Simranjeet Singh Sidhu
Those and other basic rights found their Advocate Simranjeet Singh Sidhu expression in Article of The Constitution of India Bill, . We shall deal with the question of express and implied limitations a little later. which was standing in the name of Mehboob Ali Beg. If the word "law" here is not a mere homonym then it is a mistake to think that all the instances to which it is applied must possess either a single quality or a single set of qualities in common. The Constitution did not provide any answer because such a situation was not anticipated by the Constitution makers and this problem had therefore to be solved by Parliament and some modus Simranjeet Law Associates operandi had to be evolved in order to eliminate the possibility of conflict howsoever remote it might be.
Great Boulder Proprietary Mines Ltd. Such a Simranjeet Law Associates will not prevail over Articles , and . It is a decision Simranjeet Singh Sidhu of a Division Bench consisting of Subba Rao C. Amendment can be made by ordinary legislature under certain restrictions, or by people through referendum or by majority of all the units of a federal State or by a special convention. Rights in Part III are downright man made. In support of this contention we were invited to the writings of the various writers such as Burgess, Bryce, Willis, Orfield, Weaver Livingston etc.
The Union of India)  S. , and Patanjali Sastri, Mahajan, Mukherjea and Das JJ. The validity of the principles judged by the above tests falls within judicial scrutiny, and if they stand the tests, the adequacy of the product falls outside its jurisdiction. Although Article A protected the laws coming within its purview from the rights conferred by Article , such a protection could only be against the rights conferred by Clauses (f) and (g) of Article (), as its subjected-matter was expressly stated to be the acquisition of or extinguishment or modification of rights in any estate as defined in Clause () thereof, and the taking over or amalgamation or termination etc.
Each has his own individualistic approach to the question but arising out of their writings is a far-reaching argument that there are rights which inhere in every man as a rational and moral being; that these rights are inalienable and inviolable; and that the core of such of these rights as are guaranteed by the Constitution cannot be damaged or destroyed. If such a latitude were open to the Judges, laws of Prohibition and Gambling should have lost their place on the statute booklong since.
() Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provisions of this Constitution in accordance with the procedure laid down in this article,; The way in which the doctrine of inherent and implied limitations was invoked by Mr. Since, for the reasons above mentioned, clause of Article , transgresses the limitations on the amending power, it must be held to be unconstitutional.
Subject to this clarification, we may now advert to the two facets of the concept of implied limitations referred to above. The expropriated owner still continues to have a fundamental right. Therefore, it is reasonable to assume that it has accepted the interpretation placed by this Court in all respects except as regards the concept of compensation. Second, is there any implied and inherent limitation on the power of amendment apart from Article ().
X of , providing for the avoidcnce of banami transactions as therein specified which were entered into either before or after the commencement of the Act of , and for recovery of possession by the alienor would have been ultra vires the Provincial Legislature as contravening Sub-section () of Section of the Government of India Act, , in that in some cases Section A would operate as a prohibition on the ground of descent alone, but it was authorised and protected from invalidity as regards future transactions by Sub-section (a) of Section of the Act of as amended by Section of the India they would really be equivalent to force and hence have no political significance.
The th Amendment made the following changes: If amendment does not mean abrogation or repeal as submitted in the note of the Advocate Simranjeet Singh Sidhu-General, dated February , in which he said, "that repeal and abrogation mean the same thing since "repeal" has 'abrogation' as one of its meaning and 'abrogation' has 'repeal' as one of its meanings", a question arises, where, is the line to be drawn ? If it was the former, then the unamended Article C would be sufficient to protect the Nationalisation Act from attack on the ground of violation of Articles , and and it would be unnecessary o invoke the amended Article C and if it was the latter, then neither the unamended nor the amended Article C would have any application.
