power Mr. A.K. Sen, Learned Counsel for the original respondent, puts this
very argument in the following words in his written submissions.
‘‘In the hands of the constituent authority there is no demarcation of
powers. But the demarcation emerges only when it leaves the hands of the
constituent authority through well-defined channels into demarcated pools.
The constituent power is independent of the fetters or limitations imposed by
separation of powers in the hands of the organs of the Government, amongst
whom the supreme authority of the State is allocated.
The constituent power is independent of the doctrine of separation of
powers. Separation of powers is when the constitution is framed laying down
the distribution of the powers in the different organs such as the legislative,
executive and the judicial power. The constituent power springs as the
fountain head and partakes of sovereignty and is the power which creates the
organ and distributes the powers. Therefore, in a sense the constituent power
is all embracing and is at once judicial, executive and legislative, or in a sense
super power. The constituent power can also change the system of checks and
balances upon which the separation of powers is based.’’
522. The theory advanced before us may have been designed to escape the
logical consequences of the majority view in Kesavananda Bharti’s case (AIR
1973 SC 1461) (supra) which we cannot, sitting as a Bench of five Judges in
this Court, overrule. The theory is, however, quite novel and has to be, I
think, dealt with by us. It postulates an undifferentiated or amorphous
amalgam of bare power constituting the ‘‘constituent power’’. According to
this theory, the power which constitutes does not need to be either
constituted or prevented from exercising a power assigned by it already to a
constituted authority. Hence, it is a power of a kind which is above the
Constitution itself. If I am not mistaken, the learned Solicitor-General did
say that the constituent power lies ‘‘outside’’ the Constitution. In other words,
it is independent and above the Constitution itself because it operates on the
Constitution and can displace it with, so to say, one stroke of its exercise. I do
not think that such an extreme theory could be supported by the citation of
either the majority or minority views of Judges, baring stray remarks made
in other contexts, either in the L.C. Golaknath v. State of Punjab’s case
(1967) 2 SCR 672 = (AIR 1967 SC 1643) or in the Kesavananda Bharti’s case
(supra). In fact, in neither of these two cases was the question raised or
considered at all by this Court whether the amending power or the
‘‘Constituent power’’ itself constituted such an amalgamated concentration of
power, said to be distributed by the Constitution between the three different
organs of a State at a ‘‘subsequent stage’’ whatever this may mean. The
distribution of power of different kinds between the three organs was
compared to delegation of authority to agents which could be withdrawn at
any time by the constituent bodies.
523. If we were to accept the theory indicated above, it would make it
unnecessary to have a constitution beyond one consisting of a single sentence
laying down that every kind of power is vested in the constituent bodies
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