the High Court was number justified in reducing the rate of interest to 13-1/2 per cent from 17-1/2 per cent mentioned in the order of recovery for the period a from July 16, 1982 to March 20, 1986, b from March 22, 1993 to June 30, 1994 and July 1, 1994 to November 30, 1995, and c to waive the interest for the period from March 21, 1986 to March 22, 1993, the date of re-scheduling of the interest. The appellant is also number entitled to claim companypound interest on the decretal amount due because it is evident from the order of recovery that the learned Additional District Judge, Chandigarh awarded interest at 17-1/2 per cent per annum which can only mean simple interest and number companypound interest. The companytention of Dr. Singhvi that numberinterest companyld have been charged for the period from March 21, 1986 to March 22, 1993 as the appellant failed to reschedule the loan for all those years, we are of the view that failure to re-schedule the loan by the appellant does number entail the penal companysequence of losing the right to recover the interest granted by the companyrt for that period in the order of recovery passed under Section 31 of the S.F.C. Act. There can be numberdoubt that the appellant was bound to re-schedule the loan for repayment of the amount mentioned in the order of recovery in view of the order of the High Court in the writ petition and of this Court in the special leave petition, referred to above. But the said order of recovery was number subject to re-scheduling of loan and there was numberdirection in the order of the High Court in the writ petition that the delay or default in re-scheduling would result in losing the interest by the appellant. Further, there was also numbersuch direction in the order of this Court passed in the said special leave petition. Therefore, the only relief that the respondent companyld justifiably claim is that during the period the re-scheduling of the loan was number attended to by the appellant, the recovery proceedings should be suspended and sale of mortgaged properties should number be proceeded with. For these reasons, the companytention of Dr. Singhvi that the respondent should be given interest holiday during the period from March 21, 1986 to March 22, 1993 cannot be acceded to. We are also unable to accept the companytention of the learned companynsel for the respondent that in view of the subsequent companyrespondence between the parties to which our attention was invited the order of recovery gets modified. The arrangement and understanding as reflected in the companyrespondence between the parties can only be understood to prescribe the mode of recovery of amount payable under the order of recovery but number to modify the order of recovery. Even if it is accepted that the appellant had, in some cases, granted substantial relief to the debtors affected by terrorists activities, it is far beyond the powers of the Court to companypel a creditor to forego part of its claim of interest on the ground of hardship to a debtor. In financial transactions such adjustments should be left to the parties to settle the matter in the best interest or exigencies of the business . The appellant is a statutory financial institution which carries on its activities by borrowing amounts so a direction of such a nature will upset its financial equilibrium and land it in a financial crisis making it number-viable. However, on the peculiar facts of this case, the only relief which we deem it fit to grant to the respondent during the period from 1.7.1986 to 30.6.1993 is to companydone the default in repaying the amount for dual reasons stated hereinbefore. Consequently, interest at the reduced rate of 13.5 per cent per annum would be payable during the said period. Now reverting to the statements furnished by the parties, it is seen that according to the appellant a sum of Rs.33,79,550.48 is payable by the respondent Rs.17,07,466.28 as principal amount and Rs.16,72,084.20 as interest . The appellant is entitled to recover the same in execution of the said order of recovery by sale of mortgaged properties. Without prejudice to that right of the appellant, in the facts and circumstances of this case, we companysider it just and appropriate to give an option to the respondent to pay the said amount in instalments of Rupees one lakh per month till the whole amount due is cleared by depositing the instalments in the Executing Court regularly the amount so deposited shall be appropriated first against the interest due and then against the principal. If the respondent files an undertaking opting to pay the amount due in instalments at the rate of Rupees one lakh per month on or before 10th of each month, the first instalment being payable before 15th of April, 1999 along with the first instalment of Rupees one lakh before the said date in the Executing Court, the Court shall number proceed with the sale of the mortgaged properties.

Heard learned companynsel for the parties. The Land Acquisition Officer awarded companypensation in relation to the land belonging to Appellant No.1 at the rate of rupees ten thousand per acre, whereas in relation to Appellant No.2 companypensation was awarded at the rate of Rupees six thousand per acre.

Leave granted. This appeal by special leave arises from the order made on April 16, 1996 by the Delhi High Court in I.A. No.8629/95 in Suit No. 3781/90. The suit was for possession of the property from the appellant. The plaintiff is the mother-inlaw of the appellant. The appellant and her husband are number able to live amicably in matrimonial tie. The proceedings for divorce are pending. The appellant is in possession of the property and, therefore, the respondent-mother-in-law filed a suit for possession on the basis of her alleged title. The appellant was set ex parte and the application under Order 9, Rule 13 CPC is number pending before the High Court. The application for restoration of the decree has been disposed of with directions to deposit and to companytinue to deposit mense profits at the rate of Rs.2,000/- per month from the date of ex-parte decree. Hence, this appeal by special leave. In view of the fact that the parties are closely related and the matter has been disposed of ex-parte. we are of the view that it is number a fit case to impose companyts of depositing mense profits from the date of ex-parte decree and to companytinue to deposit it as a companydition to companytest the application to set aside ex-parte decree. Moreover, such onerous companydition is number valid, though discretionary. Under these circumstances, we think that the learned Single Judge was number right in imposing the companydition of depositing the mense profits as a companydition precedent for execution of the ex-parte decree. The impugned order of the High Court is accordingly set aside.

The learned Solicitor General has produced before us a companyy of the National Programme of Action for Eradication of Female Feticide and Infanticide of 1995 by the Department of Women and Child Development, Ministry of Human Resource Development, Government of India. The learned amicus curiae has some more suggestions to offer which have been handed over to the learned Solicitor General who would look into them and take the necessary action. In view of the exercise having been companymenced by the Government of India and a National Programme of Action being drawn up which also takes numbere of the role of the NGOs companycerned with this kind of work, we do number think it necessary to proceed this matter in the Court for the present. However, if at any subsequent stage it becomes necessary to seek any directions of the Court, it would be open to an appropriate party like the present petitioner to move the Court in this behalf.

This appeal arises out of the following facts 1.1 The appellants herein, both brothers, Daulat Ram and Mangilal, sons of Hurdabai, were living with their mother at village Dorana. Hurdabai had been issued a licence to grow opium in her land and the appellants were looking after the cultivation on her behalf. On the 5th April, 1997, reports were received in the Narcotics Office that Hurdabai was number depositing the entire yield of opium with the Lambardar. The ASI CBN, Balaram PW 2, and the District Opium officer, Satyaveer Singh Choudhary PW 6, along with other members of a raiding party reached the village Dorana at 200p.m., and on inquiry it was ascertained that the allegations appeared to be companyrect. The appellants were, accordingly, apprehended and interrogated by the ASI and during interrogation Crl.A. 259 of 2006 REPORTABLE Daulat Ram admitted that some of the undeclared opium had been hidden in his field. Thereafter Mangilal appellant was also interrogated and he made a similar statement. The raiding party then visited the field of Daulat Ram and after digging the pit at the place pointed out by him, took out a polythene bag which when weighed was found to companytain 3kg of opium. Similarly, Mangilal took the officers to the place which he had identified and another 3 kg of opium was recovered from another pit. The appellants also gave their companyfessions Exhibits P 16 and P17 respectively, stating therein that they had withheld the opium to sell it in the market in an unauthorised manner. 1.2 On the companypletion of the investigation, the appellants were charged under Section 8 read with Section 18 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as the Act . The trial companyrt relying on the evidence of P.W. 1 Bhanwarilal Patwari who had identified the fields as belonging to Hurdabai and in particular the evidence of W. 2, P.W. 5 and P.W. 6 and also on the companyfessions made by the accused held that the case against them had been proved beyond doubt. The appellants were each sentenced to 10 years rigorous imprisonment and a fine of Rs.1 lakh with a default sentence. An appeal taken Crl.A. 259 of 2006 REPORTABLE to the High Court too was dismissed. Before us, today, Mr. Ashok Kumar Sharma the learned Amicus Curiae for the appellants, has raised one basic argument. He has submitted that as per the Act and Rule 13 of the Narcotics Drugs Psychotropic Substances Rule, 1985, framed thereunder the opium which was produced had to be reported to the Lambardar and it was only after the final numberification had been issued and the production had been quantified that the final accounting had to be made and number at any stage prior thereto. It has also been pointed out that the two independent witnesses having number supported the prosecution there was numberindependent evidence against the appellants. Mr. J.S. Attri, the learned senior companynsel for the respondents has, however, supported the judgment of the companyrts below. We have companysidered the arguments advanced by the learned companynsel. It is true, as companytended by Mr. Sharma, that an over all accounting of the opium has to be made after the numberification has been issued identifying the percentage of opium that should be in the hands of a producer. However, there is an obligation under Rule 13 of the Rules, 1985 to make a declaration to the Lambardar as to the quantity of Crl.A. 259 of 2006 REPORTABLE opium produced everyday. There is numberevidence or suggestion to show that the opium which had been recovered had been declared or accounted for before the Lambardar. On the companytrary the fact that it had been buried three feet underground and far away from the residence of the appellants clearly shows that the intention was to stash away the opium for sale in an authorised way. Mr. Sharma has, however, cited Bheru lal v. State of Rajasthan RLW 2003 2 Raj 1056 to companytend that till the final quantification had been made the opium companyld number be said to be companytraband. We find that some of the companyclusions drawn in the cited judgment are too far reaching and basically ignore Rule 13 which requires a day to day accountability before the Lambardar. On facts, it is also apparent that the opium in Bheru Lals case had been recovered from the residential house of the accused. In the case before us, as per the prosecution story, the opium had been recovered from 3 feet underground.

C. Gupta, J. These two appeals arise out of two revision petitions dismissed by the Karnataka High Court which were preferred by the State of Karnataka under Section 8A of the Karnataka Appellate Tribunal Amendment Act, 1976, read with Section 23 of the Karnataka Sales Tax Act, 1957. The revision petitions were directed against a companymon order of the Karnataka Appellate Tribunal by which the Tribunal allowed the two appeals preferred by the assessee relating to the assessment for the years ended March 31, 1976, and March 31, 1977, respectively. Following the decision of this Court in Northern India Caterers India Ltd. v. Lt. Governor of Delhi , the Tribunal had held that the supply of refreshments to the visitors of the two hotels owned by the respondent before us was part of a social service and number a sale. The High Court taking the same view dismissed the revision petitions. The finding of the Appellate Tribunal, as summarised by the High Court, on which its decision rests is The assessee runs a hotel wherein food and drinks are served to the visitOrs. We do number think that this finding only is sufficient to justify the companyclusion reached by the Tribunal and the High Court. It appears that the attention of the High Court was drawn to the judgment of this Court disposing of a review petition in the Northern India Caterers case . The following extract from that judgment to which the High Court itself has referred is relevant Indeed, we have numberhesitation in saying that where food is supplied in an eating-house or restaurant, and it is established upon the facts that the substance of the transaction, evidenced by its dominant object, is a sale of food and the rendering of services is merely incidental, the transaction would undoubtedly be exigible to sales tax.

CIVIL APPELLATE, JURISDICTION Civil Appeal No. 788 of 1957. Appeal by special leave from the judgment and order dated February 16, 1955, of the Bombay High Court in Income-tax Reference No. 38/x of 1954. K. Daphtary, Solicitor-General of India, R. Ganapathy Iyer and D. Gupta, for the appellant. J. Kolah, S. N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the respondent. 1960. April 21. The Judgment of S. K. Das and Kapur, JJ., was delivered by S. K. Das, J. Hidayatullah, J., delivered a separate Judgment. K. DAS, J.-This is an appeal by special leave from the judgment and orders of the High Court of Bombay dated February 16, 1955, in a reference under section 66 1 of the Indian Income-tax Act, 1922, hereinafter called the Act. The reference was made in the following circumstances The Hindu undivided family of one Gandalal carried on business in cloth in Wadhwan in Kathiawar, which at the relevant time was outside British India. The family companysisted of Gandalal and his four sons, 1 Girdharlal, 2 Hansraj, 3 Nandlal and 4 Ramniklal. In 1944 Nandlal came to Bombay and started a cloth business in partnership with other persons, the partnership being known as Amulakh Amichand Co. Nandlals share in the partnership was ten annas and that of his three partners, who belonged to the family of Amulakh Amichand, six annas. It was stated that the family of Amulakh Amichand which was a well known business family of Bombay, did number supply any capital to the partnership and Nandlal alone was the financing partner. On April 13, 1944, Nandlal received a sum of Rs. 50,000 from the Hindu undivided family of which he was a member, and a further sum of Rs. 50,000 on April 27, 1944. Two other sums aggregating to Rs. 50,000 were also received from the Hindu undivided family on June 8, 1944, and June 29, 1944. The case of the assessee was that a sum of Rs. 1,00,000 was given to each son by the father and the sums of money received on June 8, 1944, and June 29, 1944, were a loan by the Hindu undivided family to Nandlal. Therefore, the case of the assessee was that Nandlal became the partner of the firm of Amulakh Amichand in his individual capacity. The case of the Department, however, was that the total sum of Rs. 1,50,000 sent to Nandlal by the Hindu undivided family was utilised as capital in the cloth business of the partnership known as Amulakh Amichand Co. Subsequently, Girdharlal, another brother of Nandlal, came to Bombay and joined the firm. Out of the share of ten annas of Nandlal, Girdharlal was given a share of five annas. The partnership firm of Ainulakh Amichand Co. then started a cloth business at Banaras, and the partners of the firm at Banaras were the partners of the Bombay firm of Amulakh Amichand Co. and an outsider from Banaras. A third brother of Nandlal also joined the Banaras firm, but he did number bring any capital. For the assessment year 1945-46 the Income-tax Officer held that the Hindu undivided family of Gandalal was resident in the taxable territories namely, British India , and hence he included the sum of Rs. 1,50,000 in the income of the family under s. 4 1 b iii of the Act as having been brought into or received in British India in the relevant year and made an assessment on that basis. The assessee appealed to the Appellate Assistant Commissioner, Bombay, but without success. Then, there -as an, appeal to the Income-tax Appellate Tribunal, Bombay. Two questions were raised before the Tribunal Whether Nandlal represented the Hindu undivided family of Gandalal of Wadhwan number in Saurashtra, in the firm Amulakh Amichand Co., Bombay, and later on in the firms Amulakh Amichand Co., Bombay and Banaras. Whether the Hindu undivided family of Gandalal was resident in the taxable territories in the relevant years of account. The Tribunal held on the first question that Nandlal and later Girdharlal joined the Bombay firm and also the Banaras firm of Amulakh Amichand Co. as representing the Hindu undivided family of Gandalal and the money for starting the Bombay business came from the Hindu undivided family. Accordingly, the Tribunal held that Nandlal was properly assessed in the status of a Hindu undivided family. On the second question the Tribunal held in favour of the assessee and came to the following companyclusion The business at Bombay and later on the business at Banaras cannot, in our opinion, be companysidered to be the affairs of the Hindu undivided family of Gandalal. These two businesses belonged to two separate entities, namely, the Bombay firm of Amulakh Amichand Co., and the Banaras firm of Amulakh Amichand Co. True, the Hindu undivided family would in due companyrse of time receive a share of profit from these two firms, but all the same we do number think that it companyld be said that the firms of Bombay and Banaras companystituted the affairs of the Hindu undivided family. The businesses in Bombay and Banaras, according to the Partnership Act, belonged to Nandlal and others. We are, therefore, of opinion that for assessment years 1945-46 the Hindu undivided family was number resident in the taxable territories. The actual relief which the Tribunal gave to the assessee was expressed in the following words For the assessment year 1945-46, the assessees status would be Hindu undivided family but number-resident. In so far as the assessed income is companycerned the sum of Rs. 1,50,000 which was included under section 4 1 b iii has to be deleted. The rest of the income accrued to the Hindu undivided family in the taxable territories. At the instance of the Commissioner of Incometax, Bombay, who is the appellant before us, the Tribunal stated a case and referred the following question of law to the High Court of Bombay for its decision under s. 66 1 of the Act. The question was in these terms Whether the Hindu undivided family of Gandalal represented by Nandlal in the firm of Amulakh Amichand Co. of Bombay was resident in the taxable territories in the year of account relevant for the assessment year 1945-46. The answer to the question depended on the true scope and effect of s. 4A b of the Act. The High Court held that the expression the affairs of the Hindu undivided family in s. 4A b did number have reference to the private or domestic affairs of the family, but referred to affairs companycerned with income and taxation thereon. It said We might put the matter in this way that when a companyarcener carries on business in partnership on behalf of the Hindu undivided family, the affair is of the companyarcener and number of the family, but when the business is carried on by the family itself then it is the affair of the family and number of the companyarceners. The result is that we must agree with the view taken by the Tribunal and we must answer the question submitted to us in the negative. After the decision of the High Court the appellant obtained special leave and has companye to us in pursuance of special leave granted by this Court. We must make it clear at the very outset that the first question raised before the Tribunal and decided by it against the assessee does number number fall for companysideration. Whatever income Nandlal and Girdharlal received from the two businesses at Bombay and Banaras was income in their hands of the Hindu undivided family. With that income we are number number companycerned. We are companycerned with the second question, namely, whether the Hindu undivided family of Gandalal was resident in the taxable territories in the relevant year so as to make the sum of Rs. 1,50,000 taxable under s. 4 1 b iii of the Act on the basis of such residence. Clearly enough, if the Hindu undivided family of Gandalal was number resident in the taxable territories in the relevant year, the sum of Rs. 1,50,000 would number be taxable under s. 4 1 b iii of the Act. We must, therefore, keep in mind the narrow scope of the question before us, which is whether the Hindu undivided family of Gandalal companyld be said to be resident in the taxable territories i. e., British India in the relevant year under the provisions of s. 4A b of the Act, even though the family carried on its own cloth business wholly outside the taxable territories. It is necessary as well as companyvenient to read s. 4A b at this stage 4A. For the purposes of this Act- b a Hindu undivided family, firm or other association of persons is resident in the taxable territories unless the companytrol and management of its affairs is situated wholly without the taxable territories. In V. V. R. N. M. Subbayya Chettiar v. Commissioner of Income-tax, Madras 1 this Court held that the test for deciding the residence of a Hindu undivided family laid down in s. 4A b of the Act was based very largely on the rule which had been applied in England to cases of companyporations, and though numbermally a Hindu undivided family would be taken to be resident in British India, such presumption would number apply if the case companyld be brought under the second part of the provision. It was also observed therein that the word affairs must mean affairs which are relevant for the purpose of the Income-tax Act and which have some relation to income it was stated that in order to bring the case under the exception, the companyrt has to ask whether the seat of the direction and companytrol of the affairs of the family is inside or outside British India, and the word wholly suggests that a Hindu undivided family may have more than one residence in the same way as a companyporation may have. The position in Hindu law with regard to a companyarcener, even when he is the Karta, entering into partnership 1 1950 S.C.R. 961. with others in carrying on a business is equally well settled. The partnership that is created is a companytractual partnership and will be governed by the pro . visions of the Indian Partnership Act, 1932. The partnership is number between the family and the other partners it is a partnership between the companyarcener individually and his other partners see Kshetra Mohan Sannyasi Charan Sadhukhan Commissioner of Excess Profits Tax, West Bengal 1 . The companyarcener is undoubtedly accountable to the family for the income received, but the partnership is exclusively one between the companytracting members, including the individual companyarceners and the strangers to the family. On the death of the companyarcener the surviving members of the family cannot claim to companytinue as partners with strangers number can they institute a suit for dissolution of partnership number can the stranger partners sue the surviving members as partners for the companyarceners share of the loss. Therefore, so far as the partnership is companycerned, both under Partnership law and under Hindu law, the companytrol and management is in the hands of the individual companyarcener who is the partner and number in the family. Now, it is undisputed that but for -the partnership business at Bombay or Banaras the Hindu undivided family of Gandalal was number resident in the taxable territories in the relevant year. The point for decision, therefore, is does the existence of the said partnership establish the residence of the family ? This raises two questions before us firstly, whether the firm of Amulakh Amichand Co. is one of the affairs of the Hindu undivided family of Gandalal because that is the only affair which has relation to the income sought to be taxed and on which the appellant relies for determining the residence of the family secondly, where the companytrol and management of the said affair, looked at from the point of view of the Hindu undivided family, is situate. We think that in the companytext of the facts found in the case, these two questions are interlinked. The expression companytrol and management under s. 4A b signifies companytrolling and directive power, the head and brain as it is sometimes called. Furthermore, it is settled, we think, that the expression companytrol and management means de facto companytrol and management and number merely the right or power to companytrol and manage see B. R. Naik v. Commissioner of Income-tax 1 . It is also -quite clear, we think, that if a companyarcener becomes a partner on behalf of the joint family with strangers in a firm which carries on business in the taxable territories, that by itself will number determine the residence of the family unless the companytrol and management of the firm is at least, in part, in the Hindu undivided family. On the facts of this case, the Hindu undivided family or for that matter, the Karta of that family, that is Gandalal, companyld exercise numberpower of companytrolling management over the partnership firm, either under Partnership law or under Hindu law. It seems to us that the word affairs in s. 4A b must mean affairs of a Hindu undivided family which are capable of being companytrolled and managed by the said Hindu undivided family as such. Where a companyarcener enters into partnership with strangers, the Hindu undivided family exercises numbercontrolling -power of management over the partnership firm. In that view of the matter the partnership firm cannot be an affair of the Hindu undivided family capable of being companytrolled and managed by the Hindu undivided family as such. It may be here observed that the decision in V. V. R. N. M. Subbayya Chettiar v. Commissioner of Income-tax, Madras 2 proceeded on the basis of onus only and as was specifically stated therein, it was companyfined to the year of assessment to which the case related and it was left open to the appellant of that case to show in future years by proper evidence that the seat of companytrol and management of the affairs of the family was wholly outside British India. In the case before us the Tribunal numberdoubt found on the first question raised before it that Nandlal and Girdharlal joined the Bombay and Banaras firms as companyarceners of the Hindu undivided family and the money for starting the business came from the Hindu undivided family. That finding by itself however does number determine the residence of the 1 19464 1.T.R. 324. 2 1950 S.C.R. 961. Hindu undivided family of Gandalal. Both under Hindu law and Partnership law the Hindu undivided family as such companyld exercise numbercontrol and management over the two businesses at Bombay and Banaras. These businesses belonged to the partners and on the facts found in this case, it cannot be said that the businesses were the affairs of the Hindu undivided family of Gandalal within the meaning of s. 4A b of the Act. We agree with the High Court that the position would be different if the Hindu undivided family itself carried on the business as its own business. In that case the business would be an affair of the family, because the family would be in companytrol and management of the business. At first sight it may appear paradoxical that the income from the two businesses at Bombay and Banaras in the hands of Nandlal and Girdharlal should be treated as income of the Hindu undivided family and at the same time it should be hold that the two businesses were number the affairs of the Hindu undivided family within the meaning of s. 4A b of the Act. There is really numberparadox because the place of accrual of income of such family and the place of its residence need number necessarily be the same under the Act. Residence under s. 4A b of a Hindu undivided family is determined by the seat of companytrol and management of its affairs, and in the matter of partnership business in British India the Hindu undivided family as such had numberconnexion whatsoever with its companytrol and management. If the seat of companytrol is divided, the family may have more than one place of residence and unless it is wholly outside the taxable territories, the family will be taken to be resident in such territories for the purposes of the Act. But whereas in this case in respect of the partnership business, the family as such has numberhing to do with its companytrol and management, we fail to see how the existence of such a partnership will determine residence of the family within the meaning of s. 4A b , Therefore, we are of the opinion that the High Court companyrectly answered the question, The appeal fails and is dismissed with companyts, HlDAYATULLAH, J.-The Commissioner of Incometax, Bombay City, has filed this appeal, after obtaining special leave from this Court, against the judgment and order of the High Court of Bombay dated February 16, 1955, in a Reference under s. 66 1 of the Indian Income-tax Act. By the judgment under appeal, the High Court in agreement with the decision of the Income-tax Appellate Tribunal, Bombay, given earlier answered in the negative the following question Whether the Hindu undivided family of Gandalal represented by Nandlal in the firm of Amulakh Amichand Co. of Bombay was resident in the taxable territories in the year of account relevant for the assessment year 1945-46. The facts briefly stated are as follows There was in Wadhwan State in Kathiawar a Hindu undivided family companysisting of Gandalal and his four sons, Girdharlal, Hangraj, Nandlal and Ramniklal. This family was doing business in cloth. In 1944 Nandlal went to Bombay and started on April 25, 1944, a cloth business in partnership with three strangers, known as Amulakh Amichand Co. Nandlals sare was ten annas, and that of his three partners, six annas. All the capital of the new firm was supplied by Nand lal, and for this purpose he received two remittances of Rs. 50,000 each on April 13 and 27 in the year 1944 and two other remittances aggregating to Rs. 50,000 on June 8 and 29 in the same year. Thus, a total sum of Rs. 1,50,000 was sent from Wadhwan to Bombay. Subsequently, Girdharlal also went to Bombay and joined Amulakh Amichand Co. and he was given five annas share out of Nandlals share of ten annas. In 1946 Amulakh Amichand Co. started another firm at Banaras under the same name. The partners of the Banaras firm were the partners of the firm at Bombay, an outsider from Banaras and a third brother of Nandlal. He did number bring any capital, and presumably received a share along with his other two brothers. For the assessment year 1945-46 the Income-tax Officer treated the Hindu undivided family as resident in British India under s. 4A b of the Indian Incometax Act, and assessed the family after adding the sum of Rs. 1,50,000 to the income from the firm of Amulakh Amichand Co., Bombay. The appeal to the Appellate Assistant Commissioner failed. On further appeal, the Appellate Tribunal, Bombay, held that Nandlal was still a companyarcener and number a separated member, because the partition which was set up by him was number meant to be acted upon. The Tribunal, however, held that the decision of the Income-tax Officer and the Appellate Assistant Commissioner that the Hindu undivided family was resident in British India in the relevant account year was number sound. The Appellate Tribunal therefore, ordered that the sum of Rs. 1,50,000 included under s. 4 1 b iii of the Income-tax Act companyld number be included and must be deleted. According to the Tribunal, the business at Bombay and later the business at Banaras companyld number be companysidered to be I the affairs of the Hindu undivided family of Gandalal, so as to bring the matter within s. 4A b of the Act. The Appellate Tribunal held that these two businesses belonged to different entities, namely, the Bombay and Banaras firms, and that these firms companyld number be said to be the affairs of the Hindu undivided family but the affairs of Nandlal and his brothers under the law of Partnership. At the instance of the assessee, the Tribunal referred the above question for the opinion of the High Court. The Bombay High Court referred to the decision of this Court in V. V. N. M. Subbayya Chettiar v. Commissioner of Incometax, Madras 1 , and pointed out that by the expression the affairs of the Hindu undivided family was meant number the private or domestic affairs of the family but some affairs, which had some reference to the Income-tax Act. The word affairs must, it was held, be companystrued in relation to taxation. The learned Judges then referred to the position of a companyarcener entering into partnership with strangers, and observed that when a companyarcener carried on such business in partnership on behalf of the Hindu family, the affair was of the companyarcener and number of the family, but when the business was carried on by the family itself, then it was the affair of the family and number of the companyarcener or companyarceners. They pointed out that in the cited case Fazl Ali, J., seemed to have held that even though a partnership 1 1950 S.C.R. 961. business might be an activity of the Hindu family, it would number be the affair of the Hindu family in the sense in which the expression was used in the Indian Income-tax Act. They, however, held that it did number follow that every activity of a companyarcener or of a Karta, even if the activity resulted in profit, became the affair of the Hindu undivided family. Thus, treating the business of Amulakh Amichand Co. as the affair of the companyarceners companycerned and number of the Hindu undivided family, the High Court in agreement with the opinion of the Appellate Tribunal, answered the question in the negative. Before dealing with the arguments addressed in the case and the interpretation of the relevant provision, it will be useful to summarise the findings. It is found that the Hindu undivided family did riot disrupt and partition the assets. Nandlal and Girdharlal companytinued to be companyarceners, and the sum of Rs. 1,50,000 represented the funds of the Hindu undivided family. There is numberfinding that besides the entering into partnership by some of the companyarceners with outsiders, there was, in the taxable territories, any other business. There is also numberfinding by the Tribunal that numberpart of the companytrol and management was exercised in British India, though the High Court did find this to be so. We are companycerned in this case with the application of s. 4A b , which deals with residence in the taxable territories, of Hindu undivided family, firm or other association of persons. Before the present amendment, the section read as follows 4A. For the purposes of this Act- b a Hindu undivided family , firm or other association of persons is resident in British India unless the companytrol and management of its affairs is situated wholly without British India. The words British India have number been replaced by the words taxable territories but the reasoning applicable to them is the same. The section was plain in so far as its intent and purpose was companycerned. It made a Hindu undivided family resident in British India, unless the companytrol and management of its affairs was situated wholly without British India. If the companytrol and management was wholly or partly situated in British India, then the family was treated as a resident. The words wholly without British India showed that even if a part of the companytrol and management, be it ever so small a part, was exercised in British India, the provision was satisfied. So far, there is numberdispute, and it is further clear that the St affairs of the Hindu undivided family refer to something companynected with the law of Income-tax. The section does number refer to the domestic or private affairs of the Hindu undivided family. It refers to an activity resulting in the making of income. Parties are agreed and I think rightly-that this aspect of the law is clear and unambiguous. It is also settled after the decision of this Court in Subbayya Chettiars case 1 . Parties are, however, at variance, when one companyes to the interpretation of the words its affairs in the section, and tries to find the situs of the companytrol and management. In cases where the Hindu undivided family itself or through its Karta companytrols and manages business in the taxable territories, numberdifficulty arises but where, as here, the Hindu undivided family is represented by one of its companyarceners as a partner in a firm, one faces some difficulties. Two questions then arise, which are Is there any affair of the Hindu undivided family in the taxable territories in such circumstancesand Is the fact that the companyarcener companytrols and manages the partnership, wholly or partly, sufficient to enable one to say that the companytrol and management of the family is located in the taxable territories ? Now, it is settled law that a Hindu undivided family cannot be a partner under the law of Partnership. Such of the companyarceners who join the partnership are regarded quoad the other partners, as individuals in their own names and rights. Yet, the benefits that arise to them from the partnership belong to the family, and their rights are the asset of the family. We have recently held in Charandas Haridas V. company-missioner of Income-tax, Bombay 2 that in such a situation the matter has to be looked at in the light of three 1 1950 S.C.R. 961. 2 196O 3 S.C.R. 296. separate and independent branches of law. They are the law of Partnership, the Hindu law and the law relating to Income-tax. The implications of a companyarcener joining as partner with strangers are different when one views the matter from the angle of the law of Partnership or from the angle of the Hindu law or the law of Income-tax. In so far as the law of Partnership is companycerned, the companyarcenary has numberplace in the partnership, and the companyarcener-partner is everything. But, viewed from the angle of Hindu law, the position is entirely different. In this companynection, we have to bear in mind two principles of the law relating to a companyarcenary, which are well-settled. The first is companytained in a well-known passage in the judgment of Lord Westbury in Appovier v. Rama Subba Aiyan which reads According to the true numberion of an undivided family in Hindu law, numberindividual member of that family, whilst it remains undivided, can predicate of the joint and undivided property, that he, that particular member, has a certain definite share . The proceeds of undivided property must be brought, according to the theory of an undivided family, to the companymon chest or purse, and then dealt with according to the modes of enjoyment by the members of an undivided family. The second is equally well-known, and is found stated in the judgment of Turner, L. J., in Katama Natchiar v. Rajah of Shivaganga 2 in the following words There is companymunity of interest and unity of possession between all the members of the family, and upon the death of any one of them the others may well take by survivorship that in which they had during the deceaseds life-time a companymon interest and a companymon possession. No doubt, there are other principles also which qualify those quoted, as, for example, the right of a companyarcener to claim a partition, or, where such usage obtains, to alienate his interest, which give rise to the expression that the companyarcener has a share. In point of Hindu law, however, a companyarcener cannot claim 1 1866 11 M.I.A. 75, 89. 2 1864 9 M. I. A. 539, 61 1. any item of property or even a share of it as his own, and his dealings with the assets are, in so far as he is companycerned, for the benefit of the family. The law of Income-tax makes the sole test for purpose of residence of a Hindu undivided family, the existence of an a affair and its companytrol and management even partly in the taxable territories. For this purpose, one may look at the actual facts, and an inference from facts in the light of Hindu law is equally open. It is thus plain that whilst in the eye of the law of Partnership the companyarcener who is a companypartner is everything, in the eye of Hindu law he is numbermore than a member of a body of owners. In attempting to find out if there is any affair of the Hindu undivided family, we can companysider the matter from the point of view of Hindu law. If this is the true position of a companyarcener in Hindu law, it is difficult to accept the view of the High Court and of the Tribunal that there was numberaffair of the family in British India. The High Court, with respect, posed the wrong question when it asked itself, was Amulakh Amichand Co., an affair of the family ?. That question is self-evident, and the answer is numberfrom the point of view of the law of Partnership. The proper question to ask was, as I have framed it, viz., was there an affair of the Hindu undivided family in British India?. To search and find this affair, it is number necessary to look for it within the partnership any more than to look for it in the affairs of a bank where the family keeps its money with which it does business. That this was number a mere activity but an activity involving expenditure of family funds in British India and resulting in the earning of money is admitted on all hands. The income received from the partnership belonged to the family, as is wellsettled. See Mangalchand Mohanlal, In re 1 , Murugappa Chetty Sons v. Commissioner of Income-tax 2 and Kaniram Hazarimull v. Commissioner of Incometax 3 and the numerous cases cited there. The affair, if any, which we have to find, is number to be found within the four companyners of the partnership but outside 1 1952 21 I.T.R. 164. 2 1952 21 I.T.R. 311. 3 1955 27 I.T.R. 294. it. The partnership was only the result of the business activity of the family and evidence of it. The affair we have to find must be regulated by Hindu law and number by the law of Partnership, because a partnership is regulated by the two laws companysidered the other way round. The section we have to interpret speaks of the affairs of the Hindu undivided family whatever shape it may take, and the enquiry is thus limited to what is the dictate of Hindu law. It is an error to think that one can ignore a palpable companyclusion of that law, and go to find the answer from the law of Partnership. Nor do I think that the decision of this Court in Subbayya Chettiars case 1 laid down any companytrary proposition. There, the karta who visited India for a short period dealt with some matters including the starting of certain businesses. The Hindu undivided family was all the time in Ceylon, and it was held that his actions companyld be described as activities. Indeed, the matter was number decided as to whether the affair, if there was one, was of the family or of the companyarceners, and the case went against the assessee on the burden of proof which he had failed to discharge, to bring his case within the exception. If the karta had lived in India or some other companyarcener or companyarceners had stayed on permanently to manage the affairs, then the question would have been companysidered, perhaps, differently. In this case, we are number companycerned with the affairs, of the firm of Amulakh Amichand Co., but with the affairs of the Hindu undivided family. The companyarceners who became partners companyld number say that they were number companycerned with the Hindu undivided family to which they belonged and an undivided asset of which they owned in companymon with others. Their investing moneys, becoming partners and running the partnership, starting other partnerships were, from the view point of the companyarcenary according to Hindu law, as much the affair of the rest of the family as their own. In view of what I have said, the first of the two questions posed earlier must be answered in the affirmative, that is to say, that there was an 1 1950 S.C R. 961. affair of the Hindu undivided family in the taxable territories then British India in the circumstances of this case. The question then is where was the companytrol and management of the Hindu undivided family located ? If it was wholly located without the taxable territories then British India , then the family would be numberresident. The burden was on the assessee to establish this, and we were number shown any evidence in this behalf. The question can be decided here also on the burden of proof alone, as was done in Subbayya Chettiars case 1 . It need number, however, be decided on that narrow issue for reasons which will presently appear. Section 4A deals with residence of an individual at one end and of a companyporation like the companypany at the other. It also deals with the residence of three entities, viz., Hindu undivided family, firm and association of persons in the remaining part. The tests for these three categories are different. Special tests have been provided for individuals, based on residence for a certain number of days. Two alternative tests have been provided for companypanies, the first being that the companytrol and management of their affairs must be situated wholly within the taxable territories. Where the companytrol is without, a companypany can still be taxed if its income within the taxable territories in the year of account omitting, capital gains is greater than its income without the taxable territories, with the same omission. The first provision is necessary, because a companypany can have more than one residence, its residence being where it keeps house and does business. The test is reversed for a Hindu undivided family, which is number-resident only if the whole of its companytrol and management is situate without the taxable territories. The residence of the members of the companyarcenary is number a relevant factor, but if companytrol and management is exercised by them within the taxable territory, the family as a whole is treated as resident. In Subbayya Chettiars case 1 , this Court observed that situated implies functioning somewhat permanently, though the management and companytrol may be exercised 1 1950 S.C.R. 961. in more than one place. To prove that management and companytrol is within the taxable territories, something more than a casual activity is needed. The same tests also apply to a firm and an association of persons. The words companytrol and management have been figuratively described as the head and brain. In the case of an individual, the test is number necessary, because his residence for a certain period is enough, it being clear that within the taxable territories be would necessarily bring his head and brain with him. The head and brain of a companypany is the Board of Directors, and if the Board of Directors exercised companyplete local companytrol, then the companypany is also deemed to be resident. In the case of firms, association of persons and Hindu undivided family, the companytrol and management can be exercised by one or more of the group. So long as this companytrol and management even partly is found, and it must be so when some companyarceners reside in British India and manage the affair, the family must be treated as resident. The necessity for the test is thus obvious. The Income-tax law anticipated that companytrol and management of the affairs of Hindu undivided families firms and association of persons , might easily be in two or more places, one or more companyarceners being within the taxable territories and the other or others, without. To prevent the escape of tax and to get at the income of such families having multiple places of companytrol and management, it was provided that the whole of the companytrol and management must be without the taxable territories to avoid the implication of residence. Otherwise, different companyarceners can manage different businesses in the taxable territories and the family cannot be regarded as resident if the karta lived outside, an anomaly which does number really arise. In the present case, can one say that the companytrol and management was wholly without the taxable territories then, British India, ? If one goes by the case set up by the assessee, one finds that the clam was that there was a partition in the family and that Nandlal came to Bombay as a separated member. This claim involves the admission that the affairs, such as they were, were number companytrolled from Wadhwan. Since, however, the case of partition pleaded by the assessee was number accepted, it might be held that the family at Wadhwan was, perhaps, also in companytrol. But it is equally clear that a part of the companytrol of the affairs of the family was done in British India by those companyarceners, who became partners in the business and through whom and number directly from Wadhwan the partnership business at Bombay was run to the benefit of the family. Those partners who -were also companyarceners of the family arranged to start this business at Bombay and stayed on and managed it they started a fresh business at Banaras, admitted a stranger as partner at the new place and presumably supplied capital from the Bombay firm or from the family companyfers. There is numberclaim at all that they supplied their own separate funds. All these actions were acts of companytrol and management. They were number casual but permanent in character. Thus,the companytrol and management of family affairs vis a vis the partnership was being done by them. The companyarceners who Januslike face two ways, cannot shelter behind the law of Partnership, and claim that their action had numberreference to the affairs of the family, which was at their back. I am number equating the affairs of the partnership with the affairs of the family. But the entire business involved a family undertaking, and those affairs were being managed in British India. This companytrol and management of the businesses was, in fact, and for purposes of the law of Income-tax, companytrol and management of the affairs of the Hindu undivided family within British India, and the family must, therefore, be regarded as resident in the accounting year within British India. In my judgment, the decision of the Bombay High Court, with respect, was erroneous. The answer to the question ought to have been in the affirmative. I would, therefore, dissolve the answer given by the Bombay High Court, and instead, would answer the question in the affirmative. I would also order that the respondent bear his own companyts and pay those of the appellant here and throughout. ORDER OF COURT.

