I. C. Golaknath & Ors. Vs. State of Punjab & Anrs. – Case Summary

Equivalent Citation - 1967 AIR 1643, 1967 SCR (2) 762
Petitioner: 
I. C. Golaknath & Ors. 
Respondent: 
State of Punjab & Anrs. (With Connected Petitions)
Bench: 
Subba Rao, K.N. Wanchoo, M. Hidayatullah, J.C. Shah, S.M. Sikri,  R.S. Bachawat, 
V. Ramaswami, J.M. Shelat, Vihishtha Bhargava, G.K. Mitter & C.A. Vaidiyalingam
Date of Judgment: 27/02/1967
Referred Cases: 
1. Kesavananda Bharati Vs. State of Kerala

Background

Whether parliament can amend Fundamental Rights enshrined under Part III of The Constitution of India by invoking Article 368 of Indian Constitution for the first time came into question in Shankari Prasad v. Union of India[1] where the constitutionality of 1st Constitutional Amendment Act, 1951 was challenged. Shankari Prasad[2] was just a start to what became the biggest legal battle which Indian Democracy faced. The apex court gave a clean chit to 1st Constitutional Amendment in Shankari Prasad[3] declaring that Parliament can amend fundamental rights through Article 368, however down the line, it kept on changing stance. In another case before it i.e. Sajjan Singh v. State of Rajasthan[4]  upon the challenge of constitutionality of 17th Constitutional Amendment Act, 1964, though the apex court followed Shankari Prasad[5]& upheld Parliament’s power to amend Fundamental Rights but two justices on the bench dissented with the majority namely Hidayatullah & Mudholkarjj. whose separate dissenting opinions in Sajjan Singh[6] gave birth to two biggest cases of Constitutional history since Independence viz. Golaknath v. State of Punjab[7]& Kesavananda Bharti v. State of Kerala[8]. While Justice Hidayatullah’s opinion (Non – Amendability of Fundamental Rights) was the general premise in Golaknath decision, it was Justice Mudholkar’s opinion (Basic Features) which was the basic premise in Kesavananda decision {as discussed in Kesavanada Bharati Case Summary}.

Issue

Constitutionality of 17th Constitutional Amendment Act, 1964

Golaknath Case

Facts

The immediate facts of the case were that the family of one William Golak Nath had over 500 acres of property in Punjab. Acting under Punjab Security and Land Tenures Act, 1953 which was placed in 9th Schedule by the 17th Constitutional Amendment Act, 1964 the state government intimated to petitioner that he can now only possess 30 acres of land & rest will be treated as surplus. Aggrieved by this intimation of the state government petitioner filed a writ petition u/a 32 of Indian constitution and pleaded the violation of his FR’s mentioned u/a 19(1)(f) i.e. Right to Hold & acquire property, 19(1)(f) Right to practice any profession & 14 (Equality before Law & Equal protection of laws).

PETITIONER’S ARGUMENTS

1. The Constitution of India as drafted by the Constituent Assembly is of permanent nature and no act which changes or tries to bring about a change is constitutional.
2. The word ‘amendment’ only implies a change in accordance with the basic idea & not altogether a new idea.
3. The Fundamental rights as provided under Part III cannot be taken away by an act of parliament of whatsoever nature because they are the essential & integral part of the Constitution without which Constitution is like a body without a soul.
4. Article 368 only defines the procedure for amending the Constitution. It does not grant the power to parliament to amend the Constitution.
5. Article 13(3)(a) in its definition of “law” will cover all types of law i.e. statutory or constitutional etc. in its ambit therefore by the virtue of Article 13(2), any constitutional amendment violative of Part III will be unconstitutional.

RESPONDENT’S ARGUMENTS

1. Constitutional Amendment is a result of the exercise of sovereign power & this exercise of sovereign power is different from the legislative power which Parliament exercises to make laws.
2. The very object of the amendment is to change the laws of the nation as per the changing needs of the society. The absence of such provision would result in Constitution becoming too rigid.
3. There is no hierarchy in the Constitutional provisions as basic or non-basic and all the provisions are of equal importance and equal status.
4. Most of the amendments being the answers to political questions, they are outside the ambit of judicial scrutiny.

JUDGMENT  

The Apex court with the largest bench that had ever sat on an issue till that time arrived at a 6:5 majority favouring Petitioners. The then CJI along with four other justices (J.C. Shah, S.M. Sikri, J.M. Shelat, C.A. Vaidiyalingam ) wrote the majority opinion and Justice Hidayatullah agreeing with CJI Subba Rao’s opinion wrote a separate opinion whereas Justices K.N. Wanchoo, Vishistha Bhargava and G.K. Mitter wrote single minority opinion and Justices R.S. Bachawat& V. Ramaswami wrote separate minority opinions.

