Sajjan Singh Vs. StateRajasthan [1964] INSC 246 (30 October 1964)
1964 Latest Caselaw 246 SC

Sajjan Singh Vs. State Of Rajasthan [1964] INSC 246 (30 October 1964)

30/10/1964 GAJENDRAGADKAR, P.B. (CJ) GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.

HIDAYATULLAH, M.

DAYAL, RAGHUBAR MUDHOLKAR, J.R.

CITATION: 1965 AIR 845 1965 SCR (1) 933

CITATOR INFO:

R 1965 SC1636 (25) O 1967 SC1643 (12,14,23,43,44,59,61,65,75,87 RF 1972 SC 425 (7,14) RF 1973 SC1461 (9TO16,38,88,107,633,658,929,9 R 1975 SC1193 (17) RF 1975 SC2299 (649) R 1980 SC 674 (8) RF 1980 SC 845 (55,61) RF 1980 SC1789 (96) R 1981 SC 271 (33,42) RF 1983 SC1125 (7) RF 1987 SC1140 (3) RF 1989 SC1933 (24) RF 1990 SC1106 (9)

ACT:

Constitution (Seventeenth Amendment) Act, 1964-Validity of.

HEADNOTE:

In 1951, several State legislative measures passed for giving effect to a policy of agrarian reform faced a serious challenge in the Courts. In order to assist the State Legislatures to give effect to the policy, Arts. 31A and 31B were added to the Constitution by the Constitution (First Amendment) Act, 1951. Article 31B provided that none of the Acts specified in the Ninth Schedule to the Constitution shall be deemed to be void or ever to have become void. In 1.955, by the Constitution(Fourth Amendment) Act, Art. 31A was amended. Notwithstanding those amendments some legislative measures adopted by different States for giving effect to the policy were effectively challenged. In order to save the validity of those Acts as well as of other Acts which were likely to be struck down, Parliament enacted the Constitution (Seventeenth Amendment), Act 1964, by which Art. 31A was again amended and 44 Acts, were added to the Ninth Schedule. The petitioners in the Writ Petitions in Supreme Court, and interveners, were persons affected by one or other of those Acts. They contended that none of the Act by which they were affected could be saved because the Constitution (Seventeenth Amendment) Act was constitutionally invalid. It was urged that : (i) Since the powers prescribed by Art. 226, which is in Chapter V, Part VI of the Constitution, were likely to be affected by Seventeenth Amendment, the special procedure laid down in the proviso to Art. 368, namely' requiring the ratification by not less half the number of States, should be followed; (ii) The decision in Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar, [1952] S.C.R. 89, which negatived such a contention when dealing with the First Amendment, should be reconsidered; (iii) The Seventeenth Amendment Act was a legislative measure in respect of land and since Parliament had no right to make a law in respect of land, the Act was invalid and (iv) Since the Act purported to set aside decisions of Court of competent jurisdiction, it was unconstitutional.

HELD (by P. B. Gajendragadkar C. J., Wanchoo, and Raghubar Dayal JJ.) : (i) The main part of Art. 368 and its proviso must on a reasonable construction be harmonised with each other in the sense that the scope and effect of either of them should not be allowed to be unduly reduced or enlarged.

Such a construction requires that if amendment of the fundamental rights is to make a substantial inroad on the High Court's powers under Art. 226, it would become necessary to consider whether the proviso to Art. 368 would cover such a case. If the effect is indirect, incidental or otherwise of an insignificant order the proviso may not apply. In dealing With such a question, the test to be adopted is to find the pith and substance of the impugned Act. So tested it is clear that the Constitution (Seventeenth Amendment) Act amends the fundamental rights solely with the object of removing obstacles in the fulfilment of a socioeconomic policy. Its effect 934 on Art. 226 is incidental and insignificant. The Act therefore falls under the substantive part of Art. 368 and does not attract the proviso. [940 D-E; 941 B-E; 944 D-F] (ii) On the contentions urged there was no justification for reconsidering Shankari Prasad case. [947 G-H] Though the Constitution is an organic document intended to serve as a guide to the solution of changing problems the Court should be reluctant to accede to the suggestion that its earlier decisions should be lightheartedly reviewed and departed from. In such a case the test is : Is it absolutely and essential that the question already decided should be reopened. The answer to the question would depend on the nature of the infirmity alleged in the earlier decision, its import on public good and the validity and compelling character of the considerations urged in support of the contrary view. It is therefore relevant and material to note that if the argument urged by the petitioners were to prevail, it would lead to the inevitable consequence that the amendments of 1951 and 1955 and a large number of decisions dealing with the validity of the Acts in the Ninth Schedule would be exposed to serious jeopardy. [948 E--H;

949 A-B] (iii) Parliament in enacting the impugned Act was not making any provision of land-Legislation but was merely validating land-Legislation already passed by the State Legislatures in that behalf. [945 C] (iv) The power conferred by Art. 368 on Parliament can be exercised both prospectively and retrospectively. It is open to Parliament to validate laws which have been declared invalid by courts. [945 E-F] (v) The power conferred by Art. 368, includes the power to take away the fundamental rights guaranteed by Part III. In the context of the constitution it includes the power of modification, or changing the provisions, or even an amendment which makes the said provisions inapplicable in certain cases. The power to amend is a very wide power and cannot be controlled by the literal dictionary meaning of the word "amend". The expression "amendment of the Constitution" plainly and unambiguously means amendment of all the provisions of the Constitution. The words used in the proviso unambiguously indicate that the substantive part of the Article applies to all the provisions of the Constitution. [946 F; 947 A-B; 951 B] The word "law" in Art. 13(2) does not include a law passed by Parliament by virtue of its constituent power to amend the Constitution. if the Constitution-makers had intended that any future amendment of the provisions in regard to fundamental rights should be subject to Art. 13(2), they would have taken the precaution of making a clear provision in that behalf. It would not be reasonable to proceed on the basis that the fundamental rights in Part III were intended to be finally and immutably settled and determined once for all and were beyond the reach of any future amendment. The Constitution-makers must have anticipated that in dealing With the socioeconomic problems which the legislatures may have to face from time to time, the concepts of public interest and other important considerations may change and expand, and so, it is legitimate to assume that the Constitution-makers knew that Parliament should be competent to make amendments in those rights so as to meet the challenge of the problems which may arise. The fundamental rights guaranteed by Part III could not have been intended to be eternal, inviolate and beyond the reach of Art. 368 for, even if the powers to amend the fundamental'rights were not included in the Article, Parliament ran by a suitable amendment of the Article take those powers. [951 F-H; 954 F-H; 955 E-G] Article 226 which confers on High Court the power to issue writs falls under the proviso to Art. 368, while Art. 32 which is itself a guaranteed fundamental right and enables a citizen to move the Supreme Court to 935 issue writs, fall under the main part of the section.