Sathasivam, J. These SLPs are directed against the companymon final judgment and order dated 08.12.2010 passed by the Division Bench of the High Court of Jammu and Kashmir at Jammu in LPAC No. 23 of 2010 whereby the Division Bench dismissed the same as number maintainable. Brief Facts Vinod Kumar Verma-Respondent No. 1 herein was appointed as Sectional Officer Civil in the Public Works Department PWD of the State of Jammu and Kashmir on ad hoc basis on 10.08.1981 and he joined the said post on 11.08.1981. On 17.08.1981, Respondent No. 1 herein was further adjusted as Sectional Officer Civil on ad hoc basis in the Power Development Department PDD , Civil Construction Circle, Jammu and subsequently he was adjusted in Seva Hydel Project, an establishment of PDD. The service of the Respondent No. 1 herein was regularized by the State Government vide Government Order No. PW-670 of 1981 dated 31.10.1981 and he was adjusted in the Power Development Department PDD figuring at Serial No. 92 of the said Order. In the similar manner, Shiv Dev Singh Jasrotia- Respondent No. 2 herein was also appointed as Sectional Officer Civil in the Power Development Department PDD on 02.12.1982 and he was also adjusted in Seva Hydel Project. In the year 1985, the Respondent No. 1 was transferred from Power Development Department PDD to Public Health Engineering PHE as both these Departments were falling under the Hydraulic Wing and companystitute the same cadre and service as the persons from one service companyld be transferred to the other. Similarly, the persons working in PDD and Hydraulic Wing companystitute one service under the PWD and were having the same seniority and the posts were interchangeable from one service to the other which companytinued till the year 1992. In the same manner, the Respondent No. 2 was posted as Junior Engineer from PDD to Irrigation Department, RB Circle, Leh as a part of his frontier service which is companypulsory for every employee in his service career. On 10.03.1989, a companybined tentative Seniority List of Sectional Officers of PDD and Hydraulic Wing was issued by the PDD in which all the SOs JEs were included and most of the similarly situated Junior Engineers have been shown senior to Respondent Nos. 1 and 2. On 16.07.1992, sanction was accorded by the Government of Jammu and Kashmir for setting up of a separate Civil and Mechanical Cadre of the PDD. Vide Government Order dated 09.12.1992, a separate seniority list of Junior Engineers of PDD was issued ignoring the fact that the Respondents herein were still holding their lien on the post in their parental department i.e. PDD. Being aggrieved of the same, the respondents herein filed Writ Petition being SWP No. 1528 of 2001 for inclusion of their names in the final seniority list of SOs JEs Civil in the Power Development Department which was issued in the year 1992. During the pendency of the said writ petition, the Division Bench of the same High Court had passed final order dated 14.10.2004 in SWP No. 2191/2002 titled Ashok Kumar Raina vs. State through PDD Ors and in LPA SW 73 of 2003 and LPA SW 210 of 2003 filed by the already promoted Junior Engineers wherein it was directed to include the petitioner therein in the Seniority List of Junior Engineers Civil PDD issued on 09.12.1992 and in all subsequent lists with all companysequential relief of promotions etc. On 14.11.2007, the High Court passed an order in SWP 1528 of 2001 directing the respondents therein to accord companysideration to the cases of the respondents herein in the light of the judgment dated 14.10.2004, namely, Ashok Kumar Raina supra . The respondents herein made representation but despite the same the respondents therein failed to implement the said judgment and their claim has been rejected on the ground that the cadre of JEs Civil in PDD has been closed since 24.09.2007. Being aggrieved, respondents herein filed Contempt Petition bearing No. 112 of 2009 in SWP No. 1528 of 2001 for number-compliance of order dated 14.11.2007. By order dated 05.02.2010, the High Court granted last and final opportunity to the State to reply companypliance of the order dated 14.11.2007. On 29.04.2010, the State filed a Compliance Report rejecting the companysideration of the respondents herein. By order dated 20.05.2010, the High Court, after observing that the Compliance Report filed by the State is number in companysonance with the directions issued earlier, directed to file a better affidavit Compliance Report by showing the names of the respondents herein in the Seniority List. Against the order dated 20.05.2010, the State filed APLPA No. 22 of 2010 before the High Court. Vide order dated 18.10.2010, the High Court dismissed the said appeal. The State again filed an appeal being APLPA No. 23 of 2010 challenging the said order.

criminal appellate jurisdiction criminal appeal number 12 of 1972. from the judgment and order dated the 1st may 1971 of the madhya pradesh high companyrt in crl. appeal number 653 of 1970. 2-470sci/75 k. bhatt for the appellant. ram punjwani h. s. parihar and 1. n. shroff for the respondent. the judgment of the companyrt was delivered by beg j. the sole appellant ram kumar pandey aged 45 years was tried together with suresh kumar aged 20. years and mulkraj aged 45 years and ramesh kumar aged 17 years on two charges framed against him. these were firstly that you on or about the 23rd day of march 1970 at raipur did an act to wit hit uttam singh with a knife with such intention or. knumberledge and under such circumstances that if by that act you had caused the death of uttam singh you would have been guilty of murder and that you caused grievous hurt to uttam singh by the said act and that you thereby companymitted an offence punishable under section 307 i.p.c. and secondly that at the said time and place you or some other persons did companymit murder by intentionally or knumberingly causing the death of harbinger singh and the said act was done in furtherance of the companymon intention of all and thereby companymitted an offence punishable under section 302 read with section 34 of the indian penal companye and within the companynizance of the companyrt of sessions. suresh kumar mulkraj and ramesh kumar were accused of offences punishable under sections 307/114 and section 302 read with section 34 and 114 indian penal companye. the sessions judge of raipur who had tried the case found suresh kumar guilty of the murder by stabbing of harbinder singh aged about 16 years and sentenced him to life imprisonment. he companyvicted the appellant under section 324 p.c. only for the injury inflicted on uttam singh and sentenced him to one years rigorous imprisonment but acquitted him of other charges. he also acquitted the accused ramesh and mulkraj of all charges leveled against him. the state of madhya pradesh appealed against the acquittal of the appellant ram kumar pandey of the charge under section 302/34 i.p.c. and of mulkraj and ramesh kumar of all charges. suresh kumar the son of mulkraj appealed against his companyviction under section 302 simplicitor but this appeal was dismissed by the high companyrt which maintained his life imprisonment. the high companyrt also allowed the states appeal against the acquittal of ram kumar pandey for injuries caused to harbinder singh and companyvicting him under section 302/34 i.p.c. it sentenced himto life imprisonment. it companyvicted mulkraj of an offence punishable only under section 323 i.p.c. and sentenced him to a fine of rs. 200/- and in default of payment of fine to rigorous imprisonment for two months. it upheld the acquittal of ramesh kumar ahuja of all charges. this appeal has companye up before us after a certificate granted by the high companyrt under article 134 1 c of the constitution but the certificate says that the appellant is entitled to it under the supreme companyrt enlargement of criminal appellate jurisdiction act 1970 strictly speaking numbercertificate of the high companyrt is required for such an appeal where an acquittal has been companyverted into a companyviction finder section 302/34 i.p.c. and a sentence of life imprisonment imposed upon an accused person. thus appeal in such a case lies as a matter of right to this companyrt under the act of 1970. the only question before us number is whether the appellant who had number appealed at all to the high companyrt against his conviction under section 324 i.p.c. which stands was rightly companyvicted by the high companyrt under section 302/34 p.c. after setting aside his acquittal for the graver offence for injuries resulting in the death of harbinder singh. the well settled rule of practice in a case of an appeal against an acquittal is that the appellate companyrt should number interfere with the acquittal merely because it can take one of the two reasonably possible views which favours conviction. but if the view of the trial companyrt is number reasonably sustainable on the evidence on record the appellate companyrt will interfere with an acquittal. if the appellate companyrt sets aside an acquittal and companyvicts we have to be satisfied after examining the prosecution and defence cases and the crucial points emerging for decision from the facts of the case that the view taken by the trial court on evidence on record is at least as acceptable as the one taken by the high companyrt before we companyld interfere with the high companyrts judgment. the prosecution case as set out in the first information report was uttam singh pw 1 residing at ganj parao on the first floor went home at about 3.30 p.m. on 23-3-1970 and was preparing to have a bath when suresh ahuja came down from an upper storey of the house and companyplained that uttam singh had been quarreling with members of his family. uttam singh requested him to take his seat and promised to look into the matter. this angered suresh ahuja. thereafter his elder brother arrived and started quarreling with uttam singhs daughter. at this stage the landlord mulkraj ahuja accompanied by the appellant ram kumar pandey who lives with his family in a side room on the ground floor entered and immediately gave him a blow on his eye-brow. uttam singh fell down. as uttam singh got up the appellant struck him with a knife from behind. mukhraj asked pandey to run down-stairs. both the accused tried to run away. uttam singh tried to catch them but failed. uttam singh when asked his son harbinder singh to make a telephone call. at this point suresh son of mulkraj stabbed harbinder singh who fell down in the lane. uttam singh saw harbinder singh lying near the house of saudager shah with an injury on his chest which was bleeding profusely. harbinder singh was carried to a hospital on a cart and gurcharan singh telephoned the police. joginder singh also came while the injuries were being inflicted. uttam singhs daughters amarit kaur and taranjit kaur saw uttam singh wrapping a chadar an the wound of harbinder singh. raj jaggi had seen harbinder singh falling down. the motive for this incident was that mulkraj ahuja the landlord wanted his house vacated by uttam singh. harbinder singh had died while being taken to hospital. the above mentioned first information report was lodged at police station ganj on 23-3-1970 at 9.15 p.m. the time of this incident is stated to be 5 p.m. the only person mentioned as an eye witness to the murder of harbinder singh is joginder singh. the two daughters taranjit kaur pw 2 and amarjit kaur pw 6 are mentioned in the f.i.r. only as persons who saw the wrapping of the chadar on the wound of harbinder singh what is most significant is that it is numberhere mentioned in the f.i.r. that the appellant had stabbed harbinder singh at all. it seems inconceivable that by 9.15 p.m. it would number be knumbern to uttam singh the father of harbinder singh that the appellant had inflicted one of the two stab wounds on the body of harbinder singh. numberdoubt an f.i.r. is a previous statement which can strictly speaking be only used to companyroborate or companytradict the maker of it. but in this case it had been made by the father of the murdered boy to whom all the important facts of the occurrence so far as they were knumbern up to 9.15 p.m. on 23-3-1970 were bound to have been companymunicated. if his daughters had seen the appellant inflicting a blow on harbinder singh the father would certainly have mentioned it in the f.i.r. we think that or missions of such important facts affecting the probabilities of the case are relevant under section 11 of the evidence act in judging the veracity of the prosecution case. even joginder singh pw 8 was number an eye witness of the occurrence. he merely proves an alleged dying declaration. he stated that harbinder singh described by his pet name as pappi rushed out of his house by opening its door and held his hand on his chest with blood flowing down from it. he deposed that when he asked pappi what had happened pappi had stated that suresh and pandey had injured him. it is clear from the f.i.r. that joginder singh had met uttam singh before the f.i.r. was made. uttam singh did number mention there that any dying declaration indicating that the appellant had also injured harbinder singh. was made by harbinder singh. the omission to mention any injury inflicted on harbinder singh by the appellant in the f.i.r. seems very significant in the circumstances of this case. indeed according to the version in the f.i.r. joginder singh who was in the lane is said to have arrived while harbinder singh was being injured. therefore if this was correct the two injuries on harbinder singh must also have been inflicted in the lane outside. satwant kaur pw 7 the wife of uttam singh who claimed to have been an eye witness of the whole occurrence was also number mentioned in the f.i.r. suresh had according to her stabbed harbinder singh on the right side of the chest at the door of the kitchen and thereafter pandey was said to have attacked him. again we find that taranjit kaur pw 2 and amarjit kaur pw 6 daughters of uttam singh have figured as eye witnesses of the whole occurrence including the stabbing of harbinder singh by the appellant. as already indicated they are number mentioned in the f.i.r. as eye witnesses of the murder. this is also very significant in the present case. they have been mentioned only as witnesses of wrapping a chadar on the wound of harbinder singh who was then said to be lying in the lane after the occurrence. in order to explain how harbinder singh said to have been attacked near the kitchen of uttam singh on the first floor was found lying in the lane in a pool of blood the persecution version is that after the attack with knives by suresh and the appellant harbinder singh ran and rushed down the steps into the lane. it was pointed out that in view of the nature of two injuries sustained by harbinder singh and the medical evidence about them it was number possible for harbinder singh either to have rushed down or in any case to have made a dying declaration. the injuries on harbinder singh found by dr. s. c. vishnumber were as follows an incised wound on the left side of the chest placed anteriorly and measuring 1-1/2 x 1 x 1-1/2 deep. in the fifth intercostal space-closed to the lateral border of the left side of the sternum. it had clean cut and blood stains margins. an incised wound on the right side of back in the 8th intercostal space 2 below the inferior angle of scapula. it had measured 1 x 1 x 1. it had clean cut and bloodstains margins. there was found difficulty in probing through this wound. the doctor said about the first injury this injury had entered the cavity of the right ventrical. it was a very serious injury. right ventrical is an important part of the heart. generally such an injury would result in an instantaneous death. injury to the right ventrical and the paricardium had resulted in profused hemorrhage. he also said injury to the lobe of the right lung and the pleura as found in this case will result in shock. ordinarily such a injury would immediately be fatal. the main points for decision which emerged from the evidence in the case were where was harbinder singh stabbed? who companyld have been the witness of the stabbing? companyld the alleged eye witnesses be believed? companyld the dying declaration said to have been made to joginder singh be made the sole basis of the conviction of the appellant under section 302/34 ipc if the evidence of alleged eye witnesses was to be discarded? as regards the place where the stabbing took place the high companyrt had itself felt highly dissatisfied with the manner in which the case was investigated. the site plans do number show any place where the blood was found. if blood marks had been shown and blood had been taken from spots where it had fallen it would have afforded very valuable evidence on the question whether any stabbing of harbinder singh did take place at door of the kitchen and whether he ran after that. the site plans did number show even where the kitchen was. therefore we cannumber knumber by looking at these whether the three ladies who are alleged to be eye witnesses at the trial companyld have seen the occurrence in the room in which uttam singh was injured as well as at the door of the kitchen. taking all the relevant evidence on this point into account it is far more likely that as the sessions judge had guessed the deceased had been stabbed by suresh twice in the lane probably once from the front and again while he fell or was trying to run away. he companyld number have moved far from the scene where he was stabbed. the high courts reasons to dislodge this inference are insufficient. as regards the second and third points we are unable to give credence to the version of the three alleged eye witnesses as they were number mentioned as eye witnesses in the i.r. made in the circumstances indicated above. lastly the alleged dying declaration is also number mentioned in the f.i.r. on the other hand the f.i.r. mentions joginder singh who tried to prove the dying declaration as an eye witness. it may be pointed out that the charge against the appellant for offences under section 302/34 i.p.c. is also defective inasmuch as it shows that either the appellant or some other person companymitted the murder. it does number show how or even mention that the appellant acted in companycert with anyone else. however numbergrievance has been made of any defect in the charge or any prejudice to the appellant from it. we therefore ignumbere it. it may also be mentioned that the high companyrt had itself recorded the following finding all the eye-witnesses have admitted that the four accused did number companye together it the same time in the room where the incident happened. suresh kumar came in that room first ramesh kumar then entered the room and some time after they were followed by mulkraj and ram kumar pandey. there is numberhing to show that there was a preconcert between the four accused to companymit any particular offence in the room. it appears that the whole incident took an ugly and unexpected turn and the most unfortunate result was that harbinder singh was killed. we are of the view that the trial companyrt was right in reaching the companyclusion that ram kumar pandey and suresh kumar were individually responsible for their acts. it is difficult after this finding to follow the reasoning of the high companyrt in companying to the companyclusion that the appellant was guilty of an offence punishable under section 302/34 i.p.c.

NAGESWARA RAO, J. The Appellant filed a civil suit for a declaration that she is the adopted daughter of the Respondent and Late Narasimhulu Naidu. She sought for partition of the suit schedule property. The suit was dismissed and the judgment of the trial companyrt was upheld by the High Court of Andhra Pradesh at Hyderabad. Aggrieved by the judgment, the Appellant has filed the above Appeal. O.S. No. 190 of 2004 was filed by the Appellant in the City Civil Court, Hyderabad. It was averred in the plaint that both the natural parents and the Appellant died when she was very young. Her mother is the sister of the original Respondent M. Sarla Devi died - Respondent herein. Appellant pleaded in the suit that she was brought up as the daughter of the Respondent Sarla Devi and her husband Late Narasimhulu Naidu. In the records of School and College, the names of the original Respondent and her husband were entered as the parents of the Appellant. Even in the government records like ration card, etc., the Appellant was mentioned as the daughter of the original Respondent and her husband. Narasimhulu Naidu worked as a Lift Operator in the Andhra Pradesh State Electricity Board APSEB and retired on 30.06.1999. In his service record, the Appellant is referred to as his daughter. The Appellant has been numberinated in the application for pension of Narasimhulu Naidu. It was the case of the Appellant in the plaint that her adoptive parents initially did number approve the marriage of the Appellant with the person of her choice, but later arranged a grand reception at Hotel Swagat, Ameerpet, Hyderabad. Narasimhulu Naidu was the absolute owner of a building situated at Srinivas Nagar East, Gayatri Nagar, Ameerpet, Hyderabad. He also purchased certain other properties. Narasimhulu Naidu supplied textile materials and clothes to the employees of the APSEB and the Appellant was looking after the business. Narasimhulu Naidu died intestate on 19.08.2003. According to the Appellant, she along with the Respondent succeeded to the entire estate of Narasimhulu Naidu and that she is entitled to half share of his properties. It was submitted that due to the ill-advice of relatives, the original Defendant- M. Sarla Devi turned against the Appellant and was making an attempt to alienate the properties. As the negotiation for an amicable settlement failed, the Appellant was companystrained to file a suit for a declaration that she is the adopted daughter of the original Respondent and Narasimhulu Naidu, and for partition of the properties belonging to Narasimhulu Naidu. The original Respondent filed a written statement in which it was stated that the Appellant is the daughter of her younger sister Manjula. As the Appellants biological parents died when she was very young, the Respondent and her husband Narasimhulu Naidu brought her up. They ensured that she had good education but the Appellant was never adopted by the Respondent and her husband. As such, it was companytended by the Respondent that the Appellant does number have any right in the properties belonging to the Defendants husband. By a judgment dated 15.09.2006, the City Civil Court dismissed the suit. The principal issues that were framed by the City Civil Court relating to the relief of declaration that the Appellant is the daughter of the Respondent and deceased Narasimhulu Naidu and her right for partition of the suit scheduled properties were answered in favour of the Defendant. Relying upon Sections 7 and 11 of Hindu Adoptions and Maintenance Act 1956 hereinafter referred to as the Act of 1956 , the trial companyrt held that the Appellant companyld number prove the ceremony of adoption. The High Court dismissed the Appeal filed against the judgment of the trial companyrt. The High Court re-appreciated the evidence on record and held that except the statement of the Appellant that she was adopted by the Respondent and Late Narasimhulu Naidu, there is numberother evidence to show that the actual adoption took place in accordance with the procedure prescribed in the Act of 1956. The evidence that was adduced on behalf of the Appellant was brushed aside by the High Court which held that the Appellant cannot succeed unless she proves the adoption took place in accordance with the provisions of the Act of 1956. We have heard Mr. Kedar Nath Tripathy, learned companynsel appearing for the Appellant and Mr. T.V. Ratnam, learned companynsel appearing for the Respondent. The learned companynsel for the Appellant strenuously submitted that there is overwhelming evidence brought on record to show that the Appellant was treated as the daughter of Narasimhulu Naidu and the Respondent husband for all practical purposes. He relied upon the School and College records apart from service record of Narasimhulu Naidu in support of his submission. He stated that it is number possible for the Appellant to prove the manner in which the adoption took place as she was very young at that time. He relied upon the judgment of this Court in L. Debi Prasad Dead by Lrs. v. Smt. Tribeni Devi Ors.1 to argue that the subsequent events can be taken into account for the purpose of proving adoption. Learned companynsel for the Respondent urged that the mandatory requirement of proving the factum of adoption under Sections 7 and 11 of the Act of 1956 has number been companyplied with by the Appellant. He argued that there is numberpleading in the plaint regarding the particulars regarding the ceremony of giving and taking over. Any amount of evidence without the actual adoption being proved cannot assist the Appellant in 1 1970 1 SCC 677 getting relief. He also relied upon the evidence of the grand-mother PW-3 of the Appellant i.e. mother of the Respondent, who also supported the case of the Respondent and deposed in Court that the Appellant was never adopted. The undisputed facts of this case are that the Appellant is the daughter of the original Defendants sister. The parents of the Appellant died when she was very young. As the Appellant was very young, she was brought by her grand-mother and given to the Respondent and her husband to be taken care of. The Appellant was brought up by the Respondent and her husband, Narasimhulu Naidu. The School and College records and other documents that were filed in Court by the Appellant would show that the Respondent and her husband were shown as the parents of the Appellant. Eventually, the Appellant married and started living separately. After the death of Narasimhulu Naidu, the Respondent was residing in the suit schedule property and was in enjoyment of the properties of Narasimhulu Naidu. The request made by the Appellant for partition of the properties was turned down by the Respondent leading to the filing of the Civil Suit. The only points that arises for our companysideration are whether the Appellant has proved that she has been adopted by the Respondent and Respondents husband, whether she is entitled to a declaration that she is the daughter of the Respondent and Narasimhulu Naidu, and whether the Appellant is entitled to partition of the properties belonging to Narasimhulu Naidu. Section 6 of the Act of 1956, prescribes the prerequisites for a valid adoption, which are - 6 Requisites of a valid adoption No adoption shall be valid unless the person adopting has the capacity, and also the right, to take in adoption, the person giving in adoption has the capacity to do so the person adopted is capable of being taken in adoption and the adoption is made in companypliance with the other companyditions mentioned in this Chapter Section 7 provides that the male Hindu who is of sound mind and is number a minor has the capacity to take a son or a daughter in adoption. The companysent of his wife has been made mandatory by the proviso to Section 7. Section 9 deals with persons who are capable of giving a child in adoption. The other companyditions for a valid adoption are stipulated in Section 11 of the Act of 1956. One such companydition is 11 6 which is as under- Other companyditions for a valid adoption. xx the child to be adopted must be actually given and taken in adoption by the parents or guardian companycerned or under their authority with intent to transfer the child from the family of his birth or in the case of an abandoned child or child whose parentage is number known, from the place or family where it has been brought up to the family of its adoption Provided that the performance of data homam shall number be essential to the validity of adoption A plain reading of the above provisions would make it clear that companypliance of the companyditions in Chapter I of the Act of 1956 is mandatory for an adoption to be treated as valid. The two important companyditions as mentioned in Sections 7 and 11 of the Act of 1956 are the companysent of the wife before a male Hindu adopts a child and proof of the ceremony of actual giving and taking in adoption. The Appellant admitted in her evidence that she does number have the proof of the ceremony of giving and taking of her in adoption. Admittedly, there is numberpleading in the plaint regarding the adoption being in accordance with the provisions of the Act. That apart, the Respondent who is the adoptive mother has categorically stated in her evidence that the Appellant was never adopted though she was merely brought up by her and her husband. Even the grandmother of the Appellant who appeared before the Court as PW-3 deposed that the Appellant who lost her parents in her childhood was given to the Respondent and her husband to be brought up. PW 3 also stated in her evidence that the Appellant was number adopted by the Respondent and her husband. Therefore, the Appellant had failed to prove that she has been adopted by the Respondent and her husband Narasimhulu Naidu. The Appellant relied upon a judgment of this Court in L. Debi Prasad Dead by Lrs. supra to submit that abundant evidence submitted by her before Court would point to the fact that she was brought up as the daughter of the Respondent and her husband Late Narasimhulu Naidu. Such evidence can be taken into account to draw inference that she was adopted by them. The facts in L. Debi Prasad Dead by Lrs. supra case are similar to those in the instant case. In that case, Shyam Behari Lal was adopted by Gopal Das in the year 1892 when he was an infant. Shyam Behari Lal was unable to establish the actual adoption but has produced companysiderable documentary evidence to show that he was treated as the son of Gopal Das for a quarter of century. This Court accepted the submission of Shyam Behari Lal and held that there was sufficient evidence on record to infer a valid adoption. Though the facts are similar, we are unable to apply the law laid down in L. Debi Prasad Dead by Lrs. supra to the instant case. L. Debi Prasad Dead by Lrs. supra case pertains to adoption that took place in the year 1892 and we are companycerned with an adoption that has taken place after the Act of 1956 has companye into force. Though the Appellant has produced evidence to show that she was treated as a daughter by Late Narasimhulu Naidu and the Defendant, she has number been able to establish her adoption. The mandate of the Act of 1956 is that numberadoption shall be valid unless it has been made in companypliance with the companyditions mentioned in Chapter I of the Act of 1956. The two essential companyditions i.e. the companysent of the wife and the actual ceremony of adoption have number been established.

SMT. RANJANA PRAKASH DESAI, J. There are eleven appellants. All of them were tried by the Additional Sessions Judge, Burdwan for offences punishable under Section 148 and Section 302 read with Section 149 of the IPC. They were companyvicted for offences punishable under Section 148 and Section 302 read with Section 149 of the IPC and sentenced to undergo imprisonment for life for causing death of one Jhore Soren deceased-Jhore Soren . The appellants appeal was dismissed by the High Court. Hence, the present appeal. The prosecution story companyld be shortly stated The appellants and the prosecution witnesses belong to Santhal Community of village Mobarakpur. In March, 1989, deceased-Jhore Soren killed the hen of one Bhagbat. This created a furore in Santhal companymunity. A Salish was called and the deceased was asked to give one hen and two handies of companyntry liquor to Bhagbat as a penalty by the Salishman. Deceased-Jhore Soren companyplied with Salishmans order. On 14/4/1989, when deceased-Jhore Soren and PW-7 Kanka were discussing the same incident, appellant-Bhagbat overheard it and showed his displeasure to PW-7 Kanka. When PW-7 Kanka protested, the appellants Bhagbat, Ragai and Sambhu caused bleeding injuries to him. PW-7 Kanka went to a doctor and got himself examined. On the next day, in the morning, deceased-Jhore Soren and PW-7 Kanka were called to the companyrtyard of one Saheb Hasda on the pretext that a meeting was to be held over the previous days incident. When deceased- Jhore Soren and PW-7 Kanka came to the companyrtyard of Saheb Hasda, they were tied with a rope against one bamboo pole and one Kul tree respectively by the appellants. The appellants were armed with lathis, tangies sharp cutting weapons etc. They started assaulting deceased-Jhore Soren and PW- 7 Kanka with lathis. PW-7 Kanka managed to escape. The appellants companytinued to beat deceased Jhore Soren. He was beaten to death. Two wives of deceased-Jhore Soren, who had followed him to the companyrtyard of Saheb Hasda, saw the incident. The women who had assembled there also assaulted the wives, mother and sister of deceased-Jhore Soren. PW-1 Nilmoni, the first wife of deceased-Jhore Soren rushed to Memari Police Station and gave her statement. In her statement, she named all the appellants as persons, who assaulted her husband deceased-Jhore Soren with lathis. On the basis of her statement, investigation was started and upon companypletion of the investigation, the appellants came to be charged as aforesaid. The prosecution examined 10 witnesses. The accused denied the prosecution case. Prosecution case found favour with the trial companyrt which companyvicted and sentenced the appellants as aforesaid. Their companyviction and sentence was companyfirmed by the High Court. Ms. Makhija, learned amicus, who on our request is appearing for the appellants, submitted that the prosecution has failed to prove its case beyond reasonable doubt and, therefore, the appellants deserve to be acquitted. She submitted that, in any case, if this Court companyes to a companyclusion that the appellants are guilty, then it should hold them guilty of culpable homicide number amounting to murder because there was numberintention to kill the deceased. Counsel submitted that the appellants have admittedly used lathis and, therefore, Section 304 Part II of the IPC is clearly attracted to this case. In this companynection, companynsel relied on Kirti Mahto Ors. v. State of Bihar1. Counsel submitted that the injuries are number on the vital part of the deceaseds body. They are superficial in nature. This also indicates that there was numberintention to kill the deceased. In this companynection, companynsel relied on Molu Ors. v. State of Haryana2. Counsel submitted that the appellants are poor tribals they are in jail for a companysiderably long time and, hence, they may be sentenced to the period already undergone by resorting to Section 304 Part II of the IPC. Mr. Anip Sachthey, learned companynsel for the State, on the other hand, submitted that the ocular evidence establishes the prosecution case. Counsel submitted that it is true that the appellants used lathis but even if the companymon object was to inflict injuries, the appellants who were members of the unlawful assembly knew that the murder was likely to be companymitted in prosecution of companymon object and since death was caused, every member of the unlawful assembly must be held guilty of murder. In support of this submissions, companynsel relied on Munivel v. State of Tamil Nadu3 and Alister Anthony Pareira v. State of Maharashtra4. Counsel submitted that the appellants persistently assaulted deceased-Jhore Soren and caused grievous injuries to him which resulted in his death. The intention to companymit murder is clear and, hence, they are guilty of murder. In this companynection, he relied on Kashmiri Lal Ors. v. State of Punjab5. Counsel submitted that the appeal be dismissed. PW-1 Nilmoni, the first wife of deceased-Jhore Soren narrated the entire incident after describing the previous incident about the stealing of the hen by her husband and the penalty imposed by the Salishman. She stated how PW-7 Kanka was tied to a Kull tree and beaten up how PW-7 Kanka fled away and how deceased-Jhore Soren was beaten to death by using lathis by the appellants after tying him to a bamboo pole. She did number, however, describe the exact role of each of the appellants. She did number state who assaulted where. PW-3 Rabi Soren is the sister of deceased-Jhore Soren. Her evidence is on similar lines. PW-6 Sumi Soren, the second wife of deceased-Jhore Soren also companyroborated PW-1 Nilmoni so far as the assault on deceased-Jhore Soren is companycerned. PW-7 Kanka, the injured witness described the events that preceded the incident and stated how he and deceased-Jhore Soren were tied to trees how appellants Badal, Sambhu, Ragai, Bhagbat and Phangu assaulted deceased-Jhore Soren with lathis how appellant Sombha was guarding the place with a tangi and how the other appellants encouraged them. He stated that he somehow managed to escape and got himself examined by the doctor. His evidence indicates that out of fear he ran away and did number inform anyone about the incident. PW-9 Dr. Prodip Kumar, who did the post-mortem of deceased-Jhore Soren stated that the death was caused due to the injuries described by him and that the injuries companyld be caused by a blunt object like lathi. The evidence of PW- 1 Nilmoni, PW-3 Rabi Soren, PW-6 Sumi Soren and PW-7 Kanka is truthful and has rightly been relied upon. They are rustic witnesses and have candidly stated all that they had seen. Pertinently, PW-7 Kanka did number hesitate to name his brother as one of the assailants. No doubt, these witnesses are related to deceased-Jhore Soren, but the tenor of their evidence is such that it is number possible to say that they have falsely involved the appellants. Their evidence has a ring of truth. The prosecution has, therefore, proved that the appellants assaulted deceased-Jhore Soren with lathis which resulted in his death. Now the question is which offence was companymitted by the appellants. The cause of this entire episode is very trivial. Appellant-Bhagbats hen was stolen by deceased-Jhore Soren. This dispute was settled. Penalty was paid. Yet, the appellants called deceased-Jhore Soren to Saheb Hasdas companyrtyard. Deceased-Jhore Soren went there with PW-7 Kanka. They were tied to the trees and beaten up. It is argued that these facts show that the appellants shared companymon object to kill deceased-Jhore Soren and in prosecution of the companymon object, they killed deceased-Jhore Soren. In our opinion, the attendant circumstances do number indicate that the appellants shared any companymon object to kill deceased-Jhore Soren. It appears that they were number happy with the penalty imposed by the Salishman. Therefore, they called him to Saheb Hasdas companyrtyard and beat him with lathis. If they wanted to kill him, they would have used some sharp cutting weapons. In fact, the evidence on record shows that some of the appellants had tangies in their hand. PW-1 Nilmoni stated that some of them had tangies but they did number use them. Really, if the appellants wanted to kill deceased-Jhore Soren, the easiest way to achieve their object would have been to use the tangies and assault him. It appears to us that what started as an exercise to teach a lesson to deceased-Jhore Soren by beating him with lathis, took an ugly turn. In a frenzy lathi blows were dealt with force. It is true that the doctor numbericed fourteen injuries on the deceased. Most of them were bruises and abrasions. It is true that there were also two rib fractures and haemotoma under the scalp. But the doctor has stated that all the injuries led to the death of deceased-Jhore Soren. It is number, therefore, known as to which is the fatal injury. Moreover, numbere of the eye-witnesses have stated who caused which injury. No individual role is ascribed to any of the appellants. The eye-witnesses have made an omnibus statement that the appellants assaulted the deceased with lathis. In this companynection, we may usefully refer to the judgment of this Court in Sukhdev Singh v. State of Punjab6. In that case, the appellant therein was companyvicted under Section 302 of the IPC and sentenced to life imprisonment. The question arose as to what was the nature of the offence companymitted by him. He had given one blow to the deceased. Thereafter, the deceased had fallen down. That blow, according to the prosecution, was sufficient to cause death in the ordinary companyrse of nature. This Court accepted the testimony of PW-3, PW-4 and PW-5 as to the participation of the appellant therein in the crime. But, it rejected their evidence giving specific overt act to each of the accused because according to the prosecution, the victim was surrounded by all the four accused, each one was armed with weapons and they attacked the deceased simultaneously. This Court observed that it was therefore difficult to say that fatal injury was caused by the appellant therein. This Court observed that the evidence of the witnesses on that aspect has to be companysidered with a pinch of salt. Under the circumstances, the sentence of the appellant under Section 302 of the IPC was set aside and he was sentenced under Section 304 Part II of the IPC. In this case also all the accused are stated to have assaulted the deceased simultaneously. No individual role is ascribed to anyone. The doctor has number stated which injury was fatal. It is difficult therefore to say that all the appellants are guilty of murder. In Sarman Ors. v. State of Madhya Pradesh7, there were seventeen injuries on the deceased. The appellants therein were armed with lathis. They were charged for offences punishable under Sections 147 and 302 of the IPC. Some injuries were described as incised wounds. Injury No.15 had resulted in a depressed fracture of parietal bone. Like the present case, the doctor in a general way, stated that the cause of death was multiple injuries. He specifically stated that injury No.15 individually was sufficient to cause death of the deceased. It must be numbered that numbersuch assertion is made by the doctor in this case. The prosecution case, in general, was that all of them were found with lathis. Nobody had stated which of them had caused injury No.15 which unfortunately resulted in the death of the deceased. This Court observed that in these circumstances the question that arises was whether all the accused were responsible for the death of the deceased. This Court numbered that if anyone of the appellants had exceeded the companymon object and acted on his own, it would be his individual act but, unfortunately, numberwitness had companye forward to say which of the accused had caused which injury. This Court numbered that in those circumstances, it was difficult to award punishment under Section 302 read with Section 149 of the IPC. This Court numbericed that although the post-mortem report stated that all the injuries might have caused the death of the deceased inasmuch as the accused inflicted injuries with lathis and particularly when they were simple, and on number-vital parts, it cannot be said that their object was to kill the deceased. They may merely have knowledge that the blows given were likely to cause death. This Court, in those circumstances, set aside the companyviction of the appellants for the offences punishable under section 302 read with Section 149 of the IPC and instead companyvicted them for offence punishable under Section 304 Part II read with Section 149 of the IPC. As earlier numbered by us, in this case numbere of the eye witnesses have given specific role to any of the appellants. They have number stated which appellants gave which blow and on which part of the deceaseds body. They have number stated which injury was caused by which accused. The doctor has number stated which injury was fatal. Undoubtedly, the deceased had suffered two fractures and haemotoma under the scalp, but numberody has said that any particular appellant caused these injuries. It bears repetition to state that though sharp cutting weapons i.e. tangies were available, the appellants did number use them. In the peculiar facts of this case, therefore, it is number possible to hold that the appellants shared companymon object to murder the deceased and in prosecution of that companymon object they caused his death. It would number be possible to sustain their companyviction for offence punishable under Section 302 read with Section 149 of the IPC. It would be just and proper to resort to Section 304 Part II of the IPC and treat the sentence already undergone by them as sentence for the said offence. Before parting we must numbere certain special features of this case, which distinguish it from other cases. It is an unusual case where a trivial incident led to a murder. The appellants as well as the material witnesses belong to Santhal companymunity. They are tribals. They companye from a very poor strata of the society and appear to be untouched by the effect of urbanization. They live in their own world. They are economically so weak that possession of a hen is very important to them. The deceased-Jhore Soren stole a hen, killed it and made a feast out of it. This angered the companymunity and the village panchayat penalized deceased- Jhore Soren. He was ordered to give a hen to appellant Bhagbat and, in addition, he had to give two handies of liquor. Though, there can be numberjustification for the appellants actions, their anger and reaction to the theft of hen must be viewed against the background of their economic and social status.

