Holding

Parliament's limited amending power under Article 368 cannot be exercised to destroy the basic structure of the Constitution, and the harmony and balance between Fundamental Rights (Part III) and Directive Principles (Part IV) is an essential feature of that basic structure.

Summary

Minerva Mills Ltd., a textile company, was nationalized under the Sick Textile Undertakings (Nationalisation) Act, 1974, following an investigation and takeover order under the Industries (Development and Regulation) Act, 1951. The petitioners challenged the constitutional validity of certain provisions of the Nationalisation Act, the order dated October 19, 1971, the Constitution (Thirty-Ninth Amendment) Act which inserted the Act into the Ninth Schedule, Article 31B, and Sections 4 and 55 of the Constitution (Forty-Second Amendment) Act, 1976. The core issue was whether Sections 4 and 55 of the 42nd Amendment, which respectively amended Article 31C to give primacy to Directive Principles over Fundamental Rights (Articles 14 and 19) and inserted clauses (4) and (5) in Article 368 to remove all limitations on Parliament's amending power and bar judicial review of constitutional amendments, were beyond Parliament's amending power under Article 368. The Supreme Court, by a 4-1 majority (Chandrachud, C.J. for himself, Gupta, Untwalia, and Kailasam, JJ.; Bhagwati, J. concurring in part and dissenting in part), held that Section 55 was unconstitutional and void as it destroyed the basic structure of the Constitution by removing limitations on the amending power and depriving courts of judicial review. The majority also held that Section 4 was unconstitutional and void because it abrogated Articles 14 and 19 for a large category of laws, destroying the essential balance between Parts III and IV of the Constitution. Bhagwati, J. agreed that Section 55 was void but dissented on Section 4, holding that the amended Article 31C was valid. The Court declared both Sections 4 and 55 of the 42nd Amendment void.

Issues considered

Whether Sections 4 and 55 of the Constitution (Forty-Second Amendment) Act, 1976 are beyond the amending power of Parliament under Article 368 of the Constitution and therefore void.
Whether the Directive Principles of State Policy contained in Part IV of the Constitution can have primacy over the Fundamental Rights conferred by Part III.
Whether clauses (4) and (5) of Article 368, as inserted by Section 55 of the 42nd Amendment, damage the basic structure of the Constitution.
Whether the amendment to Article 31C by Section 4 of the 42nd Amendment, which extends protection to laws giving effect to any Directive Principle, is constitutionally valid.

Legislation cited

Constitution (Forty‑second Amendment) Act, 1976s. 4, s. 55
Constitution of Indias. 13, s. 14, s. 19, s. 21, s. 31C, s. 32, s. 352, s. 368, s. 37, s. 38, s. 39, s. 83
Industries (Development and Regulation) Act, 1951s. 15, s. 18A
Sick Textile Undertakings (Nationalisation) Act, 1974

Subjects

Basic structure doctrineConstitutional amendmentFundamental RightsDirective Principles of State PolicyJudicial reviewArticle 368Article 31CForty-Second AmendmentLimited amending powerBalance between Parts III and IV

Judgment

206

A MINERVA MILLS· I:.TD. & ORS,,
v.
UNION OF INDIA & ORS.

July 31, 1980
B
[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-
Whether the Sections are beyond' t/ie amending· power of' the· Parliament under· .1
Article 368 of the Constitution and· therefore void-Whether the Directive Pri11-
c ciples of State policy contai11ed in Part iv· of the ConJtitutio 11 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 r-
the Industries (Development Regufation) Act, 1951' to make a fiill and complete--
D 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 detri-
mental to public interest. This undertaking was nationalised and taken over
E
by the Central Government under the provisions of the Sfck Textile Under-
takings (Nationalisation) Act, 1974'. The petitioners challenged the constitu-
tional validity of certain provisions of the· Sick Textile Undertakings (Nationa-
lisation) 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 impugn-
ed Nationalisation Act as Entry 105 in. the Ninth Schedule to the Constitution,
the validity of Article 31B of the Constitution and finally the constitutionality--
F 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 Amend-
G ment) 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 ~mpower-
ing the Parliament to exercise its constituent power without any "limitation what--
H
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 A
·<effectively be achieved, with out calling a democracy hy. any other name, by a
·iota! denial of social, economic and political· justice to ihe people, by emascu-
lating liberty of thought, expression, belief, faith and worship and by abjuring
-commitment to the magnificient ideal of a society of equals. The power to
-<destroy is not a power to amend. [240C-E]
Since the Constitution had conferred a limited amending power on the
Parliament, the Parliament cannot under the exercise of that limited power B
-enlarge that very power into an absolute, power. Indeed, a limited amending
power is one of the basic features of Indian Constitution and therefore, the·
·Jimitations on that power cannot be destroyed. In other words, Parliament
-cannot, under Article 368, expand its amending power so as lei acquire for
itself the right to repeal or abrogate the Constitution or to destroy its basic
and essential features. The donee of a limited power cannot by the exercise
<Of' that power convert the limited power into an unlimited one. [240E-G] C
Smt. Indira Nehru Gandhi v. Raj Narain, [1976] 2 SCR 347, followed.
(2) The newly introduced clause (4) of Article 368 is equally unconstitu-
·1ion~I and void because clauses (4) and (5) are inter-linked. While clause (5)
purports to remove all lim[!ations on the amending power, clause (4) deprives
the courts of their power to ca]J in question any amendment of the Constitution.
~~ D
Indian Constitution is founded on a nice balance of power among the
three wings of the State, namely, the Executive. the Legislature and the Judi-
c<:iary. It is the function of the Judges, may their duty, to pronounce upon the
·validity of laws. If· courts are totally deprived of that power, the fundamental
-rights conferred upon the people will become a mere adornment because rights
·without remedies are as writ in water. A controlled Const1tution will then be-
-come uncontrolled. Clause (4) of Article 368 totally deprives the citizens of E
·one of the most valuable modes of redress which is guaranteed by Article 32.
The conferment of the right to destroy the identity of the Constitution coupled
.,with the provision that no court of law shal1 pronounce upon the validity of
~uch destruction is a transparent case of transgression of the limitations on the
-amending power. [241H, 242A]
If a constitutional amendment cannot be pronounced to be invalid even if
jt destroys the basic structure of. the Constitution, a law passed in pursuance F
.of such an amendment will be beyond the pale of judicial review because it
will receive the protection of the constitutional amendment which the courts
will be powerless to strike down. Article 13 of Constit~tion will then become
. a dead letter because even ordinary laws will escape the scrutiny of the courts
on the ground that they are passed on the strength of a constitutional amend-
ment which is not open to challenge. [242A-C]
(3) Though it is the settled practice of the Supreme Court not to decide G
:.academic questions and the Court has consistently taken the view that it will
not formulate a rule of constitutional law broader than is required by the pre-
cise facts to which it is to be applied, it is difficult to uphold the preliminary
·objection to the consideration of the question raised by the petitioners as re-
·gards the validity of sections 4 and 55 of the Forty-second Amendment. In
·the instant case, the question raised as regards the constitutionality of sections
~4 and 55 of the Forty Second Amendment is not an academic or a hypothe- H
·tical question. Further an order has been passed against the petitioners under
·section ISA of the Industries (Development and Regulation) Act, 1951, by
·'>vhich the petitioners are aggrievetl. [248C, E·G]

/
\

208 SUPREME COURT REPORTS [1981] l S.C.R;.

A 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 ques-
tion 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
B that a law may be passed in future which will injure the rights of the peti-
tioners. What the court is dealing with is a constitutional amendment which.
has been brought into operation and which, of its own force, permits the viola-
iion 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 Law-
c yers' 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
D 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 tho-
rights 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,
E 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 ofl-
the 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 Consti-
tution cannot ever be over-emphasized. Those principles project the high
F 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 destroy-
ing its basic structure. Fundamental rights occupy a unique place in the Jive~·
G 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
H
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 A
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, eco- B
nomic 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 c
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 com-
pass 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 D
·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] E
{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
l has produced is that even if a law is in total defiance of the mandate of Article
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] F
(6) No doubt, it is possible to concejve of laws which will not attract
Article 3 lC, 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 G
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 lawswill 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 H
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 struc-
ture of the Constitution. · [2S6H, 257A-B] ·
210 SUPREME COURT REPORTS [1981} 1 S.C.R.

A (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 institu-
tions 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

B
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-
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.
1
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]
c
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 fun-
damental 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
D 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 De-
claration of Human Right~. If Articles 14 and 19 are put out of operation in
E 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
F 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
G 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".
H 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 Govern- A
nnent 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
<JJeople of their civil liberties. [258E·G] · B
(10) The principles enunciated in Part IV are not the proclaimed mono-
poly of democracies alone. They are common to ali polities, democratic or
;authoritarian. Every State is goal-oriented and claims to strive for securing·
•the welfare of its people. The distinction between the different forms of Gov-
•<ernment consists in that a real democracy will endeavour to achieve its objec-
.1ives through the discipline of fundamental freedoms like those conferred by
.Articles 14 and 19. Those are the most elementary freedoms without which
c
:a free democracy is impossible and which must, therefore, be preserved at all
·<Costs. If the discipline of Article 14 is withdrawn and if immunity fro'in 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 exer-
·-cised by numerically large groups can tear the country asunder by leaving
it to the legislature to pick and choose favoured areas and favourite classes D
cfor preferential treatment. [259A-D]
(11) The device of reading down the provisions of a law for the purpose
.-0f saving it from a constitutional challenge is not to be resorted to in order
10 save the susceptibilities of the law makers, nor indeed to imagine a law
-0f one's liking to have been passed. Article 31C cannot be read down so as
to save it from the challenge of unconstitutionality because to do so will in-
·volve a gross distortion of the principle of reading down depriving that doc- E
trine of its. only or true rationale when words of width are used inadvertently.
One must at least take the Parliament at its word when, especially, it under·
'-lakes a constitutional amendment. [259E-G]
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
F
in opposition to the clear intention of the legislature. In the history of the
-constitutional Jaw, no constitutional amendment has ever been read down to
mean the exact opposite of what it says and intends. In fact, reading 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 indi·
• cated by the very heading "Saving of certain laws" under which Articles 31A, ·
31B and 31C are grouped. Since the amendment to Article 31C was unques-
G
tionably made with a view to empowering the legislatures to pass laws of a
particular description even if those laws violate the discipline of Articles 14
t and 19; it is impossible to hold that the court 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
·-=ontrary to its proclaimed purpose. [259H, 280A-C]
(12) Reading the existence of an extensive judicial review into Article 3 lC H
is really to permit the distortion of the very purpose of that Article. It pro-
·vides 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
212 SUPREME COURT REPORTS [1981] 1 s.c.R_

A adventurism of a most extraordinary nature to undertake such a kind of judi-
cial enquiry. [260F-G]
(13) 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 seeuring
a directive principle is always a debatable question and the courts cannot set
aside the law as invalid merely because in their opinion, the law is not ade-
B quate enough to give effect to· a certai~ policy. The. power to enquire into
the question whether there is a direct and reasonable nexus between the pro-
visions of a law and a Directive Principle cannot confer upon the Courts the·
1power to sit in Judgment over the policy itself of the State. At the highest,
courts can. under Article 31 C. satisfy themselves as to the identity of the law _
in the sense whether it bears direct and reasonable nexus with a Directive
Principle. U the court is satisfied as to the existence of such nexus, the in··
c evitable 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 Articles 39(b) and (c). Rea-
sonablene.ss is evidently regarding the nexus and not regarding the law. The-
attempt thetefore to drape Article 31 C into a democratic outfit .under which an.
D extensive judicial review would be permissible must fail. [260H, 261A-E]
(14) 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;
.\vhatever". Provisions of this nature cannot be saved by reading into them
words and intendment of a diametrically opposite meaning and content. [261F-
G]
E (15) Article 31A(l) can be looked upon as a contemporaneous practical
exposition of the intendment of th.e Constitution, but the 'same cannot be said'
of Article 31C. Besides there is a significant .qualitative difference between the
two Articles. Article 3IA, the validity of which has been recognised over the
years, excludes the challange under Articles 14 and 19 in regard to a specified

F
category of laws. If by a constitutional amendment, the application of Articler;
14 and 19 is withdrawn from a defined field of legislative activity, which is
reasonable in public interest, the basic framework of the constitution may re-
main unimpaired. If the protection of those articles is withdrawn in respect
J
of an uncatalogued variety of laws, fundamental freedoms will become a
'parchment in a glass case' to be viewed as a matter of historical curiosity.
t262A-O]
(16) There is no merit in the contention that since Art. 31A was also up-
held on the ground of stare decisis, Art. 31 C can be upheld on the same
G ground. The five matters which are specified in Article 31A are of such qua-
lity, nature, content and character that at least a debate can reasonably arise
whether abrogation of fundamental rights in respect of those matters will da-
mage or destroy the basic structure of the Constitution. Article 31 C does not
· deal wit.h specific subjects. The directive principles are couched in broad and
general terms for the simple reason that they specify the goals to be achieved.
'The principle of stare deoisis cannot be treated as a fruitful source of perpe-
tuating curtailment of human freedoms. No court has upheld the validity of
H Article .31 A on the ground that it does not violate the basic structure of the
Constitution. There is no decision on the validity of Article 31A which can
be looked upon .as a measuring rod of the extent of the amending power. To.
,.

MINERVA MILLS LTD. v. UNION 213

hark back to Article 3 lA every time that a new constitutional amendment is
challenged is the surest means of ensuring a drastic erosion of the Fundamental
Rights conferred by Part III. Such a process will insidiously undermine the
efficacy 0£ the ratio of the majority judgment in Kesavananda Bharat/ tegard·
ing the inviolability of the basic structure. That ratio requires that the validity
of each new constitutional amendment must be judged on its own merits.
[262C-GJ
(17) It is not correct to say that when Article 3lA was upheld on the B:
ground of stare decisis, what was upheld was a constitutional device by which
a class of subject-oriented laws was considered to be vaHd. The simple ground
on which Article 31 A 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 lo challenge its constitutionality.
The principle of stare dectsis does ·not imply the approval of the device or
mechanism which is employed for the purpose of framing a legal or constitu-
tional provision. [262G-H, 26~A-B]
(18) Under clauses (2) to (6) of Article 19, restrictions can be imposed
only if they are reasonable and then again, they can be imposed in the interest
of a stated class of subjects only. It is for the courts to decide whether restric-
tions are reasonable and whether they are in the interest of the particular
subject. Apart from other basic dissimilarities, Article 3 lC takes away the
power of judicial review to an extent which destroys even the semblance of a
comparison between its provislions and those of clauses (2) to (6) of Artfole 19.
Human ingenuity, limitless thdugh it may be, has yet not devised a system by
which the liberty of the people can be protected except through the intervention
of courts of law. [263B-D]
Three Articles of the Indian Constitution and only three stand between
the heaven of freedom into which Tagore wanted his country to awake and
the abyss of unrestrained power. They are Articles 14, 19 and 21. Article
3 IC has removed two sides of that golden triangle which affords to the people
of this country an assurance that the promise held forth by the Preamble will

l be performed by ushering an egalitarian era through the discipline of funda-
mental rights, that is, without emasculation of the rights to liberty and equa-
lity which alone can help preserve the dignity of the individual. [263D-E]
Per Bhagwatt, !. (concurring)* F'
(1) Since the question in regard to the constitutional validity of the amend-
ment made in Article 31C did not arise in the writ petitions and the counter-
affidavits, it was wholly academic and superftuous to decide it. Once it is
conceded that Articles 31A, 31B and the unamended Article 31C are constitu-
tionally valid it became wholly unnecessary to rely on the unamended Article
31C in support of the validity of Sick Textiles Undertaking (Nationalisation) G;
Act, 1974 because Article 31B would, in any event, save it from invalidation
on the ground of infraction of any of the fundamental rights. [268F-H]
(2) Now either the Nationalisation Act was really and truly a law ·for
giving effect to the Directive Principles set out in Article' 39 clause (b) as de-
clared in section 39 of the Act or it was not such. a Jaw and the legislative
declar_ation contained in sec_tion 39 was a colourable device. If it was the
H. •
*This headnote as well as His Lordship's Judgment will hold good in
the case of Waman '.Rao & Ors. Etc. v. Union of India & Ors. to be published
in the subsequent issue of SCR.
214 SUPREME COURT REPORTS [1981] 1 S.C.R.

former then the unamended Article 31C would be sufficient to protect the
Nationalisation Act from attack on the ground of violation of Articles 14, 19
and 31 and it would be unnecessary to involve the amended Article 3 lC and
if it was the latter, then neither the unamended nor the amended Article 31 C
would have any application. Thus in either event, the amended Article 3 !C
would have no relevance at all in adjudicating upon the constitutional validity
of the Nationalisation Act. In these circumstances, the court could not be
·n called upon to examine the constitutionality of the amendment made in
Article 31C. [269B-E] -
Dattatraya Govind Mahajan v. State of Maharashtra, (1977] 2 SCR 790, •
followed.
(3) Clause (4) of Article 368 of the Constitution is unconstitutional and
void as damaging the basic structure of the Constitution. [288E]
The words "on any ground" in clause (4) of ArtiGle 368 are of the widest
c amplitude and they would obviously cover even a ground that the ptocedure
prescribed in clause (2) and its proviso has not been followed. The re>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 con-
stitutional 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·
ments of clause (2) and its proviso, clause (4) has also the effect of rendering
J
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 Kesava-
nanda 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 Parlia-
ment 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 Con-
stitution. 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<1lity under the Constitution. Every organ of the State, be it the
Executive or the Legislature or the Judiciary, derives its authority from the
Constitution and it has to act within the limits of such authority. Parliament
too is a creature of the Constitution and. it can only have such powers as are
given to it under the Constitution. It has no inherent power of amendment
of the Constitution and being an authority created by the Constitution, it can-
not have such inherent power but the power of amendment is conferred upon
it by the Constitution and it is a limited power which is so conferred. Parlia·
ment cannot in exercise of this power so amend the Constitution as to alter
its basic structure or to change its identity. Now, if by constitutional amend·
ment, Parliament was granted unlimited power of amendment, it would cease
to be an authority under the Constitution, but w·ould become supreme over
it. because it would have power to alter the entire Constitution including its
basic structure and even to put an end to it by totally changing its identity.
Therefore, the limited amending power of Parliament is itself an essential fea-
ture of the c·onstitution, a part of its basic structure, for if the limited power
of amendment was enlarged into an unlimited power the entire character of
the Constitution would be changed. It must follow as a necessary corollary
that any amendment of the Constitution which seeks, directly or indirectly, to
enlarge the amending power of Parliament by freeing .it from the limitation of
unamendability of the basic structure would be violative of the basic structure
and, lience, outside the amendatory power of Parliament. [285E-H, 286A-C]
lt is a fundamental principle of our Constitution that every organ of the
State, every authority under the Constitution derives its powers from the Con- E
stitution and has to act within the limits of such power. The three main de-
partments of the State amongst which the powers of Government are devided

~
are: the Executive, the Legislature and the Judiciary. Under our Constitution
there is no rigid separation of powers but there is a broad demarcation though,
having regard to the complex nature of governmental functions, certain degre~
.. of overlapping is inevitable. The Constitution has created an independent
machinery, namely, the judiciary which is vested with the power of judicial
review to determine the legality of executive action and the validity of legis-
lation passed by the Legislature. lt is a solemn duty of the judiciary under
the Constitution to keep the different organs of the State, such as the Execu-
tive and the Legislature, within the limits of the power conferred upon them
by the Constitution. This power of judicial review is conferred on the judiciary
by Articles 32 and 226 of the Constitution. [286D,, E, 287B-C].
It is a cardinal principle of our Constitution that no· one, howsoever
highly placed and no authority. however lofty, can claim to be the sole judge
of its power under the Constitution or whether its actions are within the con-
fines of such power laid down by the ConstitutiOn. The judiciary is the inter-
preter of the Constitdtion and the judiciary is assigned the delicate task to
determine what is the power conferred on each branch of Government, whether
it is limited, and If so, what are the limits and whether any action of that
branch transgresses such limits. It is for the judiciary to uphold the consti-
tutional values and to enforce the constitutional limitations. That is the essence
of the. rule of law, which inter alia requires that "the exercise of powers by
21'6 SUPREME COURT REPORTS [1981] 1 S.C.R.

,J\ the Government whether it be the legislature or the executive or any other
authority, be conditioned by the Constitution and the law". The power of .the
judicial review is an integral part of our constitutional system and without it,
there will be no Government of Lavrs and the rule of law would become a
teasing illusion and a promise of unreality. If there is one feature of our
Constitution which, more than any other, is basic and fundamental to the
maintenance of democracy and tlie rule of law, it is the power of judicial re-
:.0 view and it is unquestionably a part of the basic structure of the Constitution.
However, effective· alternative institutional mechanism arrangements for judicial ~
review cannot be made by Parliament. Judicial review is a vital principle of
our Constitution and it cannot be abrogated without affecting the basic struc-
ture of the Constitution. If by a constitutional amendment, the power of judi-
cial review is taken away and it is, provided that the validity of any law made
by the legislature shall not be liable to be called in question on any ground,
<C even if it is outside the legislative competence of the legislature or is viclative
of any fundamental rights, it would be nothing short of ·subversion of the
Constitution, for it would make a mockery of the distribution of legislative
powers between the Union and the States and render the fundamental rights
meaningless and futile. So also if a constitutional amendment .ismade which
has the effect of taking away the power of judicial review and providing that
no amendment made in the Constitution shall be liable to be questioned on
D any ground, even if such amendment is violative of the basic structure and,
therefore, outside the amendatory power of Parliament, it would be making
Parliament sole judge of the constitutional validity of what it has done and that
would, in effect and substance, nullify the limitation on the amending power
of Parliament and effect the basic constructure of the Constit11tion. . [237F-H,
288A-E]
(4) Clause (5) of ArtiCie 368 of the Constitution is unconstitutional and
void. [289E-F]
After the decisions of Kesavananda Bharati's case and Smt. lndi7a Gandhi's
case there was no doubt at al! that the amendatory power of Parliament was
limited and it was not competent to Parliament to alter the basic structure of
I
the Constitution and clause (5) could not remove the doubt which did not exist.
What clause (5) really sought to do was to remove the limitation on the amend-
ing power of Parliament and correct it from a limited power into an unlimited
J
:F one. This was clearly and indubitably a futile exercise on the part of the
Parliament. [288G-H; 289A]
The Constitution has conferred only a limited amending power on Parlia-
ment, so that it cannot damage or destroy the basic structure of the Consti-
tution and Parliament by exercise of that limited amending power convert that
very power into an absolute and unlimited power. If it were permissible to
Parliament to enlarge the limited amending power conferred upon it into an
absolute power of amendment, then it was meaningless to place a limitation
on the original power of amendment. Parliament having a limited power of
amendment cannot get rid of the limitation of exercising that very power and
convert it into an absolut.e power. Clause (5) of Article 368 which sought to
· remove the limitation on the amending power of Parliament by making it ab-
solute, therefore, is outside the amending power of Parliament. However,
clause (5) seeks to convert a controlled Constitution into an uncontrolled one
by removing the limitation on the amending power of Parliament which is
itself an essential feature of the Constitution and it is, therefore, violative of
the basic structure. [289B-E]
MINEivk wr:is r.::ro. v. ul'4foN 2'17

!Per 'contra:
\
(5) Section 4 of the Constitution (Forty-second Amendment) Act, 1976
-making amendments in Article 31C and giving primacy to Directive Principles
over Fundamental Rights, in case of· conflict between them, does not damage
'Of destroy the basic structure of the Constitution and is within the amending
power of Parliament and therefore amended Article 31C is constitutional and
-valid. [342E-FJ
B
(i) It is not correct to say that Fundamental Rights alone are based on
Human Rights while Directive Principles fall in some category other than
Huinan Rights. Fundamental Rights and Directive Principles cannot be fitted
in two distinct and strictly defined categories, Broadly stated, Fundamental
Rights represent civil and political rights, while Directive Principles embody
·•ocial and economic rights. Both· are clearly part of broad spectrum of human
:rights. Even, the universal Deelaration of Human Rights adopted by the
·General Assembly of the United Nations on 10th December, 1948 contains
c
not only rights protectillg individual freedom (Articles 1 to 21) but also social
:and economic rights intended to ensure soeio-economic justice to e•/ery one (Arti-
cles 22 to 29). The two other International Covenants adopted by the General
Assembly for securing huinan rights, namely, the International· Covenant on
Civil and Political Rights and the International Covenant on Economic, Social
and Cultural Rights are also to the same effect. The socio-economic rights D'
·embodied in the Directive Pi-iticiples are as much a part of human rights as
:the Funcjamental Rights. Together, they are intended to carry out the objec-
·tives set out in the preamble of the Constitution and to estl)blish an egalitarian
'~ocial order informed with political, social arid economic justice and ensuring
dignity of the individual not only to a few privileged persons but to the entire
. ·people of the country including the have'nots and the handicapped, the lowliest
:and the lost. [320C-fq
E
Kesavananda Bharati v, State of Kera/a, [1973] Supp. SCR, referred to.
(ii) Although Fundamental Rights and Directive Principles appear in the
·Cons ti tu ti on as distinct entities, there was no such demarcation made between
them during the period prior to the framing of the Constitution. From the
point of view of importance and significance, no distinction was drawn between
justiciable and non-justiciable rights by the Fathers of the Constitution and both
were treated as forming part of the rubric of Fundamental Rights, the only F
difference being that whereas the Fundamental Rights were enforceable in
Courts of Law, the Directive Principles of social policy were not to be
-enforceable. [321A-B, 322C-D]
(iii) To liriiit the potential of Fundamental Rights on the ground that they
are merely negative obligations requiring the State to abstain as distinct from
·1aking positive action is impermissible. [32JD-C] G
No doubt, it is said that the Fundamental Rights deal with negative obli-
, ,~ations of the State not to encroach on individual freedom, while the Directive
Principles impose positive' obligations on the State to take certain kind of
actions. Though the latter part may be true that the Directive Principles re-
quire positive action to be taken ,by the State, it is not wholly correct that the
Fundamental Rights impose only negative obligations on the State. There are
,a few Fundamental Rights which have also a positive content, with the result H
that new dimension~ of the Fundamental Rights are being opened up by the
'Supreme Court and the entire jurisprudence of Fundamental Rights is in a
2li SUPREME COURT REPORTS [1981] 1 S.C.R_

A stage of resurgent evaluation. Moreover, there are three Articles, namely~
Article 15(2), Article 17 and Article 23 within the category of Fundamental
Rights which are designed to protect the individual· against the action of other
private citizens and seem to impose positive obligations on the State to ensure·
this protection to the individual. [322 F-H, 323 A-BJ.
H11ssainara Khatoon v. State of Bihar, [1979] 3 SCR 160; Madhav Haya-
wadanrao Hoskot v. State of Maharashtra, [1979] I SCR 192,and Suni/ Batra:
B etc. v. Delhi Administration & Ors. etc., [1979] 1 SCR 392, followed.

(iv) The only distinguishing feature between Fundamental Rights and:
Directive Principles of State Policy is that whereas the former are made en-
forceable in a Court of Law the latter are not. They are not justiciable be-·
cause the social and economic rights and other matters dealt with in the Direc-
tive Principles are by their very nature incapable of judicial enforcement and·
c moreover, the implementation of many of those rights would depend on the·
state of economic development in the country, the availability of necessary·
finances and the government's assessment of priority of objectives and values.
But merely because the Directive Principles are non-justiciable, it does not·
follow that they are in any way subservient or inferior to the Fundamental
Rights. [323 B·C, E-F].
D
(v) The Indian Constitution is first and foremost a social document. The
majority of its provisions are either directly aimed at furthering the goals l'f'
the socio-economic revolution or attempt to foster this revolution by esta-
blishing the conditions necessary for its ·achievement. The Fundamental Right&'
are no doubt important and valuable in a democracy, but there can be no·
real democracy without social and economic justice to the common man and.
E to create socio-economic conditions in which there can be social and economic:
justice to everyone, is the theme of the Directive Principles. It is the Direc-
tive Principles which nourish the roots of a democracy, provide strength and
vigour 'to it and attempt to make it a real participatory democracy which doe&
not remain merely a political democracy but also becomes a social and economic-
democracy with Fundamental Rights available to all irrespective of their power,
position or wealth. The dynamic provisions of the Directive Principles fertilise·
F the static provisions of the Fundamental Rights.· The object of the Funda·
mental Rights is to protect individual liberty, but individual liberty cannot be·
considered in isolation from the socio-economic structure in which it is to
operate. There is a real connection between individual liberty and the shape·
and form of the social and economic structure of the society. There cannot
be any individual liberty at all for the large masses of people who are suffering
from want and privation and who are cheated out of their individual rights
G by the exploitative economic system. Their individual liberty would come im
conflict with the liberty of the socially and economically more powerful class
and in the process get mutilated or destroyed. The real controversies in the
present day society are not between power and freedom but between one form
of liberty and another. Under the present socio-economic system, it is the
liberty of the few which· is in conflict with the liberty of the many. The
Directive Principles, therefore, impose an obligation on the State to take posi-
H tive action for creating socio-economic conditions in which there will be an
egalitarian social order with social and economic justice to all so that individua~
liberty will become a cherished value and the dignity of the individual a living
leality, not onlv for a few privileged persons but for the entire people of the
MINERVA MILLS LTD. V. UNION 219

country. Thus, the Directive Principles enjoy a very high place in the consti- A
tutional scheme and it is only in the framework of the socio-economic structure
enTisaged in the Directive Principles that the Fundamental Rights are intended
to operate, for it is only then they can become meaningful and. significant for
the millions of our poor and deprived people, who do not haTe even the bare
necessities of life and who are living below the poverty leTel. [323F-G, 324C-H,
325A-B].
B
(vi) Article 37 of the Constitution is an Article of crucial importance un-
like the Irish Constitution which provided the inspiration for introducing Direc-
tive Principles in our Constitution. Article 37 says that the Directive Principles
shall not be enforceable by any court,· makes the Directive Principles fundamen-
tal in the governance of the country and enacts that it shall be the duty of
the State to apply the Directive Principles in making laws; The changes made
by the framers of the Constitution are vital and they have the effect of bringing
about a total transformation or metamorphosis of this proTision, fundamentally
c
altering the significance and efficacy. The Directive Principles are not excluded
from the cognizance of the cmirt, as under the Irish Constitution; they are
merely made non-enforceable by a court of law. Merely because the Directive
Principles are not enforceable in a court of law, it does not mea.n that they
are of subordinate importance to any part of the Constitution or that they
cannct create obligations or duties binding on the State. The crucial test which D
has to be applied is whether the Directive Principles impose any obligations or
duties on the State, if they, do, the State would be bound br a constitutional
mandate to carry out such obligations or duties, even though no corresponding
right is created in any one which can be enforced in a court of law. On this
question Article 37 is emphatic and make the point in no uncertain terms.
There could· not ha're been more explicit language used by the Constitution
makers to make the DirectiTe Principles binding on the State and there can
be no doubt that the State is under a constitutional obligation to carry out
this mandate contained in Article 37. In fact, non-compliance with· the Direc-
i tive Principles would be unconstitutional on the part of the State and it would
not only constitute a breach of faith with the people wl:io imposed this
constitutional obligation on the State but it would also render' a vital part
of the Constitution meaningless and futile. For the purp"ose· of the Directive
PrinciplCl'I, the "State" ha·s the same. meaning as given to it under Article 13
· for the purpose of the Fundamental Rights. This would mean that the same
State which is injuncted from taking any action in infringement of the Funda-
mental Rights is told in no uncertain terms that it must regard the Directive
Principles as fundamental in the governance of the country and is positively
mandated to apply them in making laws. This gives rise to a paradoxical
situation and its implications are far reaching. The State is on the one hand,
prohibited by the constitutional injunction in Article 13 from making any G
law or taking any executive action which would infringe any Fundamen.tal
Right' and at the same time it is directed by the constitutional mandate in
+ Article 37 to apply the Directive Principles in the governance of the country
and to make laws· for giving effect to the Directive Principles. Both are
constitutional obligations of the State. When the State makes a law for giying
effect to a ·Directive Principle, it is carrying out a· constitutional obligation
under Article 37 and if it were to be said that the State cannot make such R
a law because it comes into conflict with a Fundamental Right, it can only
be on the basis that Fundamental Rights stand .on a higher pedestal and have
precedence over Directive PrinCiples. But it is not correct to say that und('>r
15--646 S.C. India/SO
SUPREME' COURT REPORTS [1981] 1 S.C.R.

A our constitutional scheme Fundamental Rights are superior to Directive Princi-
ples 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 Funda-
mental 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
B 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. '
C 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
D 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 em-
bodies 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
E 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
F formalistic sense, but in its dynamic and activist magnitude. In the circum-
stances, 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 inter-
pretation of the constitutional provisions, the amended Article 31C does no
more than codify the existing position under the constitutional scheme by
G 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
H 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 Funda-
mental 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 A
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 B
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 ren- c
dered 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 D
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- E
_,. -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 ac-
cordingly 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 socio-
economic struc'.ure or a wider continuum envisaged by the Directive Principle, F
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 Funda-
mental 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 G
~ 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 H
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
SUPREME COURT REPORTS [1981} 1 S.C.R.

A 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.,
B 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].
c 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 consti-
tutional 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 impor-
tance 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].
F
(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
G giving effect to a Directive Principle can be inconsistent with the egalitarian
principle and therefore the protection granted to it under the amended Arti-
cle 31 C 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~
H 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 A
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 B
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
c
'amended Article 31 C, 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
D
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 E
;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. [337 A-F].
(xi).The Court before which protection for a particular law is claimed
.under the· amended Article·- 31 C- 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 parti-
F
cular 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 G
-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 31 C. 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 accom-
plishing 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
224 SUPREME COURT REPORTS [1981] 1 S.C.R.

A 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
B 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
c are protected under the amended Article 31 C. . If there are any other provi-
sions 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 deter-
mine 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 to-
D such 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 31 C 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
E 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,
F 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•
G 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
H 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 A
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 political-
shall inform all the institutions of national life. It no doubt talks of the B
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 C
and political justice for all. Social, economic and political justice is the objec-
tive 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 D
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 a
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 E
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 F
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}. G
HELD further (concurring with the majority) :
6. Clause (a) of Article 31A is constitutionally valid even on the applica-
tion 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 H
equality before the law under Article 14 or any fundamental right under
Article 19. Here, clause (a) of Article 3 IA protects a law of agrarian reform
which is clearly in the context of the socio-economic conditions prevailing in
..

