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Beating About The Bush
by N.S. Bindra, Advocate

Cite as : (1973) 4 SCC (Jour) 53

Thirteen Judges of the Supreme Court of India sat almost continuously for about three score and ten days to find out, with the assistance of most eminent counsel of the country, the meaning of the expression "amendment of the Constitution" in Article 368 in Part XX of the Constitution of India. Either the great jurists and experienced politicians and statesman who illumined the Constituent Assembly and gave us this most voluminous Constitution lost their acumen when they framed this one article (which comprises the whole Part) which brings into action again the sovereign Will of the People, or we have developed some catastrophic infirmity in understanding even the most vital part of the Constitution.

Mr Justice S.N. Dwivedi has rightly observed in his judgment delivered in the case:

"The Constitution is not intended to be the arena of legal quibbling for men with long purses. It is made for the common people. It should generally be so construed that they can understand and appreciate it."

Long ago the Supreme Court of United States often observed (and repeated very recently in Green v. United States, 2 L Ed 2d 672, 703: 356 US 165):

"The Constitution was written to be understood by the voters, its words and phrases were used in their normal and ordinary as distinguished from technical meaning."

Mr Justice Chandrachud in his judgment in the case observes:

"The Counsel for the petitioner urges that the word 'amendment' is not a term of Article . . . . ."

The legislators in this country as well as in other democracies must have used this word billions of times. It is an ordinary English word. "The meaning of an ordinary word of the English language is not a question of law. . . . ." Lord Reid in Brutus v. Cozens, (1972) 3 WLR 521, 525. Mr Justice Palekar in his judgment has observed:

"The expression 'amendment of the Constitution' is not a coinage of the framers of our Constitution. That is an expression well known in modern Constitutions. . . . ."

Mr Justice H.R. Khanna has also observed in his judgment:

"It is also, in my opinion, not permissible in the face of the plain language of Article 368 to ascertain by any process akin to speculation the supposed intention of the Constitution-makers, we must act on the principle that if the words are plain and free from any ambiguity the Constitution-makers should be taken to have incorporated their intention in those words."

Mr Justice Lamar, speaking for the Supreme Court of U.S.A., says:

"Why not assume that the framers of the Constitution and the people who voted it into existence, meant exactly what it says? At the first glance, its reading produces no impression of doubt as to the meaning. It seems all sufficiently plain; and in such case there is a well-settled rule which we must observe. The object of construction applied to a Constitution, is to give effect to the intent of its framers, and of the people in adopting it. This intent is to be found in the instrument itself; and when the text of a constitutional provision is not ambiguous the Courts in giving construction thereto, are not at liberty to search for is meaning beyond the instrument." (Board of Lake County Commissioners v. Rollins, 32 L Ed 1063, 1063-1064).

Mr Justice K.S. Hegde in the present case observed:

"The language of Article 368 to our mind is plain and unambiguous. Hence we need not call into aid any of the rules of construction about which there was a great deal of debate at the hearing."

Mr Justice A.K. Mukherjea, agreed with Mr Justice Hegde. It would thus appear that majority of the judges of the Full Bench in this case were of the view that the language of Article 368 of the Constitution is plain and unambiguous. If prior to the dictation of the various voluminous judgments of the Court, the Judges had discussed the various points and specially the point referred to above, viz. that the language of Article 368 is plain and unambiguous, no necessity would have arisen to dictate such long judgments including references to —

(i) Preamble;

(ii) Debates in the Constituent Assembly; and

(iii) Views of jurists, commentators and dictionaries.

(i) Preamble.—Chief Justice S.M. Sikri relied upon the observations of Viscount Simon in Attorney-General v. Prince Augustus:

". . . . . . the proposition can be accepted that it is settled rule that the preamble cannot be made use of to control the enactment themselves where they are expressed in clear and unambiguous terms."

Mr Justice H.R. Khanna, in the course of his judgment, was of the view that the principle of construction is. . . . .

"When, however, the language of a section or article is plain and suffers from no ambiguity or obscurity, no gloss can be put on the words of the section or article by invoking the Preamble. As observed by Story on Constitution, the Preamble can never be resorted to, to enlarge the powers confided to the Central Government, or any of its departments. It cannot confer any power per se, it can never amount by implication, to an enlargement of any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the Constitution. . . . .

His Lordship then relied upon the House of Lords case Attorney-General v. Prince Augustus, 1957 AC 436, quoting from the speech of Lord Normand.

Mr Justice Hegde (with whom Mr Justice A.K. Mukherjea, agreed) had in his judgment further observed:

"When the language of Article 368 is plain, as we think it is, no question of construction of that Article arises. There is no need to delve into the intention of the Constitution-makers."

Mr Justice A.N. Ray (as he then was) observed in his judgment:

"If the enacting words are clear and unambiguous, there is little room for the interpretation, except the cases leading to an obvious absurdity or to a direct overthrow of the intention expressed in the Preamble. This is the view of Story."

