# I. C. GOLAK NA TH & ORS v. STA TE OF PUNJAB & ANRS

- **Citation:** [1967] 2 S.C.R. 762
- **Court:** Supreme Court of India
- **Decided:** 1967-02-27
- **Case number:** Writ Petition No. 153 of 1966
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/i-c-golak-na-th-ors-v-sta-te-of-punjab-anrs-4180
- **Pages:** 187

## Headnote

I. C. GOLAK NA TH & ORS.
v.
STA TE OF PUNJAB & ANRS.
(With Connected Petitions)
February 27, 1967
[K. SVBBA RAo, C.J., K. N. WANCHOO,
M. HIDAYATULLAH,
J. C. SHAH, S. M. SIKRI, R. S. BACHAWAT, V. RAMASWAMJ,
J. M. SHELAT, V. BHARGAVA, G. K. MITTER AND
C. A. VAIDIALINGAM, JI.]
Co11stitution of India, Arts. 13(2), 368, 245, 248, Schedule ?,-Li11 I,
Entry 91-Power to amend Constitution lfhere residu-Wluther resides
in Art. 368 or in residuary power of Parlio1nent under Art. 248 read with
Entry 97 List /-Fu11damenta/ Rights in Part Ill whether can be ammded and abridged by tile procedure in Art. 368-'Law' under Art. 13(2)
whether includes constitutional amendt~nJs-Scheme of ConstitutionFunda1nerrtal rights nd1ether intended to be permanent
and
unamendabl~Amendmen1 whether exercise of
sovereign
power-Amendment
whether a political mptter outside the purvlew oi courts.
Constitution Seventeenth A1nend111ent Act, 1964-Whether invalid for
contravention of Art. 13(2).
Prospective overruling, doctrine of-Vasi
agrarian
coru1ilutional amendmenls-Necersity of preserving pJSt
lu1ur~tare decisis.
changer under
while protecting
Punjab Security of Land Te11ures Act,
1953 (Act 10 of 1953)-
Mysore Land Reforms Act (Acr 10 of 1962) as amtnded by Act 14 of
1965-Acts contravening fundamental rights-Whether valid.
The validity of the Punjab Security of Land Tenure. Act, 1953
(Act
10 of I 953) and of the Mysore Land Reforms Act (Act 10 of 1962)
as amended by Act 14 of 1965 was challenged by the petitioners under
Art. 32 of the Constitution. Since these Acts were included in the 9th
Schedule lo the Constitution by the Constitution (Seventeenth) Ameodment Act, 1964, the validity of the said Amendment Act was also challen~cd. Jn this connection it was urged that Sankari Prasad's
case in
which the validity of the Constitution (First) Amendment Act, 1951 had
been upheld and Sajjan Singh's case in which the validity of the Constitution (Seventeenth) Amendment
Act, 1964, had been upheld by
this
Court, had been wrongly decided.
It was contended that Parliament had
no power to ame.id fundamental rights
in Part Ill of the Constitution.
HELD : Per Subha Rao, C.1., Shah, Sikri, Shelat and Vaidialingam.
JJ. (Hidayatullah, 1. Concurrin11) : Fundamental Rights cannot be abrid~
ed or taken away by the amending procedure in Art. 368 of tr.e Consbtution.
An amendment to the Constitution is 'law' within the meaning
of Art. 13(2) and is therefore subject to Part Jll of the Constitution.
Sri Sankari Prasad Singh Deo v. Unfon of Indi.l & Anr. [19521 S.C.R.
89 and Sajjarr Sin11h v. State of Rajasthan, [1965) 1 S.C.R. 933, reversed.
Per Subba, Rao, C.J., Shah, Sikri, Shelat and Vaidialingam, 11.
(i) Fundamental rights are the primordial rights necessary for
the
development of human peTM>nality.
They are the rights which e.!llblc a
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GOLAKNATH V. PUNJAB
763
man to chalk out his own life in the manner he likes best. Our Constitution, in addition to the well-known
fundamental rights, also included
the rights of minorities and other backward communities in such rights.
[789 El
The fundamental rights are given a transcendental position under our
Coostitution and are kept beyond the reach
of Parliament. At the
same time Parts III and IV of the Constitution constituted an integrated
scheme forming a self contained code. The scheme is made so elastic
that alt the Directive Principles of State Policy can rea,onably be enforced without taking awar. or abridging the fundamental rights.
While recognising the immutab11ity of the fundamental
rights, subject to social
control, the Constitution itself provides for the suspension or the modification of fundamental rights under specific circumstances, as in Arts. 33,
34 and 35. The non--0b~tante clause with which the IO't
article opens
makes it clear that all the other provisions of the Constitution are subject
to this provision. Article 32 makes
the right to
move the Supreme
Court by appropriate proceedings for the

## Text

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I. C. GOLAK NA TH & ORS.
v.
STA TE OF PUNJAB & ANRS.
(With Connected Petitions)
February 27, 1967
[K. SVBBA RAo, C.J., K. N. WANCHOO,
M. HIDAYATULLAH,
J. C. SHAH, S. M. SIKRI, R. S. BACHAWAT, V. RAMASWAMJ,
J. M. SHELAT, V. BHARGAVA, G. K. MITTER AND
C. A. VAIDIALINGAM, JI.]
Co11stitution of India, Arts. 13(2), 368, 245, 248, Schedule ?,-Li11 I,
Entry 91-Power to amend Constitution lfhere residu-Wluther resides
in Art. 368 or in residuary power of Parlio1nent under Art. 248 read with
Entry 97 List /-Fu11damenta/ Rights in Part Ill whether can be ammded and abridged by tile procedure in Art. 368-'Law' under Art. 13(2)
whether includes constitutional amendt~nJs-Scheme of ConstitutionFunda1nerrtal rights nd1ether intended to be permanent
and
unamendabl~Amendmen1 whether exercise of
sovereign
power-Amendment
whether a political mptter outside the purvlew oi courts.