226 SUPREME COURT REPORTS [1981] 1 S.C.R.

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
c ·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 consti-
tutional 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 detri-
E' ment of the general welfare of the public. Certainty a:nd continuity are essential
ingredients of rule of law. Certainty and applicability of law would be consi-
derably 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
F decision of many ·of such questions may depend upon choice betw~n compet-
ing 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 recon-
sidering 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'
G 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
H stare decisi• is evolved from the maxim "stare decisis et non quit<l movere"
meaning "'adhere to ihe decision· and not unsettle things which are established"
and 'it is a useful doctrine intended to bring about certainty and uniformi.ty
iri the law. : But· the doctrine of stare decisis cannot be reii;arded as a rigid
227

arid inevitable doctrine which must be applied at the cost of justice. There
•may be cases where it may be necessary to rid the doctrine of its petrifying;
-rigidity. 'fhe court may in an appropriate case overrule a previous decisiort
taken by it, but that should be done only for substantial and .. compelling
reasons. 'fhe power of review must ·be exercised with due care and caution ·
and only for advancing the public well-being and not merely because it ma.)'.
.appear that the previous deeision was based on an, erroneous vi~w of the law.
It is only where the perpetuation of tqe earlier decision wo~1!'.I be productive B
of mischief or inconvenience or would have the effect of deflecting the nation
·from the course whicli has been set by the Constitution-makers or "where
national crisis of great moment to the life, liberty ~nd safety of this country
.and its millions arc at stake or the basic direction of the nation itself '.is iri'
pe1il of a ~hake up", that the court would be justified in reconsidering its
earlier decision and departing from it. It is fundamental that the nation's
•Constitution should not be kept in. constant uncertainty by judicial review every.
now and then, because otherwise it would paralyse by perennial suspense !'ll
legislative and ·administrative action on vital issues. The court should not
indulge in judicial stabilisation of State action and a view which has been
accepted for a long period of time in a series of decisions and on the_ faith
of which millions of people have acted and a large number of transactions
have been effected should not be disturbed. [292G-H, 293A·H, 294A·D].
Ambikfl Prasad Mishra v. State of U.P. and Anr., [1980] 3 SCR p. 1159,
•foll owecl.

(7) Article 31B was conceived together with Article 31A as part of the
same design adopted to ·give protection to legislation providing for acquisition
of an estate or extinguishmcnt or modification of any rights in an e~tate"
'{295E-F].
The Ninth _Schedule of Article 31B was not intended to include laws ·other E
-than. thoS<10 covered by Article 31A. Articles 31A and 31B were thus intended
to serve· the same purpose of protecting the legislation falling within a certaitlc

l ·category. It was a double barelled protection which was intended to be
provided to this category of legislation, since it was designed to carry Clut
agrarian reform which was so essential for bringing· ab~ut a revolution in the
·socio-economic structure of the country. [295F, H, 296A].
F
Since all the earlier constitutional amendments were held valid on the basis·
of unlimited amending power of Parliament recognised in Shankri Prasad'•'
·case and Sajjan Singh's case and were accepted as valid in Golaklznath's case
and the Twenty Ninth Amendment Act was also held valid in Kesavananda
Blzarati's c~se, though not on the application of the basic structure test and
·these· constitutional amendments have been recognised as valid ,wer a number
of years and moreover, the statutes intended to be protected ·by them are G
·all falling within Article 3!A with the possible exception of only four Acts; it
would not ·be jnstified in re-opening the question of validity of these consti·
·tutional amendments and hence these· amendments are valid. [297F-H].
But all con~titutional amendments made after the decision in K~savananda
Bharati's case would_ have to be decided by reference to. the basic structure
.,
~oetrine, for Parliament woul_d then have no excuse for sayi~g· that it did
·not known the limitation on its amending power. Now out of the statutes H
which are .or may in future be. included in th.e Ninth Sc.hedule . by subsequent
•COnstitutionaJ amendments, if there are ·any Which· fall within a catei:ory covered
228 SUPREME COURT REPORTS [1981] l S.C.R ..
"A by Article 31A or 31C, they would be protected from challenge under Arti-
cles 14 and 19 and it would not be necessary to consider whether their inclusioit
in the Ninth Schedule is constitutionally valid, except in those rare cases
where protection may be claimed for them against violation of any other
fundamental' rights. This question would primarily arise only in regard to
statutes not covered by Article 31A or 31C and in case of such statutes, the
Court would have to consider whether the constitutional amendments including-
B such statutes in the Ninth Schedule violate tl~e basic structure of the Consti-
tution in granting them immunity from challenge of the fundamental rights.
It is possible that in a given case even an abridgement of a fundamental right
may involve violation of the basic structure. It would all depend on the
nature of the nature of the fundamental right, the extent and depth of the
infringement, the purpose for which the infringement is made and its impact
on the basic values of the Constitution. For example, right to life and
c personal liberty enshrined in Article 21, stands on an altogether different foot-
ing from other fundamental rights. If this fundamental right is violated by
any legislation, it may be difficult to sustain a constitutional amendment which
seeks to protect such legislation against challenge under Article 21. So also
where a legislation which has nothing to do with agrarial'.I reform or any
Directive Principles infringes the equality clause contained in Article 14 and
such legislation is sought to be protected by a constitutional amendment by
D including it in the Ninth Schedule, it may be possible to contend that such
constitutional amendment is violative of the egalitarian principle which forms·
part of the basic .structure. However, other situations may arise where infrac-
tion of a fundamental right by a statute, is sought to be constitutionally pro-
tected might effect the basic structure of the Constitution. In every case, there-
fore, where a constitutional amendment includes a statute or statutes in the
Ninth Schedule, its constitutional validity would have fo be considered by
E reference to the basic structured doctrine and such constitutional amendment
,would be liable to be declared invalid to the extent to which. it damages or
destroys the basic structure of the Constitution by according protection against
violation of any particular fundamental right. [297H, 298C-H, 299A-B].

(8) Even on principle, the first part of the unamended Article 31 C is
constitutionally valid. In view of the fact that the first part of the unamended
J
F
Article 31C was held to be constitutionally valid by the majority de2ision (7:6)
in Kesavananda Bharati's case, the question of its constitutional validity cannot
be again reopened, It is true, that the ratio decidendi of Keshavananda Bharati's
case was that the amending power of Parliament is limited and Parliament
cannot in exercise of the power of amendment alter the basic structure of
the Constitution and the validity of every constitutional amendment has, there-
G fore, to be judged by applying the test whether or not it alters the basic
structure of the Constitution and this test was not applied by the six learned
Judges, though their conclusion regarding constitutionality of the. first part
of the unamended Article 31C is valid. Irrespective of the reasons which weighed
with each one ·of the Judges who upheld the validity of the first part of the
unamended Article 31C, the reasons for reaching the said conclusion would
certainly have a bearing on the determination of the ratio decidendi of the case
H and the ratio decidendi would certainly be important for the decision of future·
cases where the validity of the first part of the unamended Article 3IC is
concerned, it was in so many terms determined by the majority decision in
Keshavananda Bharati's case, and that decision binds. [JOOE-H,. 30.L>\..-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 B
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 Arti-
cle 3 IC, 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. F
[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 G
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 a H
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 a
230 SUPREME COURT REPORTS [l981] 1 S.C.R.

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
G a. 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
H 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 neces-
sarily be left to the Executive Branch of Government. There may be a wide
range of situations which may arise and their political implications and conse-
quences may have to be evaluated in order to decide whether there is a
·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 B
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 posi-
tion 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 c
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 <if judicial reTiew is a part of the basic stmcture of
the Constitution and hence this provision debarring judicial review would be
open to attack on the ground that it is unconstitutional and void as damaging
•
or d~troying the basic structure. This attack against constitutionality can,
I howeTer, be averted by reading the provision to mean that the immunity from

l challenie granted by it does not apply where the challenge is not that the
satisfaction is improper or unjustified but that there is no satisfaction at all.
In such a case it is not the satisfaction arriTed at by the President which is F
challenged but the existence of the satisfaction itself. Where, therefore, the
satisfaction is absurd or pef'l'erse or mala fide or based on a wholly extraneous
and irreleTant ground it would be no satisfaction at all and it would be liable
to be challenged before a court notwithstanding clause (S)(a) of Article 352.
No doubt, in most cases it would be-difficult if not impossible to challenge
the exercise of power under Article 352 clause (1) even on this limited ground
because the facts and circumstances on which the satisfaction is b~sed would G.
not be known, but where it is possible the existence ·of the satisfaction can
always be challenged on the ground that it is mala fide or based on a wholly
extraneous or irrelevant ground. [310C-F].
Gomallion v. Lightfoot, [1960] 364 US 339; Baker v. Carr, [1962] 369 US
186, quoted with approval.
St«te of Rajasthan v. Union of India, [1977] 3 SCC 592, followed.
Gulam Sarwant v. Union of India, [1967] 2 SCR 271; Bhutnath Mato .,_
Stat~ of West Bengal, [1974] 1 SCC 645, explained.
232 SUPREME COURT REPORTS [1981] 1 S.C.R.

A .(11) On a plain natural interpretation of the language of sub-clauses. (a)
to (c) of clause (2) that so long as the proclamation of emergency is not
revoked by another proclamation under sub-clause (2)(a), it would continue
to be in operation irrespective of change of circumstances. [312C].
Lakhan Pal v. Union of India, [1966] Supp. SCR 209, applied.
It is true that the power to revoke a proclamation of emergency is vested
B only in the Central Government and it is possible that the Central Govern-
ment may abuse this power by refusing to revoke a Proclamation of Emergency
even though the circumstances justifying the issue of Proclamation have ceased
to exist and thus prolong baseless!y the state of emergency obliterating the
Fundamental Rights and this may encourage totalitarian trend. But the
primary and real safeguard of the citizen against such abuse of power lies
in "the good sense of the people and in the system of representative and
C responsible Government" which is provided in the Constitution. Additionally,
it may be possible for the citizen in a given case to move the court for
issuing a writ of mandamus-for revoking Proclamation of Emergency, if he
is able to show by placing clear and cogent material before the court that
there is no justification at all for the continuance of the Proclamation of
Emergency. But this would be a very heavy onus because it would be entirely
for the Executive Government to be satisfied whether a situation has arisen
D where the Proclamation of Emergency can be revoked. There would be so
many facts and circumstanees and such diverse considerations "'to be taken
into account by the Executive Government before it can be satisfied that
there is no longer any grave Emergency whereby the security of India is
threatened by war or external aggression or internal disturbance. - This is
not a matter which is fit for judicial determination and . the court would not
Interfere with the satisfaction of the Executive Government in this regard
E unless it is clear on the material on record that there is absolutely no justi~
· fication for the continuance of the Proclamation of Emergency and the Pro-
clamation is being continued ma/a fide or for a collateral purpose. The court
may in such a case, if satisfied, beyond doubt grant a writ of mandamus
directing the Central Government to revoke the Proclamation of Emergency.
But until that is ·done the Proclamation of Emergency would continue in
operation and it cannot be said that though not revoked- by another Proclama-
F tion it has still ceased to be in force. In the present case, it was common
ground that the first Proclamation of Emergency issued on 3rd December,
1971 was not revoked by another Proclamation. under clause (2)(a) of Arti-
cle 352 until 21st March, 1977 and hence at the material time when the
House of People (Extension of Duration) Act, 1976, was p~sed the first
Proclamation of Emergency was in operation. :[312F-H, 313A-E].

G If the first Proclamation of Emergency was in operation at the relevant
time it would be sufficient compliance with the requiremen\: of the proviso
to clause (2) of Article 83 and it would be unnecessary to consider whether the
second Proclamation of Emergency was validly issued by the President. [313E-F].

(12) The House of People (Extension of Duration) Act, 1976, was enacted
under the proviso to clause (2) of Article S3 for the purpose of extending
H the duration of the Lok Sabha and it was a condition precedent to the exercise
of this power by Parliament that there should be a Proclamation of Emer-
gency in operation at the date when the Act' was enacted. The words "while
the Proclamation pf Emergency issued on the 3rd day of December, 1971
MINERVA MILLS LTD. v. UNION 233
:and on the 25th day of June, 1975 are both in operation" were introduced A
merely by way of recital of the satisfaction of the condition precedent for
justifying the exercise of the power under the proviso to clause (2) of Arti-
de 83 and they were not intended to lay down a condition for the operation
of section 2 of the Act. Section 2 dearly and in so many terms extended
the duration of the Lok Sabha for a period of one year and extension was
t1ot made dependent on both the· Proclamations of Emergency being in ope-
ration at the date of the enactment of the Act. It was for a definite period
·Of one year that the extension was effected and it was not co-extensive with B
the operation of both the Proclamations of Emergency. The extension for
a period of one year was made once for all by the enactment of section 2
and the reference to both the Proclamations of Emergency being in operation
was merely for the . purpose of indicating that both the Proclamations· of
Emergency being Jn operation, Parliament had competence to make the exten-
sion. It was, therefore, not at all necessary for the efficacy of the extension
that both the Proclamations of Emergency should be in operation at the
c
<late of enactment of the Act. Even if one Proclamation of Emergency was
>--' 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
D
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
E
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 F
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<Jlid
at all at the date of issue would not be in operation at all and it would not
cease to operate after the date of ~nactment of the Act. The proviso would
in that event have to be read as relating only to the first Proclamation of
Emergency, and since the Proclamation ofc Emergency continued until it was G
revoked on 21st March, 1977, the duration of the Lok Sabha was validly
extended for a period of one year from 18th March, 1976 and hence there
was a validly constituted Lok Sabha on the· dates when the Constitution
(Fortieth Amendment) Act, 1976 and the Constitution (Forty-second Amend-
ment) Act, 1976, were passed by Parliament. (314G-H, ·315A-H, 3!6A-C].
(In view of the settled practice of the Supreme Court not to say any H
more than is necessary to get a safe resting place for the dedsion, His Lordship
did not consider whether the second Proclamation of Emergency was validly
issued.)
.
:z 34 SUPREME COURT REPORTS f1981] 1 S.C.R •.
.'A ORIGINAL JUlUSDICTION : WRIT PETITION Nos. 356-361 OF 1977.
(Under Article 32 of the Constitution)
N. A. Palkhiwala, J. B. Dadachanji, Ravintfer Narain,
0. C. Mathur, H. P. Raina, S. Swarup, K. J. John, Talat Ansari, -4

. Mrs. A. K. Verma, S. Thakora, Shri Narain, Robinson, F. S. Nariman,
B A. N. Haksar, J. S. Sinha and Manza/ Kumar for the Petitioners.

L. N. Sinha, Att. Genl., K. K. Venugopal, Addi. Sol. Genl., -
R. N. Sachthey, Grish Chandra, S. Markendaya, Miss A. Subhaslzini
and P. P. Singh for RR. 1 & 4.
'
T. V.S. Narasimhachari, M. S. Ganesh and Kai/ash V asudeva for
C RR 2 & 3.
L. N. Sinha, Att. Genl., Miss A. Subhashini for Attorney
General of India.
M. N. Shroff for the Advocates General for State of Maharashtra
D M. M. Abdul Khader and K. R. Nambiar for the Advocates
General for Kerala State.
N. Nettar for the Advocates General for S'.ate o11 Karnataka State.
Pranat Kumar Chatterjee, G. S. Chatterjee and P. K. Chatterjee
for State of West Bengal. ·
E
B. M. Patnaik Advt. Genl. and R. K. Mehta for State of Orissa.
S. L. Garg, Adv. Gen! and S. K. Gambhir for' State of Madhya
Pradesh.
R. K. Rastogi, Adv. Gen!, Badridas Sharma and Aruneshwar
F Gupta for State of Rajasthan. ·,.,.Jj
M. · V. Goswami and 0. P. Rana for State of U.P.
P. H. Parekh for the interveners, M/s. Domestic Cast Pvt. Ltd.
and Ors. Gocul Gas Pvt. Ltd. and Ors. and Pare! Investment Pvt. Ltd.
·and Ors.
G
M. N. Phadke and N. M. Ghatate for the Applicant interveners
M/s. Waman Rao and Ors. .~
R. K. Garg and V. J. Francis for !he Applicant Intervener
Shyam Narain Tewari.
H Chinta Subba Rao Applicant intervener in person.
M. C. Bhandare and M. N. ShrOlfJ applicant intervener for Stak
of Maharashtra.
•

MINERVA MILLS LTD. v. UNION (Chandrachud, C. J.) 235

Capt. Virendra Kumar applicant intervener in person. A
N. S. Grewal, B. P. Maheshwari and Suresh Sethi for G. S.
+ Grewal applicant intervener.
H. K. Pufli for the intervener M/,f; Shree Sitaram Sugar Co. Ltd.

The following Judgments were delivered : B

CHANDRACHUD, C. J.-In Kesavananda Bharati(1) this Court held
by a majority that though by Article 368 Parliamem.t is given the
power to amend the· Constitution, that power cannot be exercised
so as to damage the basic features of the Constitution or so as tO
destroy its basic structure. The question fur consideration in this c
group of JW1itions under article 32 is whether sections 4 and 55 of
the Constitution (42nd Amerndment) Act, 1976 transgress that limita·
tioDI on the amending power.
Petitioner No. 1 which is a limited company owned a textile
undertaking called Minerva Mills situated in the State of· Karnataka. D
Thls undertakinlg was' nationalised and taken ovet1 by the Central
Government under the provisions of the Sick Textile Undertakings
(Nationalisation) Act, 1974. Petitioners 2 to 6 are shareholders of
Petitioner No. 1, some of whbm are also unsecured creditOTs and
some secured creditors.
E
Respondent 1 is the Union of India. Respondent 2 is the
National Textile Corporation Limited in which the textile undertaking
of Minerva Mills comes to be vested under section 3(2) of che
Nationalisation Act of 1974. Respondent 3 is a subsidiary of the
2nd respondent.
F
On August 20. 1970, the COOtrtil Government appointed a
Committee under ~edtion 15 of filie Industries (Developrum and
Regulation) Act, 1951 to make a full and complete investigation ot
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
production. The said Committee submitted ils report to the Centriil G
Government in January 1971. cm the basis of which the Cen.tral
~vernment passed an order dated October 19, 1971 under section
18A lof the Act of 1951, aut.b)orising Respood~·ot 2 to take over
the man.agement of the Minerva Mills Ltd. on the ground that its
affuirs were be'i.ng managed in a manner highly detrimeinm.J. to ff.
public interest.
(1) (1973] Suppl: SCR 1.
16-{)46 S.C. Iwlia/80
I

236 SUPREME COURT REPORTS [1981] 1 S.C.R.

A By these petitions, the petitioners challenge the constitutional
validity of certain provisions · of the Sick Textile Undertakings
(:'.NationalisationY Act and of the ordeII dated October 19, 1971. We
ar; not conceined with the merits of that chlallenge at this stage. 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. That
raises a question regarding the validity of article 3 lB of the
Constitution with which we proposie to deal in another batch of
petitions. Finally, the petitioners challenge ithe constitutionality of
sections 4 and 55 of the Constitution (42nd Arnend'rnent) Act, 1976
Md it is this contention alone with which we propo,se to deal in
c these petitions.

The challenge to the validity of section 4 and 55 of the 42nd
Amendment rests on the rati'o of the majority judgment in
Kesavananda Bhiarati (Supra). The several opinions rendered in
l> that case have been discussed and analysed threadbare in texts and
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. ·
E
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
F . 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
G 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 A
between two integral parts of the Constitution forms a basic element
<Jf the Constitution which cannot be altered. The word 'amendment'
·occurring in Artie]~ 368 must ther1efore be construed in such a manner
as to preserve the power of the ParHament to amend the Constitution,
·tut not so as to result in damaging or destroying the structure and
B
identity of the Constitution. There was thus an implied limitation
·on the amending power which precluded Parliament from abrogating
or changing the identity of the Constitution or any of its basic features.
Hegde and Mukherjea, JJ. held that the Constitution of India
which is essentially a social rather than a political document, is
founded on a social philosophy and as such has two main features : c
basic and circumstantial. Th~ basic constituelJJ1J remained constant,
the circumstantial was subject to change. According to the learned
Judges, the broad contours of the basic elements and the fundamental
features of the Constitution are delineated in the preamble and the
Parliament has no power to abrogate or emasculate those ·basic
D
elements or fundamental features. The building of a welfare State,
the learned Judges said, !s the ultimate goal of every Government but
that does not mean that in order to build a welfare state, liuman
!freedoms have to suffer a total destruction. Applying these tests, the
]earned Judges invalidated Article 31C' even in its unamended form;

Jaganmohan Reddy, J., held that the word 'amendment' was used
in the sense of permitting a change, in contrai-distinctio1n to destruction,
which the repeal_ or abrogation brings about. Therefo~e. the width
of the poWer of amendment could not be enlarged by amending the
amending power itself. The learned iudge held that the essential
elements of the basic structure of the Comtitution are reflected iri
F
its preamble and that some of the important features of the.
Constitution are justice, freedom of expression and equality of status·
and opportunity. The word 'amendment' could not possibly embrace
the right to abrogate the. pivotal features and the fundamental freedoms
and therefore, that part of the basic structure could not be damaged
·Or destroyed. According to the learned Judge, the provisions of
Article 31C, as they stood then, confurring power on Parliament and
the State Legislatures to enact laws for giVing effect to the principles
specified in. clauses (b) and (c) of Article 39, altogether abrogated the
right given by Article 14 and were for that reason unconstitutional:
In conclusion, the learned Judge held that though the power of
amendment was wide, it did not comprehend the power to totally H
abrogate or emasculate or damage any of the fundamental rlghts or
the essential elements of the basic structure of the Constituti'on or to
',
238 SUPR.EME COURT REPORTS [1981] 1 S.C.R.

A· destroy the identity of the Constituliion. Subject to these limitations.
Parliament had the right to amend anry and every provision of the
Constitution.
Khanna, J. broadly agreed with the aforesaid views of the six
learned Judges and held that the word 'amendment' postulated that
B the Constitution must survive without loss of its identity, which meant
that the basic structure or framework of the Constitution must survive
any amendment of the Constitution. According to the learned
Judge, although it was permissible to the Parliament. in exercise of
its amending power, to effect changes so as to meet the requirements
of changing oonditions it was 'not permissible to touch the foundation
c or to alter the basic institutional pattern. Therefore, the words
"amendment of the Constitution", in spite of the width of their sweep
and in spite of their amplitude, could not have the effect of empowering ·
the Parliament to destroy or abrogate the .basic structure or framework
oil the ConsHtution.

D The summary of the various judgments in Kesavananda Bharati
(Supra) was signed by nine out of the thirteen Judges. Paragraph 2
of the summary reads to say that according to the majority, "Article
368 does not enable ParliamentJ to alteIJ the basic structure or
framework of the Co~titution". Whether or not the summary is a
legitimate part of the judgment, or is per iiJ'lcuriam fur the scholarly
reasons cited by authors, it is undeniable that it correctly reflects
the majority view.
The questi'on which we have to determine on tlie basis of the
majority vieiw in Kesavananda Bhmati (Supra) is whether the
amendments imroduced by sections 4 and 55 of the Constitution
F (42nd Amendment) Act, 1976 damage the basic structure of the
Constitution by destroying any of its basic features or essential
elementJs.

Section 4 of the 42nd Amendment, which was brought into force
with effect from January 3,. 1977 amended Article 31C of the
G Constitution by substituting tlte words and figures "all or any of .the
principles laid down in Part IV" for the words and figures "the
principles specified in clause (b) or claUSe (c) of A11ticle 39". Article
31C, as amended by the 42nd Amendment Act rteads thus :

"31C. Notwithstanding anything contained in article 13, no
B law giving effect to the policy of the State towards securing all
or any of the principles laid down in Part IV shall be deemed
to be void on the ground that it is ineonsistent with, or takes·
MINERVA MILLS LTD. v. UNION (Chandrachud, c. J.) 239

away or· abridges any of the rights conferred by article 14, A
article 19 or article 31; and no law containing a declaration that
it· is for giving effect to such policy shall be called in question
iID. any court on the . ground tha~ it does not give effect to
such po~cy :

Provided that where such law is made by the Legislature of B
a State, the provisions of this article shall not apply thereto
unless such law, having been reserved for the consideration of the
President, has received his assent." .

Section 55 of the Constitution (Forty-second Amendment) Act,
1976, which was also broughtJ into force with effect from January 3, C
1977 inserted sub-sections (4) and (5) in Article 368 which read thus:
"(4) No amempment o"f this Constitution (including the
povisions of Part III) made or purporting to have been made
under this article (whether before 01'1 after the commencemem: of
section 55 of the Constitution (Forty-second Amendment) Act, D
1976) shall be called i:n: question i:n any court on any ground.
(5) For the removal of doubts, it is hereby dr.clared 'that
there sha:U be no limitation whatever on the constituent power
of Parliament to amend by way of addition, variation or repeal
the provisions of this Constitutfon lllllder this article". E
We will first take up for consideration the comparatively easier
question as regards the validity of the amendments made by section 55
of the 42nd Amendment. It introduces two new clauses in Article 368,
namely, clauses 4 and- 5. Clause 5 speaks for itself and i's sd~
explanatocy. Its avowed purpose is the "removal of doubts" but
after the decision of this Court in Kesavananda Bharati (Supra), there
F
could be no doubt as regards the existence of limitations on the
Parliament's power to amend the Constitution. In the context of
the constitutional history of Article 368, the true object of the
declaration contained in Article 368 is the removal of those limitations.
Clause 5 confers upon the Parliament a vast and undefined power to G
amend the Constitution, even so as to distort it out of recognition.
The theme song of the majority decision in Kesavanil.nda Bhmati
(Supra) is : 'Amend as you may even lihe solemn document which
the fou:nding fathers have committed to your care, for you know
best the needs of your generation. But, the Constitution is a precious
heritage; therefore, you cannot destroy its identity'. The majority H
~ed to the Parliament the right to make alterations in the
Constitution so Jong as they are within its basic fr:annework. And
...

240 SUPREME COURT REPORTS [1981] 1 S.C.R.

A what fears can that judgment raise or m~sgivings genemte if it only
means this and no more : The Preamble assures to the people of
India a polity whose basic structure is described therein as a Sovereign.
Democratic Republic; Parliament may make any amendments to the -
Constitution as it deems expedient so long as they do not damage
or destroy India's sovereignty and its democratic, republican character.
B Democracy is not an empty dream. It is a mea:n.ingful concept whose- --
essential attributes are recited in the preamble itself.: Justice, social.
economic and political; Liberty of thought. expression, belief, faith· _
and worship; and Equality of status and opportunity. Its aim, again
as set out in the preamble, is to promote among the people an abiding
sense of 'Fraternity assuring the dig:n~ty of the individual and the
c unity of th~ Nation'. The newly introduced clause 5 of Article 368-
demolishes the very pillars on which f!rn preamble rests by empowering
the Parliament to exercise its constituent power without any· '
"limita~ion whatever". No oonstitue\llt poweir oan, conceivably go
higher than the sky-high power conferred by clause (5), for it even
D empowers the Parliament to "repeal the provisions of this Constitu-
tion", that is to say, to abrogate the democracy and substitute for it· a
totally antithetical form of Government. That can most effectively
be achieved, without calling a democracy by any other name, by a total
denial of social, economic llill,d political justice to the people, by
emasculating liberty of thought, expression, belief, faith and worship
E and by abjuring commitmellit to the magnificient ideal 0£ a society )
of equals. The power to destroy is not a power to amend.

Since the Constitution had conferred a limited amending power·
on the Parliament, the Parliament cannot under the exercise of that _,--J
limited power enlarge that very power into an absolute power.
F Indeed, a limited amending power is one of the basic features of
our Constiiution and therefore, the limitations on that power cannot
be destroyed. In other words, Parliament cannot, under Article 368,.
expand its amending power so as to acquire for itself the right to
repeal or abrogate the Constitution or to destroy its basic and
essential Jieatures. The dO'nee of a limited power dannot by the
G
exercise of that power convert the limited power in:fo an unlimited one.
The very 42nd Amendment which introduced clauses 4 and 5
iin Article 368 made amendmein.ts to thre p1'eamb!e to which no
exception can be taken. Those amendments are not only within
the framework of the Constitution but they give vitality to its
H philosophy; they. afford strength and succor to its foundation. By
the aforesaid amendments, what was originally described as a
'Sovereign Democratic Republic' became a "Sovereign Socialist Secular-
MINERVA .MILLS LTD. v. UNION (Chandrachud, c. J.) 24°1

Democratic Republic" and the resolution to promote the 'unity of the A
Nation' was elevated into a promise to promote the "unity and integrity
of the Nation". These amendments furnish the most eloquent example
+ of how the. amending power can be exercised consistently with the
creed o~ the· Constitution. They offer promise of more; they do not
.scuttle a precious heritage.
B
In Smt. Indira Nehru Gan'dhi v. Raj Narain,( Khanna, J. struck
1)

down clause 4 of Article 329A of the Constitution which abolished
the forum for adjucating upon a dispute relating to the validity of
an election. on the ground that the particular Article which was
introduced by a constitutional amendment violated the principle of free
a!lld fair elections which is an essential postulate of democracy and
c
which, in its turn, is a part of the basic structure of the Consti.tution.
-Mathew, J. also struck down the Article on the ground that it damaged
the essential feature of democracy. One of us. Chandrachu:i, J. reached
the same conclusion by oolding that the provision& of the Article were
an outright negation of the right of equality conferred by Article 14, D
·a right which, more than any other, is a tla,sic po~tulate of the
Constitution. Thus whereas amendments made to the preamble by the
42nd Amendment itself ailford an illu&tration of the scope of the
ameinding power, the case last referred to affords an illustration of
the limitations on the amending power.
E
Since, for the reasons above mentioned, clause 5 of Article 368
transgresses the limitati'ons on ~he amending power. it must be held·
to be unconstitutional.
The newly introduced clause 4 of Article 368 must suffer the
same fate as clause. 5 because the two clauses are inter'lilnked. Clause 5
F
purports to remove all limitations on the amending power while clause
4 deprives the courts of their power to call in question any amendment
of the Constitution. Our Constituticm is founded on a ni:ce balance
of power among •the three wings of the State, namely the Executive,
the Legislature and the Judiciary. It is the function of the Judges,
nay their duty, to pronounce upon the validity of laws:· If courts are G
totally deprived of that power, the fundamental rights conferred upon
the people will become a mere adornment because rights without reme-
dies are as writ in water. A controlled Constitution will then become
U\OControUed. Clause' (4) of Article 368 totally deprives the citizens
of one of the most valuable modes of redress which is guaranteed
by Article 32. The conferment of the right to destroy the identity
of the Constitution coupled with the provision that no court of law H
(I) [19761 2 S.C.R. 341.
·242 SUPREME COURT REPORTS [1981] 1 S.C.R.

A shall pronounce upon the validity of such destruction seems to us a
transparent case of transgressiO'll of the limitations on the
amending power.
lf a constitutional amendment cannot be pronounced to be in.valid
even if it destroys the basic structure of the Constitution, a law passed
B in pursuance of such an amendment will be beyond the pale of judi'cial
review because it will receive the protection of the constitutional
amendment which the courts will be powerless to strike down. Article 13
of the Constitution will then become a dead letter because even
ordinary laws will escape the scrutiny of the courts on the ground that
· they are passed on the strength of a constitutional amendment which
I
c is not open to ch:allenge.

Clause 4 of Article 368 is in one sense an appendage of Clause 5,
though we do noti like to describe it as ai logical consequence of
lCJ.ause 5. If it be true, as stated in clause 5, that the Parliament
bas unlimited power to amend the Constitution, courts can have no
D jurisdiction. to strike down any, constitutiooal amendment as
unconstitutional. Clause 4, therefore, says oothing mol'ie or less than.
what clause 5 postulates. iI1i clause 5 is beyond the amending power
of the Parliament, clause 4 must be equally beyond that power and
must be struck down as .such.

E The next question which we have to consider ilS whether the
amendment made by section 4 of the 42nd Amendment to Article 31C
of the Constitution is valid. Mr. Palkhiwala did not challenge the
validity of the unamended Article 31C, and indeed that could not be
done. The unamended Article 31 C forms the subject matter of: a,
separate proceeding and we have indicated therein that it is·
F
CO!llStitutionally valid to the extent to which it was upheld in
Kesavananda Bharati (Supra).

By the amendmen,t introduced by section 4 of the 42nd Amendment,
provision is made in Article 3IC saying that no law giving effect
G to the policy of the State towards securing "all or any of the principles
laid down in Part IV" shall be deemed to be void on the ground
that it is inccill.'ii'stent with or takes away or abridges any of the
rights conferred by Article '14, Article 19 or Article 31. It is manifest
that the scope of laws whlch fall within Article 31C has been
expanded vastly by the amendment. Whereas under the original
H Article 3IC, the challenge was excluded only in respect of laws giving
effect to the policy of the State towards· securing "the principles
specified in clause (b) or clause (c) of Article 39" under the amendment,
• MINERVA MILLS LTD. V.,UNION (Chandrachud, C, ].) 243
'"
.:all laws giving effect ;to the policy 0£ the State towards securing "all A
-0r any Oil' the principles laid down in Part IV" are . saved fromf ,lll
·constitutional challenge under Articles 14. and 19. (The referenoe to
·+ .Article 31 was deleted by the 44th Amen!dmen.t as a consequence ot
the abolition of the right to property as a fundamental right). The
question for consideration in the light of this position is whether
:section 4 of the 42nd Amendment has brought about a result which B
i<; basically and fundfill1entally different from the one arising under
-the unamended article. If the amendment does not bring about any
-such result, its validity shhll have to be upheld fur the same reasons
·:for which the validity of the unamended article was upheld.
\
The argument Oil' Mr. Palkhivala, who appears on behalf of the c
petitioners, runs thus !: The amendmen1l iJJJ,troduced by section 4
•-Of the 42nd Amendment destroys the harmony between Parts III
;and IV of the Constitution by making the fundamental rights conferred
by Pant III subservient to the directive principles of State Policy set.
--out in Part IV of the Constitution, The Constitution-makers did not
D
·<:ontemplate a disharmony or imibalance ·between the fundamental
rights and the directive principles. and indeed they were both meant
to supplemenv each other. The basic structure of the Constitution
·tests on the foundation that while the directive principles are the
....
mandato11y ends of government, those ends can be achieved only
·through permissible means which are set out in Part III or the E
Constitution. In other words, the mandatory ends set out in Part IV
·can be achieved not through totalitarian methods but only through
those which are consistent with the fundamental rights conferred by
Part III. If Article 31C as amended by the 42nd Amendm~ is
..allowed to stand, it will confer aR unrestricted licence on the legislature
and the executive, both at the Centre and· in the States, to destroy F
·rlemocracy and·establish an authoritarian regime. All legislative action
and every governmental ·action purports to be r1elated, directly or
indirectly, to some directive principle of State policy. The protection
of the amended article will therefore be available to every legislative
action under the ;;un. Article 31C abrogates the ri'ght to equality
.'1Suaranteed by Article 14, which is the very foundation of a republican G
form of government and is by itself a basic feature of the Constitution.

The learned counsel further argues · that it is impossible to
·envisage that a destruction o~ the fundamental freedoms guaranteed
by Par1t ill is necessary for achieving the object of some 0£ the
··directive principles like equal justice and free legal aid, organising H
·village panchayats, providing living wages for workers and just and
:humane condit~ons of work, free and compulsory education for
244 SUPREME COURT REPORTS [1981] 1 S.C.R.

A children, organisation of agriculture and animal husbandry, and'.
protection of ei11vironmem and wiid life. What the Constituent
Assembly ·had rejected by creating a harmonious balance between
Parts III and IV is brough.t back by the 42nd Amendment.

Finally, it is urged that the Constitution had made prov1s10n
B for the suspension of the right to enforce fundamental rights when an
emergency is proclaimed by the President. Uooer the basic scheme
of the Constitution, fundamental rights were to lose their supremacy
only during the period that the proclamation of 'emergency is ini
operation. Section 4 of the 42nd Amendment has robbed the
fundamental rights of their supremacy and made them subordinate to,
c the directive principles of State policy as if there were a permanen[t
emergency in operation. While Article 359 suspends the enforcement
of fundamental •rights during the Emergency, Article 31C virtually
abrogates . them in normal times. Thus, apart from destroying one
of the basic features of the Constitution, namely, the harmony oetween
D Parts III and IV, section 4 of the 42nd Ameinidment denies to the
people the blessings Oil' a free democracy a00 lays the foundation for
the creation of an authoritarian State.

