And, where a legislative power is "subject to the provisions of the Constitution", any exercise of it in contravention of such provisions renders it invalid and ultra-vires: As already stated, in a controlled Constitution which confers 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 conflicting with the Constitution must be void because the Constitution can be amended only by special procedure.
"Such amendment" obviously means 'amendment' referred to in the main body of Article and thus the article itself envisages that the amendment may take the form of 'change'. Palkhivala on behalf of the petitioner did not rely on the majority decision in Golak Nath case that the fundamental rights could be abridged or taken away only by convening a Constituent Assembly, but based his argument on a theory of legal sovereignty of the people.
Seervai sought to argue from this that similarly the amending power of Parliament under Article has no limitations and cannot be limited by some vague doctrine of repugnancy to natural and inalienable rights and the Preamble. Hence the neglect or avoidance of the question in previous cases cannot be accepted as a sound argument. Such legislature as was emphasised by Issacs, J. The Constituent Assembly, must be presumed to be fully aware of the expanded expression, as on September , it had substituted the following section in place of the old Section of the Government of India Act by means of Constituent Assembly Act of : Taschereau, J.
I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States. said that you cannot destroy in order to save or save in order to destroy. In several provisions of the original Constitution, different expressions were used to indicate conferment of the amending power. Delivering the judgment of the Simranjeet Singh Sidhu - https://highcourtchd.gov.in/data/2018_08_14_o_m.pdf Court, Subba Rao J. The amplitude of the amending power in our Constitution stands in bold relief in comparison with Article V of the American Constitution, Section of the Australian Constitution and Section of the Irish Constitution none of which confers such a power.
() A free and independent judiciary. So far as Article of the American Constitution is concerned, 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. The decision as to which method of amending the Constitution should be chosen has necessarily to be that of the Constituent Assembly. Advocate Simranjeet - https://www.phhc.gov.in/enq_caseno.php?var1=CM&var2=5526-CWP&var3=2018 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.
On a parity of reasoning, judicial review of legislation is also amendable. The Advocate Simranjeet Singh - http://highcourtchd.gov.in/data/2016_10_17_b_m.pdf second set of articles are articles which require two-thirds majority. The philosophy which informs the Constitution looks on concentration of wealth and means of production as a social evil because such concentration, resulting in the concentration of political and economic power in the hands of a few private individuals, not only leads to unequal freedom, on the one hand, but results, on the other, in undermining the same in the case of many.
It is evident that this decision marked a departure from the judgment in Vajravelu's case. The question is one of intention. This exclusive Simranjeet Singh - https://www.phhc.gov.in/enq_caseno.php?var1=CM&var2=9544-CWP&var3=2018 conferment of amending power on the Parliament is one of the basic features of the Constitution and the same cannot be violated directly or indirectly. It is to read the statute as a whole and ask oneself the question: "In this state, in this context, relating to this subject-matter, what is the true meaning of that word ?
As the Government and Parliament play a vital part in the Proclamation and continuation of emergency, the emergency provisions can theoretically be used for avoiding the election and continuing a party in power even though it has lost popular support by extending the life of House of the People in accordance with Article (). King Gordius of Phrygia had tied a knot which an oracle said would be undone only by the future master of Asia. Since, for the reasons above mentioned, clause of Article , transgresses the limitations on the amending power, it must be held to be unconstitutional.
Regarding the Other part i. A law which complies- A part of the same argument was pressed upon us by the learned Additional Solicitor General who contended that it would still be open to the Courts under Article C to decide four questions: () Does the law secure any of the directive principles of the Stats policy? On questions relating to the Amendment of Article () and the th Amendment of the Constitution, I adopt the reasons of my learned brethern Ray, Mathew and Dwivedi with whose conclusions I concur on these and other questions.
The second part prohibits any court from inquirying whether the law protected by Article C has relevancy to Article (b) and (c) if it contains a declaration that it gives effect to the policy specified in that provision. 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. These are the conscience of the Constitution. According to Webster's Third New International Dictionary, p.
(c) of Article 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 sections which have nothing to do with the objectives of Clauses (b) and (c) of Article , would also get protection. He must act reasonably. 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. The last method is one in which a special body is created ad hoc for the purpose of Constitutional revision.
In the case of Article also Parliament consists 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. 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 compensation has been adopted to suit not only to the nature of the property but also the purpose for which it is to be acquired. How can the essential features or the core of the essential features be determined?
Therefore, the amending power does not 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. He did not purport to deviate from the rule laid down in Shantital's case. I should have thought that Article C is a proviso to Article () in that it enables Parliament or State Legislatures to pass laws of a particular type which would not be deemed to be void even if they violate the provision of Articles , and .
The House of the People is elected by adult franchise. First the language and the setting of each Constitution is different. within the lines of the original instrument as will effect an improvement or better carry out the purpose for which it was framed'. Under Article 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 conditions so require. Therefore, the appeal by the respondents to democratic principles and the necessity of having absolute amending power to prevent a revolution to buttress their contention is rather fruitless, because if their contention is accepted the very democratic principles, which they appeal to, would disappear and a revolution would also become a possibility.
Nor is it necessary that Article C should commence with the words "Notwithstanding anything contained in Article ". All other articles of the Constitution are left to be amended by Parliament. Both these amendments were negatived by the Constituent Assembly Ibid. The peculiar role played by that court 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.
at , case had observed with reference to the decision in Bela Banerjee's case and Subodh Gopal's  S. , (Canada) and by three learned Judges in the Saumur Case. By amendment that view has become the Constitutional mandate. 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. The reasons broadly stated are three. Special Deputy Collector, Madras  S. 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.
said: The American Courts evolved a test of reasonableness by the doctrine of substantive due process which means not that the law is unreasonable but that on political, social and economic grounds the majority of Judges consider that the law ought not be permitted to be made. , 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 contrary to the Constitution.
By this time the opinion had veered round for a strong centre with residuary powers.