words per minute
10
RaghavKumar
00:00
Speed
HEADNOTE:
The Constitution (First Amendment) Act, 1951, which has
inserted, inter alia, Article 31A and 31B in the Constitution
of India is not ultra vires or unconstitutional.
The provisional Parliament is competent to exercise the
power of amending the Constitution under Art. 368. The fact
that the said article refers to the two Houses of the Parliament
and the President separately and not to the Parliament,
does not lead to the inference that the body which is
invested with the power to amend is not the Parliament but a
different body consisting of the two Houses.
The words "all the powers conferred by the provisions of
this Constitution on Parliament" in Art. 379 are not confined
to such powers as could be exercised by the provisional
Parliament consisting of a single chamber, but are wide
enough to include the power to amend the Constitution conferred
by Art. 368.
The Constitution (Removal of Difficulties) Order No. 2
made by the President on the 26th January, 1950, which
purports to adapt Art. 368 by omitting "either House of"
and "in each House" and substituting "Parliament" for "that
House" is not beyond the powers conferred on him by Art. 39:1 and ultra
vires. There is nothing in Art. 392 to suggest that the
President should wait, before adapting a particular article,
till the occasion actually arose for the provisional Parliament
to exercise the power conferred by the article.
The view that Art. 368 is a complete code in itself in
respect of the procedure provided by it and does not contem-
plate any amendment of a Bill for amendment of the Constitution
after it has been introduced, and that if the Bill is amended
during its passage through the House, the amendment
Act cannot be said to have been passed in conformity with
the procedure prescribed by Art. 368 and would be invalid,
is erroneous.
Although "law" must ordinarily include constitutional
law there is a clear demarcation between ordinary law which
is made in the exercise of legislative power and constitu-
tional law, which is made in the exercise of constituent
power. In the context of Art. 13, "law" must be taken to
mean rules or regulations made in exercise of ordinary
legislative power and not amendments to the constitution
made in the exercise of constituent power with the result
that Art. 13(2) does not affect amendments made under Art. 368.
Articles 31A and 31B inserted in the Constitution by the
Constitution (First Amendment) Act, 1951, do not curtail
the powers of the High Court under Art. 226 to issue writs
for enforcement of any of the rights conferred by Part III
or of the Supreme Court under Arts. 132 and 136 to entertain
appeals from orders issuing or refusing such writs; but they
only exclude from the purview of Part III 'certain classes
of cases. These articles therefore do not require ratifica-
tion under cl. (b) of the proviso to Art. 368.
Articles 31A and 31B are not invalid on the ground that
they relate to land which is a matter covered by the State
List (item 18 of List II) as these articles are essentially
amendments of the Constitution, and Parliament alone has
the power to enact them.