MINERVA MILLS LTD. & ORS v. UNION OF INDIA & ORS (2)

Citation: [1981] 1 S.C.R. 206

Court: Supreme Court of India

Bench: Y.V. CHANDRACHUD, P.N. BHAGWATI, A.C. GUPTA, N.L. UNTWALIA, P.S. KAILASAM

Case summary

The peti~ioners further challenge 'the constitutionality of the Constitution (39th Amendment) Act which inserted the impugned Nationalisation n Act as Entry 105 rn the 9th Schedule to the Constitution....

Judgment text

MINERVA MILLS· I:. TD. & ORS,, v. UNION OF INDIA & ORS. July 31, 1980 [Y. v. CHANDRACHUD, C. J. , P. N. BHAGWATI, A. c. GUPTA, N. L- UNTWALIA AND P. S. KAILASAM, JJ. ] Constttution of India Forty Second Amendment Act, Sections 4 and 55- . 1 Whether the Sections are beyond' t/ie amending· power of' the· Parliament under· Article 368 of the Constitution and· therefore void-Whether the Directive Pri11ciples of State policy contai11ed in Part iv· of the ConJtitutio11 ca11 have primacy over the fundamental rights conferred by Part III of the Co11stitution-Consti- · tutio11 of India A. rtlcles 14, 19, 31C, 38 and 368: Minerva Mills Ltd. is a limited company dealing in textiles. On August 20, 1970 the Central Government appointed a committee under section 15 0 rthe Industries (Development Regufation) Act, 1951' to make a fiill and complete-investigation of the affairs of the Minerva Mills Ltd.

as it was of the opinion that there had been or was likely to be substantial' fall' in the ·volume of pro-duction·. The said Committee submitted its report to the Central Goverament in January 1971, on the basis of which the Central Government passed an order dated October 19, 1971 under section 18A of the 1951' Act, authorising_c the National Textile Corporation Ltd. , to take over the management of the Mills on the ground that its affairs are being managed iii a·manner highly detrimental to public interest. This undertaking was nationalised and taken over by the Central Government under the provisions of the Sfck Textile Undertakings (Nationalisation) Act, 1974'. The petitioners challenged the constitutional validity of certain provisions of the· Sick Textile Undertakings (Nationalisation) Act, 1974 and o,f the· order dated O~tober 19, 1971, the constitutionality-of the Constitution (Thirty Ninth Amen~ment) Act which inserted the impugned Nationalisation Act as Entry 105 in.

the Ninth Schedule to the Constitution, the validity of Article 31B of the Constitution and finally the constitutionality-of sections 4 and 55 of the Constitution (Forty Second Amendment) Act, 1976. on the ratio of the majority judgment in Kesavananda Bharati's case, namely, though by Article 368 of the Constitution Parliament is given the power to· amend the Constitution, that power cannot be exercised SQ as to damage the.. basic features of the Constitution or so as to destroy its basic structure. Opining that sections 4 and 55 of the Constitution (Forty Second Amendment) Act are void and beyond the amending power of the Parliament the· Court by majority (Per Chandrachud. C. J.. on behalf of himself, A. C. Gupta. N. L. Untwalia & P. S. Kailasam, JJ. )· · HELD: (1) The newly introduced clause 5 of' Article 368 transgresses" , the limitations on the amending power of Parliament and· is hence unconstitu- ·~ tional.

It demolishes the very pillars on which the preamble rests by ~mpowering the Parliament to exercise its constituent power without any "limitation what-ever". No constituent power can conceivably go higher than the sky-high power conferred by clause (5), for it even empowers the Parliament to "repeal" the provisions of this Constitution", t! iat' is· to· say, to' abrogate· the democracr MINERVA MILLS LTD. V. UNION 207 ·,and substitute for it a totally antithetical form of Government. That can most · vhich the petitioners are aggrievetl. [248C, E·G] / \ Besides, there . is no constitutional or statutory inhiliition against the deci-sion of questions before they actually arise for consideration. Here, in view· of the importance of the question raised and in view of the fact that the question has been raised in many a petition, it is e~pedient in the interest of Justice to settle the true position.

Secondly, what the· court is dealing with is not· an ordinary law which may or may not be· pas! ICd so that it could be said' that the court's jurisdiction i~ being invoked on the hypothetical consideration that a law may be passed in future which will injure the rights of the petitioners. What the court is dealing with is a constitutional amendment which. has been brought into operation and which, of its own force, permits the violaiion of certain freedoms through laws passed . for ·certain purposes. (2480, 249A·- B] Commonwealth of Massachusetts v. Andrew w,· Mellon, 67 Lawyers' Edi·· tion, 1078, 1084; George Ashwander . v. Tennessee Valley Authority, 80 Lawyers' Edition, 688, 71 I, quoted With approval..

· (4) The answer to the question whether in view of the majority decision in Kesavl(Jnanda Bharati it is permissibl~ to the Parliament to so amend the Con-· stitution as to give a position of precedence to directive principles over tho fundamental rights, must necessarily depend upon whether Articles 14 and 19, which must now give way to laws passed in order to effectuate the policy of the State towards securing all or any of the principles of Directive· Policy, are essential features of the basic structure of the Constitution. It is only if thorights conferred by these two articles are not a part of the basic structure of· the Constitution that they can be allowed to be abrogated by a constitutional amendment.

Jf they are a part of the basic structure; they cannot be obliterated' out of existence in relation to a category of laws described in Article 31C or, for the matter of that, in relation to laws of any description whatsoever, passed in order to achieve any object or policy whatsoever. This will serve to bring out the point that a \otal emasculation of the essential features oflthe Constitution is, by the ratio in Keshavananda Bharati, not permissible to-' the Parliament. [249E-Hi:J (5) The importance of Directive Principles in the scheme of our Constitution cannot ever be over-emphasized. Those principles project the high ideal which the Constitution aims to achieve. In fact Dire. ctive· Principles of· State Policy are fundamental in governance of the country and there is no· sphere of public life where delay can defeat justice with more telling effect than the one in which the common man seeks the realisation of his aspirations.

But to destroy the guarantees given by Part III in order purportedly to achieve the goals of Part IV is plainly to subvert the Constitution by destroying its basic structure. Fundamental rights occupy a unique place in the Jive~· of civilized societies and have been variously described as "transcendental"; "inalienable" and "primordial" and as said in Kesavananda Bharati they con·stitute the ark of the Constitution. [250B-C, 254H, 255AJ The significance; of the perception that Parts III and IV together consti-tute the core of commitment to social revolution and they, together, are the conscience of the Constitution is to be traced to a deep understanding of the· scheme of the Indian Constitution. Parts III and IV are like two wheels of a chariot, one no Jess important than the other. Snap one and the other will' Jose its efficacy.

They are like a twin formula for achieving the social revo-lution, which is the ideal which the visionary founders of the Constitution set MINERVA MILLS LTD. v. UNION 209 / before tl)emselves. In other words, the Indian Constitution i~ founded on the bed-rock of the balance between Parts III and IV. To give absolute primacy to one over the other is to disturb the harmony of the Constitution. This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution. [255B-D] The edifice of Indian Constituti0n is built upon the concepts crystallized in the Preamble. Having resolved to constitute ourselves into a Socialist State which carried with it the obligation to secure to our. people justice-social, economic and political, Part IV has been put into our Constitution containing. directive principles of State Policy which specify the socialistic goal to be achieved.

Having promised the people a democratic polity which carries with it the obligation of securing to the people liberty of thought, expression, belief, faith and worship, equality of status and of opportunity and the assurance that the dignity of the individual will :it all costs be prese. rved, Part III has been put in our Constitution conferring those rights on the people. Those rights are not an end in themselves but are the means to an end. The end is specified in Part IV. Therefore, the rights conferred by Part III are subject to reasonable restrictions and the Constitution provides that enforcement of some of them may, in stated uncommon circumstances, be suspended. But just as the rights conferred by Part III would be without a radar and a compass if they were not geared to an ideal, in the same manner the attainment of the ideals set out in Part IV would become a pretence for tyranny if the ·price to be paid for achieving that ideal is human freedoms.