As the majority of judges constituting the Full Bench are of the view that the language of Article 368 is plain, clear and unambiguous, the reference to preamble or reliance thereon for any purpose was otiose and unnecessary. Several hearings took place to elucidate the efficacy or significance of the Preamble to the Constitution, which itself was passed after Article 368 had been settled by the Constituent Assembly. The members of the Assembly knew the meaning of Article 368, which under the circumstance could not be affected by the Preamble passed later on.

(ii) Debates in the Constituent Assembly.—As observed by the Chief Justice, both sides relied on the speeches made in the Constituent Assembly. In the very first important case which came up before the High Court of Australia, on objection raised thereto, Chief Justice Griffiths refused to allow Mr Glynn, arguing for the plaintiff State to read the expressions of opinions of members of the Conventions: State of Tasmania v. Commonwealth of Australia, 1 CLR 329, 337. Indeed in connection with the interpretation of Article 31(2) of the Constitution, Mr Justice Hegde observed:

"In particular we were invited to go through the speeches made by Pandit Nehru, Sir Alladi Krishnaswamy Ayyar, Dr. Munshi and Dr. Ambedkar. In our opinion it is impermissible for us to do so. It is a well settled rule of construction that speeches made by members of a legislature in the course of debates relating to the enactment of statute cannot be used as aids for interpreting any of the provisions of a statute. The same rule is applicable when we are called upon to interpret the provisions of a Constitution. This Court ruled in Travancore-Cochin v. Bombay Co. Ltd., 1952 SCR 913, that speeches made by the members of the Constituent Assembly in the course of debates on the Draft Constitution cannot be used as aid for interpreting the Constitution. . . . No decision of this Court dissenting from the view taken in the above case was brought to our notice. But is was urged that this Court had ignored the rule laid down in Bombay Co case, in Golak Nath case, (1967) 2 SCR 762, as well as what is popularly known the Privy Purse case, (1971) 1 SCC 85. Before concluding the discussion on this topic, it is necessary to refer to one more decision of this Court i.e. Union of India v. Dhillon, (1971) 2 SCC 799. Hence the law as laid down in Bombay Co. case, is binding on us and its correctness was not challenged before us."

Now when all the Counsel appearing for all the parties before the Court were eager to rely on the speeches made by the members of the Constituent Assembly who would place the law before the Court on this very important matter. In Australia, when objection was raised before the highest Court in the Commonwealth, Chief Justice Griffith nipped the evil in the bud and refused to allow the speeches to be quoted before the Court. Later on, when the attempt was made again in South Australia v. Commonwealth, 65 CLR 373, 409, Latham, C.J., said:

"Reports of speeches in Parliament are also irrelevant and inadmissible. There are two Houses of Parliament in the Commonwealth. They consist of 110 voting members belonging to different parties or to no parties. Members of Parliament frequently have differing opinions, not only as to the merits and real object of Bills presented, but as to their meaning. Neither the validity nor the interpretation of a statute passed by Parliament can be allowed to depend upon what members, whether Ministers or not, choose to say in Parliamentary debates. The Court takes the words of Parliament itself, formally enacted in the statute, as expressing the intention of Parliament."

Halsbury, Laws of England, 3rd Ed in Para 622 at page 410 of Vol. 36, says:

"Even when words in a statute are so ambiguous that they may be construed in more than one sense, regard may not be had to the bill by which it was introduced or to the fate of amendments dealt with in either House of Parliament or to what has been said in Parliament."

Same view is expressed by Craies on Statute law, (1971 Ed.) with respect to law in England, Canada, Australia and India. Maxwell on Interpretation of Statutes is of the same view and adds:

"The other is the danger that members of either House might, in the course of debate, attempt to influence the future interpretation of a statute by expressing their own 'views' as to its probable effect in the hope that those would remain uncontradicted at the conclusion of its passage through Parliament."

Unless this point was thrashed out in argument before the Court, how can a Judge give his opinion thereon so as to bind the Court itself or the future generation? The only course open to the Supreme Court was to appoint an amicus curie to place the relevant material before the Court. There is no dearth of eminent counsel practising at the Bar of the Court. I believe at least a score of days would have been saved and several lakhs of rupees of the Union of India, of the States who intervened and the parties who appeared before the Court and the public time of the Court itself would have been avoided.

(iii) Views of Jurists, Commentators and Dictionaries.—When the language of Article 368 of the Constitution is plain, clear and unambiguous, how can dictionaries be called in aid? I am glad that much reliance has not been paid on the views of jurists and Commentators. It was a waste of time and energy.

In the circumstances and for the reasons stated above both the Court and the parties have been beating about the bush. Counsel for the principal respondent omitted to hit the Bull's eye. He ought to have raised a preliminary objection:

The procedure prescribed in Article 368 of the Constitution having been duly complied with, the validity of the Constitution Amendments is a political question and is not justiciable, as the language of Article 368 is plain and unambiguous. (It has been so held by the majority), no sooner the President gave his assent to the said Amendments, the Constitution stood amended and the Court cannot declare a provision of the Constitution as ultra vires.

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