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This case summary is written by Gurkaran Babrah, a first-year law student at Symbiosis Law School, Noida and Pragya Agrahari of Amity Law School, Lucknow.

It has been published by Rachit Garg.

Introduction

Golaknath v. State of Punjab is one of the landmark cases in Indian legal history. A number of questions were raised in this case. But the most important issue was whether the parliament had the power to amend the fundamental rights enshrined under Part III of the Constitution of India or not. The petitioners contended that the parliament has no power to amend the fundamental rights whereas the respondents contended that the constitution-makers never wanted our constitution a rigid and Non-flexible one. The court held that the parliament cannot amend Fundamental Rights. This ruling was overturned in Kesavananda Bharati vs Union of India 1973. In this, the court held that the parliament can amend the constitution including fundamental rights but the parliament cannot change the basic structure of the constitution.

Significance of Fundamental laws

Fundamental rights are the primary rights, the demand of which laid the foundation of the Indian Nationalist Movement and the Indian National Congress. They are the necessary rights that shape the personalities of human beings and provide protection to minorities, backward classes, and other weaker sections. A person, with all his fundamental rights provided, can chalk out his own life in his own manner. Justice Hidayatullah aptly said that “the protection of the fundamental Rights is necessary so that we may not walk in fear of democracy itself.” It is necessary to preserve the ideals of democracy.

Our Constitution has tried to keep these Fundamental Rights in the safest place possible, out of the reach of Parliament. Any legislation of  Parliament which seems to infringe on the fundamental rights of the people will be declared void by the court. The Constitution has declared them  ‘justiciable’ so that anyone whose fundamental rights have been infringed by the state can take recourse to the court. They are also given preference over the Directive Principles of State Policy, which are non-justiciable in nature, and it is provided that the fundamental rights cannot be abridged for the purpose of enforcing the Directive Principles of State Policy. 

The Court in this case has noted the importance of fundamental rights through various precedents:

  1. In A.K. Gopalan v. State of Madras (1950), they were described as ‘paramount’,
  2. In Champakam Dorairajan v. State of Madras (1950), they were narrated as ‘sacrosanct’,
  3. In Pt. M.S.M. Sharma v. Shri Sri Krishna Sinha (1958), they were explained as ‘rights reserved by the people’,
  4. In Smt. Ujjam Bai v. State of U.P. (1961), they were stated as ‘inviolable and inalienable, and
  5. In other cases, they were described as ‘transcendental’, which means that even a unanimous bill cannot come into existence if it abrogates fundamental freedoms. 

Important legal questions involved

Conflict between Article 13(2) and Article 368

Article 13(2) contains the provision which forbids the state from making any law in contravention of the fundamental rights as provided in Part III of the Constitution. Any such law which takes away or abridges the people’s basic fundamental rights would be ‘void’. On the other hand, Article 368 empowers Parliament to amend any provision of the Constitution. But in the opinion of Justice Hityadullah, Article 368 cannot be amended by Parliament so as to empower itself to make amendments to fundamental rights as it will go against Article 13(2) of the Constitution.   

As per the dissenting judges, Article 368 has the power to amend all the provisions of the Constitution, which also includes fundamental rights. For the purposes of Article 13(2), an amendment is not a ‘law’, so it cannot be tested under this Article. 

In this case, the majority was of the opinion that the cases of Sajjan Singh and Shankari Prasad were erroneous decisions as they gave precedence to the amending power of Parliament over fundamental rights. Fundamental rights cannot be abridged or taken away by way of amendments to Article 368. Article 368 was subject to judicial review and the word ‘law’ under Article 13(2) includes an amendment, and any amendment violating the fundamental rights would be void. Although the definition of law in Article 13(3)(c) does not expressly mention‘ amendments’ in a wider sense, it is included in it. Hence, Parliament has no power to amend any provisions of Part III of the Constitution.   

