Text Practice Mode

Keshawa Nand Bharati

created Nov 28th 2021, 04:45 by Codename98



1181 words
24 completed
1. I propose to divide my judgment into eight parts. Part I will deal with Introduction; Part II with interpretation of Golakhnath case; Part III with the interpretation of the original Article 368, as it existed prior to its amendment; Part IV with the validity of the Constitution (Twenty-fourth Amendment) Act; Part V with the validity of Section 2 of the Constitution (Twenty-fifth Amendment) Act; Part VI with the validity of Section 3 of the Constitution (Twenty-fifth Amendment) Act; Part VII with Constitution (Twenty- ninth Amendment) Act; and Part VIII with conclusions.
PART I-Introduction
2. All the six writ petitions involve common questions as to the validity of the Twenty- fourth, Twenty-fifth and Twenty-ninth Amendments of the Constitution. I may give a few facts in Writ petition No. 135 of 1970 to show how the question arises in this petition. Writ Petition No. 135 of 1970 was filed by the petitioner on March 21, 1970 under Article 32 of the Constitution for enforcement of his fundamental rights under Articles 25, 26, 14, 19(1)(f) and 31 of the Constitution. He prayed that the provisions of the Kerala Land Reforms Act, 1963 (Act 1 of 1964) as amended by the Kerala Land Reforms (Amendment) Act 1969 (Act 35 of 1969) be declared unConstitutional, ultra vires and void. He further prayed for an appropriate writ or order to issue during the pendency of the petition. This Court issued rule nisi on March 25, 1970.
3. During the pendency of the writ petition, the Kerala Land Reforms (Amendment) Act 1971 (Kerala Act No. 25 of 1971) was passed which received the assent of the President on August 7, 1971. The petitioner filed an application for permission to urge additional grounds and to impugn the Constitutional validity of the Kerala Land Reforms (Amendment) Act 1971 (Kerala Act No. 25 of 1971).
4. In the meantime, the Supreme Court by its judgment dated April 26, 1971 in Kunjukutty Sahib v. State of Kerala [1972] S.C.C. 364 (Civil Appeals Nos. 143, 203-242, 274 & 309 of 1971). Judgment dated April 26, 1971 upheld the majority judgment of the Kerala High Court in V.N. Narayanan Nair v. State of Kerala A.I.R. 1971 Kerala 98 whereby certain, sections of the Act were struck down.
5. The Constitution (Twenty-fifth Amendment) Act came into force on November 5, 1971, the Constitution (Twenty-fifth Amendment) Act came into force on April 20, 1972 and the Constitution (Twenty-ninth Amendment) Act came into force on June 9, 1972. The effect of the Twenty-ninth Amendment of the Constitution was that it inserted the following Acts in the Ninth Schedule to the Constitution:
65. The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of 1969).
66. The Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of 1971).
6. 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.
7. The Court allowed the application for urging additional grounds and for amendment of the writ petition on August 10, 1972 and issued notices to the Advocates-General to appear before this Court and take such part in the proceedings as they may be advised.
8. 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.
9. Similar orders were passed in the other writ petitions.
10. The larger bench was accordingly constituted. It was then felt that it would be necessary to decide whether I.C. Golak Nath v. State of Punjab [1967] 2 S.C.R. 762 was rightly decided or not. However, as I see it, the question whether Golak Nath's [1967] 2 S.C.R. 762 case was rightly decided or not does not matter because the real issue is different and of much greater importance, the issue being : what is the extent of the amending power conferred by Article 368 of the Constitution, apart from Article 13(2), on Parliament ?
11. The respondents claim that Parliament can abrogate fundamental rights such as freedom of speech and expression, freedom to form associations or unions, and freedom of religion. They claim that democracy can even be replaced and one-party rule established. Indeed, short of repeal of the Constitution, any form of Government with no freedom to the citizens can be set up by Parliament by exercising its powers under Article
12. On the side of the petitioners it is urged that the power of Parliament is much more limited. The petitioners say that the Constitution gave the Indian citizen freedoms which were to subsist for ever and the Constitution was drafted to free the nation from any future tyranny of the representatives of the people. It is this freedom from tyranny which, according to the petitioners, has been taken away by the impugned Article 31C which has been inserted by the Twenty-fifth Amendment. If Article 31C is valid, they say, hereafter Parliament and State Legislatures and not the Constitution, will determine how much freedom is good for the citizens.
13. 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.
14. I must interpret Article 368 in the setting of our Constitution, in the background of our history and in the light of our aspirations and hopes, and other relevant circumstances. No other Constitution in the world is like ours. No other Constitution combines under its wings such diverse peoples, numbering now more than 550 millions, with different languages and religions and in different stages of economic development, into one nation, and no other nation is faced with such vast socio-economic problems.
15. I need hardly observe that I am not interpreting an ordinary statute, but a Constitution which apart from setting up a machinery for government, has a noble and grand vision. The vision was put in words in the Preamble and carried out in part by conferring fundamental rights on the people. The vision was directed to be further carried out by the application of directive principles.
PART II-Interpretation of Golak Nath's Case.
16. 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 S.C.R. 933.
17. The Constitution (First Amendment) Act, 1951, which inserted inter alia Articles 31A and 31B in the Constitution was the subject matter of decision in Sankari Prasad's [1952] S.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:

saving score / loading statistics ...