WAMAN RAO & ORS. ETC. ETC. v. UNION OF INDIA AND ORS (2)

Citation: [1981] 2 S.C.R. 1

Court: Supreme Court of India

Bench: Y.V. CHANDRACHUD, P.N. BHAGWATI, V.R. KRISHNA IYER, V.D. TULZAPURKAR, A.P. SEN

Case summary

aniended by Amendtnent Acts 21 of 1975, 47 of 1975 and 2 of 1976-Whether violates Articles 14, 19 or 31 of the Constitution-Right to challenge, if a consti tutional provision wliich deprives any person/citizen of the benefit and protec aon of Article....

Judgment text

WAMAN RAO & ORS. ETC. ETC. v. UNION OF INDIA AND ORS. May 9, 1980/November 13, 1980 [Y. V. CHANDRACHUD, C. J. , P. N. BHAGWATI, V. R. KRISHNA JyER, V. D. TULZAPURK,AR AND A. P. SEN, JJ. ] Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 27 of 1961 as .. aniended by Amendtnent Acts 21 of 1975, 47 of 1975 and 2 of 1976-Whether violates Articles 14, 19 or 31 of the Constitution-Right to challenge, if a consti tutional provision wliich deprives any person/citizen of the benefit and protec aon of Article. J 14, 19 and 31 is invalid, any law on the ground it is inconsis tent with or :that it takes away or abridges the right conferred by Part Ill of the Constitution-Constitution of India, Article 13(2), scope of-Constitution ali;y of . Articles 31A, 31B and the unamended Article 31C of the Constitut.

fon Doctrine ci stare decisis, applicability to Articles 3 lA & 31 B-l-Iouse of the People (Extensioll of Duration) Act (30 of 1976) section 2 and House of the People (Exti'nsion of Duration) Act (Act 109 of 1976) section 2-Proclaniation of Emergency dated Decen1ber 3, 1971 and June 25, 1975, Constitution (Fortie1h Amendment) Act, 1976-Validity of. A ceiling on agriculturaJ holdings v. •as imposed in Maharashtra by the �laharashtra Agricultural Lands (Ceiling on Holdings) Act 27 of 1961, which W , that in none of the three earlier decisions was the validity of Article JlA tested on the ground that it damaged or destroyed the basic structure of the Constitution. That theory was el::iborated for the first time in Kesa1·a11anda Bharati and it was in the majority judgment deliver ed in that case that the doctrine found its first acceptance. Even in the two latest cases, namely, Atnhif.. :u Prasad Mishra v. S1ure of U. P.. [1980] 3 SCR p. 1159, Thurnuti Venkaiah v. State of A. P.

, [19801 3 SCR 1143 the ques tion as to whether Article 3lA C introduced into the Constitution by section 5 of the Constitution (First Amendment) Act, 1951, Article 31A having been introduced by section 4 of the san1e Amendment. Article 31B bas to be read along with the Ninth Schedule because it is only those Acts and Regulations which are put in that Schedule that can receive the protection of that article. The Ninth Schedule was added to the Constitution by section 14 of the First Amendment Act, 1951. The device or mechanism which sections 5 and 14 or the First Amendment have adopted is that as and \V'hen Acts and Regulations are put in. to the Ninth Schedule by constitutional amendments made from time to tin1e, they will automaticaJly by reason of the provisions of Article 31B, receive the protection of that article. [36 F-H, 37 A-B].

The view of the Court that it would not be proper to invoke the doctrine of stare decisis for upholding the validity of Article 31A, must govern the question of the validity of Article 31 B. But just as there are significant similarities between Articles 31A and 31B, there is a significant dissimilarity too. Article 3lA enables the passing of Jaws of the description mentioned in clauses (a) to (e), in violation of the guarantee afforded by Articles 14 and 19. In so far as Article 31B is concerned, it does not define the category of laws which are to receive its protection, and secondly, it affords protection to Schedule-laws against all the provisions of Part III of the Constitu~ tion. No Act can be placed in the Ninth Schedule except by the Parliament and since the Ninth Schedule is a part of the Constitution, no additions or alterations can be made therein without complying with the restrictive provisions governing amendments to the Constitution. Thus, Article 31B.

read with the Ninth Schedule provides what is generally described as, a protective umbrella to all Acts which are included in the Schedule, no matter of what character, kind or category they may be. Putting it briefly, whereas Article 31A protects laws of a defined category, Article 3 lB empowers the Parliament to include in the Ninth Schedule such laws as it considers fit and proper to include therein. Thus the fourth reason for not applying the rule of stare decisis to Article 3lA that any particular law passed under clauses (a) to (e) can be accepted as good if it has been treated as valid for a long number of years but the device in the form of the Article cannot be upheld by the application of that rule, applies to Article 31B read with the Ninth Scheduie by the self-same test. [37 G-H, 38 B-D, E-FJ (3) The decision in Kesavananda Bharati must be treated as a landmark. The theory that the Parliament cani;iot exercise its amending power so as to WAMAN RAO v.