Validity of the 1st Amendment Act

The Constitution (First Amendment) Act, 1951 amended various constitutional provisions, including Article 14 and Article 19, and also inserted Article 31-A and Article 31-B with retrospective effect. The major objects behind this amendment are to provide for the acquisition of zamindari lands and the abolition of permanent settlement without any aid from the court. This amendment came as a consequence of various court judgements, like the case of Kameshwar Singh v. the State of Bihar (1952), where the Bihar Land Reforms Act (1950) was held to be unconstitutional. 

Various appeals were filed before the Supreme Court in regard to the constitutionality of this Act, but before these appeals could be heard, this amendment was passed by the government. After this, the constitutionality of this amendment has been challenged before the Supreme Court in the case of Sri Shankari Prasad Deo v. Union of India (1951), where it was held totally valid. There were various grounds for contention, but the primary ground was that the amendments made under Article 368 of the Constitution were liable to be tested under Article 13(2). But the Court rejected this contention and held that “there was a clear demarcation between ordinary law made in the exercise of legislative power and constitutional law made in the exercise of constituent power, and in the context of Article 13, “law” must be taken to mean rules or regulations made in the exercise of ordinary legislative power and not amendments to, the Constitution made in the exercise of constituent power; in consequence, Article 13(2) did not affect amendments made under Art. 368.”

But in the Golaknath case, the majority was of the opinion that this case was wrongly decided.

Validity of the 17th Amendment Act

The Constitution (Seventeenth Amendment) Act, 1964 amended Article 31A and extended the definition of ‘estate’ to include ryotwari and agricultural lands. Moreover, the Ninth Schedule was also amended by inserting two more Acts, that is, the Mysore Land Reforms Act, 1961 and the Punjab Security of Land Tenures Act, 1953. This amendment saved the two Acts from being declared unconstitutional on the grounds that they are inconsistent with the fundamental rights (Articles 13, 14 or 31) provided under Part III of the Constitution. The validity of this Amendment Act was challenged in the case of Sajjan Singh v. State of Rajasthan (1965) and was held to be valid. The Court in this case has declared that Parliament had the power to amend fundamental rights. 

Parliament’s amending power

The majority, in this case, was of the opinion that Parliament has no power to amend the fundamental rights, keeping in mind their significance in a democratic state and the limitations of the amending power which can be misused by Parliament. In the words of the then Chief Justice of India, Subba Rao, “The fundamental rights are given a transcendental position under our Constitution and are kept beyond the reach of Parliament.” 

In regard to the power of Parliament to amend fundamental rights, the Court stated that:

  1. The word ‘law’ in Article 13(2) refers to laws made in the exercise of legislative power and not the constitutional law made in the exercise of constitutional power.
  2. Article 13(2) and Article 368 both were widely phrased and therefore, harmonious construction should be done so that one should be read in respect of the other. In this case, Article 13 must be read subject to Article 368.

As per Justice Hidayatullah, fundamental rights were not within Parliament’s giving or taking. They were secured to the people by Articles 12, 13, 32, 136, 141, 144 and 226. Parliament is not the same as the Constituent Assembly but only a constituted body which should bear allegiance to the Constitution. It is not within the scope of the power of Parliament to change the fundamental parts of the Constitution. Only amendments made by Parliament which do not abridge or take away the fundamental rights were valid.  

Differences in amending fundamental laws and other legislations

The only difference between constitutional law and ordinary law can be said to arise from the fact that constitutional laws are generally amendable under a process that, to varying degrees, is more difficult or elaborate. Despite the claim that Article 368 is a complete code in respect of the procedure of amendments, various provisions of the Constitution like Articles 4, 11 and 169, show that the amendment can be done by opting for the ordinary law-making procedure. A constitutional amendment is also passed by the two Houses of Parliament and is assented to by the President like ordinary legislation, with the only difference being that in the case of a constitutional amendment, sometimes a special majority or special majority and ratification of states is required. The Case, in this context, also quoted the view of the famous legal jurist, Sir Ivor Jennings, who has stated that there is a clear separation between constitutional law and the rest of the law and it must never be forgotten. Moreover, ordinary legislation must always conform to the fundamental laws. 