The majority opinion of Golaknath reflects the uneasiness & scepticism in their minds about the then course of Parliament. Since 1950’s Parliament through invoking Article 368 have passed numerous legislation that had in one pretext or another violated populous’ FR’s. The majority was doubtful that if Sajjan Singh remained law of the land, then a time could come when all the FR’s adopted by our Constituent assembly will be diluted through amendments and finally extinguished. Keeping this probable annihilation of FR’s in mind and fearing the gradual transfer of Democratic India into Totalitarian India majority overruled Sajjan Singh & Shankari Prasad. Therefore, to check this colourable exercise of power and save Democracy from autocratic actions of Parliament, the majority held that Parliament cannot amend Fundamental Rights.

The majority equated FR’s with Natural Rights and reckoned them as “the primordial rights necessary for the development of human personality.”  The majority raised a very serious question over the state that when rights mentioned under Part III can’t be affected by Parliament’s unanimous bill then how a simple or special majority can do so. On the other hand, the minority opinion followed the earlier law i.e. Shankari Prasad& Sajjan Singh, thereby holding that parliament has the power to amend entire Constitution including Fundamental rights. Therefore, the minority granted complete autonomy to parliament.

Reasons  

The reasons which prompted the majority to arrive at this decision are as follows:

1. According to the majority, the impugned Article 368 through which the parliament was drawing power to amend the Constitution in fact merely laid down the procedure of amending the constitution. The majority relied on the Marginal note of the earlier Article 368 to arrive at this conclusion.
2. The majority located the power to amend the constitution in Article 248 of the Constitution which provides for the Residuary power of Parliament. Since the product of Article 248 is law, therefore, in majority’s opinion Amendment of Constitution is “law” for the purposes of article 13(2) of Constitution.
3. The absence of word “amendment” in the definition of “law” was answered by the majority in the form that the definition under Article 13(3)(a) is not exhaustive rather it is inclusive.
4. Justice Hidayatullah, though writing a separately but agreed to CJI Subba Rao on the point that there is no difference between legislative and amending process.

The reasons which prompted the minority to arrive at their stance are as follows:       

1. The minority bench was fearful of the stance of majority in the sense that if majority’s opinion becomes established law then it would grant tough rigidity to the Constitution. They were sceptical that if Parliament is not provided with amending competence the Constitution would become static & all the dynamic nature of Constitution will meet death.
2. In accordance with the minority opinion although the procedure of Article 368 does very much correspond to the legislative process but it is different from ordinary legislation.

Doctrine Of Prospective Overruling

The judgment inter alia provides for Prospective Overruling of the law laid down by this Judgment. The decision to prospectively overrule earlier decisions was a smart and reasonable move played by the Judiciary. The doctrine of prospective overruling implies that the effects of the law to be laid down will be applicable on the future dates only i.e. past decisions will not be affected by this decision. Prospective Overruling was chosen by the majority because of the following reasons:

1. The majority in order to save the nation from the chaos of retrospective operation and the judicial branch from multiple litigations that may follow after the decision opted for prospective overruling. This was in order to minimize the negative impact of the judgment invalidating the earlier constitutional amendments.
2. Another reason because of which the majority opted for prospective overruling was since the decision in Golaknath was that parliament cannot amend Fundamental rights, therefore, all of the previous amendments would be invalid and unconstitutional. However, these amendments were in consonance & in strict accordance with the laws laid down in Shankari Prasad and Sajjan Singh, therefore they were valid as per the previous law.

Justice Hidayatullah also supported Prospective Overruling by opining that previous decisions should not be affected by the ratio laid down by the present decision.

Aftermath  Of Golaknath

On April 7, 1967, just two months after Golaknath judgment Nath Pai M.P. from Rajapur Constituency introduced a private member’s bill into Parliament to indirectly overrule the decision. However, the bill failed to reach the floors of the house. The then Congress Government led by Indira Gandhi won the elections with a huge majority in 1971. The Indira Gandhi government with malicious intent to overrule whatever was laid down in Golaknath passed the Constitutional 24th Amendment Act, 1971.

Highlights Of 24^th Amendment

1. The Golaknath judgment laid down that every amendment made under Article 368 will be hit by the exception laid down in Article 13, therefore to neutralize this the parliament through an amendment in Article 13 annexed clause 4 by which any amendment do not had any effect under Article 13.[9]
2. To remove all or any difficulty or ambiguity the Parliament also added clause 3 to the Article 368 which reads as follows……..“Nothing in article 13 shall apply to any amendment made under this article.”[10]
3. In Golaknath the majority relied upon the Marginal note of the earlier Article 368 to decide that the provision only contained the procedure of Amendment and not power, therefore, the Marginal Note of Article 368 was amended and word Power was added in the Marginal Note.
4. Through an amendment in Article 368(2) the parliament tried to make a difference between the procedure in an amendment and an ordinary law. Earlier the president had the choice to refuse or withhold the bill for the amendment but after 24th Amendment he has no such choice to refuse or withhold the amendment. This way the parliament tried to make an amendment and an ordinary law different so as to protect the amendment from the exception mentioned under a combined reading of Article 13(1) & 13(3)(a).

