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Constitution, it cannot be said that the fundamental rights guaranteed to the citizens
are eternal andinviolate in the sense that they can never be abridged or amended.
27. According to him, it was legitimate to assume that the Constitution-makers
visualised that
Parliament would be competent to make amendments in these rights so as to meet the
challenge of the problems which may arise in the course of socio-economic progress
and development of the country.
28. Hidayatullah, J., as he then was, agreed with the Chief Justice that the 17th
Amendment was
valid even though the procedure laid down in the proviso to Article 368 had not been
followed. But he expressed his difficulty in accepting the part of the reasoning in
Sankari Prasad's [1952] S.C.R. 89 case.
29. He observed as follows:
It is true that there is no complete definition of the word "law"' in the article but it is
significant that the definition does not seek to exclude Constitutional amendments
which it would have been easy to indicate in the definition by adding "but shall not
include an amendment of the Constitution".
30. He further observed:
The meaning of Article 13 thus depends on the sense in which the word "law" in Article
13(2) is to be understood. If an amendment can be said to fall within the term "law", the
Fundamental Rights become "eternal and inviolate" to borrow the language of the
Japanese Constitution. Article 13 is then on par with Article 5 of the American Federal
Constitution in its immutable prohibition as long as it stands.
31. According to him "Our Preamble is more akin in nature to the American Declaration
of
Independence (July 4, 1776) then to the preamble to the Constittuion of the United
States. It does not make any grant of power but it gives a direction and purpose to the
Constitution which is reflected in Parts III and IV. Is it to be imagined that a two-thirds
majority of the two Houses at any time is all that is necessary to alter it without even
consulting the States ? It is not even included in the proviso to Article 368 and it is
difficult to think that as it has not the protection of the proviso it must be within the
main part of Article 368.
32. He further observed:
I would require stronger reason than those given in Sankari Prasad's case to make me
accept the view that Fundamental Rights were not really fundamental but were
intended to be within the powers of amendment in common with the other parts of the
Constitution and without the
concurrence of the States.
33. He held:
What Article 368 does is to lay down the manner of amendment and the necessary
conditions for the effectiveness of the amendment.... The Constitution gives so many
assurances in Part III that it would be difficult to think that they were the play-things of
a special majority. To hold this would mean prima facie that the most solemn parts of
our Constitution