These contentions were stoutly resisted by the learned Attorney
General thus : Securing the. implementation of directive principles
E by the elimination of obstructive legal procedures cannot ever be said
to destroy or damage the basic features of the Constitution. Further,.
laws made for securing the objectives of Pam IV would necessarily
be in public interest and will fall within Article 19(5)1of the Constitution,
in so far as clauses (d) and (e) of Article 19(1) are concerned. They
would therefore· be saved in any case. The history of the Constitution.
F particularly the inc~rporation of Articles 31(4) and 31(6) and the
various amendments made by Articles 31A, 31B and the unamended
Article 31C, which were all upheld by this Court, establish the width
olJ the amending power under ArtiCle 368. The impugned amendment·
therclore manifestly falls within the sweep of the amending power.

G The learned Attonney General further argues : A law which·
:flulfils the directi1ve of Article 38 is incapable of abrogating fundamental
freedoms or of damaging the basic structure of the Con<titution
inasmuch as that structure itself is founded on the principle of jnsfice,.
social, economic and political. Article 38, which contains a directive
principle. provides that the State shall strive !Jo promote the welfare
H of the people by securing and' proteot,ing as effectively as it may a
social order in which justice. social, economic and political. shall'
jrifonn all the institutions of the national lLfe. A law which complies.
MINERVA MILLS i::iD. v. UNION (C}landrachud, c. J.) 245

with Article 38 cannot conceivably abrogate the fundamental freedoms · A
except certain ,e'conomic rights and !hat too, for , the purpose of
minimising inequalities. A law which will abrogate fundamental
freedoms will either bring about social injustice or economic injustice
or political. injustice. It will thereby contravene Article 38 rather than
falling within it and will for that reason be outside the protection
of Article 31C. In any event, each and every violation of Artide 14 B
or Article 19 does not damage the basic structure of the-'Constitution.

The learned Additional Solicitor General has submitted a carefully
prepared chart of 11 decisions of this Court ranging from Anwar Ali
Sarkar(') to Haji Kader Kutty(2) in Qlfder to show the possible impact c
of amended {\rtiC!e 31 C on cases where this Court had held provisions
of certain statutes to be violative of Article 14. He urged on the
..
basis of his. tabulated analysis that there can be many cases which
am not relatabie to directive principles and will not therefore be
saved by the amended article. Those cases are reported in Anwar Ali }) ,

Sarkar (Supra), Lachmandas Ahuja,(l) Habib Muhammad-,(4) Moopil
Nair,( 5) Jialal,( 6) Hazi Abdul Shakur,(1) Devi Das,(8) Osmania Univer-
sity,(9) New Manek Chowk,(10) Anandji Haridas,(") and Haji Kader
Kutty (Supra). He has also submitted a chart of 13 cases involving laws
relatable to directive principle in which the fundamental rights were
abridged but not abrogated. Since abridgement of fundamental rights
E'
in public interest is permissible as it does not damage the basic stru.:-
ture, laws similar to those involved in the 13 cases will not have
to seek the protection of the amended article. These illustrative cases
are : Ram Prasad Sahi(12), Rao Manohar Singhji(13), Kunhikaman(14),

(!) [1952] SCR 284.
F'
(2) [1969] 1 SCR 645.
(3) [1952} SCR 710.
(4) [1953] SCR 661.
(5) [1961] 3 SCR 77.
(6) [1963] 2 SCR 864.
(7) [1964] 8 SCR 217.
(8) [1967] 3 SCR 557.
(9) [1967] 2 SCR 211.
(10) [1967] 2 SCR 679.
(11) [1968] 1 SCR 661.
(12) [1958] SCR 1120. H
(13) [1954] SCR 996.
(14) [1962] 1 SCR 319 (Supple.)

•
246 SUPREME COURT REPORTS/ [1981] 1 S.C.R.

A Orissa Cement( 1), Krishnaswami Naidu(2), Mukanchand(3), Nallaraja
Reddy(4), Jal/an Trading Co.,(5), Kamru[J(,6), Mizo District Council(1),
Balammal(8), Rashbehari Pande(9) and R. <;:. Cooper(IO).

The argument of the learned Additional Solicitor General proceeds
thus: For extracting the ratio of Kesavananda Bhmati (Supra) one
B
must proceed on the basis that there were as many cases as there
were declarations sought for by the petitioners therein. The majority
in regard to Article 368 is different from the majority in regard to
the decision in respect of Article 31C. The binding ratio in regard
to Article 368 as well as the ratio resulting in upholding the validity
of the first part of the Article 31 C will both sustain the validity of
section 4 of the 42nd Amendment. In regard to fundamental rights,
the ratio of the judgments of 12 out of 13 Judges, i.e., all excepting
Jaganmohan Reddy J.,. will empower amendment of each one of the
articles in part III, so long as there is no total abrogation of the
fundam_ental rights which constitute essential features of the basic
D structure of the Constitution. Abrogart:ion of fundamental righti; which
do not c0nstitute essential features of the basic structure or
abridgement of fundamental rights which constitute such essen1tial
features is within the permissible limits of\ amendment. The
unamended Article 31C having been upheld by the majority
in Kesavanauda Bbmaiti both on the ground of stare decisis
and on the ground of 'contemporaneous practical exposition', the
amended Article 31 C must be held to be valid, especially since it
J:ila~ not brought about a qualitative change in comparison with the
provisions of the unamended article. A harmonious and orderly
development of constitutional law would require that the phrases
'inconsistent with' or 'take away' which occur in Articles 31A, 31B
and 31C should be read down to mean 'restrict' or 'abridge' and
not 'abrogate'. If two constructions of those expressions were
reasonably possible, the Court should accept that construction which
would render the constitutional amendment valid.
(1) [1962] Supp. 3 SCR 837.
(2) [1964] 7 SCR 82.
(3) [1964] 6 SCR 903.
(4) [1967] 3 SCR 28.
(5) [1967] I SCR 15.
(6) (1968] 1 SCR 561.
(7) [1967] 1 SCR 1012.
H (8) [1969] 1 ~CR 90.
(9) [1969] 3 sCR 374.
(10) (1970] 3 SCR 530.

•

c .
MINERVA MILLS LTD. v. UNION (Chandrachud, C.J.) 247

The learned counsel further argues: The directive principles,
including the one contained in Article 38, do not cover the exercise
of each and every legislative power relatable to the Seventh Schedule
,+ of the Constitution. Besides, the directive principles being themselves
fundamental in the governance of the country, no amendment of the
Constitution to achieve the ends specified in the directive principles
can ever alter the basic structure of the Constitution. If the
unamended Article 31C is valid in reference to . laws relatable to
Articles 39{b) and (c). no dichotomy can. be made between laws
relatable to those provisions on the one hand and laws relatable to
other directive principles. A value judgment is not permissible to
the Court in this area.
C'
It is finally urged by the learned Additional Solicitor General that
judicial review is not totally excluded by the amended Article 31C
because it will still be open to. the Court to consider :
(i) whether the impugned law has 'direct and reasonable
nexus' with any of the directive principles;
(ii) whether the provisions encroaching on fundamea.tal rights
are integrally connected with and essential for effectuating
the directive principles or are at least ancillary thereto;
(iii) whether the fundamental right encroached upon is an
essential feature of the basic structure of the Constitution;
and E
(iv) if so, whether the encroachment, in effect, abrogates that
fundamental right.
Besides these contentions Mr. R. K. Garg has filed a written
brief on behalf of the Indian Federation of Working Joumalists,
opposing the contentions of Mr. Palkhivala. ,So have the learned F
Advocates General of the State of Karnataka and Uttar Pradesh.
Mr. Aruneshwar Gupta has filed a brief on behalf of the State of
Rajasthan supporting the submissions of Mr. Palkhivala. So has the
State of Rajwthan. The ,Advocates-General of Maharashtra, Kerala,
West Bengal and Orissa appeared through their respective advocates.

Both the Attorney General and the Additional Solicitor General
have raised a preliminary objection to the consideration of the
question raised by the petitioners as regards the validity of Sections
4 and 55 of the 42nd Amendment. It is contended by them that
the issue formulated for consideration of the court; "whether . the
provisions of the Forty-Second Amendment of the Constitution which K
deprived the Fundamental Rights of their Supremacy and, inter alia,
made them subordinate to the direotive principles of State Policy are
248 SUPREME 'COURT REPORTS [1981] 1 S.C.R.

A ultra vires the amending power of Parliament?" is too wide and
academic. It is urged that since it is the settled practice of the court
not to decide academic questions and since property rights claimed
by the petitioners under Arts. 19(l)(f) and 31 do not survive after
the 44th Amendment, the court should not entertain any argument
on the points raised by the petitioners.
B In support of this submission reliance is placed by the learned
counsel on the decisions of the American Supreme Court in
Commonwealth of Massachusetts v. Andrew W. Mellon{. 1), George
Ashwander v. Tennesee Valley Authl0rify(2), and on H1eaver,'s
Constitutional Law, 1946 Edition(l) and American Jurisprudence(4).
Reliance is also placed on certain decisions of this court to which
it is unnecessary to refer because the Attorney-General and the
Additional Solicitor General are right that it is the settled. practice
of this Court not to decide academic questions. The American
authorities on which the learned counsel rely take the view that the
constitutionality of a statute will not be considered and determined
D by the courts as a hypothetical question, because constitutional
questions are not to be dealt with abstractly or in the manner of an
academic discussion. In other .words, the courts do not anticipate
constitutional issues so as to assume in advance. that a certain law
may be passed in pursuance of a certain constit)ltional amendment
which may offend against the provisions of the Constituiion. Similarly,
our Court has consistently taken the view that we will not formulate
a rule of constitutional law broader than is required by the precise
facts to which it is tb be applied. It is only · when the rights of
persons are directly involved that relief is granted by this Court.
But, we find it difficult to uphold the preliminary objection
because, the question raised by the petitioners . as regard&
.F the constitutionality of sections 4 and 55 of the 42nd Amendment is
not an acade.mic or a hypothetical; question. The 42nd Amendment
is there for aily one to see and by its sections· 4 and 55 amendments
have been made to Articles 31C and 368 of the Constitution. An
order has been passed against the petitioners unde~" section 18A of
the Industries (Development and Regulation) Act, 1951, by which
G
the petitioners are aggrieved.
Besides there are two other relevant considerations which must
be taken into account while dealing with the preliminary objection.
There is no constitutional or statutory inhibition against the decision
(1) 67 Lawyers' Edition, 1078, 1084.
H (2) 80 Lawyers' Edition, 688, 711.
(3) Weaver's Constitutional Law, 1946 Edn. p. 68, 69.
(4) America~ Jurisprudence. 2d, Vol. 16, pp. 299-301.
MINERVA MILLS LTD. v. UNION (Chandrachud, C. J.) 249

·of questions before they actually ~rise for consideration. In view A
•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 expedient
in the interest of Jl.jstice to settle the true position. Secondly, what
we are dealing. with is not an ordinary law which may or may not
be passed so that it could be said that our jurisdiction is being
invoked on the hypothetical consideration that a law may be passed B
fo future which will injure the rights of the petitioners.. We are
.dealing with a constitutional amendment which has been brought
into operation and which, of its own force, permits the violation of
certain freedoms through laws passed fOT certain purposes. We,
therefore, overrule the preliminary objection and proceed to determine
the point raised by the petitioners. c
The main controversy in these petitions centres round the question
whether the directive principles of State policy contained in Part IV
· can have primacy over the fundamental rights conferred by Part III
of the Constitution. That is the heart of the matter. Every other
·consideration and all other contentions are in the nature of by-products
of that central theme of the case. The competing claims of parts D
III and IV constitute the pivotal point of tpe case because, Article
31C as amended by section 4 of the 42nd Amendment provides in
terms that a law giving effect to any directive principlei cannot be
·challenged as void on the ground that it violates the rights conferred
by Article 14 or ArfiCle 19. The 42nd Amendment by its section 4
:thus subordinates the fundamental rights -conferred by Articles 14 E
and 19 to the directive principles.
The question of questions is whether in view of the majority
·decision in Kesavananda Bharati it is permissible to the Parliament
to· so amend the Constitution as to give a position of precedence to
directive principles over the fundamental rights. The answer to this F
·question must necessarily depend upon whether Articles 14 and .19
which must now give way to laws passed in order to effectuate the
(Policy oJl 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 the rights conferred by these two articles
are not a part of the basic structure of the Constitution that they G
can be allowed to be abrogated by a constitutional amendment. If
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 total H
·emasculation of the essential features of the Constitution is, by the
ratio in Kesavanamla Bharati, not permissible to the Parliament.
2 50 SUPREME COURT REPORTS [1981] 1 S.C.R.

A There is no doubt that though the courts have always attached
very great importance to the preservation of human liberties, no less
importance has been attached to some of the Directive Principles of
State Policy enunciated in Part N. In the words of Granville' Austin, +
(The Indian Constitution: Corner Stone of a Nation, p. 50) the Indian
Constitution is first and foremost a social document and .the majority
B of its provisions are aimed at furthering the goals of social revolution.
by establishing the conditions necessary for its achievement. Therefore
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 Directive Principles of State policy are fundamental in
c the governance of the country and the Attorney General is right that
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. The promise of a better to-morrow
must be fulfilled to-day; day' after ta.morrow it runs the risk of
being conveniently forgotten .. Indeed so many tomorrows have:
D come and gone without a leaf turning that today there is a lurking
danger that people will work out their destiny through the compelled
cult of their own "dirty hands". Words bandied about in marbled
halls say much but fail to achieve as much. ·
But there is another oompeting constitutional interest which.
E occupies an equally important place in that scheme. That interest
is reflected in the provisions of Part ID which confer fundamental
rights some on citizens as Articles 15, 16 and 19 do and some on
all persons alike as Articles 14, 20. 21 and 22 do. As Granville
Austin says : "The core of the commitment to the social revolutiorr
J~

_ ·
_
lies in Parts ID and N............... These are the conscience of the·
F Constitution."
It is needless to cite decisions which have extolled and upheld'
the personal freedoms-Jtheir majesty, and in certain circumstances.
their inviolability. It may however be profitable to see how the·
American Supreme Court, dealing. with a broadly comparable
G Constitution, has approached the claim for those freedoms.
In Barbara Elfbrandt v. Imogene Russell( 1) the U. S. Suprem~ -
Court was considering the constitutionality of an Arizona Statute
requiring State employees to take a loyalty oath. Justice Douglas,.
speaking for the majority, observed while striking down the provision
that : "1:.egitimate l.egislative goals 'cannot be pursued by means
H
that broadly stifle fundamental personal liberties when the end can:
(!) 16 L. Ed. 2d. 321, 326.
MINERVA MILLS LTD. v. UNION (Chandraclzud. C.J.) 251

be more narrowly achieved'.................. "The objectionable quality A
of.. ............. overbreadth" depends upon the existence of a statute
"susceptible of sweeping and improper application............... These
freedoms are delicate and vulnerable as well as supremely precious
in our .society. The threat of sanctions may deter their exercise almost
as potently as the actual application of sanctions".
In United States v. Herbet Guest(!), though the right to travel B
freely throughout the territory of the United States of America does
not find an explicit mention in the American Constitution, it was
held that the right to travel from one State to another occupied a
position fundamental to the concept of the Federal Union and the
reason why the right was not expressly mentioned in the American
Constitntion though it was mentioned in the Articles of Confideration,
c
was that "a right so elementary was conceived from the beginning
to be a necessary concomitant of the stronger Union the Constitution
created".
This position was reiterated in Winfield Dunn v. James F.
Blwnstein.(2 ) It was held therein that freedom to travel throughout D
the United States was a. basic right under the Constitution and that
the right was an unconditional persona] right whose exercise may
not be conditioned. Therefore, any classification which serves to
penalize the exercise of that right, unless shown to be necessary to
promote a compelling governmental interest, was unconstitutional.
In New York Times Company v. United S>tates( 3) the United E
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 F
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
v. Stale of A labama(4 ), a unanimous court while dealing with an
attempt to oust the 'National Association of Coloured People from
G
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
252 SUPREME COURT REPORTS [1981] 1 S.C.R.

A 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
B 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,
c 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
D 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
E 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
religious conceit would incite violence and breaches of the peace
in order\ to deprive others of their equal frig~li~ to the f!XTerhcise _
J
~

F of their liberties, is emphasized by events am1 ar to a 11 . ese
and. other transg;·essions of those limits the states appropriately
may punish".

In Arthur Terminiello v. City of Chicago(3), Justice Douglas
delivering the majority opinion of the Court, while dealing with the
G 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.
H (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 A
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
B
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. c
New Hampshire), ( 1) 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
'inconvenience, annoyance, or unrest. See Bridges v. California(2);
Craig v. Horney(3). There is no room under our Constitution D
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 E
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 F
,almost inseparable intertwining, and of the character of Indian politics
itself(4)". 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 G
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.
H
•(4) The Indian Constitution : Cornerstone of a Nation by Granville Austin,
p. 52.
254 SUPREME COURT REPORTS [1981] 1 S.C.R.

A 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
B 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
c 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
D the full enjoyment of religious and communal right~ to-
all 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
E 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
F 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
G 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.
H 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 A
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<l IV together '
constitute the core of commitment to social revolution -and they, B
together, are the conscience of the Constitution is to be traced to a
<leep undertsanding of the scheme of the Indian Constitution.
•Granville Austin's observation brings out the true position that Parts
III and IV are like two wheels of a chariot, one no less important
than the other. You snap one and the other will lose its efficacy.
They are like a twin formula for achieving ;the social revolution, which
c
is the ideal which the visionary founders of th~ Constitution set before
themselves. In other words, the Indian Constitution is 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 D
rights and directive principles is an essential feature of the basic
structure of the Constitution.
This is not mere semantics. The edifice of our Constitution is
built upon the concepts crystallised in the Preamble. We resolved to
constitute ourselves into a Socialist State which carried with it the
obligation to secure to our people justice·-social, economic· and E
political. We, therefore, put part IV into our Constitution containing
<lirective principles of State policy which specify the socialistic goal to
be achieved. We promised to our people a democratic polity which
(:arries with it the obligation of securing to the people liberty of
thought, expression, belief, faith and worship; equality of status and
-0f opportunity and. the assurance that the dignity of the individual
'will at all costs be preserved.. We, therefore,. ,put Part III in our
Constitution conferring those rights on the people. Those rights are
not an en.ct in themselves but are the means to an end. The end is
sp~cified in Part IV. Therefore, the rights .conferred by Part III are
subject to reasonable restrict.ions and the Constitution provides that G
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 H
founding fathers was the purity of means. Indeed, under our law,
-even a dacoit who has committed a murder cannot be put to death
256 SuPREME COURT REPORTS [1981] 1 S.C.R.

A in the exercise of right of self-defence after he has made good his
'escape. So great is the insistence of civilised laws on the purity oil
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
+
iu this sense that Parts III and IV together constitute the core of our
Constitution and combine to form its conscience. Anything that
B destroys the balance between the two parts will ipso facto de&troy
an essential element of the basic structure of our Constitution.
It is in this light that the validity of the amended Article 3 lC
has to be examined. Article 13(2) says that the State shall not make
. any law which takes away or ab[idges the ri'ghts conferred by Part III
c and any law made in contravention of that clause shall to the extent
of the contravention be void. Article 31C begins with a non-obstante·
clause by putting Article 13 out of harm's way. It provides for a
certain consequence notwithstanding anything contained in Article 13'.
It then denudes Articles 14 and 19 of their functional utility by
providing that the rights conferred by these Articles will be no barrier
D against passing laws for giving effect to the principles la!d down in
Part IV. On any reasonable interpretation, there can be no doubt
that by the amendment introduced by section 4 of the 42nd
Amendment, Articles 14 and 19 sfand abrogated at least in regard to
the category of laws described in Article 31C. The startling consequence
which the amendment has produced is that even if a law is in total
E
defiance of the mandate of Article 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. We are disposed to accept
the submission .of the learned Solicitor General, considering the two
charts of cases submitted by him, that it is possible to conceive of
laws which will not, attract Article 31C since they may not bear direct
_j
F
and reaso111able nexus with the provisions of Part IV. But, that, in
our opinion, is beside the point. A large majority of laws, the bulk
of them, can at any rate be easily justified as having been passed for
the purpose of giving effect to the policy of the State towards securing
some principle or the other laid down in Part IV. In respect of all
G 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 determining
whether the basic structure of the Constitution is altered, that at least
some laws will fall outside the scope of Article 3 lC.

H We have to decide the matter before us not by metaphysical
subtlety, nor as a matter of semantics, but by a broad and" liberal
approach. We must not miss the wood for the trees. A· total
MINERVA MILLS LTD. v. UNION (Chandrachud, c. J.) 25 7

deprivation of fundamental rights, even in a limited area, can amount A
to abrogation of a fundamental right just as partial deprivation in
every area can. An author, who writes exclusively on foreign matters,
shall have been totally deprived of the right of free speech and
expression if he is prohibited from writing on foreign matters. The
fact therefore that some laws may fall outside the scope of Article
3 lC is no answer to the contention that the withdrawal of protection B
of Articles 14 and 19 from a large number of laws desllroys the basic
structure of the Constitution.
It was repeatedly impressed upon us, especially by the Attorney
General, that Article 38 of the Constitution is the king-pin of the
directive principles and no law passed in order to give effect to the c
): principle contained therein can ever damage or destroy the basic
structure of the Constitution. That Article provides that the State
shall strive ~o promote the welfare of the people by securing and
protecting as effectively as it may a social order in which justice,
social, economic and political, shall inform all the institutions of the
national life. We are unable to agree that all the Directive Principles D
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 coru!ained in Article
38 can damage or destroy the basic structure of the Constitution, what • E

[_
was the 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 Part IV shall be deemed to be void on the ground that it is
inconsistent with or takes away or abridges the rights conferred by
F '
Articles 14 and 19 ? The object and purpose of the amendment of
Article 31 C is really to save laws which cannot be saved under Article
19(2) to (6). Laws which fall under those provisions are in the nature
of reasonable restrictions on the fundamental rights in public interest
and therefore they abridge but do not abrogate the fundamental rights.
It was in order to deal with Jaws which do not get the protection of
G
Article 19(2) to (6) that Article 3 lC was am~nded to say that the
provisions of Article 19, inter alia, cannot be invoked for voiding the
laws of the description mentioned in Article 31 C.
Articles 14 and 19 do not confer any fanciful rights. They confer
rights which are elementary for the proper and effective functioning
of a democracy. They are universally so regarded, as is evident from H
the universal Declaration of Human Rights. Many countries in the
civilised world have parted with their sovereignty in the hope and belief
258 SUPREME COURT REPORTS [1981] 1 S.C.R.

A that their citizens will enjoy human freedoms. And they preferred to
be bound by the decisions and decrees of foreign tribunals on matters
concerning human freedoms. If Articles 14 and 19 are put out ot
•
· operation in regard to the bulk of laws which the legislatures are
empowered to pass, Article 32 will be drained of its life-blood. Article
32(4) provides that the right guaranteed by Article 32 shall not be
suspended except as otherwise provided for by the Constituti,on.
Section 4 of the 42nd Amendm~nt found an easy way to circumvent
Article 32(4) by withdrawing totally the protection of Articles 14 and
1
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 this Court had held that Article 14 forbids
class legislation but it does nor forbid classification. The purpose of
withdrawing the protection of Article 14; therefore, can only be tu
acquire the power to enact class legislatiom. Then again, regional
D chauvinism will have a field day if Article 19(l)(d) is not available to
the citizens. Already, there are disturbing 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
E the 42nd Amendment is therefore such that it virtually tears away
the heart of basic fundamental freedoms.
Article 31C speaks of laws giving effect to the policy of the
"State". Article 12 which governs the interpretation of Article 3 l C
provides that the word "State" in Part III includes the Government
and Parliament of India and the Government and the Legislature of
F
each of the States and all local or other authorities within the territory
of India or under the control of the Government of India. Wide as
the language of Article 31 C is, the definition of the word "State" in
Article 12 gives to Article 31 C an operation of the widest amplitude.
Even if a State Legislature passes a law for the purpose of giving
G effect to the policy by a local authority towards securing a directive
principle, the law will enjoy immunity from the provisions of Articles
14 and 19. The State Legislatures are thus given an almost unfettered
discretion to deprive the people of their civil liberties.
The learned Attorney General argues that the State is .under an
obligation to take steps for promoting the welfare of the people by
bringing about a social order in which social, economic and political
justice shall inform all the institutions of the• national life. He says
that the deprivation of some of the fundamental rights for the purpose
MINERVA MILLS LTD. v. UNION (Chandrachud. c. J.) 25 9

I
o0f achieving this p~l ra;;,:;1: possibly amount to a destruction. of the A
I. ~ ~
basic structure of the Constitution. We are unable to accept this
contention. The principles enunciated in Part IV are not the proclaimed
monopoly of democrai::ies alone. They are common t<> 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 B
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
c
-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 D
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 E
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 . F
-~ gross distortion of the principle of reading 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
amendment. 1

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 H
rights. If the Parliament has manifested a clear intention to exercise
.an unlimited power, it is impermissible to read down the amplitude of
SUPREME COURT REPORTS [1981] 1 S.C.R-

A 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
B 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
c discipline of Articles 14 and 19, it seems to us impossible to hold that
we should still save Article 31C from the challenge of unconstitutiona-
lity by reading into that/ Article words which destroy the rationale
of that Article and an intendment which ·is plainly contrary to its
•proclaimed purpose.
D 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
E
of such encroachment, if any? and (iv) Does that encroachment viola!::.

F
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
disposed of. Reading the existence of an extensive judicial review
into Article 3 lC is really to permit the distortion of the very purpose
_J
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·
G 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·
H 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 B
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 31 C, satisfy themselves as to the, identity of the law in the sense
whether it bears direct and reasonn.ble nexus with a directive principle.
If the court i~ satisfied as to the existence of such nexus, the inevitable
c
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 D
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
262 . SUPREME COURT REPORTS [1981] 1 S.C.R.

.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 3 lA, 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 3 IA in order to lend plausibility to the contootion
that since Article 3 lA 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 3 lA 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 3 lA 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 subject-
oriented laws was considered to be valid. The simple ground on
which Article 3 lA 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 we
uphold the challenge to the validity of Artic:le 3lC, the validity of
clauses (2) to (6) of Article 19 will be gravely imperilled because those
clauses will also then be liable to be struck down as abrogating the
rights conferred by Article 19(1) which are an essential feature of
the Constitution. We are unable to accept this contention. Under
clauses (2) to (6) of Article 19, restrictions can be imposed only if
they are reasonable and then again, they can be imposed in the interest
of a stated class of subjects only. It is for the courts to decide whether c·
restrictions are reasonable and whether they are in the interest of the
particular subject. Apart from other basic dissimilarities, Article 31 C
takes away the power of judicial review to an extent which destroys
even the semblance of a comparison between its provisions and those
of clauses (2) to {6) of Article 19. Human ingenuity, limitless though
it may be, has yet not devised a system by which the liberty of the
people can be protected except through the intervention of courts of
law.
Three Articles of our Constitution, and only three, stand between
the heaven of freedom into which Tagore wanted his country to awake
and the abyss of unrestrained power. They are Articles 14, 19 and 21.
Article 31C has removed two sides of that golden triangle which
affords to the people of this country. an assurance that the promise
held forth by the Preamble will be performed by ushering an
egalitarian era through the discipline of fundamental rights, that is,
without emasculation of the rights to Jiberty and' equality which alone
can help preserve the dignity of the individual.
These then are our reasons for the order ·which we passed on
May 9, 1980 to the following effect:
"Section 4 of the Constitution 42nd Amendment Act is beyond
the amending power of the Parliament and is void since it
damages the basic or essential features. of the Constitution and
destroys its basic structure by a total exclusion of challenge to
any law on the ground that it is inconsistent with, or takes awav
or abridges any of the rights conferred by Article 14 or Articl~
19 of the Constitution, if the law is for giving effect to the policy
of the State towards securing all or any of the principles laid
down in Part IV of the Constitution."
"Section 55 of the Constitution 42nd Amendment Act is
beyond the amending power of the Parliament and is void sine~
it removes all limitations on the pow:er of the Parliament to
264 SUPREME COURT REPORTS [1981] 1 S.C.R.

amend the Constitution and confers power upon .it to amend
the Constitution so as to damage or destroy its basic or essential
features or its basic structure."
There will be no order as to costs.
BHAGWATI, J. (His Lordship's Judgment is a common judgment for
Waman Rao's case and Minerva Mill's case. The petitioners in Writ
Petitions Nos. 656 to 660 of 1977-Wamanrao & Others etc, v. The
Union of India & Ors. (hereinafter referred to as Wamanrao's case) and
other allied petitions have challenged the constitutional validity of the
Maharashtra Agricultural Lands (Ceiling on Holdings) Act 1961 (herein-
after referred to as the principal Act) as amended by the Maharashtra
Agricultural Lands (Lowering of Ceiling on Holdings) and (Amendment)·
Act 1972 {hereinafter referred to as Act 21 of 1975) and the
Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings)
and (Amendment) Act 1975 (hereinafter referred to as Act 47of 1975)
and the Maharashtra Agricultural Lands (Ceiling on Holdings)
Amendment Act 1975 (hereinafter referred to as Act 2 of 1976) on
D the ground that the amended provisions of the Act are violative of
Articles 14, 19(1)(f), 31 and 31A of the Constitution. We shall hereafter
for the sake of convenience refer to the principal Act as duly amended
by the subsequent Acts 21 0£ 1975, 47 of 1975 and 2 of 1976 as "the
impugned legislation". It is not necessary for the purpose of this
opinion to set out the relevant provisions of the impugned legislation
but it is sufficient to state that it imp0sed a maximum ceiling on the
holding of agricultural land in the State of Maharashtra and provided
for acquisition of land held in excess of the ceiling and for the
distribution of such excess land to landless and other persons with a
view to securing the distribution of agricultural land in a manner
which would best subserve the common good of the people. The
F impugned legislation recognised two units for the purpose of ceiling
on holding of agricultlural land. One was 'pe'fson' which by its
definition in section 2, sub-section (2) included a family and 'family'
by virtue of section 2, sub-section (11) included a Hindu Undivided
Farriily and in the case of other persons, a group or unit the members
of which by custom or iisage, are joint in-estate or possession or
G residence and the other was 'family unit' which according to its
definition in section 2( llA) read with section 4, meant a person and
his spouse and their minor sons and minor unmarried daughters. The
impugned legislation created an artificial concept of a 'family unit'
for the purpose of applicability of the ceiling and provided that all
lands held by each member of the family unit whether jointly or
11 separately shall be aggregated together and by a fiction of law deemed
to be held by ilie family unit. There were also certain provisions
in the impugned legislation which prohibited transfers and acquisitions
MlNERVA MILLS LTD. v. UNION (Bhagwati, J.) 265

·of agricultural land with a view to effectuating the social policy and A
·economic mission of the law. The impugned legislation also contained
-provisions prescribing the machinery for implementation of its
.substantive provisions. Now plainly and unquestionably this was ·a
·piece of legislation relating to agrarian reform and was immunised
against challenge under Articles 14, 19 and 31 by the protective cloak
of Article 31A but even so; by way of abundant caution, it was given B
additional protection of Article 31B by including the Principal Act
and the subsequent amending Acts in the 9th Schedule : vide. th;
,__ Constitution (Seventeenth Amendment) Act 1964 and the Constitution
(Fortieth Amendment) Act, 1976. The drastic effect of the impugned
llegislation was to deprive many land holders of large -areas of
agricultural lands held by them. Some of them, therefore, preferred
c
writ petitions in the High Court of Bombay at Nagpur challenging
the constitutional validity of ;the impugned legislation and on the
challenge being negatived by the High Court, they preferred appeals
in this Court. The only contention advanced on behalf of the land
"holders in support of the appeals was that the impugned legislation in D
so far as it introduced an artificial concept of a 'family unit' and fixed
ceiling on holding of land by such family unit was violative of the
second proviso to cl. (I) of Article 31A and was not saved from
-invalidation by the protective armour of Article 3 lB. This contention
-was negatived by the Constitution Bench and it was held that the
impugned legislation did not, by creating an artificial concept of a E
family unit and fixing ceiling on holding of land by such family
unit, conflict with the second proviso to clause (1) of Article 31A
and even if it did contravene that proviso, it was protected by Article

l 3 lB since the principal Act as well as the subsequent amending Acts
were included ~n the 9th Schedules vide Dattatraya Govind Mahajan
·v. State of Maharashtra( 1). Now at the time when this batch of cases
was argued before the Court, the emergency was in operatio~ and
F

hence it was not: possible for the land-holders to raise many of the
.contentions which tliey could otherwise have raised and, therefore, as
soon as the emergency was revoked, the landholders filed review
petitions in this Court against the decision in Dattatraya Govind
1Mahajan's case and also preferred direct writ petitions in this Court G
challenging once again the constitutional validity of the impugned
legislation. Now, concededly, Article 31A provided complete immunity
to the impugned legislation against violation of Articles 14, 19 and 31
:and Article 3 lB read with the 9th Schedule protected the impugned
legislation not only against violation of Articles ·14, 19 and 31 but
H

(1) [1977], 2 SCR 790.
266 SUPREME COURT REPORTS [1981] 1 S.C.R.