Parliament may consider whether the anamoly which is apparent in the different modes prescribed by Art. 368 for amending Arts. 226 and 32 respectively, should not be remedied by including Part III itself in the proviso. [956 E-G] Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar, [1952] S.C.R. 89, followed.

A. K. Gopalan v. State of Madras, [1950] S.C.R. 88 and In re: The Delhi Laws Act, [1951] S.C.R. 747, referred to.

(vi) It is not reasonable to suggest that, since the impugned Act amends only Arts. 31A and 31B and adds several Acts to the Ninth Schedule it does not amend the provisions of Part III but makes an independent provision, and so, comes within the scope of the proviso to Art. 368. If Parliament thought that instead of adopting the cumbersome process of amending each relevant Article in Part III, it would be more appropriate to add Arts. 31A and 31B, then what Parliament did in 1951 has afforded a valid basis for further amendments in 1955 and in 1964. [946 B-E] (vii) The fact that the Acts have been included in the Ninth Schedule with a view to making them valid, does notmean that the Legislatures which passed the Acts have lost their competence to repeal or amend them. Also, if a legislature amends any provision of any such Act, the amended provision would not receive the protection of Art. 3 1B and its validity will be liable to be examined on the merits. [956 A-C] Per Hidayatullah and Mudholkar JJ. Quaere (i) Whether the word "law" in Art. 13(2) of the Constitution excludes an Act of Parliament amending the Constitution. [959 E-F; 968 G] (ii) Whether it is competent to Parliament to make any amendment at all to Part III of the Constitution. [961 F-G; 968 G] Per Mudholkar J. An amendment made by resort to the first part of Art. 368 could be struck down upon a ground such as taking away the jurisdiction of High Courts under Art. 226 or of the Supreme Court under Art. 136 or that the effect of the amendment is to curtail substantially, though indirectly, the jurisdiction of the High Courts under Art.

226 or the Supreme Court under Art. 136, and recourse had not been had to the proviso to Art. 368. The question whether the amendment was a colorable exercise of power by Parliament may be relevant for consideration in the latter kind of case. [969 D-F] The attack on the Seventeenth Amendment Act was based on grounds most of which were the same as those urged and rejected in the earlier case of Sankari Prasad Singh Deo v. Union of India and State of Bihar, [1952] S.C.R. 89, and on some grounds which are unsubstantial. No case has therefore been made out by the petitioners either for the reconsideration of that decision or for striking down the Seventeenth Amendment. [963 FG] The following matters however were not considered in Sankari Prasad's case and merit consideration :(i) Where Legislation deals with the amendment of a provision of the Constitution, does it cease to be law within the meaning of Art. 13(2) merely because it has to be passed by a special majority ? [964 B-C] (ii) Where a challenge is made before the Court on the ground that no amendment to the Constitution had in fact been made or on the ground that it was not a valid amendment, would it not be the duty of the Court and within its power to examine the question and to pronounce upon it since this is precisely what a Court is competent to do in regard to any other law? [964 F] 936 (iii) Is the statement in A. K. Gopalan v. State of Madras, [1950] S.C.R. 88 that the fundamental rights are the minimum rights reserved by the people to themselves, and therefore unalterable, inconsistent with the statement in re Delhi Laws Act, 1912 [1951] S.C.R. 747, that Parliament has plenary powers of legislation ? [965 D-E] (iv) Whether making a change in the basic features of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution, and if it is the latter, would it be within the purview of Art.

368 ? [966 H, 967 A] (v) Upon the assumption that Parliament can amend Part III of the Constitution and was therefore competent to enact Arts. 31A and 31B, as also to amend the definition of "estate", can Parliament validate a State law dealing with land ? [968 H, 969 A] (vi) Could Parliament go to the extent it went when it enacted the First Amendment and the Ninth Schedule and now when it added 44 more agrarian laws to it ? Or, was Parliament incompetent to go, beyond enacting Art. 31A in 1950, and now, beyond amending the definition of "Estate" ? [969 B-C]

ORIGINAL JURISDICTION: Writ Petitions Nos. 31, 50, 52, 54, 81 and 82 of 1964.

Petitions under Art. 32 of the Constitution of India for the enforcement of Fundamental Rights.

R. Gopalakrishnan, for the petitioners (in W.P. Nos. 31 and 52 of 1964).

G. C. Kasliwal, Advocate-General, State of Rajasthan, K. K. Jain (for W.. P. No. 31 of 1964 only) and R. N. Sachthey, for the respondent (in W. P. Nos. 31 and 52 of 1964).

C. K. Daphtary, Attorney-General and R. H. Dhebar, for the Union of India.

M. C. Setalvad, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for intervener No. 1.

G. S. Pathak, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for intervener No. 2.

Dipak Dutta Chaudhuri and A. K. Nag, for the petitioners (in W. P. No. 50 of 1964).

B. K. Khanna and R. N. Sachthey, for the respondent (in W. P. No. 50 1964).

S. K. Mehta, K. L. Mehta, for the petitioners (in W. P. No. 54 of 1964).

B. K. Khanna and R. N. Sachthey, for respondents Nos.1 to 3 (in W. P. No. 54 of 1964).

R. V. S. Mani, for the petitioners (in W. P. Nos. 81 and 82 of 1964).

937 C. K. Daphtary, Attorney-General, B. Sen and R. H. Dhebar, for respondent No. 1 (W. P. No. 81 of 1964).

C. K. Daphtary, Attorney-General, R. K. P. Shankardass and R. H. Dhebar, for respondent No. 1 (in W. P. No. 82 of 1964).

N. Krishnaswamy Reddy, Advocate-General, State of Madras, A. Ranganadham Chetty and A. V. Rangam, for respondent No. 2 (in W. P. Nos. 81 and 82 1964).