One of the faiths of our founding fathers was the purity of means. The goals set out in Part IV have, therefore, to be achieved Without the abrogation Of the means' provided for ·by Part III. It is in this sense that Parts III and IV together constitute the core of our Constitution ·and cmnbine to form its conscience. Anything that destroys the balance between the two parts will ipso facto destroy an essential element of the basic structure of our Constitution. [253D-H, 256A-B] {SA) On any reasonable interpretation, there can be no doubt that by r the amendment introduced by section 4 of the Forty Second Amendment, Articles, 14 and 19 stand abrogated at least in regard to the category of laws described in Article 3JC.

The startling consequence Which the amendment has produced is that even if a law is in total defiance of the mandate of Article l 13 read with Articles 14 and 19, its validity will not be open to question so long as its object is to secure a directive principle of State Policy. [256D-E] (6) No doubt, it is possible to concejve of laws which will not attract Article 3lC, since they may not bear direct and reasonable nexus with the provisions of Part IV. However, a large majority of laws, the bulk of them, can at any rate be easily justified as having been passed for the purpose of givin. g effect to the policy of the State towards securing some ptinciple or the other laid down in Part IV. In respect of all such laws, which will cover an extensive gamut of the relevant legislative activity, the protection of Articles 14 and 19 will stand wholly withdrawn.

It is then no answer to say, while dete~mining whether the basic structure of the Constitution is altered, that at least some laws will fall outside the scope of Article 31C. [2S6E-H] (7) A total deprivation of fundamental rights, even in a limited area, can amount to abrogation of a fundamental right just as partial deprivation in every area can. The fact, therefore that some laws may fall outside the scope of Article 31. C is no answer to the contention that the withdrawal of protection of Articles 14 and 19 . from a large number of laws destroys ihe basic structure of the Constitution. · [2S6H, 257A-B] · (8) Article 38 provides that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order i. n which justice, social, economic and political, shall inform all the institutions of the national life. It is not correct that a]] the Directive .

Principles of State Policy contained in Part IV eventually verge upon Article 38. Article 38 undoubtedly contains a broad guideline, but the other Directive Principles are not mere illustrations of the principle contained in Article 38. Secondly, if it be true that no law passed for the· purpose of giving effect to the Directive Principle in Article 38 can damage or destroy the basic structure of the Con- 1 stitution, there was no necessity and more so the justification, for providing by a Constitutional amendment that no law which is passed for giving effect. to the policy of the State towards securing any principle laid down in Patt IV shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges the rights conferred by Articles 14 and 19. [257C-F] The object and purpose of the amendment of Article 31C is really to save Jaws which cannot be saved under Article 19(2) to (6).

Laws which fall under those provisions are in the nature of reasonable restrictions o~ the fundamental rights in public interest and therefore they abridge but do not abrogate the fundamental rights. It was in order to deal with laws which do not get the protection of Article 19(2) to (6) that Article 31C was amended to say that the provisions of Article 19, inter alia cannot be invoked for voiding the laws of the description mentioned in Article 31C. [257F-G] (9) Articles 14 and 19 do not confer any fanciful rights. They confer rights which are elementary for the proper and effectivo functioning of a demo· cracy, They are universally so regarded, as is evident from the Universal Declaration of Human Right~. If Articles 14 and 19 are put out of operation in regard to the bulk of laws which the legislatures are empowered to pass Article 32 will be drained of its life-blood.

[257G·H, 258A] Section 4 of the Forty Second Amendment found an easy way to circum· vent Article 32(4) by withdrawing totally the protection of Articles 14 and 19 in respect of a large category of laws, so that there will be no violation to complain of in regard to which redress can be sought under Article 32. The power to take away the protection of Article 14 is the power to discriminate without a valid basis for classification. By a long series of decisions the Supreme Court has held that Article 14 forbids class legislation but it does not forbid classification. The purpose of withdrawing the protection of Article 14, therefore, can only be to acquire the power to enact c. lass legislation. Then again, regional chauvinism will have a field day if Article 19(1)(d) is not avail· able to the citizens. Already, there are distnrbing trends on a part of the Indian horizon.

Those trends will receive strength and encouragement if laws can be passed with immunity, preventing the citizens from exercising their right to move freely throughout the territory of India. The nature and quality of the amendment introduced by section 4 of the Forty Second Amendment is, therefore, such that it virtually tears away the heart of basic fundamental freedoms. [258B·E] Article 3IC speaks of laws giving effect to the policy of the "State". Article 12 which governs the interpretation of Article 31C provides that the word "State" in Part III includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other MINERVA MILLS LTD, v. UNION 211 -authorities within the territory of India or under the control cf the Governnnent of India. Wide as the language of Article 31C is, the definition of the ·word "State" in Article 12 gives to Article 31C an operation of the widest camplitude.

Even if a State Legislature passes a law for the purpose of giving -effect to the policy by a local authority towards securing a directive principle, ·the Jaw wilf enjoy immunity frqm the provisions of Articles 14 and 19. The State Legislatures are thus given an almost unfettered discretion to deprive the ult is that even if an amendment is purported to have been made without complying with the procedure prescribed in sub-clause· (2) including its proviso, and is therefore unconstitutional, it would still be immune from challenge. [284E-F] As per Kesavananda Bharati's case' any amendment of the Constitution D which did not conform to the procedure prescribed by sub-clause (2) and its proviso was no amendment at all. and a court would declare it invalid.

Thus if an amendment was passed by a simple majority in the House of the People and the Council of States and the President assented to the amendment, it would, in law, be no amendment at all because the requitement of clause (2) is that it should be passed by a majority of each of the Houses separately and by not less than two-third of the Members present and voting. But if clause £ (4) was valid it would become difficult to challenge the validity of such an amendment and it would prevail though made in defiance of a mandatory constitutional requirement. Clause (2) including its proviso would be rendered completely superfluous and meaningless · and its prescription would become merely a paper requirement.

Moreover, apart from nullifying the require· J ments of clause (2) and its proviso, clause (4) has also the effect of rendering an amendment immune from challenge even if it damages or destroys the basic -F structure of the Constitution and is, therefore, outside the amending power of Parliament. So long as clause (4) stands, an amendment of the Constitution, though unconstitutional and void as transgressing the limitation on the amend· ing power of Parliament as laid down in Kesavananda Bharati'~ case, would be unchallengeable in a court of law. The consequence of this exclusion of the power of judicial review would be that, in effect and substance, the limita· tion on the amending power of Parliament would, from .

a practical point of -G view, become non-existent and it would not be incorrect to say, for covertly and indirectly by the exclusion of judicial review the amending power of Parlia· ment·would stand enlarged contrary to the decision of this Court in Kesavananda B/zaratts case. This would, undoubtedly, damage the basic structure of the Constitution because there . are two essential features of the basic structure which would b~ violated, namely, the limited amending power of the Parliament and the power of judicial review with a view to examining wh'ether any :H authority under the Constitution has exceeded the limits d its powers. [284F-H, 285A-D] Our Constitution is a controlled constitution which confers powers on the various authorities created and recognised by it and defines the limits of those MINERVA MILLS LTD. v. UNION Zli powers.

The Constitution is suprema lex, the paramount law of the land and there is no authority, no department or branch of the State which is above or beyond the Constitution or has powers unfettered and unrestricted by the Constitution. The Constitution has devised a structure of power relationship which checks and balances and limits are placed on the powers of every authority of instrument r 15--646 S. C. India/SO SUPREME' COURT REPORTS [1981] 1 S. C. R. our constitutional scheme Fundamental Rights are superior to Directive Principles or that Directive Principles must yield to Fundamental Rights. Both are in fact equally fundamental and the courts have, therefore, tried to harmonise them by importing the Directive Principles in the construction of the Fundamental Rights.