UNION 7 damage or destroy the basic stJ. ucture of the Constitution, was propounded and accepted for the first time in Kesavananda Bharati. This is one· reason for holding the laWli incorporated into the Ninth Schedule before April 24, 1973, on which date the judgment in Kesavananda Bharati was rendered. The second reason for drawing a line at a convenient and relevant point of time is that the first 66 items in the Ninth Schedule, which were inserted prior to the decision in Kesavananda Bharati, mostly pertains to laws of agrarian reforms. [38 G·H, 39 A,BJ D. (1) Article 31C of the Constitution, as it stood prior to its amendment by section 4 of the Constitution (Forty Second Amendment) Act. 1976, is valid to the extent to which its. constitutionality was upheld in Kesavananda Bharati. Article 31C, as it stood prior to the Constitution (Forty Second Amendment) Act does not damage any of the basic or essential features of the Constitution or its basic structure.

Once it is held that Article 3lA is valid on its own merits, it must follow logically that the unamended Article 31C is also valid. The un· amended portion of Article 31C is not like· an unchartered ship. It gives protection to a defined and lin1ited category of la\vs which are passed for giving effect to the policy of the State towards securing the principles specified in clause (b) or clause_ (c) of Article 39. It is impossible to conceive that any law passed for such a purpose can at all violate Article 14 or Article 19. In fact, far from damaging the basic structure of the Constitution, laws passed truly and bona fide for giving effect to directive principles contained in clause (b) and (c) of Article 39 will. fortify that structure. [10 F-0, 40 G·H, 41 A-CJ E. (! ) The normal term of the Lok Sabha expired on March 18, 1976. On April 2, 1976, the Lok Sabha passed the Fortieth Amendment Act by which the Maharashtra I.

and Ceiling Amendment Acts were put in the Ninth Schedule as Items 157, 159 and 160. On November 24, 1976 the House of People (Extension of Duration) Amendment Act was passed extending the term of the Parliament for a further period of one year. The Forty Second Amendment Act was passed on November 12, 1976. The Lok Sabha was dissolved on January 18, 1977 and both the emergencies dated December 3, 1971 and ·lune 25, 1975 were revoked on March 21, 1977. [43 E·G] In so far as the proclamation of December 3, 1971 is concerned, there was manifest justification for that coufse of action. The danger to the security of the country was clear and present. From the various dates and events mentioned and furnished to the Court, it may be possible for a layman to conclude that there was no reason to continue the state of emergency at least after the formality of exchanging the prisoners of war was completed.

But Courts have severe constraints which deter them from undertaking a task which cannot judicially be performed. [44 D-F, HJ (2) The two Acts, the House of the People (Extension of Duration) Act, Act 30 of 1976 and the House of the People (Extension of Duration) Amend, ment Act 109 of 1976, by which the duration of the Lok Sabha was extended are valid and lawful. The Fortieth and the Forty Second Constitutional Amendments cannot, therefore, be struck down on the ground that they were passed by a Lok Sabha which was not lawfully in existence. [45 F·G] Section 2 of the first of these Acts, Act 30 of 1976, which was passed on Febru;iry 16, 1976, provided that the period of five years in relation to the then House of. the People shall be extended for a period of one year "while the Pro- clamation of Emergency issued on the 3rd day of December, 1971 and on the 25th day of June, 1975, are both 1n operation. " The second Act of Extension continue! to contain the same provision.

Both the proclamations of emergency were in fact in operation on February 16, 1976 when the first Act was passed as also on November 24, 1976 when the second Act, 109 of 1976, was passed. Neither the first Proclamation can be deemed not to be in existence, nor can the second Proclamation be held to have been issued mala fide and, therefore non est, since the evidence produced before the Court is insufficient for record~ ing a decision on either of these matters. [45 C-F] Per Bhagwati, J. (Contra) The doctrine of stare decisis can be invoked for sustaining the constitutional validity 'of Article 3lA. (50 El · Minerva Mills v. Union of India, (1981] 1 SCR p. 206 reiterated; Ambika ·""*{ ·C Prasad Mishra v. State of U. P. , (1980] 3 SCR p. 1159, followed. Per Krishna Iyer-, 1:- (Contra) Applying the principle of stare decisis. Article 3lA is valid. In constitu- _tional issues over stress on precedents is inept.

Even so, great respect and binding value are the no1mal claim of rulings until reversed by larger Benches. (51 C-D] Ambika Prasad MislITa v. State of U. P. , [1980] 3 SCR p. 1159 reiterated. ORIGINAL JURISDICTION : Writ Petition Nos. 656-660, 512-533 and 503-511 of 1977. (Under Article 32 of the Constitution) AND Review Petitions Nos. 34, 62-65, 66-72, 73-74, 75-77, 78-81, 82, 83-84, 85, 86-87, 88, 89-90, 91-92, 93-94, 95, 95A, 96, 103-107, 110, 120, 121, 122-130 of 1977. AND Writ Petition No. 63 of 1977. (Under Article 32 of the Constitution). M. N. Phadke, N. M. Ghatate (Dr. ), S. N. Bapat a11d S. V. Deshpande for the Petitioners in RPs. 34, 62-95, 95A. 96, 103-107, 120-123 & WPs. 656-660, 503-511/77. '111· S. Gupta for the Petitioners in RPs. 110, 122-130/77. ·G S. N. Kherdikar, M. N. Ingle, A. G. Ratnaparkhi and C. K. Ratnaparkhi for the Petitioners in WPs. 512-533/77. S. V. Gupte, Att. Genl. K. H. Bhatt, R. N. Sac~they and Miss A. Subhashini for R 1 in WPs.