K. S. Chawla and R. V. S. Mani, for intervener No. 3.

The Judgment of P. B. GAJENDRAGADKAR C.J., K. , N. WANCHOO and RAGHUBAR DAYAL JJ. was delivered by GAJENDRAGADKAR C.J.

M. HIDAYATULLAH and J. R. MUDHOLKAR JJ. delivered separate judgments.

Gajendragadkar C.J. These six writ petitions which have been filed under Art. 32 of the Constitution, seek to challenge the validity of the Constitution (17th Amendment) Act, 1964.

The petitioners are affected by one or the other of the Acts added to the 9th Schedule by the impugned Act, and their contention is that the impugned Act being constitutionally invalid, the validity of the Acts by which they are affected cannot be saved. Some other parties who are similarly affected by other Acts added to the 9th Schedule by the impugned Act, have intervened at the hearing of these writ petit ions, and they have joined the petitioners in contending that the impugned Act is invalid. The points raised in the present proceedings have been elaborately argued before us by Mr. Setalvad and Mr. Pathak for the interveners and Mr. Mani for the petitioners. We have also heard the Attorney General in reply.

The impugned Act consists of three sections. The first section gives its short title. Section 2(i) adds a proviso to cl. (1) of Art. 31A after the existing proviso. This proviso reads thus "Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof".

938 Section 2 (ii) substitutes the following subclause for sub-cl. (a) of cl. (2) of Art.

31A:"(a) the expression "estate" shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include(i) any jagir, inam or muafi or other similar grant and in the States of Madras and Kerala, any janmam, right;

(ii) any land held under ryotwari settlement;

(iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans".

Section 3 amends the 9th Schedule by adding 44 entries to it. That is the, nature of the provisions contained in the impugned Amendment Act.

In dealing with the question about the validity of the impugned Act, it is necessary to consider the scope and effect of the provisions contained in Art. 368 of the Constitution, because a large part of the controversy in the present writ petitions turns upon the decision of the question as to what the true scope and effect of Art. 368 is. Let us read Art. 368 :

"368. An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill :

Provided that if such amendment seeks to make any change in(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter 1 of Part XI, or 939 (c) any of the Lists in the Seventh Schedule, or (d) the representation of States in Parliament, or (e) the provisions of this Article, the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent".

It would, thus, appear that the broad scheme of Art. 368 is that if Parliament proposes to amend any provision of the Constitution not enshrined in the proviso, the procedure prescribed by the main part of the Article has to be followed. The Bill introduced for the purpose of making the amendment in question, has to be passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting. This requirement postulates that a bill seeking to amend the relevant provisions of the Constitution should receive substantial support from members of both the Houses. That is why a two-fold requirement has been prescribed in that behalf. After the bill is passed as aforesaid, it has to be presented to the President for his assent and when he gives his assent, the Constitution shall stand amended in accordance with the terms of the bill.

That is the position in regard to the amendment of the provisions of the Constitution to which the proviso does not apply.

If Parliament intends to amend any of the provisions of the Constitution which are covered by clauses (a) to (e) of the proviso, there is a further requirement which has to be satisfied before the bill car. be presented to the President for his assent. Such a bill is required to be ratified by the Legislatures of not less than one-half of the States by Resolutions to that effect passed by them. In other words, in respect of the Articles covered by the proviso, the further safeguard prescribed by the proviso is that the intended amendment should receive the approval of the Legislatures of not less than one-half of the States. That means that at least half of the States constituting the Union of India should by a majority vote, approve of the proposed amendment.

It is obvious that the fundamental rights enshrined in Part III are not included in the proviso, and so, if Parliament intends to amend any of the provisions contained in Articles 12 to 35 which are included in Part III, it is not necessary to take recourse to the proviso and to satisfy the additional requirements prescribed by it.

940 Thus far, there is no difficulty. But in considering the scope of Art. 368, it is necessary to remember that Art.

226, which is included in Chapter V of Part VI of the Constitution, is one of the constitutional provisions which fall under cl. (b) of the proviso; and so, it is clear that if Parliament intends to amend the provisions of Art. 226, the bill proposing to make such an amendment must satisfy, the requirements of the proviso. The question which calls for our decision is : what would be the requirement about making an amendment in a constitutional provision contained in Part III, if as a result of the said amendment, the powers conferred on the High Court’s under Art. 226 are likely to be affected ? The petitioners contend that since it appears that the powers prescribed by Art. 226 are likely to be affected by the intended amendment of the provisions contained 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 not gone through the procedure prescribed by the proviso, it is invalid; and that raises the question about the construction of the provisions contained in Art. 368 and the relation between the substantive part of Art. 368 with its proviso.

In our opinion, the two parts of Art. 368 must on a reasonable construction be harmonised with each other in the sense that the scope and effect of either of them should not be allowed to be unduly reduced or enlarged. It is urged that any amendment of the fundamental rights contained in Part III would inevitably affect the powers of the High Court, prescribed by Art. 226, and as such, the bill proposing the said amendment cannot fall under the proviso;

otherwise the very object of not including Part III under the proviso would be defeated. When the Constitution-makers did not include Part III under the proviso, it would be reasonable to assume that they took the view that the amendment of the provisions contained in Part III was a matter which should be dealt with by Parliament under the substantive provisions of Art. 368 and not under the proviso. It has no doubt been suggested that the Constitution-makers perhaps did not anticipate that there would be many occasions to amend the fundamental rights guaranteed by Part M. However that may be, as a matter of construction, there is no escape from the conclusion that Art. 368 provides for the amendment of the provisions contained in Part III without imposing on Parliament an obligation to adopt the procedure prescribed by the proviso.

