the system of judicial review. Such a system may delay changes but should
not, I think, speaking entirely for myself, deny or defeat the right of the
people to bring about any change, whether basic or not, in the Constitution.
Indeed, in Kesvananda"s case (AIR 1973 SC 1461) (supra), I indicated that I
thought that the most proper and appropriate function of the amending
power in a Constitution, which is also a part of the Constitution, and, indeed,
its most potent part — was that of making basic changes so as to avert
constitutional break-downs and revolutions if possible. However, we are
precluded from acting upon such a broad view of amending power in this case
as we are bound by the majority opinion in Kesvananda's case (supra) that
implied limitations of "a basic structure", operating from even outside the
language of Art, 368, as it stood before the 24th amendment, restrict its
scope. These limitations must however, be related to provisions of the
Constitution.
576. It has not been argued before us that the introduction by the 24th
amendment of the new clause (1) in Article 368, containing the "constituent
power", itself amplifies or increases the contents or changes the character of
the power in Article 368 by making it a composite power so as to include a
new type of judicial or quasi-judicial power also within its fold now. It is
evident from the judgments of learned judges of this Court in Golaknath's
case (AIR 1967 SC 1643) (supra) that possible distinctions between amending
power and "constituent power" and "Sovereign power" figured prominently in
arguments in that case. Wanchoo, J., in his minority opinion (see: 1967 (2)
SCR 762 at p. 833) = (AIR 1967 SC 1643 at p. 1679-80) said that it was not
necessary, for the purposes of that case, to decide whether the amending
power was as wide as the "sovereign power" of the Constituent Assembly
which had framed our Constitution. After all the discussion that had taken
place then, came the 24th amendment. It does not use the words
"sovereignty" or "sovereign power". I presume that the words "constituent
power" were advisedly used in it so as to clarify the position and not to put in
or to include anything beyond constitution making power in Art. 368.
577. The "constituent power" is still bound by the exclusively prescribed
procedure to "amend by way of addition, variation, or repeal" any provision of
the Constitution. It is entirely a law making procedure elaborately set out in
clause (2). In fact, Art. 368 contains so much of the fundamental law making
or legislative procedure that five judges of this Court, led by Subba Rao, C. J.
opined in Golaknath's case (AIR 1967 SC 1643) (supra), that it was confined
to procedure and did not contain at all the substantive power to amend.
Clause (1) of Art. 368, introduced by the 24th amendment, was, apparently,
meant to remove this objection and to do no more. It could not be in tended to
pour some new amalgam of executive and judicial or quasi-judicial
substantive powers into it also by some implication so as to do away with the
very need for such an elaborate and carefully drawn up Constitution such as
ours. The absence of any quasi-judicial procedure, from the comprehensively
framed procedural provisions of Art. 368, seems extremely significant. It
indicates that it was the clear intention of Constitution makers that no
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