Constitution (First Amendment) Act, 1951, Arts, 314, 31B— Validity—Constitution of India, 1950, Arts. 13(2), 368, 379, 392—Provisional Parliament—Power to amend Constitution— Constitution (Removal of Difficulties) Order No. 2 of 1950—Validity —Amendment of Constitution—Procedure—Bill amended by Legislature—Amendment curtailing fundamental rights—Amendment affecting land—Validity of Amending Act.
The Constitution (First Amendment) Act, 1951, which has
inserted, inter alia, Arts. 31A and 31B in the Constitution of
India is not ultra vires or unconstitutional.
The provisional Parliament is competent to exercise the power
of amending the Constitution under Art. 368. The fact that the
said article refers to the two Houses of the Parliament and the
President separately and not to the Parliament, does not lead to
the inference that the body which is invested with the power to
amend is not the Parliament but a different body consisting of
the two Houses.
The words "all the powers conferred by the provisions of this
Constitution on Parliament" in Art. 379 are not confined to such
powers as could be exercised by the provisional Parliament consisting of a single chamber, but are wide enough to include the
power to amend the Constitution conferred by Art. 368.
The Constitution (Removal of Difficulties} Order No. 2 made
by the President on the 26th January, 1950, which purports to
adapt Art. 368 · by omitting "either House of" and "in each
House" and substituting "Parliament" for "that House" is not beyond the powers conferred on him by Art. 392 and ultra vires.
There is nothing in Art. 392 to suggest that the President should
wait, before adapting a particular article, till the occasion
actually arose for the provisional Parliament to exercise the
power conferred by the article.
The view that Art. 368 is a complete code in itself in respect
of the procedure provided by it and does not contemplate any
amendment of a Bill for amendment of the Constitution after it
has been introduced, and that if the Bill is amended during its
passage through the House, the amendment Act cannot be said
to have been passed in conformity with the procedure prescribed
by Art. 368 and would be invalid, is erroneous.
Although "Iaw" must ordinarily include constitutional law
there is a clear demarcation between ordinary law which is made
in the exercise of legislative power and constitutional law,
which is made in the exercise of constituent power. In. the
context of Art. 13, "law" must be taken to mean rules or regulations made in exercise of ordinary legislative power and not
amendments to the constitution made in the exercise of constituent power with the result that Art. 13(2) does not affect amendments made under Art. 368.
Articles 31A and 31B inserted in the Constitution by the
Constitution (First Amendment) Act, 1951, do not curtail the
powers of the High Court under Art. 226 to issue writs for
enforcement of any of the rights conferred by Part III or of the
Supreme Court under Arts. 132 and 136 to entertain appeals
from orders issuing or refusing such writs; but they only exclude
from the purview of Part III certain classes of cases. These
articles therefore do not require ratification under cl. (b) of the
proviso to Art. 368.
Articles 3!A and 31B are not invalid on the ground that they
relate to land which is a matter covered by the State List (item
18 of List II) as these articles are essentially amendments of the
Constitution, and Parliament alone has the power to enact
them.
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