For the purpose · of determining the reasonableness of the restriction imposed· ,on Fundamental Rights the court may legitimately take into account the Directive Principles and where executive action is taken or legislation enacted for the purpose of giving effect to a Directive Principle, the restriction imposed by it on a Fundamental Right may be presumed to be reasonable. [325C, E-H, 326A-D, 327H, 328A-H, 329A-B]. State of Bilzar v. Kameslzwar Singh, [1952] SCR 889; Pathumma v. State of Kera/a, [1978] 2 SCR 537; M /s. Kasturi Lal Lakshmi Reddy etc. v. The State of Jammu & Kashmir & Anr. , [1980] 3 SCR p. 1338, applied. ' State of Madras v. Champkam Dorairajan, [1951] SCR 529, dissented from~ · In Re . Kera/a Education Bill, [1959] SCR 995, Referred to. . (vii) If a law is enacted for the purpose of giving effect to a Directive Principle and it imposes a restriction on a Fundamental Right, it would be difficult to condemn such restriction as unreasonable or not in public interest.

So also where a law is enacted for giving effect to a Directive Principle in furtherance of the constitutional goal of social and economic . justice it may conflict with a formalistic and doctrinaire view of equality before the law, but it would almost always conform to the principle of equality before the law in its total magnitude and dimension, because the equality clause in the Constitution does not speak of mere formal equality before the law but embodies the concept of real and substantive equality which strikes at inequalities arising on account of vast social and economic differentials and is consequently an essential ingredient of social and economic justice. The dynamic principle of egalitarianism fertilises the concept of social and economic justice; it is one of its essential elements and there can be no real social and economic justice where there is a breach of the egalitarian principle. If, therefore, there is a law enacted by the legislature which is really.

and genuinely for giving effect tn a Directive Principle with a view to promoting social and economic justice, such law does not violate the principle of egalitarianism and is in accord with the principle pf equality before . the law as understood not in its strict and formalistic sense, but in its dynamic and activist magnitude. In the circumstances, the Court would not be unjustified in making the presumption that a law enacted really and genuinely for giving effect to a Directive Principle in furtherance of the cause of social and economic justice, would not infringe any Fundamental Right under Article 14 or 19. This being the correct interpretation of the constitutional provisions, the amended Article 31C does no more than codify the existing position under the constitutional scheme by providing immunity to a law enacted really and genuinely for giving effect to a Directive Principle, so that needlessly tutile and time-consuming controversy .

whether such law contravenes Article 14 or 19 is eliminated. The amended Article 31C cannot in the circumstances be regarded as violative of the basic structure of the Constitution. [329F-H, 330A-F]. (viia) A law enacted really and genuinely for giving effect to a Directive Principle, in discharge of the constitutional obligation laid down upon the State under Article 37, would not be invalid, because it infringes. a fundamental right. If the Court takes the view that it is invalid, it would be placing Fundamental Rights above Directive Principles, a position not supported at all by MINERVA MILLS LTD. V. UNION 221 llhe history of their enactment as also by the constitutional scheme. The two constitutional obligations, one in regard to Fundamental Rights and the other ai:1 regard to Directive Principles, are· of' equal strength and merit and there • is no reason why, in case of conflict, the former should be given precedence over the latter. Whether or not a particular mandate of the .

Constitution is justiciable has no bearing at all on its importance and significance and justi· ciability by itself can never be a ground for placing one constitutional mandate on a higher pedestal thari the other. The effect of giving greater weightage tO the constitutional mandate in regard to Fundamental Rights would be tco relegate the Directive Principles to a secondary position and emasculate the constitutional command that the Directive Principles shall be fundamental in the governance of the country and it shall be the duty of the State to apply them in making laws. It would amount to refusal to give effect to the words "fundamental in the governance of the country" and a constitutional command which has been declared by the Constitution to be fundamental would be rendered non-fundamental.

The result would be that a positive mandate of the 'Constitution commanding the State to make a law would be defeated by a negative c::mstitutional obligation not to encroach upon a Fundamental Right and the law made by the legislature pursuant to a positive constitutional command would be delegitimised and declared unconstitutional. This plainly would be contrary to the constitutional scheme because the Constitution does not accord :a higher place to the constitutional obligation in regard to Fundamenal Rights over the constitutional obligation in regard to Directive Principles and does :Jot say that the implementation of . the Directive Principles shall only be within the permissible limits laid down in the Chapter on Fundamental Rights. f330A, 331A-FJ. Karimbil Kunhikoman v. State of Kera/a, [1962} 1 SCR 319 (supra) referred to. (viii) It is not correct to say that consequent to the amendment of Arti- _,.

-cle 31C the Constitution is now made to stand 'on its head and not on its legs. ' Prior to the amendments, Fundamental Rights had a superior or a higher -position in the constitutional scheme than Directive Principles and. there is accordingly no question at all of any subversion of the constitutional structure . by the amendment. There can be no doubt that the intention of the Consti- -tution makers was that the Fundamental Rights should operate within the socioeconomic struc'. ure or a wider continuum envisaged by the Directive Principle, for then only would the Fundamental Rights become exerciseable by all and a proper balance and harmony between Fundamental Rights and Directive Prin- ·ciples secured. The Constitution makers, therefore, never contemplated that a ·conflict would arise between the constitutional obligation in regard to Fundamental Rights and the constitutional mandate in regard to Directive Principles.

"But if a conflict does arise between these two constitutional mandates of eaual fundamental character, since the Constitution did not provide any answer ~nd ~ perhaps for the reason that such a situation was not anticipated, the problem had to be solved by Parliament and some modus operandi had to be evolved in order to eliminate the possibility of conflict howsoever remote it might be. '[3310-H, 332A-D]. Parliament took the view that the constitutional obligation in regard to Directive Principles should have precedence over the constitutional obligation in regard to the Fundamental Rights in Articles 14 and 19, because Fundamental 'Rights thougb precious and valuable for maintaining the delnocratic way of liife, bave absolutely no meaning for the poor, down trodden and economically r back'ward classes of people who unfortunately constitute the bulk of the people, of India and the only way in which Fundamental Rights can be made meaning", .

, ful for them is by implementing the Directive Principles, for the Directin Principles are intended to bring . about a socio-economic revolution· and tO: create a new socio-economic order where there· will be social and economic justice for all and every one, not only a fortunate few but the teeming million~ of India, would be able to participate in the fruits of freedom and development. , and exercise the Fundamental Rights. Parliament, therefore, amended Arti-, cle 31C with a view to providing that in case of conflict Directive Principle~ shall have precedence over the Fundamental Rights in Articles 14 and 19 and the latter shall yield place to the former. The positive constitutional command, to make Jaws for giving effect to the Directive Principles shall prevail ·o,. er, the negative constitutional obligation not to encroach on the Fundamental Right~ embodied in Articles 14 and 19. [333C-F]. Parliament made the amendment in Article 3IC because it realised that° "if the.

State fails to create conditions in which the fundamental freedoms could. be enjoyed by all, the freedom of the few will be at the mercy of the many' and then all freedoms will vanish" and "in order, therefore, to preserve their freedom, the privileged few must part with ·a. portion of it. " Therefore; it cannot at all be said that the basic structure of the Constitution is affected when for evolving a modus vivandi for resolving . a possible remote conflict between' i> two constitutional mandates of equally fundamental character, Parliam. ent decidei by way of amendment of Article 31C that in case of such conflict the constitutional m. andate in regard to . DirectiTe Principles shall prevail . wer the consti'. tutional mandate in regard. to the Fundamental Rights under Articles 14 and 19. The. amendment. in . A. rticle 3! C far. from damaging t.

he basic structure of the Constitution strengthens and re-enforces it by giTing fundamental importance to the rights of the members of the community as against the rights cf a few individuals and . furthering the objectiTe of the Constitution to build an egalitarian social order where there will be social and economic justice fo~ all, every one including the low Tisibility areas of humanity ill the country will be able to exercise Fundamental Rights and the dignity of the individual and the worth of the human person which are cherished nlues will not remain merely the exclusive privileges of a few but become a living reality for thtr many. [334H, 335A-D].