Critical Analysis

The decision in Golaknath led to the emergence of two schools of thoughts namely

1)    Vindication of Fundamental Rights

2)    Hindrance in Socio-Economic Legislations

This judgment threw a great responsibility upon the future courts because if Fundamental Rights’ are to be non-amendable through Article 368 then it would be for the courts to see that constitutional provisions act as a minimum hindrance to the Socio-Economic Legislations in pursuance of the objectives of a Socialist India.

The majority’s opinion was commendable in the sense that they tried to save the Indian democracy from the autocratic actions of Parliament. They were fearful that if the Parliament continued to practice its course on infringing FR’s by making amendments in them, then the day would not be far when these guaranteed Fundamental rights will be just history.

However, this logic cannot stand close scrutiny in the following terms:     

1. An amendment is something that is recognized in every Constitution. An amendment is a tool which parliament possesses to make the nation’s laws up to date with the needs of the present generation. Without Amendment in the Constitution i.e. is the grundnorm for the nation, it would be very difficult for the nation to compete with others around the globe.
2. The learned Constitution makers who had drafted the document for the world’s largest democracy who had discussed every nuance in the most specific detail. It is not imaginable that they would leave such a serious question to be answered by such circuitous debates and arguments.
3. The majority’s argument for their decision i.e. their fear of India gradually turning into a Totalitarian State is acceptable but why limit its extent to Fundamental Rights Only. Apart from FR’s there are other important provisions too to protect such as the Parliamentary form of government, an Independent Judiciary, Free & Fair elections etc., The protection should also shield such provisions which are indispensable to the functioning of SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC India as guaranteed by the Preamble to the Constitution.
4. An important question left unanswered by the Golaknath judgment was the extent of the meaning of the word Amendment. Does it mean addition or variation or repeal or subtraction or rewriting the entire Constitution or changing the basic tenets?
5. The majority bench was of the opinion that to make an amendment in the constitution, the parliament shall formulate a Constituent Assembly. When Judiciary is skeptical about the mindset of the parliament how can they believe in actions of the assembly who is the child of the Parliament itself.

Conclusion

The judgment of Golaknath came at a crucial time when the Indian democracy was suffering from the start of what later became the “darkest decade” of India. This judgment in some amount managed to control the defiant Parliament from showing its autocracy. The main fear in the minds of the majority bench was about the deterioration of the soul of the Constitution by the defiant mode of Parliament. This judgment forbade the Parliament to cause further damage to the Fundamental rights of the citizen by laying down a law which had the effect to suppress the Parliament’s autocracy. The judgment aimed at the protection of those fundamental provisions which are equivalent to the natural rights of the mankind which no government can extinguish by law. Golaknath is the triumph of “rule of law” in the sense that not even the lawmakers are above the law. Golaknath reinforced the faith of citizens that is the law that is supreme & not who makes it (Parliament), neither who implement it (Executive) & nor who interpret it (Judiciary).

However, since a coin has two sides the Judgment of Golaknathhad flaws as well. The biggest flaw in the judgment was the rigidity it granted to the Constitution. The court ruled that for an Amendment to happen in the Constitution has to be through Constituent Asembly. Further, the court only shielded Fundamental Rights from the autocracy of Parliament which was a regressive step in itself because the court had a wonderful opportunity to protect Constitution from malicious acts of Parliament. The court should have grabbed the golden opportunity & taking reference from Justice Mudholkar’s opinion in Sajjan singh& shielded all the features of the Constitution that are of fundamental nature. On another point, the court failed to describe the scope of the word “amendment”. This definition was crucial to curtail the power at that point of time itself to permanently prohibit the parliament to do any further damage. Due to these flaws in the judgment it was overruled by some extent in Kesavananda Bharti  in 1973.

However, including all the pros and cons of the judgment, the judiciary was able to show the Parliament that there is some institution that is watching over and guarding the Constitution. The judgment was successful in deterring the Parliament from infringing any more Fundamental Rights. Its deterrence was successful to that extent that the Parliament in order to reverse the law to status of pre-Golaknath tried to indirectly overrule Golaknath. This cowardly act of Parliament reflected the panic in the mindset of Parliament in respect to Judiciary & proved that India is no anarchy where the only supreme authority is rulers. The judgment successfully made the Parliament remember their position of servants of Common people in Indian democracy. The judgment made sure that this great Constitution that was enacted in the name of people cannot be subverted to the wills of those acting as the representatives of the populous of the nation.

Edited by Chiranjeeb Prateek Mohanty

[Reference]

[1]Shankari Prasad v. Union of India,A.I.R. 1951 S.C. 455.

[2]Supra note 1.

[3]Supra note 1.

[4]Sajjan Singh v. State of Rajasthan,1965 A.I.R. 845, 1965 S.C.R. (1) 933.

[5]Supra note 1.

[6]Supra note 4.

[7]Golaknath v. State of Punjab,1967 A.I.R. 1643, 1967 S.C.R. (2) 762.

[8]Kesavananda Bharti v. State of Kerala,(1973) 4 S.C.C. 225.

[9]INDIA CONST.  Art. 13(4).

[10]INDIA CONST. Art. 368(3)