- (1.) These petitions, which have been heard together, raise the common question whether the Constitution (First Amendment) Act, 1951, which was recently passed by the present provisional Parliament and purports to insert, inter alia,Arts. 31A and 31B in the Constitution of India is ultra viresand unconstitutional.
(2.) What led to that enactment is a matter of common knowledge. The political party now in power, commanding as it does a majority of votes in the several State legislatures as well as in Parliament, carried out certain measures of agrarian reform in Bihar, Uttar Pradesh and Madhya Pradesh by enacting legislation which may compendiously be referred to as Zemindary Abolition Acts. Certain zemindars, feeling themselves aggrieved, attacked the validity of those Acts in Courts of law on the ground that they contravened the fundamental rights conferred on them by Part III of the Constitution. The High Court at Patna held that the Act passed in Bihar was unconstitutional while the High Courts at Allahabad and Nagpur upheld the validity of the corresponding legislation in Uttar Pradesh and Madhya Pradesh respectively. Appeals from those decisions are pending in this Court. Petitions filed in this Court by some other zemindars seeking the determination of the same question are also pending. At this stage, the Union Government, with a view to put an end to all this litigation and to remedy what they considered to be certain defeats brought to light in the working of the Constitution, brought forward a bill to amend the Constitution, which, after undergoing amendments in various particulars, was passed by the requisite majority as the Constitution (First Amendment) Act, 1951, (hereinafter referred to as the Amendment Act). Swiftly reacting to this move of the Government, the zemindars have brought the present petitions under Art. 32 of the Constitution impugning the Amendment Act itself as unconstitutional and void.
(3.) The main arguments advanced in support of the petitions may be summarised as follows : First, the power of amending the Constitution provided for under Art. 368 was conferred not on Parliament but on the two Houses of Parliament as a designated body and, therefore, the provisional Parliament was not competent to exercise that power under Art 379 : Secondly, assuming that the power was conferred on Parliament, it did not devolve on the provisional Parliament by virtue of Art. 379 as the words "All the powers conferred by the provisions of this Constitution on Parliament" could refer only to such powers as are capable of being exercised by the provisional Parliament consisting of a single chamber. The power conferred by Art. 368 calls for the co-operative action of two Houses of Parliament and could be appropriately exercised only by the Parliament to be duly constituted under ch. 2 of Part v: Thirdly, the Constitution (Removal of Difficulties) Order No. 2 made by the President on 26-1- 1950, in so far as it purports to adapt Art. 368 by omitting "either House of" and "in each House" and substituting "Parliament" for "that House", is beyond the powers conferred on him by Art. 392, as "any difficulties" sought to be removed by adaptation under that article must be difficulties in the actual working of the Constitution during the transitional period whose removal is necessary for carrying on the Government. No such difficulty could possibly have been experienced on the very date of the commencement of the Constitution: Fourthly, in any case Art. 368 is a complete code in itself and does not provide for any amendment being made in the bill after it has been introduced in the House. The bill in the present case having been admittedly amended in several particulars during its passage through the House, the Amendment Act cannot be said to have been passed in conformity with the procedure present in Art. 368 : Fifthly, the Amendment Act, in so far as it purports to take away or abridge the rights conferred by Part. III of the Constitution, falls within the prohibition of Art. 13 (2): And lastly, as the newly inserted Arts. 31A and 31B seek to make changes in Arts 132 and 136 in Ch. 4 of Part. V and Art. 226 in Ch. 5 of Part VI, they require ratification under cl. (b) of the proviso to Art. 368, and not having been so ratified, they are void and unconstitutional. They are also ultra vires as they relate to matters enumerated in List II, with respect to which the State legislatures and not Parliament have the power to make laws.;