Constitution Seventeenth A1nend111ent Act, 1964-Whether invalid for
contravention of Art. 13(2).
Prospective overruling, doctrine of-Vasi
agrarian
coru1ilutional amendmenls-Necersity of preserving pJSt
lu1ur~tare decisis.
changer under
while protecting
Punjab Security of Land Te11ures Act,
1953 (Act 10 of 1953)-
Mysore Land Reforms Act (Acr 10 of 1962) as amtnded by Act 14 of
1965-Acts contravening fundamental rights-Whether valid.
The validity of the Punjab Security of Land Tenure. Act, 1953
(Act
10 of I 953) and of the Mysore Land Reforms Act (Act 10 of 1962)
as amended by Act 14 of 1965 was challenged by the petitioners under
Art. 32 of the Constitution. Since these Acts were included in the 9th
Schedule lo the Constitution by the Constitution (Seventeenth) Ameodment Act, 1964, the validity of the said Amendment Act was also challen~cd. Jn this connection it was urged that Sankari Prasad's
case in
which the validity of the Constitution (First) Amendment Act, 1951 had
been upheld and Sajjan Singh's case in which the validity of the Constitution (Seventeenth) Amendment
Act, 1964, had been upheld by
this
Court, had been wrongly decided.
It was contended that Parliament had
no power to ame.id fundamental rights
in Part Ill of the Constitution.
HELD : Per Subha Rao, C.1., Shah, Sikri, Shelat and Vaidialingam.
JJ. (Hidayatullah, 1. Concurrin11) : Fundamental Rights cannot be abrid~
ed or taken away by the amending procedure in Art. 368 of tr.e Consbtution.
An amendment to the Constitution is 'law' within the meaning
of Art. 13(2) and is therefore subject to Part Jll of the Constitution.
Sri Sankari Prasad Singh Deo v. Unfon of Indi.l & Anr. [19521 S.C.R.
89 and Sajjarr Sin11h v. State of Rajasthan, [1965) 1 S.C.R. 933, reversed.
Per Subba, Rao, C.J., Shah, Sikri, Shelat and Vaidialingam, 11.
(i) Fundamental rights are the primordial rights necessary for
the
development of human peTM>nality.
They are the rights which e.!llblc a
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GOLAKNATH V. PUNJAB
763
man to chalk out his own life in the manner he likes best. Our Constitution, in addition to the well-known
fundamental rights, also included
the rights of minorities and other backward communities in such rights.
[789 El
The fundamental rights are given a transcendental position under our
Coostitution and are kept beyond the reach
of Parliament. At the
same time Parts III and IV of the Constitution constituted an integrated
scheme forming a self contained code. The scheme is made so elastic
that alt the Directive Principles of State Policy can rea,onably be enforced without taking awar. or abridging the fundamental rights.
While recognising the immutab11ity of the fundamental
rights, subject to social
control, the Constitution itself provides for the suspension or the modification of fundamental rights under specific circumstances, as in Arts. 33,
34 and 35. The non--0b~tante clause with which the IO't
article opens
makes it clear that all the other provisions of the Constitution are subject
to this provision. Article 32 makes
the right to
move the Supreme
Court by appropriate proceedings for the enforcement of the rights conferred by the said Pans a fundamental right.
Even during grave emergencies Art. 358 only suspends Art. 19 and all other rights are untouched except those sperifically suspended by the President under Art. 3S9.
[789 H; 790 D]
The Constitution has given a place of permanence to the fundamental freedoms.
In giving to themselvea tho Constitution the people have
r .. erved the fundamental freedoms to themselves. Art.
13 merely incorporates that reservation. The Article is however not the source of
the protection of fundamtntal rights but tho expression of the reservation. The importance attached to the fundamental freedoms is so transcmdental that a bill enacted by a unanimous vote of •It the members of
both Houses is ineffective to derogate from its guaranteed exercise. It is
not what Parliament regards at a given
moment as
eonducive to the
public bt.nefit but what Part Ill decl;rres protected, which determines the
ambit of the freedom. The incapacity of Parliament therefore in exercise of its amending power to modify, restrict, or
impa'!ie fundamental
freedoms in P:rrt III arises from the scheme of the Constitution and the
nature of the freedoms. [792 D-F]
A. K. Gopalan v. State of Madras, [1950] S.C.R. 88, State of Madras
v.Smt. Champakam Dorairajan, [1951] S.C.R. 525,
Pandit M. S. M.
Sharma v. Shri Sri Krishna Sinha,
[1959] Supp.
I
S.C.R.
806 and
Ujjam Bai v. Stat• of Uttar Pradesh, [1963] 1 S.C.R. 778, referred to.
If it is the duty of Parliament to enforce directive
principles it ia
equally its duty to enforce them without infringing the fundamental rildlts.
