1 HCJISikri

216
PART
SUPREME COURT REroRTs [ 1973]
VIII: Conclusions
Supp; soc.1t. I
To summarise, I hold that :
(a) Golak Nath's(') case declared that a constitutional amend-
ment would be bad if it infringed art: 13(2) 1 as thil111pplled.
not only to ordinary legislation but also to an amendment of
the Constitution. ·
(b) Golak Nath's(') case did not decide whether art, . 13(2)
can be amended under art. 368 or determine the exact. mean-
ing of the expression "amendment of this Constitution" in
art. 368.
(c) The expression "amendment of this <Anstitution~ 'docs not
enable Parliament to abrogate or take away. fundamental
rights or to completely change the fundamental features of
the Constitution so as to destroy its identity. Within these
limits Parliament can amend every article.
{d) The Constitution (Twenty-fourth Amendment) Act, 1971,
as interpreted by me, has been validly enacted.
{ e) Article 368 does not enable Parliament in its constituent
capacity to delegate its function of amending the Constitu-
tion to another legislature or to itself in its ordinary legis-
lative capacity. ·
(f) Section 2 of the Constitution (Twenty-fifth Amendment)
Act, 1971, as interpreted by me, is. valid.
(g) Section 3 of the <Anstitution (Twenty-fifth Amendment)
Act, 1971 is void as it delegates power to legislatures to
amend the Constitution. ·
(h) The Constitution (Twenty-Ninth Amendment) Ai:t, 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 funda-
mental rights or only abridge theni; and in the latter case
whether they effect reasonable abridgements in the public
interest. · ·
The Constitution Bench will determine the validity of the Consti-

'tlltion (Twenty-sixth Amendment) Act, 1971 in. accordance wi!;h this
judgment, and the law.
(') (1967) 2 S.C.R. 762.
' KESAVANANDA I'. KERALA (She/at & Grover, JJ.)
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 costs.
217
SHEi.AT & GRoviR, JJ. :-All the six writ petitions involve com•
mon questions as to the validity of the 24th, 25th and 29th amend·
ments to the Constitution. It is not necessary to set out the facts which
have already been succinctly stated in the judgment of the learned
Chief Justice.
It was considered, when the larger bench was constituted, that

the decision of the questions before us would hinge largely on the
correctness or otherwise of the decision of this court In I. C. Golak
Nath & Others v. State of Punjab & Anr.('), according to which it was
held, by majority, that Art. 13(2) of the Constitution was applicable
to constitutional amendments made under Art. 368 and that for that
reason the fundamental rights in Part III could not 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 not correct, the result on the questions now raised be-
fore ns, 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 now is the scope, ambit and ,extent of the amending
power conferred by Art. 368. On that will depend largely the deci-
sion of the other matters arising out of the 25th and the 29th amend-
ments.
The respective positions adopted by learned counsel for the par-

ties diverge widely and are irreconcilable. On the side of the peti-
tioners, it is maintained inter alia that the power of the amending
body (Parliament) under Art. 368 is of a limited nature. The Consti-
tution 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 not extend to alteration or des-
truction 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 Corutitution to them-
selves, 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 constituent
power which a legal sovereign can exercise provided the conditions
laid down in Art. 368 are satisfied. The content and amplitude of the
power is so wide that, if it is so desired, all rights contained in Part III
1
{ ) [1967] 2 S.C.R. 762.

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216

The Constitution Bench will determine the validity of the Consti-

It was considered, when the larger bench was constituted, that

The respective positions adopted by learned counsel for the par-

The respondents, on the other hand, claim an unlimited power

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