Dissenting Judgments On The 17th Amendment

It is unfortunate that three of the five judges that heard the writ petitions questioning the validity of the 17th Amendment were of the view that the matter did not deserve to be discussed before a larger Bench, “for a further examination of the problem” (to use the words of the Chief Justice). The ‘problem’ was whether the provision of Art. 13 of the Constitution, that no laws shall be passed in derogation of the fundamental rights inscribed in Part III of the Constitution, would not preclude an amendment of the Constitution itself by which Government sought to bring about a serious reduction of those rights. On this ground, an objection was raised and argued before the Supreme Court in Sankari Prasad’s case and Patanjali Sastri delivered judgment on behalf of the court declaring that the argument was ‘attractive’ but could not be accepted. Chief Justice Gajendragadkar, agreeing with Patanjali Sastris view in that case, has held that a constitutional amendment abrogating the fundamental rights would not be barred by Art. 13 (2), but would be perfectly valid if it was passed in conformity with the provisions of Art 368.

The argument that Art. 368 dealt only with the procedure for permissible constitutional amendments and did not mean to confirm amending powers by way of inference, was not accepted. In upholding Patanjali Sastris view in Sankari Prasad’s case, the Chief Justice appears to have been greatly swayed by one consideration which was, in his own words, that “if the arguments urged by the petitioners were to prevail, it would lead to the inevitable consequence that the amendments made in the Constitution both in 1951 and 1955 would be rendered invalid and a large number of decisions dealing with the validity of the Acts included in the Ninth Schedule would also be exposed to serious jeopardy”. It seems therefore that interpretation was made to depend on expediency.

As against the views of the three Judges who signed this judgment, we have two separate judgments delivered by Hidayathulla J and J. R. Mudholkar J, who do not accept the position expounded in the judgment delivered by the Chief Justice. Hidayathullah J says: “But I make it clear that I must not be understood to have subscribed to the view that the word ‘law’ in Art. 13 (2) does not control constitutional amendments”. In another part of the judgment he makes the forceful remark, “the Constitution gives so many assurances in Part Ill that it would be difficult to think that they were the playthings of a special majority”. Mudholkar J in his judgment says about this point: “I would reserve my opinion on this question. I do not regard what this court has held in that case (Sankari Prasad’s case) as the last word”. He says in another part of his judgment: “It is possible, as suggested by my learned brother, that Art. 368 merely lays down the procedure to be followed for amending the Constitution and does not confer a power to amend the Constitution which I think has to be ascertained from the provisions sought to be amended or other relevant provisions or the preamble.”

Mudholkar J has given many weighty reasons besides those quoted here for refusing to accept the views incorporated in the judgment delivered by the Chief Justice. In view of the reasoned opinions given by Hidayatullah J and Mudliolkar J, it appears that the importance of the problem of ryotwari proprietorship demands a reconsideration of the point by a full court. The sanctity of fundamental rights inscribed in the Constitution and the solemn terms in which those rights are declared appear to justify a fresh and fuller re-examination of the point. The problem is how to bring this review about.