The verdict of Parliament on the scope of the law of social control of
fundamental rights is not final but justiciable. If it were not so,
the
whole scheme of the Constitution would break. (815 H; 816 A-Bl
(ii) Article 368 in terms only prescribes various steps in the matter
of amendment. The article assumes the power to amend
found
elsewhere. The completion of the procedural steps cannot be said to culminate in the power to amend for if that was so the Constitution makers
could have stated that in the Constitution. Nor can the power be implied either from Art. 368 or from the nature of the articles sought to
be amended; the doctrine of necessary implication cannot be invoked if
there is an express provision. There is no necessity to imply any such
power as Parliament has the plenary power to make any law including the
law to amend the Constitution subject to the limitations laid down therein.
[793 E-0]
(iii) The power of Parliament to amend the Constitution is derived
from Arts. 245, 246 and 248 read with item 97 in List I. The residuary
764
SUPREME COURT REPORTS
(1967] 2 S.C.R·
power of Parliament can certainly take in the power to amend the Coll&·
titution. [794 A-DI
Though a Jaw made under Art 24S is s>1bject to the yrovisions of
the Constitution it would be wrong to "'Y that every law o amendment
made under it would necessarily be inconsistent with the articles sought
to be amended. Ii cannot reasonably be said that a lhw llll1ending 111
article is inconsistent with it.
The limitation in Art. 24S is in respect of
the power to make a Jaw and not of the content of the law made within
the scope of its power. (794 E-F]
An order by the President under Art. 392 cannot attract Art. 368 II
the amendment contemplated by the latter provisions can be initiated only
by the introduction of a bill in Parliament It cannot therefore be said
that if the power of amendment is held to be a legisMive power the l'f&.
•ident acting under Art. 392 can amend the
Constitution in terms of
Art. 368. (794 G-HJ
(iv) 1be Constituent Assembly. if so minded. could certainly bav.
conferred an expre~-s le8islative power on Parliament to amend the Constitution by ordinary legislative proces..
There is, therefore. no inherent
inconsistency berwcen legislative process and the amending one. Whether
in the field of a constitutional law or statutory law amendment can be
brought about only by 'law". [794 C-D)
Article 13(2), for the purpose of that Article, gives an inclu<ive definition of 'law'.
It does not prima /acie exclude constitutional law.
The
process under Art. 368 :tself closely resemble; the legislative proce5'.
Article 368 is not a complett code
in respect of the proeedu • ., o!
amendment.
The d<.1:ails of procedure in respect of other bills have to
be followed so far as possible in respeco of a Bill under Art 368 also.
The rules made by the House of the
People providing procedure for
amendments lay down a procedure similar to that Of other bills with
the addition of certain special provisions. If amendment is intended Ill
be something other than
law the constitutional insistence on the said
legjslative process is uMecessary. The imposition of further conditiono
is only a safeguard against hasty action or a
protection to the Stab
but does not change the legislative charac141' of the amendment (7950796 CJ
Article 3 of the Constitution permit• changes in States and their boundaries bv a legislative
process.
Under Arts. 4 and 169 amendments lo
the Constitution are made by 'law' but by a fiction arc deemed not to be
amendments for the purpose of Art. J68. This shows that amendment ii
law and that but for the fiction it would be an amendment within the
meaning of Art. 368. [796 C-F]
Therefore amendments either under Art. 368 or under olher Articlm
are onlv made by Parliament by following the legislative process and are
'law' for the purpose of Art. 13(2). [798 CJ
Mccawley v. The King, (1920) A.C., 691 and TM Brib"Y Commissio111!r v. Pedrick Ran.·inghe, [1964) 2 W.L.R. 1301, referred to.
(v) One need not cavil at the
description
of amending power as a
wvereign power for it is sovereign only within
the scope of the power
conferred by a panicular Constitutl.>n which
may
expressly limit the
pcwer of amendment both substantive and procedural. It cannot therefore
he said that :tmending power can have no limitations. being a sovercigr
power. [804 B.C]
lbe argument that the amending process involves political auestion ...
and is· therefore outside. the scope of jud:cial revic.v cannot alc:o he acceptecl.
It may he Parliament seeks to amend
the Constitution for
oolilical reasons hut rht court in denying that power will not be deciding
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GOLAKNATH V. PUNJAB
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a political que.!tion; it will only be holding that Parliament has no power
to amend particular articles of the Constitution for any purpose whatsoever, be it political or otherwise. [804 E-GJ
(vi) If power to abridge the fundamental rights is denied to Parliament revolution is not a necessary result.
The existence of an all comprehensive power canno~ prevent revolution if there is chaos. in t~e country brought abolit by misrule O!' abuse of power. Such cons1derat1ons are
out of place in construing the provisions of the Constituti0n by a Court of
law. [816 B-CJ
(vii) While ordinarily this Court will be reluctant to reverse its previous decisions it is its duty in the constitution.al field to correct itself
as early as possible, for othe.rwise the future progress of the country and
happiness of the people will be at stake. As it was clear that the decision
in Sankari Prasad's case was wrong, it was pre-eminently a typical case
where this Court should overrule it.
The longer it held the field the
greater the scope for erosion of fundamental rights.
As it contained the
Seeds of destruction of the cherished rights of the poople, the sooner it
was overruled the better for the country. [816. G-H]
The Sup.,lnfendent and Legal Remembrancer State of West Bengal v.
The Corporation of Calcutta, [1967] 2 S.C.R., 170 relied on.
(viii) The Constitution (Seventeenth
Amendment) Act; 1964, inasmuch as it takes away or abridges fundamental
rights was beyond the
amending power of Parliament and void because of contravention of
Art. 13(2). But having regard to the history of this and earlier amendment to the Constitution, their e,ffect on the social and economic affairs
of the country and the chaotic situation that may be brought about by
the sudden withdrawal at this stage of the amendments from the Constitution it was undesfrable to give retroactivity of this decision. The present
was therefore a fit case for the application of the doctrine of "prospective
overruling", evolved by the courts in the United States of America. [805 E;
807 E, G; 808 C-D]
Great Northern Railway v. Sunburst Oil & R.ef. Co. ( 1932) 287 U.S.