503-511, 512-533, 656-660 & RPs. 34, 62-65/77. S. V. Gupte, Att. Genl. C. J. Sawant, M. C. Bhandare, M. B. Bor & M. N. Shroff for R. 2 in WPs. 503-533 and for RR. 2 & 3 in WPs. 656-660/77. WAMAN RAO V. UNION S. V. Gupte, Att. Gen. and Miss A. Subhashiniri. or the Att. Genl. R. K. Rastogi, J. S. Rastogi and Bardridas Sharma for the State of Rajasthan in WP No. 656/77. · G. N. D. ikshit and M. V. Goswami for the State of U. P. Altaf Ahmed for the State of Jammu & Kashmir in WPs. 533 & M~~ FOR THE ADVOCATES GENERAL : U. P. Smgh and Shambhunath Iha (State of Bihar). M. M. Abdul Khader and K. R. Nambiar (State of Kerala)·. B. M. Patnaik and R. K. Mehta (State of Orissa). K. M. K. Nair and N. Nettar (State of Karnataka). K. M. K. Nair and N. Nettar (State of Tamil Nadu). FOR THE JNTERVENERS: V. N Ganpu/e for Pratap Rao in W. P. 503. R. K. Garg for Shyam Narain Tiwari in RP 34/77 & WP 512/ 77. R. N. Bannerjee, J. S. Sinha and J. B. D. & Co. for Panch Valley Coal Co.

and Shri Bimal Poddar in WP. 512/77. G. L. Snnghi, Miss Bhubnesh Kumari, K. J. John and J. B. D. & Co. for the Appellant Intervener Lt. Col. Himmat Singh & Ors. S. B. Wad for the Applicant/Intervener in WPs. 342 & 343 of 77 and RP. 63/77. The following Order was delivered on 9th May, 1980. (1) The Constitution (First Amendment) Act, 1951 which introduced Article 3lA into the Constitution with retrospective effect, and section 3 of the Constitution (Fourth Amendment) Act, 1955 which substituted a new clause (1), sub-clauses (a) to (e), for the original clause (1) with retrospective effect, do not damage any of the basic or essential features of the Constitution or its basic structure and are valid and constitutional, being within the constituent power of the Parliament. (2) Section 5 of the Constitution (First Amendment) Act 1951 introduced Article 31 B into the Constitution which reads thus : "3 lB.

Without prejudice to the generality of the provisions contained in article 3lA, none of the Acts and Regulations specified in the Ninth Schedule nor any df the provi- sions thereof •all be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, auy provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force. " In Kesavananda Bharati (1973, Suppl. SCR 1) decided on April 24, 1973 it was held by the majority th. at Parliament has no power to amend the Constitution so as to damage or destroy its basic or essential features or its basic structure.

We hold that all amendments to the Constitution which were made before April 24, 1973 and by which the 9th Schedule to the Constitution was amended from time to time by the inclusion of various Acts and Regulations therein, are valid and constitutional. Amendments to the Constitution made on or after April 24, 1973 by which the 9th Schedule to the Constitution was amended from time to time by the inclusion of various Acts and Regulations therein, are open to challenge on the ground that they, or any one or more of them, are beyond the constituent power of the Parliament since they damage the basic or essential features of the Constitution or its basic structure.

We do not pronounce upon the validity of such subsequent constitutional amendments except to say that if any Act or Regulation included in the 9th Schedule by a constitutional amendment made after April 24, 1973 is saved by Article 3lA, or by Article 31C as it stood prior to its amendment by the 42nd Amendment, the challenge to the validity of the relevant Constitutional Amendment by which that Act or Regulation is put in the 9th Schedule, on the ground that the Amendment damages or destroys a basic or essential feature of the Constitution or its basic structure as reflected ~I in Articles 14, 19 or 31, will become otiose. (3) Article 31C of the Constitution, as it stood pridr to its amend- • ment by section 4 of the Constitution (42nd Amendment) Act, 1976, • ( is valid to the extent to which its constitutionality was upheld in Kesavananda Bharati.

Article 31C, as it stood prior to the Constitution (42 Amendment) Act does not damage any of the basic or essential features of the Constitution or its basic structure. l4) All the Writ Petitions and Review Petitions relating to the validity of the Maharashtra Agricultural Lands· Ceiling Acts are dismissed with costs. The stay orders granted in these matters will stand vacated. We quantify the costs at Rs. five thousand which will be borne equally by the petitioners in Writ Petitions Nos. 656-660 of WAMAN RAO v. UNION (Chandrachud, C. J. ) II I 1977; 512-533 of 1977; and 503 to 511 of 1977. The costs will be payable to the Union of India and the State of Maharashtra in equal measure. (5) Writ Petition No. 63 of 1977 (Baburao Samant vs. Union of Jndia) will be set down for hearing. (6) Reasons for this Order will follow later. I The following Jndgments were delivered : CHANDRACHUD, C. J.

