SAJJAN SINGH VS. STATE OF RAJASTHAN : TREADING THE BEATEN PATH
Parliament vide 17th amendment included more agrarian reform laws in Ninth Schedule and also amended Article 31 A. This was challenged before the Supreme Court in Sajjan Singh Vs. State of Rajasthan (1965 AIR 845 ). Following aspects were considered in the case.
Whether procedure prescribed under Article 368 was followed ?
One of the grounds of challenge in this case was whether procedure prescribed under Article 368 has been followed.
Article 368 prescribes procedure for amendment of Constitution. Under Article 368 a bill for amendment is passed in each House by a majority of the total membership and two-third of members present and voting . But proviso to Article 368 provides that for amendment of certain provisions ratification by the Legislatures of not less than one-half of the States to that effect is required. These provisions are as under:
(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter 1 of Part XI, or 939
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or (e) the provisions of this Article,
The issue before the Court was what would be the requirement about making an amendment in a constitutional provision contained in Part III, if as a result of the said amendment, the powers conferred on the High Courts under Art. 226 are likely to be affected as Article 226 is covered under proviso of Article 368.
The Supreme Court held that in construing both the parts of Art. 368, the rule of harmonious construction requires that if the direct effect of the amendment of fundamental rights is to make a substantial inroad on the High Courts’ powers under Art. 226, it would become necessary to consider whether the proviso would cover such a case or not. If the effect of the amendment made in the fundamental rights on the powers of the High Courts prescribed by Art. 226, is indirect, incidental, or is otherwise of an insignificant order, it may be that the proviso will not apply. The proviso would apply where the amendment in question seeks to make any change, inter alia, in Art. 226.
The court noted that if the pith and substance test is applied to the amendment made by the impugned Act, it would be clear that Parliament is seeking to amend fundamental rights solely with the object of removing any possible obstacle in the fulfilment of the socioeconomic policy in which the party in power believes. If that be so, the effect of the amendment on the area over which the High Courts’ powers prescribed by Art. 226 operate, is incidental and in the present case can be described as of an insignificant order. The impugned Act does not purport to change the provisions of Art. 226 and it cannot be said even to have that effect directly or in any appreciable measure. That is why we think that the argument that the impugned Act falls under the proviso, cannot be sustained.
Whether amendment falls within jurisdiction of Parliament ?
Another issue which was raised before the Court was that amendment was essentially related to land and fell within jurisdiction of State Legislature and Parliament was having no right to pass the Amendment. The Court held that the argument is misconceived. In dealing with this argument, again, the pith and substance test is relevant. What the impugned Act purports to do is not to make any land legislation but to protect and validate the legislative measures in respect of agrarian reforms passed by the different State Legislatures in the country by granting them immunity from attack based on the plea that they contravene fundamental rights. Parliament, in enacting the impugned Act, was not making any provisions of land legislation. It was merely validating land legislations already passed by the State Legislatures in that behalf.
Whether Power to amend includes power to take away Fundamental Rights ?
Another issue which was raised before the Court was that the power to amend, which is conferred by Art. 368, does not include the power to take away the fundamental rights guaranteed by Part III. The Supreme Court observed that it is true that the dictionary meaning of the word “amend” is to ,correct a fault or reform; but in the context, reliance on the dictionary meaning of the word is singularly inappropriate. because what Art. 368 authorises to be done is the amendment of the provisions of the Constitution. It is well-known that the amendment of a law may in a proper case include the deletion of any one or more of the provisions of the law and substitution in their place of new provisions. Similarly, an amendment of the Constitution which is the subject matter of the power conferred by Art. 368, may include modification or change of the provisions or even an amendment which makes the said provisions inapplicable in certain cases. The power to amend in the context is a very wide power and it cannot be controlled by the literal dictionary meaning of the word “amend”.
The Court observed that in substance the points urged in the present proceedings are really concluded by the decision of this Court in Sankari Prasad’s case. The Court expressed its full concurrence with Sankari Prasad Judgment.
The Court observed that It is true that Art. 13(2) refers to any law in general, and literally construed, the word “law” may take in a law made in exercise of the constituent power conferred on Parliament; but having regard to the fact that a specific, unqualified and unambiguous power to amend the Constitution is conferred on Parliament, it would be unreasonable to hold that the word “law” in Art. 13 (2) takes in Constitution Amendment Acts passed under Art. 368. If the Constitutionmakers had intended that any future amendment of the provisions in regard to fundamental rights should be subject to Art. 13 (2), they would have taken the precaution of making a clear provision in that behalf. Besides, it seems to us, very unlikely that while conferring the power on Parliament to amend the Constitution, it was the intention of the Constitution makers to exclude from that comprehensive power fundamental rights altogether. There is no doubt that if the word “law” used in Art. 13(2) includes a law in relation to the amendment of the Constitution, fundamental rights can never be abridged or taken away, because as soon as it is shown that the effect of the amendment is to take away or abridge fundamental rights, that portion of the law would be void under Art. 13 (2). We have no doubt that such a position could not have been intended by the Constitution-makers when they included Art. 368 in the Constitution.
The Court also observed that Parliament may consider whether it would not be expedient and reasonable to include the provisions of Part III in the proviso to Art. 368.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.