358 : 77 L. Ed. 360, Chicot County Drainage v. Baxter State
Bank,
(1940) 308 U.S. 371, Griffin \'. lllionis,
(1956) 351 U.S. 12,
Wolf v.
Colorado, 338 U.S. 25 : 193 L. Ed. 872, Mapp v. Ohio, 367 U.S. 643 :
6 .L. Ed. {2nd Edn.) 1081 and Linkletter v. Walker, (1965) 381 U.S. 618,
referred to.
(ix) The doctrine of "prospective
overruling" is a modem doctrine
suitable for a fa.st moving society. It does not do av.ay with the doctrine
~f st~re decisis, but confines it to past transactions. While in strict theory
1t may be said that the doctrine involves the making of law, what the
court reaHy does is to declare the law but refuse to give retroactivity
to it.
It is reaHy a pragmatic
solution reconc "ling the two conflicting
doctrines, namely, thc.t a court finds the Jaw and that it does make law.
It finds law but ·restricts its operation to the future.
It enables the court
to bring about a smooth transition by
correcting its errors without dis·
turbing the impact of those errors on past transactions.
By the applica~
lion of this doctrine the past may be preserved and the. future protected.
[813 A-C; 814 E-F]
9ur Constituti?n does not exr;ressly or ~y necessarv in1nlica'ion speak
against the doctnne of prospective overruling.
Articles 32,
141
and
142 are. design.edly made comprehenc;ivc to enable the Suprenie Court to
declare Jaw and to give such directions or pass such orders as are necessary to do complete justice. ·Tue expreS"Sion
'declared' in Art. 141
is
wider than the words 'found or made'.
The law declared by the Supreme
Court is the law of the land. If so, there is no acceptable reason 'vhy
766
SUPREME COURT REPORTS
1967) 2 S.CR.
the Coun, in declaring the law
in supersession . of tbe law declared by
A.
it earlier, rould not restrict the operation of the Jaw as declared to the
future and save the transactions whether st~tutory or otherwise that wera
affected on the basis of the earlier la"I. [813 F-HJ
As this Coun for tho fir>t time has been called upo1. to a~ply the doctrine evolved in a different country under different circuru~tanccs, it would
like to move warily in the beginning and would
Jay <io"ln the following
propositions : ( 1) The doctrine of prospective overruling can be invoted
only in matters arising under our Constitution; (2) it can be :ipplied only
by the highest coun of the country, i.e. the Suprecno Court as it h.tS
the coostitutional jurisdiction to declare law binding on all the Courts in
India; (3) the scope of the retrospective operation of tho law declared
by the Supreme Coun superseding its earlier decisions is left to its di•·
cretioo to be moulded in accordance with the justice of the cau~e or malttr
before it. (814 C-DJ
[Applying the doctrine of prospective overruling in the circwmstances
of the present ca•e the Coun declared that this decision would not affect
the validity of the Constitution (Seventeenth Amendment) Act 1964, or
oth..- amendments to the Constitution taking away or abridging the fundamental riglits.
It
further
declared
that in
future
Parliament
will
have no power to amend Part 111 of the Constitution so as to tako aY..·ay
or abridge the fundamental rights.) (814 F-0]
(ll) As according tc thr above dccis'on. the Consti'.ution (Scv.nleenth
Amendm.in1) Act held the fiel1 the validity of the two impugned Acts,
namely the Punjab Security of Land Tenurct; Act, 10 of I ~53 and tho
Mysore Land Reforms Act, 10 of 1962, a.s amended by Act 14 of 1965,
could not be questioned on the ground that they offended Arts. 13, 14 or
31 of the Constitution. [815 E]
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(xi) On the findings the followin~ que•tion• did not fall to be consiE
dered :
(a) Whether in the exercise of the power of amendment tho fun.
darnental structure of the Constitution
may ho changed or
even destroyed or whether the power is restricted to making
modifications within the framework of the original instrument
for its bener effectuation 7
(b) Whether,the amendment of fundamental rights is covered by
the proviso to Art. 368?
, (c) To what extent can 1he provisions of the Constitution
other
than fundamental rights be amended '!
(d) To what extent can Pan 111 be
amended otherwise than by
taking a.way or abridging the fundamental rights ?
·
le) Whether t1-e impugned Acts could be sustained under the pr<>-
visions of the Constitution without the aid of Arts. 31A and
31 B of the Schedule.
Obiter : If neoessity to abridge the fundamental rights does arise the
residuary power of Parliament may be relied upon to call for a constituent
assembly for making a new O>nstitution or radically changing it.
The
recent Ac: providin.& for a poll in Goa, Daman and Diu was an inst11ncc
of analogous exercise of such residuary power by tho Parliament. [816
E-FJ
Per Hidayatulla, J. : (i) The 5COpe of the amending power under the
C'..onstltution is nor to be determined by tak..ing an apr•ori
view of the
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GOLAKNATH V. PUNJAB
767
omnicompetence of Art. 368.
When there is conflict· be.t\veen that J\rticle and Art. 13(2) juridical hermeneutics requires the Court to interpret
them by combining them and not hy destroying one with the aid of the
other.