(ix) The principle of egalitarianism is an essential element of social and economic justice and, therefore, where a law is enacted for giving effect to a Directive Principle with a view· to promoting social and economic justice, it would not run counter to the egalitarian principle and would not therefore b• violative of the basic structure, even if it infringes equality before the law in its narrow and formalistic sense. No law which is really and genuinely for giving effect to a Directive Principle can be inconsistent with the egalitarian principle and therefore the protection granted to it under the amended Article 31C against violation of Article 14 cannot have the effect of damaging the basic structure. Therefore, there is no violation of the basic structure involTed in the amendment of Article 31C.

In fact, one it is accepted that the unamended Article 31C was constitutionally valid, it could only be on the basis that it did not damage or destroy the basic structure of the Constitution, it cannot b~ said that the amended Article 31C is violative of the basic structure. If the exclusion of the Fundamental Rights embodied in Articles 14 and 19 coulcl be legitimately made for giving effect to the Directive Principles set out in: Clauses (bJ and (cJ of Article 39 without affecting the basic ~tructure; · thCiJ MINERVA MILLS . LTD, V. UNION 223 '. Fundamental· Rights c. annot be excluded for giving effect to the other Directive Principles. If the cons~itutional obligation in regard to the Directive Principles ' • ·set out in clauses (b) and (c) of Article 39 could be given precedence over the 'Constitutional ·obligation in regard to the Fundamental Rights under Articles . 14 •) .

and 19, there is no reason in principles why such precedence c~nnot be given to the constitutional obligation in regard · to the other Directive Principles ·which stand on the same footing. It would be incongruous to hold the amended Article 31C invalid when the unamended Article 31C has been held to be valid by the majority decision in Kesavananda Bharati's and by the order, in Waman Rao's case, dated 9th May, 1. 980. [335E-H, 336A-C]. (x) It is clear from the language of the amended[ Article 31C that the . law which is protected from challenge under Articles 14 and 19 is law giving 'effect to the policy of the State towards securing or any ·of the Directive Principles. Whenever, therefore, any protection is claimed for a law under the 'amended Article 31C, it is necessary for the Court to examine whether the ).

law has been enacted for giving effect to the policy of the State towards ,securing any one or more of the Directive Principles and it is only if the ·oourt is so satisfied as a result of judicial scrutiny that the court would accord the protection of the amended Article 31C to such law. Now it is u. ndoubtedly true that the words used in the amended Article are "law giving effect to 'the policy of the State" b~t the policy of the State which is con! emplated there is the policy towards securing one or more of the Directive Principtes. It is the constitutional obligation of the State. to s.

ecure the Directive Principles and that is the policy which the State is required to adopt and when a law is 'enacted in pursuance of this policy of implementing the Directive Principles ·1md it seeks to give effect to a Directive Principle, it would both from the point of grammar and language, be correct to say that it is made for giving ·effect to the policy of the State towards securing such Directive· Principle. The ;words "law giving effect to the policy· of . the State" are not so wide . but in the context and collocation in which they occur, they are intended to refer only to a law enacted for the purpose of implementing or giving effect to :enc or more of the Directive Principles. [337A-F]. (xi). The Court before which protection for a particular law is claimed . under the· amended Article·- 31C- would, therefore, have to examine -whether iUCh law is enacted for giving effect to a Directive Principle, for genuinely it ·would have the protection of the amended Article 31C.

A claim that a particular law is enacted for giving effect to Directive Principles put forward ·tiy _the State would have no meaning or value; it is the court which would have to determine the question. Again it is not enough that there may be some -connection between a provision of the law an'd a Directive Principle. The .. connection has to be between the law and the Directive Principle and it must -ba a real and substantial connection. To determine whether a law satisfies . this test, the court would have to examine the pith and substance, the true ·nature and character of the law as also its design and the subject matter dealt with by it together with its object and scope. If on such examination, the court finds that the dominant object of the Jaw is to give effect to the Directive Principle, it would accord protection to the law under the amended Article 31C. But if the court finds that the law though passed seemingly for .

giving effect to a Directive Principle, is, in pith and substance, one for accomplishing an unauthorised purpose-unauthorised in the sense of not being covered by any Directive Principle. -such law would not have the pro! eciion of ·the amended Article 31C. The amended Article 31C does not give protection to ll law which has merely some remote or tenuous connection with a Directive Principle. What is necessary is .. that there must be a real and substantial connection and the dominant object of the law must . be to give effect to the Directive Principle, and that is a matter which the court would have to decide before any claim for protection under the amended Article 31C can be allowed~ [337F-H, 338A-B, F-G]. The words used in the amended Article 31C are : "law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV" and these words on a plain natural construction do not include.

all the provisions of law but only those which give effect to the Directive Principle. Therefore, it is not every provision of a statute which has been enacted with the dominant object of giving effect to a Directive Principle that is 'entitled to protection but only those provisiorrs of the statute which are basically and essentially necessary for giving effect to-the Directive Principles are protected under the amended Article 31C. . If there are any other provisions in the statute which do not fall within this category, they would not be entitled to protection and their validity w9uld have to be judged by reference to Articles 14 and 19.

Where, therefore, protection is claimed in respect of a statute under the amended Article 31C, the court would have first to determine whether there is real and substantial connection between the law and a Directive Principle and the predominant object of the law is to give effect tosuch Directive Principle and if the answer to this question is in the affirmative, the court would then have to consider which are the provisions of the law basically and essentially necessary for. giving effect to the Directive Principle and give protection of the amended Article 31C only to those provisions. The question whether any particular provision of the law is basically and essentially necessary for giving effect to the Directive Principle, would depend, to a Iarge extent, . on how closely and integrally such provision is connected with the implementation of th~ Directive Principle.

Jf the court finds that a particular provision is subsidiary or incidental or not essentially and integrally connected with the implementation of the Directive Principle or is of such a nature that though seemingly a part of the general design of the main provisions of the statute, the dominant object is to achieve an unauthorised purpose, it would not enjoy the protection of amended Article 31C and would be liable to be struck down as invalid if it violates Article 14 or 19'. [33'8-G-H, 339A, l>H, 340A-D]. Akadasi Padhan v. State of Orissa, [1963] 2 Supp. SCR 691; Rashbihari Panda etc. v. State of Orissa, [1969] 3 SCR 374; M/s. Vrailal Manila/ & Co. & Ors. v. State of Madhya Pradesh & Ors. , [1970] 1 SCR 400 and R. C. Cooper v. Union of India, [1970] 3 SCR 530, followed.

(xii) If the Court finds that even in a statute enacted for giving effect to a Directive Principle, there is a provision which is not essentially and inte• grally connected with the implementation of the Directive Principle or the dominant object of which is to achieve an unauthorised purpose it would be outside the protection of the amended Article 31C and would have to meet the challenge of Articles 14 and 19. [340F-H]. (xiii) Articles 39 to 51 contain Directive Principles referring to certain specific objectives and in order that a law should be for giving effect to one of those Directive Principles, there would be a real and substantial connection between the law and the specific objective set out in ·such Directive Principle. Obviously, the objectives set out in . these Directive Principles being specific and limited, every law made by a legislature in the country cannot possibly 'have a real and substantial connection with one or the other of these specific- MINERVA MILLS LTD.

V. UNION 225 objectives. It is only a limited number of laws which would have a real and substantial connection with one or the other of the specific objectives contained in these Directive Principles and any and every law would not come. within this category. [341A-C]. (xiv) Article 38 is a general article which stresses the obligation of the State to establish a social order in which justice-social, economic and politicalshall inform all the institutions of national life.

It no doubt talks of the duty of the State to promote the welfare of the people and there can be no doubt that standing by -itself this might cover a fairly wide area but the objective set out in the Article is not merely promotion of the welfare -of the people, but there is a further requirement that the welfare of the people is to be promoted by the State, not in any manner it likes, not according to its whim and fancy, but for securing and protecting a particular type 'of social order and that social order should be such as would ensure social, economic and political justice for all. Social, economic and political justice is the objective set out in the Directive Principle in Article 38 and it is this objective which is made funqamental in the governance of the country and which the State is laid under an obligation to realise.