A ceiling on agricultural holdings was imposed in Maharashtra by the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 27 o~ 1961, which was bi:ought into operation on January 26, 1962. The ceiling fixed by that Act (the Principal Act), was lowered and certain other amendments were made to that Act by Acts 21 of 1975, 47 of 1975 and 2 of 1976. The validity of 1hese Acts w~s challenged in the Bombay High Court in a large group of over 2660 petitions. A Division Bench of the High Court silting at Nagpur repelled that challenge by a judgment dated August 13, 1976, ), 1n Vithalrao Udhaorao Uttanvar v. State of Maharashtra(').

The High Court held that the provisions of the aforesaid Acts were not open to challenge on the ground that they were inconsistent with or took away or abridged any of the rights conferred by Part III of the Constitution, since those Acts were placed in the Ninth Schedule by the Constitution 17th Amendment Act, 1964, and the Constitution 40th Amendment Act, 1976, and also because of the promulgation of Emergency as a result of which, the rights under Articles 14 and 19 of 1he Constitution could not be enforced. The High Court also repelled the challenge to the validity of Article 3lB itself by holding that far from damaging the basic structure of the Constitution, the Constitution (First Amendment) Act, 1951, which introduced Article 31B into the Constitution, fortified that structure by subserving a fundamental con- ~titutional purpose.

Certain provisions of the Principal Act and of the Amending Acts, particularly the concept of 'family unit' were challenged before the High Court on the ground, inter alia, that they were ~.. • outside the purview of Article 3lA On an overall consideration of the movement of agrarian reforms, with particular reference to the relevant statistics in regard to Maharashtra, the High Court rejected .. . ' that challeng. e too on the ground that those provisions formed a part of an integral scheme of agrarian reforms under which large agricultu- 't {I) ATR' 1977 llombay 99. I 2-1281 SCl/80 \ ral holdings had to be reduced and the surplus land distributed amongst the landless· and others. The appeals filed against the decision of the Bombay High Court were dismissed by this Court by a judgment dated January 27, 1977 in Dattatraya Govind Mahajan v. State of Maharashtra(').

The only point urged in those appeals was that the Principal Act, as amended, was void being violative of the second proviso to Article 31A(l), in so far as it created an artificial 'family unit' and fixed the ceiling on the agricultural holdings of such family units. The argument was that the violation of the particular proviso deprived the impugned laws of the protection conferred by Article 31A. That argument was rejected ''"'[) by the Court on the view that even if the impugned provisions were violative of the second proviso, they would receive the protection of Article 3lB by reason of the inclusion of the Principal Act and the Amending Acts in the Ninth Schedule.

The Court considered whether, in fact, the provisions of the impugned Acts were violative of the second proviso and held that it was entirely for the legislature to decide what policy to adopt for the purpose of restructuring the agrarian system and the Court could not assume the role of au economic adviser for pronouncing upon the wisdom of such policy. The second proviso to Article 31A(l) was therefore held not to have been contravened. The judgment of this Court in the appeals aforesaid was delivered on January 27, 1977 while the proclamation of emergency was in operation.

On the revocation of that proclamation, petitions were filed in this Court by the appellants praying for the revi•"w of the judgment in Dattatraya Govind Mahajan (Supra) on the ground that several contentions, which were otherwise open to them for assailing the constitutional validity of the impugned Acts, could not be made by reason of the emergency and that they should be permitted to make those ·contentions since the emergency was lifted. Fresh Writ Petitions were also filed in this Court in which those contentions were put forward. TlTe Court having accepted the request for the review of the judgment in Dattatraya Govind Mahajan, (supra) these matters have coine before us for consideration of the other points involved in the appeals. In these proceedings, the. main challenge now is to the constitu- ) doption of 'family unit' as the unit of application for tlie revised ceilings may canse incidental hardship to minor children and to unmruried daughters.

That cannot, in o'ur opinion, furnish an argument for aiSailing the impugned laws on tlie ground that they violate the guarantee of equality. It seems to us ironical indeed t)lat the laws providing for agricultural ceilings should be stigmatised as destroying the guarantee of equality when their true object and intendment is to remove inequalities in the matter of agricultural holdings. The Note of the Panel set up by the Planning Commission in May 1959 on the adoption of 'family unit' as the unit of application for the revised ceilings and the counter affidavit of Sbri J. G. Karandikar, Deputy Secretary to the Government of Maharashtra show the relevance and efficacy of the family being treated as the real operative unit in the movement for agrarian reform. Considering the Indian social milieu, the Panel came to the conclusion that agricultura!