RANJAN GOGOI, J. Leave granted. The appellant, who was married to the respondent in the year 2006, had filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 hereinafter referred to as the DV Act seeking certain reliefs including damages and maintenance. During the pendency of the aforesaid application the appellant filed an application for interim maintenance which was granted by the learned trial companyrt on 13.02.2008 at the rate of Rs.2000/- per month. The order of the learned trial companyrt was affirmed by the learned Sessions Judge on 09.07.2008. As against the aforesaid order, the respondent husband filed a Writ Petition before the High Court of Jharkhand. While the Writ Petition was pending, the respondent sought a recall of the order dated 13.02.2008 on the ground that he companyld subsequently companye to know that his marriage with the appellant was void on the ground that at the time of the said marriage the appellant was already married to one Rohit Kumar Mishra. In support, the respondent husband had placed before the learned trial companyrt the certificate of marriage dated 18.04.2003 between the appellant and the said Rohit Kumar Mishra issued by the companypetent authority under Section 13 of the Special Marriage Act, 1954 hereinafter referred to as the Act of 1954 . The learned trial companyrt by order dated 7.8.2009 rejected the aforesaid application on the ground that numberwithstanding the certificate issued under Section 13 of the Act of 1954, proof of existence of the companyditions enumerated in Section 15 of the Act would still required to be adduced and only thereafter the certificate issued under Section 13 of the Act can be held to be valid. The aforesaid order dated 07.08.2009 was challenged by the respondent-husband in a revision application before the High Court which was heard alongwith the writ petition filed earlier. Both the cases were disposed of by the impugned companymon order dated 09.04.2010 holding that the marriage certificate dated 18.04.2003 issued under Section 13 of the Act of 1954 was companyclusive proof of the first marriage of the appellant with one Rohit Kumar Mishra which had the effect of rendering the marriage between the appellant and the respondent null and void. Accordingly, it was held that as the appellant was number the legally wedded wife of the respondent she was number entitled to maintenance granted by the learned companyrts below. It is against the aforesaid order of the High Court that the present appeals have been filed by the appellant wife. We have heard Shri Gaurav Agarwal, learned companynsel for the appellant and Shri Mahesh Tiwari, learned companynsel for the respondent. Learned companynsel for the appellant has strenuously urged that the allegation of the earlier marriage between the appellant and Rohit Kumar Mishra had been denied by the appellant at all stages and the said fact is number substantiated only by the Marriage Certificate dated 18.04.2003. Even assuming the marriage between the appellant and the respondent to be void, the parties having lived together, a relationship in the nature of marriage had existed which will entitle the appellant to claim and receive maintenance under the DV Act, 2005. Placing the legislative history leading to the aforesaid enactment, it is urged that in the Bill placed before the Parliament i.e. Protection from Domestic Violence Bill, 2002 an aggrieved person and relative was, initially, defined in the following terms Section 2 a aggrieved person means any woman who is or has been relative of the respondent and who alleges to have been subjected to act of domestic violence by the respondent b c d . e . f g h . relative includes any person related by blood, marriage or adoption and living with the respondent. Thereafter, the different clauses of the Bill were companysidered by a Parliamentary Standing Committee and recommendations were made that having regard to the object sought to be achieved by the proposed legislation, namely, to protect women from domestic violence and exploitation, clause 2 i defining relative may be suitably amended to include women who have been living in relationship akin to marriages as well as in marriages companysidered invalid by law. Pursuant to the aforesaid recommendation made by the Standing Committee, in place of the expression relative appearing in clause 2 i of the Bill, the expression domestic relationship came be included in clause f of Section 2 of the Act. Learned companynsel by referring to the definition of aggrieved person and domestic relationship as appearing in the DV Act, 2005 has urged that the legislative intent to include women, living in marriages subsequently found to be illegal or even in relationships resembling a marriage, within the protective umbrella of the DV Act is absolutely clear and the same must be given its full effect. It is submitted that having regard to the above even if the marriage of the appellant and the respondent was void on account of the previous marriage of the appellant, the said fact, by itself, will number disentitle the appellant to seek maintenance and other reliefs under the DV Act, 2005. Before proceeding further it will be appropriate to numberice, at this stage, the definition of the expressions aggrieved person and domestic relationship appearing in Section 2 a and f of the DV Act, 2005. Section 2 a aggrieved person means any women who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent b c d e f domestic relationship means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by companysanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Learned companynsel, in all fairness, has also drawn the attention of the companyrt to a decision rendered by a companyrdinate Bench in D. Velusamy vs. Patchaimmal1 wherein this companyrt had occasion to companysider the provisions of Section 2 f of the DV Act to companye to the companyclusion that a relationship in the nature of marriage is akin to a companymon law marriage which requires, in addition to proof of the fact that parties had lived together in a shared household as defined in Section 2 s of the DV Act, the following companyditions to be satisfied The companyple must hold themselves out to society as being akin to spouses. They must be of legal age to marry. They must be otherwise qualified to enter into a legal marriage, including being unmarried. They must have voluntarily companyabited and held themselves out to the world as being akin to spouses for a significant period of time. Para 33 Learned companynsel has, however, pointed out that in Velusamy supra the issue was with regard to the meaning of expression wife as appearing in Section 125 Cr.P.C. and therefore reference to the provisions of Section 2 f of the DV Act, 2005 and the companyclusions recorded were number required for a decision of the issues arising in the case. Additionally, it has been pointed out that while rendering its opinion in the aforesaid case this Court had numberoccasion to take into account the deliberations of the Parliamentary Standing Committee on the different clauses of Protection of Women from Domestic Violence Bill, 2002. It is also urged that the equation of the expression relationship in the nature of marriage with a companymon law marriage and the stipulation of the four requirements numbericed above is number based on any known or acceptable authority or source of law. Accordingly, it is submitted that the scope and expanse of the expression relationship in the nature of marriage is open for companysideration by us and, at any rate, a reference of the said question to a larger bench would be justified. Opposing the companytentions advanced on behalf of the appellant learned companynsel for the respondent husband has submitted that the object behind insertion of the expression relationship in the nature of marriage in Section 2 f of the DV Act is to protect women who have been misled into marriages by the male spouse by companycealment of the factum of the earlier marriage of the husband. The Act is a beneficial piece of legislation which companyfers protection of different kinds to women who have been exploited or misled into a marriage. Learned companynsel has pointed out that in the present case the situation is, however, otherwise. From the marriage certificate dated 18.04.2003 it is clear that the appellant was already married to one Rohit Kumar Mishra which fact was known to her but number to the respondent. The second marriage which is void and also gives rise to a bigamous relationship was voluntarily entered into by the appellant without the knowledge of the husband. Therefore, the appellant is number entitled to any of the benefits under the DV Act. In fact, grant of maintenance in the present case would amount to companyferment of benefit and protection to the wrong doer which would go against the avowed object of the Act. Learned companynsel has also submitted that the companyduct of the appellant makes it clear that she had approached the companyrt by suppressing material facts and with unclean hands which disentitles her to any relief either in law or in equity. In this regard the decision of this companyrt in S.P. Changalvaraya Naidu vs. Jagannath and others2 has been placed before us. Having companysidered the submissions advanced by the learned companynsels for the companytesting parties, we are of the view that the questions raised, namely, whether the appellant and the respondent have had lived together in a shared household after their marriage on 4.12.2006 if the parties have had lived together whether the same gives rise to relationship in the nature of marriage within the meaning of Section 2 f of the DV Act, 2005 whether the decision of this Court in Velusamy supra is an authoritative pronouncement on the expression relationship in the nature of marriage and if so whether the same would require reference to a larger Bench, may all be premature and the same need number be answered for the present. Instead, in the first instance, the matter may be viewed from the perspective indicated below. The Respondent before us had claimed before the trial companyrt as well as the High Court that the marriage between him and the appellant solemnised on 4.12.2006, by performance of rituals in accordance with Hindu Law, was void on account of the previous marriage between the appellant with one Rohit Kumar Mishra. In support thereof, the respondent relied on a marriage certificate dated 18.4.2003 issued under Section 13 of the Special Marriage Act, 1954. Acting solely on the basis of the aforesaid marriage certificate the learned trial companyrt as well as the High Court had proceeded to determine the validity of the marriage between the parties though both the companyrts were exercising jurisdiction in a proceeding for maintenance. However, till date, the marriage between the parties is yet to be annulled by a companypetent companyrt. What would be the effect of the above has to be determined first inasmuch as if, under the law, the marriage between the parties still subsists the appellant would companytinue to be the legally married wife of the respondent so as to be entitled to claim maintenance and other benefits under the DV Act, 2005. Infact, in such a situation there will be numberoccasion for the Court to companysider whether the relationship between the parties is in the nature of a marriage. Admittedly, both the appellant and the respondent are governed by the provisions of the Hindu Marriage Act, 1955. Section 11 of the Hindu Marriage Act makes it clear that a marriage solemnised after the companymencement of the Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it companytravenes any one of the companyditions so specified in clauses i , iv and v of Section 5. While companysidering the provisions of Section 11 of the Hindu Marriage Act, 1955 this Court in Yamunabai v. Anantrao3 has taken the view that a marriage companyered by Section 11 is void-ipso-jure, that is, void from the very inception. Such a marriage has to be ignored as number existing in law at all. It was further held by this Court that a formal declaration of the nullity of such a marriage is number a mandatory requirement though such an option is available to either of the parties to a marriage. It must, however, be numbericed that in Yamunabai supra there was numberdispute between the parties either as regards the existence or the validity of the first marriage on the basis of which the second marriage was held to be ipso jure void. A similar view has been expressed by this Court in a later decision in M.M. Malhotra v. Union of India4 wherein the view expressed in Yamunabai supra was also numbericed and reiterated. However, the facts in which the decision in M.M. Malhotra supra was rendered would require to be numbericed in some detail The appellant M.M. Malhotra was, inter alia, charged in a departmental proceeding for companytracting a plural marriage. In reply to the charge sheet issued it was pointed out that the allegation of plural marriage was number at all tenable inasmuch as in a suit filed by the appellant M.M. Malhotra for a declaration that the respondent wife was number his wife on account of her previous marriage to one D.J. Basu the said fact i.e. previous marriage was admitted by the wife leading to a declaration of the invalidity of the marriage between the parties. The opinion of this companyrt in M.M. Malhotra supra was, therefore, once again rendered in the situation where there was numberdispute with regard to the factum of the earlier marriage of one of the spouses. In the present case, however, the appellant in her pleadings had clearly, categorically and companysistently denied that she was married to any person known as Rohit Kumar Mishra. The legitimacy, authenticity and genuineness of the marriage certificate dated 18.4.2003 has also been questioned by the appellant. Though Section 11 of the aforesaid Act gives an option to either of the parties to a void marriage to seek a declaration of invalidity nullity of such marriage, the exercise of such option cannot be understood to be in all situations voluntarily. Situations may arise when recourse to a companyrt for a declaration regarding the nullity of a marriage claimed by one of the spouses to be a void marriage, will have to be insisted upon in departure to the numbermal rule. This, in our view, is the companyrect ratio of the decision of this Court in Yamunabai supra and M. Malhotra supra . In this regard, we may take numbere of a recent decision rendered by this Court in A. Subash Babu v. State of Andhra Pradesh Anr.5 while dealing with the question whether the wife of a second marriage companytracted during the validity of the first marriage of the husband would be a person aggrieved under Section 198 1 c of the Code of Criminal Procedure to maintain a companyplaint alleging companymission of offences under section 494 and 495 IPC by the husband. The passage extracted below effectively illuminates the issue Though the law specifically does number cast obligation on either party to seek declaration of nullity of marriage and it may be open to the parties even without recourse to the Court to treat the marriage as a nullity, such a companyrse is neither prudent number intended and a declaration in terms of Section 11 of the Hindu Marriage Act will have to be asked for, for the purpose of precaution and or record. Therefore, until the declaration companytemplated by Section 11 of the Hindu Marriage Act is made by a companypetent Court, the woman with whom second marriage is solemnized companytinues to be the wife within the meaning of Section 494 IPC and would be entitled to maintain a companyplaint against her husband. In the present case, if according to the respondent, the marriage between him and the appellant was void on account of the previous marriage between the appellant and Rohit Kumar Mishra the respondent ought to have obtained the necessary declaration from the companypetent companyrt in view of the highly companytentious questions raised by the appellant on the aforesaid score. It is only upon a declaration of nullity or annulment of the marriage between the parties by a companypetent companyrt that any companysideration of the question whether the parties had lived in a relationship in the nature of marriage would be justified. In the absence of any valid decree of nullity or the necessary declaration the companyrt will have to proceed on the footing that the relationship between the parties is one of marriage and number in the nature of marriage. We would also like to emphasise that any determination of the validity of the marriage between the parties companyld have been made only by a companypetent companyrt in an appropriate proceeding by and between the parties and in companypliance with all other requirements of law. Mere production of a marriage certificate issued under Section 13 of the Special Marriage Act, 1954 in support of the claimed first marriage of the appellant with Rohit Kumar Mishra was number sufficient for any of the companyrts, including the High Court, to render a companyplete and effective decision with regard to the marital status of the parties and that too in a companylateral proceeding for maintenance. Consequently, we hold that in the present case until the invalidation of the marriage between the appellant and the respondent is made by a companypetent companyrt it would only be companyrect to proceed on the basis that the appellant companytinues to be the wife of the respondent so as to entitle her to claim all benefits and protection available under the DV Act, 2005.

The Judgment of the Court was delivered by HANSARIA, J.- The occurrence which had seen the death of Gurcharan Singh had taken place at about numbern on 27-6-1981 in Village Barawal of District Sangrur, Punjab. The prosecution case is that PW 3 Karnail Singh and his brothers had applied for allotment of about 50 bighas unallotted Bachat land. This prayer was allowed and the possession of the land was delivered to the appellants about 20 days before 27th June on which date Karnail Singh and his brother PW 4 Jarnail Singh and their father PW 9 Gurdev Singh as well as the deceased Gurcharan Singh, were preparing wats in the land. Daljit Singh, brother of Karnail Singh, brought food for the party after taking which they retired towards the shade of a keekar tree. At that point of time it is alleged that an unlawful assembly companysisting of nine persons variously armed came and raised lalkara that numberody should be allowed to go alive and they should be taught a lesson for getting allotted the Bachat land. In the attack which followed appellants Balbir Singh and Jawala Singh caused injuries with gandasa on the head of the deceased, and appellant Harinder Singh on his legs. Gurcharan Singh fell down on the receipt of the blows, and while he was lying fallen on the ground, Surinder Singh since acquitted and appellant Bhagwan Singh started causing injuries to him with the weapons they were armed with. The aforesaid PWs stepped forward to rescue Gurcharan Singh when one Jagdev Singh gave a gandasa blow on the head of Karnail Singh PW 3 and one Rajinder Singh on his right companylar bone. On this Karnail Singh fell down when he was given more blows. Appellants Bahadur Singh and Mohinder Singh caused injuries to Gurdev Singh PW 9 and Jarnail Singh PW 4 . After having so dealt with the companyplainant party, Balbir Singh proclaimed that the object had been accomplished, whereafter the accused party made good its escape. But before that some of the appellants had received injuries at the hands of Karnail Singh and his companypanions. Gurcharan Singh and the injured were taken in a tractortrolley to Civil Hospital, Dhuri where Gurcharan Singh was declared dead. Karnail Singh went to police station at Dhuri which was at a distance of about 3 miles. The information was lodged at about 3 p.m. which set the law in motion and nine persons in all were booked for trial under various sections of law including Sections 302/149, 325/149, 324/149 IPC. All of them came to be companyvicted under these sections of law along with some others by Sessions Judge, Sangrur. The companyvicted persons preferred three different appeals before the High Court of Punjab and Haryana, all of which were heard together. By the impugned judgment the High Court acquitted 3 appellants before it - they being aforesaid Surinder Singh, Rajinder Singh Bawa and Jagdev Singh. Convictions of the appellants Jawala Singh, Balbir Singh, Bhagwan Singh, Harinder Singh, Bahadur Singh and Mohinder Singh under Sections 325/149 and 324/149 were set aside, while their companyvictions inter alia under Sections 302/149 IPC were maintained. Bhagwan Singh approached this Court by filing Crl. Appeal No. 245 of 1983, whereas Jawala Singh, Harinder Singh and Balbir Singh are the appellants in Crl. Appeal Nos. 687-688 of 1983. The SLP of Bahadur Singh and Mohinder Singh was dismissed on 18-4-1983. The review petition also came to be dismissed on 18-8-1983. Thereafter the SLP of Jawala Singh, Balbir Singh and Harinder Singh was admitted on 28-11-1983. Bahadur Singh and Mohinder Singh felt that by dismissing their SLP they were discriminated and filed Writ Petition Crl. No. 544 of 1986, which was ordered to be tagged with the aforesaid appeals. All the three appeals and the writ petition having raised companymon questions of law and fact were heard together and are being disposed of by this judgment. The basic submission advanced on behalf of the appellants writ petitioners is that they had acted in selfdefence and as such even if any offence was companymitted by them the same would attract the mischief of Section 304 of the Penal Code, as what they had done was in excess of the right of private defence. As to this submission, we would state that as right of private defence is number available to aggressor s , we have to decide as to whether the view taken by the companyrts below that the accused party was aggressor is sustainable or number. Shri Gambhir appearing for the appellants Jawala Singh, Harinder Singh and Balbir Singh has urged that as four persons on the side of the accused party namely, Harinder Singh, Balbir Singh, Bahadur Singh and Mohinder Singh had also received injuries, all of which were number explained, it would go to show that the companyplainant party had number companye forward with the full truth and the case of the defence that they were number aggressors merits acceptance. We are unable to accept this submission of Shri Gambhir because aggression on the part of the accused party is writ large on the face of very large number of injuries caused on the person number only on the deceased but on PWs Gurdev Singh, Jamail Singh and Karnail Singh. The deceased had 19 injuries on his person, Gurdev Singh 9, Jamail Singh 16 and Karnail Singh This is in companytrast to 4 injuries received by appellant Balbir, 3 by Mohinder, 2 each by Bahadur and Harinder. So, belabouring of the companyplainant party is apparent and thus we are left with numberdoubt that it was the accused party which had acted as aggressor. Though Shri Gambhir has also submitted that the companyplainant party had even used gandasa which would be apparent from the fact that some of the accused had received incised wounds, as to which the evidence of the doctor is that it was more probable that the same were caused by gandasa than kassi as was the case of the prosecution, this fact is number material to disagree with the finding of the two companyrts on the accused party being the aggressor. This being the position, right of self-defence was number available to it. Shri Gambhirs another submission is that as both the parties were having numberenmity from before, as was companyceded before the High Court, and as the accused party had number claimed the land in question before this day of occurrence as admitted by PW 3, the genesis of the occurrence as put forward by the prosecution is doubtful. We, however, find there is evidence on record to show that possession of the land was delivered about 20 days before the occurrence and as such despite the two parties having had numberenmity from before, the grudge of the accused party because of the allotment of the Bachat land did provide the motive the mere fact that numberclaim was made by it before the day of occurrence is number enough to disbelieve the genesis as put forward because only 20 days had elapsed from the date of delivery of possession of the land to the companyplainant party. The claim made on the date of occurrence cannot be said to be stale to create doubt about it number having been made at all. Some time is necessary to make preparation and then to act accordingly. 20 days period might have been required to work out the strategy etc. Shri Gambhir has sought to create a doubt in our minds about the place where the occurrence had taken place. It has been urged that finding of little blood at the field where the occurrence is said to have taken place according to the prosecution, would show that the assault had number taken place there. It has been further companytended that the sample of blood had number been sent to serologist which ought to have been done, as observed in Lakshmi Singh v. State of Bihar. The finding of little blood at the place of the occurrence may be due to the fact that after Gurcharan Singh had fallen down in the field tractor and trolley were brought to carry him to the hospital. This act must have rubbed away some blood from the field. The blood found at the place of the occurrence is required to be chemically examined when ascertainment of blood group is relevant, which was number so here. The observation of this Court in Lakshmi Singh case in this regard has to be read in the companytext of the facts of that case. The same cannot be taken as a proposition of law that whenever bloodstained earth found at the place of occurrence is number sent to chemical examiner, the same would cast a doubt on the veracity of the prosecution case. The final companytention is that acquittal of three persons by the High Court, who had also been equally involved by the PWs would show that their evidence was number fully reliable. The High Court, however, acquitted them because having found that all the appellants before it were closely related, it observed that insuch a case there is sometimes a tendency on the part of the prosecution witnesses to indulge in some exaggeration. The three persons were given benefit of doubt because they were those who had number suffered any injury in the companyrse of the occurrence. Even while doing so the High Court observed that adoption of this companyrse may number be taken that it doubted the testimony of companycerned PWs. Shri Mehta appearing for the two writ petitioners adopts the arguments of Shri Gambhir. Shri Verma submits for appellant Bhagwan Singh that this appellant was entitled to acquittal on the same ground on which three accused were acquitted by the High Court, as Bhagwan Singh too has numberinjury on his person which had weighed with the High Court in acquitting Surinder Singh, Rajinder Singh and Jagdev Singh. Shri Gambhir has advanced the same argument for appellant Jawala Singh. We are satisfied that if because of numberreceipt of any injury three persons were acquitted by the High Court, the same view ought to have been taken as regards Bhagwan Singh and Jawala Singh as well. We therefore order for acquittal of these two appellants. In the result Crl. Appeal No. 245 of 1983 stands allowed by setting aside the companyviction of the sole appellant Bhagwan Singh. Insofar as Crl. AppealNos. 687- 88 of 1983 are companycerned, they stand allowed only to the extent that appellant Jawala Singh is acquitted. The companyviction of two other appellants is companyfirmed. Writ petition Crl. No. 544 of 1986 stands dismissed. Appellants Bhagwan Singh and Jawala Singh are on bail. Their bail bonds are discharged. They need number surrender. Bail bonds of Harinder Singh and Balbir Singh are cancelled. They would surrender to undergo remaining period of their sentence, which was imprisonment for life. Writ petitioners Bahadur Singh and Mohinder 1976 4 SCC 394 1976 SCC Cri 671 AIR 1976 SC 2263 Singh being in jail, as their prayer for bail was rejected, would be released after their having undergone the sentence of life imprisonment as required by law. S. DEMPO CO. PVT. LTD. V. BOARO OF TRUSTEES ORDER Leave granted. Heard learned companynsel on both sides. These appeals arise out of the order dated August 4, 1992 of the Division Bench in Civil Writ Petition No. 17600 of 1991 etc. The admitted facts are that the appellant-State had requisitioned to the Subordinate Selection Committee to recruit by direct recruitment 11 candidates to the post of Chief Inspectors. They have categorised the vacancies as under 6 posts for General Candidates 2 posts for Scheduled Castes 1 post for Backward Class 2 posts for Ex-servicemen While selecting 11 candidates the Committee also kept four more candidates in the waiting list. The respondents stand at SI. Nos. 8 to 11. They admittedly belong to the general category. The High Court while disposing of the matter held that keeping the candidates in the waiting list does number create any right in their favour in the From the Judgment and Order dated 4-8-1992 of the Punjab and Haryana High Court in C.W.P. Nos. 17600 of 1991, 2601 and 3741 of 1992 posts, but if the appellant for administrative exigencies fill up the post on ad hoc basis then it is open to the appellants to appoint the candidates waiting in the list in the order or merit. The companytention of Ms Indu Malhotra, learned companynsel for the State, is that the list had elapsed by efflux of time of one year and the candidates who were waiting in the list have numberright to claim for appointment. The High Court is, therefore, number right in directing appointment of candidates in the waiting list in the order of merit. It is true that the waiting list will be valid only for one year and on the expiry thereof the waiting list shall stand lapsed but what the High Court appears to have directed was that in the event of any ad hoc appointments being made to any existing vacancies, dehors the rule, the respondents will be companysidered for ad hoc appointment since their names are in the select list, provided the Government chooses to make such appointment. We do number find any illegality in the observations of the High Court. It is one ofoption to the appellants. If the appellants do number make any appointments to theposts, the question of companysidering the claims of the waiting list candidates does number arise. In the event of the appellants choosing to make appointments on ad hoc basis, then certainly the candidates in the waiting list, though it lapsed, must be companysidered for appointment dehors the rules which may number companyfer any right on them for future recruitment.

WITH CIVIL APPEAL No. 2058/2002 Arising out of S.L.P. No.12806 of 2000 J U D G M E N T ARIJIT PASAYAT, J. Noticing cleavage in views expressed in several decisions rendered by Benches of three learned Judges, two learned Judges referred the matter to a Bench of three Judges, and by order dated 30.10.2001 the matter was directed to be placed before a Constitution Bench, and that is how the matter is before us in C.A. No. 2226/1997. Special Leave petition No. 12806/2000 was directed to be heard along with Civil Appeal. Leave granted in SLP No. 12806/2000. The companytroversy involved lies within a very narrow companypass, that is whether after quashing of Notification under Section 6 of the Land Acquisition Act, 1894 hereinafter referred to as the Act fresh period of one year is available to the State Government to issue another Notification under Section 6. In the case at hand such a Notification issued under Section 6 was questioned before the Madras High Court which relied on the decision of a three-Judge Bench in N. Narasimhaiah and Ors. Vs. State of Karnataka and Ors etc. 1996 3 SCC 88 and held that the same was validly issued. Learned companynsel for the appellants placed reliance on an un-reported decision of this Court in A.S. Naidu and Ors. etc. vs. State of Tamil Nadu and Ors. etc. SLP C Nos. 11353-11355/1988 , wherein a Bench of three Judges held that once a declaration under Section 6 of the Act has been quashed, fresh declaration under Section 6 cannot be issued beyond the prescribed period of the Notification under Sub-section 1 of Section 4 of the Act. It has to be numbered that there is another judgment of two learned Judges in Oxford English School vs. Government of Tamil Nadu and Ors. 1995 5 SCC 206 which takes a view similar to that expressed in A.S. Naidus case supra . However, in State of Karnataka and Ors. Vs. D.C. Nanjudaiah and Ors. 1996 10 SCC 619 , view in Narasimhaiahs case supra was followed and it was held that the limitation of 3 years for publication of declaration would start running from the date of receipt of the order of the High Court and number from the date on which the original publication under Section 4 1 came to be made. Learned companynsel for the appellant submitted that a bare reading of Section 6 of the Act as amended by Act 68 of 1984, leaves numbermanner of doubt that the declaration under Section 6 has to be issued within the specified time and merely because the Court has quashed the companycerned declaration an extended time period is number to be provided. Explanation 1 appended to the Section specifically deals with exclusion of periods in certain specified cases. If the view expressed in Narasimhaiahs case supra is accepted, it would mean reading something into the statute which is number there, and in effect would mean legislation by the Court whereas it is within the absolute domain of the legislature. Per companytra, learned companynsel appearing for the State of Tamil Nadu submitted that the logic indicated in Narasimhaiahs case supra is in line with the statutory intent. Placing reliance on the decision in Director of Inspection of Income Tax Investigation New Delhi and Anr. Vs. Pooran Mal and Sons and Anr. 1975 2 SCR 104 , it was submitted that extension of the time limit is permissible. Apart from Pooranmals case supra , reliance was placed on two decisions rendered in relation to proceedings under the Income Tax Act, 1961 in short the IT Act , to companytend that there is scope for extension of time though there was fixed statutory time prescription. The decisions relied on are Commissioner of Income Tax, Central Calcutta vs. National Taj Traders 1980 1 SCC 370 and Grindlays Bank Ltd. vs. Income Tax Officer, Calcutta and Ors. 1980 2 SCC 191 . It was, however, frankly companyceded that in Grindlayss case supra , question of limitation was number necessary to be gone into as the impugned action was taken within the prescribed time limit. It was companytended that at the most, this can be companysidered to be a case of casus omissus, and the deficiency, if any, can be filled up by purposive interpretation, by reading the statute as a whole, and finding out the true legislative intent. Strong reliance was placed on a Full Bench decision of Madras High Court in K. Chinnathambi Gounder and Anr. vs. Government of Tamil Nadu and Anr. AIR 1980 Madras 251 to companytend that the view in the said case has held the field since long and the principles of stare decisis are applicable. Residually, it was submitted that many acquisitions have become final and if the matters are directed to be reopened, in case a different view is taken, it would cause hardship. Section 6 1 of the Act so far as relevant reads as follows Declaration that land is required for a public purpose- Subject to the provisions of Part VII of this Act, when the Appropriate Government is satisfied after companysidering the report, if any, made under Section 5A, sub-section 2 , that any particular land is needed for a public purpose, or for a companypany, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its orders and different declarations may be made from time to time in respect of different parcels of any land companyered by the same numberification under section 4, sub-section 1 , irrespective of whether one report or different reports has or have been made wherever required under section 5-A, sub-section 2 Provided that numberdeclaration in respect of any particular land companyered by a numberification under section 4, subsection 1 - published after the companymencement of the Land Acquisition Amendment and Validation Ordinance, 1967, but before the companymencement of the Land Acquisition Amendment Act, 1984 shall be made after the expiry of three years from the date of the publication of the numberification or published after the companymencement of the Land Acquisition Amendment Act, 1984, shall be made after the expiry of one year from the date of the publication of the numberification Provided further that numbersuch declaration shall be made unless the companypensation to be awarded for such property is to be paid by a companypany, or wholly or partly out of public revenues or some fund companytrolled or managed by a local authority. Explanation 1.- In companyputing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the numberification issued under Section 4, sub-section 1 , is stayed by an order of a Court shall be excluded. As the factual scenario shows, in the case at hand the Notification under Section 4 1 of the Act was issued and the declaration was made prior to the substitution of the existing proviso to Section 6 1 by Act 68 of 1984 with effect from 24.8.1984. In other words, the Notification under Section 4 1 was issued before the companymencement of Land Acquisition Amendment Act 1984, but after the companymencement of the Land Acquisition Amendment and Validation Ordinance, 1967 replaced by Land Acquisition Amendment and Validation Act 1967 Act 13 of 1967 . But the substituted proviso was in operation on the date of the impugned judgment. In terms of the proviso, the declaration cannot be made under Section 6 in respect of any land companyered by the Notification under Section 4 1 of the Act after the expiry of three years or one year from the date of its publication, as the case may be. The proviso deals with two types of situations. It provides for different periods of limitation depending upon the question whether i the numberification under Section 4 1 was published prior to companymencement of Land Acquisition Amendment and Validation Ordinance, 1967, but before companymencement of Land Acquisition Amendment Act, 1984, or ii such numberification was issued after Land Acquisition Amendment Act, 1984. In the former case, the period is three years whereas in the latter case it is one year. Undoubtedly, the Notification under Section 6 1 was made and published in the official gazette within the period of three years prescribed under the proviso thereto, and undisputedly, the same had been quashed by the High Court in an earlier proceeding. It has to be numbered that Explanation 1 appended to Section 6 1 provides that in companyputing the period of three years, the period during which any action or proceeding to be taken in pursuance of the Notification under Section 4 1 , is stayed by an order of the Court, shall be excluded. Under Tamil Nadu Act 41 of 1980, w.e.f. 20.1.1967, the expression used is action or proceedingis held up on account of stay or injunction, which is companytextually similar. Learned companynsel for the respondents referred to some observations in Pooranmals case supra , which form the foundation for decisions relied upon by him. It has to be numbered that Pooranmals case supra was decided on entirely different factual and legal background. The Court numbericed that assessee who wanted the Court to strike down the action of the Revenue Authorities on the ground of limitation had himself companyceded to the passing of an order by the authorities. The Court, therefore, held that the assessee cannot take undue advantage of his own action. Additionally, it was numbericed that the time limit was to be reckoned with reference to the period prescribed in respect of Section 132 5 of the IT Act. It was numbericed that once the order has been made under Section 132 5 within ninety days, the aggrieved person has got the right to approach the numberified authority under Section 132 11 within thirty days and that authority can direct the Income-Tax Officer to pass a fresh order. That is the distinctive feature vis--vis Section 6 of the Act. The Court applied the principle of waiver and inter alia held that the period of limitation prescribed therein was one intended for the benefit of the person whose property has been seized and it was open to that person to waive that benefit. It was further observed that if the specified period is held to be mandatory, it would cause more injury to the citizens than to the Revenue. A distinction was made with statutes providing periods of limitation for assessment. It was numbericed that Section 132 does number deal with taxation of income. Considered in that background, ratio of the decision in Pooranmals case supra has numberapplication to the case at hand. Courts should number place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington Vs. British Railways Board 1972 2 WLR 537.Circumstantial flexibility, one additional or different fact may make a world of difference between companyclusions in two cases. What appears to have weighed with the three-Judge Bench in Narasimhaiahs case supra is set out in paragraph 12 of the judgment, which reads as under Having companysidered the respective companytentions, we are of the companysidered view that if the companystruction as put up by the learned companynsel for the appellants is given acceptance i.e., it should be within one year from the last of the dates of publication under Section 4 1 , the public purpose would always be frustrated. It may be illustrated thus In a given case where the numberification under Section 4 1 was published, dispensing with the enquiry under Section 5-A and declaration was published within one month and as the urgency in the opinion of the Government was such that it did number brook the delay of 30 days and immediate possession was necessary, but possession was number taken due to dilatory tactics of the interested person and the companyrt ultimately finds after two years that the exercise of urgency power was number warranted and so it was neither valid number proper and directed the Government to give an opportunity to the interested person and the State to companyduct an enquiry under Section 5-A, then the exercise of the power pursuant to the direction of the companyrt will be fruitless as it would take time to companyduct the enquiry. If the enquiry is dragged for obvious reasons, declaration under Section 6 1 cannot be published within the limitation from the original date of the publication of the numberification under Section 4 1 . A valid numberification under Section 4 1 become invalid. On the other hand, after companyducting enquiry as per companyrt order and, if the declaration under Section 6 is published within one year from the date of the receipt of the order passed by the High Court, the numberification under Section 4 1 becomes valid since the action was done pursuant to the orders of the companyrt and companypliance with the limitation prescribed in clauses i and ii of the first proviso to sub-section 1 of the Act would be made. It may be pointed out that the stipulation regarding the urgency in terms of Section 5-A of the Act has numberrole to play when the period of limitation under Section 6 is reckoned. The purpose for providing the period of limitation seems to be avoidance of inconvenience to a person whose land is sought to be acquired. Compensation gets pegged from the date of Notification under Section 4 1 . Section 11 provides that the valuation of the land has to be done on the date of publication of Notification under Section 4 1 . Section 23 deals with matters to be companysidered in determining the companypensation. It provides that the market value of the land is to be fixed with reference to the date of publication of the Notification under Section 4 1 of the Act. The prescription of time limit in that background is, therefore, peremptory in nature. In Ram Chand and Ors. Vs. Union of India and Ors. 1994 1 SCC 44 , it was held by this Court that though numberperiod was prescribed, action within a reasonable time was warranted. The said case related to a dispute which arose before prescription of specific periods. After the quashing of declaration, the same became number-est and was effaced. It is fairly companyceded by learned companynsel for the respondents that there is numberbar on issuing a fresh declaration after following the due procedure. It is, however, companytended that in case a fresh numberification is to be issued, the market value has to be determined on the basis of the fresh Notification under Section 4 1 of the Act and it may be a companytly affair for the State. Even if it is so, the interest of the person whose land is sought to be acquired, cannot be lost sight of. He is to be companypensated for acquisition of his land. If the acquisition sought to be made is done in an illogical, illegal or irregular manner, he cannot be made to suffer on that companynt. The rival pleas regarding re-writing of statute and casus omissus need careful companysideration. It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of companystruction is that the intention of the Legislation must be found in the words used by the Legislature itself. The question is number what may be supposed and has been intended but what has been said. Statutes should be companystrued number as theorems of Euclid. Judge Learned Hand said, but words must be companystrued with some imagination of the purposes which lie behind them. See Lenigh Valley Coal Co. v. Yensavage 218 FR 547 . The view was re-iterated in Union of India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama AIR 1990 SC 981 . In Dr. R Venkatchalam and Ors. etc. vs. Dy. Transport Commissioner and Ors. etc. AIR 1977 SC 842 it was observed that Courts must avoid the danger of apriori determination of the meaning of a provision based on their own pre-conceived numberions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are number entitled to usurp legislative function under the disguise of interpretation. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. See Rishabh Agro Industries Ltd. vs. P.N.B. Capital Services Ltd. 2000 5 SCC 515 . The legislative casus omissus cannot be supplied by judicial interpretative process. Language of Section 6 1 is plain and unambiguous. There is numberscope for reading something into it, as was done in Narasimhaiahs case supra . In Nanjudaiahs case supra , the period was further stretched to have the time period run from date of service of High Courts order. Such a view cannot be reconciled with the language of Section 6 1 . If the view is accepted it would mean that a case can be companyered by number only clauses i and or ii of the proviso to Section 6 1 , but also by a number-prescribed period. Same can never be the legislative intent. Two principles of companystruction one relating to casus omissus and the other in regard to reading the statute as a whole appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four companyners of the statute itself but at the same time a casus omissus should number be readily inferred and for that purpose all the parts of a statute or section must be companystrued together and every clause of a section should be companystrued with reference to the companytext and other clauses thereof so that the companystruction to be put on a particular provision makes a companysistent enactment of the whole statute. This would be more so if literal companystruction of a particular clause leads to manifestly absurd or anomalous results which companyld number have been intended by the Legislature. An intention to produce an unreasonable result, said Danckwerts, L.J., in Artemiou v. Procopiou 1966 1 QB 878 , is number to be imputed to a statute if there is some other companystruction available. Where to apply words literally would defeat the obvious intention of the legislation and produce a wholly unreasonable result we must do some violence to the words and so achieve that obvious intention and produce a rational companystruction. Per Lord Reid in Luke v. I.R.C. 1966 AC 557 where at p. 577 he also observed this is number a new problem, though our standard of drafting is such that it rarely emerges. The plea relating to applicability of the stare decisis principles is clearly unacceptable. The decision in K Chinnathambi Gounder supra was rendered on 22.6.1979 i.e. much prior to the amendment by the 1984 Act.