It is true that as a result of the amendment of the fundamental rights, the area over which the powers prescribed by Art. 226 would operate may be reduced, but apparently, the ,Constitution-makers took the view that the diminution in the area 941 over which the High Courts' powers under Art. 226 operate, would not necessarily take the case under the proviso.

On the other hand, if the substantive part of Art. 368 is very liberally and generously construed and it is held that even substantial modification of the fundamental rights which may make a very serious and substantial inroad on the powers of the High Courts under Art. 226 can be made without invoking the proviso, it may deprive cl. (b) of the proviso of its substance. In other words, in construing both the parts of Art. 368, the rule of harmonious construction requires that if the direct effect of the amendment of fundamental rights is to make a substantial inroad on the High Courts' powers under Art. 226, it would become necessary to consider whether the proviso would cover such a case or not. If the effect of the amendment made in the fundamental rights on the powers of the High Court’s prescribed by Art. 226, is indirect, incidental, or is otherwise of an insignificant order, it may be that the proviso will not apply. The proviso would apply where the amendment in question seeks to make any change, inter alia, in Art. 226. and the question in such a case would be : does the amendment seek to make a change in the provisions of Art. 226 ? The answer to this question would depend upon the effect of the amendment made in the fundamental rights.

In dealing with constitutional questions of this character, courts generally adopt a test which is described as the pith and substance test. In Attorney-General for Ontario v. Reciprocal Insurers and others(1), the Privy Council was called upon to consider the validity of the Reciprocal Insurance Act, 1922 (12 & 13 Geo. 5, Ont., c. 62) and s. 508c which had been added to the Criminal Code of Canada by ss. 7 & 8 Geo. 5, c. 29 Dom. Mr. Justice Duff, who spoke for the Privy Council, observed that in an enquiry like the one with which the Privy Council was concerned in that case, "it has been formally laid down in judgments of this Board, that in such an inquiry the Courts must ascertain the 'true nature and character' of the enactment : Citizens' Insurance Co. v. Parsons(1); its 'pith and substance' : Union Colliery Co. v. Bryden(3); and it is the result of this investigation, not the form alone, which the statute may have assumed under the hand of the draughtsman, that will determine within which of the categories of subject matters mentioned in ss. 91 and 92 the legislation falls; and for this purpose the legislation must be 'scrutinised in its entirety' "Great West Saddlery Co. v. The King" (4). It is not (1) [1924] A.C. 328.

(2) [1881] 7 App. Cas 96.

(3) [1899] A.C. 580.

(4) [1921] 2 A.C. 91, 117.

942 necessary to multiply authorities in support of the proposition that in considering the constitutional validity of the impugned Act, it would be relevant to inquire what the pith and substance of the impugned Act is. This legal position can be taken to be established by the decisions of this Court which have consistently adopted the view expressed by Justice Duff, to which we have just referred.

What then is the pith and substance of the impugned Act ? For answering this question, it would be necessary to recall very briefly the history of Articles 31A and 31B. Articles 31A and 3 1 B were added to the Constitution with retrospective effect by S. 4 of the Constitution (First Amendment) Act, 1951. It is a matter of general knowledge that it became necessary to add these two provisions in the Constitution, because it was realised that legislative measures adopted by certain States for giving effect to the policy of agrarian reform which was accepted by the party in power, had to face a serious challenge in the courts of law on the ground that they contravened the fundamental rights guaranteed to the citizens by Part III. These measures had been passed in Bihar, Uttar Pradesh and Madhya Pradesh, and their validity was impeached in the High Courts in the said three States. The High Court of Patna held that the relevant Bihar legislation was unconstitutional, whilst the High Courts at Allahabad and Nagpur upheld the validity of the corresponding legislative measures passed in Uttar Pradesh and Madhya Pradesh respectively. [See Kameshwar v. State of Bihar(1) and Surya Pal v. U. P. Government(1). The parties aggrieved by these respective decisions had filed appeals by special leave before the Supreme Court. At the same time, petitions had also been preferred before the Supreme Court under Art. 32 by certain other zamindars, seeking the determination of the same issues. It was at this stage that Parliament thought it necessary to avoid the delay which would necessarily have been involved in the final decision of the disputes pending before the Supreme Court, and introduced the relevant amendments in the Constitution by adding Articles 31A and 31B. 'Mat was the first step taken by Parliament to assist the process of legislation to bring about agrarian reform by introducing Articles 31A and 31B.

The second step in the same direction was taken by Parliament in 1955 by amending Art. 31A by the Constitution (Fourth Amendment) Act, 1955. The object of this amendment was to widen the scope of agrarian reform and to confer on the legislative measures adopted in that behalf immunity from a possible attack (1) A.I.R. 1951 Pat. 91.

(2) A.I.R. 1951 AU. 674.

943 that they contravened the fundamental rights of citizens.

In other words, this amendment protected the legislative measures in respect of certain other items of agrarian and social welfare legislation, which affected the proprietary rights of certain citizens. That is how the second amendment was made by Parliament. At the time when the first amendment was made, Art. 31B expressly provided that none of the Acts and Regulations specified in the 9th Schedule, nor any of the provisions thereof, shall be deemed to be void or ever to have become void on the ground that they were inconsistent with or took away or abridged any of the rights conferred by Part III, and it added that notwithstanding any judgment, decree or order of any Court or tribunal to the contrary, each of the said Acts and Regulations shall subject to the power of any competent legislature to repeal or amend, continue in force. At this time, 19 Acts were listed in Schedule 9, and they were thus effectively validated. One more Act was added to this list by the Amendment Act of 1955, so that as a result of the second amendment, the Schedule contained 20 Acts which were validated.

It appears that notwithstanding these amendments, certain other legislative measures adopted by different States for the purpose of giving effect to the agrarian policy of the party in power, were effectively challenged. For instance, in Karimbil Kunhikoman v. State of Kerala(1), the validity of the Kerala Agrarian Relations Act (IV, of 1961) was challenged by writ petitions filed under Art. 32, and as a result of the majority decision of this Court, the whole Act was struck down. This decision was pronounced on December 5, 1961.