No part in a Constitution is superior to another part unless tfie
Constitution itself says so and there is no accession of strength to any
provision by calling it a code. It is the context of the legal provisions that
illustrates the meaning of the different parts so that among them and between them there should be correspondence and harmony. [857H-858C]
(ii) It is wn:.ng to think of the Fundamental Rights as within Padiament's .giving or taking.
They are secured to the people b: 1 Arts. 12, 13,
32. 136, 141. 144 and 226.
The High Courts ar.d finally this Court have
been made the Judge" of whether any legislative or executive action on
the part of the State, considered as comprehensively as is possible, offends
the Fundamental Rights and Art. 13(2) declares that legislation which s·0
offends 's to be deemed t0 he void.
The general words of Art. 368
cannot be taken to
mean that by calling an Act an Amendn1cnt of the
Olnstitution Act a majority of the. total strengh and a 2,· 3rds rnaj:;.;rity
of the members present and voting in each HoU'Se may remove not only
any of the Fundamental Rights but the "'hole Chapter giving them. [860
A-D; 867 E-F]
(iii) In Bri!ain there is no distinction bet·ween constitutional la\\' and
ordinary law as to the procedure of their enactment.
In our Constitution
too in •pite of the claim that Art. 368 is a Code Arts. 4, 11 and 169
show that the amendment of the Constitution can be by the ordinary law
making procedure.
By this method one of the legislative limbs in a
State can be removed or created. This destroys at one itroke· the claim
that Art.
368 is a code and also that any special method of amendmmt
of the Constitution is fundamentally necessary. [861 E-G]
The only difference between constitutional law and ordinary Jaw c~n
be said to arise- from the fact that constitutional Jaws are generally aroPnoi-
-able under a process which in vatying degrees. is more difficult or elahorate.
This may give a distinct character
to the Ja\>v of the Constitution
but it does not serve to distinguish it from the other laws of the land for
the purpose of Art. 13(2). The Article itself does not exclude co~stit11tional law which could have 'been easily done had the constitution m~L:-"'rs.
so intended. [862 B; 866 Bl
An amendment to the Constitution 1s not made unJer po,ver derived
from Arts. 245 or 248 of the. Constitution
read with entry q7 of List I.
Tlie power of amendment i.s sui generis. [900 EJ
(iv) A na·rrM•: viev' neci:J "'Jt be
taken of the
word 'amendmc;t',
By an ame,ndment new matt!'! .. may be added, old matter remnvcd or
altered.
The power of amending the
Constitution is however not intended to he used for experiments or as
an escape.. from
restrictions
against undue State action enacted in the Constitution itself.
Nor is the
power of amendment available for the puroo:-:e of removing express or
implied restrictions against the State. [862 F; 863 B..C]
Coleman v. Miller, 307 U.S. 443 (83 L. Ed. 1385), Luth<r v. Borden.
7 How. 1(12 L. Ed. 58) and Baker v. Carr, 369 U.S. 186 (7 L. Ed; 2d.
633), referred to.
The State is no doubt supreme but in the supremacy of its powers it
may create impediments on its own sovereignty, There is no1'hing to prevent the Sfate from placing certain matters outside ~he amendin.g procedure,.
\Vhen this happens the ordinary procedure. of amendment ceases
to apply.
Amendment can then only be by a freshly constituted body.
768
SUPREME COURT REPORTS
[1967] 2 S.C.R
To attempt to do this otherwise is to attempt revolution which is to alter
the will of the people in an iJJegal
manner.
Courts can interfere
to
nullify the revolutionary
change because there is
an infraction of
existing JcgaJity.
Democracy may be lost if there is- no liberty based on
la" and law based on equality. ·rhe protection of the funda1nental rights
is necessary so that we may not walk in fCM of democracy itself. [863 G;
864 A-C; 865 A-DJ
(v) In Art. 13(2) the restrict'on is against the State.
There
is a
Jiffercnce between the State and its agencies such as GovernmenJ, Parlia ..
mcnt, 1he Legislature of t!1e States, and the local and other authorities.
The State me.ans more than any of these or all of them put together.
By making the State subject to Fundamental Right< it is clearly stated
in A:t. 13(2) that any of the agencies acting alone or all the agencies
acting together are not above the Fundamental Rights.
Therefore when
the House of the People ->r the Council of Stales introduces a Bill
for
the abridgement of the Fundamcn1al Rights, it ignores the
injunction
against it and even if the h\'O Hou~es par,s the Bill the injunction is next
operotive against the President since the expression Government _of India
in the General Clauses Act means the
President of
India.
Thus the
injunc1ion iri Art. 13(2) is against the whole force of the State acting
either in its executive or legislative capacity. [866 E-HJ
, vi) 1:
i~ wrong to invoke. the Directive Principles as if there is ~ome
i'1ntinomy belween them and the Fundamental R;ghls.
The
Directive
Principles Jay down the routes of Stale aclion but 5uch action must avoid
the res·rictions staled in the Fundamental Rights.
It cannot be conceived
that i'l. follov.·ing the Directive Principles the Fundamental Rights can be
ignored. [867 G, 868 BJ
(vii) Our Cons!i!ulion
has given a g1Jaranteed right to the
person.I
who<ie fundamental rights are affcc'ed to move the Court. The guaran~
tee is worthless if the rights arc capable
of being
taken
away.
This
makes our C_.onslitution unique and the
American
or
olher
foreign
precedents cannot be of much a<sistance. [875 HJ
Ho//ings\\'Orth v. Virginia, 3 Dall. 378, Leser v. Game//, 258 U.S.