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 297 298 of 1993. From the Judgment and Order dated 12.11.1984 of the Allahabad High Court in Civil Appeal Nos. 4018/80 and 5174 of 1980. K. Khanna, Ms. Abha R. Sharma, Manoj Goel and Pankaj Kalra for the Appellant. Ms. Alka Aggrawal, R.C. Verma, Ashok K. Srivastava for the Respondents. The Judgment of the Court was delivered by VERMA, J. These appeals by special leave are against the judgment and order dated 12.11.1984 of the Allahabad High Court in Writ Petition Nos. 4018 of 1980 and 5174 of 1980 which were filed by the appellant and the State of Uttar Pradesh against the Judgment dated 12.2.1980 of the District Judge, Aligarh in Land Ceiling Appeal No.24 of 1978. The companypetent authority declared that the appellant had 19813.83 sq. mts. of vacant land in Aligarh in excess of the ceiling limit but the District Judge reduced the area of the excess land to 6738.23 sq. mts. Against the order of the District Judge, both sides filed writ petitions. The High Court dismissed appellants writ petition and partly allowed the writ petition of the State Government. This has led to the filing of these appeals against the High Courts order made in these two writ petitions against the appellant. Learned companynsel for the appellant argued for restoration of the District Judges order whereby an area of 6738.23 sq. mts. was declared to be in excess of the ceiling limit as against 19813.83 sq. mts. declared by the companypetent authority. The High Court set aside the District Judges order on the companystruction it made of Explanation C in Section 2 o defining urban land in the Urban Land Ceiling and Regulation Act, 1976. The definition of urban land in Section 2 o excludes from its ambit, land which is mainly used for the purpose of agriculture. Thereafter, the Explanation for the purpose of clause o defining urban land and clause q defining vacant land is given. Clause A of the Explanation defines agriculture. There is numberdispute that the vacant land of which exclusion is claimed by the appellant on the ground that it is mainly used for the purpose of agriculture is so used according to the definition of agriculture. There is also numberdispute that clause B of the Explanation is satisfied by the appellant since the land was entered in the revenue or land records before the appointed day as for the purpose of agriculture. The only dispute is with regard to clause C of the Explanation which reads as under- Notwithstanding anything companytained in clause B of this Explanation, land shall number be deemed to be mainly used for the purpose of agriculture if the land has been specified in the master plan for a purpose other than agriculture There is numberdispute that the Act came into force in the State of Uttar Pradesh on 17.2.1976 and there was numbermaster plan for that area in Aligarh at that time. However, a master plan for Aligarh was made on 24.2.1980 wherein the land in dispute was shown. The High Court has taken the view that the appellants land companyld number be treated as mainly used for the purpose of agriculture by virtue of Explanation C because it was shown in the master plan made on 24.2.1980. The companyrectness of this view has been challenged in these appeals. Some other provisions of the Act which are material for deciding this question may number be referred. Section 2 enacts that except as otherwise provided in the Act, on and from the companymencement of the Act, numberperson shall be entitled to hold any vacant land in excess of the ceiling limit. Accordingly, the right of the person to hold any vacant land in excess of the ceiling limit ceased on the date of companymencement of the Act even though determination of the excess area had to be made under the machinery provisions, thereafter, in accordance with the prescribed procedure. The area of vancant land in excess of the ceiling limit held by the appellant has, therefore, to be determined as on 17.2.1976 when the Act came into force in the State of Uttar Pradesh. Clause a of Section 2 defines appointed day to mean the date of introduction of the Bill in Parliament in relation to any State to which this Act applies in the first instance like the State of Uttar Pradesh and that date to 28.1.1976. Section 5 of the Act provides that any transfer made of vacant land in excess of the ceiling limit at any time during the period companymencing on the appointed day and ending with the companymencement of this Act shall be ineffective and the land so transferred shall be taken into account in calculating the extent of vacant land held by such person. This is a further indication that determination of the area of vacant land in excess of the ceiling limit under the Act is to be made with reference to the date of companymencement of the Act and the right and liability of the holder of the land for this purpose under the Act crystallises on the date of companymencement of the Act unaffected by any subsequent events. The scheme of the Act supports the companystruction that the aforesaid Explanation C means that if the land has been specified in the master plan existing at the time of companymencement of the the Act for a purpose other than agriculture, then the land shall number be deemed to be mainly used for the purpose of agriculture by virtue of the Explanation and number if the land is specified in a master plan prepared after the companymencement of the Act. The plain language of Explanation C bears this companystruction and requires it to be so companystrued in order to harmonise it with the other provisions and scheme of the Act. Just as the holder of the land cannot by his subsequent actions reduce the area of the vacant land in excess of the ceiling limit the authorities too cannot by any subsequent action increase the area of the excess vacant land by a similar action. The master plan defined in Section 2 h and referred in the definition of urban land in Section 2 o , including Explanation C therin, is obviously a master plan prepared and in existence at the time of companymencement of the Act when by virtue of Section 2 of the Act, rights of the holder of the land under the Act get crystallised and extinguish his right to hold any vacant land in excess of the ceiling limit. The proceedings for determining the vacant land in excess of the ceiling limit according to the machinery provisions in the Act is merely for quantification, and to effectuate the rights and liabilities which have crystallised at the time of companymencement of the Act. The companytrary view taken on the companystruction made of these provisions by the High Court cannot, therefore, be accepted. On the above companyclution, there is numberdispute that the order made by the District Judge has to be restored. Consequently, the impugned orders made by the High Court in the two writ petitions before it are set aside and the order dated 12.2.1980 passed by the District Judge determing the area of 6738.23 sq. mts. only as the vacant land in excess of the ceiling limit is restored. The appeals are, accordingly, allowed in this manner, to this extent. No companyts.

Delay companydoned. Leave granted. We have heard learned companynsel on both sides. This appeal by special leave arises from the judgment of the High Court of Bombay, made on December 8, 1994 dismissing the Civil Revision No.632/91. The admitted position is that the uncle of the petitioner died pending Regular Civil Suit No.51/65 in the Court of the Civil Judge, Senior Division Chandgad. Since he died pending appeal, it was dismissed on August 4, 1967 as having abated. In Civil Revision No. 632/91 by order dated December 8, 1994, the High Court dismissed as numberproper explanation for companydoning the delay was given. Thus, this appeal by special leave. In view of the fact that the appellant is an illiterate farmer, the appropriate steps should have been taken by the companynsel for the appellant on proper advice. In view of the fact that the companynsel has number properly advised the appellant to take necessary steps, delay had occasioned. The High Court, therefore, was number right in refusing to companydone the delay. It is brought to our numberice that numberapplication has been filed for setting aside the abatement and the appeal also stands abated.

THE 25TH DAY OF NOVEMBER, 1997 Present Honble Mr.Justice G.T. Nanavati Honble Mr. Justice B.N. Kirpal Arvind Kumar, I.P. Singh and A.S. Pundit, Advs. for the appellant Dharam Bir Vohra, Adv. for the Respondent J U D G M E N T The following Judgment of the Court was delivered NANAVATI, J. In these two appeals the State is challenging the acquittal of Chandrawati who was companyvicted by the trial companyrt for the offence punishable under Section 302 read with Section 34 IPC and Section 307 IPC but acquitted by the High Court. The trial companyrt had companyvicted her on the basis of evidence of two eye witnesses P.W.2, Ram Lalit, aged about 11 years and P.W.3, Jagdei, aged about 7 years. The High Court on reappreciation of their evidence found that the witnesses had made an improvement in their evidence over their initial version before the police as regards the manner in which P.W.3 Jagdei received the injury which was alleged to have been caused by Chandrawati. In view of this infirmity in their evidence and also because Chandrawati had taken numberpart in beating deceased Ranjana the High Court held that it was number proved beyond reasonable doubt by the prosecution that Chandrawati entertained a companymon intention with her husband to kill Ranjana. She was companyvicted under Section 307 for causing injury to P.W. 3 Jagdei but as pointed out by the High Court both the witnesses were companytradicted on these points. We are, therefore, of the view that the High Court was number wrong in giving benefit of doubt to Chandrawati as regards the said injury alleged to have been caused by her.

The only question involved in this appeal pertains to the classification of Spent sulphuric acid which the Tribunal by the impugned order has held to fall under Heading 38.23 whereas it is the companytention of the Revenue that the same falls under Heading 28.07. Mr. D. Dave, learned Senior Counsel appearing for the respondent fairly companycedes that in view of the Larger Bench judgment of the Tribunal in Collector of Central Excise, Ahmedabad v. Keti Chemicals, 1999 113 E.L.T. 689 Tribunal this issue is number settled and the said Spent sulphuric acid also falls under Heading 28.07 with which view respondent has numberquarrel.

ARISING OUT OF S.L.P C No20179/2003 Dr.AR. LAKSHMANAN,J. Leave granted. The above appeal is directed against the final order of the High Court of Kerala at Ernakulam dated 27.8.2003 in CRP No. 1136/2003 allowing the Revision Petition filed by the Respondent herein. The Appellant and the Respondent are brothers, Respondent being the elder. They have another brother who is well employed in the United States. The three brothers partitioned the property left behind by their father by metes and bounds. The Respondent was running a theatre. A part of the theatre fell in the property allotted to the appellant. Since Respondent did number vacate and give vacant possession to the Appellant, he was companystrained to file a suit for a mandatory injunction for removal of the building and to surrender vacant possession. The Appellant also prayed for a decree for recovery of possession. The appellants suit was decreed as prayed for. When the matter was pending in appeal at the instance of the Respondent in the District Court, the dispute was referred to the Lok Adalat companystituted under the Legal Services Authorities Act for resolution of the dispute. The matter was settled in the Lok Adalat. The award of the Lok Adalat dated 5.10.1999 provided for sale to the Appellant or his numberinee of the property scheduled to the award after a period of one year and within a period of two years on payment of a sum of Rs. 9.5 lakhs to the Respondent and on default of the Respondent to execute the document, the appellant companyld get it executed through companyrt. On the other hand, in case of default on the part of the appellant, he had to give up his aforesaid right and instead be entitled to be paid to Rs. 3.5 lakhs by the Respondent. The Respondent did number execute the sale deed within the time fixed despite repeated requests by the Appellant. The Appellant, therefore, sent a lawyers numberice on 3.10.2001 to the Respondent calling upon him to execute the sale deed. Respondent did number receive the numberice and the numberice was returned unserved to the Appellant. The Appellant thereafter sent a telegram on 26.10.2001 requiring the Respondent to execute the sale deed and also sent him a companyy of his earlier numberice dated 3.10.2001 by certificate of posting. There was numberresponse from the Respondent. The Appellant was, therefore, companystrained to move for execution of the award by filing petition in the Trial Court, which was opposed on various grounds. The Subordinate Judge overruled all the objections and the appellant was directed to deposit a sum of Rs. 9.5 lakhs within three days i.e., on or before 8.4.2003. The Appellant, however, deposited the amount one day earlier on 7.4.2003 the next working day. But, the High Court allowed the Revision filed by the Respondent and dismissed the execution petition on grounds, which according to the Appellant, are irrelevant and incorrect. Hence, the Appellant preferred the above special leave petition. We have heard Mr. TLV Iyer, learned senior companynsel for the Appellant and Mr. M.P.Vinod, learned companynsel for the Respondent and perused the pleadings, orders passed by the companyrts below and the Annexures filed along with the appeal. Mr. TLV Iyer, learned senior companynsel appearing for the Appellant submitted that the High Court has exceeded its jurisdiction under Section 115 C.P.C in entering into the investigation of questions of fact and appraisal of evidence in setting aside the well companysidered order of the Executing Court. He further submitted that the High Court is in error in holding that the Appellant did number have the funds with him to have the deed of sale executed in his favour and the reasoning and the premises on which such a companyclusion is based are faulty and fallacious besides being beyond jurisdiction. It is further submitted that the Respondent had number performed his obligations by evincing his willingness to execute the sale deed on receipt of the amount of Rs. 9.5 lakhs. Concluding his arguments, Mr Iyer submitted that the view taken by the High Court would totally defeat the object and purposes of the Legal Services Authorities Act and render the decisions of the Lok Adalat meaningless. Per companytra, Mr. Vinod, learned companynsel for the Respondent submitted that the appellant has number paid the sum of Rs. 9.5 lakhs after one year from the date of the award, namely, 5.10.1999 and at any rate within two years therefrom. It is further submitted that the appellant also did number deposit the amount before filing the execution petition as companytemplated in the award. Even when he was examined in companyrt on 22.2.2003, he had number deposited the said amount. According to Mr. Vinod, the award of the Lok Adalat cannot be equated with a decree and it only incorporates an agreement between the parties and that in case of any violation of the said agreement, or the terms of the companypromise recorded in the award, the parties lose their right to get the same executed and the companypromise stands withdrawn. It is further argued that the Appellant admittedly had number produced any material to show that the Appellant had the resources to pay the said amount at any relevant point of time or that the said amount was ever offered to the respondent at any point of time and, therefore, the appellant is number entitled to any relief in this appeal. It is further submitted that there is numbereffective service of any numberice on the Respondent before 5.10.1999 and the only endorsement is that the Respondent was absent. It is submitted that the Appellant never had the money with him and the belated payment after the order of the executing companyrt will number improve the case of the Appellant to prove his readiness and willingness to deposit a sum of Rs. 9.5 lakhs as agreed upon by him, and on the date specified, on the basis on which the matter was companypromised before the Lok Adalat and an award was passed. Concluding his arguments, learned companynsel submitted that there is numbermerit whatsoever in the grounds raised in this appeal and therefore, the appeal, which is clearly without any merits, deserves to be dismissed. We have carefully companysidered the rival submissions made by both the learned companynsel. We do number find any merit in the submissions made by learned companynsel for the Respondent. From the evidence and the documents filed, we see bona fides on the part of the appellant in giving effect to the companypromise arrived at between parties in the Lok Adalat. We also see absolute merits on the submissions made by learned senior companynsel, Mr. TLV Iyer. It is seen from the records that the Appellant was companypelled to file the suit for recovery of possession of Plot No. 2 since the Respondent herein refused to companyply with the terms of the companypromise arrived at between the parties. The suit was decreed on 26.7.1990 and appeal was filed by the Judgment Debtor Respondent before the District Court and during the pendency of the appeal the matter was companypromised between parties on 5.10.1999. We have already extracted the terms of companypromise in paragraph supra. It is thus clear that the decree holder Appellant has approached the executing companyrt on the ground that the Judgment debtor Respondent failed to execute the sale deed after receiving Rs. 9.5 lakhs from the decree holder. Therefore the Appellant prayed before the Executing Court that he should be permitted to deposit Rs. 9.5 lakhs in that companyrt and get the documents executed through companyrt if the Judgment debtor failed to do so on issuance of numberice for the purpose by the executing companyrt. The respondent submitted that the companypromise arrived at is a companyditional one and Judgment debtor is liable to execute the sale deed in favour of the decree holder only if he remits the amount as agreed, and since decree holder has failed to companyply with the companyditions the Judgment debtor is number bound by the terms of the companypromise. On the other hand the respondent J.D. was ready and willing to deposit Rs.3.5 lakhs before the executing companyrt as per the terms of the companypromise. Before the executing Court witnesses were examined on both sides and Exhibit A1 to A8 and B1 were produced by the respective parties. The executing companyrt, accepting the evidence of PW 1 came to the companyclusion that the numberice issued requiring the respondent to execute the document as submitted in the award was number received by the Judgment debtor and it has been returned unclaimed. It is seen that numberice was an attempt to be served on the Judgment debtor on 4.10.2001 and since he was absent, intimation regarding the numberice has been given and the above numberice has been returned as unclaimed on 19.10.2001. The Appellant after return of the Exhibit A2 numberice immediately sent a telegram to the Judgment debtor on 26.1.2001. The receipt issued for the telegram and certified true companyy of the telegram was marked as Exhibit A3 and A4. The Original telegram was produced on the side of the Respondent and marked as an Exhibit. By the telegram the Judgment debtor was intimated that the numberice sent by the decree holder through his Advocate on 3.10.2001 was returned unclaimed and companyy of that numberice was being forwarded by certificate of posting and that he was always ready and willing to pay Rs. 9.5 lakhs and get the sale deed executed in terms of the award. The companyy of the Exhibit A2 numberice is marked as A5, the certificate of posting obtained for issuing the companyy of numberice along with the companyy of the telegram is marked as Exhibit A6. Thus, it is clearly seen that the appellant decree holder has expressed his readiness and willingness to deposit the amount as per the award and get the document executed. It is argued on the side of the Respondent that the Appellant has number sufficient fund to fulfill the obligation as per the award and that the Appellant had issued a numberice and telegram so as to create some records in his favour that he is always willing and ready to pay the amount as per the award. It is submitted that it is only due to the default of the Appellant the execution of the sale deed has number taken place and therefore, the Appellant is number entitled to any relief in this appeal. The learned Subordinate Judge on a companysideration of the entire evidence placed on record granted the Appellant three days time to deposit Rs. 9.5 lakhs before the said companyrt upon which he companyld get the sale deed through companyrt as stipulated in the award. The appellant as directed by the learned Subordinate Judge deposited the entire sum of Rs. 9.5 lakhs in the sub-court on 7.4.2003 as companyld be seen from Annxure 6. We have also perused the order of the learned Single Judge of the High Court in revision. The learned Single Judge, in our view, has misunderstood the terms of the award. The obligation was on the Respondent to evince his willingness to execute the sale deed within two years and number vice-versa as assumed by the High Court. There was already a decree of ejectment against the Respondent in the suit in the trial Court and it was his appeal that was sought to be settled in the Lok Adalat. The settlement was a companycession in his favour giving a breathing time to vacate and give vacant possession. Therefore, the initiative had to companye from the Respondent after offering to execute the sale deed where upon it became necessary to companyply with his obligations. However, without taking any initiative the Respondent has adopted the delaying tactics by alleging that the appellant was number able to provide the requisite funds for purchase and forgetting the facts that the Appellants brother is in USA and providing the requisite funds for purchase. It was he, in fact, who had provided the amount which was deposited on 7.4.2003 and number on 8.4.2003 as assumed by the High Court. It is, thus, seen that the Appellant has performed his obligation. He had sent the numberice on 3.10.2001 and it was 4.10.2001 well before the expiry of time on 5.10.2001. Though the numberice was companyrectly addressed and despite the intimation by the post office, the numberice was number accepted by the Respondent and was returned unserved. In such circumstances, the presumption of law is that the numberice has been served on the Respondent. The High Court, in our view, has also misinterpreted Section 27 of the Post Office Act. The requirement of Section has been companyplied with in this case. The reasoning of the High Court on this issue is number companyrect and number in accordance with factual position. In the numberice issued, the Postman has made the endorsement. This presumption is companyrect in law. He had given numberice and intimation. Nevertheless, the respondent did number receive the numberice and it was returned unserved. Therefore, in our view, there is numberobligation cast on the appellant to examine the Postman as assumed by the High Court. The presumption under Section 114 of the Evidence Act operates apart from that under the Post Office Act. In our opinion, the award of the Lok Adalat is fictionally deemed to be decrees of Court and therefore the companyrts have all the powers in relation thereto as it has in relation to a decree passed by itself. This, in our opinion, includes the powers to extend time in appropriate cases. In our opinion, the award passed by the Lok Adalat is the decision of the companyrt itself though arrived at by the simpler method of companyciliation instead of the process of arguments in companyrt. The effect is the same. In this companynection, the High Court has failed to numbere that by the award what is put an end to is the appeal in the District Court and thereby the litigations between brothers forever. The view taken by the High Court, in our view, will totally defeat the object and purposes of the Legal Services Authorities Act and render the decision of the Lok Adalat meaningless. Section 21 of the Legal Services Authorities Act, 1987 reads as follows - AWARD OF LOK ADALAT. 2 1 Every award of the Lok Adalat shall be deemed to be a decree of a Civil Court or, as the case may be, an order of any other Court and where a companypromise or settlement has been arrived at, by a Lok Adalat in a case referred on it under sub-section 1 of Sec.20, the companyrt fee paid in such cases shall be refunded in the manner provided under the Court Fees Act, 1870 7 of 1870 Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and numberappeal shall lie to any Court against the award. Section 22 reads thus - POWERS OF LOK ADALATS - 1 The Lok Adalat shall, for the purposes of holding any determination under this Act, have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 5 of 1908 , while trying a suit in respect of the following matters, namely a the summoning and enforcing the attendance of any witness and examining him on oath b the discovery and production of any document c the reception of evidence on affidavits d the requisitioning of any public record or document or companyy of such record or document from any Court or Office and e such other matters as may be prescribed. Without prejudice to the generality of the powers companytained in sub-section 1 , every Lok Adalat shall have the requisite powers to specify its own procedure for the determination of any dispute companying before it. All Proceedings before a Lok Adalat shall be deemed to be judicial proceedings within the meaning of Secs. 193, 219 and 228 of the Indian Penal Code 45 of 1860 and every Lok Adalat shall be deemed to be a Civil Court for the purpose of Sec. 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 2 of 1974 . UNREPORTED JUDGEMENTS 2004 2 VOL 37. What is Lok Adalat? The Lok Adalat is an old form of adjudicating system prevailed in ancient India and its validity has number been taken away even in the modern days too. The word Lok Adalat means People Court. This system is based on Gandhian Principles. It is one of the companyponents of ADR system. As the Indian Courts are over burdened with the backlog of cases and the regular Courts are to decide the cases involve a lengthy, expensive and tedious procedure. The Court takes years together to settle even petty cases. Lok Adalat , therefore provides alternative resolution or devise for expedious and inexpensive justice. In Lok Adalat proceedings there are numbervictors and vanquished and, thus, numberrancour. Experiment of Lok Adalat as an alternate mode of dispute settlement has companye to be accepted in India, as a viable, economic, efficient and informal one. LOK ADALAT is another alternative to JUDICIAL JUSTICE. This is a recent strategy for delivering informal, cheap and expeditious justice to the companymon man by way of settling disputes, which are pending in Courts and also those, which have number yet reached Courts by negotiation, companyciliation and by adopting persuasive, companymon sense and human approach to the problems of the disputants, with the assistance of specially trained and experienced Members of a Team of Conciliators. Benefits Under Lok Adalat There is numberCourt fee and if Court fee is already paid the amount will be refunded if the dispute is settled at Lok Adalat according to the rules. The basic features of Lok Adalat are the procedural flexibility and speedy trial of the disputes. There is numberstrict application of procedural laws like Civil Procedure Code and Evidence Act while assessing the claim by Lok Adalat. The parties to the dispute can directly interect with the Judge through their Counsel which is number possible in regular Courts of law. The award by the Lok Adalat is binding on the parties and it has the status of a decree of a Civil Court and it is numberappealable which does number causes the delay in the settlement of disputes finally. In view of above facilities provided by the Act Lok Adalats are boon to the litigating public they can get their disputes settled fast and free of companyt amicably. AWARD OF LOK DALAT - The Lok Adalat shall proceed and dispose the cases and arrive at a companypromise or settlement by following the legal principles, equity and natural justice. Ultimately the Lok Adalat passes an award, and every such award shall be deemed to be a decree of Civil Court or as the case may be which is final. AWARD OF LOK ADALAT SHALL BE FINAL - The Lok Adalat will passes the award with the companysent of the parties, therefore there is numberneed either to reconsider or review the matter again and again, as the award passed by the Lok Adalat shall be final. Even as under Section 96 3 of C.P.C. that numberappeal shall lie from a decree passed by the Court with the companysent of the parties. The award of the Lok Adalat is an order by the Lok Adalat under the companysent of the parties, and it shall be deemed to be a decree of the Civil Court, therefore an appeal shall number lie from the award of the Lok Adalat as under Section 96 3 C.P.C. In Punjab National Bank vs. Lakshmichand Rah reported in AIR 2000 Madhya Pradesh 301, 304, the High Court held that The provisions of the Act shall prevail in the matter of filing an appeal and an appeal would number lie under the provisions of Section 96 C.P.C. Lok Adalat is companyducted under an independent enactment and once the award is made by Lok Adalat the right of appeal shall be governed by the provisions of the Legal Services Authorities Act when it has been specifically barred under Provisions of Section 21 2 , numberappeal can be filed against the award under Sec.96 C.P.C. The Court further stated that It may incidentally be further seen that even the Code of Civil Procedure does number provide for an appeal under Section 96 3 against a companysent decree. The Code of Civil Procedure also intends that once a companysent decree is passed by Civil Court finality is attached to it. Such finality cannot be permitted to be destroyed, particularly under the Legal Services Authorities Act, as it would amount to defeat the very aim and object of the Act with which it has been enacted, hence, we hold that the appeal filed is number maintainable. The High Court of Andhra Pradesh held that, in Board of Trustees of the Port of Visakhapatnam vs. Presiding Officer, Permanent, Lok Adalat-cum-Secretary, District Legal Services Authority, Visakhapatnam and another reported in 2000 5 ALT 577, The award is enforceable as a decree and it is final. In all fours, the endeavour is only to see that the disputes are narrowed down and make the final settlement so that the parties are number again driven to further litigation or any dispute. Though the award of a Lok Adalat is number a result of a companytest on merits just as a regular suit by a Court on a regular suit by a Court on a regular trial, however, it is as equal and on par with a decree on companypromise and will have the same binding effect and companyclusive just as the decree passed on the companypromises cannot be challenged in a regular appeal, the award of the Lok Adalat being akin to the same, cannot be challenged by any regular remedies available under law including invoking Article 226 of the Constitution of India challenging the companyrectness of the award on any ground. Judicial review cannot be invoked in such awards especially on the grounds as raised in this writ petition. The award of Lok Adalat is final and permanent which is equivalent to a decree executable, and the same is an ending to the litigation among parties. In Sailendra Narayan Bhanja Deo vs. The State of Orissa, AIR 1956 SUPREME COURT 346, CONSTITUTION BENCH held as follows A Judgment by companysent or default is as effective an estoppel between the parties as a judgment whereby the companyrt exercises its mind on a companytested case. 1895 1 Ch.37 1929 AC 482, Rel. on In In re South American and Mexican Co., Ex. Parte Bank of England, 1895 1 Ch 37 , it has been held that a judgment by companysent or default is as effective an estoppel between the parties as a judgment whereby the Court exercises its mind on a companytested case. Upholding the judgment of Vaughan Williams,J Lord Herschell said at page 50 - The truth is, a judgment by companysent is intended to put a stop to litigation between the parties just as much as is a judgment which results from the decision of the Court after the matter has been fought out to the end. And I think it would be very mischievous if one were number to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in a subsequent action. To the like effect are the following observations of the Judicial Committee in Kinch v. Walvott, 1929 AC 482 at p.493 D - First of all their Lordships are clear that in relation to this plea of estoppel it is of numberadvantage to the appellant that the order in the libel action which is said to raise it was a companysent order. For such a purpose an order by companysent , number discharged by mutual agreement, and remaining unreduced , is as effective as an order of the Court made otherwise than by companysent and number discharged on appeal. The same principle has been followed by the High Courts in India in a number of reported decisions. Reference need only be made to the cases of Secy. Of State v. Ateendranath Das, 63 Cal 550 at p. 558 E - Bhaishanker v. Moraji, 36 Bom 283 F and Raja Kumara Venkata Perumal Raja Bahadur, v. Thatha Ramasamy Chetty, 35 Mad 75 G . In the Calcutta case after referring to the English decisions the High Court observed as follows On this authority it becomes absolutely clear that the companysent order is as effective as an order passed on companytest, number only with reference to the companyclusion arrived at in the previous suit but also with regard to every step in the process of reasoning on which the said companyclusion is founded. When we say every step in the reasoning we mean the findings on the essential facts on which the judgment or the ultimate companyclusion was founded. In other words the finding which it was necessary to arrive at for the purpose of sustaining the judgment in the particular case will operate as estoppel by judgment. The Civil Procedure Code companytains the following provisions Order 23 Rule 3 provides for companypromise of suit where it is proved to the satisfaction of the Court that a suit has been adjusted wholly in part by any lawful agreement or companypromise, written and signed by the parties. The Court after satisfying itself about the settlement, it can companyvert the settlement into a judgment decree. We have already discussed about the steps taken by the appellant to serve numberice on the respondent and the steps taken by him to perform his obligations and sending of the numberice and telegram etc. would number have been done unless the appellant was ready with his obligations and the money all along. The appellant had waited till almost the last day for the respondent to perform his obligations. The High Court, in our view, has failed to numbere that the companyrts attempt should be to give life and enforceability to the companypromise award and number to defeat it on technical grounds. This is a fit case, in our view, where the Respondent ought to have been directed to execute the sale deed by the extended time, if necessary. The High Court is also number companyrect in holding that the Court has numberjurisdiction to extend the time. In our view, the learned Subordinate Judge has rightly extended the time for depositing the money which the High Court has wrongly interfered with. We, therefore, hold that the order passed by the High Court in C.R.P. 1136/2003 is liable to be set aside. We do so accordingly. We direct the Respondent herein to execute the sale deed within two weeks from today failing which the Appellant companyld get the sale deed executed though companyrt as stipulated in the award. The respondent is number entitled to withdraw Rs.

CIVIL APPELATE JURISDICTION Civil Appeal No. 1527 of 1971. Appeal by special leave from the judgment and order dated October 12, 1970 of the Punjab and Haryana High Court at Chandigarh in Regular S.A. No. 1370 of 1969. L. Sanghi, for the appellant. C. Mahajan and R. N. Sachthey, for the Respondent. The Judgment of the Court was delivered by- ALAGIRISWAMI, J.-This appeal is by way of special leave against the judgment of the High Court of Punjab and Haryana dismissing the Second Appeal filed by the appellant. He was a clerk in the Treasury. at Ludhiana. He filed the suit out of which this appeal arises for three different reliefs out of which the only one that number survives is regarding the order withholding his increment for one year with cumulative effect. The sole point raised on behalf, of the appellant before the High Court. was overruled by it on the basis of the full bench decision of the High Court in Malvinderjit Singh v. The State of Punjab Ors. 1 which overruled the decision in Kalyan Singh v. The State of Punjab 2 . This is perhaps the first case that companyes to this Court in the matter of a minor punishment. The appellant relied upon the decision of this Court in B. D. Gupta v. State of Haryana 1 , the facts of which art rather companyplicated and are unnecessary for the purpose of this case. One of the points that arose in that case was regarding the minor punishment of censure, though it was ail incidental one in an appeal which involved a much more important question. It was held that the show cause numberice in that case did 1 1970 2 I.L.R. Punjab 580. 2 1967 2 I.L.R. Punjab 471. A.I.R. 1972 S.C. 2472. number give the appellant the aggrieved Government servant any real opportunity to defend himself. That is number the case here. The charge-sheet served on the appellant on 10-11-61 was to, the following effect That you have been careless and negligent in the performance of your ditties at Sub- Treasury, Sirhind, as per companycrete instances mentioned in the enclosed statement of allegations. That you have been disobedient to the Assistant Treasury Officer, Sirhind. and an elaborate statement of allegations was enclosed alongwith the charge-sheet, which is set out, below STATEMENT OF ALLEGATIONS While Shri Shadi Lal Gupta, Clerk, Sangrur Treasury, was working as Routine Clerk, Sirhind Sub-Treasury, he had been disobedient to the Assistant Treasury Officer. Sirhind and negligent in the discharge of his duties, and a few instances of his carelessness, negligence and disobedience are given below Shri Shadi Lal Gupta was allotted the work of passing Deposit Repayment Orders issued by the Courts and it was found vide some instances quoted below that he calculated wrong balances in the Deposit Receipt Registers which were likely to cause overpayment in certain cases And refusal to make payment in other cases at some later stage. While passing DRO No. 17, dated 15th November, 1960 on. 18-11-1960 the balance was calculated by him as Rs. 327.60 instead of Rs. 317.60 N.P. While passing DRO 15 dated 10-11-1960 on 25th November, 1960, the balance was calculated by him as Rs. 56-44 N.P. instead of Rs. 56.33 P. In the said DRO 1 5 dated 10- 11-1960 passed on 25-11-1960 the amount to be paid was entered by him as Rs. 74 only instead of Rs. 74.11 N.P. While passing payment of Rs. 131.06 N.P. in respect of DRO 17 dated 15-11-1960 on 18-11-1960 the balance in the deposit receipt Register was calculated by him as Rs. 595.23 P. instead of Rs. 495.23 N.P. In passing payment of Rs. 28.71 N.P. relating to DRO 23 dated 5-12-1960 on 7-12- 1960 the balance was worked out by him as Rs. 261.71 N.P. instead of Rs. 281.71 N.P. The passing payment of Rs 1562.70 N.P. in respect of DRO 124 dated 8-11-1960 repaid on 9-11-1960 the actual payment was shown as Rs. 1600/- in the deposit receipt register. He passed cheque No. 335553 dated 13-11- 1960 on 15-11-1960 without verifying the particulars of the cheque in question as the cross entry of the cheque was wrong and he did number point it out, Similarly cheque No. 395202, dated 21-11-1960 for Rs. 126/- was passed on 24-11-1960 by him without verifying the identifier of the payee, as neither he asked him to produce his half of the P.P.O. quoted by him in his identification number did he companyfirm the fact from the Sub-Treasury record. Inward letter No. 419 and 430 were received from the Deputy Commissioner, Patiala on 6-12- 1960 which remained undisposed of by him till 3-1-1961. Letter No. 695, dated 14-11-1960 regarding verification of credits received from the N.T. Recovery was number disposed of by him till 3-1-1961. He also did number diarise them. On 30-12-1960, the Assistant Treasury Officer asked him verbally to attend office on 31-12-1960 to clear arrears on his seat. He refused to do so. Thereon he gave him. written orders to that effect and he refused to numbere them. Again he asked him to record his refusal in black and white but he declined even to do so. He refused to write-up the Assistant Treasury Officers set of Double Lock registers on his ordering him to do so as is evidenced by the fact that when he asked him even in writing on 13-1-1961, after obtaining Treasury Officer Patialas orders to write up his set of double lock registers, he stated in his application dated 16-1-1961 that he had numberobjection to carry out the work under protest for some days upto the decision of the Treasury Officer, Patiala. .lm15 The carelessness, negligence and disobedience of the official has rendered him liable to disciplinary action. Thereafter the appellant seems to have submitted his explanations and the then Deputy Secretary, Shri Banwari Lal seems also to have given him a personal hearing. The appellant companyplained that he was number given any opportunity to adduce any evidence in defence and numberprosecution witnesses were examined in his presence. Shri Banwari Lal seems to have felt it necessary to have, a local enquiry and, therefore, asked the Treasury Officer to send a report after a local enquiry. One of the companyplaints of the appellant was that these proceedings were started because one Yash Pal Kaura, the Treasury Officer was inimical disposed towards him. But we companysider that point irrelevant because how the proceedings came to be initiated would number in any way affected the validity or otherwise of the disciplinary proceedings. The Treasury Officer who sent up the report, after the local enquiry,, was another person. Two companytentions were urged on behalf of the appellant 1 that by the failure to give him companyy of the report of the Treasury Officer and taking it into companysideration behind his back, he has been prejudiced and Rule 8 of the Punjab Civil Services Punishment and Appeal Rules 1952 has been companytravened. Under Rule 4 of the above rules the following penalties may,.for good and sufficient reason be imposed Censure Withholding of increments or promotion, including stoppage at an efficiency bar, if any Reduction to a lower post or time-scale, or to a lower stage in a time scale Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence of breach or order Suspension Removal from the Civil Service of the Government which does number disqualify from future employment. Dismissals from the Civil Service of the Government which ordinarily disqualifies from future employment Rule 8 is to the following effect Without prejudice to the provisions of Rule 7, numberorder under clauses i , ii , or of Rule 4 shall be passed imposing a penalty on a Government servant, unless he has been given an adequate opportunity of making any representation that be, may desire to make, and such representation has been taken into companysideration. There are two provisos to the rule which it is unnecessary to set out for the purposes of this case. Under this rule the only ,requirement is that the officer companycerned should be given an adequate opportunity of making any representation that he may desire to make. There is numberprovision for examination of witnesses, ,cross examination of witnesses and furnishing a companyy of the report, all requirements which we find in Rule 7. Therefore, in this case if the punishment had been imposed after the chargesheet had been served on the appellant and he had made his representation ,and also been personally heard by Banwari Lal, it would have been perfectly legal. Rule 8 does number require anything more than that the allegations on the basis, of which the officer companycerned is charged should be made known to him and he should be given ,an opportunity to make any representation with regard to them. He need number be told the punishment which is sought to be imposed ,on him, either at the time the chargesheet is served on him or any other stage. There is numberquestion of his being given an opportunity a second time after the enquiry is. companypleted in respect of the punishment sought to be imposed on him unlike in a case companyered ,,by Rule 7. Rule 7 of these Rules deals with cases where the major punishment of dismissal, removal or reduction in rank are proposed to be imposed and sub-rule 6 of that rule specifically provides that in such a case after the punishing authority has arrived at a provisional companyclusion in regard to the penalty to be imposed, the accused officer shall be supplied with a companyy of the report of the enquirying authority and be called upon to show cause against the particular penalty proposed to be inflicted on Wm. The words without prejudice to the provisions of rule 7 occurring at the beginning of Rule 8 are sought to be taken advantage of to companytend that even in the case of minor punishments referred to in that rule, of censure, withholding of increments and recovery from pay, an opportunity should be given to show cause against the punishment proposed to be imposed. Those words do number fit in in the companytext and cannot mean that in a case of minor punishment number only the provisions of rule 8 but also the provisions of rule 7 should be followed. The rules must be interpreted in their proper setting and if so interpreted, those words would number bear the interpretation sought to be placed on them. The provisions of rule 7 are necessitated by the provisions of Article 311 2 of the Constitution. As far as other punishments are companycerned, the only right which a Government servant is entitled to is that the action proposed should-be in accordance with the rules made under the proviso to Article 309. That rule, rule 8 does number companytemplate anything more than an adequate opportunity of making a representation. We are, therefore, unable to, accept this companytention. We shall number companysider some of the decisions cited before us. It is first necessary to refer to the decision in Kalyan Singh v. The State of Punjab supra which has been overruled by the Full Bench in Malvinderjit Singh v. The State of Punjab Anr. supra . The High Court was number quite right in dismissing the appellants appeal on the basis, of Malvinderjit Singhs case. Kalyan Singhs case was overruled only as regards the question whether a companyy of the report of the Vigilance Department on the basis of which proceedings were initiated, should be given to the companycerned officer or number. We are number companycerned with that question in this case. But the Full Bench also dealt with the question of the procedure to be adopted in the case of imposition of minor punishment and it held a that for the minor punishment to public servants for their misconduct the authorities have designedly provided for a simple and summary procedure of representations only, untrammalled by any furnishing of companyies of documents or material on which the allegations are based or the right of cross-examination or the right of leading defence evidence which are all provided in the case of enquiries qua major punishments. The furnishing of documents as provided for in rules 7 and 9 of the Punjab Civil Services Punishment and Appeal Rules, 1952, stands excluded under rule 8. Basically the right to secure companyies of documents or other specific material is a procedural right which accrues if it is so granted in express terms by a statute. Nobody can be said to have any inherent right to secure companyies or to have any access to companyfidential State records. Such a right can only be a creature of a statute. On an overall view of the specific language of rule 8 of the Rules, its setting in the relevant rules and the scope and ambit thereof all companylectively tend to negative any such procedural right. That the words adequate opportunity in the companytext of rule 8 of the Rules may mean-no more than an adequacy of time to make a representation which alone is guaranteed by rule 8. It is possible to place such a limited meaning upon these words, but even if a more liberal companystruction is placed, these words cannot be elongated enough to create a specific procedural right to secure companyies and materials. Moreover, the adequacy of opportunity to make representation under rule 8 cannot possibly imply a larger right than what has been judicially interpreted to be the basic requirements of a reasonable opportunity of being heard or to show cause against specific allegations. That under rule 8 of the Rules, unlike rule 7, the employee has only one opportunity of making a representation. No enquiry need be companyducted as under rule 7 and numberevidence need be recorded in the presence of the employee. It is open to the punishing authority to companylect any material either itself or through any specialised agency like the Vigilance Department to acquaint itself with the real facts in order to take a decision whether any action is to be taken against the employee, and, if so, what action is to be taken. But if such an enquiry is made arid material is companylected on the basis of which a prejudicial view is taken against the employee ,and he is chargesheeted under rule 8 with a view to impose one of the three minor punishments, then the employee is entitled to an adequate opportunity to make a representation to show that 1 he is number guilty and 2 that the proposed punishment should number be imposed on him, being excessive. It would be impossible for an employee to make such a representation unless it is made known to him the material on the basis of which it has been decided that he is guilty and that the particular punishment be imposed on him Without being supplied with such a material he cannot make an effective and real representation. The only case in which the punishing authority would be justified in withholding such a material, would be where under the second proviso to rule 8, sufficient reasons are recorded in writing to the effect that it is number practicable to observe the requirements of the rule and that this can be done without injustice to the officer companycerned. That the words adequate opportunity in the companytext of rule 8 of the Rules companynote reasonably sufficient opportunity in every respect, to make a representation against the action sought to be taken against the employee. Before an employee can be said to have had this adequate opportunity, the employee has to be told the charges of misconduct and then he must have an opportunity to be heard in answer to those charges. The case in R. D. Rawa v. State 1 was also numbericed in the above Full Bench decision., In that case two charges were made against Rawal and one of the charges was held number established. Another charge, was on the basis that certain action taken by him wag malafide The malafides were held number established but the impugned order withholding one increment was passed on the ground that some lapses on his part had resulted in excess payment to a companytractor. This order was set aside by the High Court. That decision companyld be explained on the basis that the officer companycerned did number have an opportunity of showing that there was numberlapse on his part. We may also refer to the decision in Roop Lal v. State of Punjab 2 of the Punjab and Haryana High Court. The ratio of decision in that case is stated as follows in the present case if the procedure under rule 7 of the Rules had been followed and instead of a major punishment a minor punishment had been inflicted, numberfault companyld be found therewith but if numberenquiry was held as envisaged under rule 7 ibid and the minor punishment was proposed to be inflicted under rule 8 thereof, then the procedure prescribed under rule 8 had to be followed. We thus companye to the companyclusion that there was numberfailure in this case to follow the relevant rules, which, as we have already indicated, only require that the officer companycerned should have an opportunity of making a representation in respect of the charges made against him. Thisleaves the question of whether any principles of natural justice have been violated in this case. The rules of natural justice would undoubtedly have to be observed in any proceedings even by a domestic tribunal. But the principles of natural justice to be applied would depend upon the circumstances of each case. In Suresh v. Kerala University 3 this Court pointed out that the question whether the requirements of natural justice have been met by the procedure adopted must depend to a great extent on the facts and circumstances of the case in point, the companystitution of the Tribunal and the rules under which it functions. After referring to the decisions in Russel Duke of Norfolk Ors., 4 Local Government Board v. Alridge 3 and De Verteuil v. Knaggs Anr. 6 this Court also referred to the observations of Lord Harman, J. in Byrne Anr. v. Kinematograph Renters Society Ltd. 7 to the following effect 1 1967 C.L.J. 439. 2 1971 1 S.L. R. 41. 3 1969 1 S.C.R. 317. 4 1949 I All F.R. 108 at 119. 5 1915 A.C. 120. 6 1918 A.C. 557. 7 1958 All E.R. 579. What , then, arc, the requirements of natural justice in a case of this kind ? First, I think that the person accused should know the nature of the accusation made secondly that he should be given an opportunity to state his case and thirdly, of companyrse, that the tribunal should act in good faith. I do number think that there really is anything more and went on to Jay down the same principle in its own words Suffice it to say that in the case before us there was a fair inquiry against the appellant the officer appointed to inquire was an impartial person he cannot be said to have been biassed against the appellant the charge against the appellant was made known to him before the companymencement of the inquiry the witnesses who gave evidence against him were examined in his presence and he was allowed to cross-examine them and lastly he was given every opportunity to present his case before the Inquiry Officer. Hence we see numbermerit in the companytention that there was any breach of the principles of natural justice. It is true that the Vice-Chancellor did number make available to the appellant a companyy of the report submitted by the Inquiry Officer. Admittedly the appellant did number ask for a companyy of the report. There is numberrule requiring the Vice-Chancellor to, provide the appellant with a companyy of the report of the Inquiry Officer before he was called upon tomake his representation against the provisional decision taken by him. If the appellant felt any difficulty in making his representation without looking into the report of the Inquiry Officer, he, companyld have, very well asked for a companyy of that report. His present grievance appears to be an after thought and we see numbersubstance in it. As we have indicated earlier, if Shri Banwari Lal had imposed the punishment after he had given a hearing to the appellant, the order would have been perfectly legal and it companyld number have been said that any principle of natural justice had been violated. The criteria indicated above would have been satisfied. But what is urged before us in this case is that as the report of the Treasure Officer, which we have already referred to earlier, was taken into companysideration without showing, it to the appellant he has been seriously prejudiced and the principles of natural justice have been violated in so far as he has number had an opportunity of making his representation in respect of that report. We find numbersubstance in this companytention. When Shri Banwari Lal wanted a local enquiry to be made he apparently wanted the representations made by the .appellant to be checked up with the records and that is what has been done as is clear from a companyparison of the allegations on the basis of which the chargesheet was served on the petitioner, and the report of the Treasury Officer. We have carefully one through it and it does number add one single instance more than what is already found in the allegations. It merely sets out the evidence in support of these allegations. We are, therefore, of the opinion that the appellant has number been in any way prejudiced by the Treasury Officers report being taken into companysideration before the order of punishment was passed against the petitioner. If before the Treasury Officer had sent his report he had associated the appellant in the enquiry he held it would number have been necessary to give him a companyy of the report he sent. If the report had companytained any material extraneous to the charges against the appellant, or any thing in addition to what is found in the original allegations against him then only he companyld be said to have been prejudiced. In the decision of the Judicial Committee in B. Surinder Singh Kanda v. Government of the Federation of Malaya 1 numbericed in Suresh v. Kerala University Supra a report made by the Board, which held the preliminary inquiry, which was highly prejudicial to Kanda had been placed in the hands of the officer who held the formal enquiry was number made available to Kanda. That report was likely to have prejudiced the Inquiry Officer and the Judicial Committee held that the enquiry was number fair. There is numberquestion in this case of the Treasury Officers report having prejudiced the punishing officer, Mr. D. D. Sharma. The application of the principles of natural justice is number a question of observance of a formula or a mere technicality. In essence it is meant to assure that the party companycerned has an opportunity of being heard, the principle of audi alteram partam. Whether in any particular case it has been violated will depend on the facts and circumstances of that case. It is number to be companysidered that unless all the procedure of the companyrts are observed it would mean failure to observe the principles of natural justice. We are of the opinion that numberprinciples of natural justice have been violated in this case. We think it useful in the circumstances of this case to refer to the observations made by this Court in Sureshs case to the effect There seems to be an erroneous impression in certain quarters evidently influenced by the provisions in Art. 311 of the Constitution particularly as they stood 1 1962 A.C. 332. before the amendment of that article that every disciplinary proceeding must companysist of two inquiries, one before issuing the show cause numberice to be followed.by another inquiry thereafter. Such is number the requirement of the principles of natural justice. Law may or may number prescribe such a companyrse.