The first para of the head note in Nadan's () A. The way was shown in no uncertain terms by Jawaharlal Nehru when he said in the Lok Sabha in the course of discussion on the Constitution (First Amendment) Bill: These liberating provisions thus incorporated and enlarged the enabling terms of the Act of , and it is clear that the joint effect of the Order in Council of and the Act of was intended to and did have the result of giving to the Ceylon Parliament the full legislative powers of a sovereign independent State (see Ibralebbe v.
Article puts restraints on the ordinary law making process and thus confers constituent power. An amendment of the Constitution in the very nature of things can be made only after the Constitution comes into force. The amending procedure is concerned with the statutory framework of which it forms part itself. On January , Jawaharlal Nehru said : "We shall frame the Constitution, and I hope it will be a "good Constitution, but does anyone in this House imagine that when a free India emerges it will be bound down by anything that even this House might lay down for it ?
While analysing the scope and width of the power claimed by virtue of a Constitutional provision, it is wholly immaterial whether there is a likelihood or not of such an eventuality arising. Recognising this position the petitioner submits that if the effect of amending Article and Article is to permit the removal of the fetter of Article on the ordinary legislative laws which can thereafter be empowered and left free to abrogate or take away fundamental rights, it would be an essential feature.
Seervai said that the Constitution is the supreme higher law. The dominant concept is social good. That would be justified even on the 'core' theory of Mr. The fact that Article confers constitutent powers is apparent from the special conditions prescribed in the Article. Paragraph of the summary reads to say that according to the majority, "Article does not enable Parliament to alter the basic structure or framework of the Constitution". The legislative measure might not according to some views give effect to Directive Principles.
It is not necessary for us to investigate the matter further because Article does not contain any express limitation. It is true that the Courts cannot enforce these principles as they can under the Federal system in the United States, but this does not mean that these principles are any the less binding and effective. Article C is as follows: And yet, as we have seen above, even in U. It has been strenuously urged that the Constitution read as a whole did not contemplate the perpetuation of the existing social and economic inequalities and a duty has been cast on the State to organise a new social order.
The learned Judge observed that this did not, however, mean that something fixed or determined by the application of specified principles which is illusory or can in no sense be regarded as compensation must be upheld by the Courts, for, to do so, would be to grant a charter of arbitraries, and permit a device to defeat the Constitutional guarantee. The framers of the Constitution negatived the vague undefinite reasonableness of laws on political, social and economic grounds.
Courts are not concerned with the wisdom or policy of legislation. In the ultimate analysis, liberty or freedoms which are so much praised by the wealthier sections of the community are the freedom to amass wealth and own property and means of production, which, as we have already seen, our Constitution does not sympathise with. 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 to anger.
We are, however, concerned with our Constitution and cannot ignore the distinction maintained by it in treating ordinary laws as different from the amendment of the Constitution under Article . If something is impermissible, it would continue to be so even though two steps are taken instead of one for bringing about the result which is not permitted. are not to be decided will be determined by judges possessing by natural reason, but by artificial a trained and perceptive judicial mind.
The prescription of a more rigid procedure for changing the provisions specified in the provisio to Article underscores the fact that the framers of the Constitution regarded them as more valuable than the provisions of Part III. Why, consistently with American practice, we were even referred to briefs which counsel had filed before the Supreme Court in the Rhode Island case. After referring to these passages, the learned Attorney-General submitted that the people of India have, as expressed in the Preamble, given the power to amend the Constitution to the bodies mentioned in Article .
These acknowledged giants of the past-their opinions have a high persuasive value-have expounded with care and deliberation the controversial theory of 'Natural Law' and 'Natural Rights'. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realised its importance. He also wrote there (at page ): It seems that while incorporating the part relating to declaration in Article C, the sinister implications of this part were not taken into account and its repercussions on the unity of the country were not realised.
The amendment became part of the Constitution on a proposal by the Congress and ratification by the State legislatures. (emphasis supplied) The High Court of Allahabad has described them as follows: Congress determines which body shall ratify the proposal. Even when proposals for amendment of the Constitution are placed before the electorate as was done by the Congress Party in , the proposed amendments are not usually placed before the electorate.