A also against infraction oftlie second proviso to Clause (l) of Article
31A. Moreover, the impugned legislation being mallifestly one for
giving effect to the Directive Principles contained in Article 39 clauses
(b) and (c), it was also protected against invalidation by Article 31 C.
The petitioners could not therefore successfully assail the constitutional
validity of the impugned legislation unless they first pierced the
B protective armour of Articles 31A, 31B and 31C. The petitioners
sought to get Articles 31A, 31B and 31.C out of the way by contending
that they offended against the basic structure of the Constitution and
were, therefore, outside the constituent power of Parliament under
Article 368 and hence unconstitutional and void. The argument of
the petitioners was that these constitutional amendments in the shape
c of Articles 31A, 31B and 31C being invalid, the impugned legislation
was required to meet the challenge of Articles 14, 19(l)(f), 31 and
3 lA and tested on the touchstone of these constitutional guarantees.
the impugned legislation was null and void. The first and principal
question which, therefore, arose for consideration in these cases was
whether Articles 31A, 31B and 31C are ultra vires and void as
D damaging or destroying the· basic ~tructure of the Constitution. We
lmay point out here that we were concerned in these cases with the
constitutional validity of Article 31C as it stood prior to ·its amendment
by the Constitution (Forty-Second Amendment) Act, 1976. because it
was ;the unamended Article 31C which was in force at the dates when
the amending Acts were passed by ~he legislature amending the
E principal Act. These cases were heard at great length with arguments
ranging over a large areas and lasting for over five weeks and we
reserved judgment on 8th March 1979. Unfortunately. we could not
be ready wirth our judgment and hence on 9th May 1980 being the
last working day of the Court1 before the summer vacation we made
an order expressing our conclusion but statring that we would give our
F
reasons later. By this order we held that Article 3 lA does not damage
any of the basic or essential features of the Constitution or its bask
structure and is therefore valid and constitutional and so is Article·
31 C as it stood prior to its amendment by the Constitution (Forty-
Second Amendment) Act. 1976 valid to the extent its constitutionality
G was upheld in Kesavananda Bharati's(1) case. So far as Article 31B'
is concerned, we said that Afticle 3 IB ·as originally introduced was
valid and so also are all subsequent amendments including various
Acts and Regulations in the 9th Schedule from time to time upto
24th April, ·1973 when Kesavananda Bharati's case was decided.. We:
did no.t express any final opinion on the constitutional validity of the
H amendments made in the 9th Schedule on or after 24th April 1973
but we made it clear that; these amendments would be open tO>
(I) [1973] Supp. SCR I.
MINERVA MILLS LTD. v. UNION (Bhagwati, 1.) 267

challenge on the ground that they or any one or more of them damage A
the basic or essential features of the Constitution or its basic structure,
and are therefore, outside the constituent power of Parliament. This
was the Order made by us on 9th May, 1980 and for reasons which
I shall mention presently, I propose to set out in this Judgment my
reasqns for subscribing to this Order.
B
So far as Minerva Mills Case is concerned, the challengc- of the
petitioners was directed primarily against an order dated 19th October,
1971 by which the Government of India, in exercise of the power
conferred under Sec. l 8A of the Industries (Development and
Regulation) Act, 1951, authorised the taking over of the management
of the industrial undertaking of the petitioners by the National Textile
c
Corporation under the Sick Textile Undertakings (Nationalisation) Act
1974 (hereinafter referred to as the Natfonalisation Act) by ,which the
entire Industrial undertaking and the right, title and interest of the
peti•ioners in it stood transferred to and vested in the Central
Government on the appointed date. We are not concerned for the D
purpose of the present opinion with the challenge against the validity
of the Order dated 19th October, 1971, for the quest.ion which has
been argued before us arises only out of the· attack against the
constitutionality of the Nationalisation Act. The ·petitioners challenged
the constitutional validity of the Nationa.Ji.sation Act inter alia on the
ground of infraction of Articles 14, 19(l)(f) and (g) and 31 Clause (2).
but since the Nationalisation Act has been included in the 9th Schedule
by the Constitution (Tliirty-ninth Amendment) Act, 1975, the
petitioners also attacked the conSl!itutionality of the Constitution
(Thirty-ninth Amendment) Act, 1975, for it is only if they could
get the Nationalisation Act out from the protective wing of Article
3 lB by pursuading the Court to strike down the Constitution (Thirty- F
ninth Amendment) Act, 1975, that they could proceed with their
challenge against the constitutional validity of the Nationalisation .Act
Now clauses (4) and (5) which were introduced in Article 368 by
section 55 of the Constitution (Forty-second Amendment} Act, 1976
and which were in force at the date of the filing of the writ petitions;
provided that no amendment of the Constitution made ·or purported' G
to have been mad".! whether before or after the commencement of
that section shall be called in question in any Court on any ground
and barred judicial review of the validity of a constitutional
amendment. Obviously, if these two clauses were validly included in
Article 368, they would stand in the way of the petit.ioners challenging
the constitutional validity of the Constitution (Thirty-ninth Amendment) H
Act, 1975. The petitioners were, therefore, compelled to go further
and impugn the constitutional validity of section 55. of the Constitution
18-646 S.C. India/80
268 SUPREME COURT REPORTS [1981] 1 S.C.R.

A (Forty-second Amendment) Act, 1976. This much challenge, as I shall
presently point out, would have been sufficient to1 clear the path for
the petitioners in assailing the constitutional validity of the
Nationalisation Act, but the petitioners, not resting con~ent with what
was strictly necessary, proceeded also to challenge section 4 of the
Constitution (Fo11ty-second Amendment) Act, 1976 which amended
B Article 31C. There were several grounds on which the constitutional
validity of 1the Constitution (Forty-second Amendment) Act, 1976 was
impugned in the writ petitions and I shall refer to them when I deal with
the argnments advanced on behalf of the parties. Suffice it to sta'te
for the present, and this is extremely important to point out, that when
the writ petitions reached hearing before us, Mr. Palkhiwala, learned
.c counsel appearing on behalf of the petitioners requested the Court to
examine only one question, 'namely, whether the amendments made in
Article 31C and Article 368 by section 4 and 55 of the Constitution
(Forty-second Amendment) Act, 1976 were constitutiomtl and valid "'·
and submitted that if these constitutional amendments ·were held
invalid, then the other contentions might be examined by the Court
D
at a later date~ He conceded before us, in the course of the arguments,
that he was accepting the constitutional validity of Articles 3lA, 3lB
and the unamended Article 31C and his only con'tention vis-a-vis
Article 31C was that it was the amendment made in Article 31.C
which had the effect of damaging or destroying the basic structure of
E the Constitution and that amendment was, therefore, beyond the
constituent power of Parliament. The learned Attorney General on
behalf of the Union of India opposed this plea Qf Mr. Palkhiwala
and urged by way of preliminary objection that though the question
of constitutional validity of clauses (4) and (5) oi1 Article 368 introduced
by way of amendment by section 55 of the Constitution (Forty-second
F Amendment) Act, 1976 undoubtedly arose before the Court and it
was.necessary for the Court to pronounce upon it, the other question
in regard to the constitutional validity of the amendment made in
Article 31C did not arise on the writ petitions and the counter-
affidavits and it was wholly academic and superfluous to decide it.
This preliminary objection raised by the learned Attorney General
G was in my opinion well founded and deserved to be sustained. Once
Mr. Palkhiwala conceded that he was not challengiitg the constitutiona-
lity of Article 31A, Article 31B and the unamended Article 31C and
was prepared to accept them as constitutionally valid, it became
wholly unnecessary to rely on the amended Article 31C in support of_
the validity of the Nationalisation Act, because Article 31B would,
H in any event, save it from invalidation on the ground of infraction of
any of the Funda~ental Rights. In fact, if we look at the counter-
affidavit filed by Mr. T. S. Sahani, Deputy Secretary, Government of
MINERVA MILLS LTD. v. UNION (Bhagwati, J.) 269

India in reply to the writ petitions, we find that no reliance has been A
placed on behalf of the Government on the amended Article 31C.
The caS<: of the Union of India is and that is supported by the
legislative declaration contained in section 39 of the Nationalisation
Act, that this Act was enacted for giving effect to the policy of the
State towards securing the principles specified in clause (b) of Article
39 of the Constitution. Neither the Union of India in its counter- B
affidavit nor the learned Attorney General in the course of his arguments
relied on any other Directive Principle except that contained in Article
39 clause (b). Mr. Palkhiwala also did not make any attempt to
relate the Nationalisation Act to any other Directive Principle of State
Policy. Now either the Nationalisation Act was really and truly a
law for giving effect to the Directive Principle set out in Article 39
c
clause (b) as declared in section 39 or it was not such a law and the
legislative· declaration contained in section 39 was a colourable device.
If it was the former, then the unamended Article 31C would be sufficient
to protect the Nationalisation Act from attack on the ground of
violation of Articles 14, 19 and 31 and it would. be unnecessary to D
invoke the amended Article 31C and if it was the latter, then neither
the unamended nor the amended Article 31C would have any
application. Thus, in either event, the amended Article 31<;: would
have no relevance at all in adjudicating upon the constitutional
validity of the Nationalisation Act. It is difficult to see how, in these .
circumstances, the Court could be called upon to examine the E
constitutionality of the amendment made in Article 31C: that question
just did not arise for consideration and it was wholly unnecessary to
decide it. Mr. PaWdiiwala could reach the battle front for challenging
the constitutional validity of the Nationalisation Act as soon as he
cleared the road blocks created .by the unamended Article 31C and
the Constitution (Thirty-ninth Amendment) Act, 1975 bringing the F
Nationalisation Act within the protective wing of Article 31B and
it was not necessary for him to put the amendment in Article 31C
out of the way as it did not block his challenge against the validity
of the Nationalisation Act. I am, therefore, of the view that the
entire argument of Mr. Palkhiwala raising .the question of constitutiona-
lity of the amendment in Article 31C was academic and the Court G
could have very well declined to be drawn into it, but since the. Court
did, at the invitation of Mr. Palkhiwala, embark upon .this academic
exercise and spent considerable time over it, and the issues raised are
also of the gravest significance to the future of the nation, I ,think, I
will be failing in my duty if I do not proceed to examine this question
on merits. H
I may point out at this stage ithat the arguments on this question
were spread over a period of about three weeks and considerable
z 70 SUPREME COURT REPORTS [1981] l S.C.R.

A learning and scholarship were brought to bear on this question on '-
both sides. The hearing of the arguments commenced on 22nd ·october
1979 and it ended on 16th November 1979. I hoped that after the
completion of the arguments on questions of such momentous
significance, there would be a 'free and frank exchange of thoughts'
in a judicial conference either before or after the draft judgment was
B circulated by my Lord the Chief Justice and I would either be able
to share the views of my colleagues or if that was not possible, atleast
try to persuade them to agree with my point of view. But, I find my-
self in the same predicament in which the learned Chief Justice found

c
himself in Keshavanauda Bharti v. State of Kmda(1). The learned
Chief Justice started his judgment in that case by observing "I wanted .
to avoid writing a separate judgment of my own but such a choice
seems no longer open. We sat in full strength of 13 to hear the case
.J,.
·111.

and I hoped that after a free and frank exchange of thoughts, I would.
be able to share the view~ of someone or the other of my esteemed
brothers, but we were over-taken by adventitious circumstances,"
D namely, so much time was taken up by counsel to explain their
respective points of view that very little time was left to the Judges
"after the conclusion of the arguments, for exchange of draft.
judgments". Here also, I am compelled by similar circumstances.
though not adventitious, to hand down a separate opinion without
having. had an opportunity to discuss with my colleagues the reasons.
E which weighed with them in striking down the impugned constitutional
amendments. Some how or other, perhaps owing to extraordinary
pressure of work with which this Court is over-burdened, no judicial
conference or discussio.n was held nor was any draft judgment
circulated which could form the basis of discussion, though.
as pointed out above, the hearing of the arguments concluded
F as far back as 16th November, 1979. It was only on 8th May~
1980, just two days before the closing of the Court for the summer
vacation, that I was informed by the learned Chief Justice·
that he and the other three learned Judges, who had heard this case
along with me, had decided. to pass an Order declaring the impugned·
constitutional amendments ultra vires and void on the ground that they
G violated the basic features of the Constitution and that the reasons for
this Order would be given by them later. l found it difficult to
persuade myself to adopt this procedure, because there had been nO'
judicial ~onference or discussion amongst the Judges where there could
be free and frank exchange of views nO'r was any draft ·judgment
circulated and hence I did not have the benefit of knowing the reasons.
H why the learned Chief Justice and the other three learned judges we.re

(I) [1973] Supp. S.C.R. l.
MINERVA MILLS LTD. V. UNION (Bhagwati, n 2 71

:inclined to strike down the constitutional amendments. If there had A
been a judicial confrrence or discussion or the draft judgment setting
+ out the reasons for holding the impugned constitutional amendments
ultra vires and void had been circulated, it would have been possible
·for me, as a result of ftill and frank discussion or after considering the
reasons given in the draft judgment, either to agree with the view
taken by my Lord the Chief Justice and the other three learned judges B
·or if I was not inclined iio to agree, then persuade them to change
their view and agree with mine. That is the essence of judicial
collectivism. It is, to my mind, essential that a judgment of a Court
·should be the result of collective deliberation of the judges composing
~he Court and it would, in my humble opinion, not be in consequence
with collective decision making, if one or more of the judges c
constituting the Bench proceed to say that they will express their
individual opinion, ignoring their colleagues and without discussing the
reasons with them and even without circulating their draft judgment
so that the colleagues have no opportunity of participating in the
collective decision-making process. This would introduce a chaotic
D
situation in the judieial process and it would be an unhealthy precedent
which this Court as the highest Court in the land-as a model judicial
institution whieh 'i.s expected to set the tone for the entire judiciary in
the country-should not encourage. Moreover,' I felt that ,it was not
Tight to pronounce an Order striking down a constitutional amendment
without giving a reasoned judgment. Ordinarily, a case can be E
disposed of only by a reasoned judgment and the Order must follow
upon the judgment. It is true that sometimes where the case involves
.the liberty of the citizen or the execution of a death sentence or where
·the time taken in ·prepariilg a reasoned judgment might pre-judicially
affect the winning party, this Court, does, in the larger interests of
justice, pronounce an order and give reasons later, but these are F
exceptional cases where the requirements of justice induces the Court
to depart from the legally sanctioned course. But, there the court had
-St
in fact waited for about months after the. conclusion of the arguments
and there was clearly no urgency which required that an Order should
be made though reasons were noi ready; the delay of about 2-!- months
in making the Order was not going to injure the interests of any G
party, since the Order was not going to dispose of the writ petition
and many issues would still remain to be decided which could be
,dealt only after the summer vacation. Thus there would have been
,no prejudice to .the interests of justice if the Order had been made on,
t]le re-opening of the Court after the summer vacation supported by
a, reasoned judgment. These were the reasons which ·compelled me H
to make my Order dated 9th May, 1980 declining to pass an unreasoned
·order pronouncing on the validity of the impugned constitutional
272 SUPREME COURT REPORTS· [1981] l S.C.R.

A amendments and stating that I would "prefer to pass a final order in
this case when I deliver my reasoned judgment". This; Order
unfortunately led to considerable misunderstanding ::if my position and
that is the reason why I have thought it necessary to explain briefly
why I acted in the manner I did.

B There is also one other predicament from which I suffer in the
preparation of this opinion. It is obvious that the decision of the
questions arising in Wamanrao's case is closely and integrally connected
with the decision of the questions in Minerva Mill's case and therefore.
logically as also from the point of \;'iew of aesthetics and practical
pragmatics, there should be one opinion dealing . with the questions
c in both the cases. But, unfortunately Minerva Mill's case was heard by
a Bench of five judges different from the Bench which heard W amanrao's
case. W amanrao' s case was heard by a Bench consisting of the learned
Chief Justice, myself, Krishna Iyer, J., Tulzapurkar, J. and A. P. Sen, J. ,
while Krishna Iyer, J., Tulzapurkar, J. and A. P. Sen, J. were not
members of the Bench which heard the Minerva Mill's case. Since
D
two different Benches heard these cases, there would ordinarily have
to be two opinions, one in each case. I. however, propose to write a
single opinion dealing with the questions arising jn both cases, since
that is the only way in which I think I can present an integrated
argument in support of my view,, without becoming unduly and
E unnecessarily repetitive.
The principal question that arises for consideration in these two
cases is whether Article 3lA, Article 3 lB read with the 9th
Schedule as amended from .time to time and particularly by the
Constitution (Seventeenth Amendment) Act, 1964 and the Constitution
(Fortieth Amendment) Ac~. 1976, Arrticle 31C as it stood prior to
_J
F its amendment by the Constitution (Forty-second Amendment) Act,
1976 and the amended Article 31C are constitutionally valid; do they
fall within the scope oll the amending power of Parliameµt under
Article 368. The determination of this question depends on the
answer to the larger ques~ion as to whether there are any limi·ts on
the amending power of; Parliament under Article 368 and if so,
G
what are the limits. This question came up for consideration before
a Bench of 13 Judges of this Court-the largest Bench tli~.t ever
sat-and after a hearing which lasted for 68\ days-the longest
hearing that ever took place-eleven judgments were delivered which
are reported in Keshavananda' Bharti v. State of Kerala (supra).
H The earlier decision of this Court in J.C. GolaknaNi &: Ors. v. State
of Punjab(!) where, by a majority of six against five, the fundamental
(1) [1967] 2 SCR 762.
MINERVA MILLS LTD. v. UNION {Bhagwati, J.) 273

rights were held to be unam~ndable by Parliament under Article 368, A
was over-ruled as a result of the decision in Keshavc,,1anda Blzarri's
ca~e. But, six out of the thirteen learned Judges (Sikri, C. J. Shelat,
Grover, Hegde, Reddy and Mukharjea, JJ.) accepted the contention
9£ the petitioners that though Article 368 conferred power to amend
the Constitution, there were inherent or implied limitations on the
power of amendment and therefore Article 368 did not confer power B
on Parliament to amend the Constitution so as to destroy or
emasculate the essential or basic elements or features of the
Constitution. The fundamental rights, according to the view taken
by these six learned Judges, constituted basic or essential ifeatures
of the Constitution and they could not be, therefore, abrogated or
emasculated in the exercise of the amending power conferred by
c
Article 368, though a reasonable abridgment of those rights could
be effected in the public interest. Khanna, J. fuund it difficult in
the face of the clear words of ·Article 368 to exclude frQi111 their
operation Articles relating to fundamental rights and he held that
"the word 'amendment' in Article 368 must carry the same meaning D
whether the amendment relates to taking away or abridging
fundamental rights in Part II of the Constitution or whether it
, pertains to some other provision outside Part III of the Constitution."
But proceeding to consider the meaning of the word 'amendment',
the learned Judge held that the power to amend does not include
the power to abrogate the Constitution, that the word 'amendment' E
postulates that the exis<ting Constitution must survive without loss of
identity, that it must be retained though in an amended form. and
therefore, the power of amendment does not include the power to
destroy or abrogate the basic structure or framework of fue
Constitution. The remaining six Judges took ·the view that there
were no limitations of any kind on the porwer of amendment, though F
three of them seemed willing to foresee the limitation that the entire
Constitution could not be abrogated, leaving behind a State without
a Constitution. Now some scholars have expressed the view that
from the welter of confusion created by eleven judgments running
over a thousand pages, it is not possible to extract any ratio decidendi
\which could be said to be the law declared by the Supreme Court. G
J.t is no doubt true that the six judges led by Sikri. C.J., have read
a limitation on the amending porwer of Parliament under Article 368
and so has Khanna, J., have employed the formulations "basic
features" and "essential elements" while Khanna. J. has employed
'the formulation "basic s·tructure and framework" to indicate wha:t
in each view is immune from the amendatory process and it is H
argued that "basic features" ·and "essential elements" cannot be
:regarded as synonymo~s with "basic structure and framework".
274 SUPREME COURT REPORTS [1981] 1 S.C.R.

A These scholars have sought to draw support for their view from ihe
following observation of Khanna, J. at page 706 of the Rc:port :
"It is then argued on behalf of the petitioners that essential
features of the Constitution cannot be changed as a result of
amendment. So far as the expression "essential features" m~ans
the basic structure or framework of the Constitution, I have
B
already dealt with the question as to whether the power to
amend the Constitution would include within itself the power
to change the basic structure or framework of the Constitution.
Apart from that, all provisions of 'the Constitution are subject
to amendatory process and cannot claim exemption from that
c process by being described essential features."
Whatever be the justification for this view on merits. I do not think
that this observation can be read as meaning that in the opinion of
Khanna. J. "basic structure or frame work" as contemplated by h!m
was different from "basic features" or "essential elements" spoken
of by the other six learned judges. It was in the context of an
D argument urged on behalf of the petitioners that the "essential
features" of the Constitution cannot be changed that this observation
was made by Khanna, J. clarifying that if the "essential features"
meant the "basic structure or framework" of the Constitution, the
argument of the petitioners would be acceptable, but if the "essential
features" did not form part of the "basic structure or framework"
E and went beyond it, then they would not be immune from the
amendatory process. But it does appear from this observation that
rt.he six Judges led by Sikri C.J. on the one hand and Khanna, .1.
on the other were not completely ad idem as regards the precise
scope of the limitation on the amendatory power of Parliament. This
might have raised a serious argument as to whether there, any ratio
F
decidendi at all can be culled out from the judgments in this case
in so far as the scope and ambit of the amendatory power of
Parliament is concerned. A debatable question would have atise\l
whether "basic and essential features" can be equated with "basic
structure or framework" of the Constitution and if they cannot be,
G then can the narrower of these two formulations be taken to represent
t1he common ratio. But it is not necessary to examine this rather
difficult and ·troublesome question, because T find that in
Smt. Indira Gandhi vs. Raj Narain( 1) a Bench of five Judges of this
Court accepted the majority view in Keshavananda Bharti's case to
be that the amending power conferred under . Article 368, though
H wide in its sweep and reaching every provision of the Constitution,
does not enable Parliament to alter the basic structure or framewmk
(1) [1976] 2 SCR 347.
MINERVA MILLS LTD. v. UNION i(Bhagwati, J.) 275

<-Of the Constitution. Since this is how the judgments in Keshavananda A
Bharti's case have been read and a common ratio extracted by a
'Bench of five Judges of this Court, it is binding upon me and hence
+ I must proceed to decide the questions arising in these cases in the
light of the principle emerging from the majority decision that
Article 368 does not confer power on Parliament to alter the basic
structure or rframework of the Constitution. I may ml!ntion in the B.
passing that the summary of the judgments given by nine out of the
"thirteen Judges after the delivery of the judgments also states the majo·
1

rity view to be that "Article 368 does not enable Parliament to alter the
·basic structure or framework of the Constitution." Of course, in
my view this summary signed by nine Judges has no legal effect at
all and cannot be regarded as law declared by rthe Supreme Court c
under Article 141. It is difficult to appreciate what jurisdiction or
power these nine Judges had to give a summary setting out the
legal effect of the eleven judgments delivered in the case. Once the
judgments were delivered, these nine Judges as also the remaining
four became funotus officio and thereafter they had no authority to
D
culJ out the ratio of ~he judgments or to state what, on a proper
analysis of the judgments, was the view of the majority. What was
the law laid down was to be found in the judgments and that task
would have to be performed by the Court before whom the question
would arise as to what· is the law laid down in Keshavananda Bhurti's
•case. The Court wouid then hear the arguments and dissect the E
judgments as was done in Smt. Indira Gandhi's case (supra) and
1hen decide as to what is the true ratio emerging from the judgments
which is binding upon the Court as law laid down under Art. 141.
lJut here it seems that nine judges set out in the summary what
:according to them was the majority view without hearing any
arguments. This was a rather unusual exercise, though well· F
intentioned. But quite apart from the validity of this exercise
·embarked upon by the nine judges, it is a little difficult
1o understand how a proper and accurate summary could be
·prepared by these judges when there was not enough time, after the
·Conclusion of the arg:uments, for an exchange of draft judgments
amongst the Judges and many of them did not even have the benefit G
of knowing fully the views of others.' I may, therefore, make it
·clear that. I am not relying on the statement of the majority view
contained in :the 1summary given at the end of the' judgments in

• Keshavananda Bharti's case, but I am proceeding on the basis of
1he view taken in Smt. Indira Gandhi's case as regards the ratio of
1he majority decision in Keshavananda Bharti's case.
I may alsn at this stage refer to an argument advanced before
H

,11S on the basis of certain observations in the judgment of Khanna, J.
276 SuPREME COURT REPORTS [1981] 1 S.C.R-

A that he regarded fundamen'al rights as not forming part of the basic
structure of the Constitution and therefore. according to him, they-
could be abrogated or taken away by Parliiament by an amendment
made under Article 368. If this argument were correct, the majority·
holding in Keshavananda Bharti's case would have to be taken to
be that· the fundamental rigJ:its could be abrogated or destroyed in
B exercise of the power of a.meJJdment. because Ray, J., Palekar, J.,.
Mathew, J., Beg, J .. Dwivedi, J. and Chandrachud, J. took the view
that the power of amendment being unlimited, it was compe.!ent to•
Parliament in exercise of this power to abrogate or emasculate the·
Fundamental Rights and adding the view of Khanna, J., there would'
be 7 Judges as against 6 in holding that th~ Fundamental Rights
c could be abrogated or taken away by Parliament by a constitutional'
amendment. But we do not think that thlis submission urged on
behalf of the respondents is well founded. .It is undoubtedly true-
that there are certain obse!rvations in the judgment of Khanna, J.
at the bottom of page 688 of the Report which seem into suggest th1".t
D according to the learned Judge, the fundamental rights could be
abridged or taken away by an amendment under Article 3'68. For
example, he says : "No serious objection is taken to repeal, addition
or alteration of provisions of the Constitution other ·than those in
Part III under the power of amendment conferred by Artide 368.
the same approach i!n iny opinion should hold good when we deal'
E with arµendment relating to Fun.damental Rights contained in. Part III
of the ·constitution. It woulci be impermissible to differentiate-
between the scope and Width of the power of amendment when it
deals with Fundamental Rights and the scope and wi~th of that
power when it deals with provisions not concerned with Fundamental
Rights." Then again at page 707 of the Report, the learned Judge-
F rejects the argument that the core and essence 0£ a Fundamental
Right is immune from the amendatory process. These observations
might at first blush appear to support the view that, according to
Khanna, J., the amendatory power under Article 368 was sufficiently·
wide to comprehend not only addition or alternation, but also repeal
of a Fundamental Right resulting in its total abrogation. But if we
G look a!l the judgment of Khanna, J. as a whole, we do not think:
this view can be sustained. It is clear that these observations
were niade by the learned Judge. with a view to explaining the scope·
and width of the power of amendment under Article 368. The·
learned Judge held th;tt the amendatory power of Parliament was
wide enough to reach every provision of the Constitution including·
H the Fundamental Rights in Part Ill of the Constitution. but whil~
so holding, he proceeded to ma~e ilt clear that despite all tliis width._
the amendatory power was &ubject to an overriding limitation •.
MINERVA MILLS LTD. v. UNION (Bfr.agwati, J.)' 277

namely, that it could not be exercised so as to alter the basic s1ructure
or framework of the Constitution. The loomed Judge stated in so
many words at page 688 of the Report that though "the power of
amendmeint is pknary and would include within itself, the power
to add, alter or repeal the various articles including those refating
to fundamental rights", it is "subject to the retention od' the basic
structure or framework of the Constitution." The same reservation B
was repeated by the learned Judge in cl. (vii) oil the summary of his
conclusions given at the end of his judgment. It wm, therefore, be
seen that according to Khanna, J. the power of amendment can be
exercised by Parliament so as even to abrogate or take away a
fundamental right, so long as it does not alter the basic structure c
or framework of the Constitution. But if the effect of abrogating or
taking away such fundamental right is to alter or affect the basic
structure or framework of the Constitution, the amendment wpuld
be void as being outside the amending power of Parliament. It is
precisely for this reason that the learned Judge proceeded to consider
whether the right to property could be said to appertain to the basic D
structure or framework of the Constitution. If the view of Khanna, J.
where that no fundamental right forms paft of the basic structure
ol.\ framewortc of the CO!llstitution aill.d it can theJ.1efore be abrogated or
taken away in exercise of the amendatory power under Article 368,
it was totally unnecessary for the learned Judge to consider whether
the right to property could be said to appertain to the basic structure
E
or framework of the Constitution. The very fact that Khanna, J.
proceeded to consider this question shows beyond doubt that he did
not hold that fundamental rights were not a part of the basic
structure. The only limited conclusion reached by him was that the
right to property did not furm part of the basic structure, but so F
far as the oth_er fundamental rights were concerned, he left the question
open. Therefore, it was that he took pains to clarify in his judgment
in Smt. Indira Gandhi's case (supra) that what he laid down in
Keshavananda Bharati' s case was "that no Article of the Constitution
is immune from the amendatory process because of the fact that it
relates to fundamental right an,d is contained in Part III of the G
Constitution", and that he did not hold in rthat case that "fundamental
rights are not a part of the basic ·structure of the Constitution". Now
if this be so, it is difficult to understand how he could .hold the
Constitution (Twenty-ninth Amendment) Act, 1972 unconditionally
valid. Consistently with his view, he should have held that the
Constitution (Twenty-ninth Amendment) Act 1972 -would be valid H
only if the protection afforded by it to the Kerala Acts induded
in the 9th Schedule was not violative of the basic structure or
278 S~PREME COURT REPORTS [1981) 1 S.C.R.

A frame,work of the Constitutfon. But menely because the learned
Judge wrongly held the Constitution (Twenty.ninth Amendment) Act.
1972 to be unconditionally valid and did not uphold its validity
subject to the scrutiny of the Kerala Acts added in the 9th Schedule,
it cannot follow that, he regarded the fundamental rights as not
forming part of the basic structure of the Constitution. If the Jaw
B
was correctly laid down by him, it did not become incorrect by
being wrongly applied. It i's not customary to quote from the
writing of a living author, but departing from that practice which, I
believe, is no longer strictly adhered to or followed, I may point out
that what I have said above finds supporit from the comment made
c by Mr. Seervai in the 3rd Volume of Ms hook on Constitutional
Law, where the leamed author says: "The conflict between Khanna,
J.'s views on the amending power and on the unconditional validity
of the Twenty Ninth Amendment is resolved by saying that he laid
down the scope of the amending power correctly, but misapplied
that law in holding Article 3 IB and Schedule 9 unconditionally valid."
D I entirely agree with this perceptive remark of the learned author.

The true ratio emerging from the majority decision in
Keshavananda Bharal'i's case being that the Parliament cannot in
the exercise of its amenda:tory power under Article 368 alter the basic
E structure or framework of the Constitution, I must proceed to consider
whether Article 31A, Article 31B read with 9th Schedule, Article 3IC
as it stood prior to its amendment and the amended Article 31 C
are violative of the basic structure or framework of the Constitution,
for if they are, they would be unconstitutional and void. Now what
are the features or elements which constitute the basic structure of
F framework of the Constitution or which, if damaged or destroyed, would
rob the Constitution of its identity so that it would cease to be the
existing Constitution but would become a different Constitution. The
majority decision in Keshavananda Bharati's case no doubt evolved
the doctrine of basic structure or framework but it did not lay down
that any particular named features of the Constitution formed part
G of its basic structure or framework. Sikri, C.J. mentioned supremacy
of the Constitution, republican and democratic form of government,
secular character of the Constitution, separation of powers among
the legislature, executive a.nd judiciary, federalism and dignity and
freedom of the individual as essential features of the Constitution.
Shelat and Grover, JJ. added to the list two other features ; justice-
H social, economic and political apd unity and integrity of the nation.
Hegde and Mukherjea, JJ. added sovereignty of India as a basic
feature <>f the Constitution. Reddy, J. thought that sovereign
MINERVA MILLS LTD. v. UNION (Bhagwatf, J.) 279

democratic republic, parliamentary form of democracy and the three A
organs of the State formed the basic structure of the Constitution,
Khanna, J. held that basic structure indicated the broad contours
and outlines of the Constitution and since the right to property was
a matter of detail. it was not .a part of that structure. But he
appeared to be of the view that the democratic form of government.
the secular character of the State and judicial review formed part of B
the basic structure. It is obvious that these were merely illustrations
of what each of the six learned Judges led by Sikri, C.J. thought to
be the essential features of the Constitution and they were not
intended to be exhaustive. Shelat and Grover, JJ. Hegde and Mi.Ikherjea
JJ .. and Reddy. J. in fact said in their judgments that their list of c
essential features which form the basi!c structure of the Constitution
was illustrative or incomplete. This enumeration of the essential
features by the six learned Judges had obviously no bindihg authority;
first, because the Judges were not required to decide as to what
features or elements constituted the basic structure or framework
of the Constitution and what each of them said in tfus connection
was in the nature of obiter and could hiave only persuasive value;
secondly, because the enumeration was merely by way of illustration
and thirdly, because the opinion of six Judges that certain specified
features formed part of ·the basic structure . of the Constitution did
not represent the majority opinion and hence could not be regarded
as law declared by this Court under Article 141. Therefore, in every
case where the question arises as to whether a particular feature of
the Constitution is a part ·of its basic structure, it would have to
be determined on a consideration. of various factors such as the place
of the particular feature in the scheme of the Constiltution. its object
and purpose and the consequence of its denial on the integrity of
the Constitution as a fundamental instrument .of country's governance. F
Vide the observations of Chandrachud, J. (as he then was) in
Smt. Indira Gandhi's case at page 658 of the Report.
This exercise of determining whether certain partieufar features
formed part of the basic structure of the Constitution had to be
undertaken by this Court in Smt. Indira Gandhi's case (supra) which G
came up for· consideration within a short period of four years after
the delivery of the Judgments in Keshavauanda Hharti's case. The
constitutional amendment which was challenged in that case was the
Constituti,on (Thirty-ninth Amendment) Act, 1975, which introduced
Article 329A and the argument was that clause (4) of this newly
added article was constitutionally invalid on the ground that it violated. H
the basic structure or framework of the Constitution. Tfiis- challenge·
was unanimously upheld by a Constitution Bench whiCh cbnsisted· of
280 SUPREME COURT REPORTS [1981] 1 S.C.R.

.A the Chief Justice and four senior most Judges of this Court. It is not
necessary for our purpose to analyse the judgments given by the five
Judges in this case as they deal with various matters which are not
relevant to the questions which arise before us. But it may be pointed
out that two of the learned Judges, namely, Khanna and Mathew, JJ.
held that democracy was an .essential feature forming part of the basic
B structure and struck down clause (4) of Article 329A on the ground
that it damaged the democratic structure of the Constitution.
Chandrachud, J. (as he then was) emphatically asserted that, in his
opinion, there were four unamendable features which formed part of
the basic structure, namely, "(i) India is a sovereign democratic
republic; (ii) Equality of status and opportunity shall be secured to
c aR its citizens; (iii) The State shall have no religion of its own and
all persons shall be equally entitled to freedom of conscience and
the right freely to process, practise.and propagate religion and (iv) The
nation shall be governed by a government of laws, not of men." These,
according to him, were "the pillars of our constitutional philosophy.
the pillars, therefore, of the basic structure of the Constitution." He
D
then proceeded to hold that clause (4) of Article 329A was "an outright
negation of the right of equality conferred by Article 14, a right which
more than any other is a basic postulate of our Constitution" and
on that account declared it to be unconstitutional and void, Mathew, J.
however, expressed his dissent from the view taken by Chandrachud, J.
E as regards the right of equality conferred by Article 14 being an
essential feature of the Constitution and stated inter alia the following
reason:
"The majority in Bharati's case did not hold that Article 14
pertains to the basic structure of the Constitution. The Majority
upheld the validity of the first part of Article 31 C; this would
F show that a constitutional amendment which takes away or
abridges the right to challenge the validity of an ordinary law
for violating the fundamental right under that Article would not
destroy or damage the basic structure. The o.nly logical ba,sis
for suppoqing the validity of Article 3lA, 3 lB and the first part
of 31 C is that Art. 14 is not a basic structure."
·G
I shall have occasion to discuss later the concept of equality under
the Constitution and whether it forms part of the basic structure.
But, one position of a basic and fundamental nature I may make
clear at this stage, and there I agree with Mathew, J., that whether a
particular feature forms part of the basic structure has necessarily to
U be determined on the basis of the specific provisions of the Constitution.
To quote the words of Mathew, J. in Smt. Indira Gandhi's case (supra)
"To be a basic structure it must be a terrestrial concept having its
MINERVA MILLS LTD. v. UNION (Bhagwati, J.) 2 81

'habitat within the four corners of 'the Constitution." What Constitutes A
basic structure is not like "a twinkling star up above the Constitution."
"'It does not consist of any abstract ideals to be found outside the '
provisions of the Constitution. .The Preamble no doubt enumerates
:great concepts' embodying the ideological aspirations of the people
but these concepts are particularised and their essential features
·delineated in the various provisions of the Constitution. It is these B
specific provisions in the body of the Constitution which determine
the type or democracy which the founders of that instrument
·established; the quality and nature of justice, political, social and
·economic which they aimed to realise, the content of liberty of thought
:and expression which they entrenched in that document and the scope
·of equality of status and of opportunity which they enshrined in it. c
These specific provisions enacted in the Constitution alone can
·determine the basic structure of the Constitution. These specific
provisions, either separately or iii combination. determine the content
-0f the great concepts set out in the Preamble. It is impossible t~
:spin out any concrete concept of basic structure out of the gossamer
D
-concepts set out in the Preamble. The specific provisions of the
Constitution are the stuff from which the basic structure has to be
·woven.(!)"
Now, in Wamanrao's case 'the broad argument of Mr. Phadke
-On behalf of the petitioners founded on the doctrine of basic structure
was, and this argument was supported by a large number of other E
·~ounsel appearing in the allied petitions, that the· fundamental rights
enshrined ii'i Articles 14 and 19 form part of the basic structure of
the Gonstitution and therefore Article 3 lA, Article 3lB read with 9th
Schedule and the unamended Article 31C in so far as they exclude
the applicability of Articles 14 and 19 to certain kinds of legislation
emasculate those fundamental rights and thereby damage the basic F
·structure of the Constitution and they must accordingly be held to be
·outside the amending powtir of Parliament and hence unconstitutional
and void.• I have not made any reference here to Article 31 and
treated the argument of Mr. Phadke as confined only to Articles 14
and 19, because, though Article 31 was very much in ·the Constitution
·when the arguments in Wan:zanrao's case were heard, it has G
subsequently been deleted by the Constitution (Forty-Fourth
Amendment) Act, 1978 and reference to it has also been omitted in
Articles 31A, 31B and 31C and we are therefore concerned with the
constitutional validity of these Articles only in so far as they grant
·immunity against challenge on the ground of infraction of Articles
H
·14 and 19. Mr. Phadke on behalf of the petitioners also challenged
(I) Mathew, J. in Smt. Indira Gandhi v. Raj Narain, [1976] 2 SCR 526.
2l"2 SUPREME COURT REPORTS [1981] 1 S.C.R'.

