Edited excerpt from the judgment

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). The two judges in Sajjan Singh’s case as well as the majority of judges in Golak Nath’s case opined that ‘law’ in Article 13(2) also includes Constitutional law i.e. law which amends the Constitution and we see no substance in the contention that the amendment of a Constitution is not ‘law’.

The Constitution is amended by enacting Amendment Acts. The Constitution is not only a law but the paramount law of the country. An amendment of that law must necessarily be a law. The fact that the word ‘law’ is not used in Article 368 is of little significance. For that matter Article 110 also does not 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 Prasad’s case. The Bill when passed by both the Houses of Parliament and, in matters coming 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 Prasad’s case, Patanjali Sastri J. (as he then was) speaking for the Court had no doubt in ruling that the expression ‘law’ must ordinarily include ‘Constitutional law’. The same view was taken by all the judges in Sajjan Singh’s case and also by most of the judges in Golak Nath’s case.

The Intention of the Constitution Makers

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 Parliament’s amending power under Article 368. In understanding the meaning of the word ‘law’s in Article 13(2) we should bear in mind the scope of Article 368. The two Articles will have to be construed 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.

It is true that Article 13(3) contains 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 not 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 construed 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 not used the expression ‘law’ in the Constitution as including Constitutional law.

Article 13(1) does not refer to ‘laws’ as such. It refers to “laws in force in the territory of India immediately before the commencement of this Constitution”. It identifies certain laws and determines the extent of their validity. The scope of Article 13(1) does not bear on the interpretation of the expression ‘law’ in Article 13(2).

Exclusion of Amendment law proposed in Constituent Assembly

It is seen from the Constituent Assembly records that when the Constituent Assembly was considering 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 not 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 concerned provision by specifically excluding from its operation amendments of the Constitution. When this matter went before the Drafting Committee consisting of eminent lawyers, they redrafted the clause thus:

The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall to the extent of contravention be void.

In other words, the drafting committee deleted from Sir B.N. Rau’s 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 contention. It is not clear why the drafting committee 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 not come within its scope.

Every Constitution is expected to endure for a long time. Therefore, it must necessarily be elastic. It is not 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 course of the generation to come. Hence every Constitution wisely drawn up provides for its own amendment.

Supreme Court has always attached great importance to the Fundamental Rights guaranteed under our Constitution. It has given no less importance 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 Granville 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 conditions necessary for its achievement yet despite the permeation of the entire Constitution by the aim of national renaissance, the core of the commitment to the social revolution lies in Parts III and IV, in the Fundamental Rights and the Directive Principles of State Policy. These are the conscience 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 conferred 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 construe 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 contention that no right guaranteed by Part III can be abridged.

Supreme Court is always reluctant to overrule its earlier decisions. There must be compelling reasons for overruling an earlier decision of Supreme Court. As seen earlier, there are already conflicting decisions as to the scope of Article 368.

As far back as 1951, in Sankari Prasad’s case, Supreme Court took the view that the power of amendment conferred under Article 368 included within itself the power to abridge and take away the Fundamental Rights incorporated in Part III of the Constitution. The correctness of that view was not challenged in several other decisions. The same view was taken in Sajjan Singh’s case.

That view was negatived in Golakhnath’s 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, Supreme Court by relying on the doctrines of prospective overruling and the doctrine of acquiescence did not 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 consisted of the very members who were the members of the Constituent Assembly. It should be remembered that members of the Constituent Assembly continued 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 not forget that we are expounding a Constitution.


Kesavananda Bharthi v. Union of India (1973)