In A. P. Krishnaswami Naidu, etc. v. The State of Madras (2 the constitutionality of the Madras Land Reforms (Fixation of Ceiling on Land) Act (No. 58 of 1961) was put in issue, and by the decision of this Court pronounced on March 9, 1964, it was declared that the whole Act was invalid. It appears that the Rajasthan Tenancy Act HI of 1955 and the Maharashtra Agricultural Lands (Ceiling and Holdings) Act 27 of 1961 have been similarly declared invalid, and in consequence, Parliament thought it necessary to make a further amendment in Art. 31B so as to save the validity of these Acts which had been struck down and of other similar Acts which were likely to be struck down, if challenged.

With that object in view, the impugned Act hasenpfeffer s.3 by which 44 Acts have been added to Schedule 9. If the impugned Act is held to be valid and the amendment made (1) [1962] Supp. 1 S.C.R. 829.

(2) [1964]7 S.C.R. 82 944 in the Schedule is found to be effective, these 44 Acts would have to be treated as valid.

Thus, it would be seen that the genesis of the amendments made by Parliament in 1951 by adding Articles 31A and 31B to the Constitution, clearly is to assist the State Legislatures in this country to give effect to the economic policy in which the party in power passionately believes to bring about much needed agrarian reform. It is with the same object that the second amendment was made by Parliament in 1955, and as we have just indicated, the object underlying the amendment made by the impugned Act is also the same. Parliament desires that agrarian reform in a broad and comprehensive sense must be introduced in the interests of a very large section of Indian citizens who live in villages and whose financial prospects are integrally connected with the pursuit of progressive agrarian policy. Thus, if the pith and substance test is applied to the amendment made by the impugned Act, it would be clear that Parliament is seeking to amend fundamental rights solely with the object of removing any possible obstacle in the fulfilment of the socioeconomic policy in which the party in power believes. If that be so, the effect of the amendment on the area over which the High Courts' powers prescribed by Art. 226 operate, is incidental and in the present case can be described as of an insignificant order. The impugned Act does not purport to change the provisions of Art. 226 and it cannot be said even to have that effect directly or in any appreciable measure.

That is why we think that the argument that the impugned Act falls under the proviso, cannot be sustained. It is an Act the object of which is to amend the relevant Articles in Part III which confer fundamental rights on citizens and as such it falls under the substantive part of Art. 368 and does not attract the provisions of cl. (b) of the proviso.

If the effect of the amendment made in the fundamental rights on Art. 226 is direct and not incidental and is of a very significant order, different considerations may perhaps arise. But in the present case, there is no occasion to entertain or weigh the said considerations. Therefore the main contention raised by the petitioners and the interveners against the validity of the impugned Act must be rejected.

Then, it is urged that the true purpose and object of the impugned Act is to legislate,in respect of land, and legislation in respect of land falls within the jurisdiction of the State Legislatures under Entry 18 of List II. The argument is that since the State Legislatures alone can make laws in respect of land, Parliament had no right to pass the impugned Act. This argument is 945 based on the assumption that the impugned Act purports to be, and in fact is, a piece of land legislation. The same argument is placed before us in another form. It is urged that the scheme of Articles 245 and 246 of the Constitution clearly shows that Parliament has no right to make a law in respect of land, and since the impugned Act is a legislative measure in relation to land, it is invalid. This argument, in our opinion, is misconceived. In dealing with this argument, again, the pith and substance test is relevant.

What the impugned Act purports to do is not to make any land legislation but to protect and validate the legislative measures in respect of agrarian reforms passed by the different State Legislatures in the country by granting them immunity from attack based on the plea that they contravene fundamental rights. Parliament, in enacting the impugned Act, was not making any provisions of land legislation. It was merely validating land legislations already passed by the State Legislatures in that behalf.

It is also urged that inasmuch as the impugned Act purports in substance to set aside the decisions of courts of competent jurisdiction by which some of the Acts added to the Ninth Schedule have been declared to be invalid, it is unconstitutional. We see no substance in this argument. It is hardly necessary to emphasize that legislative power to make laws in respect of areas entrusted to the legislative jurisdiction of different legislative bodies, can be exercised both prospectively and retrospectively. The constituent power conferred by Art. 368 on the Parliament can also be exercised both prospectively and retrospectively. On several occasions, legislatures think it necessary to validate laws which have been declared to be invalid by Courts of competent jurisdiction and in so doing, they have necessarily to provide for the intended validation to take effect notwithstanding any judgment, decree or order passed by a court of competent jurisdiction to the contrary.

Therefore, it would be idle to contend fiat by making the amendment retrospective, the impugned Act has become constitutionally invalid.

It has also been contended before us that in deciding the question as to whether the impugned Act falls under the proviso, we should take into account the operative words in the proviso. The proviso takes in cases where the amendment sought to be made by the relevant bill seeks to make any change in any of the Articles specified in clauses (a) to (e) of the proviso, and it is urged that on a fair reading of clauses (b) and (c), it would follow that the impugned Act purports to do nothing else but to seek to amend the provisions contained in Art. 226. It is not 946 easy to appreciate the strength or validity of this argument. This argument is really based on the assumption that the legislative mechanism adopted by the Parliament in passing the impugned Act introduces this infirmity. The argument obviously assumes that it would have been open to Parliament to make appropriate changes in the different Articles of Part III, such as Articles 14 and 19, and if such a course had been adopted, the impugned Act would have been constitutionally valid. But inasmuch as the impugned Act purports to amend only Arts. 31A and 31B and seeks to add several Acts to the Ninth Schedule, it does not amend any of the provisions in Part III, but is making an independent provision, and that, it is said, must take the case within the scope of the proviso. It is clear that what the impugned Act purports to do is to amend Art. 3 1 A, and Article 3 1 A itself is included in Part III. If Parliament thought that instead of adopting the cumbersome process of amending each relevant Article in Part III, it would be more appropriate to add Articles 3 1 A and 3 1 B, and on that basis, it passed the material provisions of the Constitution (First Amendment) Act, it would not be reasonable to suggest that this method brings the amendment within the proviso.

