Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India.
I.C. Golak Nath and Ors. Vs. State of Punjab and Anr.
AIR1967SC1643, [1967]2SCR762
Hon’ble Judges/Coram: K. Subba Rao, C.J., C.A. Vaidialingam, G.K. Mitter, J.C. Shah, J.M. Shelat, K.N. Wanchoo, M. Hidayatullah, R.S. Bachawat, S.M. Sikri, Vashishtha Bhargava and V. Ramaswami, JJ.
Decided On: 27.02.1967
FACTS: –
The validity of the Punjab Security of Land Tenures Act, 1953 (Act 10 of 1953) and of the Mysore Land Reforms Act (Act 10 of 1962) as amended by Act 14 of 1965 was challenged by the petitioners under Article 32 of the Constitution. Since these Acts were included in the 9th Schedule to the Constitution by the Constitution (Seventeenth) Amendment Act, 1964, the validity of the said Amendment Act was also challenged. It was contended that Parliament had no power to amend fundamental rights in Part III of the Constitution.
ISSUE: –
- Whether power to amend the Constitution reside in Article 368 or in residuary power of Parliament under Article 248 read with Entry 97, List I?
- Whether the Fundamental Rights in Part III of the Indian Constitution can be amended and abridged by the Parliament under Article 368 of the Indian Constitution?
JUDGMENT: –
Fundamental rights are the primordial rights necessary for the development of human personality. They are the rights which enable a 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. The fundamental rights are given a transcendental position under our Constitution 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 all the Directive Principles of State Policy can reasonably be enforced without taking away or-abridging the fundamental rights. While recognising the immutability 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 Articles. 33, 34 and 35.
The non-obstante clause with which the last 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 Parts a fundamental right. Even during grave emergencies Article 358 only suspends Art. 19 and all other rights are untouched except those specifically suspended by the President under Article 359.
The Constitution has given a place of permanence to the fundamental freedoms. In giving to themselves the Constitution the people have reserved the fundamental freedoms to themselves. Article 13 merely incorporates that reservation. The Article is however not the source of the protection of fundamental rights but the expression of the reservation. The importance attached to the fundamental freedoms is so transcendental that a bill enacted by a unanimous vote of all the members of both Houses is ineffective to derogate from its guaranteed exercise. It is not what Parliament regards at a given moment as conducive to the public benefit but what Part III declarer. protected, which determines the ambit of the freedom. The incapacity of Parliament therefore in exercise of its amending power to modify, restrict, or impose fundamental freedoms in Part III arises from the scheme of the Constitution and the nature of the freedoms.
If it is the duty of Parliament to enforce directive principles it is equally its duty to enforce them without infringing the fundamental rights. 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.
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 Article 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.
The power of Parliament to amend the Constitution is derived from Articles 245, 246 and 248 read with item 97 in List I. The residuary power of Parliament can certainly take in the power to amend the Constitution. Though a law made under Article 245 is subject to the provisions of the Constitution it would be wrong to say that every law of amendment made under it would necessarily be inconsistent with the articles sought to be amended. It cannot reasonably be said that a law amending an article is inconsistent with it. The limitation in Article 245 is in respect of the power to make a law and not of the content of the law made within the scope of its power. An order by the President under Article 392 cannot attract Art 368 as 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 legislative power the President acting under Article 392 can amend the Constitution in terms of Article 368.
The Constituent Assembly, it so minded, could certainly have conferred an express legislative power on Parliament to amend the Constitution by ordinary legislative process. There is, therefore, no inherent inconsistency between 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’. Article 13(2), for the purpose of that Article, gives an inclusive definition of ’law’. It does not Prima facie exclude constitutional law. The process under Article 368 itself closely resemble the legislative process. Article 368 is not a complete code in respect of the procedure of amendment. The details of procedure in respect of other bills have to be followed so far as possible in respect of a Bill under Article 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 to be something other than law the constitutional insistence on the said legislative process is unnecessary. The imposition of further conditions is only a safeguard against the hasty action or a protection to the states but does not change the legislative character of the amendment. Amendment is law and that but for the fiction it would be an amendment within the meaning of Article 368. Therefore amendments either under Article 368 or under other Articles are only made by Parliament following the legislative process and are ’law’ for the purpose of Article 13(2).
One need not cavil at the description of amending power as a sovereign power for it is sovereign only within the scope of the power conferred by a particular Constitution which may expressly limit the power of amendment both substantive and procedural. If cannot therefore be said that amending power can have no limitations being a sovereign power. The argument that the amending process involves political questions and is therefore outside the scope of judicial review cannot also be accepted- It may be Parliament seeks to amend the Constitution for political reasons but the court in denying that power will not be deciding a political question; it will only be holding that Parliament has no power to armed Particular articles of the Constitution for any purpose whatsoever, be it political or otherwise.
If power to abridge the fundamental rights is denied to Parliament revolution is not a necessary result. The existence of an all comprehensive power cannot prevent revolution if there is chaos in the country brought about by misrule or abuse of power. Such considerations are out of place in construing the provisions of the Constitution by a Court of law.
While-ordinarily Court will be reluctant to reverse its previous decisions it is its duty in the constitutional field to correct itself as early as possible, for otherwise 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 people, the sooner it was overruled the better for the country.
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 Article 13(2). But having regard to the history of this and earlier amendment to the Constitution, their effect 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 undesirable to give retroactivity of this decision. The present was therefore a fit case for the application of the doctrine of “prospective overruling”.
The doctrine of “prospective overruling” is a modern doctrine suitable for a fast moving society. It does not do away with the doctrine of state decision but confines it to past transactions. While in Strict theory it may be said that the doctrine ’involves the making of law, that the court really does is to declare the law but refuse to give retroactivity to it. It is really a pragmatic solution reconciling the two conflicting doctrines, namely, that a court finds the law 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 disturbing the impact of those errors on past transactions. By the application of this doctrine the past may be preserved and the future protected. Our Constitution does not expressly of by necessary implication speak against the doctrine of prospective overruling. Articles 32, 141 and 142 are designedly made comprehensive to enable the Supreme Court to declare law and to give such directions or pass such orders as are necessary to do complete justice.
Applying the doctrine of prospective overruling in the circumstances of the present case the Court declared that this decision would not affect the validity of the Constitution (Seventeenth Amendment) Act 1964, or other amendments to the Constitution taking away or abridge the fundamental rights. It further declared that in future Parliament will have no power to amend Part III of Abe Constitution so as to take away or abridge the fundamental rights. As according to the above decision the Constitution (Seventeenth Amendment) Act held the field the validity of the two impugned Acts, namely the Punjab Security of Land Tennures Act, 10 of 1953 and the Mysore Land Reforms Act, 10 of 1962, as amended by Act 14 of 1965, could, not be questioned on the ground that they offended Art 13, 14 or 31 of the Constitution.
HELD: –
Fundamental Rights cannot be abridged or taken away by the amending procedure in Article 368 of the Constitution. An amendment to the Constitution is ’law’ within the meaning of Art. 13(2) and is therefore subject to Part III of the Constitution.
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