130, Dillon v. Gloss,
256 U.S. 368 and Te:K v. White, 7
Wall, 700,
referred to.
le is not that Fundamental Rights are not suhjcct to any change or
mocrfication.
The Constitution perm: 1s
~ curtailment of the- exercise of
most of the Fundamental Rights by stating the limits of that curtailment.
It permits the Fundamental Rights to be controlled
but prohibits
their
erasure. [878 BJ
(viii) Parliament today is not 1he constituent body as the const:tucnt
assembly was but a co11.s1ituted body v.·hich must hear true allegiance to
the. Constilution as by lav.· eslablished.
To chanjlc the Fundan1ental Part
of the individual's ;ibcrty is a usurpation of 1he constituent function'
because they have been placed outside
the scope of
the power of the
con,•ituted Parliament. [870 B-DJ
l 1
Constitution like sC'me others has kept certain matters outside the
amcna..tory procc~"S so that the people's interest may not be betrayed by
1heir representative-;;.
In Art. 35 the opening \vor<ls are more than ~ nonobstanre cl;•.use.
They exclude Art. 168 and even amend1nen1 of that
Article under the proviso.
It is therefore a ,l!reat error :o th;nk of Art.
168 a.; a code or as omnicompclcnt. [901 C-E; 902 A-BJ
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Garnishee case, 46 C.L.R. 155, referred to.
Article 368 cannot directly be amended by Parliament to confer power
on itself over the fundamental rights. It would be against Art. 13 (2).
Parliament cannot do indirectly what it cannot do directly. [878 HJ
(ix) If it is desired to abridge the Fundamental Right.s
the legal
method is that the State must reproduce the power "h1ch It has chosen
to put under restraint. Parlhment must
amend Art. 368 to convoke
another constituent assembly, pass a law under item 97 of the· List I
of Schedule 7 to call a constituent assembly, and
then that assembly
may be able to abridge or take away the fundamental r;ghts.
Any other
method must be rega·rded as revolutionary. [878 D-E; 879 Bl
(x) The various amendments that have been made by Parliament
in Arts. 15, 16 and 19 did not abridge fundamen~l rights and were therefore valid. [879 C, 883 BJ
(xi) Our Constitution accepted the theory
that Right of Property is
a fundamental right though perhaps it was an error to do so if sociali•ation was desired. It treated property rights as inviolable except through
law for public good and on payment of compensation.
However the
various amendments have significantly changed the position.
As a result
of them, except for land within the prescribed ceiling, all other land can
be acquired or rights therein extinguished or modified wi'hout compensation and no i:hallenge to the law can be made under Arts. 14, 19 or 31
of· the Constitution. [887 B; 888 B.C; 896 F-G]
As there is apprehension that the erosion of the right to
property
may be ·practised against other fundamental rights it is necess::i.ry to call
a halt. An attempt to abridge or take away Fundamental
Righ10 h)' a
constituted Parliament even through an amendment of the Constitution
c;in be declared void. This Court has the power and the jurisdiction to
do so.
The opposite view express«! in Sajjan Singh's case was wrong.
[898 B-CJ
(xii) The First, Founh and Seventh amendments of the Constitution
cannot now be challenged because of long acquiescence. It is good sense
and sound policy for the courts to decline to take up an amendment for
consider1tion after a \:onsiderabie )apse of time whe.n it was not chaHenged
before or was sustained on an earlier occasion after challenge. [893 G, H;
90~ D-El
Lt~" v. Garnett, 258 U.S. 130 (1922), referred to.
(xiii) In the Seventeenth Amendment, the extension of the definition
of 'estate' to include ryotwari and agricultural lands is an inroad into the
Fundamen1al Rights bu! it can_not be questioned in view of the existence
of Art. 31A(l)(a) whose validity cannot now be challenged. The new
definition of estate introduced by the amendment i< beyond the reach of
the Courts .not because it is not law but because it is "law" and falls within
that word in Art. 31(1)(2)(2A) and Art. 31-A(l). [899 C-GJ
The third section of the Act is however invulid.
It adds 44 State
Acts to the ninth sch•dule. The Schedule is be;ng used to give advance
protection to legislation which is known or apprehended to derogate from
the Fundamental Rights. The power under Art. 368 was nc>t meant to
;;ive protection to S'ate statute, which offend the Constitution. The intent
here is to silence the· courts and not to amend the Constitution. [900 A-DJ
770
SUPREME COURT REPORTS
[1967] 2 S.C.R'
(xiv) The two impugned Acts namely the Punjab Security of Land
A
Tenures Act, 1953 and the Mysore Land Reforms Act, 1962 as amended
are valid under the Constitution not- because they are inc.iudc<l in Schedule
9 of the Constitution but because they are protected by Art. 3 l-A and the
President's a;sent. [902 G-H]
Per Wanchoo, Bachaw~t, Ramaswami, Bhargava and Mitter, JJ. (dissenting): Article 368 carries t1'·· power to amend all parts of the Consti8
tution including the fundamental rights
in Part III of the Constitution.
An amendment is not 'law· for the purpose of Art. 13(2) and cannot be
tested under that Article.
Sri Svnkari Pr{lsacl Singh Dea v. Union of India, [1952] S.C.R. 89 and
Sajjan Singh v. State of Rajasthan, [1965] 1 S.C.R. 933, reaffirmed.
Pe1 Wanchoo, Bhargava and Mitter, JJ.-til The Constitution
provides a separate part headed 'Amendment of the Constitution' and
Art.