Whether amendments are included in the definition of law

The definition of law as per Article 13(3) of the Constitution includes any ordinance, bye-laws, rules, orders, regulations, customs, usages, notifications, etc, but it neither excludes nor includes ‘constitutional amendments’ in its definition. But in this case, it was held that, in the wider sense, the term ‘law’ includes constitutional amendments.

Identification of Parties (including `the name of the judges)

PETITIONER: I.C GOLAKNATH & ORS

RESPONDENT: STATE OF PUNJAB 

DATE OF JUDGEMENT: 27/02/1967

BENCH: RAO, K. SUBBA (CJ), WANCHOO K.N, HIDAYATULLAH. M, SHAH J.C, SIKRI S.M, BACHAWAT R.S, RAMASWAMI V, SHELAT, J.M, BHARGAVA, VASHISHTH, MITTER, G.K, VAIDYALINGAM C.A.

Summary of Facts

The family of Henry and William Golaknath were in possession of over 500 acres of farmland in Jalandhar, Punjab. Under the Punjab security and Land Tenures Act, the government held that the brothers could keep only thirty acres each, a few acres would go to tenants and the rest was declared surplus. This was challenged by the family of Golaknath in the courts. Further, this case was referred to the Supreme court in 1965. The family filed a petition under Article 32 challenging the 1953 Punjab Act on the grounds that it denied them their constitutional rights to acquire and hold property and practice any profession (Article 19 (f) and (g) and to equality before the protection of the law (Article 14). They sought to have the seventeenth amendment – which had placed the Punjab Act in the ninth schedule – declared ultra vires (beyond the powers). Golaknath. I.C v State of Punjab is one of the landmark cases in Indian history. With its ruling, in this case, the court developed jurisprudence around what is known as the doctrine of basic structure. The court in 1967 ruled that the Parliament can not curtail any of the fundamental rights enshrined under the constitution of India. 

Issues before the Court 

The issue which came before the court was whether the parliament has the absolute power and the power to amend the fundamental rights enshrined under the constitution or not?

Contention of the parties 

Petitioner’s arguments

  • The petitioner argued that the constitution of India was drafted by the constituent assembly and it is of permanent nature. No one can change or can try to bring change in the Constitution of India.
  • They argued that the word “amendment” in question only implies a change in accordance with the basic structure but not altogether a new idea.
  • Further, the petitioner contended that the fundamental rights enshrined under part III of the constitution cannot be taken away by the parliament. They are the essential and integral part of the constitution without which Constitution is like a body without a soul.
  • The petitioner also argued that Article 368 of our Constitution only defines the procedure for amending the Constitution. It does not give the power to the parliament to amend the Constitution.
  • The last thing on which the petitioner argued before the court was that Article 13(3)(a) in its definition of “law” covers all types of law i.e. statutory and constitutional etc. And by virtue of Article 13(2), which says that the state cannot make any law that takes away the rights mentioned under Part 3, any constitutional amendment which takes away the Fundamental Rights will be unconstitutional and invalid.

Respondent’s arguments 

  • The respondent contended before the court that constitutional amendment is a result of the exercise of its sovereign power. This exercise of sovereign power is different from the legislative power which parliament exercises to make the laws.
  • Our Constitution makers never wanted our constitution to be rigid in its nature. They always wanted that our Constitution to be flexible in its nature.
  • The object of the amendment is to change the laws of the country as it deems fit for the society. They argued that if there won’t be any provision for amendment then, it would make the Constitution a rigid and non-flexible one.
  • They further argued that there is no such thing as basic structure and non-basic structure.
  • All the provisions are equal and of equal importance. There is no hierarchy in the constitutional provisions. 

Important case laws referred

Sri Shankari Prasad Singh Deo v. Union of India (UOI)

Facts of the case

Various legal questions were raised in petitions as to whether the Constitution (First Amendment) Act, 1951, passed by Parliament, which inserts Articles 31A and 31B into the Constitution, is ultra vires and unconstitutional. Political parties in power, commanding the majority of votes in several state legislatures and Parliament, carried out certain agrarian reforms in U.P., Bihar, and other states, by enacting legislation which can be referred to as the Zamindari Abolition Acts. Various aggrieved zamindars attacked the validity of those Acts in courts of law, being in contravention of fundamental rights. While appeals against the orders of various high courts were pending in this court, the Union Government brought forward a Bill to amend the Constitution, which was passed by the requisite majority as the Constitution (First Amendment) Act, 1951, and it put an end to litigation and remedied defects in the working of the Constitution.

