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MohitTyagi
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ACT:
Constitution of India Forty Second Amendment Act,
Sections 4 and 55-Whether the Sections are beyond the
amending power of the 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 111 of the Constitution-Constitution of
India Articles 14, 19, 31C, 38 and 368.
HEADNOTE:
Minerva Mills Ltd. is a limited company dealing in
textiles. On August 20,1970 the Central Government
appointed a committee under section IS of the Industries
(Development Regulation) Act,1951 to make a full and
complete 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 production.
The said Committee submitted its report to the Central
Government 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 the National
Textile Corporation Ltd., to take over the management of the
Mills on the ground that its affairs are being managed in a
manner highly detrimental to public interest. This
undertaking was nationalised and taken over by the Central
Government under the provisions of the Sick Textile
Undertakings (Nationalisation) Act, 1974. The petitioners
challenged the constitutional validity of certain provisions
of the Sick Textile Undertakings (Nationalisation) Act, 1974
and of the order dated October19, 1971, the
constitutionality of the Constitution (Thirty Ninth
Amendment) Act which inserted the impugned Nationalisation
Act as Entry 105 in the Ninth Schedule to the Constitution,
the validity of Article 31B of the Constitution and finally
the constitutionality 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 so 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 Amendment) Act are void and beyond the
amending power of the Parliament, the Court by majority (Per
Chandrachud. C.J., on behalf of himself, A. Gupta. N.L.
Untwalia & P.S. Kailasam, JJ.)
^
HELD: (1) The newly introduced clause S of Article 368
transgresses the limitations on the amending power of
Parliament and is hence unconstitutional. It demolishes the
very pillars on which the preamble rests by empowering the
Parliament to exercise its constituent power without any
"limitation whatever". 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", that is to say, to
abrogate the democracy.
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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 and political justice to the people, by
emasculating liberty of thought, expression, belief, faith
and worship and by abjuring commitment to the magnificent
ideal of a society of equals. The power to destroy is not a
power to amend.