A the constitutional validity of the Consti·tution (Fortieth Amendment)'
Act, 1976 which included the amending Acts 21 of 1975, 41 of 1975
and 2 of 1976 in the 9th Schedule. on the ground that the Lok Sabha'
was not in existence at the date when it was enacted. But obviously,
in view of clauses (4) and (5) introduced in Article 368 by section 55
of the Constitution (Forty-second Amendment) Act, 1976, it was not
B possible for Mr. Phadke on behalf of the petitioners to assail the
constitutional validity of Article 31 A, Article 3 IB read with the 9th
Schedule as amended by the Constitution (Fortieth Amendment) Act ..
1976 and the unamended Article 3 lC. since these two clauses of
Article 368 barred challenge to the validity of a constitutional
amendment on any ground whatsoever and declared that there shalf
c · be no limitation whatever on the constituent power of Parliament to
amend by way of addition. variation or repeal, any provision of the·
Const'itution. He therefore, as a preliminary step in his argument
challenged the constitutional validity of clauses (4) and (5) of Article
368 on the ground that these clauses damaged the basic structure of
the Constitution and were outside the amending power of Parliament ..
D
The argument of Mr. Palkhiwala on behalf of the petitioners in the
Minerva Mills' case was a little different. He too attacked the vires
of clauses (4) and (5) of Article 368 since they barred at the threshold
any challenge against the constitutional validity of the amendment
made in Article 31C, but so far as Article 3 IA, Article 31B and the·
unamended Article 31C were concerned, he did not dispute their
E
validity and, as pointed out by me earlier, he conceded and in fact
gave cogent reasons showing that they were constitutionally valid. His
only attack was against the validity .of the amendment made in Article
31C by section 4 of the Constitution (Forty-second Amendment) Act,.
1976 and he contended that this amendment', by making the Directive
F Principles supreme over the fundamental rights, damaged or destroyed·
the basic structure of the Consfitution. He urged that the basic
structure of the Constitution rests on the foundatioP. that while the
Directive Principles are the mandatory ends of government, those ends
have to be achieved only through the permissible means set out in
the Chapter on fundamental rights and this balance and harmony
G between the fundamental rights and the Directive Principles was
destroyed by the amendment in Article 31 C by making the fundamental
rights subservient to the Directive Principles and in consequence, the-
basic structure of the Constitution was emasculated. A passionate
plea was made by Mr. Palkhiwala with deep emotion and feeling
that if Article 31C as amended was allowed to stand, it would be an
H open licence to the legislature and the executive, both at the Centre
and in the States, to destroy democracy and establish an authoritarian
or totalitarian regime, since almost every legislation could be related_
MINERVA MILLS LTD. v. UNION (Bhagwati, J.) 283

directly or indirectly, to some Directive Principle and would thus be A
able to earn immunity from the challenge of Articles 14 and 19 and
the fundamental rights enshrined in these two Articles would be
rendered meaningless and futile and would become mere rope of sand.,
Mr. Palkhiwala vehemently urged that Justice, liberty and equality
were the three pillars of the Constitution and they were embodied in
Articles 14 and 19 and therefore if the supremacy of the fundamental B
rights enshrined in these Articles was destroyed and they were made
subservient to the Directive Principles, it would result in the
personality of the Constitution being changed beyond recognition and
such a change in the personality would be outside the amending power
of Parliament. Mr. Palkhiwala likened the situation to a permanent
state of emergency and pointed out by way of contrast that whereas
c
under an emergency the people may be precluded from enforcing their
fundamental rights under Articles 14 and 19 for the duration of the
emergency, here the people were prevented from moving th~ court
for enforcement of these fundamental rights for all time to come even
without any emergency where a law was passed purporting to give D
effect to any of the Directive Principles. The amendment. in Article
31C was thus, according to Mr. Palkhiwala, outside the amending
power of Parliament ·and was liable to be struck down as
unconstitutional and void.

Logically I must first consider the challenge against the E
constitutional validity of clauses (4) and (5) of Art. 368, because it
is only if they can be put out of the way that Mr. Phadke' and

t_ Mr. Palkhiwala can proceed further with their respective challenges
against the validity of the other constitutional provisions impugned
by them. Both these clauses were inserted in Article 368 by section
55 of the Constitution (Forty~second Amendmen~). Aot, 1976 with F
a view to overcoming the effect of the majority decision in
Keshavananda Bharat·i's case. Clause (4) enacted that no amendment
of the Constitution "made or purporting t:o have been made under
this Article [whether before or after the commencement of section 55
of the Constitution (Forty-second Amendment) Act, 1976] shall be
called in question in any court on any ground" while clause (5), which G
begins with the words "For the removal of doubts", declared that
"there shall be no limitation whatever on the constituent power of
Parliament to amend by way of addition, variation or repeal the
provisions of this Constitution under 1his Article." The question is
whelber these two clauses transgress the limitations on the amending
H
power of Parliament and are therefore void. I will first take up for
consideration clause (4) which seeks to. throw a cloak of protection
on an amendment made or purporting to have been made in the
19-646 S.C. India/80
284 SUPREME COURT REPORTS [1981] 1 S.C.R.

A Constitution and makes it unchallengeable on any ground. It is rather
curious in its wording and betrays lack of proper care and attention
in drafting. It protects every amendment made or purporting to have
been made "whether before or after the commencement of section 5
of the Constitution (Forty-second Amendment) Act. 1976." But would
an amendi:nent made by any other section of the Constitution (Forty"
B second Amendment) Act, 1976 such as section (4), which would be
neither before nor after the commencement of section 55, but·
simultaneous with it. be covered by this protective provision? This
is purely a problem of verbal semantics which arises because of
slovenliness in drafting that is becoming rather common these days
and I need not dwell on it. for there are more important questions
c which arise out of the challenge to the constitutional validity of clause
' (4) and they require serious .consideration. I will proceed on the basis
that the protection sought to be given by clause (4) extends to every
amendment whatsoever and that the parenthetical words "whether
before or after the commencement of section 55 of the Constitution
(Forty-second Amendment) Act, 1976" were introduced merely by
D
way of abundant caution with a view to indicating that this protection
was intended to cover even amendments made or purporting to have
been made before the enactment of the Constitution (Forty-second
Amendment) Act. 1976. Now even a cursory look at the language
of clause (4) is sufficient to demonstrate that this is a case of zeal over-
E running discretion. Clause (4) provides that no amendment to the
Constitution made or purporting to have been made under Article
368 shall be called in question in any court on any ground. The

F
words 'on a11JY ground' are of the widest amplitude and they would
obviously cover even a ground that the procedure prescribed in clause
(2) and its proviso has not been followed. The result is that even if
an amendment is purported to have been made without complying with
J
. the procedure prescribed in sub-clause (2) including its proviso, and
is therefore unconstitutional, it would still he immune from challenge.
It was undisputed common ground both at the Bar and on the Bench,
in Keshavananda Bharati's case that any amendment of the Constitu·
tion which did not conform to the procedure prescribed by sub-clause
G (2) and its proviso was no amendment at all and a court would declare
it invalid. Thus if an amendment were 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 requirement of clause (2) is that it should be passed by
a majority of each of the two Houses separately and by not less than
H two-thirds of the members present and voting. But if clause (4) were
valid, it would become difficult to challenge the validity of such an
amendment and it would prevai1l though made in defiance of a
l MINERVA MILLS LTD. v. UNION i(Bhagwati, J.)
\
2 85

mandatpry constitutional-requirement. Clause (2) including its proviso
would be rendered completely superfluous and meaning!ess and its
prescription would become merely a paper requirement. Moreover,
A

apart from nullifying the requirement 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 structure of the
Constitution and is therefore outside the amending power of
Parliament. So long as clause (4) stands, an amendment of the B
Constitution though unconstitutioinal and void) as transgressing the
limitation on the amending power of Parliament as laid down in
Keshavananda Bharati's 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 limitation on' the
amending power of Parliament would from a practical point of view,
become non-existent and it would not be incorrect to say that, covertly c
and indireotly, by the exclusion of judicial review, the amending
power of Parliament would stand· enlarged contrary to the
decision of this Court in Keshavananda Bharctti'~ case. This would
undoubtedly damage the basic structure of the Constitution, because ·
there are two essential features of the basic structure which would be D
violated, namely, the limited amending power of Parliament and the
power of judicial review with a view t,o examining whether any
authority under the Constitution has exceeded the limits of its powers.·
I shall immediately proceed to state the reasons why I think that these
two features form part of the bask structure of the Constitution ..
It is clear from the majority decision in Keshavananda Bharati's E

t case that our Constitution is a controlled Constitution which confers
powers on the various authorities created and recognised by it and
~ defines the limits of ·those 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 F
Constitution has devised a structure of power relationship with checks
and balances and limits are placed on the powers of every authority '
or instrumentality under the Constitution. Every organ of the State,
be it the executive or the legislature or the judiciary, derives its ·
,. authority from the Constitution and it has to act within the limits
of such authority. Parliament too, is a Cfieature of the Conl'Stitution G
and it can only have such powers as are given to it under the
Constitution. It has no inherent power of amendment of the
Constitution and being an authority created by the Constitution, it
ca!Illlot have such inherent power, but the power of amendment is
conferred upon it by the Constitution and it is a limited power which H
is so conferred. · Parliament cannot in' exercise of this power so
286 SUPREME COURT REPORTS [1981] 1 S.C.R.

A amend the Constitution as to alter its basic structure or to change-
its identity. .Now, ·if by constitutional amendment, Parliament were
granted unlimited power of amendment, it would cease to be an
authority under the Constitution. but would become supreme over
it, because it would have power to alter the entire Constitution
including its basic struc'ture and even to put an end to it by totally
B changing its identity. It wilJ therefore be seen that the limited
amending power of Parliament is itself an essential feature of the
Constitution, a part of its basic structure, for if the limited power
of amendment were enlarged into an unlimited power, the entire
character of the Constitution would be changed. It must follow as
a necessary corollary that any amendment of the Constitution which
c seeks, directly or indirectly, to enlarge the amending power of
Parliament by freeing it from the limitation of unamendability of the
basic structure would be violative of the basic structure and hence
outside the amendatory power of Parliament.
It is a fundamental principle of our constitutional scheme, .and
D I have pointed this out in the preceding paragraph, that every organ
of the State, every authority under the Constitution, derives its power
from the Constitution and has to act within the limits of such power.
But then the question arises as to which authority must decide what
are . the limits on the power conferred upon each organ
or instrumentality of the State and whether such limits are transgressed
E or exceeded. Now there are three mai'n departments of the State
amongst which the powers of Government are divided; the Executive.
the Legislature and the Judiciary. Under our Constitution we have
no rigid separation of powers as in the United States of America,
but the!Je is a broad demarcation, though, having regard to the complex
nature of governmental functions, certain degree of overlapping is
_j
F inevitable. The reason for this broad separation of powers is that
"the concentration of powers in any one organ may" to quote the
words of Chandracbud, J. (as be then was) in Smt. Indira Gandhi's
case (supra) "by upsetting that fine balance between the three organs,
destroy the fundamental premises of a democratic Government to·
which wt: are pledged." Take for example, a case where the executive
G which is 'in charge of administration acts to the prejudice of a
citizen and a question arises as to what are the powers of the executive
and whether the executive bas acted within the scope of its powers.
Such a q111::ilion obviously cannot be left to the executive to decide
and for two very good reasons. First, the decision of the question
would depend upon the interpretation of the Constitution and the
H laws and this would pre-eminently be a matter-fit to be decided by
the judiciary, because it is the judiciary which alone would
be possessed of expertise in this field and secondly, the constitutional ·
MINERVA llULLS LID. v. UNION (Bhagwati, J.) 2 8 7.

·and legal protection affor':led to the citizen would become illusory,
: if it were left to the executive to determine the legality of its own
y. :action•. So also if the legislature makes ·a law and a dispute arises
whether in making the law the legislature has acted outside the area
. of its legislative competence or the law is violative of the fundamental
rights or of any other provisions of the Constitution, its resolution
cannot, for the same reasons, be left to the determination of the
·1egis!ature. The Constitution has, therefore, created an independent
, • machinery for resolving· these disputes and this independent machinery
.is the judiciary which is vested with the power of judicial review
' to determine the legality of executive action and the validity of
, · _ , legislation passed by the legislature. It is the solemn duty of the
. judiciary under the Constitution to keep the different organs of the c
. State such as the executive arid the legislature within the limits of
-the power conferred upon them by the'Constitution. This p"wer of
judicial review ·is ·conferred on the judiciary by Articles 32 and 226
,of the Constitution. Speaking about draft Article 25, corresponding
"( to present Article 32 of the Constitution, Dr. Ambedkar, the principal
D
. architect of our Constitution, said in the Constituent Assembly on
'9th December, 1948 :
"If I was asked to name any particular article in this ·
Constitution as the most important-an article without which
this Constitution would be a nuIJity-1 could not refer to any
other article except this one. It is the very soul of
the Constitution and the very heart of it. and I am glad that
r ,,,
the Housl' has realised its importance"•. (CAD debates, Vol.
VII, p. 953). . . : .
.It is a cardinal principle of our Constitution that no one hoy;soever
higWy placed and no authority however lofty can claim to be , the
·sole judge of its power under the Constitution or wheiher its action F
~·is within the confines of such power laid down by the Constitution.
• .The judiciary is the interpreter of the Constitution and to the judiciary
is assigned the delicate task to determine what is the power conferred
on each branch of Government, whether it is limited, and if so, what
} 'are the limits and ·whether any action of that branch transgresses
·such limits. It is for the judiciary to uphold the constitutional values G
and to enforce the constitutional limitations, That is the essence of
the rule of law, which inter alia requires that "the exercise of powers
by the Government whether it ·be the legislature or. the executive or ·
.any other authority, be conditioned by the Constitution and the law". ·
The p;>wer of judicial review ii an integral part of our constitutional
system and without it, there will be no Government of laws and the H
;. rule of law would become a teasing illusion and a promise of
•unreality. I am of 1he view that if there is one feature of our
288 SUPREME COURT REPORTS [1981] I S.C.R.

A Constitution which, more than any other, is basic and fundamental
to the maintenance of democracy and the rule of law, it is the power
of judicial review and it is unquestionably, to my mind. part of -\
the basic structure of the Constitution. Of course, when I say this
I should not be taken to suggest that however effective al'emative insti·
tutional mechanisms or arrangements for judiCial revielv cannot be made
by Parliament. But what I wish to emphasise is that jt•Jicial review
· ·is a vital principle "of our Constitution ·and it cannot be abrogated •
without affecting the basic structure of the Constitution. If by a
Constitutional amendment, the power of judicial review is taken away
'
and it is provided that the validity of any law made by the Legislature
shall not be liable to be called in question on any ground,. even if.
c it is outside the legislative competence of the legislature or is violative
of any fundamental rights, it would be nothing short of sub-version
of the Constitution, for it would make a mockery of the distribution
of legislative powers between the Union and the States and ·render
the fundamental rights meaningless and futile. · So also if a
coristitutional amendment is made which has the effect of taking
D away the power of judicial review and providing that no amendment
made in the Constitution shall be liable to be questioned o·n any
ground, even if such amendment is violative of the. basic structure
and, therefore, outside the amendatory power of Parliament, it would
be making Parliament sole judge of the constitutional validity of
what it has done and that would, in effect and substance, nullify the
limitation on the amending power of Parliament and affect the basic
· structure of the Constitution. · The conclusion must therefore
inevitably follow that clause (4) of Article 368 is unconstitutional
. and void as damaging the basic structure of the· Constitution.

·. That takes us to clause (5) of Article 368. This clause opens
with the words "For the removal of doubts" and proceeds to declare
that there shall be no limitation whatever on the amending power
of Parliament under Article 368. It is difficult to appreciate the
meaning of the opening words "For the r!'Jlloval of doubts" because
the majority decision in Keshavananda Bharati's case clearly laid down -1
G and left no doubt that the basic structure of the Cons_titution was
outside the competence of the mandatory power of Parliament and
in Smt. Indira Gandhts case all the Judges unanimously accepted
~heory of the basic structure as a theory by which the validity of
the amendment impugned before them, namely, Article 329A(4) !Vas
to be judged. Therefore, after the decisions in Keshavananda Bharati's
H case and Smt. Indira Gandhi's case, there was no doubt at all ·that
.the amendatory power of Parliament was limited and it was not
competent to Parliament to alter the basic structure of the Constitution

,
MINERVA MILLS LTD. v. UNION (Bhagwati, !.) 289

and clause (5) could not remove the doubt which did not exist. What A
clause (5) really sought to do was to rem~ve the limitation on the
amending power of Parliament and convert it from a limited power
+ into an unlimited one. This was clearly and indubitably a futile
exercise OIJli tihe part of Parliament. I fai1 to see how Parliament
which has only a limited power of amendment and which cannot
alter the basic structure of the Constitution can expand its power of B
,amendment SO as to confer upon itself the power Of repeal or abrogate
the Constitution or to damage or destroy its basic structure. That

r- would clearly be in excess of the limited amending power possessed
by Parliament. The Constitution has conferred only a limited
"amending power on Parliament so that it cannot damage or destroy
the basic structure of the Constitution and Parliament cannot by c
exercise of that limited amending power convert that very power
into an absolute and unlimited power. If it were permissible to
Parliament to ,enlarge the limited amending power conferred upon
it into an abs6Iute power of amendment, then it was meaningless
to place a limitation on the original power of amendment. It is D
difficult to appreciate how Parliament having a limited power of
amendment can get rid of the limitation by exercising that very power
and convert it into an absolute power. Clause (5) of Article 368
which sought to remove the limitation on the amending power of
Parliament by making it absolute must therefore be held to be outside
the amending power of Parliament. There is also another ground E
on which the validity of this clause can be successfully assailed: This
clause seeks to convert a controlled Constitution into an uncontrolled
one by removing the limitation on the amending power of Parliament
which, as pointed out above, is itself an essential feature of the
Constitution and it is therefore violative of the basic structure. I
would in the circumstances hold clause (5) of Article 368 to be F
unconstitutional and void.
With clauses (4) and (5) of Article 368 out of the way, I must
now proceed to examine the challenge against the constitutional
validity of Article 31A, Article 31B read with the 9th Schedule and
the unamended Article 31C. So far as Article 31A is concerned,
Mr. Phadke appearing on behalf of the petitioners contended that, G
tested by the doctrine of basic structure, Art. 3 lA was unconstitu:ional
and void, since it had the effect of abrogating Articles 14 and 19 in
reference to legislation falling within the categories specified in the
various clauses of that Article. He argued that' the Fundamental
Rights enshrined in Articles 14 and 19 were part of the basic structure
H
of the Constitution and any constitutional amendment which had the
effect of abrogating or damaging these Fundamental Rights was
outside the amendatory power of Parliament. While considering this
290 '
SUPREME COURT REPORTS [1981] 1 S.C.R.

A. argument, J may make it clear that I am concerned here only with
cornstituitional validity of clause (a) of Article 31A since the protection
of Article 31A has been claimed in respect of Maharashtra Land
Ceiling Acts only under clause (a) of that Article and I need not
enter upon a discussion of the constitutional validity of clauses (b)
to (e} of Article 31A. I do not think that the argument of Mr.
B Phadke challenging the constitutional validity of clause (a) of Article
3 lA is well-founded. I shall have occasion to point out in a later
part of this judgment that where any law is enacted for giving effect
to a Directive Principle with a view to furthering the constitutional
goal of social allld economic justice, there would be no violation of
the basic structure, even if it infringes formal equality before the law·
c under Art. 14 or any Fundamental Right under Article 19. Here
clause (a) of Article 31A protects a law of agrarian reform which
is clearly, in the context of the socio-economic conditions prevailing
in India, a basic requirement of social and economic justice and fa
covered by the Directive Principles St!t out in clauses (b) and (c) of
Article 39 and it is difficult to see how it can possibly be regarded
D as violating the bas.ic structure of the Constitution. On the contrary,
agrarian reform leading to social and economic justice to the rural
population is an. objective which strengthehs the basic structure of
the Constitution. Clause (a) of Article 3 lA must therefore be held
to be constitutionally valid even on the application of the basic
'. structure test.
E
But, apart from this reasoning on principle which in our opinion
clearly sustains the constitutional validity of clause (a) of Article 31A,

..
we think that even on the basis of the doctrine of stare dec.'sis, the
whole of Article 31A must' be upheld as constitutionally valid. The
question as to the constitutional validity of Article 3 lA first came
_j
F up for consideration before this Court in Shankari Prasad v. Union of
India(!). There was a direct challenge levelled against the constitu-
tionality of Article 3 lA in this case on various grounds and this
challenge was rejected by a Constitution Bench of this Court. . 'The
principal ground on which the challenge was based was that if a
constitutional amendment takes away or . abridges any of the
Fundamental Rights conferred by Part III of the Constitution, it
would fall within the prohibition of Article 13(2) and would therefore
be void. Patanjali Shastri, J., speaking on behalf of the Court, did
not accept this contention and taking the view that in the context
of Article 13, 'law' must be taken to mean rules or regulations made
in exercise of ordinary legislative power and not amendments to the
H
Constitution made in exeircise of constituent power, be held that
(I) [1952] SCR 89.
MINERVA MILLS LTD. v. UNION (Bhagwati, J.) 291

Article 13(2) does not affect constitutional amendments. This view A
in regard to the interpretation of the word 'law' in Article 13(2) has
now been affirmed by this Court sitting as a full Court of 13 Judges
in Keshavananda Bharati's case and it is no longer possible to argue
the contrary proposition. It is true that in this case, the constitutional
validity or Article 31A was not assailed on the ground of infraction
of the basic feature since that was a doctrine which came to be
evolved only in Keshavananda Bharati's case, but the' tact remains
that whatever be the arguments advanced or omitted to be advanced.
Article 31A was held to be constitutionally valid by this Court.
r~- Nearly 13 years after this decision was given in Shankari Prasad's
-case, a strong plea was made before this Court in ·sajjan Singh v.
State of Rajasthan(I) that · Shankari Prasad's case should be
reconsidered, but after a detailed discussion of the various arguments
invo!veci in the case, the Constitution Bench of this Court expressed
concurrence with the view expressed in Shankari Prasad's case and
.in the result, upheld the constitutional validity of Article 3 lA, though
the question which arose for consideration was a little different and D
'did not directly involve the constitutional validity of Article 3 lA.
'Thereafter, aame the famous decision of this Court in Golak Nath's
-case(2) where a full Court of 11 Judges, while holding that the
Constitution (First Amendment) Act exceeded the constituent power
d Parliament, siill categorically declared ou. the basis of the doctrine
prospective overruling that the said amendment, and ·a few other E
like! amendme111ts subsequently made, should not be disturbed and
must be held tD be valid- The result was that even the decision in·
Golak Nath' s case accepted the constitutional validity of Article 3lA.
The view taken· in Golak Nath's case as regards the amending power.
of Parliament was reversed in Keshavananda Bharati's case where the
entire question as to the nature and extent of the constituent power 11
of Parliament to amend the Constitution was discussed in all its
dimensions and aspects uninhibited by any previous decision.s, but
the only constitutional amendments which were directly challengied
in that case were the Twenty-fourth and.Twenty-fifth and Twenty-ninth
Amendments. The constitutional validity of Avt. 31A was not put
G
in issue in Keshavananda Bharati's case and the learned Judges who
decided that case were not called upon to pronounce on i1t and it
.cannot therefore be said that this Court uphold the vires of
Article 31A in that Case. It is no doubt true that Khanna, J. held
Article 31A to be valid on the principle of stare decisis. but that
was only for the purpose of upholding the vali:dity of Article 31C. H
(!) [1965] 1 SCR 933.
(2) [19671 2 SCR 762.
292 SuPREME COURT REPORTS [1981] 1 S.C.R.

A bcause he took the view that Article 31C was merely an extension of
the principle ·accepted in Article 3lA and "the ground which sustained
the validity of clause (1) of Article 31A. would equally sustain the
validity of the first part of Article 31 C". So far as the other learned
Judge1s were concerned, they did not express any view specifically on the
constitutionail validity of Article1 3 lA, since that was not in issue
before them. Ray, J., Palekar, J., Mathew, J., Beg, J~, Dwiwedi, J. and
Chandrachud, J., held Article 31C to be valid and if that view be
correct, Article 3lA must a fortiorari be held to be valid. But it
must be said that there is no decision of the Court in Keshavananda
Bharati's case holding Art. 31A as constitutionally valid. and
logically, therefore, it should be open to the petitfuners in the present
c case to contend that, tested by the basic structure doctrine, Article 31A
is constitutional. We have already pointed out that on merits this
argument has no substance and even on an application of the basic
structure doctrine. Article 31A cannot be condemned as invalid. But
in any event, I do not think .that it would be proper to reopen the
D question of constitutional validity of Article 31 A which has already
been decided and silenced by the decisions of this Court in Shankari
Prasad's case, Sajjan Singh's case and Gallik Nath's case. Now for
over 28 years, since the decision in Shankari Prasad' s case Article
31A has been recognised as valid and on this view, laws of several
States relating to agrarian reform have been held to be valid and as
E pointed out by Khanna, J. in Keshavananda Bharati's case "millions
of acres of land have changed hands and millions of new titles in
agricultural lands have been created".· If the question of validity of
Article 31A were reopened and the earlier decisions upholding its
validity were reconsidered in the light of the basic structure doctrine;
these various agrarian reform laws which h~ve brought about a near
F socio-economic revoluti'on · in the agrarian sector might be exposed
to jeopardy and that. might put the clock back by setting at naught
all changes that have been brought about in agrarian relationships
during these years and create chaos in the lives of millions of people
who have benefitted by these . laws. It is no doubt true that this
Court has power to review its earlier decisions or even depart from
G them and the doctrine of stare decisis cannot be permitted to
perpetuate erroneous decisions of this Court to the detriment of the
general welfare of the public. There is indeed a school of thought
which believes with Cardozo that "the precedents have turned upon
us and they are engulfing and annihilating us, engulfing and
annihilating the very devo tees that worshipped at their shrine" and
1

H that the Court should not be troubled unduly if it has to break
away from precedents in order to modify old rule~ and if need be
to fashion new ones to meet the challenges and problems thrown upon
MINERVA MILLS LTD. v. UNION (Bhagwati, J.) 293

by a dynamic society. But at the same time, it must be borne in. IA
mind that certainty and continuity are essential ingredPents of rule
-4' of law. Certainty in applicability of law would be considerably
eroded and suffer a serious set-back if the highest court in. the land
were readily to overrule the view expressed by it in earlier decisions
eveni though that view has held the field for a number of years. It : B-
is obvious that when constitutional problems are brought before
this Court for its decision, complex and difficult questions are bound.
to arise and since the decision on many of such questions may depend
upon choice between competing values, two views may be possible
depending upon the value judgment or the choice of values made :c
1
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 v!ew would not justify the Court in
reconsidering the earlier decision and overruling it. The law laid
down by this Court is binding on all Courts in the country and
numerous cases alt' over the country are decided in accordance with
the view taken by this Court. Many people arrange their affairs and
large number of transactions also take place on the faith of the
correctness of the decision given by this Court. It would create uncer-
tainty, instability and confusion if the law propounded by this Court on
the faith of which numerous cases have been decided and many tran-
sactions have taken place is held to be not the correct law after a num-
ber of years. The doctrine of stare decisis has evolved from the maxim
"stare decisis et non quita movere" meaning "adhere to the decision
and do not unsettle things which are established", and it is a useful 'F
doctrine intended to bring about certainty and uniformity in .the law.
But when I say this, let me make it clear that I do not regard the
doctrine of stare decisis as a rigid and inevitable doctrine which must
be applied at the cost of justice. ·There may be cases where it
may be necessary to rid ihe doctrine of its petrifying rigidity. "Stare G
decisis" as pointed out by Brandeis "is always a desideratum, ev~n
in these constitutional ·cases, but in thein, it is never a command"'.
The Court may in an appropriate case overrule a previous decision
taken by it, but that should be done only for· substantial and
compelling reasons. The power of review must be exercised with due
care and caution and only for advancing the pubJic well-being and not
294. SUPREME COURT REPORTS [1981) 1 S.C.R.

merely because it may appear that the previous ded:sion was based
on an erroneous view of the law. It is only where the perpetuation
of the earlier decision would be productive of mischief or inconvenience
or would have the effect of deflecting the nation from the course
which has been set by the Constitution makers or to use the words
of Krishna Iyer, J. in Ambika Prasad Misra v. State of U.P. & Ors.(1)
B "where national crisis of great moment to the life, liberty and safety
·of thjs country and its millions are at stake or the, basic direction
,.of the nation itself is in peril of a shake-up" that the Court would be
justified in reconsidering its earlier decisibn and departing from it.
It is fiundf!mental that the nation's Constitution should not be kept
:C. in constant uncertainty by judicial review every now and then,
because otherwise it would paralyse by perennial suspense all
legislative and administrative action on vital issues. The Court
should not indulge in judicial stabilisation of State action and a
view .which has been accepted for a long period of time in a series
of decisions and on the faith of which millions of people have acted
D and ·a large number of transactions have been effected, should not be
disturbed. Let us not forget the words of Justice Roberts of the
United States Supreme .Court-words which are equally applicable to
the decision making process in this Court:
"The reason for my concern is that the instant decision,
overruling that announced about nine years ago, tends to bring
E adjudications of this tribunal into the same class as a restricted
rail road ticket good for this day and train only......... It is
·r;egrettable that in an era marked by doubt and confusion, an era
whose greatest need i:s steadfastness of thought and purpose, this
Court which has been looked to as exhibiting consistency in
adjudication, and a steadiness which would hold the balance
even in the face of temporary ebbs and flows of opinion, should
now itself become the breeder of fresh doubt and confusion in
the public mind as to the stability of out institutions."
Here the view that Article 3 lA is constitutionally valid has been taken
in atleast three decisions of this Court, namely, Shankari Prasad's
G case, Sajjan Singh's case and Golak Nath's case and it has held the field
for over 28 years and on .the faith of its correctness, millions of acres
of agricultural land have changed hands and new agrarian relations have
come into being, transforming the entire rural economy. Ev~n though
the constitutional validity of Article 31A was not tested in these
decisions by reference to the basic structure doctrine, I do not think
ff
the Court would be justified .in allowing the earlier decisions to be
(l) {1980] 3 S.C.R. 1159.
MINERVA MILLS LTD. v. UNION (Bhagwati, ].) 295

reconsidered and the question of constitutional validity of Article 3lA
re-opened. These decisions have given a quietus to the constitutional
challenge against the validity of Article 3 lA and this quietus should
not now be allowed to be disturbed. I may point that this view which
I am taking is supported by the decision of this Court in Ambika
Prasad Misra v. State 'of U.P. and Ors. (supra).

I may now turn to consider the constitutional challenge against
the validity of Article 3 lB read with the 9th Schedule. This Article
was introduced in the Constitution alongwith Article 31A by the
Constitution (First Amendment) Act, 1951. Article 31A as originally

r introduced was confined only to legislation for acquisition of an estate
or extinguishment or modification of any rights in an estate and it
saved such legislation from attack under Articles 14, 19 and 31. Now
c.
once legislation falling within this category was protected by Art. 3IA,
it was not necessary to enact another saving provision in regard to
the same kind of legislation. But, presumably, having regard to the
fact that the constitutional law was still in the stage of evolution and
D
it was not clear whether a law, invalid when enacted, could be revived
without being re-enacted. Parliament thought that Article 3lA, even if
retrospectively enacted. may not be sufficient to ensure the validity of
a legislation which was already declared void by the courts as· in
Kameshwar Singh's case( 1), and therefore considered it advisable to
have a further provision in Article 31B to specifically by-pass judgments E
striking down such legislation. That seems to be the reason why
Article 3lB was enacted and statutes falling within Article 3lA were
included in the 9th Schedule. Article 31B was conceived together
with Article 31A as part of the same design adopted to give protection
· to legislation providing for acquisition of an estate or extinguishment
or modification of any rights in an estate. The 9th Schedule of F
Article 31B was not intended to include laws other than those covered
by Article 31A. That becomes clear from the speeches of the Law
Minister and the Prime Minister during the discussion on the
Constitution (First Amendment) Act, 1951. Dr. Ambedkar admitted
of the 9th Schedule that prima facie "it is an unusual procedure" but
he went on to add that "all the laws that have been saved by this G
Schedule are laws tliat fall under Article 31." Jawaharlal Nehru
also told Parliament: "It is not with any great satisfaction or
pleasure that we have produced this long Schedule. We do not wish
. to add to it for two reasons. One is tl:)at the Schedule consists of a
particular type of legislation, generally speaking, and another type
H,
should not come in............ " (emphasis supplied). Articles 31A and

(1) [1952] S.C.R. 889.
296 SUPREME COURT REPORTS [1981] 1 S.C.R.