Issues involved

Whether the Constitution (First Amendment) Act, 1951 is ultra vires?

Judgement

It was held that Articles 31A and 31B, as inserted by the Constitution (First Amendment) Act, 1951, seek to apply to the same certain class of laws already passed by the combined operation of Article 13 read with other relevant articles of Part III. The new Articles were essentially amendments to the Constitution. Parliament alone had the power to enact them.

Sajjan Singh v. State of Rajasthan (1965)

Facts of the case

Various legal questions were raised in petitions as to whether the Constitution (Seventeenth Amendment) Act, 1964, passed by Parliament was ultra vires. This Amendment Act includes various acts passed by the State Legislature into the Ninth Schedule and hence protects them against any imposition in contravention of Articles 14, 19, and 31 of the Constitution. The Ninth Schedule consists of acts which cannot be challenged in the courts, that is, judicial review cannot be done in their case. Most of the acts were related to agricultural lands and property. Including the Acts which were otherwise contravening the provisions of the Constitution, Parliament tried to save these acts from any judicial intervention. Therefore, it was contended that the judicial review that forms part of the basic structure was violated.

Issues involved

Whether changing the fundamental part of the Constitution comes under the purview of an amendment within Article 368?

Judgement

The Supreme Court in this case held that this amendment is covered under the purview of Article 368 and Parliament is empowered to amend any part of the Constitution as per Article 368. It was also upheld that Article 13 only applies to ordinary legislation and not to constitutional amendments. On the question of whether Parliament could amend the fundamental rights or not, it was held that Parliament was empowered to amend any part of the Constitution, including the fundamental rights.

Judgement (Ratio and Obiter)

In this case, at that time the supreme court had the largest bench ever. The ratio of the judgment was 6:5, the majority favouring the petitioners. The CJI at that time and with other justices (J.C. Shah, S.M. Sikri, J.M. Shelat, C.A. Vaidiyalingam) wrote the majority opinion. Justice Hidayatullah agreed with CJI Subba Rao and therefore he wrote a separate opinion. Whereas Justices K.N. Wanchoo, Vishistha Bhargava and G.K Mitter they all wrote single minority opinion and justices R.S. Bachawat & V. Ramaswami wrote separate minority opinions.

The majority opinion of Golakh Nath shows scepticism in their minds about the then-course of the parliament. Since 1950 the parliament has used article 368 and have passed a number of legislations that had in one or another way violated the fundamental rights under part III of the constitution. The majority had doubts that if Sajjan Singh remained the law of the land, a time can come when all fundamental rights adopted by our constituent assembly will be changed through amendments. Keeping in view the problem of fundamental rights and fearing that there can be a transfer of Democratic India into totalitarian India. Therefore, the majority overruled Sajjan Singh & Shankari Prasad. 

The majority said that the parliament has no right to amend the fundamental rights. These are fundamental rights are kept beyond the reach of parliamentary legislation. Therefore, to save the democracy from the autocratic actions of the parliament the majority held that parliament cannot amend the fundamental rights enshrined under Part III of the Constitution of India The majority said that fundamental rights are the same as natural rights. These rights are important for the growth and development of a human being.

Critical Analysis of the Judgement

Fundamental Rights are considered to be necessary for the development of human personality. These rights are the rights that help a man to figure out his/her own life in the manner he/she wants. Our constitution has given us fundamental rights which also include the rights of minorities and other backward communities. According to the Constitution, Parliament and the state legislatures in India have the power to make laws within their respective jurisdictions. But, this power is not absolute in nature. The Constitution rests with the judiciary and the power to adjudicate upon the constitutional validity of all laws also rests with the judiciary. 