This Directive Principle forms the base on which the entire structure of the Directive Principles is reared and social, economic and political justice is the signature tune of the other Directive Principles. The Directive Principles set out in the subsequent Articles following upon Article 38 merely particularise and set out facets and aspects of the ideal of social, economic and political justice articulated in Article ,38. [34! C-GJ. (xv) The concept of social and economic justice may not be very easy of definition but its broad contours are to be found in some of the provisions of the Fundamental Rights and in the Directive Principles and whenever question arises whether a legislation is for giving effect to social and economic justice, it is with reference to these provisions that the question would have to be determined. There is nothing so vague or indefinite about the concept of social or economic justice that almost any kind of legislation could be justified under it.

Moreover, where a claim for protection is made in respect of a legislation on the ground that it is enacted for giving effect to a Directive· Principle, . the Directive Principle to which it is claimed to be related would not ordinarily be the general Directive Principle set out in Article 38, but could be one of the specific Directive Principles set out in the succeeding Articles because these latter particularise the concept of social and economic justice referred to in Article 38. Therefore, it is not correct to say that if the amendment in Article 31C were held valid, it would have the effect of protecting every possible legislation under the sun and that would in effect and substanee wipe out Articles 14 and 19 from the Constitution. This is a tall and extreme argument, not justified in the provisions of the Constitution. [341H, 342A-D}. HELD further (concurring with the majority) : 6.

Clause (a) of Article 31A is constitutionally valid even on the application of the basic structure test. (2900]. Where any law is enacted for giving effect to a Directive Principle with the view to furthering the constitutional goal of social and economic justice, there would be no violation of the basic structure, even if it infringes formal equality before the law under Article 14 or any fundamental right under Article 19. Here, clause (a) of Article 3IA protects a law of agrarian reform which is clearly in the context of the socio-economic conditions prevailing in .. lildia, a basic requirement of social ·and economic justice and 1s covered by the Directive Principies set out in clause (b) and (c) of Article 39 and it cannot be regarded as violating the basic structure of the Constitution. On the contrary, agrarian reform~ leading to social and economic justice to the rural popula:tion ;, an objective which strengthens the basic structure of the Constitution. [290B·D].

Even on the basis of the doctrine of stare decisis the whole of Article 31A is constitutionally valid. The view that Article 31A is constitutionally valid has been taken in atleast three decisions of the Supreme Court, namely, Shankri Prasad's case, Sajian Singh'. r case and Golaknath's case and it has hold the field for over 28 years and on the faith of its correctness milliom of acres of agri· cultural 'land have changed hands and now agrarian relations haTe come into being transferring the entire rural economy. Even though tha constitutional validity of Article 31A was not tested in these decisions by reference to the ·basic structure doctrine, the court would not be justified in allowing the earlier decisions to be reconsidered and the question of constitutional validitv of Article 31A re-opened. These decisions have giTen a quietus to the constitutional challenge against the validity of Article 31A and this quietus should not now be allowed to be disturbed.

[290E, 2920, 294G-H, 295A]. Shankri Prasad T. Union of India, [1962] 2 SCR 89; Sajjan Sin11h v. State 0 of Rajasthan, [1965] 1 SCR 933; J. C. Golalcnath v. Union of India. [1967] 2 SCR 762; Ambika Prasad Mishra v. State of U. P. and Ors. , [1980] 3 SCR p. 1159, followed, It' is no doubt true that the Supreme Court has power to review its earlier decisions or even depart from them. and the doctrine of ·,1"re decis'is cannot 'be permitted to perpetuate erroneous decisiOns of the court to the detriment of the general welfare of the public. Certainty a:nd continuity are essential E' ingredients of rule of law. Certainty and applicability of law would be considerably eroded and suffer a serious set back if the highest court in the land were ready to oTer~Ie the views expressed by it in( earlier decisions even though ihat view has held the field for a number of years.

It is obTious that when constitutional problems are brought before the Supreme Court for its decision, coinplex and difficult questions are bound to arise and since the decision of many ·of such questions may depend upon choice betw~n competing values: two Tiews may be possible depending upon the Talne judgment or the choice of T:ilues made by the individual judge. Therefore. if one view has been taken ·by the court after mature deliberation the fact that another Bench is inclined to take another view would not justify the court in reconsidering the earlier decision and overrule it. The law laid down by the Supreme Court is biμding on all the courts in the country and numerous ques' tions all over the country arc decided in accordance with the Tiew taken by the Supreme Court. Many people arrange their affairs and large number of transactions also. take place on the faith of the correctness of the dec. ision given by the Supreme Court. It would create uncertainty, unstability .

and confusion if the law propounded by the Supreme Court on the face of which numerous cases have· been decided and many transactions havr taken place is held fo be not the correct law after a number of years. The doctrine of stare decisi• is evolved from the maxim "stare decisis et non quit \.. -D;. 302C] MINERVA MILLS LTD. v. UNION 229 What the first part of the unamended Article 31C does is merely to ·~ abridge the fundamental rights in Articles 14 and 19 by excluding the ap· plicability to legislation giving effect to the policy towards securing the principles specified in clauses (b) and (c) of Article 39. The first part of the unamended Article 31C is basically of the same genre as Article 31A with only this difference that whereas Article 31A protects laws relating to certain subjects, the first part of the unamended Article 31C deals with laws having certain objectives.

There is no qualitative difference between Article 31A and the first part of the unamended Article 31C in so far as the exclusion of Articles 14 and 19 is concerned. The fact that the provisions to thei first part of the unamended Article 31C are more comprehensive and have greater width compared to those of Article 31A does not make any difference in principle. If Article 31A is constitutionally valid, the first part of the unamended Article cannot be held to be unconstitutional. The first part of the unamended Article 3IC, in fact, stands on a more ,secure footing because it accords protection :c against infraction of Articles 14 and 19 to legislation enacted for giving effect ·to the Directive Principles set out in clauses (b) and (c) of Article 39.

The legislature in enacting such legislation acts upon the constitutional mandate contained in Article 37 according to which the Directive Principles are funda- 'mental in the governance of the country and it is the duty of the State to apply those principles in making laws. It is for the purpose of giving effect to the Directive Principles set out in clauses (b) and (c} of: Artide 39 )} , in discharge of the constitutional obligation laid upon the State under Article 37 that fundamental rights in Articles 14 and 19 are allowed to be abridged. . A constitutional amendment, therefore, making such a provision ~annot be con· demned as violative of the basic structure of the Constitution. [301 E-H, 302A-C].

(9) Even if the Constitution (Fortieth Amendment) Act, 1976 is unconsti· tutional and void and the Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings) and (Amendment) Act, 1972 (Act II of 1975), the Maharashtra "E Agricultural Lands (Lowering of Ceiling on Holdings) and (Amendment) Act, 1975, (Act XLVII of 1945) and the Maharashtra Lands (Ceiling on Holdings) Amendment Act, 1975, (Act II of 1976) have not been validly· included in the Ninth Schedule so as to earn the protection of Article 31B, they are still saved from invalidation by Article 31A and so far as the Constitution (Forty Second Amendment) Act, 1976, is concerned, it is outside the constituent power nf Parliament in so far as it seeks to include clauses (4) and (5) in Article 368. [302C·D, G-H].