T. Thomas, J. In similar circumstances delay had been companydoned vide order dated September 17, 1999 in Civil Appeal No. 5370 of 1999 arising out of S.L.P. C No. 6798 of 1999 Union of India v. Nathu Singh and Ors. In the circumstances of this case, we are inclined to companydone the delay, particularly, because it is in the public interest as public money is involved. Leave granted. We heard Mr. K.C. Kaushik, learned Counsel for the appellant.

2004 Supp 4 SCR 880 The Judgment of the Court was delivered by The first accused in the Sessions Case No. 217/1994 on the file of Prl. Sessions Judge, Bijapur at Bijapur is the appellant before us. The appellant together with three other accused, who are petitioners in SLP Crl. Crlmp 4951/2002, were charged under Section 302 read with Section 34 of the Indian Penal Code for companymitting the murder of Hanamant Basappa Byali at about 4.30 p.m. on 4.9.1994 at Sankanal village, Bijapur district. The victim was killed in his fields. The accused were also charged for the offence punishable under Section 324 read with Section 34 I.P.C. for causing hurt to the wife of the deceased and to the brother of the deceased, who is an informant in the case. The accused were also charged under Section 506 read with Section 34 I.P.C. After trial the accused were acquitted by the Sessions Judge. On an appeal filed by the State, the High Court reversed the verdict of acquittal and companyvicted the appellant herein under Section 302 I.P.C. and sentenced him to life imprisonment. The other accused were companyvicted under Section 324 P.C. Accused - Buddappa Sabanna was companyvicted, in addition, for an offence under Section 323 I.P.C. As regards the Special leave petition preferred by the three accused other than the appellant , learned companynsel for the petitioners has stated at the outset that the three accused companyvicted under Section 324 and Section 323 have already served the period of imprisonment and the companynsel made it clear that he is number pressing the special leave petition. Hence, the special leave petition is dismissed as number pressed. Coming to the appeal filed by the appellant, the only point which is seriously urged before us is in regard to the nature of offence, that is to say, whether the appellant is liable to be companyvicted under Section 302 or for a lesser offence under Section 304 I.P.C. Nevertheless, the broad facts need to be set out briefly. The prosecution case is that the deceased Hanamant Basappa Byali was doing agricultural operations in his fields close to the village along with PW-1 and PW-2, PW-1 being the brother of the deceased. The trouble started when the appellant and the other accused tried to take their bullock card through the fields of the deceased so as to reach the fields of the first accused. It appears from the evidence on record that the way through the fields of the deceased is a short-cut to reach the lands of the accused and the appellant had been driving his bullock cart through this path since companysiderable time. On the crucial day, the deceased objected for the cart being taken through his fields especially for the reason that there was crop on the land. On this an altercation ensued. The quarrel went on for some time with abuses hurled against each other. Suddenly the appellant took the axe kept on the cart and hit the deceased- Hanamant on the occipital region which resulted in depressed fracture of the skull bone. The other accused also inflicted injuries with clubs resulting in fracture of the bones of left forearm and a lacerated wound on the outer aspect of the thigh. An injury was also inflicted on PW-1 by the appellant on his left arm. According to the medical evidence, it was a simple injury. PW-1 thereafter run away from the place, PW-2, an agricultural labourer was observing the incident from some distance. After the attack ended and the deceased fell down, PW-4 the wife of the deceased came to the spot and when she protested she was kicked by the accused Buddappa Sabanna. At that time PW-12 also came to the spot. After some time accused Nos. 2 and 3 took another bullock cart from the village and carried the deceased in that cart and left the cart at the place opposite to the house of PW-6. PW-1 lodged the companyplaint to the police at about 7.45 p.m. The inquest and investigation followed, the details of which it is number necessary to state. The blood stained axe was recovered from the appellant pursuant to the disclosure made by him. The postmortem examination was done on the next day morning by PW-3 who is the Medical Officer attached to the Government hospital, Bagewadi. We will advert to the details of postmortem report a little later. The High Court rightly accepted the testimony of injured eye witness PW-1 and PW 2 companyroborated by the evidence of other witnesses including PWs 4, 5 and 12. The trial Court rejected the testimony of the eye witnesses on flimsy and ill founded doubts. That is why, the learned companynsel for the appellant has number chosen to assail the findings of the High Court in regard to the actual occurrence and participation of the appellant in the attack. Now, we wish to proceed to discuss whether the offence under Section 300 has been made out so as to warrant the companyviction of the appellant under Section 302 I.P.C. The High Court, without much of discussion, observed that the appellant had the intention to cause the death of Hanamant. This intention was deduced solely on the basis of the severity of the injury inflicted with a dangerous weapon. While companysidering the question of intention, the High Court failed to companysider the very facts adverted to in the earlier portion of its judgment. The facts that emerge from the record which have been numbered by the High Court are as follows The entire incident appears to have taken place at the spur of the moment when the bullock cart of the accused persons was obstructed from proceeding further by the deceased. Earlier it was observed by the High Court that the Accused No. l appellant herein all of a sudden assaulted the deceased with an axe on his head. No doubt, these observations were made by the High Court in the companytext of companysidering the question whether A-2 to A-4 share companymon intention to kill Hanamant. However, the same observations findings will be of relevance in assessing the intention of the appellant to kill the victim. First, we must take numbere of the fact that there was to premeditated or prearranged plan to attack the deceased. The trial Court discussed the question of motive and held that the motive was number established. On the aspect of motive the High Court did number give any definite finding except saying that the appellant had some cause to be aggrieved by certain past acts of the deceased in relation to a land dispute. However, the prosecution evidence does number establish that when the appellant and the other accused came in the cart on the way to their fields, they were actuated by the intention to attack the deceased. The obstruction by the deceased and the quarrel that ensured as a sequel thereof is something which companyld number have been anticipated by the accused or the prosecution party. In order to probe further into the aspect of intention, we may also advert to the evidence of PW-2. PW-2 described the incident as follows First the exchange of words took place. They abused each other and the accused assaulted Hanamantthe quarrel went on for about one hour One hour may be an exaggeration, yet, the quarrel did go on for companysiderable time. It is also relevant to refer to the evidence of PW-12, who is a neighbouring land holder. PW-12 stated that while he was in the fields he numbericed PW-1 with an injury on his left hand. He was informed by PW-1 that the accused persons were assaulting his brother. He further stated that PW-1 was scared to go along with him to the spot. Then he alone went to the scene of occurrence and found the appellant standing near the deceased-Hanamant who was on the ground with injuries. The appellant was asking him to get up and to smoke a beedi. The offer of beedi seems to be a mark of hospitality in these rural areas and perhaps the appellant, who is an illiterate, might be having a numberion that smoking of beedi would energise or refresh the deceased. It only shows that the appellant did number reconcile himself to the situation that had happened. Instead of companytinuing his aggressive posture, he became repentent. Another circumstance which deserves numberices is that only one blow with axe was dealt with and numberother in injury was inflicted on the deceased by the appellant. Having regard to the background in which the incident triggered off and the companyduct of the appellant and in view of the very findings recorded by the High Court, we are of the view that the appellant cannot be imputed with the intention to cause the death of Hanamant. The next line of inquiry should be whether the case falls under clause thirdly of Section 300 because it is under this clause the respondent-State endeavoured to bring the offence. Even if the intention to cause death is absent, if the appellant had the intention to cause the particular bodily injury and such bodily injury is objectively found to be sufficient in the ordinary companyrse of nature to cause death, clause thirdly of Section 300 is attracted. The lucid exposition of law as to the scope and nuances of clause 3 of Section 300 by Vivian Bose J. speaking for the three judge bench in the celebrated decision in Virsa Singh v. The State of Punjab, 1958 SCR 1495 relieves us from the need to say anything further on the subject. There was some debate on the question whether the appellant had the intention to cause the particular injury on the occipital region. It is, however, unnecessary to delve into this aspect further for the reason that we are satisfied that the 2nd part of clause 3 is number attracted in the instant case having regard to the nature of injuries and the medical evidence. It is number time to refer to the medical evidence. PW-3 the Medical Officer numbericed the following three external injuries An incised wound on the right side of occipital region, transverse in position 3 x 1/2 Bone deep. There is depressed fracture of the skull bone under the wound. A lacerated would on the outer aspect of the left thigh 3 above the knee joint 1/2 by 1/2 muscle deep. Bruise around the wound present it is 4 in diameter, black in clour. Fracture of the both bones of left forearm l proximal to the left wrist joint. Bones are broken into many pieces. It is a closed fracture. PW-3 stated that the injury No. l can be caused by sharp edged exe. Injury Nos. 2 and 3 are ascribed to the attack by the clubs. We may recall that clubs were wielded by the other accused. Injury No. l alone is attributed to the appellant. PW-3 categorically stated that he found numberother external injury on the dead body. The cause of the death, as numbered in the postmortem report Exb. P-3 and reiterated by PW-3 in his deposition, is said to be companya as a result of injury to vital organs viz, brain and lungs emphasis supplied . The persual of the postmortem report makes an interesting revelation which unfortunately has number been numbered by both the companyrts below. On internal examination of the head, PW-3 found an incised wound on the occipital region causing a depressed fracture under the wound. Apart from that, the internal examination of thorax disclosed that there was fracture on second and third ribs on the right side at the anterior axillary portion. Pleure was found to be lacerated, right lung was also lacerated and companylapsed and a companysiderable quantity 2 litres of companylapsed blood was found in the right side of thorax. Curiously, numberexternal injury companyresponding to this internal injury in thorax region was numbered by the Doctor. In fact he made it clear in his deposition before the Court that he found numberother external injury. At the same time his opinion is clear that the death resulted on account of both these internal injuries, namely, to the skull and to the lungs. The internal thorax injury companyld number have been caused by the axe without there being an external incised or cutting injury. If at all, the injury caused to the ribs and lungs should have been the result of beating with sticks or clubs and PW-3 would number have numbericed the companyresponding lacerations or companytusions. In this companytext, we find a passage in Modis Medical Jurisprudence and Toxicology Ed. 21, Chapter XV Regional Injuries - Lungs which reads as follows Contusions or lacerations of the lungs may be produced by blows from a blunt weapon or by companypression of the chest even without fracturing the ribs or showing marks as external injury. We need number dilate further on this aspect as it is number the prosecution case that the appellant was responsible for causing any injury other than the injury No. 1. If so, it is fairly clear that the injuries to occipital region as well as the thorax injury which caused damage to the ribs and lungs are both severe injuries and according to the medical evidence both these injuries cumulatively caused death. There is numberevidence of the medical expert to the effect that injury No. l by itself would have caused instantaneous death as has happened in this case or that injury No. l by itself was sufficient in the ordinary companyrse of nature to cause death. No doubt injury No. l is a severe injury on the vital part and in all likelihood, it companyld cause death. Yet, it is difficult to extricate the impact of an equally severe injury which was found to be present on internal examination. In these circumstances, it is number safe to draw a companyclusion that the injury inflicted by the appellant, if at all it was intended to be inflicted, by itself would be sufficient in the ordinary companyrse of nature to cause death. On the state of medical evidence we have, it is number possible to draw such definite companyclusion. Considering the nature of the injury and weapons used and the circumstances in which injury came to be inflicted, we are of the view that the appellant shall be imputed with the knowledge that the injury inflicted by him was likely to cause death. He is therefore liable to be companyvicted under Section 304, Part-II. Considering the facts and circumstances of the case, we feel that the imprisonment for a period of five years and a fine of Rs. 7,000 would meet the ends of justice. The impugned order is modified to the extent that the appellant shall stand companyvicted under Section 304 Part II and he shall undergo rigorous imprisonment for a period of five years and a fine of Rs. 7,000. Out of the fine amount of Rs. 7,000, Rs. 6,000 should be paid over to the wife PW-4 of the deceased. The learned Sessions Judge shall take necessary steps in this behalf.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1128 of 1965. Appeal by special leave from the judgment and order dated December 17, 1962 of the Bombay High Court in Letters Patent Appeal No. 29 of 1960. T. Desai, R. Ganapathy Iyer and S. P. Nayyar, for the appellants. Hans Raj Sawhney, P. C. Bhartari and 0. C. Mathur, for the respondents. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought, by special leave, from the judgment of the Bombay High Court dated December 17, 1962 in Letters Patent Appeal No. 29 of 1960. Respondent No. 2, the firm of Chandmal Manmal was in debted to the 1st respondent, Central Bank of India, Aurangabad branch. On March 11, 1955 the first respondent filed a suit being Civil Suit No. 28/1 of 1955 against the second respondent for recovering a sum of Rs. 14,541/- and odd in the Court of Subordinate Judge at Aurangabad. On the application of the first respondent an order for interim injunction was passed in respect of certain properties belonging to the second respondent. The Court had ordered the second respondent to furnish security for the amount of the decree which may be passed against the firm in the suit. On April 28, 1955 Jogilal Mulchand, one of the partners of the second respondent furnished security by creating a charge on his immovable property, which was a house at Aurangabad. After the security bond was furnished, the attachment was released. The security bond furnished by Jogilal Mulchand read as follows I, the Defendant No. 2 therefore stand as a surety and declare that if the Honble Court decides the suit against the Defendants, he will abide by every order passed by the Court and if he fails to do so, then I. defendant No. 2 stand as surety to the extent of Rs. 20,000/- Rupees Twenty thousand in O.S. companyns and declare that I shall pay the amount of security into Court and for fulfilling the same I create a charge on my one pucca two storied house possessed by me known as Chandi Posh bearing No. 167 situate at Kasba and Taluka Vijapur, District Aurangabad of the value of Rs. 25,000/ If I fail to pay the amount of the security, the Court will then be entitled to recover the amount of the security from the property hereby charged On April 30, 1955 the Subordinate Judge granted a decree against the 2nd respondent for a sum of Rs. 14,541/- and odd. The 1st respondent filed an application for execution of the decree Linder s. 145 of the Civil Procedure Code. In the execution of the decree the house which was charged under the security bond was sold and one Girdhardas purchased it in auction sale which was companyfirmed by the Court on August 14, 1958 and the sale proceeds thereof were deposited by the said Girdhardas in the executing Court. On August 17, 1958 the Sales Tax Officer, Aurangabad Circle wrote a letter to the District Judge, Aurangabad pointing out that a sum of Rs. 9,672/- and odd was due to the Government from the second respondent on account of arrears of sales-tax for the years 1950-51 to 1955-56. On September 23, 1958 the District Judge sent a letter to the Subordinate Judge asking him number to pay the sale proceeds of the house to the decree bolder i.e., the first respondent. Subsequently, the Collector of Aurangabad made an order on November 20, 1958, distraining the amount of Rs. 9,672/- out of the sale proceeds under s. 119 of the Hyderabad Land Revenue Act Hyd. Act VIII of 1317F. . The order of the Collector stated as follows Sanction is therefore accorded under Section 119 of Hyderabad Land Revenue Act to attach the amount of Rs. 9,672-1-0 out of the sale proceeds realised from the auction sale of the defaulter Shri Chandmals property and deposited with the Court of Sub-Judge, Aurangabad, towards satisfaction of the Decree No. 28/1 of 1955 passed against Shri Chandmal Manmal. The amount should be remitted to the Sales Tax Officer, Aurangabad. Thereupon the 1st respondent made an application to the trial companyrt challenging the validity of the order of the Collector. The Subordinate Judge held that the Civil Court had numberjurisdiction to set aside, revise or modify the order of the Collector and it companyld be done only by the Superior Revenue Authorities. From the order of the Subordinate Judge the 1st respondent preferred an appeal being First Appeal No. 341 of 1959 in the Bombay High Court The appeal was heard by Naik, J. who by his judgment dated June 22, 1960 held that in view of the provisions companytained in ss. 104 and It 9 of the Hyderabad Land Revenue Act the Government was entitled to priority for the arrears of salestax due from the second respondent over the claim of the 1st respondent The learned Judge accordingly dismissed the First Appeal. From the judgment of Naik, J. the 1st respondent took the matter in appeal under the Letters Patent. A Division Bench companysisting of Patel and K. K. Desai, JJ. allowed the appeal by their judgment dated December 17, 1962 holding that S. 119 of the Hyderabad Land Revenue Act applied only to property which was in the custody and possession of the judgment-debtor and number in the custody or possession of a Court. It was observed by the Division Bench that the provisions of the Hyderabad Land Revenue Act companytained in ss. 104, 116, 117 and 144 made it abundantly clear that the priority applied only in respect of land revenue and number in respect of other taxes. It was further held that the 1st respondent as a decree-holder had a prior charge as the quality of his debt was number the same as that of the debt due to the Government and therefore in respect of the sales-fax, the State bad numberpriority. The first question to be companysidered in this appeal is whether the order of distraint dated November 20, 1958 made by the Collector of Aurangabad is legally valid. The order of the Collector was made under S. 13 2 of the Hyderabad General Sales Tax Act read with ss. 116 and 119 of the Hyderabad Land Revenue Act. Section 13 of the Hyderabad General Sales Tax Act Hyd. Act No. XIV of 1950 provides as follows 13. 1 The tax assessed under this Act shall be paid in such manner, in such instalments, if any, and within such time, number being less than fifteen days from the date of service of the numbericed of assessment, as may be specified in such numberice. In default of such payment, a penalty number exceeding the tax remaining unpaid may be imposed and the total amount due, including the penalty, if any, may be recovered as if it were an arrear of land revenue. Section 116 of the Hyderabad Land Revenue Act Hyderabad Act VIII of 1317 F states An arrear of land revenue may be recovered by the following measures and as far as possible, the measures shall be employed in the order mentioned below - a by issuing a numberice to the defaulter under section 11.8 b by distraint and sale of the defaulters movable property under section 119 c by distraint and sale of the defaulters immovable property under section 120 d by arrest and detention of the defaulter under section 122 e by forfeiture of the right of occupancy in respect of which the arrear is due under section 124 f by temporary attachment of a number-khalsa village or part of such village in respect of which the arrear is due under section 125. Section 119 of the same Act is to the following effect The Tahsildar may distrain and sell the defaulters movable property. Such distraint shall be made by officers or clerks appointed by him for this work. The High Court has taken the view that s. 119 can only apply to property which is in the custody and possession of the judgmentdebtor and number in the custody and possession of a Court. In our opinion, the companystruction put by the High Court on the language of s. 119 of the Hyderabad Land Revenue Act is number companyrect and is number warranted by the language of the section or the companytext in which it is placed. The section empowers the Tahsildar to distrain and sell the defaulters movable property and such distraint shall be made by officers or clerks appointed by him for this work. The language of the section is general and there is numberreason why any restriction should be put on the power of distraint companyferred upon the Tahsildar with regard to the defaulters movable property. In the present case, the Collector of Aurangabad sent the order of distraint to the Subordinate Judge requesting him to remit to the Sales Tax Officer the amount of Rs. 9,672/- out of the amount of sale proceeds deposited in his Court. We are of the opinion that the procedure followed by the Collector is justified by the provision of s. 119 and there is numberhing in the language or companytext of the section which prohibits tile Collector from making an order of distraint with regard to tile movable property in the custody and possession of a Court. We accordingly reject the argument of respondent No. 1 on this aspect of the case. We proceed to companysider the next question arising in this appeal, viz., whether the debt due to the Government in respect of arrears of sales-tax has priority over the dues of respondent No. 1. It appears that the sales-tax was due for the years 1950 - 51 to 1955-56, i.e., for a period of six years. It was submitted on behalf of the appellants that since s. 13 2 of the Hyderabad General Sales Tax Act makes a provision for recovery of the sales-tax due as arrears of land revenue and since priority as to the land revenue is provided under the Hyderabad Land Revenue Act, the arrears of sales-tax also must be granted priority over other demands whether in respect of debts or mortgage or based on a decree or attachment of a Court. The argument of the appellants is based upon ss. 104, 116, 119 and 144 of the Hyderabad Land Revenue Act. Section 104 provides as follows .lm15 The demand on any land, for its land revenue shall have priority over other demands whether in respect of debts or mortgage or based on a decree of or attachment by a Court, and if the title to any land on which such Government demand is due is transferred, such land or its transferer shall number be discharged from such demand. If the demand for land revenue which cannot be recovered from the title to or existing produce of that land is due from a person, the liability for the payment of the land revenue shall have precedence over debt or decree of a Court also on his property other than the land on which the demand is due provided that such property before it is forfeited for recovery of the said demand, is number sold or mortgaged or given as a gift or otherwise -transferred or hypothecated or attached. Section 144 is to the following effect All the Government sums under the following heads may be recovered under the provisions of this Chapter Land revenue. Quit-rent. Nazrana. Peshkesh. Taxes. Local cess. Fine and penalties. Income from lands. Rusum. Fees. Charges. Penal interest. Lease money. Moneys recoverable from sureties. Taccavi loans. All sums in respects of which provision has been made in this Act or in any other Act that they be recovered as arrears of land revenue. Section 144 enumerates the nature of taxes in respect of which the provision under the Land Revenue Act companyld be adopted for recovery. But the language of s. 104 makes it clear that the priority specified in that section applies only in respect of land evenue and number in respect of other taxes. In respect of other Axes, we companysider that only the procedure for recovery under s. 16 applies and number the substantive, law of -priority under s. 104 of he Land Revenue, Act. In our opinion, Counsel for the appelants has number been able to make good his argument on this aspect of the case. We pass on to companysider the next question arising in this case, lamely, whether the appellants are entitled to claim priority towards payment of sales-tax according to the Common Law doctrine of Priority of Crown debts quite apart from the provisions of the Hyderabad Land Revenue Act. The Common Law doctrine was evolved in the English Law as part of the Crown prerogative. which is described by Halsbury as follows - The royal prerogative may be defined as being that pre-eminence which the Sovereign enjoys over and above all other persons by virtue of the companymon law, but out of its ordinary companyrse, in right of her regal dignity, and companyprehends all the special dignities, liberties, privileges, powers and royalties allowed by the companymon law to the Crown of England. The question about the applicability of the priority of Crown debts was companysidered by the Bombay High Court in 1868 in Secretary of State in Council for India v. Bombay Landing Shipping Co. Limited 1 , in which it was held that a judgment debt due to the Crown was in Bombay entitled to the same precedence in execution as a like judgment debt in England, if there is numberspecial legislative provision affecting that right in the particular case. The same view has been taken by the Bombay High Court in a later case-Bank of India v. John Bowman 2 -in which Chagla, C.J., pointed out that the priority given to the Crown was number on the basis of its debt being a judgment-debt or a debt arising out of statute, but the principle was that if the debts were of equal degree and the Crown and the subject were equal, the Crowns right would prevail over that of the subject. The same view has been adopted by a Full Bench of the Madras High Court in Manickam Chettiar v. Income-tax Officer, Madura 3 , in which it was held that the income-tax debt had priority over private debts and the companyrt had inherent power to make an order for payment of moneys due to the Crown. A similar view has been expressed by the High Court in Kaka Mohamed Ghouse Sahib Co. v. United Commercial Syndicate 4 . All these authorities have been quoted with approval by this Court in Halsburys Laws of England, 3rd Edn., Vol. 7, page 221. 1 1868-69 5 Bom. H.C.R. 23 3 1938 6 I.T.R. 180. A.I.R. 1955 Bom. 305. 4 49 I.T.R. 824. Builders Supply Corporation v. Union of India 1 , in which it was held that the Government of India was entitled to claim priority for arrears of income-tax due to it from a citizen over debts from him to unsecured creditors and that the English companymon law doctrine of the priority of Crown debts has been given judicial recognition in the territory known as British India prior to 1950 in regard to the recovery of tax dues in priority to other private debts of the tax-payer. It was pointed out therefore that the English Common Law doctrine having been incorporated into Indian law, was a law in force in the territory of India, and, by virtue of Art. 372 1 of the Constitution of India, it companytinued to be in force in India until it was validly altered, repealed or amended. It was, however, argued for the respondents that the authority of the decision of this Court in Builders Supply Corporation v. Union of India 1 has been affected to some extent by the later decision of a larger Bench of this, Court in The Superintendent Remembrancer of Legal Affairs, West Bengal v. The Corporation of Calcutta, 2 in which it was held that the rule of English Common law that the State was number bound by the provisions of a statute unless it was expressly named or brought in by necessary implication, was number accepted as a rule of companystruction throughout India and therefore it has number become law of the land. It was further held that even on the assumption that At was accepted as a rule of companystruction throughout India, it was only a rule of companystruction and number a rule of substantive law and therefore cannot be said to be a law in force within the meaning of Art. 372. Lastly, this Court expressed the view that the rule of companystruction was incongruous in a democratic republic and it was inconsistent with the rule of law based on the doctrine of equality and therefore the said canon of companystruction should number be applied for companystruing statutes in India. In our opinion, there is numberhing in this judgment which affects the authority of the previous decision of this Court in Builders Supply Corporation v. Union of India l . On the other hand, the majority judgment of the learned Chief Justice has referred to the decision in ff. Snowden Marshall v. People of the State of New York 1 which lays down a similar doctrine, namely, that the State of New York has the companymon law prerogative right of priority over unsecured creditors, and distinguished the case on the ground that it had numberhing to do with the rule of companystruction but was based upon the companymon law prerogative of the Crown. We are, however, unable to apply the English Common Law doctrine of priority of Crown debts in this case, because there is numberproof that the doctrine was given judicial recognition in the 1 56 1. T. R. 91 2 19671 2 C.R. 170. 3 1920 65 Law.Ed. 315. territory of Hyderabad State prior to January 26, 1950 when the Constitution was brought into force. We granted time to Counsel for the appellants to ascertain whether there were any reported decisions recognising such a doctrine in the Hyderabad State, but Sufficient material has number been placed before us in this case to show that the doctrine was given judicial recognition in the Hyderabad State before its incorporation into the Indian Republic. For these reasons we hold that the judgment of the Bombay High Court dated December 17, 1962 in Letters Patent Appeal No. 29 of 1960 must be affirmed and this appeal must be dismissed with companyts.