What the Parliament did in 1951, has afforded a valid basis for further amendments made in 1955 and now in 1964. It would be clear that though the arguments which have been urged before us in the present proceedings have been put in different forms, basically. they involve the consideration of the main question whether the' impugned Act falls within the scope of the proviso or not; and the answer to this question, in our opinion, has to be against the petitioners by the application of the doctrine of pith and substance.

Then, it is urged that the power to amend, which is conferred by Art. 368, does not include the power to take away the fundamental rights guaranteed by Part III. The contention is that the result of the material provisions of the impugned Act is to take away a citizen's right to challenge the validity of the Acts added to the Ninth Schedule, and that means that in respect of the said Acts, the relevant fundamental rights of the citizens are taken away. We do not think there is any substance in this argument. it is true that the dictionary meaning of the word -"amend" is to ,correct a fault or reform; but in the context, reliance on the dictionary meaning of the word is singularly inappropriate. because what Art. 368 authorises to be done is the amendment of the provisions of the Constitution. It is well-known that the amendment of a law may in a proper case include the deletion of any one or more of the provisions of the law and substitution in their 947 place of new provisions. Similarly, an amendment of the Constitution which is the subject matter of the power conferred by Art. 368, may include modification or change of the provisions or even an amendment which makes the said provisions inapplicable in certain cases. The power to amend in the context is a very wide power and it cannot be controlled by the literal dictionary meaning of the word "amend".

The question about the validity of the Constitution (First Amendment) Act has been considered by this Court in Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar(1). In that case, the validity of the said Amendment Act was challenged on several grounds. One of the grounds was that the newly inserted Articles 31A and 31B sought to make changes in Articles 132 and 136 in Chapter IV of Part V and Art. 226 in Chapter V of Part VI 'and so, they required ratification under cl. (b) of the proviso to Art. 368. This contention was rejected by this Court. Patanjali Sastri J., as he then was, who spoke for the unanimous Court, observed that the said Articles "did not either in terms or in effect seek to make any change in Art. 226 or in Articles 132 and 136", and he added that it was not correct to say that the powers of the High Court’s under Art. 226 to issue writs for the enforcement of any of the rights conferred by Part HI or of this Court under Articles 132 and 136 to entertain appeals from orders, issuing or refusing to issue such writs were in any way affected. In the opinion of the Court, the_ said powers remained just the same as they were before; only a certain class of cases had been excluded from the purview of Part Ill. The fact that the courts could not exercise their powers in respect of the said class of cases, did not show that the powers of the courts were curtailed in any way or to any extent. It only meant that certain area of in which the said powers could have been exercised, had been withdrawn. Similarly, the argument that the amendments were invalid because they related to legislation in respect of land, was also rejected on the ground that the impugned Articles 31A and 31B were essentially amendments of the Constitution which Parliament alone had the power to make.

It would thus appear that in substance the points urged before us in the present proceedings are really concluded by the decision of this Court in Sankari Prasad's case(1). It was, however, urged before us during the course of the hearing of these writ petitions that we should reconsider the matter and review our earlier decision in Sankari Prasad's case. It is true that the Con(1) [1952] S.C.R. 89.

Supp.1/65948 stitution does not place any restriction on our powers to review our earlier decisions or even to depart from them and there can be no doubt that in matters relating to the decision of constitutional points which have a significant impact on the fundamental rights of citizens, we would be prepared to review our earlier decisions in the interest of public good. The doctrine of stare decisis may not strictly apply in this context and no one can dispute the position that the said doctrine should not be pemiitted to perpetuate erroneous decisions pronounced by this Court to the detriment of general welfare. Even so, the normal principle that judgments pronounced by this Court would be final, cannot be ignored and unless considerations of a substantial and compelling character make it necessary to do so, we should be slow to doubt ,,the correctness of previous decisions or to depart from them.

It is universally recognised that in regard to a large number of constitutional problems which are brought before this Court for its decision, complex and difficult questions arise and on many of such questions, two views are possible.

Therefore, if one View has been taken by this Court after mature deliberation, the fact that another Bench is inclined to take a different view may not justify the Court in reconsidering the earlier decision or in departing from it.

The problem of construing constitutional provisions cannot be reasonably solved merely by adopting a literal construction of the words used in the relevant provisions.

The Constitution is an organic document and it is intended to serve as a guide to the solution of changing problems which the Court may have to face from time to time.

Naturally, in a progressive and dynamic society the shape and appearance of these problems are bound to change with the inevitable consequence that the relevant words used in the Constitution may also chance their meaning and significance. That is what makes the task of dealing with constitutional problems dynamic rather than static. Even so, the Court should be reluctant to accede to the suggestion that its earlier ,decisions should be lightheartedly reviewed and departed from.' In such a case the test should be : is it absolutely necessary and essential that the question already decided should be reopened ? The answer to this question would depend on the nature of the infirmity alleged in the earlier decision, its impact on public good, and the validity and compelling character of the considerations urged in support of the -contrary view. If the said decision has been followed in a large number of cases, that again is a factor ,which must be taken into account.

In the present case, if the arguments urged by the petitioners 949 were to prevail, it would lead to the inevitable consequence that the amendments made in the Constitution both in 1951 and 1955 would be rendered invalid and a large number of decisions dealing with the validity of the Acts included in the Ninth Schedule which have been pronounced by different High Courts ever since the decision of this Court in Sankari Prasad's(1) case was declared, would also be exposed to serious jeopardy. These are consideration, which are both relevant and material in dealing with the plea urged by the petitioners before us in the present proceedings that Sankari Prasad's case should be reconsidered. In view of the said plea, however, we have deliberately chosen to deal with the merits of the contentions before referring to the decision itself. In our opinion, the plea made by the petitioners for reconsidering Sankari Prasad's case is wholly unjustified and must be rejected.