ceiling can be most equitably applied if the base of application is taken as the family unit ccnsisting of husband, wife and three minor children. In view of this expert data, weJ are unable to appreciate how any law passed truly for implementing the objective of Article 3lA(1 ){a) can be open to challenge on the ground that it infringes Articles 14, 19 or 31. For these reasn:s, we are of the view that the Amend:nent introduced by section 4 of tlie Constitution (First Amendment) Act, 1951 R does not damage or destroy the basic structure of the Constitution. That Amendment must, therefore, be upheld on its own merits. / This makes it unnecessary to consider whether Article 31A can be upheld by applying the rule of stare decisis. We have, however, heard long and studied arguments on that qnestion also, in deference to which we must consider"the alternate submission as to whether the doctrine of stare decisis can save Article 3lA, if it is otherwise .

violative of the basic structure of the Constitution. In Shankari Prasad v. Union of India (supra) the validity of the 1st Amendment which introduced Articles 3lA & 3lB was assailed on six grounds, the fi! th · being that Article 13 (2) takes in not only ordinary laws but constitutional amendments also. This argument was rejected and the 1st Amendment was npheld. In Sajjansingh v. State of Rajasthan(I), the Court refused to reconsider the decision in Sha. nkari Prasad (supra), with the result th:;t the validity of the 1st Amendment remained unshaken. In Golaknath('), it was held by a majority of 6 : 5 that the power to amend the Constitution was not located in Article 368. The inevitable result of this holding should have been the striking down of all constilu'ionr,J amendments since, according to th"' view of the majority, Parliament had no power to amend the Constitution in pursuance of Art\cle. 368.

Bcit the Court resorted to th" doctrine of proopective ·overruling and hdd that the constitutional amendment~ which were already made would be left undisturbed and that its decision will govern the future amendments only. As a result, the Ist Amendment by which Articles 31A and 31B were introduced remained inviolate. It is trite knowledge that Golaknath(') was overruled in Kesavananda Bharati (supra) in which it was held unanimoosly that the power to amend the Constitution was to be found in Article 368 of the Constitution. The petitioners produced before us a copy of the Civil Misc. Petition which was filed in Kesavananda Bharati, (supra) by which the reliefs originally asked for were modified. It appears thereform that what was challenged in that case was the 24th, 25th and the 29th Amendments to the Constitution. The validity of the 1st Amendment was not questioned Khanna J.

, however, held-while dealing with the · ,aJidity of the unamended Art\cle 3IC that the validity of Article 31A was upheld in Slwnl:ari Prasad, (supra) that its validity could not be any longer questioned because of the principle of starg decisis and that the ground on which the validity of Article 3lA was sustained will be available equally for ~mstaining the validity of the first part of Articie 3JC (page 744). Thus, the constitutional validity · as stating the correct law. As the gulf of time widened, says Dias, Judges became increasingly reluctant to challenge old decisions. The learned author cites the example of Bracton and Coke who always preferred older authorities. In fact, Bracton had compiled a Notebook of some two thousand cases as material for his treatise and employed some five hundred of them. The principle of stare decisis is also firmly rooted in American Jurisprudence.

It is regarded as a rule of policy which promotes predictability, certainty, uniformity and stability. The legal system, it is (1) [1980] 3 S. C. R. 1143. (2) 'Jurisprudence' by R. W. M. Dias, 4th Ed. (1976) p. 166. WAMAN RAO v. UNION (Chandrachud, C. J. ) 33 said, should furnish a clear guide for conduct so that people may plan their affairs with assurance against surprise. It is important to further fair and expeditious adjudication by eliminating the need to relitigate every proposition in every case('). When the weight of the volume of the decisions on a point of general public . importance is heavy enough, courts are inclined to abide by the rule of stare decisis, leav- ! ing it to the legislature to change long-standing precedents if it so thinks it expedient or necessary. In Burnet v. Coronado Oil & Gas Co.

('), Justice Brandeis stated that 'stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right'. . J,-- 1 While dealing with the subject of stare decisis, Shri H. M. Seervai in his book ou 'Constitutional Law of India('), has pointed out how important it is for judges to conform to a certain measure of discipline so that decisions of old standing are not overruled for the reason merely that another view of the matter_ could also be taken. The learned author has cited an Australian case in which it was said that though the court has the power to reconsider its own decisions, that should not be done upon a mere suggestion that some or all of the members of the later court may arrive at a different conclusion if the 4 malt>r were res integra( ). The learned author then refe~. s to two cases of our Supreme Court in which the importance of adherence to precedents was stressed. Jagannadhadas J.

said in the Bengal Immunity Case(•) that the finality of the decisions of the Supreme Court, which is the Court Of last resort, will be greatly weakened and much mischief done ·if we treat our own judgments, even though recent, as open to reconsideration. B. P. Sinha J. said in the same case that if the Supreme Court were to review its own previous decisions simply on the ground that another view was possible, the litigant public may be encouraged to think that it is always worthwhile taking a chance with the highest Court of the land. In I. T. O. Tuticorin v. T. S. D. 6 Nadar( ), Hegde J. said in his dissenting Judgment that the Supreme Court should not ovemtle its decisions except under compelling cil'- Cllmstances. It is only when the Court is fully convinced that publitl interest of a substantial character would be jeopardised by a. previous (I) See Introduction to Law and the Legal System, by Harold J. Griliiot, 2nd Ed. (1979), p. 132. (2) 285 u. s. 393, 406.