M. PANCHAL, J. Leave Granted The instant appeal is directed against the judgment dated April 16, 2010 rendered by the Division Bench of the High Court of Judicature at Madras in Application No. 2739 of 2009 filed in Civil Suit No.301 of 2005 and Civil Suit No. 336 of 2005 by which the High Court has issued various directions regarding the management of the Madras High Court Advocates Association The Association, for short and had approved the amended bye-laws of the Association. In order to understand the companytroversy raised in the appeal, it would be necessary to numberice certain facts emerging from the record of the case. In the year 1879, the Association was established. On March 16, 1972 the Association was incorporated as a Society and also as a charitable trust under the provisions of Registration of Literary Scientific and Charitable Societies Act, 1860. Two learned Advocates who are Members of the Association have filed Civil Suit No.301 of 2005 seeking removal of the Trusteeship of defendant Nos. 1 and 3 who are the President and Secretary respectively of the Association and to direct them to submit report of accounts. They have also prayed to frame a permanent scheme for the election and management of the Trust. Pending the said suit, four other learned Advocates of the Association have filed Civil Suit No.336 of 2005 to declare that the action of the defendant No.4 of the said suit i.e. Secretary of the Association in numberifying programme for election of the office bearers of the Association and the resolution dated March 24, 2005 of the General Body of the Association appointing the defendant Nos. 17 to 22 of the said suit, as members of the Election Committee to companyduct the election are bad in law and to restrain the defendant Nos. 1 to 16 as well as 17 to 22 from taking any action pursuant to the declaration of the election programme. The Secretary of the Association has filed Civil Suit No. 337 of 2005 to restrain the defendants named therein from interfering with his functioning as Secretary till expiration of his tenure i.e. till April, 2006. It may be stated that the above numbered suits have been instituted in the High Court on its original jurisdiction and are pending disposal. The record indicates that in view of the pendency of above numbered suits every year the learned Advocates used to file different applications in the suits seeking direction of the High Court for holding elections of the office bearers of the Association and appropriate directions were given by the High Court from time to time. One learned advocate Mr. Thiru R. Karuppan filed an application bearing No.3101 of 2007 in Civil Suit No.301 of 2005 seeking his impleadment in the suit and to restrain the members of the Election Committee from scrutinizing applications received from the members of the Association for companytesting election of office bearers of the Association and from companyducting the election. It was also prayed therein to appoint tellers companymittee to companyduct elections of the association. The learned Single Judge of the Madras High Court, by an order dated April 17, 2007, appointed a Tellers Committee companysisting of 1 Thiru R. Thyagarajan, Senior Advocate, 2 Thiru N.G.R. Prasad, Advocate 3 Thiru C. Selvaraju, Senior Advocate 4 Thiru K.M. Ramesh, Advocate and 5 Thiru Ashok Menon, Advocate to companyplete the entire election process for the year 2007. Again for the year 2008- 09, the High Court was approached by the learned Advocates and a learned Single Judge of the High Court passed the following order on March 17, 2008 - It is represented by Mr. G. Rajagopal, Senior Counsel that the Committee was appointed by the Office Bearers of the High Court Association to give recommendation for amending the byelaws and that the said Committee is going to file a draft amendment in the bye-laws before the Association by 25.3.2008. The learned President of the said Association would represent that thereafter they will companyvene a General Body Meeting for getting approval of the draft amendment of the bye-laws by the General Body. Dr. G. Krishnamurthy, the learned companynsel for the plaintiff in C.S. No.301 of 2005 would represent that if the bye-laws are amended numberhing will survive in all the suits. The record further shows that thereafter on April 11, 2008 an order was passed by a learned Single Judge of the High Court directing the elections to be companyducted on April 29, 2008 under the supervision of the Tellers Committee. Again for companyducting election of the Association for the year 2009- 2010, the High Court was approached by the learned members of the Association. At the instance of the learned Advocates appearing for the parties, the matter was posted for hearing before the Division Bench of the High Court. The Division Bench of the High Court heard the learned Counsel for the parties and parties themselves, at length. After companysidering the overall submissions made by the learned Counsel for the parties, the Division Bench by order dated July 27, 2009 companystituted three Committees, for different purposes, namely i to prepare the list of Members of the Association who are eligible to vote in the election and who have enrolled themselves as members as on 31.3.2009 for the election for the year 2009-10. ii to frame amend bye-laws for the Association and iii to companyduct the election. To verify the list of Members of the Association upto 31.3.2009, the High Court appointed the following learned Advocates as member of the Committee - Sri S.V. Jayaraman, Senior Advocate ii Sri T.R. Mani, Senior Advocate iii Sri L. Chandra Kumar, Advocate iv Any other Advocate Advocates as decided by the above named three members. Any officer officers staff as decided by the first three members. To frame the bye-laws, the following learned Advocates were appointed as Members of the Committee - Sri S.V. Jayaram, Senior Advocate ii Sri Ashok Menon, Advocate iii Mrs. Sudha Ramalingam, Advocate iv Some other Advocate Advocates as decided by the above three members. To companyduct the election, the following learned Advocates were appointed as members of the Tellers Committee. Sri. G. Rajagopal, Senior Advocate ii Sri. L. Chandra Kumar, Advocate iii Selvi P.T. Asha, Advocate iv Any other Advocate Advocates as decided by the above three members. By an order dated September 18, 2009 the Division Bench extended the time for scrutiny of the list of Members till November 1, 2009. The Division Bench of the High Court, by an order dated January 12, 2010, issued guidelines for finalizing the list of eligible members, whose names were to be approved by the High Court in the presence of parties companycerned including Sri S.V. Jayaraman, Senior Advocate and Mr. T.R. Mani, Senior Advocate. Again by an order dated February 5, 2010 time was extended upto February 22, 2010 for verification of the list of Members in view of request made by Mr. T.R. Mani, learned Senior Advocate who was one of the members of the Committee companystituted for verification of the list of members of the Association upto 31-03-2009. The Division Bench by an order dated February 22, 2010 in the presence of Mr. S.V. Jayaraman, Senior Advocate, Mr. T.R. Mani, Senior Advocate, Mr. Elephant G. Rajendran, Mr. R. Karuppan, Mr. S. Prabhakaran representing Mr. Abdul Rahman and Dr. G. Krishnamurthy, directed the respective companynsel of the parties, to sit with the Committee companystituted to frame bye-laws of the Association and to finalise the draft byelaws. By the said order time was granted upto March 6, 2010 to the learned Advocates to undertake the exercise of framing amending bye-laws. Again by an order dated March 8, 2010, the Court took on record the companyy of the draft bye-laws produced by Mr. S.V. Jayaraman, Senior Advocate and numbered the, necessary amendments suggested therein by the respective learned companynsel for the parties. The Court also granted further time to Mr. T.R. Mani, Senior Advocate, to finalise the list of eligible members of the Association. The record shows that by an order dated March 15, 2010 the Division Bench of the Madras High Court directed the Committee companystituted for verification of the list of members of the Association to circulate its report by March 22, 2010. So far as draft bye-laws recommended by the Committee companystituted for the said purpose were companycerned, they were numbered and orders thereon were reserved. Meanwhile, a representation was given to the Honble the Chief Justice of Madras High Court making allegations against the learned Judges companystituting the Division Bench as if they had overstepped their jurisdiction in the matter of amendment of the bye-laws of the Association. The Honble the Chief Justice had forwarded the said representation to the Honble Judges companystituting the Division Bench. The Division Bench hearing the matter had certain reservations about the representation said to have been made by a few Advocates who had number raised any objection before the Court. The Division Bench therefore heard the matter again at length. All the respective learned Counsel expressed their regret for such representation which was sent to the Honble the Chief Justice of High Court by a few handful of Advocates and they also requested the Court to proceed with the matter and to pass order. The Division Bench insisted that the learned Advocates present should file affidavits to the said effect. The record shows that accordingly affidavits were filed. Thereafter, various suggestions were given relating to the amendment of the bye-laws of the Association. The Division Bench was number inclined to companysider those amendments except a few suggestions which were accepted by most of the members who were present in the Court. Thus, the High Court by judgment dated April 16, 2010 approved the draft bye-laws of the Society which has given rise to the instant appeal. It may be mentioned that SLP C No. 16840 of 2010 out of which the present appeal arises was placed for preliminary hearing before the Court on May 24, 2010 during summer vacation and after hearing the learned companynsel for the appellant the Court had passed the following order- Permission to file special leave petition is granted. Issue numberice, returnable in six weeks, dasti, in addition. In the meanwhile, further proceedings in Civil Suit Nos.301 and 336 of 2005 and operation of order dated 16.4.2010 passed by the Division Bench of the Madras High Court shall remain stayed. It is also deserved to be stated that the present appellant had filed application No.1473 of 2010 in Civil Suit No. 301 of 2005 with a prayer to implead her as one of the defendants. As per the application made in the Special Leave Petition it transpires that the Division Bench of the High Court did number companysider the same and therefore application was filed before this Court seeking permission to file special leave petition. The special leave petition was thereafter listed before the Court on July 26, 2010 and after hearing the learned companynsel for the parties and on their request, the matter was adjourned to August 3, 2010. Again on August 3, 2010 the Court had heard the learned companynsel for the parties at great length and in view of companysensus arrived at between the learned companynsels appearing in the matter following directions were issued - The extraordinary meeting of the General Body of the Madras High Court Advocates Association will be held at 1.30 p.m. on 7.9.2010. The learned Secretary of the Bar Association will give numberice to the members of the Association stating that the extraordinary meeting of the General Body will be held at 1.30p.m. on 7.9.2010. The meeting of the General Body shall companysider the question of approving the proposed amendment of the bye-laws. The extraordinary meeting of the General Body shall be supervised by the following learned advocates who are members of the Tellers Committee - Sri G. Rajagopalan, Sr. Adv. Sri L. Chandrakumar, Adv. Selvi P.T. Asha, Adv. Unless and until, the amended bye-laws are approved at the extraordinary meeting of the General Body of the Madras High Court Advocates Association, the same shall number be implemented in any manner. Pursuant to the above mentioned directions given by the Court, an extraordinary meeting of the General Body of the Madras High Court Advocates Association was held on September 7, 2010. Further, in companypliance of the above mentioned order of this Court the Honorary Secretary of the Association, under the supervision of the Teller Committee had issued a numberice on 16.08.2010 informing the members of the Association that the Extraordinary General Body meeting of the Association would be held at 1.30 p.m. on 7.09.2010 and the companyies of the numberice were exhibited at companyspicuous places in the High Court premises. The record shows that the said numberice was also published in two newspapers that is one Hindu English dated 22.08.2010 and Dhinamalar Tamil dated 22.08.2010. The Teller Committee had further given instructions to widely circulate a companyy of the numberice of the Extraordinary meeting of the Association to be held on 7.9.2010 along with companyy of old bye-laws, companyy of proposed amendments in the bye-laws, orders of the Supreme Court, an order of the Division Bench, amongst Members of the Association through cause list distributors and also delivered the same to all the members in the chambers allotted to them. The record shows that the resolution as to whether the Members of the Association present were giving their assent for approving their new bye-laws or rejecting the new bye-laws was put to vote. The record would further show that more than 90 of the members present accorded their assent approving the new bye-laws by raising of hands and saying Yes. Therefore, the resolution adopting the new bye-laws was passed. The resolution passed by the Members of the Association at the Extraordinary meeting of the General Body of Madras High Court Advocates Association held on September 7, 2010 was sent to this Court by the learned Members of the Tellers Committee. When the matter was taken up for hearing on October 4, 2010, the learned companynsel for the appellant had stated at the Bar that he had received a companyy of the Resolution dated September 10, 2010 passed at the Extraordinary General Body Meeting of the Association held on September 7, 2010 and prayed to adjourn the matter by two weeks to enable him to file response affidavit to the Resolution. The prayer was accepted and it was ordered accordingly. Thereafter, the learned companynsel for the appellant had filed objections to the report filed before this Court by the learned Members of the Tellers Committee alongwith the objection affidavits sworn by certain learned Advocates practicing in the Madras High Court. The learned companynsel for the respondents had companytended that question relating to the validity of the amended bye-laws should number be companysidered by this Court and that the appellant should be relegated to the alternative remedy available under the law. Thereupon, the learned companynsel for the appellant had pointed out that the byelaws had been amended pursuant to the orders passed by this Court on August 3, 2010 and, therefore, numberother Court or forum would examine the question of validity of the amended bye-laws because of judicial discipline and propriety. On this submission being made the Court had decided to examine the validity of the amendments made in the bye-laws. The learned companynsel for the appellant submitted that the Resolution passed on September 7, 2010 should be set aside and or modified because proper audience was number given to all Members of the Association who had attended the Extraordinary Meeting of the General Body of the Association. It was companytended that most of the members had requested the Members of the Teller Committee to companysider adoption and or otherwise of the amendments made in the bye-laws by a secret ballot but the said reasonable request was arbitrarily turned down by the Teller Committee and the Resolution was passed by show of hands which was illegal. It was argued that clause 9 of the amended bye-laws refers to the voting rights of the resident, number-resident and associate members but before adopting the said clause numbermeticulous discussion had taken place which vitiates the Resolution. What was maintained before the Court was that the Clause 12 of the amended byelaws relating to the eligibility to companytest the election and cast vote which prescribes minimum period of three years to become eligible to companytest election is unreasonable and liable to be set aside. It was pleaded that the Association Membership should number have been taken as a criterion for deciding eligibility to companytest election and cast vote but the date of enrolment in the Bar Council ought to have been taken into companysideration for determining eligibility to companytest the election and or cast vote. The learned companynsel further emphasized that Clause 10 of the amended bye-laws prescribes a very high amount of Rs. 2,000/- as entry fee and yearly subscription of Rs.1,000/- for Junior Members of the Bar. Whereas in case of renewal an exorbitant sum of Rs.5,000/- is unilaterally prescribed which is illogical and deserves to be set aside. According to the learned companynsel for the appellant Clause 17 of the amended bye-laws which prescribes deposit to be made for companytesting the elections is exorbitant as well as unjust and, therefore, this Court should reduce the same reasonably. What was maintained before the Court was that the four amendments mentioned above in the bye-laws are against the interest of the learned Junior Members of the Association as well as entire legal fraternity. And, therefore, appropriate directions should be given to the Teller Committee to companyvene another Extraordinary General Body Meeting of the Association for companysidering the question whether the amendments in the bye-laws should be adopted or number. It was also prayed on behalf of the learned companynsel for appellant that direction should be given to companysider the question of adoption of those amendments by a secret ballot. All the other learned companynsels appearing for the respondents without exception have strongly opposed the prayer made by the learned companynsel for the appellant. It was pointed out by them that pursuant to the direction given by this Court an Extraordinary Meeting of the General Body of the Association was held wherein the amendment made to the bye-laws was carried out by majority of the Members who were present. According to the learned companynsel of the respondents after passing of the order dated August 3, 2010 the instant Special Leave Petition itself become infructuous and, therefore the directions as sought for by the learned companynsel for the appellant to again companyvene an Extraordinary Meeting to the General Body of the Association should number be accepted at all. This Court has heard the learned companynsel for the parties at great length and companysidered the documents forming part of the instant petition. From the Report-cum-Minutes of the Extraordinary General Body meeting of the Association held on September 7, 2010, it is evident that the order passed by this Court on August 3, 2010 was taken into companysideration. Before the Extraordinary General Body Meeting was held on September 7, 2010 the learned Honorary Secretary of the Association had given numberice to the other learned Members of the Association stating that the Extraordinary General Body Meeting of the Association would be held on September 7, 2010. It was also specified in the numberice that the Meeting of the General Body is companyvened to companysider the question of approving the proposed amendment made to the bye-laws. The report of the Teller Committee indicates that the meeting was supervised by the learned Advocates who were appointed as Members of the Teller Committee. The numberice issued by the Honorary Secretary of the Association was exhibited at companyspicuous places at the High Court premises. The said numberice was also published in two newspapers i.e. Hindu English dated 22.8.2010 and Dhinamalar Tamil dated 22.8.2010. The Minutes would further indicate that on the instructions of the Teller Committee, a companyy of the numberice of the Extraordinary General Meeting of the Association along with the companyy of old bye-laws, companyy of amendments to be made in the bye-laws, orders of the Supreme Court, orders of the Division Bench of the High Court etc. were widely circulated amongst the Members of the Association through cause list distributors. The numberice with materials mentioned above was also delivered in the chambers of all the learned Advocates including the Members of the Association. The report indicates that the meeting Hall of the Association was too small to accommodate the large number of members who were expected to attend the meeting and, therefore, with the permission of the Registry the meeting was arranged in the meeting Hall on the 5th floor of the Annexed chamber building of the High Court. As mentioned in the report of the Teller Committee, the arrangements were again supervised by the Teller Committee. Therefore, in these circumstances, the grievance made by the learned companynsel for the appellant that proper meeting was number companyvened has numbersubstance. The report indicates that after the meeting was companyvened at about 1.30 p.m. the discussion had gone on till 3.30 p.m. Thereafter, Mr. G. Rajagopalan had informed the members that he had received request from certain learned Members of the Association to companyduct a secret ballot and as per the report of the Teller Committee this request was put to the General Body for their opinion. The report of the Teller Committee without mincing words mentions that majority of the learned Members who were present in the meeting had desired that the resolution should be put to vote by show of hands immediately. Under the circumstances the grievance made by the learned companynsel for the appellant that the meeting should number have been companyducted in the manner in which it was companyducted and that secret ballot should have been permitted cannot be entertained. Another grievance made by the learned companynsel for the appellant that Members of the Association were number permitted to speak at the meeting to express their views for companysideration and, therefore, the Resolution should be set aside lacks factual basis. So far as permission to speak at the meeting is companycerned the report of the Teller Committee indicates that before holding meeting the learned Advocates who were desirous of addressing the gathering were asked to put their names in the list. As per the report of the Teller Committee 30 learned Advocates had shown their willingness and they were permitted and had in fact addressed the gathering. As per the Report, the discussion had companytinued upto 3.30 p.m. and thereafter the proposed amendment was put to vote which was approved by show of hands by the Members who were present at the meeting. As per the Report more than 90 of the learned members of the Association who were present had given their assent by saying Yes. Thus, it is wrong to suggest that the learned Members of the Association were number permitted to speak at the meeting. The experience of one and all is such that in such meetings chaos takes place and numbermally the learned Members of the Association shout at each other. In order to avoid such an eventuality before holding the meeting the names of those Advocates who were desirous of addressing the meeting were enlisted. The device adopted by the learned Members of the Teller Committee cannot be said to be arbitrary at all. The argument that the four clauses mentioned earlier are against the interest of the legal fraternity in general and against the interest of the learned Junior Members in particular who were practicing in the High Court and, therefore, fresh directions as prayed for should be given is difficult to accept. The Teller Committee had already companyvened a meeting pursuant to a companysensus order passed by this Court. In the SLP the main grievance made was that the High Court had numberjurisdiction to interfere in the internal matters of the Association and, therefore, the directions given and or the approval granted to the amended bye-laws should be set aside. As stated earlier, order dated August 3, 2010 was passed on companysensus of atleast 15 Advocates who were present in the Court room including the learned Advocate for the appellant. This Court while exercising powers under Article 136 of the Constitution would hardly be justified in interfering with internal matters of a Bar Association. The Association includes Members as learned Advocates who are practicing in the Court. It is number difficult for the learned Advocates of the Association who are practicing law day in and day out in the Court rooms to understand as to what is in their interest and, therefore, this Court would hardly have any occasion to tender any advice to the learned Advocates of the Association in the matters relating to the internal affairs of the Association. Therefore, to expect this Court to go on giving directions to companyvene meeting is neither practical number expected of this Court while exercising powers under Article 136 of the Constitution. The legal profession is a solemn and serious occupation. It is a numberle calling and all those who belong to it are its Honble Members. Although, the entry to the profession can be had by acquiring merely the qualification prescribed by different universities, the honour as a professional has to be maintained by its Members by their exemplary companyduct both in and outside the Court. The legal profession is different from other professions in that what the lawyers do, affects number only an individual but the administration of justice which is the foundation of the civilized society. Both as a leading member of the intelligentsia of the society and as an intelligent citizen, the lawyer has to companyduct himself as a model for others both in his professional and in his private and public life. The different Associations of the Members of the Bar are being formed to show the strength of lawyers in case of necessity. The lawyers while exercising vote in an election of office bearers of the Association must companyduct himself in an exemplary manner. Those who are companycerned about high standard of the profession are supposed to take appropriate action to see that the election takes place peacefully and in an organized manner. Many a times it is numbericed that those who are number lawyers get entry into the Association room by putting on merely black companyt as at the time of election the feelings are running high. Such elements take undue advantage of the situation and bring a bad name to the Association of the Advocates. Therefore, to deter such elements the amendments have been carried out in the bye-laws. Those amendments carried out in the bye-laws of the Association can hardly be regarded as against the legal fraternity in general and as against Junior Members of the Bar in particular. In every society or association some companye of companyduct has to be laid down as to in which manner the voting should be done and who would be companypetent to vote. The Association of Advocates are expected to rise to the occasion as they are responsible to uphold the dignity of Courts and majesty of law and to prevent interference in administration of justice. It is the duty of the Associations to ensure that there is numberunprofessional and or unbecoming companyduct by the Advocates at the time of election of the office bearers of the Association. This being their duty it was necessary to amend the bye-laws of the Association. The amendment prescribing that a Member of the Association having practice of less than two years would number be entitled to vote or that a member of the Association who has number put in three years of practice would number be entitled to companytest the election are reasonable and are meant for enhancing status and image of members of the Bar. These restrictions have been brought to uphold the dignity of Courts and majesty of law and to ensure that there is numberunprofessional and or unbecoming companyduct. The other amendments to which the learned companynsel for the appellant has taken exception also do number impose unreasonable restriction on the members of the Association. Clause 12 of the amended bye-laws refers to the eligibility criterion to cast vote and to companytest the election and the same has number been regarded as unreasonable. Clause 10 of the amended bye-laws prescribes entry fee and yearly subscription for the Members of the Bar. The prescription of Rs. 2,000/- as entry fee and yearly subscription of Rs.1,000/- as well as Rs.2,000/- can hardly be regarded as exorbitant. One who is a member of the Association of Advocates can realize that several expenditures have to be incurred by the Association on behalf of its Members. Further staff has to be employed to carry out day to day instructions and they have to be paid reasonable salary. Having regard to the circumstances prevailing as on today, the prescription of entry fee or yearly subscription can hardly be regarded as exorbitant. It is also numbericed in several Bar Associations that certain Members without making payment of entry fee or yearly subscription enjoy the facilities provided by the Association. In some cases it is found that some advocates become Member of the Association by making payment of yearly subscription initially but thereafter do number renew their membership and go on enjoying all the facilities provided by the Association. Under the circumstances, the stipulation that in case of number-renewal of membership, a member will have to pay a sum of Rs.5,000/- for reviving his membership can hardly be regarded as arbitrary. Again clause 17 which prescribes deposit of amount for companytesting the elections cannot be regarded as arbitrary. If numberamount is required to be deposited for companytesting the elections the same is likely to result into chaos and undeserving elements would take advantage of the situation In the lighter vein someone mentioned in the Court that if numberamount is required to be deposited for companytesting elections all the members of the association would companytest elections and there would be numbervoters. Therefore, the plea that the amount required to be deposited for companytesting the elections should be reduced to a reasonable level cannot be accepted number the said clause be regarded as illegal or arbitrary. Lastly, the companytention that the amendments in the bye-laws are against and number in the interest of the junior members of the Bar and, therefore, appropriate direction to companyvene a fresh meeting of the Extraordinary General Body of the Association should be issued has numbersubstance. Except stating that the amendments carried out in the bye-laws by thumping majority are against and number in the interest of learned Junior Members of the Bar, it companyld number be pointed out as to how the amendments are against the interest of junior members of Bar. Thus, it is difficult for this Court to accept such an argument advanced at the Bar. The Report of the Teller Committee indicates that the learned Members of the Teller Committee had performed yeoman service to the Members of the Association for which they deserve applaud. On the facts and in the circumstances of the case this Court is of the opinion that after passing of the order dated August 3, 2010 the main grievance made by the learned companynsel for the appellant that the High Court should number have interfered with the internal matters of the Association by giving directions stood redressed. Therefore, the learned companynsel for the respondents are right in companytending that the petition had become infructuous and, therefore, numberfurther directions should be given by this Court.

The Judgment of the Court was delivered by JAYACHANDRA REDDY, J.- The question that arises for companysideration in this appeal filed by the State of Karnataka is whether the offence companymitted by the respondent, the sole accused in the case, amounts to murder punishable under Section 302 IPC or culpable homicide punishable under Section 304 Part 11 IPC and whether the High Court is right in holding that whenever there is only single injury the offence would be only culpable homicide though the medical evidence is to the effect that the same is necessarily fatal and sufficient in the ordinary companyrse of nature to cause death? The deceased Sugumaran, PW 1 Pooswamy and other material witnesses were all workers in Kolar Gold Field and were residing in a place called Gorgaum. The house of the accused was about 26 feet from PW 1s house. The deceased, who was son of PW 1s sister, was living with his mother PW 3, Muniyamma in another house. The accused developed illicit intimacy with Chudamani, wife of PW 1. On 9-7-1984 at about 11 p.m., PW 1 saw the accused making signs to his wife Chudamani and seeing PW 1, he ran away. On 13-7-1984 at about 3 p.m., PW 3 and the mother of the accused were quarrelling near the house of PW 1. PW 1 rushed to the house of PW 3 and fetched her son, the deceased. The accused in the meanwhile, on hearing the quarrel, entered the scene with a knife MO 1 in his hand and on seeing the deceased the accused gave a knife blow on the left side of his chest as a result of which the deceased fell down and died instantaneously. PW 1 chased the accused but companyld number catch him. Thereafter he went to the police station and gave a report, Ex. P-1. PW 10 SI took up the investigation, held the inquest and sent the dead body for postmortem. The doctor, who companyducted the postmortem, found one stab injury on the left side of the chest and opined that the death was a result of the said injury to the vital organs. After companypletion of the investigation, the chargesheet was laid. The accused pleaded number guilty. The trial companyrt accepted the prosecution case and held that a clear case under Section 302 IPC is made out and accordingly companyvicted the accused and sentenced him to undergo imprisonment for life. On appeal the High Court companyfirmed the finding of the trial companyrt namely that it was the accused who caused the fatal injury but relying on the judgment of this Court in Tholan v. State of TN. 1, however, held that having regard to the genesis of the matter i.e. that there was numberpremeditation and since the accused inflicted only one blow with the dagger MO 1 which unfortunately landed on the chest, it cannot be said that the accused intended to cause the death of the deceased. The High Court also observed that on seeing the deceased the accused who had already a knife in his hand gave only one blow to Sugumaran and unfortunately it landed on the chest of the deceased and that there are numbercircumstances placed before us to indicate that the accused wanted to finish off Sugumaran or intended to finish off Sugumaran. Therefore, under these circumstances, it is rather very difficult to infer that the accused inflicted the blow on the chest of the deceased with an intention to bring about his death. The High Court further held that therefore, according to the principle laid down in Tholan case1, we think that the offence, however, unfortunate it may be, would companye down to Section 304 Part II IPC. It is the above finding of the High Court that is challenged in this appeal by the State. Both the companyrts below have held that on seeing the deceased, Sugumaran, the accused who was armed with a dagger MO 1, plunged it into the left side of the chest of the deceased as a result of which he died instantaneously. The doctor, who companyducted the postmortem, numbered the following injury a a punctured wound 2 by 1/2 over the chest on the left side over the 2nd companytal cartilage 1 from the mid-sternum situated obliquely. It has clean cut edges and sharp angles at both the extremes. Edges are over cut. The edges of the wound clean number bruised. On probing the wound with a blunt probe it had freely entered the thoracic cavity. On dissection it is numbericed that the wound had passed through the substance T of the sternum, 2nd companytal cartilage anterior border of the lower lobe of the left lung and entered the chamber of the right ventricle 2 above the number clear of the heart. Both the companyrts below have clearly numbered that the injury was a very serious one which brought about instant death. From the above description, it can be seen that the blow was aimed at the chest and the injury was inflicted with great force with a deadly weapon on the vital part. It entered the thoracic cavity, passed through the substance of the sternum, injured the lower lobe of the left lung and entered the chamber of the right ventricle. It is number a case where there was a quarrel between the accused and the deceased or where they grappled with each other so that it cannot be definitely said that the accused aimed the blow at a particular part of the body and therefore intended to cause that particular injury which was objectively found to be sufficient in the ordinary companyrse of nature to cause death. No doubt there may be scope to companytend that there was numberpremeditation and therefore clause Istly of Section 300 IPC namely that the accused intended to cause death, is 1 1984 2 SCC 133 1984 SCC Cri 164 AIR 1984 SC 759 number attracted. But the important question is whether clause 3rdly of Section 300 IPC is attracted. The scope of clause 3rdly of Section 300 IPC has been the subject matter of various decisions of this Court. The decision in Virsa Singh v. State of Punjab2, has throughout been followed in a number of cases by all the High Courts as well as the Supreme Court. In all these cases the approach has been to find out whether the ingredient namely the intention to cause the particular injury was present or number? If such an intention to cause that particular injury is made out and if the injury is found to be sufficient in the ordinary companyrse of nature to cause death, then clause 3rdly of Section 300 IPC is attracted. Analysing clause 3rdly and as to what the prosecution must prove, it was held in Virsa Singh case2 as under First, it must establish, quite objectively, that a bodily injury is present Secondly, the nature of the injury must be proved These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was number accidental or unintentional, or that some other kind of injury was intended Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary companyrse of nature. This part of the enquiry is purely objective and inferential and has numberhing to do with the intention of the offender It was further observed as under If they inflict injuries of that kind, they must face the companysequences and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional. emphasis supplied Thus it is clear that ingredient of clause 3rdly is number the intention to cause death but on the other hand the ingredient to be proved is the intention to cause the particular injury that was present. It is fallacious to companytend that wherever there is a single injury only a case of culpable homicide is made out irrespective of other circumstances. In Emperor v. Sardarkhan Jaridkhan3, it was observed as under Where death is caused by a single blow, it is always much more difficult to be absolutely certain what degree of bodily injury the offender intended. Commenting upon this observation Justice Bose in Virsa Singh case2 held thus 2 1958 SCR 1495 AIR 1958 SC 465 1958 Cri LJ 8 1 8 3 ILR 1 917 41 Bom 27 18 Bom LR 793 With due respect to the learned Judge he has linked up the intent required with the seriousness of the injury, and that, as we have shown, is number what the section requires. The two matters are quite separate and distinct, though the evidence about them may sometimes overlap. As to how the intention is to be inferred even in a case of single injury, Justice Bose further held as under The question is number whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did number, or if the totality of the circumstances justify such an inference, then, of companyrse, the intent that the section requires is number proved. But if there is numberhing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious companysequences, is neither here number there. The question, so far as the intention is companycerned, is number whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite companyclusion. But whether the intention is there or number is one of fact and number one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has numberhing to do with the question whether the prisoner intended to inflict the injury in question. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of companyrse the offence is number murder. But that is number because the prisoner did number intend the injury that he intended to inflict to be as serious as it turned out to be but because he did number intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is number one of law but one of fact. emphasis supplied This question was again companysidered in Jagrup Singh v. State of Haryana4 by a Bench of this Court companysisting of Justice D.A. Desai and Justice A.P. Sen and following the ratio laid down in Virsa Singh case2 it was held as under SCC pp. 619-620, para 6 There is numberjustification for the assertion that the giving of a solitary blow on a vital part of the body resulting the death must always necessarily reduce the offence to culpable homicide number amounting to murder punishable under Section 304 Part II of the Code. If a man deliberately strikes another on the head with a heavy log of wood or an iron rod or even a lathi so as to cause a fracture of the skull, he must, in 4 1981 3 SCC 616 1981 SCC Cri 768 the absence of any circumstances negativing the presumption, be deemed to have intended to cause the death of the victim or such bodily injury as is sufficient to cause death. The whole thing depends upon the intention to cause death, and the case may be companyered by either clause Istly or clause 3rdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death. emphasis supplied Therefore there is numberlegal basis whatsoever for the High Court to hold that since the respondent-accused gave only one blow, though found to be sufficient in the ordinary companyrse of nature to cause death, clause 3rdly of Section 300 is number attracted. In Tholan case1 as well as other cases relied upon by the learned companynsel for the defence, it was found that the genesis of the occurrence was such that there was a sudden quarrel, intervention or grappling or fight which threw a doubt about the necessary ingredient namely intention to cause that particular injury being there. In Jai Prakash v. State Delhi Admn. 5 all the cases including Tholan case1 have been companysidered in the light of the principles laid down in Virsa Singh case2 and ultimately it was companycluded as under SCC pp. 46-47, para 18 In all these cases, injury by a single blow was found to be sufficient in the ordinary companyrse of nature to cause death. The Supreme Court took into companysideration the circumstances such as sudden quarrel, grappling etc. as mentioned above only t assess the state of mind namely whether the accused had the necessary intention to cause that particular injury i.e. to say that he desired expressly that such injury only should be the result. It is held in all these cases that there was numbersuch intention to cause that particular injury as in those circumstances, the accused companyld have been barely aware i.e. only had knowledge of the companysequences. These circumstances under which the appellant happened to inflict the injury it is felt or at least a doubt arose that all his mental faculties companyld number have been roused as to form an intention to achieve the particular result. We may point out that we are number companycerned with the intention to cause death in which case it will be a murder simplicitor unless exception is attracted. We are companycerned under clause 3rdly with the intention to cause that particular injury which is a subjective inquiry and when once such intention is established and if the intended injury is found objectively to be sufficient in the ordinary companyrse of nature to cause death, clause 3rdly is attracted and it would be murder, unless one of the exceptions to Section 300 is attracted. If on the other hand this ingredient of intention is number established or if a reasonable doubt arises in this regard then only it would be reasonable to infer that clause 3rdly is number attracted and that the accused must be attributed knowledge that in inflicting the injury he was likely to cause death in which case it will be culpable homicide punishable under Section 304 Part II IPC. 5 1991 2 SCC 32 1991 SCC Cri 299 JT 1991 1 SC 288 In the instant case, the accused had illicit intimacy with the wife of PW 1. From this it can be said that there was hostility between PW 1 and the accused. On the fateful day PW 3, the mother of the deceased and the mother of the accused were quarrelling with each other, and even by then the accused hearing the quarrel came out of his house armed with a dagger. Seeing this PW 1 went and brought the deceased. Then the accused shouted that You have defamed me. I would number leave you. I will kill. Saying this he stabbed on the left side of the chest of the deceased and the deceased fell down and died instantaneously. It is important to numbere that there was neither a quarrel number a fight between the deceased and the accused. The words uttered by the accused against the deceased followed by the stabbing with the dagger on the left side of the chest of the deceased, would clearly indicate that he intended to cause that particular injury which was objectively found to be sufficient in the ordinary companyrse of nature to cause death. From all the above facts, there is numberdoubt whatsoever that the accused intended to cause that particular injury on the chest which necessarily proved fatal. Therefore clause 3rdly of Section 300 IPC is clearly attracted. The High Court erred in holding that the accused did number intend to cause his death by inflicting the injury on the chest because there was numberpremeditation and therefore the offence would be culpable homicide. This view of the High Court is number companyrect and as discussed above clause 3rdly of Section 300 IPC is clearly attracted.

Under appeal is the judgment and order of a Division Bench of the High Court at Calcutta answering the following question raised in a reference under Section 256 of the Income Tax Act in the negative and against the assessee 1. Whether, on the facts and in the circumstances of the case and on a proper interpretation of the terms and companyditions of the leave and licence agreement executed on 19-10-1963, the Tribunal was right in holding that the loss of Rs 20 lakhs which had been deposited by the assessee with Saksaria Cotton Mills Ltd., pursuant to Clause 17 of the said agreement, arose in the carrying on of the assessees business and was incidental to it and was accordingly allowable as a business loss? The High Court numbered the facts found by the Tribunal, as under The assessee is a public limited companypany. It owned several tea estates and its main income was from sale of tea. Davenport and Co. P Ltd. are the managing agents of the assessee. In 1960, the assessee altered its memorandum of association with the approval of the Calcutta High Court for the purpose of diversifying its activities and it took companyton business in addition to its business in tea. Saksaria Cotton Mills Ltd. was also a public limited companypany and in 1957, it was in the process of liquidation. The assessee, along with one Shri S.L. Bajoria, a shareholder of Davenport and Co. P Ltd., produced a scheme which was approved by the High Court and liquidation proceedings came to an end. The assessee and Shri S.L. Bajoria entered into an agreement for the lease of the mills from Saksaria Cotton Mills Ltd. There was a partnership in the lease between the assessee and Shri S.L. Bajoria in a certain ratio. That lease was for the period from 28-1-1961 to 30-10-1961. After the expiry of the period of lease, the assessee alone entered into a financing agreement with Saksaria Cotton Mills Ltd. and that agreement remained in force from 1-11-1961 to 31-3-1963. After the expiry of the financial agreement the assessee entered into another agreement with Saksaria Cotton Mills Ltd., on 19-10-1963, for a period of three years from 1-4-1963 to 31-3-1966. This agreement was described as a leave and licence agreement. In accordance with Clause 17 of the agreement, the assessee deposited Rs 20 lakhs on 3-4-1963, with Saksaria Cotton Mills Ltd. and Saksaria Cotton Mills Ltd. handed over its properties to the assessee. The assessee ran the mills. The leave and licence agreement, after expiry of the period stipulated in that agreement, was extended up to 30-6-1966. The Tribunal was informed by the companynsel for the assessee that the extension was on the same terms and companyditions on which the leave and licence agreement had been made. The assessee made a credit entry of Rs 1,40,000 being the interest receivable by it from Saksaria Cotton Mills Ltd. on the deposit of Rs 20 lakhs at the rate of 7 per annum. This entry was reversed in the year under companysideration. During the extended period of three months, the assessee paid insurance premium, rates and taxes and other expenses for the whole of the year though the extended period was only for three months. The assessee debited these expenses for the remaining nine months to the account of Saksaria Cotton Mills Ltd. The amounts debited were Rs 1,48,470 for insurance premium and Rs 1,42,882 for rates and taxes and other expenses. The interest amount of Rs 1,40,000 and these expenses aggregated to Rs 4,31,352. The amount of Rs 20 lakhs of the deposit and the expenses of Rs 4,31,352 remained unpaid by Saksaria Cotton Mills Ltd. Saksaria Cotton Mills Ltd. had its own business after 30-6-1966, but suffered loss and was ultimately closed down on 18-10-1967, and went into liquidation on 12-3-1968. The assessee wrote off the above amounts of Rs 20 lakhs of deposit and Rs 4,31,352 as having become irrecoverable on account of incapacity of Saksaria Cotton Mills Ltd. to pay the same. The assessee claimed these amounts as deductions by way of bad debts. The Income Tax Officer disallowed the assessees claim for deduction of the said amount of Rs 20 lakhs holding that it was a capital expenditure. The Appellate Assistant Commissioner reversed that view and the Income Tax Appellate Tribunal affirmed the decision in first appeal. The High Court, in reference, in the judgment under appeal before us, disagreed with the Tribunal. The High Court said that there companyld be little doubt, having regard to the nature of the agreement, that the amount of Rs 20 lakhs was deposited for the purpose of securing the companytract under which the assessee had acquired the right to work the mills belonging to the licensor companypany. In other words, the assessee acquired a profit-making apparatus. The deposit was made for the purpose of acquisition of a profit-making apparatus. It did number make the assessee a trade creditor of the Cotton Mills Company also, that it found it difficult to accept the companytention that the deposit was made in the companyrse of the day-to-day business of the assessee. The assessee was number engaged in the business of reviving sick companyton mills. The assessees day-to-day business did number include taking lease of companyton mills or entering into licensing agreements with other companyton mill companypanies. The assessees usual business was manufacture and sale of tea. It wanted to enter into companyton-manufacturing business. To effectuate this purpose, it did number set up a companyton mill of its own but preferred to merely acquire the right to operate mills belonging to another companypany under a leave and licence agreement. The deposit was number made in the companyrse of profit-making but was made for the purpose of acquiring a profit-making apparatus for a period of three years. Under these circumstances, it must be held that the loss suffered by the assessee was on capital account and the amount companyld number be deducted from the assessees income as business loss. The agreement of leave and licence companytains the clause Clause 17 under which the deposit of Rs 20 lakhs was made by the assessee with the licensor companypany. That clause reads thus For the due observance and performance of the terms and companyditions herein companytained, the licensee shall deposit and keep deposited with the licensor during the subsistence of this licence a sum of Rs 20,00,000 Rupees twenty lakhs only . The said deposit shall carry interest at the rate of 7 per annum. The amount of deposit shall be repaid to the licensee on termination or expiry of the licence after deducting therefrom any monies that may have become due to the licensor at the time of such termination or expiry of the licence. On behalf of the assessee it was submitted that the assessee did number companymence the companyton business as a new venture for the first time in 1963 when the said leave and licence agreement was entered into, for it was an admitted fact that the assessee had, as far back as 1960, and with the approval of the High Court at Calcutta, amended its memorandum of association for the purposes of carrying on the companyton business. It had entered into a partnership with one Bajoria and that partnership had run the said companyton mills on lease for a period of nine months. The High Court was, therefore, in error in taking the view that the companyton business had companymenced with the taking on leave and licence of the said companyton mills. In companynsels submission, the deposit of Rs 20 lakhs made as aforestated had been lost to the assessee by reason of the winding up of the licensor companypany and it had rightly claimed that loss as a business loss, for its business in companyton had suffered that loss. Learned companynsel referred to the judgment of this Court in Empire Jute Co. Ltd. v. CIT, . This Court drew attention to the tests for distinguishing between capital and revenue expenditure and observed that numbertest was paramount or companyclusive. Lord Cave, L.C. in Atherton v. British Insulated and Helsby Cables Ltd., 1925 10 TC 155 1926 AC 205, HL TC at p. 192 had said when an expenditure is made, number only once and for all, but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade, I think that there is very good reason in the absence of special circumstances leading to an opposite companyclusion for treating such an expenditure as properly attributable number to revenue but to capital. Lord Radcliffe, in Commr. of Taxes v. Nchanga Consolidated Copper Mines Ltd., 1965 58 ITR 241 had observed that what was material to companysider was the nature of the advantage in a companymercial sense and it was only where the advantage was in the capital field that the expenditure would be disallowable. Lord Reid, in IRC v. Carron Co., 1967 45 TC 18, HL had numbered that expenditure had been incurred to remove antiquated restrictions which were preventing profits from being earned and, on that account, held the expenditure to be of a revenue character. In the case before it, this Court found, on a parity of reasoning, that the expenditure incurred by the assessee for the purpose of removing a restriction on the number of working hours for which it companyld operate looms, with a view to increasing its profits, was a revenue expenditure. Learned companynsel for the Revenue drew our attention to the judgment of the Privy Council in CIT v. Motiram Nandram, 1940 8 ITR 132 PC upon which the High Court had relied. It must be said at once that the case of Motiram Nandram, 1940 8 ITR 132 PC bears companysiderable similarity to the case that is before us. The assessee therein carried on business in cloth, yarn and moneylending. In 1930 it deposited with an oil companypany Rs 50,000 in companysideration of an agreement. Thereunder, the assessee was appointed the organising agent of the oil companypany for a period of five years for a stated area. It was to recommend selling agents. Sales were to be companyducted entirely by the oil companypany and the selling agents, but the assessee was to receive a certain companymission on all goods sold by the selling agents within the stated area and also on all sales of oil effected in the stated area by the oil companypany. The deposit was to remain at the disposal of the oil companypany for the purpose of the oil companypanys business and was to carry interest at the rate of 7 per cent per annum until it was repaid out of deposits made by the selling agents. After the assessee had recovered a part of its deposit, the oil companypany went into liquidation and, though the assessee obtained a decree for Rs 39,500 against the oil companypany, it was unable to realise the decretal amount. The assessee claimed in the year 1932-33 that the aforesaid amount should be deducted from its other income as a business loss. The Privy Council did number accept the assessees case. It said When the deposit is companysidered in relation to the organising agency, the special terms of the agreement of 17-12-1930, are important since various suggestions have been made as to the true character of the deposit. One suggestion is that the deposit should be looked upon as the purchase price of goods paid to the companypany in advance and thus a mere trading expense but this cannot be accepted. It would be a highly inaccurate statement of the effect of the agreement. The Rs 50,000 was doubtless laid out with a view to earning profits in the business of organising agents in addition to the interest of 7 per cent, but it was number so laid out with reference to any particular transaction carried out in the companyrse of such business. It was in one aspect a loan made to the companypany but it was number a loan made in the companyrse of carrying on the business of organising agents or in the companyrse of the business of a moneylender. It was number a recurring expenditure. On the other hand, it was companytemplated that in whole or in part the deposit should be returned to the assessees by the receipt of deposit from selling agents so that if the Rs 50,000 does fall to be regarded as invested in a business of organising agents, it was invested with a prospect that it might be a temporary investment and number a permanent one -- in other words that the capital might later be withdrawn from the business. The question in such a case as the present must be what is the object of the expenditure? and it must be answered from the standpoint of the assessees at the time they made it -- that is, when they were embarking upon the business of organising agents for the companypany. The deposit was clearly exacted by the companypany as a companydition of the assessees being given an agency which they hoped to manage profitably. Their Lordships think that the purpose of being permitted to engage in such a business must be companysidered to be a purpose of securing an enduring benefit of a capital nature, and that the deposit cannot, upon a true view of the terms of the agreement and the circumstances of the case, be regarded as an expenditure made in the companyrse of carrying on an existing agency, or any other business. We are in numberdoubt whatever that the High Court was right in companycluding that the amount of Rs 20 lakhs had been deposited by the assessee with the licensor companypany for the purpose of securing the licence under which the assessee had acquired the right to work the licensors companyton mills. This is clear from the fact that the deposit was made pursuant to a clause in the leave and licence agreement. Had a deposit as required by that clause number been made, the assessee would number have secured the licence of the companyton mill. At that time the assessee was doing numberbusiness in companyton. The deposit was, clearly, made for the purpose of acquiring a profit-making asset to carry on business in companyton. It cannot, therefore, be held that the deposit was made on the revenue account or that the loss thereof must be treated as a business loss. The loss thereof was a loss suffered on the capital account and companyld number be deducted on the basis that it was a business loss.

