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Sri Sankari Prasad Singh Deo vs Union Of India And State Of ... on 5 October, 1951
Equivalent citations: 1951 AIR 458, 1952 SCR 89
Author: M P Sastri
Bench: Kania, Hiralal J. (Cj), Sastri, M. Patanjali, Mukherjea, B.K., Das, Sudhi Ranjan, Aiyar, N. Chandrasekhara
PETITIONER:
SRI SANKARI PRASAD SINGH DEO
Vs.
RESPONDENT:
UNION OF INDIA AND STATE OF BIHAR(And Other Cases).
DATE OF JUDGMENT:
05/10/1951
BENCH:
SASTRI, M. PATANJALI
BENCH:
SASTRI, M. PATANJALI
KANIA, HIRALAL J. (CJ)
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
AIYAR, N. CHANDRASEKHARA
JUDGMENT:
ORIGINAL JURISDICTION : Petitions under Art. 32 of the Constitution (Petitions Nos. 166,287,317 to 319, 371,372, 374 to 389, 392 to 395, 418, 481 to 485 of 1951). The facts which led to these petitions are stated in the judgment.
Arguments were heard on the l2th, l4th, l1th, 18th and 19th of September.
P.R. Das (B. Sen, with him) for the petitioners in Petitions Nos. 37 l, 372, 382,383, 388 and 392. Article 368 of the Constitution is a complete code in itself. It does not contemplate any amendments to the Bill after its introduction. The Bill must be passed and assent- ed to by the President as it was introduced without any amendment. As the Constitution Amendment Bill was amended in several respects during its passage through the Parliament, the Constitution (First Amendment) Act was not passed in conformity with the procedure laid down in article 368 and is therefore invalid. When the Parliament exercises its ordinary legislative powers it has power to amend the Bills under articles 107. 108, 109(3) & (4). It has no such power when it seeks to amend the Constitution itself as article 368 does not give any such power: of The Parliament Act of 1911 (of England). The Article 368 vests the power to amend the Constitution not in the Parliament but in a different body, viz., a two-thirds majority of the two Houses of the Parliament. In article 368, the word Parliament which occurs in other articles is purposely avoided. There is a distinction between ordinary legislative power and power to amend the Constitution. This distinction is observed in America and the power to amend the Constitution is vested there also in a different body. Vide Willis, page 875, Coolly Vol. 1. page 4, Orfield, page 146. Article 379 speaks of the power of the provisional Parliament as a legislative body. The powers under article 368 cannot be and was not intended to be exercised by the provisional Parlia- ment under article 379. As it consists only of a Single Chamber the adaptations made in article 368 by the Constitu- tion (Removal of Difficulties) Order No. 2 are ultra vires. Article 392 gives power to the President to remove only such difficulties as arise in the working of the Constitution. It cannot be used to remove difficulties in the way of amending the Constitution that have been deliberately introduced by the Constitution. No difficulty could have been possibly experienced in the working of the Constitution on the very day the Constitution came into force. The Constitution could legally be amended only by the Parliament consisting of two Houses constituted under clause 2 of Part V. In any event, the impugned Act is void under article 13 (2) as contraven- ing the provisions relating to fundamental rights guaranteed by Part III. ' Law ' in article 13 (2) evidently includes all laws passed by the Parliament and must include laws passed under article 368 amending the Constitution: Constituent Assembly Debates, Vol. IX No. 37, pp. 1644, 1645, 1661, 1665.