31B were thus intended to serve the same purpose of protecting
legislation falling within a certain category. It was a double barelled
protection which was intended to be provided to this category of
legislation, since it was designed to carry out agrarian reform which
was so essential for bringing about a. revolution in the socio-economic
structure of the country. This was followed by the Constitution
(Fourth Amendment) Act, 1956 by which the categories of legislation
covered by Article 31A were sought to be expanded by adding certain
new clauses after clause (a). Originally, in the draft bill in addition
to these clauses, there was one more clause, namely, clause (d) which
sought to give protection to a law providing for the acquisition or
requisitioning of any immovable property for the rehabilitation of
·C
displaced persons and, as a corollary to the proposed amendment of
Art. 31A, it was proposed in Clause (5) of the Bill to add in the
9th Schedule two more State Acts and four Central Acts which fell
within the scope of clauses (d) and (f) of the revised Article 31A.
Vide cl. (4) of the Statement of Objects and Reasons-The two State
D Acts which were proposed to be included in the 9th Schedule were
the Bihar Displaced Persons Rehabilitation (Acquisition of Land) Act,
1950 and the United Provinces Land Acquisition (Rehabilitation of
Refugees) Act, 1948. The West Bengal Land Development and
Planning Act, 1948, which was struck down by this Court in State of
West Bengal v. Bela Banerjee( 1), and the invalidity of which really
started the entire exercise of the Constitution (Fourth Amendment)
Act. 1955, was however, left-out Qf the 9th Schedule in the draft Bill
because it included certain purposes of acquisition which fell outside
the proposed clause (d) of Article 31A. But, while the Constitution
(Fourth Amendment) Act, 1955 was being debated, an Ordinance was
issued by the Governor of West Bengal omitting with retrospective
:F effect all the items in the definition of "public purpose" except the
se'ttlement of displaced persons who had migrated into the State of
West Bengal, with the result that the West Bengal Act as amended
by the Ordinance came within the category of legislation specified in
the proposed clause (d) of Art. 31A. In view of this amendment, the
West Bengal Act was included in the 9th Schedule by way ·of
amendment of the draft Bill. It is significant to note that similar
Orissa Statute which provided for acquisition of land for purposes
going beyond the proposed clause (d) of Article 31A and which was
not amended in the same manner as the West Bengal Act, was not
included in the 9th Schedule. A Central Act, namely, the Resettlement
of Displaced Persons (Land Acquisition) Act, 1948 fe]] within the
H
proposed clause (d) of Art. 31A and it was therefore included in the
·(1) [1954} S.C.R. 550.
MINERVA MILLS LTD. v. UNION (Bhagwati, J.) 2 97

9th Schedule in the draft Bill. The link between Articles 31A .and
1
A
31B was thus maintained in the draft Bill, but when the draft Bill
went before· the Joint Committee, the proposed cl:mse (d) of
Aricle 31A was deleted and the Bihar, U.P. and West Bengal .Acts
as also the above-mentioned Central Act which were originally
intended to be within the scope and ambit of Article 31A, became
unrelated to that Article. Even so, barring these four Acts, all the B
other statutes included in the 9th Schedule fell within one or the
other clause of the amended· Art. 31A. Subsequent to this
amendment. several other st~tutes dealing with agrarian reform were
included in the 9th Schedule by the Constitution (Seventeenth
Amendment) Act, 1964 and no complaint can be made in regard to
such addition, because all these statutes partook of the character of c •
agrarian reform legislation and were covered by clause (a) of
Article 3lA in view of the extended definition of "estate" substituted
by the same amending Act. The validity of the Constitution
(Seventeenth Amendment) Act, 1964 was challenged before this Court
in Glolak Nath's case (supra) and though the Court by a majority ·D
of six against five took the view that Parliament has no power to
amend any fundamental right, it· held that this decision would not
affect the validity of the Constitution (Seventeenth Amendment) Act,
1964 and other earlier amendments to the Constitution and thus
recognised the validity of the various constitutional amendments
which included statutes in the 9th Schedule from time to time upt0 E
that da<te. Then came the Constitution (Twenty ·Ninth Amendment)
Act, 1972 by which two Kerala agrarian reform statutes were included
in the 9th Schedule. The validity of the Twenty Ninth Amendment
Act was challenged in Keshavananda Bharati's case, but by a majority
consisting of Khanna, J. and the six learned Judges led by Ray. C.J.,
it was held to be valid. Since all the earlier constitutional amendments F
were held valid on the basis of unlimited amending power of
Parliament recognised in Shankari Prasad's case and Sajjan Singh's
case and were accepted as valid in Golak Nath's case and the Twenty
Ninth Amendment Act was also held valid in Keshavananda Bharati's
case; though not on the application of the basic structure test, and these
constitutional amendments have been recognised as valid over a number G
of years and moreover, the statutes intended to be protected by them
are all falling within Article 3 lA with the possible exception of only
'four' Acts referred to above, I do not think, we would be justified in
'fe-opening tlie question of validity of these constitutional amendments
and hence we hold them to be valid. But, all constitutional amendments
H
made after the decision in Keshavananda Bharati's case would have
to be tested by reference to the basic structure doctrine, for Parliament
would then have no excuse for saying that it did not know the limitation
298 SUPREME COURT REPORTS [1981] 1 S.C.R.'
A
on its amending power. It may be pointed out that quite a large'
number of statutes have been included in the 9th Schydule by ihe:
subsequent constitutional amendments and strangely enough, we find
for the first time that statutes have been included which have no:
connection at all with Article 3 lA or 31 C and. this device of Article 3 lB
B
which was originally adopted only as a means of giving a more definite
and assured protection to legisla;tion already protected under
Article 3lA, has been utilised for the . totally different purpose of
excluding the applicability of Fundamental Rights to all kinds of statutes
which have nothing to do wi1th agrarian reform or Directive Principles.
1C This is rather a dis~urbing phenomenon. Now out of the statutes
• which are or may in future be included in the 9th Schedule by
subsequeµt constitutional amendments. if there are any which fall
within a category covered by Article 3IA or 31C, they would be
protected from challenge under Articles 14 and 19 and it 'Would not
be necessary to consider whether their inclusion in' the 9th Schedule'
D is constitutionally valid. except in those rare cases where protection
may be claimed for them against violation of any other fundamental
rights. This question would primarily arise only in regard to statutes
not covered by Article 31A or 31C and in case of such statutes. the·
Court would have to consider whether the constitutional amendments
E including such statutes in the 9th Schedule violate the basic structure
of the Constitution in granting them immunity from challenge of the
fundamental rights. It is possible that in a given case, even an
abridgement of a fundamental right may involve violation of the
basic structure. It would all depend on the nature of the fundamental
right, the extent and depth of the infringement, the purpose for which·
F the infringement is made and its impact on the basic values of the·
Constitution. Take for example, right to life and personal liberty
enshrined in Article 21. This stands on an altogether different footing
from other fundamental rights. I do not wish to express any definite-
opinion, but I inay point out that if this fundamental right is violated
by any legislation. it may be difficult to sustain a constitutional
G amendment which seeks to protect such legislation against challenge--
under Art. 21. So also where a legislation which has nothing to do·
with agrarian reform or any Directive Principles infringes the equality
clause contained in Article 14 and such legislation is sought to be·
protected by a constitutional amendment by including it in the·
9th Schedule, it may be possible to contend that such constitutional'
H amendment is violative of the egalitarian principle which forms parf
of the basic structure. But these are only examples which I am giving'.
by way of illustration, for other situations may arise where infractiom
MINERVA MILLS LTD. v. UNION (Bhagwati, J.) 299

of a fundamental right by a statute, if sought to be constitutionally A
protected, might affect the basic structure of the Constitution. In every
case, therefore, where a constitutional amendment includes a statute or
statutes in the 9th Schedule, its constitutional validity would have to be
considered by reference to the basic structure doctrine and · such
constitutional amendment would be liable to be declared invalid to
the extent !o which it damages or destroys the basic structure of the B
Constitution by according protection against violation of any particular
fundamen ta! right. ·
I will now tum to consider the challenge against the constitu-
tional validity of the unamended Art. 31 C. This article was intro-
duced in the Constitution by the Constitution (Twenty-fifth Amend-
ment) Act, 1971 and it provided in its first part that "Notwithstanding
c
anything contained in Art. 13, no law giving effect to the policy of
the State ·towards securing the principles specified in Cl. (b) or (c)
of Art. 39 shall be deemed to be void on the ground that it is in-
consistent with or takes away or abridges any of the rights conferred
by Art. ;14, Art. 19 or Art. 31". It is not necessary to reproduce D
here the second part· of the unamended Art. 31 C because that was
declared unconstitutional by the majority decision in Keshavananda
Bharti' s case and must consequently be treated as non-est. ;The argu-
ment of Mr. Phadke against the constitutional validity of the unamend-
ed Art. 31C was the same as in case of Art. 31A, namely, ·that it
•emasculated the fundamental rights in Articles 14 and 19 and E
was, therefore, destructive of the basic structure of the Con-
stitution. I shall presently examine this argument on merits and
demonstrate that it is unsustainable, but before I do so, I may point
out at th~ outset that it is wholly unnecessary to embark upon a dis-
cussion of the merits of this argument, because the first part of the
unamended Art. 31C was held to be constitutionally valid by the F
majority decision in Keshavananda Bharti's case and that decision be-
ing binding upon as, it is not open to Mr. Phadke to reagitate this
question. Out of the thirteen Judges who sat on the Bencb in Keshava-
nanda Bharti's case, Ray, J., as he then was, Palekar, J., Dwivedi, J.,
Khanna, J., Mathew, J., Beg, J., and Chandrachud, J., (as he then was)
took the view .that the first part of the unamended Art. 31C was con- G
stitutionally valid, because the amending power of Parliament was
absolute and unlimited. Kbanna, J. did not subscribe to the tbeory
that Parliament had an absolute and unlimited right to amend the
Constitution and his view was that the power of amendment conferred
on Parliament was a limited power restricting Parliament from so am-
ending the· Constitution as to alter its basic structure, but even on H
the basis of this limited power, he upheld the constitutional validity
of the first part. of the unamended Article 31C. There were thus seven
20-646 S.C. India/SO
300 SUPREME COURT REPORTS [1981] 1 S.C.R.

A out of thirteen Judges who held that the first part of the unamended
Art. 31 C was constitutionally valid, though the reasons which prevail-
ed with Khanna, J. for taking this view were different from those which
prevailed with the other six learned :Judges. The' issue as regards the
constitutional validity of the first part of the unamended Art. 31 C
B which directly arose for consideration before the Court was according-
ly answered in favour of the Government and the law laid down by
the majority decision was that the first part of the unamended Art.
31C was constitutional and valid and this declaration of the law must
be regarded as binding on the court in the present writ petitions. Mr.
c Phadke, however, disputed the correctness of this proposition and
contended that what was binding on the court was merely the ratio
decidendi of Keshavananda Bharati's case and not the condusion
that the first part of the unamended Article 31C was valid. The ratio
decidendi of Keshavananda Bharti's case, according to Mr. Phadke,
D
was that the amendatory power. of Par1iament is limited and it can-
not be exercised so as to alter the basic structure of the Constitution
and it was this ratio decidendi which was binding upon us and which
we must apply for the purpose of determining ~hether the first part
of the unamended Article 31C was constitutionally valid. It is no doubt
E true, conceded Mr. Phadke that the six learned Judges headed by Ray,
J. (as he then was) held the ,first part of the unamended Article 3 lC to
be constitutionally valid but that was on the basis that Parliament had

F
absolute and unrestricted power to amend the Constitution, which basis
was, according to the majority decision, incorrect. It was impossible
to say, argued Mr. Phadke, what would have been the decision of
the sirx learned Judges headed by Ray, J. (as he then was) if they
J
had applied the correct test and examined the constitutional validity
of the first part of the unamended Article 31 C by reference to the
yardstick of the limited power of amendment, and their conclusion
upholding the validity of the first part of the unamended Article 31C
by applying the wrong test could not therefore be said to· be binding
G on the Court in the present writ petitions. This argument of Mr.
Phadke is, in my opinion, not well founded and cannot be accepted.
I ·agree with Mr. Ph.adke that the ratio decidendi of Keshavananda
Bharati's case was that the amending power of Parliament is" limited
and Parliament cannot in exercise of the power .of amendment alter the
basic st~cture of the Constitution and the validity of every constitu-
tional amendment has therefore to be judged by applying the test whe,
ther or not it alters the basic structure of the constitution and this test
H
was not applied by the six learned Judges headed by Ray, J. (as he
'
MINERVA MILLS !'.-TD· v. ,UNION (Bhagwati, J.) 30 I

1hen was), but there my agreement ·ends and. I cannot accept further A
.argument of Mr. Phadke that for this reason, the conclusion reached
lJy the six learned Judges and Khanna, J., as regards the constitutiona·
lity of the first part of the unamended Article 31C has no validity.
The issue before the court in Keshavananda Bharti's -::ase was whether
·the first part of the unamended Article 31C was constitu~ionally valid
.and this issue was answered in favour of the Government by a majb- B
rity of seven against six. It is not material as to what wt:re the reasons
which weighed with each one of the Judges who upheld the validity
of the first part of the unamended Ar·ticle 3 lC. The reasons for

r reaching this conclusion would certainly have a bearing on the deter-
0mination of the ratio decidendi of the case and the ratio decidendi
would certainly be important for the decision of future cases where
the validity of some other constitutional amendment may come to be
challenged, but so far as the question of validity of the first part of
' the unamended Article 31C is concerned, it was in so many terms
c

·determined by the majority decision in Keshavananda Bharati's .case
.and that decision must be held binding upon us. Mr. Phadke. cannot
D
therefore be allowed to reopen this' question and I must refuse to
entertain the challenge against the Constitutional validity of the un ·
.amended Art. 3lC preferred by Mr. Phadke.
But even if it were open to Mr. Phadke to dispute the decision in
:J(eshavananda Bharati's case and to raise a challenge against the con-
stitutional validity of the first part of the unamended Article 31C, I do E
not think the challenge can succeed. What the first part of the un-
amended Article 31C does is merely to abridge the Fundamental
Rights in Articles 14 and 19 by excluding their applicability to legisla-
tion 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 31 C is basically of the same genre .as Article 3 lA with only F
;this difference that whereas Article 3lA protects laws rdating to cer-
tain subjects, the first part of the unamended Article 3 lC deals ·with
1aws having certain objectives. There is no qualitative difference bet-
ween Article 31A and the first part of the unamended Article 31C in
so far as the exclusion bf Articles 14 and 19 is concerned. The fact
G
that the provisions to the first part of the unamended Article 31 C are
more comprehenisive and have greater width compared to those of Article
31A does not make any diffenmce in principle. If Article 31A is con-
stitutionally valid, it is indeed difficult to see how the first part of i:he
unamended Article 31C can be held to be unconstitutional. It may be
~pointed out that the first part of the unamended Article 3 lC in fact H
stands on a more secure footing because it accords protection against
:infraction of Articles 14 and 19 to· legislation enacted for giving effeot
to the Directive Principles' set out in cla1,1ses (b} and (c) of Article 39.
302 SUPREME COURT REPORTS [1981] 1 S.C.R.

A The legisfature in. enacting such legislation acts upon the constitutionaf
mandate contained in Article 37 ,according to which the Directive Prin-
ciples are fundamental in the governance of the country and it is the d~ty .
of the State to apply those pri!1ciples in making laws. It is for the
purpose of giving effect to the Djrective Principles set out in clauses
B (1') and (c) of Art. 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 and I fail to see how a consti-

1
tutional amendment making such a provision can be condemned as.
violative of the basic structure of the Constitution. Therefore even on
c first principle, I would be inclined to hold that the first part of the
unamended Article JlC is constitutionally valid.
That takes us to the next ground .of challenge against the con-
stitutional validity of the Constitution (Fortieth Amendment) Act, 195().
in so far as it included the amending Acts 21 of 1975, 47 of 1975 and
D 2 of 1976 in the 9th Schedule and the Constitution (Forty-second
Amendment) Act, 1976 in so far as it introduced els. (4) and (5) in
Art. 368. The petitioners contended under this head of challenge that
the Constitution (Fortieth Amendment) Act, 1976 was passed by the
Lok Sabha on 2nd April, 1976 and the Constitution (Forty-Second
Amendment) Act, 1976 sometime in November, 1976, but on these
E dales the Lok Sabha was not validly in existence because it automati-
cally dissolved on 18th March, 1976 on the expiration of its term of 5
years. It is no doubt true that the House of People (Extension of
Duration) Act, 1976 was enacted by Parliament under the Proviso to
Art. 83(2) extending the duration of the Lok Sabha for a period of
one year, but the argument of the petitioners was that this Act was
F ultra vires and void, because the duration of .the Lak Sabha could be
extended under the proviso to Art. 83(2) only during the operation of
a Proclamation of an Emergency and, in the submission of the peti-
tioners, there was no Proclamation of Emergency in operation at the
time when the House of People (Extension of Duration) Act, 1976
was passed. It may be conceded straight away that, strictly speaking,
G it is superfluous and unnecessary to consider this argument because,
even if the Constitution (Fortieth Amendment) Act, 1976 is unconsti-
rutional and void and the Amending Acts ~1 of 1975, 47 of 1975 and
2 of 1976 have not been validly iincluded in the 9th Schedule so as to
earn the protection of Art. 318, they are still as pointed out earlier,
saved from invalidation by Art. 31A and so far as the Constitution
H (Forty-second Amendment) Act, 1976 is concerned, I have already
held that it is outside the constituent power of Parliament in so far
as it seeks to include clauses (4) and (5) in Art. 368. But since a
MINERVA MILLS LTD. V. UNION (Bhagwati, J,) 303

:tong argument was addressed to us seriously pressing this ground of A
challenge, I do not think I would be unjustified in dealing briefly
with it.
It is clear on a plain natural construction of its language that
under the Proviso to Art. 83(2), the duration of the Lok Sabha could
be extended onl:9' during the operation of a Proclamation of Emer- B
:gency and if, therefore, no Proclamation of Emergency was in opera-
tion at the relevant time, the House of People (Extension of Dura-
tion) Act, 1976 would be outside the competence of Parliament unue1·
the Proviso to Art. 83(2). The question which thus requires to be
considered is whether there was a Proclamation of Emergency in
,~ ·operation at the date when the House of People (Extension of Duration)
Act, 1976 was enacted. The learned Solicitor General appearing on
c
behalf of the Union of India contended that not one but two Procla-
mations of Emergency were in operation at the material date; one
Proclamation issued by the President on 3rd December, 1971 and the
other Proclamation issued on 25th June, 1976. By the first Proclama·
tion, the President in exercise of the powers conferred under cl. (1) of D
Art. 352 declared that a grave emergency existed whereby the security
of India was threatened by external aggression. This Proclamation
was approved by Resolutions of both the Houses of Parliament on ,
4th December, 1971 as contemplated under cl. 2(c) of Art. 352 and
'it continued in operation until 21st March, 1977 when it was revoked
·by a Proclamation issued by the President under cl'ause 2(a) of Art. E
352. The first Proclamation of Emergency was thus in operation at
the date when the House of People (Extension of Duration) Act, 1976
·wa11 enacted by Parliament. The second Proclamation of Emergency
was issued by the President under Art. 352 cl. (l} and by this Procla·
mation, the President declared that a grave emergency existed whereby
the security of India· was threatened by internal disturbance. This F
Proclamation was also in operation at the date of enactment of the
House of People (Extension of Duration) Act, 1976 since it was not
revoked by another Proclamation issued under cl. 2(a) of Art. 352 un-
til 21st March, 1977. The argument of the petitioners h-Jwever, was
that, though the first Proclamation of Emergency was validly issued
G
.by the President on account of external aggression committed by
Pakistan against India, the circumstances changed soon thereafter .and
the emergency which justified the issue of the Proclamation ceased to
exist and consequently the continuance of the Proclamation was mala-
fide and colourable and hence the Proclamation, though not revoked
until 21st March, 1972, ceased in Jaw to continue in force and could H
not be said to be· in operation at the material date, namely, 16th
-February, 1976. So far as the second Proclamation of Emergency is
.concerned, the petitioners contended that it was illegal and void on
304 SUPREME COURT REPORTS [1981] 1 S.C.R-

A three grounds, namely; (1) whilst the first Proclamation of Emergencr
was in operation, it was not competent to the President under Art. 352:
clfluse (1) to issue another Proclamation of Emergency; (2) the second
Proclamation of Emergency was issued by the President on the advice
of the Prime Minister and since this advice was given by the Prime
Minister without consulting the Council of Ministers, which alone was,
B competent under the Government· o.f India (Transaction of Busines,s)>
Rules, 1961 to deal with the question of issue of ·a Proclamation of
Emergency, the second Proclamation of Emergency could not be said
to have been validly issued by the Presikloot; and (3) there was i!lO·
threat to the security of India on account of internal disturbance, which

1
could justify the issue of a Proclamation of Emergency and the second
c Proclamation was issued, not for a legitimate purpose sanctioned by
clause (I) of Art. 352 but with a view to perpetuating the Prime·
Minister in power and :it was clearly malafide and for collateral pur- ·
pose and hence outside the power of the President under Art. 352 cl.
(1). The petitioners had to at.tack the validity of both the Proclamations
of Emergency, the continuance of one and the issuance of another,
D because even if one Proclamation of Emergency was in operation at
the relevant time, it would be sufficient to invest Parliament with
power to enact the House of People (Extension of Duration) Act, 1976..
Obviously, therefore, if the first Proclamation of Emergency was found
to continue in operation at the date of enactment of the House of·
People (Extension of Duration) Act, 1976, it would be unnecessary
E
to consider whether the second Proclamation of Emergency was valid- -
ly issued by the President. I will accordingly first proceed to examine ·
whether the first Proclamation of Emergency which was validly issued
by the President ceased to be in force by reason of the alleged change
in circumstances and was not operative at the relevant time. It is only
F if this question is answered in favour of the petitioners that it would·
become necessary to consider the question of validity of the second
Proclamation of Emergency.
I think it is necessary to emphasize even at the cost of repetition.
that it was not the case of the petitioners that the first Proclamation
0£ emergency when issued. was invalid. It is a historical fact which can--
G not be disputed that Pakistan committed aggression against India on
3rd December, 1971 and a grave threat to the security of India arose
on account of this external aggression. The President was, therefore,.
clearly justified in issuing the first Proclamation of Emergency under
cl. (1) of Art. 352. The petitioner~, however, contended that the cir-
cumstances which warranted the issue of the first Proclamation of Erner- -
H
gency ceased to exist and put forward various facts1 such as the termi~
nation of hostilities with Pakistan on 16th December, 1971, the sign-~ '
ing of the Simla Pact on 2nd June, 1972, the resumption of postal and
MINERVA MILLS LTD. v. UNION (Bhagwati, ],) 305

tele-communication links on 4th November, 1974 and . the conclusion
of trade agreement between India and Pakistan on 24th November,
1974 as also sevetal statements made by the Prime Minister and other
Ministers from time to time to show that the threat to the security
of India on account of external aggression ceased long befori;: 1975
and there was absolutely no justification whatsoever to continue the
Proclamation and hence the continuance of the .Proclamation was mala- B
fide and in colourable exercise of power and it was1 liable to be declar-
ed as unconstitutional and void. I do not think this contention of
the petitioners can be sustained on a proper interpretation of the pro-
.. ..,,,._ visions of Art. 352. This Article originally consisted of three clauses,
but by section 5 of the Constitution (Thirty-eighth Amendment) Act,
1975, clauses (4) and (5) were added in this Article and thereafter, by c
a further amendment made by sec. 48 of the Constitution (Forty-
second Amendment) Act, 1976, another clause (2A) was introduced
after cl. (2). The whole of this Articl~ is not relevant for our purpose ·
but I shall set out only the material provisions thereof which have a
bearing on the controversy between the parties ;
352(1) : "If the President is satisfied that a grave emergency
exists hereby the Security of India or of any part of the territory
thereof is threatened, whether by war or external aggression or
internal disturbance, he may, by Proclamation, make a declara-
tion to that effect (in respect of the whole of India or· of such
·part of the territory thereof as may be specified in the Proclama- E
tion).
(2) A Proclamation issued under cl. (1)-
(a) mav be revoked (or varied) ~Y a subsequent Pro-
clamation;
(b) shall be laid before each House of Parliament; F
(c) shall cease to operate at the expiration of two months
unless before the expiration of that period it has been approv-
ed by resolutions of both Houses of Parliament.
•.•·····························································
G
(2A) ... :.............................. ·........... ··················

(3) A Proclamation of Emergency declaring that the security
of India or of any pa.rt of the territory thereof is threatened by
war or by external aggression or by internal disturbance may be H
made before the actual occurrence of war or of any such aggres-
sion or disturbance if the President is satisfied that there is
SvPREME COURT REPORTS [1981] 1 S.C.R.

A imminent danger thereof.
(4) The power conferred on the President by this article shall
include the· power to issue different Proclamations on different
grounds, being war or external aggression or internal disturbance
or imminent danger of war or external aggression or internal
B disturbance whether or not there is a Proclamation already issued
by the President under cl. (1) and such Proclamation is in
operatioo.
(5) Notwithstanding anything in this Constitution : -
(a) the satisfaction of the President mentioned in clauses
c (I) and (3) shall be final and conclusive and shall not be
questioned in any Court on any ground ;
(b) subject to the provisions· of cl. (2), neither the Supreme
Court nor any other court shall have jurisdiction to entertain ·
any question, on any ground, regarding the validity of-
(i)i a declaration made by Proclamation by the Presi-
D
dent to the effect stated in clause (l); or
(ii) the continued operation of such Proclamation."

Now it is obvious on a plain natural construction of the language of
cl. (l) of Art. 352 that the President can take action under this clause
E only if he is satisfied that a grave emergency exists whereby the secu-
rity of India or any part of the territory thereof is threatened, whether
by war or external aggression or internal distu.rbance. The satisfac-
tion of the President "that a grave emergency exists whereby the secu-
rity of India .... , ............. is threatened whether by war or external
aggression or internal disturbance" is a condition precedent which
F must be fulfilled before the President can issue a Proclamation under
Art. 352 cl. (1). When this condition precedent is satisfied, the Presi-
dent may exercise the power under cl. (1) of Art. 352 and issue a
Proclamation of Emergency. The constitutional implications of a
declar:ation of emergency under Art. 352 cl. QI) are vast and they are
provided in Articles 83(2), 250, 353, 354, 358 and 359. The emergency
G being an exceptional situation arising out of a national crisis certain
wide and sweeping powers have been conferred on the Central Gov-
ernment and Parliament with a view to combat the situation and
restore normal conditions. One such power is that given by Art. 8~
(2), which provides that while a Proclamation of Emergency is in ope-
ration, Parliament may by law extend its duration for a pe1iod not
H exceeding one year at a time. Then another power conferred is that
under Art. 250 which says that, while a Proclamation of Emergency
is in operation, Parliament shall have the power to make laws for th"'
MINERVA MILLS LTD. v. UNION (Bhagwatl, ].) 307

whole or any· part of the territory of India with respect to any of the
:matters enumerated in the State List. The effect of this provision is
that the federal structure based on separation of powers is put out
of action for the time being. Another power of a similar kind is
.given by Art .. ~53 which provides that ·during the time when a Pro-
·clamation of Einergency is in force, the executive powers of the Union
.shall extend to the giving of directions to any State as to the manner B
in which the executive power thereof is to be exercised. This provision
also derogates from the federal principle which forms the basis of the
Constitution. Then we come to Art. 354 which confers power on the
President, during the operation of a Prociamation of Emergency, to
-Oirect that provisions relating to distribution of revenues under Arts.
268 to 270 shall have effect subject to such modifications or excep- c
tions as he thinks fit. Another drastic consequence of the Proclama-
tion of Emergency is that provided in Article 358 which suspends the
operation of the Fundamental Rights guaranteed under Art. 19 while
.a Proclamation of Emergency is in operation. Art. 359 cl. (1} em•
powers the President during the operation of a Proclamation of Emer-
D
.gency to make an Order suspending the enforcement of any of the
Fundamental RigMs conferred by Part III and cl. (lA} introduced
'by the Constitution (Thirty Eighth Amendment) Act, 1975 suspends the
·Operation of those Fundamental Rights of which the enforcement ha·s
been suspended by the President by an Order made under clause (1).
These are the drastic consequences which ensue upon the making of a E
-Oeclaration of emergency. The issue of a Proclamation of Emergency
makes serious inroads into the principle 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 conse-
quences and it has the effect of disturbing the entire power structure
under the Constitution. But it is a necessary power given to the Cen- F
tral Government with a view to arming it adequately to meet an ex-
·Ceptional situation arising out of threat to the security of the country
-on account of war or external aggressio~ 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. G
It will be convenient at this stage to consider the question as to
whether and if so to what extent, the Court can review the constitu-
tionality of a Proclamation of Emergency issued under Article 352
cl. (1). There were two objections put forward on behalf of the res-
pondents against the competence of the Court to examine the question H
-0f validity of a Proclamation of Emergency. One objection was that
-the question whether a grave emergency exists whereby the security of
India or any part thereof is threatened by war or external aggression
308 SUPREME COURT REPORTS [1981] l S.C.R.

A or internal 'disturbance is essentially a political question entrusted by
the Constitution to the Union Executive and on that account, it is not
justiciable before the court. It was urged that having regard to the
political nature of the probkm, it was not amenable to judicial deter-
mination and hence the court ri:mst refrain from inquiring into it. The
other objection was that in any event by reason of clauses (4 and 5>
B of Article 352, the Court had no jurisdiction to question the satisfac-
tion of the President leading to the issue of a Proclamation of Emer-
gency or to entertain any question regarding the validity of the Pro-
clamation of Emergency or its continued operation. Both these objec-
tions are in my view unfounded and they do not bar judicial rev:ew
of the validity of a Proclamation of Emergency issued by the President:
c under Article 352 cl. (1). My reasons for saying so are as follows:

It is axiomatic that if a question brought before the court is purely
a political ques·tion not involving determination of any legal or con-
stitutional right or obligation, the court would not entertain it, since
the court is concerned only with adjudication of legal rights and liabi-
D
lities. · But merely because a question has a political complexion, that
by itself is no ground why the court should shrink from performing
its duty under the Constitution, if it raises an issue of constitutional
determina.tion. There are a large number of decisions in the lJnited
States where the Supreme Court has entertained actions having a poli-
tical complexion because they raised constitutional issue. Vide
E
Gomallion v. Lightfoot(!) and Baker v. Carr(2) . . The controversy
before the court may be political in character, but so long as it in-
volves determination of a constitutional question, the court cannot
decline to entertain it. This is also the view taken by Gupta, J. and'.
myself in State of Rajasthan v. Union of India(3). I poin 1ed nut ir..
F my judgment in that case and I still stand by it, that 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 would be its constitutional obligation to do so. I have said
1
G before I repeat again that the Constitution is suprema lex. the para-
mount law of the land, and there is no department or branch of govern-
ment above or beyond it. Every organ of government, be it the exe- +
cutive or the legislature or the judiciary, derives its authority from
the Constitution and it has to act within the limits of its authority and'
whether it has done so or not is for the Court to decide. The Court is;
H
(1) [1960] 364 U.S. 339.
(2) [1962] 369 U.S. 186.
(3) [19771 3 sec 592.
MINERVA MILLS LTD. ".· UNION (Bhagwati, J.) 30 9

the ultimate interpreter of the Constitution and when there is mani-
festly unauthorised exercise of power under the Constitution, it is the
duty of the Court to intervene. Let it not be forgotten, that to this
Court as much as to other branches of government, is committed the
conservation and furtherance of constitutional values. The Court's
' task is to identify those values in the constitutional plan and to work
them into life in the cases that reach the court. "Tact and wise B
restraint ought to temper any power but courage and the acceptance
of responsibility have their place too." The Court cannot and should
not shirk this responsibility, because it has sworn the oath of allegiance
to the Constitution and is also accountable to the people of this
country. It would not therefore, be right for the Court to decline to
examine whether in a given case there is any constitutional violation c
involved in. the President issuing a Proclamation of Emergency under
cl. ( 1) of Article 352.
But when I say this, I must make it clear that the constitutional
jurisdiction of this Court does not extend further than saying whether
the limits oil the power conferred by .the Constitution on the President
D·
have been observed or there is transgression of such limits. Here the
only limit on the power of the President under Article 352 cl. (1} 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 or external aggression or internal disturbance. The satisfac-
tion of the President is a subjective one and cannot be decided by
reference to any objective tests. It is deliberately and advisedly sub-
jective because the matter in respect to which he is to be satisfied is of
such a nature that its decision must necessarily be left to the Execu-
tive 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 a situa-
tion of grave emergency by reason of the security 9f the country being
threatened by war or external aggression or internal disturbance. It
is not a decision which can be based on what the Supreme Court of
the United States has described as "judiciably discoverable and manage-
able standards". It would largely be a political judgment based on
assessment of diverse and varied factors, fast,changing situations, poten- G
tial consequences and a host of other imponderables .. It cannot there-
+ fore, by its very nature, be a fit subject matter for adjudication by
judicial methods and materials and hence i.t is left to the subjective
satisfaction of the Central Government which is best in a position to
dec:de it. The court cannot go into the question of correctness or
adequacy of the facts and circumstances on which the satisfaction of I{:
the Central Government is based. That would be a dangerous exercise
for the Court, bo1h because it is not a fit instrument for determining
a question of this kind and also because the court would thereby usurp
3 10 SUPREME COURT REPORTS [1981] 1 S.C.R.

A the function of the executive and in doing so, enter the "political
thicket" which .it must avoid, if it is to retain its legitimacy wit~1 the
peopk But one thing is certain that if the satisfaction is mala fide or
is based on wholly extraneous and irrelevant grounds, the cour· would
have jurisdiction to examine it, because in that case there would be
no satisfaction of the President in regard to the matter oh which he
is required to be satisfied. The satisfaction of the President is a condi-
tion precedent to the exercise of powel.' under Art. 352 cl. (1) and if it
can be shown that there is no satisfaction of the President at a'Il, the
exercise of the power would be constitutionally invalid. It is true
that by reason of clause (5Xa) of Article 352, the satisfaction of the
Pres:dent is made final and ·~onclusive, and cannot be assailed on any
c ground, but, as I shall presently point out, the power. of judicial review
is a part of the basic structure of the Constitution and hence this
provi:sion debarring judk:ial review would be open to attack on the
ground that it is unconstitutional and void as damaging or destroying
the basic structure. This attack against constitutionality can, however,
D be averted by reading the provision to mean and that is how I think
it must be read that the immunity from challenge granted by it does
not apply where the challenge is not that the satisfaction is improper
or unjustified but that there is no satisfaction at all. In such a case,
it is not the satisfaction arrived at by the President which is challeng-
·ed but the existence of the satisfaction itself. Where ther·efore the
.IE satisfaction fa absurd or perverse or mala fide or based on a \Vholly
extraneous and irrelevant ground, it would be no satisfaction at all
and it would be liable to be challenged before a court, notwithstand-
ing clause (5Xa) of Article 352. It must, of course, be conceded that
in most cases it would be difficult if not impossible, to challenge the
exercise of power under Article 352 clause (1) even on this limited
F ground, because the facts and circumstances on which the satisfaction
is based would not be known, but where it is possible, the existence
of the' satisfaction can always be challenged on the ground that it is
· mala fide or based on a wholly extraneous or irrelevant ground.
It is true that so far there is no decision of this court taking the
view that the validity of a Proclamation of Emergency can be exa-
mined by the co~ though within· these narrow limits. But merely
because there has been no occasion for this Court to pronounce on
the question of justiciability of a Proclamation of Emergency no infe-
rence can be diawn that a Proclamation of Emergency is immune
from judicial scrutiny. Thie question whether or not a Proclamation
of Emergency can be judicially reviewed on the ground that it is mala
H fide nr an abuse of power of the President did arise before this Court
in Gulam Sarwai v. Union of India('),· but the court declined to
(I) [1967] 2 SCR 271.
MINERVA MILLS LTD. v. UNION (Bhagwati, J.) . 311

express any opinion on this question since no material was placed before A
the Court making out a case of mala tides or abuse of power. Un-
doubtedly, in the subsequent decision of this Court in Bhutnath Mato v.
State of West Bengal(1) there are one or two observations which might
seem to suggest at first blush that a Proclamation of Emergency being
a political matter is "de hors Ol)r ken", but if one looks closely. at the
judgment of Krishna Iyer, J. in that case, it wHl be apparent that he B
does not lay down that a Proclamation of Emergency cannot be review-
ed by the judiciary even on a limited ground and leaves that question
open and rejects the contention of the petitioner challenging the con·
tinuance of Emergency only on the ground that "the onus of establish-
ing the continuation of Emergency and absence of any ground what-
ever for the subjective 'Satisfaction of the President, heavy as it is, has c
hardly been discharged, "and consequently it would bi: an academic
exercise in constitutional law to pronounce on the question of judic'.al
reviewability of a Proclamation of Emergency. There is thus no deci·
sion of this court holding that a Proclamation of Emergency is be-
yond the judicial ken and I am not fettered by any such decision
compelling me to take a view different from the one which I have
expounded in the preceding paragraph of this opinion. In fact, 'the
judgment of Gupta, J. and myself in State of Rajasthan v. Umbn
of India (supra) completely supports me in the view I am taking.
A Proclamation of Emergency is undoubtedly amenable to judicial
review though on the limited ground that no satisfaction as required by
Article 352 was arrived at by the President in law or that the satis- E
faction was absurd or perverse or mala fide or based on an extraneous
or irrelevant ground.