368 is the only article in that Part. There can,. therefore, be no doubt
that the power to amend the Constitution must be contained in Art. 368.
lf there was any doubt in the matter it is resolved by the words, namely,
"the Constitution shall stand amended in accordance with the terms of
the bill".
These words can only mean that the power is there to amend
the Constitution after the procedure has been followed. [826 A-DJ
(ii) While there is a whole part devoted to the amendment of the
Constitution there is no specific mention of the amendment of the Consti·
tution in Art. 248 or in any entry of List I. It would in the circumstances
be more appropriate to read the power in Art. 368 than in Art. 248 read
with item 97 of List I. [826 H-827 A]
The original intention C'f the Constitution makers \Vas to give residuary
power to the States. The mere fact that during the passage of
the
Constitution by the Constituent Assembly residuary power was finally
·ve:;ted in the Union would not therefore
mean that it includes the power
to amend the Constitution.
J\{oreover residuary power cannot be used to
change the fundamentul la\• of the Constitution because aU legislation is
under Art. 245 "subject to the provisions of this Constitution". [827 B,
HJ
Mere accident of similarity of procedure provided in Art. 368 to that
prnvi<led for ordinary legislation cannot obliterate the basic difference
between constitutional law and ordinary law. It is the quality and nature
l 1f wh<lt is done under Art. 368 and not its similarity to other procedure
that should be stressed.
What emerges after the procedure in Art. 3(,.:J
has been followed is not ordinary law but fundamental law. [829 D· ~30
C-D~
.
'
.
. (iii) The procedure under the pmviso to Art. 111 cannot apply to a
bill to amend the Constitution. If the President ref,"ed to give his assent
to such a hill. the proposed amendment falls.
In thiS respect at any rate
the procedure under Art. 368 differs from the ordinary legislative process
[831 B·El
.
(iv) The word 'law• has been avoided apparently with great care in
Art. 368. What emerges after the procedure has been followed is not an
Act but Tilt Constitution stands omended.
After that the courts can o~ly
soe whether the procedure in Art. 368 was followed. If it has
been
followed th~re is no question of testing the amendment of the Constitution
on .the anvil. of _fundamental rights or in any other way as in the case of
·ordinary leg1slat1on. [83? A-G]
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771
(v) To say that 'amendment' in law only means a change which
results in· improven1ent \\'.Ould make ame·ndment impossible for \Vhat is
improvement is a matter of opinion. [834 BJ ·
It may be open to doubt whether the power of amendment contained
in. Art. 368 goes to the extent of completely abrogating the pre.sent
Constitution and substituting it by an entirely new one. But short of that
t):le power to amend includes the powe·r to a<ld any provision to !he
C.Onstitution to . alter any provision and substitute any other provision ia
its place or to delete. any provision. [834 F-0]
The 'Seventeenth amendment is merely in exercise of the power of
amendment as indicated above and cannot be struck down on the ground
that ii- goes beyond the power conferred by Parliament to amend the
Constitution by Art. 368. [834 HJ
(vi) There is no express limitation on power of amendment in Art.
368 and no. limitation can or should be implied therein. If the Constitution makers intended certain basic provisions in the Constitution, and
Part 111 in particular~, to be not amendable there is no reason why it was
not so staid in Art: 368. The acceptance of the p·rinciple that theM is an
implied bar to amendment of basic features of the Constitution would
lead to the position- that any amendment tc any article would be liable to
challenge before the courts on the ground thaf it amounted tc amendment
of a basic feature.
Constituent power like that in Art. 368 can only be
subject to expteSs limitations so far as the substance of the l'l.mendments
is concerned. [835 A; 836 D, G]
(vii) For interpreting Art. 368 it is not permif•ible to read the
speeches made in the
Con'Stituent
Assembly.
Historical facts
namely
,what was accepted or ythat was not accepted or what was avoided in the
€onstituent ~\ssembly can be looked into; but in conntction with Art. 368
no help can be got from the historical material .vailable. [838 CJ
Administrator General of Bengal v. Prem Lal Mullick, ( 1895) XXII
1,A. 107, Baxter v. CommiS!(oner of Taxation, ( 1907) 4 C.L.R. 1"087,
A. K. Gopalan v. State of Madrcs t1950] S.C.R. 88 and The Automobile
Transport (Rajasthan) Ltd. v. State of Rajasthan, [1963] 1 S.C.R. 491,
referred to.
(viii) The preamble to the Constitution cannot prohibit or control in
any way or impose any im!J1ied restriction-s or limitations on the power
to amend .the Constitution contained in Art. 368. [838 P.]
In re the Berubari Union and Exchange of Enclaves, [1960] 3 S.C.R.
· 250, referred to.
(ix) The word 'law' in Ait. 13(1) d0"5 not include any law in the
nature of a com:tirutional provision for no such law remained in view of
Art. 395 which provided that "the Indian Independence Act, 1947 and the
Government of India Act, 1935, together with all enactments amending
or supplementing the latter Act, but not including the Abolition of Privy
Council Jurisdiction Act, 1949, ore hereby repealed". There is no reason
why if the word 'law' in Art. 13 (I) relating to past laws does not include
any constitutional provision the word 'law' in cl. (2) would take in an
amendment of the Constitution for it would be reasonable to read th~
word in the same sense in both the clauses. [839 D-F]
Article 13(2). when it talks of the State making any law, refers to the·
law made under the provisions contained in Ch. I of Pait XI of the
Con!titution beginning ·with Art. 245.