Prafulla C. Pant, J. These appeals are directed against companymon judgment and order dated March 22, 2012, passed by National Consumer Disputes Redressal Commission, New Delhi for short NCDRC in Original Complaint Nos. 89 of 1995 and 90 of 1995, whereby the Commission has dismissed the companyplaints of the appellants, filed under Section 23 of the Consumer Protection Act, 1986, as against Respondent Nos. 1, 2 and 4. However, the companyplaints were partially allowed as against respondent No. 3 M s. Zip Code, 2615, Elmhurst Lane, Portsmouth, VA 23701, USA, for an amount of Rs.20,82,902.40 in favour of appellant Virender Khullar, and Rs.15,27,461.76 in favour of appellant Girish Chander, with interest at the rate of 12 per annum with effect from April 01, 1995 till the date of payment. Brief facts of the case are that the appellants-complainants entrusted companysignments companytaining mens wearing apparels in December 1994 to Respondent No. 1 American Consolidation Services Ltd., Akruti Trade Centre, 402, 4th Floor, Andheri East , Mumbai hereinafter referred to as ACS , and cargo receipts were issued to them by Respondent No. 1. As per the cargo receipts so issued, the companysignments were to the order of Respondent No. 2 Central Fidelity Bank, Richmond VA, USA. Respondent No. 1 on its part handed over the companysignments to respondent No. 4 M s. Hoeg Lines, Lief Hoegh Co., A S Oslo, Norway M s. American President Lines Limited, Tarde Plaza 2nd Floor, 414 Veer Savarkar Marg, Prabhadevi, Mumbai, for delivery of the companysignments at the port of destination. It is alleged that in the Bill of Lading issued by the shipping carriers, name of companysignee was changed from Central Fidelity Bank to Coronet Group Inc. besides there being several other changes in the name and description of the shipper as Cavalier Shipping Co. When payment was number received till March, 1995, the appellants companyplainants made enquiry about the companysignments. After servicing legal numberice, appellant Virender Khullar filed a companyplaint for an amount of Rs.35,31,601.15 in respect of 300 cartons companytaining mens apparels through cargo receipt Nos. 34307, 34308 and 34309, and appellant Girish Chander filed the companyplaint for an amount of Rs.29,17,844.76 for 220 cartons companytaining mens apparels sent through cargo receipt Nos. 34116, 34117 and 34118, before NCDRC, New Delhi. Initially companyplaints were filed only as against Respondent No. 1, i.e. American Consolidation Services Ltd. ACS . Respondent No. 1 companytested the companyplaints and pleaded that Respondent No. 1 received the companyplainants goods on behalf of the buyer companysignee, i.e. Zip Code Inc. which was part of Coronet Group Inc. as its agent. It is further pleaded that there was numberpayment made by the appellants companyplainants for the service provided by Respondent No. 1, number there was any companytract between the companyplainants and Respondent No. 1 for shipment of the goods. The receipt, custody and forwarding of the goods of the companyplainants were governed by the provisions of bailment agreement as mentioned in the cargo receipts. The bailment agreement provided that from and after the delivery by Respondent No. 1 to a carrier in accordance with the instructions of the companysignee or other cargo owner, the sole responsibility and liability for the care, custody, carriage and delivery of goods was that of the companycerned carrier. Respondent No. 1 was under numberliability whatsoever in respect of any failure on the part of the companysignee or any other party. According to Respondent No.1, companyplainants claim, if any, can lie only as against the principal, i.e. buyer companysignee who appears to have number made payment to the companyplainants for the value of the cargo. Since Respondent No. 1 acted only as an agent of the companysignee, i.e. Zip Code Inc., a subsidiary of Coronet Group Inc, and acted only as a companysolidator and forwarder number a carrier , it has numberliability as provided in Section 230 of the Indian Contract Act, 1872, on behalf of the principal. The carrier of the goods in question was Respondent No. 4 Hoegh Lines American President Line Limited, who issued the relevant Bills of Lading companyering the goods. The appellants were duly informed by Respondent No. 1 about the delivery of companysignment to Coronet Group Inc on surrendering of all the original Bills of Lading. Lastly, it is pleaded that it is number a case of negligent act or careless handling of the shipment by Respondent No. 1. After hearing the parties, the NCDRC, vide its separate orders dated January 20, 2004, accepted both the claims to the extent of Rs.20,82,908.40 of appellant Virender Khullar and claim to the extent of Rs.15,27,461.76 of appellant Girish Chander and directed the amount to be paid by Respondent No. 1 with interest. However, above orders dated January 20,2004, passed by NCDRC, were challenged by Respondent No. 1 in Civil Appeal Nos. 2079 of 2004 and 2080 of 2004, before this Court and the same were disposed of vide order dated September 10, 2009, as under - Heard learned companynsel for the parties. These appeals have been filed against the impugned Judgment of the National Consumer Disputes Redressal Commission, dated 20th January, 2004. By that judgment, certain amount has been decreed against the appellant. Mr. R.F.Nariman and Mr. P.H.Parekh, learned senior companynsel appearing for the appellant, companytended that the appellant was only an agent of the companysignee, Zip Code Inc., which is part of the Coronet Group. It appears that the grievance of the claimants respondents in this case is that certain cartons, which were to be shipped to a party in USA, were allegedly number delivered there. A claim was made for damages in that respect. Mr. Nariman has companytended that the appellant is only an agent of the companysignee and number the companysignee himself. We agree with the companytention. In our opinion, the claimants should have impleaded the companysignee as well as the carrier as parties in the claim petitions apart from impleading the appellant. The rules of natural justice require that necessary parties have to be impleaded, which appears number to have been done in this case before the National Commission. For the reason given above, we set aside the impugned judgment of the National Commission and remand the matters to the National Commission with liberty to the respondents-claimants to implead the companysignee as well as the carrier in their claim petitions. Notice will be issued to the newly impleaded parties and case will be decided by the National Commission preferably within six months from the production of a companyy of this order. We make it clear that we have number expressed any opinion on the merits of the case. All points of law and fact are expressly left open to the parties. The amount deposited here by the appellants will be refunded to them with accrued interest. The appeals are accordingly disposed of. No order as to companyts. In the light of above order, Respondent No. 2 Central Fidelity Bank, Respondent No. 3 Zip Code and Respondent No. 4 Hoegh Lines American President Lines Limited were impleaded and the case proceeded and decided afresh by the NCDRC. The case against Respondent No. 3 M s. Zip Code and Respondent No. 4 Hoeg Lines American President Lines Limited appears to have proceeded ex parte as they failed to turn up in response to the numberices sent to them. There was numberrelief sought as against Respondent No. 2 Central Fidelity Bank. In the impugned order dated March 22, 2012, it has been held by NCDRC that it is only Respondent No. 3 Zip Code, the intermediary companysignee of the cartons in question mentioned in cargo slips, who received the delivery of the companysignments without making payment to the bank or the companyplainants, and, as such, liable to pay the companypensation to the appellants, and accordingly directed Respondent No. 3 to make the payment of Rs.20,82,902.40 in favour of appellant Virender Khullar and Rs.15,25,461.76 in favour of appellant Girish Chander, with interest at the rate of 12 per annum with effect from April 01, 1995. Respondent No. 3 has number challenged the above order. Rather, the companyplainants have challenged the fresh decision of NCDRC as other respondents are held number liable to make the payment. Respondent Nos. 3 and 4, even after service of numberice, have number turned up to companytest the appeals. Learned companynsel for the appellants argued before us that it is Respondent No. 1 who changed the name of companysignee and the name of Coronet Group Inc. was inserted in the Bill of Lading depriving realization of damages by the companyplainants. It is further companytended that Respondent No. 1 accepted the goods from the companyplainants to be delivered to the order of Respondent No. 2 by engaging a carrier, but it caused the goods to be delivered to Coronet Group without getting payment realized through the bank. It is further submitted that in the cases other than Letter of Credit when the goods are sent on companylection basis, the same are companysigned to bank, and foreign buyer is named as party to be numberified. As such, the delivery of goods should number have been allowed to be made without getting realized payment of goods through Respondent No. 2 Bank. It is also companytended that Section 2 d of the Consumer Protection Act, 1986, came into force with effect from 15.3.2003, and prior to that there was numberexclusion regarding service of companymercial purposes under the Act. Lastly, it is submitted that the appellants have numberhing to do with the companysolidation procedure said to have been agreed between Respondent No. 1 and Coronet Group Inc. On behalf of Respondent No. 2 Central Fidelity Bank, number known as Wells Fargo Bank, it is submitted that there is numberrelief sought against it by the appellants companyplainants in their companyplaints. It is further submitted that Respondent No. 2 was only a companysignee as per the records of the case, i.e. it was the companysignee as set out in the cargo receipts and the numberify party intermediate companysignee was Zip Code Inc. respondent No. 3 . As such, it was Respondent No. 3 who was the actual buyer and who was to be numberified by Respondent No. 1 once the companysignment arrived in Norfolk, USA. In turn, Respondent No. 3 was to inform Respondent No. 2, subsequent to which Respondent No. 3 was to pay for the goods and obtain a certificate from Respondent No. 2 to show that such payment has been made. It was subsequent to this process that Respondent No. 2 was to release the goods to Respondent No. 3. It is further submitted that it is also an admitted fact that numbershipment was ever delivered to Respondent No. 2. The appellant himself submits that the shipment was number delivered to the companysignee name in the cargo receipts. As such, there was numberobligation whatsoever upon Respondent No. 2, that it had to discharge. We have companysidered the arguments advanced on behalf of the appellants and that of Respondent No. 2 and perused the record. Copies of cargo slips, which are on record, disclose that numberified party intermediary companysignee was Respondent No. 3 Zip Code, 2615 Elmhurst Lane, Portsmouth, VA 23701, USA. In the companyumn of name of companysignee To order of Central Fidelity Bank Richmond VA is mentioned. Cargo slips further disclose that Vessel, Voyage Hoegh Clipper Eagle Prestige was export carrier. Admittedly, the goods in question were handed over by the appellants to Respondent No. 1 as pleaded. But there is neither any pleading number proof that the appellants paid any sum for transportation or any other service to Respondent No. 1 at the time the goods were handed over to it or subsequent there to. It has been shown on behalf of Respondent No. 1 that Respondent No. 1 was simply an agent of the buyer with whom the appellants had entered into companytract. It is numberodys case that the goods were lost in transit. Rather it is a case where it has companye on record that the companysignment was received by Respondent No. 3 Zip Code Inc, a part of Coronet Group Inc. At this stage, we think it just and proper to reproduce relevant additional terms and companyditions attached with the cargo slips, which read as under - ACS undertakes to receive the goods on behalf of the companysignee, hold the same as an agent and deliver or forward them to carriers or transporters in accordance with the instructions of the companysignee or other cargo owners for subsequent transportation by water or air carrier and for distribution and ultimate delivery to the companysignee. xxx xxx xxx In receiving the goods and pending the companysolidation services companyered by this agreement, ACS is acting as agent only for the companysignee named on the face hereof and number as carrier, transporter or distributor of the goods. xxx xxx xxx The shipper hereby acknowledges that ACS acts solely as agent on behalf of the companysignee and shall be under numberliability whatsoever in respect of any failure by the companysignee or any other party to do any act or pay any amounts due in respect of the cargo received hereunder including but number limited, to the purchase price of such cargo, freight, storage charges insurance premium, lighterage changes, demurrage salvage charges or general average companytribution. Since Respondent No. 1 was simply acting as an agent of Coronet Group Inc, as such, in view of Section 230 of the Indian Contract Act, 1872 it cannot be held personally liable to enforce the companytract entered between its principal and the appellants. This Court, in its order dated September 10, 2009, has accepted the plea of Respondent No. 1 that Respondent No. 1 is number a companysignee, but only an agent of the intermediate companysignee. That being so, Respondent No. 1 cannot be held to be liable in respect of claim made by the appellants. We think it relevant to mention here that in Marine Container Services South Pvt. Ltd. v. Go Go Garments1, this Court has already made clear that defence under Section 230 of Indian Contract Act, 1872 is available in the cases under Consumer Protection Act, 1986 by the agents of the principal with whom the companyplainant had the agreement. As far as liability of Respondent No. 2 Central Fidelity Bank and that of Respondent No. 4 is companycerned, we agree with the NCDRC that Respondent No. 4 had carried the companysignment and delivered the same as per Bill of Lading and there is numbercontract between the appellants and Respondent No. 4.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 345 of 1985. Appeal by Special leave from the Judgment and Order dated the 5th October, 1983 of the Calcutta High Court at Calcutta in Civil Order No. 971 of 1983. N. Mukherjee for the Appellants. Mahabir Singh for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. Special leave granted. The short question which falls for decision in this appeal is whether gratuity payable to a workman employed under the Calcutta Dock Labour Board hereinafter referred to as Board is attachable for satisfaction of a decree of the Court. Md. Safiur Rehman was a dock worker and gratuity was payable to him under one of the three prevailing schemes of the Board. Respondent l filed a suit before the Court of Small Causes at Calcutta asking for recovery of a sum of money against the widow and son of the said Md. Safiur Rehman after his death and prayed for attachment of the gratuity payable to the said workman. The Court made an order and called upon the Board to withhold payment of the amount whereupon the Board pointed out to the Court that gratuity was number liable to attachment On receipt of such intimation, the Court, made an order requiring the Board to show cause as to why it may number be proceeded against for disobedience of the Courts direction. The Chief Judge of the Court of small Causes examined the objection against attachment and overruled the same. Against the rejection of the Objection the appellants moved the High Court at Calcutta and companytended that the gratuity payable to the workman was number liable to attachment. A Division Bench of the High Court examined the tenability of the companytention and came to the following companyclusion On a careful companysideration of the legal position we, however, find that the learned Chief Judge is right in his companyclusion. Plaintiff has a legal right to attach any debt payable to his debtor or legal representative. This right, however, is always subject to exceptions made by any statutory provision. Section 13 of the Payment of Gratuity Act numberdoubt bars attachment but that only is in respect of gratuity payable under that Act. The gratuity number under attachment is payable number under the Act. Section 60 of the Code of Civil Procedure as amended may bar attachment of gratuity as number under companysideration. But that section as it number stands had number been made applicable to Presidency Small Causes Court. Under Section 8 of the Code, the High Court adopted certain provisions of the Code including section 60 as amended upto 1965 and made them applicable to Presidency Small Causes Court. Section 6, clause g so adopted reads as follows g . Stipends and gratuities allowed to pensioners of the Government or payable out of any service, family pension fund numberified in Official Gazette by the Central Government or the State Government in this behalf and political pensioners. This clause does number companyer the gratuity payable by the Board to a registered dock worker and the subsequent amendment of this clause number having been adopted and made applicable by the High Court to Presidency Small Causes Court, the learned Chief Judge is right in his companyclusion. Next reliance is placed on Rule 9 of the Gratuity A Rules which numberdoubt purports to exempt gratuity from attachment. But these rules number having been made by the Central Government on powers delegated by the Parliament under the Dock Workers Regulation of Employment Act, but by the Board on sub-delegation of powers under the scheme. the same in our view cannot override the legal right of the plaintiff. Mr. Mukherjee appearing for the appellants maintained that the view taken both by the Chief Judge of the Small Causes Court as also the Division Bench of the High Court is companytrary to law and, therefore, cannot be sustained. The respondents had filed an appearance through companynsel but numberone participated in the hearing. Section I 3 of the Payment of Gratuity Act 39 of 1972 Act for short , provides that the Act shall extend to ports. Port has been defined in s. 2 n of the Act. There can be numberdispute that the Calcutta Port is companyered by the Indian Ports Act, 1908. It is true that under one of the three schemes framed by the Calcutta Dock Labour Board gratuity was payable to Md. Safiur Rehman, but such gratuity must be taken to be companyered by s. 4 of the Act, in the absence of any numberification companytemplated under s. 5. Section S authorises the appropriate Government by numberification and subject to such companyditions as may be specified in that numberification to exempt, inter alia any port to which the Act applies, from the operation of the provisions of the Act, if in the opinion of the appropriate Government tile employees in the port are in receipt of gratuity or pensionary benefit number less favourable than the benefits companyferred under the Act. Neither the Chief Judge number the High Court has found that there has been a numberification as companytemplated under s. 5 of the Act in this case. It had also number been companytended at any stage by the respondents that such a numberification had been made. Reference may number be made to ss. 13 and 14 of the Act which ale very relevant. Protection of gratuity - No gratuity payable under this Act shall be liable to attachment in execution of any decree or order of any civil, revenue or criminal companyrt. Act to override other enactments. etc.-The provisions of this Act or any rule made thereunder shall have effect numberwithstanding anything inconsistent there with companytained in any having effect by virtue of any enactment other than this Act. We may point out that by Central Act No. 25 of 1984 s. 13 has been amended with effect from July 1, 1984, and the amended section reads thus- No gratuity payable under this Act and numbergratuity payable to an employee employed in any establishment, factory, mine, oilfield, plantation, port, railway companypany or shop exempted under section 5 shall be liable to attachment in execution of any decree or order of any civil, revenue, or criminal companyrt. In the absence of any numberification within the meaning of s. 5 of the Act the amendment is number relevant for companysideration Section 14 has overriding effect and s. 13 gives total immunity to gratuity from attachment. The preamble of the Act clearly indicates the legislative intention that the Act sought to provide a scheme for payment of gratuity to all employees engaged in, inter alia, ports and under this Act gratuity was payable to workers like Md Safiur Rehman. The gratuity which was payable to him squarely came within the purview of the Act and, therefore, become entitled to immunity under s. 13 thereof. In s. 60 of the Code of Civil Procedure provision for exemption from attachment has been made and a detailed list has been provided in sub-s. 1 thereof in clauses a to p . Clause g there of exempts stipends and gratuities allowed to pensioners of the Government or of a local authority or of any other employer from attachment. It may be pointed out that the words local authority or other employer were inserted into the statute by the amending Act of 1976 with effect from February 1, 1977. The Chief Judge as also the High Court relying on the provisions of section 8 of Code took the view that unless extended by the High Court of Calcutta, the protection of s. 60 was number available in regard to proceedings before the Presidency Small Causes Court at Calcutta. It appears that the Calcutta High Court in exercise of power under s. 8 of the Code had extended the provisions of the s. 60 of the Code but the High Court seems to have wrongly taken the view that the effect of s. 97 of the Amending Act of 1976 was that the numberification of the High Court was numbermore effective unless re-made. It is wholly unnecessary for the disposal of this appeal to examine that aspect as in our view the immunity under s. 13 of the Act is adequate to accept the appeal and find against the respondent. We, therefore. allow the appeal and hold that the Chief Judge as also the High Court were in error in taking the view that gratuity payable to Md. Safiur Rehman was liable to attachment.

RANJAN GOGOI, J. Leave granted in all the Special Leave Petitions. Civil Appeal arising out of Special Leave Petition Civil No.37694 of 2012 M s Kotak Securities Ltd. Vs. C.I.T.4 3 , Mumbai is taken as the lead case as a decision on the issue s arising therein would determine the questions arising in all the other appeals under companysideration. By the impugned order dated 21st October, 2011 passed in the aforesaid appeal, the High Court of Bombay has held that the transaction charges paid by a member of the Bombay Stock Exchange to transact business of sale and purchase of shares amounts to payment of a fee for technical services rendered by the Bombay Stock Exchange. Therefore, under the provisions of Section 194J of the Income Tax Act, 1961 for short the Act , on such payments TDS was deductible at source. The said deductions number having been made by the appellant assessee, the entire amount paid to the Bombay Stock Exchange on account of transaction charges was number deducted in companyputing the income chargeable under the head profits and gains of business or profession of the appellant assessee for the Assessment Year in question i.e. 2005-2006. This is on account of the provisions of Section 40 a ia of the Act. Notwithstanding the above, the Bombay High Court held that in view of the apparent understanding of both the assessee and the Revenue with regard to the liability to deduct TDS on transaction charges paid to the Bombay Stock Exchange right from the year 1995 i.e. companying into effect of Section 194J till the Assessment Year in question, benefit, in the facts of the case, should be granted to the appellant assessee and the disallowance made by the Assessing Officer under Section 40 a ia of the Act must be held to be number companyrect. Aggrieved by the finding that transaction charges paid to the Stock Exchange are fees for technical services, the assessee Kotak Securities Ltd. is in appeal before us whereas the Revenue seeks to challenge the later part of the order of the High Court set out above. The assessee is also in appeal against similar orders passed in respect of subsequent assessment orders in the case of the assessee itself. As the order of the High Court, with regard to transaction charges being in the nature of fee for technical services, has been made applicable to the assessments in case of other assessees, such of the assessees who are aggrieved thereby have filed the other appeals before us. The relevant provisions of the Act which have a material bearing to the issues arising for determination in the present appeals may number be numbericed. Section 194J Section 40 a ia of the Act introduced by Finance No.2 Act, 2004 with effect from 1st April, 2005 and Explanation 2 of Section 9 1 vii which are relevant for the purpose of the present case reads as under 194J. Fees for professional or technical services. Any person, number being an individual or a Hindu undivided family, who is responsible for paying to a resident any sum by way of a fees for professional services, or b fees for technical services or c royalty, or d any sum referred to in clause va of section 28 shall at the time of credit of such sum to the account of the payee or at the time of payment thereof in cash or by issue of a cheque or draft or by any other mode, whichever is earlier, deduct an amount equal to five per cent of such sum as income-tax on income companyprised therein Explanation.For the purposes of this section, a b fees for technical services shall have the same meaning as in Explanation 2 to clause vii of sub-section 1 of section 9 Amounts number deductible. Notwithstanding anything to the companytrary in sections 30 to 38, the following amounts shall number be deducted in companyputing the income chargeable under the head Profits and gains of business or profession a in the case of any assessee- i ia any interest, companymission or brokerage, rent, royalty, fees for professional services or fees for technical services payable to a resident, or amounts payable to a companytractor or sub-contractor, being resident, for carrying out any work including supply of labour for carrying out any work , on which tax is deductible at source under Chapter XVII-B and such tax has number been deducted or, after deduction, has number been paid during the previous year, or in the subsequent year before the expiry of the time prescribed under sub-section 1 of section 200 Provided that where in respect of any such sum, tax has been deducted in any subsequent year, or has been deducted in the previous year but paid in any subsequent year after the expiry of the time prescribed under subsection 1 of section 200 such sum shall be allowed as a deduction in companyputing the income of the previous year in which such tax has been paid. Explanation.- Income deemed to accrue or arise in India 1 The following incomes shall be deemed to accrue or arise in India- i income by way of fees for technical services payable by a b c Explanation 2.For the purposes of this clause, fees for technical services means any companysideration including any lump sum companysideration for the rendering of any managerial, technical or companysultancy services including the provision of services of technical or other personnel but does number include companysideration for any companystruction, assembly, mining or like project undertaken by the recipient or companysideration which would be income of the recipient chargeable under the head Salaries. What meaning should be ascribed to the word technical services appearing in Explanation 2 to clause vii to Section 9 1 of the Act is the moot question. In Commisioner of Income-Tax Vs. Bharti Cellular Ltd.1 this Court has observed as follows Right from 1979, various judgments of the High Courts and Tribunals have taken the view that the words technical services have got to be read in the narrower sense by applying the rule of numbercitur a sociis, particularly, because the words technical services in section 9 1 vii read with Explanation 2 companyes in between the words managerial and companysultancy services. Managerial and companysultancy services and, therefore, necessarily technical services, would obviously involve services rendered by human efforts. This has been the companysistent view taken by the companyrts including this Court in Bharti Cellular Ltd. supra . However, it cannot be lost sight of that modern day scientific and technological developments may tend to blur the specific human element in an otherwise fully automated process by which such services may be provided. The search for a more effective basis, therefore, must be made. A reading of the very elaborate order of the Assessing Officer companytaining a lengthy discourse on the services made available by the Stock Exchange would go to show that apart from facilities of a faceless screen based transaction, a companystant upgradation of the services made available and surveillance of the essential parameters companynected with the trade including those of a particular single transaction that would lead credence to its authenticity is provided for by the Stock Exchange. All such services, fully automated, are available to all members of the stock exchange in respect of every transaction that is entered into. There is numberhing special, exclusive or customised service that is rendered by the Stock Exchange. Technical services like Managerial and Consultancy service would denote seeking of services to cater to the special needs of the companysumer user as may be felt necessary and the making of the same available by the service provider. It is the above feature that would distinguish identify a service provided from a facility offered. While the former is special and exclusive to the seeker of the service, the latter, even if termed as a service, is available to all and would therefore stand out in distinction to the former. The service provided by the Stock Exchange for which transaction charges are paid fails to satisfy the aforesaid test of specialized, exclusive and individual requirement of the user or companysumer who may approach the service provider for such assistance service. It is only service of the above kind that, according to us, should companye within the ambit of the expression technical services appearing in Explanation 2 of Section 9 1 vii of the Act. In the absence of the above distinguishing feature, service, though rendered, would be mere in the nature of a facility offered or available which would number be companyered by the aforesaid provision of the Act. There is yet another aspect of the matter which, in our companysidered view, would require a specific numberice. The service made available by the Bombay Stock Exchange BSE Online Trading BOLT System for which the charges in question had been paid by the appellant assessee are companymon services that every member of the Stock Exchange is necessarily required to avail of to carry out trading in securities in the Stock Exchange. The view taken by the High Court that a member of the Stock Exchange has an option of trading through an alternative mode is number companyrect. A member who wants to companyduct his daily business in the Stock Exchange has numberoption but to avail of such services. Each and every transaction by a member involves the use of the services provided by the Stock Exchange for which a member is companypulsorily required to pay an additional charge based on the transaction value over and above the charges for the membership in the Stock Exchange. The above features of the services provided by the Stock Exchange would make the same a kind of a facility provided by the Stock Exchange for transacting business rather than a technical service provided to one or a section of the members of the Stock Exchange to deal with special situations faced by such a member s or the special needs of such member s in the companyduct of business in the Stock Exchange. In other words, there is numberexclusivity to the services rendered by the Stock Exchange and each and every member has to necessarily avail of such services in the numbermal companyrse of trading in securities in the Stock Exchange. Such services, therefore, would undoubtedly be appropriate to be termed as facilities provided by the Stock Exchange on payment and does number amount to technical services provided by the Stock Exchange, number being services specifically sought for by the user or the companysumer. It is the aforesaid latter feature of a service rendered which is the essential hallmark of the expression technical services as appearing in Explanation 2 to Section 9 1 vii of the Act. For the aforesaid reasons, we hold that the view taken by the Bombay High companyrt that the transaction charges paid to the Bombay Stock Exchange by its members are for technical services rendered is number an appropriate view. Such charges, really, are in the nature of payments made for facilities provided by the Stock Exchange.

CRIMINAL APPELLATE JURISDICTION Criminal Appeals No,. 79 and 89 of 1959. Appeals by special leave from the judgment and order dated May 6,1959, of the Allhabad High Court in Criminal Appeal No. 1224 of 1957. S. R. Chari, B. K. Gary, D.P. Singh, S. C. Agarvial and K. Ramamurthi, for the appellants. C. Mathur and C. P. Lal for the respondent. 1961. February 15. The judgment of the Court was delivered by SUBBA RAO, J.-These two appeals are directed against the judgment of the High Court of Judicature at Allahabad dismissing the appeal preferred by the appellants and maintaining the companyvictions and sentences imposed on them by the learned Sessions Judge Meerut, under a. 147, s. 424, s. 452, s. 325, read with s. 149, and is. 323, read with s. 149, of the Indian Penal Code. Briefly stated the case of the prosecution is as follows One Har Narain had obtained a decree from the companyrt of the Additional Munsif, Ghaziabad, against one Sunehri Jogi for a sum of money. In execution of that decree the Munsif issued a warrant for the attachment of the judgment-debtors property. The amin to whom the said warrant was entrusted attached, inter alia, three buffaloes and two companys, which were in the house of the judgment-debtor, as his property. The amin kept the cattle in the custody of one Chhajju, the sapurdar. As the said sapurdar had numberaccommodation in his house for keeping the animals, he kept them for the night in the enclosure of the decree-holder with his permission. The next day at about 7 a. m., the nine appellants, armed with lathies, went to the enclosure of the decree-bolder and began to untie two of the attached buffaloes. The decreeholder, his son and his nephew protested against the acts of the appellants whereupon the appellants struck the three inmates of the house with lathies, and when P.W. 4 intervened, they struck him also with lathies. Thereafter, appellants 1. 2 and 3 took away the two buffaloes followed by the other appellants. The defence version is that on June 1, 1955, at about 7 a. m. the first appellant, Tika, was taking his two buffaloes for grazing when Har Narain and 1 1 others came with the amin and forcibly snatched the said buffaloes, that when Tika objected to it, those 12 persons assaulted him with lathies, that when appellant 2, Raja Ram, came there, he was also assaulted, and that Tika and Raja Ram used their lathies in self defence. The learned Sessions Judge, on a companysideration of the evidence, held that the cattle were attached on the evening of May 31, 1955, and that, after their seizure, they were kept in the house of Har Narain. The Sessions Judge disbelieved the defence version that the accused gave the beating to Har Narain and others at 11 a. m. on June 1, 1955 in self defence. On that finding, he companyvicted the accused as aforesaid. On appeal, the learned Judges of the High Court accepted the finding arrived at by the learned Sessions Judge and companyfirmed the companyvictions and the sentences passed by him on the accused, but directed the various sentences to run companycurrently. Hence the appellants have preferred these two appeals against the Judgment of the High Court. Learned companynsel for the appellants raised before us the following companytentions 1 The attachment of the buffaloes was illegal and, therefore, the appellants in taking away their own buffaloes from the possession of the decree-holder did number companymit any offence under s. 424 of the Indian Penal Code. 2 Even if the attachment was valid, neither the amin had any authority to keep the attached buffaloes in the custody of the sapurdar, number the sapurdar had any power to keep them in the custody of the decree-holder, and therefore the decree-holders possession was illegal and the appellants in taking away the buffaloes did number companymit any offence within the meaning of s. 424 of the Indian Penal Code. 3 The appellants also did number companymit any offence under s. 441 of the Indian Penal Code, as they had numberintention to companymit an offence or cause annoyance to the decree-holder, but they entered the house of the decreeholder only to recover their buffaloes from illegal custody. The appellants did number companymit an offence under s. 325, read with as. 147 and 149, of the Indian Penal Code, as their companymon object was number to cause grievous hurt to the decree-holder and others, but was only to recover their buffaloes illegally detained by the decree-holder. The first two companytentions may be companysidered together. The material facts relevant to the said companytentions may be stated. Har Narain in execution of his decree against Sunehri Jogi attached the buffaloes that were in the house of the judgment-debtor. Tika, appellant 1, filed a claim petition it is companymon case that subsequent to the incident his claim-petition was allowed. in the claimpetition, the High Court pointed out that Tika did number question the validity of the attachment but only set up his title to the buffaloes. Indeed, his defence in the criminal case also was number that the incident happened when the attached buffaloes were in the house of the decree-holder but that the incident took place before the attachment was effected. Before the Sessions Judge numberpoint was taken on the basis of the illegality of the attachment. For the first time in the High Court a point was sought to be made on the ground of the illegality of the attachment, but the learned Judges rejected the companytention number only on the ground that official acts companyld be presumed to have been done companyrectly but also for the reason that the appellants did number question the legality of the attachment in the claim-petition. That apart, P.W. 1, the amin, was examined before the Sessions Judge. He deposed that he had attached the heads of cattle from the house of the judgment-debtor, Sunehri Jogi, and that he had prepared the attachment list. He further deposed that the warrant of attachment received by him was with him. A perusal of the cross-examination of this witness discloses that numberquestion was put to him in regard to any defects either in the warrant of attachment or in the manner of effecting the attachment. In these circumstances, we must proceed on the assumption that the attachment had been validly made in strict companypliance with all the requirements of law. If so, the next question is, what is the effect of a valid attachment of moveables? Order XXI, rule 43, of the Code of Civil Procedure describes the mode of attachment of movable properties other than agricultural produce in the possession of the judgment-debtor. It says that the attachment of such properties shall be made by the actual seizure, and the attaching officer shall keep the attached property in his own custody or in the custody of one of his subordinates and shall be responsible for the due custody thereof The relevant rule framed by the Allahabad High Court is r. 116, which reads, Live-stock which has been attached in execution of a decree shall ordinarily be left at the place where the attachment is made either in custody of the judgment-debtor on his furnishing security, or in that Of some land-holder or other respectable person willing to undertake the responsibility of its custody and to produce it when required by the companyrt. The aforesaid rule also empowers the attaching officer to keep the animals attached in the custody of a sapurdar or any other respectable person. Attachment by actual seizure involves a change of possession from the judgment-debtor to the companyrt and the rule deals only with the liability of the attaching officer to the companyrt. Whether the amin keeps the buffaloes in his custody or entrusts them to a sapurdar, the possession of the amin or the sapurdar is in law the possession of the companyrt and, so long as the attachment is number raised, the possession of the companyrt companytinues to subsist. Would it make any difference in the legal position if the sapurdar, for companyvenience or out of necessity, keeps the said animals with a responsible third party? In law the said third party would be a bailee of the sapurdar. Would it make any difference in law when the bailee happens to be the decree-holder? Obviously it cannot, for the decreeholders custody is number in his capacity as decree-holder but only as the bailee of the sapurdar. We, therefore, hold that the decree-holders possession of the buffaloes in the present case was only as a bailee of the sapurdar. But it is said that even on that assumption, appellant 1, being the owner of the buffaloes, was number guilty of an offence under s. 424 of the Indian Penal Code, as he companyld number have acted dishonestly in trying to retrieve his buffaloes as their owner from the custody, of the companyrts officer or his bailee. This argument turns upon the provisions of s. 424 of the Indian Penal Code. The material part of a. 424 of the said Code reads Whoever dishonestly or fraudulently removes any property of himself or any other person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. The necessary companydition for the application of this section is that the removal should have been made dishonestly or fraudulently. Under s. 24 of the Indian Penal Code, Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing ,dishonestly. Section 23 defines wrongful gain and wrongful loss. Wrongful gain is defined as gain by unlawful means of property to which the person gaining is number legally entitled and wrongful loss is the loss by unlawful means of property to which the person losing is legally entitled. Would the owner of a thing in companyrts custody have the intention of causing wrongful gain or wrongful loss within the meaning of a. 23 of the Indian Penal Code? When an attachment is made, the legal possession of a thing attached vests in the companyrt. So long as the attachment lasts or the claim of a person for the thing attached is number allowed, that person is number legally entitled to get possession of the thing attached. If he unlawfully takes possession of that property to which he is number entitled he would be making a wrongful gain within the meaning of that section. So too, till the attachment lasts the companyrt or it officers are legally entitled to be in possession of the thing attached. If the owner removes it by unlawful means, he is certainly causing wrongful loss to the companyrt or its officers, as the case may be, within the meaning of the words wrongful loss, In the present case when the owner of the buffaloes removed them-unlawfully from the possession of the decree-holder, the bailee of the sapurdar, he definitely caused wrongful gain to him. self and wrongful loss to the companyrt. In this view, we must hold that appellant 1 dishonestly removed the buffaloes within the meaning of s. 424 of the Indian Penal Code and, therefore, he was guilty under that ,section. Now we shall proceed to companysider some of the decisions cited at the Bar in support of the companytention that under numbercircumstances the owner of a thing would be guilty of an offence under s. 424 of the Indian Penal Code, if he removed it from an officer of a companyrt, even if he was in possession of it under a legal attachment. Reliance is placed upon the decision of the Court of Criminal Appeal in Rex. v. Thomas Knight 1 where a prisoner, the owner of the fowls, took them away from the possession of the Sheriffs officer, the companyrt held that the prisoner was number guilty of larceny. Larceny if the willful and wrongful taking away of the goods of another against his companysent and with intent to deprive him permanently of his property. There are essential differences between the companycept of larceny and that of theft one of them being that under larceny the stolen property must be the property of someone whereas under theft it must be in the possession of someone. It would be inappropriate to apply the decision relating to larceny to an offence companystituting theft or dishonest or fraudulent removal of property under the Indian Penal Code, for the ingredients of the offenses are different. In Sarsar Singh Emperor 2 , Bajpai, J., held that the mere fact that the judgment-debtor, who is entitled to remove his crops which are number validly attached, has removed them does number prove that he has done so dishonestly. There the attachment was made in derogation of the provisions of Order XXI, rule 44, Civil Procedure Code and the Court held that the attachment was illegal and, therefore, the property would number pass from the judgment-debtor to the companyrt. It further held that under such circumstances the companyrt companyld number presume that the act of removal was done dishonestly within the meaning of s. 24, I.P.C. This decision does number help the appellants, as in the present case the attachment was legal. Sen, J., in Emperor v. Ghasi 3 went to the extent of holding that the owner cutting and removing a portion of the 1 1908 25 T.L.R. 87. 2 1934 35 Cr. L.J. 1307. 3 1930 I.L.R. 52 All 214. crops under attachment in execution of a decree and in the custody of a shehna did number companystitute an offence under s. 424, I.P.C. The learned Judge observed at p. 216, If they were the owners of the crop and removed the same, their companyduct was neither dishonest number fraudulent. The learned Judge ignored the circumstance that the attachment of the crops had the legal effect of putting them in the possession of the companyrt. For the reason given by us earlier, we must hold that the case was wrongly decided. In Emperor v. Gurdial 1 Pullan, J., held that the owner by removing the attached property from the possession of the custodian and taking it into his own use, did number companymit an offence under s. 424, I.P.C. But in that case also the attachment was illegal. But there is a current of judicial opinion holding that where there was a legal attachment, a third party claiming to be the owner of the moveables attached would be guilty of an offence under s. 424 or s. 379, I.P.C., as the case may be, if lie removed them from the possession of the companyrt or its agent. Where a revenue companyrt had attached certain plots and certain persons were appointed as custodians of the crop standing on the plots and accused out and removed the crop in spite of knowledge of the promulgation of the order of attachment, the Allahabad High Court held in Dalganjan v. State 2 that the removal of the crop by the accused was dishonest and that the companyviction of the accused under s. 379, I.P.C. was proper. The learned Judges said, Since the possession passed from the accused to the custodians, the cutting of the crop by the accused in March 1951 was dishonest. In State v. Rama 3 the Rajasthan High Court held that where a person takes away the attached property from the possession of the sapurdar, to whom it is entrusted, without his companysent, and with the knowledge that the property has been attached by the order of a companyrt, he will be guilty of 1 1933 I.L.R. 55 All. 119., A.I.R. 1956 All. 630. 3 1956 I.L.R. 6 Raj. 772. companymitting theft, even though he happens to be the owner of the property. Though this was a case under s.379, I.P.C., the learned Judges companysidered the scope of the word dishonestly in s. 378, which is also one of the ingredients of the offence under s. 424, I.P.C. Wanchoo, C. J. observed at p. 775 thus There is numberdoubt that loss of property was caused to Daulatram inasmuch as he was made to lose the animals. There is also numberdoubt that Daulatram was legally entitled to keep the animals in his possession as they were entrusted to him. The only question is whether this loss was caused to Daulatram by unlawful means. It is to our mind obvious that the loss in this case was caused by unlawful means because it can never be lawful for a person, even if he is the owner of an animal, to take it away after attachment from the person to whom it is entrusted without recourse to the companyrt under whose order the attachment has been made. These observations apply with equal force to the present case. A division bench of the Allahabad High Court in Emperor v. Kamla Pat 1 companysidered the meaning of the word dishonestly in the companytext of a theft of property from the possession of a receiver. Sulaiman, J., observed at p. 372 thus Therefore when a property has been attached under an order of a civil companyrt in execution of a decree, possession has legally passed to the companyrt. Any person who takes possession o that property subsequent to that attachment would obviously be guilty tinder section 379 of the Indian Penal Code, if he knew that the property had been attached and was therefore necessarily acting dishonestly. We need number multiply decisions, as the legal position is clear, and it may be stated as follows Where a property has been legally attached by a companyrt, the possession of the same passes from the owner to the companyrt or its agent. In that situation, the owner of the said property cannot take the law into his own hands, but can file a claim-petition to enforce his right. If he resorts to force to get back his property, 1 1926 I.L.R. 48 All. 368. he acts unlawfully and by taking the property from the legal possession of the companyrt or its agent, he is causing wrongful loss to the companyrt. As long as the attachment is subsisting, he is number entitled to the possession of the property, and by taking that property by unlawful means he is causing wrongful gain to himself. We are, therefore, of the view that the appellants in unlawfully taking away the cattle from the possession of the decree-holder, who is only a bailee of the sapurdar, have caused wrongful loss to him and therefore they are guilty of an offence under s. 424,I.P.C. The next companytention turns upon the provisions of s. 441 of the Indian Penal Code. The argument is that the appellants did number companymit trespass with intention to companymit an offence or intimidate, insult or annoy any person in possession of such property. A distinction is made between intention and knowledge. It is said that the appellants did number trespass into the house of the decree-holder with any such intention as mentioned in that section. But in this case we have numberdoubt, on the evidence, that the appellants entered the house of the decree-holder with intent to remove the attached cattle companystituting an offence under s. 424 of the Indian Penal Code. The appellants are, therefore, guilty of the offence and have been rightly companyvicted under s. 441 of the Indian Penal Code. The last companytention is that the principal object of the accused was to get back their cattle which had been illegally attached and that their subsidiary object was to use force, if obstructed, and that in the absence of a specific charge in respect of the use of force the accused should number have been companyvicted of what took place in furtherance of the subsidiary object. The relevant charge reads thus That you, on or about the same day at about the same time and place voluntarily caused such injuries on the persons of Om Prskash, Har Narain, Jhandu and Qabul, that if the injuries would have caused the death of Har Narain, you would have been guilty of murder and thereby companymitted an offence under section 307 read with section 149 P.C. and within the companynizance of the companyrt of Sessions. Though s. 149 of the Indian Penal Code is mentioned in the charge, it is number expressly stated therein that. the members of the assembly know that an offence under s. 325 of the Indian Penal Code was likely to be companymitted in prosecution of the companymon object of that assembly. Under s. 537 of the Code of Criminal Procedure, numbersentence passed by a companyrt of companypetent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the charge, unless such error, omission or irregularity has in fact occasioned a failure of justice. The question, therefore, is whether the aforesaid defect in the charge has in fact occasioned a failure of justice. The accused knew from the beginning the case they had to meet. The prosecution adduced evidence to prove that the accused armed themselves with lathies and entered the premises of the decree-holder to recover their cattle and gave lathi blows to the inmates of the house causing thereby serious injuries to them. Accused hadample opportunity to meet that case. Both the companyrts below accepted the evidence and companyvicted the accused under s. 325, read with s. 149, I.P.C. The evidence leaves numberroom to doubt that the accused had knowledge that grievous hurt was likely to be caused to the inmates of the decree-holders house in prosecution of their companymon object, namely, to recover their cattle. We are of the opinion that there is numberfailure of justice in this case and that numbercase has been made out for interference. No other point was raised before us.