If a law made by Parliament or the state legislatures violates any provision of the Constitution, the Supreme Court has the power to declare such a law invalid, unconstitutional or ultra vires. This check notwithstanding, the founding fathers wanted the Constitution to be an adaptable document rather than a rigid framework for governance. They wanted it to be a flexible document that can adjust or adapt itself according to the changing situations. 

Parliament was invested with the power to amend the Constitution. Article 368 of the Constitution gives the impression that Parliament’s amending powers are absolute and encompass all parts of the document. But the Supreme Court has acted as a brake to the legislative enthusiasm of Parliament ever since independence. With the intention of preserving the original ideals envisioned by the constitution-makers, the apex court pronounced that Parliament could not twist, damage or alter the basic features of the Constitution under the pretext of amending it. The phrase ‘basic structure’ itself cannot be found in the Constitution. The Supreme Court recognised this concept for the first time in the historic Kesavananda Bharati case in 1973

The basic structure of the constitution consists of:

  • Supremacy of the Constitution;
  • Secular character of the Constitution; 
  • Demarcation of power among the legislature, executive, and judiciary; 
  • Integrity and unity of the nation;
  • A democratic and republican form of government; and
  • The sovereignty of the nation.

These are the elements of the basic structure of the constitution. The parliament has the right to amend anything but it can not amend or change any of the fundamental elements of the basic structure. The majority believed that the parliament was drawing power of amendment from article 368 whereas this article only provides the producer of an amendment. The majority said that the power to amend an article of the constitution is under article 248. The minority’s opinion was that if the decision came in favour of the majority then the constitution will become rigid. And if the parliament will not have the power of amending the constitution then the constitution would become static. In accordance with the minority opinion, the procedure of Article 368 very much corresponds to the legislative process but it is different from ordinary legislation.

The judgement provided the prospective overruling of the law. The decision to overrule the earlier judgements was an important, smart and reasonable move by the judiciary of the country. This doctrine of the prospective ruling said that the effects of the law will only be applicable on future dates or future judgements. Past decisions will not be get affected by it. There was a reason why the majority chose the doctrine of the prospective ruling. 

These reasons were:

  • They wanted to avoid multiple litigations which could have followed after this judgment. 
  • The majority also chose this to save the nation from the chaos of retrospective action. 
  • They also wanted to reduce the negative effect of this judgement which could have led to invalidating the previous constitutional amendments. 
  • This was in order to minimize the negative impact of the judgment invalidating the earlier constitutional amendments.
  • Another reason why the majority went for prospective overruling was that since the decision, in this case, was that the parliament has no right to amend the fundamental rights, therefore, every previous amendment will be invalid and unconstitutional. 

Conclusion

The Golakh v. the State of Punjab was one of the important cases in India’s history. The judgement of this case came at a very crucial time. It came when democracy was suffering from the start of what later became the “darkest decade” of India. This judgment helped to stop the parliament from showing its autocracy. The majority bench was afraid of the deterioration of the soul of the constitution. This judgement forbade the parliament from causing any damage to the fundamental rights of the citizens by implementing a law that had the effect of suppressing the autocracy of the parliament. 

The judgment was focused on protecting the fundamental provisions which are equal to the fundamental or natural rights of mankind and no government can take it. Golaknath is a kind of victory of the “rule of law” because it made it clear that even the lawmakers are not above the law. This case reinforced the faith of the citizens that the law is supreme, not the one who makes it(Parliament), neither who implements it (Executive) and nor the one who interprets it (Judiciary).

But there‘s nothing perfect in this world. The same goes for this judgment. The judgement of Golaknath is not a perfect judgement. One of the biggest flaws was that the judge granted rigidity to the constitution. The court said if there has to be an amendment then it has to be through a constituent assembly. Secondly, the court only protected the fundamental rights from the absolute power of the parliament but it could have protected all the fundamental features of the constitution. They did not use the opportunity in a way they could have used. Due to these kind of problems in the judgement it was overruled to some extent in another landmark judgment in the case of Kesavananda Bharati v Union of India 1973. To read more about Kesavananda Bharati v Union of India 1973 refer to the link given below.

References



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