It .can have no reference to the
7 i '2
SGPRDIE COURT REPORTS
[1967) 2 S.C.R.
t_~onsti1t1~nt pLl\\'Cf of ~1n1l!ndmcnt under 1\rl. 368.
For it is somewhat
A
contrJdictory th:tt in Art. 368 p0Y.~r should hav.c been given to amend
;\ny p:o...-ision of the Cun~titution \\'iihout <iny limitations but indrrcctly
th:it pV\\Cr shouh.I hi.;
lim:tc~! by
u~ing: vtords. o[ doubtful import in .r\rt.
I )(2\. [841 CJ
·rhe pO\\er conferred by the \\'ordc; of Art. 368 being unfettered, in·
consiqcncv bct\\·ccr· that power and the provision in Art. 13(2) must be
Jvoidcd. ·Therefore in kccpir...: Ytitl1 the unfettered power in Art. 368 the
B
\vord 'lonv' in Art.
13(~) niust he read a.; meaning law passed under the
ordinary legisl.itivc pO\\'Cr and not a constitutional
amendment.
The
wmds in Arr. 13(2) are not •pcc1fic and clear enough to be regarded as
.. n express l:m1taticn on Art. 368. [842 G-HJ
(x) f\ferch· hccausc there ,,.·:is some indirect effect on Art. 226 it
\~·Js not nccl'~~a: v that the Scvcntecn!h Amendment
shc:.uld
have been
ralifi~d un<lcr the. proviso to 1\rl. 368.
Ari. 245
had
not
also
been
C
dircc:lv afTectc<l by the· sa:d Act and no ratification "·as required on this
ground either. 1845 G-H, 846 CJ
(xi) The law< added to the Ninth
Schedule
by
the
Seventeenth
Amendment Aot hld already been pa'Sed by the State Legislatures and it
\V;i' their constilutionJI infirmity, if any. •vhich was being cured by the
device adopted in Art. 31 B read wilh the Ninth Schedule, the ame..Jmcut hcing only of the rclcv<1nt provi~ions of Part III which were com·
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pcndiously put in one place in Art. 31 B. Parliament could alone do it under
Art. ~68 and there "'as no ncccssi:y for any raffication under the or<>-
viso, for amendment of Part Ill is not entrenched in the proviso. [847 BJ
In curing the infirmity of the said ]a'W'S Parliament was not encroacb.
ing on the exclu~ivc leg:stative powers of the States because only Parlia·
mcnt cou!d cure the infirmity.
For the same
reason the fal!t that the
laws in question \i.·crc State laws did not make
ratification
obligatory.
E
[847 GJ
A limited meaning cannot be given to Art. 368 because of the possibility of abuse of the power. The check is not in the courts Lo• 'J the people
who elect members of Parliament. [848 F]
The pov.:cr of ;1mcndment contained in a Mitlen federal constitution
i~ a safety valve "'hich to a large extent provides for stable growth and
n1akes violent revolution more or less unnecessary.
The fact that in the
lac;t
~ixtecn years a large ncmber of amendment<;
could be made and
have hcen made i~ due to the accident that one party h~"' been returned
by electors in sufficient strength to be able to cpmmand s;ccial majorities
v:hich are required in Art. 368, not onlv
at the Centre but in aU
the
States.
But that is :to grou'ld lor limiting the clea( words of Art. 368.
[850 C-D. E]
(xii) Though the period for which Sankari Prasad'.r case has
stood
unchallenged is not long. the effects "·hich have fotloi...·cd on the passing
of S'ate la\vc; on the faith of that decic;ion, are so overwhelmine that the
decision should not be disturbed, othcrvdse chaos will follow.
1'his is the
fillclit OO'\sihlc case
in which
the
principle of stare decisis should be
applied. [851 GI
Kes!1av Mills Compa11y, LM. v. Commissioner of Income-tax, [1965)
2 S.C.R. 908, referred to.
(xiii) The doctrine of prospective overruling cannot be accepted in
this country ... The doctrine accepted here is that courts declare law and
that a declaration made by a court is the law of the land and talces effect
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773
from the date the law came into force.
It. would be unde•irable to give
up that doctrine and superseae it with the doCtrine of prospective overruling. [852 D-FJ
Moreover a law contravening Art. 13(2) is voirl ab initio as held by
this Court in Deep Chand's case and Mahendra Lal Jaini's case. In the
face of these decisions it is impossible to apply the doctrine of prospective overruling to ordinary laws.
If constitutional law is to be treated
as ordinary law the same principle applies. If however it is not treated
as 'law' under Art. 13(2) then there is no necessity of applying the principle of prospective overruling for in that case the
amendment under
Art. 368 does not have to be tested under A:rt. 13(2). [852 G-H; 853 BJ
Deep Chand v. State of Uttar Pradesh, [1959] Supp. 2 S.C.R. 8 and
Mahendra Lal Jaini v. State of U1tar Pradesh, [1963] Supp. 1 S.C.R. 912,
referred to.
.Per Bachawat J.-(i) Article 368 not only prescribes the procedure
but also gives the power of amendment.
It is because the power
to
amend is given by the article that by following its procedure the Constitution stands amended. The proviso is enacted on the assum?tion that
the several articles mentioned in it are amendable; but for the proviso
they would have been amendable under
the main
part.
There is no
other provision. in the Constitution wider
which
these articles can be
amended. [904 DI
Articles 4, 169, Fifth Schedule Part 1J and Sixth Schedule Para 21
empo.wer the Parliament to make amendments
to certain
parts of the
Constitution by law, and by express provision such law is deemed not to
be amendment for .the purpose of Art.