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It is obvious that the fundamental rights enshrined in Part III are not included in the proviso, and so, if Parliament intends to amend any of the provisions contained in Articles 12 to 35 which are included in Part III, it is not necessary to take recourse to the proviso and to satisfy the additional requirements prescribed by it.

Thus far, there is no difficulty. But in considering the scope of Art. 368, it is necessary to remember that Art. 226, which is included in Chapter V of Part VI of the Constitution, is one of the constitutional provisions which fall under cl. (b) of the proviso; and so, it is clear that if Parliament intends to amend the provisions of Art. 226, the bill proposing to make such an amendment must satisfy, the requirements of the proviso. The question which calls for our decision is : what would be the requirement about making an amendment in a constitutional provision contained in Part III, if as a result of the said amendment, the powers conferred on the High Courts under Art. 226 are likely to be affected ? The petitioners contend that since it appears that the powers prescribed by Art. 226 are likely to be affected by the intended amendment of the provisions contained in Part III the bill introduced for the purpose of making such an amendment, must attract the proviso, and as the impugned Act has admittedly not gone through the procedure prescribed by the proviso, it is invalid; and that raises the question about the construction of the provisions contained in Art. 368 and the relation between the substantive part of Art. 368 with its proviso. In our opinion, the two parts of Art. 368 must on a reasonable construction be harmonised with each other in the sense that the scope and effect of either of them should not be allowed to be unduly reduced or enlarged. It is urged that any amendment of the fundamental rights contained in Part III would inevitably affect the powers of the High Court, prescribed by Art. 226, and as such, the bill proposing the said amendment cannot fall under the proviso; otherwise the very object of not including Part III under the proviso would be defeated. When the Constitution-makers did not include Part III under the proviso, it would be reasonable to assume that they took the view that the amendment of the provisions contained in Part III was a matter which should be dealt with by Parliament under the substantive provisions of Art. 368 and not under the proviso. It has no doubt been suggested that the Constitution-makers perhaps did not anticipate that there would be many occasions to amend the fundamental rights guaranteed by Part M. However that may be, as a matter of construction, there is no escape from the conclusion that Art. 368 provides for the amendment of the provisions contained in Part III without imposing on Parliament an obligation to adopt the procedure prescribed by the proviso. It is true that as a result of the amendment of the fundamental rights, the area over which the powers prescribed by Art. 226 would operate may be reduced, but apparently, the ,Constitution-makers took the view that the diminution in the area over which the High Courts' powers under Art. 226 operate, would not necessarily take the case under the proviso. On the other hand, if the substantive part of Art. 368 is very liberally and generously construed and it is held that even substantial modification of the fundamental rights which may make a very serious and substantial inroad on the powers of the High Courts under Art. 226 can be made without invoking the proviso, it may deprive cl. (b) of the proviso of its substance. In other words, in construing both the parts of Art. 368, the rule of harmonious construction requires that if the direct effect of the amendment of fundamental rights is to make a substantial inroad on the High Courts' powers under Art. 226, it would become neces- sary to consider whether the proviso would cover such a case or not. If the effect of the amendment made in the fundamental rights on the powers of the High Courts prescribed by Art. 226, is indirect, incidental, or is otherwise of an insignificant order, it may be that the proviso will not apply. The proviso would apply where the amendment in question seeks to make any change, inter alia, in Art. 226. and the question in such a case would be : does the amendment seek to make a change in the provisions of Art. 226 ? The answer to this question would depend upon the effect of the amendment made in the fundamental rights. In dealing with constitutional questions of this character, courts generally adopt a test which is described as the pith and substance test. In Attorney-General for Ontario v. Reciprocal Insurers and others(1), the Privy Council was called upon to consider the validity of the Reciprocal Insurance Act, 1922 (12 & 13 Geo. 5, Ont., c. 62) and s. 508c which had been added to the Criminal Code of Canada by ss. 7 & 8 Geo. 5, c. 29 Dom. Mr. Justice Duff, who spoke for the Privy Council, observed that in an enquiry like the one with which the Privy Council was concerned in that case, "it has been formally laid down in judgments of this Board, that in such an inquiry the Courts must ascertain the 'true nature and character' of the enactment : Citizens' Insurance Co. v. Parsons(1); its 'pith and substance' : Union Colliery Co. v. Bryden(3); and it is the result of this investigation, not the form alone, which the statute may have assumed under the hand of the draughtsman, that will determine within which of the categories of subject matters mentioned in ss. 91 and 92 the legislation falls; and for this purpose the legislation must be 'scrutinised in its entirety' "Great West Saddlery Co. v. The King" (4). It is not (1) [1924] A.C. 328.