It is clear on a plain natural construction of its language that under the proviso to Article 83(2) the duration of the Lok Sabha could be extended only during the operation of a proclamation of emergency and if, therefore, no proclamation of emergency was in operation at the relevant time, the House of People (Extension of Duration) Act, 1976 would be outside the competence of Parliament under the proviso to Article 83(2). Again the language of Article 352 (I) makes it clear that the President can fake action under this clause only if he satisfies that a grave emergency exists whereby the security of India or any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance. The satisfaction of the President "that a grave emergency exists whereby the security of India..................

is threatened whether by war or external aggression or internal disturbance" is a condition precedent which must be fulfilled before the President can issue proclamation under Article 352 clause (1). When this condition precedent is satisfied, the President may exercise the power under clause (I) of Article 352 and issue a ·proclamation of emergency. The constitutional implications of declaration ·of emergency under Article 352 clause (1) are vast and thoy are provided in Articles 83(2)> 250; 353, 358 and 359. The emergency . being an exceptional situation arising out of a national crisis certain wide and sweeping ~powers have been conferred· on the Central Government and Parliament with ·a view to combat the siiuation and restore normal conditions. One such power is that given by Article 83(2) which provides ' that while a proclamation of emergency is in operation, Parliament may by law extend its duration for a :B period not exceeding one year at a time.

Further several drastic consequences ensue upon the inaking of a declaration of emergency. The issue of 3 procla• ·mation of emergency make& serious inroads int0. the prin~iple of federalism and emasculates the operation and efficacy of the Fundamental Rights. . The . power of declaring an emergency is, therefore, a power fraught with grave consequences and it has the effect of disturbing the entire power structure ·under the Constitution. But it is a necessary power given to the Central Gov~ ernment with a view to arming it adequately to meet an exceptional situation arising out of threat to the security of the country on account of war or ·external aggression, or internal disturbance or imminent' danger of any such ·calamity. It is, therefore, a power which has to be exercised with the greatest care and caution and utmost responsibility, [303A-B-306E-H, 307E·G]. (10) There is no bar . to the judicial review of the validity of a proclamation .

D of emergency issued by the President under Article 352 clause (! ). [308B-C]. If a question brought before the court is purely a political question not ·involving determination of any legal or constitutionai right or obligation, th~ •courf would not entertain it, since the court is concerned only with adjudication of legal rights and liabilities. Merely because a question has a political colour the court cannot fold its hands in despair and declare "judicial hands off". So long as the question is whether an· authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the court. Indeed it wouid be its constitutional_ obligation to do so. Tlie 'court is the ultimate interpreter of the Constitution and when there is mani- ·r~stly unauth~rised exercise of power under . the Constitution, it is the dufy ·of the court to intervene.

In 'fact, to this Court as much as to other Branches 'Of Government is committed the conservation and furtherance ot constitutional ·values. Th~ Court's task is to identify those values in the constitutional plan ·and to work them inio life iq the cases that reach the Court. "Tact al1d wise restraint ought to temper any power but courage and the acceptance ·of responsibility have their place too". The Court cannot and should not shirk thi~ responsibility because it has sworn the oath of ~llegiance to the 'Constitution. and 'is also accountable to the people of thh country. . It would :not, therefore, be right for the Court to deCline to examiiie wheflief '"iil" ~II given case there is any constitutional violation involved in the Presidtnt iss11ing I . proclamation of emergency under clause (I) of Article 352. [3080, F, 309A-Cj.

The constitutional jurisdiction of this Court does not extend further than ·saying whether the limits on the power conferred by the Constitution on the President have been observed or there· is transgression of such limits. The· . only limit on the power of the President under Article 352 clause (I)· is that the President should be satisfied that a grave emergency exists whereby the security of India or any part thereof is threatened whether by war 0r external aggression or internal disturbance.. The satisfaction of the President is a subjective one and carinot be decided by. reference to any objective· tests. It is deliberately and advisedly subjective because the mattecin te~pecf 'lb MINERVA MILLS LTD. v. UNION 231 which he is to be satisfied is of such a nature that its decision must necessarily be left to the Executive Branch of Government.

There may be a wide range of situations which may arise and their political implications and consequences may have to be evaluated in order to decide whether there is ·situation of grave emergency by reason of the security of the country being threatened by war or external aggression or internal disturbance. It would largely be a political judgment based on assessment of diverse and varied factors, fast changing situations, potential consequences and a host of other imponderables.. · It cannot, therefore, by its very nature, be a fit subject matter for adjndication by judicial methods and materials and hence it is left to the subjective satisfaction of the Central Government which is best in a position to decide it. The Court cannot go into the question of correctness or adequacy of the facts arid circumstances on which the satisfaction of the Central Govemment is based.

That would b~ a dangerous exercise for the Court, both because it is not a fit instrument for determining a question of this kind and also because the Court would thereby usurp the function of the executi'l'e and in doing so enter the "political thicket" which it must avoid if it is to retruin its legitimacy with the people. But, if the satisfaction is mala fide or is based on wholly extraneous and irrelevant ground, the Court would hne jurisdiction to examine it because in that case there would be no satisfaction of the President in regard to the matter on which he is required to be satisfied. The satisfaction of the President is a condition precedent to the exoccise ·of power under Article 352 clause (I) and if it can be shown that there is no satisfaction of the President at all, the exercise of the power would be· constitutionally invalid; [309C-H, 310A'. B].

It is true that by reason of clause (5)(a) of 4rticle 352, the satisfaction of the President is made final and conclusive and cannot be assailed on any . ground,· but, the power --' in operation at the material date it would be sufficient to attract the power of Parliament under the proviso to Article 83 clause (2) to enact the Act extending the duration of the Lok Sabha. No doubt, Parliament proceeded on the assumption that both the Proclamations of Emergency were in force at the relevant date and they invested Parliament with power to enact the Act. but even if this legislative assumption were unfounded it would not make any difference to. the validity of the exercise of the power so long as there was one Proclamation of Emergency in operation which authorised Parliament to extend the duration of the Lok Sabha under the proviso to clause (2) of Article 83. It is _true that the provisq to section 2 enacted .

that if both or· either of the Proclamations of Emergency cease or ceases to operate before the expiration of the extended period of one year, the Lok Sabha shall continue until six months after the ceaser of operation of the said Proclamations or Proclamation, not going beyond the period of one year, but the opening part of this proviso can have application ·only in relation to a Proclamation· of Emergency which was in operation at the date of enactment of the Act. If ~uch a Proclamation of Emergency which was in operation at the material date ceased to operate before the expiration o~ the extendei:I pedod· of one year, then the term of the Lok Sabha would not immediately come to an end, but it would continue for a further period of six months but not so to exceed the extended period of one year. This provision obviously could. have no application in relation to the second Proclamation of Emergency if it was void when issued.

In such a case, the second· Proclamation not being v judgments too numerous to mention. All the same, we cannot avoid making a brief resume of the majority juogments siince the petitioners must stand or fall by them. ThDse judgments, on the poinf now in issue, were delivered by Sikri, CJ. , Shelat and Grover JJ. , Hegde and Mukherjea JJ. , Jaganmohan Reddy J. and Khanna J. · Sikri, CJ. , held that the fundamental importance of the freedom of the individual has to be preserved for all times to come and that it could not be amendea out of exiStierice. According to the learned Chie~ Justice, fu;ndame11;tal rtights oo! nfeirred by Part III of the Constitution cannot be abrogated, though . a reasonable abridgement . of those rights could be effected in public interest. There is a limitation on the power of amendment by necessary implication which was apparent from a reading of the preamble and therefore.

according to the learned Chief Justice, the expression "amendment of this Constitution" in Article 368 means any additibn or change in any of the provisions of the Constitution within the broad contours of the preamble, made in order to carry out the basic objectives of the Constitution. A~ordingly, every provision of the Constitution was open to amendment provided the basic foundation or structure of the Constitution. was not damaged or destroyed. Shelat and Grover, JJ. held that the preamble to the Constitution contains the clue to the fundamentals of the Constitution. According to the learned Judges, Parts III a;nd IV of the Constitution which respectively embody the fundamental rights and the directive principles MINERVA MILLS LTD. v. UNION (Chandrachud, c. J. ) 237 rove to be balanced and harmonised.