(3) 2nd Edition [19751, Vol. I, pages 59--61. (4) The Tramways Case (No. l)-[1914] 18 C. L. R. 54, per Griffith C. J. ·~m (5) [1955] 2 SCR 603. (6) AIR 1968 SC 623. decision, that the ·court should overrule that decision. Reconsideration of the earlier decisions, according to the learned Judge, should be confined to questions of great public importance. Legal problems should not be treated as mere subjects for mental exercise. An earlier decision may therefore be overruled only if the Court comes to the conclusion that it is manifestly wrong, not upon a mere suggestion • that if the matter were res integra, the members of the later court may arrive at a different conclusion. These decisions and texts are of high authority and cannot be overlooked. In fact, these decisions are themselves precedents on the binding nature of precedents.

It is also true to say that for the application of the rule of stare dccisis, it is not necessary that the earlier decision or decisions of long standing should have considered and either accepted or rejected the particular argument which is advanced in the case on hand. Were it so, the previous decisions could more easily be treated as binding by applying the law of precedent and it will be unnecessary to take resort to the principle of stare decisis. It is, therefore, sufficient for . invoking the rule of stwe decisis that a certain decision was arrived at on question which arose or was argued, no matter on what reason the decision rests or what is the basis of the decision. In other words, for the purpose of applying the rule of stare decisis, it is unnecessary to enquire or determine as to wha~ was the rationale of the earlier decision which is said to operate as stare decisis.

Therefore, the reason why Article 3lA was upheld in the earlier decisions, if indeed it · was, are not germane for the purpose of deciding whether this is a fit and proper case ih which to apply that rule. But, there are four principal reasons why we are not disposed to invoke the rule of stare decisis for deciding upon the constitutionality of Article 31A. In the first place, Article 31A breathes its own vita- ~ / lity, drawing its sustenance from the basic tenets of our Constitution. Its unstated premise is an integral part of the very making of the Constitution and it holds, as it were, a mirror to the ideals which inSplred the framing of the Constitution.

The second reason why we do not want to resort to the principle of stare decisis while determining the validity of Article 31A is that neither in Shankari Prasad(Supra) nor in Sajjall Singh(Supra), nor in Golak Nath(Supra) and evtidently not in Kesavananda Bharati(Supra) was the question as regards the validity as such of Article 3lA raised or decided. As . stated earlier, Shankari Prasad(Supra) involved the larger question as to whether constitutional amendments fall within WAMAN RAO v. UNION (Chandrachud, C. J. ) 35 the purview of Article 13(2) of the Constitution. It was held that . iiey did not. In Sajjan Singh(Supra), the demand for reconsideration of the decision iu Shankari Prasad(Supra) was reject¢, that is to say, the Court was not inclined to consider once again whether ·constitutional amendments are also coIUprehended within the terms of Article 13(2).

Golak Nath (Supra) raised the question as to where the amending power was located and not whether this or that particular amendment was valid. In none of these decisions was the validity of Article 31A put in issue. Nor indeed was that question considered and decided in any of those cases. A deliberate judicial decision made after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, and tlle precedent by long recognition may mature into st(Jre decisis. But these cases cannot be considered as having decided, reasons apart, that the 1st Amendment which i. ntroduced Article 31A into the Constitution is valid. Thirdly, the history of the World's constitutional law shows that the principle of stare decisis is treated as having a limited application only. Justice William Douglas said in New York v.

United States(') that it is a wise policy to restrict the principle of stare decisis to those areas of the law where correction can be had by legislation. Otherwise, tke constitution loses the flexibility which is necessary if it is to serve the needs of successive generations. It is for that reason again 2 that Justice Frankfurter said in U. S. v. International Boxing Club( ) that the doctrine of stare decisis is not 'an imprisonment of reason'. Older the standing of a d_ecision, greater the provocation to apply the rule of stare decisis. A possible mischief arising out of this posifion was pointed out by Justice Benjamin Cardozo in MacPherson v. Buick Motor Co. (') by saying that precedents drawn·from the days of travel by stage-coach do not fit the conditio~~ of travel today. And alive to . that possibility, Justice Brandeis said in State ot Washington v. W; C. Dawson & Co. (4) that stare decisis is merely a wise rule of actiOJ! and is not a universal, inexorable command.

"Th~ instances in which the court has disregarded its admonition ·are many". In fact, the full form of the principle, " stare decisis et non quieta movere" which means "to stand by decisions and not to disturb what is settled", was put by Coke in its classic English version as : "Those things which have been so often adjudged ought to rest in peace". Such being the justification of the rule, it was said inJ. Emes Monroe v. Frank Pape(5) that the rele- (1) 326 U. S. 572, 590-5~1946]. - (2) 348 U. S. 236, 249 [1955]. (3) 217 N. Y. 382, 391 [1916]. (4) 264 U. S. 219, 238 [1924]. (5) 5 L. Ed. 2nd l! · s-. 492, 523, 528. ................. -~~ vant demands of stare decisis do not preclud" . 1sideration of an inter pretation which started as an unexamineu assumption.