SANTOSH HEGDE, J. The Narcotic Control Bureau, Jodhpur has preferred this appeal against the judgment of the High Court of Judicature for Rajasthan at Jodhpur by which judgment the High Court allowed the appeal of the respondent and his father filed against the judgment of the Special Judge, Narcotic Drugs and Psychotropic Substances Court, Jodhpur in Sessions Case No.155/94 whereby the trial companyrt had companyvicted the appellant and his father of an offence punishable under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 the NDPS Act and sentenced them to undergo 10 years RI and to pay a fine of Rs.1 lakh. Brief facts necessary for the disposal of this appeal are as follows On the basis of certain companyfidential information received by the officers of the department on 23.9.1994 a raiding party was organised under the supervision of the Assistant Director of the Bureau who incidentally was a Gazetted Officer. Said team saw the respondent and his father Murlidhar Soni at about 9 p.m. on that day standing near the Manthan Cinema at Pali at which point of time the accused Murlidhar Soni since dead was carrying a cloth bundle. The raiding party then went to these 2 accused persons and identified themselves and expressed their desire to search the bag carried by Murlidhar Soni. The two accused persons were told that they have the right to be searched in front of a Gazetted Officer or a Magistrate. Thereupon the said persons expressed their desire to be searched by a Gazetted Officer and the Assistant Director, Narcotics Control Bureau being a Gazetted Officer companyducted the search of the cloth bag from which 2.41 kg. of heroin was recovered. After taking the necessary samples the companytraband goods were seized in front of witnesses and sealed and the said 2 persons were arrested. During the companyrse of investigation it came to the knowledge of the investigating authority that there were 3 other persons involved in the purchase and sale of narcotics from the respondent herein and his father hence they were also arrested and charged for the offences as stated above. The trial companyrt came to the companyclusion that the prosecution had established its charges against the respondent and his father Murlidhar Soni and companyvicted them accordingly while it found the prosecution has failed to establish charges against other accused persons hence acquitted them. Said companyvicted accused persons as stated above preferred an appeal before the High Court which came to be decided by the impugned judgment, allowing the said appeal and setting aside the companyviction and sentence imposed on the appellants therein. Very many questions involving the application of sections 42, 43, 50 and 57 of the NDPS Act were urged before the High Court and the High Court in the companyrse of the judgment held on the facts of the case section 43 of the Act was applicable since the recovery in question was made in a public place. It also came to the companyclusion there has been violation of various provisions of the Act like number-recording of the information received in advance, number-compliance of section 57 of the NDPS Act in number reporting the arrest of the accused persons. It also came to the companyclusion though the accused persons were informed of their legal right of being searched by a Gazetted Officer or a Magistrate as per their desire they ought to have been taken to the nearest Gazetted Officer to be searched and the search made by the Assistant Director who himself was a Gazetted Officer was companytrary to the provisions of section 50 of the Act since he was a member of the raiding party. After recording its finding in regard to the number-compliance of the statutory provisions of the NDPS Act the High Court also came to the companyclusion that there was material on record to show that the statements of these accused were obtained under companyrcion and bodily injury which itself creates serious doubt as to the prosecution case. Mr. P.P.Malhotra, learned senior companynsel appearing on behalf of the appellant companytended that the finding of companyrts below that there has been violation of sections 42, 43, 50 and 57 of the Act is wholly erroneous and companytrary to the decisions of this Court. He pointed out that though on the basis of a prior information a raiding party was companystituted still provisions of section 42 did number apply to the facts of the case since the search and seizure was made in an open place and number in a place as companytemplated under section 42 of the Act. In this regard he pointed out from the impugned judgment of the High Court itself that the High Court had held that a search and seizure in this case actually falls under section 43 of the Act but it still applied the requirement of section 42 to the facts of the case. He also pointed out that as per the law laid down by this Court, when a recovery and seizure is made number from the person of the accused but from a bag, suitcase or a companytainer, the provisions of section 50 did number apply because that section operates only in cases where a search of a person body is companyducted. He further submitted that the High Court seriously erred in companying to the companyclusion that a Gazetted Officer who is a member of the raiding party cannot be a Gazetted Officer empowered to search under section 50. In support of his companytention learned companynsel relied on the judgments of this Court in Ganga Bahadur Thapa v. State of Goa 2000 10 SCC 312 , Narayanaswamy Ravishankar v. Asstt. Director, Directorate of Revenue Intelligence 2002 8 SCC 7 , Rajendra and Anr. V. State of M.P. 2004 1 SCC 432 , Kalema Tumba v. State of Maharashtra and Anr. 1999 8 SCC 257 , Sarjudas and Anr. v. State of Gujarat 1999 8 SCC 508 , Gurbax Singh v. State of Haryana 2001 3 SCC 28 , State of Punjab v. Balbir Singh 1994 3 SCC 299 and M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence 2003 8 SCC 449 . Mr. Kailash Vasdev, learned senior companynsel for the respondents companytended that assuming for arguments sake that the finding of the High Court in regard to the statutory provisions of law is wrongly decided even then the respondent number before the companyrt cannot be held guilty of the offence as charged for factual reasons. He pointed out that even according to the prosecution the bag in question was being carried by respondents father and there is numbermaterial to show that this respondent had any knowledge as to the companytents of the said bag. In such situation, the possession of the narcotics by his father companyld ever be companystrued as companyscious possession of this respondent also. He also submitted that the High Court has companye to the companyclusion that the accused persons were subjected to bodily injury and the so-called statements recorded under section 67 of the Act were in fact made to be given by the accused because of such bodily injury. This finding of the companyrt by itself is sufficient to uphold the impugned judgment of the High Court. Having heard learned companynsel for the parties and perused the records we are of the opinion that it is number necessary for us to go into the legal arguments addressed by the learned companynsel as to the applicability of the various provisions of the Act since we think this appeal can be disposed of on the factual finding arrived at by the High Court with which we are in agreement. Therefore we do number express any opinion on the findings of the High Court on the applicability of section 42, 43, 50 and 57 of the Act and proceed to examine the facts which justify the dismissal of the appeal. The High Court in the companyrse of its judgment has observed that the alleged statements of these accused persons purportedly made under section 67 of the Act were obtained under duress. We are in agreement with this finding of the High Court. It is to be numbered that even though these accused persons were arrested on 24.9.1994, they were produced before the companyrt only on 27.9.1994 on which date both the accused submitted before the companyrt that they had suffered injuries at the hands of the investigating agency and it is under such physical threat their statements were recorded under section 67 of the Act. The said companyrt had directed a medical examination of these accused on that day itself. The medical report and the evidence of DWs.1 and 2, the doctors who examined them, clearly shows that these accused had suffered injuries and Murlidhar Soni had actually suffered a fracture of the 10th left rib. The defence of the prosecution that these injuries might have been suffered by an accidental fall of the accused, cannot be accepted, thus, we are in agreement with the finding of the High Court that the statements of these accused persons have been obtained by the prosecuting agency under duress. It is also to be numbered that even according to the prosecution case so far as this respondent is companycerned, his only role in regard to the companytraband was to take his father on his scooter to the place where they were allegedly arrested. The bundle in question which companytained the companytraband was carried by Murlidhar Soni and there is numbermaterial whatsoever to show that the present respondent had the knowledge that the bundle companytained any companytraband.

CRIMINAL APPEAL NO. 101 OF 2006 Sudershan Reddy, J. The appellant along with six others was tried by the Court of Sessions for the offence punishable under Section 302 of the Indian Penal Code hereinafter referred to as IPC and sentenced to undergo life imprisonment and to pay a fine of Rs. 2,000/-. He was also companyvicted for the offence punishable under Section 364 IPC and sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 1,000/- and in default of payment of fine, to undergo rigorous imprisonment for 3 months. Further, he was companyvicted for the offence punishable under Section 201 IPC and sentenced to undergo rigorous imprisonment for 1 year and to pay a fine of Rs. 1,000/- and in default of payment, to undergo rigorous imprisonment for 3 months. All sentences were directed to run companycurrently. The Sessions Court acquitted accused Nos. 2, 3, 4 and 5. The appeal of the appellant was dismissed by the High Court of Karnataka by the impugned judgment, however, accused Nos. 6 and 7 were acquitted by the High Court of all the charges leveled against them. In this case we are companycerned with the sole appellant Accused No. 1 . The companyviction of the appellant is based on circumstantial evidence. In brief, the case of the prosecution is that the deceased-Yankanna Balakannavar had illicit intimacy with the wife of the appellant Smt. Hanamawwa PW19 . Deceased was working as the driver of the tractor of the appellant during 2001. The appellants suspicion about the deceased having illicit intimacy with his wife led to serious misunderstanding between them because of which, deceased left his job as the tractor driver. On 12.7.2001 at about 8.00 p.m., the appellant and accused Nos. 6 and 7 went in the car of the appellant to the house of the deceased. He was number at home. The appellant and accused Nos.6 and 7 told deceased Yankannas mother Yallawwa PW-10 that they required the services of her son in companynection with digging of a borewell in the land of the appellant. When deceased Yankanna returned home within half an hour, he was immediately taken by the appellant and accused Nos. 6 and 7 with them. On that night, deceased- Yankanna did number return home. On the next day, Yallawwa PW-10 went in search of her son but companyld number find him. On questioning, the appellant informed PW-10 that he had brought back deceased Yankanna at about 11.00 p.m. on the same night and had left him in the village. Not satisfied with the answer given by the appellant, PW-10 went to accused Nos. 6 and 7 and inquired about the whereabouts of her son but they also did number give any satisfactory answer. Thereafter, PW-10 and her nephew-Kamanna Parameshwar PW-18 went in search of the deceased Yankanna and in the process, made inquiries in nearby villages namely Dadanatti, Rugi, Chabbi etc. but companyld number find him. On 21.7.2001, Inspector of Bilagi Police Station PW- 29 received information that there was a dead body found floating in the Ghataprabha river. Immediately, he rushed to the place and found the dead body of a person near the pump house. The dead body was taken out from the river. It was found that the head and rest of the portion of the body had been severed. The body was highly decomposed and the bones were exposed. The legs of the dead body were found folded and tied with a rope. The body was tied by another rope at the place of neck also. Inspector of police PW-29 lodged information with regard to the same and the same was registered as Crime No. 91/2001 of Bilagi Police Station for the offences punishable under Section 302 and 201 of the IPC. The First Information Report is exhibit P-23 dated 21.7.2001. Thereafter, PW-29 companyducted inquest in the presence of PW-1 and 2 and sent for the medical officer to companyduct the post mortem examination. Dr. Sabu Satihal, Medical Officer, KIMS, Hubli PW-21 companyducted the post mortem examination. The Medical Officer companyld number companyfirm as to whether the body was that of a male or female since the genital portion had been highly decomposed. However, there was underwear found on the body which was taken out and the body was preserved for two days for identification. In the meanwhile, PW-10 along with PW-18 had gone to Kaladgi police station and lodged a companyplaint on 22.7.2001 inter alia alleging that her son was working as a tractor driver for about 3-4 years with the appellant and about 3 months back, her deceased son left the job on account of some disputes between them. She suspected that there was some dispute between her son and the appellant, accused Nos. 6 and 7 since they were frequently roaming around her house, making inquiries about her son. She made inquiries with her deceased son in that regard who did number respond. She apprehended that the appellant may cause harm to her son. It is further alleged that about 11 days back i.e. on 12.7.2001, herself, the deceased and Lacchavva-wife of the deceased PW-11 were sitting in their house and at that time the appellant, accused Nos. 6 and 7 came to her and stated that they required her son in companynection with digging of a borewell in the land of the appellant. The deceased refused to go but they took her son forcibly and the same was numbericed by her neighbours. It was about 8.00 p.m. Thereafter, her son did number return to home. She made inquiries with the appellant who stated that he had dropped her son in the village at 11.00 p.m. Other accused also did number give any satisfactory explanation. She suspected that the said three persons might have killed her son. On the basis of the said information a case was registered by sub-Inspector PW-28 , Kaladgi Police Station as Crime number 50/01 for the offence under Section 364 read with 34 IPC. Intimation of detection of dead body in Ghataprabha river was flashed to the neighbouring police stations and the same was received by Kaladgi police station and in furtherance of the same, PW 10 and PW-11 were taken to the place. PW-10 identified the body as that of her son Yankanna on the basis of the underwear found on the body. On 26.7.2001, appellant and accused Nos. 2 and 3 were arrested. In furtherance of the voluntary information given by the appellant, PW 29 companyld ascertain the places where the deceased had been taken by the appellant and other accused, who were involved in the incident as well as the place where the dead body of Yankanna had been thrown into river. Weapons of offence were also recovered on the basis of the voluntary information furnished by the appellant. As it was revealed that the incident occurred within Kaladgi limits, PW-29 submitted the entire papers on 8.8.2001 to Kaladgi Police Station for further investigation. Police Inspector of Bagalkot police station PW-26 took up further investigation on 9.8.2001 and filed charge sheet against the appellant and accused Nos. 2 to 7 for offences punishable under Sections 143, 147, 148, 354, 302, 201 read with 149 of the IPC. The accused pleaded number guilty of the charges and claimed to be tried. The prosecution, in order to establish the case, examined in all 30 witnesses. No witness was examined on behalf of the accused. The learned Sessions Judge found that the materials were number sufficient and numbercase was made out as against accused Nos. 2 to 5 and companysequently, acquitted them of all the charges. The remaining accused namely appellant and Accused Nos. 6 and 7 were companyvicted for the offences punishable under Section 302 , 364, and 201 of the IPC. On appeal, the High Court allowed the appeal of accused Nos. 6 and 7 and acquitted them. The High Court dismissed the appeal of the appellant and companyfirmed the companyviction and sentences imposed as against the appellant. We have elaborately heard the learned companynsel appearing for the appellant as well as for the State. Shri Sushil Kumar, learned senior companynsel for the appellant companytended that the High Court companymitted a serious error in holding that the burden shifted to the appellant to show what happened to the deceased in view of the evidence of PW-10 and PW-11 that he took the deceased and this amounts to requiring the accused to prove his innocence. He pointed out another error companymitted by the High Court in companying to the companyclusion that the appellant with the help of some others number the other accused who had been acquitted were responsible for companymitting the murder of the deceased-Yankanna. The learned companynsel submitted that the chain of circumstances is number companyplete and, therefore, the companyviction of the appellant cannot be sustained. Further companytention of the learned companynsel was that assuming that the prosecution has been able to establish the circumstance of being last seen together, namely, the deceased having left with the appellant on 12th July, 2001, that by itself, companyld number companynect the appellant with the companymission of crime in the circumstances of the case. On the other hand, the learned companynsel for the State submitted that the evidence of PW-10 and 11 which is companysistent and the circumstances in which the dead body was found in the river clearly indicated that the dead body had been thrown into Ghataprabha river after companymitting murder of the person and the identification by PW-10 that the dead body was that of Yankanna, the chain of events is companyplete and in the absence of any explanation by the appellant, only companyclusion to be arrived at is that the appellant was responsible and liable for the murder of the deceased-Yankanna. Having heard learned companynsel for the parties and on perusal of the record, we find that the prosecution miserably failed to establish the charge against the appellant. It is required to numberice that most of the witnesses namely, PW Nos. 1 to 9, 13, 14, 15, 6, 17, 19, 23 and 30 had turned hostile and did number support the prosecution case. The whole case of the prosecution rests on the evidence of the mother and wife of the deceased PW Nos. 10 and 11 and the police officers PW Nos. 28 and 29 . We may proceed number to companysider the evidence of PW Nos. 10 and 11 in somewhat detail. PW-10, in her evidence, stated that the appellant along with accused Nos. 6 and 7 came to her house at about 8.00 p.m. and took her son Yankanna as his assistance was required in companynection with digging of a borewell in the land of the appellant. Thereafter, her son has number returned. She had searched for her son in neighbouring villages but companyld number find him. The appellant and accused No. 6 came along with her and also searched for the deceased-Yankanna. Thereafter she and her relatives demanded the appellant to produce the deceasedYankanna. Having waited for about 5-6 days, she filed a written companyplaint, written through PW- 18 addressed to Kaladagi Police Station marked as exhibit P-6. The police traced the dead body of Yankanna. It was found in Anagwadi river. She specifically states that I saw the body and his head was chopped off and hands and legs were cut-off and the rope was tied to the body. I saw and identified the underwear M.O.1 and identified the body as it belongs to my son. she suspected the appellant had companymitted the murder of her son. She further stated that when she insisted the appellant to produce her son, the appellant told her deceased Yankanna had illicit companynection with his wife - Hanamawwa PW-19 - because of that he killed my son. In the cross-examination, she stated in categorical terms that at the time of arrival of the appellant at her house, her son Yankanna was number present at home and only half an hour later he returned home and immediately the appellant took him away. Prior to the arrival of the deceased, she and the appellant and PW-11 were present in the house. The appellant took the deceased and went away. She accepted that on receipt of information about floating of a dead body in the Ghataprabha river, she went there and identified the dead body as that of her son. She did number file any companyplaint to the Bilagi Police Station. Bilagi Police Station took her to Kaladgi Police Station in the police jeep where she lodged Exhibit P-6. In Exhibit P-6 FIR , it is stated by PW-10 that her deceased son Yankanna left his job about 3 months prior to the date of the incident. It is further stated in the Exhibit P-6 that on 12.7.2001 in the evening she was sitting in her house along with the deceased and his wife-Lacchavva PW- 11 and that time the appellant, accused number. 6 and 7 came to her house and she invited them inside. She did number state that her son was number present when the appellant along with other accused came to her house and her son returned home only after half an hour. In exhibit P-6 there is numbermention of her companying to the Ghataprabha river and anything about the identification of the dead body of her son. Had she really identified the dead body of her son on 21.7.2001 numberhing prevented her from referring to it in exhibit P-6. In her evidence, she stated that she did number claim the dead body of her son number the police told her to take away the body of the deceased. She did number attend the funeral of her son. PW-11 is numbere other than the wife of the deceased. She stated in her evidence that about 3 years ago at 8.00 p.m., appellant with two others came to her house and took away her husband with them. Thereafter, her husband did number return home. That after 7-8 days having received the information about a dead body floating in the Ghataprabha river, PW-10 and herself went and saw the dead body and found it to be of her husband. PW-10 filed the companyplaint to the police. According to her, appellant suspected that her deceased husband had illicit intimacy with his wife because of that, appellant and accused No.2 took her husband and companymitted the murder. Looking at M.O.1 first time in the companyrt, she identified the same as underwear of her husband. It is admitted by her in the cross-examination while she was waiting in Bilagi police station, her mother-in-law PW- 10 went and saw the dead body of her husband and she came and told her that it was the dead body of her husband Yankanna. On the next day, she along with PW-10 went to Kaladagi police station where PW-10 filed the companyplaint Exhibit P-6. She did number see the body of her husband. She did number perform the funeral. She further stated in her evidence, it is the police who told her that there was illicit relationship between deceased and Hanamawwa, wife of the appellant. PW-29, Inspector of Police, Bilagi police station stated in his evidence that on receiving information on 21st July, 2001 about floating a dead body at the Northern bank of Ghataprabha river near the pump house, went there and found one unknown dead body was floating in the Ghataprabha river near the pump house. He returned to the Bilagi police station and lodged information exhibit P-22. On that basis he registered the case as Crime No. 91/01 for the offence under Section 302 201 IPC and dispatched the first information report to the companyrt at 1430 hours and again proceeded to the spot where the dead body was found. The dead body was taken out of the river. It was in a highly decomposed companydition. He summoned the Medical Officer PW-21 to companyduct post mortem examination at the spot and thereafter buried the body there itself. He also says that he got the photos of the body taken prior to cremation. Post mortem examination was companyducted at the spot itself by PW-21 between 4.45 p.m. to 6.15 p.m. It is on 24th July, 2001, PW-10 to 12 came to the police station Bilagi and he had shown M.O. 1 underwear , M.O. 6 Waist thread and photos to PW-10 to 12 based on which they identified the dead body as that of Yankanna. He undertook further investigation and arrested the accused. He claims to have made certain recoveries. It is on 8th August, 2001 he made over the case for further investigation to the C.P.I of Bagalkot, Rural Circle through Kaladgi police station. The evidence of PW-10 is full of companytradictions apart from being at variance with exhibit P-6 FIR lodged by her before the Kaladgi police station and the evidence of the Investigating Officer PW-29 . In Exhibit P-6 she stated that her deceased son was taken away forcibly by the appellant, accused number. 6 and 7. In the FIR, PW-10 does number say that the deceased-Yankanna was working with the appellant as tractor driver but in her evidence she stated that deceased- Yankanna was working with the appellant. In the first information report she does number say anything about the illicit relationship of deceased-Yankanna and appellants wife- Hanamawwa PW-19 . She merely stated that there was some dispute between the appellant and the deceased but in evidence, she stated that the appellant told her that deceased-Yanakanna had illicit companynection with his wife- Hanamawwa PW-19 because of that he killed her son. PW-11, Lacchawa-wife of the deceased admitted in her cross-examination that she learnt that there was illicit relationship between the deceased and the wife of the appellant only when the police told her. She asserted that PW-10 filed a companyplaint to the police as we came to know about the illicit relationship between the deceased and Hanamawwa-wife of the appellant through police. On an analysis of the evidence referred to herein above, we find it very difficult to believe the evidence of PW- 10 and PW-11. They are number trustworthy witnesses. It is doubtful as to how and in what circumstances exhibit P-6 came into existence. If PW-10 had seen the dead body and identified it as that of her son there is numberreason why she companyld number have stated about it in exhibit P-6. If one goes by the companytents of exhibit P-6 it becomes clear that she knew numberhing about the dead body found in the Ghataprabha river. The question of identifying the dead body as that of her son does number arise. PW-29, in his evidence, stated that PW-10 to 12 identified the body as that of deceased- Yankanna only on the basis of M.O. 1 underwear and M.O. 6 Waist thread and some photos on 24.7.2001. No photographs are marked as material objects. It is difficult to believe that one companyld identify the highly decomposed and mutilated dead body as that of deceased-Yankanna when the Medical Officer PW-21 was number even in a position to say whether the dead body was that of a male or female. It is only the Forensic Expert PW-22 who stated the body as that of a male after examining the bones. PW-10 and 11 assert that dead body was identified by PW-10 even on 21st July, 2001 but PW-29 says that dead body was buried immediately after the post mortem examination. Exhibit P- 6 is obviously got into existence may be after prolonged companysultation with the police. The dead body remained unidentified. PW-11s evidence is also number trustworthy. She states, in her evidence, that Bilagi police came in a jeep and informed her and PW-10 that a dead body was found in the river and thereafter, she and PW-10 went to Bilagi police station but she did number see the dead body of her husband. She was waiting in Bilagi police station but PW-10 and her father-inlaw went to saw the dead body of her husband. But her father-in-law PW-12 does number say that he saw the body of his son. Next day they went in police jeep to Kaladagi police station where PW-10 lodged first information report exhibit P-6 . The version given by PW-11 is also highly artificial and cannot be accepted. It is difficult to believe that she did number go to the spot where the body was found. It is difficult to reconcile the statements of PW-10 and PW-29. It is doubtful that PW-10 at all had seen the dead body of her son. PW-29, in his evidence, stated that he companyld number trace the relatives of the dead person since it was highly decomposed and had therefore got buried the body on 21.7.2001 itself. Thus in effect numberone identified the body buried on 21.7.2001 as that of Yankanna. Yet another aspect of the matter is that there is numberexplanation as to why numbercomplaint has been made ever since 12th July, 2001 when Yankanna was forcibly taken away till lodging the first information report on 22nd July, 2001 at 1900 hours. There is numberconvincing evidence placed by the prosecution to show that there was motive and that the deceased Yankanna had illicit relationship with Hanamawwa PW-19 wife of the appellant. Be it numbered, PW-19 also turned hostile and did number support the prosecution case. In this regard, the evidence of PW-11 gains some significance wherein she admitted that the companyplaint was filed only after they were informed by the police about the illicit relationship of the deceased-Yankanna and Hanamawwa PW-19 . No witness has spoken about the alleged illicit relationship between the deceased and PW-19 except PW-10 and 11 who got the information from the police. Next, we shall refer to the evidence of PW-21 who companyducted the post mortem examination. It is in his evidence that the body was highly decomposed, head was missing, both legs were flexed and tied with rope over the abdomen. Hands were missing. Survival bone was exposed, external genitalia was highly decomposed and unable to make out sex organs. He companyld number make out as to whether the body was of a male or female, age and cause of death, time of death, he accordingly preserved the samples and sent to the Forensic Expert. The Forensic Expert examined as PW-22 stated that he received a sealed box companytaining bones from PW-21 and on opening the box, he found 8 human bones as mentioned in his report. They were of male body. He admitted that by examining the bones, exact age of the deceased cannot be given. Even the time of death cannot be given exactly. In the light of the evidence available on record, can it be said that the circumstances of last seen together by itself and necessarily lead to the inference that it was the appellant who companymitted the crime? The High Court took the view that accused Nos. 6 and 7 are entitled to the benefit of doubt though, PW-10 stated in her evidence that the appellant, accused Nos. 6 and 7 took her son Yankanna on the fateful day. No motive was shown with regard to accused Nos. 6 and 7 for their involvement in the crime. It is under those circumstances, the High Court said that the burden shifts to the appellant to show as to what happened to the deceased-Yankanna. In our companysidered opinion, the High Court companymitted serious error in arriving at such companyclusion. The first information report lodged by PW-10 itself is highly doubtful. PW-10s evidence itself does number reveal any circumstances to hold that the prosecution has established the charge against the appellant. The appellants failure to offer any explanation in his statement under Section 313 Cr.P.C. is number a circumstance to hold appellant guilty of the charge. The prosecution has failed to establish as to when the death of Yankanna took place, it companyld be at any time between 12th July, 2001 to 21st July, 2001. There is numberhing on record to show as to what transpired between 12th July, 2001 to 21st July, 2001. Mere number-explanation on the part of the appellant, in our companysidered opinion, by itself cannot lead to proof of guilt against the appellant. Learned companynsel for the State relied upon the decision in Mohibur Rahman Anr. Vs. State of Assam 2002 6 SCC 715 which in fact is in support of the defence and number the prosecution. The circumstance of last seen together does number by itself and necessarily lead to the inference that it was the accused who companymitted the crime. There must be something more establishing companynectivity between the accused and the crime. There may be cases where on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death a rational mind may be persuaded to reach an irresistible companyclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. In the present case there is numbersuch proximity of time and place. As already numbered the death body has been recovered about 14 days after the date on which the deceased was last seen in the companypany of the accused. The distance between the two places is about 30-40 kms. The event of the two accused persons having departed with the deceased and thus last seen together by Lilima Rajbongshi, PW6 does number bear such close proximity with the death of victim by reference to time or place. According to Dr. Ratan Ch. Das the death occurred 5 to 10 days before 9.2.1991. The medical evidence does number establish, and there is numberother evidence available to hold, that the deceased had died on 24.1.1991 or soon thereafter. So far as the accused Mohibur Rahman is companycerned this is the singular piece of circumstantial evidence available against him. We have already discussed the evidence as to recovery and held that he cannot be companynected with any recovery. Merely because he was last seen with the deceased a few unascertainable number of days before his death, he cannot be held liable for the offence of having caused the death of the deceased. So far as the offence under Section 201 IPC is companycerned there is numberevidence worth the name available against him. He is entitled to an acquittal. In the present case also, there is numberproximity of time and place. We have already numbered that the dead body, even if it is to be accepted, was that of the deceased-Yankanna, had been recovered after 10 days after the date of which the deceased was last seen in the companypany of the appellant. This singular piece of circumstantial evidence available against the appellant, even if the version of PW-10 is to be accepted, is number enough. It is fairly well settled that the circumstantial evidence in order to sustain the companyviction must be companyplete and incapable of explanation of any other hypothesis than that of the guilt of the accused. It is true as has been held by this Court in Lakshmi Ors. Vs. State of P. 2002 7 SCC 198 that it is number an inflexible rule that the identification of the body, cause of death and recovery of weapon with which the injury may have been inflicted on the deceased though are factors to be established by the prosecution but it cannot be held as a general rule and broad proposition of law that where these aspects are number established, it would be fatal to the case of the prosecution and in all eventualities, it ought to result in acquittal of those who may be charged with the offence of murder provided the charges against the accused otherwise can be established on the basis of the other reliable and trustworthy evidence. There is numberreliable and trustworthy evidence in the present case. The High Court in the present case took the view that as to what happened to the deceased-Yankanna was within the knowledge of the appellant and he having failed to explain, and mutilated body of Yankanna having been found, having shown that Yankanna had been murdered, the only companyclusion one can arrive at is that the appellant with the help of some others companymitted the murder of Yankanna, cut off head and some part of the body and threw the body in Ghataprabha river. Too many surmises and companyjectures it is highly dangerous to companyvict any accused on the basis of which the High Court has chosen to do so. It is number the case of the prosecution that the appellant together with some unidentified persons kidnapped the deceased-Yankanna and killed him. The specific case of the prosecution is that the appellant along with accused Nos. 2 to 7 companymitted the crime of kidnapping and murder of the deceased. The trial companyrt as well as the High Court gave the benefit of doubt to the rest of the accused. The High Court in the circumstances companyld number have propounded a new theory that the appellant with the help of some others may have companymitted the murder of Yankanna. Neither there are any circumstances number any evidence available on record to take such a view in the matter in order to companyvict the appellant. The decision of this Court in Khujji Surendra Tiwari Vs. State of Madhya Pradesh 1991 3 SCC 627 upon which, the reliance has been placed by the learned companynsel for the State to sustain the companyviction of the appellant has numberapplication whatsoever to the facts and situation in the present case. It was the case where this Court on an independent appreciation of the evidence of the three eyewitnesses came to the companyclusion that several persons had participated in the companymission of the crime including the appellant but for some reasons all other accused except the appellant therein were acquitted of the charge under Section 302 read with 149 IPC. This Court took the view that in the absence of the State appeal, it is number possible to interfere with their acquittal but this Court was number bound by the facts found proved on the appreciation of evidence by the companyrts below and is, in law, entitled to reach its own companyclusion different from the one recorded by the companyrts below on a review of the evidence. It is under those circumstances, this Court sustained the companyviction of the appellant under Section 302 IPC with the aid of Section 34 and 149 IPC and maintained the sentence awarded to him. In the present case, there is numberevidence available on record to arrive at any companyclusion that accused Nos. 2 to 7 were also involved in the companymission of the crime though they were acquitted by the trial companyrt. We, accordingly, hold that the judgment have numberapplication to the present case in hand. For all the aforesaid reasons, we hold that the prosecution did number establish the charges framed against the appellant under Sections 302, 364 and 201 IPC. The companyviction and sentence awarded against the appellant is, accordingly, set aside and he is acquitted of all the charges.

Leave granted. In our view, this appeal has numbermerit as all the companyrts below companycurrently found that the Tamil Nadu City Tenants Protection Act has numberapplication in the facts and circumstances of the present case. The same question was decided by this Court in Mylapore Club Vs. State of N. Anr., 2005 12 SCC 752, paragraphs 10 and 15 of which are quoted below - It was argued that the object of the Parent Act was to ensure that the expectation of a tenant, who has put up a superstructure, that he would number be evicted is number belied, and that pulling down of the superstructure which was the only option available to a lessee if the lease did number companytain a companytract to the companytrary, would result in companygestion causing serious detriment to public health. This object would number be subserved by exempting leases of lands belonging to religious institutions or religious charities. It is a matter for the legislature to balance the object of the parent Act with the object of protecting the rights of religious institutions and religions charities and on the basis of the material available to the legislature, the decision to exempt the buildings of such religious institutions and religious charities has been taken. The power to legislate is a plenary power vested in the legislature and unless those who challenge the legislation clearly establish that their fundamental rights under the Constitution are affected or that the legislature lacked legislative companypetence, they would number succeed in their challenge to the enactment brought forward in the wisdom of the legislature. Conferment of a right to claim the benefit of a statute, being number a vested right, the same companyld be withdrawn by the legislature which made the enactment. It companyld number be said that the Amendment Act lacked either legislative companypetence or that it is unconstitutional. It is open to the legislature to bring in a law that has retrospective operation. That position is number disputed. When it affects the vested rights or accrued rights, that question will have to be companysidered in that companytext. But the right to take advantage of a statute has been held to be number an accrued right. The matter has been discussed in detail in M. Varadaraja Pillai Vs. Salem Municipal Council by the Madras High Court after referring to Abbot Vs. Minister for Lands and the subsequent decisions. By Section 3, which was in pari materia with Section 9 of the Amending Act of 1960, the legislature had intended that pending proceedings should be affected. Even otherwise, once the applicability of the Act itself is withdrawn, numberrelief can be granted to a person who companyld have been or who was earlier a beneficiary under that enactment, after such withdrawal. Here, the Section provides that even if some steps have been taken pursuant to the claim by the tenant under Section 9 of the Parent Act,the proceeding cannot be companytinued in view of the exemption enacted in favour of the institutions. But the legislature has taken care to save the companycluded transactions by providing that numberhing companytained in the Section shall be deemed to invalidate any suit or proceeding in which a decree or order passed has been executed or satisfied in full before the said date. Reading Section 3 of the Amending Act 2 of 1966, it companyld number be said that it is a legislative intervention with a judicial decision. The proviso has saved companycluded transactions based on judicial adjudications. All that Section 3 does is to make it explicit that the amendment is intended to apply to pending proceedings. In the companytext of Section 6 of the General Clauses Act, unless it is shown that any right has accrued to the claimant under Section 6 of the General Clauses Act, such a provision making it clear that the Act companyld number be applied any more to pending proceedings is number in any way invalid or incompetent. Unless the proceedings have companycluded and the rights of the landlord has passed to the tenant, numberright accrues to the tenant. He is only in the process of acquiring a right, the process having been set in motion at his instance.