provisions of Article 329-A shall take effect notwithstanding anything
contained in the Constitution.
175. The proposition that the power of amendment under Article 368 does
not enable Parliament to alter the basic structure or framework of the
Constitution was laid down by this Court by a majority of 7 to 6 in the case of
His Holiness Kesavananda Bharathi v. State of Kerala, (1973) Supp SCR
1=(AIR 1973 SC 1461). Apart from other reasons which were given in some of
the judgements of the learned Judges who constituted the majority, the
majority dealt with the connotation of the word "amendment." It was held
that the words "amendment of the Constitution" in Art. 368 could not have
the effect of destroying or abrogating the basic structure of the Constitution.
Some of us who were parties to that case took a different view and came to
the conclusion that the words "amendment of the Constitution" in Article 368
did not admit of any limitation. Those of us who were in the minority in
Kesavananda's case (supra) may still hold the same view as was given
expression to in that case. For the purpose of the present case, we shall have
to proceed in accordance with the law as laid down by the majority in that
case.
176. Before dealing with the question as to whether the impugned
amendment affects the basic structure of the Constitution I may make it
clear that this Court is not concerned with the wisdom behind or the
propriety of the impugned constitutional amendment. These are matters
essentially for those who are vested with the authority to make the
constitutional amendment. All that the Court is concerned with is the
constitutional validity of the impugned amendment.
177. I may first deal with the second contention advanced by Mr. Shati
Bhushan According to him, the impugned constitutions amendement and the
amending Act of 1975 were passed in sessions of Parliament where some
members, including the respondent, could not be present because they had
been illegaly detained. The fact that those measures were passed by the
requisite majority has not been questioned by the learned counsel but he
submits that if the above meantioned members had not been detained and
had not been prevented from attending the sittings of Parliament, they could
have influenced the other members and as such is possible that the impugned
Constitution Amendment Act and the 1975 R P amending Act might not have
been passed. Mr. Shanti Bhushan accordingly asserts that the sitting of the
Houses of Parliament in which for above mentioned two meansures were
passed were not legal sittings. Any measure passed in such sittings,
according to the learned counsel, cannot be considered to be a valid piece of
constitutional amendment or statutory amendment.
178. There is, in my opinion, no face in the above submission. The
proposition that member of Parliament cannot claim immune from being
detained under a law relating to preventive detention does not now admit of
much doubt. The privileges, powers and the immunities of the members of
the two Houses of Indian Parliament as well as of the Indian legislatures as
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