This balance and harmony between two integral parts of the Constitution forms a basic element tates(3) the United States Government sought an injunction against the publication, by the New York Times, of the classified study entitled "History of U. S. Decision-Making Process on Viet Nam Policy". It was held by a majority of six Judges that any system of prior restraints of expression comes to the United States Supreme Court bearing a heavy presumption against its constitutional validity, and a party who seeks to have such a restraint upheld thus carries a heavy burden of showing justification for the imposition of such a restraint. In National Association for the Advancement of Coloured People 4 v. Stale of A labama( ), a unanimous court while dealing with an attempt to oust the 'National Association of Coloured People from the State of 'Alabama held : "In the domain of these indispensable liberties, whether of speech, press.

or assqciation, the decisions of this Conrt recognize that abridgement of such rights, even though unintended, may (1) 16 L. Ed. 2d. 239, 249. (2) 31 L. Ed. 2d. 274, 276. (3) 29 L. Ed. 2d. 822, 824. (4) 2 L. Ed. 2d, 1488, 1499. 17-646 S. C. India/80 I inevitably follow from varied forms of governmental action''. In Frank Palko v. State of Connecticut(1), Justice Cardozo delivering the opinion of the Court in regard to the right to freedom of thought and speech observed : + "Of that freedom one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom". In Jesse Cantwell v. State of Connecticut(2), Justice Roberts who delivered the opiniori of the Count observed: "In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbour.

To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy. The essential characteristic of these liberties is, that under thei~ shield many types of life, character, opinion and belief can develop u~1molested and unobstructed. Nowhere is this shield more necessary than in our own country for a people composed of many races and of many creeds. There are limits to the exercise of these liberties. The danger in these times from ~ the coercive .

activities of those who in the delusion of racial or J religious conceit would incite violence and breaches of the peace in order\ to deprive others of their equal frig~li~ to the f! XTerhcise _ of their liberties, is emphasized by events am1 ar to a11. ese and. other transg;·essions of those limits the states appropriately may punish". 3 In Arthur Terminiello v. City of Chicago( ), Justice Douglas delivering the majority opinion of the Court, while dealing with the importance of the right to free speech, observed : "The vitality of civil and political institutions in our society + depends on free discussion. As Chief Justice Hughes wrote in De Jonge v. Oregon(4), it is only through free debate and free (1) 82 L. Ed. 239, 293. (2) 84 Ld. Ed. 1213, 1221. (3) 93 L. Ed. 1131, 1134. (4) 299 US 353, 365, 81 L. ed. 278, 284, 57 S. Ct. 255. MINERVA MILLS LTD. v. UNION (Chandrachud, c. J.

) 253 exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programmes is therefore one of the chief distinctions that sets us apart from totalitarian regimes. Accordingly a function of free speech under our system of :government is to invite dispute. It may indeed best serve its high purpose, when it induces a condition of unrest,. creates . dissatisfaction with conditions as . they are, or even stirs people io anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That -is why freedom of speech, though not absolute (Chaplinsky v.

1 New Hampshire), ( ) is nevertheless protected against censorship or punishment unless shown likely to produce a clear and· present danger of a serious substantive evil that rises far above public 2 'inconvenience, annoyance, or unrest. See Bridges v. California( ); Craig v. Horney(3). There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups. " The history of India's struggle for independence and the debates '{)f the Constituent Assembly show how deeply our people value their personal liberties and how those liberties are regarded as an indispensable and integral part of our Constitution. It is significant that though Parts III and IV appear in the Constitution as two distinct fasciculus of articles, the leaders of our independence movement drew no distinction between the two kinds of State's obligations-negative and positive.

"Both types of rights had developed as a common demand, products of the national and social revolutions, of their ,almost inseparable intertwining, and of the character of Indian politics 4 itself( )". The demand for inalienable rights traces its origin in India to the 19th Century and flowered into the formation of the Indian National Congress in 1885. Indians demanded equality with ·their British rulers on the theory that the rights of the subjects cannot in a democracy be inferior to those of the rulers. Out of that demand ,grew the plants of equality and free speech. Those and other basic ;rights found their expression in Article 16 of The Constitution of (1) 315 US pp. 571, 572; 86 L. ed. 1034, 1035; 62 S. Ct. 766. (2) 314 US 252, 262, 86 L. ed. 192, 202, 62 S. Ct. 190, 159 ALR 1346. (3) 331 US 367, 373, 91 L. ed. 1546, 1550, 67 S. Ct. 1249. •(4) The Indian Constitution : Cornerstone of a Nation by Granville Austin, p. 52. India Bill, 1895.

A series of Congress resolutions reiterated that demand between 1917 and 1919. The emergence of Mahatma Gandhi on the political scene gave to the freedom movement a new dimension : it ceased to be merely anti-British; it became a ·movement for the acquisition of rights of liberty for the Indian Community. Mrs. ·Besan't Commonwealth of India Bill, 1925 and the Madras Congress resolution of 1928 provided a striking continuity . for that movement. The Motilal Nehru Committee appointed by the· Madras Congress resolution said at pp. 89-90 : "It is obvious that our first care should be to have our Fundamental Rights guaranteed in a manner which will not permit their withdrawal under any circumstances ....... Another· reason why great importance attaches to a Declaration of Rights is the unfortunate existence of communal differences; in the country. Certain safeguards are necessary to create and' establish a sense of security among those who look upon each other with distrust and suspicion.

We could not better secure the full enjoyment of religious and communal right~ toall communities than by including them among the basic principles of the Con,stitution. " India represents a mosaic of humanity consisting of diverse religious;,. linguistic and caste groups. The rationale behind the insistence on fundamental rights has not yet lost its relevance, . alas or not. The Congress session of Karachi adopted in 1931 the Resolution on Fundamental Rights as well as on Economic and Social change. The Sapru Report of 1945 said that the fundamental rights should serve· as a "standing warning" to all concerned that : "what the Constitution demands and expects is perfect equality between one section of the Community and another in. the matter of political and civic rights equality of liberty and security in the enjoyment of the freedom of religion, worship,. and the pursuit of the ordinary applications of life". (p. 260). The Indian nation marched to freedom in ,this background.

The· Constituent Assembly resolved to enshrine the fundamental rights in the written text of the Constitution. The interlinked goals of personal liberty and economic freedom then came to be incorporated in two separate parts, nevertheless parts of an integral, indivisible scheme which was carefully and thoughtfully nursed over half a. century. The seeds sown in the 19th Century saw their fruition in 1950 under the leadership of Jawaharlal Nehru and Dr. Ambedkar. To destroy the. guarantees given by Part pr in order purportedly to achieve the goals of Part IV is plainly to subvert the Constitutio11. t by destroying its basic structure. MINERVA MILLS LTD. v. UNION (Chandrachud: c. J. ) 2 55 Fundamental rights occupy a unique place in the lives of civilized societies and have been variously described in our Judgments as «transcendental", "inalienable" and "primordial". for us. it has been + said in Kesavananda Bhdrati (p. 991), they constitute the ark of the Constitution.

The significance of the perception that Parts III an all polities, -democratic· or authoritarian. Every State is goal~~riented and claims to strive for securing the welfare of its people. The distinction between . the different forms of Government consists in that a real democracy will endeavour to achieve its objectives through the discipline of fundamental freedoms like those conferred by Articles 14 and 19. ' Those are the· most elementary freedoms without . which a. free -democracy is impossible and which must therefore be preserved at all -costs.. Besides, as observed by Brandies. J. , the need to protect liberty is the greatest when Government's purposes are beneficent.

If the -discipline of Article 14 is withdrawn and if immunity from the operation of that article is conferred, not only on laws passed by the Parliament but on laws passed by the State Legislatures also, the political pressures exercised by numerically _large groups can tear the -country asunder by leaving it to the legislature to pick and choose favoured areas and favourite classes for preferential treatment. . . I The learned Attorney General and the learned Solicitor General •trongly impressed upon us that Article 31C should be read down so as to save it from the challenge of-Unconstitutionality. It was urged that it would be legitimate to read into that Article the intendment that only such Jaws would be immunis;d from the challenge under. Articles 14 and 19 as do not damage or destroy the basic structure c>f the Constitution. · The principle of reading down the provisions of a ·law for the purpose of saving it from a constitutional challenge is well-known. .