In this connection, we would like to refer to another aspect of the matter. As we have already indicated, the principal point which has been urged before us in these proceedings is, that the impugned Act is invalid for the reason that before presenting it to the President for his assent, the procedure prescribed by the proviso to Art. 368 has not been followed, though the Act was one which fell within the scope of the proviso. In other words, it was not disputed before us that Art. 368 empowers Parliament to amend any provision of the Constitution, including the provisions in respect of the fundamental rights enshrined in Part M. The main contention was that in amending the relevant provisions of the Constitution, the procedure prescribed by the proviso should have been followed. But it appears that in Sankari Prasad's case, another argument was urged before this Court in challenging the validity of the Constitution (First Amendment) Act, and since we are expressing our concurrence with the said decisions, we think it is necessary to refer to the said argument and deal with it, even though this aspect of the matter has not been urged before us in the present proceedings.

In Sankari Prasad's case, it was contended that though It may be open to Parliament to amend the provisions in respect of the fundamental rights contained in Part III, the amendment, if made In that behalf, would have to be tested in the light of the provisions contained in Art. 13(2) of the Constitution. The argument was that the law to which Art. 13(2) applies, would include a law passed by Parliament by virtue of its constituent power to amend' the Constitution, and so, its validity will have to be tested by Art. 13(2) itself. It will be recalled that Art. 13(2) prohibits (1) [1952] S.C.R. 89.

950 the State from making any law which, takes away or abridges the rights conferred by Part III, and provides that any law made in contravention of clause (2) shall, to the extent of the contravention, be void. In other words, it was urged before this Court in Sankari Prasad's(1) case that in considering the question as to the validity of the relevant provisions of the Constitution (First Amendment) Act, it would be open to the party challenging the validity of the said Act to urge that in so far as the Amendment Act abridges or takes away the fundamental rights of the citizens, it is void. This argument was, however, rejected by this Court on the ground that the word "law" used in Art.

13 "must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power with the result. that Art. 13 (2) does not affect amendments made under Art. 368".

It is significant that Patanjali Sastri J. as he then was, who spoke for the Court, described as attractive the argument about the applicability of Art. 13 (2) to Constitution Amendment Acts passed under Art. 368, examined it closely, and ultimately rejected it. It was noticed in the judgment that certain constitutions make certain rights "eternal and inviolate", and by way of illustration, reference was made to Art. 11 of the Japanese Constitution and Art. 5 of the American.Federal Constitution. It was also noticed that the word "law" in its literal sense, may include constitutional law, but it was pointed out that "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 constituent power". The scheme of the relevant provisions of the Constitution was then examined, and ultimately, the Court reached the conclusion that though both Articles 13 and 368 are widely phrased, the harmonious rule of construction requires that the word "law" in Art. 13 should be taken to exclude law made in exercise of the constituent power.

In our opinion, this conclusion is right, and as we are expressing our full concurrence with the decision in Sankari Prasad's(1) case, we think it is necessary to indicate our reasons for agreeing with the conclusion of the Court on this point, even though the coffectness of this conclusion has not been questioned before us in the course of arguments. If we had felt a real difficulty in accepting this part of the conclusion, we would have seriously considered the question as to whether the matter should not be referred to a larger Bench for a further examination of the problem.

(1) [1952] S.CR. 89.

951 The first point which falls to be considered on this aspect of the matter is the construction of Art. 368 itself. Part XX which contains only Art. 368 is described as a Part dealing with the Amendment of the Constitution; and Art. 368 which prescribes the procedure for amendment of the Constitution, begins by saying that an amendment of this Constitution may be initiated in the manner there indicated.

In our opinion, the expression "amendment of the Constitution plainly and unambiguously means amendment of all the provisions of the Constitution. It would, we think, be unreasonable to suggest that what Art. 368 provides is only the mechanics of the procedure to be followed in amending the Constitution without indicating which provisions of the Constitution can be amended and which cannot. Such a restrictive construction of the substantive part of Art. 368 would be clearly untenable. Besides, the words used in the proviso unambiguously indicate that the substantive part of the article applies to all the provisions of the Constitution. It is on that basic assumption that the proviso prescribes a specific procedure in respect of the amendment of the articles mentioned in clauses (a) to (e) thereof. Therefore, we feel no hesitation in holding that when Art. 368 confers on Parliament the right to amend the Constitution the power in question can be exercised over all the provisions of the Constitution. How the power should be exercised, has to be determined by reference to the question as to whether the proposed amendment falls under the substantive part of Art.

368, or attracts the provisions of the proviso.

It is true that Art. 13(2) refers to any law in general, and literally construed, the word "law" may take in a law made in exercise of the constituent power conferred on Parliament; but having regard to the fact that a specific, unqualified and unambiguous power to amend the Constitution is conferred on Parliament, it would be unreasonable to hold that the word "law" in Art. 13 (2) takes in Constitution Amendment Acts passed under Art. 368. If the Constitution makers had intended that any future amendment of the provisions in regard to fundamental rights should be subject to Art. 13 (2), they would have taken the precaution of making a clear provision in that behalf. Besides, it seems to us, very unlikely that while conferring the power on Parliament to amend the Constitution, it was the intention of the Constitution makers to exclude from that comprehensive power fundamental rights altogether. There is no doubt that if the word "law" used in Art. 13(2) includes a law in relation to the amendment of the 952 Constitution, fundamental rights can never be abridged or taken away, because as soon as it is shown that the effect of the amendment is to take away or abridge fundamental rights, that portion of the law would be void under Art. 13 (2). We have no doubt that such a position could not have been intended by the Constitution-makers when they included Art. 368 in the Constitution. In construing the word "law" occurring in Art. 13(2), it may be relevant to bear in mind that, in the words of Kania C.J. in A. K. Gopalan v. The State of Madras(1), "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".

The importance and significance of the fundamental rights must obviously be recognised and in that sense, the guarantee to the citizens contained in the relevant provisions of Part III, can justly be described as the very foundation and the comer-stone of the democratic way of life ushered in this country by the Constitution. But can it 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? It is true that in the case of A. K. Gopalan(1) Patanjali Sastri, as he then was, expressed the view that "there can be no doubt 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 the irrespective 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" (p. 198). This hypothesis may, prima facie, tend to show that the right to amend these fundamental rights vested not in Parliament, but in the people of India themselves.

But it is significant that when the same learned Judge had occasion to consider this question more elaborately in re The Delhi Laws Act, 1912, (1) etc. he has emphatically expressed the view that it is established beyond doubt that the Indian Legislature, when acting within the limits circumscribing its legislative power, has and was intended to have (1) [1950] S.C.R. 88, at p. 100.