We have already pointed out how the constitutional validity of Article 3lA has to be deemed to have been upheld in Shankari Prasad (supra) by a process of inferential reasoning, the real question therein being whether the expression 'law' in Article 13(2) includes law made in the exercise of constituent power. The fourth reason is the one cited by Shri Tarkunde that on prin ciple, rules like stare decisis should not be invoked for upholding con stitutional devices like Articles 31A, 31B and 31C which are designed to protect not only past laws but future laws also. Supposing Article 3! A were invalid on the ground that it violates the Constitution's basic structure, the fact that its validiy has been recognised for a long time cannot justify its protection being extended to future laws or to laws which have been recently passed by the legislature. The principle of stare decisis can apply, if at all, to laws protected by.

these articles, if those laws have enjoyed the protection of these articles for a long time, but the principle cannot apply to the articles themselves. The princi ple of stare decisis permits the saving of laws the validity of which has been accepted or recognised over the years. It does ndt require or sanction that, in furture too, laws may be passed even though they are invalid or unconstitutional. l':uture_p. erpe1rati. ofl of illegality, is no part . . ··· · --·· oI the doctrine of stare .. ction 3 of the Constitution (Fourth Amendment) Act, 1955 which substituted a new clause (1), sub-clause (a) to (e), for the original clause(! ) with retrospective effect, do not damage any of the basic or essential features of the Constitution or its basic structure and are valid and constitutional, being within the constituent power of the Parliament.

(2) Section 5 of the Constitution (First Amendment) Act 1951 introduced A1ticle 3IB into the Constitution which reads thus "3 lB : x x x x x ·<t In Keshvananda Bharati (1973, Suppl. , SCR 1) decided on April 24, 1973 it was held by the majority that Parliament has no power to amend tb~ Constitution so as to damage or destroy its basic or essential features or its basic structure. We hold that all amendments to the Constitution which were made before April 24, 1973 and by which the 9th Schedule to the Constitution was amended from time to time by the inclusion of various Acts and Regulations therein, are valid and constitutional. Amendments to the Constitution made on or after April 24, 1973 by which the 9th Schedule to the Constitution was arn~nded from time to time by the inclusion of various Acts and Regulations therein, are open to challenge on the ground that they, or any one or more of them, are beyond the constituent power of the (I) The Judgment ofBhagwati J.

should be read along with his reasons reported in the case published in [1981] l S. C. R. P. 206. ti: Parliament since they damage the basic or essential features of the Constitution or its basic structure. We do not pronounce upon the validity of such subsequent constitutional amendments except to say that if any Act or Regulation included in the 9th Schedule by a constitutional amendment made on or after April 24, 1973 is saved by Article 3lA, or by Article 31C as it stood prior to its ame'ndment by the 42nd Amendment, the challenge to the validity of the relevant Constitutional Amendment by which that Act or Regulation is put iu the 9th Schedule, on the ground that the Amendment damages or destroys a basic or essential feature of the Constitution or its basic -l... < structure as reflected in Articles 14, 19 or 31, will become otiose.

(3) Article 31C of the Co'nstitution, as it stood prior to its amendment by section 4 of the Constitution (42nd Amendment) Act, 1976, is valid to the extent to which its constitutionality was upheld in Keshvananda Bharati. Article 31C, as it stood prior to the Cons· titution (42nd Amendment) Act does not damage any of the basic or essential features of the Constitution or its basic structure. (4) All the writ petitions and Review Petitions relating to the validity of the Maharashtra Agricultural Lands Ceiling Acts are dismissed with costs. The stay orders granted in these matters will stand vacated. We quantify the costs at Rs. five thousand which will be borne equally by the petitio'ners in Writ Petitions Nos. 656-660 of 1977; 512-533 of 1977; and 505 to 511 of 1977. The costs will be payable to the Union of India and the State of Maharashtra in equal measure. (5) Writ Petition No. 63 of 1977 (Babumo Sawant v. Union of India) will be set down for hearing".

No reasons were given ' in support of this Order but it was stated that reasons would be given later. While delivering my dissenting judgment in Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625 on 31st July 1980, I gave my reasons for subscribing to this Order. It is therefore not necessary to reiterate those reasons over again but they may be treated as formi'ng part of this judgment and a copy of my judgment in Minerva Mills case may be attached as an annexure to this judgment. I may point out that pages 1 to 6 and pages 17 to 96 of the judgment in Minerva Mills case set out the reasons for the making of the order dated 9th May 1980 and I re-affirm those reasons. I have had the advantage of reading the judgment just delivered by the learned Chief Justice, but I find my6e! f unable to agree with him that "it is somewhat difficult to apply the doctrine of stare decisis WAMAN RAO V. UNION (Bhagwati, J.

