determine the orbit of a claim to a power as a Parliamentary preserve, on the
facts of a case, although, once it is established that the claim is to a power
confined to its proper sphere, they will not decide a mere question of its
proper exercise.
595. Whatever view one may take of any other powers of Parliament, by
reason of Article 105 (3) of the Constitution, I am unable to see how exercise
of the jurisdiction to determine an election dispute, which was in accordance
with Article 329 (b), already vested in the High Court by the Act of 1951 for
all elections to House of the People, could not only be taken away by a
Constitutional amendment, purporting to repeal retropectively the provisions
of the Act of 1951, a piece of ordinary legislation, in their application to
particular class of cases, but at the same time making a declaration of the
rights of the parties to a judgment, without first performing a judicial
funciton also which was not included in the "constituent" or any other law
making power.
596. The question was not clearly raised before us whether a
Constitutional amendment could partially repeal the provision of an ordinary
piece of legislation, that is to say the Act of 1951, in so far as its application to
a certain class of cases is concerned. One of the submissions of the learned
Counsel for the election petitioner, however, was that inasmuch as the
Constitution lays down the norms to which ordinary legislation must
conform, its proper sphere of operation is different from that of ordinary
legislation which takes place under the provision of Articles 245 to 255 of the
Constitution. The argument seemed to be, that if ordinary law making and
constitution making took place in different orbits or on different place of law
making power what could be done by one method was necesarily prohibited
by the other. Learned Counsel relied upon a number of passages from the
judgment in Kesavananda Bharti's case (AIR 1973 SC 1461) (supra), and, in
particular, on what Ray, J., (as he then was) said (at p. 386) (of SCR) = (at p
1688 of AIR):
"The constituent power is sui generis. The majority view in Golak Nath
case (AIR 1967 SC 1643) that Article 13 (2) prevails over Article 368 was on
the basis that there was no distinction between constituent and legislative
power and an amendment of the Constitution was law and that such law
attracted the opening words of Article 245 which in its -turn attracted the
provisions of Article 13 (2). Parliament took notice of the two conflicting
views which had been taken of the unamended Article 368, took notice of the
fact that the prepondering judicial opinion, namely, the decision in Shankari
Prasad case, Saijan Singh case and the minority views of five learned Judges
in Golak Nath case were in favour of the view that Article 368 contained the
power of amendment and that power was the constituent power belonging to
Parliament. Wanchoo, J., rightly said in Golak Nath case that the power
under Article 368 is a constituent power to change the fundamental law, that
is to say, the Constitution and is distinct from ordinary legislative power. So
long as this distinction is kept in mind Parliament will have power under
Article 368 to amend the Constitution and what Parliament does under
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