(2) [1951] S.C.R. 747, at pp. 883-84.

953 plenary of legislation as large and of the same nature as those of the British Parliament itself and no constitutional limitation on the delegation of legislative power to a subordinate unit is to be found in the Indian Councils Act, 1861, or the Government of India Act, 1935, or the Constitution of 1950. The suggestion that the legislatures, including the Parliament, are the delegate of the people of India in whom sovereignty vests, was rejected by the learned Judge when he observed that "the maxim 'delegates ten protest delegate' is not part of the Constitutional law of India and has no more force than a political precept to be acted upon by legislatures in the discharge of their function of making laws, and the courts cannot strike down an Act of Parliament as unconstitutional merely because Parliament decides in a particular instance to entrust its legislative power to another in whom it has confidence or, in other words, to exercise such power through its appointed instrumentality, however repugnant such entrustment may be to the democratic process. What may be regarded, as politically undesirable is constitutionally competent". It would thus appear that so far as our Constitution is concerned, it would not be possible to deal with the question about the powers of Parliament to amend the Constitution under Art. 368 on any theoretical concept of political science that sovereignty vests in the people and the be statures are merely the delegate of the people.

Whether or not Parliament has the power to amend the Constitution must depend solely Upon the question as to whether the said power is included in Art. 368. The question about the reasonableness, or expediency or desirability of the amendments in question from a political point of view would be irrelevant in construing the words of Art. 3 6 8.

Incidentally, we may also refer to the fact that the Constitutionmakers had taken the precaution to indicate that some amendments should not be treated as amendments of the Constitution for the purpose of Art. 368. Take, for instance Art. 4(2) which deals with law made by virtue of Art. 4(1). Art. 4(2) provides that no such law shall be deemed to be an amendment of the Constitution for the purposes of Art. 368. Similarly, Art. 169(3) provides that any law in respect of the amendment of the existing legislative apparatus by the abolition or creation of Legislative Councils in State-,; shall not be deemed to be an amendment of the Constitution for the purposes of Art.

368. In other words, laws falling within the purview of Articles 4(2) and 169(3) need not be passed subject to the restrictions imposed by 'Art. 368, even though. in effect they may amount to the amendment of the relevant provisions of the Constitution. If the Constitution-makers took the 954 precaution of making this specific provision to exclude the applicability of Art. 368 to certain amendments, it would be reasonable to assume that they would have made a specific provision if they had intended that the fundamental rights guaranteed by Part HI should be completely outside the scope of Art. 368.

Apart from the fact that the words used in Art. 368 are clear and unambiguous in support of the view that we are taking, on principle also it appears unreasonable to suggest that the Constitution-makers wanted to provide that fundamental rights guaranteed by the Constitution should never be touched by way of amendment. It must not be forgotten that the fundamental rights guaranteed, by Art.

19, for instance, are not absolute; the scheme of this article itself indicates that the fundamental rights guaranteed by sub clauses (a) to (g) of clause (1), can be validly regulated in the light of the provisions contained in clauses (2) to (6) of Art. 19. In other words, the broad scheme of Art. 19 is two-fold; the fundamental rights of the citizens are of paramount importance, but even the said fundamental rights can be regulated to serve the interests of the general public or other objects mentioned respectively in clauses (2) to (6), and that means that for specified purposes indicated in these clauses, even the paramountcy of fundamental rights has to yield to some regulation as contemplated by the said clauses. It is hardly necessary to emphasise that the purposes for which fundamental rights can be regulated which are specified in clauses (2) to (6), could not have been assumed by the Constitution-makers to be static and incapable of expansion.

The Constitution-makers must have anticipated that in dealing with socioeconomic problems which the legislatures may have to face from time to time, the concepts of public interest and other important considerations which are the basis of clauses (2) to (6), may change and may even expand;

and so, it is legitimate to assume that the Constitution makers know that Parliament should be competent to make amendments in these rights so as to meet the challenge of the problems which may arise in the course of spcio-economic progress and development of the country. That is why we think that even on principle, it would not be reasonable to proceed on the basis that the fundamental rights enshrined in Part III were intended to be finally and immutably settled and determined once for all and were beyond the reach of any future amendment.

Let us illustrate this point by reference to some of the provisions of the Constitution (First Amendment) Act, 1951 itself. By this Act, Articles 15, 19 and 31 were amended.

One has merely to 955 recall the purpose for which it became necessary to amend Articles 15 and 19 to be satisfied that the changing character of the problems posed by the words used in the respective articles could not have been effectively met unless amendment in the relevant provisions was effected;

and yet, if the argument that the fundamental rights are beyond the reach of Art. 368 were valid, an these amendments would be constitutionally impermissible. That, we think is not the true purport and effect of Art. 368. We are, therefore, satisfied that this Court was right in rejecting the said argument in the case of Sankari Prasad(1).

This question can be considered from another point of view.

The argument that the fundamental rights guaranteed by Part in are eternal, inviolate, and beyond the reach of Art. 368, is based on two assumptions. The first assumption is that on a fair and reasonable construction of Art. 368, the power to amend the fundamental rights cannot be held to be included within the constituent powers conferred on Parliament by the said Article. We have already held that a fair and reasonable construction of Art. 368 does not justify this assumption. The other assumption which this argument makes, and must of necessity make, is that if the power to amend the fundamental rights is not included in Art. 368 as it stands, it cannot ever be included within its purview; because unless it is assumed that the relevant power can never be included in Art. 368, it would be unrealistic to propound the theory that the fundamental rights are eternal, inviolate, and not within the reach of any subsequent constitutional amendment. It is clear that Art. 368 itself can be amended by Parliament, though cl. (e) of the proviso requires that before amending Art. 368, the safeguards prescribed by the proviso must be satisfied. In other words, even if the powers to amend the fundamental rights were not included in Art. 368, Parliament can, by a suitable amendment of Art. 368, take those powers. Thus, the second assumption underlying the argument about the immutable character of the fundamental rights is also not well fo