Now the question arises whether the continuance of a Proclama-
tion of Emergency valid when issued can be challenged before the
court on the ground that the circumstances which necessitated , or F
justified its issuance have ceased to exist. Can the court be asked
to declare that the Proclamation of Emergency has ceased to exist and
is no longer in force or does the Proclamation continue to be in force
until rt is revoked by another Proclamation under clause 2(a) of Article
352. The answer to this question depends on the interpretation of
G
clause (2) of Article 352. That clause says in sub-clause (a) that a
Proclamation of Emergency issued under clause (1) may be revoked
by a subsequent Proclamation. Sub-clause (b) of that clause requires
that a Proclamation issued under clause (1) shall be laid before each
House of Parliament and under sub-clause (c) such a Proclamation
ceases to operate at the expiration of two months, unless it has been H
approved by both Houses of Parliament before the expiration,of two
(!) [1974] 1 s.c.c. 645.
312 SUPREME COURT REPORTS [1981] 1 S.C.R.
I

months. It is clear from this provision that a Proclamation of Emer-
gency validly issued under clause (1) would continue to operate at
least for a pefi.od of two months and if before the expiration of that
period, it has been approved by resolutions of both Houses of Parlia-
ment, it would continue to operate further even beyond the period of
rwo months, and the only way in which it can be brought to an end
B is by revoking it by another Proclamation issued under clause 2(a).

I
There is no other way in which it can cease to operate. Neither Article
352 nor any other Article of the Constitution contains any provision
saying that a Proclamation of Emergency validly issued under clause
(1) shall cease to operate as soon as the circumstances warranting its
issuance have ceased to exist. It is, therefore, clear on a plain natural
interpretation of the language of sub-clauses (a) to (c) of clause (2)
that so long as the Proclamation of Emergency is not revoked by ano-
ther Proclamation under sub-clause (2) (a), it would continue to be
in operation irrespective of change of circumstances. It may be point-
ed out that this interpretation of the provision of clause (2) of Article
352 is supported by the decision of this Court in Lakhan Pal v. Union
D
of /ndia( 1) where dealing with a similar contention urged on behalf of
the petitioner that the continuance of the emergency which was declar-
ed on 26th October, 1962 was a fraud on the Constitution, this Court
speaking through Sarkar, C. J. pointed out that "the only way a pro-
clamation ceases to have effect is by one of the events mentioned in
E this clause" and since neither had happened, the Proclamation must
be held to have continued in operation. The petitioner urged in that
case that armed aggression which justified the issue of the Proclamation
of Emergency had come to an end and the continuance of the ,Procla-
mation was therefore unjustified. But this contention was negatived
on· the ground that the Proclamation having been approved by the
F two Houses of Parliament within a period of two months of its issu-
ance, it could cease to have effect only if revoked by another Procla-
mation and that not ·having happened, the Proclamation continued to
be in force. It is true that the power to revoke a Proclamation of
Emergency is vested only in the Central Government and it is possible
that the Central Government may abuse this power by refusing to re-
voke a Proclamation of Emergency even though the circumstances
justifying the issue of Proclamation have ceased to exist and thus pro-
long baselessly the state of emergency obliterating the Fundamental
Rights and this may encourage a totalitarian trend. But the Primaty
and real safeguard of the citizen against such abuse of power lies in
"the good sense of the people and in the system of representative and
responsible Government" which is provided in the Constitution. Addi-
tionally, it may be po~sible for the citizen in a given case to move
(!) [1966] Supp. SCR 209.

I,
MINERVA MILLS LTD. v. UNION (Bhagwati, J.) 313

1he c:nurt for issuing a writ of mandamus for revoking the Proclama- A
1ion of Emergency if he is able to show by placing clear and cogent
material before the court that there is no justification at all for the
continuance of the Proclamation of Emergency. But this would· be a
very heavy onus because it would be entirely for the executive Gov-
ernment to be satisfied whether a situation has arisen where the Pro-
clamation of Emergency can be revoked. There would be so many B
facts and circumstances and such diverse considerations to be taken
into accollnt by the executive Government before it can be satisfied
that there is no longer any grave emergency whereby' the security of
India is threatened by war or external aggression or internal distur-
bance. This is not a matter which is a fit subject matter for judicial "''"<
·determination and the court would not interfere with the satisfaction c
of the executive Government in this regard unless it is clear on the
material on record that there is absolutely no justification for the con-
tinrumce of the Proclamation of Emergency and the Proclamation is ·
being conti:nued mala fide or· for a collateral purpose. The court
may in such a case, if satisfied beyond doubt, grant a writ of manda-
mus directing the Central Government to ·revoke the Proclamation of D
Emergency. But until that is done, the Proclamation of Emergency
would continue in operation and it cannot be said that, though not
revoked by another Proclamation, it has still ceased to be in force.
Here, in the present case it was common ground that the first Procla-
mation of Emergency issued on 3rd December 1971 was not revoked
by another Proclamation under clause 2(a) of Article 352 until 21st E

t
March W77 and hence at the material time when the House of People
((Extension of Duration) Act, 1976 was passed, the first Proclamation
/-- -
<Of Emergency was in operation.
Now if the first Proclamation of Emergency was in operation at
the relevant time, it would be sufficient compliance with' the require- F
ment of the proviso to clause (2) of Article 83 and it would be un-
:necessary to consider whether the second Proclamation of ' Emerge.ncy
was validly issued by the President. But, contended the petitioners,
the House of People (Extension of Duration) Act, 1976 on a proper
interpretation of section 2 postulated the operational existence of both
the Proclamations of Emergency and if either of them was not in G
ex.istence at the material date, the Act would be inoperative and would
not have the effect of extencling the duration of the Lok Sabha. It
was therefore not enough for the respondents to establish that the
first Proclamation of Emergency was in operation at the relevant date,
but it was further necessary to show that the second Proclamation of
'Emergency was also in operation and hence it was necessary to con- H
sider whether the second Proclamation of Emergency was validly issu-
·ed by the President. The respondents sought to answer this contention
314 SUPREME COURT REPORTS [f981] 1 S.C.R.

A of the petitioners by saying that on a proper conslil1lction of the·
· language of section 2, it was not a condition precedent to the operation
of the House of People (Extension of Duration) Act, 1976 that both
the Proclamations of Emergency should be in operation at the date when
the Act was enacted. The House of People (Extension of Duration)

I
Act, 1976 no doubt referred to both the Proclamations of Emergency
B being in operation but that was merely, said the respondents, by way of
recital and it was immaterial whether this recital was correct or in-
correct, because so long as it could be objectively established that one
Proclamation of Emergency at least was in operation, the require-
ment of the proviso to Article 83 clause (2) would be satisfied and
the Act would be within the competence of Parliament to enact. These
c rival contentions raised a· question of construction of. section 2 of the
House of People (Extension of Duration) Act, 1976. It is a simple
question which does not admit of much doubt or debate and a plain,
grammatical reading of section -2 'is sufficient to answer it. Jt wouldt
be convenient to reproduce section 2 which co-incidentally happens to
be the only operative section of the Act :
D
"Sec. 2 : The period of five years (being the period for which
the House of the People may, under clause (2) of Article 83 of
the Constitution, continue from the date appointed for its first
meeting) in relation to the present House of the People shall, while
the Proclamations of Emergency issued on the 3rd day of
E December, 1971 and on the 25th day of June, 1975, are both in,
operation, be extended for a period of one year :
Provided that if both or either of the said Proclamations
cease or ceases to operate before the expiration of the said period
o~ one year, the present House of the People shall, unless pre-
viously dissolved under clause (2) of Aajcle 83 of the Constitution.
F
continue until six months after the cesser of operation of the said
Proclamations or Proclamation but not beyond the said period of
one year."
While interpreting the language of this section, it is necessary to bear
in mind that the House of People (Ex.tention of Duration) Act, 1976
G was enacted under the proviso to clause (2) of Article 83 for the pur-
pose of extending the duration of the Lok Sabha and it was a condition
precedent to the exercise of this power by Parliament that there should
be a Proclamation of Emergency in operation at the date when the
Act was enacted. Now according to Parliament there were two Pro-
clamations of Emergency which were in operation at the material date.
H one issued on 3rd December 1971 and the other on 25th June 1975
and the condition precedent for the exercise of the power under the
proviso to cl. (2) ofl Article 83 to enact the House of People (Extension
MINERVA :MILLS LTD. v.I UNION (Bhagwati, J.) 315

of Duration) Act, 1976 was satisfied. It was, from the point of view A
of legislative drafting, not necessary to recite the fulfilment of this
condition precedent, but the draftsman of the Act, it seems, thought
it advisable to insert a recital that this condition precedent was satisfied
and he, therefore, introduced the words "while the Proclamations of
Emergency issued on the 3rd day of December, 1971 and on the 25th
B.
day of June, 1975 are both in operation" before the operative part in
sec. 2 of the Act. These words were introduced merely' by way of
recital of the satisfaction of the conditio1n, precedent for justifying the
exercise of the power under the proviso to clause (2) of Article 83 and
they were not inte~ded to lay down a condition for the operation of
sec. 2 ofl the Act. Section 2 clearly and in so many terms extended
the duration of the -Lok Sabha for a period of one year and this ex-
c
tension was not made dependent on both the Proclamations of Emer-
gency being in operation at the date of the enactment of the Act. lt
was for a definite period of one year that the extension was effected
and it was not co-extensive with the operation of both the Proclama-
tions of Emergency. The extension for a period of one year was made I>
once and for all by the enactment of section . 2 and the reference to
both the Proclamations of Emergency being in operation was merely
for the purpose of indicating that b9th the Proclamations of Emergency
being in operation, Parliament had competence ·to make the extens.ion.
It was therefore not at all necessary for the efficacy of the extension that
both the Proclamations of Emergency should be in operation at the E
date of enactment of the Act. Even if. one ProC!amation of Emer-
gency was in operation at the material date, it would be sufficient to
attract the power of Parliament under the proviso to Art. 83 clause
(2) to ·enact the Act extending the duration of the Lok Sabha. Of
course, it must be conceded that Parliament proceeded on the assump-
tion that both the Proclamations of Emergency· were in force at the F
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 powe{,
so long·a.<i there:was one Proclamation of Emergency in operation which
authorised Parliament to extend the duration of the Lok'Sabha UIIlcler
G
the proviso to clause (2) of Article 83. It is true that the proviso to
sec. 2 enacted that if both or either of the Proclamations of Emer-
gency 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 tesiser of operation of the said Proclamations or Proclamation,
not going beyond the period of one year, but the opening part of this
H
proviso can have application only in relation to a Proclamation of Emer-
gency which was in operation at the date of enactment of the Act. If
such a Proclamation of Emergency which was in operation at the
. 21-·646 S.C. India/SO
316 SUPREME COURT REPORTS [1981] I S.C.R.

material date. ceased to operate before the expiration of the extended
period of one year, then the term of the Lok Sabha would not imme-
diately 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

I
Proclamation of Emergency if it was void when issued. In such a
B case, the second Proclamation not being valid at all at the date of issue
would not be in operation at all and it could not· cease to operate
after the date of enactment of the Act. The proviso would in that
event have to be read as relating only to the first Proclamation of
Emergency, and since that Proclamation of Emergency continued until
it was revoked on 21st March, 1977, the duration of the Lok Sabha
c was validly extended for a period of one year from 18th Marcl;i, 1976
and hence there was a validly constituted Lok Sabha on the dates
when the Constitution (Fortieth Amendment) Act, 1976 and the Con-
stitution (Forty-second Amendment) Act, 1976 were passed by Parlia-
ment. On this view it is not at all necessary to consider whether the
second Proclamation of Emergency was validly issued by the President.
It is the settled .practice of this Court not to say more than is necessary
to get a safe resting place for the ciecisfon and I do not think that any
useful purpose will be served by examining . the various ground~ of
challenge urged against the validity of the second Prnclamation of
Emergency, particularly since clause (3) has been introduced in Art.
.3:52 by the Constitution (Forty-Fourth Aiilendment) Act, 1978 requir-
E
ing that a Proclamation of Emergency shall not be issued· by the Pre-
sident unless the decision of the Union Cabinet recommending the
issue of such Proclamation has been communicated to him in writing
and Clause (9) of Article 352 introduced by the Constitution (Thirty-
eighth Amendment) Act, 1975 and renumbered by the Constitution· ,_,,'
F (Forty-Fourth Amendment) Act, 1978 empowers the President to
issue different Proclamations on different grounds. I would, therefore.
reject the challenge against the validity ·of the Constitution (Fortieth
Amendment) Act, 1976 and the Constitution (Forty-second Amend-
ment) Act, 1976 based on the ground that on the dates when these
Constitutor Amending Acts were enacted, the Lok Sabha w~s not
G validly in existence.
That takes me to the challenge against the constitutional validity '1
of the amendment made in Article 31C by section 4 of the: Constitution
(Forty-second Amendment) Act, 1976. This amendment s1;1bstitutes
the words "all or any of the principles laid down in Part IV" for the
words "the principles specified in clause (b) or clause (c) of 'Article 39"
H and so amended; Article 31C provides that "Notwithstanding anything
contained in Article 13. no law giving effect to the. policy of the Stat'
towards securing all or any of the principles laid down in Part IV shall
MINERVA MILLS LTD. v. UNION (Bhagwati, J.) 31 7

be deemed to be void on the ground that it is inconsistent with or takes A
away. or abridges any of the rights conferred by Article 14 or Article
19". The amended Article 31C gives pdmacy to Directive Principles
over Fundamental Rights in case of conflict between them and the ques-
tion is whether this amendment is in any 'way destructive of the basic
structure of the Constitution. To answer this question satisfactorily.
it is necessary .to appreciate the inter-relationship between Fundamen- B
tal Rights and Directive Principles ~nd for this purpose it would be
useful to trace briefly the history of their enactment in the Constitu-
tion. The genesis of Fundamental Rights and Directive Principles is
to be found in the freedom struggie which the people of India waged
against the British rule under the aegis of the Indian National Con-
gres.s led by Mahatma Gandhi, Jawaharlal Nehru and other national c
leaders. These great leaders realised the supreme importance of the
political and civil rights of the individual, because they knew from their
experience of the repression under the British rule as also from the
recent events of history including the two World Wars that these rights
are absolutely essential for the d-ignity of man and development of his
D
full personality. But, at the same time, they were painfully conscious
that in the socio-economic conditions that prevailed in the country,
only an infinitesimal fraction .. of the people would be able to enjoy
these civil and political rights. . There were millions of people in the
country who were steeped in poverty and destitution and for them,
these civil and political rights had no meaning. It was realised that E
to the la·rge majority of people who are living an almost sub-human
existence in conditions ·of object poverty and for whom life is one long

t_ unbroken story of want and destitution, notions of· individual freedom
and liberty, though representing some of the most charished values of
free society, would sound as empty words bandied about only in the
drawing rooms of the rich and well-to-do and the only solution for F (
making these rights meaningful to them was to re-make the material
conditiol).s and usher in a new social order where socio-economic justice
will inform all institutions of public life so that the pre-conditions of
fundamental liberties for all may be secured. It was necessary to create
socio-economic conditions in which every citizen of the country would
be able to exercise civil and politicaI rights and they will not remain G
the preserve of only a fortunate few. The national leaders, therefore,
laid the greatest stress on the necessity of bringing about socio-econo-
mic regeneration and ensuring social and economic justice. Mahatma
Gandhi, the father of the nation, said in his inimitable style in words,
full of poi~nancy :
"Economic equality is the master key to non-violent inde- H
pendence. A non-violent system of Government' is an impossi-
bility so long as the wide gulf between! the rich and the hungry
I .
318 SUPREME COURT REPORTS [1981] 1 S.C.R.

A millions persists. The contrast between the palaces of New Delhi
and the miserable hovels of the poor labouring class cannot last
one day in a free India in which the poor will ~njoy the same
power as the rich in the land. A violent and bloody revolution is
a certainty one day, unless there· is voluntary abdication of riches
and the power that riches give and sharing them for common
B good".
Jawaharlal Nehru also said in the course of his presidential address
to the Lahore Congress Session of 1929: ·
"The philosophy of socialism has gradually· permeated the
entire structure of the society, the world over and almost the only
c point in dispute is the phase and methods of advance to its full
!realisation. India wi]] have to go that way too if she seeks to end
her poverty and inequality, though she may evolve her own
methods and may adapt the ideal to the genius of her race."
Then again, emphasising the intimate and inseverable connection bet-
D ween political independence and social and economic freedom, he said:
"If an indigenous Government took the place of the foreign
Government and kept all the vested interests intact, this would
not be even the shadow of freedom ...................................... .
... ......... ...·....... ........... ... .................. ....... .. ......... ... India's
E immediate :goal can only be considered in terms of the ending of
the exploitation of her people. Politically, it must mean indepen-
dence and cession of the British ·connection; · economica1!y and
socially, it must mean the ending of all special class privileges and
vested interests."
The Congress Resolution of 1929 also emphasised the same theme of
_J
F, socio-economic reconstruction when it declared:
"The great poverty and misery of. the Indian people are
due, not only to. foreign exploita.tion in India, but also to the eco-
nomic ·stru~ture of society, which the alien rulers support so-that
their exploitation may continue. In order therefore, to remove
G. this poverty and misery and to ameliorate the. condition of: the
Indian masses, it is essential to make revolutionary changes in the
present economic and social structure of society and to remove
the gross inequalities."
The Resolution passed by the Congress in 1931 proceeded to
declare that ia order to end the exploitation of masses, political free-
H dom must include social and economic freedom of the starving mil-
lions. The Congress Election Manifesto of 1945 also reiterated the
same thesis when it said that "the most vital and urgent of India's..
' ··.. . MINERVA 1!JLLS Lm. v. UNION (Bhagwati, I.) 319

problems is bow to ;e-nov_, t:1,, curse of poverty and raise the standard K'
of masses" and for luda. purpose it is "necessary.......................... .
to prevent the concentration of wealth and power in the hands of indi-
, vidua!s and groups and to prevent vested interests inimical tO society
from "growing". This was the socio-economic philosophy which
inspired the framers of the -Constitution to believe that:the ·guarantee
of individual freedom was no doubt necessary to be included in the · B
Constitution~ but it was ·also essential to make provisions for re-
structuring the socio-economic order · and ·ensuring social and eco-
nomic justice to the people. This ·was emphasized by Jawaharlal
Nehru when, speaking on .the resolution regarding the aims and ob·
jectives before the Constituent Assembly. he said:
c
~ 'vrbe first. task of this Assembly is to free India through
a new Constitution. to feed the starving people and clothe the
naked masses and give every Indian fullest opportunity to devdop
_,( · himself according to bis capacity."
D
In fact. as pointed out by K. Santhanan. a pr0minent southern mem·
ber of the Constituent Assembly. there were three revolutions running
parallel in India since the end of the first World War. The political.
revolution came to an end on 15th August. 1947 when India became
independent but clearly political freedom cannot be an end in itself.
it can only be a means to an end, "that end being" as ·eloquently 'ex-
pressed by- Jawaharlal Nehru "the raising of the people ...... : .•....•..•.
to higher levels and hence the general advancement of humanity." It
was therefore necessary to carry forward and accomplish the social
and economic revolutions. The social revolution was meant to get
India "out· of the mediavalism based on birth. religion. custom and
community and reconstruct her social structure on modern foundations F
of law, individual merit and secular education;• while the economic
revolution was intended 'to bring about "transition from primitive rural
economy to scientific and planned agriculture and industry.''. Dr. Ra-
dhakrishnan who was a member of the Constituent Assembly and who
later became the President of India also emphasized that. Indh must
have a socio-economic revolution designed not only to bring about G
the ·real satisfaction of the fundamental needs of the common man
hut to go mucli deeper and bring· about "a fundamental change in the
structure of Indian society." It was clearly realised by the framers
of· the Constitution that on the achievement of· this great social· and
economic change depended the survival of India. "If we cannot solve
this problem soon... Jawaharlal Nehru warned the Constituent H
·Assembly. ''all our paper Constitutions will become useless and pur-.
poseless." The Objectives Resolution which .set out.the. aims ancl
, 2Z-M6 S.C. India/80

(
320 SUPREME COURT REPORTS [1981] 1 S.C.R.

A objectives before the Constituent Assembly in framing the Constitution
and which was passed by the Constituent Assembly in January 1947
before embarking npon the actual task of Constitution making, there·
fore. expressed the resolve of the Constituent Assembly to frame a
t:bnstitution "wherein shall be guaranteed and secured to all the
P.,ople of India justice. social, economic and political. equality of sta·
B tus and of opportunity before the law : freedom of thought. expres-
• ·. sion; belief, faith, worship. vocation. association and action subjeCt
to law and public morality and wherein adequate safeguards shall be
provided for minority. backward and trilial areas and depressed and
other backward classes." These objective& were incorporated by the
a Constitution makers in the Preamble of the Constitution and they were
sought to be secured by enacting Fundamental Rights in Part III
and Directive Principles in Part IV.

D
. .It is not possible to fit Fundamental
. Rights and. Directive Prin-
ciples in two distinct and strictly defined . categories, but it may be
stated broadly that Fundamental Rights represent civil and political
rights while Directive Principles embody social .and economic rights.
Both are clearly part of the broad spectrum of human rights. If we
look at the Universal Declaration of Human Rights adopted by the
General Assembly of the United Nations on 18th December 1948. we
E find that it contains not only rights protecting individual freedom ,,.__
(See Articles 1 to 21) but also social and economic righis intended to
,ensure socio-economic justice to every one (See Articles 22 to 29).
There are also two International Covenants adopted by the General
Assembly for securing human rights, one is the International Covenant
on Civil and Political Rights and the other is the International Cove-
F nant on Economic, Social and Cultural Rights. Both are international
. instruments relating to human rights. It is therefore· not correct to
say. that Fundamental Rights alone are based on human rights while
_ Directive Principles fall in some category other than human rights.
The soCio-economic rights emboaied in the Directive l'rinciples are as
· much a part of human rights as the Fundamental Rights. Hegde
G and Mukherjea. JJ. were, to my niind, right iQ saying in Keshavananda
Bharati's case at page 312 of the Report that "the Directive Principles
and the Fundamental Rights mainly proceed on the basis o{ human
Rights." 'Together, they are intended to carry out the objeotives set
out in the Preamble of the Constitution and to establish an egalitarian
social order informed with political, social and econ,omic justice and
H ensuring dignity of the individual not only to a few privilegrd persons
but to the entire people. of the country including the have-nots and the
handicapped. tli.e lowliest and the lost,
MINERVA MILLS LTD. v. UNION (Bhagwati, J.) 321

Now it is interesting to note that although Fundamental Rights A
and Directive Principles appear in the Consttitution as distinct entities,
there was no such demarcation made between them during the period
prior to the framing of the Constitution. If we may quote the words
of Granville Austin in his book; "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 B
politics itself". They were both placed on the same pedestal and
treated as falling within the same category compendiously described
as "Fundamental Rights". The Sapru Committee in its Constitutional
Proposals made in 1945, recommended that the declaration of Funda·
mental Rights in its wider sense was absolutely necessary and envisaged
these rights as falling in two classes ; one justiciable and the other c
non-justiciable-the former being enforceable in Courts of law ahd
the latter, not. The Committee however, felt difficulty in dividing the
Fundamental Rjghts into these two classes and, left the whole issue
to be settled by the Constitution-making body with the observation
that though the task wis difficult, it was by no means impossible. This D
suggestion of the Sapru Committee perhaps drew its inspiration from
the Irish Constitution of 1937, which made a distins;tion between justi·
ciable and non-justiciable rights and designated the former as
Fundamental rughts and the latter as Directive Principles of Social
Policy. Dr. Lauter-pacht also made a similar distinction between
justiciable and non-justiciable rights in his "International Bill of the E
Rights of Men". The substantial provisions of this Bill were in two
parts ; Part I dealt with personal or individual rights enforceable in
Courts of Law while Part II set out social and economic rights inca-
pable of or unsuitable for such enforcement. Sir B. N. Rau, who was
the Constitutional Adviser to the Government of India, was con-
siderably -impressed by these ideas and he suggested that the best F
way of giving effect to the objectives set out in the Objectives Resolu-
tion was to split-up the objectives into Fundamental Rights and
Fundamental 'Principles of State Policy, the former relating to personal
and political rights enforceable in Courts of Law and the latter relating
to social and economic rights and other matters, not so enforceable
and proposed that the Chapter on Fundamental Rights may be split· G
up into two parts ; Part A dealing with the latter kind of rights under
the heading "Fundamental Principles of Social Policy" and Part B
dealing with the former under the heading "Fundamental Rights".
The Fundamental Rights Sub-Committee also recommended that "the
list of fundamental rights should be prepared in two parts, the first
part consisting of rights enforceable by appropriate legal process and H
the second consisting of Directive Principles of Social Policy". A
week later, while moving. for consideration, the Interim Report of·
Fundame.ntal Rights, Sardar Vallabhbhai' Patel said:
322 SUPREME COURT REPORTS [198IJ 1 s.c.:R.

A "This is a preliminary report or an interim report because
the Committee when it sat down to consider the question of fixing
the fundamental rights and its incorporation into the Constitution,
came · to the conclusion that the Fundamental Rights should ·be
divided into two parts-the first part justiciable and the other
non-justiciable."
B This position was. reiterated by Sardar Val!abhbhai Patel when he said
while presenting the Supplementary Report: -
"There were two parts of the Report ; one contained Funda-
mental Rights which were justiciable and the other part of the
Report referred to .ijundamental Rights which were not justiciable
but were directives ..................... "
c It will, therefore, be seen that from the point of view of importance
and significance, no distinction was drawn between justiciable and
non-justiciable rights and both were treated as forming part of the
rubric of Fundamental Rights, the only difference being that whereas
the former were to be enforceable in Courts of Law, the latter were
D not to be so enforceable. This proposal of dividing the fundamental
rights into two parts, one part justiciable and the other non-justiciable,
was however not easy of ·adoption, because it was a difficult task to
decide in which category a particular fundamental right .should be
included. The difficulty may be illustrated by pointing out that at onr.
time the right to primary education was included in the draft list of
E Fundamental Rights, while the equality clause figured in the draft list
of Fundamental Principles of Social Polic'y. But ultimately a division
of the Fundamental Rights into justiciable and non-justiciable rights
was agreed-upon by the Constituent Assembly and the former were
designated as "Fundamental Rights" and the latter as "Directive
Principles of State Policy". It has sometimes been said that the
F Fundamental Rights deal with negative obligations of the State not
to encroach on individual freedom, while the Directive Principles
impose positive obligations on the State to take certaiii kind of action.
·But, I find it difficult to subscribe to this proposition because, though
the latter part may be true that the Directive Principles require positive
action to be taken by the State, it is not wholly correct to say that the
G Fundamental Rights impose only negative obligations on the State.
There are a few fundamental rights which have also a positive content
and that has been, to some extent, unfolded by the recent dedsions
of this Court in Hu~'.sainara Khaitoon v. Stale of Biha.r,( 1) Madhav
Hayawadanrao Hoskot v. State of Maharashtra(2) aind Sunil Batra etc.
v. Delhi A dministratz'on & Ors. etc.(3). There are new dimensions of
H
(I) [1979] 3 SCR 160.
(2) [1979] 1 SCR 192.
(3) [1979) I SCR 392.
MINERVA MILLS LTD. v. UNION (Bhagwati, J.) 32~

the Fundamental Rights · which are being opened-up by this Court A
and the entire jurisprudence of Fundamental Rights is in a stage of
resurgent evolution. Moreover, there are three Articles, namely, Art.
15(2), Art. 17 and Art. 23 within the category of Fundamental Rights
which are designed to protect the individual against the action of
other private citizens and seem to impose positive obligations on th~
State to ensure this protection to the individual. I would not, there- B
fore, limit the potential of the Fundamental Rights by subscribing to
the theory that they are merely negative obligations requiring the State
to abstain as distinct from taking positive action. The _only distin-
guishing foature, to my millld, between Fundamental Rights and
Directive Principles is that whereas the former are enforceable in a Court
of Law, the latter, are not. And the reason for this is obviou_s ; it c
has been expressed succinctly by the Planning Commission in the
following words:
"The non-justiciability clause only provides that the infant
State shall not be immediately called upon to account for not
fulfilling the new obligations _laid upon it. A State just awakened D
to freedom with its many pre-occupations might be crushed under I
the burden unless it was free to decide the order, the time, the
place and the mode of fulfilling them."
The social and e6onomic ·rights and other matters dealt with in the
Directive Principles are by their very nature incapable of judicial
E
enforcement and moreover, the implementation of many of those rights
would depend on the state of economic development in the country,
the availability of necessary finances and the Government's assessment
of priority of objectives and values and that is why they are mitde
non-justiciable. But merely because .the Directive Principles are non-
justiciable, it does not follow that they are in any way subservient or F
inferior to the Fundamental Rights.

The Indian Constitution is first and foremost a social· document.
The majority of its provisions are either directly aimed at furthering
the goals of the socio-economic revolution or attempt to foster this
revolution by establishing the conditions necessary for its achievement. G
Yet despite the permeation of the entire Constitution by the aim
of national renascence, says Granville Austin, "the core of the com-
mitment to the social revolution lies .......... : ..................... .in the
Fundamental Rights and the Directive Principles of State Policy."(1)
· These are the conscience of the Constitution· and, according to Gran-
ville Austin, "they are designed to be the Chief instruments in bringing Ii•
(I) Granville Austin; "The Indian Constitution, Corner-stone of a Nation,
p. 50.
Stii>REME COURT REPORTS [i981] 1 $.C.R.

A about the great reforms of the socio-economic revolution and realising
the constitutional goals of social, economic and political justice for
all. The Fundamental Rights undoubtedly provide for political justice
by conferring various freedoms on the individual, and also make a
significant contribution to the fostering of the social revolution by
aiming at a society which will be egalitarian in texture and where
B the rights of minority groups will be proteeted. But it is in the
Directive Principles that we find the clearest statement of the socio·
economic revoffution. The Directive Principles aim a11 making the
Indian masses free in the positive sense, free from the passivity
engendered . by centuries of coercion by society and by nature, free
from the object physical conditions that had prevented them from
c fulfilling their best salves.(1) The Fundamental Rights are no doubt
important and valuable in a democracy, but there can be no real
democracy without social and economic justice to the common man
and to create socio-economic conditions in which there can be social
and economic justice to every one, is the theme of the Directive Prin·
D ciples. It is the Directive Principles which nourish the roots of our
\ democracy, provide strength and vigour ~o it and attempt to make
it a real participatory democracy which does not remain merely a
political democracy but also becomes social and economic democracy
with Fundamental Rights available to all irrespective of their power,
position or wealth. The dynamic provisions of the Directive Principles
E fertilise the static provisions of the Fundamental Rights. The object
of the Fundamental Rights is to protect individual liberty, but can
individual liberty be considered in isolation from the socio-economic
structure in which it is to operate. There is a real connection between
individual liberty and the shape and form of the social and economic
_J
F structure of the society. Can there be any individual liberty at all for
the. large masses of people who are suffering from want and privation
and who are cheated out of their individual rights by the exploita\ive
economic system ? Would their individual liberty not come in conflict
with the liberty of the socially and economically more powerful class
G and in the process, get mutilated or destroyed ? It is axiomatic that
the real controversies in the present day society are not between power
and freedom but between one form of liberty and another. Under
the present socio-economic' system, it is the liberty of the few which
is in conflict with the liberty of the many. The Directive Principles
ff therefore, impose an obligation on the State to take positive action

(1) Granville Austin ; "The Indian Constitution, Corner-.tone of a Natior:,
paae s1.
MINERVA MILLS LTD. v. UNION (Bhagwati, J.) 325

for creating socio-economic conditions in which there will be an A
egalitarian soc!al order with social and economic justice to all, so that
individual liberty will become a cherished value and the dignity of
the individual a living reality, not only for a few privileged persons
but for the entire people of the country. It will thus be seen that the
Directive Principles enjoy a very high place in the constitutional
scheme and it is only in the framework of the socio-economic structure B
envisaged in the Directive Principles that the Fundamental Rights are
intended to operate, for it i~ only then they can become meaningful
and significant for the millions of our poor and deprived people who
do not have even the bare necessities of life and who are living below
the poverty level.
The Directive Principles are set out in Part IV of the Constitution c
and this Part starts with Article 37 which, to my mind, is an Article
of crucial importance. It says: "The provisions contained in this
Part shali not be enforceable in any court but the principles therein
laid down are nevertheless fundamental in the governance of the
country and it shall be the duty of the State to apply these principles D
in making laws." It is necessary, in order to appreciate the full impli-
cations of this Article, to compare it with the corresponding provision
in the Irish Constitution which, as pointed out above, provided to
some extent the inspiration for introducing Directive Principles in the
Constitution. Article 45 of the Irish Constitution provides:
"The principles of social policy set forth in this Article are E
intended for the general guidance of the Directives. The applica-
tion of those principles in the making of laws shall be the care
of the Direchtas exclusively and shall not be cognizable for any
court under any of the provisions of this Constitution."
It is interesting to note that our Article 37 makes three significant F
departures from the language of Article 45 ; first whereas Article 45
provides that the application of the principles of social policy shall
not be cognizable by any court, Article 37 says that the Directive
Principles ·shall not be enforceable by any court : secondly whereas
Article 45 provides that the principles of social policy are intended
for the general guidance of the Direchtas, Article 37 makes the G
Directive Principles fundamental in the governance of this co1111try ;
and lastly, whereas Article 45 declares that the application of principles
of social policy in the making of laws shall be the care of the
Direchtas exclusively, Article 37 enacts that it. shall be the duty of the
State to apply the Directive Principles in making laws. The changes
made by the framers of the Constitution are vital and they have the H
effect of bringing about a total transformation or metamorphosis of
this provision, fqndam~mtally alteiring its significance and efficacy.
326 SUPREME COURT REPORTS [1981] 1 S.C.R.

