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23. The nature of the constituent power is legislative. The constituent power cannot exercise judicial power. Exercise of judicial power or of a purely executive power is not power of amendment of the Constitution. The Constitution may be amended to change constitutional provisions but the constituent power cannot enact that a person is declared to be elected. The consequence of change of law may be that the decision given by a court under the law as it stood will not stand.

24. The respondent contends that judicial review is an essential feature of basic structure because of the doctrine of separation of powers for these reasons : Judicial review is basic structure in the matter of election to ensure free, fair and pure election. In the American and the Australian Constitutions the judicial power of the State is located in the Judiciary. There is no such provision in our Constitution. The Executive, the Legislature and the Judiciary are all treated under our Constitution with respective spheres. The Judiciary are all treated under our Constitution with respective spheres. The jurisdiction of this Court and of High Courts under our Constitution is dealt with by articles under the heads of the Union Judiciary and the State Judiciary. Under Article 136 any tribunal or court is amenable to the jurisdiction of this Court. The corollary drawn from this is that if under clause (4) of Article 329A of the Thirty-ninth Amendment the power of judicial review is taken away it amounts to de

48. When the constituent power exercises powers the constituent power comprises legislative, executive and judicial powers. All powers flow from the constituent power through the Constitution to the various departments or heads. In the hands of the constituent authority there is no demarcation of powers. It is only when the constituent authority defines the authorities or demarcates the areas that separation of power is discussed. The constituent power is independent of the doctrine of separation of powers. The constituent power is sovereign. It is the power which creates the organs and distributes the powers.

49. The constituent power is sui generis. It is different from legislative power. The position of unlimited law-making power is the criterion of legal sovereignty. The constituent power is sovereign because the Constitution flows from the constituent power.

50. In Article 329A an exercise of judicial power is the question for determination. In legislative processes there may be judicial process. If the Legislature has to fix the amount or lay down the principle for fixation of amount the question will arise as to whether this is exercise of judicial power. The determination of the amount will involve judicial procedure. When the Legislature determines the amount the fixation of amount is purely by legislative process. But in doing so the Legislature takes into account factors relevant to individual properties.

51. Every organ of the State has to ascertain facts which make the foundation of its own decision. The Executive usually collects its materials through its departments. The Judiciary acts in a field where there are two or more parties before it and upon evidence placed before it pronounces its verdict according to principles of natural justice. The Legislature is entitled to obtain information from any source. The Legislature may call witnesses. The rule of audi alteram partem is not applicable in a legislative process. Legislation is usually general. It may sometimes be for special reasons an individual case. There is no doubt that the constituent power is not the same as legislative power. The distinction between constituent power and legislative power is always to be borne in mind because the constituent power is higher in norm.