The second step in the same direction was taken by Parlia- ment in 1955 by amending Art. 31A by the Constitution (Fourth Amendment) Act, 1955. The object of this amendment was to widen the scope of agrarian reform and to confer on the legislative measures adopted in that behalf immunity from a possible attack (1) A.I.R. 1951 Pat. 91.

(2) A.I.R. 1951 AU. 674.

that they contravened the fundamental rights of citizens. In other words, this amendment protected the legislative measures in respect of certain other items of agrarian and social welfare legislation, which affected the proprietary rights of certain citizens. That is how the second amendment was made by Parliament. At the time when the first amendment was made, Art. 31B expressly provided that none of the Acts and Regulations specified in the 9th Schedule, nor any of the provisions thereof, shall be deemed to be void or ever to have become void on the ground that they were inconsistent with or took away or abridged any of the rights conferred by Part III, and it added that notwithstanding any judgment, decree or order of any Court or tribunal to the contrary, each of the said Acts and Regulations shall subject to the power of any competent legislature to repeal or amend, continue in force. At this time, 19 Acts were listed in Schedule 9, and they were thus effectively validated. One more Act was added to this list by the Amendment Act of 1955, so that as a result of the second amendment, the Schedule contained 20 Acts which were validated.

(2) [1964]7 S.C.R. 82 in the Schedule is found to be effective, these 44 Acts would have to be treated as valid.

Thus, it would be seen that the genesis of the amendments made by Parliament in 1951 by adding Articles 31A and 31B to the Constitution, clearly is to assist the State Legislatures in this country to give effect to the economic policy in which the party in power passionately believes to bring about much needed agrarian reform. It is with the same object that the second amendment was made by Parliament in 1955, and as we have just indicated, the object underlying the amendment made by the impugned Act is also the same. Parliament desires that agrarian reform in a broad and comprehensive sense must be introduced in the interests of a very large section of Indian citizens who live in villages and whose financial prospects are integrally connected with the pursuit of progressive agrarian policy. Thus, if the pith and substance test is applied to the amendment made by the impugned Act, it would be clear that Parliament is seeking to amend fundamental rights solely with the object of removing any possible obstacle in the fulfilment of the socioeconomic policy in which the party in power believes. If that be so, the effect of the amendment on the area over which the High Courts' powers prescribed by Art. 226 operate, is incidental and in the present case can be described as of an insignificant order. The impugned Act does not purport to change the provisions of Art. 226 and it cannot be said even to have that effect directly or in any appreciable measure. That is why we think that the argument that the impugned Act falls under the proviso, cannot be sustained. It is an Act the object of which is to amend the relevant Articles in Part III which confer fundamental rights on citizens and as such it falls under the substantive part of Art. 368 and does not attract the provisions of cl. (b) of the proviso. If the effect of the amendment made in the fundamental rights on Art. 226 is direct and not incidental and is of a very significant order, different considerations may perhaps arise. But in the present case, there is no occasion to entertain or weigh the said considerations. Therefore the main contention raised by the petitioners and the interveners against the validity of the impugned Act must be rejected.

As indicated in the judgment of my Lord the Chief Justice an amendment made by resort to the first part of Art. 368 could be struck down upon a ground such as taking away the jurisdiction of the High Courts under Art. 226 or of this Court under Art. 13 6 without complying with the requirements of the proviso. To this I would like to add that if the effect of an amendment is to curtail substantially, though indirectly, the jurisdiction of High Courts under AA. 226 or of this Court under Art. 136 and recourse has not been had to the proviso to Art. 368 the question whether the amendment was a colorable exercise of power by Parliament will be relevant for consideration. Before I part with this case I wish to make it clear that what I have said in this judgment is not an expression of my final opinion but only an expression of certain doubts which have assailed me regarding a question of paramount importance to the citizens of our country : to know whether the basic features of the Constitution under which we live and to which we owe allegiance are to endure for all time-or at least for the foreseeable future-or whether the yard no more enduring than the implemental and subordinate provisions of the Constitution. Petitions dismissed.