But we find it impossible to accept the contention of the learned counsel in this behalf because, to do so will involve a . -~ gross distortion of the principle ofreading down, deprivinjl that doctrine ~vE\G-only or true rationale when words of width are used inadvertently. The device of reading down is not to be resorted to in order to save the susceptibilities of the law makers, nor indeed to imagine a law of one's liking to have been passed. 'One must at least take the Parliament at its word when, especially, it undertakes a constitutional . G 1 amendment. Mr. Palkhivala read out to us an extract from the speech of the then Law Minister who, while speaking on the amendment to Article -31C. said that the--amemdment . was being introduced because the government did not want the "let and hindrance" of the fundamental rights. If the Parliament has manifested a clear intention to exercise .

an unlimited power, it is impermissible to read down the amplitude of that power so as,to make it limited. The principle of reading down cannot be invoked or applied in opposition to the clear intention of the legislature. We suppose thrut in the history of the constitutional: law, no constitutional amendment has ever been read down to mean the exact opposite of what it says and intends. In fact, to accept the argument that we should read down Article 31C, so as to make it conform to the ratio-of the majority decision in Kesavananda Bharati. is to destroy the avowed purpose of Article 31C as indicated by the very heading "Saving of certain laws" under which . Articles 31A, 31B· and 31C are grouped.

Since the amendment to Article 31C was unquestionably made with a view to empowering the legislatures lo pass laws of a particular description even if those laws violate the discipline of Articles 14 and 19, it seems to us impossible to hold that we should still save Article 31C from the challenge of unconstitutionality by reading into that/ Article words which destroy the rationale of that Article and an intendment which ·is plainly contrary to its •proclaimed purpose. 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 31C to decide four questions: (1) Does the law secure any of the directive principles of the State policy? (ii) Is it necessary to encroach upon fundamental rights in order to• secure the object of the directive principles? (iii) what is the extent of such encroachment, if any? and (iv) Does that encroachment viola! ::.

Jthe basic structure of the Constitution? This argument is open to the same criticism to which the argument of the learned Attorney General is open and which we have just _J disposed of. Reading the existence of an extensive judicial review into Article 3lC is really to permit the distortion of the very purpose of that aJ1ticle. It provides expressly that no law of a particular description shall be deemed to be void on the ground that it violates. Article 14 or Article 19. It would be sheer adventurism of a most extraordinary nature to undertake the kind of judicial enquiry which,. according to th. e learned Additional Solicitor General, the courts are· free to undertake. · We must also mention, what is perhaps not fully realised, that Article 31C speaks of laws giving effect to the "Policy of the' State", "towards securing all or any of the principles laid down in Part IV.

"" In the very nature of things it is difficult for a court to determine· whether a particular law gives effect to a particular policy. Whether a law is adequate enough to give effect to the policy of the State towards securing a directive principle is always a debatable question. MINERVA MILLS LTD. v. UNION (Chandrachud, c. J. ) 26l and the courts cannot set aside the law as invalid merely because, in A. their opinion, the law is not adequate enough to give effect to a certain policy. In fact, though the clear intendment of Article 31C is to shut out all judicial review, the argument of the learned Additional Solicitor General calls for a doubly or trebly extensive judicial review than is even normally permissible to the. courts.

Be it be remembered that ·the power to enquire into the question whether there is a direct and reasonable nexus between the provisions of a Jaw and a directive principle cannot confer upon the courts the power to sit in judgment over the policy itself of the State. At the highest, col! rts can, under Article 31C, satisfy themselves as to the, identity of the law in the sense whether it bears direct and reasonn. ble nexus with a directive principle. Ifthe court i~ satisfied as to the existence of such nexus, the inevitable consequence provided for by Article 31C must follow. Indeed, if there is one topic on which all the 13 Judges in Kesavananda Bharati were agreed, it is this : that the only question open to judicial review under the unamended Article 31C was whether there is a direct and reasonable nexus between the impugned law and the provisions of Article 39(b) and (c). Reasonableness is evidently regarding the nexus and not regarding the law.

It is therefore impossible to accept the contention that it is open to the courts to undertake the kind of enquiry suggested by rthe Additional Solicitor General. The attempt therefore to drape Article 31C into a democratic outfit under which an extensive judicial review would be permissible must fail. We should have mentioned that a similar argument was. advanced in regard to the amendment effected by section 55 of the 42nd Amendment to Article 368, by the addition of clauses (4) and (5) therein. It was urged that we should so construe the word "amendment'' in clause (4) and the word "amend" in clause 5 as to comprehend only such amendments as do not destroy the basic structure of the Constitution. That argument provides a striking illustration of the limitations of the doctrine of reading down. The avowed purpose of clauses (4) and (5) of Article 368 is to confer power upon the Parliament to ·amend the Constitution without any "limitation whatever".

Provisions of this nature cannot be saved by reading into G· them words and intendment of a diametrically opposite meaning and content. · The learned Attorney General then contends that Article 31C sb. ould be upheld for the same reasons for which Article 31A(l) was upheld. Article 31A (1) was considered as a contemporaneous practical exposition of the Constitution since it was inserted by the very First H' Amendment which was passed in 1951 by the same body of persons who were members of the C~nstituent Assembly. We can understand . A that Article 31A can be looked upon as a contemporaneous practical exposition of the intendment of the Constitution, but the same cannot be said of Article 31C. Besides, there is a significant qualitative + difference between the two Articles. Article 3lA, the validity of which 'has been recognised over the years excludes the challenge under Articles 14 and 19 in regard to a specified category of laws. If by a .

constitutional amendment, the application of Articles 14 and 19 is withdrawn from a defined field of legislative activity, whkh is reasonably in public interest, the basic framework of the constitution may remain unimpaired. But if the protection of those articles is withdrawn in respect of an uncatalogued variety of laws, fundamental freedoms will become a 'paEchment in a glass case' to· be viewed as a matter of historical curiosity. An attempt was made to equate the provisions of Article 31C with those of Article 3IA in order to lend plausibility to the contootion that since Article 3lA was also upheld on the ground of stare decisis Article 3IC can be upheld on the same ground. We see no merit in this contention. In the first place, as we have indicated above.

the five matters which are specified in Article 3lA are of such quality, nature, content and character that at least a debate can reasonably arise whether abrogation of fundamental rights in respect of those · matters will damage or destroy the basic structure of the Constitution. Article 31C does not deal with specific subjects. The directive principles 'E are couched in broad and general terms for the simple reason that they specify the goals to be achieved. Secondly, the principle of stare decisis cannot be treated as a fruitful source of perpetuating curtailment of human llre~oms. No court has upheld the validity of Article 31A on the ground that it does not violate the basic 3tructure of the Constitution. There is no decision on the validity of Article 31 A :F which can be looked upon as a measuring rod of the extent of the amending power.

To hark back to Article 3lA every time that a new constitutional amendment is challenged is the surest means of ensuring a drastic erosion ofl:he . fundamental rights conferred by Part III. Such a process will insidiously undermine the efficacy of the ratio of the majority judgment in Kesavananda Bharati regarding the inviolability of the basic structure. That ratio requires that the validity of each new constitutional amendment must be judged on its own merits. Nor indeed are we impressed by a limb of the same argument that when Article 3IA was upheld on the ground of stare decisis, what was upheld was a constitutional device by which ~ class of subjectoriented laws was considered to be valid. The simple ground on which Article 3lA was upheld, apart from the ground of contemporaneous practical exposition, was that its validity was accepted and recognised over the' years and, therefore, it was not permissible - , MINERVA MILLS LTD. v. UNION. (Chandrachud, c. J.

) 263 to challengie its oonstitutiooolity. The printjple of stare decisis does A. not imply the approval of the device or mechanism whi~h is employed for the purpose of framing a legal or constitutional provision. . .. +. It was finally urged by the learned Attorney General that if w