) 49 for upholding "Article 3lA and that it would not be proper to invoke the doctrine of stare decisis for upholding the validity of that Article. " I have given reasons in my judgment for applying th~ doctrine of stare decisis for sustaining the constitutional validity of Article 31A, but apart from the reasons given by me in support of my view, I find that in Ambika Prasad Mishra v. State of U. P. (') the same Bench which is deciding the prese"rlt writ petitions has upheld the constitutional validity of Article 31A by applying the doctrine of stare decisis. Krishna Iyer, J. speaking on behalf of a unanimous court said in that case : "It is significant that even apart from the many decisio"rlS upholding Article 31A, Golak Nath case decided by a Bench of 11 Judges, while hold?

ng that the Constitution (First Amendment) Act exceeded the constituent power still categorically declared that the said amendment and a few other like amendments would be held good based on the doctrine of prospective over-ruling. The result, for our purpose, is that even Golak Nath case has held Article 3lA valid. The note struck by later cases reversing Golak Nath does not militate against the vires of Article 31A. Suffice it to say that in the Kesava:nanda Bharati case Article 3lA was challenged as beyond the amendatory power of Parliament and, therefore, invalid. But after listening to the Marathon erudition from eminent counsel, a 13 Judge Bench of t. 1:1is Court upheld the vires of Article 31-A in unequivocal terms. That decision binds, on the simple score of stare decisis and the constitutional ground of Article 141. Every new discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent.

In this view, other submissions sparkli"ng with creative ingenuity and presented with high-pressure advocacy, cannot persuade ns to reopen what was laid down for the guidance of the nation as a solemn proposition by the epic Fundamental Rights case. " (Emphasis supplied. ) These observations show b~yond doubt that this very Bench held Article 31-A to be constitutionally valid "on the simple score of stare decisis". It is true that Krishna Iyer, J. stated in the beginning of his judgment in Ambika Prasad Mishra's case : "In this judgment, we side-step the bigger issue of the II vires of the constitutional amendments in Articles 31-A, (1) [1980] 3 S. C. R. 1159. 31-B and 31-C as they are dealt with in other cases disposed of recently.

" This statement was made presumably recause the learned Judge must have thought at the time when he prepared his judgment in this case that the judgment ih the present writ petitions would re given before his judgment came to be delivered and on this assumption, the learned Judge did not consider it necessary to discuss the entire range of arguments relating to the constitutional validity of ArJicles 31-A, 31-B and 31-C. But so far as Article 31A was concerned, the learned Judge did proceed to hold that Article 31A was constitutionally valid "on the simple score or stare decisis" and the other four learned Judges subscribed to this view. It is also true that Krishna Iyer, J.

did not rest his judgment entirely on the protective armour of Article 31A and pointed out that "independently of Article 31-A, the impugned legislation can withstand cohstitutional invasion" and sustained the validity of the impugned legislation on merits, but even so he did hold that Article 31-A was constitutionally valid on the principle of stare decisis and observed that "the comprehensive vocabulary of that purposeful provision obviously catches within its protective net the present Act, a·nd broadly speaking, the undisputed elfect of that Article is sufficient to immunise the Act against invalidation to the extent stated therein". I cannot, therefore, despite the high regard and great respect which I have for the learned Chief Justice, agree with him that the doctrine of stare decisis cannot be invomd for upholding the validity of Article 31-A, since that would be in direct contradiction of what has been held by this very Bench in Ambika Prasad Mishra v. State of U. P. (supra).

KRISHNA IYER, J. While I agree with the learned Chief Justice, I must state that certain observations regarding Arts. 31A, 31B and 31C are wider than necessary and I do not go that far despite the decision in Minerva Mills case. (') I also wish to add a rider regarding the broader observations with the application of stare decisis in sustai'ning Art. 31A. I have expressly upheld Art. 31A by reliance on stare decieis and cannot practise a volte face without convincing juristic basis to convert me to a contrary position. I know that Justice Holmes has said : "Don't be" consistent, "but be simply true". I also remind myself of the profound reflection of Ralph Waldo Emerno·n : (1) [1981] I S. C. R. p. 206. WAMAN RAO v. UNION (Krishna Iyer, l. ) 51 A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. With consistency a great soul has simply nothing to do. He may as well concern himself with his shadow on the wall.

Speak what you think now in hard words and tomorrow speak what tomorrow thinks in hard words again, though it contradict every thing you said today. -"Ah, so you shall be sure to be misunderstdod. " Is it so bad then to be misunderstood ? Pythagoras was misunderstood, and Socrates, and Jesus, and Luther, and Copernicus, and Galileo, and Newton, and every pum and wise spirit that ever took flesh. To be great is to be misunderstood. c And yet, I hold to what I have earlier stated in Ambika Prasad Misra. (') What the learned Chief Justice has in mind, if, with respect, I may venture to speak is that in constitutional issues over-stress on precedents is inept because we cannot be governed by voices from the grave and it is proper that we are ultimately right rather than be consistently wrong. Even so, great respect and binding value are the normal claim of rulings until reversed by larger benches. That is the minimum price we pay for adoption of the jurisprudence of binding precedents.

I leave it at that because the learned Chief Justice has held the impugned Act good in its own right. Enough unto the day is the evil thereof. V. D. K. Petitions dismissed. {1) [1980] 3 SCR- p. 1159