A It will be noticed that the Directive Principles are not excluded
from the cognizance of the court, as under the ·Irish Constitution :
they are merely made non-enforceable by a court of law for reasons
already discussed. But merely because they are not enforceable
by the judi'cial process does not mean that they are of subordinate
importance to any other part of the Constitution. I have already said
B this before, but I am emphasizing it again, even at the· cost of repeti-

II
tion, because at one time a view was taken by this Court in State of
Madras v. Champk<in Dorairajan( 1) that because Fundamental Rights
are made enforceable in a court of law and Directive Principles are
not. "the Directive Principles have to conform to and run as subsidiary
c to the Chapter on Fundamental Rights." This view was patently
wrong and within a few years, an opportunity was found by this Court
in the Kerald Educa~ion Bill, 1959 SCR 995 to introduce a qualifica-
tion by stating that: "Nevertheless in determining the scope and ambit
of the Fundamental Rights relied on by or on behalf of any person
or body, the court may not entirely ignore these Directive Principles
of State Policy laid down in Part IV of the Constitution but should
D
adopt the principle of harmonious construction and should attempt
to give effect to both as much as possible." But even this observation
seemed to give greater importance to Fundamental Rights as against
Directive Principles and that was primarily because the Fundamental
Rights are enforceable by the Judicial process while the Directive
Principles are expressly made non-enforceable. I am however, of the
E
opinion, and on this point I agree entirely with the observation of
Hegde, J. in his highly illuminating Lectures on the "Directive Prin-
ciples of State Policy" that:
"Whether or not a particular mandate of the Constitution
is enforceable by court, has no bearing on the importance of that
J
F mandate. The Constitution contains many important mandates
which may not be enforceable by the courts of law. That does
not mean that those Articles must render subsidiary to the Chapter
on Fundamental Rights .. .. .. .. .. .. .. .. .. .. .. .. . .. it would be wrong
to say that those positive mandates", that is the positive mandates
contained in the Directive Principles, "are of lesser significance
G than the mandates under Part III."
Hegde, J. in fact pointed .out at another place in his Lectures that:
"Unfortunately an impression has gained ground in the
organs of the State not excluding judiciary that because the Direc-
tive Principles set out in Part IV are expressly made by Article 37
H non-enforceable by courts, these directives are mere pious hopes
\ (1) (1951) SCR 545,
MINERVA M!LLS LTD, v. UNION (Bhagwati, J.) 327

not deserving immediate attention. I emphasize again that no A
part of the Co11stitut1'on is more important than Part IV- .... :.. ...
To ignore Part IV is to ignore the sustenance provided for in the
Constitution, the hopes held out to the nation and the very ideals
on which our Constitution is built up." (Emphasis supplied).
I wholly endorse this view set forth by J-:Iegde, J. and express my full
B
concurrence with it.

•
I may also point out that simply because the Directive Principles
do not create rights enforceable in a court of law, it does not follow
that they do not create any obligations on the State. We are so .much
obsessed by the Hohfeldian Classification that we tend to think of
rights, liberties, powers and privileses as being invariably linked with c
the corresponding concept of duty, no right, liability and immunity.
We find it difficult to conceive of obligations or duties which do not
create corresponding rights in others. But the Hohfeldian concept
does not provide a satisfactory analysis in all kinds of jural relation-
ships and breaks down in some cases where it is not possible to say
that· the duty in one creates an enforceable right in another. There D
may be a rule which imposes an obligation on an individual or autho-
rity and yet it may not be enforceable in a court of law and therefore
not give rise to a corresponding enforceable right in another person.
But it would still be a legal rule because it prescribes a norm of con-
duct to be followed by such individual or authority. The law may
provide a mechanism for enforcement of this obligation, but the exist- E
ence of the obligation does not depend upon the creation of such
mechanism. The obligatio.'l. exists prior to and independent of the
mechanism of enforcement. A rule imposing an obligation or duty
iwould not therefore cease to be a rule of law because there is no
regular judicial or quasi-judicial machinery to enforce its command.
Such a rule would exist despite of any problem relating to its enforce- F
ment. Otherwise the conventions of the Constitution and even rules
of International Law wuuld no longer be liable to be regarded as rules
of law. This view is clearly supported by the opinion of Professor
A. L. Goodhart who, while commenting upon this point. says :
"I have always argued that if a principle is recognised as
binding on the legislature, then it can be correctly described as
a legal rule even if there -is no court that can enforce it. Thus
most of Dicey's book on the British Constitution is concerned
with certain general principles which Parliament recognises ns
binding on it."
It is therefore, to my mind, clear beyond doubt that merely because H
the Directive Principles are not enforceable in a court of law: it does
not mean that they cannot create obligations or duties binding on the
328 SUPREME COURT REPORTS [1981] 1 S.C.R.

A State. The crucial test which has to be applied is whether the Direc-
tive Principles impose any obligations or duties on the' State ; if they
do, the State would be bound by a constitutional mandate to carryout
such obligations or duties, even though no corresponding right is
created in any one which can be enforced in a court of law.
Now on this question Article 37 is emphatic and makes the point
B
in no uncertain terms. It says that th~ Directive Principles are
"nevertheless fundamental in the governance of the country and it
shall be the duty of the State to apply these principles in making laws."
There could not have been more explicit language used by the Con-
stitution makers to make the Difective Principles binding on the State
I
c and there can be no doubt that the . State is under a constitutional
obligation to carry out this mandate contained in Article 37. In fact,
non-compliance with the Directive Principles would be unconstitu-
tional on the part, of the State and it would not only constitute a
breach of faith with the people who imp<ised this constitutional obli-
gation on the State but it would also render a vital part of the Con-
D stitution meaningless ·and futile. Now it is significant to note that
for the purpose of the Directive Principles, the "State" has the same
meaning as given to it under Article 13 for the purpose of the Funda-
mental Rights. This would mean that the same State which is
injuncted from taking any action in infringement of the Fundamental
Rights is told in no uncertain terms that it must regard the Directive
E Principles as fundamental in the governance of the country and .is
positively mandated to apply them in making laws. This gives rise
to a paradoxical situation and its implications are for reaching. The
State is on the one hand, prohibited by the constitutional injunction
in Article 13 from making any law or taking any executive action
which would infringe any Fundamental Right and at the same time
F it is directed by the constitutional mandate in Article 37 to apply the
Directive Principles in the governance of the country and to make
laws for giving effect to the Directive Principles. Both are constitu-
tional obligations of the State and the question· is, as to which must
prevail when there is a conflict between the two. When the State
makes a law for giving effect to a Directive Principle, it is carrying
G out a constitutional obligation under Article 37 and if it were to be
said that the State cannot make such a law because it comes into
conflict with a Fundamental Right, it can only be on the basis that
Fundamental Rights stand on a higher pedesteal and have precedence
over Directive Principles. But, as we have pointed out above, it is
not correct to say that under our constitutional scheme, Fundamental
H 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 in recent times tried to
MINERVA MILLS LTD. v. UNION {Bhagwati, J.) 329

harmonise them by importing the Directive Principles in the construc- A
tion of the Fundamental Rights. It has been laid down in recent
decisions of ·this Court that ,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 B

•
on a Fundamental Right may be presumed to be reasonable. I do
not propose to burden this opinion with reference to ~II the decided
-cases where this principles has been followed by the Court, but I may
refer only to one decision which, I believe, is the latest on the· point,
namely, Pathumma v. State of Kerala{1), where Fazal Ali, J. summa·
rised the law in the following words: "One of the tests laid down by c
this Court is that in judging the reasonableness of the restrictions
imposed by clause (5) of Art. 19, the Court has to bear in mind the
Directive Principles of State Policy". So also in the State of Bihar v.
Kameshwar Singh(2), this Court relied upon the Directive Principle
contained in Art. 39 in arriving at its decision that the purpose for
D
which the Bihar Zamindary Abolition legislation had been passed was
a public purpose. The principle accepted by this Court was that if
a purpose is one falling within the Directive Principles. it would
definitely be a public purpose. · It may also be pointed out that in a
recent decision given by this Court in M / s Kasturi Lal Lakshmi Reddy
elc: v. The State of Jammu & Kashmir & Atir.(3), it has been held that E
every executive action of the Government, whether in pursuance of
law or otherwise, must be reasonable and informed with public
interest and the yardstick for determining both reasonableness and
' ·~. public interest is to be found in the Directive F'rinciples and therefore,
if any executive action is taken by the Government for giving effect
to a Directive Principle, it would prima facie be reasonable and in F
public interest. It will, therefore, be seen that 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 G
it may conflict with a formalistic and doctrinaire view of equality
before the Jaw, but it would almost always conform to the principle
<Jf equality before the law in its total , magnitude and dimension,
because the equality clause in the Constitution does not speak of more
formal equality before the law but embodies the concept of real and
H
(!) [1978] 2 SCR 537.
(2) [1952] SCR 889.
(3) [1980] 3 SCR 1338.
330 SUPREME COURT REPORTS [1981] 1 S.C.R.
A 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
B principle. If, therefore, there is a law enacted by the legislature which
is really and genuinely for giving effect to a Directive Principle with
a view to promoting social and economic justice, it would be difficult
to say that such law violates the principle of egalitarianism and iS not
in accord with the principle of equality before the Jaw as understood
not in its strict and formalistic sense, but in its dynamic and activist
c magnitude. Jn 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. Mr. C. H. Alexandrowick, an 'eminent
jurist, in fact, says: "Legislati'on implementing. Part IV must be
D
regarded as permitted restrictions gn Part III". Dr. Ambedkar, one
of the chief architects of the Constitution, also made it dear while
intervening during the discussion on the Constitution (First Amend-
ment) Bill in the Lok Sabha on 18th May 1951 that iii his view "So
far as the doctrine of implied powers is concerned, there is ample
E authority in the Constitution itself, namely, in the Directive Principles
.to permit Parliament to make legislation, although it will not be
specifically covered by the provisions contained in the ~Part on Funda-
mental Rights". If this be the correct interpretation of the constitu-
tional provisions, as I think it is, the amended Article :n C does no
more than codify the existing position under the constitutional scheme
F by providing immunity to a law enacted really and genuinely for
giving effect to a Directive Principle, so that needlessly futile 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.
But I may in the alternative, for the purpose of argument, as-5ume
G that there may be a few cases where it may be found by the court,
perhaps on ·a narrow and doctrinaire view of the scope and applica-
bility of a Fundamental Right as in Karimbil Kunhikoman v. State
of Kerala(I) where a law awarding compensation at a lower rate to
holders of larger blocks of land and at higher rate to holders of smaller
blocks of land was struck down by this Court as violative of the
H equality clause, that a law enacted really and genuinely for giving
effect to a Directive Principle is violative of a Fundamental Right under
Article 14 or 19. Would such a law enacted in discharge· of the
(1) [1962] (Supp.) 1 SCR 319.
MINERVA MILLS LTD. v. UNION (Blwgwati, J.) 331

constitutional obligation laid upon the State under Article 37 be A
invalid, because it infringes a Fundamental Right ? If the court takes
the view that it is invalid, would it not be placing Fundamental Rights
above Directive Principles, a position not supported at all by the
· history of their enactment as also by the constitutional scheme already
discussed by me. The two constitutional obligations,· one in regard
B
to Fundamental Rights and the other in 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. I
have already pointed out that whether· or not a particular mandate
of the Constitution is justiciable has no bearing at all on its importance
and significance and justiciability by itself can never be a ground for c
placing one constitutional mandate on a higher pedestal than the other.
The effect of giving greater weightage to the constitutional mandate '
in regard to Fundamental Rights would be to relegate the Directive
Principles to a secondary position and emasculate the constitutional
command that the Directive Principles shall be fu!1dame11tal in the
governance of the country and it shall be the duty of the State to D
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-fondamental. The result
wouid bio tb!t a positive mandate •)f the Constitution commanding the
State to make a law would be dcfe:itd by a negative constitutional E
obligation not to encroach upon a Fundamental Right and the law
made by the legislature pursuant to a positive consti,tutional command
would be delegitimised and declared unconstitutional. This plainly
would be contrary to the constitutional scheme because, as already
pointed out by me, the Constitution does not accord a higher place.
to the constitutional obligation in regard to Fundamental Rights over F
the constitutional obligation in regard to Directive Principles and doe~
not say that the implementation of the Directive Principles shall or.ly
be within the permissible limits laid down in the Chapter on Funda-
mental Rights. The main thrust of the argument of Mr. Palkhiwala
was that by reason of the amendment of Article 31 C1 the harmony
G
and balance between Fundamental Rights and Directive Principles
'(
are disturbed, because Fundamental Rights which had, prior to the
amendment, precedence over Directive Principles are now, as. a result
of the amendment, made subservient to Directive Principles. Mr.
Palkhiwala picturesquely described the position emerging as a result
of the amendment by saying that the Constituti~n is now made to H
stand o.n its head instead of its legs. But in my view the entire premise
on which this argument of Mr. Palkhiwala is b,ased is fallacious
because it is not correct to say, and I have in the preceding portions
332 SUPREME COURT.REPORTS [1981] 1 S.C.R.

A of ~his opinion:, given cogent reasons for this view, that prior to the.
amendments Fundamental Rights had a superior or higher posjtion
in t_he 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 Constitution makers was that the Fundamental Rights should
B operate within the socio-economic structure or a wider continuum
envisaged by the Directive Principles, for then only would the

c
Fundamental Rights become exercisable by all and a proper balance
and harmony between Fundamental Rights and Directive Principles
secured. The Constitution makers therefore never contemplated that
a conflict would arise between the constitutional obligation in regard
I
to Fundapiental Rights and the constitutional mandate illli regard to
Directive Principles. But if a conflict does arise between these two
· constitutional mandates of equal fundamental character, how is the
conflict to be resolved ? The Constitution did not provide any answer
because such a situation was not anticipated by the Constitution
D makers and this problem had therefore to be solved by Parliament
and some modus operandi had to be evolved in order to C!iminate
the possibility of conflict howsoever remote it might be. 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:
I
E "The Directive Principles of State Policy represent a dynamic
move towards a certain objective. The Fundamental Rights
represent something static, to preserve certain rights which exist.
Both again are right. But somehow and sometime it might so
happen that that dynamic movement and that .static standstill do
not quite fit into each other.
F
The dynamic movement towards a certain objective neces-
sarily means certain changes· taking place: that is the essence of
movement. Now it may be that in the process of dynamic
movement certain existing relationships are altered, varied or
affected. In fact, they are meant to affect those settled relation-
ships and yet if you come back to the Fundamental Rights they
are meant to preserve, not indirectly, certain settled relationships.
There is a certain conflict in the two approaches, not inherently.
because that was not meant, I am quite sure. But there is that
slight difficulty and naturally when the courts. of the land have tc>
consider these matters they have to lay stress more on the
H Fundamental Rights than on the Directive Principles. The result
is that the whole purpose behind the Constitution, which was
meant to be .a dynamic Constitution leading to a certain goal step
MINERVA MILLS LTD. v. UNION (Bhagwati, J.) 333

by step, is somewhat hampered and hindered by the static element A
being emphasized a little more than the dynamic element ........ .
If in the protection of individual liberty you protect also individual
or group inequality, then you come into conflict with that Direc-
tive Principle which wants, according to your own Constitution,
a gradual advance, or let us put it in another way, not so gradual
but more rapid ad;vance, whenever possible to a State where B
there is less and less inequality and more and more equality. If
any kind of an appeal to individual liberty and freedom is

I construed to mean as an appeal to the continuation of the existing
inequality, tI,en you get into difficulties. Then you become static,
unprogressive and cannot change and you cannot realize the ideal
of an egalitarian society which I hope most of us aim at." c
Parliament took the vkw 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 though precious and valuable for main-
taining the democratic way of life, have absolutely no meaning for
D
the poor, down trodden and economically backward classes of people
who unfortunately constitute the bulk of the people of India and the
only way in which Fundamental Rights can be made meaningful for
them is by implementing the Directive Principles, for the Directive
Principles are intended to bring about a socio-economic revolution and
to create a new socio-economic order where there will be social and E
economic justice· for all and every one, not only a fortunate few but
the teeming millions of India, would be able to participate in the
fruits of freedom and development and exercise the Fundamental
Rights. Parliament therefore amended Article 31C with a view to
providing that in case of conflict Directive Principles shall have
precedence over the Fundamental Rights in Articles 14 and 19 and F
the latter shall yield place to the former. . The positive constitutional
command to make laws for giving effect to the Directive Principles
shall prevail over the negative constitutional obligation not to encroach
on the Fundamental Rights embodied in Articles 14 and 19. Parlia-
ment in making this amendment was moved by the noble philosophy
eloquently expressed in highly inspiring and evocative words. full of G
passion and· feeling, by Chandrachud, J. (as he then was) in his
judgment in Keshavananda Bharati's case at page 991 of the Report.
I may quote here what Chandraohud, J. (as he theri was) said on that
,occasion, for it sets out admirably the philosophy which inspired
Parliament in enacting the amendment in Article 31 C.' The learned
Judge said: · H
"I have stated in the earlier part of my judgment that .the
Constitution accords a place of pride to Fundamental Rights and
334 SUPREME COURT REPORTS [1981] 1 S.C.R.

A a place of permanence to the Directive Principles. I stand by
what I have said. The Preamble of our Constitution recites that
the aim of the Constitution is to constitute India jnto a Sovereign
Democratic Republic and to secure to "all its citizens". Justice-
Social, economic and political-liberty and equality. Fundamental
Rights which are conferred and guaranteed by Part III of the
Constitution undoubtedly constitute the ark of the Constitution
and without them a man's reach will not exceed his grasp. But
it cannot be overstressed that, the Directive Principles of State
Policy are fundamental in the governance of the country. What
is fundamental in the governance of the country cannot surely ·
be less significant than what is fundamental in the life of an
c individual. That 011e is justiciable and the other not may show
the intrinsic difficulties in making the latter enforceable through
legal processes but that distinction does not bear on their relative
importance. An equal right of men and women to an adequate
means of livelihood ; the right to obtain humane conditions of
work ensuring a dec~nt standard of life and full enjoyment of
D
leisure ; and raising the level of health and nutrition are not
matters for complian·ce with the Writ of a Court. As I look at
the provisions of Parts IJ,l and IV, I feel no doubt that the basic
object of conferring freedoms on individuals is the ultimate
achievement of the ideals set out in Part IV. A circumspect use
E of the freedoms gu<iranteed by Part III is bound to subserve the
common good but voluntary submission to. restraints is a philo-
sopher's dream. Therefore, article 37 enjoys the State to apply
the Directive Principles in making laws. The freedom of a few
have them to be abridged in order to ensure the freedom 0f all.
It is in this sense that Parts. III and IV, as said by Granville
F Austin('). together constitute "the conscience of the Constitution".
The Nation stands today at the cross-roads of history .and
exchanging the time honoured place of the phrase. may I say that
the Directive Principles of State Policy 'should not be permitted
to become "a mere rope of sand." If the State fails to create
0

conditions in wh ich the Fundamental freedoms could be enjoyed
G by all, the freedom of the few will be at the mercy of the many
and then all freedoms will vanish. In order, therefore, to preserve
their freedom, the privileged few must part with a portion of it."
This i:s precisely what Parliamenit achieved by amending Article 31C.
Parliament made the amendment in Article 3lC because it realised
that "if the State fails to create conditions in .which the fu1nidamental
H freedoms could be enjoyed by all, the freedom of the few will be at

(I) The Indian Constitution-Cornerstone of a Nation, Ed. 1966.
MINERVA MILLS LTD. v. UNION i(Bhagwati, J.) 335

;the mercy of the malliY and then all freedoms will vanish" and "in A
l{)rder, therefore" to preserve their freedom,.' the privileged few must
part with a portion. of it.'.' I find it difficult to understand how 1t
-can ait 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 two constitutional ·mandates of equally fundamental
character, Parliament decides by way of amendment of Article 31C B
that in case of such conflict, the constitutional mandate in regard to
Directive Principles shall prevail over the constitutional mandate in
Tegard to the Fundamental Rights under Articles. 14 and 19. The
amendment in Article 31C far from damaging the basic structure of
the Constitution strengthens and re-enforces it by givtnig fundamental c
importan~ to the rights of the members of the community as against
the rights of a few individuals and furthering the objective of the
Constitution to build an egalitarian social order where there will be
social and economic justice for all, every one including the low
visibility areas of humanity in the country will be able to exercise
Fundamental Rights and the dignity of the individual and the worth D
of the human person which are ·cherished values · will not remain
merely the exclusive privileges of a few but become a living reality
for the ma:ny. Additionally, this question may also be looked at from
another point of view so far as the protection against violation of
Article 14 is concerned. The principle of egalitarianism, as I said
·before. is an essential eleme:nt of social and economic justice and, E
therefore, where a law is enacted for giving effect to a Directive
Principle with a vie.w to promoting social and economic justice, it
would not run counter to the egalitarian, principle and would not
therefore be violative of the basic structure, even if it infringes
equality before the law in its narrow and formalistic sense. No law
F
which is really and gellllU.inely 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 Ariicle 14 cannot have the effect of damaging the bac,;ic structure.
I do not therefore see how any violation of the basic structure is
involved in the amendment of Article 31.C. Jn fact. once we accept G
the proposition laid down by the majority decision in Keshavananda
Bharati's case 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 and moreover in the order
made in Waman Rao's case on 9th May, 1980 this Count expressly
held that the unamended Article 31C "does not damage any of the H
·basic or essential features of the Constitution or its basic structure."
.and if that be 1so. it is difficult to appreciate how the amended
336 SUPREME COURT REPORTS [1981] 1 S.C.R.

A AJJticle 31 C can be said to be violative ·of the basic structure. If the·
exclusion of the Fundamental Rights embodied in Articles 14 and 19'
could be Iegiti:mately made for giving effect to the Dire-.;tive Principles.
set out in clauses (b) and (c) of Article 39 without affecting the basic:
structure. I fail to see why these Fundamental Rights cannot be
excluded for giving effec't to the other Directive Principles. If the·
B constitutional obligation in regard to the Directive Principles set out
in clauses (b) anid (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 principle why such
precedence cannot be given to the constitutional obligation in regard'
to the other Directive Principles which stand· on the same ~ooting. It
I
c would, to my mind, be incongruous to hold <the amended Article 31C
invalid when the unamended Ariticle 31C hlis been held to be valid
by the majority decision in Keshavananda Bharati's case and by the
Order made on 9th May, 1980 in Waman Rao's case.
Mr. Palkhiwala on behalf of the petitioners however contended
D that there was a vital differe111ce between Article 31 C as it stood prior '
to its amendment and the amended Article 31C, inasmuch as under.
the unamended Article 31C only certa1n categories of laws, namely,
those enacted for the purpose of giving effect to the Directive Principles
set out in clauses (b) and (c) of Article. 39 were protected again~t
challenge under Articles 14 and 19, while the position under the
E amended Article 31C was that practically every law would be· immune
from such challenge because it would be 11eferable to one Directiye
Principle or the other and the result would be that the Fundamental
Rights in A11ticles 14 and _19 would become meaningless and futile
and would, for all practical purposes, be dead letter in the Constitution.
The effect of giving immunity to laws enacted for the purp::ise of
F giving effect to any one or more of the Directive Principles would,
according to Mr. Palkhiwala, be in reality and substanc_(! to wipe
out Articles 14 and 19 from the Constituijon and that would affect
the basic structure of the Constitution. Mr. Palkhiwala also urged
that the laws which were protected by the amended Article 31 C were
G
laws for giviing effect to the policy of the State towards securing any
one or more of the Directtive Principles and every law would be
comprehended within this description since it would not be competent
to the court to enter into questions of policy and determine whether
the policy adopted in a particular law is calculated.to secure any
Directive Principle as claimed by the State. The use of the words
H "law giving effect to the policy of the State", said Mr. Palkhiwala,
introduced considerable uncertainty in the yardstick with which •to
decide whether a particula11 law falls within the description in the
MINERVA MILLS LTD. V. UNION (BhagwaJi, J.) 337

amended Article 31C and widened the scope and applicabiliity of the A.
amended Anticle so as to include almost every law claimed by the
St:ate to full wjthin such description. This argumeinJi was presented by
Mr. Palkhiwala with great force and pursuasiveness but it does not
·appeal to me and I cannot. accept iit. It is clear from the Language
of the amended Article 31 C that the law which is pnotected from
challenge under Articles 14 and 19 is law giving effect to the policy 8
of the State towards securing all or alny 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
tfa~ law has been enacted for giviing effect to die policy of the State
towards securing any one or more of the Directive Principles and
it is only if the court is so satisfied as a result of judicial scrutiny,
that the court would accord the protection 0£ the ame111ded Article 31C
to such law. Now it is undoubtedly true that the words used in the
amended Article are "law giving effect to the policy of the Staie",
but the policy o~ the State which is contemplated there is the policy
towards securing one or more of the Directive Principles. It is the D
constitutional· obligation of the State to secure the Directive Principles
and that is· the policy which the State is required to adopt and when
a law 1s enacted in pursuance of this policy 0£ implementing the
Directive Principles aru:l it seeks to give effect to a Directive Principle,
it would, both from •the point of view of grammar and language, be
correct to say that it is made for giving effect to the policy of the E
State towards securing such Directive Principle. The words "law
giving effect to the policy of the State" are not so wide as
Mr. Palkhiwala would have it, 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 one or more of
!thie Directive P!rinciples.. The Court before which .protection for a
particular law is claimed under the amended Article 31C would
therefore have to examine whether such law is enacted for giving effect
to a Directive Principle, for then only it would have the protection
of the amended Article 31C. Now the question is what should be
the test for determining whether a law is enacted for giving effect
to a Directive Principle. One thing is clear that a claim to that G
effect put forward by the State would hav·e no moaning or value;
it is the court which would have to detennilll.e the que!ltion,. Again i:t
is n.ot enough that there may be some connection between a provision
·of the law and a Directive Principle. The co'l.111ection has to be
between the law and the Directive Principle and it must be a r~I H:
and substantial connection. To determine whether a law .:atisf!es this
test, the court would have to examine the pith and 5ubsta:nce, the true
338 SUPREME COURT REPORTS [1981] 1 S.C.R.

A nature and character of the law as also its design and the subject
mailter dealt with by it toge~her with it$ object and scope. If on such
examination, the court finds that the dominant object, of the law 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
tlhat the law though passed seemingly for giving effect to a Directive
Principle, is, in pith and substance. one for accomplishing an
unauthori'sed purpose-unauthorised in the sense of not being covered
by any Directive Princitple. such Jaw would not have the protection
of the amended Article 31C. To take the illustration given by
Khanna, J. in Keshavmwnda Bharati's case at page 745 nf the
Report, "a law might be made that as the old residents in the State
·are economically backward and those who have not resided in the
State for m~re than three generations have an affluent business i11 the
Stale or have acquired property in the State. they shall be deprived
o:fl \heir business and property with a view to vest the same in the
old residents of the State." It may be possible, after performing
.D what I may call an archaeological operation, to discover some
remote the tenuous connection between such .law and some Directive
Principle, but the dominant object of such law would be, as pointed
out by Mr. H. M. Seerva.i at Page 1559 of the second Volume
of his book on "Constitutional Law of-India", to implement "the
policy of the State to discriminate against ciitizens who hail from
E another State, ~ and in a practical sense, to drive. them out of it",
and such law would not be protected by the amended Article 31C.
Many such examples can be given but I do not wish to unnecessarily
burden this opinion. The point I wish to emphasize is that the
amended Article 31C does not give protection to a law which has
merely some remote or tenuous connectbon with a Directive Principle .
.F 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.
G There i's also one other aspect which requires to be considered
before protection can be given to a law under the amended Article
31 C. Even v,:here the dominant object of a law is to give effect to
a Directive Principle, it is not every provision of the law which is
entitled to Claiim protection. The words used in the amended
Article 31 C are : "Law giving effect to the policy of the State to"'.'ards
H securing all or any of the principles laid down in Part IV" and these
words, on a plain natural construction. do not iilclude all the
provisions of the 1aw but only those which give effect to the Directive

.
MINERVA MILLS LTD. v. UNION i(Bhagwati, J.) 339

Principle. But the question is how to identify these provisions
giving effect to the Directive' Princiiple in order to accord to them
the protection of the amended Article· 31C. Thie answer to this
question is analogically provided by the decision of this Court in
Akadasi Padhan v. State of Orissa( 1). There the question was as to
what was the precise connotation of the expression "a law relating
to" a State monopoly which occurs in Article 19(6). This Court held B
that "a law relating to" a State monopoly cannot include all the
provisions contained in such law but it must be construed to mean,
"the Jaw relating to the monopoly in its absolutely essential f~atures"
and it is only those provisions of the law "which are basically and
essentially necessary for creating the State monopoly"· whiCh are
protected by Article 19(6). This vie·w was reiterated in several
subsequent decisions of this Court which include inter alia Rashbihari
Pande etc. ·v. State of Orissa( 2 ), Vrajlal Manila[ & Co. & Ors. v.
State of Madhya Pradesh & Ors.(3) and R. C. Cooper v; Union of
lndia(4). I would adopt the same approach in the construction of
Article 31C and hold that it is not every provision of a statute, which D
has been enacted with the dominant object of giving effect to a Directive
Principle, that it entitled to protection, but only those provisions
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 E
and their validity would 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 to such' Directive Princilple and· if the answer F
to this question is in the affirma1ive, 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 wh~ther any particular provision of the law is basically
G
and essentially necessary for giving effect to me Directive Principle,
would depend, to a large extent, on how closely and integrally such
prov1s10n is connected with! the implemen:tation 0:i' the Direct:ivie
Principle. If the court finds that a partic.ufar pro\1isfon: is subsidiary

(1) [1963] 2 Supp. SCR 691.· H
(2) [19691 3 SCR 374.
(3) [1970] 1 SCR 400.
(4) [1970] 3 SCR 530.
34 0 SUPREME COURT REPORTS [1981] I S.C.R.

A or incidental or not essentially and integrally connected with the
implementation of the Directive. Principle or is of such a nature tlllit,
though seemingly a part of the general design of the main provisions
of the statute, its dom~nant object is to achieve an unauthorised
purpose, it would not enjoy the protection of the amended Article
31C and would be liable to be struck down as invalid if it violates
B Article 14 or 19.
These consideraitions which I have discussed above completely
answer some of the difficulties raised by Mr. Palkhiwala. · He said
that if the amended Artide 3IC were held to be valid, even provisions
like Section 23(e) and 24(1)(a) of the Bombay Prohibition Act, 1949
c which were struck down in State of Bombay v. F. N. Ba/sari(l) as
violating freedom of speech guaranteed under Article 19(1)(a), would
have to be held to be valid. I do not think that freedom and
democracy in this country would be imperilled if such provisions were
held valid. In fact, after the amendment of A:nticle 19(2) by the
Constitution (First Amendment) Act, 1951, it is highly arguable that
D both such provisions would fall within the protection of Article 19(2)
and would be valid. And even otherwise, it is difficult to see how any
violation of the basic structure is involved if a provision of a 'law
prohibiting a person from commending any intoxicant, the consumption
or use of which is forbidden by the law (exoept under a licence issued
by the State Government) is protected against illfraction of Article
E 19(1)(a). The position would perhaps be different if a provision is
introduced in tlhe Prohibition Act saying that no one shall 1speak
against the prohibition policy or propagate for the repeal of the
Prohibition Act or plead for removal of Article 47 from the Directive
Principles. Such a provision may not and perhaps would not be
F entitled to the protection of the amended Article 31C, even though
it finds a place in the Prohibition Act, because its dominant object
would not be to give effect to the Directive Principle in Article 47
but to stifle freedom of speech in respeot of a particular matter ana
it may run the ri'Sk of being struck down as violative of Article 19(l)(a).
If the Court finds that even in a statute enacted for giving effect 'to
G a Directive Principle, there is a provision which is not essentially and
integrally 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 ana 19.

H Lastly, I must consider the argument of Mr. Palkhiwala That
almost any and every law would be within the protectiOn of the
•(l) [1951] SCR 682.
MINERVA MILLS LTD. v. UNION· (Bhagwati, J.) 341

amended Article 31C because it would be referable to some Directive A
Pninciple or the other. I think this is an · argument of despair.
Articles 39 to '.51 contain Directive Prindples referring to certain
specific objectives and in order that a law should be for giving effect
to one. of those Directive Prillciples, there would have tOI be a real
and substantial connection between the law and the specific objective
B
set out in such Directive Principle. Obviously, the objectives set out

I
in these Diirective Pninciplesi being specific and limited, eivery liaw
made by a legislature in the country cannot possibly have a real ar.d
substantial connection with one or the other of these specific objectives.
It is only a limited number of laws which would have a real and
-substantial connection with one or the other of specific objectives c
contained in these Directive Princitples and any and every law woula
not come within this category. Mr. Palkhiwala t:!ten contended that
in any event, the Directive Principle contained in Article 38 was
very wide and it would cover almost any law enacted by a legislature.
This contention is also not well founded. Article 38 is a general
article which stresses the obligation of the State to establish a social D
order in which justice-social, economic and political shall 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
it may be noted that the objective set out in the Article jls not merely
promotion of the welfare of the people, bu~ there is a further E
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 rsecuring and protecting a partiicular 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 tihe Dilrective Principle in Article F
38 and it is this objective which is made fundamental in the
governance of the country wd whlch 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 G
,other Directive Principles. The Directive Principles set out in ' the
subsequent Articles 'following upon Articlle 38 merely particularise
and set out facets and aspects of the ideal of social, economic and
political justice articulated in Article 38. MT. Palkhiwrala's complaint
was not directed agailnst the use of me words 'political justice' in
Article 38 but his contention was that the concept of social and H
economic justice referred to in that Article was so wide that almost
any legislation could come within i[ I do not agree. The concept
342 SUPREME COURT REPORTS [1981] l S.C.R.

A of social and eoon.omic justice may not be very easy of definition
but its broad contours are to be found in some of t!he provisions of
the Fundamental Rights. and in the Directive Principles and whenever
a question arises whether a legislation is for gWing 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
B or indefinite about the concept of . social or economic justice that
almost any kind of legislation oould be justified und•~r it. Moreover,
where a claim fur 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.
c but would be one of the specific Directive Prilnciples set out in the
succeeding Articles, because as I said before, these latter particularise
the concept of social and economic justice referred to in Articfe 38.
I cannot therefore subscribe to the prroposition than if the Amendment
in Article 31 C were held valid, it would have the effect .of protecting
D every possible legislation under the sun and that would in effect and
substance wipe out Articles 14 and 19 from the Coinstitution. This
is a tall and extreme argument fgr which I find no justification in the
p~ovisions of the Constitution.

I would therefore declare Section 55 of the Constitution (Forty-
second Amendment) Act, 1976 which inserted sub-sections (4) and (5)
E
in Article 368 as unconstitutional and void an the. ground that it
damages the basic structure of the Constitution and goes beyond the
amending power of · Parliament. But so far as Section 4 of the
Constitution (Forty-second Amendment) Act, 1976 is concerned. I·
hold that, on the interpretation placed on the amended' Article 31 C
F by me, it does not damage or destroy thie basic structure of the
Constitution and is within the amendilng power of Parliament and
I would 'therefore declare the amended Article 31C to be constitutional
and valid.
I have also given my reasons in this judgment for subscribing
to the Order dated 9th May, 1980 made in Waman Rao's case and
G
this judgment in so far as it set!s out those reasons ,~ill be formally
pronounced by me when Waman Ra.o's case is set down on board
for judgment.

s. R.

.GIPN-S2-646 S. C. India/80-24-4-81-2,500.. \